Carey v. Klutznick Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae
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February 9, 1981

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Brief Collection, LDF Court Filings. Carey v. Klutznick Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae, 1981. 8a2a1ac4-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0cf7d71c-9df1-474e-ac68-d9ab627f6beb/carey-v-klutznick-brief-of-the-naacp-legal-defense-and-educational-fund-as-amicus-curiae. Accessed April 22, 2025.
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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.