Bazemore v. Friday Reply Brief for Private Petitioners

    No. 85-93

I n  t h e

(to rt of tfir BtaUs
October Term, 1985

P. B. Bazemore, et al.,
Petitioners,

v.

W illiam 0. F riday, et al.
Respondents.

ON w rit  of certiorari to t h e  united  states court of appeals

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR PRIVATE PETITIONERS

E dward D. Reibman
108 North. Eighth Street 
Allentown, Pa. 18101

Cressie H. Thigpen, J b.
Thigpen, Blue & Stephens 
Suite 214
Hallmark Building 
Raleigh, North Carolina 27601

J ulius LeVonne Chambers 
R onald L. E llis 
E ric Schnapper*

NAACP Legal Defense & 
Educational Fund, Ine.

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

Counsel for Petitioners

#Counsel of Record



TABLE OF CONTENTS
Page

I. The Application of Dis­
criminatory Pre-Act
Salary Scales ........  1

II. Statistical Evidence of
Discrimination.... . 5

III. NCAES1 Legal Responsi­
bility for Dis­
crimination in the 
Selection of County
Chairmen ...............  21

IV. Desegregation of the 4-H 
and Extension Homemaker 
Clubs ..................  27

Conclusion .................   45

i



TABLE OF AUTHORITIES
Cases Page

Arizona Governing Board v.
Norris, 403 U.S. 1073 
( 1983) ....... .............  23

Board of Visitors v. Norris, 404
U.S. 907 ( 1971 ) .............  40

Branti v. Finkel, 455 U.S. 507
( 1980) ......................  26

Carter v. Greene County, 396 U.S.
320 (1970) .....  25

Davis v. United States, 411 U.S.
233 .......................... 26

Elrod v. Burns, 426 U.S. 347
(1976) ......................  26

Geier v. University of Tennessee,
597 F .2d 1056 (6th Cir.
1979) .......................  40

Green v . School Board of New Kent 
County, 391 U.S. 430
( 1968) ......................  30,40

Griggs v. Duke Power Co., 401
U.S. 424 ( 1971 ) ............. 16,17

Hazelwood School District v.
United States, 433 U.S.
299 ( 1977) .............. 21

- ii -



Page

McDonnell Douglas v. Green,
411 U.S. 792 ( 1973) ........  1 1

Meredith v. Fair, 298 F.2d
696 (5th Cir. 1962) ......... 25

Monroe v. Pape, 365 U.S. 167
(1961) ................. . 26

Pasadena Board of Education v.
Spangler, 427 U.S.
424 (1976) ..................  42,43

Rabinowitz v. United States,
366 F.2d 34 (5th Cir.
1966) .............      26

Swann v. Charlotte-Mecklenburg 
Board of Education, 402 
U.S. 1 91971)  .........  40

Teamsters v. United States, 431
U.S. 324 ( 1976) ............. 1 1,16

United States v. Logue, 344 F.2d
290 (5th Cir. 1955) .......  24

United States v. Manning, 205 
F.Supp. 172 (W.D. La.
1962) ........................  24

United States Postal Service v. Aikens,
460 U.S. 711 (1983) .........  9

- iii -



Page
Statutes

Title VI, Civil Rights Act of
1964 ......................... 35

Title VII, Civil Rights Act of
1964 .......................   passim

Voting Rights Act of 1965 ......... 24
7 C.F.R. § 15.3(b)(6)(i) ..........  39



I. THE APPLICATION OF DISCRIMINATORY 
PRE-ACT SALARY SCALES

Respondents apparently do not defend 
the fourth circuit's holding that both 
Title VII and the Fourteenth Amendment 

permit a public employer to apply a salary 
scale which was originally adopted for 
discriminatory purposes. Respondents ar­

gue only that the courts below erred in 

holding that NCAES had engaged in systema­
tic salary discrimination prior to 1965. 

(R. Br. 30-34).
Respondents acknowledge that at least 

prior to 1 965 it was the policy of NCAES 
to pay blacks lower salaries than whites 
doing the same work. Respondents insist 
that this policy was not the result of 
"intentional racial discrimination", but 
merely stemmed from a desire to save 
money. {R. Br. 32) Because there was 
less of a demand in " the competitive



2

market" for skilled blacks than for 

comparable whites, respondents urge, it 
was entirely reasonable to pay blacks a 
lower salary. (R. Br. 31) Respondents 
assert that the absence of invidious dis­
crimination is established by the testi­
mony of Director Blalock, who asserted 

that there were differences in the 
salaries of black and white employees "not 

because of intentional discrimination on 
anybody's part but reflecting ... the fact 
that black agricultural agents could be 

hired and retained at a lower salary than 
white agricultural agents." (R. Br. 
31-32, quoting C.A. App. 995-99).

This argument misapprehends the 

nature of the statutory and constitutional 
prohibitions against intentional discrimi­
nation. Those prohibitions are not 
limited to cases in which an employer acts 
out of a malicious hatred of blacks,



3

women, or any other protected group. Title

VII and the Fourteenth Amendment forbid a

covered employer, in fixing the salary for

a particular employee or position, from

taking into account for any reason the

race, sex or national origin of the
1

individuals involved. If, as Blalock 
acknowledged, it was the practice of NCAES 
to set a different salary for a particular 
employee based on his or her race, that 
practice constituted discrimination within 
the meaning of Title VII and the Four­
teenth Amendment, regardless of whether 
the practice was adopted as a means to 
save money or as a means to stigmatize 

black workers.

1 This case presents no issues regarding 
when an employer might take race or sex 
into account for benign reasons, such as 
to rectify past societal discrimination.



4

The "competitive market" defense 
proposed by respondents could, if ac­
cepted, largely nullify the statutory and 

consittutional prohibitions against 
discrimination. Title VII was adopted 

precisely because widespread discrimina­
tion had reduced the job opportunities 

generally open to, and the salaries 
ordinarily paid to, blacks, women and 

others. Such invidious practices not only 
affected the wages given to particular 
individuals, but forced down the salaries 
paid for positions generally or exclu­
sively filled by members of one of the 
disfavored groups. it is inconceivable 
that Congress intended the existence of an 
industry wide practice of discrimination 
to become a legal justification for paying 
lower wages to members of the victimized 
group. Title VII was adopted to assure 
that the salary paid to an employee would



5

be a function of his or her skills and 
contributions, not a measure of the extent 
to which other employers had or still 
discriminated against other individuals of 

the same race or sex.

II. STATISTICAL EVIDENCE OF DISCRIMI­
NATION___________ _________________

The Solicitor General urges this 
Court to adopt a very specific and rather 
complex set of standards to be applied in 

evaluating whether statistical evidence is 
sufficient to establish a prima facie case 

of discrimination. (U.S. Br. 22-28) We 
agree that the considerations discussed in 
the Solicitor's brief would be relevant to 
an evaluation of the weight to be accorded 
the statistical evidence in any given 
case, but urge the Court to eschew 
adoption of any rigid standard regarding 
what type of statistics are necessary to 
establish a prima facie case.



6

Because the exact contours of the 

Solicitor's proposed rule would be of 

considerable importance if adopted by the 
Court, we set forth below our understand­
ing of the details of the Solicitor's 

proposal: (a) If a plaintiff establishes 
a simple statistical disparity, such as 
differences in the average salary paid to 
blacks and whites in the same job, that is 
sufficient to create a prima facie case 

only if the defendant offers no evidence 
regarding how it made the challenged 
salary or other decisions. (b ) I f a
defendant establishes through the intro-

2
duction of probative evidence the nature 
of the "major" non-discriminatory factor

The Solicitor emphasizes on several 
occasions that the identity of these 
factors must be based on evidence (U.S. 
Br. 26-27), and that the factors must be 
those most relied on by the defendant at 
issue, not by employers generally. (U.S. 
Br. 27)



7

or factors influencing its decision, the 

plaintiffs' statistical evidence is to be 
treated as inadequate, and insufficient to 
establish a prima facie case, unless the 
plaintiff proves that those factors could

not explain the disparity. In order to

thus ev i scerate a prima facie case, a

defendant need not introduce any ev idence,

however, that those "major" factors had 
actually in any way contributed to the 
proven disparities. (c) A plaintiff is 

only obligated to include in his analysis 
"major" factors that the defendant has 

delineated with a reasonable degree of 

specificity; a general preference for 
"prior experience", for example, would not 
meet that requirement. (U.S. Br. 34) (d)
Rule (b) does not apply to any factor 
which the defendant failed to identify as 

a "major" consideration at a point 
sufficiently prior to trial to permit



8

plaintiff to recalculate his statistics. 
(U.S. Br. 31 n.30) (e) A plaintiff need 

not include in his statistical analysis
any factor he claims is tainted by
discrimination, provided that he offers
"some proof" of such taint. (U..S. Br. 27
n . 24 , 33 n .34 ) ( f) If a defendant
contends that a "non-major " factor
accounted for a disparity, the defendant
must prove, not only that it relied on
that factor, but also that "inclusion of 
the factor would have eliminated the 
statistically significant effect for 
race". (U.S. Br. 26) (g) A plaintiff is 
not required, as part of his prima facie 
case, to consider a factor that is 
impossible to measure or quantify. (U.S. 
Br. 33 n.34, 34 n.35).

We agree that a court might well 
consider all these as well as other 
criteria in assessing the weight of sta-



9

tistical evidence offered by either party. 

But the Solicitor's elaborate 7-part test 
for determining whether statistics 

establish a prima facie case is precisely 

the sort of "rigid, mechanized or ritual­
istic" approach which this Court has 
condemned as a method for ascertaining 

whether a plaintiff has established a 

prima facie case. U.S. Postal Service v. 

Aikens, 460 U.S. 71 1 , 715 ( 1983). Aikens 
made clear that, in evaluating a dis­
crimination claim, courts should ordinar­

ily focus on "the ultimate question of 
discrimination vel non", 460 U.S. at 714, 
rather than becoming embroiled in scholas­

tic disputes about the precise quantum of 
evidence necessary to establish a prima 
facie case. It is certainly true, as the 
Solicitor suggests, that a statistical 
analysis which evaluates a larger number 
of relevant variables is more probative,



10

and deserves greater weight, than a less 

sophisticated analysis. Such differences, 
however, bear primarily on the weight of 

the evidence, not on its admissibility or 
its sufficiency to establish a prima facie 
case. Only rarely should a court hold 

that accurate statistically significant 
statistical evidence of a racial disparity 
in wages, hiring or promotions is insuf­
ficient even to require a defendant to 

offer a legitimate non-discriminatory 
explanation of that disparity.

Burdine does not, as the Solicitor 
suggests, insist that a plaintiff, as part 
of his prima facie case, demonstrate 
conclusively that a challenged act could 
possibly not be explained by any of "the 

most common nondiscriminatory reasons" for 
actions of the sort at issue. (U.S. Br. 

22) In a hiring case, for example, a 
plaintiff need only establish that he was



qualified and that a vacancy existed.

Burd ine, 450 U.S. at 253 n.64. As the 
Court noted in Teamsters v. United States, 

431 U.S. 324 (1976), such evidence 
addresses "the two most common legitimate 
reasons on which an employer might rely to 
reject a job applicant", 431 U.S. at 358 
n.44 (emphasis added), but these clearly 
are not all of the "most common", "most 
important" or "major" reasons why a black 

applicant might be rejected. Many appli­
cants, white as well as black, are also 
rejected because, although qualified, they 
are less skilled than other applicants; in 
some instances the vast majority of 
unsuccessful applicants may be rejected 

for that reason. Yet Burdine, Teamsters 
and McDonnell Douglas v. Green, 411 U.S. 

792 (1973), all make clear that an 
unsuccessful applicant can establish a 
prima facie case of discrimination without



12

offering evidence of comparative qualifi­
cations, or proving that any other 

"common" explanation could not account for 
his rejection.

Any attempt to implement the Solici­
tor's 7-part rule would necessarily 
embroil the courts in arcane disputes 
about the meaning of the Solicitor's 
terminology. The Solicitor's proposal 
requires the courts to divide into two 
categories the types of non-discriminatory

reasons on which an employer could rely in
3

taking a disputed action. One category is 

variously denoted as including the "major" 
(U.S. Br. 24, 26) or "most common" (U.S.

3 The Solicitor argues that this distinction 
was adopted by the court of appeals. 
(U.S. Br. 21). But the fourth circuit 
requires a plaintiff to include in his 
calculations "all measurable variables 
thought to have an effect on salary" 
(Pet. App. 391 a)(emphasis added), regard­
less of whether or not those variables 
were "major".



13

Br. 22, 23, 24, 25) or "most important " 
(U.S. Br. 29) reasons for such actions; 

the other group is referred to by the 
Solicitor as simply "additional" reasons. 

(U.S. Br. 26) The Solicitor proposes that 

a plaintiff be required, as part of his 
prima facie case, to demonstrate the 
absence of any of the "major" legitimate 
reasons; the defendant, on the other hand, 
bears the burden of establishing the 
presence of one of the "additional" 
reasons. Whether a non-discriminatory 
factor is "major" or merely "additional" 
turns, the Solicitor explains, on the 
practices of the employer at issue. (U.S. 
Br. 27) Thus attendance might be a 
"major" factor in fixing salaries at one 

firm, but only an "additional" factor at 
another employer. The Solicitor offers no 

explanation of how a court is to decide 
whether to categorize a factor as "major"



14

rather than "additional". What is clear, 
however, is that under the Solicitor’s 
rule the outcome of many Title VII cases 
would turn largely on which label was 
given to a particular factor.

We do not believe that the result of 
litigation such as this should be deter­
mined by a scholastic debate about whether 
a particular factor is "major" or merely 
"additional". The importance of any given 
factor will always be a question of 
degree, and the omission of any one 
variable may be of greater or lesser 

significance in light of the number and 
nature of the variables that were ana­
lyzed. Under most circumstances it will 
not be possible for either party to 
construct a statistical study that 
includes every factor that might account 
for a disputed employment practice. The 
number and nature of any variables that a



15

plaintiff or defendant may have omitted 

from its statistical analysis may detract, 
to a minor or at times substantial degree, 

from the weight to be accorded that 
evidence. A party seeking to attack the 

completeness of such an analysis ought 
ordinarily introduce probative evidence 
that inclusion of an omitted variable or 
variables would in fact have altered the 

result, rather than merely offering an 

argument that the omitted variable was 
"major" or "important".

The Solicitor's 7-part rule, even if 
it were workable, would make little sense 
in the context of a Title VII claim. Title 
VII prohibits practices with an unneces­
sary discriminatory effect, as well as 
practices adopted for a discriminatory 
purpose. Where a plaintiff establishes 
that an employer's decision-making pro­
cess, such as its procedure for fixing



16

salaries, has an adverse effect on blacks, 

the employer must not only demonstrate the 

absence of any racial motive, but must 
also establish that the criteria used to 

set those salaries were justified by 
business necessity. An employer could not 
defend a salary discrimination claim, for 
example, merely by proving that among 

employees performing the same job it had 
chosen to pay a higher salary to those 
with high school degrees. Cf. Griggs v. 

Duke Power Co., 401 U.S. 424 ( 1971 ). 
Evidence that an employer hires, promotes, 

or pays better salaries to a dispropor­

tionate number of whites ordinarily 
establishes, not only a prima facie case 
of disparate treatment under Teamsters, 
but also a prima facie case of disparate 
impact under Griggs. Teamsters v. United

States, 431 U.S. 324, 335 n.15.



17

Where a plaintiff asserts both a 

disparate impact and a disparate treatment 
claim, no useful purpose would be served 
by requiring that statistical evidence of 

disparate treatment be refined to encom­

pass all "major" or "important" factors. 
Although a plaintiff might fail to satisfy 

such a requirement, even relatively 
unsophisticated statistics, such as 
evidence that an employer hired a dis­
proportionately low number of black 
applicants, would establish a prima facie 
case under Griggs. The process of identi­
fying the criteria that had caused that 
disparity, and that thus required a 
business necessity justification, clearly 
would not be assisted by distinctions 
between "major" and "additional" criteria, 

or by arbitrary presumptions regarding 
which criteria had caused which dis­
parities .



18

Our disagreement with the Solicitor 

is a narrow albeit important one The 
considerations set forth in the govern­

ment's brief would, we agree, be helpful 
in analyzing the weight of statistical 
evidence, and might usefully be applied in 
weighing statistical evidence offered by a 
defendant as well as that introduced by a 
plaintiff. We differ from the Solicitor 

only insofar as he suggests that the Court 

fashion from those considerations a set of 
rules defining what particular combination 
of variables must as a matter of law be 
included in a statistical analysis offered 
to establish a prima facie case of 
intentional discrimination. The infinite 
varieties of statistics, we urge, do not 
lend themselves to the framing or adminis­
tration of such rigid rules, and adoption 
of this approach would divert Title VII 
litigation from an inquiry into the merits



19

of a plaintiff's claim into often arcane 

disputes about the nature of the statis­

tical refinements that would be necessary 
to meet an increasingly complex standard 
for establishing a mere prima facie case.

We expressly endorse the Solicitor's 
recommendation that district judges be 
encouraged to make clear what types of 
statistical analyses they believe are 
important in a given case, and to afford 
the parties a reasonable opportunity to 
fashion and offer that evidence. (U.S. 

B r . 28) Where statistical evidence is
relevant to a civil case, there will 
almost invariably be disputes and uncer­
tainty as to how statistical analyses 
should be constructed, and as to which 
party bears the burden of doing so. 
Frequently the nature of the statistical 
analyses that would be appropriate in a 
particular case will not be apparent on



20

the face of the initial pleadings. A 
substantial amount of discovery will often 

be required before the trial court, or the 

parties, will have a sufficient command of 
the circumstances and nature of the claims 

to understand what types of statistical 
analyses would be relevant. Disputes 
about the manner in which such analyses 
should be conducted ought where possible 
be aired and resolved prior to trial, and, 
particularly where the analyses involved 
are complex and expensive, prior to the 
point at which the analyses themselves are 

prepared. Where a trial or appellate 
court concludes that the statistical 
evidence is sufficiently defective as to 

undermine the court's confidence in its 

ability to accurately resolve the merits 
of the claims, the interests of justice 

would best be served by reopening the 
record, rather than by directing judgment



21

against a party which reasonably failed to 

anticipate that it would be held responsi­

ble for offering such evidence. Cf. 
Hazelwood School District v. United 

States, 433 U.S. 299 ( 1977). In the
instant case, however, that clearly is not 
necessary.

III. NCAES1 LEGAL RESPONSIBILITY FOR 
DISCRIMINATION IN THE SELECTION 
OF COUNTY CHAIRMEN_____________

The Solicitor General characterizes 
the selection of county chairmen as "a 

joint employment decision" of both NCAES 
and the counties. (U.S. Br. 35) The

Solicitor urges that both parties to a 
"joint employment decision" are legally 
responsible for that decision under Title 
VII, and that there is thus no need to 
decide whether, in the absence of such a



22

"joint decision", Title VII might under 
some circumstances impose a form of 

"vicariou[s] liab[ility]". (U.S. Br. 36)
It is not clear whether the 

"joint decision" doctrine espoused by 

the Solicitor differs from the position 
set forth in our principal brief regard­
ing the delegation of governmental 

authority to third parties. In the 

instant case no NCAES official actually 

participated in any way in the final 
choice among two or more names referred

to a county; where several applicants

were approved by NCAES, only county

employees made the choice amongst them.

This relation was a "joint decision" only 

the sense that NCAES had a right, which it 
waived in advance, to participate in that 

choice. The right enjoyed by NCAES 
was indistinguishable from the inherent 
right of any employer to determine the



23

terms and conditions of employment. If, on 
the Solicitor's view, the original 
existence of such a right renders an 
employment decision delegated to a 
third party a "joint decision", that 
would be equally true regardless of 
whether the employer waived its right, as 
here, on an ad hoc basis, or waived that 
right for a specific period of time, as 
occurred in Arizona Governing Board vs. 
Norris, 403 U.S. 1073 (1983).

The Solicitor may be urging, 
however, that the Fourteenth Amendment and 
Title VII permit intentional racial 
discrimination in the administration of 
governmental activities so long as the 
person who exercises discriminatory 
authority over those activities is not 
himself a paid employee of the state. 
Adoption of such a rule would give 
legitimacy to what was long one of the



24

most common segregationist tactics in the 
nation. For decades states sought to 
avoid applications of the Equal Protec­
tion Clause by delegating key decisions 

to private citizens, and the federal 

courts responded by resolutely declaring 

such schemes unconstitutional. Alabama
and Louisiana, for example, at one time
required prospective voters, as a condi-
tion of registration, to be "vouched for"
or "identified" by a person who was
already registered; that practice was
declared unconstitutional when it became
apparent that existing voters would

4
not vouch for or identify blacks. The 
University of Mississippi delegated to 

alumni control over the university's

United States v. Logue, 344 F.2d 290 (5th 
Cir. 1955);United States v. Manning, 205 
F. Supp. 172 (W.D. La. 1962). These 
practices were forbidden by §4{c) of the 
1965 Voting Rights Act.

4



25

admission decisions, requiring all 

applicants to obtain a letter of recom­

mendation from at least one alumnus; when
none of the alumni would endorse James
Meredith ' s application, the fifth
circuit held that the state could not
constitutionally implement the discrimina-

5
tory preferences of those alumni. in 

Alabama responsibility for selecting 
prospective jurors was at one time 

effectively delegated to private citizens 
known as "key men", who in practice 
selected only whites; no member of this 
Court doubted that the state was consti­

tutionally responsible for that invidi­
ous discrimination. Carter v. Greene

6
County, 396 U.S. 320 (1970). This Court

Meredith v. Pair, 298 F.2d 696, 701-02 
(5th Cir. 1962).

g
"Under a 'key man' system, jury commis­
sioners ask persons who are thought to 
have wide contacts in the community to 
supply the names of prospective jurors."



26

has twice held that state employees may
not be dismissed from non-policy making

positions merely because of their
political affiliations; in both instances

the key decisions not to retain the

Republican plaintiffs had been made by
Democratic party officials, not by any

7
state employee. These decisions make 

clear that unconstitutional discrimination 
occurs whenever "the wrongdoer is clothed 
with the authority of state law", Monroe 

v. Pape, 365 U.S. 167, 184 (1961 ),
regardless of whether or not that wrong­

doer received a state salary or held any 
official state title.

Davis v. United States, 411 U.S. 233, 246 
n.2 ( 1 973)(Marshall, J., dissenting). See 
also Rabinowitz v. United States, 366 F.2d 
34 (5th Cir. 1966).

Branti v. Finkel, 455 U.S. 507, 510 n.5 
(1980); Elrod v. Burns, 426 U.S. 347, 351 
( 1 976) .

7



27

IV. DESEGREGATION OF THE 4-H AND 
EXTENSION HOMEMAKER CLUBS

In North Carolina today thousands of 
black children and homemakers belong to 

all-black state and federally-supported 

4-H and extension homemaker clubs. In the 
case of the extension homemaker clubs, the 
segregation is virtually absolute; ac­
cording to the most recent data, less than 
50 black homemakers in the entire state 
belonged to a club with any white members. 
(GX 7) Similarly, witnesses from nine 
counties with substantial non-white 
populations testified that all or vir­
tually all of the black 4-H club members

in those counties were in all-black 
8

clubs.

8 Tr. 1082 (Gates), 1526-38 (Union), 1638-9 
(Wilson), 1739-42 (Granville), 1765-66 
(Vance), 1967 (Halifax), 2446 (Northhamp­
ton), 2450-51 (Washington), 2556 (Pas­
quotank) .



28

The Solicitor General asserts that 
this state of affairs is attributable 
"solely to decisions freely made by 
private actors". (U.S. Br. 48) According 
to the Solicitor, the black women and 

children of North Carolina have sponta­

neously decided to establish a system of 

voluntary and at times complete apartheid, 

preferring to avoid any association with 

white homemakers and children in connec­
tion with 4-H and extension homemaker 
activities; racial isolation exists in 
these federally funded activities, the 
Solicitor suggests, solely because blacks 

chose, often with complete unanimity, to 
have nothing to do with whites. The 
Solicitor does not explain why these black 
women and children, who may work, meet or 
play with whites in all other aspects of 
their lives, would be adamantly opposed to 

participating jointly with the same whites



29

in 4-H or extension homemaker activities. 
The Solicitor nonetheless urges the Court 
to respect those alleged segregationist 
preferences of black North Carolinians, 

and to avoid tampering with the NCAES 
system that fosters and facilitates such 
racial separation.

Nothing in the record, however, 
provides any support for the Solicitor's 
theory that black North Carolinians have 
any such segregationist preferences; not a 
single witness testified that black women 
or children preferred to avoid contacts 

with whites. Freedom of choice has 
failed, we urge, not because blacks have 
spurned participation in integrated ac­
tivities, but because blacks have gen­
erally been denied any meaningful oppor­
tunity to choose such activities.



30

For over 20 years black women and 

children in North Carolina have faced the 

same dilemma as the students in Green v. 

School Board of New Kent County, 391 U.S. 

430 (1968), with the same result. In July 

of 1965, when NCAES replaced its policy of 
mandatory segregation with a freedom of 

choice plan, there were no integrated 4-H 
or extension homemaker clubs to join in 

any community in the state. A black had 
only two options, to participate in the 
very all black club originally established 
by NCAES on a racial basis, or to join an 

all-white program as the first, only, and 
quite possibly unwelcome non-white member. 

For a 10-year old black farm boy who only 
wanted to learn how to grow corn, for 
black housewives who needed assistance 
getting by on meager income, the message 
of intolerance communicated by a club's 
all-white membership was as effective a



31

deterrent as the "Whites Only" signs of 
the past. The price of admission to an 

all-white club was the courage and 
determination of a Rosa Parks or a Linda 
Brown; for most black women and children 

in North Carolina that price proved too 

high. Little has changed since NCAES first 

adopted that freedom of choice plan. Today 

in hundreds of communities across the 
state, all of the NCAES sponsored clubs 
are still all-white or all-black, and 
black women and children remain under­
standably reluctant to shoulder the 

burden, so long shirked by the state, of 

desegregating that system.
( 1 ) Both the district court and the 

court of appeals believed that Title VI 
and the Fourteenth Amendment only require 

NCAES to cease enforcing its pre-1965 
segregation policy, and impose on NCAES no 
obligation to undo the continuing effects



32

of that unconstitutional and unlawful 

policy. The Solicitor General expressly 

disavows this narrow view of NCAES1 

obiigations:
It is not disputed that the Service 
engaged in ... deliberate segregation 
. . . and thus "automatically assumes 
an affirmative duty "to effectuate a 
transition to a racially nondiscrimi- 
natory ... system.*" Such remedial 
efforts are necessary "to restore the 
victims of discriminatory conduct to 
the position they would have occupied 
in the absence of such conduct" ... 
by eliminating the condition that 
violates the Constitution and the 
conditions that flow from such a 
violation.

(U.S. B r . 40) (Emphasis added). NCAES
could not satisfy that obligation by
"simply announc[ing] that it w[ould]
henceforth conduct admissions without
regard to race." (U.S. Br. 43) An agency
such as NCAES must make

diligent oversight and remedial 
efforts to ensure that [its] prac­
tices are not tainted by discrimi­
nation, and do not send a subtle 
discriminatory message, that its 
personnel are sensitized to the need



33

to treat applicants and potential 
applicants in a wholly nondiscrimi- 
natory manner, that its present and 
future practices do not have the 
effect of impeding desegregation, and 
that it is made clear to all that any 
practices discouraging or diminishing 
racial mixing are truly a thing of 
the past.... Against the backdrop of 
recent blatant discrimination, 
affirmative recruitment activities 
will normally be an important part of 
this nondiscrimination effort....

(U.S. Br. 43-44.) Neither the Solicitor 
nor the respondents suggest that NCAES 
ever made any such efforts, or took any 
action whatever other than the adoption of 
the disputed freedom of choice plan.

The Solicitor recognizes two problems 
of particular importance that must be 
addressed by an agency such as NCAES. 
First, where a government program has been 
deliberately organized along racial lines, 
the responsible agency must take whatever 
steps are necessary to eliminate the 

pattern of racial separation brought about



34

by past government action. "To do other­

wise would perpetuate the prior de jure 

segregation by leaving intact conditions 
that are directly attributable to the 

unconstitutional actions of state actors." 

(U.S. Br. 42). Both the constitution and 

Title VI guarantee to each person "an 

equal opportunity to participate in 
government activities free from ... racial 
separation attributable to state action." 
(Id, 43). The Solicitor also correctly

acknowledges that "the truly free exercise 
of choice by private actors" will often 
require that a state do more than merely 
rescind its prohibition against black 
participation in an all-white club or 

school. (U.S. Br. 43). Less blatant
practices may impede the process of 
desegregation, or "send a subtle dis­

criminatory message" that will deter 
blacks from joining state programs or



35

transferring to schools from which they 

were previously excluded. (U.S. Br. 43). 
State practices that are far less extreme 
than formal legal exclusions can impair or 
deter the exercise of the rights protected 
by both Title VI and the constitution.

Having articulated these standards, 

however, the Solicitor summarily asserts 
that "the lower courts found that the 
respondents had fully cleansed the clubs 
of any such racially based activities and 
that racial imbalance is solely the 
product of unfettered private action." 
(U.S. Br. 44). As Judge Phillips em­
phasized in his dissenting opinion below, 
however, no such findings are contained in 
either of the lower court decisions in 
this case. Both the Fourth Circuit and 
the District Court appear to have assumed 
that the only relevant issue was whether 

NCAES still had a policy of segregating



36

the clubs on a racial basis, and the 
decisions below are limited to a holding 
that blacks are no longer rejected for 
membership because of their race. Neither 

opinion below contains any reference to 

either of the issues that the Solicitor 

correctly recognizes as critical 

whether the present composition of the 
clubs is a result, at least in part, of 

the racial basis on which those clubs were 
originally organized, and whether such 
lingering effects impede or deter blacks 
from joining clubs that were established 

and continue to operate on on all-white
basis. (Pet. App. 165a-185a, 424a n.

9
128).

9 The district court opinion, after an 
extended discussion of evidence that NCAES 
no longer forbids blacks to join white 
clubs, states:

"No individual has been 'subjected' 
to segregation or separate treatment 
by the defendants. If any individual 
has become a member of a club com-



37

(2) The Solicitor's brief contains a 
number of passages which appear to assert 

that a state has no obligation whatever to 
disestablish a de jure system, and that a 
state can fully satisfy the requirements 

of the constitution and Title VI merely by 
rescinding the rules which created that de

posed only of members of his or her 
own race, it has been an entirely 
voluntary act without any force or 
coercion on the part of the Extension 
Service. Indeed, the Extension 
Service requires that each club 
formed certify that membership is 
open to all races."

(Pet. App. 172a) . In the context in which 
it occurs, the second sentence clearly 
asserts only that no NCAES rule or 
practice forbids blacks from joining all 
white clubs; this passage does not purport 
to decide whether pressures short of 
"force or coercion" may be inhibiting or 
deterring blacks from joining all-white 
clubs, or whether the present degree of 
racial separation is causally related to 
the previous policy of de jure segrega­
tion. The respondents never claimed or 
sought to prove that black women or 
children preferred not to associate with 
whites; a finding that any such prefer­
ences existed would thus be clearly 
erroneous.



38

jure segregated system. The Solicitor 
first asserts, in a apparent reference to 
NCAES,

Where a state has not assigned 
persons during ... the de j ure period 
... to a particular program, there is 
no state-controlled atttendance 
pattern, discriminatory or otherwise, 
to undo or withdraw. Thus ... a 
genuinely race-neutral policy will 
... fully dismantle the old system.

(U.S. Br. 42-43) (Emphasis in original). 
Prior to 1965, however, as NCAES candidly 
concedes, club members were avowedly 
assigned on a racial basis; blacks were 
directed to join only all black clubs 
operated by the "Negro branch" and whites 

were ordered to join only all-white clubs 
overseen by the "white branch". (Pet. 
App. 27a). This deliberate systematic
assignment of blacks and whites to the 

separate programs of the "Negro" and 
"white" branches, respectively, created a 
state mandated membership pattern that



39

fell along strictly racial lines. That 
pattern was every bit as real and enduring 
as the school attendance patterns created 
by the state's segregationist education 

practices.
The applicable Federal Regula­

tions require NCAES to "take affirmative 
action to overcome the effects of prior 
discrimination." 7 C.F.R. § 15.3(b)(6)
(i) The Solicitor dismisses this regula­

tion with the following somewhat cryptic 

comment.
[Wjhere, as here, admissions are 
traditionally the product of private 
voluntary choice, an entity covered 
by Title VI has fulfilled this 
requirement to take affirmative 
action to overcome the effects of 
prior segregation in admissions when 
it has established a genuinely 
non-discriminatory system.

(U.S. Br. 38 n. 41). This passage appears
to be a prediction that a bona fide
freedom of choice plan will always succeed
in eliminating "the effects of prior



40

segregation" in a case such as this. But 

as the Solicitor correctly notes elsewhere 

in his brief, whether freedom of choice or 
any other measure will prove sufficient to 

dissipate such effects is an intensely 
practical question, one which a court can 
resolve only by weighing the actual impact 

of a particular plan on the specific 
pre-existing de jure system at issue.

The Solicitor suggests that the 
decision in Green turned largely on the 
fact that freedom of choice represented a 
sharp departure from the traditional 
manner in which school authorities 

determined which students would attend 
which schools (U.S. Br. 46-50). But the 

Court in Green condemned the freedom of 

choice plan in that case, not because it 
was novel, but because it was ineffective. 
An equally ineffective freedom of choice 
plan was rejected on the same ground in



41

Board of Visitors v. Norris, 404 U.S. 907 

(1971) aff1g Norris v. State Council of 
Higher Education/ 327 F. Supp. 368 (E.D. 

Va.), even though its use in that case was 
not novel. See also Geier v. University 

of Tennessee, 597 F.2d 1056 (6th Cir. 
1979). The use of a neighborhood school 

assignment policy, which is certainly a 

traditional assignment practice, was 
disapproved on grounds of ineffectiveness 
in Swann v. Charlotte-Mecklenburg Board of 

Education, 402 U.S. 1 (1971).
The Solicitor's description of the 

NCAES freedom of choice plan as "tradi­
tional" is not entirely accurate. Prior to 
1965 residents of North Carolina enjoyed 
no freedom to choose a club whose racial 

composition they preferred; whites were 

required to join all white clubs, and 
blacks were limited to all black clubs. 

Since 1 965 there has been no freedom of



42

choice regarding 4-H and Extension Home­

maker activities at the county or state 
level; following the adoption of Title VI 

NCAES merged previously all white and all 
black county and state activities into 
unitary integrated operations. Only at the 

community level, and only since 1965, have 
North Carolinians been afforded an 
opportunity to select a 4-H or extension 

homemaker program based on its racial com­

position .
The Solicitor urges, finally, that 

the circumstances of this case are 
analogous to the facts in Pasadena Board 
of Education v. Spangler, 427 U.S. 424 
(1976). The Solicitor characterizes the 

Pasadena school board as having merely 
adopted a "racially neutral student 
assignment plan" (U.S. Br. 45); in fact, 
however, the Pasadena plan required the 
race-conscious reassignment of students so



43

as to assure that no school in the 

district was more than 50% non-white. 427 
U.S. at 428. It was only after the board 
had thus eliminated the racial identifi- 
ability of its schools that apparently 
unrelated population shifts began to 
increase the minority concentrations at 

several schools. Unlike the board in 
Pasadena, however, NCAES has never 
implemented or achieved "a racially 
neutral attendance pattern," 427 U.S. at 
437, that might break the causal connec­
tion between past de jure segregation and 

present racial separation.

(3) We noted in our principal brief, 
as had Judge Phillips in his dissenting 

opinion, that the record in this case 
presents substantial evidence that club 
members are intentionally recruited on a 
racial basis. (Pet. Br. 92-93, 95-96; 
Pet. App. 475a-79a). Neither court below



44

purported to decide whether such recruit­

ing had in fact occurred; the district 

court's suggestion that white club leaders 

would "strong [ly] resis[t]'! integration of 

the clubs raises at the least an inference 

that those whites are not voluntarily 

recruiting blacks for the numerous 
existing all-white clubs. (Pet. App. 
184a.) As of 1980, over 97% of the 

individuals responsible for recruiting for 
the all-white club were themselves white.
(GX 11) In this Court neither the Solici­
tor nor the respondents argue that racial 
discrimination in recruiting is either 
legal or constitutional, deny that such 

recruiting occurs, or suggest that the 
lower courts addressed this issue. The 
district court should be directed on 
remand to resolve this claim, and to grant 
whatever injunctive relief may be neces­
sary to eliminate such discrimination.



45

CONCLUSION
For the above reasons the judgment of 

the court of appeals should be reversed. 

Respectfully submitted,

J. LeVONNE CHAMBERS 
RONALD L. ELLIS 
ERIC SCHNAPPER

NAACP Legal Defense & 
Educational Fund, Inc. 
16th Floor 
99 Hudson Street 
New York, New York 10013

Counsel for Petitioners
♦Counsel of Record



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