Order Granting Motion to Expedite Appeal

    In The

Supreme (Emtrt of %  lotted States
October Term, 1979 

No. 79-1080

Detroit Police Officers A ssociation, et al.,
Petitioners,

v.

Co l e m a n  A. Y oung , et al. 

on  p e t it io n  fo r  a  w r it  of certiorari to  t h e
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Jack Greenberg 
James M. Nabrit, III 
0. Peter Sherwood 
Patrick 0. Patterson 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Barry L. Goldstein
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

George M. Matish 
James Zeman
Nancy McCaughan-Blount

Law Department, City of Detroit 
1010 City-County Building 
Detroit, Michigan 48226

James A ndary
2440 Buhl Building 
Detroit, Michigan 48226

Attorneys for Respondents



TABLE OF CONTENTS

Opinions B elow ............................................................   1

Statement of the Case ....................................................  1

R easons f o r  D enying the W r i t ...........................................  3

I. No Questions Are Properly Presented For 
Review at This Tim e......................................... 3

II. The Sixth Circuit’s Decision Does Not Conflict 
With the Decisions of Other Circuits or of 
This Court .......................................................... 6

Con clu sion ....................................................................................... 11

T able of Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 9n 
American Construction Co. v. Jacksonville, T. & K.W.

Ry., 148 U.S. 372 (1893) ..............................................  3n

Baker v. City of Detroit, Civil Action Nos. 5-71937,
5-72264 (E.D. Mich., Oct. 1, 1979) .....................   9n

Bridgeport Guardians, Inc. v. Bridgeport Civil Service 
Commission, 482 F.2d 1333 (2d Cir. 1973), cert, de­
nied, 421 U.S. 991 (1975) ............................................ 6, 7n

Brotherhood of Locomotive Firemen & Enginemen v. 
Bangor & A. R.R., 389 U.S. 327 (1967) .............. .......  3

Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 
1976), cert, denied, 431 U.S. 965 (1977) .................... 7n

EEOC v. AT <& T Co., 556 F.2d 167 (3rd Cir. 1977), 
cert, denied, 438 U.S. 915 (1978) ...............................  7n

PAGE



11

PAGE

EEOC v. Navajo Refining Co., 593 F.2d 988 (10th Cir.
1979) ..............................................................................  6

Estelle v. Gamble, 429 U.S. 97 (1976) ................ .......... . 3n

Firefighters Institute for Racial Equality v. City of St.
Louis, 21 F.E.P. Cases 1140 (8th Cir. 1980) ..............  7n

Firefighters Institute for Racial Equality v. City of St. 
Louis, 588 F.2d 235 (8th Cir. 1978), cert, denied, 99
S.Ct. 3096 (1979)..................................    7n

Hamilton-Broivn Shoe Co. v. Wolf Bros. & Co., 240 
U.S. 251 (1916) .............................................................  3

Katzenbach v. Morgan, 384 U.S. 641 (1966) ..................  lOn
Kirkland v. New York State Department of Correc­

tional Services, 520 F.2d 420 (2d Cir.), rehearing en 
banc denied, 531 F.2d 5 (1975), cert, denied, 429 U.S.
823 (1976)....................................................................... 7hl

Larson v. Domestic & Foreign Commerce Corp., 337 
U.S. 682 (1949) .................     3n

National League of Cities v. TJsery, 426 U.S. 833 (1976) lOn 
New York City Transit Authority v. Beazer, 440 U.S.

568 (1979)  .......................................... .......................  3

Regents of the University of California v. Bakke, 438 
U.S. 265 (1978) ............ ................................4, 8, 9, 9n, lOn

Sandstrom v. Montana, 61 L.Ed.2d 39 (1979) ..............  3
Sherrill v. J.P. Stevens & Co., 551 F.2d 308, 13 E.P.D.

If 11,422 (4th Cir. 1977) .............................. .................  7n
United States v City of Chicago, 549 F.2d 415 (7th

Cir.), cert, denied, 434 U.S. 875 (1977) .................... 7n
United States v. N.L. Industries, Inc., 479 F.2d 354 

(8th Cir. 1973)............................................................... 7n



Ill

United Steelworkers v. Weber, 61 L.Ed.2d 480 (1979)
4, 5n, 7, 8,10

PAGE

Uszell v. Friday, 591 F.2d 997 (4th Cir., Feb. 2, 1979)
(en bane), opinion withdrawn, No. 75-2276 (4th Cir.,
Nov. 9, 1979) (en banc) ............................................... 8

Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.
1976) ........................... -....... -..............-.................... ------ 7n

White v. Carolina Paperboard Corp., 564 F.2d 1073 
(4th Cir. 1977) ................................................................ 7n

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 
(1952) .......................-..................................... -...... -......  3n



I n  th e

Court of tljr United Stairs
October T eem, 1979 

No. 79-1080

D etroit P olice Officers A ssociation, et al.,

v.
Petitioners,

Coleman A. Y oung, et al.,

ON p e t i t i o n  f o e  a  w r i t  o f  c e r t io r a r i  t o  t h e  
u n it e d  s t a t e s  c o u r t  o f  a p p e a l s  f o e  t h e  s ix t h  CIRCUIT'

BRIEF IN OPPOSITION

Opinions Below

The district court’s opinion is reported at 446 F. Supp. 
979, and the Sixth Circuit’s opinion is reported at 608 F.2d 
671. Both opinions are reprinted in the appendix to the 
petition.

Statement of the Case

The plaintiffs, petitioners here, challenge the City of 
Detroit’s affirmative action plan for the promotion of police 
officers to the rank of sergeant. The plan was adopted in 
1974, after a long history of racial discrimination by the 
City in its police employment practices and after decades of 
hostility and violence-including the tragic race riots of



2

1943 and 1967—between the black community and the police. 
The plan provided that, subject to the continued availability 
of qualified officers of both races, and under the supervision 
and periodic review of the Board of Police Commissioners, 
approximately equal numbers of black and white officers 
would be promoted to the rank of sergeant.

The district court held that the plan violated, inter alia, 
the Fourteenth Amendment to the United States Constitu­
tion, Titles VI and VII of the Civil Rights Act of 1964, as 
amended, and 42 U.S.C. §§ 1981 and 1983. The district court 
entered a permanent injunction prohibiting the City from 
promoting police officers to the rank of sergeant pursuant 
to the affirmative action plan and forbidding the considera­
tion of race as a factor in promotional decisions.

The Sixth Circuit reversed the judgment and remanded 
the case for the district court to reconsider the constitu­
tional issues and, if it finds the affirmative action plan to 
be constitutional, to determine the reasonableness of the 
plan’s 50/50 ratio and to establish a formula for the plan’s 
eventual termination. The court of appeals held that, due 
to errors of law and an impermissibly restrictive view of 
the evidence, the district court had failed to give adequate 
consideration either to the extensive evidence of the police 
department’s prior discrimination against blacks or to the 
City’s substantial need to increase the numbers of black 
officers in all ranks in order to provide effective law enforce­
ment to the people of Detroit. The Sixth Circuit reviewed 
the record in detail, dismissed the plaintiffs’ claims under 
Title VI, Title VII, and § 1981, and remanded the remaining 
issues for determination by the district court.



3

REASONS FOR DENYING THE WRIT

I.

No Questions Are Properly Presented For Review at 
This Time.

As a rule, this Court will not issue a writ of certiorari to 
review a nonfinal appellate decision which, like the Sixth 
Circuit’s decision here, remands a case to the district court 
for a determination of critical facts. Brotherhood of Loco­
motive Firemen $  Enginemen v. Bangor <& A. R.R., 389 U.S. 
327, 328 (1967) (per curiam). The lack of finality “ of itself 
alone furnishe[s] sufficient ground for the denial” of the 
petition. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 
240 U.S. 251, 258 (1916). Where, as here, there are critical 
factual and constitutional questions which have not been 
decided by either of the courts below, this Court should not 
review the case. See New York City Transit Authority v. 
Beaser, 440 U.S. 568, 583-84 n.24 (1979); Sandstrom v. Mon­
tana, 61 L.Ed. 2d 39, 53 (1979).1

There is no final decision in this case. Indeed, the Sixth 
Circuit has remanded the case to the district court for a 
determination which may resolve the dispute in petitioners’ 
favor. It is clear from the district court’s February 1978

1 The Court generally reviews interlocutory decisions only where 
“ it is necessary to prevent extraordinary inconvenience and em­
barrassment in the conduct of the cause,”  American Construction 
Co. v. Jacksonville, T. & K.W. By., 148 U.S. 372, 384 (1893), 
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-85 
(1952), or where there is a straightforward issue of law—for ex­
ample, a jurisdictional question— that is basic to the continued liti­
gation of the case, see, e.g., Larson v. Domestic & Foreign 
Commerce Cory., 337 U.S. 682, 685 n.3 (1949). Because these ex­
ceptional circumstances are not present in the instant case, the 
Court should follow its “nomal practice of denying interlocutory 
review.” Estelle v. Gamble, 429 U.S. 97, 114 (1976) (Stevens, J., 
dissenting).



4

opinion that it did not correctly anticipate or properly 
address the critical factual and legal questions which this 
Court subsequently identified in Regents of the University 
of California v. Bakke, 438 U.S. 265 (1978), and United 
Steelworkers v. Weber, 61 L.Ed.2d 480 (1979). See Section 
II, infra.

After reviewing the conflict between the opinion of the 
district court in the instant case and the opinions of this 
Court in Bakke and Weber, the Sixth Circuit outlined the 
complex factual and legal questions to be decided by the 
district court in order properly to assess the constitution­
ality of Detroit’s plan. The district court must now deter­
mine whether the plan was justified by the need to remedy 
past discrimination, 608 F.2d at 694-95 (A. 32a-33a), or by 
the need to provide effective law enforcement and to reduce 
racial tensions between the police and the black community, 
id. at 695-96 (A. 34a-36a). As the Sixth Circuit noted, this 
determination may involve a number of subsidiary ques­
tions :

[W]hether appropriate findings were made by a pub­
lic body “with competence to act in this area” . . .  [;]

# # #

whether “there is a sound basis for concluding that 
minority underrepresentation is substantial and 
chronic, and that the handicap of past discrimination 
is impeding access [and promotion] of minorities” . . . ; 
whether any discrete group or individual is stigma­
tized; . . . whether use of race is reasonable in light of 
the objectives of the plan . . .  ; . . . [and whether] no 
other approach offers a practical means of achieving 
the ends of the program in the foreseeable future. Id. 
at 694 (A. 32a-33a) (citations omitted).



5

If the district court finds that race-conscious affirmative 
action is constitutionally permissible in the circumstances 
presented here, then it must determine whether the plan’s 
50/50 ratio is reasonable and whether provisions for ter­
minating the plan should be established by the court.2 608 
F.2d at 696-98 (A. 36a-40a). The district court’s considera­
tion of these issues may require it to resolve such addi­
tional questions as “whether the affirmative action plan is 
‘substantially related’ to the objectives of remediation of 
prior discrimination and improved law enforcement,” and 
whether the plan achieves these objectives “without un­
necessarily trammeling the interests of white candidates 
for promotion.” Id. at 696 (A. 37a).

In sum, the decisions of the courts below do not provide 
an opportunity for full review by this Court of the critical 
factual and constitutional questions in this case. The pro­
ceedings in the district court on remand may resolve those 
questions in a manner which will be appropriate for re­
view by this Court at a later time. However, until a final 
decision has been made below, review should be denied.

2 The City instituted the plan as a temporary measure. The 
Sixth Circuit stated that, as in this Court’s approval of a similar 
plan in Weber, the remedial and temporary aspect of the plan was 
essential to its approval and that “ [ujnless the parties are able to 
agree on provisions for termination of the plan . . . , this will be an 
ingredient of the final judgment.” 608 F.2d at 698 (A. 40a).



6

The Sixth Circuit’s Decision Does Not Conflict With 
the Decisions of Other Circuits or of This Court.

The conflicts asserted by petitioners do not exist. The 
decision in EEOC v. Navajo Refining Co., 593 F.2d 988 
(10th Cir. 1979), like the decision below, recognizes that 
“ [statistically, disparate impact can he shown in a variety 
of ways,” including the use of applicant flow data, statistics 
showing the racial impact of selection procedures, and com­
parisons of an employer’s minority hiring record with the 
minority population in a community’s labor force. 593 F.2d 
at 990. In Navajo Refining, the court found that “the actual 
percentage of [minority persons] hired compares favorably 
with the percentages under any appropriate measure.” Id. 
at 991.3 Here the Sixth Circuit carefully considered a va­
riety of appropriate measures, but the facts required it to 
reach the opposite conclusion: “Application of these bench­
marks indicates a gross disparity between black employ­
ment in the Department and black representation in the 
city’s labor market and general population.” 608 F.2d at 
688 (A. 20a).

Petitioners also contend that the decision below conflicts 
with a line of cases following Rridgeport Guardians, Inc. 
v. Rridgeport Civil Service Commission, 482 F.2d 1333 (2d 
Cir. 1973), cert, denied, 421 U.S. 991 (1975). Although 
some of these decisions disapprove judicial imposition of 
race-conscious numerical promotion relief in litigated

II.

3 The court in Navajo Refining found that it could not consider 
hiring statistics for years prior to 1969 because in that year the 
defendant had acquired the refinery as a going concern from an 
unrelated owner. 593 F.2d at 991. No such limitation applies to the 
ease at bar.



7

eases,4 none of them holds or suggests that an employer 
may not voluntarily adopt such a plan to eliminate a man­
ifest racial imbalance. As the Court noted in United Steel­
workers v. Weber, supra, “since the . . . plan was adopted 
voluntarily, we are not concerned with what Title VII re­
quires or with what a court might order to remedy a past 
proven violation of the Act.” 61 L.Ed.2d at 487. Even if 
the issue were one of the court’s power rather than the 
employer’s prerogative, the great weight of authority sup­
ports the judicial imposition of numerical promotion relief 
to correct proven discrimination in promotions.5 &

4 In Bridgeport Guardians there was no finding of discrimination 
in promotions to justify the district court’s imposition of numerical 
promotion relief. 482 F.2d at 1341. The decision of the panel in 
Kirkland v. New York State Department of Correctional Services, 
520 F.2d 420 (2d Cir.), rehearing en banc denied, 531 F.2d 5 
(1975), cert, denied, 429 U.S. 823 (1976), was followed by the 
author of the Kirkland opinion and by one other Second Circuit 
judge in Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.
1976) , cert, denied, 431 U.S. 965 (1977), but has been rejected by 
three Second Circuit judges as inconsistent with other decisions of 
the circuit, Kirkland, supra,, 531 F.2d at 5-11 (Mansfield, Kaufman, 
and Oakes, JJ., dissenting from denial of rehearing en banc).

In White v. Carolina Paperboard Corp., 564 F.2d 1073 (4tli Cir.
1977) , the court reversed a promotional quota where none of the 
victims of discrimination could take advantage of it and there was 
no “compelling need”  for it. 564 F.2d at 1091-92. But the Fourth 
Circuit has upheld such relief where it is appropriate. See Sherrill 
v. J.P. Stevens & Co., 551 F.2d 308, 13 E.P.D. 11,422, at 6414 
(4th Cir. 1977).

5 See Firefighters Institute for Racial Equality v. City of St. 
Louis, 21 F.E.P. Cases 1140, 1148-49 (8th Cir. 1980); Firefighters 
Institute for Racial Equality v. City of St. Louis, 588 F.2d 235 
(8th Cir. 1978), cert, denied, 99 S.Ct, 3096 (1979) ; EEOC v. AT
& T Co., 556 F.2d 167, 177 (3rd Cir. 1977), cert, denied, 438 U.S. 
915 (1978); United States v. City of Chicago, 549 F.2d 415, 436-37 
(7th Cir.), cert, denied, 434 U.S. 875 (1977) ;  Sherrill v. J.P. 
Stevens <& Co., 551 F.2d 308, 13 E.P.D. j[ 11,422 at 6414 (4th Cir. 
1977); Watkins v. Scott Paper Co., 530 F.2d at 1159, 1194 (5th 
Cir. 1976); United States v. N.L. Industries, Inc., 479 F.2d 354, 377 
(8th Cir. 1973).



8

In citing Uzzell v. Friday, 591 F.2d 997 (4th Cir., Feb. 2, 
1979) (en banc), petitioners have relied on an opinion which 
the Fourth Circuit has withdrawn because the case was 
argued before an improperly constituted en banc court. 
Uzzell v. Friday, No. 75-2276 (4th Cir., Nov. 9, 1979). More­
over, because the facts of Uzzell are plainly distinguishable 
from the facts here, there was never a conflict between the 
two decisions. The original panel in Uzzell found that racial 
classifications used by a state university to assure minority 
representation in student government and student courts 
were “without either reasonable basis or compelling in­
terest” , 547 F.2d 801, 804 (4th Cir. 1977). On reconsidera­
tion in light of this Court’s decision in Regents of the Uni­
versity of California v. Bahke, supra, the improperly con­
stituted en banc majority emphasized that the university 
had “ failed to demonstrate that the accomplishment of the 
State’s purpose necessitates its use of a suspect classifica­
tion . . . ” 591 F.2d at 1000. In the instant case, respondents 
submit, the evidence demonstrates that Detroit’s affirmative 
action plan was necessary to remedy past discrimination in 
its police employment practices, that the plan properly re­
moved the adverse impact from the police department’s 
unvalidated promotional model, and that the plan served 
the City’s compelling interest in overcoming the effects of 
past discrimination and providing effective police services 
to the people of Detroit. The Sixth Circuit has remanded 
the case for the district court to determine whether this 
evidence satisfies the requirements of BaJcke.

Finally, the decision of the Sixth Circuit is fully consis­
tent with the guidance provided by a majority of this Court 
in the Balike and Weber cases. The Court in Bakke held 
under Title VI and the Fourteenth Amendment that “ the 
State has a substantial interest that legitimately may be 
served by a properly devised [medical school] admissions



program involving the competitive consideration of race 
and ethnic origin.”  438 U.S. at 320 (Powell, J., joined by 
Brennan, White, Marshall, and Blackmnn, JJ.). Four Jus­
tices summarized the central meaning of the Court’s opin­
ions in the following way:

Government may take race into account when it acts 
not to demean or insult any racial group, but to remedy 
disadvantages cast on minorities by past racial prej­
udice, at least when appropriate findings have been 
made by judicial, legislative, or administrative bodies 
with competence to act in this area. Id. at 325 (Bren­
nan, White, Marshall, and Blackmun, JJ.).

The Sixth Circuit correctly applied the opinions in Bakke 
to the facts of this case. See 608 F.2d at 694-95 (A. 32a- 
33a).6

6 Petitioners have noted that the Sixth Circuit did not expressly 
reverse the district court’s holding that the examinations for ser­
geant which the City instituted in 1973 were job-related and non- 
discriminatory. It was unnecessary for the appellate court to reach, 
this question; it found that Detroit’s plan was permissible under 
Title VI, Title VII, and § 1981— and inay be found by the district 
court on remand to be permissible under the Fourteenth Amend­
ment— even if the present promotional model could be shown to 
select the more qualified applicants. Moreover, the record demon­
strates that the written test, a major portion of the model, was not 
job-related and, if used without an affirmative action adjustment, 
would have unlawfully excluded black officers from promotion. See 
Albemarle Paper Co. v. Moody, 422 IJ.S. 405, 435 (1975); Regents 
of the University of California v. Bakke, supra, 438 U.S. at 364 
n.37 (Brennan, White, Marshall, and Blackmun, JJ.), 306 n.43 
(Powell, J .). In a closely related case involving Detroit’s affirma­
tive action plan for the promotion of sergeants to the rank of lieu­
tenant, Circuit Judge Keith, sitting by designation in the district 
court, has addressed this question at length and concluded that the 
written test is not job-related. Baker v. City of Detroit, Civil Ac­
tion Nos. 5-71937, 5-72264, at 60 (E.D. Mich., Oct. 1, 1979). Judge 
Keith upheld the affirmative action plan “as proper under federal 
and state law . . . because it undoes years of discrimination [,] . . . 
because it serves vital City needs . . . [and] because it looks to the 
future as a means of remedying a sorry past.” Id. at 108-109 (foot­
note omitted).



10

The Sixth Circuit also correctly applied this Court’s deci­
sion in Weber. See 608 F.2d at 689-91 (A. 23a-26a). Here, 
as in Weber, the plan is “ designed to break down old pat­
terns of racial segregation and hierarchy” ; it “does not 
unnecessarily trammel the interests of the white employ­
ees” ; and it “ is a temporary measure . . . not intended to 
maintain racial balance, but simply to eliminate a manifest 
racial imbalance.” 61 L.Ed.2d at 492. The Sixth Circuit, 
concluding that the federal regulation imposed by Title VII 
on affirmative action by state and local governments is no 
more stringent than that imposed on private industry, ac­
cordingly upheld Detroit’s plan. The statutory language,7 
the legislative history,8 and the constitutional underpin­
nings9 of Title VII demonstrate that the Sixth Circuit was 
correct in rejecting a double standard.

7 Section 703(a), ( j) ,  Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. § 2000e-2(a), (j).

8 See Regents of the University of California v. Bakke, supra, 
438 U.S. at 353-54 n.28 (Brennan, White, Marshall, and Blackmun, 
JJ.).

9 See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) ;  National 
League of Cities v. Usery, 426 U.S. 833, 851 (1976).



11

CONCLUSION

For the foregoing reasons, the petition for a writ of 
certiorari should he denied.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
0 . P eter S herwood 
P atrick 0 . P atterson 

10 Columbus Circle 
Suite 2030
New York, New York 10019

B arry L. G oldstein

806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

George M. M atish

J ames Z eman

N ancy M cCatxghan-B lount

Law Department, City of Detroit 
1010 City-County Building 
Detroit, Michigan 48226

J ames A ndary

2440 Buhl Building 
Detroit, Michigan 48226

Attorneys for Respondents

February 1980.



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