Wygant v. Jackson Board of Education Brief Amicus Curiae

    No. 84-1340

I f  t h e

Bnpxmx (Eaart at tip Matted ^tateu
October T erm, 1984

W endy W ag ant , et al.,
Petitioners,

v.

Jackson B oard of E ducation, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE FOR THE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC.

J ulius L eV onne Chambers 
R onald L. E liis 
P enda Hair 
E ric Schnapper*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Counsel for Amicus

^Counsel o f Record



QUESTIONS PRESENTED

(1) Was the denial of petitioners' 
motion for summary judgment an appealable 
final order under 28 U.S.C. § 1291?

(2) Did the courts below correctly 
deny petitioners' motion for summary 
judgment?

(3) Was petitioners' complaint pro­
perly dismissed?

i



TABLE OF CONTENTS

QUESTIONS PRESENTED ............... i
INTEREST OF AMICUS ................ 1
STATEMENT OF THE CASE ............. 2
SUMMARY OF ARGUMENT ............... 4
ARGUMENT ..........................  9

I. The District Court's
Denial of Petitioner's 
Motion for Summary 
Judgment Is Not An 
Appealable Order .......  9

II. The District Court 
Properly Denied 
Petitioners' Motion
for Summary Judgment .... 13
(1) The Contentions

of Petitioners ....  14
(2) The Contentions 

of the Department
of Justice . ........  20

II. The District Court 
Properly Dismissed 
Petitioners' Com­
plaint ..................  42

CONCLUSION ........................  61

Page

ii



TABLE OF AUTHORITIES
Cases Page
Adickes v. S.H. Kress & Co.

398 U.S. 1 44 ( 1 970) .........  14
Association Against Discri­

mination v. City of 
Bridgeport, 20 FEP Cas.
985 (D. Conn. 1 979) .......... 37

Berkman v. City of New York,
705 F.2d 584 (2d Cir.
1983) ......... ..............  36

Brown v. Board of Education,
347 U.S. 483 ( 1954) .........  21

Califano v. Webster, 430 U.S.
31 3 ( 1 977) ...................  8,34

City of Cleburn v. Cleburn 
Living Center, Inc.
52 U.S.L.W. 5022 ............  44

Fullilove v. Klutznick, 448 3,4,31
U.S. 448 ( 1980) .............. 33,50

Gialde v. Time, Inc., 480 
F. 2d 1295 (8th Cir.
1973) ........................  1 0

Gladstone Realtors v.
Be 1Iwood, 441 U.S. 91 
( 1979) ..........     29

Hart v. Overseas Nat. Airways,
Inc., 541 F .2d 386 (3d
Cir. 1976) .......   10

- iii -



Cases Page

Holt Civic Club v. Tuscalosa,
439 U.S. 60 (1978) ..........  42

Hunter v. Erickson, 393 U.S.
385 ( 1 969) ...................  41

Kirkland v. New York State 
Dept, of Corrections,
628 P.2d 796 (2d Cir.
1980) ........................  36

Matthews v. IMC Mint Corp.,
542 F.2d 544 (10th Cir.
1976) ........................  10

McKenzie v. Sawyer, 684 F.2d
62 (D.C. Cir. 1982) .........  35

Milliken v. Bradley, 433 U.S.
267 ( 1977) ..................  28

Mississippi University for
Women v. Hogan, 458 U.S.
718 ( 1982) ..................  44

Morgan v. Kerrigan, 530 F.2d
431 (1st Cir. 1976) .........  36

Morrow v. Crisler, 491 F.2d
1 053 ( 5th Cir. 1974) .......  35

NAACP v. Allen, 493 F.2d
614 (5th Cir. 1974) ..........  36

NAACP v. Beecher, 679 F.2d
965 (1st Cir. 1982) ..........  35

- iv -



Cases Page
Regents of the University

of California v. Bakke,
438 U.S. 265 ( 1978) ....... . . 3,4,41

Rogers v. Paul, 382 U.S.
198 (1965) ...................  29

Schlesinger v. Ballard, 419
U.S. 498 ( 1 975) ......... . 8,34

Segar v. Smith, 738 F.2d
1 249 (D.C. Cir. 1984) .......  37

Swann v. Charlotte-Mecklen- 
berg School District,
402 U.S. 1 ( 1971 ) ...........  32,39

Taylor v. Jones, 653 F.2d
1 193 (8th Cir. 1981 ) ........  35

United States v. Florian,
312 U.S. 656 ( 1941 ) .........  6,9

United Steelworkers of 
America v. Weber,
443 U.S. 193 ( 1 979) .........  3,4

Warth v. Seldin, 422 U.S.
490 ( 1975) ...................  32

Williams v. Vukovich, 720 
F. 2d 909 (6th Cir.
1983) .... ...................  36

v



Page

Statutes
28 U.S.C. § 1 292(a) (1 ) ............ 10
12 Stat. 650 ......................  49
12 Stat. 796 ......................  49
13 Stat. 173 ......................  46
13 Stat. 507 ......................  46,47
13 Stat. 514 ......................  49
14 Stat. 368 ......................  49
15 Stat. 20 ...................  50
15 Stat. 26 ...................  50

Legislative Materials
Cong. Globe, 38th Cong............ 52
Cong. Globe, 39th Cong............ 45,48

51,53
Cong. Globe, 40th Cong............. 51,52
House Exec. Doc. 11, 39th

Cong., 1st Sess. (1865) ..... 48
Messages and Papers of the

President, viii (1914) ...... 51

vi



Page

Other Authorities
Rule 12(b)(6), Federal Rules

of Civil Procedure ..........  4,43
Rule 56, Federal Rules of

Civil Procedure .............. 13

Wright and Miller, Federal
Practice and Procedure ......  10

"Affirmative Action and the 
Legislative History of 
the Fourteenth Amendment,"
71 U.Va.L.Rev. (June
1985) ........ 7777........... 45

v n



No. 84 -1 3 4 0

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1984

WENDY WYGANT, et al.,
Pet itioners,

v.
JACKSON BOARD OF EDUCATION, et al. ,

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC.

INTEREST OF AMICUS

The NAACP Legal Defense and Educa­
tional Fund, Inc., is a non-profit 
corporation established under the laws of 
the State of New York. It was formed to



2

assist black persons to secure their 
constitutional rights by the prosecution 
of lawsuits. For many years attorneys for 
the Legal Defense Fund have represented 
parties in litigation before this Court 
and the lower courts involving a variety 
of issues regarding racial discrimination 
and race conscious affirmative action 
plans. The parties have consented to the 
filing of this brief, and letters of 
consent have been filed with the Clerk.

STATEMENT OF THE CASE

The instant case, unlike previous 
affirmative action disputes heard by this 
Court, was never tried on the merits. 
Shortly after the complaint was filed, the 
parties filed cross motions for summary 
judgment; the district court granted 
respondents' motion and dismissed peti­
tioners' federal claims. (J.A. 5). No



3

answer has ever been filed in this case, 
and no discovery was ever taken. Neither 
party submitted any affidavits or documen­
tary evidence relating to the purpose of 
the disputed layoff clause, Article XII, 
or to the events leading to the adoption 
of Article XII. Nor did those parties 
adduce materials from which the Court 
could ascertain how many white and 
minority teachers might have been laid off 
in any given year but for Article XII. 
Thus the record in this case is extremely 
limited, and is devoid of evidence as to 
the background of and justifications for 
the disputed layoff clause, evidence of 
the sort which several members of the 
Court regarded as of decisive importance 
i n Fullilove v. Klutznick, 448 U.S. 448 
(1980), United Steelworkers of America v. 
We*3er i 443 U.S. 93 (1979), and Regents of 
the University of California v. Bakke, 438
U.S. 265 (1978).



4

The question presented by this appeal 
is whether the instant litigation, unlike 
Fullilove, Weber and Bakke, should be 
decided without any trial, and without any 
determination of the actual purposes, 
importance or impact of the race conscious 
plan at issue. The legal issues raised by 
the cross motions for summary judgment are 
quite dissimilar, since those two motions 
must be resolved on the basis of complete­
ly different assumptions regarding the as 
yet unlitigated factual issues. Yet a 
third set of issues are raised by respon­
dents' motion, under Rule 12(b)(6), to 
dismiss the complaint for failure to state 
a claim on which relief could be granted.

SUMMARY OF ARGUMENT

Although this case was decided on 
cross motions for summary judgment, almost 
all of the potentially important facts



5

remain hotly contested. Both parties 
assert that there are no material issues 
of fact in dispute, but petitioners and 
respondents offer radically different 
accounts of what the purportedly undis­
puted facts are. Respondents insist the 
school board had a history of intentional 
racial discrimination which the challenged 
layoff clause, Article XII, was adopted to 
redress; petitioners deny the existence of 
any such history or remedial purpose. 
Respondents assert that the retention of a 
substantial number of minority teachers 
under Article XII was essential to the 
effective education of both minority and 
white students; petitioners insist Article 
XII had the effect of impairing the 
education of those students. Respondents 
contend that, in the absence of Article 
XII, layoffs would have drastically 
reduced the number of minority teachers in 
Jackson; petitioners claim the absence of



6

Article XII would have had little effect 
on the proportion of minority teachers.

This appeal does not present a record 
on which any of these or other disputed 
issues of fact can be resolved; indeed, it 
presents virtually no record at all. 
Neither party sought to offer in the 
district court any affidavits, documents, 
or other evidentiary material throwing any 
light on the purposes of or need for 
Article XII. Accordingly, the issue posed 
by this case in its present posture is 
whether the constitutionality of Article 
XII can be decided without any need for a 
trial, and without resolving any of the 
obvious disputes of fact regarding the 
purposes and impact of that disputed 
layoff provision.

The action of the district court in 
denying petitioners' motion for summary 
judgment is not an appealable final order. 
United States v. Florian, 312 U.S. 656



7

(1941). This Court therefore lacks 
jurisdiction to decide whether the denial 
of petitioners' motion was correct.

Petitioners, in urging that their 
motion for summary judgment should have 
been granted, rely largely on assertions 
of their view of the disputed facts. The 
Solicitor General argues that the Four­
teenth Amendment requires that any race 
conscious affirmative action plan must (1) 
include an advance individualized factual 
determination that each beneficiary was 
the victim of past discrimination, and (2) 
provide for individualized adjustment of 
level of benefit for each beneficiary, 
based on the particular type and amount of 
discrimination to which that beneficiary 
was subject. On this view, Article XII, 
and virtually all federal, state, and 
local race conscious programs would be 
unconstitutional, regardless of the 
purpose for which they may have been



8

adopted, or the compelling state interest 
which they might serve.

This Court, however, has repeatedly 
approved voluntary programs adopted to 
redress past discrimination which contain 
no such individualized treatment of 
beneficiaries. Califano v. Webster, 430 
U.S. 313 (1977); Schlesinger v. Ballard, 
419 U.S. 498 (1975). Government agencies 
have traditionally been accorded wider 
latitude in correcting problems of past 
discrimination than might be appropriate 
in a judicial decree. Even in framing 
such decrees, the courts are not required 
to use the surgical precision demanded by 
the Solicitor; in school cases, for 
example, there is no requirement that the 
courts attempt the impossible task of 
predicting precisely which school each 
affected student would have attended but 
for past discrimination.



9

The complaint does not state a claim 
on which relief can be granted. The 
complaint itself expressly alleges that 
Article XII was adopted for a legitimate, 
non-invidious purpose —  the redressing of 
past discrimination. The legislative 
history of the Fourteenth Amendment makes 
clear that race conscious actions taken 
for such a purpose do not violate the 
Equal Protection clause.

ARGUMENT
I.

THE DISTRICT COURT'S DENIAL OF 
PETITIONER'S MOTION FOR SUMMARY 
JUDGMENT IS NOT AN APPEALABLE 
ORDER

The action of the district court, 
insofar as it denied petitioners' motion 
for summary judgment, is not a final 
appealable order. United States v. 
Florian, 312 U.S. 656 (1941), rev'g 114
F . 2d 990 ( 7th Cir. 1 940). An order



10

denying summary judgment is not a final 
adjudication of the movant's claims, but 
merely defers that adjudication until 
after trial. Wright and Miller, Federal 
Practice and Procedure § 2715. For that 
reason the courts of appeals have consis­
tently held that the appellate courts lack
jurisdiction to review a denial of summary 

1
judgment.

Petitioners' original motion contain­
ed a four word pro forma prayer for 
"injuctive relief"; had a request for an 
injunction been seriously and consistently 
pursued, jurisdiction on appeal would 
exist under 28 U.S.C. § 1292(a)(1). But 
petitioners did not do so. Petitioners' 
motion neither alleged the irreparable 
injury that is a prerequisite to any

See, e.g., Matthews v . IMC Mint Corp., 542 
F . 2d 544 ( 1 0th Clr. 1976); Hart v.
Overseas Nat. Airways, Inc., 541 F.2d 386 
(3d Cir. 1976); Gialde v. Time, Inc., 480 
F.2d 1295 (8th Cir. 1973).



injunction, nor specified what injunctive 
relief they were seeking. The request for 
relief in petitioners' district court 
brief made no mention of any injunction, 
and petitioners did not raise the issue at 
oral argument in that court. The district 
court clearly did not understand there to 
be a pending request for any injunction; 
the court's opinion refers to no such 
request, and the judgment does not purport 
to deny any motion for an injunction. 
Petitioner's brief in the court of appeals 
neither referred to any earlier request 
for injunctive relief nor asked the 
appellate court, if it reversed, to award 
such relief. In this Court neither the 
Petition for Writ of Certiorari nor the 
Brief for Petitioners contain any refer­
ence to a past or present request for an 
injunction, and the only relief requested 
in petitioners' brief is limited to 
damages, costs, and attorneys fees. Thus



12

the rejection of petitioners' motion for 
summary judgment cannot be deemed a denial 
of injunctive relief, and any claim to the 
contrary has long ago been abandoned.

Under these circumstances, the only 
issue over which this Court has jurisdic­
tion is whether the lower courts erred in 
dismissing petitioners' complaint, since 
only that dismissal, but not the rejection 
of petitioners' motion for summary 
judgment, was an appealable final order. 
If this Court concludes that that dismis­
sal was erroneous, such a holding would 
resolve the only appealable issue in this 
case, and the case would have to be 
remanded for trial. This Court lacks 
jurisdiction to proceed further and decide 
whether petitioners' own motion for 
summary judgment should have been granted. 
Thus the sole question which is technical­
ly before this Court is not whether



13

Article XII is constitutional, but only 
whether petitioners are entitled to a 
trial regarding its constitutionality.

For this reason the Court is without 
jurisdiction to decide whether peti­
tioners' motion for summary judgment was 
properly denied. We nonetheless set forth 
below our views on that issue.

II.
THE DISTRICT COURT PROPERLY
DENIED PETITIONERS' MOTION FOR
SUMMARY JUDGMENT

Petitioners would have been entitled 
to summary judgment at this early stage in 
the litigation only if the district court 
could have determined that "there is no 
genuine issue as to any material fact" and 
that petitioners were "entitled to a 
judgment as a matter of law." Rule 56(c), 
Federal Rules of Civil Procedure. In 
acting on such a motion any doubt as to



14 -

the existence of a genuine issue of 
material fact must be resolved against 
petitioners as the moving party. Adickes 
v. S, H. Kress & Co., 398 U.S. 144, 157-59 
( 1 970) .

{1) The Contentions of Peti- 
tioners " —

Petitioners contend, first, that the 
actual purpose of Article XII "is to 
achieve 'parity1 between the constantly 
changing percentages of minority students
and faculty." (P. Br. 22; see also id. at
10, 17-18). Petitioners can point to
nothing in the record, however, suggesting 
that there is no "genuine issue" as to the 
truth of this claim; indeed, there is 
nothing in the record which even suggests 
such a purpose. Petitioners' own Com­
plaint alleged purposes underlying Article 
XII which had nothing to do with "achiev­
ing 'parity'". (Complaint, 1M| 20, 32, 33).



15

Petitioners assert, in the alterna­
tive, that Article XII was not adopted to 
correct past acts of discrimination by the 
respondent school board, (P. Br. 7, 10, 
30, 40). Again, however, since the record 
is silent as to the purpose of Article 
XII, the Court cannot assume that remedy­
ing such discrimination was not among the 
goals of that provision. Indeed, in the 
district court respondents expressly 
asserted that Article XII was adopted at
least in part to "provide an effective

2
remedy for past discrimination."

Even if there was such a remedial 
purpose, petitioners object, it was 
unsupportable, since "the record below 
does not and cannot support any ... 
finding" of past discrimination. (P. Br.

Defendants' Brief in Support of Its Motion 
for Summary Judgment, p. 15; see also id. 
at 5 ("the new layoff policy was partially 
designed to correct past discriminatory 
policies").



16

12; see also id. at 11, 35). If this case
had come to this Court following a trial
on the merits, the sufficiency of the
record to support material contested
factual findings might be of importance.
But on a motion for summary judgment the
burden was on the moving party, here
petitioners, to demonstrate the absence of
a genuine issue of fact regarding past
discrimination. Petitioners, however, did
not do so; respondents, far from agreeing
that the board had never discriminated
against blacks in the past, asserted
precisely the opposite and insisted that
they could prove at trial that such

3
discrimination had occurred.

Petitioners alleged in their com­
plaint that Article XII was adopted, at 
least in part, because respondents 
believed that the presence of a substan-

3 Defendants' Brief in Support of Its Motion 
for Summary Judgment, p. 35.



17

tial number of minority teachers was 
essential to providing students, particu­
larly minority students, with an effective 
education. (Complaint, 32). In their 
briefs in this Court petitioners further 
contend that, as a matter of fact, neither 
Article XII nor the presence of minority 
teachers was required for the achieving 
that admittedly essential goal. Peti­
tioners assert, for example, that the 
particular black school children attending 
the Jackson schools have in fact been un­
scarred by the nation's heritage of 
discrimination, are in no need of black 
role models on the school's staff, and 
would in no way suffer if there did not 
happen to be any black teachers at those 
schools. (P. Br. 37-39). As before, these 
factual contentions, if sustained at 
trial, might provide some support for 
petitioners' claims, but on a motion for



18

summary judgment the Court is required to 
assume that the facts are otherwise. 
Similarly, petitioners' objection that 
respondents "did not offer a shred of 
evidence in the courts below to support 
this rationale" (P. Br. 37), is simply 
beside the point; on a motion for summary 
judgment the opposing party is under no 
obligation to adduce evidence on any issue 
until and unless the moving party has done 
so.

Petitioners argue that, had Article 
XII not been in effect during the 1981-82 
school year, the layoffs implemented in 
that year would have reduced the propor­
tion of minority teachers only to 11%. (P. 
B r . 3 1 and n. 27). At the summary 
judgment hearing, however, respondents 
asserted precisely the opposite, contend­
ing that the impact of Article XII was far 
more substantial, and that without it the 
school system "would have ended up with



19

almost no minority teachers at all." This 
factual dispute also cannot be resolved on 
the present record; under the collective 
bargaining agreement layoffs are made, not 
on the basis of district wide seniority, 
but on the basis of seniority among the 
teachers holding a specific position at a 
particular school. (J.A. 23-28). Thus a 
music teacher at one school might be laid 
off even though he or she had more 
seniority than a physics teacher at that 
school, or even a music teacher at another 
school. It is therefore impossible to 
reconstruct the impact of any particular 
layoff without knowing the nature and 
school of the positions eliminated, and 
the race and school of every other teacher 
in the system with that particular

4

Transcript of hearing of February 23, 
1982, p. 21; see also id. at 20 ("Absent 
that language, we wouldn't have any 
minority teachers....").



20 -

specialty. None of that information is in 
the record.

B. The Arguments of the Department 
of Justice

(1) The complaint in this action 
alleged that one of the purposes of 
Article XII was to assure the retention in 
the Jackson school system of a substantial 
number of minority teachers whose presence 
was thought to be essential to the 
effective education of minority students. 
(Complaint, 1( 32). The Justice Department 
contends that such a purpose could not 
sustain a race conscious measure such as 
Article XII, offering in support of this 
contention an essentially factual argu­
ment .

It is important to note at the outset 
the limited nature of the Justice Depart­
ment's contentions. First, the Department 
does not suggest that the education of



21

public school students is inherently so 
unimportant that it could not provide a 
basis for a race conscious plan. On the 
contrary, the Solicitor General apparently 
acknowledges that providing for the 
effective education for all students, 
particularly those affected by past 
patterns of discrimination, is a matter of 
compelling importance. Education
remains, as it was at the time of Brown 
v. Board of Education, "perhaps the most 
important function of state and local 
governments," and the impact of societal 
discrimination on minority students "may 
affect their hearts and minds in a way 
unlikely ever to be undone." 347 U.S. 
483, 493-94 (1954). Second, the
Department does not question the bona 
fides of the school officials and 
teachers' union that adopted Article XII; 
on the Solicitor's view those who approved 
that provision acted out of genuine,



22

albeit misguided, concern for the 
interests of the school children of the 
city of Jackson. Third, the Justice 
Department does not offer any general 
objection to the educational expertise of 
either the administrators or teachers in 
the Jackson school system. On all other 
matters of curriculum and staffing the 
Solicitor General would not presume to 
second guess the judgment of local 
officials who ordinarily bear the respon­
sibility for assessing and meeting the 
educational needs of Jackson school 
children.

In this instance, however, it is the 
view of the Solicitor General that those 
administrators and teachers, despite their 
general expertise and familiarity with 
local circumstances, and although acting 
in the best of faith, have misapprehended 
the educational needs of Jackson school 
children. Local authorities may believe



23

that minority students in Jackson may
learn more if some of their teachers are 

5
minorities, but the Solicitor General 
asserts that they are mistaken, and 
objects that "no evidence for such an 
empirical effect was ever suggested, let 
alone examined and subjected to criticism 
and refutation" (U.S. Br. 5) (emphasis 
added). At the present stage of this 
proceeding, however, no "evidence" from 
respondents was called for, since peti­
tioners adduced no affidavits or other 
material bearing on this factual issue.

The Solicitor also contends that, 
although minority teachers may well 
provide invaluable role models for 
minority students, the retention of such 
teachers under Article XII actually

In a school system, such as Jackson, with 
approximately 15% minority teachers, a 
minority student is likely to have at most 
only a single minority teacher during his 
or her critical elementary school years.



24

impairs the education of minority students 
because Article XII operates as an object 
lesson in the evils of affirmative action 
(U.S. Br. 23). Again however, no eviden­
tiary material was offered in the district 
court to compel or support this contention 
that Article XII has in fact adversely 
affected the education of minority 
students. For his conclusions regarding 
the effect of Article XII, the Solicitor 
relies, not on any evidence in the record 
regarding its impact on present and former 
Jackson school children, but on a 1972 
book by a California economist and a 1974 
article by an Illinois law professor. 
(U.S. Br. 23 and n. 39. ) Neither of these 
materials contains any reference to 
Jackson or Article XII; they offer, 
rather, merely general assertions about 
the effect of "all racial preferences" on 
all blacks and are based, not on any 
empirical evidence, but only on the



25

a u t h o r s '  p h i l o s o p h i c a l  v i e w s  a b o u t  what  

such p r e f e r e n c e s  " a r e  r e a l l y  s a y i n g . "  

( I d . )  Such m a t e r i a l s  are  c l e a r l y  i n s u f f i ­

c i e n t  t o  s u p p o r t  a h o l d i n g  t h a t  t he r e  i s  

no g e n u i n e  i s s u e  o f  f a c t  a s  t o  the  

c o r r e c t n e s s  o f  the S o l i c i t o r ' s  p e d a g o g i c a l  

t h e o r i e s .

The S o l i c i t o r  G e n e r a l  a l s o  a r g u e s  

t h a t  t h e  b e n e f i t s  t h a t  f l o w  f rom t he  

p r e s e n c e  o f  m i n o r i t y  t e a c h e r s  can be  

ac hi eved  i n  o t h e r  w a y s .  I t  s i m p l y  would  

not  m a t t e r  i f  l a y o f f s  e l i m i n a t e d  a l l  the  

b l a c k  t e a c h e r s  i n  a s c h o o l  o r  t h r o u g h o u t  

t h e  s y s t e m ,  he a s s e r t s ;  t h e  r e m a i n i n g  

a l l - w h i t e  f a c u l t y ,  t h e  S o l i c i t o r  a r g u e s ,  

c o u l d  s i m p l y  o f f e r  c o u r s e s  on b l a c k  

h i s t o r y  and encourage s u c c e s s f u l  m i n o r i t y  

a d u l t s  from o t h e r  w a l k s  o f  l i f e  t o  v i s i t  

t h e  J a c k s o n  s c h o o l s  t o  show J a c k s o n  

s t u d e n t s  t h e  o p p o r t u n i t i e s  t h a t  e x i s t  

e l s e w h e r e .  The S o l i c i t o r  G e n e r a l  t h i n k s  

i t  a r e l a t i v e l y  s imp l e  mat ter  f o r  a white



26

teacher to understand what it is 1 ike to 
grow up black in the United States, and to 
act in such a manner that black students 
will relate to him or her in the same 
manner that they would relate to a black 
teacher. The Solicitor's pedagogical 
theory, however, was never advanced by 
petitioners in the district court, and 
certainly does not constitute an uncon­
tested fact upon which summary judgment 
could be based.

(2) The complaint in this action 
also alleged that Article XII was adopted 
to correct or compensate for societal 
discrimination. The Justice Department 
accepts this as a legitimate governmental 
goal, and agrees that race conscious 
measures can at times be used to achieve 
that end. But the Department argues that 
there is only one form of constitutionally 
acceptable race conscious action, a model 
which requires a highly individualized



27

a s s e s s m e n t  o f  t h e  e x t e n t  t o  which each  

p o t e n t i a l  m i n o r i t y  b e n e f i c i a r y  has  

s u f f e r e d  from d i s c r i m i n a t i o n  i n  the p a s t .  

We a g r e e  t h a t  t h e  J u s t i c e  D e p a r t m e n t ' s  

p l a n  would be c o n s t i t u t i o n a l ,  but  contend  

t h a t  t h i s  i s  not  t h e  o n l y  form o f  r a c e  

c o n s c i o u s  a c t i o n  p e r mi t t ed  by the C o n s t i ­

t u t i o n .

In o r d e r  t o  a s s e s s  t h e  g o v e r nme n t ' s  

c o n t e n t i o n ,  i t  i s  e s s e n t i a l  t o  r e c o g n i z e  

what t h e  J u s t i c e  De pa r t m en t  i s  not  

a r g u i n g .  F i r s t ,  t he  Department  does  not  

a s s e r t  t h a t  t h e  F o u r t e e n t h  Amendment  

f o r b i d s  a s t a t e  o r  l o c a l i t y  f r om t a k i n g  

race  c o n s c i o u s  a c t i o n  to  r e d r e s s  d i s c r i m i ­

n a t i o n  by t h i r d  p a r t i e s .  In  B a k k e , 

J u s t i c e  P o w e l l  a s s e r t e d  t h a t  t h e  s t a t e s  

have  " a  l e g i t i m a t e  and s u b s t a n t i a l  

i n t e r e s t  i n  a m e l i o r a t i n g ,  or  e l i m i n a t i n g  

where f e a s i b l e ,  t h e  d i s a b l i n g  e f f e c t s  o f  

i d e n t i f i e d  d i s c r i m i n a t i o n , "  438  U . S .  at  

3 0 7 ,  and t h e  S o l i c i t o r  G e n e r a l  d o e s  not



28

a r g u e  o t h e r w i s e .  T h u s ,  J a c k s o n  c o u l d  

c e r t a i n l y  p r o v i d e  s p e c i a l  e d u c a t i o n a l  

a s s i s t a n c e  t o  m i n o r i t y  s t u d e n t s  who moved 

to  t h a t  c i t y  from s c h o o l  d i s t r i c t s  where  

they were the v i c t i m s  o f  d i s c r i m i n a t i o n  in  

e d u c a t i o n .  See M i l l i k e n  v.  B r a d l e y , 433 

U . S .  267  ( 1 9 7 3 ) .  S i m i l a r l y ,  the  r e s p o n ­

dent  board could  p r o v i d e  s p e c i a l  e m p l o y ­

ment b e n e f i t s  f o r  t e a c h e r s  who had 

s u f f e r e d  the e f f e c t s  o f  e a r l i e r  d i s c r i m i ­

n a t i o n  i n  e d u c a t i o n  o r  employment .  S t a t e  

o f f i c i a l s  s i n c e  t h e  d a y s  o f  t h e  u n d e r ­

gr ound  r a i l r o a d  have  b e e n  p r o v i d i n g  aid  

and r e d r e s s  f o r  the v i c t i m s  o f  d i s c r i m i n a ­

t i o n  by o t h e r s ,  and i t  i s  i n c o n c e i v a b l e  

t h a t  t h e  f r a m e r s  o f  t h e  F o u r t e e n t h  

Amendment i n t e n d e d  t o  f o r b i d  such p r a c ­

t i c e s  .

S e c o n d ,  t h e  S o l i c i t o r  G e n e r a l  d o e s  

not  s u g g e s t  t h a t  t h e  i n j u r i e s  which a 

s t a t e  or l o c a l i t y  may undertake to  r e d r e s s  

a r e  l i m i t e d  t o  t h o s e  harms which f l o w



29

i m m e d i a t e l y  and d i r e c t l y  from a c t s  o f  

d i s c r i m i n a t i o n .  The S o l i c i t o r  r e c o g n i z e s ,  

f o r  e x a m p l e ,  t h a t  s y s t e m a t i c  d i s c r i m i n a ­

t i o n  a g a i n s t  b l a c k  a d u l t s  may d i s c o u r a g e  

o r  d e m o r a l i z e  c h i l d r e n ,  and t h a t  t h a t  

i n d i r e c t  but  ver y  r e a l  impact i s  one which 

a s t a t e  can and s h o u l d  a t t e m p t  t o  undo.  

The e x p e r i e n c e  o f  t h i s  Court  and the lower  

c o u r t s  has r e p e a t e d l y  demonstrated t h a t  as  

a p r a c t i c a l  m a t t e r  t h e  s e c o n d a r y  and 

i n d i r e c t  e f f e c t s  o f  r a c i a l  d i s c r i m i n a t i o n  

may o f t e n  c a u s e  s e v e r e  and e n d u r i n g  

i n j u r i e s .  R o g e r s  v .  P a u l , 382  U . S .  98 ,  

2 0 0  ( 1 9 6 5 )  ( e f f e c t  on s t u d e n t s  o f  f a c u l t y  

s e g r e g a t i o n ) ; G l a d s t o n e  R e a l t o r s  v .  

B e l l w o o d , 441 U . S .  91 ( 1 9 7 9 )  ( e f f e c t  on 

w h i t e s  o f  h o u s i n g  d i s c r i m i n a t i o n  a g a i n s t  

b l a c k s )  .

But w h i l e  t h e  s t a t e s  a r e  f r e e  t o  

engage in race  c o n s c i ou s  a c t i o n  to a i d  the  

v i c t i m s ,  d i r e c t  or  i n d i r e c t ,  o f  i t s  own or  

t h i r d  p a r t y  d i s c r i m i n a t i o n ,  t h e  S o l i c i t o r



30

insists that such assistance may take one 
and only one form. Some sort of indivi­
dualized consideration must be given, the 
Solicitor urges, to each individual who is 
the intended beneficiary of an affirmative 
action plan, to assure that he or she was 
in fact the victim of past discrimination, 
and to calculate the appropriate amount of 
voluntary redress possible. Once that 
analysis is completed, all victims of past 
discrimination must be treated alike. 
Article XII deviates from the Justice 
Department plan, and in the Department's 
view is thus defective, in three respects: 
first, it does not guarantee that every 
minority beneficiary is a victim of past 
third party discrimination; second, the 
benefits afforded to any individual by 
Article XII are not based on the extent of 
his or her particular past injuries; and 
third, Article XII protects only some but 
not all minority teachers who were the



31

victims of past discrimination. The 
Justice Department does not urge that 
utilization of its proposed approach would 
have prevented the laying off of the white 
teachers who are the petitioners in this 
case. Indeed, it is of course quite 
possible that under the Justice Department 
plan even more minority teachers would 
have been protected, and even more white 
teachers laid off.

The Justice Department's argument is 
insufficent for several reasons to justify 
the granting of summary judgment. First, 
this case, like the attack on the minority 
set-aside provision in Fullilove v. 
Klutznick, 448 U.S. 448 (1980), is only a 
facial constitutional challenge to Article 
XII; the petitioners do not allege that 
the minority beneficiaries of Article XII 
were not the victims of past societal 
discrimination, but argue that Article XII 
is unconstitutional regardless of the



32

background of the minority teachers who 
were benefitted by it. But if the 
benefits of Article XII in fact fell upon 
a constitutionally appropriate group of 
minority teachers, the failure of respon­
dents to use the approach preferred by the 
United States neither affected the outcome 
of the disputed layoffs nor caused 
petitioners any injury in fact. Warth v. 
Seldin, 422 U.S. 490 (1975).

The primary argument advanced by the 
Justice Department in support of its 
proposed prototype of affirmative action 
is that this proposal resembles the type 
of relief which a court might provide for 
past discrimination on the part of the 
respondent school board. But this Court 
has repeatedly held that government 
authorities are free to take voluntary 
race conscious action that exceeded the 
relief which a court might order in an 
adversarial proceeding. Swann v .



33

Charlotte-Mecklenburg School District, 402 
U.S. 1, 16 (1971). The minority set-aside 
program upheld in Fullilove v. Klutznick 
far exceeded in scope and type any remedy 
that a court might have ordered to redress 
past discrimination against minority 
contractors.

These differing approaches to court 
ordered and voluntary race conscious plans 
reflect critical distinctions between the 
judicial process on the one hand and the 
legislative and political processes on the 
other. Courts are particularly well 
equipped to examine in detail the specific 
circumstances of limited numbers of 
individual claimants, but can often look 
only to traditional precepts of law or 
equity to strike the proper balance 
between the interests of whites and 
minorities. Elected officials, on the 
other hand, frequently must take actions 
affecting such large numbers of indivi­



34

d u a l s  t h a t  c o n s i d e r a t i o n  o f  i n d i v i d u a l  

c l a i m s  and c a s e s  i s  s i m p l y  i m p o s s i b l e ;  

e x e c u t i v e  and l e g i s l a t i v e  o f f i c i a l s  o f t e n  

must govern by c l a s s i f i c a t i o n  i f  t h e y  ar e  

t o  g o v e r n  a t  a l l .  Thus whi l e  the United  

S t a t e s  i n  t h i s  c a s e  i n s i s t s  t h a t  t he  

s l i g h t  d e g r e e  o f  o v e r i n c l u s i o n  or  under­

i n c l u s i o n  would be i n t o l e r a b l e ,  t h i s  Court  

has r e p e a t e d l y  r e j e c t e d  s i m i l a r  a t t a c k s  on 

the over  and u n d e r i n c l u s i v e n e s s  o f  f e d e r a l  

and s t a t e  l aw s ,  i n s i s t i n g  t h a t  the s o r t  o f  

s u r g i c a l  p r e c i s i o n  h e r e  demanded by t he  

J u s t i c e  Department  i s  o f t e n  i m p o s s i b l e  t o  

a c h i e v e .  In b o t h  S c h l e s i n g e r  v .  B a l l a r d , 

419  U . S .  498  (1 9 7 5 )  and C a l i f a n o  v .  

W e b s t e r , 430  U . S .  313  ( 1 9 7 7 ) ,  t h i s  Court  

u p h e l d ,  a t  t h e  b e h e s t  o f  t h e  S o l i c i t o r  

G e n e r a l ,  s t a t u t e s  which p r o v i d e d ,  i n  order  

t o  r e d r e s s  p a s t  d i s c r i m i n a t i o n ,  compensa­

t o r y  t r e a t m e n t  f o r  a l l  women; n e i t h e r  o f  

t h o s e  s t a t u t e s  r e q u i r e d  or  p e r m i t t e d  any 

i n d i v i d u a l i z e d  i n q u i r y  i n t o  w he t h e r



35

p a r t i c u l a r  b e n e f i c i a r i e s  had i n  f a c t  been  

the v i c t i m s  o f  such p a s t  d i s c r i m i n a t i o n .

M o r e o v e r  i t  i s  i n c o r r e c t  to  s u g g e s t  

t h a t  race c o n s c i o u s  j u d i c i a l  d e c r e e s  a r e  

o r  s h o u l d  be f ramed t o  b e n e f i t  o n l y  

i d e n t i f i a b l e  v i c t i m s  o f  p a s t  d i s c r i m i n a ­

t i o n .  The l o w e r  c o u r t s  have  f r e q u e n t l y  

found i t  n e c e s s a r y  t o  i s s u e  suc h d e c r e e s  

i n  order  to  p r e v ent  f u t u r e  d i s c r i m i n a t i o n .  

Thus i n  c a s e s  where d i s t r i c t  j ud ges  have 

concluded t h a t  an employer would not  obey  

a g e n e r a l  i n j u n c t i o n  a g a i n s t  employment  

d i s c r i m i n a t i o n ,  quota h i r i n g  o r  p r o m o t i o n  

o r d e r s  have  b e e n  r e q u i r e d  s i m p l y  t o  end

c o n t i n u e d  i n t e n t i o n a l  v i o l a t i o n s  o f  t he  
6

law.  Race c o n s c i ou s  o r de r s  r e g a r d in g  the
7

s e l e c t i o n  o f  s u p e r v i s o r y  p e r s o n n e l  o r

See, e .g . NAACP v. Allen, 493 F.2d 614 
(5th Cir. 1974); Morrow v. Crisler, 491 
F.2d 1053 (5th Cir. 1974).
See, e,g. McKenzie v. Sawyer, 684 F.2d 62 
TD~. C. Cir. 1 9 6 2 )  J ~ 3 or ?> members of 
selection panel to be black) ; cf. Taylor 
v. Jones, 653 F.2d 1193 (8th CTr. 1981) 
(quota hiring necessary to end racist

7



36

public employees have been utilized where 
district courts regarded them as necessary 
to prevent discrimination against subor­
dinate workers or against the public. 
Where an employer has been found guilty of 
using a non-job related employment test, 
and no new test has yet been framed, 
courts have directed that, as an interim 
measure, the old test may be utilized in 
combination with a race-conscious adjust­
ment to eliminate the discriminatory

9
effect of that test. Even in providing

8

environment of virtually all white 
workforce).
See, e.g., Williams v. Vukovich, 720 F .2d 
909 (6th Cir. 1983) (police); NAACP v.
Beecher, 679 F.2d 965 (1 st Cir..1 982)
(police and fire) ; Morgan v. Kerrigan, 530 
F. 2d 431 (1st Cir.- T976T' (teachers).
See, e.g. Berkman v. City of New York, 705 
F.2d 584 — 2d Cir.~T983) (interim quota 
hiring order necessary as "compliance 
relief"); Kirkland v. New York Dept, of 
Corrections, 628 F .2d 796"(2d Cir. 19801 
(interim order adding 250 points to scores 
of minority applicants on non-job related test).



37

relief for victims of past discrimination, 
judges have at times found it impractic­
able to frame decrees affecting thousands 
of potential victims of classwide discri­
mination with the same precision that
might be possible in a single tort 

10
action. School desegregation orders, for 
example, have never attempted to identify 
which student would have been in which 
school but for the proven de jure segrega­
tion. In framing remedial decrees, 
federal courts act in a complex world in 
which it is at times impossible to 
precisely reconstruct the past, and must 
settle for doing rough justice if they are 
to do justice at all.

Segar v. Smith, 738 F.2d 1249, 1289 n.36 
(D.C. Cir. 198"!) ( individualized hearings 
not required where impracticable) ; Asso­
ciation Against Discrimination v. Cfty of 
Bridgeport, TO FEP Cases 9^5 (D.Conn. 
1979) (where number but not identities of 
victim known, beneficiaries of decree to 
be chosen by lot among probable victims).



38

(3) The Solicitor urges, finally, 
that even if the purposes underlying 
Article XII are constitutionally suffi­
cient, Article XII must nonetheless be 
declared unconstitutional because the 
agency that approved it, here a local 
school board, lacked the "constitutional 
competence" to make whatever findings or 
policy decisions might be required. (U.S. 
Br. 29.) The Solicitor does not dispute 
the board's practical competence to make 
the necessary judgments —  no state agency 
could be better equipped to assess the 
educational needs of Jackson school 
children, or the steps necessary to 
redress any past constitutional violations 
that may have been caused by Jackson 
officials, than the Jackson school board 
itself. Nor does the Solicitor deny that 
Michigan law confers the requisite 
authority on the board. The Solicitor 
asks this Court to declare Michigan law



39 -

unconstitutional insofar as it confers 
authority on a mere school board the power 
to take the same race conscious action 
that would be permissible if taken by some 
other agency.

The proposal here advanced by the 
Department of Justice would forbid a state 
agency that was in violation of the United 
States Constitution to take action to end 
that violation if only race conscious 
action would suffice. On this view, a 
school board which had initially assigned 
students on the basis of race could not 
deliberately reassign them on that basis 
to schools with integrated student bodies 
and faculties, even though such reassign- 
ments are at times constitutionally 
required. Swann v. Charlotte-Mecklenberg 
School District, 402 U.S. 1 (1971). The 
only constitutionally permissible course 
for such a school board, the Solicitor 
suggests, would be to continue to operate



40

its segregated schools, possibly subject 
to a freedom of choice plan, until a 
federal court was persuaded to intervene 
to direct an end to that constitutional 
violation. The doctrine which the Solici­
tor General urges be read into the 
Fourteenth Amendment is not a new one; it 
was enthusiastically embraced by school 
officials for two decades after Brown and 
bore the name "massive resistance." What 
was once widely condemned as recalcitrant 
disobedience to the decisions of this 
Court, the Justice Department now urges, 
should have been lauded as a prescient act 
of constitutional responsibility.

The Solicitor also proposes that 
agencies such as the respondent school 
board, which enjoy wide ranging authority 
under state law to redress any injuries 
inflicted by others on the citizens with 
whom it deals, should be stripped of that 
authority in one instance only, that



41

i n v o l v i n g  i n j u r i e s  o c c a s i o n e d  by p a s t  

r a c i a l  d i s c r i m i n a t i o n .  But t h i s  s o r t  o f  

s e l e c t i v e  o b s t r u c t i o n  o f  v o l u n t a r y  

government a c t i o n  b e n e f i c i a l  to  b l a c k s  was 

p r e c i s e l y  t h e  c o n s t i t u t i o n a l  v i c e  c o n ­

demned by t h i s  C o u r t  i n  Hunter  v .  

E r i c k s o n , 393  U . S .  385  ( 1 9 6 9 ) .  Were the  

s t a t e  o f  M i c h i g a n  t o  a d o p t  a s t a t u t e  

embodying the p r i n c i p l e s  now a d va n c ed  by 

the S o l i c i t o r ,  such a law would c l e a r l y  be 

u n c o n s t i t u t i o n a l  under Hun t er .

N o t h i n g  i n  e x i s t i n g  c o n s t i t u t i o n a l  

j u r i s p r u d e n c e  p r o v i d e s  any g u i d e l i n e s  f o r  

d e t e r m i n i n g  " c o n s t i t u t i o n a l  c o mp e t e n c e ; "  

the S o l i c i t o r  G e n e r a l  a p p e a r s  t o  a s s e r t  

t h a t  o n l y  C o n g r e s s  i s  " c o n s t i t u t i o n a l l y  

competent "  t o  t a k e  r a c e  c o n s c i o u s  a c t i o n  

( U . S .  B r . 2 9 - 3 0 ) ,  w h i l e  J u s t i c e  P o w e l l  

i n d i c a t e d  i n  Bakke t h a t  some s t a t e  

a g e n c i e s  would a l s o  be " c o n s t i t u t i o n a l l y  

c o m p e t e n t "  t o  do s o .  438  U . S .  a t  309 . 

T h i s  d i s a g r e e m e n t  i s  o n l y  a s ma l l  i n d i c a ­



42

tion of the enormous difficulties which 
this Court and the lower courts would face 
in assessing the "constitutional compe­
tence" of the thousands of different state 
and local agencies that have adopted an 
enormous variet.y of race conscious 
affirmative measures. This Court has in 
the past scrupulously refrained from 
restricting the authority of the states to 
allocate their authority among subordinate 
agencies and localities. Holt Civil Club 
v. Tuscaloosa, 439 U.S. 60 (1978). A 
similar degree of restraint is called for 
here.

II.
THE DISTRICT COURT PROPERLY 
DISMISSED PETITIONERS' COM­
PLAINT

The district court characterized its 
decision in this action as one upholding 
respondents' motion for summary judgment.



43

In l i g h t  o f  t h e  f a c t u a l  d i s p u t e s  n o t e d  

a b o v e ,  we do not  c o n t e n d  t h a t  summary 

j ud gme n t  s h o u l d  have b e e n  g r a n t e d  t o  

e i t h e r  p a r t y .  R e s p o n d e n t s  a l s o  moved t o  

d i s m i s s  the c ompl ai nt  f o r  f a i l u r e  t o  s t a t e  

a c l a im  on which r e l i e f  could  be g r a n t e d .  

Rul e  1 2 ( b ) ( 6 ) ,  Fed R.  C i v .  P.  We u rg e  

t h a t  the a l l e g a t i o n s  o f  the c o m p l a i n t  a r e  

i n s u f f i c i e n t  t o  s t a t e  a v i o l a t i o n  o f  the  

Fourteenth Amendment.

I f  t h e  c o m p l a i n t  had a l l e g e d  t h a t  

A r t i c l e  X I I  was a d o p t e d  i n  o r d e r  t o  

s t i g m a t i z e  w h i t e  t e a c h e r s ,  o r  o u t  o f  an 

i n v i d i o u s  r a c i a l  h o s t i l i t y  t o  t he  

i n t e r e s t s  o f  w h i t e s ,  i t  would  c e r t a i n l y  

have  s t a t e d  a c a u s e  o f  a c t i o n .  But  

p e t i t i o n e r s '  c ompl ai nt  made q u i t e  s p e c i f i c  

a l l e g a t i o n s  c o n c e r n i n g  t h e  o r i g i n  o f  

A r t i c l e  X I I ,  a s s e r t i n g  t h a t  t h a t  p r o v i s i o n  

was a d o p t e d  f o r  t h e  b e n i g n  p u r p o s e s  o f  

r e d r e s s i n g  p a s t  s o c i e t a l  d i s c r i m i n a t i o n  

and p r o v i d i n g  a more e f f e c t i v e  e d u c a t i o n



44

for minority students. These purposes, of 
course, are entirely legitimate, and any 
non-race conscious provision adopted for 
such purposes would certainly have been 
unconstitutional. The question raised by 
respondents' motion to dismiss is whether 
petitioners would be entitled to relief if 
they were to prove that such motives 
underlay Article XII.

We agree with the United States that 
this issue should be answered, if pos­
sible, by reference to the original intent 
of the framers of the Fourteenth Amend­
ment. (U.S. Br. 11-16). Every member of 
this Court has expressed a preference for 
resolving constitutional issues on the 
'oasis of the original intended meaning of 
the constitutional provision at issue. 
Had Article XII provided special layoff 
proection for handicapped or female 
teachers for the purpose of redressing 
past discrimination or providing role



45

models f o r  d i s a b l e d  or  female  s t u d e n t s ,  i t

would c e r t a i n l y  have been c o n s t i t u t i o n a l .

M i s s i s s i p p i  U n i v e r s i t y  f o r  Women v .  Hogan,

458  U . S .  718  ( 1 9 8 2 ) ;  C i t y  o f  C l e b u r n  v .

C l e b u r n  L i v i n g  C e n t e r ,  I n c . , 52 U . S . L . W .

5 0 2 2  ( 1 9 8 5 ) .  We urge t ha t  the  Fourteenth

Amendment was not  a d o p t e d  i n  o r d e r  t o

p r e v e n t  t h e  s t a t e s  f r om t a k i n g  t h e  same

s o r t  o f  r emedi al  a c t i o n  f o r  b l a c k s  t h a t  i s

c l e a r l y  p e r m i t t e d  on b e h a l f  o f  l e s s

d is ad vant age d  g r o up s .

The v i e w s  o f  a f f i r m a t i v e  a c t i o n  held

by the f ramers  o f  the Fourteenth Amendment
11

have been s e t  f o r t h  a t  l e n g t h  e l s e w h e r e ,  

and we summarize them h e r e  o n l y  b r i e f l y .  

S e c t i o n  1 o f  the Fourteenth Amendment was 

a d o p te d  t o  p r o h i b i t ,  i n t e r  a l i a , what

Yi "Affirmative Action and the Legislative 
History of the Fourteenth Amendment," 71
V a . L . R e v , ____  (June 1 9 8 5 ) ;  B r i e f  o f
NAACP Legal  DeTenie and Ed uc at ional  Fund,  
I n c . ,  as  Amicus C u r i a e ,  Regents  o f  the  
U n i v e r s i t y  o f  C a l i f o r n i a  v .  Bakke,  No.  
7 6 - 6 1 1 ,  ppl f 0 - 5 3 1 ~



46

proponents described as "class leg isla- 
1 2

tion," the phrase used in the nineteenth 
century to refer to what we would today 
describe as intentional discrimination. 
The debates on Section 1 itself were 
fairly perfunctory, but an extremely 
detailed and vigorous debate regarding the 
meaning of "class legislation" occurred 
during the same Congress that framed the 
Fourteenth Amendment. The substance of 
those debates, and of the legislation 
ultimately approved, provide unambiguous 
evidence the Congress did not regard race 
conscious remedial action as "class 
legislation" prohibited by Section 1.

During the era when the Fourteenth 
Amendment was being framed and ratified, 
Congress approved seven statutes creating 
special preferences or programs for blacks 
alone. The most important of these was

 ̂ Cong. Globe, 39th Cong., 1st Sess., 2766 
(Rep. Stevens).



47
1 3

t h e  1866  F r e e d m e n ' s  Bureau A c t ,  which

expanded t h e  s c o p e  o f  an 1865  law e s t a -
1 4

b l i s h i n g  t h e  B u r e a u .  The 1 8 6 6  A c t

c o n t a i n e d  f i v e  p r o v i s i o n s  e x p r e s s l y

l i m i t e d  t o  b l a c k s .  S e c t i o n  12 a u t h o r i ze d

the Bureau to  e s t a b l i s h  s c h o o l s  throughout

t h e  s o u t h  f o r  t h e  e d u c a t i o n  o f  f reedmen,

and s e c t i o n  13 a u t h o r i z e d  t h e  Bureau t o

p r o v i d e  o t h e r  a s s i s t a n c e  t o  p r i v a t e

a s s o c i a t i o n s  e ngaged  i n  t h e  e d u c a t i o n  o f

f r e e d m e n .  S e c t i o n s  6 ,  7 and 9 c o nf e r r e d

on b l a c k s  t i t l e  t o  c e r t a i n  l a n d  on which

t h e y  had b e e n  s e t t l e d  by Un i o n  m i l i t a r y

o f f i c i a l s .  S e c t i o n  1 o f  t h e  1 866  A c t

a u t h o r i z e d  the  c o n t i n u a t i o n  o f  a c t i v i t i e s

a u t h o r i z e d  by the 1865 A c t ,  which included

p r o v i d i n g  " p r o v i s i o n s ,  c l o t h i n g ,  and f u e l "

f o r  " d e s t i t u t e  and s u f f e r i n g  r e f u g e e s  and 
1 5

f r e e d m e n , "  and t h e  r e g u l a t i o n  o f  " a l l

] 3. 14 S t a t .  173.
13 S t a t .  507 .
13 S t a t .  5 0 7 - 0 8 .



48

subjects relating to refugees or freed- 
1 6

men." This language was on its face
racially restrictive, since whites were
covered only if they were refugees,
whereas all southern blacks were included.

1 7
Equally importantly, both supporters, and 

1 8
opponents of the 1 866 Act correctly
agreed that most of these ex ist i ng
programs had been and would continue to be

19
open only to blacks.

16 13 Stat. 507.
1 7 Representative Eliot, the House sponsor, 

for example, referred only to freedmen in 
describing the 1866 Act. Cong. Globe, 
39th Cong., 1st Sess., 514-15 (1866).

1 8 Id. at 544 (remarks of Rep. Ritter) (there 
were no white refugees), 634-35 (remarks 
of Rep. Ritter) , App. 78 (remarks of Rep. 
Chanler) (bureau gives "most of its aid 
exclusively to the negro freedmen"); App. 
83 (remarks of Rep. Chanler) (freedmen not 
refugees received "the special care of the 
bureau").

1 9 The general exclusion of whites is 
apparent from the Bureau's first report to 
Congress. House Exec. Doc. 11, 39th 
Cong., 1st Sess. (1865). Among the 
programs where only freedmen were among 
the named or intended beneficiaries were 
education (id. 2, 3, 12, 13), regulation



49

In a d d i t i o n  t o  t h e s e  p r o v i s i o n s ,  i n  

F e b r u a r y ,  1 8 6 3 ,  C o n g r e s s  c h a r t e r e d  and 

a u t h o r i z e d  a g r an t  o f  land t o  an a s s o c i a ­

t i o n  t o  a i d  " d e s t i t u t e  c o l o r e d  women and 
20

c h i l d r e n , "  no comparable p r o v i s i o n  bei ng  

made f o r  p o o r  w h i t e s .  I n  March o f  t h a t  

y e a r  C o n g r e s s  c h a r te r e d  another  o r g a n i z a ­

t i o n  " t o  educate  and improve the moral  and 

i n t e l l e c t u r a l  c o n d i t i o n  o f  s uc h o f  t h e

c o l o r e d  y o u t h  o f  t h e  n a t i o n  a s  may be
21

p l a c e d  i n  i t s  c a r e . "  In  March 1865

Congress  e s t a b l i s h e d  a bank whose d e p o s i ­

t o r s  were t o  be l i m i t e d  t o  former s l a v e s
22

" o r  t h e i r  d e s c e n d a n t s . "  I n  1 8 6 6 ,

Congress  a l s o  adopted s p e c i a l  l e g i s l a t i o n ,

o f  l a b o r  ( i d .  2,  1 2 ) ,  land d i s t r i b u t i o n  
( i d .  4 ,  2) , r e s o l u t i o n  o f  c i v i l
d i s p u t e s  ( i d . 22) , and aid  to  orphans ( i d . 
2 3 ) .  Of TB ,  057  i n d i v i d u a l s  r e c e i v f n g  
medical  a s s i s t a n c e ,  o n l y  238 were r e f u ­
g e e s .  Ld. 2 0 - 2 1 .

12 S t a t .  6 50 .

12 S t a t .  7 96 .

22 13 S t a t .  514 .



50

applicable only to black soldiers a nd
veterans, establishing a ceiling on the
fees that could be charged by agents or
attorneys handling claims of those
servicemen for certain enlistment 

23
bonuses. When that legislation apparently
proved inadequate, Congress enacted a
second measure providing that all bonuses
owed certain black servicemen were to be
paid to the commissioner of the Freedmen's
Bureau, who would in turn disburse the
appropriate amount to each serviceman and

24
his agent or attorney, if any. Also in 
1867 Congress approved a special appro­
priation "for the relief of freedmen or
destitute colored people in the District 

25
of Columbia."

2 3 1 4 Stat. 368.
24 1 5 Stat. 26-27
25 15 Stat. 20.



51

These  r a c e  c o n s c i o u s  m e a s u r e s  were

c o n s i s t e n t l y  o p po s ed  as  a form o f  r a c i a l

d i s c r i m i n a t i o n  a g a i n s t  w h i t e s .  Numerous

members o f  C o n g r e s s  condemned t h i s

l e g i s l a t i o n  i n  terms e s s e n t i a l l y  i d e n t i c a l

t o  t ho s e  o f  J u s t i c e s  Stewart  and Rehnquist

i n  t h e i r  d i s s e n t  i n  F u l l i l o v e , 448 U . S .  at

5 2 2 - 2 6 ,  i n s i s t i n g  t h a t  r a c e  c o n s c i o u s

a c t i o n  was i n t o l e r a b l e  r e g a r d l e s s  o f  t he

r a c e  o f  t h e  b e n e f i c i a r i e s  or  the mo t iv e s

o f  the  r e s p o n s i b l e  g o v e r n m e n t  o f f i c i a l s .

These  m e a s u r e s  were e x p r e s s l y  a t t a c k e d
26

b o t h  by P r e s i d e n t  J o h n s o n  and on t h e
27 28

f l o o r  o f  the House and Senate  as " c l a s s  

l e g i s l a t i o n " .  P r o p o n e n t s  o f  t h e s e  b i l l s  

i n s i s t e d ,  on t h e  o t h e r  h a n d ,  t h a t  t h e y  

were ne c e s s a r y  and p r o p e r  t o  " a m e l i o r a t e

26

27

28

M e s s a g e s  and P a p e r s  o f  the  P r e s i d e n t ,  
v i i i , p .  3633 ( 1 9 1 4 ) .

Cong.  G l ob e ,  39th C o ng . ,  1s t  S e s s . ,  2780  
(Rep.  LeBlonde) ( 1 8 6 6 ) .

Cong.  G l o b e ,  40th C on g . ,  1s t  S e s s . ,  p .  79 
( 1867)  (remarks o f  Sen.  G r i m e s ) .



52

the condition" of blacks, a nd insisted
that such benign considerations of race
were necessary "to breakdown the discrimi-

29
nation between whites and blacks."

Critics of these seven enactments
voiced arguments quite similar to the
theories advanced by the Solicitor General

30
in this case. Four Senators and two

3 1
Representatives objected that these 
measures were underinclusive, and unjusti­
fiably failed to provide similar assis­
tance for various groups of equally 
disadvantaged whites. Senator Howe, on the 
other hand, complained that the 1867 
statute assisting black servicemen was 
overinclusive, since it did not "discri­
minate at all between ... those who are

29 Cong . Globe , 39th Cong .,1st Sess., 631-32 
(remarks of Rep. Moulton).

30 II- 297, 319, 370, 371.
3 1 Cong. Globe, 38th Cong., 1st Sess . , App. 

p. 54; Cong. Globe, 39 th Cong., 1st Sess., 
629.



53

e d u c a t e d  and t h o s e  who a r e  n o t . "  S i m i ­

l a r l y ,  an u n s u c c e s s f u l  e f f o r t  was made t o

l i m i t  t h e  c o v e r a ge  o f  the 1865 Freedman’ s
33

Bureau Act  to  newly f r e e d  s l a v e s ,  so t h a t  

i t  would not e x t e n d  t o  men and women who 

had b e e n  e m a n c i p a t e d  d e c a d e s  e a r l i e r ,  or  

as  i n f a n t s ,  and had l o n g  o v e r c o m e  any  

e f f e c t s  o f  t h a t  e a r l i e r  s t a t u s .

I t  i s  thus  a p p a r e n t  t h a t  t h e r e  were  

i n  1866  a s u b s t a n t i a l  number o f  Represen­

t a t i v e s  and S e n a t o r s  who s h a r e d  the  

S o l i c i t o r ’ s p r e f e r e n c e  f o r  s u r g i c a l l y  

p r e c i s e  r emedi al  m e a s u r e s ,  o r  who a g r e e d  

w i t h  J u s t i c e  R e h n q u i s t ' s  view t h a t  beni gn  

c o n s i d e r a t i o n s  o f  race  are as obnoxious  as 

i n v i d i o u s  c o n s i d e r a t i o n s .  But e ve r y  one  

o f  t he s e  19th cent ur y  c r i t i c s  o f  a f f i r m a ­

t i v e  a c t i o n  voted a g a i n s t  approval  o f  the

32

Cong.  Gl obe ,  40th C o n g . ,  1 s t  S e s s . ,  81 .

See Cong .  G l o b e ,  38th C o n g . ,  1s t  S e s s .  
2 7 9 8 ,  2 8 0 0 - 0 1 ,  2 9 7 1 ,  2 9 7 3 .



54

Fourteenth Amendment, The sponsors of 
the Amendment, Congressman Stevens and 
Senator Wade, as well as its reported 
author, Congressman Bingham, all voted for 
the Freedmen's Bureau Act. The sponsors 
of the Act, Senator Trumbull and Congress­
man Eliot, voted for the Amendment; Eliot 
spoke at length in support of the Amend­
ment, and Trumbull both wrote and spon­
sored the 1 866 Civil Rights Act whose 
substantive provisions were the basis of 
section 1 of the Fourteenth Amendment. The 
thirty-ninth Congress, which was fully 
aware of the racial preferences contained 
in the Freedmen's Bureau Act finally 
approved in July, 1866, cannot conceivably 
have intended the constitutional amendment 
adopted in June, 1866, to condemn pre­
cisely such preferences. On the contrary, 
the supporters of the Act and the Amend-

34

Cong. Globe, 39th Cong., 1st Sess., 3042, 
3149, 3842, 3850.



55

ment r e g a r d e d  them as both c o n s i s t e n t  and 

complementary.  No member o f  Congress  ever  

i n t i m a t e d  t h a t  he saw the l e a s t  i n c o n s i s ­

t enc y  between the  r a c i a l  p r e f e r e n c e s  being  

a d o p t e d  by Congress  and the Equal  P r o t e c ­

t i o n  Clause  o f  the Fourteenth Amendment.

I t  i s  t h u s  c l e a r  t h a t  t h e  C o n g r e s s  

which f ramed t h e  F o u r t e e n t h  Amendment  

r e g a r d e d  as  p r a i s e w o r t h y ,  n o t  u n f a i r l y  

d i s c r i m i n a t o r y ,  r ace  c o n s c i o u s  g o v e r n me n t  

a c t i o n  taken f o r  the purpose o f  a m e l i o r a t ­

ing t h e  e f f e c t s  o f  p a s t  d i s c r i m i n a t i o n .  

S i n c e  p e t i t i o n e r s ’ c ompl ai nt  a s s e r t s  t h a t  

i t  was t h a t  v e r y  p u r p o s e  which  was t he  

r e a s o n  f o r  A r t i c l e  X I I ,  t h e  c o m p l a i n t  

i t s e l f  a l l e g e s  the e x i s t e n c e  o f  a c o n s t i ­

t u t i o n a l l y  s u f f i c i e n t  j u s t i f i c a t i o n  f o r  

A r t i c l e  X I I .  T h u s ,  t h e  f a c t s  a l l e g e d  i n  

the c o m pl a i n t ,  i f  taken as t r u e ,  would not  

s t a t e  a c l a i m  upon which r e l i e f  c o u l d  be 

g r a n t e d .



56

The Justice Department, however, 
asserts that while this alleged purpose of 
Article XII is constitutional, such a race 
conscious action must be "precisely 
tailored" to redress the individually 
assessed injuries of particular victims of 
discrimination. But the legislative 
history of the Fourteenth Amendment 
reveals no such concern with precision. It 
is obvious, moreover, that 19th century 
race conscious measures discussed above, 
which the Solicitor General concedes would 
be consitutional if adopted by a state, 
could not meet any of the stringent 
standards that the Solicitor General now 
advocates. First, the Solicitor asserts 
that under any race conscious plan "the 
benefit conferred" must be "measured by 
the nature and extent of the prior 
violation" (U.S. Br. 26). But the 
nineteenth century race conscious measures 
provided the identical benefit to all



57

black beneficiaries, regardless of the 
extent to which they were victims of past 
discrimination. Second, the Solicitor 
asserts that any race conscious plan would 
be "fatally under inclusive" if the groups 
singled out for preferential treatment are 
"not the only groups that have been 
discriminated against in the country." 
(U.S. Br., 29). But the nineteenth 
century measures could not meet this test 
either, for they provided no benefits at 
all for Mexican-Americans, Chinese 
immigrants, Indians, or women, all of whom 
were subject in this era to forms of 
discrimination far more virulent than 
exist today. Third, the Solicitor asserts 
that in each instance the benefit con­
ferred must "correspond to [an] identified 
prior wrong." (U.S. Br. 26). But the 
nineteenth century statutes neither 
identify a specific prior wrong to which 
they are addressed, nor contemplate



58

individualized consideration of the 
specific wrongs previously visited upon 
particular beneficiaries. The types of 
wrongs worked by slavery, for example, 
varied widely; some slaves were physically 
abused and denied any marketable skills, 
while others were immune from such abuse 
and were taught a trade. Yet all former 
slaves were afforded the same medical care 
and educational opportunities under the 
Freedmen's Bureau Act regardless of their 
particular background.

The Solicitor argues, finally, that 
any race conscious measure must include an 
individualized assessment of whether each 
proposed beneficiary had been the victim 
of past discrimination. "[I]t constitutes 
far too gross an over-simplification to 
assume that every Negro ... suffers the 
effects of past or present discrimination" 
(U.S. Br. 26-27) (emphasis added). But
the Solicitor himself characterizes the



59

rationale underlying the race conscious 
measures adopted after the Civil War in 
terms of precisely such an assumption. "It 
seems safe to assume that virtually 
everyone aided by these enactments was a 
direct victim of slavery or racial 
oppression." (U.S. Br. 16 n.24) (Emphasis 
added). The thirty-ninth Congress did not 
contemplate individualized fact finding 
regarding the history of each beneficiary 
of its legislation, but resorted, as did 
respondents in the instant case, to 
administrable classification that it 
regarded as likely to reasonably encompass 
the intended beneficiaries.

Had Article XII been adopted by 
Congress in 1866, it certainly would have 
been constitutional. Article XII is no 
less tailored than the enactments which 
Congress did approve, and the special 
benefit accorded by Article XII is quite 
modest in comparison to those provided by



60

Congress a century ago. The subsequent 
passage of time does compel a different 
conclusion here. There are, of course, 
those who now believe that a century of de 
jure segregation has had few lasting 
effects, just as in 1866 there were men 
still prepared to argue that slavery had 
not injured blacks at all. But there are 
also today large numbers of responsible 
public officials who believe that virtual­
ly every black in the nation was a direct 
or indirect victim of racial oppression.

That is not, we submit, a controversy 
which the courts are in any way equipped 
to resolve. No rule of law provides a 
standard for analyzing the conflicting 
social and economic data. Legal research 
cannot trace the effects of past events on 
the lives of tens of millions of non-white 
Americans. The necessary understanding of 
the imponderables of human nature cannot 
be gleaned from the reading of any record



61

on file with this Court. The resolution 
of the dispute between the Jackson Board 
of Education and those who object to 
Article XII must be left to the electoral 
and collective bargaining process.

Every party to this litigation looks 
forward to a time when racial discrimina­
tion, like the abuses of George III, will 
be an historical curiosity about which our 
children will learn only in history 
classes. But from the halls of Congress 
to the offices of the Jackson school 
board, public officials all across the 
nation believe that that happy day is far 
from at hand, and that measures such as 
Article XII remain essential; it is not 
for this Court to say otherwise.

CONCLUSION

For the above reasons the decision of 
the court of appeals should be affirmed.



62

Respectfully submitted,

JUClUS LEVONNE CHAMBERS* 
RONALD L. ELLIS 
PENDA HAIR 
ERIC SCHNAPPER *

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

COUNSEL FOR AMICUS 
* Counsel o£ Record



Hamilton Graphics, Inc.—-200 Hudson Street, New York, N.Y.—(212) 966-4177