Minnick v. California Dept. of Corrections Slip Opinion

    (Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be re­
leased, as is being done in connection with this case, at the time 
the opinion is issued. The syllabus constitutes no part of the opinion 
of the Court but has been prepared by the Reporter of Decisions for 
the convenience of the reader. Bee United States v. Detroit Lumber 
Go., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES
Syllabus

MINNICK ET AL. v. CALIFORNIA DEPARTMENT OF 
CORRECTIONS et al.

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST 
APPELLATE DISTRICT

No. 79-1213. Argued December 2, 1980— Decided June 1, 1981

Petitioners, two white male correctional officers employed by the California 
Department of Corrections and an organization representing correctional 
officers and some other Department employees, filed suit in California 
state court against respondents, the Department and various state 
officers, alleging that the Department’s affirmative-action plan unlaw­
fully discriminated against white males and that the individual peti­
tioners had been denied promotions because of race. On the basis of 
the California Supreme Court’s decision in Bakke v. Regents of the 
University of California, 18 Cal. 3d 34, 553 P. 2d 1152, the trial court, 
enjoined respondents from giving any preference on the basis of race or 
sex in hiring or promoting any employee, but allowed the use of race 
or sex as a factor in making job assignments. On respondents’ appeal, 
the California Court of Appeal reversed, holding that the trial court’s 
rationale was no longer tenable in view of this Court’s intervening 
decision in Regents of the University of California v. Bakke, 438 IT. S. 
265. However, the Court of Appeal did not unequivocally direct that 
judgment be entered for respondents, but left certain questions open for 
“ examination if the case is to be retried.”

Held: This Court’s writ of certiorari, granted to review the merits of the 
Court of Appeal’s decision, is dismissed. Because of significant develop­
ments in the law and because of significant ambiguities in the record 
concerning both the extent to which race or sex has been used as a 
factor in making promotions and the justification for such use, the 
constitutional issues should not be addressed until the trial court’s 
proceedings are finally concluded and the state appellate courts have 
completed their review of the trial-court record. Pp. 15-22.

Certiorari dismissed. Reported below: 95 Cal. App. 3d 506, 157 Cal. 
Rptr. 260.

x



II MINNICK v. CALIFORNIA

Syllabus

Stevens, J., delivered the opinion of the Court, in which Btjegee, C. J., 
and W hite, M arshall, Blackmun, Powell, and Rehnquist, JJ., joined. 
R ehnquist, J., filed a concurring opinion. Brennan, J., filed an opinion 
concurring in the judgment. Stewart, J., filed a dissenting opinion.



NOTICE : This opinion is subject to formal reyision before publication 
in the preliminary print of the United States Reports. Readers are re­
quested to notify the Reporter of Decisions, Supreme Court of the 
united States, Washington, D.C. 20543, of any typographical or other 
formal errors, in order that corrections may be made before the pre­
liminary print goes to press.

SUPBEME COUBT OF THE UNITED STATES

No. 79-1213

Wayne Minnick et al., 
Petitioners 

v.
California Department of 

Corrections et al.

On Writ of Certiorari to the 
Court of Appeal of Cali­
fornia for the First Appellate 
District.

[June 1, 1981]

Justice Stevens delivered the opinion of the Court.
Petitioners contend that an affirmative action plan adopted 

by the California Department of Corrections in 1974 is un­
constitutional under the Equal Protection Clause of the 
Fourteenth Amendment. The trial court agreed and entered 
judgment in petitioners’ favor. The California Court of Ap­
peal reversed, 95 Cal. App. 3d 506, 157 Cal. Rptr. 260, modi­
fied, 96 Cal. App. 3d 626a, holding that the trial court's 
rationale was no longer tenable in light of this Court’s inter­
vening decision in Regents of the University of California v. 
Bakke, 438 U. S. 265. The Court of Appeal’s opinion, how­
ever, also identified certain problems that “require examina­
tion if the case is to be retried.” Thus although we granted 
certiorari to review the merits of the Court of Appeal’s deci­
sion, we first must confront the question whether the writ 
should be dismissed because the judgment did not finally de­
termine the legal status of the challenged plan.

I
The 1974 “Affirmative Action Program,” as revised in 1975, 

is a lengthy and somewhat ambiguous document. Much of 
the plan relates to the Department’s commitment to the 
eradication of discrimination on the basis of race and sex.



2 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

The plan’s first section, which describes the program in gen­
eral terms, states:

“It is the policy of the Department of Corrections to 
provide equal employment opportunities for all persons 
on the basis of merit and fitness and to prohibit discrim­
ination based on race, sex, color, religion, national origin, 
or ancestry in every aspect of personnel policy and prac­
tices in the employment, career development, advance­
ment and treatment of employees.” 1

This section of the plan then identifies specific means of 
implementing this general nondiscriminatory policy.2 The 
second section of the plan, which establishes guidelines for 
the implementation of the program within the existing or­
ganizational structure and defines the affirmative action roles 
of Department employees, also contains a number of provi­
sions suggesting that the plan was intended to remove any 
barriers to equal employment opportunities.3 Finally, the

1 App. 3.
2 “Specific actions required by [the] plan” include, inter alia, increasing 

the number of female and minority employees through “ programs for re­
cruiting, selecting, hiring, and promoting minorities and women, monitor­
ing employment practices related to employment of women and minorities, 
establishing goals for measuring success in complying with nondiscrimina­
tion laws, training staff to “ develop a sensitivity . . . to recognize and 
positively deal with discriminatory practices,”  and training women and 
minority employees to assure their full participation at all employment 
levels. Id., at 2-3.

3 The plan, for example, provides for the creation of various new posi­
tions, including a supervisor for the human relations section:

“ The Supervisor, Human Relations Section, under the direct supervision 
of the Assistant Director, Personnel Management, and Training Division, 
shall have authority and responsibility for the following duties:

“7. Provide assistance to the Departmental Training Officer and local 
Training Officers in developing training relative to human relations and 
affirmative action.

“8. Review the department’s programs and procedures related to per­



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 3

third section, which identifies specific objectives of the plan, 
also refers to departmental efforts to eliminate discrimination 
in hiring and in employment practices.4

The plan does, however, contain some indication that the 
Department intended to go beyond the eradication of dis­
criminatory practices. The second section states that deputy 
directors, assistant directors, and division chiefs were to be 
responsible for developing a plan to “ correct identifiable 
defieiences through specific, measurable, attainable hiring 
and promotional goals with target dates in each area of 
underutilization.” 5 The plan also refers to “guidelines” 
issued by the Law Enforcement Assistance Administration of 
the United States Department of Justice (LEAA) indicating 
“that an Agency’s percentage of minority personnel should be 
at least 70% of that minority in its service (inmate popula­

sonnel activities and make recommendations for any changes necessary to 
remove barriers to attainment of equal employment opportunity.

“9. Develop procedures with the Assistant Director, Womens Affairs for 
the receipt and the investigation of allegations and complaints by indi­
viduals, organizations, employees, or other third parties of discrimination 
on grounds of race, color, sex or national origin.”  Id., at 8-10.
Each division, institution, and parole region was to appoint an Affirmative 
Action Representative, whose duties include acting as liaison between 
“management and program staff, various organization units, special interest 
groups and organizations, [and] community leaders,” analyzing discrimi­
nation complaints to identify problem areas and assist in their resolution, 
and assisting in the development of a written recruitment plan. Id., at 11.

4 The plan has as some of its objectives recruitment programs designed 
to reach minority communities and schools with significant minority enroll­
ments, id., at 20-21, continuous review of job requirements to insure that 
qualification standards “ are based on the minimum required to perform 
necessary duties,”  id., at 23, on-the-job training to prepare employees to 
meet the requirements of their jobs, id., at 25, and the communication to 
managers, supervisors, and employees of the commitment of the Depart­
ment to equal employment opportunity. Id., at 27.

5 App. 6.



4 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

tion).” 6 Moreover, the plan notes that in “ the total labor 
force in California, 38.1% are female; Department of Correc­
tions’ personnel reflect a total of only 17.3%.” 7 The section 
of the plan containing objectives indicates a commitment by 
the Department to “ increase departmental efforts to employ 
minorities and women to achieve the percentages . . . per 
LEAA guidelines within five (5) years,” and to achieve a 
work force containing 36% minorities and 38% women.8 The 
plan does not identify what means, in addition to eradicating 
discriminatory practices, the Department would employ to 
achieve these percentages. Thus, the plan may be inter­
preted as predicting that a nondiscriminatory policy would 
result in a work force including 36% minority and 38% 
female employees by 1979; alternatively, it may be read as 
mandating affirmative action to achieve these percentages by 
the target date.9

6 Id., at 28. The plan then continues:
“ On this basis, Black personnel should represent at least 22.5% of the 
departmental work force, whereas they apparently comprise 8.8%. Simi­
larly, Spanish surname personnel should represent 12.1%, but actually 
comprise 7.4%. Native American personnel should comprise .7%, while 
they actually make up .2%. Only the Asian and other extraction are 
represented in accord with the guidelines.”  Id., at 28-29.

7 Id., at 31.
8 Id., at 16-17. The plan contains detailed statistics relating to the 

number of employees of different groups referred to as “ black,” “ Asian,”  
“ Spanish surnamed,” “ native American,”  and “ other extraction,”  as well 
as breakdowns by sex, in different positions and in the various facilities 
operated by the Department of Corrections. Id., at 28-65.

9 For example, one of the stated objectives of the plan is “ to increase 
significantly the utilization of minorities and women across organizational 
units of the CDC and at all levels possible as vacancies occur.”  The first 
“ specific action”  listed to accomplish this objective relates to the elimina­
tion of discrimination by committing the department to
“Develop recruitment plans and public relations activities with specific 
focus on minority communities, organizations, and women organizations,



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 5

II
In December 1975 the three petitioners commenced this 

litigation in a California Superior Court. Minnick and Dar­
den, the individual petitioners, are white male correctional 
officers. The third petitioner, the California Correction Offi­
cers Association (CCOA) is an employee organization that 
represents correctional officers and some other employees of 
the Department. In their complaint petitioners alleged that 
the affirmative action plan unlawfully discriminated against 
white males and that the individual petitioners had been 
denied promotions because they were white.

The California Department of Corrections and various 
state officers named as defendants, respondents here, denied 
in the trial court that they had discriminated in hiring and 
promotion and claimed that the department’s central policy 
was to hire and promote only the most qualified persons.10

to inform them of career opportunities within GDC and the desire to 
employ minorities and women.”
The second “ specific action”  is to “ increase departmental efforts to employ 
minorities and women” to achieve the LEAA percentages and the 36% 
minority and 38% female percentages. Id., at 16. No specific means of 
achieving this goal are indicated. The plan’s use of the LEAA guidelines 
does not clarify the intended implementation of the plan. In discussing 
the LEAA guidelines, the plan states:

“To provide agencies goals, equal employment opportunity guidelines 
have been issued by the U. S. Department of Justice. They specify that 
the percentage of minority staff in the employment of the agency be at 
least 70% of the percentage of the minorities in the service (inmate) 
population.” Id., at 38.
The LEAA guidelines’ explanation of their purpose states, in part, that 
the experience of the LEAA “ has demonstrated that the full and equal 
participation of women and minority individuals in employment opportuni­
ties in the criminal justice system is a necessary component to the Safe 
Streets Act’s program to reduce crime and delinquency in the United 
States.” Id., at 71. See 28 CFR 42.301 (1980).

10 See Tr. 194, 203-206, 383, 452-453, 487-488, 548, 563-564, 591, 666, 
668, 672, 773, 792, 882. George C. Jackson, then the deputy director of



6 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

Alternatively, however, the respondents contended that the 
State’s interest in the efficient and safe operation of the cor­
rections system justifies an attempt to obtain a work force 
containing a proportion of minority employees amounting 
to at least 70% of any minority’s proportional representation 
in the inmate population, and also containing as large a per­
centage of female employees as are found in the total Cali­
fornia work force.* 11 During pretrial discovery, respondents 
also indicated that the impact of their past practices had 
resulted in a disproportionate hiring and promotion of white 
males, but stated “ for the purposes of this litigation” that 
they did not allege that the Department had engaged in any 
past intentional discrimination against minority or female 
workers.12

After a trial at which over 30 witnesses testified, the case 
was argued at length and submitted to the trial judge for 
decision on November 23, 1976. At that time the Supreme

the Department, testified that the program’s goal was “ to make the De­
partment of Corrections a fair place to work.”  Tr. 665.

11 The Deputy Attorney General defending the case on behalf of the 
respondents stated at trial:
“ Our defense is on two levels, your honor.

“First of all, we're contending in this case that the Department only 
hires the most qualified people, and that’s their policy. There may be 
exceptions down below, but that’s their policy.

“ On the other hand, if the Court so should find that they’re using race 
as a factor in the hiring process as a qualification process, then we have 
the burden of showing that they must demonstrate a real reason for doing 
this. And that’s what we’ve been trying to do with these witnesses, show­
ing they have a real problem.

“ I have a compelling state interest if the Court should find that race 
is being used as a factor. To do that, I have to show that they have a 
real problem that they’re trying to solve, the violence in the prisons, the 
operation of the prisons.

“ And the next step is to show that they’re trying to solve it by hiring 
minorities in the ratios they’re trying to hire.”  Tr. 660-661.

12 Clerk’s Transcript on Appeal 121-122.



Court of California had only recently held in Bakke v. Re­
gents of the University of California, 18 Cal. 3d 34, 553 P. 2d 
1152 (1976), that the Equal Protection Clause of the Four­
teenth Amendment to the United States Constitution pro­
hibited a state university from giving any consideration to 
an applicant’s race in making admissions decisions.

On January 5, 1977, the trial judge issued a “notice of in­
tended decision” which tersely summarized the parties’ re­
spective positions:

“The testimony and documentary evidence herein 
show, and defendants admit, that defendants have car­
ried on a campaign to, and they do now, select appli­
cants for employment and for promotion based on their 
sex and on their racial background or ancestry.

“Defendants seek to justify their actions on the basis 
that while the sex of an applicant is one of the factors 
considered, the applicant must be otherwise qualified for 
the duties to be performed. Sex or racial background is 
not the sole factor considered. Plaintiffs on the other 
hand assert that the hiring or promotion of a person 
based in whole or in part on sex or racial background or 
ancestry is unconstitutional and void.

“The Court agrees with plaintiffs.”  App. to Pet. for 
Cert. D -l-D -2 .

The notice then directed that an injunction issue enjoining 
the respondents “ from considering as a factor for employ­
ment or for the promotion of a candidate his sex, race, or 
national origin.” App. to Pet. for Cert. D-2. The court 
directed counsel to prepare an appropriate order and to sub­
mit proposed findings of fact and conclusions of law.

Before any further order was entered, respondents filed a 
motion to reopen the record and to receive detailed evidence 
of past discriminatory practices.13 Presumably the proffered

MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 7

13 Id., at 670-671.



evidence would provide support for a defense based on the 
theory that the plan was justified as a remedy for past dis­
crimination. The evidence was, however, quite plainly ir­
relevant to the theory of the trial judge’s intended decision 
which was, of course, wholly consistent with the rationale of 
the California Supreme Court’s opinion in Bakke, supra. 
The trial judge summarily denied the motion to reopen.

On October 11, 1977, the trial court entered findings of fact 
and conclusions of law, a declaratory judgment, and a per­
manent injunction. App. to Cert. Pet. F, G. The court 
did not find that either of the individual petitioners had been 
denied a promotion on the basis of his race or sex. Nor did 
the court find that the CCOA had standing to bring the ac­
tion. Two of the findings that the court did enter (No. 8 
relating to hiring and promotions and No. 19 relating to job 
assignments) are especially relevant to the procedural issue 
before us.

Finding No. 8 provides, in part:
“Defendants Department of Corrections and Jeri J. 

Enomoto have discriminated and are continuing to dis­
criminate by reason of sex and by reason of ethnic back­
ground in hiring and promotion of employees in the 
Department.

“ In so doing, preferences result in favor of certain ethnic 
groups, or in favor of one sex to the detriment of the 
other, and not solely on the qualifications of the individ­
uals involved, or their merits.” App. to Pet. for Cert. 
F-4.

Finding No. 19 provides:
“The unique and sensitive nature of the functions of 

the Department of Corrections and the peculiar difficul­
ties inherent in the administration of California’s prison 
system require the Department to exercise broad discre­
tion in making job assignments and in determining the

8 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 9

employment responsibilities of its employees. Been,use 
of the conditions and circumstances within California 
prisons and throughout the Department of Corrections, 
in making job assignments and in determining employ­
ment responsibilities it is necessary for the Department 
to consider, among other factors, the composition of the 
existing work force and of the inmate population, and 
the race and sex of employees, in order to serve the com­
pelling state interest in promoting the safety of correc­
tional officers and inmates, encouraging inmate rehabili­
tation, minimizing racial tensions, and furthering orderly 
and efficient prison management.” App. to Pet. for 
Cert. F-6-F-7.

In the conclusions of law and in the permanent injunction, 
the trial court distinguished hiring and promotion decisions, 
on the one hand, from job assignments and determination of 
employment responsibilities on the other. Finding No. 19 
relates only to the latter and provides the basis for the trial 
court’s conclusion that respondents could lawfully consider 
race and sex as factors in determining job assignments and 
job responsibilities.14 That finding also explains the proviso 
in the permanent injunction allowing the use of race or sex 
as a factor in making job assignments.15 Finding No. 8, 
however, provides the central support for the permanent in­
junction against giving any preference, advantage, or benefit

14 Conclusion of Law No. 4 reads as follows:
“ It is not contrary to law for the Department, in determining job assign­

ments and job responsibilities of its employees, to consider, among other 
relevant factors, the composition by race and sex of the existing work 
force and of the inmate population, and the race and sex of the employees 
in question.”  App. to Pet. for Cert. F-2.

15 The permanent injunction contains the following proviso:
“ (a) Provided, however, that nothing in this Order shall prevent any 

person, in determining the assignments and job responsibilities of employees 
of the Department of Corrections, from considering, among other relevant 
factors, the race and sex of the employees in question.”  App. to Pet. for 
Cert. G—2.



10 MINNICK V. CALIFORNIA DEPT. OF CORRECTIONS

on the basis of race or sex in hiring or promoting any 
employee.16

I l l
Respondents appealed to the California Court of Appeal. 

While their appeal was pending, this Court issued its deci­
sion in Regents of the University of California v. Bakke, 438 
U. S. 265. Although we affirmed the judgment of the Cali­
fornia Supreme Court to the extent that it had ordered the 
University to admit Bakke to its medical school, the opinions 
supporting that decision indicated that at least five Members 
of the Court rejected the legal theory on which the California 
Supreme Court had relied. Specifically, both the opinion of 
Justice Brennan , Justice W hite , Justice M arshall, and 
Justice Blackmun and the opinion of Justice Powell un­
equivocally stated that race may be used as a factor in the 
admissions process in some circumstances.17 To the extent 
that those opinions demonstrated that the California Su­
preme Court’s interpretation of the Fourteenth Amendment 
was erroneous, they also demonstrated that the trial judge’s 
faithful application of that court’s Bakke rationale in this 
case was an insufficient basis for supporting the injunction.

16 The permanent injunction enjoins respondents “ [f]rom hiring or 
promoting any employee in the Department of Corrections in which pref­
erence, advantage, or benefit is given to race, color, sex, or national origin.” 
Ibid.

17 Justice Brennan, Justice W hite, Justice Marshall, and Justice 
Blackmun joined section V-C  of Justice Powell’s opinion, which stated: 
‘Tn enjoining petitioner from ever considering the race of any applicant, 
however, the courts below failed to recognize that the State has a sub­
stantial interest that legitimately may be served by a properly devised 
admissions program involving the competitive consideration of race and 
ethnic origin. For this reason, so much of the California court’s judg­
ment as enjoins petitioner from any consideration of the race of any 
applicant must be reversed.” 438 U. S., at 320.
See also id., at 325 (opinion of Justice Brennan, Justice W hite, Jus­
tice M arshall, and Justice Blackmun).



MINNICK v. CALIFORNIA DEPT, OF CORRECTIONS 11

With the guidance of this Court’s decision in Bakke, the 
California Court of Appeal reversed the judgment and the 
injunction entered by the trial court in this case. Relying 
largely on Justice Powell’s opinion in Bakke, the Court of 
Appeal concluded that race or sex could be used as a “plus” 
factor,, in personnel decisions that promoted a compelling 
state interest.15 The court seemed to indicate that the trial 
court’s finding No. 19 supported a conclusion that the State’s 
interest in a safe and efficient prison system constituted such 
an interest.18 19

With respect to the challenge to hiring procedures, the 
Court of Appeal concluded that the evidence was insufficient 
to support finding No. 8 insofar as that finding related to 
preferences in favor of males over females or insofar as it 
related to the hiring of any employees.20 References to the

18 The Court interpreted Justice Powell’s opinion to permit considera­
tion of race in the school admissions process to serve the compelling state 
interest of promoting ethnic diversity among the students if
“ (1) ‘ . . . race or ethnic background may be deemed a “ plus”  in a partic­
ular applicant’s file, yet . . . does not insulate the individual from 
comparison with all other candidates for the available seats’ ; and (2) a 
candidate not credited with that ‘plus’ will be ‘ fairly and competitively’ 
evaluated for all the seats without being ‘totally excluded from a specific 
percentage’ of them which has been restricted to a particular racial or 
ethnic group. [438 U. S., at] 316-319.”  95 Cal. App. 3d, at 520, 157 
Cal. Rptr., at 268.

19 Although finding No. 19 related only to transfer and assignment 
policies, the court seemed to rely on that finding to support the threshold 
proposition that the State has a compelling state interest in the safe 
operation of its prison system:
“ In its finding no. 19, the trial court effectively determined that the 
practices apply the prison-related realities of race and sex to the point 
of promoting a ‘compelling state interest’ in a safe and efficient correc­
tional system.”  Id., at 520-521, 157 Cal. Rptr., at 268.

20 “ The terminal question is whether this record supports the declaration, 
in paragraph 1 of the judgment, that the department and Enomoto vio­
lated the Equal Protection Clause by ‘discriminating’ on the bases of 
race and sex in the ‘hiring and promotion of employees.’ The declaration



12 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

possibility of a retrial in other portions of the opinion,* 21 im­
ply that petitioners will have an opportunity to remedy any 
deficiencies in their proof of sex discrimination or racial dis­
crimination in hiring.

With respect to the challenge to promotion practices, the 
Court of Appeal apparently believed that the trial court’s 
finding of discrimination in finding No. 8 was inconsistent 
with the trial court’s finding No. 19.22 Although finding No.

rests on the trial court’s finding (No. 8) that they had 'discriminated’ in 
those respects by applying personnel practices from which ‘preferences 
result in favor of certain ethnic groups or . . .  of one sex.’ (See fn. 5, 
ante.) According to our review of the evidence, it does not support a 
finding that ‘preferences result’ from the practices in favor of males or in 
the ‘hiring’ of employees. Finding no. 8 therefore fails to support the 
declaration in either‘respect.”  Id., at 521, 157 Cal. Rptr., at 269.

21 “ If the case is to be retried, Justice Powell’s decision in U. S. Bakke 
will be pertinent to the determination of either question. (See U. S. 
Bakke, supra, 438 U. S. 265, at pp. 307-310.)

“These problems require examination if the case is to be retried.”  Id., at 
526, 157 Cal. Rptr., at 272.

22 After the court cited finding No. 19 and identified the compelling 
state interest in the safe and efficient operation of the prison system, the 
court stated:
“ [T]he department is pursuing those objectives by assigning a female or 
minority employee a ‘plus’ in competition for promotion or transfer. The 
qualifications of other employees in the competition are still ‘weighed 
fairly and competitively.’ ”  Id., at 521, 157 Cal. Rptr., at 268.
After concluding that the proof of discrimination was insufficient as to the 
hiring challenge, the court stated:

“ The practices otherwise identified in [finding No. 8] have just been 
examined in light of U. S. Bakke and under the ‘strict scrutiny’ it com­
mands. We conclude that they are permitted by the Equal Protection 
Clause within the limited extent that noncontrolling ‘preferences result in 
favor of certain ethnic groups,’ for purposes of promotion or transfer of 
personnel within the department, because they are necessary to promote 
the compelling interest of this state in the proper management of its cor­
rectional system. For the same reasons, they are permitted insofar as the



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 13

19 clearly applies only to transfers, the court seems to have 
read that finding to identify a compelling state interest and 
then to have determined that the evidence adequately justi­
fied the use of race as a plus factor for promotions as well as 
transfers. The court, however, may have merely intended to 
identify a permissible analysis of the record that will be open 
to the trial court on remand.23 If a final and definitive de­

same limited ‘preferences result’ in favor of women. Finding no. 8 accord­
ingly fails to support the declaration that the Department and Enomoto 
violated the Equal Protection Clause in any respect.”  Id., at 521-522, 
157 Cal. Rptr., at 269.

23 In its discussion of finding No. 19, which applied only to trans­
fers and work assignments, the court indicated that the record estab­
lished that the Department was assigning minority employees a “  ‘plus’ in 
competition for promotion or transfer.”  In its discussion of finding No. 
8, which did relate to promotions, the Court stated only that the Depart­
ment’s promotion practices are justified “ within the limited extent that 
noncontrolling preferences result in favor of certain ethnic groups” and 
“ insofar as the same limited ‘preferences result’ in favor of women.”  In 
its discussion of finding No. 8, the court did not state that such prefer­
ences in fact existed.
Even in its discussion of what the evidence at trial indicated, the Court 
of Appeal was somewhat equivocal:

“There was evidence that various male Caucasian employees had been 
denied promotion or transfer in instances where preference had been given 
to female or minority members.

“ Various supervisory employees of the department testified that prefer­
ence for promotion or transfer was not given to female or minority em­
ployees in specified segments of the department after 1974. There was 
thus a conflict in the evidence as to how widely the preferential policies 
expressed in the AAP had been pursued within the department. Accord­
ing to all the evidence of instances where they had been applied, ‘prefer­
ence’ was given to female sex or minority status only to the extent that 
each was considered a ‘plus’ factor in the assessment of a particular em­
ployee for promotion or transfer. Some evidence supported the inference 
that this ‘plus’ had occasionally contributed to the promotion or transfer 
of the preferred employee ahead of nonpreferred candidates who were 
otherwise more qualified for the new position. There was no evidence



14 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

termination of the federal issue was actually intended, it is 
difficult to understand why the court left open the possibility 
of retrial and did not unequivocally direct that judgment be 
entered in favor of respondents.

Recognizing that the evidence of past discrimination that 
had been proffered by respondents might be relevant in sup­
port of a defense that the affirmative action program was 
justified as a remedy for past discrimination within the De­
partment of Corrections,24 the Court of Appeal also left open 
for the retrial the question whether that evidence should be 
received. Finally, the Court of Appeal rejected each of peti­
tioners’ contentions that a violation of state law or federal 
statutory law had been proved, and then concluded by noting 
that jurisdictional problems concerning petitioners’ standing 
“require examination if the case is to be retried.” 25

that such ‘preference’ had ever resulted in the promotion or transfer of 
an employee who was not qualified to hold the position.

“ Vacancies in specific positions were occasionally left open, and pro­
motions or transfers to them were sometimes delayed, until qualified female 
or minority employees could be found to fill them. Some of these posi­
tions were labelled ‘female only,’ or with words similarly referring to sex 
(including ‘male only’) or to race or ethnic background. There was no 
evidence that any specific number or percentage of positions were reserved 
for members of either sex or of any racial or ethnic group.”  Id., at 
514-515, 157 Cal. Rptr., at 264.

24 The trial court had found that the plan could not be justified as a 
remedy for past societal discrimination but had not addressed the question 
whether it would be justified by past departmental discrimination. See 
finding No. 13, App. to Pet. for Cert. F-5.

25 95 Cal. App. 3d, at 526, 157 Cal. Rptr., at 272. The Court of Appeal 
noted that the petitioners had not been permitted to maintain a class 
action, that the individuals had not proved that they were entitled to 
relief, and that CCOA did not represent all employees of the Department. 
Although the respondents had stipulated that the petitioners had stand­
ing, the Court of Appeal stated that the trial court’s jurisdiction could 
not be created by stipulation. Ibid., 157 Cal. Rptr., at 272.



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 15

IV
In this Court respondents, as well as the Solicitor General 

of the United States as amicus curiae, urge us to dismiss the 
writ because the judgment of the Court of Appeal is not 
final.26 See Gospel Army v. Los Angeles, 331 U. S. 543. The 
judgment is clearly not final in the sense that no further pro­
ceedings can possibly take place in the state judicial system. 
Petitioners argue, however, that there is finality under our 
cases because the ultimate judgment on the federal issue is 
for all practical purposes preordained. This argument is 
supported by a representation made by petitioners’ counsel 
at oral argument in this Court that the record already con­
tains all of the evidence that they are prepared to offer.27 
Nevertheless, we are not persuaded that the outcome of further 
proceedings in the trial court can be characterized as “cer­
tain” or that these proceedings will not have a significant 
effect on the federal constitutional issues presented by the 
certiorari petition.28

26 Petitioners have invoked this Court’s jurisdiction under 28 U. S. C. 
§ 1257 (3) which provides:

“ Final judgments or decrees rendered by the highest court of a State 
in which a decision could be had, may be reviewed by the Supreme Court 
as follows:

“ (3) By writ of certiorari, where the validity of a treaty or statute of 
the United States is drawn in question or where the validity of a State 
statute is drawn in question on the ground of its being repugnant to the 
Constitution, treaties or laws of the United States, or where any title, 
right, privilege or immunity is specially set up or claimed under the Con­
stitution, treaties or statutes of, or commission held or authority exercised 
under, the United States.”

27 Tr. of Oral Arg. 20-21.
28 The questions presented in the Petition for Certiorari are:
“ 1. Whether a state agency may, absent proof that it has engaged in 

previous intentional discrimination, voluntarily establish goals, set aside 
positions and grant preferences, for the hiring and promotion of less



18 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, this 
Court identified four categories of cases in which a state 
court’s decision of a federal issue had been treated as a final 
judgment even though additional proceedings in the state 
trial court were anticipated. Petitioners contend that this 
case falls within the first of those categories—that it is a case 
in which “ for one reason or another the federal issue is con­
clusive or the outcome of further proceedings is preor­
dained.” 26 That category is, however, delimited by a pre­
liminary comment in the Cox opinion:

“In the cases in the first two categories considered below, 29

qualified minorities and women, to the detriment of all other applicants 
and employees.

“ 2. Whether the safe and efficient operation of correctional facilities 
constitutes a sufficient compelling interest to justify the use of racial and 
sex-based preferences in hiring and promotion, and if so, whether proof of 
that interest was sufficiently supported by the record.

“3. Whether it is sufficient for a state agency to adopt preferential 
employment practices based solely upon conclusory allegations of the dis­
criminatory impact of its past policies and practices on minorities and 
women.

“ 4. Whether it is appropriate for a state correctional institution to 
institute employment goals for minorities based upon inmate population 
rather than the relevant labor market or applicant flow.

“ 5. Whether the relevant labor force for the hiring of women should be 
based on state-wide employment statistics for women as opposed to appli­
cant flow or the labor force statistics for women in the relevant geographic 
area in which the institutions are located.”  Pet. for Cert. 2-3.

29 “ In the first category are those cases in which there are further pro­
ceedings— even entire trials—yet to occur in the state courts but where 
for one reason or another the federal issue is conclusive or the outcome 
of further proceedings preordained. In these circumstances, because the 
case is for all practical purposes concluded, the judgment of the state 
court on the federal issue is deemed final. In Mills v. Alabama, 384 U. S. 
214 (1966), for example, a demurrer to a criminal complaint was sus­
tained on federal constitutional grounds by a state trial court. The State 
Supreme Court reversed, remanding for jury trial. This Court took juris­
diction on the reasoning that the appellant had no defense other than his



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 17

the federal issue would not be mooted or otherwise af­
fected by the proceedings yet to be had because those 
proceedings have little substance, their outcome is cer­
tain, or they are wholly unrelated to the federal ques­
tion.” 420 U. S., at 478.

The answer to the question whether the further proceed­
ings in the state trial court “have little substance” or are 
“wholly unrelated to the federal question” is affected not 
only by the specifics of the particular litigation but also by 
the extent to which the “policy of strict necessity in dispos­
ing of constitutional issues,” Rescue Army v. Municipal 
Court, 331 U. S. 549, 568, is implicated.30 In that case, not­

federal claim and could not prevail at trial on the facts or any nonfederal 
ground. To dismiss the appeal ‘would not only be an inexcusable delay of 
the benefits Congress intended to grant by providing for appeal to this 
Court, but it would also result in a completely unnecessary waste of time 
and energy in judicial systems already troubled by delays due to congested 
dockets.’ Id., at 217-218 (footnote omitted).” 420 U. S., at 479.

30 Commenting on the close connection between the policy of avoiding 
the premature adjudication of constitutional issues and the limitations on 
our jurisdiction, the Court wrote:

“ Indeed in origin and in practical effects, though not in technical 
function, it is a corollary offshoot of the case and controversy rule. And 
often the line between applying the policy or the rule is very thin. They 
work, within their respective and technically distinct areas, to achieve the 
same practical purposes for the process of constitutional adjudication, and 
upon closely related considerations.

“ The policy’s ultimate foundations, some if not all of which also sustain 
the jurisdictional limitation, lie in all that goes to make up the unique 
place and character, in our scheme, of judicial review of governmental 
action for constitutionality. They are found in the delicacy of that func­
tion, particularly in view of possible consequences for others stemming also 
from constitutional roots; the comparative finality of those consequences; 
the consideration due to the judgment of other repositories of constitu­
tional power concerning the scope of their authority; the necessity, if 
government is to function constitutionally, for each to keep within its 
power, including the courts; the inherent limitations of the judicial process,



18 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

withstanding a conclusion that the Court had jurisdiction to 
entertain the appeal, id., at 565-568, the Court’s analysis of 
the policy of strict necessity provided “ compelling reasons 
for not exercising” its mandatory appellate jurisdiction. Id., 
at 568. Those reasons were the “highly abstract form” in 
which the constitutional issues were presented, id., at 575- 
580, the “ambiguous” character of the California court’s con­
struction of the Los Angeles Municipal Code, id., at 581-584, 
and a belief that further proceedings in the state court would 
ultimately tender “the underlying constitutional issues in 
clean-cut and concrete form.” Id., at 584.

In this case our analysis of the question whether the fed­
eral constitutional issues may be affected by additional pro­
ceedings in the state courts—and therefore take the case out 
of the first category of final judgments described in Cox—is 
similarly affected by ambiguities in the record, both as to the 
character of the petitioners’ prirna facie case and as to the 
character of the respondents’ justification for their program.

Petitioners contend that the program was designed to give 
minority employees specific proportions of the available jobs 
in the corrections department. The trial court found that 
respondents “have discriminated and are continuing to dis­

arising especially from its largely negative character and limited resources 
of enforcement; withal in the paramount importance of constitutional 
adjudication in our system.

“ All these considerations and perhaps others, transcending specific pro­
cedures, have united to form and sustain the policy. Its execution has 
involved a continuous choice between the obvious advantages it produces 
for the functioning of government in all its coordinate parts and the very 
real disadvantages, for the assurance of rights, which deferring decision 
very often entails. On the other hand it is not altogether speculative that 
a contrary policy, of accelerated decision, might do equal or greater harm 
for the security of private rights, without attaining any of the benefits 
of tolerance and harmony for the functioning of the various authorities in 
our scheme. For premature and relatively abstract decision, which such a 
policy would be most likely to promote, have their part too in rendering 
rights uncertain and insecure.”  331 U. S., at 570-572 (footnote omitted).



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 19

criminate by reason of sex and by reason of ethnic back­
ground in hiring and promotion of employees in the De­
partment.” 31 Although that finding also recited that the 
discrimination was “motivated at least in part” by the affirm­
ative action plan, it did not indicate the extent to which such 
discrimination had occurred. Because the trial court inter­
preted the relevant constitutional law absolutely to prohibit 
any such discrimination in hiring or promotion, the court did 
not need to make any more specific finding. Several as­
sumptions would therefore be consistent with the general 
finding of discrimination. One could assume either that all 
hiring and promotion decisions have been affected by the goal 
of achieving certain percentage quotas as to race and sex, or 
that race or sex has been a factor in only certain specific 
decisions. Included in the latter assumption are the two 
possibilities that race or sex was a factor in a fairly large 
number of random decisions, or that race or sex was a moti­
vating factor only in connection with certain types of jobs 
with respect to which the Superior Court expressly permitted 
transfers or job assignments motivated by either the race or 
sex of the employee.32 In sum, the Superior Court’s findings 
do not go beyond a determination that there was some dis­
crimination in hiring and promotion.

If we accept the Court of Appeal’s interpretation of the 
record, we must assume that the respondents have used race 
as a factor in making promotion decisions but not in making

31 Finding No. 8, App. to Pet. for Cert. F-4.
32 A third possibility is that a certain number of positions were “set 

aside” for particular ethnic groups or for females. Although the Court 
of Appeal decision seems to indicate that the department did not establish 
such “ controlling preferences,”  and that no evidence of any quota or 
percentage of positions set aside was introduced at trial, it is not entirely 
clear that the trial court would be foreclosed from making such a finding, 
nor is it entirely clear what the evidence at the first trial showed on this 
point. See n. 23, supra; n. 37, infra; Brief for Petitioners 5-9.



20 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

hiring decisions.33 Like the findings of the Superior Court, 
however, the opinion of the Court of Appeal does not indi­
cate whether race was considered relevant for all promotions 
or just in connection with promotions to particular positions. 
The fact that the Court of Appeal relied on the finding that 
race was a relevant factor in making certain job assignments 
to justify the use of race or sex in connection with promo­
tions implies that the court thought race or sex had been a 
factor only in making promotions to a limited number of 
positions.34 But the court did not so state expressly and it 
did not identify any specific position to which promotions or 
transfers motivated by race or sex had been made.

Thus on the one hand, if the first interpretation of the 
opinion is correct, and race was relevant only in making cer­
tain specific decisions, then adequate review of a narrow 
holding of that kind would require a more detailed identifica­
tion of the particular positions involved than is now con­
tained in findings that were prepared by the trial judge to 
support a quite different disposition of the case. On the 
other hand, if the Court of Appeal concluded that respond­
ents had followed a general policy of using race as a factor in 
making promotions, and that such a policy was justified by 
the State’s interest in a safe and efficient prison system, ade­

33 The Court of Appeal opinion states that the evidence did not indicate 
that the Department employed “ preferences”  in hiring. See n. 20, supra. 
It may be that preferences similar to the ones applied in the promotion 
context were used in the hiring context, but the Court of Appeals did not 
so conclude because petitioners failed in their proof of this issue. Thus 
although we must assume for purposes of this opinion that race and sex 
were not a factor in hiring, petitioners might be able to demonstrate the 
contrary on retrial. See n. 37, infra.

34 Because the trial court had found, in finding No. 19, that consid­
eration of race in making job assignments or transfers to certain specific 
positions may serve a compelling state interest, the Court of Appeal may 
have assumed that promotions motivated by race or sex took place only 
with respect to jobs to which racially-motivated transfers would have been 
permissible.



MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS 21

quate review of a broad holding of that kind would require 
an understanding of how such a sweeping policy was imple­
mented and why such a policy should be applied in the pro­
motion context and not in the hiring context,35 The trial 
court’s findings contain no such explanation because the trial 
court did not find that respondents had engaged in any such 
bifurcated policy.36

An additional uncertainty concerning the precise issue to 
be decided is that the Court of Appeal expressed doubt con­
cerning the trial court’s jurisdiction over any claims asserted 
by CCOA and noted that respondents Minnick and Darden 
were not entitled to damages or injunctive relief as individ­
uals. 95 Cal. App. 3d, at 526, 157 Cal. Rptr., at 272. Be­
cause the trial court’s denial of petitioners’ motion to certify 
the case as a class action was predicated on a stipulation that 
the court had jurisdiction to grant declaratory relief without 
any such certification, and because the Court of Appeal held 
that jurisdiction could not be conferred by stipulation, it is 
at least possible that claims on behalf of additional em­
ployees or job applicants may be asserted on remand. They, 
as well as the present petitioners, will have the right—even 
though petitioners’ counsel have no such present intent— to 
adduce additional evidence in support of the complaint, or 
to amend their pleadings in the light of the developments in 
the law that have occurred since the original complaint was 
filed.37 Moreover, whether or not additional evidence is

35 Of course, if respondents did not really distinguish between hiring 
and promotion, then petitioners will need another opportunity to demon­
strate respondents’ unified policy.

38 The text of the affirmative action plan adopted in 1974 and revised 
in 1975 draws no such distinction between hiring and promotion.

37 Under California law, an appellate court reversal of a trial court 
decision has the effect of vacating the judgment and returning the case to 
the trial court for a new trial “ as if no judgment had ever been rendered.” 
See Erlin v. National Fire Ins. Co., 7 Cal. 2d 547, 549 (1936); Salaman v. 
Bolt, 74 Cal. App. 3d 907, 914, 141 Cal. Reptr. 841, 844 (1977). Thus 
the losing party on appeal may introduce additional evidence. See Gospel



22 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

taken, the trial Judge is unquestionably free to recast his 
findings in response to those legal developments.

Accordingly, because of significant developments in the 
law—and perhaps in the facts as well38—and because of sig­
nificant ambiguities in the record concerning both the extent 
to which race or sex has been used as a factor in making 
promotions and the justification for such use, we conclude 
that we should not address the constitutional issues until the 
proceedings in the trial court are finally concluded and the 
state appellate courts have completed their review of the trial 
court record.

Accordingly, the writ of certiorari is dismissed.

Army v. Los Angeles, 331 U. S. 543, 547-548, quoting Erlin, supra. 
Although this rule regarding new trials does not apply if the appellate 
court did not intend a new trial, Stromer v. Browning, 268 Cal. App. 2d 
513, 518-519, 74 Cal. Rptr. 155, 158 (1968), such as when the appellate 
court decides a dispositive issue which does not turn on facts which might 
change on retrial, id,., at 519; 74 Cal. Rptr., at 160, the Court of Appeal 
clearly contemplated a possible retrial here.

38 Respondents have lodged with the Court a copy of a revised affirma­
tive action plan adopted in 1979. Further developments as to the Depart­
ment’s implementation of the AAP and changes reflected in the 1979 
revision might affect the question of whether the petitioners’ are now 
entitled to injunctive relief.



SUPREME COURT OF THE UNITED STATES

No. 76-1213

Wayne Minnick et ai, 
Petitioners, 

v.
California Department of 

Corrections et al.

On Writ of Certiorari to the 
Court of Appeal of Cali­
fornia for the First Appellate 
District.

[June 1, 1981]

Justice Rehnquist, concurring.
If I viewed this judgment of the California Court of 

Appeal as “ final” under 28 U. S. C. § 1257, I would join the 
dissenting opinion of Justice Stewart. Since I do not so 
view it, however, I join the opinion of the Court dismissing 
the writ of certiorari for want of jurisdiction.



SUPREME COURT OF THE UNITED STATES
No. 70-1213

Wayne Minnick et al., 
Petitioners, 

v.
California Department of 

Corrections et al.

On Writ of Certiorari to the 
Court of Appeal of Cali­
fornia for the First Appellate 
District.

[June 1, 1981]

Justice Brennan , concurring in the judgment.
“In view of the ambiguities in the record as to the issues 

sought to be tendered,” I would dismiss the writ of certiorari 
as improvidently granted. Mitchell v. Oregon Frozen Foods 
Co., 361 U. S. 231 (1960); see Doe v. Delaware, No. 79-5932, 
slip op., at 5, n. 10 (Brennan , J., dissenting); Cowgill v. 
California, 396 U. S. 371, 371-372 (1970) (Harlan, J., 
concurring).



SUPBEME COUBT OF THE UNITED STATES
No. 79-1213

Wayne Minnick et al., 
Petitioners 

v.
California Department of 

Corrections et al.

On Writ of Certiorari to the 
Court of Appeal of Cali­
fornia for the First Appellate 
District.

[June 1, 1981]

Justice Stewart, dissenting.
I would not dismiss the writ of certiorari. I would, to the 

contrary, reverse the judgment before us because the Cali­
fornia Court of Appeal has wrongly held that the State may 
consider a person’s race in making promotion decisions.1

So far as the Constitution goes, a private person may en­
gage in any racial discrimination he wants, cf. Steelworkers 
v. Weber, 443 U. S. 193, but under the Equal Protection 
Clause of the Fourteenth Amendment a sovereign State may 
never do so.2 And it is wholly irrelevant whether the State 
gives a “plus” or “minus” value to a person’s race, whether 
the discrimination occurs in a decision to hire or fire or pro­
mote, or whether the discrimination is called “affirmative 
action” or by some less euphemistic term.3

A year ago I stated my understanding of the Constitution 
in this respect, and I repeat now a little of what I said then: 

“The equal protection standard of the Constitution

1 This ruling is “ final” for purpose of the jurisdiction of this Court. See 
Cox Broadcasting Corp. v. Cohn, 420 U. S. 460, 482-483.

2 It is self-evident folly to suppose that a person’s race may constitu­
tionally be taken into account, but that it must not be controlling.

3 California’s policy of racial discrimination was sought to be justified 
as an antidote for previous discrimination in favor of white people. But, 
even in this context, two wrongs do not make a right. Two wrongs 
simply make two wrongs.



2 MINNICK v. CALIFORNIA DEPT. OF CORRECTIONS

has one clear and central meaning—it absolutely pro­
hibits invidious discrimination by government. That 
standard must be met by every State under the Equal 
Protection Clause of the Fourteenth Amendment.

“ Under our Constitution, the government may never 
act to the detriment of a person solely because of that 
person’s race. The color of a person’s skin and the 
country of his origin are immutable facts that bear no 
relation to ability, disadvantage, moral culpability, or 
any other characteristics of constitutionally permissible 
interest to government . . . .  In short, racial discrimina­
tion is by definition invidious discrimination.

“The rule cannot be any different when the persons 
injured . . . are not members of a racial minority.

“ . . . Most importantly, by making race a relevant cri­
terion, . . . the Government implicitly teaches the public 
that the apportionment of rewards and penalties can 
legitimately be made according to race-—rather than ac­
cording to merit or ability—and that people can, and 
perhaps should, view themselves and others in terms of 
their racial characteristics.

“There are those who think that we need a new Con­
stitution, and their views may someday prevail. But 
under the Constitution we have, one practice in which 
government may never engage is the practice of rac­
ism. . . .” Fullilove v. Klutznick, 448 U. S. 448, 4— 
(dissenting opinion).

I respectfully dissent.