Carey v. Klutznick Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

    UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

HUGH L. CAREY, et al.,

Plaintiffs-Appellees,
- against -

PHILIP M. KLUTZNICK, et al,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Southern District Of New York

BRIEF OF THE N.A.A.C.P LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. AS AMICUS

CURIAE

JACK GREENBERG 
BILL LANN LEE 
BETH LIEF 
JUDITH REED

10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys, N.A.A.C.P Legal 
Defense and Educational 
Fund, Inc., for Amicus Curiae



TABLE OF CONTENTS

Page

Interest of Amicus ............................... .. 1
Summary of Argument ................... ,...........  2

Argument
I. An Accurate Census Count, Particularly of 

Blacks and Other Minorities, Is Crucial to
the Vindication of Civil Rights ..........  4
1. Jury Discrimination Cases ............ 5
2. Employment Discrimination Cases .....  7

3. Challenges to Voluntary Affirmative
Action Plans .......................... 11

4. Housing Discrimination Cases ........  13

II. The Census Undercount Directly and Indirectly 
Imperils Enforcement of The Voting
Rights Act ................................  16

Conclusion .......................................... 19

-  l  -

'i



TABLE OF AUTHORITIES

Afro American Patrolmens League v. Duck,
503 F .2d 294 (6th Cir. 1974) ................

Alabama v. United States, 304 F.2d 583 
(5th Cir. 1962 ), a f f 'd per curiam,
371 U.S. 37 (1962) .............................

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ............................................

Alexander v. Louisiana, 405 U.S. 625
(1972) ...........................................

Arlington Heights v. Metropolitan Housing
Corp. , 429 U.S. 252 (1977) ................... 6 #

Baker v. City of Detroit, 483 F. Supp.
930 (E.D. Mich. 1979) .........................

Bridgeport Guardians, Inc. v. Members of 
Bridgeport Civil Service Comm.,
482 F .2d 1333 (2d Cir. 1973 ) ................

Brown v. Gaston County Dyeing Machine Company,
457 F .2d 1377 (4th Cir. 1972) ...............

Bush v. Kentucky, 107 U.S. 110 (1883) .........

Castaneda v. Partida, 430 U.S. 482 (1977) ....6,7,

City of Hartford v. Hills, 408 F. Supp.
889 (D. Conn. 1976 , rev 1d on other
grounds sub n o m . City of Hartford v. Towns
of Glastonbury, 561 F.2d 1032 (2nd Cir. 1977)
(en banc) cert, denied, 434 U.S. 1034 (1978)...

Coalition for Block Grant Compliance v. HUD,
450 F. Supp. 43 (E.D. Mich. 1979) .........

Detroit Police Officers Association v.
Young, 608 F.2d 671 (6th Cir. 1979) .......  2,

Dothard v. Rawlinson, 433 U.S. 321 (1977) .... 9,

Erie Human Relations Comm. v. Tullio, 493
F .2d 371 (3rd Cir. 1974) .....................

Cases: Page

10

5

15

6

14

12

10

9

6

14

14

14

12

10

10

1 1



Cases: Page
Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976) ...........................  15

Fullilove v. Klutznick, _____ U.S. _____,
65 L. Ed. 2d 902 (July 2 , 1980) ............  12

Gaston County v. United States, 395 U.S.
285 (1969)   18

Gomillion v. Lightfoot, 364 U.S. 339
(1960)............................................. 7

Gore v. Turner, 563 F.2d 159 (5th Cir. 1978). .2,21 
Griggs v. Duke Power Co., 401 U.S.

424 (1971)   10,14
Hazelwood School District v. United States,

433 U.S. 299 (1977)   10,15

Hernandez v. Texas, 347 U.S. 475 (1954) ...... 2,6

Hills v. Gautreaux, 425 U.S. 284 (1976)   14

International Brotherhood of Teamsters
v. United States, 431 U.S. 324 (1977). .2,8,9,10

Johnson v. Goodyear Tire & Rubber,
491 F. 2d 1372 (5th Cir. 1974)   10

Jones v. Lee Way Motor Freight, Inc. ,
431 F. 2d 245 (10th Cir. 1970)    9

Jones v. Mayer, 392 U.S. 268 (1939)    13

Lane v. Wilson, 307 U.S. 268 (1939)    19

League of United Latin American Citizens 
v. City of Santa Ana, 410 F. Supp. 873 
(C.D. Cal. 1976)    11

Louisiana v. United States, 380 U.S. 145
(1965)   15

Marquez v. Omaha District Sales Office,
Ford Division, 440 F.2d 1157
(8th C i r . 1971)    9

NAACP v. Allen, 493 F.2d 614 (5th Cir.
1974)   11

Otero v. New York City Housing Authority,
484 F . 2d 1122 (2d Cir. 1973 ) ............  13,14

-  i i i  -



Cases: Page
Parham v. Southwestern Bell Telephone

Co., 433 F . 2 d 421 (8th Cir. 1970) ........................ 9,10

Patterson v. Newspaper & Mail Del. Union 
of N.Y. & Vicinity, 514 F.2d 767

• (2d C i r . 1975) ...............................................  10,15

Pettway v. American Cast Iron Pipe
Company, 494 F.2d 211 (5th Cir. 1979) .................  9,10

Quon v. Stans, 309 F. Supp. 604
(N.D. Cal. 1970) ............................................ 18

Resident Advisory Board v. Rizzo, 564
F . 2 d 1 2 6  (3rd Cir. 19 77).................................. 13

Rios v. Enterprise Ass'n Steamfitters,
Loc. U. No. 638 of U.A., 501 F.2d 622
(2d Cir. 1974)   11,15

Rose v. Mitchell, 443 U.S. 545 (1979) .....................  5,6

Shannon v. HUD, 436 F.2d 809 (3rd Cir.
1970)   14

Sims v. Georgia, 385 U.S. 538 (1967) ....................... 6

Smith v. Texas, 311 U.S. 128 (1940)   7

South Carolina v. Katzenbach, 383 U.S.
301 (1966)   17

Stamps v. Detroit Edison Co., 365 F. Supp.
87 (E. D . M i c h . 1973 ) ..................... .................  11

Strauder v. West Virginia, 100 U.S.
303 (1880)    6

Torres v. Sachs, 381 F. Supp. 309
(S.D.N.Y. 1974)        16

Trafficante v. Metropolitan Life
Insurance Company, 409 U.S. 205 (1972) ................. 13

Turner v. Fouche, 396 U.S. 346 (1970) ...................... 6

United Jewish Organizations v. Carey, 430
U.S. 144 (1977) ............................................ 2 ,16,18

United States v. City of Black Jack,
508 F . 2 d 1179 (8th Cir. 1974) ..........................  13

V

iv



Cases: Page
United States v. City of Buffalo, 457

F. Supp. 612 (W.D.N.Y. 1978) ..............................  11

United States v. City of Buffalo,
_____ F .2d _____, 24 FEP Cases 313
(2nd C i r . 1980) ................................ .............  11

United States v. City of Miami, Fla., 614
F . 2d 1322 (5th Cir. 1980) ................................. 2,11

United States v. Hayes I n t '1 Corp., 456
F . 2 d 112 (5th Cir. 1972) .................................. 10

United States v. Ironworkers Local 86 
443 F .2 d 544 (9th Cir. 1971), ce r t .
denied 404 U.S. 984 (1971) ...............................  8

United States v. Jacksonville Terminal Company
451 F . 2 d 442 (5th Cir. 1971) .............................  9

United States v. Pelzer Realty Company,
Inc., 484 F . 2d 438 (5th Cir. 1973) .....................  13

United States v. Youritan Construction 
Company, 370 F. Supp. 643 (N.D. Cal.
1973), aff ' d 509 F.2d 623 (9th Cir.
1975) .........................................................  13

United Steelworkers of America v. Weber,
443 U.S. 193 (1979) .......................................  8,12

University of California Regents v. Bakke,
438 U.S. 265 (1978) ....................................... 18Washington v. Davis, 426 U.S. 229 (1976)................ 6,7

West End Neighborhood Corp.v. Stans, 312
F. Supp. 1066 (D.D.C. 1970) .............................  18

Whitus v. Georgia, 385 U.S. 545 (1967)...................  6

Williams v. Matthews Company, 499 F.2d 
819 (8th Cir. 1974) , c e r t . denied
419 U.S. 1021 (1974) .....................................  13

Zuch v. Hussey, 394 F. Supp. 1028
(E.D. Mich, 1975) .........................................  13

v -



Page

STATUTES

42 U.S.C § 1971 , 1973 et se q ...........................  4

42 U.S.C. § 1973(a) & (b)   2, 16

42 U.S.C. § 1973b(f) (3)   17

42 U.S.C. § 2000a et s e q ................................  5
42 U.S.C. § 2000d et s e q ..................................  5
42 U.S.C. § 2000e et s e q ..................................  4, 15
42 U.S.C. § 3601 et s e q ...................................  4, 14
42 U.S.C. § 3601 et seq. (Supp. V 1975)   14
42 U.S.C. § 3 7 6 6 (c)(1) ...................................  4
42 U.S.C. § 5304 (a) (4)   14

OTHER AUTHORITIES
110 Co n g . R e c ...............................................  8
Schlei and Grossman, Employment Discrimination

Law (BN A 1976) .........................................  8

- vi -



UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT 

No. 81-6042

HUGH L. CAREY, et al.,

Plaintiffs-Appellees, 
PHILIP M. KLUTZNICK, et al,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Southern District Of New York

BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AS AMICUS

CURIAE

Interest of Amicus

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation established under the laws of 
the State of New York. It was founded to assist black persons 

to secure their constitutional and statutory rights by the pro­
secution of lawsuits. Its charter declares that its purposes 
include rendering legal services gratuitously to black persons 
suffering injustice by reason of racial discrimination. For 

many years attorneys of the Legal Defense Fund have represented 
parties in litigation before this Court, the Supreme Court and 
other courts involving a variety of race discrimination cases.



The success of many of the claims in these cases have been de­

pendent upon use of census statistics. See, e.g. United Jewish 

Org. of Williamsburgh v. Wilson, 510 F.2d 512 (2nd Cir. 1975), 
aff'd sub. nom. United Jewish Org. of Williamsburgh v. Carey,
430 U.S. 144 (1977)(voting rights); Griggs v. Duke Power Co.,

401 U.S. 424 (1971)(employment discrimination); Detroit Police 
Officers Assn, v. Young, 608 F.2d 671 (6th Cir. 1979)(challenge 

to voluntary affirmative action plan); Gore v. Turner, 563 F.2d 

159 (5th Cir. 1978)(housing discrimination). The Legal Defense 
Fund believes that its experience in such litigation and the 

research it has performed will assist the Court in this case.
The parties have consented to the filing of this brief and 

letters of consent have been filed with this Court.

Summary of Argument

The use of census figures has been central to proof of 
discrimination in the areas of jury discrimination, employment 
and housing discrimination. See, e.g., Hernandez v. Texas, 347 
U.S. 475 (1954) and Int'l Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977). Courts have also relied upon census 
figures in shaping affirmative remedies for discrimination. Se^ 

e.g. United States v. City of Miami, Fla., 614 F.2d 1322 (5th 
Cir. 1980). An accurate census count is, therefore, crucial to 
the enforcement of the various civil rights laws and the inte­

grity of the judicial process.

2



Any mismanagement of the census count directly and 

indirectly imperils enforcement of the Voting Rights Act of 

1965. The provisions of the Act require a determination of 
voter registration and participation, by race. That deter­

mination is made by the Director of the Census. 42 U.S.C.
§1973(a) & (b). Effective enforcement of the Act is, to some 
extent dependent upon the accuracy of that determination. In 

a separate but related way, the methodology employed in the 

1980 census, specifically the "mail out - mail back" alternative 
is tantamount to utilizing a literacy test —  something clearly 

forbidden by Section 4 of the Act.

3



ARGUMENT

I.

An Accurate Census Count, Particularly of Blacks 
And Other Minorities, Is Crucial to The 

Vindication of Civil Rights

The briefs and opinions in this action have focused 
the importance of an accurate census count on two uses to which 
the tabulations are put, a state's representation in Congress 
and its receipt of federal funds. Although not discussed by 
either the parties or the district court, the impact of the 
census is not limited, to these admittedly important areas. An 

accurate census count, particularly of blacks, Hispanics and 
other minorities, is crucial to the preservation of consti­

tutional and statutory guarantees of equality, the enforcement 
of basic civil rights, and the integrity of our judicial system.

Since enactment of the Fourteenth Amendment, the
Constitution of the United States has guaranteed the right to be
free from discrimination by the State on the basis of race. From
the years immediately following the Civil War until the present'
Congress has extended the prohibition against race discrimination

1/ 2/ 3/
to cover, among other areas, voting, employment, housing, public

1/ E.g., Voting Rights Act of 1965, 42 U.S.C. §§ 1971, 1973, 
et seq.
2/ E.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., Omnibus Crime Control and Safe Streets Act of 
1968 as amended, 42 U.S.C. § 3766(c)(1).

3/ E.g., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 
§ 3601, et seq.



Experience
4/ 5/

accommodations and the dispersal °f federal funds.
has taught, however, that the passage of new laws does not
automatically marshall change in behavior. As a consequence,
vindication of basic civil rights has consistently been,and

remains largely,the task of the judiciary. In cases alleging
a violation of civil rights laws and constitutional guarantees,

6/
as the "Statistics often tell much, and Courts listen." Indeed, 

discussion below demonstrates, census figures have been 

the key to judicial enforcement of civil and constitutional 

rights. Inaccurate census figures, especially where inaccura­
cies undercount blacks and other minorities, not only makes 
proof of violations more difficult; it undermines the judicial 

fact-finding process in such cases,

1. Jury Discrimination Cases
The Supreme Court has repeatedly recognized that 

"Discrimination on the basis of race, odious in all aspects, is 
especially pernicious in the administration of justice , . .
[because it] destroys the appearance of justice and thereby casts 
doubt on the'integrity of the judicial process." Rose v, Mitchell, 

443 U.S. 545, 555-56 (1979). For over 100 years the Supreme 
Court has held that the exclusion from grand jury service of 
members of a particular race violates the Fourteenth Amendment.

4/ E.g., Title II of the Civil Rights Act of 1964, 42 U.S.C,
§ 2000a et seg.
5/ Title VI of the Civil Rights Act of 1964, 42 U.S.C, § 2000d 

et seg.
6/ Alabama v. United States, 304 F .2d 583, 586 (5th Cir, 1962), 
aff1d per curiam, 371 U.S. 37 (1962),

5



Strauder v. West Virginia, 100 U.S. 303 (1880) . While the early
jury exclusion cases were challenges to the explicit exclusion of 

7/
blacks, more recent cases have challenged the virtual absence in

8/
fact of blacks, and other minorities from grand jury service.
These later cases "established the principle that substantial 

underrepresentation of the [minority] group constitutes a con­
stitutional violation . . .  if it results from purposeful 

discrimination." Castenda v. Partida, 430 U.S. 482, 493 (1977),

The abandonment of explicit statutory exclusion has made the use 

of census figures central to proof of discrimination in the 
selection of grand and petit juries. Thus, in Hernandez v. Texas, 
347 U.S. 475, 480 (1954) the Court focused on a comparison of 
the proportion of Hispanics in the total population to the 
proportion called to serve as grand jurors. See also Turner v. 

Fouche, 396 U.S. 346 (1970), Alexander v. Louisiana, 405 U.S. 625 

(1972), Whitus v. Georgia, 385 U.S. 545 (1967), and Sims v, Georgia, 
385 U.S. 538 (1967). Notwithstanding a requirement that a
violation of the Fourteenth Amendment must be tied to a finding of

2/purposeful discrimination, the Supreme Court has held that a 

comparison of census figures to grand jury lists which showed a 
substantial underrepresentation of a particular minority group

7/ E.g., Bush v. Kentucky, 107 U.S. 110 (1883); Strauder v.
West Virginia, 100 U.S, 303 (1880).
8/ E.g., Rose v. Mitchell, 443 U.S. 545 (1979); Sims v. Georgia,
385 U.S. 538 (1967); Alexander v, Louisiana, 405 U.S. 625 (1972); 
Castenada v. Partida, 430 U.S. 482 (1977); Turner v', Fouche, 396 
U.S. 346 (1970); Whitus v. Georgia, 385 U.S. 545 (1967); Hernandez 
v. Texas, 347 U.S. 475 (1954).
9/ Washington v. Davis, 426 U.S. 229 (1976); see Arlington 
Heights v. Metropolitan Housing Corp,, 429 U.S, 252. 264-265 (1977).

- 6 -



constituted a prima facie case of discriminatory purpose.

Castenada v, Partida, supra, 430 U.S. at 494-495. Thus,
although discrimination in the selection of jurors "is at
war with our basic concepts of a democratic society and a

10/
representative government," without an accurate count of blacks, 
Hispanics and other minorities, plaintiffs and the courts lack 

the weapons to battle this evil.
In cases involving other alleged violations of the 

Equal Protection Clause, the use of statistics may be equally 
crucial. Although the Supreme Court has held that proof of 
discriminatory impact alone is insufficient to establish a 

violation of the equal protection clause „ the Court 
has made clear that discriminatory impact is often the touch­
stone to a finding of invidious purpose. Washington v. Davis, 

426 U.S. 229, 241-242 (1976); Arlington Heights v. Metropolitan 
Housing Corp., 429 U.S. 252, 266 (1977). If a disparate or 
adverse racial impact is sufficiently large that it is unlikely 
that it is due solely to chance or accident, and in the absence 
of evidence to the contrary, the Court may conclude that racial 
or other class related factors entered into the decision-making 
process. Id. That impact is often, if not usually, demon­

strated by resort to census figures. See, e .g ., Gomillion v. 
Liahtfoot, 364 U.S. 339 (I960) (reapportionment in violation of

Fifteenth Amendment)
2. Employment Discrimination Cases

The prohibition in Title VII of the Civil Rights Act

10/ Smith v. Texas, 311 U.S, 128, 130 (.1940) ,
7



of 1964 against race discrimination in employment was Congress'

attempt to remedy the plight of the black person in this
country's economy. 110 Cong. Rec. 6543 (Remarks of Sen. Humphrey);
id. at 7204 (Remarks of Sen. Clark) id. at 7379-7380) (Remarks
of Sen. Kennedy). As of 1964, the rate of Black unemployment had
gone up consistently as compared with white unemployment for the
previous 15 years. Id. at 7220 (Remarks of Sen. Clark). As the

Supreme Court recognized:
Congress feared that the goals of the 
Civil Rights Act —  the integration 
of Blacks into the main stream of 
American society —  could not be 
achieved unless this trend was re­
versed. And Congress recognized 
that that would not be possible unless 
Blacks were able to secure jobs "which 
have future."

United Steelworkers of America v. Weber, 443 U.S. 193 (1979), 202- 

203. The successful use of Title VII as a vehicle to open employ­
ment opportunities for blacks and other minorities has been tied 
directly to the use of census figures. Indeed, as one commentator 
has noted, "Perhaps the most significant development in employment 
discrimination law has been the dominant role that statistics have 
come to play in the trial of virtually all class actions." Schlei 
and Grossman, Employment Discrimination Law, 1161. Indeed, in 

many cases, " [T]he only available avenue of proof is the use of 
racial statistics to uncover clandestine and covert discrimination 

by employer or union involved." International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 339, n. 20 (1977) citing 
United States v. Ironworkers Local 86, 443 F .2d 544, 551 (9th Cir. 

1971), cert, denied 404 U.S. 984 (1971). See also, e .g ., Pettway

- 8 ~



v. American Cast Iron Pipe Company, 494 F.2d 211, 225, n. 34

(5th Cir. 1974); Brown v. Gaston County Dyeing Machine Company,

457 F.2d 1377, 1382 (4th Cir. 1972); United States v. Jacksonville
Terminal Company, 451 F.2d at 442 (5th Cir. 1971); Parham v.
Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970);
Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir.
1970). Such evidence is often "the only available avenue of proof"
since discrimination "will seldom be admitted by any employer."

Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d
1157, 1162 (8th Cir. 1971). As the Supreme Court has explained,
statistics are crucial because

Absent explanation, it is ordinarily to be 
expected that non-discriminatory hiring 
practices will in time result in a work 
force -more--or less representative of the 
racial and ethnic composition of the 
population in the community from which 
employees are hired.

Teamsters v. U.S., supra, 431 U.S. at 340, n. 20. Although courts 
in employment discrimination cases have looked to statistics other 
than those based upon census figures (for example, statistics of 
actual applicants to a job), the Supreme Court has made clear that 
there is no requirement that a statistical showing of dispropor­

tionate impact be based on an analysis of the characteristics of 
actual applicants. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977). 
Indeed, if actions by the employer have had the effect of lowering 

artificially the number of minority applicants to a job, resort 

to census figures may well be the best basis for analysis. I d . 
Thus, the Supreme Court has repeatedly sanctioned the use of census 

figures to make out a prima facie case. See, e .g ., Teamsters v.

9



u.s., supra, Dothard v. Rawlinson, supra,, Griggs v. Duke Power 

Co., 401 U.S. 424, 430 (1971). In cases alleging discrimination 

by private employers and unions, the Supreme Court has speci­
fically approved comparisons between an employer's workforce and 
the general population, stating that such comparisons can pro­

vide "significant" proof of discrimination. Teamsters v. U.S., 
supra , 431 U.S. at 337, n. 17 and 339-40, n. 20 (1977). Accord, 
Hazelwood School District v. United States, 433 U.S. 299, 308,
n. 13 (1977); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1372

11/
(5th Cir. 1974). This Court has held that a discrepancy "between 
a minority community population and employment population" at the 

very least will "invite inquiry." Bridgeport Guardians Inc, v. 

Members of Bridgeport Civil Service Comm., 482 F .2d 1333, 1335 n.
4 (2d Cir. 1973). See also Patterson v. Newspaper & Mail Del.
Union of N.Y. & Vicinity, 514 F.2d 767, 772 (2d Cir. 1975). Other 
circuits have similarly recognized that data demonstrating adverse 
impact often is founded upon population statistics. Pettway v . 

American Cast Iron Pipe Company, 494 F. 2d 211, 225 n. 34 (5th Cir 
1974). Erie Human Relations Comm, v. Tullio, 493 F.2d 371, 373 
n. 4 (3d Cir. 1974); United States v. Hayes Int'l Corp,, 456 F.2d
112, 120 (5th Cir. 1972); Parham v. Southwestern Bell Telephone Co 

433 F .2d 421, 426 (8th Cir, 1970),

11/ Use of census figures is a key element to Title VII cases 
regardless of whether the case is brought as a disparate treatment 
or adverse impact case. A showing of a disparity between the 
percentage of minorities in the general population and the per­
centage of minorities in the workforce may in itself be sufficient 
to establish plaintiffs' prima facie case, e .g ., Griggs v. Duke 
Power, supra. In a disparate treatment case, or cases based on 
intentional discrimination, statistical evidence based on census 
figure may be highly probative and virtually prove a prima facie 
case. Teamsters v. U.S., supra.

10



The use of census figures has been no less crucial in 

cases which challenge employment discrimination by governmental 
agencies. Courts have looked to comparisons of the percengage 

of minority residents in the service area and the percentage of 
minorities employed when considering discrimination claims 
involving municipal police and fire departments. See, Afro 
American Patrolmens League v. Duck, 503 F.2d 294, 299 (6th Cir. 
1974). United States v. City of Buffalo, 457 F. Supp. 612, 621

(W.D.N.Y. 1978), aff'd_____ F.2d ____, 24 FEP Cases 313 (2d Cir.

1980). League of United Latin American Citizens v. City of Santa 
Ana, 410 F. Supp. 873, 896-98 (C.D. Cal. 1976).

Similarly, courts of this and other circuits which have 
ordered affirmative action relief to remedy employment dis­

crimination have looked to census figures which show the minority 
population in the community in order to determine appropriate
quotas and goals. E.g., United States v. City of Buffalo, ____F.2d

_____ f 24 FEP Cases 313 (2d Cir. 1980); United States v. City of
Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980) (proper goal to 

"obtain percentages of [minorities] generally consistent with their 
percentages in the community."); NAACP v. Allen, 493 F.2d 614,' 617, 
n. 3 (5th Cir. 1974); Stamps v. Detroit Edison Co., 365 F. Supp.
87, 122, n. 4 (E.D. Mich. 1973); Rios v. Enterprise Ass'n Steam- 
fitters, Loc. 638, U. No. of U.A., 501 F.2d 622, 633 (2d Cir. 1974) 

(". . . the court should be guided by the most precise standards 
and statistics available . . . .").

3. Challenges to Voluntary Affirmative Action Plans

Accurate census count of the minority population has

T 11



become crucial in cases where private and governmental employers 

face challenges to affirmative action plans. In United Steel­
workers of America v. Weber, supra, the Supreme Court upheld the 
right of a private employer to institute a voluntary race­
conscious affirmative action plan “to eliminate traditional 
patterns of racial segregation,"' supra, 443 U.S, at 201. The 
legality of a particular affirmative action plan can be directly 

related to the extent to which the goals of the plan reflect the 
composition of the relevant labor force. Id, at 208-209, 214 
(Blackmun, j., concurring). Thus, in Weber, the Supreme Court 

upheld a preferential program related to the percentage of blacks 
in the general population in the community, as determined by 

census data. See 415 F. Supp. 761, 764 (E.D. La, 1976). Where 

voluntary affirmative action plans are established in the govern­
mental sector, the justification for such plans, past dis­

crimination, has been determined in large part by the statistical 
disparity between the percentage of black employees and both the 
percentage of blacks in the labor pool and the general population 
in the community, Detroit Police Officers Association v. Young, 
608 F.2d 671 (6th Cir. 1979). Baker v. City of Detroit, 483 F. 
Supp. 930 (E.D. Mich, 1979). , Census data was both the direct and 
indirect method by which the legality of affirmative action 

plans in these cases was analyzed. The constitutionality of 

Congressional actions which include race-conscious attempts to 

remedy past discrimination are dependent upon resort to census

data. Fullilove v. Klutznick, ____ U.S. ____, 65 L.Ed.2d 902,
916 (July 2, 1980).

12



4. Housing Discrimination Cases
As the Supreme Court stated in Trafficante v.

Metropolitan Life Insurance Company, 409 U.S. 205 (1972) Title
VIII of the Civil Rights Act of 1968, which bans discrimination

in the sale and rental of housing, must be generously construed
in order to carry out a policy to which Congress accorded "the

12/ 13/
highest priority." As this Court and other circuits and the

14/Supreme Court have recognized, the fair housing laws are the 
critical vehicle for removing the scourge of slavery,and for 
securing the equal right to rent or buy housing for all persons, 
whatever the color of their skin. As in employment discrimination 

cases, actual enforcement of the rights guaranteed by the fair 
housing laws often depend upon comparisons between the percentage 

of minorities in the population, as given in census data, and the 
percentage of minorities in the particular housing at issue. Thus, 

census data has been crucial to challenge involving the refusal 
to build public housing, e .g ., United States v. City of Black Jack, 

508 F .2d 1179, 1183 (8th Cir. 1974), Resident Advisory Board v. 
Rizzo, 564p .2d 126 (3rd Cir. 1977), the relocation of public

12/ Otero v. New York City Housing Authority, 484 F .2d 1122, 
TI33 (2d Cir, 1973),
13/ E.g., Zuch v. Hussey, 394 F. Supp, 1028 (E.D, Mich. 1975),
aff1 d~, 547 F . 2d 1168 (6th Cir. 1977); United States v. Youritan 
Construction Company, 370 F, Supp, 643 (N.D. Cal, 1973), aff1d 
509 F.2d 623 (9th Cir. 1975); Williams v, Matthews Company, 499 
F .2d 819 (8th Cir. 1974), cert, denied 419 U.S. 1021 (1974); 
United States v. Pelzer Realty Company, Inc., 484 F.2d 438 (5th 
Cir, 1973),
14/ E.g., Trafficante v. Metropolitan Life Insurance Company, 
supra; Jones v. Mayer, 39.2 U.S, 26 8 (.1939) (.42 U.S.C, § 1982).

13



housing, e .g ., Hills v. Gautreaux, 425 U.S. 284 (1976); Shannon 

v. HUD, 436 F.2d 809 (3rd Cir. 1970), the selection of tenants 

for public housing, Otero v. New York City Housing Authority, 

supra, and the zoning for low income housing, Arlington Heights 

v. Metropolitan Housing Corp., supra.
The ability of a locality to receive federal funds 

under the Housing and Community Development Act of 1974, 42 U.S.C. 

§ 3601 et seq. (Supp V 1975), is also keyed to an accurate census 

count. In order to receive a Community Development Block Grant, 

a governmental applicant must prepare a Housing Assistance Plan 

(HAP) to demonstrate how it will provide, inter alia, suitable 

low-income housing for persons residing and "expected to reside" 

in the area. 42 U.S.C, § 5304(a)(4). An undercount of the 

population distorts the validity of the HAP, frustrating the 

Congressional intent to insure the provision of housing for those 

needing it. See, in general, City of Hartford v. Hills, 408 F. 

Supp. 889, 893-94, 902 (D. Conn, 1976), rev*d on other grounds sub

nom- City of Hartford v. Towns of Glastonbury, 561 F.2d 1032 

(2d Cir. 1977) (en banc) , cert, denied 434 U.S. 1034 (1978) ; 

Coalition for Block Graht Compliance v. HUD, 450 F. Supp. 43 

(E.D. Mich. 1978).While many findings of discrimination are 

based on gross disparities between,for example, minority em-
, 15/

ployees and minority population figures findings of discrimina­

tion can hinge on a 5-10% difference in the proportion of 
minorities as counted in the census. Thus, in

15/ E .g ., Griggs v. Duke Power Co., supra (employment); 
Castenada v. Partida, supra (voting); Arlington Heights v. 
Metropolitan Housing Authority, supra (zoning).

14



Hazelwood School Dist. v. United States, supra, a dispute arose 
as to whether the proper percentage of minority school teachers 

in the labor force was 5.7% or 15.4%. The Supreme Court noted 
that this difference "may well be important" in determining 

whether a Title VII violation exists. 433 U.S. at 311.
Similarly, an undercount of blacks and other minorities, by even 
five to ten percentage points, can dramatically affect the scope 
of relief ordered by a court and the legitimacy of a particular 
voluntary affirmative action plan. Cf., Patterson v. Newspaper 
& Mail Del. Union of N.Y. & Vicinity, 514 F,2d 767, 772 (2d Cir. 

1975) (court ordered goal had adequate basis in refined census 

figures); Rios v. Enterprise Ass'n Steamfitters, Loc. U. No. 638 
of U.A. , 501 F.2d 622, 633 (.2d Cir. 1974). Thus, misrepresenta­

tion in the census of the actual number and percentage of minori­
ties impedes the ability- of plaintiffs to establish the violations 
of civil rights laws and of courts consistent with constitutional
and Congressional mandate, to "fashion the most complete relief 

16/
possible"-in order to "eliminate the discriminatory effects of

17,/
the past as well as bar like discrimination in the future."

16/ Franks v. Bowman Transp, Co., 424 U.S. 747, 764 (1976).
17/ Albemarle Paper Co. v. Moody, 422 U.S, 405, 418 (1975),
quoting from Louisiana v. United States, 380 U.S. 145, 154 (1965)

15



I I .

The Census Undercount Directly And Indirectly 
Imperils Enforcement of The Voting 

Rights Act

The undercount found by the district court directly 

imperils enforcement of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. § 1973b (Supp. 1980), in New York State.
See, United Jewish Organizations v. Carey, 430 U.S. 144 (1977) 
(application of the Act to Kings, New York and Bronx counties of 

New York State); Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y.
1974) (application of bilingual provisions of the Act to New York 
City). Section 4 of the Act provides, inter alia, that: "To

assure that the right of citizens of the United States to vote is 
not denied or abridged on account of race or color, no citizen 
shall be denied the right to vote in any Federal, State, or Local 
election because of his failure to comply with any test or device 
in any State [or any political subdivision of a State] with

respect to which . . .
Cl) the Attorney General determines main­
tained on November 1, 1964 [November 1,
1968 or November 1, 1972], any test or 
device, and with respect to which (2) the 
Director of the Census determines that 
less than 50 per centum of the persons of 
voting age residing therein were registered 
on November 1, 1964 [November 1, 1968 or 
November 1, 1972], or that less than 50 
per centum of such persons voted in the 
presidential elections of November 1964 
[November 1968 or November 1972]

42 U.S.C. § 1973(a) & (b) (emphasis added). In addition, the

bilingual requirements of 1973b(f) are triggered "where the
Director of the Census determines that more than five per centum

of the citizens of voting age residing in such State or political

16



42 U.S,C.subdivision are members of a single language minority,"
§ 1973b(f)(3). Section 1973k makes determination of the Acts' 
procedures for federal voting examiner listing of eligible voters 

in any State or political subdivision contingent, in part, on 
whether "the Director of the Census has determined that more than 
50 per centum of the non-white persons of voting age residing 

therein are registered to vote." See, South Carolina v. Katzenbach, 

383 U.S. 301 (1966).
Section 4 also provides, in pertinent part, that "[a] 

determination . . .  of the Director of the Census under this 
section or under section . . . 1973k or this title shall not be
reviewable in any court and shall be effective upon publication 

in the Federal Register." The Supreme Court upheld the provision 
for nonreviewability of census determinations in part because "the 
findings not subject to review consist of objective statistical 
determinations by the Census Bureau," South Carolina v. Katzenbach, 
supra, 383 U.S. at 333 (emphasis added). Unless the district 

court's opinion is affirmed, the integrity of the Director of the 
Census' determinations under §§ 1973b and 1973k for New York State 
and, therefore, Voting Rights Act enforcement will come under 

question.
Moreover, voting rights enforcement is frustrated in 

another way. The lower court found that as a result of mismange- 

ment, the census was essentially based on responses on written 

English language "mail out, mail back" forms. From the beginning 
of the Republic through the 1960 census, the census was taken by

17



door-to-door enumeration. In 19.7Q, the mail out, mail back 
method, which included supplementary pre-rcanvassing and post 

mailing safeguards, was instituted, See,NQuon v. Stans, 309 
F. Supp, 604, 605 (N.D, Cal. 19701, In particular, the 

Census Bureau concentrated supplementary efforts in con­

gested urban areas. See, West End Neighborhood Corp, v, Stans,
312 F. Supp. 1066, 1069 CD.D.C, 197QJ, The existence of 
supplementary "safeguarding procedures designed to count those 
persons not counted initially by the mail-out-mail back method" 

led several courts to validate the use of the mail, out mail 
back method. See, e ,g ., Quon v. Stans,s supra, 309 F, Supp. at 

606; West End Neighborhood Corp., supra, 312 F. Supp, at 1069,
The court below, however, found that in New York State in 1980, 
the safeguarding procedures were largely unapplied or severely 
mismanaged. The net result is that the census was

taken of the literate population only, This, we submit, is a 
result at odds with the policy of the Voting Rights Act because 
it covertly accomplishes what the Act prohibits.

Clearly, section 4 of the Act prohibits conditioning 

the right to vote on any literacy test because to do so would 

discriminate against black persons by perpetuating the effects of 
racially segregated public education. Gaston County v. United 

States, 395 U.S. 285, 293-297 Cl969}, This is true in New York 

State, see United Jewish Organizations v, Carey, supra, where many 

minority group members, as in California, "were born and reared 
in school districts in Southern States segregated by law." 

University of California Regents v, Bakke, 438 U.S. 265, 372

18



(1978) (opinion of Brennan, White, Marshall and Blackmun,
J.J. concurring). Reliance on ability to read English 

obviously also screens out those able to read, for example, 

only Spanish or Chinese. Thus, the Census Bureau by 
effectively imposing an unmitigated literacy test on census 
enumeration accomplishes what the States are themselves 

prohibited from doing directly under the Voting Rights Act. 
The law prohibits "sophisticated as well as simple-minded 

modes of discrimination." Lane v. Wilson, 307 U.S. 268,
275 (1939). While the impact of the census literacy test is 
not to deprive minority persons of their right to vote, 
it has invidious consequences through underrepresentation of 

minority populations in apportionment and compromising the 
integrity of Voting Rights Act enforcement, supra.

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted

JACK GREENBERG 
BILL LANN LEE 
BETH LIEF 
JUDITH REED

10 Columbus Circle 
Suite 2Q3Q
New York, New York 1QQ19

19

Attorneys for Amicus Curiae, 
N ,A ,A ,C ,P , Legal Defense 
and Educational Fund, Inc,



CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of February,

1981, I served the foregoing Brief of The N.A.A.C.P. Legal

Defense and Educational Fund, Inc. as Amicus Curiae by

placing three copies in the United States mail, first-class,

postage prepaid to the following counsel of record:

John S. Martin, Jr.
United States Attorney for the 
Southern District of New York 
One St. Andrews Plaza 
New York, New York 10007

Robert Abrams 
Attorney General of the 
State of New York 
Daniel Berger
Deputy Assistant Attorney General 
Two World Trade Center 
Suite 46-57
New York, New York 10047

Frederick A.O. Schwarz, Jr.
Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
New York, New York 10005

Attorney for Amicus Curiae, 
.A.A.C.P. Legal Defense 

and Educational Fund, Inc.