Turner v. Secretary of the Air Force Motion for Leave to File Brief and Brief Amicus Curiae

    No. 84-3266

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al.,
Plaintiffs-Appellees,

V,

SECRETARY OF THE AIR FORCE, et ,
Defendants-Appellants,

On Appeal from The United States District Court 
for The Northern District of Florida

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND 
BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., as AMICUS CURIAE

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
99 Hudson Street 
16th FloorNew York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae



No. 84-3266

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al.,
Plaintiffs-Appellees,

SECRETARY OF THE AIR FORCE, ^  al.,
Defendants-Appellants.

On Appeal from The United States District Court 
for The Northern District of Florida

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel for amicus curiae certifies 
that the persons listed below have an interest in the outcome of 
this action;

1. William C. Turner, et al. , on behalf of himself 
and all black civilian employees at Elgin Air Force Base on 
January 9, 1976, and thereafter, as plaintiffs.

2. The Secretary of the Air Force and other officials 
of the United States, as defendants.

-  1  -



3. The NAACP Legal Defense and Educational Fund, 
Inc., as amicus curiae.

These representations are made in order that judges of 
this Court, inter alia, may evaluate possible disqualifications 
or recusal pursuant to Rule 22(f)(2) of the Local Rules for the 
United States Court of Appeals for the Eleventh Circuit.

Respectfully submitted.

/ / / , ,  C
CHAMBERS 

CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
99 Hudson Street 
16th Floor
New York, New York 10013

Attorneys for Amicus Curiae

-  1 1  -



No. 84-3266

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al.,
Plaintiffs-Appellees,

V.

SECRETARY OF THE AIR FORCE, et al.,
Defendants-Appellants,

On Appeal from The United States District Court 
for The Northern District of Florida

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND 
BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., as AMICUS CURIAE

STATEMENT REGARDING PREFERENCE

In accordance with Local Rule 22(f)(3) amicus curiae 
states that this case is not entitled to preference in disposi­
tion and proceeding.

Respectfully submitted.
I 9

'-JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae

-  I l l  -



No. 84-3266

IN THE UNITED STATES CODRT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al.,
Plaintiffs-Appellees,

V.

SECRETARY OF THE AIR FORCE, et al.,
Defendants-Appellants,

On Appeal from The United States District Court 
for The Northern District of Florida

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND 
BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., as AMICUS CURIAE

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Local Rule 22(f)(4) amicus curiae suggests 
that this appeal be orally argued in view of the nature of the 
issues raised by the government in its brief.

Respectfully submitted.

//
■1; / /  < ^ 4 ’

irULIUS "LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
99 Hudson Street 
16th FloorNew York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae

- IV -



TABLE OF CONTENTS

Certificate of Interested Persons ............. .
Statement Regarding Preference ................
Statement Regarding Oral Argument ............. .
Table of Authorities .......................... .
Motion for Leave to File Brief ................ .
Brief of the NAACP Legal Defense and Educational 

Fund, Inc., as Amicus Curiae ............... .
Statement of the Issues .......................
Statement of the Case ......................... .
Standard of Review .............................
Summary of Argument ........................... .
Statement of Jurisdiction .....................
Argument ........................................

Introduction .............................
I. The Affirmative Action Obligation of

Federal Government Agencies ......... .
II. The Decision of the Court Below Does

Not Violate the Constitution ........ .
Conclusion ....................................
Certificate of Service ........................ .

Page
1

iii
iv
vi

1

1

1

1
2 
2 

3 

3 

3

8
18

19

-  V  -



TABLE OF AUTHORITIES
Case
Brown v. General Services Administration, 425 

U.S. 820 (1976) ..........................
Clark V. Chasen, 619 F.2d 1330 (9th Cir. 1980)
Firefighters v. Stotts, ____ U.S. ____, 81

L.Ed.2d 483 91984)  ...........................................................

Fullilove V. Klutzinuf, 448 U.S. 448 (1980) ..

Morton V. Mancari, 417 U.S. 534 (1974) ........

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir.
1982) .....................................

University of California Regents v. Bakke,
438 U.S. 265 ( 1 9 78 )  ........................................................

Statutes
Civil Service Reform Act of 1978 ............
Equal Employment Opportunity Act of 1972 ....
15 Stat., Res. 25 ( 1867) ....................
5 U.S.C. § 2301(c) ..........................
5 U.S.C. § 2302(d) ..........................
5 U.S.C. § 4313 .............................
14 Stat., C.296  ( 1 8 66 )  ......................
Freedman's Bureau Act of 1866 ...............
42 U.S.C. § 2000e-5(2) ......................
42 U.S.C. 5 2000e-16 ........................
H.R. 63 ......................................
17 Stat. , 366 ( 1872) ........................
16 Stat., c.14 (1869) .......................

- vi -

Page

6
6

9

9

6

6

9

£assim
1 1 

7 

7

7

1 2

1 0 , 1 1

8
passim 

1 3 , 1 4  

12 

1 2



Page
16 Stat., C.114 ..................................  12
13 Stat., C.90 ( 1865) .................................  13
13 Stat. , C.92 ( 1865) .................................  1 1
12 Stat. , C.33 ( 1863) ................................. 1 1,12
12 Stat., c.103 (1863) ................................ 11

Other Authorities
Congressional Globe .................................. 14,15,16,17
VIII Messages and Papers of the Presidents ...........  13
Federal Personnel Manual Chapter 335 .................... 17
Flac)c, The Adoption of the Fourteenth Amendment

( 1908) ............................................. 16
Fleming, Documentary History of Reconstruction

( 1906) ............................................. 1 1
H. Rep. No. 92-238 (92nd Cong., 1st Sess., 1971) .....  5,6
Schlei & Grossman, Employment Discrimination Law

(2nd Ed. 1983) ..................................... 8
S. Rep. 92-415 (92nd Cong., 1st Sess., 1971) .........  6,8
Ten Broek, Equal Under Law (1968) ...................... 13

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No. 84-3266

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al.,
Plaintiffs-Appellees,

V.

SECRETARY OF THE AIR FORCE, et al.,
Defendants-Appellants,

On Appaal from The United States District Court 
for The Northern District of Florida

MOTION FOR LEAVE TO FILE 
BRIEF OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., as AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc., 
respectfully moves this Court for leave to file a brief amicus 
curiae in the above-styled case in support of the Plaintiffs- 
Appellees.

(1) Movant NAACP Legal Defense and Educational Fund, 
Inc., is a non-profit corporation, incorporated under the laws of 
the State of New York in 1939. It was formed to assist Blacks to 
secure their constitutional rights by the prosecution of law­
suits. Its charter declares that its purposes include rendering



legal aid gratuitously to Blacks suffering injustice by reason of 
race who are unable, on account of poverty, to employ counsel on 
their own behalf. The charter was approved by a New York Court, 
authorizing the organization to serve as a legal aid society. 
The NAACP Legal Defense and Educational Fund, Inc. (LDF), is 
independent of other organizations and is supported by contribu­
tions from the public. For many years its attorneys have 
j^gpresented parties and has participated as amicus curiae in the 
federal courts in cases involving many facets of the law.

(2) Attorneys employed by movant have represented 
plaintiffs in many cases of employment discrimination arising 
under Title VII of the Civil Rights Act of 1 964 and other 
statutes, e.g. , McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973); Albemarle Paper Co., 422 U.S. 405 (1976). They have 
appeared before this Court in a variety of Title VII cases 
including ones involving agencies of the United States govern­
ment, e.g. , Maddox v. Claytor, No. 84-8006 (argued November 27, 
1984 ). We have also been involved in a number of cases raising 
issues concerning affirmative action programs of a variety of 
kinds. Therefore, we believe our views will be of assistance to 
the Court in deciding the issues raised in this appeal.

WHEREFORE, for the foregoing reasons amicus moves that 
the NAACP Legal Defense and Educational Fund, Inc. be given leave 
to file the attached brief amicus curiae.

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Respectfully submitted.
/ ./
 ̂ ■' // /j3C

(oJULIDS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
99 Hudson Street 
16th FloorNew York, New York 1001; 
(212) 219-1900

Attorneys for Amicus Curiae

- 3 -



No. 84-3266

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al..
Plaintiffs-Appellees,

V.

SECRETARY OF THE AIR FORCE, £t al.,
Defendants-Appellants,

On Appeal from The United States District Court 
for The Northern District of Florida

BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., as AMICUS CURIAE

STATEMENT OF THE ISSUES

Amicus adopts the statement of the issues as set out by 
Plaintiffs-Appellees.

STATEMENT OF THE CASE

Amicus adopts the statement of the case as set out by 
Plaint iffs-Appellees.



STANDARD OF REVIEW

Whether the district court was correct as a matter of 
law in providing relief to the class member involved.

SUMMARY OF ARGDMENT
I.

The relief aranted by the district court is fully 
consistent with the provisions of Title VII. When Congress 
enacted the Equal Employment Opportunity Act of 1972, one of its 
central concerns was the relegation of minorities to low status, 
low paying positions in the federal service. Therefore, it 
mandated that federal agencies implement effective affirmative 
action plans to insure the advancement of minorities and women. 
This purpose was re-affirmed by Congress when it passed the Civil 
Service Reform Act of 1978.

II.

The relief granted is also fully consistent with the 
Equal Protecution Clause. One of the central purposes of the 
Fourteenth Amendment was to ensure the constitutionality of 
various federal statutes designed to benefit Blacks so as to 
eradicate the effects of the history of slavery and discrimina-

-  2 -



tion. The findings made by Congress in 1972 as to discrimination 
in federal employment fully justify affirmative relief such as 
was involved here.

STATEMENT OF JURISDICTION

Amicus adopts the statement of plaintiffs-appellants as 
to the jurisdiction of this Court.

ARGDMENT
Introduction

As indicated by the motion for leave to file this 
brief, amicus has a substantial and long standing interest in the 
question of the affirmative action obligations of federal 
government agencies under S 717 of the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. § 2000e-16(b). This brief will 
focus on that issue and we will not discuss the question of the 
scope and meaning of the consent decree in this case and whether 
or not the actions of the district court were in conformity with 
the decree. We will, therefore, discuss two questions; (1) the 
history and meaning of § 717(b) and its relationship with §

Although we will not discuss these issues, we do not wish to 
imply that we concur with the government's views on them. Rather, 
we would note our agreement with the arguments of the plain­
tiff s-appellees on these questions.

- 3 -



706(g) of the Civil Rights Act of 1964; and (2) the consti­
tutionality of the district court's order in light of the 
Congressional purpose expressed in the 1972 Act.

I.
THE AFFIRMATIVE ACTION 

OBLIGATIONS Of FEDERAL GOVERNMENT AGENCIES

The government relies on the provisions of § 706(g) as 
if it were a private employer governed only by the provisions of 
Title VII of the Civil Rights Act as enacted in 1964. It totally 
disreaards the legislative history of § 717 of the 1972 Act, 
which made Title VII's remedial provisions applicable to the 
government. Whatever might be the meaning of 706(g) as it 
applies to a private employer or to a state and local government 
agency, the restrictive interpretation urged by the government 
cannot stand in light of the clear command of § 717 that imposes 
unique affirmative action obligations on federal agencies.

The provisions of 717(b) derive from the concerns of 
Congress in 1972 when it made the decision to extend the pro­
visions of Title VII to the government. Specifically, Congress 
was concerned with the fact that minorities and women were 
consistently relegated to low level positions throughout the 
government. Thus, the House Report states;

- 4 -



statistical evidence shows that minorities and 
women continue to be excluded from large 
numbers of government jobs, particularly at 
the higher government levels ....

This disproportionate distribution of 
minorities and women throughout the Federal 
bureaucracy and their exclusion from higher 
level policy-making and supervisory positions 
indicates the government's failure to pursue 
its policy of equal opportunity.

H. Rep. No. 92-238 (92nd Cong., 1st Sess., 1971), p. 23.

Similarly, the Senate Report states:
Progress has been made in [the] field [of 

equal] employment opportunity], however, much 
remains to be done. Statistical evidence shows 
that minorities and women continue to be denied 
access to a large number of government jobs, 
particularly in the higher grade levels... [T]he 
following listing shows the percentage of 
minority group employees under the General 
Schedule by grade level:

Negro
Spanish-
surnamed

American
Indian

Oriental

GS-1 through GS-4 . . 21.8 3.0 1.8 .6
GS-5 through GS-8 . . 13.5 2.2 . 7 • 8
GS-9 through GS-11 . 5.1 1.5 . 5 1.0
GS-12 through GS-13 . 2.7 .8 .2 . 9
GS-14 through GS-15 . 1.7 .7 . 2 • 8
GS-16 through GS-18 . 1.4 .3 • 1 . 2

Minorities represent 19.4% of the total 
employment in the Federal government (15.0% are 
Negroes, 2.9% are Spanish-surname, 0.7% are 
American Indians, and 0.8% are Oriental). Their 
concentration in the lower grade levels indicates 
that their ability to advance to the higher 
levels has been restricted.

- 5 -



These findings led Congress to place each federal 
agency under an obligation to develop and maintain an affirma~ 
tive program of equal employment opportunity." Section 717(b) 
of the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 
2000e-16(b)) requires federal agencies, first under the direction 
of the Civil Service Commission and now under the Equal Employ­
ment Opportunity Commission, to submit from each department, 
agency and unit an affirmative action plan which provides for the 
"establishment of training and education programs designed to 
provide a maximum opportunity for employees to advance so as to 
perform at their highest potential . . . "

In order that federal agencies will serve as examples 
4for other emplovsrs, they are required to establish career 

systems to increase the opportunities for advancement, utiliza­
tion, training and education of lower grade employees. Agencies 
are to create career development plans, and provide counselling, 
guidance, educational and training opportunities for employees

S. Rep. 92-415 (92nd Cong., 1st Sess.,
1971), pp. 13-14.

As the Supreme Court has noted, § 2000e-16 was enacted because 
the "long standing Executive Orders forbidding discrimination had 
pj^oved ineffective for the most part" and to correct [the] 
entrenched discrimination in the Federal service . . . . ' Morton
V. Mancari, 417 U.S. 534, 546-547 (1974); Brown v. General 
Services Administration, 425 U.S. 820, 825-28 ( 1976). See _a3̂ so_̂  
Clark V. Chasen, 619"F.2d 1330, 1332 (9th Cir. 1980); Thompson v. 
Sawyer, 678 F.2d 257 (D.C. Cir. 1982).
H. Rep. No. 92-238 at p. 22.

-  6 -



relegated to low grade level jobs, and to conduct programs of
occupational analysis, job redesign and job restructuring to
provide new opportunities for advancement.

These recuirements extend to selection for competitive
positions. Under the federal personnel system, selection is not
limited to those who have been mechanically designated as "best
qualified." Rather, selecting officials have discretion to make
a final selection out of those determined to be qualified based
on a number of factors, including explicitly the meeting of "the
agency's affirmative action goals." Federal Personnel Manual
Chapter 335 (Promotion and Internal Placement), Section 1-4.

These princioles were reaffirmed by Congress when it.
enacted the Civil Service Reform Act of 1978. The Act explicitly
states that its prohibitions against discrimination "shall not be
construed to extinguish or lessen any effort to achieve equal
employment oppportunity through affirmative action" (5 U.S.C.
§2302(d)), and mandates special minority recruitment programs to
correct any underrepresentation of minorities in any job cate-

5
gory. (5 U.S.C. § 2301(c)).

In short, the government's argument that there exists a
tension between Title VII's general prohibitions against dis­
crimination and the provision of effective affirmative action

The Act also requires that persons in the Senior Executive 
Service be evaluated on whether they meet affirmative action 
goals and achieve EEC reouirements (5 U.S.C. § 4313).

- 7 -



relief is simply wrong. It ignores the history of the 1972 Act,
the provisions of the Civil Service Reform Act, and the over-
ridinq intent of Congress to correct once and for all the
continuing effects of pervasive discrimination in the federal 

6service. Indeed, appellants' total focus on the single incident 
raised here in total isolation from its overall context flies in 
the face of Congress' primary criticism of the approach the 
government took towards employment discrimination in the federal 
system:

The [Civil Service] Commission should not 
assume that employment discrimination in the 
Federal government is solely a matter of 
malicious intent on the part of individuals. 
It apparently has not fully recognized that 
the general rules and procedures that it has 
promulgated may in themselves constitute 
systemic barriers to minorities and women.

S. Rep. No. 92-415, at p. 14.

II.
THE DECISION OF THE COURT BELOW 
DOES NOT VIOLATE THE CONSTITUTION

As we have shown above, the order of the court below is 
fully consistent with the affirmative action provisions of § 717 
of the Civil Rights Act. Therefore, to hold the order unconsti-

See also, Schlei & Grossman, Employment Discrimination Law (2nd 
Ed. 1983), pp. 1187-90; 1199.

-  8 -



tutional as the government urges would also result in a holding 
that § 7 1 7 ,  to the extent it imposes affirmative action obli­
gations on government agencies, is similarly unconstitutional. 
Such a result is inconsistent both with decisions of the Supreme
Court and with the historv of the Ecual Protection Clause of the

7
Fourteenth Amendment.

With regard to recent affirmative action decisions of
the Supreme Court it is clear that Firefighters v. Stotts, ____
U . s .  , 81 L.Ed.2d 483 ( 1 9 84 )  does not purport to overrule the 
decisions in Fullilove v. Klutzinuk, 448 U.S. 448 ( 1 9 8 0 ) ,  and 
University of California Regents v. Bakke, 438 U.S. 265 ( 1 9 7 8 ) .  

Both of these decisions recognized that special programs that 
benefit Blacks generally as past victims of discrimination can be 
justified in light of legislative findings of a history of 
discrimination. The legislative history recited above constitutes 
precisely a finding that the low status of minorities in the 
federal service is the result of discrimination and compels 
affirmative steps to correct the situation.

Such legislation is also fully consistent with the 
history of the Fourteenth Amendment and, indeed, one of the 
central purposes of the Equal Protection Clause. The Amendment

Although a federal, and not state or local, government agency is 
involved, the issues are the same since the due process clause of 
the Fifth Amendment includes the same guarantee of equal protec­
tion of the laws as does the Fourteenth. Moreover, as will be 
shown below, a specific purpose of the Fourteenth Amendment ws to 
validate federal race-conscious programs.

- 9 -



was passed explicitly to ensure the constitutionality of Con­
gressional acts that provided special benefits for Blacks who had
been newly freed from slavery.

The propriety of race—conscious remedies was a matter 
squarely considered by the Congress which fashioned the Four 
teenth Amendment, and that Congress believed such remedial 
programs not merely permissible but necessary. From the closing 
days of the Civil War until the end of civilian Reconstruction, 
Congress adopted a series of social welfare laws expressly 
delineating the racial groups entitled to participate in or 
benefit from each program. Congress adopted these race-specific 
measures over the objections of critics who opposed such special 
assistance for a single racial group. The most far reaching of 
these proQrams, the 1866 Freedmen's Bureau Act, was enacted less 
than a month after Congress approved the Fourteenth Amendment, 
and there is substantial evidence that a major reason Congress 
adopted the Amendment was to prove a clear constitutional basis
for such race-conscious remedies.

The range and diversity of these measures is striking.
The Bureau of Refugees, Freedmen and Abandoned Lands, (popularly
known as the Freemen's Bureau) was authorized by Congress in 1866
to provide land and buildings and spend designated funds for "the

8
education of the free people," but could provide no such aid to

14 Stat., C.200  at 174,  176 ( 1 8 6 6 ) .

-  10 -



refugees or other whites. The same statute conveyed a number of 
disputed lands to "heads of families of the African races" and 
authorized the sale of some thirty-eight thousand other acres to
black families who had earlier occupied them under authority of

9 . . . ^General Sherman. Congress in 1867 made special provision for
disposing of claims for "pay, bounty, prize-money, or other
monevs due . . . colored soldiers, sailors, or marines, or their
' ' 10legal representatives." It awarded federal charters to organi
zations established to suppor[t] . . ̂ aged or indigent and
destitute colored women and children," to serve as a bank for
"persons heretofore held in slavery in the United States, or

12  ̂  ̂their descendants," and "to educate and improve the moral and
intellectual condition of . . . the colored youth of the nation
(these youth were also provided assistance to them in the form of

1 0

14 Stat., C.200 at 174, 175 ( 1 8 6 6 ) .  The statute referred simply 
to "such persons and to such only as have acquired and are now 
occupying lands under and agreeably to the provisions of General 
Sherman's special field order, dated at Savannah, Georgia, 
January, sixteenth, eighteen hundred and sixty-five. That 
order, as Congress well knew, provided that the land in question 
in South Carolina and Georgia was "reserved and set apart for the 
settlement of the nearoes now made free by the acts of war and 
the proclamation of the President of the United States." II W. 
FLEMING. DOCUMENTARY HISTORY OF RECONSTRUCTION 350 ( 1 9 0 6 ) .

15 Stat., Res. 25 at 26 (1867).
1 1 12 Stat., C.33  at 650 ( 1 8 6 3 ) .

13 Stat., C.92 at 511 ( 1 8 6 5 ) .  

12 Stat., C. 10 3  at 796 ( 1 8 6 3 ) .

1 2

-  11 -



14 15funds and land grants). Express appropriations were made for
"the relief of freedmen or destitute colored people in the

1 6District of Columbia," and for a hospital for freedmen esta—
1 7blished in the District. No comparable federal programs existed

1 8
for —  or were established —  for whites.

These racial distinctions were neither inadvertent nor 
unopposed. A vocal minority in Congress, as well as President 
Andrew Johnson, criticized such proposals as class legislation 
discriminating against whites. A substantial majority of the 
Congress, however, believed such special treatment appropriate 
and necessary to remedy past mistreatment of blacks.

14

1 5

14 Stat. C.296,  317 ( 1 8 66 ) .  Such assistance continued after the 
end of Reconstruction.
12 Stat., C.33  at 650 (1863). Such assistance continued after 
the end of Reconstruction.

16 15 Stat., Res. 4 at 20 (1867).
See, e.g., 16 Stat. c .  1 4 ,  8 ( 1 8 6 9 ) ;  16 Stat., c . 1 1 4  at 5 0 6 - 5 0 7  
7 T 8 7 i T T “ l 7  Stat. 3 6 6  , 5 2 8  ( 1 8 7 2  ). In years prior to these 
appropriations the hospital was supported by the Freedmen s
Bureau.
Other programs, while open 
a limited group of whites, 
the North during the Civ 
medical assistance, cloth 
the Freedmen's Bureau, 13 
C.200 at 174-175 (1866). 
along with the freedmen 
property seized by the 
thizers. 13 Stat., c.90

to all blacks, were also available to 
the unionist refugees who had fled to 
il War. These measures provided food, 
ing and transportation administered by 
Stat. c.90 at 507-508 (1865); 14 Stat. 
Such white refugees were also entitled, 
, to up to 40 acres of land from among 
United States from confederate sympa- 
at 508-509 (1865).

-  12  -



A number of these acts were vetoed by President Johnson
on the explicit ground, inter alia, that they discriminated in

19favor of Blacks. After overriding the President's vetoes, the
same Congress fashioned and approved the Fourteenth Amendment.
Thus, it is clear that one of the chief purposes of the Amendment
was to constitutionalize race-conscious remedies for the ex-

20
elusive or primary benefit of Blacks.

Thus, at the time President Johnson vetoed the
Freedmen's Bureau of 1 866 on the ground of its unconstitutiona— 
lity. Congress was already debating an early draft of the 
Fourteenth Amendment, H.R. 63, which gave Congress the authority

See, e.g., VIII Messages and Papers of the Presidents, 3596, 
3599; 3604-05; 3610-11; 3623.

20 Thus:
"The one point upon which historians of the 
Fourteenth Amendment agree, and, indeed which 
the evidence places beyond cavil, is that the 
Fourteenth Amendment was designed to place the 
constitutionality of the Freedmen's Bureau and 
civil rights bills . . .  beyond doubt . . . . , 
[T]he new amendment was written and passed, at 
the very least, to make certain that that 
statutory plan was constitutional, to remove 
doubts about the adequacy of the Thirteenth 
Am.endment to sustain it, and to place its^ 
substantive provisions in the Constitution."

J. Ten Broek, Equal Under Law 201, 203 (1968).

- 13 -



21
similar to that now contained in Section 5. On February 28, 
1866, nine days after the veto. Congressman Woodbridge, after 
reciting the need for federal aid to destitute freedmen, argued:

"But it may be said that all this may be done 
by legislation. I am rather inclined to think 
that most of it may be so accomplished. But 
the experience of this Congress in that regard 
has been most unfortunate. Sir, I cast no 
imputation upon the President of the United 
States . . . .  Put inasmuch as the President, 
honestly, I have no doubt, has told us that 
there were constitutional difficulties in the 
way, I simply suggest that we submit the 
proposition to the people, that they may 
remove these obi^^tions by amending the 
instrument itself."

Later in the debate on the same day Congressman Bingham, the 
sponsor of H.R. 63, placed in the record a newspaper article 
describing the "rejoicing of the people of the South" at news 
"that the President had vetoed the Freedmen's Bureau bill." When 
opponents objected to the relevance of this article, the Speaker 
ruled it was pertinent since related to the purpose and effect of 
the proposed Amendment:

21

22

The Amendment then before the House provided, 'The Congress shall 
have power to make all laws which shall be necessary and proper 
to secure to the citizens of each State all privileges and 
immunities of citizens in the several States, and to all persons 
in the several States equal protection in the rights of life, 
liberty, and property." H.R. 63, 39th Cong., 1st Sess. (1866) 
GLOBE 1034.
Id. at 1088.

- 14 -



"This constitutional amendment proposes to 
give Congress 'power to make all laws which 
shall be necessary and proper to secure to the 
citizens of each State all privileges and 
immunities of citizens in the several States 
and to all persons in the several States equal 
protection in the rights of life, liberty, and 
property. ' And if the Chair is correctly 
informed by the remarks of the gentleman from 
Ohio as to what this extract is, it relates to 
the veto by the President of a bill passed by 
Congress in regard to the rights of certain 
persons, and if that is the case, it may be 
within the province of Congress to pass a 
constitutional amendment to secure those 
rights and the rights of others generally, and 
therefore, as part of the remarks of the 
gentlera^ from Ohio, this is certainly in 
order.

The Freedmen' s Bureau Act of 1866, the Reconstruction
measure which probably contained the most race-specific remedial
legislation, was considered simultaneously in Congress with the
Fourteenth Amendment. The House passed the Amendment on May 10,
1866, the Senate voted a modified version on June 8, 1866, and24
the House acquiesced in the Senate changes on June 13. The
House approved the second Freedmen's Bureau Act on May 29, 1866,25
the Senate voted a modified version on June 26, 1866, and the

23 Id. at 1092.
24 Id. at 2545, 3042, 3149
25 Id. at 2773, 3413, 3524

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Conference Report was adopted on July 2 and 3, 1866. On several
occasions the Act was debated in one House at the same time the26
Amendment was beina debated in the other.

Moreover, the same legislators who comprised the
two-thirds majority necessary to override President Johnson's
second veto of the Freedmen's Bureau Act of 1866 also composed27
the two-thirds majority who approved the Fourteenth Amendment.
the sponsors of the Amendment, Congressman Stevens and Senator
Wade, as well as its apparent author. Congressman Bingham, all
voted for the Freedmen's Bureau Act. The sponors of the Act,
Senator Trumbull and Congressman Eliot, voted for the Amendment;28
Eliot spoke at length in support of the Amendment, and Trumbull
wrote and sponsored the 1 866 Civil Rights Act whose substantive29
provisions were the basis of section 1 of the Amendment.

The Thirty-Ninth Congress, which was fully aware of the 
race—conscious remedies and limitations contained in the 
Freedman's Bureau Acts it had passed in February and July of

26
27

28
29

See, e.g., at 2799, 2807, 2869, 2977.
Of the 33 Senators and 104 Representatives who voted to override 
President Johnson's second veto of the Freedmen's Bureau Act, all 
who were present for the vote on the Fourteenth Amendment voted 
for it. Of the 33 Senators and 120 Representatives who voted for 
the Amendment, all but 4 representatives who were present for the 
vote or the veto voted to override it. Id. at 3042, 3149, 3842, 
3850.
See, e.g., id. at 2511-12.
See H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT, 55-97 
( 1908) .

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1866, cannot conceivably have intended by its approval of the 
Fourteenth Amendment on June 12, 1866, to have invalidated or
forbidden such remedies. The debates in that Congress have an 
uncannily modern reverberation: the opposition to the Freedmen s 
Bureau Acts and other race specific remedies was expressed in 
much the same terms as contemporary argument against such 
measures. These opponents —  and appellants have contended 
that abstract priciples of equality and racial justice preclude 
special considerations for racial groups whose members have for 
generations suffered invidious discriination, although the lack 
of remedial treatment is likely to perpetuate the exclusions of 
these groups from important areas of American life. This social 
theory was repeatedly and overwhelmingly rejected over a hundred 

ago, and insofar as appellants' arguments in this case 
assume the Equal Protection clause is founded upon such a theory, 
these arqum.ents do not withstand analysis.

CONCLUSION

For the foregoing reasons, the decision of the court 
below should be affirmed.

- 17 -



Respectfully submitted.

7
t

w-
"̂k

JULIOS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
99 Hudson Street 
16th FloorNew York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae

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CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing Motion and 
Brief Amicus Curiae on the parties in this case by depositing the 
same in the United States mail, first class postage prepaid, 
addressed to;

Mark W. Pennak, Esq.
Attorney, Appellate Staff 
Civil Division, Room 3125 
Department of Justice Washington, D.C. 20530

Attorney for Appellants
Thomas Warren, Esq.
Sprigqs & Warren, P.A.117 S. Martin Luther King, Jr., Blvd, 
Tallahassee, Florida 32301 

Attorney for Appellees

Dated: December 17, 1984. V

Attorneys for Amicus Curiae
-c^