Crum v. Alabama Brief of Plaintiffs-Appellees

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Topic
- Economic Justice
Notable Person
- Elaine R. Jones
Organization
- NAACP Legal and Educational Defense Fund, Inc.
Matter
- Eugene Crum, Jr. v. State of Alabama
Case
- Eugene Crum, Jr. v. State of Alabama
U.S. state
- Alabama
Collection
- Brief Collection
Taxonomy
Identifier
- 9f982faf-ae9a-ee11-be37-00224827e97b

Cite this item

Brief Collection, LDF Court Filings. Crum v. Alabama Brief of Plaintiffs-Appellees, 1999. 9f982faf-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5593282e-4f0f-44b2-8955-c592d856de6e/crum-v-alabama-brief-of-plaintiffs-appellees. Accessed May 17, 2025.

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CASE NO. 98-6600

IN THE
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

IN RE: EMPLOYMENT DISCRIMINATION LITIGATION
AGAINST THE STATE OF ALABAMA, et al.;

EUGENE CRUM, JR., et al.,
Plaintiffs/Appellees

STATE OF ALABAMA, et al.,
Defendants/Appellants

UNITED STATES, Plaintiff/Appellees

BALLARD, et al.,
Defendants/Appel lants

On Appeal from the
United States District Court

for the Middle District of Alabama, Northern Division

BRIEF OF PLAINTIFFS-APPELLEES

Robert L. Wiggins, Jr.,
Gordon, Silberman,

Wiggins & Childs
1400 Southtrust Tower
Birmingham, Alabama 35203
(205) 328-0640

Elaine R. Jones
Director-Counsel
Norman J. Chackin
David T. Goldberg
Olatunde C.A. Johnson
NAACP Legal Defense

& Educational Fund
99 Hudson Street, 16th Floor
New York, NY 10013
(212) 965-2200

ORAL ARGUMENT REQUESTED

NO. 98-6600

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

IN RE: EMPLOYMENT DISCRIMINATION
LITIGATION AGAINST THE STATE
OF ALABAMA, et al.;

EUGENE CRUM, et al.,

Plaintiffs-Appellees,

STATE OF ALABAMA, et al.,

Defendants-Appellants.

CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT

Counsel for Appellant certifies that the following is a complete list of the trial

judges; attorneys involved in the case; and all persons, associations of persons, firms,

partnerships, and corporations having an interest in the outcome of this case:

1. R. Taylor Abbott, Attorney for one or more of the Defendants-

Appellants, below;

C-l ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

2. Russell W. Adams, and the attorneys working for or with the firm

of Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

3. Edward S. Allen, Attorney for one or more Defendants-Appellants

below;

4. Charles E. Archie, Jr., Applicant for Intervention as Plaintiff below;

5. Dean Argo, Defendant-Appellant, individually and in his official

capacity;

6. Beverly P. Baker, Attorney for Plaintiffs below;

7. Balch and Bingham, Attorneys for one or more of Defendants-

Appellants: Edward S. Allen; Marcel L. DeBruge; Douglas B. Kauffman; Robin G.

Laurie; T. Dwight Sloan III;

8. Carolyn Ball, Plaintiff-Appellee;

9. Halycon Vance Ballard, former Director of the Alabama Personnel

Department, formerly a defendant individually and in her official capacity;

10. Carol Banks, Plaintiff-Appellee;

11. Constance S. Barker, Attorney for one or more Defendants-

Appellants below;

C-2 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

12. David Barley, Plaintiff-Appellee;

13. Henry C. Barnett, Attorney for one or more Defendant-Appellants

below;

14. Roger L. Bates, Attorney for one or more Defendants-Appellants

below;

15. Nancy Beggs, Defendant-Appellant individually and in her official

capacity;

16. Ronald James Bowden, Attorney for one or more Defendants-

Appellants below;

17. John Bradford, Plaintiff-Appellee;

18. John J. Breckenridge, Attorney for one or more Defendants-

Appellants below;

19. Burr and Forman, Attorneys for one or more Defendant-Appellants

below: Ricky J. McKinney;

20. Milton Burton, Plaintiff-Appellee;

21. Pauline Burton; Plaintiff-Appellee;

C-3 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

22. William O. Butler III, Attorney for one or more Defendants-

Appellants below;

23. Cabaniss, Johnston, Gardner, Dumas & O’Neal,, Attorney for one

or more Defendants-Appellants below: R. Taylor Abbott; William Gardner; Patrick

H. Sims;

24. Rocco Calamusa, Jr.,and the attorneys working for or with the firm

of Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

25. Joseph H. Calvin III,and the attorneys working for or with the firm

of Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

26. Billy Joe Camp, former Defendant in his official capacity;

27. Capell, Howard, Knabe & Cobbs, Attorneys for one or more

Defendants-Appellants below: Constance S. Barker; Henry C. Barnett; Christopher

W. Weller;

28. Honorable John L. Carroll, United States Magistrate Judge;

29. Lynn Carter; Plaintiff-Appellee;

30. Clyde Chatman, Plaintiff-Appellee;

C-4 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

31. Robert F. Childs, Jr., and the attorneys working for or with the firm

of Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

32. Vickie Cole; Defendant-Appellant individually and in her official

capacity;

33. Preston Coleman, Plaintiff-Appellee;

34. Scott W. Corscadden, former Attorney for one or more Defendants-

Appellants below;

35. Larry E. Craven, Attorney for one or more Defendants-Appellants

below;

36. Betty Crum, Plaintiff-Appellee;

37. Eugune Crum, Plaintiff-Appellee;

38. Mary Beth Culberson, former attorney for one or more Defendants-

Appellants below;

39. Grant Culliver, Plaintiff-Appellees;

40. Renee Culverhouse, former Attorney for one or more Defendants-

Appellants below;

41. Jerome F. Dangerfield, Plaintiff-Appellees;

C-5 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

42. Edward E. Davis, Attorney for one or more Defendants-Appellants

below;

43. Phillis C. Davis, Attorney for one or more Defendants-Appellants

below;

44. David J. Dean, Attorney for one or more Defendants-Appellants

below;

45. Marcel L. DeBruge, Attorney for one or more Defendants-

Appellants below;

46. Joe Dixon, Defendant-Appellant in his official capacity;

47. Kenneth Alden Dowdy, former Attorney for one or more

Defendants-Appellants below;

48. Etheline Duster, Plaintiff-Appellees;

49. John Dutton, Defendant-Appellant in his official capacity;

50. Richard J. Ebbinghous, and the attorneys working for or with the

firm of Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

51. Venus Edwards, Applicant for intervention as Plaintiff below;

52. Mable G. Elliott, Plaintiff-Appelee;

C-6 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

53. James H. Evans, former Attorney General for the State of Alabama;

54. Sharon E. Ficquette, Attorney for one or more Defendants-

Appellants below;

55. Gary W. Fillingim, former Attorney for one or more Defendants-

Appellants below;

56. Andrey D. Finch, Applicant for intervention as Plaintiff below;

57. Margaret L. Fleming, Attorney for one or more Defendants-

Appellants below;

58. Florence/Lauderdale County Emergency Management Agency,

Defendants-Appellant;

59. Jim Folsom, Jr., former Defendant in his official capacity;

60. Samuel Foster, Plaintiff-Appellee;

61. Ben A. Fuller, former Attorney for one or more Defendants-

Appellants below;

62. Steve Franks, Defendant-Appellant individually and in his official

capactiy;

C-7 ofC-21

63. Thomas T. Gallion III, Attorney for Plaintiffs-Appellees;

64. William Gardner, Attorney for one or more Defendants-Appellants

below;

65. Gwendolyn Bulger Gamer, Attorney for one or more Defendants-

Appellants below;

66. Billington M. Garrett, Attorney for one or more Defendants-

Appellants below;

67. Lewis Gilchrist, Plaintiff-Appellee;

68. H. Lewis Gillis, former Attorney for one or more Defendants-

Appellants below;

69. Robert Marc Givhan, Attorney for one or more Defendants-

Appellants below;

70. Freddy Golthy, Plaintiff-Appellee;

71. Terry Dale Goodson, Plaintiff-Appellee;

72. Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiffs-

Appellees: Russell W. Adams, Rocco Calamusa, Jr., Joseph H. Calvin III, Robert F.

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

C-8 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

Childs, Jr., Richard J. Ebbinghouse, Kimberly Page, Byron R. Perkins, Kell Simon,

Abigail P. van Alstyne, Ann K. Wiggins, Gregory O. Wiggins, and Robert L.

Wiggins, Jr.

73. Carl Robert Gottlieb, Jr., Attorney for one or more Defendants-

Appellants below;

74. William P. Gray, Jr., Attorney for one or more Defendants-

Appellants below;

75. Ricky Grider, Plaintiff-Appellee;

76. Charles Grimsley, former Defendant-Appellant in his official

capacity;

77. Romanza A. Hamilton, Plaintiff-Appellant;

78. Ashley H. Hamlett, former Attorney for one or more Defendants-

Appellants below;

79. Otto Hammonds, Defendant-Appellant;

80. Hand Arendall (Roger L. Bates; Mark T. Waggoner), Attorneys for

one or more Defendants-Appellants below;

81. Ruth Harrell, Defendant-Appellant in her official capacity;

C-9 ofC-21

82. Willie Harris, Plaintiff-Appellee;

83. Haskell Slaughter & Young (Beverly P. Baker; Thomas T. Gallion,

III and Richard W. Walston); Attorneys for one or more Defendants-Appellants

below;

84. John Hathaway, Defendant-Appellant in his official capacity;

85. Frances Heidt, former Attorney for one or more Defendants-

Appellants below;

86. Tommy Herring, former Defendant-Appellant in his official

capacity;

87. Pamela Robinson Higgins, Attorney for one or more Defendants-

Appellants below;

88. James C. Holland, Defendant-Appellant;

89. Claude Hooks, Jr., Defendant-Appellant in his official capacity;

90. Michael Hopkins, Plaintiff-Appellee;

91. Jordan Huntley, (Willie J. Huntley) Attorney for one or more

Defendants-Appellants below;

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

C-10ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

92. Rodney Huntley, Plaintiff-Appellee;

93. Willie J. Huntley, Attorney for one or more Defendant-Appellants

below;

94. Jim R. Ippolito, Attorney for one or more Defendant-Appellants

below;

95. Jacquelyn J. Jackson-Kelly, Plaintiff-Appellee;

96. Yvonne C. Jennings, Plaintiff-Appellee;

97. George E. Jones, III, former Attorney for one or more Defendant-

Appellants below;

98. Gladys Jones, Plaintiff-Appellee;

99. Theodore Jones, Plaintiff-Appellee;

100. Douglas B. Kaufman, Attorney for one or more Defendant-

Appellants below;

101. Willie Kelley, Plaintiff-Appellee;

102. Anita L. Kelly, former Attorney for one or more Defendant-

Appellants below;

103. Lauderdale County, Cross-Claimant below;

C-ll ofC-21

104. Lauderdale County Commission, Cross-Claimant below;

105. Robin G. Laurie, Attorney for one or more Defendant-Appellants

below;

106. Eddie Leitman, former Attorney for one or more Defendant-

Appellants below;

107. Leitman, Seigal, Payne & Campbell, former Attorneys for one or

more Defendant-Appellants below;

108. Levin, Middlebrooks, Thomas, Mitchell, Green, Echsner, Proctor

& Papantonio, (Mary Pilcher), former Attorney for one or more Defendant-

Appellants below;

109. David W. Long, Attorney for one or more Defendant-Appellants

below;

110. Deborarh F. Lumpkin, Plaintiff-Appellee;

111. Lusk Fraley, McAlister & Simms (Kenney Alden Dowdy), former

Attorneys for one or more Defendant-Appellants below;

112. George E. Mangum, Cross-Claimant below;

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

C-12 ofC-21

113. Frank D. Marsh, Attorney for one or more Defendant-Appellants

below;

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

114. Daryl L. Masters, Attorney for one or more Defendant-Appellants

below;

115. Katherine Matthews, Plaintiff-Appellee;

116. Roosevelt Mays, Jr., Plaintiff-Appellee;

117. Shirley Mays, Applicant for intervention as plaintiff below;

118. Eddie G. McCoy, Plaintiff-Appellee;

119. Ricky J. McKinney, Attorney for one or more Defendant-

Appellants below;

120. Harry McMillian, Defendant-Appellant in his official capacity;

121. Richard N. Meadows, former Attorney for one or more Defendant-

Appellants below;

122. Robert E. Moore, Plaintiff-Appellee;

123. Roger S. Morrow, former Attorney for one or more Defendant-

Appellants below;

C-13 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

124. Morrow, Romine & Pearson (Roger S. Morrow, Ronnie Wesley),

former Attorney for one or more Defendant-Appellants below;

125. John E. Nagle, Defendant-Appellant;

126. Benny Newton, Applicant for intervention as Plaintiff below;

127. Lynne Stephens O’Neal, former Attorney for one or more

Defendant-Appellants below;

128. Kim Page, Attorney for Plaintiff-Appellees;

129. John J. Park, Jr., Attorney for Defendants-Appellents;

130. Randall Peacock, Defendant-Appellant individually and in his

official capacity;

131. Byron R. Perkins, and the attorneys working for or with the firm of

Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

132. Mary E. Pilcher, former Attorney for one or more Defendant-

Appellants below;

133. Herman Powell, Plaintiff-Appellee;

134. William Pendergast, Attorney for one or more Defendant-

Appellants below;

C-14 of C-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

135. Samuel L. Price, Plaintiff-Appellees;

136. Bill Pryor, Attorney General of State of Alabama;

137. Pamela Ramos, Applicant for Intervention as Plaintiff below;

138. Reams, Phillips, Brooks, Schell, Gaston & Hudson (Carl Robert

Gottlieb, Jr. and Kenneth A. Watson), former Attorneys for one or more Defendant-

Appellants below;

139. Andrew W. Redd, Attorney for one or more Defendant-Appellants

below;

140. Gregory J. Robinson, Attorney for one or more Defendant-

Appellants below;

141. Kenneth Rodgers, Plaintiff-Appellee;

142. Wesley Romine, former Attorney for one or more Defendant-

Appellants below;

143. Robert J. Russell, Attorney for one or more Defendant-Appellants

below;

144. David Said, Plaintiff-Appellee;

C-15 ofC-21

145. William A. Shashy, former liaison Counsel for former Governor

Fob James;

146. Stephen K. Simpson, former Attorney for one or more Defendant-

Appellants below;

147. Kell Simon, Attorney for Plaintiffs-Appellees

148. Sirote & Permutt (Frances H. Heidt, David W. Long, Matthew A.

Vega), former Attorneys for one or more Defendant-Appellants below;

149. Patrick H. Sims, Attorney for one or more Defendant-Appellants

below;

150. Brenda Flowers Smith, Attorney for one or more Defendant-

Appellants below;

151. Geneice Smith, Plaintiff-Appellee;

152. Robert L. Smith, Plaintiff-Appellee;

153. Wanda Jackson Speights, Plaintiff-Appellee;

154. State of Alabama, Defendant-Appellant, and its agencies, boards,

commissions, and officials including: Alcoholic Beverage Control Board; Ballard,

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

C-16 ofC-21

Halycon Vance; Board of Accountancy; Bowden, Ronald James, Beckenridge, John

J.; Bureau of Tourism and Travel; Butler, William O., Ill, Camp, Billy Lee; Craven,

Larry E.; Commission on Aging; Commission on Physical Fitness; Culverhouse,

Renee; Davis, Edward E.; Davis, Philip C.; Dean, David J.; Department of

Agriculture and Industries; Department of Conversation and Natural Resources;

Department of Corrections; Department of Economics and Community Affairs;

Department of Education; Department of Human Resources; Department of Industrial

Relations; Department of Labor; Department of Mental Health; Department of Public

Health; Department of Rehabilitation Services; Department of Revenue; Department

of Voter Registration; Development Office; Dixon, Joe; Dutton, John; Emergency

Management Agency; Evans, Jimmy, former Attorney General; Folsom, Jim, Jr.;

Franks, Steve; Gamer, Gwendolyn Bulger; Garrett, Billington M.; Grimsley, Charles;

Hammonds, Otto; Harrell, Ruth; Hathaway, John; Herring, Tommy; Holland, James

C.; Hooks, Claude J.; Industrial Development training Agency; Ippolito, Jim R.,

Jr.;James, Fob, Govenor; Labor Board; Marsh, Frank D.; McMillian, Harry;

Meadows, Richard N.; Medicaid Agency; Park, John J., Jr., Assistnat Attorney

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

C-17 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

General; Peacock, Randall; Pryor, Bill, Attorney General; Redd, Andrew W.;

Robinson, Gregory J.;Russell, Robert J.; Sessions, Jeff, former Attorney General;

Smith, Brenda Flowers; State Board of registrars; State Docks; State Personnel

Board; State Personnel Department; Tambling, Robert D.; Teague, Wayne; Trawick,

G.R.; Ussery, R., Frank; Williamson, Joe;

155. Stephens, William Taft, Attorney for one or more Defendants-

Appellants below;

156. Tambline, Robert D.Attomey for one or more Defendants-

Appellants below;

157. Taylor, Thornton, Plaintiff-Appellee;

158. Teague, Wayne, Defendant-Appellant in his individual and official

capacity;

159. Thigpen, Morris, Defendant in his individual capacity;

160. Thomas, Lamar Kenneth, former Attorney for one or more

Defendants-Appellants below;

C-18 ofC-21

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

161. Thomas, Means & Gillis, former Attorney for one or more

Defendants-Appellants below; Gillis, H. Lewis; Kelly, Anita L.; Thomas, Lamar

Kenneth;

162. Thompson, Myron H., United States District Judge;

163. Tolbert, Ellen, Plaintiff-Appellee;

164. Trawick, G. R., Attorney for one or more Defendants-Appellants

below;

165. Tumer, Angela C, Attorney for one or more Defendants-Appellants

below;

166. Ussery, R. Frank, Attorney for one or more Defendants-Appellants

below;

167. Abigail P. van Alstyne, Attorney for Plaintiffs-Appellees;

168. Vaughn, Earl, Plaintiff-Appellee;

169. Vega, Matthew A., former Attorney for one or more Defendants-

Appellants below;

C-19 of C-21

170. Waggoner, Mark T., Attorney for one or more Defendants-

Appellants below;

171. Walston, Richard W., Attorney for Plaintiffs-Appellees;

172. Watson, Kenneth A., former Attorney for one or more Defendants-

Appellants below;

173. Webb & Eley, Attorneys for one or more Defendants-Appellants

below; Higgins, Pamela Robinson; Masters, Daryl L.;

174. Weinberg, Robert M, former Attorney for one or more Defendants-

Appellants below;

175. Weller, Christopher W., Attorney for one or more Defendants-

Appellants below;

176. Weller, Julia J., former Liaison Counsel for Govenor Fob James;

177. Westry, Milton J., former Attorney for one or more Defendants-

Appellants below;

178. Wible, John R., Attorney for one or more Defendants-Appellants

below;

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

C-20 ofC-21

179. Wiggins, Ann K., Attorney for Plaintiffs-Appellees.

180. Wiggins, Gregory O., Attorney for Plaintiffs-Appellees;

181. Robert L. Wiggins, Jr., and the attorneys working for or with the

firm of Gordon, Silberman, Wiggins and Childs, Attorneys for Plaintiff-Appellees;

CRUM V. STATE OF ALABAMA
APPEAL NO. 98-6600

182. Williams, Nonie, Plaintiff-Appellee;

183. Williams, Paulette, Cross-Defendant below;

184. Williamson, Joe, Defendant-Appellant in his official capacity;

185. Winston, John W., Plaintiff-Appellee;

186. Witherspoon, Tamblyn, Plaintiff-Appellee;

187. Wright, Darrell, Plaintiff-Appellee;

188. Wright, Earnest, Plaintiff-Appellee;

189. A class of black persons who are employed, have been employed,

or who may, in the future, be employed by the defendants.

OF COUNSEL

C-21 ofC-21

STATEMENT REGARDING ORAL ARGUMENT

In view of the complexity of the issues involved and their importance to the

administration of the Nation's civil rights laws, Plaintiff-Appellees request that oral

argument be heard in this case.

CERTIFICATE OF TYPE SIZE AND STYLE

This Brief was produced using 14-point, Dutch Roman type.

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7)(B)

This Brief contains 11,017 words, as tabulated using Word Perfect 5.1 software.

TABLE OF CONTENTS

Certificate of Interested Persons

And Corporate Disclosure Statement................................................ C-1 - C-21

Statement Regarding Oral Argument ........................................................................ i

Certificate of Type Size and Style ................................................................................ ii

Certificate of Compliance with Fed. R. App. P. 32(a)(7)(B)................................... iii

Table of Contents .......................................................................................................iv-v

Table of Citations .......................................................................................................vi-x

Statement of Jurisdiction ..............................................................................................xi

STATEMENT OF ISSUES ...........................................................................................1

STATEMENT OF THE CASE 1-10

A. Prior Proceedings ................................................................................... 2-7

1. Frazer............................................................................................. 3-5

2. Reynolds and Crum ..................................................................... 5-7

B. The Decision Denying Immunity ....................... 7-10

C. Standard of Review .......................................................................................10

SUMMARY OF ARGUMENT .......................................................................... 10-16

ARGUMENT 16-56

I. The Validity of Congress's Abrogation of Eleventh

Amendment Immunity is Beyond Question ................................. 16-26

II. Congress's Application of Title VII Antidiscrimination

Norms to State Governmental Employers was a Legitimate

Exercise of its Power Under the Fourteenth Amendment............ 26-56

A. The Question of Congressional Power Has Already Been

Decided ...................................................................................27 -33

1. Scott's Resolution of the Issue Was not Dictum .................27-31

2. Scott Should be Followed...................................................... 31-33

B. Boerne Supplies No Basis for Questioning the Legality

of the 1972 Amendments.......................................................... 33-56

1. The Historical Record Provides Overwhelming

Support for "Strong Remedies" Against

Racial Discrimination .......................................................... 37-44

2. Exposing States to Disparate Impact Liability Is A

Constitutionally Permissible Response.......... ...................44-53

3. The Disparate Impact Test Responds to Unconstitutional

Discrimination Beyond the Employment Setting 53-56

CONCLUSION..............................................................................................................56

TABLE OF CITATIONS

CASES

Agostini v. Felton, 138 L. Ed. 2d 391 (1997)........................................................ 22

Allen v. Alabama State Bd. ofEduc, 164 F.3d 1347 (11th Cir. 1999) .......... 16, 48

*Allen v. Alabama State Bd. ofEduc., 816 F.2d 575 (11th Cir. 1987) . . . 12, 26, 27

Atascadero State Hospital v. Scanlon, 473 U,S. 224 (1985) ......................... 22-24

Avery- v. Midland County, 390 U.S. 474 (1968).................................................... 30

*Citv ofBoerne v. Flores, 138 L. Ed. 2d 624 (1997)................................... passim

City o f Los Angeles v. Blake, 595 F.2d 1373 (9th Cir. 1979)............................... 28

City o f Richmond v. J.A. Croson Co, 488 U.S. 469 (1989) ................................. 30

*City o f Rome v. United States, 446 U.S. 156 (1980) .............................15, 30, 45

*Connecticut v. Teal, 457 U.S. 440 (1982)..................................................passim

Dellmuth v. Muth, 491 U.S. 223 (1989) ........................................... 13, 22, 24, 25

Detroit Police Officers v. Young, 608 F.2d 671 (6th Cir. 1979)........................... 28

Dillard v. Crenshaw County, 649 F. Supp. 1347 (M.D. Ala. 1986).................... 41

*Dothard v. Raw/inson, 433 U.S. 321 (1977) ................................... 11, 13, 34, 37

Eastland v. TV A, 704 F.2d 613 (11th Cir. 1983) ................................................. 48

Edelman v. Jordan, 415 U.S. 651 (1974) ...................................................... 28, 52

Employment Division v. Smith, 494 U.S. 872 (1990)......................................... .35

* Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)..................................................passim

Gaston County v. United States, 395 U.S. 285 (1969)................................... 15, 55

Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985) ............................................... 50

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

Harper v. Virginia Dep't o f Taxation, 509 U.S. 86 (1993)................................... 53

International Brotherhood o f Teamsters v. United States, 431 U.S. 324 (1977) . . 1

In re Burke, 156 F.3d 1513 (11 th Cir. 1998) ......................................................10

*Katzenbach v. Morgan, 384 U.S. 641, 652 (1966) ................................... passim

Ki lieu lien v. New York State Dep't ofTransp.,

1999 U.S. Dist. LEXIS 438 (N.D. N.Y. 1999) ......................................... 36

*Kimel v. Florida, 139 F.2d 1426 (11th Cir. 1998),

cert, granted, 67 U.S.L.W. 3348 (U.S. Jan. 25, 1999)................... 24, 36, 44

Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994) ............................................. 41

Larry P. v. Board o f Trustees, 996 F. Supp. 1355 (N.D. Ala. 1998) .................. 41

Lassiter v. Northampton Bd. O f Elections, 360 U.S. 45 (1959)........................... 34

McCleskey v. Kemp, 481 U.S. 279 (1987)............................................................ 48

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ........................... 42, 56

McPherson v. University o f Montevallo, 922 F.2d 766 (11th Cir. 1991) ............ 50

vii

NAACP v. Allen, 493 F.2d 641 (5th Cir. 1974) .................................................... 41

*Oregon v. Mitchell, 400 U.S. 112 (1971) ....................................................passim

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ........................................... 11

Powers v. Alabama Dept, o f Ed., 854 F.2d 1285 (11th Cir. 1988)....................... 50

Quern v. Jordan, 440 U.S. 332 (1979) ................................................................ 23

*Reynolds v. Alabama Dep't o/Transp.,

4 F. Supp. 2d 1092 (M.D. Ala. 1998) ..................................................passim

*996 F. Supp. 1168 (M.D. Ala. 1998)........................................................ 29

996 F. Supp. 1263 (M.D. Ala. 1998) ..........................................................4

10 F. Supp. 2d (M.D. Ala. 1998).................................................................. 4

955 F. Supp. 1441.........................................................................................4

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) . 23

*Scottv. City o f Anniston, 597 F.2d 897 (5th Cir. 1979).............................passim

South Carolina v. Katzenbach, 383 U.S. 301 (1966)............................... 30, 37, 55

Segarv. Smith, 738 F.2d 1249 (D.C. Cir. 1985) .................................................. 50

Seminole Tribe v. Florida, 517 U.S. 44 (1996)........................................... passim

Slaughter-House Cases, 83 U.S. 36, 71 (16 Wall.) (1873) ................................. 43

Texas Dep’t o f Community Affairs v. Burdine, 450 U.S. 248 (1981).................. 49

United States v. City o f Chicago, 573 F.2d 416 (7th Cir. 1979).......... ................ 28

viii

^United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970),

further relief, 1976 WL 792 (M.D. Ala. 1996) .................................passim

United States v. Marengo County Comm'n, 731 F.2d 1456 (11th Cir. 1984) . 29, 55

United States v. Shenberg, 89 F.3d 1461 (11th Cir. 1996)................................... 31

United States v. Smith, 122 F.3d 1355 (1 1th Cir. 1997)....................................... 31

United States v. South Carolina, 445 F. Supp. 1094 (D. S.C. 1977)

(three-judge court), affdmem. 434 U.S. 1026 (1978) ......................... 28, 30

United States v. Virginia, 620 F.2d 1018 (4th Cir. 1980)............................... 28, 30

Usseryv. State o f Louisiana, 150 F.3d 431 (5th Cir. 1998)................................. 13

Ullage o f Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252, 266 (1977).................................................................... 48, 49

Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998)........................................... 32

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)....................... 20, 49, 50

Washington v. Davis, 426 U.S. 229 (1976)................................................14, 27, 48

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1987) ..................... 47, 49, 55

Williams v. Wallace, 240 F. Supp. 100, 105 (M.D. Ala. 1965) ........................... 41

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Const., amend 13 §2 ...................................................................... 11

United States Const., amend 1 4 .................................................................... passim

United States Const, amend. 15 § 2 ................................................................ 11, 46

Civil Rights Act of 1991, Pub. L. No. 102-166, .................................................. 23

Equal Employment Opportunity Act of 1972, 86 Stat. 103

codified at 42 U.S.C. § 2000e(a).......................................................... passim

42 U.S.C. § 2000e(a) ........................................................................ 17 23

42 U.S.C. § 2000e(f).....................................................................................17

42 U.S.C. §2000e-5.......................................................................................]7

Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq.....................passim

Railroad Revitalization and Regulatory Reform Act, 49 U.S.C. § 11501 ............ 37

28 U.S.C. § 2403 .....................................................................................................3

LEGISLATIVE MATERIALS

H.R. Rep. No. 238, 92nd Cong., 1st Sess. (1971) ...................................passim

S. Rep. No.415, 92nd Cong., 1st Sess. (1971) ..................................... 21, 22, 38

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and

the Supreme Court's decision in Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc. 506 U.S. 139 (1993), holding that decisions denying Eleventh

Amendment immunity may be treated as immediately appealable "collateral orders."

STATEMENT OF ISSUES

(1) Whether, as the District Court held, the Supreme Court’s decision

in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that Congress intended to

abrograte State employers’ Eleventh Amendment immunity when it enacted

the Equal Employment Opportunity Act of 1972, controls Defendant-

Appellants’ assertion of immunity from suits under that statute proceeding

on a disparate impact theory.

(2) Whether the Court below correctly applied this Court’s decision

in Scott v. Anniston, 597 F.2d 897 (5th Cir. 1979), and the Supreme Court’s

decision in City o f Boeme v. Flores, 138 L. Ed. 2d 624 (1997), in concluding

that Congress’s extension of Title VII disparate impact liability to States is

an appropriate exercise of its power to enforce the Fourteenth

Amendment.

STATEMENT OF THE CASE

The suits giving rise to this appeal - involving claims that excluding

black Alabamians from employment opportunity in the State’s civil service

continues to be "standard operating procedure," Teamsters v. United States,

431 U.S. 324, 336 (1977) - are only the most recent chapter in a long effort

to secure the compliance of the State of Alabama, its Personnel Board, and

its various State agencies with the commands of the Equal Protection

Clause, of Title VII, and of still-binding court orders.

A. Prior Proceedings

Although the Brief of the Defendant-Appellants seeks to confine the

Court’s focus to proceedings to date in the suit, formally entitled In Re

Employment Discrimination Litigation Against the State o f Alabama and

widely referred to as "Crum," it is impossible to divorce the factual and

legal issues in Crum from those in United States v. Frazer, the case with

which it has been consolidated, both in the District Court and in this

appeal.1

xThis Brief follows the opinion of the court below in referring to the

litigation between the United States and the State of Alabama by its

original style - - United States v. Frazer - - rather than by the name of the

State officials later substituted for John S. Frazer. See 4 F. Supp. at 1094

& n.l.

It is clear on the face of both the order from which Defendants

Appeal, Rl-329, 337, 342, and from their own Notice of Appeal, Rl-342,

that Frazer, no less than Crum, is before this Court. As will be explained,

the Defendants in the two cases are (with one exception) identical, and the

1. F ra zer

The Frazer litigation began more than thirty years ago, when the

United States Attorney General brought suit against the Alabama State

Personnel Board and several State agencies charging widespread racial

discrimination in violation of the Equal Protection Clause. See United

States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970), affirmed, 493 F.2d 614

(5th Cir. 1974), further relief, 1976 WL 729 (M.D. Ala. 1976). In 1970 and

again in 1976, the District Court found a pervasive pattern and practice of

racial discrimination in virtually every aspect of the Defendants’

employment practices. Frazer, 317 F. Supp. at 1090 & 1976 WL 729 at *1-

*6; see also, 4 F. Supp. 2d at 1094.* 2 The District Court determined that

issues involved are inextricably intertwined. In any event, of course, the

United States’s participation in this appeal does not depend on Appellants’

sufferance. See 28 U.S.C. § 2403 (United States participates as a matter of

right when the constitutionality of one of its statutes is drawn into

question).

2A number of agencies were not made defendants in Frazer until 1973,

but the Court made clear in its 1976 Order that its findings were equally

applicable to the new, as well as the old, Defendants.

"[t]he racial discrimination in this case has so permeated the employment

practices of the defendants" that it was "necessary to enter a detailed and

specific decree which will not only prohibit discrimination but which will

also prescribe procedures designed to prevent discrimination in the future

and to correct the effects of past discrimination." Frazer, 317 F. Supp. at

1090. In addition, the Court “permanently enjoined [the defendants] from

engaging in any employment practices . . . for the purpose or with the

effect of discriminating . . . on the ground of race or color." Id.

Six years later, the District Court held that Defendants were

continuing to engage in the same "systematic discrimination against black

citizens" and that such pattern was "as extensive" as that which the Court

had found and enjoined in 1970. Frazer, 1976 WL 729, at * 1. Noting the

Defendants’ long "history of overt discrimination," the Court found them to

have "generally avoided compliance with the decrees in this case by

examining job registers . . . by requesting certificates of eligibility only at

times when no blacks were available for certification" and by other

manipulations of the state merit system and the Court’s prior injunction.

Id. at *3 - *6. The Court ultimately declared that "[i]t is evident from the

findings hereinabove made that the . . . defendants are engaged in a

pattern and practice of racial discrimination in employment." Id. at *6.

Once again, an extensive and detailed permanent injunction was then

entered. Id. at *6 - *8.

2. Reynolds and Crum

The State of Alabama and its Personnel Board were subsequently

named as defendants in Reynolds, a private class action filed in 1985 by

African-American employees and applicants for employment in the State

Department of Transportation (formerly known as the Highway

Department), which charged that racially discriminatory policies and

practices remained widespread.3 Extensive additional evidence was

presented concerning Defendants’ employment practices in the wake of the

1976 Order, causing the District Court to find that "during the years

3Because Reynolds like Crum, involves the same issues and defendants

as Frazer, it too was consolidated with Frazer — although the two private

plaintiff cases were not consolidated with one another. SR 307, 336.

Reynolds is also the subject of an appeal to this Court. Although that

appeal, like this one, seeks to raise issues of Eleventh Amendment

immunity and congressional power, it also presents questions of appellate

jurisdiction and waiver that are distinct to that case.

following the Court’s 1976 finding . . . [ , ] [Defendants continued to engage

in the same pattern and practice of racial discrimination." Reynolds v.

Alabama Dept, o f Transp., 996 F. Supp. at 1156, 1162 (M.D. Ala. 1998).

Parts of the history of the Reynolds and Frazer litigation are reported at 996

F. Supp. 1156 (finding of classwide liability for continuing pattern and

practice of racial discrimination from 1976 to 1994); 996 F. Supp. 1130

(finding of continued racial discrimination in 1994-1998 period); 4 F. Supp.

2d 1068 (finding of continued pattern and practice of racial harassment and

discrimination in the 1994-1998 period); 10 F. Supp. 2d 1263 (finding of

civil contempt in 1997-1998 period); 955 F. Supp. 1441 (finding failure to

comply with remedial training aspects of Consent Decree).

Part of the Reynolds case was settled in 1994, and a consent decree

entered. Announcing that "[t]he provisions of this Decree, and the issues

challenged in the case, have been premised upon the existence of the prior

remedies ordered in Frazer[] case," 1994 WL 899259 at * 24-25, the Decree

included an express undertaking by the State and its Personnel Department

that they would "remain bound by the injunctive and declaratory relief

entered in United States v. Frazer" for the next seven years.

Beginning in 1991, a second series of private class actions were filed

against the Alabama Personnel Board and other agencies of the State,

cases which came to be consolidated with Crum. Rl-1 through 12. As in

Reynolds, plaintiffs in these cases challenged the persistence of the practices

declared unlawfully discriminatory and permanently enjoined in Frazer. Rl-

12, 122, 124, 125, 126. The district court consolidated Crum and Frazer as

to all common issues of fact and law. SR 307, 336; Rl-327, 337, 342.

B. The Decision Denying Immunity

In April 1997, the Defendants in Reynolds sought leave to amend

their Answer so as to argue that those of Plaintiffs’ claims arising under a

disparate impact theory of race discrimination were barred by the Eleventh

Amendment. Four months later, in August 1997 - after further trial

proceedings in which the Reynolds defendants actively participated -- the

"motion to dismiss" materialized, claiming that the Supreme Court’s 1996

decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996), foreclosed

imposition of liability under a Title VII disparate impact theory.

Soon after that, a similar motion was filed in the Frazer/Crum case.

The District Court initially ruled on the issue in Frazer and Reynolds,

see Reynolds v. Alabama Dept, of Transp., 4 F. Supp. 2d 1092 (1998), and

then adopted its opinion in those cases in Crum, Rl-329, 337. The Court

first co n sid ered P la in tiff-A p p e lle e s ’ op p osition to the b e la te d raisin g of the

immunity issue on procedural grounds:

The plaintiffs, along with the United States in Frazer,
oppose the defendants’ motion both "substantively,” by
contending that the defendants’ eleventh-amendment argument
lacks substantive merit because it misconstrues Congress s
constitutional authority and ignores governing precedent that
contradicts its basic premises, and "procedurally," by arguing
that, based upon the following contentions, the court should not
even reach the merits of the defendants’ argument: (1) the
defendants have waived their right to raise an immunity defense
based upon the eleventh amendment at this late stage of the
proceedings because they have forsaken myriad opportunities to
assert the defense at an earlier juncture; (2) although the
defendants seek to portray their argument as "jurisdictional,"
and hence unwaivable, because it is grounded on the federalism
and comity principles that underlie the eleventh amendment,
they in fact level a waivable, "substantive" challenge that is
focused exclusively on the scope of Congress’s authority under
the fourteenth amendment . . . .

Despite the potential merit of the procedural arguments
advanced by the plaintiffs and the United States, the court
declines to examine whether they militate in favor of denying
the defendants’ motion, because, as explained more fully below,
the court finds that the eleventh-amendment challenge lacks
merit and the motion is due to be denied on that basis. Thus,
the court will limit its discussion in this order to the substance
of the defendants’ eleventh-amendment argument.

Reynolds, 4 F. Supp. at 1095-1096.

On the substantive side of the immunity issue, the District Court

carefully considered each of the arguments raised by Defendants. Id.

Contrary to Defendants’ contentions, the Court held, the question of

congressional intent to abrogate State employers’ Eleventh Amendment

immunity was not an open one: the Supreme Court’s decision in Fitzpatrick

v. Bitzer, 427 U.S. 445 (1976), had already resolved that Congress, in

amending Title VII of the 1964 Civil Rights Act, see Equal Employment

Opportunity Act of 1972, 86 Stat. 103, had clearly intended that State

governments could be sued in federal court for employment practices that

violated that statute.

The requirement that abrogation be accomplished by a valid exercise

of congressional power was also satisfied, the Court held. Nothing in the

Supreme Court’s decision in City of Boeme v. Flores, 138 L. Ed. 2d 624

(1997), the Court ruled, undermined the holding of the former Fifth

Circuit, in Scott v. City of Anniston, 597 F.2d 897 (5th Cir. 1979), that

Congress’s extension of Title VII to those state employment practices that

have an unnecessary adverse impact on members of racial minority groups

was a valid exercise of the power, conferred by Section 5 of the Fourteenth

Amendment, to “enforce, by appropriate legislation, the provisions of this

Article.” To the contrary, the Court held, the validity of the 1972

Amendments would be upheld on any plausible understanding of the

Boeme standard.4

C. Standard of Review

The District Court’s decision denying Appellants’ claim of Eleventh

Amendment Immunity is subject to de novo review in this Court. See In re

Burke, 156 F.3d 1313, 1316 (11th Cir. 1998).

SUMMARY OF ARGUMENT

Appellants in these cases seek to raise a single legal issue: whether

the Eleventh Amendment affords them immunity from claims of race

discrimination in violation of Title VII of the Civil Rights Act brought

under a disparate impact theory of liability. Appellants insist such claims

4Although the District Court rejected outright Defendants’ contention

that Scott's resolution of the congressional power issue would not, under

ordinary circumstances, be binding in a case where the defendant employer

was a State agency (and, not, as had been in the case in Scott, a

municipality), the decision — in recognition of the relevance of Boeme to

the issues presented - did not place adherence to the prior panel decision

at the center of its analysis. Rather, the Court analyzed the Eleventh

Amendment issue as if it had arisen as a matter of first impression in the

wake of Boeme.

1 0

are barred under the standards set forth in Seminole Tribe v. Florida, 517

U.S. 44 (1996),5 both because the statute allegedly fails to express in

sufficiently unequivocal terms Congress’s intention to abrogate States’

immunity, and because, it is claimed, Congress lacked the power to enact

the law providing for public employers to be held to the same

antidiscrimination standards that govern private sector employment.

Appellants’ arguments are without merit: the Court’s resolution of

this issue is ordained by binding precedent establishing that States are not

5 Although Appellants seek to peg their arguments to Seminole Tribe v.

Florida, 517 U.S. 44 (1996), the two-pronged test Appellants urge the Court

to apply was neither created nor modified by Seminole. To the contrary,

the novelty of Seminole derived from its rejection of the possibility that

congressional powers other than those conferred by the Thirteenth,

Fourteenth, and Fifteenth Amendments (hereafter the "Reconstruction

Amendments") see U.S. Const, amend. 13 §2, amend. 14 §5, amend. 15 § 2,

sufficed to abrogate the protections against suit in federal court enjoyed by

the States under the Eleventh Amendment. See Seminole, 517 U.S. at 64-

66 (overruling Pennsylvania v. Union Gas, 491 U.S. 1 (1989)). That holding,

however, has no bearing on the issues presented herein.

1 1

immune from suit under a Title VII disparate impact theory. First, in Allen

v. Alabama State Bd. o f Education, 816 F.2d 575, 576 (11th Cir. 1987), a

decision ignored by Appellants, this Court authoritatively held that a State

defendant could, consistently with the Eleventh Amendment, be sued in

federal court under a Title VII disparate impact theory. In addition, each

of the component questions of the Eleventh Amendment inquiry has

received similarly definitive resolution. That Congress intended to abrogate

the States’ immunity, as Appellants all but concede, was explicitly settled in

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). And Congress’s power, pursuant

to Section 5 of the Fourteenth Amendment, to subject State employers to

Title VII liability for practices that produce unjustifiable adverse impacts,

was settled by the former Fifth Circuit in Scott v. City o f Anniston, 597 F.2d

897, 900 (5th Cir. 1979), which held that the 1972 Amendments to Title VII

were "unquestionably appropriate legislation to enforce the equal protection

clause."

Appellants only basis for contending that Fitzpatrick may be

disregarded — a claim that the Supreme Court’s opinion did not hold that

Congress had abrogated immunity with respect to each possible theory of

Title VII liability - is wrong as a matter of substantive Title VII law, of

1 2

general principles of statutory construction, and of Eleventh Amendment

doctrine. See Ussery v. State o f Louisiana, 150 F.3d 431, 434 (5th Cir. 1998)

(rejecting suggestion that Fitzpatrick could be disregarded). Indeed, even if

the matter were one of first impression, Title VII would easily satisfy the

Supreme Court’s test for determining whether intent to abrogate had been

expressed with sufficient clarity. See Dellmuth v. Muth, 491 U.S. 223 233

(1989) (Scalia, J., concurring).

As for the question of Congress’s power to hold the States’ liable

under a disparate impact theory, Appellants’ argument that Scott does not

control is unconvincing: as the District Court held, Scott "addressed a

question that was in all significant respects identical to the question

Appellants seek to have decided.” See Reynolds v. Alabama Dept, of

Transp., 4 F. Supp. 2d 1092, 1101 (M.D. Ala. 1998). And, contrary to

Appellants’ assertions, the Supreme Court’s decision in City o f Boeme v.

Flores, 138 L. Ed. 2d 624 (1997) supplies no basis for discarding Scott:

Boeme s holding that the Religious Freedom Restoration Act, see 42 U.S.C.

2000bb etseq. was beyond Congress’s power left undisturbed and indeed

expressly reaffirmed the principles of Section 5 law on which Scott itself had

relied.

Indeed, the Court’s restatement of the limits of congressional power

under the Fourteenth Amendment in Boeme only serves to underscore how

close to the core of Congress’s authority the Title VII amendments fall.

There is, of course, no indication in the text or legislative history of the

Title VII amendments, as there was with RFRA, that Congress was seeking

to trench on the judicial province, see Washington v. Davis, 426 U.S. 229,

248 (1976) (emphasizing that decision as to when proof of discriminatoiy

impact, without intent, is appropriate is a matter of "legislative

prescription"), and there is no serious question, as there was with RFRA,

that the primary evil against which Congress acted in extending Title VII to

state employers -- unconstitutional employment discrimination - was

pervasive. To the contrary, both the evidence before Congress and the

record in this case disclose the longstanding and often "blatant and

aggravated racial discrimination" that Congress sought to address. See

United States v. Frazer, 1976 WL 792, at * 5 (M.D. Ala. 1976)

Moreover, providing disparate impact liability was a proportionate

response to the evident need for remediation and deterrence of this

pervasive, unconstitutional discrimination. While the Appellants attempt to

characterize Title VII’s disparate impact standard as incongruent with the

Fourteenth Amendment’s intent requirement, the Supreme Court has

recognized that the standards for proving disparate impact are in fact

similar to disparate treatment standards, see, e.g., Dothard v. Rawlinson, 433

U.S. 321, 324 n.5 (1977), and has emphasized — in cases concerning the

scope of Congress’s power under the Reconstruction Amendments - the

special value of discriminatory effects standards in assuring that earlier

unconstitutional state action does not have a cumulative and invidious

effect. See, e.g, Gaston County v. United States, 395 U.S. 285, 289-93 & n.5

(1969); see also Katzenbach v. Morgan, 384 U.S. 641, 652 (1966) (citing

value of voting rights measure in helping Puerto Rican community "gain

nondiscriminatory treatment in public services").

Indeed, the Title VII disparate impact analysis is, in important

respects, more modest than effects tests previously upheld by the Supreme

Court. The practices a state maintains as an employer are, by their nature,

further removed from the core of sovereignty than are its policies governing

the right to vote in local elections or the structure of state government. See

City of Rome v. United States, 446 U.S. 156 (1980) (upholding congressional

power to prohibit voting changes yielding discriminatory effects).

Furthermore, unlike legislation outlawing all actions with a disparate

impact, Title VII exempts any policy (no matter how disproportionate in

effect) that is actually needed to meet the employer’s operational needs.

See Allen v. Alabama State Bd. o f Educ., 164 F.3d 1347, 1353 (11th Cir.

1999). Title VII’s prohibition of practices with a disparate impact thus

represents a calibrated response to pervasive discrimination in the public

sector, and is an appropriate means of fulfilling the objectives of the

Fourteenth Amendment.

ARGUMENT

I. The Validity of Congress’s Abrogation of Eleventh Amendment

Immunity is Beyond Question

Congress’s intent to abrogate the States’ immunity from federal court

suit under Title VII is evident from the face of the statute, see Equal

Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e, and

any conceivable ambiguity on that point was resolved by the Supreme

Court’s holding in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that Congress

had validly abrogated the States’ immunity.

Like this case, Fitzpatrick involved the question of whether a State

employer could claim immunity from federal court suit under Title VII, as

amended. Although Title VII, as originally enacted, had authorized suits

the Act in 1972 so as to extend its protections, inter alia, to state and local

government employees. Equal Employment Opportunity Act of 1972, 86

Stat. 103. In so doing, Congress expressly prohibited unlawful employment

practices by "government, governmental agencies [and] political

subdivisions," 42 U.S.C. § 2000e(a) and it made clear that individuals

"subject to the civil service laws of a State government, governmental

agency or political subdivision," 42 U.S.C. § 2000e(f), fell within its

coverage. Further, the Act, expressly provides that aggrieved persons shall

have the right to sue governmental employers (including the States) in

district court if the Attorney General fails to bring suit. See 42 U.S.C.

§2000e-5 (f)(1), (3). Considering these statutory changes in the context of

the Eleventh Amendment immunity assertion, the Fitzpatrick Court had no

difficulty discerning what Congress had done:

In the 1972 Amendments to Title VII . . . Congress, acting under § 5
of the Fourteenth Amendment, authorized federal courts to award
money damages in favor of a private individual against a state
government found to have subjected that person to employment
discrimination.

Fitzpatrick, 427 U.S. at 447.

To escape the holding of Fitzpatrick, Appellants argue that in

only against private employers, Congress had amended various provisions of

enacting the 1972 amendments, Congress expressed an intent to abrogate

the States’ immunity only as to claims of disparate treatment, and not as to

claims predicated on a disparate impact theory. As an initial matter,

Appellants can provide no support for their novel argument that Congress

must separately state its intention to abrogate the States’ immunity as to

each theory of liability that arises under the Statute, and the statutory

provisions on which the Court in Fitzpatrick rested its conclusion simply

cannot bear the construction that Appellants would impose. The amended

definitions of "persons" and "employee," for example, apply to ah Title VII

claims, regardless of the theory of liability, and there is simply no legitimate

method of statutory construction that would allow the same words to

abrogate immunity with respect to one sort of claim but not another.

Indeed, in Dothard v. Rawlinson, 433 U.S. 321 (1977) - a disparate

impact case brought against a State employer - the Court considered a

claim that principles of federalism required that the statute’s provisions

apply differently to governmental than to private employers. Examining the

text and history of the 1972 amendments, the Court refused to import any

such distinction, explaining that Congress, had "expressly indicated the

intent that the same Title VII principles be applied to governmental and

Appellants’ contention that Congress is required to have spoken with

even "[gjreater clarity" in this case because disparate impact liability is

judicially-created, rather than congressionally-created, is equally misguided.

Appellants Br. at 30. As an initial matter, Appellants’ core assumption,

that Griggs v. Duke Power Co., 401 U.S. 424 (1971) - the Supreme Court’s

landmark decision upholding Title VII disparate impact liability — may be

treated as an exercise in judicial creativity, rather than as statutory

interpretation, is not a tenable one. In Griggs, the Court construed two

provisions in § 703 of the Act in allowing Title VII liability absent proof of

discriminatory intent, finding it "plain from the language of the statute" that

Congress had intended to prohibit employment practices with an

unjustifiable adverse impact, 401 U.S. at 429, and explaining that "Congress

directed the thrust of [Title VII] to the consequences of employment

practices, not simply the motivation," id. at 432 (first emphasis added).

Subsequently in Connecticut v. Teal, 457 U.S. 440 (1982), the Court stated

that "[a] disparate impact claim reflects the language of § 703(a)(2) and

Congress’s basic objective in enacting that statute: ‘to achieve equality of

employment opportunities and remove barriers that have operated in the

private employers alike." Id. at 432-33 n.14.

past to favor an identifiable group of white employees over other

employees.’" Id. at 448 (quoting Griggs, 401 U.S. at 429-30).6

Second, in the 1972 amendments, Congress not only extended Title

VII to States, it specifically endorsed the adverse impact standard. The

House Report quotes with approval the holding in Griggs that "[t]he Act

proscribes not only overt discrimination but also practices that are fair in

form but discriminatory in operation." H.R. Rep. No. 238, 92nd Cong., 1st

Sess. 21 (1971) (quoting Griggs, 401 U.S. at 431). According to the House

Report, "[i]f an employment practice which excludes Negroes cannot be

shown to be related to job performance the practice is prohibited." Id. at

22. Similarly, the Senate Report states that employment discrimination is

perpetuated not simply through "intentional wrongs" but through policies

and practices that have the effect of "perpetuating the present-effect[s] of

pre-act discrimination]" and cites Griggs’ as support for that proposition.

6Moreover, in amending Title VII in 1991, in response to what it saw as

the Supreme Court’s "weakening]" of the disparate impact standard in

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), Congress sought to

"confirm statutory authority" for disparate impact suits. Civil Rights Act of

1991, Pub. L. No. 102-166, §§ 2(2), 3(3), 105 Stat. 1071, §§ 2(2), 3(3).

2 0

See S. Rep. No. 92-415, at 5 & n.l; see also H.R. Rep No. 92-238, at 8

(noting that the "forms and incidents of discrimination . . . are increasingly

complex," that "their discriminatory nature may not appear obvious at first

glance," and citing Griggs’ adverse impact standard with approval). The

significance of this legislative history was determined in Connecticut v. Teal,

457 U.S. 440, 447 n.8 (1982) - itself a disparate impact suit against a State

Defendant - in which the Court straightforwardly stated that "[t]he

legislative history of the 1972 amendments . . . demonstrates that Congress

recognized and endorsed the disparate-impact analysis employed by the

Court in Griggs."1

Furthermore, the legislative history of the 1972 amendments gives

specific indication that Congress intended to reach non-intentional

"institutional" discriminatory practices, as well as intentional discrimination,

by State employers. The House Report notes the need to combat

"widespread perpetuation of past discriminatory practices through de facto 7

7Whether or not this legislative history can be invoked to support the

claim that Congress clearly intended to abrogate States’ immunity, it

certainly is relevant to rebutting Appellants’ suggestion that Congress was

unaware of the disparate impact standard.

2 1

segregated job ladders [and] invalid selection techniques." H.R. Rep. 92-

238, at 17-24. Indeed, rather than suggesting that the States’ liability

should be narrower than that of private employers, Congress specifically

acknowledged that the mischief of racially discriminatory employment

policies is greater when such policies are pursued by public employers. See

S. Rep. 92-415, at 10 ("Discrimination by government . . . serves a doubly

destructive purpose. The exclusion of minorities from effective

participation in the bureaucracy not only promotes ignorance of minority

problems in that particular community, but also creates mistrust, alienation,

and all too often hostility toward the entire process of government"). Thus,

Appellants’ contention that Congress did not specifically subject States to

the Griggs standard is belied both by the plain language of the statute and

its legislative history.

Unable to find a way around Fitzpatrick, Appellants contend, finally,

that subsequent Supreme Court decisions, specifically Atascadero State

Hospital v. Scanlon, 473 U.S. 224, 238 (1985) and Dellmuth v. Muth, 491

U.S. 223, 234 (1989), compel its reconsideration. As Appellants themselves

concede, however, this Court does not have the power to overrule

Fitzpatrick. In Agostini v. Felton, 138 L. Ed. 2d 391 (1997), the Supreme

2 2

Court admonished the courts of appeals that "‘if a precedent of this Court

has direct application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative of overruling

its own decisions.’" Id. at 423 (quoting Rodriquez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).

Fitzpatrick's holding that Congress abrogated the States’ Title VII

immunity has hardly been undermined. Contrary to Appellants’

pronouncements, Fitzpatrick has been consistently reaffirmed in subsequent

Supreme Court decisions as a clear example of a statute in which

congressional authorization to abrogate a States’ immunity was present.

See, e.g., Atascadero, 473 U.S. at 243; Quern v. Jordan, 440 U.S. 332, 340

(1979) (noting that in Title VII the "threshold fact of congressional

authorization" to sue was present) (quoting Fitzpatrick, 427 U.S. at 452 (in

turn quoting Edelman v. Jordan, 415 U.S. 561, 672 (1974)) (internal

quotations omitted). Nothing in Atascadero or Dellmuth purports to alter

this ruling. These cases, while reaffirming that Congress’s intent to abrogate

States’ immunity must be clear from the text of the statute, do not purport

to upset Fitzpatrick's holding that the congressional abrogation in Title VII

is sufficiently clear.

Moreover, unlike the statutes at issue in Atascadero and Dellmuth, the

text of Title VII could hardly be called "equivocal" with respect to making

States amenable to suit in federal court. In Atascadero, the Court’s holding

that the Rehabilitation Act contained no clear intent to abrogate was based

on the fact that the statute contained only a "general authorization for suit"

and did not explicitly mention States in either its liability or remedial

provisions. See 473 U.S. at 244-45. Similarly, in Dellmuth, the Education of

the Handicapped Act (EHA) was found not to abrogate the States’

immunity because, while the statute’s preamble alluded to the role of States

in providing programs to meet the educational needs of handicapped

children, State sovereign immunity was not addressed, nor did any of the

provisions "speak to what parties are subject to suit." Dellmuth, 491 U.S. at

231. By contrast, as detailed above, numerous provisions of Title VII make

clear that State employers are subject to suit. See 42 U.S.C. § 2000e(a),(f).

While Appellants would apparently require Congress to have included

specific "magic words" abrogating immunity, this is not what is required by

the Eleventh Amendment. See Kimel v. Florida Bd. o f Regents, 139 F.3d

1426, 1432 n.15 (11th Cir. 1998) (Edmondson, J.) (citing Title VII and

Fitzpatrick, as evidence that the Eleventh Amendment allows congressional

abrogation to be accomplished "in a variety of ways"), cert, granted, 67

U.S.L.W. 3348 (U.S. Jan. 25, 1999) (No. 98-791). This is clear from

Seminole Tribe itself, where the Court inferred an "unmistakably clear"

intent to abrogate from the statute’s references to "states" without requiring

any textual mention of immunity or abrogation. See 517 U.S. at 56; see also

Dellmuth, 489 U.S. at 233 (Scalia, J.,) (joining the majority opinion "with

the understanding that its reasoning does not preclude congressional

elimination of sovereign immunity in a statutory text that clearly subjects

States to suit for monetary damages, though without explicit reference to

state sovereign immunity or the Eleventh Amendment").

In sum, the question of whether Congress clearly expressed its intent

to abrogate the States’ immunity was settled in Fitzpatrick, and this Court

should decline Appellants’ invitation to ignore that case. Appellants’ claim

that Fitzpatrick s holding was limited only to cases claiming disparate

treatment should also be rejected: Congress’ abrogation of immunity

applies to Title VII as a whole, including the various theories of liability

that arise under that statute, and Fitzpatrick, decided after Griggs, does not

purport to limit its holding to disparate treatment theories of liability.

Moreover, when Congress extended Title VII to States and abrogated their

immunity from suit, Congress specifically approved of the disparate impact

standard. Thus, there is no basis either in the text of the statute or the

caselaw for Appellants’ argument. Rather, as found in Fitzpatrick,

Congress intent to abrogate States’ immunity is clear from the text and

structure of the statute itself.

II. Congress’s Application of Title VII Antidiscrimination Norms to

State Governmental Employers was a Legitimate Exercise of its

Power Under the Fourteenth Amendment

The question whether Congress had authority to provide for Title VII

disparate impact actions against state employers is, similarly, not a close

one. Even if the Court were not constrained to follow the holding of this

Court’s prior decisions in Allen v. Alabama State Board o f Educ., 816 F.2d

575 (11th Cir. 1987), and Scott v. City o f Anniston, 597 F.2d 897 (5th Cir.

1979), straightforward application of the principles reaffirmed in

Boeme would establish the legitimacy of the Title VII Amendments as an

exercise of the Section 5 power. Indeed, the predicate for congressional

action here is so much more compelling for Title VII than that underlying

other laws already upheld by the Supreme Court, and the nature and scope

of the legislation so measured, that there can be no serious question as to

the constitutionality of Congress’s action.

A. This Question of Congressional Power Has Already Been Decided

1. Scott’s Resolution of the Issue Was not Dictum

An initial and fully sufficient answer to Appellants’ immunity claim is

that the congressional power question they present has already been

resolved — adversely to them — in Scott v. City o f Anniston, a decision

binding on this Court. In Scott, the Fifth Circuit reversed a district court

decision holding that governmental employers could not, consistently with

the Constitution, be subject to Title VII liability in the absence of proven

discriminatory intent. Rejecting the trial court’s premise that Congress’s

power under Section 5 extends only to prohibiting those practices of

governmental employers that would rate as unconstitutional state action

under the Fourteenth Amendment - that is, intentional discrimination, see

Washington v. Davis, 426 U.S. 229 (1976) -- this Court held:

Title VII is unquestionably appropriate legislation to enforce the
equal protection clause. In Griggs v. Duke Power Co., 401 U.S. 424
(1971), the Court noted that Title VII was intended to carry out the
objectives of the fourteenth amendment and that the
"disproportionate impact" standard was an appropriate means of
fulfilling those objectives.

Scott, 597 F.2d at 900; see also Allen, 816 F.2d at 576 (holding, in case

involving claims of disparate impact discrimination by a state agency

employer, that "in civil actions invoking Title VII, state defendants lack

Eleventh Amendment protection").8

As the District Court explained, there is no merit in Appellants’

argument that, because the issue of congressional power decided in Scott

was not raised in the context of a State s assertion of Eleventh Amendment

immunity, Scott’s resolution of the congressional power question is non

binding "dictum." See 4 F. Supp. 2d at 1101.9 Scott controls, as the Court’s

These decisions do not stand alone. The courts of appeals are uniform

in having rejected contentions that Section 5 did not authorize Congress to

subject State and local governmental employers to Title VII disparate

impact liability. See, e.g., United States v. Virginia, 620 F.2d 1018, 1023 (4th

Cir. 1980); Detroit Police Officers v. Young, 608 F.2d 671, 689 n.7 (6th Cir.

1979); City of Los Angeles v. Blake, 595 F.2d 1373-74 (9th Cir. 1979); United

States v. City o f Chicago, 573 F.2d 416, 420 (7th Cir. 1979); see also United

States v. South Carolina, 445 F. Supp. 1094 (D. S.C. 1977) (three-judge

court), aff’d mem. 434 U.S. 1026 (1978).

9Of course, the Allen decision - although it did not explore the issue as

exhaustively as did Scott — did uphold the propriety of disparate impact

opinion makes clear, not because it makes explicit reference to "States" -

but rather because the issue resolved in Scott - whether Congress’s Section

5 power permits the Title VII disparate impact standard - is the same

question that must be answered under the second prong of the Eleventh

Amendment inquiry. See id. ("The inquiry under this second prong of the

Seminole Tribe test . . . is essentially coextensive with the inquiry made by

the Scott court . . . ."). Indeed, Appellants’ invocation of Boeme - a

liability against Eleventh Amendment challenge. See Allen, 816 F.2d at 576.

Moreover, later decisions of the Eleventh Circuit have described Scott as

holding that "Congress may apply the discriminatory effects standard of

Title VII to states." United States v. Marengo County Comm’n, 731 F.2d

1546, 1559 n.20 (11th Cir. 1984).

As the District Court acknowledged, the court in Larry P. v. Board of

Trustees, 996 F. Supp. 1366, 1367 (N.D. Ala. 1998) did treat Scott’s

discussion of States as dictum. The District Court in this case, however,

disagreed with the Larry P. court’s analysis, emphasizing that the controlling

force of precedents "extends beyond [their] particular facts" and that the

"central inquiry" in Scott - a point necessary to the holding of that case -

was identical to the issue raised here. See Reynolds, 4 F. Supp.2d at 1101.

Section 5 case involving a municipal defendant - is at odds with their claim

that decisions on the scope of Congress’s Section 5 power are irrelevant

when not raised in the Eleventh Amendment context.

Nor is there any basis for suggesting that Congress’s power to enforce

the Fourteenth Amendment’s protections is different for municipalities

than it is for States. To the contrary, the Supreme Court has repeatedly

held that the limitations of Section 1 of the Amendment apply in precisely

the same way to local, as to State governments, Avery v. Midland County,

390 U.S. 474, 479 (1968); City of Richmond v. J.A. Croson Co., 488 U.S. 469,

520-25 (1989) (Scalia, J., concurring in part), and the cases decided under

Section 5 are similarly devoid of any distinction as to Congress’s power

over States, as against municipalities. Compare City of Rome v. United

States, 446 U.S. 156 (1980) (upholding statute against Section 5 challenge)

and City o f Boeme with South Carolina v. Katzenbach, 383 U.S. 301 (1966)

(upholding exercise of Section 5 power in state Defendant case) and Oregon

v. Mitchell, 400 U.S. 112, 235 (1971) (partly invalidating legislation as

exceeding enforcement power); see also United States v. Virginia, 620 F.2d

1018, 1023 (4th Cir. 1980) (following Scott in case involving State

employer); United States v. South Carolina, 445 F. Supp. 1094 (D.S.C. 1977)

(three-judge court), aff’d mem. 434 U.S. 1026 (1978) (same). Indeed, it is

noteworthy that both of the Supreme Court’s cases arising from disparate

impact claims against public employers involved State defendants.

2. Scott Should be Followed

As the District Court recognized, the only even arguable question

with respect to Scott is whether its reliance on Katzenbach v. Morgan, 383

U.S. 641 (1966) ~ the holding and rationales of which were reaffirmed in

Boeme, but whose broadest "language" was questioned, see Boeme, 138 L.

Ed. 2d at 643-44 — places Scott in the category of precedents so

undermined by intervening Supreme Court authority that they may be

disregarded by subsequent courts. See United States v. Shenberg, 89 F.3d

1461, 1480 n.23 (1990) (court need not follow prior panel decision resting

on ground explicitly rejected in intervening Supreme Court opinion); but

see United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) ("[Ejven

where it has been weakened, but not overruled, by a Supreme Court

decision, prior panel precedent must be followed").

Although as explained below, the 1972 Title VII Amendments

decisively pass Section 5 muster, there are strong reasons that Scott should

be given controlling effect. The Scott opinion, while quoting from Morgan,

gives no indication of reliance on that language in Morgan that the

Supreme Court has since questioned, that is, the notion that Congress

could itself have sought to "alter" the Supreme Court’s interpretation of the

Constitution. See Boeme, 138 L. Ed. 2d at 643. To the contrary, the

propositions for which Scott cites Morgan are ones that the Supreme Court

in Boeme, far from repudiating, expressly embraced. Thus, just as Scott

finds that limiting Congress’ enforcement power to merely providing a

cause of action for unconstitutional conduct "‘would confine the legislative

power . . . to the insignificant role of abrogating only those state laws that

the judicial branch was prepared to adjudge unconstitutional or of merely

informing the judgment of the judiciary by particularizing the "majestic

generalities" of the Fourteenth Amendment,’" 597 F.2d at 899 (quoting

Morgan, 384 U.S. at 648-49), the Supreme Court in Boeme reiterated that

Congress can constitutionally prohibit conduct which is not itself

unconstitutional, even where it intrudes into spheres of State autonomy, see

Boeme, 138 L. Ed. 2d at 637. In view of this Supreme Court endorsement

and this Court’s strong policies against revisiting issues previously decided

by prior panels, it would be error to deprive Scott of its proper, dispositive

force. See Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998) (The

"rule bind[ing] later panels to the decisions of former panels is . .

‘emphatic’ and ‘firmly established’ in the Eleventh Circuit") (citations

omitted).

B. Boeme Supplies No Basis for Questioning the Legality of the
1972 Amendments

Dropping Scott from the equation would be of no help to Appellants’

immunity assertion in any event. Although Appellants’ Brief assumes that

the Boeme decision drastically narrowed the scope of the Section 5 power,

there is nothing in the Supreme Court’s opinion that would call the

legitimacy of the 1972 Amendments into question. While Boeme, invoking

the teaching of Oregon v Mitchell that Congress’s enforcement powers are

"’broad . . . [, but] not unlimited,’" 138 L. Ed. 2d at 637 (quoting Mitchell,

401 U.S. at 128 (Black, J.)), held the Religious Freedom Restoration Act,

42 U.S.C. §2000bb et seq., to have been an invalid exercise of the Section 5

power, it did so not by renouncing prior case law, but rather by

emphasizing that RFRA was different in kind from the statutes the Court

had previously upheld as within Congress's power to enact.

Citing with approval the rulings and rationales of those prior

decisions - including Morgan - the Boeme Court reaffirmed: (1) that the

enforcement power goes beyond merely providing a cause of action for

unconstitutional conduct and includes measures aimed at preventing the

occurrence of future constitutional violations; (2) that a statute reaching

state action that is not itself prohibited by the Constitution may nonetheless

be an appropriate exercise of the enforcement power; (3) that the

enforcement power may legitimately be exercised to adopt measures aimed

at assuring that unconstitutional actions in one sphere are not given any

further invidious effect. See Boeme, 138 L. Ed. 2d at 637-38, 647.

Congress’s determination that remedial action is needed and its choice of

means, Boeme further underscored, are entitled to substantial deference.

See id. at 649 (citing Morgan, 384 U.S. at 651).

The Boeme Court found RFRA constitutionally defective, not simply

because it displaced State laws that would have survived judicial scrutiny

under the Free Exercise Clause -- every measure earlier upheld as a valid

exercise of the enforcement power has that feature, compare, e.g., Lassiter v.

Northampton County Bd. o f Elections, 360 U.S. 45 (1959) (holding that

literacy tests are not per se unconstitutional) with Mitchell, 400 U.S. at 112

(upholding nationwide literacy ban) - but rather because it was premised

on an assumption that Section 5 confers on Congress the power to "decree

the substance of the Fourteenth Amendment’s restrictions on the States,"

with no regard for the construction given by the Judicial Branch. Boeme,

138 L. Ed. 2d at 637.

The Court’s conclusion that RFRA was impermissibly "substantive" in

character rested on an examination of its text, history and operation. First,

the statute openly expressed an intention to deny effect to the Supreme

Court’s interpretation of the First Amendment Free Exercise Clause in

Employment Division v. Smith, 494 U.S. 872 (1990), a point made even

more vividly in the deliberations leading to its enactment.10 And unlike

legislation previously held to be appropriate under Congress’s enforcement

powers, the Court explained, RFRA was not significantly likely to address

l0Smith had held that the Free Exercise Clause does not extend a right

to be free of generally applicable laws that have the incidental effect of

burdening religious practice. 494 U.S. at 887. By its terms, the statute in

Boeme sought to re-interpret the meaning of the “free exercise of religion”

protected by the First and the Fourteenth Amendments of the Constitution

and restore the understanding that existed prior to Smith. See 42 U.S.C. §

2000bb(a)(3) (disapproving the Supreme Court’s decision in Smith); id §

2000bb(b)(l) (purporting to "restore the compelling interest . . . . set forth

in Sherbert v. Vemer, 374 U.S. 398 (1963)").

any instances of unconstitutional conduct. Id. at 648. To the contrary,

RFRA’s champions candidly acknowledged that abridgments of Free

Exercise of the narrow sort held to be unconstitutional under Smith are all

but nonexistent in modern-day America. See Boeme, 138 L. Ed. 2d at 645.

Finally, RFRA’s sweep was vast: it "intru[ded] at every level of government,

displacing laws and prohibiting official conduct of almost every description

and regardless of subject matter." Id. at 646. Under the circumstances, the

conclusion that RFRA’s operative effect was "significantly disproportionate

to the constitutional harm," Kilcullen v. New York State Dep’t of Transp.,

1999 U.S. Dist. Lexis 438, *15 (N.D.N.Y. 1999), that might have supplied a

basis for its enactment, i.e., "substantive," was inescapable.

Although the Boeme decision has engendered a measure of genuine

uncertainty as to the outer limits of congressional authority as applied to

other congressional statutes, see, e.g., Kimel v. Florida Bd. o f Regents, 139

F.3d 1426 (11th Cir. 1998), cert, granted, 67 U.S.L.W. 3348 (U.S. Jan. 25,

1999) (No. 98-791), Congress’s extension of Title VII to State employers

arises not at the fringes of Section 5, but rather at the core of its power to

enforce the central guarantees of the Equal Protection Clause. As

discussed below, both the seriousness and pervasiveness of race

discrimination and its effects and the moderate nature of the Title VII

disparate impact standard make plain that the 1972 Amendments were a

valid exercise of congressional power.

1. The Historical Record Provides Overwhelming Support

for "Strong Remedies" Against Racial Discrimination

Although Appellants, see Br. at 23, seek to lump Title VII with

RFRA, the Railroad Revitalization and Regulatory Reform Act, 49 U.S.C.

§ 11501, the Copyright Act, 17 U.S.C. § 101 et seq., and other statutes

whose relationship with Fourteenth Amendment rights is far less obvious,

there can be no serious question as to the fact that the primary evil against

which the 1972 Amendments were directed -- race discrimination by

governmental employers - violates the Equal Protection Clause, or as to

the seriousness or pervasiveness of such invidious state action. See generally

Boeme, 138 L. Ed. 2d at 642 ("‘[T]he constitutional propriety of [legislation

adopted under the Enforcement Clause] must be judged with reference to

the historical experience . . . it reflects’") (quoting South Carolina v.

Katzenbach, 383 U.S. at 308); see also id. at 645 ("Strong measures

appropriate to address one harm may be an unwarranted response to

another, lesser one"). Unlike in Boeme where the Court found that "[t]he

history of [religious] persecution in this country detailed in the hearings

mentions no episodes occurring in the past 40 years," id. at 645, Congress

extended Title VII to States and local governments after taking notice of

"widespread discrimination against minorities . . . in State and local

government employment," both past and present. H.R. Rep. No. 92-238, at

17.

Nor was intentional employment discrimination the only

constitutional violation that Congress sought to prevent in extending Title

VITs reach to public entities. A significant impetus for amending the

statute was recognition that discrimination in government employment is

"doubly destructive," S. Rep. No. 415, 92nd Cong., 1st Sess. 10 (1971), i.e.,

that beyond any economic effect on individual job applicants, practices

operating to limit "minority participation in the bureaucracy" risked

"promoting] [governmental] ignorance of minority problems" and fostering

among minority citizens "hostility toward the entire process of government."

Id. \ see also Boeme, 138 L. Ed. 2d at 644 (explaining that statute upheld in

Morgan "could be justified as a remedial measure to deal with

‘discrimination in government services’").

Finally, as is discussed above, Congress recognized that the

employment practices of governmental entities, no less than those of the

private sector employers, risk "freezing existing patterns of inequality" -

patterns that State action not infrequently had a substantial role in

establishing. H.R. Rep. 92-238, at 17, 24 (noting governmental employers’

"perpetuation of past discriminatory practices through de facto segregated

job ladders [and] invalid selection techniques" and "[C]ivil Service selection

and promotion requirements . . . replete with artificial selection and

promotion requirements that place a premium on ‘paper’ credentials . . . of

questionable value as a means of predicting actual job performance").

Congress’s findings as to the seriousness and pervasiveness of

governmental employment discrimination, which are entitled to substantial

deference, are, by themselves, a sufficient basis for upholding the legislative

decision to exercise the enforcement power. But these findings are also

borne out, to an unfortunate degree, in the published decisions of cases

both before and after the passage of the 1972 Act. Indeed, there is no

need to look beyond the published opinions in United States v. Frazer for

confirmation of Congress’s judgment. Judge Johnson’s 1970 opinion

documented a complex and interrelated set of governmental policies

adopted to serve a single end: denying employment opportunities to

qualified African-American workers. See, e.g., 317 F. Supp. at 1089-91

("[Defendants’ systematic refusal to appoint qualified Negro applicants and

their appointment of and preference for lower-ranking white applicants

constitute unlawful racial discrimination^] . . . a clear violation of the equal

protection clause of the Fourteenth Amendment").

This pervasive pattern of unconstitutional race discrimination in

employment did not yield in the face of a Court order (or the passage of

the 1972 Amendments). In 1976, the Court found that Defendants were

"avoiding] compliance with the decrees in this case," Frazer, 1976 WL 729,

*at 6 ("[Progress toward erasing the effects of prior exclusionary practices

upon the basis of race has been minimal and in many instances non

existent.") Nor, regrettably, can intentional race discrimination in the

Alabama civil service employment system be said to be a thing of the past:

the 1998 opinion of the District Court in Frazer and Reynolds contained

further, detailed findings of fact concerning serious acts of present-day

intentional discrimination. See Reynolds, 996 F. Supp. at 1163 (citing

testimony from 1992 trial regarding "numerous . . . instances of racially

discriminatory employment practice[s] - far too many . . . to recount

here"); id. at 1163 (noting recent violations of the Frazer decree).

Moreover, there is no shortage of findings concerning the very ways

in which Congress found exclusion of minorities from government

employment service to be linked with unconstitutional state action. The

limited participation of black Alabamians in the public sector workforce

surely has affected the treatment that minority citizens received at the

hands of their government, see, e.g., NAACP v. Allen, 493 F.2d 614, 620-21

(5th Cir. 1974) (documenting State Highway Patrol’s "long history of

intentional racial discrimination" in employment); Williams v. Wallace, 240

F. Supp. 100, 105 (M.D. Ala. 1965) (documenting role of Alabama State

Troopers in denying black Alabamians the right to vote). Given the State's

history of discrimination in education and other spheres, see, e.g., Knight v.

Alabama, 14 F.3d 1534, 1539 (11th Cir. 1994) (discrimination in higher

education had the "purpose of maintaining the social, economic, and

political subordination of black people"); Dillard v. Crenshaw County, 649 F.

Supp. 1347, 1357 (M.D. Ala. 1986) (describing the State of Alabama’s

"unrelenting historical agenda, spanning from the 1800s to the 1980s, to

keep its black citizens economically, socially, and politically downtrodden,

from cradle to grave"), there is a real danger that certain kinds of job

requirements, even if facially neutral, will deny black Alabamians equal

opportunity due to "forces beyond their control." McDonnell Douglas v.

Green, 411 U.S. 792, 806 (1973); see also Frazer, 1976 WL 729 at *3 (noting

that, according to 1970 census data, a requirement that a particular position

be filled with a high school graduate — no matter how doubtful as a matter

of operational need - would operate to exclude from all consideration

nearly 80 percent of the State’s African-American population).

This is not to suggest, of course, that instances and patterns of

racially discriminatory conduct are unique to Alabama. But that fact only

strengthens the appropriateness of Congress’s judgment. See Oregon v.

Mitchell, 400 U.S. at 283-84 (Stewart, J., concurring) (noting advantages of

legislation operative uniformly throughout the Nation). This evidence does,

however, show this case to be the polar opposite of the situation presented

in Boeme: not only did the 92nd Congress find what the Congress enacting

RFRA did not ~ evidence of pervasive unconstitutional State action - but

the very party now asking that the Court invalidate Congress’s judgment

has repeatedly been found, over the course of nearly three decades, to have

engaged in systematic evasions of its constitutional obligations.

One further point pertinent to this case is apparent from the Court's

opinion in Boeme and its court of appeals progeny: although Congress is

authorized to enact appropriate legislation respecting all of the Fourteenth

Amendment's guarantees, see Boeme, 138 L. Ed. 2d at 637, congressional

enforcement power is no doubt at its zenith where racial discrimination is

concerned. Discrimination based on race is the subject of each of the

Reconstruction Amendments, and the Supreme Court has repeatedly

recognized that securing equality for African Americans was the primary

motivation for the dramatic shift in the federal-State balance those

Amendments effected. Oregon v. Mitchell, 400 U.S. at 138 (Black, J.)

("Where Congress attempts to remedy racial discrimination under its

enforcement powers, its authority is enhanced by the avowed intention of

the framers of the Thirteenth, Fourteenth, and Fifteenth Amendments”);

The Slaughter-House Cases, 83 U.S. 36, 71 (16 Wall.) (1873) (The "one

pervading purpose" of the Fourteenth Amendment was "the freedom of the

slave race, the security and firm establishment of that freedom, and the

protection of the newly-made freeman and citizen from the oppression of

those who had formerly exercised dominion over him."). Unsurprisingly,

those laws that the Supreme Court and the lower federal courts have held

to be beyond Congress's power to enact have dealt with matters

considerably removed from the core concerns that animated the framers of

the Fourteenth Amendment. See Mitchell, 400 U.S. at 118 (Black, J.)

(invalidating statute lowering voting age in State elections to 18).

Indeed, it should not disparage the importance or legitimacy of other

civil rights legislation to say that the appropriateness of prohibiting

employment practices that are the "functional equivalent" of

unconstitutional race discrimination essentially follows a fortiori from

decisions holding those laws to have been valid exercises of the Section 5

power. See Kimel, 139 F. 3d. at 1433 (upholding constitutionality of ADA);

cf id. at 1446 n.l (Cox, J., concurring in part and dissenting in part) (noting

that not "all ‘discrimination’ [is] equally . . . within congress’s power to

remedy. . . . Race and age discrimination, for example, are subject to very

different degrees of scrutiny").

2. Exposing States To Disparate Impact Liability Is A

Constitutionally Permissible Response

Rather than seriously dispute the sufficiency of the basis for

congressional action aimed at deterring race discrimination and remedying

its effects, Appellants principally contend that allowing States’ Title VII

liability to be established on a disparate impact theory of employment

discrimination is the sort of "disproportionate" response that the Supreme

Court held to be beyond Congress’s power in Boeme. There are two main

reasons why this is not so. First, Appellants’ repeated assertions that

disparate impact and disparate treatment are so "fundamentally different"

that provision for disparate impact liability "necessarily created a new

substantive right," Appellants’ Br. at 19, are refuted by the case law

interpreting both Title VII and the Section 5 power. Second, Appellants

take no account of the principle, repeatedly affirmed in Boeme, that laws

that operate to deter future unconstitutional conduct or assure that past

discrimination is not given present effect, are no less appropriate an

exercise of the enforcement power than are statutes creating remedies for

victims of unconstitutional conduct.

Although Appellants now seek to couch their critique of Title VII in

terms of a congressionally created "substantive right," their arguments

closely resemble the contention pressed -- and firmly rejected -- at the

District Court level: that a statute that reaches conduct that Section 1 of

the Fourteenth Amendment does not of its own force prohibit cannot be

appropriate “enforcement” legislation under Section 5. As detailed above,

that rule has been explicitly disavowed by the Supreme Court, including in

Boeme, see 138 L. Ed. 2d at 638; see also City of Rome, 446 U.S. at 176

("Congress may, under the authority of §2 of the Fifteenth Amendment,

prohibit state action that [is not] violative of §1"), and it does not alter the

analysis simply to label all laws reaching state action not forbidden by the

Constitution "substantive" and insist that they be invalidated on that basis.

In fact, the Boeme decision takes a far more circumspect view as to

what sort of laws are impermissibly "substantive" -- and therefore

inappropriate as Fourteenth Amendment "enforcement." Absent the sort

of brazen assertion present in RFRA, the Court explained, the

determination whether legislation is "substantive" or "remedial or deterrent"

is largely a question of proportionality: it is not whether a statute addresses

practices that are not unconstitutional, but whether it does so wholly "out

of proportion" to the sorts of constitutional violations being remedied or

prevented, id. at 646, that determines whether it is "substantive," and even

then, the Court held, Congress’s views are entitled to substantial deference.

To the extent that Appellants attempt to show such disproportionality

in Title VII, they cannot succeed. Indeed, apart from observing that the

disparate impact standard "alters the state of mind that may result in

liability," the lone support Appellants offer for the claim that disparate

treatment and disparate impact theories of racial discrimination are

"fundamentally different," is a contention that the latter theory "change[s] . .

. the probative weight of statistical evidence." Appellants Br. at 20.

In fact, courts have frequently remarked on the similarity between

statistical proof of race discrimination under a disparate treatment and a

disparate impact theory, see, e.g., Watson v. Fort Worth Bank & Trust, 487

U.S. 977, 987 (1988), and have noted that the "pattern and practice"

method of proving "disparate treatment" can, under some circumstances, be

easier to meet. Cases proceed to trial with the same evidence offered in

support of both theories, and the statistical showing required of defendants,

however “more complex” than was common in 1972, see Appellants Br. at

21, is fundamentally similar to that called for when a plaintiff has made out

a prima facie statistical showing of disparate treatment. See Dothard, 433

U.S. at 324 n.5 (finding that claims raised by the plaintiffs Title VII

disparate impact claim and her coplaintiffs constitutional suit were so

similar that the statutory claims were within the jurisdiction of a three-

judge court). Indeed, as Appellants’ own Brief recognizes, under disparate

impact analysis - but not under disparate treatment — it remains open to

defendants to avoid liability on the ground that the challenged practice,

however disproportionate in effect, serves legitimate, operational needs.

See Allen v. Alabama State Bd. of Educ, 164 F.3d 1347, 1354 (11th Cir.

1999) (under impact analysis, evidence that practice is job related “trumpjs]

any need to redress discriminatory impact’") (quoting Allen v. Alabama

State Bd. of Educ., 976 F.Supp. at 1431)).

Although it is a truism that "impact alone" is not the same as

intentional discrimination, it is equally widely accepted that intentionally

discriminatory practices will almost always produce a disparate impact and

that evidence of disproportionate burden will usually "provide [the] . . .

starting point" of the Equal Protection inquiry. Village o f Arlington Heights

v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977). Further as

Appellants point out, evidence of disparate impact can, where particularly

stark, supply the "‘sole proof of discriminatory intent.’" Br. at 20 (quoting

McCleskey v. Kemp, 481 U.S. 279, 293 (1987)); accord Washington v. Davis,

426 U.S. at 254 (Stevens, J., concurring) ("[W]hen the disproportion is . . .

dramatic, it really does not matter whether the standard is phrased in terms

of purpose or effect."); see also Eastland v. TVA, 704 F.2d 613, 618 (11th

Cir. 1983) ("A prima facie case of disparate treatment may be established

by statistics alone if they are sufficiently compelling.").

Of at least equal importance, the fact that Title VII prohibits only

those actions with a disparate impact that are unnecessary to serve the

employer’s legitimate goals makes proof under an impact theory further

resemble the sort of circumstantial evidence that may suffice to prove

intentional discrimination. See Arlington Heights, 429 U.S. at 266-68.

Indeed, disparate treatment under Title VII is itself most commonly proved

not with direct evidence of racial animus on the employer’s part, but rather

with circumstantial evidence concerning whether the defendants’ proffered

nondiscriminatory explanation was "the real reason" for the challenged

employment action. See generally Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248 (1981); Wards Cove Packing Co. v. Atonio, 490 U.S.

642, 661 (1989) (stating, in impact case, that evidence that defendants were

not using available, less discriminatory alternatives "would belie a claim . . .

that their incumbent practices are being employed for nondiscriminatory

reasons"). As stated by the Supreme Court in Watson v. Fort Worth Bank &

Trust, 487 U.S. 977 (1988):

The distinguishing features of the factual issues that typically
dominate in disparate impact cases do not imply that the ultimate
legal issue is different than in cases where disparate treatment
analysis is used. Nor do we think it is appropriate to hold a
defendant liable for unintentional discrimination on the basis of less
evidence than is required to prove intentional discrimination. Rather,
the necessary premise of the disparate impact approach is that some
employment practices, adopted without a deliberately discriminatory

motive, may in operation be functionally equivalent to intentional
discrimination.

Id. at 987 (citation omitted).

The ultimate similarity between the two standards means that cases

that begin as "disparate treatment" cases often evolve during the course of

litigation into disparate impact cases. See Griffin v. Carlin, 755 F.2d 1516,

1526-28 (11th Cir. 1985); see also Powers v. Alabama Dept, o f Ed., 854 F.2d

1285, 1292 (11th Cir. 1988); Segar v. Smith, 738 F.2d 1249, 1268-70 (D.C.

Cir. 1984). Conversely, because an employers’ failure to adopt a

nondiscriminatory alternative "beliefs] the employer’s claim that their

incumbent practices are being employed for nondiscriminatory purposes,"

McPherson v. University o f Montevallo, 922 F.2d 766, 771 (11th Cir. 1991)

(paraphrasing Wards Cove, 490 U.S. at 660-61), a disparate impact case may

turn into one based on disparate treatment. See also Connecticut v. Teal,

457 U.S. 440, 446-47 (1982) (noting that plaintiff may prevail "if he shows

that the employer was using the practice [having a disparate impact] as a

mere ‘pretext’ for discrimination").

For these reasons, the incursion into legitimate "spheres of [state]

autonomy," Boeme, 138 L. Ed. 2d at 637 (quoting Fitzpatrick, A ll U.S. at

445), worked by Title VII is modest, not only in relation to the statute

disapproved in Boeme, but also in comparison to the regimes the Supreme

Court has upheld as valid exercises of the congressional enforcement

power. Title VII, which is addressed only to governments’ employment

practices is nothing like RFRA, which "intrufded] at every level of

government, displacing laws and prohibiting official conduct of almost every

description and regardless of subject matter." Id. at 646; see also id. at 647

(noting that exercises of enforcement power previously upheld as legitimate

"affected a discrete class of state laws, i.e, state voting laws"). And, unlike

the voting rights laws the Court held out in Boeme as exemplars of

appropriate enforcement legislation, the governmental policies Title VII

regulates hardly go to "the heart of' States’ existence as sovereign entities.

Finally, as noted above, Title VII, unlike the statute upheld in City of

Rome, does not ban all governmental policies that are discriminatory in

effect, but only those that can not be justified by the State's legitimate

needs as an employer. Cf. Boeme, 138 L. Ed. 2d at 648 (noting that RFRA

was not a true disparate impact test -- because it reached laws that

"substantially burdened" religious practice, irrespective of whether that

burden was disproportionate to that imposed on anyone else). In sum, the

statute enacted by Congress denies to the States a single prerogative: the

“freedom” to rely on arbitrary and unnecessary employment practices that

operate to perpetuate exclusion of those historically denied equal

employment opportunity.

Appellants’ only submission on this point involves complaining about

the scope of this case and the magnitude of potential monetary liability.

Although the Eleventh Amendment case law evinces undeniable concern

for the public fisc, see, e.g., Edelman v. Jordan, 415 U.S. 651, 662-63 (1974),

it is again hard to imagine a party with less standing than Appellants to

complain on this score. For more than a quarter century, Appellants have

been on notice of Congress’s intention to subject public employers to Title

VII liability for disparate impact, and for nearly two decades the

constitutionality of that exercise of power has been the law of this Circuit,

see Scott, 597 F.2d at 899-91; the Supreme Court unanimously upheld

monetary liability against States for Title VII violations twenty years ago,

Fitzpatrick, M l U.S. at 455-56, and, in a case from Alabama, Dothard, 433

U.S. at 432-33 n.14, the Court expressly declined to construe the Title VII

disparate impact standard as applying differently to State employers. See

also Teal, 457 U.S. at 447 n.8 ("The legislative history of the 1972

amendments . . . demonstrates that Congress recognized and endorsed the

disparate-impact analysis by the Court in Griggs").

Appellants’ acquaintance with these doctrinal developments, of

course, is more intimate still: since 1970, Appellants have been subject to

court orders concerning the full breadth of their employment policies,

supported by detailed findings of unlawful racial discrimination on their

part. These decisions have detailed voluminous evidence that the practices

were discriminatory in both intent and effect and have lamented

Appellants’ limited progress toward achieving Appellants' compliance with

their constitutional and statutory equal employment obligations. To the

extent that Appellants contend that the allegations of pervasive

discrimination made in this case are not supportable, they may put the

Plaintiffs to their proof, but it surely should not be the law that the

pervasiveness of illegal conduct alleged argues against a party’s amenability

to suit. Cf Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) (states’

liability in excess of $1.8 billion does not affect decision whether to apply

decision retroactively).

3. The Disparate Impact Test Responds to Unconstitutional

Discrimination Beyond the Employment Setting

Although both the factual predicate and the limited scope of the

statute's operation would surely establish Title VII's legitimacy under

Boeme solely as a response to the problem of unconstitutional employment

discrimination, the constitutionality of the 1972 Amendments is further

buttressed by the other objectives Congress sought to advance. First, as in

Morgan, Congress recognized a close link between the practice challenged

and other forms of constitutionally impermissible state action. See Boeme

(affirming the holding of Morgan on this basis). In extending Title VII to

the States, Congress expressly recognized that arbitrary exclusion of racial

minorities from government service increased the danger that members of

those minority groups (1) would be subject to discrimination in the

provision of government services and (2) would become "hostile to the very

process of government." These congressional determinations, of course,

were made far more explicitly with respect to Title VII than they were in

Morgan, see 384 U.S. at 669 (Harlan, J., dissenting) (noting that there was

no "showing whatever to support the Court’s alternative argument that

§4(e) should be viewed as but a remedial measure designed to cure or

assure against unconstitutional discrimination of other varieties"), and they

are amply supported by the judicial findings noted above concerning the

role Alabama State employees have played in denying black Alabamians

equal treatment and basic constitutional rights.

Perhaps even more centrally, Title VII’s disparate impact test also

operates — precisely as do the other "effects" tests the Supreme Court has

upheld — to assure that past intentional discrimination is not unnecessarily

given present effect. See Gaston County, 395 U.S. at 297 ("[Ijmpartial

administration of literacy tests "would serve only to perpetuate these

inequities [in educational opportunities] in a different form"); South

Carolina v. Katzenbach, 383 U.S. at 334 (finding that fairly administered

literacy tests would "freeze the effect" of prior discrimination); see also

United States v. Marengo County Comm’n , 731 F.2d at 1537 ("Congress may

act to invalidate the perpetuation of earlier purposeful discrimination and

to eradicate the continuing effects of that discrimination"). These past

actions include, but are not limited to, employment discrimination. As the

Supreme Court explained in Watson v. Fort Worth Bank & Trust, to have

upheld the Griggs defendant’s reliance on tests and diploma requirements

unrelated to job performance, "simply on the basis of their facial neutrality

or on the basis of the employer’s lack of discriminatory intent," risked

"perpetuating] the effects of pre-Act discrimination," 487 U.S. at 988, by an

employer defendant with "a history of overt racial discrimination," id. at

987. But the Griggs ruling also reflected a concern that the educational

disadvantage of "minority citizens, resulting from forces beyond their

control, not be allowed to work a cumulative and invidious burden on such

citizens for the remainder of their lives." McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 806 (1973). To a substantial and unfortunate degree,

such disadvantages are the result of unconstitutional state action, and the

case law is abundantly clear that the government -- and Congress most of

all -- has both the power and the responsibility to assure that they are not

given any more effect than legitimately necessary.

CONCLUSION

For the foregoing reasons, Appellees respectfully submit that the

Eleventh Amendment does not bar Title VII disparate impact claims

brought against States in federal court.

Respectfully submitted,

Robert L. Wiggins, Jr.
Attorney for Plaintiffs-Appellees

OF COUNSEL:
GORDON, SILBERMAN, WIGGINS, AND CfflLDS
1400 Southtrust Tower
Birmingham, Alabama 35203
(205) 328-0640

OF COUNSEL:
Elaine R. Jones

Director-Counsel
Norman J. Chackin
David T. Goldberg
Olatunde C.A. Johnson
N aacp Legal Defense & Educational Fund , In c .
99 Hudson Street, 16th Floor
New York, NY 10013
(212) 965-2200

CERTIFICATE OF SERVICE

This is to certify that a copy of the above and foregoing has been served by
United States Mail, postage prepaid and properly addressed on the following:

Mr. John J. Park, Jr.
Assistant Attorney General
Office of Attorney General
11 South Union Street
Montgomery, Alabama 36130

Mr. Roger L. Bates
Attorneys at Law
Hand Arendall
2001 Park Place North
Birmingham, Alabama 35203

Mr. T. Dwight Sloan
Attorney at Law
Balch & Bingham
Post Office Box 306
Birmingham, Alabama 35201

Mr. William P. Gray, Jr.
Attorney at Law
Gray & Jauregui
Post Office Box 240068
Montgomery, Alabama 36124-0068

Mr. William T. Stephens
Retirement Systems of Alabama
135 South Union Street
Montgomery, Alabama 36130-2150

Ms. Marybeth Martin
Attorney at Law
U. S. Department of Justice
Civil Rights Division
Room 4904
601 D Street, N.W.
Washington, D.C. 20004

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Crum v. Alabama Brief of Plaintiffs-Appellees

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