Price v. The Civil Service Commission of Sacramento County Motion for Leave to File and Brief Amici Curiae

    S.F. 23836

IN THE SUPREME COURT OF THE 
STATE OF CALIFORNIA

JOHN M. PRICE, )
)

Plaintiff and Respondent, )
)

v. )
)

THE CIVIL SERVICE COMMISSION )
OF SACRAMENTO COUNTY, et al., )

)
Defendants and Appellants. )

______ )

MOTION OF LEGAL AID SOCIETY OF 
ALAMEDA COUNTY AND NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC.,
FOR LEAVE TO FILE A BRIEF, AMICI 
CURIAE, IN SUPPORT OF DEFENDANTS"

AND
BRIEF, AMICI CURIAE, OF THE LEGAL 
AID SOCIETY OF ALAMEDA COUNTY, AND 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC., IN SUPPORT OF DEFENDANTS

STEPHEN KOSTKA 
PETER E. SIIEEHAN 
CLIFFORD C. SWEET
LEGAL AID SOCIETY OF ALAMEDA COUNTY 
2357 San Pablo Avenue 
Oakland, CA 94612 
Telephone: (415) 465-3833
ALICE BEASLEY 
JOHN H. ERICKSON
NAACP LEGAL DEFENSE & EDUCATIONAL 

FUND, INC.
12 Geary Street
San Francisco, CA 94108
Telephone: (415) 788-8736
Attorneys for Amici Curiae



S.F. 23836

IN THE SUPREME COURT OF THE 
STATE OF CALIFORNIA

JOHN M. PRICE, )
)

Plaintiff and Respondent, )
)

v. )
)

THE CIVIL SERVICE COMMISSION )
OF SACRAMENTO COUNTY, et al., )

)
Defendants and Appellants. ) 

_______________________________)

MOTION OF LEGAL AID SOCIETY OF ALAMEDA 
COUNTY AND THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., TO FILE A BRIEF 
AMICI CURIAE IN SUPPORT OF DEFENDANTS

1. The Legal Aid Society of Alameda County is a California 
non-profit corporation established to represent low-income 
persons in civil matters. In recent years the Legal Aid Society 
of Alameda County has become increasingly involved in the area 
of equal employment opportunity. The Legal Aid Society has 
filed and successfully prosecuted numerous cases under the 
California and Federal statutes guaranteeing equal employment 
opportunity.

2. The NAACP Legal Defense and Educational Fund, Inc. is 
a non-profit corporation established to assist Black persons to 
secure their legal rights by the prosecution of lawsuits. Its 
charter declares that its purposes include rendering legal 
services gratuitously to Black persons suffering injustice by 
reason of racial discrimination. For many years attorneys of

- 1 -



the Legal Defense Fund have represented parties before the 
appellate courts of this nation in litigation involving a 
variety of race discrimination issues in the field of employment 
discrimination. See, e,g., Griggs v. Duke Power Co., 401 U.S. 
424 (1971); Albemarle Paper Company v. Moody, 422 U.S. 405 
(1975); Franks v. Bowman, 424 U.S. 747 (1976).

3. The issues raised by this case are matters of first 
impression and of great significance to all public agencies 
and to all minority persons seeking public employment in this 
state. Affirmance of the court's decision would effectively 
halt, contrary to the intent of Congress, the adoption by public 
employers of voluntary programs designed to remedy the effects 
of past discrimination. The viewpoints of amici may be useful 
to the court in determining the important matters at stake.

4. Amici are familiar'with the questions involved in this 
case and the scope of their presentation, and counsel for 
defendants welcome the filing of this brief. Amici believe 
that there is a need for additional argument on the following 
points:

A. Rule 7.10 and defendant's Order are permissible 
voluntary compliance authorized and encouraged by Title VII of 
the Civil Rights Act of 1964, as amended;

B. Rule 7.10 and defendant's Order are constitutional 
because they serve the state's compelling interest in remedying 
the effects of past discrimination and are reasonably related 
to the accomplishment of that goal.

-2



WHEREFORE, we respectfully move the court to permit the 
filing of the accompanying brief, amici curiae, in support of 
defendants the Civil Service Commission, and the Board of 

r- Supervisors, of Sacramento County.
Dated: June , 1978

Respectfully submitted,
ALICE BEASLEY
JOHN H. 
STEPHEN 
CLIFFORD 
PETER E.

ERICKSON 
KOSTKA 
i C. SWEET 
SHEEHAN

ALICE BEASLEY

JOHN H. ERICKSON

STEPHEN KOSTKA

PETER E. SHEEHAN
Attorneys for Amici Curiae

-3



Page
TABLE OF AUTHORITIES ii
I. INTRODUCTION 1
II. MINORITY EMPLOYMENT PROGRAMS SUCH AS DEFENDANT'S

ARE AUTHORIZED BY TITLE VII 6
A. Rule 7.10 and Defendant's Order Do Not

Violate Section 703(a)(2) of Title VII 8
B. Rule 7.10 and Defendant's Order Do Not

Violate Section 703 (j) of Title VII 11
C. The Remedial Authority Granted by Section 

706(g) Is Not Limited to Cases of
Intentional Discrimination 17

III. DEFENDANT IS AUTHORIZED BY TITLE VII TO ADOPT
ITS MINORITY EMPLOYMENT PROGRAM VOLUNTARILY 18

IV. DEFENDANT'S MINORITY EMPLOYMENT’ PROGRAM IS 
CONSTITUTIONAL BECAUSE IT IS BASED ON EVIDENCE 
OF PRIOR DISCRIMINATION AND IS REASONABLY 
RELATED TO THE REMOVAL OF THE EFFECTS OF
DISCRIMINATION 24

V. CONCLUSION 36

TABLE OF CONTENT^

i



TABLE OF AUTHORITIES

Cases

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

Alexander v. Gardner Denver Co.,
415 U.S. 36 (1974)

Associated Gen. Contractors of Mass., Inc. v.
Altchuler, 490 F.2d 9 (1st Cir. 1973) 
cert, denied 416 U.S. 957 (1974)

Bakke v. Regents of the University of California,
18 Cal.3d 34, cert. granted, 420 U.S. 1090 (1977)

Barnett v. International Harvester,
11 EPD par. 10,846 (W.D. Tenn. 1976)

Boston Chapter NAACP v. Beecher,
504 F.2d" 1017 (1st Cir. 1974)' 13,

Bridgeport Guardians, Inc, v. Members of Bridgeport
Civil Serv. Comm'n., 482 F.2d 1333 (2nd Cir. 1973) 27,

Carter v. Gallagher,
452 F.2d 315 (8th Cir. 1971)

Castro v. Beecher,
459 F.2d 725 (1st Cir. 1972)

Constructors Assoc, of Western Pa. v. Kreps,
441 F.Supp. 936 (W.D. Pa. 1977) 27, 28,

Contractors Ass'n. of Eastern Pa. v. Secretary 
of Labor, 442 F.2d 159 (3rd Cir. 1971), 
cert, denied, 404 U.S. 954 (1971)

Crawford v. Board of Education,
17 Cal.3d 280 (1976)

Davis v. County of Los Angeles,
566 F.2d 1334 (9th Cir. 1977)

EEOC v. American Telephone and Telegraph Co.,
556 F .2d 167 (3rd Cir. 1977) 12,

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

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) 10,

Page(s) 

18, 19 

19

passim

passim

19

16, 18 

29, 31 

passim 

9, 27 

29 , 30

passim

passim

10, 31 

16, 20 

26, 27

11, 12

l i



TABLE OF AUTHORITIES (CON 1T .)

Cases Page(s)

Germann v. Kipp,
429 F.Supp. 1323 (W.D. Mo. 1977) 27, 28

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

Jackson v. Pasadena City School Dist.,
59 Cal.2d 876 (1963) 24

Joyce v. McCrane,
320 F.Supp. 1284 (D.N.J. 1970) 19, 21, 27

Lige v. Town of Montclair,
367 A.2d "833 (N.J.S.Ct. 1976) 1, 31

Local 53 of Int. Ass'n. of Heat & Frost I. & A.
Wkrs. v. Vogler, 407 F.2d 1047 (5th Cir. 1969) 13, 14, 31

Loving v. Virginia,
388 U.S. 1 (1967) 24

McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) ‘ ..." 9

Morrow v. Crisler,
491 F.2d 1053 (5th Cir.)(en banc), cert, denied,
418 U.S. 895 (1974) 10, 25, 27

Mulkey v. Reitman,
64 Cal.2d 529 (1966) aff'd Reitman v. Mulkey,
387 U.S. 369 (1967) 24

NAACP v. Allen,
493 F.2d 614 (5th Cir. 1974) 22, 27, 28, 29

Oatis v. Crown Zellerback,
398 F.2d 496 (5th Cir. 1968) 19

Oburn v. Shapp,
521 F.2d 142 (3rd Cir. 1975) 20

Patterson v. American Tobacco Co.,
535 F.2d 257 (4th Cir. 1976) 9, 13

Patterson v. Newspaper and Mail Deliverers Union,
514 F.2d 767 (2nd Cir. 1975) 20

People v. Beadley,
1 Cal.3d 80 (1969) 9

iii



TABLE OF AUTHORITIES (CONTINUED)

Cases Page(s)
Perez v. Sharp,

32 Cal.2d 711 (1948) 24
Pettway v. American Cast Iron Pipe Co., 

494 F.2d 211 (3th Cir. 1974) 19
Ramirez v. Brown,

9 Cal.3d 199 (1973) rev'd sub nom Richardson v. 
Ramirez, 418 U.S. 24 (1974) 28

R.I. Chapter, Associated Gen. Contractors v. Kreps,
446 F.Supp. 553 (D.R.I. 1978) 27, 28, 29, 30

Rios v. Enterprise Ass'n. Steamfitters, 
Local 638, 501 F.2d 622 (2nd Cir. 1974) 9, 13

Rosenstuck v. Bd. of Governors of Univ. of N.C., 
423 F.Supp. 1321 (M.D.N.C. 1976) 28

San Francisco Unified School District v. Johnson, 
3 Cal.3d 937 (1971) 25

Southern Illinois Builders' Ass'n. v. Ogilvie,
471 F.2d 680 (7th Cir. 1972) 21, 26, 27, 31

Southern Pac. Transportation Co. v. Public 
Utilities Com., 18 Cal.3d 308 (1976) 27

Swann v. Charlotte-Mechlenburg Board of Education, 
402 U.S. 1 (1971) 22

United Jewish Organizations v. Carey, 
430 U.S. 144 (1977) 25, 28

United States v. Allegheny-Ludlum Industries, Inc., 
517 F.2d 826 (5th Cir. 1975) 19, 20

United States v. City of Chicago, 
549 F.2d 415 (7th Cir. 1977) 10

United States v. Elevator Constructors, Local 5, 
538 F.2d 1012 (2d Cir. 1974) 9, 12

United States v. IBEW, Local 38,
428 F.2d 144 (6th Cir.), cert, denied,
400 U.S. 943 (1970) 10, 12, 14

iy



TABLE OF AUTHORITIES (CON'T.)

Cases

United States v. Ironworker, Local 86,
443 F.2d 544 (9th Cir.), cert, denied,
404 U.S. 984 (1971)

United States v. Sheetmetal Workers, Local 36,
416 F.2d 123 (8th Cir. 1969)

Vulcan Society v. Civil Service Commission,
490 F.2d 387 (2nd Cir. 1973)

Washington v. Davis,
426 U.S. 229 (1976)

Weiner v. Cuyahoga Community College Dist.,
19 Ohio St. 2d 35, 249 N.E.2d 907 (1969), cert, 
denied, 396 U.S. 1004 (1970)

Federal Statutes
Civil Rights Act of 1964 (42 U.S.C.- §2000e et seq.)

Other Materials
Preferential Law School Admissions and the Equal 
Protection Clause, 22 U.C.L.A. L.Rev. 343 (1974)

Preferential Treatment and Equal Opportunity,
55 Ore.L.Rev. 53 (1976)

Subcommittee on Labor of the Senate Committee on 
Labor and Public Welfare, Legislative History of 
the Equal Employment Opportunity Act of 1972 (1972)

passim

14

27

17

21

passim

25

29, 35 

15, 16

Page(s)

v



S.F. 23836

IN THE SUPREME COURT OF THE 
STATE OF CALIFORNIA

JOHN M. PRICE, )
)

Plaintiff and Respondent, )
)

v. )
)

THE CIVIL SERVICE COMMISSION )
OF SACRAMENTO COUNTY, et al., )

)
Defendants and Appellants. )

)

BRIEF, AMICI CURIAE, OF THE LEGAL 
AID SOCIETY OF ALAMEDA COUNTY, AND 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC., IN SUPPORT OF DEFENDANTS

I
INTRODUCTION

The issue presented by this case "concerns the validity 
of an important tool in the arsenal of legal remedies for racial 
discrimination." (Lige v. Town of Montclair, 367 A.2d 833, 845 
(N.J.S.Ct. 1976) (Pashman, J., dissenting)). The court must 
decide whether a public employer may voluntarily adopt a racial 
hiring ratio —  ̂ ("minority employment program") to remedy the

1/ The Court of Appeal characterized the challenged provision 
as "establishing a minority quota hiring system" (Decision, here­
after "D", at pg. 1, attached to defendants' Petition for Hearing 
as the Appendix). However, it must be stressed that the court 
clearly erred in characterizing the program as a quota. As noted 
by one commentator the "distinction between a goal and a quota 
can be simply stated . . . [A] goal simply declares an objective
which will be met only if a sufficient number of qualified 
applicants apply, while a quota specifies the number to be

[Continued on following page]

-1



effects of its past discriminatory hiring practices and neutralize 
the effects of its present discriminatory hiring practices. Both 
of the courts below concluded that an employer could never 
lawfully adopt such a program.

The minority employment program at issue here was created 
by an order of defendant Sacramento County Civil Service Commission 
(hereafter "defendant"), issued pursuant to Rule 7.10 of the 
Commission, which allows, but does not require, defendant to

1/ (Continued from previous page)
admitted from a given group regardless of the pool of qualified 
applicants." O'Neill, Discriminating Against Discrimination 
(1975), p. 68. Under such a definition the program challenged 
here would be a goal as it is clearly applicable only if there 
are qualified minorities available, i.e., those who passed the 
examination given by the county for the position (Rule 7.10 
subdivision (g) set forth at CT 66).

Of even more importance, however, is the court's incorrect 
characterization of the program as creating a preference for 
minorities (D, pg. 2). Because the eligibility lists are based 
on the results of an unvalidated examination the program cannot 
be said to create a preference or quota. As pointed out by the 
Eighth Circuit:

As the tests are currently utilized, 
applicants must attain a qualifying score 
in order to be certified at all. They are 
then ranked in order of eligibility according 
to their test scores. Because of the absence 
of validation studies on the record before us, 
it is speculative to assume that the qualify­
ing test, in addition to separating those 
applicants who are qualified from those who 
are not, also ranks qualified applicants with 
precision, statistical validity, and predictive 
significance. [citations deleted] Thus, a 
hiring remedy based on an alternating ratio 
such as we here suggest will by no means 
necessarily result in hiring less qualified 
minority persons in preference to more 
qualified white persons.

Carter v. Gallagher, 452 F.2d 
315, 331 (8th Cir. 1971)
[Emphasis added]

2-



mandate county agencies to adopt an alternating ratio system 
for employment of minorities. After a number of hearings the 
Commission issued an order with findings (CT 17-22) directing 
plaintiff John M. Price, the District Attorney of Sacramento 
County (hereafter "plaintiff") to make appointments in the 
Attorney I (the entry level) classification in his office "on 
the basis of an alternating ratio of 2:1 so that at least one 
minority person is appointed for every two non-minority persons" 
until the percentage of minorities in the Attorney I and 
Attorney II classifications reached 8 percent (CT 21).

Plaintiff then initiated this litigation. The trial court
ruled in plaintiff's favor finding Rule 7.10 and the Order
unconstitutional on their face because they discriminated
against non-minority applicants (CT 159-163). The Court of
Appeal for the Third District affirmed, but did not reach the
constitutional issue. It voided the challenged order as being
in conflict with Title VII of the Civil Rights Act of 1964 and

2 /a Sacramento County Charter provision. —
Before turning to the merits, amici wish to note several 

aspects of the rule which are important in evaluating its validity.

2/ Amici do not address the County Charter issue. They agree 
with the Court of Appeal holding that "directions and delegations 
of authority [for voluntary action] emanating from Title VII 
prevail over inhibitions in state law and county charter" (D. at 
9). It should also be noted that a provision similar to the 
above County Charter section was held to not void a minority 
quota program in Associated Gen. Contractors of Mass., Inc, v. 
Altchuler, 490 F.2d 9, 20-21 (1st Cir. 1973), cert, denied
416 U.S. 957 (1974).

-3-



First, it is discretionary and is only implemented after a
public hearing is held and findings made on a number of issues.—
Second, the purpose of the rule is to remedy the effects of past
discrimination by the employer (Rule 7.10 subdivision (a)).
Third, defendant has interpreted the rule as being applicable
only where less drastic remedies have failed and there would
not be a significant increase in minority employment absent
implementation of the rule (see Findings XIII and XV, CT 19, 20).
Finally, any order issued pursuant to the rule may be modified
or rescinded by defendants at the request of any interested

4/person (Rule 7.10 subdivision (f)). —

3 /

3/ In addition to findings concerning the failure of less drastic 
remedies and the lack of significant increase in minority employ­
ment absent implementation of the rule, discussed infra, the 
rule requires that findings be made as to whether (1) the number 
of minority personnel is disproportionately low in relation to 
the relevant population; (2) this low number "was caused by 
discriminatory employment practices" (7.10 subdivision (c)(2)); 
and (3) it is feasible to adjust the disproportionate representa­
tion by implementing the rule.
4/ The full text of the relevant subdivision of the rule provides

An order may be rescinded or revised from . 
time to time by the Commission as it deter­
mines to be necessary or appropriate. Such 
action may be taken by the Commission on 
its own motion or at the request of any 
interested person. In determining whether 
to rescind or revise an order, the Commis­
sion may consider any relevant information 
including but not limited to the needs of 
the service, changed circumstances, problems 
encountered in implementing the order, and 
information which was not previously con­
sidered by the Commission.

Rule 7.10 subdivision (f)

-4-



It is also important to recognize the fundamental
difference between the special admission program at issue in
Bakke v. Regents of the University of California, 18 Cal.3d 34,
cert, granted, 420 U.S. 1090 (1977) and the hiring system in 

5 /this case. — In Bakke this court was careful to point out 
that there was "no evidence in the record to indicate that the 
University has discriminated against minority applicants in the 
past" (Id. at 59). In contrast the record here demonstrates 
that both defendant and the district attorney's office had 
discriminated in the past. Indeed Rule 7.10 was adopted for the 
explicit purpose of providing one procedure (among others) to 
remedy the effects of such prior unlawful discrimination. Thus, 
whatever the eventual outcome of Bakke, the issue of a race 
conscious program to remedy society's, rather than a particular 
employer's, discrimination is simply not presented by this 
case.—^ Rather this case must be viewed as testing the lawful­
ness of a public employer's voluntary adoption of a race conscious 
program to remedy its past discrimination.

5/ TVmici write this brief on the assumption that Bakke will be 
affirmed by the U.S. Supreme Court. - Should it be reversed the 
validity of the challenged rule would appear to be assured.
6/ Indeed the Bakke decision explicitly recognized the distinction 
between the adoption of race conscious programs by agencies that 
have not themselves engaged in prior discriminatory practices 
and by agencies which have (Bakke, supra, 18 Cal.3d at 57-59).

-5-



II

MINORITY EMPLOYMENT PROGRAMS SUCH AS 
DEFENDANT'S ARE AUTHORIZED BY TITLE VII

Under the 1972 amendments to section 701 of the Title VII 
of the Civil Rights Act of 1964, the antidiscrimination provisions 
of the Act were extended to apply to state and local governments. 
42 U.S.C. §2000e-2(a). As the Court of Appeal correctly noted, 
Rule 7.10 and defendant's order creating the minority employment 
program represent voluntary action by a local governmental agency 
to satisfy the requirements of Title VII.(D. at 9-10) Based 
upon the language of the statute and its reading of the legisla­
tive history of Title VII, the Court of Appeal concluded, however, 
that the use of a minority preference is an impermissible means
of meeting those requirements. (D. at 1-3) The court held that

7 /section 703(a), read in conjunction with section 703 (j) — ,

7/ Section 703(a) provides in pertinent part:
It shall be an unlawful employment practice 
for an employer . . .

(2) to limit, segregate, or classify his 
employees or applicants for employment in any 
way which would deprive or tend to deprive any 
individual of employment opportunities or 
otherwise adversely affect his status as an - 
employee, because of such individual's race, 
color, religion, sex, or national origin.

42 U.S.C. §2000e-2(a)(2)
Section 703 (j) provides:

[Nothing in Title VII] shall be interpreted to 
require any employer . . .  to grant preferential 
treatment to any individual or to any group 
because of . . . race, color, religion, sex or
national origin . . .  on account of any imbalance 
which may exist with respect to the . . . percentage
of persons of any race, color, religion, sex, or 
national origin employed by any employer . . .  in 
comparison with the . . . percentage of persons of
such race, color, religion, sex or national origin 
in any community . . .  or in the available work force . . .

42 U.S.C. §2000e-2(j)-6-



forbids preferential treatment based on race to correct racial 
imbalances, no matter how those imbalances may have been caused. 
The court stated:

On their face, these statutes appear to 
prohibit the numerical hiring scheme embodied 
in the order of the civil service commission.
The scheme makes minority status a qualifica­
tion for each third opening in the Attorney I 
class in the district attorney's office.
Contrary to the seeming letter of section 
703(a)(2), it classifies individuals in a way 
depriving Caucasian males of eligibility for 
that third job. According to a fair reading 
of section 703 (j), the prohibition in section 
703(a)(2) is not to be sidestepped by reason 
of an existing imbalance. Section 703 (j) 
draws no apparent distinction between imbalances 
caused by one circumstance or another. If 
section 703(a)(2) prohibits minority hiring 
preferences to remedy an imbalance caused by 
past discrimination, section 703(j) seems to 
express congressional intent to preserve that 
prohibition, intact and undiminished.

D. at 12.
The court further reasoned that defendant's affirmative action 
efforts could not be justified by section 706(g), because the 
remedial authority provided there is limited to remedies created 
in response to a finding that the employer engaged in intentional 
discrimination.

As is more fully discussed below, the court erred in 
failing to recognize that the existence of past and present 
discrimination against minorities within the agency made the 
minority hiring program an appropriate remedial action under 
the Act, and thus the program was not in contravention of the 
provisions of sections 703(a) and (j), and 706(g).

-7-



A. Rule 7.10 and Defendant's Order Do Not 
Violate Section 703(a)(2) of Title VII

The lower court found that the minority employment program 
violates section 703(a)(2) in that it classifies individuals 
in a way that deprives white males of eligibility for each third 
opening in the Attorney I class in the district attorney's 
office. It reached this conclusion even though the primary 
purpose of the minority hiring program is to eliminate the 
present effects of past discrimination by providing relief to 
minorities harmed by the agency's discriminatory employment 
practices,and even though it is uncontrovertibly established 
in the record that minority attorneys were drastically under­
represented on the staff of the district attorney's office,
and that this underrepresentation resulted from discrimination

8 /against minority job applicants. —
Congress, in enacting section 703(a)(2), did not intend 

to prohibit such legitimate affirmative action designed to remedy 
the effects of racial discrimination. Indeed, the fact that 
Congress felt obliged to include section 703(j) in Title VII 
to indicate that Title VII does not require preferential treat­
ment on the basis of racial imbalance alone, indicates that 
Congress recognized that section 703(a)(2) does not prohibit 
affirmative action as a remedy for discrimination. Otherwise 
there would be no need for section 703 (j) at all. Had Congress 
desired to prohibit affirmative action altogether, it could

8/ CT at 18-21 (Findinga VII to XIX).

-8-



have broadened the language of section 703 (j) to state that 
preferential treatment is not permitted under any circumstances. 
Instead, as the statute was written, section 703(j) merely states 
that preferential treatment is not required by the Act "on 
account of an imbalance which may exist" in an employers' work­
force in comparison with the surrounding community.

This interpretation of section 703(a)(2) is confirmed by 
the decisions of the federal circuit courts. These decisions, 
which "are persuasive and entitled to great weight" (People v.
Beadley, 1 Cal.3d 80, 86 (1969)) in matters of federal law, 
are in uniform agreement that racial hiring ratios, such as 
created by the challenged rule and order are an appropriate 
remedial device when used to remedy the effects of past discrimi­
nation, and prevent the continuation of discrimination in the 
future.

Thus, the nine circuit courts that have faced this issue
have all held that hiring, promotion or referral quotas are an
appropriate remedy for employment discrimination that has'

9 /adversely affected a class. — See, e.g., Castro v. Beecher,
459 F.2d 725 (1st Cir. 1972); Rios v. Enterprise Ass'n. Steamfitters, 
Local 638, 501 F.2d 622 (2d Cir. 1974); United States v. Elevator 
Constructors, Local 5, 538 F.2d 1012 (3rd Cir. 1976) ; Patterson 
v. American Tobacco Co., 535 F.2d 257, 273-74 (4th Cir. 1976);

9/ The Supreme Court has never ruled on the legality of quotas 
as a remedy for employment discrimination. In fact, the court 
has expressly reserved decision on this issue. McDonald v.
Santa Fe Trail Transportation Co., 427 U.S. 273, 281 n.8 (1976).

-9-



Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert.
denied, 418 U.S. 895 (1974); United States v. IBEW, Local 38,
428 F.2d 144, 149 (6th Cir.), cert, denied, 400 U.S. 943 (1970); 
United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977); 
Carter v. Gallagher, 452 F.2d 327 (8th Cir. 1972) (en banc) 
cert, denied, 406 U.S. 950 (1972); United States v. Ironworkers, 
Local 86, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984 
(1971). Each of these decisions rests on the principle that 
quotas are appropriate, and at times required, when used to 
eliminate the effects of past discrimination and ensure that it 
does not continue in the future. — ^

In Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) 
the Supreme Court held that victims of past discrimination were 
entitled to seniority relief in order to place them in the place 
they would have enjoyed absent discriminatory hiring practices. 
The court made it clear that an award of seniority credit could 
not be denied on the ground that it conflicts with the interests 
of white employees, because the denial of relief would "generally 
frustrate the central 'make whole' objective of Title VII."
Id. at 774. The court made it clear that the provisions of

10/ For example, in the most recent case, Davis v. County of 
Los Angeles, 566 F.2d 1334(9th Cir. 1977), the Ninth Circuit 
approved an order requiring accelerated hiring of racial minorities 
in a ratio of one Black and one Mexican American applicant for 
each three white applicants until population parity was reached. 
According to the court, the order was fully appropriate.because 
"an accelerated hiring order is the only way to overcome the 
presently existing effects of past discrimination within a 
reasonable period of time." Id_. at 1344.

-10-



section 703, which define prohibited employment practices, do 
not qualify or proscribe relief appropriate under the remedial 
provisions of the Act. Id. at 758-762.

Although Franks involved the issue of constructive seniority
relief for minorities, the reasoning of the case applies with
equal force to affirmative hiring relief. The circuit courts
have repeatedly held that where an employment ratio or quota
is imposed to achieve the remedial objectives of Title VII, it
does not conflict with the general nondiscrimination provisions
of the statute contained in § 703(a). Section 703(a) of Title
VII outlaws discrimination against any group, minority or majority,
if based on race; but it does not prohibit preferences designed
to provide a remedy for a class victimized by discrimination.
As the Third Circuit stated in Contractors Ass'n. of Eastern
Pa. v. Secretary of Labor, 442 F.2d 159, 173 (3rd Cir. 1971) ,
cert. denied, 404 U.S. 854 (1971):

To read § 703a [to outlaw remedial preferences] 
we would have to attribute to Congress the 
intention to freeze the status quo and to 
foreclose remedial action under other authority 
designed to overcome existing evils. We 
discern no such intention either from the language 
of the statute or from its legislative history.
B. Rule 7.10 and Defendant's Order Do Not 

Violate Section 703(j) of Title VII__
Contary to the decision of the Court of Appeal, section 

703 (j) does not restrict the scope of remedies that may be 
adopted to correct violations of Title VII. Instead, it merely 
places a limitation on the circumstances which will support a 
finding that the Act has been contravened. Section 703(j) is

-11-



contained in the portion of Title VII'which defines substantive 
violations of the Act: Section 703(a) and section 704 list
employment practices deemed to constitute violations of Title 
VII and sections 703(b)-(j) set forth specific practices and 
factual situations deemed not to be violations. Section 703 (j), 
therefore, merely prevents a court from basing a finding of 
liability solely upon a showing that an employer's workforce 
does not mirror the racial make-up of the surrounding community. 
United States v. Iron Workers, Local 86, 443 F.2d 544, 553-554 
(9th Cir. 1971) . — '/

Thus, although section 7 03 (j) curtails a court's power to
find a violation of the Act, it places no limitations on the scope
of the remedy that may be imposed once a violation is found, or
the type of affirmative action that may be undertaken by an
employer voluntarily in the absence of such a judicial finding.
See, e.g., United States v. Elevator Constructor's Union, 538 F.2d
1012 (3rd Cir. 1976); EEOC v. American Telephone and Telegraph
Co., 556 F.2d 167, 174 (3rd Cir. 1977); cf. , Franks v. Bowman

12/Transp. Co., supra, 424 U.S. at 757-762. — ■

11/ As the court noted in United States v. IBEW, Local 38,
428 F.2d 144, 149 (6th Cir. 1970), cert, denied, 400 U.S. 943 
(1970), section 703(j) "prohibits interpreting the statute to 
require 'preferential treatment' solely because of an imbalance 
in racial employment existing at the effective date of the Act."
12/ In Franks, the Supreme Court held that a limiting provision 
(§ 703(h)) appearing in the section of Title VII defining violations 
was applicable only to determining what constituted an appropriate 
cause of action, not to the relief that would be available under 
§ 706(g) upon a proper showing of discrimination. Franks v.
Bowman, supra, 424 U.S. at 758-759. Similarly,.section 7 0 3 (j) 
appears within this same section and should not be read to deny 
relief otherwise available.

-12-



Even if section 703(j) is interpreted as restricting the 
scope of permissible remedies, it refers only to preferential 
treatment implemented to achieve racial balance with the 
surrounding community. It cannot be read to apply to affirmative 
action designed to eliminate continuing inequalities resulting 
from past discrimination.

The courts have recognized this distinction, and unanimously 
agree that section 703(j) is an attempt by Congress to differentiate 
between the use of racial classifications to rectify past or 
present discrimination, and the use of racial classifications to 
attain racial balance for its own sake. Patterson v. American 
Tobacco Co. , 535 F.2d 257, 273 (4th Cir. 1976) (§ 703 (j) bans
use of preferential hiring to change racial imbalance attributable 
to factors other than discrimination; courts are authorized 
under Title VII to grant preferential relief as a remedy for 
unlawful discrimination); Rios v. Enterprise Association, 501 F.2d 
622, 630-631 (2d Cir. 1973) (section 703 (j) intended to bar 
preferential quota hiring as a means of changing a racial 
imbalance attributable to causes other than unlawful discrimina­
tory conduct); Boston Chapter NAACP v. Beecher, 504 F.2d 1017,
1028 (1st Cir. 1974) (section 703 (j) deals only with those cases 
in which racial imbalance has come about completely without 
regard to the actions of the employer). See also, United States 
v. Ironworkers Local 86, supra., 443 F . 2d at 553-554 ; Local 53 
of Int. Ass1n. of Heat & Frost I. & A. Wkrs. v. Vogler, 407 F.2d 
1047, 1053-1054 (5th Cir. 1969).

13-



The legislative history of section 703(j) demonstrates that 
this section was placed in the Act simply to counter any belief 
that employers are required by the Act to correct a racial imbalance 
in their workforce not withstanding evidence that the imbalance 
is not created by past or present discrmination. Nowhere does 
the legislative history indicate that section 703(j) was intended 
to limit the scope of permissible affirmative action that could 
be judicially ordered, administratively imposed, or voluntarily 
undertaken. Nor does the legislative history indicate that this 
section applies to anything other than imposed racial preferences 
to achieve racial balance, or that it is intended to limit 
remedies designed to eliminate the effects of discrimination.

Subsequent to the enactment of Title VII, at least five 
circuits rejected the contention that remedial racial preferences 
were impermissible under section 703(j), holding that such an 
interpretation would nullify the stated purposes of the Act.
See, e.g., United States v. Iron Workers, Local 86, supra, 443 F.2d 
at 544 (9th Cir. 1971); United States v. IBEW, Local 38, supra,
428 F.2d at 149-159 (6th Cir. 1970), cert, denied, 400 U.S. 943 
(1970); Contractors Assn, of Eastern Penn, v. Secretary of Labor, 
supra, 442 F.2d at 159 (3rd Cir. 1971); United States v. Sheetmetal 
Workers, Local 36, 416 F.2d 123 (8tll Cir. 1969) ; Local 53,
Asbestos Workers v. Vogler, supra, 407 F.2d 1047 (5th Cir. 1969).

13/When Congress amended Title VII in 1972 —  it was well 
aware of the interpretation of the Act developed in these and

13/ Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,
86 Stat. 103.

-14-



similar cases, yet the 1972 amendments did not make any changes 
in the law to modify this interpretation. Where Congress did 
not amend the statute, it intended to leave unimpeded the 
interpretation given the statute by existing case law. The 
section-by-section analysis of the amending bill, HR 1746, 
provides:

In any area where the new law does not 
address itself, or in any areas where a 
specific contrary intention is not indicated, 
it was assumed that the present case law as 
developed by the courts would continue to 
govern the applicability and construction of 
Title VII.

Subcomm. on Labor of the Senate 
Committee on Labor and Public 
Welfare, Legislative History of the 
Equal Employment Opportunity Act 
of 1972 at 1844 (1972).

Furthermore, Congress rejected several amendments to the
Act which were expressly designed to overturn the cases

14/approving employment preferences. —  Senator Ervin took the 
position that section § 703 (j) forbade the use of quotas to 
remedy the effects of past discrimination. Recognizing that 
the office of Federal Contract Compliance, the EEOC and the courts

14/ In addition, S.B. 2515, later passed by the Senate and engrossed 
Into H.B. 1746, originally eliminated the affirmative action 
requirement of the Executive Order by transferring the entire 
enforcement program to the EEOC. The Senate eliminated that 
provision by an amendment offered by Senator Saxbe. The Senator's 
remarks in support of that amendment clearly approve the goals 
and timetables approach to equal employment opportunity, and 
make it clear that Congress approved such affirmative action 
techniques even where discrimination against minorities had not 
been proved. . Legislative History, supra at 915.

-15-



had interpreted § 703(j) as not prohibiting quota-based relief,
Senator Ervin proposed an amendment which declared that "no
department, agency, or officer of the United States shall require
an employer to practice discrimination in reverse by employing
persons of a particular race, . . .  in either fixed or variable
numbers, proportions, percentages, quotas, goals, or ranges."
Legislative History, supra, 1017, 1038-1039. In the ensuing
debate it was clearly recognized that the amendment was intended
to abolish all forms of quota relief theretofore recognized

15/whether judicially or administratively imposed. —  The Senate 
rejected the Ervin amendments by a two to one margin. — ^ See 
Legislative History, supra, at 1017, 1042-1074; 1681, 1714-1717.
As the Third Circuit has noted, "the solid rejection of the Ervin 
amendment confirmed the prior understanding by Congress that an 
affirmative action quota remedy in favor of a class is permissible." 
EEOC v. American Tel. & Tel. Co., supra, 556 F.2d at 177. See 
also, Boston Chapter NAACP v. Beecher, supra, 504 F.2d at 1028.

15/ Senator Javits, the principal spokesman against the Ervin 
amendments, specifically defended the pro-quota results in United 
States v. Iron Workers, Local 86, supra, and Contractors Associa­
tion v. Secretary of Labor, supra, and had both opinions printed 
verbatim in the Congressional Record. Legislative History, supra, 
at 1047-1070.
16/ Subsequently, Senator Ervin introduced another amendment 
which would have explicitly applied § 7 03 (j) to any other statu­
tory enactment and to all executive orders. This amendment was 
also defeated by a two to one margin. Legislative History, supra, 
at 1681, 1714-1717.

-16-



C. The Remedial Authority Granted by Section 706(g)
Is Not Limited to Cases of Intentional Discrimination

The lower court's holding that the affirmative action to
remedy the effects of past discrimination is limited to cases
in which the employer engaged in intentional discrimination was
based on language in section 706(g) of the Act which provides
for affirmative action as a remedy for intentional discrimination.
The first sentence of section 706(g) provides:

If the court finds that the respondent has 
intentionally engaged in or is intentionally 
engaging in an unlawful practice charged in 
the complaint, the court may enjoin the 
respondent from engaging in such unlawful 
employment practice, and order such affirmative 
action as may be appropriate. . . .

Section 706(g) is the part of the statute which delineates
the remedial authority for violations of the Act. Although
this section refers to intentional discrimination, it has been
uniformly construed to mean that the defendant intended to
engage in the particular acts which adversely affected minorities,
not that defendant harbored an evil intention to violate the
law. As the Supreme Court stated in Griggs v. Duke Power Co.,
401 U.S. 424, 432 (1971) the Civil Rights Act is not concerned
with "good intent or the absence of discriminatory intent",
rather "Congress directed the thrust of the Act to the consequence
of employment practices, not simply the motivation." The court
reiterated this principle in Washington v. Davis, 426 U.S. 229,
246-247 (1976) stating:

Under Title VII, Congress provided that when 
hiring and promotion practices disqualifying 
substantially disproportionate numbers of

-17-



Blacks are challenged, discriminatory purposes 
need not be proved.

See also, Albermarle Paper Co. v. Moody, 422 U.S. 405, 422 
(1975).

Accordingly, the courts have routinely imposed hiring 
quotas in cases where no showing was made that the defendant 
had any intent or purpose to discriminate against minorities, 
basing the order imposing quota relief on a showing of discrimina­
tory impact alone. Boston Chapter NAACP v. Beecher, supra,
504 F.2d at 1028 (Title VII permits quota relief undertaken 
to redress past discrimination, whether or not the violation 
was intentional.)

Ill
DEFENDANT IS AUTHORIZED BY TITLE VII TO 
ADOPT ITS MINORITY EMPLOYMENT PROGRAM 
VOLUNTARILY____________________________

The lower court also concluded that the remedial authority 
contained in section 706(g) of the Act merely defines the scope 
of permissible court-ordered relief and that the cases approving 
racial hiring ratios or quotas were inapplicable to the Commission's 
voluntarily-adopted minority employment program. According to 
the court, the federal courts may order an affirmative action 
program containing minority hiring preferences as a form of 
relief in an employment discrimination case, but it violates 
Title VII for an employer voluntarily to adopt the same type 
of affirmative hiring relief.

There is no support for the proposition that what the courts 
may force upon employers after a finding of liability, employers 
may not voluntarily institute. Cooperation and voluntary

18-



compliance with the law is the central theme of Title VII. 
Albermarle Paper Co. v. Moody, supra, 422 U.S. at 417-418.
Indeed, the achievement of compliance through persuasion, con­
ciliation, and voluntary action, rather than litigation, is the 
"preferred means" to achieve the statutory goals. Alexander v. 
Gardner Denver Co., 415 U.S. 36, 44 (1974); See, United States 
v. ftllegheny-Ludlum Industries, Inc., 517 F. 2 d 826, 840-847 
(5th Cir. 1975); Pettway v. American Cast Iron Pipe Co., 494 F.2d 
211, 258 (5th Cir. 1974); Oatis v. Crown Zellerbach, 398 F.2d 
496, 493 (5th Cir. 1968).

Because of this emphasis on voluntary compliance contained 
in the Civil Rights Act, the federal courts grant substantial 
deference to efforts by employers to formulate a voluntary remedy 
for employment discrimination. See, e,g. , Joyce v. McCrane,
320 F.Supp. 1284 (D. N.J. 1970) (approving a voluntary affirmative 
action plan adopted by the state pursuant to Executive Order 
11246); Barnett v. International Harvester, 11 EPD par. 10,846 
(W.D. Tenn. 1976) (court rejected challenge by white applicants 
to a voluntary racial quota entered into between the company 
and the union). Such deference is plainly appropriate: A rule
prohibiting employers from adopting remedial affirmative action 
programs as extensive as those that 'may be imposed by court 
order would obviously make it impossible for employers to 
develop a remedy comprehensive enough to eliminate the effects 
of discrimination. Since good faith is not a defense to a 
Title VII action, employers deciding to bring themselves into

-19-



compliance with the law would be unable to take.action suffi-
17 /cient to insulate themselves from liability. —

Federal courts have rejected challenges to consent agree­
ments by intervening white employees based on the contention 
the relief contravenes Title VII and the equal protection 
clause. These courts have indicated that the judicial authority 
to approve quota relief contained in a settlement is broader 
than the courts' authority to impose such a remedy after trial.
As the Second Circuit has stated it, the federal courts should 
grant substantial deference to the parties determinations 
about the appropriateness of relief contained in a settlement 
agreement, since "voluntary compliance by the parties over an 
extended period will contribute significantly toward the achieve­
ment of statutory goals." Patterson v. Newspaper and Mail 
Deliverers Union, 514 F.2d 767 (2d Cir. 1975). See, EEOC v .
AT&T, 556 F.2d 167 (3d Cir. 1977); Oburn v. Shapp, 521 F.2d 
142 (3d Cir. 1975).

The principle that Title VII does not limit the power of 
an employer to provide affirmative relief for employment 
discrimination is also reflected in the cases upholding

17/ For this reason the federal courts routinely approve consent 
decrees which incorporate employment ratios or quotas as an 
ingredient of the class remedy, even though the parties agreed 
to the relief without a judicial finding or an admission by the 
employer that the employer had in fact engaged in illegal 
discrimination against minorities. See, e.g., Oburn v. Shapp,
393 F.Supp. 561 (E.D. Pa. 1975), aff'd 521 F.2d 142 (3d Cir.
1975); Patterson v. Newspaper and Mail Deliverers Union, supra; 
United States v. Allegheny-Ludlum Industries, supra, 517 F.2d 
at 826; EEOC v. A.T.&~T., supra, 73 F.R.D. at 269.

-20-



affirmative action programs that set hiring goals or ratios 
for employment of minorities by state 6r federal contractors. 
Although these plans require contractors to comply with speci­
fic percentage goals and timetables for employment of minorities 
they have been upheld against challenges on Title VII grounds. 
See, e.g., Southern Illinois Builders' Ass'n. v. Ogilvie,
471 F.2d 680 (7th Cir. 1972) Associated General Contractors of 
Massachusetts Inc, v. Altshuler, 490 F.2d 9 (1st Cir. 1973), 
cert, denied, 416 U.S. 957 (1974), Contractor's Ass'n. of 
Eastern Penn, v. Secretary of Labor, supra, 442 F.2d 159, cert. . 
denied, 404 U.S. 854; Weiner v. Cuyahoga Community College 
Dist., 19 Ohio St. 2d 35, 249 N.E.2d 907 (1969), cert, denied, 
396 U.S. 1004 (1970); Joyce v. McCrane, 320 F.Supp. 1284 
(D. N.J. 1970).

In each of these cases- the courts recognized that the 
federal executive has authority to require contractors to 
implement affirmative action programs independent of Title VII. 
In each case, the court found that administrative findings of 
minority under-representation was an adequate basis for the 
imposition of an affirmative remedy, even though there had 
been no judicial or administrative finding of illegal discrimina 
tion by any of the employers involved. These decisions also 
demonstrate that the nonjudicial authority to adopt affirmative 
action remedies is far broader than the authority vested in 
the judicial branch.

The emphasis on voluntary compliance and the concommitant

-21-



policy of deference to nonjudicial efforts to remedy employ­
ment discrimination is particularly applicable to affirmative 
action programs voluntarily adopted by state or local govern­
ment authorities. As the First Circuit has stated, "the 
discretionary power of public authorities to remedy past 
discrimination is even broader than that of the judicial
branch". Associated General Contractors of Massachusetts, Inc.

18/v. Altshuler, supra, 490 F.2d at 17. — - Further the duty to
maintain fair and nondiscriminatory criteria for public employ­
ment falls in the first instance on the responsible government 
officials, not the courts. NAACP v. Allen, 493 F.2d 614, 622 
(5th Cir. 1974). Public agencies are better equipped than the 
courts to determine the specific causes of discrimination within 
the agency and to formulate an appropriate remedy. This is 
particularly true of an agency such as the Sacramento Civil 
Service Commission which has a unique expertise in matters of 
personnel administration. In the present case the Civil Service 
Commission conducted extensive hearings into the causes of the 
underrepresentation of minority attorneys in the district, 
attorney's office. Based on the record developed at these 
hearings it determined that this underrepresentation had resulted

18/ See also, Swann v. Charlotte-Mechlenburg Board of Education, 
402 U.S. 1, 16 (1971) holding that although the judicial power 
to remedy the effects of discrimination rests on a finding of 
statutory or constitutional violation, other governmental 
agencies have the authority to take affirmative action to remedy 
the effects of agency discrimination, even in the absence of a 
finding of prior racial discrimination.

-22-



from discrimination against minority attorneys which manifested
itself at a number of stages in the employment process. Using
its expertise in matters of personnel administration, it
forumulated a remedy which was carefully drawn to fit the
particular demands of the situation the agency was faced with.
This is precisely the kind of voluntary affirmative action

19/Title VII was designed to encourage. —
To deny employers the right to formulate their own remedies 

would make it necessary for employers who are guilty of illegal 
discrimination to do nothing to remedy the situation until 
they are sued by an aggrieved job applicant. Not only would 
this impose upon the courts and employers the onerous burden 
of unnecessary litigation, it would eviscerate the statutory 
policy of voluntary compliance.

19/ See Policy Statement on Affirmative Action Programs for 
State and Local Government Agencies, 41 Fed.Reg. 38811, (joint 
statement of Department of Labor, EEOC, Civil Service Commission 
and Department of Treasury), which provides in part:

On the one hand, vigorous enforcement of the laws 
against discrimination is essential. But equally, 
and perhaps even mor- important, are affirmative, 
voluntary efforts on the part of public employers 
to assure that positions in the public service are 
genuinely and equally accessible to qualified 
persons, without regard to their sex, racial or 
ethnic characteristics. Without such efforts 
equal employment opportunity is no more than a 
wish. The importance of voluntary affirmative 
action on the part of employers is underscored by 
Title VII of the Civil Rights Act of 1964, Executive 
Order 11246, and related laws and regulations—  
all of which emphasize voluntary action to achieve 
equal employment opportunity.

-23-



IV *■

DEFENDANT'S MINORITY EMPLOYMENT PROGRAM '
IS CONSTITUTIONAL BECAUSE IT IS BASED ON 
EVIDENCE OF PRIOR DISCRIMINATION AND IS 
REASONABLY RELATED TO THE REMOVAL OF THE 
EFFECTS OF DISCRIMINATION 20/

This court has frequently led the nation in voiding
classifications which have been used to subject racial

21/minorities to adverse treatment. —  In doing so the court 
has appropriately subjected such racial classifications to 
strict judicial review and stated that they "must be viewed 
with great suspicion" (Perez, supra, 32 Cal.2d at 719). 
However, neither this court nor any other court has subjected 
all racial classifications to such a demanding standard of 
review. Rather, racial classifications in two broad areas 
have been reviewed under a less stringent equal protection 
standard. The first area--as identified in Bakke--is when 
the classification benefits one racial group but does not

20/ While the Court of Appeal did not pass on the constitutionality 
of Rule 7.10 and defendant's order the trial court did hold the 
rule and order to be unconstitutional on their face because they 
"discriminated" against white applicants.
21/ See, e.g., Jackson v. Pasadena City School Dist., 59 Cal.2d 
876 (1963) (voiding de facto and de jure school segregation);
Perez v. Sharp, 32 Cal.2d 711 (1948) (voiding miscegenation 
Statute almost two decades before Loving v. Virginia, 388 U.S. 1 
(1967)); Mulkey v. Reitman, 64 Cal.2d 529 (1966) aff'd Reitman 
v. Mulkey, 387 U.S. 369 (1967) (voiding initiative measure 
designed to overturn fair housing laws).

-24-



cause detriment to another 22/ (Ba&ke, supra, 18 Cal.3d at 49,

n.13). The second area involves racial classifications adopted
to remedy the effects of past discrimination (Bakke, supra,
18 Cal.3d at 57). This approach is fully consistent with the
dictates of equal protection:

[I]n a society free of the perdition of 
past discrimination, the courts might well 
reject all attempts at racial classifica­
tion. We seek, however, to provide for 
practical remedies for present discrimina­
tion, and to eradicate the effects of prior 
segregation; at this point, and perhaps for 
a long time, true nondiscrimination may be 
attained, paradoxically, only by taking 
color into consideration. [Citation deleted.]
We conclude that the racial classification 
involved in the effect''ve integration of 
public schools does not deny, but secures, the 
euqal protection of the laws.

San Francisco Unified School District 
v. Johnson, 3 Cal.3d 937, 951 (1971)

See also, Morrow v. Crisler, 491 F.2d 1053, 1059 (5th Cir.
1974) (Clark, J., concurring).

22/ This detriment/benefit concept, aptly described as '"dividing 
and expanding pies" by one commentator (see Redlish, Preferential 
Law School Admissions and the Equal Protection Clause, 22 U.C.L.A. 
L.Rev. 343, 359-361 ~(1974) (hereafter "Law School Admissions") , 
has been subject to criticism as not reflecting the reality of 
the cases it purports to explain (Bakke, supra, 18 Cal.3d at
74 (Tobriner, J., dissenting)); Law School Admissions, supra,
22 U.C.L.A. L.Rev. at 360-361, n.83) and may have been undermined 
by a subsequent Supreme Court decision (see United Jewish 
Organizations v. Carey, 430 U.S. 144, 169 (1977) (Brennan, J., 
concurring) ("While it is true that this demographic outcome 
did not 'underrepresent the white population' throughout the 
county, ante, at 154, indeed, the very definition of proportional- 
representation precludes either under or over-representation—  
these particular petitioners filed suit to complain that they 
have been subjected to a process of classification on the basis 
of race that adversely altered their status.").

-25-



While Johnson arose in the scfiool context, a plethora 
of federal decisions have refused to apply strict scrutiny to 
racial classifications ordered or adopted to remedy the effects 
of past discrimination. Thus in Carter v. Gallagher, supra,
452 F.2d 315 (8th Cir. 1972), cert, denied 406 U.S. 950, the 
Eighth Circuit sitting en banc upheld the constitutionality 
of a court order requiring that one out of every three persons 
hired by a Fire Department be a minority individual (IdL at 
331). The court recognized the dangers of racial "preferences" 
(Id. at 330), but did not treat the classification as suspect 
or subject it to strict scrutiny. Rather it emphasized the 
limited nature of the remedy, the continued us'e (as here) of 
unvalidated job examinations, and the'fact that minorities 
might not apply for employment with the Department "absent 
some positive assurance that if qualified they will in fact 
be hired on a more than token basis". (Id., at 331) . Similarly 
the Seventh Circuit approved a minority preference plan designed 
to overcome the effects of past discrimination in Southern 
Illinois Builders Association v. Ogilvie, 471 F.2d 680 (7th 
Cir. 1972). Again the court did not treat the racial classifi­
cation created by the plan as suspect or subject it to strict 
scrutiny. Instead, it emphasized the existence of prior and 
present discrimination, the limited time period during which 
the plan was to operate, and the flexibility in the plan (Id. 
at 686).

Numerous other federal decisions are in accord. See, 
e.g., Erie Human Relations Commission v. Tullio, 493 F.2d 371

-26-



(3rd Cir. 1974); Morrow v. Crisler, -supra, 491 F.2d at 1053; 
NAACP v. Allen, 493 F.2d 614 (5th Cir.' 1974) ; Castro v. Beecher, 
supra, 459 F.2d 725; Bridgeport Guardians, Inc, v. Members of 
Bridgeport Civil Serv. Comm'n., 482 F.2d 1333 (2nd Cir. 1973); 
Vulcan Society v. Civil Service Commission, 490 F.2d 387 (2nd 
Cir. 1973); Constructors Assoc, of Western Pa. v. Kreps, 441 F. 
Supp. 936 (W.D. Pa. 1977); R.I. Chapter, Associated Gen. 
Contractors v. Kreps, 446 F.Supp. 553 (D.R.I. 1978); Germann 
v. Kipp, 429 F.Supp. 1323 (W.D. Mo. 1977); Associated General 
Contractors v. Altshuler, supra, 490 F.2d 9; Contractors Ass'n.. 
v. Secretary of Labor, supra, 442 F.2d 159; Joyce v. McCrane,
320 F.Supp. 1284 (D.N.J. 1970). — '/

23/ In light of this long line of authority the trial court's 
finding that the rule was unconstitutional on its face is puzzling. 
Although plaintiff attempted to distinguish the above cases on the 
basis that they solely dealt with the power of a federal court to 
order race conscious programs after a judicial finding of past 
discrimination such a distinction is incorrect and irrelevant.
First, the purported distinction is non-existent because the 
decisions do not require a judicial finding of past discrimination 
as a precondition to the adoption or imposition of a race conscious 
program (see, e.g., Altshuler, supra, 490 F.2d at 14 (the Massachu­
setts Plan); Southern Illinois Builders Ass'n., suora, 471 F.2d at 
684 (the Illinois Ogilvie Plan); Contractors Ass v. Secretary 
of Labor, supra, 442 F.2d at 163, 174, 177 (the . iadelphia Plan); 
Constructors Assoc, of Western Pa. v. Kreps, sup , 441 F.Supp. 
at 441 (legislative enactment to remedy past di crimination);
Joyce v. McCrane, supra, 320 F.Supp. at 1287-1288 (the Newark Plan). 
Second, if it is constitutional for a court, a legislature, and 
an administrative agency to require an employer to adopt a race 
conscious program if past discrimination exists, it is difficult 
to find the rationale for a constitutional theory making such a 
program unlawful if adopted voluntarily by the employer. This 
would appear to be especially true where, as here, affected 
individuals may challenge the correctness of the finding of prior 
discrimination as well as other findings supporting implementation 
of the program (see, e.g., Rule 7.10 subdivision (f)). Finally 
it is not only permissible for a public employer to adopt a race 
conscious program but may be required (Cf., Crawford, supra,
17 Cal.3d at 284; Southern Pac. Transportation Co. v. Public 
Utilities Com., 18 Cal.3d 308, 311 n.2 (1976)).

-27-



While the above decisions do hot uniformly agree upon
the precise standard to judge remedial racial classifications,
they do agree that such classifications are neither suspect
nor properly subject to the traditional strict scrutiny standard
of equal protection review. The most frequently accepted
standard is that "the means chosen to implement the compelling
interest should be reasonably related to the desired end".
Altshuler, supra, 490 F.2d at 18 (emphasis added). Accord:
NAACP v. Allen, supra, 493 F.2d at 619; Constructors Assoc.

24/of Western Pa, v. Kreps, supra, 441 F.Supp. at 950 —  ; R,I. 
Chapter, Associated Gen. Contractors v. Kreps, supra, 446 F.Supp. 
at 567 ("carefully tailored to accomplish remedial goal"); cf., 
United Jewish Organizations of Williamsburgh, Inc, v. Carey,
430 U.S. 144 (1977) . — '/

Defendant has satisfied this standard here. First, the 
minority employment program furthers a compelling state interest

24/ While the court in Kreps initially stated that the '"means 
used be necessary" (441 F.Supp. at 950), its subsequent explana­
tion of that term (means "must have a logical nexus to compelling 
objective and must sufficiently reduce the dangers of such 
classification so that no less onerous alternatives are reasonably 
available" Id. (emphasis added)) as well as its rejection of a 
more generalized classification as over inclusive (Id. at 953 
n.10) demonstrates that it was not adopting the traditional 
strict scrutiny test (see discussion of test in Bakke, supra,
18 Cal.3d at 49 and Ramirez v. Brown, 9 Cal.3d 199, 210-212 
(1973) rev1d sub nom Richardson v. Ramirez, 418 U.S. 24 (1974) .
25/ At least two cases have adopted the even more lenient 
rational basis test. See Germann v. Kipp, supra, 429 F.Supp. 
at 1335-1337; Rosenstuck v. Bd. of Governors of Univ. of N.C.,
423 F.Supp. 1321, 1325 (M.D.N.C. 1976).

-28-



because "remedying past discrimination constitutes a compelling 
interest" (R.I. Chapter, Associated Gen. Contractors v. Kreps, 
supra, 446 F.Supp. at 568 and cases there cited). Second, 
as discussed infra, the program is both reasonably related 
and even necessary to achieve this interest. Moreover the 
program meets all the guidelines that have been identified as 
important in evaluating racial preference programs. For example, 
courts and commentators have found the following important:
(i) whenever possible preferences should not displace persons 
holding existing positions (see Davidson, Preferential Treatment 
and Equal Opportunity, 55 Ore. L.Rev. 53, 75 (1976)); (ii) rights 
associated with existing positions should be modified only where 
other approaches are inadequate (111. , at 75-76; Bridgeport 
Guardians, Inc., supra, 482 F.2d at 1341); (iii) provisions 
to waive or modify the preference should exist (Constructors 
Assoc, of Western Pa., supra, 441 F.Supp. at 954); and (iv) 
selection preferences should be avoided where possible and, if 
used, should be limited by number or duration (Equal Opportunity, 
supra, 55 Ore. L.Rev. at 76; NAACP v. Allen, supra, 493 F.2d 
at 621; Constructors Assoc, of Western Pa., supra, 441 F.Supp. 
at 953).

The minority employment program contains provisions 
providing for modification and waiver; has been interpreted as 
requiring the failure of other less drastic methods; is solely 
applicable to new positions; and is limited in number (see 
discussion in §1, p. 4, supra). In light of this plaintiff's

-29-



contention in their brief in the court below (respondent's 
Brief, p. 34) that the program is invalid because it fails to 
provide for consideration of less onerous (i.e., non racial) 
alternatives (e.g., increased recruiting, special programs for 
economically deprived persons) is inconsistent with the facts 
of this case. More importantly however, the reasonable relation 
test does not require such a strict standard (see extensive
discussion of this point in R.I. Chapter, Associated Gen.

26/Contractors v. Kreps, supra, 446 F.Supp. at 573-574). —  Thus 
in the Constructors Association case it was urged that a less 
onerous alternative to the 10% minority business enterprise 
participation requirement would be the establishment of a "more 
generalized classification such as 'disadvantages business.'" 
(Constructors Assoc., supra, 441 F.Supp. at 953, n.10). However, 
the court rejected this less .onerous alternative as "more 
difficult to apply" and not as efficiently achieving the state's 
compelling state interest (Id.). These same comments would be 
equally applicable to the alternatives suggested above to the 
rule.

It might additionally be contended that the rule is not 
reasonably related because it is both over and under inclusive

26/ If strict scrutiny were applicable defendant would be 
required to show "that there are no reasonable ways to achieve 
the state's goals by means which impose a lesser limitation on 
the rights of the group disadvantaged by the classification" 
(Bakke, supra, 18 Cal.3d at 49). Even this strict test may be 
satisfied in light of the findings found in the challenged order 
(see Findings XIII and XV, CT 19, 20).

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as it fails to aid the specific victims of the employer's past 
discriminatory actions (see discussion- in Carter v. Gallagher,
452 F.2d at 325-326 (panel opinion) and 452 F.2d at 330 (en 
banc opinion); Lige v. Town of Montclair, 367 A.2d 833, 862-863 
(New Jersey Supreme Court 1976) (Pashman, J., dissenting)).

The overwhelming weight of the case law, however, is to
the contrary. As recently noted by the Ninth Circuit in Davis
v. County of Los Angeles, supra, 566 F.2d at 1343: "We do not
believe that [race conscious] relief may be limited to the
identifiable persons denied employment in the past--for 'the
presence of identified persons who have been discriminated
against is not a necessary prerequisite to ordering affirmative
relief in order to eliminate the present effects of past
discrimination.' Carter v. Gallagher, 452 F.2d at 330." See
also discussion in Bakke, supra, 18 Cal.3d at 77, n.8 (Tobriner,
j., dissenting) and the numerous federal cases upholding minority
preference programs which did not solely benefit the specific

27/victims of discrimination. ——'
In some circumstances, such as the present, the remedy 

cannot truly be characterized as over-inclusive. Sometimes it 
is possible to identify each specific person who has been harmed 
by an employer's discrimination and to provide particular relief 
to that individual (see, e.g., Local 53 v. Vogler, 407 F.2d 1047

27/ See, e.g., Altshuler, supra, 490 F.2d at 18-19 (extended 
benefits to new applicants for employment); Contractors Ass'n. 
v. Secretary of Labor, supra, 442 F.2d at 163-164 (Id.);
Southern Illinois Builders Association, supra, 471 F.2d at 681- 
683 (Id.); Bridgeport Guardians, supra, 491 F.2d at 1056 (Id.)

-31-



the state's compelling interest in remedying the effects of
past discrimination was fully satisfied by individualized

2 8/relief and a race conscious program not necessary. —  However,
in other situations where, as here, the employer's discriminatory
actions include a failure to recruit minorities the specific

2 9/"victims" of discrimination are unidentifiable. —  Here the 
state's interest in eradicating the effects of prior discrimina­
tion cannot be achieved by limiting relief to identifiable 
victims and therefore the program cannot accurately be characterized 
as overinclusive.

The reasoning of this court in Crawford v. Board of 
Education, 17 Cal. 3d 280 (1976) supports the rejection of 
strict scrutiny and application of the reasonable relation 
standard in this case. In Crawford the court was faced with 
the question of the degree of judicial deference to be accorded 
desegregation plans adopted by local school boards. The court

(5th Cir., 1969)). In such instances it could be argued that

28/ Paradoxically the longer an employer waits to impose a race 
conscious program (e.g., by exhausting all nonracial alternatives 
first), the more likely the victims of the employer's discrimina­
tory practices, will not be the recipients of the newly accruing 
benefits created by the race conscious program.
29/ Second, as a practical matter-the state's goal may never be 
achieved if the employer is not allowed, under limited circum­
stances, to adopt a race conscious program which compensates 
minorities as a class for past discrimination. As pointed out 
by the Eighth Circuit if an employer has a prior history of 
discrimination it is not unreasonable to assume that minorities 
would be reluctant to apply absent some positive assurance that 
if qualified they would in fact be hired (Carter, supra, 452 F.2d 
at 331).

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initially noted that "the task of integration is an extremely 
complex one" and stated:

In light of the realities of the remedial 
problem, we believe that once a court finds 
that a school board has implemented a program 
which promises to achieve meaningful progress 
toward eliminating the segregation in the 
district, the court should defer to the school 
board's program and should decline to intervene 
in the school desegregation process so long as 
such meaningful progress does in fact follow.
A court should thus stay its hand even if it 
believes that alternative techniques might 
lead to more rapid desegregation of the schools.
We have learned that the fastest path to 
desegregation does not always achieve the 
consummation of the constitutional objective; 
it may instead result in resegregation. In 
the absence of an easy, uniform solution to 
the desegregation problem, plans developed 
and implemented by local school boards, working 
with community leaders and affected citizens, 
hold the most promising hope for the attainment 
of integreted public schools in our state.

Crawford, supra, 17 Cal.3d at
286.

The court later listed some of the numerous administrative
techniques for facilitating desegregation and further explained
the rationale for its rule of deference:

Each of the different techniques has had varied 
success in different circumstances; sociologists 
are just beginning to explore the complexities 
which account for the differences in results and 
to identify the factors which may be utilized to 
determine which desegregation tool should be used 
in a given situation. [Citation deleted]. Under 
these circumstances, local school boards should 
clearly have the initial and primary responsibility 
for choosing between these alternative methods.

In our view, reliance on the judgment of local 
school boards in choosing between alternative 
desegregation strategies holds society's best

-33-



hope for the formulation and implementation 
of desegregation plans which will actually 
achieve the ultimate constitutional objective 
of providing minority students with the equal 
opportunities potentially available from an 
integrated education.

Crawford, supra, 17 Cal.3d 
at 305, 306 (footnote deleted).

The concerns expressed in Crawford are even more forceful 
when, as here, the court must determine whether an employer 
may lawfully have - as one possible weapon in his arsenal to 
combat the evils of past discrimination--the ability to adopt 
race conscious programs without a judicial finding of prior 
discrimination. The problem of devising workable remedies 
"for the continuing effects of past discrimination have proven 
distressingly elusive" (Bakke, supra, 18 Cal.3d at 81 (dissenting 
opinion)) and are as complex as those involved in school 
desegregation. And, as with the school situation, there are 
a variety of techniques to remedy the problem which have had 
varied success in different circumstances.

Moreover, affording deference to an employer by allowing 
it to utilize a wide range of possible solutions (including 
race conscious programs) to remedy the effects of past discrimina­
tion makes it more likely that the problem will be successfully 

resolved:
Recognizing the dangers of preferential 
treatment, enterprises must be allowed 
the use of preferences without court order, 
indeed, without the approval of any agency. 
Too many enterprises exist which ought to 
engage in some form of preferential treatment 
for any reasonably constituted agency to

-34-



review. More importantly) the enterprise 
itself is in the best position to evaluate 
its problems and the range of feasible 
alternatives to its current procedures.
Although an agency may be able to develop 
basic methods of identifying discriminatory 
procedures, the method applicable to any 
specific enterprise and the development of 
a remedy in almost all cases will depend 
upon a specific and detailed knowledge of 
the enterprise and at least general knowledge 
about the excluded group. If allowed to use 
preferential treatment for preferred groups, 
an enterprise can use its knowledge to maximize 
the chances of success for the individuals 
selected and to alter the underlying dis­
criminatory pattern. In so doing, the enterprise 
and the individuals who formulate the remedies 
may feel they have a stake in the success of 
the plan they design.
There are, of course, dangers in allowing 
enterprises to adopt their own preference 
plans. The plans may be inadequate. More 
importantly, the remedy may tend to institu­
tionalize separate treatment, or the plan may 
go too far, creating unjustifiable reverse 
discrimination. These dangers can be 
minimized by according affected individuals 
the right to challenge remedial plans and 
by requiring that all preferences be justified 
by, and related to, identified discriminatory 
barriers.

Davidson, Preferential 
Treatment and Equal Opportunity, 
55 Ore.L.Rev. 53, 74-75 (1976) 
(footnotes deleted)

In the instant case defendant Civil Service Commission 
has the necessary expertise and is in the best position to 
evaluate the problems of past discrimination and the range of 
feasible alternatives to its current procedures. Certainly 
a program developed by it holds the most promising hope for 
the attainment of the eradication of the effects of past

-35-



discrimination. Under such circumstances— as in Crawford

the Civil Service Commission should have the primary responsi­
bility for choosing the range of alternative methods it finds 
most appropriate.

V
CONCLUSION

For the foregoing reasons, the judgment of the Superior 
Court voiding defendant's minority employment program should be 
reversed.
Dated: June 9 , 1978

Respectfully submitted,
ALICE BEASLEY 
JOHN Ii. ERICKSON 
STEPHEN KOSTKA 
CLIFFORD C. SWEET 
PETER E. SHEEHAN

ALICE BEASLEY

JOHN H. ERICKSON

STEPHEN KOSTKA

PETER E. SHEEHAN 
Attorneys for Amici Curiae

-36-



PROOF OF SERVICE BY MAIL

of Alameda County, and not a party to the within action; my
business address is 2357 San Pablo Avenue, Oakland, California
94612. On June 9 , 1978 I served true copies of the attached
MOTION OF LEGAL AID SOCEITY OF ALAMEDA COUNTY AND NAACP LEGAL
DEFENSE & EDUCATIONAL FUND, INC., FOR LEAVE TO FILE A BRIEF,
AMICI CURIAE, IN SUPPORT OF DEFENDANTS AND BRIEF, AMICI CURIAE,
OF THE LEGAL AID SOCIETY OF ALAMEDA COUNTY, AND NAACP LEGAL
DEFENSE & EDUCATIONAL FUND, INC., IN SUPPORT OF DEFENDANTS,
by placing said copies in envelopes addressed as follows:
Clerk's Office John Heinrich
Court of Appeal Thomas Darling
Third District County Counsel of Sacramento County
Library & Courts Bldg. 827-7th Street
Sacramento, CA 95814 Sacramento, CA 95814
Clerk of the Superior Court ■ John M. Price
720 Ninth Street District Attorney of Sacramento County
Sacramento, CA 95814 Roger Miller

Deputy District Attorney 
901 "G" Street 
Sacramento, CA 95814

Said envelope was then sealed and postage fully prepaid thereon 
and deposited in the United States mail at Oakland, Alameda 
County, California. That there is delivery service by United 
States mail between the place of mailing and the place so 
addressed.
I declare under penalty of perjury that the foregoing is true 

and correct.
Executed on June 9 , 1978, at Oakland, California.

I, the undersigned, state I am over 18 years of age, a resident

DECLARANT