Bazemore v. Friday Brief for the Federal Petitioners

    V ,



«I ;

TABLE of contents
Page

OpiniotiB below *
.........  2Jurisdiction..........................................................-..............

2
Statutes involved .............................................

Statement ................................................................................
r , 12Snmmnry or argument ........................................................

Argument:
I. Black slate employees establish a claim under 

Title VII by Identifying current salary dispari­
ties between tliemaelvea and white employeea 
bolding tbe same jobs and demonstrating that
p„cb disparities result from a slate policy be­
fore 15)05 of paying blacks lower salaries than
whites ..........................................................................

II. The regression analyses showed racial discrimi­
nation, and respondents did not refute that 
showing ........................................................................

A. In order to establish a priina facie of snl- 
nry discrimination, a regression analysis 
must control for factors that normally alfect

. . . . .  22 sa la ry ................................................................
B. Tbe court of appeals erred in analyzing tbe

statistical proof offered in this case ............ 28

IN. Tbe service retains joint responsibility for Ibe 
selection or county chairmen, and is therefore 
liable under Title VII for discrimination in ^  
those selections..........................................................

IV Prior segregation in the I I I  and extension 
homemaker clubs was rally cured by respon­
dents’ adoption of a genuinely nondiscriminatory
admissions policy.................... ..................................

, . ........... GOConclusion ..........................................................

(tit)



IV

TAHIjR o r  AUTllOUITIRS
Cnses: 1,nR0

Aclia. V. Bcarnc, 570 F.2d 57 .....................................  ^
Alabama Slate Teachers' Ass'n  v. Alabama Public 

School & College Authority, 280 F. Siipp. 781,
nlT’d, 808 U.S. 100 ...............................   40

Alexander v. llolmc*, 800 U.S. 10   41
American Tobacco Co. V. Patternon, 150 U.S. 08 ... 17, 20 
Atonio V. I I'd i d i  Cove. Packing Co., 708 F.2«1 1120 . 80
llartclt v. Itcrlitz School of Language of America,
■ Inc., 008 F.2tl 1008, cert, denial, 101 U.S. 015.. 10

Derry V. Hoard of Supervisors of Loniaiana Stale
University, 715 F.2<l 0 7 1 .......................................... 49

Bowman v. County School Board, 882 I’ .2d 320.... 47
Drown v. ltd. of L'duc.:

347 U.S. 483 ..........................................................  40
340 U.S. 201 ...........................................................  40, 41

Colombo* ltd. of Kduc. V. Pcnick, 113 U.S. 440.. 38, 47 
Corning (Ha** Work* V. Brennan, 417 U.S. 188 20
Cox V. Stanton, 520 F.2d 4 7 ...........................................  44
Dayton ltd. of Kduc. v. Brinkman:

433 U.S. 400 ......................................................... 40-41,45
443 U.S. 520 .............................................................  48

Uothard v. Rawlinson, 433 U.S. 321.......................... 20
Duma* V. Town of Mount Vernon, 012 F.2d 074. .. 17
Ea*Hand v. Tennc**cc Valley Authority, 704 F.2d

013 ................................................................................  „
Farmer v. A It A Service*, Inc., 000 lp.2d 1000.......  35-3G
Fnrnco Construction Cory. V. Water*, 438 U.S.

507 ................................................................................. Z2> 20
Coyle V. Browder, 352 U.S. 008..................................  40
General Building Contractor* A**'n V. Pennsyl­

vania, 458 U.S. 875 ................................................  2r*
Co** V. ltd. of Kduc., 373 U.S. 083 ...........................
Green v. School Board, 301 U.S. 430 41,43, 40, 47, 48, 40
Griffin V. Carlin. 755 I'.2d 1510 ....................... 25
Guardian* v. Civil Service Commission, 403 U.S.

583 ....  ........................................................................
Hall V. Led ex, Inc., 000 F.2d 307 ............................. 10

!

V
Cnacs—Continued: '  ”R0

Hazelwood School Hiatrict V. United Slate*, 188
U.S. 200 ......................................... -........................... passim

Holme* v. City of Atlanta, 850 U.S. 870 ................  40
International Brotherhood of Teamster* V. United

Slate*, 431 U.S. 3 2 1 ............................40, 20, 22, 25, 20, 27
Jenkins V. Home Insurance Co., 035 F.2d 3 10 ......  18
Keyes V. School District No. I, 413 U.S. 180....... .11,40
Kim v. Coppin. Slate College, 002 F.2d 1055 .............
Lamylierr v. Brown University, 085 F.2d 743....... 10
Manor of Baltimore v. Dawson, 350 U.S. 877 40
McDonnell Douglas Cory. v. Green, 411 U.S. 702 20
McDonald v. Santa Fe Trail Tran*p. Co., 427 U.S.

273 ...............................................................................  36
Millikrn V. Bradley:

418 U.S. 717 ................................................... 40, 41,40
433 U.S. 207 .......................................................... 40,41

Moose Lodge No. 107 v. Irvis, 407 U.S. 103 40
Monroe V. Board of Commissioners, 301 U.S. 450.. 40, 47,

48, 40
Muir V. Louisville Parle Theatrical Ass’n, 347 U.S.

071 ...............................................................................  40
Pasadena Bd. of Kduc. V. Spangler, 427 U.S. 424 40, 45, 40 
Patterson v. American Tobacco Co., 580 F.2d 300 17
Perez V. Laredo Junior College, 700 F.2d 731 10
Pullman-Standard v. Swiut, 450 U.S. 273.................  17, 20
Raney v. Bd. of Kduc., 801 U.S. 443 ........................  40
Robinson v. Lorillard Cory., 444 F.2d 701, cert.

dismissed, 401 U.S. 1000 ......................................... 30
Salz V. ITT Financial Cory., 019 F.2d 738 10
Segar V. Smith, 738 F.2d 1240, celt, denied, No.

84-1200 (May 20, 1085) ....................................   25,84
Syeneer V. Kugle.r, 401 U.S. 1027..........................  - ^0
St. Marie v. Eastern R.R. Assn ,  050 F.2d 305 25, 27
Swann v. Bd. of Kduc.. 102 U.S. I ..... 40, 41, 42, 45, 40, 47
Texas Department of Community Affairs V. Bur­

dina, 450 U.S. 218 ............................... 22,25,20,27
Trout v. Lehman, 702 F.2d 1001, rov'd, 405 U.S.

1050 .................      25
United Air Lines, Inc. v. Keans, 431 U.S. 558 .10, 12, I I,

15, 10, 17, 18, 10



VI

Cascn—Continued: '  B8°
United Stairs Postal Service Hoard of Governors

V. Athens, Kid U.S. 711 .................... ..................... Z8’ 8jl
Valentino V. H.S. Postal Service, 674 F.2d 56.......
Washinfllon v. Davis, 426 U.S. 22!) ..... - ................. 40
Wilkins v. Vniversitfi of Houston, 651 F.2d *188. .. 25

Constitution, plain tea and rcRulalion:
U.S. Count. Amend. X IV ............................................4> 38, 40
Civil UIrIiIh Actor 1564,42 U.S.C. IdRI el serf.:

Tit. VI, 5 lidI. 12 U.S.C. 2dddd ..................  Z, 4
Tit. VII, 42 U.S.C. 2000c et seq.:

§ 708, 42 U.S.C. 2000C-2 ............................... 4
§ 703(a ) (1 ) ,  42 U.S.C. 20d0c-2(n)(i) .... 2
§703(li), 42 U.S.C. 2000c-2(1i) 17

|?<|unl Pay Act, 2!) U.S.C. 206 .....................................  z8
42 U.S.C. 1081   :
7 C .F.lt. 15.3(b) (0) (i) .....................

Miscellaneous:
Flnkclnlein, Regression Models in Administrative

Proceedings, R6 llarv. L. Ilev. 1442 (1073).......  28
Flnlier Multiple Regression in Legal Proceedings,

80 Colnm. I ,  ltcv. 702 (1080) ......................... 23,24,26

j ilt  l l f r  g i t p r r iH r  ( f ln u r t  n f  l l ip I t i iU r i )  S l u l r n
O otoheii  T e r m , 1985

No. 85-93 11
V. R. llAZEMOUE, ET Al,., p e t i t i o n  mis

• 11
V.

WlliMAM C. FRIDAY, ET, Ale

No. 85-428
U n it e k  S t a t e s  o f  A m e iu c a , bt  a e ., p e t it io n e iir

v.
W ie e ia m  C. F r iday , e t  a l .

ON W RIT O F C E R T IO R A R I TO T I IE  U N IT E D  S T A T E S  
CO U R T o r  A P P E A L S  POR T H E  FO U R TH  C IR C U IT

IIUIFiF FUll T ill? FI?m?IIAI, PETITIONERS

OPINIONS IIEI<OW

The opinion of llte court of appeals (Pci. App. 346a- 
481a)' in reported at 751 F.2d 662. Tlie opinions of the

I "Pet. App." re fern to I he separately I round appendix filed with 
the petition in No. S5-D3. In (proting materials fruni this appendix, 
we have corrected typographical errors in the IIIIiir ; those correc­
tions are inilicaled by brackets. "Rupp. Pet. App.” refers to the 
supplementary appendix hound with Ilia petition in No. 85-428. 
"J.A.” refers to Ihc separately hound appendix filed with this br ief. 
"(!.A. App." refers to the JO-volumc court of appeals appendix, 
10 copies of which have been lodged willi this Court. "('.A. H r.’ 
refers to the Itricf for the United Stales filed in tire court of ap­
peals, 10 copies of which have also been lodged with this Court.

( 1 )



z

district court (I 'd . 3n-207», are on-
reirortcd.

.MIUIRDICTION
The judgment or Hie court or appeals ISupp. Ret. App. 

ln-3a) was entered .... December 10 ,1984 WJ "
denied on April 15, 1985 (l’cl. App. 482a-483a). On 
July 5 ]J)85, Hie Chief Justice extended the Covet n-
tncnl's time for filiitf' a petition for a writ of certiovan 
to and Including September 12, 1985. 1 lie petition
No 85-93 was tiled on July 15, 1985, and the pel lion 
in No. 85-428 was filed on September 12, 1985 l oth 
petitions were granted on November 12, 1985 (J.A. iS i- 
182). The jurisdiction or this Court is invoked under 28
U.S.C. 1254(1).

STATUTES INVOLVED
The relevant portions of Section 001 of ri ill« VI of the 

Civil Rights Act of 1904, 42 U.S.C. 2000d and Section 
703(a)(1) or Title VII of the Civil Rights Act of 1904, 
42 U.S.C. 2000o-2(a) (1), are reproduced at pages 3-4 o 
the petition in No. 85-93.

STATEMENT

1 The North Carolina Agricultural Extension Service 
(the Service) provides services to state residents involv­
ing the dissemination or "useful and practical informa­
tion on subjects relating to agriculture and home eco­
nomics," c.fl-, through educational programs for fmnjcj- 
and sponsoring 4-11 and extension homemaker clubs (le t. 
App. 7a, 12a 20a). It is funded jointly by the United 
States Department of Agriculture, the Slate of Nor ' 
Carolina, and the various counties in the Mate Met. 
Ann. 7a-8a). The Service employs agricultural extension 
agents, professional employees at the county level, o 
which there are three ranks: full agent, associate agent,
2 T J L . I  ''I'....  >■■*. Are- I7»i.
perform "essentially Hie same types of tasks, but tin 
full agents have more responsibility and are expected to 
maintain bielier performance levels than associate

I
I

agents, the intermediate position, or assistant agents, the 
entry level position {ihitl. I .'i 1 1 ' „

Until August 1905, the Service Was1 divided into a 
while branch * * * and a Negro branch * r * composed 
entirely of black personnel and scrvlinjfl only black farm­
ers, homemakers and youth” (Tel, App,, 27a). Although 
black and while county agents had,,j^lcntical responsi­
bilities and job descriptions (I’et. App. 29a), “ |l|he  
salaries or black agents in the segregated system were 
lower than the salaries of their while counterparts” 
(Ret. App. 30a). The two branches'of the Service were 
merged on August 1, 1905 (Ret. App. 30a, 359a), and a 
single minimum entry level salary was adopted for all 
agents hired alter the merger.*

Shortly heroic the merger, the position of county ex­
tension chairman was created by making the white 
county agents responsible for coordinating the cntiie ex­
tension program in their respective counties (O.A. App. 
1001-1002, 1783). In November 1972, the Service intro­
duced a system of announcing job vacancies and accept­
ing applications for county chairman positions (Ret. App. 
24a-25a, 75a).' Applicants who possess I he minimum 
quidifications for county chairman are interviewed by 
Service ollicials, who then make a recommendation to the 
board of county commissioners (Ret. App. 25a-25a, 7<>a-

2 |u ||,fa |„ | , .r  we will use the term "iigcnls" to refer rollerlivcly 
to nmploypcs in fill llirec rniiks.

a Newly III m l  ngcntfi wllli inlvnnred df'grcc*, prior rrlovnnt cx- 
iierience, or particularly ueeile.1 skills nre paid mere lluoi tl.c mini­
m i , R , n - I i  spent's snliiry slsu rellcets a conlriliullmi by 
,.,.iiiilv in whirl, he is employed, lira nmouiit varying from euunly 
p, eouuly Pay Increases nwanle.l by the comity or the stale may 
he In the fern, of an e-i'nal stun I" earl, employee or as a percentage 
„f the salary. I'll,ally, I he stale ami some counties provide To, 
merit pay illn esses and inn eases to olfset inlhillon U’el. App. 
JOita 115a, :il!0a-3li2a).

1 llrfme II,at lime, manly 'I,airmen were selected jomlly h.v 
the Service ami the hoard of eonaly commissioners ronrerned from 
a list or possible candidates prepared by the Service U'-A. App. It..', 
,|ar> -ISM; Pel. App. loin).



1
77a). The county generally accepts the recommendation 
(C.A. App. 171), hut "all appointments are worked out 
jointly between the Extension Service and the commis­
sioners and no oflicial action can he taken unilateinlly by 
either parly with respect to Idling a vacancy” d ’et. App.
77a). . . . .  .1

Prior to 15)05, the Service had established separate all-
white and all-black I II and extension homemaker clubs, 
and many clubs presently have only members of a single 
race (J.A. 100; C.A. App. 1807), although the number of 
integrated Clubs increased nearly three-fold between 
1972 and 1980 (C.A. App. 1807, 180, 1M0). After 
1905, the Service requested a formal assurance from 
each club that it would not discriminate on the basis or 
race, color, or national origin (OX 115, at 3). lhe 
Service has also published in the media its policy that 
all voluntary clubs be organised without regard to race, 
instructed its agents to encourage formation of new 
clubs on that basis (Pel. App. 181a), and integrated all
other aspects of I be'l-II program.

2. a. This suit was initialed in November 1971 by 
more than 50 black employees of the Service, alleging, 
inter alia, intentional racial discrimination in employ­
ment and services in violation of the Fourteenth Amend­
ment to the Constitution, 12 U.S.C. 1981, and Section 601 
of Title VI or the Civil Rights Act of 1904, 12 U.S.C. 
2000d (Pet. App. On-la). After Title VII of the Civil 
Rights Act of 1901 became applicable to the stales in 
1972 the complaint was amended to include claims under 
Section 700 of that Act, 12 U.S.C. 200Uc-2, and the 
United States intervened in the action. The complaint in 
Intervention, as amended, also alleged racial discrimina-. 
tion against black employees and recipients of services 
In violation of the Fourteenth Amendment, Title VI, and 
Title V I I  (Pet. App. 5a, 35a). . . . .

Plaintiffs asserted intentional racial discrimination in 
various Incidents or employment, including salaries, job 
assignments and promotions, and in the selection of 
county chairmen, as well as in the continued support of

5
. I tl\Y

single-race l-II and extension homemaker clubs (Pel. 
App. 19a-5ta). The employment-related claims included 
individual claims of discriminatory,..treatment as well 
as allegations of intentional patterns >and practices of 
discrimination (Pet. App. 19a-51a,' 227a-3,19a).

b. The case was tried to the court1 for It) weeks start­
ing in December 1981 (Pet. App.' 4a),."'During discovery, 
the defendants had asserted that .four, factors were de­
terminative or salary: education,.tenure, job title and job 
performance (GX 159, at 90, 9(5 (Oct! 1(5, 1981, Deposi­
tion of Dr. Paul Dew, Assistant DilecW of County Op­
erations)). At trial, Die evidence introduced by the 
United Slates included multiple regression analyses 
comparing the salaries of black and while county agents 
in 1971, 1975 and 1981. Certain of these regressions used 
four independent variables—race, education, (enure, and 
job title—and showed a statistically significant racial 
effect for 1971 (C.A. App. 1(501, 102-103) and 1975 (C.A. 
App. 1589, 11(5), and a smaller racial effect, without sta­
tistical significance, for 1981 (C.A. App. 1578)."

The district court indicated that, based on this evidence, 
plaintiffs would prevail unless defendants produced statis­
tical evidence demonstrating that the addition of other 
variables would reduce or eliminate the racial effect." 
Accordingly, defendants also introduced multiple regres­
sion analyses, for 1975 and 1981. Certain of these re­
gressions used the same variables ns plaintiffs' regres­
sions, but excluded county chairmen from the data base, 
and these analyses produced results similar to plain-

r. These instills were cm rnhoi iited by oilier evidence, includliiR 
mi exhibit, l.nsnil on .? Mini my I »T,\ payroll data for 23 counties, 
Unit shuweil 2!l blnck employees ear nine Ess Ilian whiles in lhe panic 
enmity with eoinpnrnble or lower positions mill llie same 01 less 
(enure anil education (C.A. App. 1503-1567).

« The court lolit respondents’ counsel (C.A. App. 525) :
11 |f  miller the law nil those things should Imve been cranked 
in there, and if after crmtkiiiR them in you pet a different 
result. Ihen von win. If they ain’t  Rot any business in there 
or ir you've cranked Ihciii in and It sllll doesn't show it, then 
lliey win.



G
tlfTa’ (C.A. App. 1710 (analyses), 1711-1712, 1001-16921.
In addition, defendants presented regressions that added 
qua,tile rank, a measure of job performance, as an in­
dependent variable.’ Doing so for 15181 produced statisti­
cally insignificant racial disparities, but doing bo for 
15)75 increas'd tbe racial effect, and Ibis result was statis­
tically signilicant (O.A. App. 1710 (analysis G), 1713-
1714)). t . „ . .

Plaintiffs also introduced evidence showing lliat al­
though the si/,c or the d-ll club system has varied consid­
erably over the years, there have been more than 1,000 
all-widte clubs each year since 15)72 (C.A. App. 2237; GX 
11), and more than 850 single-race chibs in communities 
identified by defendants as "ethnically mixed” (C.A. App. 
1807) The extension homemaker clubs also remain 
largely single-race clubs (J.A. 103-113; C.A. App. 1800- 
1807; Tr. 941-942, 1524-1525, 235)0, 2449-2450)."

t Qunrlllu rnnU is usnl In determining merit salary Increases 
(see note i)2, infra).  I lie government did not use tills variable In 
Its regression analyses because Die quarlllc system wns Itself under 
allrnk In lids suit ns racially discriminatory (sec l ’et. App. 891a- 
400a).

i  ' f  he govern men l also introduced statistical and oilier evidence 
relating to the selection of county chairmen. The first black chair­
man was not selected until March 1971, after 151 while chairmen 
had been selected (J.A. 127; CX 75). Hclween November 1972 
when the first vacancy announcement appeared (sec note 4, unpin) 
and October 1981, 72 (93.5%) of the 77 county chairmen selected 
were while and 5 <5.5%) were black (J.A. 114-124; C.A. App. 
919-920). No black was selected for any of llic 31 positions filled 
between November 1972 and July 1, 1975, although 12 (10.3%) 
of the 115 applicants for those positions were black. Several blacks 
testified tha t they bad not sought chairmanships because they be 
lleved It would be futile to do so (I’et. App. 93a). Of the 5 blacks 
among the candidates selected for the 15 positions filled between 
July 1975 and October 1981, 3 were selected for vacancies for which 
only blacks were in competition, and the sole while applicant with 
which the other 2 competed was a female; no black bari ever been 
selected In compelIIion with a white male applicant (J.A. l H ' - J  
C.A. App. HMKt, MMM»; <JX 172, nt mc  ^.A. *'
nt lOn-lln).

• . i
"• ill }•«* ll I

I • . I I I M
i i i . •*|i: i i

7 A|"

c TIip district court, rejected all dhims of the private 
plaintiffs and the United States. With respect to the 
salaries of county-level employees!, th6 court held that no 
pattern or practice of racially discriminatory treatment 
bad been shown (l’ol. App. 150a).„T|ie court noted hat 
« |i | t  is undisputed” that before Aha merger of its black 
and while branches in 15)05, the Service paid black agents 
loss than while ones, and recognised that, although "steps 
were taken to begin |lhe| elimination” Of this disparity 
before tbe Service was covered by Title Vlf in 15)72, 
"the government has offered evidence lending to show 
that as of January 15)73, the s:|la()es of numerous black 
agents throughout the system were less than those or 
white agents in the same counties who were in comparable 
or lower positions and who bad comparable or less tenure 
* * * |and 1 defendants’ own exhibit [showed | some sal­
ary disparities between blacks and whites as late as Oc­
tober, 15)74” (Pet. App. 120a-121a). The district court 
nevertheless found that "while on its face libel evidence 
unquestionably establishes salary disparities, when viewed 
in the light of defendants’ explanatory evidence it fails to 
prove discrimination” (I’et. App. 122a-123a)Focusing 
on certain regressions that controlled only Tor tenure and 
education (I’et. App. 131a), rather than on those also 
ineluding job title and job performance as independent 
variables, (lie court described the regression analyses as

v p r f .u o  analyzing tlm statistical data, tbe court explained Its 
nppruneb In Ibe rr.,iiirenicnls of the Civil Rights Act of 195 1 <1 cl. 
App. I2 ln-I22n) :

, Uq| .,q It bml been fmiml in tbe area of education Ibal. there is 
„„ nui'li tiling ns instnnl inlegrallnn. It was soon found In Ibe 
Held nf business and industry tlmt tbere is no such tiling as 
Instant |e | . |ua lity  in employment. Without risking serin,is 
disruption nf a business by prnblfb|lllvely cosily budgetary 
nllcpillions and n possible practice of wholesale reverse d s- 
crlmlnalion it was soon recognized (though not always by tbe 
coiirl.nl lliat Ibe adjustments mandated by tbe law simply could 
md; bo made overnight.

Tl„,s the "explanatory evidence” Ibe court viewed as justifying 
(he salary disparities established by tbe government npparenlly 
included ibe hisloricnt fact of discrimination.



8

flawed, primarily because the raw dal,a on wliich they 
were based included the salaries of higher-paid county 
chairmen, most of whom were white, as well as county 
agents (Pet. App. t:iC.a-138a), and because tliey failed 
to account for "several unmeasured factors, notably job 
performance” (Pel. App. Mia).'" In sum, the court "con­
clude! d | ‘ that (he plaintiffs had probably made out a 
prima facie case with respect to defendants promotion 
and salary practices * * * |bull the defendant 
articulnlledl plausible reasons for its actions * * * which 
the court found convincing” (Pel. App. 1!>()a).

As to the claim that the Service permitted segregated 
4-11 clubs and extension homemaker clubs to bo main­
tained in North Carolina, recognizing and providing serv­
ices to such clubs, the district court found that tlicie aic 
many clubs to which members of both races belong” (Pel. 
App. KiGa). and that “ | i | f  any individual lias become a 
member of a club composed only of members of his oi­
lier own race, it has been an entirely voluntary act (1 ct. 
App. 172a). The court found no evidence of any denial of 
membership or discrimination in services on the basis of

' •T h e  court rolled on n lint of variation provided by defendants 
(Pet. App. l!l!tn-l!Mn):

(1) Performance of agents measured against (lie ngenls' 
plan of work;

(2) The variation in salaries created by aeronn the board 
stale raises with the different percentage of alate contribu­
tions In each county;

(2) The across Ibo board Increases in spent nnlnrles by 
some counties and not in others;

(d) Tin* merit raises provided by Ibe slate;
(fi) The merit raises provided Tor by the counties in which 

Extension Service personnel have no input;
(0) The merit raises provided by the counties with limited 

or full participation in Ibe merit recommendation by Intension
Service personnel;

(7) The range in merit salary increases provided by Ibe 
counties (0 | ! " l  I2',’!> in Itiftl);

(fl) Prior and relevant experience; and 
*' Variations in salary due to market demands both at

U,tm of hire and later for agents with skills in short supply or
m ine ernrrienre

i 1... ■ .1 .
■ I- 1 * toI.ml |
: ,1 lie .,■! '

' ’ . I I I I I ' lie 
I i • ii h I • I ii 
' I I ' ......

race, ami concluded that the lawi dues pat require that 
these clubs be integrated (Pel. App. i !G5a-185a). I lie 
court ruled that the evidence did not demonstrate any 
discriminatory intent on the Services part in loleialing 
the single-race clubs (Pet. App. 17Ha-182a), and Hint (lie 
Service accordingly did not violate Ut# lAtV in coni liming 
In provide services to slid) clubs (lfet. Ajtjp. 184a-185a)."

3. a. The court of appeals aflivnicpl (Pel. App. 34(5a- 
125a), Judge Pliillips dissenting in pprt (Pet. App. 425a- 
481a). The panel majority adopted ,1!)?, t)islriel court’s 
lliiflings that under policies in effect when the Service 
maintained two separate racially1 segregated branches, 
black employees were paid less Iliad wllllc employees per­
forming (lie same job because of their race, and Unit even 
after (lie Service became subject to Title VII in I!17J, 
"fs|onie pre-existing salary disparities continued to linger 
on” (Pol, App. 3fi0a). However, Hie court staled suc­
cinctly (Pet. App. 380a) :

The plaintiffs claim that the pre-Act discrimina­
tory difference in salaries should have been allirma- 
lively eliminated bill has not. We do not think (his 
is the law.

n Tim (Unh id; court also held llmt the plaintiffs failed to estab- 
Holi n pi inui facie rase or racial discrimination in Ibe select ion of 
county chairmen, ami Hint “ in any event llie defendants have 
elfecHvely rebutted plaintiffs’ case try showing the inaccuracy ami 
insignificance of plnintiira’ proof” (Pet. App. 100a). I lie court 
found that only 77 county chairman positions hnd lieen filled since 
Hie institution of slnlewlde vacancy aiinnunccnicnls in 1072, Hie 
year Title Vi I was made applicable to public employers, and Unit 
Mocks bad applied for only IK or those positions (PH. App. 7Ka. 
R5a-SI>al. Hnnsiiloring those IK positions (and thus including posi­
tions for wldcli only blacks applied but excluding posilim.s for 
which only whiles applied) Hie court found the selection rale for 
Mocks occeplahle (Pel. App. 7!'a-K0a, R(in>, and held Uml Hie 
Service’s selection procedures for county chairman have, since 1!>(2, 
Item applied In a noiuliscriminatory manner (Pet. App. KKIa-IOla). 
The court reieded plainlilfs’ claim that lilacks Imd Iscu deterred 
from applvimr for chairmanships (Pel. App. IWn), and also rejected 
all Individual claims or discrimination In promotions to counly 
chairman (PH. App. 227a-3lfn).



10

The panel majority relied for its view on United Air 
Lines, Inc. v. Leans, -IHI IJ.S. 053 (1077), and Hazelwood 
School District v. United States, 433 IJ.S. 200 (1077), as 
well as several court of appeals decisions that followed 
Evans in rejecting lime-barred claims despite the con­
tinuing c(Teels of (lie alleged discriminatory acts on sen­
iority rights (IVI. App. 38(>a-3H2a). This view of Title 
V ll’s requirement led (he panel to fault all of the regres­
sion analyses of (lie salaries of current county employees
_recent hires as well as prc-Acl hi res—because the fig-.
ures analyzed "relied (lie elTect of prc-Act discrimina­
tion” (Pet. App. 380a). For this reason, as well as be­
cause "both experts omitted from their respeclivc anal- 
ys|els variables which ought lo he reasonably viewed as 
determinants of salary,” (he analyses were deemed "un­
acceptable as evidence of discrimination (Pel. App. 
301a).

With respect lo (lie selection of county chairmen, plain­
tiffs challenged on appeal the district court’s analysis of 
selection rales, arguing that the court erred in excluding 
vacancies for which only whiles applied, while including 
vacancies for which only blacks applied (Pet. App. 41 la- 
412a). The court of appeals majority found it unneces­
sary to consider these objections, because it concluded that 
•The employment decisions made by the Intension Scrvieo 
with respect lo I ho selection of County Chairmen were 
made when the Service either recommended or did not 
recommend an applicant for an existing vacancy lo the 
County Commissioners” (Pet. App. 405a-40(5a). It there­
fore examined (he dal a as (o I he Service’s recommenda­
tions, rather than the selection statistics relied on by 
plaintiffs and (lie district court, and found no discrimina­
tion (Pet. App. 4180-4230).'=

is The court's initial analysis (IVI. App. 4i:in-l l4a),  includes nil 
positions for which Muck cnndldnlos applied, whether or not while 
cnudhlntcs also competed, lint excludes positions for which only 
while cnndidnles applied. The court’s more extended nnnlysls (id. 
At 4IBn-42ln) includes "spplicuul How data” for nil positions filled 
during the years 1008-1 PHI. In (lie Inller analysis, the court’s 
references lo '’applicants" or "applications" during the period 11(08-V1 "

1,

■■ -li |».ll H I 
11 "*'*(*' ' •" '•>

Finally, the panel majority hehUtwMJjp cn,"'t
“correctly denied (lie plaintiiTs’ clai^ .re.speeL to the 
alleged allirmativc duly to require, integrated nicmbcr- 
ship” in 4-11 clubs and extensionhppiqipaker elnlis be­
cause, absent any proof of discrimination, "Ihe mere ex­
istence of all while and all black .Pa* '  |c|lubs in some 
racially mixed communities” does' Ml" Violate the law 
(Pet. App. 424a n.128).

b. Judge Phillips dissented frclln' thP 'majority's dis­
missal of the salary claims (Pet. ^iij).,,425a, 433a-4(i!la),n 
noting that it was undisputed that prior to the 11X55 
merger “Ihe salaries of black professionals were inten­
tionally and quite openly simply Set ldwet* than those of 
while colleagues in the same cmplpynl6lit positions’ (Pet. 
App. 437a), and that these salary (liflerenlials continued 
"well past l!M58 (the earliest limitatioii date applicable 
to the salary claim)” (Pet. App,,438a-43!>a)." The 
regression analyses of belli plaintiffs’ find defendants’ ex­
ports were, moreover, in his view, "wholly consistent in 
showing a substantial, across-the-board race-based dis­
parity (Pet. App. 410a-450a). Because these analyses 
“employfed| the most obvious alternative variables of 
tenure, education, and job position” (I’ct. App. 4l!la), 
Judge Phillips found no authority for rejecting such 
analyses “for failure to include a number of oilier in­
dependent variables merely hypothesized by defendants” 
(Pet. App. 448a).

UI7I, when there were no vacancy announcement ami application 
procedures, evidently refers lo the list of possible candidates pre­
pared by Service ollleials, from which they later made recommendii- 
llons lo the counties (see note I, supra);  the’ court's references lo 
white or black “approvals” refers lo the recommendations made by 
the Service to the counties (see chart preceding I’et. App. 120a).

n  | | (, „|!m dissented from Ihe majority’s rejection of the I II and 
extension homemaker club claims (Pet. App. 425a, 400a-48la).

h As .fudge Phillips recognized the complaint, tiled in Novem­
ber 1071, included claims based on the Constitution and Title VI; 
the la tter lias been applicable lo ihe states since 11)01. A lliree-year 
limitation period applies lo I hose claims. Cox V. Stanton, 520 l'\2d 
47, 40 5(1 ( lib Clr. 1075).



1 2

In sum, Judge Phillips concluded Hint “the only ra- 
lionnl assessment In ho made of the evidence in lids rec­
ord” is Hint “Ihe general pattern of pre-J9(»5 overt dis­
crimination in salary continued in substantial, if giudtt- 
nlly diminishing, degree until at least 197(1 and perhaps 
beyond,” and that responsible Service officials knew that 
such a race-based pattern continued and failed to coricct 
it (I’et. App. 455a-l5l»a). In bis view, the majority’s 
failure to award relief on such a record resulted from 
"misapprehensions of controlling legal principle’ (le t. 
App. 45(ia), including the "relevant time frame within 
which the existence of a pattern or practice of salary dis­
crimination was to bo assessed” (Pet. App. 457a).,r’ ^

4. Rehearing on banc was denied by an equally divided 
court, without opinion, on April 15, 1 !)F?5, and the panel, 
Judge Phillips again dissenting, also declined to rehear 
the case (Pel. App. 4<S2a-483a).

SUMMARY OF AltUllMICNT
Hiring and promotion decisions are discrete acts, which, 

if taken before (he effective date of Title VII or outside 
of the applicable statute of limitations, cannot be the 
subject of a successful Title VII suit, even if the con­
sequences of those actions continue to affect the employee 
until the time of suit. Hut Title VII does require the 
correction of unequal salaries that are the continuation 
of racially-based pay differentials originating prc-Act or 
in the time-barred period. This continuing salary dis­
crimination is akin to intentionally discriminatory sen- 
ority systems, which, regardless of the dale of their incep­
tion, afford no justification for race-based disparate treat­
ment.

I’liillips ilis.'ii'ieml with llic pmicl majority's l end I up of 
Evans ami tliizchrimil an Mppliinblc to plaintitro’ (Hilary claims 
(|<ct. App. 4l!!2n-1(>7a I . Those cases, he explained, do not permit 
an employer to "continue practices now violative [of Title VIII 
dimply because at one lime lliey were not” (Pel.  App. 405a). In 
his view, tin* Evans /JozWieood principle "simply has no loRienl 
application” in cases involving "pay and oilier ‘condition of employ­
ment’ claims, as opposed to hiring and other work-force composition 
claims” (Pet. App. 400a).

13

11 .i >
.i We i t .

With regard to the statistical evidence, the court of 
appeals articulated the correct rulis—that in a disparate 
treatment ease challenging salary’,,(Ji^graices, plaintiff’s 
statistical analysis must include i"variables which ought 
to be reasonably viewed as determinants'of salary” (Pet. 
App. 3t)la)—but improperly npplhkl that1 ride. The par­
ties’ multiple regression analysed) lo^tillier with the other 
evidence introduced, proved that! (hgre Was racial dis­
crimination in salaries. None of the .variables omitted 
from petitioners’ analyses undorniines 'that conclusion. 
As a corollary to the “reasonableness” Standard for statis­
tical proof, we urge (hat district coWls bo encouraged to 
make formal determinations at the ea^'ligsl possible stage

'•rif if 1,r ii, (i Mini f llxk I'lelm-a in Vm itlplllilfwl

lical analyses offered at trial. \n •’,
Although private petitioners ask1 this Court, to consider 

whether Title VII permits an employer to delegato its 
hiring decisions to a third parly that invariably acts in 
a discriminatory manner (85-93 Pet. 49-55), Ibis case 
presents no such issue. It is clear that the Service was 
jointly responsible with the county commissioners for the 
selection of county chairmen; even the court of appeals 
recognized this (Pet. App. 403a). The court’s reliance 
on statistics relating to the recommendations made by re­
spondents, rather than the final selection statistics, was 
accordingly inappropriate.

Finally, the court of appeals correctly found that re­
spondents had satisfied their affirmative duty to desegre­
gate the 4-11 and homemaker extension clubs by main­
taining and publicizing a policy of entirely open admis­
sions to such clubs. Although some single-race clubs re­
main, neither the Constitution nor Title VI requires any 
particular degree of racial balance, and maintenance of 
the traditional option of individuals to join any club that 
they choose does not suggest that respondents are per­
petuating their prior segregative practices.



M

ARGUMENT

f. IILACK STATE EMPLOYEES ESTABLISH A 
CLAIM UNDER TITLI5 VII MY IDENTIFYING 
CURRENT SALARY DISPARITIES BETWEEN 
THEM SELVES AND WHITE EMPLOYEES HOLD­
ING THE SAME JOIIS AND HEMONSTIIATINO 
THAT SUCH IMSPAIUTIES RESULT FROM A 
STATE POLICY IIEFORE 1905 OF PAYING 
IILACKS LOWER SALARIES THAN WHITES.

The court of appeals acknowledged that, before the 
merger in Ihe Service maintained two separate ra-
cially-segregaled hranches and paid black employees less 
than white employees because of their race; that, after 
the merger, these race-based disparities were not im­
mediately eliminated; and that these disparities continued 
after this suit was tiled and after Title VII became ap­
plicable It* tlie Service in March 1072 (Pet. App. 35!)a- 
3(50a, 385)a-35>Oa). As a result, since the effective date 
of the Act, black employees hired before 15)05, because of 
their race, have received and continue to receive lower 
salaries than while employees who have been performing 
the same job for Ihe same length of lime. The court of 
appeals incorrectly decided that 'Title VII provides no 
remedy to these black employees (Pel. App. 38fta-382a, 
3!)Da-100a).

Thq court oT appeals relied in large part on this Court’s 
decisions in United Air Dines, Inc. v. Evans, 431 U.S. 
553 (15)77), and Hazelwood. School District V. United 
States, 433 U.S. 20!) (1077), interpreting those decisions 
as absolving an employer of any responsibility for af­
firmatively eliminating the continuing effects of prc-Acl 
salary discrimination provided il has adopted a race- 
neutral policy in establishing salaries for posl-Act hires. 
The appellate court’s reliance is misplaced, however, as 
this Court’s decisions in Evans and Hazelwood are read­
ily distinguishable from the case at bar.

In Evans, a female Might attendant forced to resign 
when she married in 10(18, and rehired in 1072 after the 
"no marriage” policy for female Might attendants was

i i t * 111 * 111 i
15 • l.. * . .1 i.

discontinued, challenged United’s refusal to credit her 
prior service towards her seniorjjy. , looting the absence 
of any allegation that prior service..is,credited to rehired 
male employees under United’s, seniority system, this 
Court acknowledged that the denial of pre-1072 seniority 
"does indeed have a continuing Irtijtitct on 111',vans’| pay 
and fringe benefits” (131 U.S. at 558), but rejected her 
claim that United was guilty 6f a cdiitliiuing violation of 
Title VII, staling (id. at 558, 5 (* 0 )1

• • - I • 11 • I. M I
|T1 he seniority system gives present effect to past 
act of discrimination | the, forced resignation]. Hut 
United was entitled to treat lliut past act as lawful 
after respondent failed to file a charge of discrimi­
nation within the f statu lory limitations period |. A 
discriminatory act which is not made the basis for a 
timely charge is the legal equivalent of a discrimina­
tory act which occurred before the statute was 
passed. It may constitute relevant background evi­
dence in a proceeding in which the status of a cur­
rent practice is at issue, but separately considered, 
it is merely an unfortunate event in history which 
has no present legal consequences.

« « •  •  •

'The statute does not foreclose attacks on Ihe current 
operation of seniority systems which are subject to 
challenge as discriminatory. But such a challenge to 
a neutral system may not be predicated on the mere 
fact that a past event which has no present legal 
significance has affected the calculation of seniority 
credit, even if the past event might at one time have 
justified a valid claim agninst the employer.

The Court's decision in Evans thus turned on the fact 
that United’s past act of discrimination—forcing Evans 
In resign because she was a married female—was a sin­
gle, discrete act taken at a lime outside of the applicable 
statutory limitations period, and as such was not action­
able under Title VII. 'The Court acknowledged, as the 
court of appeals assumed here, that the Evans rule is 
equally applicable when the discriminatory act was taken 
before the effective dale of 'Title VII.



f

16
To similar effect is the Court’s decision in Hazelwood. 

There this Court vacated a court of appeals judgment, 
based on statistical disparities between the rncial compo­
sition of Hazelwood’s leaching staff and that of the quali­
fied public school teacher population in the relevant labor 
market, that the school district had engaged in a pattern 
and practice of hiring discrimination in violation of 
Title VII. Although (his Court agreed that the court of 
appeals correctly rejected the district courts statistical 
analysis, it held that the statistical disparities on which 
the appellate court relied were not dispositive ('133 U.S. 
at 309-310 (footnote omitted)):

The Court id' Appeals totally disregarded the pos­
sibility that this prima facie statistical proof in the 
record might at the tidal level he rebutted by statis­
tics dealing with Hazelwood’s hiring after it became 
subject to Title VII. Racial discrimination by public 
employers was not made illegal under Title VII un­
til March ‘21, 1972. A public employer who from 
that dale forward made all its employment decisions 
in a wholly noiidiscriminalory way would not vio­
late Title VII even if it had formerly maintained an 
all-white work force by purposefully excluding Ne­
groes. For this reason, the Court cautioned in the 
Teamsters opinion \ International llrollicrhood of 
Teamsters v. United States, 431 U.S. 324 (1977) 1 
that once a prima facie case lias been established by 
statistical workforce disparities, the employer must 
be given *ui opportunity to show llutl the chinned 
discriminatory pattern is a product of prc-Act hid­
ing rather Ilian unlawful posl-Acl discrimination.’ 
431 U.S., at 360.

Thus, Hazelwood indicates that Title VII is not vio­
lated by disparities in the racial composition of an em­
ployer’s staff which are the present effects of discrimina­
tory hiring decisions, all of which ocelli icd befoie the 
effective dale of Title VII.

FJvans and Hazelwood thus establish that prc-Act or 
lime-barred hiring and termination decisions cannot form 
the basis of a claim under Title VII, even when those de­
cisions have continuing current effects due, for example,

to I ho operation of a bona fide seniority system."' Simi­
larly, prc-Act or time-barred qironiotiom decisions cannot 
be challenged under Title V illon ilhe theory that the 
claimant who should have1 I’e c e i • itlie- promotion now 
continues in a lesser job at a> salaryi level below that 
which he would have obtained' hndlhot not been the victim 
of the pre-Act or lime-barred'-discrimination.” Hiring 
and promotion decisions arc 'diset'ete1 acts, taken once and 
for all at a single moment in Unite.< Evans and Hazelwood 
teach that if that moment occurred prior to the effective

Section 70.1(h) of Title VII, 42 U.S.C. 2000e-2 (h),  validates 
only "Itona lute” seniority systems. If  nn employee ran show Hint 
tiie seniority system was adopted with n discriminatory intent. 
Section 70:t(h) affords llie employer no protection. 1‘idlmnn- 
Standard  v. Sivinl, 450 U.S. 27.1, 270-277 (1082). This Court has 
emphasized Hint Section 70.1(h) “makes no distinction between 
seniority systems adopted before its effective date and those adopted 
after Its effective dale.” American Tobacco Co. v. l'oiternon, 450 
U.S. 01, 70 (1082).

11 There appears to lie a mnllict among the circuits as to whether 
nn employee can avoid a statute of limitations defense by establish­
ing lie was denied promotion pursuant to a continuing practice 
of discriminatory promotion denials, or whether lie must tile within 
the statutory period after lie is himself dented promotion even where 
such a practice Is alleged. Compare, e.g., Aclia V. Ilcnmc, 570 I'.2d 
57, 05 (2d Cir. 1078) (continuously maintained promotion policy may 
be subject of complaint until statutory time “after I lie fast occur­
rence of an instance of that policy,” citing cases), and I'allernon 
v. American Tobacco Co., 580 F.2d 800, 804 (41h Clr. 1078) iheann 
is Inapplicable where a discriminatory promotion system is main­
tained; the discrimination continues from day to day and a 
specific violation occurs whenever a promotion is made), with, e.g., 
Human V. Town of Mount Vernon, 012 F.2d 074, 077-078 (5lh Cir. 
1080) (suit must he filed within statutory lime after employee 
should have perceived discrimination wns occurring). However, we 
are unaware of any case In which u court has permitted an employee 
to rely on the current effect of a discriminatory promotion policy 
that was terminated In a lime-hnrred period. Such a complaint, 
we submit, would clearly lie untenable under Feans. Moreover, we 
have serious doubts about the validity of any theory that would 
permit an employee who does not sue In n representative capacity 
to recover when the denial of promotion that affected him is 
wholly prc-Act or time-barred, even If the discriminatory policy 
continues so as lo affeel other employees.



18

dale of llie Acl or beyond Hie reach of Hie statute of limi- 
lations, llie discriminatory decision eamiol be the subject 
of n Title VII anil, even though the consequences of that 
decision may well continue to Hie present. Indeed, it 
could scarcely be otherwise unless the Act is, as a prac­
tical matter, to have retroactive application, and relief 
for past illegalities is to be available into the indefinite 
future. For heller or worse, unlawful discriminatory hir­
ing, promotion and termination decisions must either be 
timely complained of or be taken to iiave fixed a person s 
situation once and for all—unless, of course, fresb illegal­
ities nrc subsequently committed.

No such practical and conceptual difficulties attend the 
correction of unequal salaries that are the continuation 
of prc-Act, admittedly racially-based pay differentials. 
One claim in the case at bar is that the Service has con­
tinued to pay certain black employees less than while em­
ployees holding the same job for the same length of time, 
simply because of their race. Until now, the courts of 
appeals—including the Fourth Circuit—have consistently 
held that such discrimination in compensation is a con­
tinuing violation of Title VII, and as such is actionable, 
notwithstanding Kvans and Hazelwood, even when the 
pay differentials originated before the elective dale of 
the Act or outside of the statutory limitations period. 
Thus, for example, the Fourth Circuit slated in Jenkins 
V. Home Insurance Co., (!35 F.2d 310, 312 (1080) (per 
curiam ):

Unlike Keans, (lie Company’s alleged discrimina­
tory violation occurred in a series of separate hut 
related acts throughout the course of Jenkins’ em­
ployment. I'Ivory two weeks, Jenkins was paid for 
the prior working period * * * an amount less than 
was paid her male counterparts for the same work 
covering the same period. Thus, the Company’s al­
leged discrimination was manifested in a continuing 
violation which ceased only at the end of Jenkins 
employment.

Accord, Kim v. Coppin Slate ('allege, (5(52 F.2d 1055, 1001 
(4th Cir. 1081) (“This court * * * has consistently dis-

I till . Will* l 
19  , y lint o.

tinguished Keans when the (li^ i^ ijia lo ry  employment 
practice lias continuously affected . lj|c,.£|imphiining em­
ployee and is continuing.” ) ; HalLjl.^(ulgx, Inc., 000 l1.2d 
307, 308 (0th Cir. 1082) CTTJhei(discrimination was 
continuing in nature. Hall suffq^ftl q,.denial of equal 
pay with each check she rccoivejlf”^  V. ITT Finan­
cial Corp., 010 F.2d 738, 743 ( g t y , ^  ^080) ("The prac­
tice of paying discrinunatorily, upgquaj pay occurs not 
only when an employer sets pay Jpvpls, ,\>ut as long as tho 
discriminatory differential contin(^.”jl( j, [jarlcll v. Hcrlilz 
School of Languages of America,t . 008 F.2d 1003, 
1004 (Olh Cir.), cert, denied, 4(54 y.$f j)15 (1083) (“The 
policy of paying lower wages lo,,ftma|q employees on each 
payday constitutes a ‘continuing violation.’ ” ). Cf. I'erez 
V. Laredo Junior College, 700 F.2d 731 (5th Cir. 1083) 
(applying Title VII principles in suit under Sections 1081 
and 1083).

Viewing discrimination in compensation as a continu­
ing violation of Title VII, the courts of appeals after 
Keans  have held that pre-Act, intentional discrimination 
cannot be used to justify llie post-Act payment of lower 
salaries to minority employees than to other similarly 
situated employees. In Lamplicre V. Ilrown University, 
085 F.2d 743, 747 (1st Cir. 1082), for example, the First 
Circuit ruled that a female faculty member’s “allegations 
that she received a discriminatorily low wage after 1072 
| when Title VII became applicable to educational institu­
tions | as a result of pre-1072 discrimination” were ac­
tionable, staling: “ |A | decision to hire an individual at 
a discriminatorily low salary can, upon payment of each 
subsequent pay check, continue to violate the employee’s 
rights.” Cf. Ilcrry  v. Hoard of Supervisors of Louisiana 
Slate University, l i b  F.2d 071, 080 (5th Cir. 1083). .

These court of appeals decisions refiect the proper con­
struction oT Title VII, and correctly distinguish challenges 
to salary discrimination originating before the Acl or out­
side of the limitations period, but continuing after the 
effective date of the Act, from cases such as Keans and 
Hazelwood involving challenges to the post-Act effects of

J



20

discrete prc-Act decisions sucli as hiring and termination. 
The continuing salary discrimination involved here is 
akin to the continued use of an intentionally discrimina­
tory seniority system, which this Court has held is unlaw­
ful under Title; VII even if the seniority system was 
adopted before the Act became effective. See I’ulliuan- 
Stauilurd v. Swinl, inti U.S. 273, 270-277 (1082); Ameri­
can Tobacco Co. v. Tall arson, 400 U.S. 03, 70 (1082).'" 
Just as an intentionally discriminatory prc-Act seniority 
system affords no justification for current employment 
practices that have a race-based effect, so loo an inten­
tionally discriminatory prc-Act salary system atfords no 
justification for current salary practices that have a race- 
based effect. To the extent that the court of appeals’ 

**“ of post-Act salary disparities as merely the
"lingering effect” of pre-Acl overt discrimination (I’et. 
App. 300a) represents a willingness to tolerate such prac­
tices, its decision cannot he allowed to stand.”

** Seo nolp ll>, nn/oo. Tills Court addressed llie <|ucsl!on of 
continuing prc-Act salary disparities in the context of a suit under 
tile Ri|unl Pay Act, 2!l II.S.C. 20(1; Coruiuij (ilonn IPorA*s v. Hrounon, 
417 li.fi. I8R ( 11171). 1 list decision is not strictly In point hero, 
however, as a violation of the Hipial Pay Act is established simply 
by showing the payment of lower wages lo women than to men 
performing llie. same work; the dale when the disparity originated, 
nnd the reasons underlying the disparity, arc largely Irrelevant. 
In contrast, the plaintiff in a discriminatory treatment case under 
rillo VII must establish not only the disparity in wages, hut also 
the employer’s inlcnl to discriminate. See Intornulioiml llrothcr- 
hnod of Teamsters v. lluitrd Stolon, PI I tl.S. a t  3.75 n.lB. Thus, 
a current disparity in salaries, without more, cannot he the basis 
for this Title VII claim of discriminatory treatment. Instead, 
It Is necessary to examine the basis for that disparity to determine 
whether (here has been actionable intentional discrimination subject 
lo a timely challenge. Here, although the Service’s decision lo pay 
black employees less than whites for llie same work was taken 
before Title V'll heroine applicable to public employers, there Is no 
dispute that the Service's compensation scheme remained intention­
ally discriminatory. See pages 7, It, sspn i ;  Pel. App. 43!)n-440n;
Jf,A . i2n -t:to .

”  Further fact finding will he necessary lo establish the recovery 
due any individual employee. As both courts below emphnslzcd, the

I i
i

• in i .■ ii

21
V I I lilt 
• 11 Hit’

I nil .0 1 ;
II. THE ItEDItESSION ANAEyt-fES.SHOWED IIACIAL 

IMSCIII 111 I NATION, ANLMIESPONDENT.S Dill NOT 
IIEl''IITI5 THAT SHOWING ...... •

.. i.i- i t "■
Tin; court, of itppnals clearly >yqt||d, have erred if it bad 

held, as private petitioners assert .in their Questions Pre­
sented, "that statistics may nob 'bd treated its probative 
evidence of discrimination unless' tl)d'£Uilistical analysis 
considers every conceivable npji-rAcjuil (variable” (85-83 
Pet. i). However, the court /bftlQW.idid not impose this 
onerous "every conceivable variable”, burden on petition­
ers in this case. Halher the appellate' tout t articulated 
the correct rule, that a plaintifTVMhtislical analyses in a 
disparate treatment case m ust1 ihcliule "variables which 
ought lo be reasonably viewed as determinants of salary" 
(Pet. App. 31)la). We nevertheless agree with private 
petitioners that the result reached by the court below 
cannot be sustained because of a variety of errors of fact 
and law.

It should be noted til the outset that reversal of the 
court below on the first Question Presented automatically 
requires reversal of (lie court of appeals’ analysis of the 
statistical proof. One of the bases for the court’s rejec­
tion of petitioners’ regression analysis in this case was 
that “the analysis contained salary figures which reflect 
the effect of pre-Acl discrimination” (Pet. App. 383a). 
Hccause the result we urge on the first Question Pre­
sented affirms the correctness of considering the effects 
of the pre-Acl, salary discrimination in this case, the hold­
ing of the court below cannot stand. At a minimum, the 
case should tie remanded for consideration of whether, 
when the effect of the pre-Act discrimination on salary

effects of Hie original discriminatory snlnry practices m o part of n 
complex matrix of pro- ami poat-Act salary decisions, including 
merit raises, cost of living increases, and county to •county varia­
tions in salary increases ( I ’et. App. lOOn-llOa, !I(i0a-:t02a). The 
extent to which these decisions carry forward the effects of 'the' 
original discriminatory practices, nnd the extent to which any such 
decision Is actionable in this suit by any employee, must lie resolved 
flrsl by tile district court.

13113124



22
ia considered, llie petitioners’ statistics demonslrnle dis­
parate treatment in fixing salaries.

Hut oilier factual and legal errors in Hie court of ap­
peals’ analysis of the statistical proof in lliis case lcquiio 
entry of judgment for tlie petitioners on (lie issue of 
salary discrimination. Itefore discussing lliesc ciiois, 
however, we outline the general standards for analyzing 
the legal sufficiency or a plaintiff's regression analysis in 
a disparate treatment pay disparity case. ”

A. In Order To list aid isli A I’llinn Facie Cnsc Of 
Salary I Useriniiu:iI ion, A Regression Analysis Most 
Control For Factors That Normally Atfccl Salary

Because this is a disparate treatment case, ” | pi roof of 
discriminatory motive is critical” to a claim of class- 
wide discrimination in fixing salaries. International 
Brotherhood of Teantxle.ru v. United States, dill U.S. at 
1135-330 n.15. But a plaintiff is not required to prove 
discriminatory motive directly. A plaintiff establishes a 
primn facie case ol intentional racial disci iinination un­
der Title VII if be "eliminates the most common nondis- 
criminatory reasons” for the challenged act. t exas De­
partment of Community Affairs v. Iturdine, 450 U.S. 
248, 254 (1081). The reasoning underlying this standard 
was explained in Furtteo Construction Tory. V. Watci s, 
438 U.S. 507, 577 (1078) (emphasis in original):

fW]e arc willing to presume 1 intentional discrimina­
tion 1 largely because we know from our experience 
that more often Ilian not peojde do not act in a 
totally arbitrary manner, without any underlying 
reasons, especially in a business setting. Thus, when 
all legitimate reasons for rejecting an application 
have been eliminated as possible reasons for the em­
ployer’s actions, it is more likely than not the em-

2* Our discussion focuses on llie use of one typo of stalisticnt 
evidence: multiple egression analyses. A party may offer other 
types of statistics, such as cohort studies and multiple pool tests,
cither Instead of or .........ion to regression analyses. We do not
suggest tha t regression analyses are the only, or even the best, 
statistical loots for use in disparate treatment cases.

23
.. nil y jut ml ' 
l-nily lu\v x

ploycr, who we generally assumeiffcts onty with some 
reason’, based his decision on an.linipormissiblo con­
sideration such as race. ■ ' i. i,i hit.

When plaint iffs present their proof 'in 'the form of sta­
tistical analyses, these basic principled'should not change. 
Statistical methods should continue'to'reflect the prem­
ises that in a disparate treatmenB cKW iffrti'ntiff claims 
to be the victim of intentional discrimination, and that 
plaintiff bears the burden of proviHg Wih't intention. 
Statistics arc just a way of proving intenlidn by indirect, 
inferential means. The touchstone df"'whethcr plaintiff 
lias made out a prima facie case (that'is, whethci plain­
tiff has made a showing sufficient to1 permit the case to 
he presented to the trier or fact) is whether bis statis­
tical analysis eliminates the “most common nondisci iin- 
iualory reasons” for the disparate treatment, thus leav­
ing racial discrimination as the logical inference. In 
order to apply these principles to statistical proof in a 
disparate treatment ease, however, it is essential to 
understand the probative value of the statistics. As this 
Court admonished in Teamsters:  ‘| S I tatistics . . . come 
in infinite variety . . . .  |T |heir usefulness depends on all 
of the surrounding facts and circumstances.’ 431 U.S., 
at 340.” Hazelwood School District V. United States, 433 
U.S. at 312.

In this case the primary statistical proof offered by 
the United States on behalf of the plaintiffs consisted of 
multiple regression analyses. The purpose of a multiple 
regression analysis in this setting is to determine whether 
the factor of race has sufficient correlation to salary 
differentials lo satisfy plaintiff’s burden of proving in­
tentional discrimination. In the language of statistics, 
salary is referred to as the “dependent variable” in the 
calculation. To make the calculation “one first specifies 
the major variables | referred to as ‘independent vari­
ables’! that are believed lo influence the dependent vari­
able.” Fisher, Multiple degression in  Legal Proceedings, 
80 Colum. 1/. Itev. 702, 705 (1080). “The relationship 
between the dependent variable [here, salary) and the



24

independent variable nr in te re st I here, race] is then esti­
m ated by ex trac tin g  Hie effect* of the o ther m ajor v an - 
nbles” (id a t  70(1). “ 'I’hc resu lts of m ultiple regressions 
can be read as showing the effects or each variable on 
the dependent variable, holding the others constant, 
Moreover, those resu lts allow one to make statem ents 
about the probability th a t the effect described has merely 
been observed as a resu lt of chance fluctuation 0 * •

Thus in order to show that race is likely to have in­
fluenced salary, a multiple regression analysis must con­
trol for other major variables that are thought to influ­
ence salary. A multiple regression analysis that is so 
structured can meet the plaintiff’s burden of proving a 
prima facie case of disparate treatment because the sta­
tistical proof eliminates the "most commoni nondiscrini- 
inatory reasons" for the disparate treatment.

Conversely, if the plaintiff’s multiple regression analy­
sis does not account statistically for the “most common 
nondiscriminatory reasons” for differences in salary, the 
statistics cannot he said to give rise to an inference of 
racial discrimination and therefore do not make out a 
prima facie case. This principle was recognized in the 
context of hiring discrimination in Hazelwood School 
District v. United Slate*, 433 U.S. at 308. The Court 
held in that case that in order to show racial discrimina­
tion in hiring school teachers the “proper Islatislical| 
comparison was between the racial composition of Hazel-, 
wood’s teaching staff and the racial composition of the 
qualified public school teacher population in the relevant 
labor market” lihid.; emphasis added). The Court went 
on to explain Unit the statistical analysis must account

21 In mlilitiim, or course, llie multiple regression nmdysis ""ih1 
Imve Hlnlistic»l reliability. “ I A | regression not only estimates tl«e 
rlTecln of llie variables involved in Ilic mo.lcl but also niensunw 
llie certninly or nccnracy of such eslinmtes. In mldillon. It |»rovl.l.H 

' oven.ll measnres of how well the mo,lei Ills I be data ns n whole 
Fisher, nupra. HO Colon,. I,. Itev. at 710. The s t a t i s t i c  slgnincance 
of the petitioners’ repression analyses was not questioned by the 
courts below ami is not an issue in Ibis rase.

i ‘ 
i ♦

ti . m.ilv
25 1 .'l u v li. ,

for hiring qualiflcations in order to Wav^prob'ative value 
(id. at 308 n .l3):

In Teamsters, the <cmq>arkjpn ^cl^eeu  the per­
centage of Negroes on I be employer^ work force and 
the percentage in the general areawide population 
was highly probative, because the Joli skill (here in­
volved—the ability lo drive A1 tfbek^ift one that 
many persons possess or can fairly readily acquire. 
When special qualifications afe r^qiiNd to fill par­
ticular jobs, comparisons to the, gcnerhl, population 
(rather than to the smaller grpjip fit individuals who 
possess the necessary qualifications), .mgy have little 
probative value. '

It follows from llie Hazelwood Court'd'ft'rittlysis, and a 
number of cases have so held," that in a disparate lieat- 
ment case ir a plaintiff’s statistics fail to account for the 
"most common nondiscriminatory reasons’ for the em­
ployer’s behavior (Burdinc, 450 U.S. at 254) (that is, if 
they do not account for “variables which ought to be 
reasonably viewed as determinants of salary (1 oL App. 
301a), the defendant may prevail merely by pointing 
out that plaintiff’s proof is not sufllcient to give rise to 
an inference of discrimination. In those circumstances 
it should not be necessary for the employer to offer his 
own statistics in rebuttal.M

22 Si>c, e . iV u lc i i l i iw  v. U.S. I'nslal Service, 074 F.2,1 r.r., 70-71 
( l )C  Cir 1082); ICnstlaml v. Tennessee Valley Authority, 704 l' 2,l 
613 024-025 ( l l t l ,  Cir. 1083); Wilkins V. University of Houston, 
054 F.2,1 388. 401-405 (Bill Cir. 1981); cf. St. Marie v. 1C os tern 
ti ll. /Is.i ' ii. 050 F.2,1 305, 400 (2d Cir. 1081).

MSome enses have Indicated IImt an employer cannot challenge 
a plaintilf’H statistical evidence with,ml making a showing that the 
factor llie employer clainiM all,mid have been Included in tlm plain- 
tllfq analysis would in fact have eliminated the racial effect. Seyar 
V. Smith, 738 F.2,1 1240, 1207-1270 (D.C. Cir. 1084), cert, denied. 
No. 84-1200 (May 20, 1085); Trout v. Lehman, 702 F.2,1 1004,^1102 
fl) C Cir HNW), rcv'il nil oilier grounds, 465 U.S. 1056 
cf (irifjin v. Carlin, 755 F.2,1 1510, 1520-1528 (1111, (hr. 1085). 
These cases rely on Teamsters, 431 U.S. at 300-302. for the relevant 
pattern of proof In class disparate treatment cases. Hut be 
of proof In Teamsters docs not differ signiflcanlly from that staled



20

This is not. to s:iy that the plaintilT as part of his , 
prima facie case must present a perfect statistical analy­
sis which Lakes into account every conceivably relevant 
variable. Dolliai d V. Itawlinson, '103 U.S. 321, 331 
(15)77). Indeed, statistical theory presumes that even 
after the multiple regression analysis accounts for all 
the major factors thought to influence the dependent 
variable, other factors remain unaccounted for, and these 
factors may have a significant influence on the dependent 
variable. Fisher, Hit pm, 80 Colmn. L. ltcv. at 705-700. 
If the plaintiff’s statistics include the major non-discrim- 
Inatory factors thought to influence salary, and if they 
show a statistically significant effect for race as a de­
pendent variable, the plaintiff has made the required 
prima facie showing of disparate treatment. If at that 
point the defendant asserts that some additional factor 
should have been accounted for in the regression, the 
defendant must show that inclusion of the factor would 
have explained the salary disparity (that is, that inclu­
sion of the factor would, have eliminated the statistically 
significant effect for race). Requiring the defendant to 
offer statistical for other) proof at this stage is consist­
ent with the requirements of McDonnell Douglas Carp. 
v. Green, d ll U.S. 75)2, 302 ( 15)73). To dispel the 
adverse inference from a prima facie showing the em­
ployer must "articulate some legitimate, nondiscrimina- 
lory reason for the employee’s rejection.” Ibid. Accord 
Furnco, 428 U.S. at 578.

As stated above, we believe that the court of appeals 
in (his case articulated the correct standard, requiring 
the plaintiff’s statistics in a disparate treatment case lo 
include "variables which ought to be reasonably viewed 
as determinants of salary” (l’cf. App. H!)la). Ibis rule 
of reason, like all general evidentiary standards, par-

in lluriliiie. Iinloctl Trunutlcrs explicitly mloimvlcdacs Hint the 
employer may nllncli the plnlntiH'n nine by Rhmvinu Hint plninlill's 
proof is "iiuiceiirnle or iiiHi|-iiill'':inl” ns well ns by "prnvhlf iii({I n 
iioiiillMcriiiiinsloiy r\plminlion for Hie nppniciilly tllscrliiiinnloiy 
result’’ (431 U . H .  nl Slid-IMil &  n.t(i).

A

iiculnrly those relating lo slalisfftaf j)Wbf, will neces­
sarily vary in application from cadti W Owe.' Sec Hazel­
wood, 433 U.S. at 312; Tcainslcrd,'A$\' V &  at 310. In 
many situations, common sense wfll*'Vltel*?’'obvimia an­
swers. In this case, for example,’ i f  WHlr'iWnablc to 
expect that the length of time the''6mj)loybrJ worked for 
the defendant (job tenure) would employees
salary, because some of the pay raifteB tlle"dihploycr gave 
were across-the-board percentage ' Incl'feusdsh Therefore 
the slalislics offered by the United SlilleA bn behalf of 
the plaintiffs in this case did include jWl Tenure as a 
variable in flic multiple regression analysis.

In general the “variables which ought to lie reason­
ably viewed as determinants of salary” sfioUld reflect the 
factors that go into the employer’s own salary decisions 
In a disparate treatment case it is assumed that an 
employer is not required to make hiring, promotion o. 
salary decisions on a basis common lo most employers, 
or on any given basis. Title VII requires only that the 
basis or decision be nomliscriminatory. Ihndine, 450 
U.S. at, 258-255); St. Marie v. Eastern It.R. Ass'v, 050 
F.2d 305, 30!) (2d Uir. 1081). Thus, for example, \( the 
defendant chooses lo give raises on the basis of job atten­
dance, the plaintiffs’ regression analysis should include
job attendance as a variable.1'

In disparate treatment cases where the parties dispute 
whether a particular factor or variable "ought^ to be 
reasonably viewed as |a l determinantM salary (l et. 
App. 3!)la), if that dispute is not resolved before trial, 
one party or the other may be seriously disadvantaged 
by the trial court’s ruling on that issue. If plaintiff's 
regression does not account for the variable and the dis­
trict court rules that its inclusion was required as part 
of plaintiff’s prima facie case, plaintiff will lose unless

si In lliin hypothetical, if Ibi; plaintiff wan i«lb-»-iiur Hint job 
ntlemlniico lecm.ls bail boon kepi In a illscrliniiintory fashion, 
plninliir’a icgniH.qion nnnlymH need not include thin "limited vnri- 
able, .10 four; .1.1 plninlHf olToro.l some proof that nllcn.lnticc reconla 
wero tninleil by racial illsci iiiiiiinlioii. See note 34, infra.

1I



28
lie bus prepared back-up statistics. Conversely, if the 
district court rules Hint Hie variable was not required 
to be included, a defendant who bad been relying on tbe 
inadequacy or plaintiffs case will lose if be bad not 
prepared counter-statistics. Hut these barsli results are 
not inevitable. A preliminary judicial determination of 
the nondiscriminatory factors Unit arc to be subjected 
to analysis will greatly aid in eliminating evidentialy 
nnd burden of proof problems because it will focus Hie 
court’s and the parlies’ efforts on tbe same data from 
tbe outset. This approach will preclude wasted efforts 
(an important consideration because of Hie exceptional 
time and expense involved in preparing multiple regres­
sion analyses) and post hoc reallocation of bin dens. \Ve 
therefore urge, as a corrollary to tbe reasonableness 
standard we have outlined, that district courts be en­
couraged to make formal determinations at the earliest 
possible stage of proceedings as to tbe required (for tbe 
plaintiff) and permissible (for tbe defendant) data to be 
Included in multiple regression analysis offered at trial. 
See Finkclstein, degression Models in Administrative 
Proceedings, 8(1 llarv. L. Ucv. 1442 (1973).

II. The ('m ill Of A|i|icnls Hired In Analyzing The 
Hliilisliciil Proof Offered In This (’use

The allocation of proof outlined in tbe preceding sec­
tion docs not place excessive burdens on plaintiffs in dis­
parate treatment cases. Indeed, application of these 
standards to the facts or this case compels the conclusion 
that the multiple regression analyses employed on behalf 
of petitioners, in conjunction with the other evidence 
introduced, proved racial discrimination in salaries.'55 
Although the nondiscriminatory variables on which the 
courts below focused are generally ones that should be

2" We submit Unit pel it loners eslnblishcd n prlmn fnelc disc; Unit 
1 tho Service did not successfully produce probative rebutting evi­

dence; nnd that tin- petitioners therefore sustained llieir burden of 
persuasion In accordance with thii ln l Stales fo i l 'd  Service Hoard 

, of Governors v. Min us, ICO U.S. 711 (I!I8H>. we now focus oil tbe 
evidence ns a whole.

2!)
considered in an analysis of salary, f̂ he jipurts cited in 
their examination of these factors in |t)jQ,particulai cii-
cuinslances of Ibis case. •' ' ,u"

The United .Slates’ expert prepaid  multiple regres­
sion analyses concerning salaries for.Iilie .years 1871, 1.175 
and 1(181. Certain of these regressiAns usdrl four inde­
pendent variables—race, education,1 Whyil‘6; hlld job title. 
This model reflected the deposition .leijtjmqjjy, of a Service 
official who staled that the most important, feelers in de­
termining salaries were tenure, job title*' education de­
gree and job performance (see page 5,' sliprH)'; Hie model 
omitted only Hie factor of job perfoHVuihcci which was 
accounted for by other evidence itj' Ihe 'pase.2'' The re­
gressions showed that in 1074 the average black em­
ployee earned $331 less Ilian a while employee with Ibo 
same job lille, education and tenure (C.A. App. 1501, 
402-403), and that in 1975 the disparity was $395 (C.A. 
App. 1589, 4Hi).*21 Holli of (hose racial disparities were 
statistically significant (C.A. App. 402-403, 4 Hi).-'"

The Service introduced multiple regression analyses 
prepared by its expert for the years 1975 and 1981. 
Using Hie same model that Hie petitioners had used, re­
spondents’ expert obtained substantially the same result 
for 1975, a statistically significant racial effect of $384

2,1 Sec pages !I2-!I'1, infra.
21 Contrary h> the district min i's suggestion (Pet.  App. ISlin- 

I;)i).,), | | , e Inclusion of county cluiirincn in the ilaln Imse iliil not 
distort the results of these regressions. Job title wns included ns n 
vnrlnble in the erllienl regressions, nnd therefore the snlnries of 
county chairmen were only compared with those of other county 
chairmen—nnd the salary claims related only to the salaries or 
agents.

“ The regressions for I'.IRI showed n smaller disparity which 
lacked slnlistlcal significance (C.A. App. 1I>7R). The lack of a 
significant racial disparity it, 1U8I affects, at most, the relief In 
which plaint Ilfs are entitled; it does nut affect the Service's tinbililn 
for the post Act violation of Title VII established by the P.I71 and 
11)75 regressions, whether or not the pattern and practice of salary 
discrimination demonstrated for those years continued at the lime 
of trial In 1081.



30
(C.A. App. 1710 (analysis 5), 1711-1712). Respondents 
also introduced repressions adding quarlile rank ns an 
independent variable. Doing so for 1075 actually in­
creased the amount oT the racial elTecl to $175—again a 
statistically signilieant result (C.A. App. 1710 (analysis
0), 1713-1711). , . .

Thus, the slatislieal evidence offered by respondents
actually bolstered petitioners’ case rather than rebutting 
it. Taken together, the regressions accounted for all of 
the elements respondents themselves identified during dis­
covery ns the most important determinants of salary: 
job level, tenure, education and quarlile rank.

Nevertheless, respondents criticized petitioners’ statis­
tical case as inadequate, listing additional variables 
which they hypothesized might, if included, have an ef­
fect on the racial disparities demonstrated by the regres­
sions. As we demonstrate below, however, none of the 
“omitted variables” provides an appropriate basis for do- • 
termining lli«it petitioners luul not met then but den o
proof. , .

1 TJie only variables specifically discussed by the
panel majority are those relating to differences among 
counties as to salaries (l’ct. App. 3 8 7 a -3 5 )0 n )I t is 
undisputed in this case that salary levels varied among 
the various counlies and thus the court of appeals is cot- 
rcct that such a major salary-affecting variable should 
have been accounted for ns part of petitioners case in 
chief.10 The court erred, however, because it failed to

*» The ninjnrity Hinted ( t ’et. App. 3!)0n) :
Xhe ncross-lhe hoard mid peiccnlage pay increases granted by 
n county, mh well an counties wltieli simply pay higher aalai lea, 
also arc hound lo (law the regression analyses since they were 
not taken account of. I t  Ih also apparent that percentage 
pay raises from whatever source will magnify any existing 
disparity.

This discussion relates lo items (2), (It) and (7) on the defendants’ 
list of omitted variables (sec note 10, snpru), and may also relate 
to Items ( I) and (II).

oo Although if is not necessary lo reach the Issue in order In 
decide this case, It is arguable that petitioners should he excused

1

recognize that the county-by-county dfehbHlies were ac­
counted for by petitioners’ evident,"'silbeil not in the
multiple regression analyses. ‘

The United Stales introduced unrCbUttetl evidence that 
removed county differences as a pbsijible VWpIrinalion for 
the racial disparities in salaries shWh hylllc regression 
analyses. This evidence included: (1) 'an dkhibit estab­
lishing that black employees were1 iittt! ItJintbll dispropor­
tionately in the low-contributing counties (C.,^. App. 189, 
1011-1023); and (2) intra-county, cpifliwisqns showing 
dozens of examples of black agents, who were paid less 
than their while counterparts (C.A. App." 1503-1507 (ex­
hibit based on 1(173 data), 18(1-190 (pfbfasetl findings)). 
In addition, the same pattern—whites earning more than 
blacks in the same county who had the same or supciioi 
job title, tenure and education level—was shown in ex­
hibits introduced by respondents (C.A. App. 1020-1080; 
1)X 07).

from including Ibis voidable in their regression analyses because 
until the brink of trial Ibc Service did not identify inter-county 
snlnry variance ns a major factor influencing salary. The multiple 
regression analyses introduced at trial included variables the Service 
identified during discovery as Ihe primary factors ulfecting salary 
(sec page 5, supra), ltespomlenls criticized the omission of other 
variables from these regressions, variables that they had listed 
fur the first lime a few day's before trial In response lo our motion 
for summary judgment on the salary issue (Def. Response hied 
Nov 27, 11)81). The court slated tha t the regressions sulheed to 
establish a prlma facie case of salary discrimination, and indicated 
that petitioners would prevail unless the Service established that 
the Introduction of other variables into the analyses would eliminate 
or reduce the disparities shown (sco note C, supra). ' i tm l pio- 
cceded on that basis, and the Service failed to meet lls burden. 
Nevertheless Ihe district court entered judgment for the Service 
on the salary claim, stating that the plaintiffs “had probably made 
out a prlma facie case,” but that the Service had rebutted that case 
by meeting its ' burden of articulating plausible reasons for its 
actions * * * which Ihe court found convincing” ( l ’ct. App. Ji'Oa). 
This post hoc reallocation of the burdens of proof raises serious 
questions or procedural fairness in this cuse. Of. Keyes V. School 
District No. t, <113 U.«. 18!), 20!) (1073). •

I



32
The court of appenla majority completely failed to ac­

knowledge this evidence. Yet, as Judge l ’hillips pointed 
out in his dissent, such evidence "completely undercuts 
lrespondents’! suggestion * * ’ that the regression
analyses were flawed because of diffeient sal.uy levt s 
from county to county" ( l’et. App. Jhfia n.137; sec also 
Pet. App. 45'la & n.l3(»l. Accordingly, the evidence shows 
cletirly that the majority erred in using the issue of sal­
ary differences a m o n g  counties as a ground for discount­
ing the results of the regression analyses because overall 
salary differences among counties did not explain the 
lower salaries of black agents.

2. The district court stressed job performance as the 
most important factor determining post-entry salaries 
(Pet. App. 131 a, I lia ). According to the district court, 
"neither side” incorporated job performance in its regres­
sion analyses (Pet. App. 131a). 'Ibis was a piimaiy 
reason the district court refused to credit the regression 
data (Pet. App. M ia).

The district court clearly erred in this ruling, and the 
court or appeals improperly sustained that error. As 
stated above, regression analyses prepared by respondents’ 
own expert included the qunrlile rank measure of job 
performance." Inclusion of the quartile measurement re­

al The Service’s melhml of evaluating job performance Is its 
qunrlile system under which, each year, the respective district 
chairmen place each agent in one nr four quarllles (C.A. App. 
288-28-1). (Jnarlilc rank is used as the basis for awarding mol it 
ruiscs, with agents in quartile 1 receiving tliu highest salary in­
creases (C.A. App. 1882-1887). There are no numerical ratings or 
rankings within a quartile (Pet.  App. 1 IMa 11 la), so the only feasi­
ble measure of job performance is quartile itself.

The validity of the quartile system under Title VII, although not 
r„|Rcd in the petitions for certiorari, was a separate issue in the 
courts below. The court of appeals held that quartile ranks were 
assigned in n nondisrriminatnry manner (Pel. App. Jl!lln-!|!»7n).
According to the ....... or appeals majority, this finding meant that
there was no discrimination in awarding merit salary increases. In 
reaching that conclusion, Hie majority did not mention the Services 
11)75 regression which included quartile rank and thereby increased 
thp race elfect. Moreover, as Judge Phillips pointed out in his

(

1

33

porting the claim of salary (lisc rim ^o n ^ .'.'O f course, 
it does not matter that this proof qame.into the case as 
part of the respondents’ evidence. 'After a full trial on 
the merits a reviewing court looks tb the evidence as a 
whole. United Staten V. Ailcena, stipYa.**'

dissent (Pci.  App. 452n n.tSB). even if the qutfrlile system itself 
was valid it by no means follows aulomnllcWlly that the pioeess 
for determining salaries (including merit increases) was nan- 
disci Iminalory. ' . (

«  However, inclusion of quartile rank sjgidlicnnlly c(ccr,,.3cd the 
disparity for 1881 ($810 to *1 12) (C.A. App. l t l ! l- i7M , 171b). As 
was true or the United Stales’ regressions for llMl. the Services 
regressions for that year, both with and without quartile rank, 
showed racial effects that were not statistically significant ( t ,A . 
App. 1081 -1082, 1700, 1701).

m qunrlile rank is pertinent to other items on the Service's list 
of variables that allegedly should have been Included in pet. .oners 
regressions: "merit raises provided by the stale ,” and merit raises 
provided by the counties with « * * participation * * * by hxlcnsm" 
Service pc, son,.el” (Pet. App. 188a). Merit Increnses-whc her pro­
vided by the stale or a county- are, according to W " de" j j  bJ J ^  
o„ quartile rank (Pet. App. I P2a-115n ( s ta le ) ; id. nt HOa-1‘2 
(county))• Hem (5) on Hie Service’s list is "merit raises provided 
for by the counties in which Intension Service personnel have no 
input ’’ There is no factual basis for the dsllrict court s hnding 
(Pel. App. 183.0 that merit raises have heel, made In that maimer 
as the court of npenls seems to have acknowledged ( U t .  A | | .  
30in n.3).

a. Job performance is, of course, normally related to salary and 
ll.us should lie controlled for in a regression analysis a t  d i s t  
where, as here, the employer considers job performance in making 
salary dele, minalious. Here, however, the only feasible measure of 
job performance quartile rank was itself alleged to he d isc

y' in our view a plaintiff should not he excused from including 
„„ otherwise imp... taut factor in his multiple regression analysis by 
merely alleging that the factor is itself discriminatory. A plaintiff 
m usU n addition make at least some showing, through statistics or 
otherwise that Hie factor lie excludes from ills analysis ,s in fact 
discriminatory If a plaintiff is not required to negate the signifi­
cance of directly relevant, omitted variables, this effectively creates 
" mesomptim, Hist the variable* that were excluded because they 
on H he "tainted” by discrimination arc* in fact being applied in 
discriminatory manner. Such a burden of proof simply assumes the



34
3. The hist, two il(ins on the Service’s list relate to 

prior experience.’1' Here, the Service had no existing 
standard and produced no evidence whatsoever relating 
to the kinds of experience, if any, that arc relevant to 
extension work or affect, salary levels (sec C.A. App. 928- 
930; GX 10(5, at 0 2 - 5 3 As a result, there is no basis 
for measuring the prior experience of Service employees 
or for including that factor in a regression.”

conclusion Unit tlio defendant lias discriminated with respect to 
fnclura directing salary. If a plaintiff is to lie excused from includ­
ing numerous variables that are most directly related to salary 
because those variables are susceptible to discriminatory manipula­
tion, lie must also be reipiired to provide supplementary evidence 
to support the claim that those variables have been so manipulated.

Ill this case petitioners did seek to prove that the ipiartllc system 
was applied in a discriminatory manner, by offering evidence sepa­
rate from the multiple regression analyses. I’et. App. 115n-110u. 
The correctness of the court of appeals’ determination that qunrlilo 
ranks were assigned in a nondisci iminalory manner is not presented 
fur decision by this Conti. And there also is no need In determine 
whether the showing made was snliicienl to excuse petitioners from 
including quni tile rank in their regression analyses because, ns 
slated in the text, the respondents included qunrlile rank in their 
regressions.

These items are " Ip lr io r  and relevant, experience” (Item 8)) 
and "[vjarialioiis in salary due to market demands both at time of 
hire and later for agents with skills in short supply or prior experi­
ence” (item (!!)) ( I'el. App. I.Tln-NMa). The latter item Is, as the 
district court recognized (Pel. App. Ill la), "dilllcult if not Impos­
sible to measure and quantify.”

an This case is, in our view, distinguishable from Sctfar V. Smith, 
7.18 F.2d 1249 < 1 *.(I. Cir. HIR'D, ceil, denied. No. 81-1200 (May 20, 
1085) on this basis. In .SVc/ar, which involved the assignment of 
new employees to different job levels ((.S-7 or (»S-9), the fedeial 
agency had a written standard as to prior experience qualifying an 
employee for placemen! al I lie higher level (see 7.18 I ' .2d at 1275). 
.Under lliose circumstances, as we pointed out in our petition for 
certiorari in that ease, prior experience is one of the factors nor- 

' mally expected lo explain salary differentials and therefore should 
bo Included in plaint ills' regression analyses as part of their prims 
facie case.

b > in The United States placed into evidence Service personnel files 
including applications which list the employee’s pre-hire work his-

i'

In sum, (ho court oT appeals majority 'erroneously re­
fused to accept the multiple i ^ l ^ o ^ ’ttAalysca (piof­
fered by both petitioners and rgspqjidents) as proof of 
racial discrimination. The rcgressilWg,, along with the 
oilier evidence discussed above, did establish iaci.il dis­
crimination in salaries, and, Accordingly, petitioners 
should have prevailed on (his claim.' ^  "" ” '

III. TUB SERVICE RETAINS JOI'NT'HWSPONRI 111 MTV 
1011 TUB REFECTION OF COUNTY CHAIRMEN, 
AND IR TIIBHBFORB 1,1 AllFETINDEH TITI.B VII 
FOR DISCRIMINATION lN T l ^ | !  S FI,F ( TIONS

The private petitioners invito tliis Court lo coiisnloi 
whether Title VII permils an employer to delegate its 
hiring decisions to a third party which invariably acts in 
a discriminatory manner (85-93 Fet. 49-55). We submit, 
however, that this question is not properly presented here. 
The court or appeals concluded that the Service was not 
“separately responsible” for the selection of county (’bail­
ment (l’et. App. 412a). It also noted, however (Fet. App. 
403a), thill “the agreement of (he Extension Service and 
the County Commissioners is required in order to (ill the 
|county chiiirmanl vacancy.” The district court explicitly 
so found: “nil appointments are worked out jointly be­
tween the Extension Service and the |county 1 commis­
sioners and no official action can be taken unilaterally by 
either party” (I’et. App. 77a). No party challenged this 
finding on appeal, and it is well supported by the record 
(see, c.{)., .1.A. 1(53; C.A. App. 1090). The only question 
properly presented in this context is thus whether each 
participant in a joint employment decision must comply 
with the dictates of Title VII. It requires no extended 
analysis to demonstrate the fallacy of permitting each 
participant to avoid liability solely by showing that it 
shared the decision with another. /?.</., Farmer v. ARA

buy (NX OS). Analysis of lliose applications allows flint black 
agents averaged more years of pre-hire experience limn did while 
agents (C.A. Ur. Table 0, at On). Many black witnesses described 
Minir prior experience, and much of it was directly related lo 
extension work (see, e.p., Tr. !M, 027-02!), 807, 924).

1



nr.

Services Inc., «f,0 l-’.2d 10%, 1104 (Olh Cir. 1081); 
Robinson V. Lorillard Carp., 444 l'\2il 701, 700 (4lli Clr.), 
cert, dismissed, 404 U.S. 1000 (1071); sec ^ to,uo V‘ 
Wards Cove rack ing  Co., 708 F.2d H20 1125 (0U> Ch. 
108G); cf. McDonald V. Sonic V c Trad  lra n sp .  Go., 427 
U S .  278, 284-285 (1070). 11 whs  accordingly inappro­
priate for Hie com 1 of appeals to focus on the statistics
;^ » „ lln B Iho ................. irtcnliliwl l,y the Soivlco for
cmroliloiiUo,, for inmnrthm. rather limn fit the hUiUslies 
with respect to (lie final choices that were made. In 
sum n‘ remand for reconsideration of the appropriate 
statistics may he warranted, hut this record P»»v'des no 
occasion for consideration of an employers liability for 
decisions made without ils participation.

If the Court nevertheless reaches I lie issue urged liy 
the private petitioners, we submit, Tor the reasons ex­
plained in our petilion, that General lluilding Contractors 
Ass’n V. renns,,Ivania, 458 U.S. 875 (1882), makes clear 
that an employer cannot properly he held vicariously 
liable under Title VII.

««See mile 12, supra. The court .11.1 refer briefly l<> the ulti­
mate success rules of black nn.l white applicants n'e -Kitenuiu s 
" lu ls ln g  the .listriel court's mell.o.l or calculation, Hint the 
relative rates ili.l not raise an Inference of disparate l ,cn ,n"!" ‘ 
(Pet. App. 410a), hut the c u r l  used incurred figures In cn d i n t i n g  
those rates The court's analysis was also Hawed by its inclusion o

case a while female (see note 8, supra). In addition the court 
failed to lake account of the f a d  that although the S "" lc e  n ho 
vast majority of cases recommended only a sinirlc candidate to the

i t , „............*■>■............... i;1”
mending a while can.....ale, if one was available. In ta d .
where both a white and black candidate were recommended, the 
white can idalc was always selected even though the sin ed reason

d u a l ly  .pmliried (C.A. App. HM-'Jir.).

I > l 
1- 1 1 

,i

IV. I’l l lO lt SHHHEUATION IN T IIE  4-BU AND EXTEN­
SION HOMEMAKER CI.UIIS WAS1 rMUEY C llltED 
I1Y RESPONDENTS’ ADOPTIONOF'A 'fiENllINKLY 
NONIHSt'IIIMINATORY ADMISSIONS I’OMPY

Thn narrow legal <|ueslinn raised by,prjvato petitioners 
is whether a slate actor has fai led,1 «s «"matter of law, 
In satisfy its allirmalive duty to deSC^gregalc a formerly 
do jure system because it rctain^l'it ri'^'choice admis­
sions system I he result of which |S ,t,|î |> sjjiRc all while 
and all black 4-11 and extension homemaker clubs con­
tinue to exist (85-5)3 Pet. i-ii, Question,.«I.1’ There 
is no issue in this Court concerning either'the validity of 
(ho lower courts' factual conclusion thrit llih 4-11 and ex- 
Ielision homemaker clubs have been dperaled in a purely 
nondiscriminalory manner since ut least 19(i5, oi that 
the respondents have taken no action designed to per­
petuate Iho prior segregation or otherwise to have a 
segregative effect.10

.inThe precise extent of racial mixing within the 4-11 nnd exlcn- 
hIoii club!, is nuclei.r. Uetween 1072 and 1080, the tolnl number of 
Integrated (nt least one member of n different race) 4-11 Clubs in 
mixed communities grew from r.Hfi to 1442. while the number of 
single rare units in mixed communities remnlncd fairly constant 
(R92 In 1972; 880 in 1980) (C.A. App. 1807, 1140). Of all partici­
pants In 4-11 f’luhs in the slate, 15.7 percent belong to these 
880 one-race clubs (OX I I ) .  As of 1972, the lust year for which 
Htatlslics are contained in the record, only 22 out of IRIK! home­
maker chibs were Integrated ( I A. 102).

>o T|,e court of appeals found that “ | l lh n  record Is totally devoid 
of any proof of discrimination with respect to services provided by 
nny 4-11 or Extension Homemaker Club" (Pet. App. 424a n.128). 
The district court likewise found no evidence of any discrimination 
in services or membership (Pet. App. ir.B«-185n) and found Ihnt 
nny racial imbalance existing among the clubs resulted exclusively 
from Hie wholly voluntary nnd unfettered choice of private individ­
uals (IVt. App. 172a). On this hnsis, the district court distin­
guished two other cases which found segregated extension-related 
Hubs had not been dismantled (Pel. App. 17Bn). Specifically, the 
district court noted "that the Extension Service has had a policy 
that all voluntary clubs be organized without regard to race and 
that each club certify that ils memhcrshlp is open to all persons 
regardless of race; that it instructs Ils agents .........courage the



H8

Accordingly, we og'co witli Uio court of nppculB con­
clusion llmt llic “more existence of all while and all 
black 4-11 and Extension Homemaker Clubs in some 
racinlly mixed communities violates neither 1 itle VI 
nor the equal protection clause of the Fourteenth Amend­
ment” (I'el. App. 424a n. 128).» Prior decisions of Ibis

formation of new clubs witlioul in fan t  to race; llml It pnblislies 
Us policies in llic iiicilin; llml nil - f  its el.il. work and functions 
shove the local coiiimi.nily level are h. injr conilnclcd on a f""y  
Integrated husis; d ial its l-H camps are folly integrated ami linve 
been for over ten years ami that no person has heel, denied mem­
bership In any dub  on account of race” (I’d .  App 18 aE  The 
district court found dial " | i | n  working willi llic clubs nil e x t e n ­
sion] nifcnls work across racial lines” (I’d .  App. 159a 1.63) A - 
though the United Stales and private petitioners introduced ev - 
deuce Hint the Service had assigned agcnls In rlidis on a r»c » 
basis until 11.71 f.f.A. 138-139; Tr. 1078-1079. I9»l 1005 201»- 
2020, 2025), they did md present the district court with a l> o|i 
finding of f a d  on Ibis subject. We do not understand Petitioners 
to nrgue Hint the court’s findings were clearly crmnemiH, or l n 
the Service has lake,  any adlon after Ihe de jure period Hint has 
•’servefdl to perpetuate or re-establish (lie dual * "^ le i i r
Cnf mil him n,t. of I'd lie. v. I’mirli,  Fill UR. 440, 400 (1079). o 
evidence relating In Ihe racial compusilinii oT clubs foimed aflc 
the dc jure period was introduced at trial, because neither the 
United Stales nor private petitioners drew any distinction between 
clubs formed before or after lids period.

4. The discrimination prohibited by Title VI Is coextensive with 
that proscribed by the O ns li tu l ion ;  our discussion will therefore

Guardian* V. Civil S o r i n '  Cammuaian. 46.1 U S. 583 <IIW .tU II 
United Stales Dcparl.ncnt of Agriculture has promulgated regula­
tions pursuant to Title VI which require that federal ni' rec^  ^  J  
that have "previously disc-in.hinted against persons on Ihe ground 
S  race cd'or or . .at........ origin, * * • m - t  lake anirmative ac­
tion to overcome the elfecls of prior discrimination. 7 ( ,  .11. 

>15 3(h) (0) ( I ) . As disciiascd in Hie lexl infnt, where, as , 
admissions are traditionally the product of privnlc voluntary choice 
an entity covered by Title VI has fulfilled this requirement o lake 
nliirmnllve action In nvcrcome Ihe etfccls of prior segregat on 

, pdrrilsshins when it has established a genuinely nond scri.n na o y 
ndmlssions system. Rim e the regulation simply c.nbnd es lids slat., 
liiry and constitutional requirement, the lower courts conclusion

t I I

,n In* I ;i!\t‘M •11 
I l.i |*;iI t !

C ourt in Ibc school (Icscgrnlioii a rea  ,^W91V*lt,a lc  V'al !‘ 
Blalc wliicb Ims instiled llml. all il^iJlliMvUqq?, ic la lin g  to 
adm issions a re  tru ly  lace -n eu lia l uoqri lnof.|,i\ssui e a par-

lluit the Service lias created such a 
d-lt and extension homemakers do
plianco with these regulations.

The Department of Agriculture sent MllUKluUVc ilftiou guide­
lines” in 11172 and 1973 to the Directors of illl ISxtinsion Services 
expressing the Department's views concerning steps those Services 
should lake will, respect to desegregating' 4̂ 11 Alnlextension Im.nu- 
,unkcr clubs. These guidelines, on their face;'specifically exempt 
the respondent Intension Service frmd eovii'agfc h0fcai.se of the 
pendency of lids liligallui. ( I ’d .  App. l tM 'n JIR f  l*A. App. 1905, 
11)14-11158). It Is also undisputed Unit these gulllclilies are, in any 
event, liniildmling. The slated purpose of tlieso guidelines is to set 
forth standards by which I'Monsion Services will "assure tha t all 
Kx tension 4-11 and other youth prugrams * * # are provided to all 
clientele on a iiondiscriiniiialoi y basis without regard to race, color, 
or national origin” (U.A. App. 1941; see ulso C.A. App. 1923, 
1801-1855, 1888). To accomplish this goal of nondiscrimination, llio 
guidelines state that formerly segregated Extension Services should 
establish ”11011 iill rcunmnldr i/Joils have been mailc to recruit 
individuals from all racial groups represented; and reasons for 
individuals not desiring to become members of such clubs in inter­
racial settings arc nut based upon race, color or national origin” 
(C.A. App. 1905 (emphasis in original)). Respondents did not 
institute one of the recruitment elicits specified by the Department 
as part or their allirnialive ellorl to ensure nondiscrimination: 
personal visits bv Kxteiisimi stall members to potential minority 
participants in the clubs (C.A. App. 1910). As a general en­
forcement policy, the guidelines’ "personal visit” standard is an 
appropriate and beneficial reel ailment measure to assure both Ihe 
Department and the covered extension Service that all persons are 
aware that clubs arc truly nomliscriniiiuitory, so that the “reasons 
for Individuals not desiring lo become members of such clubs in 
interracial sellings arc not based upon race.” However, Ibis com­
ponent of the Department's allii inalive action program is not an 
absolute prerequisite lo finding that the clubs are truly iinndiscrimi- 
nuliiry. ’I he district court's findings of nondiscrimination and that 
any racial imbalance is solely attributable to the free choice of 
persons unfettered by subtle racial barriers are not clearly errone­
ous. For this reason, the United Slates did not appeal the district 
court's decision on this issue.

. * t,l ib i I .lull . .
iioiidlscrlminnlory system in llic
hs establishes'Mint It is In com-

1 .11,,-, u | i -i



40
ticular racial mix''' nr eliminate personal choice in order
to cure its prior segregation.

It is well established that the Couslilution does not 
require, either as a matter of substantive right (e.y., 
Pasadena City ltd. <>/ Kduc. v. Syauylcr, 427 U.S. 424, 
433-434 ( l!)7<5) ; Spa near v. Keyin', 404 U.S. 1027 
(1072)) or as a matter of remedy {Mill ikon V. Bradley 
(Millikcn /) , 418 IJ.S. 717, 740-741 (1074); Swann v. 
Bd. of Kduc., 402 IJ.S. I, 21 (1071)), any particular 
degree of racial balance in a slates activities. Itatbei, 
the Constitution requires that government refrain from 
any action intentionally designed to exclude or segregate 
persons on (he basis of race. Dayton ltd. of Kduc. V. 
Brink-man (Dayton 11, 433 U.S. 400, 413 (1077); 11 ash- 
in,jton V. Davis, 42(5 U.S. 220, 230 (107(5). It is not 
disputed that the Service engaged in such deliberate seg­
regation after (his Court’s decision in Brouni V. Bd. of 
Kduc. {Brawn / l ,  347 U.S. 483 (1054), and thus "auto­
matically assumes an adirmalive duly ‘to effectuate a 
transition to a racially nondiscriminalory system.
Keyes V. School District No. I, 413 U.S. 180, 200 (1073), 
quoting Brown v. Bd. of Kduc. {Brown II),  340 U.S.
204,301 ( lor.r,)

Such remedial efforts arc necessary to rcsloic the 
victims of discriminatory conduct to the position they 
would have occupied in the absence of such conduct 
(Millilcen I, 418 U.S. at 74(5) by eliminating the con­
dition that violates the Constitution and the conditions 
that flow from such a violation. Millikan V. Bradley 
{Millilcen II),  433 U.S. 2(57, 282 (1077). Sec Dayton I,

n  Although private poliliniiniH do not expressly slnle Hint nuy 
particular rneiiil mix is required, tlirir nsscrlinn Hint the slnle's 
efTrols have ‘Tailed" (85-113 Pel. i-ii) can only lie premised on tins 
assumption Hint some degree of racial mixture Is necessary for 
“Success".

-I 4.i | t  fa n|HO umlispulcd Hull II was llie slate’s deliliernle action 
' that caused iulenlimml segrcgalion iu (lie clubs and llius conslltuled 
)"n(nle aclion” govcrmsl l..v Hie I'nm tecntli Amendment. See Moose 
I,miffn No. W7 V. Irvis, 107 U.S. Kill (1072).

I. i

|M |..O l l l. l  
'  l ie l.i.t ...

433 U.S. at 417, 420." Since tile c^ndilioH that offends 
(.he Couslilution is a race-conscious admissions policy, 
not the absence of racial balanc'd,t h e constitu­
tional violation with respect to adjidksibnfe ik fully cured 
by establishing a system or admis^ipifs f.hgt >xclude|s| 
no |person | of a racial minority, .directly or indirectly, 
on account of race.” Swann, 402 U.Si a t 23.'r’ Accord­
ingly, a unitary system id' admissions is1 one "within 
which no person is to be «• ffoctively) texiltitlcd fiom any 
| club| because of race or color.” Ah^aiifler V. Ilointcs, 
30(5 U.S. Id, 20 (10(50). Accord, Greeny, School Board, 
301 U.S. 430, 432 (10(58), quoting.'/Jtvmnt U\ 340 U.S. 
at 300-301 (formerly segregated school'systems must 
" ‘achieve a system of determining adirtisSflioi1! t(> the public 
schools on a nonracial basis.’ ” ); Brown II, 340 U.S. at 
300 (“At stake is the personal interest of the plaintiffs

4i n,,(|, Millikcn cases, like idlicr cases c(tcd nbove, conrcriied 
limitations nu llie remudliil disci clioii nf ferlcrul courts in segregn- 
| i„n c„at.s> mid mil wlml u slnle nctnr sucli ns respundent nmsl dn 
in order In cure prior segregation. These coses, never!hole is, estab­
lished llie outermost hounds of desegregation remedial ellorls be­
cause they involved llie question of whether a district court has 
exceeded its authority by fashioning n remedy which goes beyond 
(lie "nature and extent of the * * * violation." Millikcn l. I!« US. 
at 7,11 , in definiiiiv the limitations on judicial remedial aulhorily, 
however, these cases do not establish that every defendant must 
lake every slep a court could possibly order to cure past discrimina­
tion. For example, a district court would be authorized lo require 
intensive aUirmalivc recruitment efforts to cure prior discrimina­
tion. However, a stale defendant Hint has not performed such 
recruitment in all particulars will nevertheless have complied with
the (('institution if it arrives at the same end: ......Useriminnlory
mlmiHflions. (Set* Hole 41, sn/mi . )

4ti Of course, a ayfllem cIocm not become unitary In all respects 
simply by curing lls prior discriminatory admissions. Katlier, it 
must remedy all aspects of the system tha t have been affected by 
such discrimination. In (he public school context this would include 
faculty facilities, and llie oilier so-called "Green fac tors"  Kec 
Green V. School Hoard, 3»l U.S. 430, 4115 (11108). Our discussion Is 
expressed in lerms of admissions only because we do not understand 
the private pel.illoners to cm.lcnd that the Service has not fulfilled 
lls affirmative duly with respect lo the formation of clubs or any 
other aspect of the chibs’ programs.



f

42
In admission l» public schools * * on a nondisci iniina- 
tory basin” ).

To bo Bin e, in I lie elementary mid secondary school 
context, achievement. of the truly race-neutral admissions 
scheme necessary to remedy prior segregation requires 
more than discoidimiancc of discrimination if the former 
unconstitutional practices have created a race-based as­
signment system that remains in place. Simply ending 
de jure segregation and returning to a neighborhood 
school system often will not restore the conditions that 
would have existed absent prior segregation, and thus 
will not effectively dismantle the dual system. In such 
school systems, student attendance districts often have 
been racially gerrymandered, schools may have been pur­
posely constructed in a particular area to achieve arti­
ficial racial separation, and the location of segregated 
schools may well have significantly contributed to segre­
gated residential patterns. Siotiui, 102 U.&. at 25, 28. 
In these circumstances, assigning students to their neigli- 
Imiiiood school does not place students- either those who 
attended school during the period of de jure segregation 
or those who will subsequently enter the system—in the 
desegregated school environment (or actual school) that 
they would have experienced absent such prior unconsti­
tutional actions. Accordingly, "|w |hen school authorities 
present a district court with a 'loaded game hoard, af­
firmative action in the form of remedial altering of at­
tendance zones is proper to achieve truly nondiscrimina- 
tory assignments.” hi. at 28. To do otherwise would 
perpetuate the prior de jure segregation by leaving iu- 
tnct conditions that are directly attributable to the uncon­
stitutional actions of state actors.

Where the stale has not ossif/acd persons during or 
after the de jure period, however, the process of dis- 

>establishing the dual system through achievement of a 
neutral admissions policy can he more directly accom­
plished. Where public officials do not assign persons to 

,,n particular program, there is no stale-controlled atten­
dance pattern, discriminatory or otherwise, to undo or

I

**» r"-)

, . < l|i< .1 I * ll.

redraw. Thus, unlike elementary artd Sethltdftry educa­
tion, affirmative action to assure a '^nu ine  ahd complete 
termination of all discrimination in actiyities affecting 
admissions will not leave in place any dwrl tPM'atory  con­
ditions caused by previous stale-imposedt, segregation. 
Such a genuinely 'race-neutral policy will, absent any sub­
sequent conduct that c o n t r i b u te s  to s e d a t io n ,  fully 
dismantle the dual admission system1 bttctUlSe it will re­
store to the victims of discrindnatorjf .cttmltiH <“"<* I"'0' 
vide to others) the system mandatedt by( the Constitu­
tion, i.c., one in which each person hasnfl .equal oppor­
tunity to participate in government.ftcMyiMp* fl'cc fn 'm
discrim ination and racial separation attributable to state 
action.

This is not to say that a voluntary attendance system 
is unitary with respect to admissions because the stale 
entity simply announces that it will henceforth conduct 
admissions without regard to race. Unifier, such a foi 
,nerly segregated government program is unitary only 
if the state has, in fact, established an admissions “sys­
tem in which racial discrimination |isl eliminated root 
and branch.” Green, m  U.S. ut 438. Thus, the relevant 
program must he free from all practices that either indi­
cate that the program is not genuinely open to all free 
from subtle discrimination or that otherwise create fur­
ther racial separation.

This transition will normally involve diligent over­
sight and remedial efforts to ensure that the defendant’s 
existing administrative and admissions practices arc not 
tainted by discrimination, and do not send a subtle dis­
criminatory message, that its personnel arc sensitized to 
the need In treat applicants and potential applicants in 
a wholly nondiscriminatory manner, that its present and 
future practices do not have the effect of impeding deseg­
regation, and that it is made clear to all that any prac­
tices discouraging or diminishing racial mixing are truly 
a thing of the past. Such affirmative action by the stale 
will ensure that a genuinely race-neutral admissions pol­
icy has been achieved, and that any subsequent racial im-

.1



44
balance is lima not <lne lo acliona attributable to public 
olllciala, but In Hie truly Tree exercise of choice by private 
actors unaffected by subtle discriminatory exclusion.4" 
Against (be backdrop of recent, blatant discrimination, 
affirmative recruitment activities in tbo media or other­
wise will normally be an important component in Ibis 
nondiscrimination rirorl, but the ultimate question in 
every case is whether the stale’s policies and practices 
are conducted in a manner that does not exclude 01 
segregate any person on Hie basis of race.

In this case, as noted, the lower courts found that Hie 
respondents bad fully cleansed Hie clubs of any such 
racially-based activities and that racial imbalance is 
solely the product of unfettered private action (see note 
40, sit pm). Private petitioners do not maintain that 
these concurrent findings of fact are erroneous or that 
the respondents engaged in any action that bad a segre­
gative effect. Accordingly, for the reasons staled above, 
we believe tin* lower courts’ determination that such 
racial discrimination bad been eliminated from the sys­
tem "root and branch” establishes that respondents bad 
fully performed their duly to redress prior segregation.

The Service was not required to attain a particular ra­
cial mix in its system, regardless of whether private 
actors continued lo retain Hie freedom lo choose which, if 
any, club to attend. He facto segregation that is purely 
the product of private decision making, and thus not al-

■"•The '1-11 ••iikI oxlcnsiuii lioiiicinnker rliilm me nut ncliinlly n port 
of the Extension Service, ho the |in;<ise form of respondents’ 
nlltnnnlivc remediM duly is somewhat different, iilthouirh no less 
compelling, limn :i slide m lor that most cure Its own intermit prac­
tices. With respect lo admissions, the respondents are obliged to 
lake nlllrmalive aelioo lo ensure nondlsirlmiiiathm against club 
members by I lie private voluntary lenders of llmsc clubs. For ex­
ample, with respect lo Hie sole Inslamn of discrimination by n vol­
untary worker in the record, the Service promptly removed llm 
Worker and admitted Hie Idaek child lo the 4-11 f.luh ( l e t .  App. 
1G7n 11.51). Of course, the Service lined also ensure Hint its own 
actions related In these cliilis - formation of clubs, recruitment of 
tenders, provision of services are imndiscrlmlmitory and arc not 
used ns devices lo perpetuate segregation.
•I,

i j

4f> i i i. 
i.i i

trilnilahlc to any action by tbo aljilq, l.B,, not proscribed by 
the Constitution. Dayton I, 477.U.S, lhal being
so, aucli racial imbalance need not bei eliminated in order 
to render an admissions system fullydesegregated if the 
government entity baa established a genuinely race-
neutral admissions pattern. ........"

This Court’s decision in SimHyUir'"Makes this clear. 
There the district court’s adoption 'o'f, a pf^denL assign­
ment plan to remedy public schooli segregation “eslah- 
lishcd a racially neutral system of student .assignment in 

, the | school district I." 427 U.8. at 434; After the first 
year of this plan’s implementation;'free Movement of per­
sons within the district "resulted in some changes in the 
demographies of |the district’s] residential patterns, with 
resultant shifts in the racial makeup of some of the 
schools.” td. at 4.70. “ |A |s  these shifts were not at­
tributed lo any segregative actioiiR on the part of the 
|school district|” {ibid.), Ihe raciul imbalance caused by 
these voluntary choices of private citizens did not mean 
that the district had failed to perform its duty to remedy 
prior segregated student assignments. Consequently, the 
district court’s requirement lhal the defendants engage in 
additional remedial admissions practices was impermis­
sible because it enforced a right not. secured by the Con­
stitution, i.c., the “ ‘substantive * right |lo al pat- 
tictilar degree of racial balance nr mixing. I<l. at 474, 
quoting Swann,  402 U.S. al 24. “For having once imple­
mented a raeially-neutral attendance pattern in order to 
remedy the perceived constitutional violations on the part 
of the defendants, Ihe District Court had fully performed 
its function of providing tlie appropriate remedy for pre­
viously racially discriminatory attendance patterns.” 427 
IJ.S. at 477.

Thus, just as the Spaui/lcr school lmard’s adherence lo 
the district court’s racially neutral student assignment 
plan fully redressed previously segregated admissions not­
withstanding a racial imbalance due lo the voluntary de­
cisions of private individuals, so loo does Ihe respon­
dents’ establishment of a nondiseriminatory system here



40
fully remedy Mir? prior constitutional violation regaulless 
of wlicllicr private nelivilies beyond their control result 
ill mi absence of racial mixing. In conclude nlbciwiso 
would be to equale racial balance wilb effective desegre­
gation; an equal ion Unit, as noted, .S wann  and <S/>anylei 
expressly rejected.

Tills principle obtains wilb equal force in situations 
where private choice, rather than official compulsion, is 
the moans by which attendance is determined. 1 lie bold­
ing and analysis in Green- and its companion cases 
{Raney V. Hd. of Edue., .‘Itll U.R. 413 (1908); Monroe V. 
Hoard of Commissioners, 391 II.ft. 400 (1908)) is lim­
ited to compulsory public education or other contexts 
where the government, rather Ilian the participant, tiadi- 
lionally makes the decision concerning where participants 
in the government program will attend. Thus, Greene 
rejection of “freedom of choice” student assignment plans 
simply reflects the familiar rule that a system which has 
not yet achieved unitary status may not take steps that 
foster segregation where there exists a reasonably avail­
able alternative that equally or belter serves the govern­
mental purpose purportedly being furthered. And, while 
the “freedom or choice" plan at issue in Green was plainly 
such a segregation-inducing device, the same is not true 
where, as here, such private choice is the norm.

In public elementary and secondary schools, the deci­
sion whether to attend and which school to attend is vir­
tually always made by the school district, not by the 
student. Accordingly, adoption of a “free choice” or 'free 
transfer” plan which is used or operates to perpetuate 
the separation of tin' races is impermissible, at least ab­
sent persuasive justification. Utilization of such ail un­
usual and administratively awkward admissions scheme 
ill preference! to the traditional, more efficient mandatory 
assignment system creates the inference that, at a mini­
mum, the defendant school district is not striving in good 
fitllli to establish a student attendance system that is 
truly free from racial considerations. In such circum­
stances, then, it. is the' school officials' abdication of tlicii 
normal responsibility to assign students that causes or at

eU
I,

lit « I

■ill III 11 * * i \v I
47

least fosters segregation. Such segrc^alioi| is thus di­
rectly attributable to the stale, not'to private actors. In 
short, a noil-unitary school el is! riqi’s 'ay ojVtlô i of a “free­
dom of choice” plan that predictably if' not designedly, 
results in greater segregation than j!be traditional and 
reasonably available mandatory 'aflsi^i^ent 'alternative 
violates liio district’s affirmative rc^popsi^ilitv to refrain 
from adopting policies that “serve lî  pmjp^tuatc or re­
establish the dual school system” ' {dolujiiftm Hd. of Educ. 
v. Vcniek, 443 U.S. at 400) in preference to Jess segrega­
tive and equally legitimate! policies. See .fyoexipi, 402 U.S. 
at 20-21; Columbus, 443 U.S. at 406-40^.' Iii oiir view, it 
was precisely for this reason that (he Tide choice ’ ami 
“free transfer” plans were struck down in Green and 
Monroe.

Noting that normal geographic zoning assignment was 
a "reasonably available” option that would greatly in­
crease integration, the Green court held that a school 
hoard's preference for an attendance scheme such as 
"freedom of choice” “may indicate a lack of good faith; 
and at the least if piaccs a heavy burden upon the Hoard 
to explain its preference for an apparently less elfective 
method.” 391 U.S. at 439. Since the use of a “free 
choice” plan in these circumstances clearly served no 
legitimate purpose particularly given the procedural and 
historical context in which the plan was adopted (id. at 
432-433, 449 n.fi), the school hoard in Green was unable 
to meet this burden. Indeed, “ ‘it is evident that here the 
Hoard, by separately busing Negro children across the 
entire county to the ‘Negro’ school, and the while children 
to the ‘while’ school, is deliberately maintaining a segre­
gated system which would vanish with noil-racial geo­
graphic zoning.’ ” 391 U.S. at 442 n.G, quoting How man
V. County Sellout Hoard, 382 F.2d 32(5, 332 (4th Oir. 
19(57) (concurring opinion).

In Monroe, this Court was even more explicit. In that 
case, the "free transfer” option allowing students to 
transfer after initial geographic assignment, “permitted 
the ‘considerable number’ of while or Negro students in 
at least two of the zones to return, at the implicit invila-

U



48
lion of llic Boanl, In Die coinforlnlile security of llie old, 
eslablislicd discriminatory pallcrn * * * no ullempt has 
been made lo justify Die transfer provision as a device 
designed lo meet ‘legitimate local problems’; rather, it 
patently operates as a device lo allow reseijrcyation of 
the rnces lo the extent desegregation would be achieved • 
bv geographically drawn zones.” SHU U.S. at 45!), quoting 
Goss V. l U l  «f Mur., 373 U.S. 083, 08!) (15)03) (emphasis 
in original).

No such constitutional infirmity attaches lo the continu­
ance of free choice in those situations where such choice 
is a traditional aspect of the government program or ac­
tivity. In contexts such as public .parks, higher educa­
tion and the 4-11 (Hubs here, participation or attendance 
in the slule activity is wholly voluntary in all respects. 
Unlike public schools, free choice as lo whether and where 
lo attend is a normal and important feature of llie sys­
tem—not, as in the public elementary and secondary 
school context, a newly discovered device that will clearly 
have a segregative elf eel. In such cases, a ti mis i lion to 
officially compelled assignments would constitute a fun­
damental alteration of the system. It would increase gov­
ernment regulation of private conduct by denying indi­
viduals the liberty to attend, for example, the park that 
is most convenient or the university best suited lo their 
educational needs. Accordingly, preservation of the par­
ticipants’ traditional "free choice” cannot reasonably be 
viewed as an act. of had faith or a device that oncotiinges 
or perpetuates segregation. To the contrary it scrvelsl 
important and legitimate ends.” Dayton ltd. of Kduc. v. 
Brinkman IDayton I I ) ,  443 t).S. 52(i, 538 ( 15)751).

Unlike the public schools in Green and Monroe, there­
fore, any lingering racial imbalance in the 4-11 and ex­
tension homemaker clubs here is not attributable to un­
justified segregative action by the government respond­
ents, but solely to decisions freely made by private actors. 
Thnt being so, neither Green nor Monroe suggests that 
the stale has an affirmative duty in such circumstances 
lo eliminate or restrict the discretion of private actors to 
achieve a greater racial balance. Nor has this Court evei

.1

I ! )
- '  l l | ' l i t

■ i mi ■ iog
suggested such a rule in any otherUtonteidifV Indeed, in 
the same term that Green and Monroe wetti decided, this 
Court summarily affirmed, over ■ dissent)) ia" three-judge 
court’s decision that those cases’ coiidetnnfeitibn of free­
dom of choice” plans was in a p p o s i te  din t h e 'higher educa­
tion context because admissions tlierdcarc (traditionally 
governed by private choice. Alabama State Teachers 
Ass’n, V. Alabama Public School A  Gdllage'Authority, 28!) 
F. Supp. 781 (M.l). Ala. l!)08)y alT’d," 8!)3 U.S. 400
( 1 5 ) 0 ! ) ) 1 ......... . i,».

Thus, Green did not hold that thb cohtiriualion of free 
choice is an inherent defect in a lucinlly imbalanced 
system, but only that the adoption ©f"BUdh'a scheme in 
llio public school context is impermissible if it impedes 
or frustrates desegregation. Any contrary interpretation 
of Green ’Van he supported only by drastic expansion of 
the constitutional right itself, an expansion without any 
support iu either constitutional principle or precedent. 
Mill then I, 418 IJ.R. at, 747. Such an understanding of 
Green would not only read into it a requirement for 
“mandatory integration” which Hint opinion expressly 
rejected (3!)I U.S. at 437), but also would bring that 
decision squarely into conflict with this Court’s estab­
lished precedent that no particular degree of racial mix­
ing is constitutionally required. Sec page 10, supra.

Of course, the Service undoubtedly could have sought 
to increase integration by attempting-to close one-race 
clubs, by denying club members the opportunity to join

«  For example, lids Court Issued n series of per curinm decisions 
following Ill-men which Invalidated segregation In various slate 
activities without any suggestion that the relevant public olticials 
must do more Ilian henceforth insure a nondlscrlndiialory admis­
sions policy, i.e., provide free choice. See Muir V. Louisville I'ark 
Theatrical Ass'n. 947 U.S. 071 (1054) (parks);  Mayor of Halti- 
tuorc v. Dawson, .'150 U.S. R77 (1955) (beaches and bathhouses); 
llolmes v. City of Atlanta, .150 U.S. 879 (1955) (golf courses); 
C.ayk V. Himmler, 152 U.S. 901 (1950) (public transportation).

« o r  course, a higher education system must tnke affirmative 
remedial action not only with respect lo admissions, hut also, for 
example, faculty, facilities, and lingering funding disparities before 
it will become unitary in nil respects.



r

50
the club of their choice or by discriminalorily excluding 
black and while children from clulm where their race 
predominates through preferential olhcr-race goals 
and quotas. We fail In perceive, however, why such 
actions aro in any way necessary In vindicate Ihc con­
stitutional rights of I hose persons whose unfettered access 
to government-supported programs is being so restricted. 
Where a slate lias unlawfully segregated railroad cars, 
for example, the slate is not constitutionally required to 
compel blacks to sit in the previously all-white railroad 
car or to restrict access to the car formerly reserved for 
blacks. Ily the same token, so long as I ho Service ensured 
equal access to the clubs and did not engage in practices 
that impeded desegregation, it. was not required to re­
strict persons’ normal discretion to join the club of their 
choice, even if those persons exercised their unfettered 
choice to join a club in which their race predominates.

CONCLUSION
For the foregoing reasons, the judgment of the court of 

appeals should be reversed in part, allirined in part, and 
remanded.

Respectfully submitted.

r:iiAtu,F.s fuifii 
Solicitor Cl cor m l

WM. HUAIIFOUD ItRYNOtJIS 
Assistant Attorney General

Cauoi.yn H. Klim-
Deputy Solicitor Clcncrnl

MlCIIAfil- Cauvin
Dcjioty Assistant Attorney General 

Wai.tku W. Haiinrtt
I I-OIIISK A. t-fi.UNfiU
, David It. Makiii.iostonb

,, i Attorneys

JANUAIIY l!)H(!
a « « «oviaM»KNr MINHN* n-ririi tmto 2nt3t

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