Alexander v. Chicago Park District Motion for Leave to File, Instante, and Brief Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT 
No. 84-2995 

— — — — — — — — x
SILAS J. ALEXANDER, et al.,

Plaint iffs-Appellants, 
v.

CHICAGO PARK DISTRICT, et al. , 

Defendants-Appellees.

APPEAL FROM THE UNITED 
STATES DISTRICT COURT, 
NORTHERN DISTRICT 
OF ILLINOIS, EASTERN 

DIVISION
HONORABLE GEORGE N. 
LEIGHTON

x Judge Presiding

MOTION FOR LEAVE TO FILE, INSTANTER, BRIEF AMICUS 
CURIAE, AND BRIEF AMICUS CURIAE OF THE NAACP 

LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
Telephone:(212) 219-1900

PERCY L. JULIAN, JR.
(Counsel of Record)
JULIAN & OLSON, S.C.

330 East Wilson Street 
Post Office Box 2206 
Madison, WI 53701 
Telephone: (608) 255-6400

ATTORNEYS FOR NAACP LEGAL
- DEFENSE AND EDUCATIONAL 

FUND, INC.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT 
No. 34-2995

— — — — — — — — — — — — — — — — — x
SILAS J. ALEXANDER, et al., :

Plaintiffs-Apoellants, : CERTIFICATE OF INTEREST
PURSUANT TO CIRCUIT 

v. : RULE 5(b)
CHICAGO PARK DISTRICT, et al. , :

Defendants-Appellees. :
— — — — — — — — — — — — — — — — — x
TO : Mr. Thomas F. Strubbe, Clerk

United States Court of Appeals 
for the Seventh Circuit 

219 South Dearborn Street 
Room 2722 
Chicago, IL 60604

The undersigned counsel of record for the NAACP Legal Defense 
and Educational Fund, Inc., furnish the following list in 
compliance with Circuit Rule 5(b):

1. NAACP Legal Defense and Educational Fund, Inc.
2. The NAACP Legal Defense and Educational Fund, Inc., 

(hereafter LDF) is a non-profit corporation incorporated under 
the laws of the State of New York in 1939. See, NAACP v. Button, 
371 U.S. 415, 421, n. 5 (1963); and NAACP v. NAACP Legal Defense
and Educational Fund, Inc., 559 F. Supp. 1337 (D.C., D.C. 1983),



and 753 F.2d 131 (D.C. 1985), (Reversing 559 F. Supp. 1337),
cert, denied, ____  D.S. ____ , (No. 1678, 1984 Term) (June 17,
1985).

3. Neither the LDF nor any of the attorneys for the LDF 
appeared in the district court. Julian & Olson, S.C., (Percy L. 
Julian, Jr., counsel of record), Julius LeVonne Chambers (New 
York), and Charles Stephen Ralston (New York), will be on the 
brief in this court.

Dated this 28th day of October, 1985.

Respectfully submitted,

BY

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
Telephone:(212) 219-1900

PERCY L. JULIAN, JR. 
(Counsel of Record)
JULIAN & OLSON, S.C.

330 East Wilson Street 
Post Office Box 2206 
Madison, WI 53701 
Telephone: (608) 255-6400

per
ATTORNEYS FOR NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.



TABLE OF CONTENTS
Page

Certificate of Interest Pursuant to Circuit Rule 5(b) . . .  i
Motion for Leave to File B r i e f .................................1
Brief Amicus Curiae........................................
Issue Presented for Review Addressed by Amicus . . . . . . .  1
Statement of the C a s e ......................................  1
Argument .....................................................  *

Controllina Decisions of the Supreme Court
Establish That Title VII Is Not The Exclusive
Remedy for Employment Discrimination ...................  2

Conclusion ...................................................  6
Certificate of Service ......................................  7



TABLE OF AUTHORITIES
Page

Cases:
Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974)..................................  4
Brown v. General Services Administration,

425 U.S. 820 ( 1976).......................  4
Johnson v. Railway Express Aqency, 421 U.S. 454

( 1975)................................  2, 4, 5
Morton v. Mancari, 417 U.S. 535 ( 1974)........  5

Statutes:
42 U.S.C. § 1 9 8 1 ............................2, 4, 5
42 U.S.C. § 1983 .......................  2, 3, 4, 5
42 U.S.C. § 1988 ...............................  5
42 U.S.C. 5 2000e-1 6 ...........................  4
Title VII, Civil Rights Act of 1964 ........ passim

Other Authorities:
H.R. Rep. No. 92-238 ( 1971 ) ...................  3
H.R. Rep. No. 94-1558 ( 1976)...................  5
S. Rep. No. 92-41 5 ( 1971 ) ....................... 3



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT 
No. 84-2995

SILAS J. ALEXANDER, et al.,
Plaint iffs-Appel1ants,

v .

CHICAGO PARK DISTRICT, et al., 
Defendants-Appellees.

x

X

MOTION FOR LEAVE TO FILE, 
INSTANTERjBRIEF 
AMICUS CURIAE

Pursuant to Rule 29, Federal Rules of Appellate Procedure, 
and Circuit Rule 10, Movant, NAACP Legal Defense and Educational 
Fund, Inc., (hereafter "LDF"), respectfully moves the court for 
permission to file instanter the attached brief Amicus Curiae and 
assiqns the following reasons.

The NAACP Legal Defense and Educational Fund, Inc., is a 
non-profit corporation, incorporated under the laws of the State 
of New York in 1939. It was formed to assist blacks to secure 
their constitutional riahts by the prosecution of lawsuits. Its 
charter declares that its purposes include rendering legal aid 
gratuitously to blacks suffering injustice by reason of race who 
are unable, on account of poverty, to employ legal counsel on

For many years its attorneys have representedtheir own behalf.



parties and have participated as amicus curiae in the Supreme 
Court of the United States and in the lower Federal Courts, 
including this Court, in cases involving many facets of the law.

The Legal Defense Fund has a substantial and continuing 
interest in the issue of the relationship between Title v n  of 
the Civil Rights Act of 1964 and the post-Civil War civil rights 
acts, 42 U.S.C. §§ 1981 and 1983. In most of the litigation LDF 
brings challenging discrimination in employment we rely on a 
variety of jurisdictional bases. Therefore, the Court's decision 
in the present case could have a direct impact on our litigation
program.

Moreover, amicus was counsel for the plaintiffs in two of the 
leading cases bearing on the issue, Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454 (1975), and Brown v. General Services 
Administration, 425 U.S. 820 (1976). Therefore, we believe our 
views will be of assistance to the Court.

Amicus recently learned that rehearing en banc had been 
granted by the Court, and received copies of the parties' briefs 
on October 24, 1985. Since appellees have not yet filed their 
brief they will have ample opportunity for comment on this brief.

2



WHEREFORE, movant requests that it be allowed to file
instanter

Dated
the attached brief amicus curiae.
this 30th day of October, 1985, at Madison, Wisconsin.

Respectfully submitted, By

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
Telephone:(212) 219-1900

PERCY L. JULIAN, JR.
(Counsel of Record)
JULIAN & OLSON, S.C.

330 East Wilson Street 
Post Office Box 2206 
Madison, WI 53701 
Telephone: (608) 255-6400

ATTORNEYS FOR NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

3



IN THE
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT 
No. 84-2995

SILAS J. ALEXANDER, et al.,
Plaintiffs-Appellants, 

v.
CHICAGO PARK DISTRICT, et al., 

Defendants-Appellees.

x

X

Appeal from the United 
States District Court, 
Northern District of 
Illinois, Eastern 

Division

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

ISSUE PRESENTED FOR REVIEW ADDRESSED BY AMICUS

Whether Title VII has pre-empted 42 U.S.C. §§ 1981 and 1983 
so that it is the exclusive remedy for employment discrimination?

STATEMENT OF THE CASE
Amicus adopts the statement of the case of the plaintiffs- 

appellants.



ARGUMENT

CONTROLLING DECISIONS OF THE SUPREME COURT ESTABLISH 
THAT TITLE VII IS NOT THE EXCLUSIVE REMEDY FOR EMPLOY­
MENT D I S C R I M I N A T I O N __________ ______________

As indicated in the Motion for Leave to File this brief the 
Legal Defense Fund has had a continuing interest in the rela­
tionship between Title VII and the other statutes that protect 
against discrimination in employment. It is our position that 
the panel decision in the present case was correct. Further, the 
Supreme Court of the United States has on three different 
occasions sguarely held that Title VII did not affect a repeal of 
the post—civil war civil rights statutes, including 42 U.S.C.
§§ 1981 and 1983.

The Court's conclusion was compelled by the clear legisla­
tive history of Title VII both as it was passed in 1964 and as it 
was amended in 1972 to make its terms applicable to state and 
local governments. In Johnson v. Railway Express Agency, 421 
U.S. 454 (1975), the Supreme Court succinctly described the 
legislative history of the Act:

Despite Title VII's range and its design as a 
comprehensive solution for the problem of invidious 
discrimination in employment, the aggrieved individual 
clearly is not deprived of other remedies he possesses 
iT^TTs not limited to Title VII in his search for 
relief. " [T]he legislative history of Title VII

2



manifests a congressional intent to allow an individual 
to pursue independently his rights under both Title VII 
and other applicable state and federal statutes." 
Alexander v Gardner-Denver Co. 415 USf at 48. In 
particular, Congress noted "that the remedies available 
to the individual under Title VII are co-extensive with 
the indiv[i]dual's right to sue under the provisions of 
the Civil Rights Act of 1866, 42 USC § 1981, and that 
the two procedures augment each other and are not 
mutually exclusive." HR Rep No.92-238, p 19 (1971).
See also S Rep No. 92-415, p 24 (1971). Later, in 
considering the Eaual Employment Opportunity Act of 
1972, the Senate rejected an amendment that would have 
deprived a claimant of any right to sue under § 1981. 
118 Cong Rec 3371-3373 (1972).

421 U.S. at 459. (Emphasis added.)
With regard to state and local government employees and 42 

U.S.C. § 1983 itself, the legislative history is similarly clear. 
Thus, the House report states, "The bill, therefore, by extending 
jurisdiction to State and local government employees does not 
affect existing rights that such individuals have already been 
granted by previous legislation." Further, "Inclusion of state 
and local employees among those enjoying the protection of Title 
VII provides an alternate administrative remedy to the existing 
discrimination perpetuated 'under color of state law', as 
embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983. H.R. 
Rep. No.92-238, p. 19 (1971) (emphasis added). See also, S. Rep. 
No. 92-415, p. 24 (1971).



In Brown v. General Services Administration, 425 U.S. 820
(1976), the Court reaffirmed its two earlier decisions, Johnson 
v. Railway Express Agency, Inc., supra and Alexander v. Gardner— 
Denver Co., 415 U.S. 36 (1974), that held that Title VII did not 
repeal or pre-empt other remedies for private employees. Brown 
held only that § 717 of the 1972 Act (42 U.S.C. § 2000e-16), 
which applies to federal employees, had the effect of repealing 
or making §§ 1981 or 1983 inapplicable to federal employees. The 
Court distinguished the situation of federal employees from all 
others because in 1972 Congress believed that none of the 
existing remedies applied to federal employees as a result of 
sovereign immunity. Therefore, when it amended Title VII it 
intended to make it the sole remedy available to federal em­
ployees .

On the other hand, there was no question but that § 1983 
already provided a remedy to state and local employees to 
challenae discrimination in employment under the Constitution. 
Thus, Congress was well aware that there existed independent 
remedies for such employees and expressed its clear intent to 
leave those remedies undisturbed.

The cases sought to be relied upon by the appellees in this 
case are, therefore, simply inapposite. While under some 
circumstances the enactment of a comprehensive enforcement scheme 
may lead to the conclusion that Congress intended to pre-empt

4



other remedies, Congress expressed precisely the opposite intent 
when it made Title VII applicable to state and local governments. 
Thus, as the Supreme Court has also held with regard to Title VII 
in another context, it may not be assumed that Congress intended 
sub silentio to repeal § 1983 insofar as it provided an indepen­
dent remedy for employment discrimination. See, Morton v.
Mancari, 417 U.S. 535 (1974).

Finally, the legislative history of the Civil Rights Attor­
neys' Fee Act of 1976 (42 U.S.C. § 1988) is wholly inconsistent 
with the conclusion that Congress believed that Title VII was the 
exclusive remedy for employment discrimination. Thus, for 
example, the Senate Report, in discussing the need to make 
attorneys' fees available uniformly in civil rights cases, noted 
that, "fees are now authorized in an employment discrimination 
suit under Title VII of the 1964 Civil Rights Act, but not in the 
same suit brouaht under 42 IT.S.C. § 1981, which protects similar 
rights but involves fewer technical prerequisites to the filing 
of an action." S. Rep. 94-1011, p. 4 (1976). And the House 
report cited with approval the Supreme Court's decision in 
Johnson v. REA, supra, and quoted from the language of the 
earlier report on the 1972 amendments to the effect that § 1981 
and Title VII augmented each other "and are not mutually exclu­
sive." H.R. Rep. 94-1558, p. 4, n. 8 (1976).

5



For the foregoing reasons, amicus respectfully urges that 
the question raised by appellees in their petition for rehearing 
is foreclosed by three decisions of the Supreme Court of the 
United States and the clearly stated intent of Congress. The 
appellees' only remedy is to seek reconsideration of the guestion 
from the Supreme Court itself or Congress.

CONCLUSION
For the foregoing reasons, the decision below should be 

reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
Telephone:(212) 219-1900

PERCY L. JULIAN, JR.
(Counsel of Record)
JULIAN & OLSON, S.C.

330 East Wilson Street 
Post Office Box 2206 
Madison, WI 53701 
Telephone: (608) 255-6400

ATTORNEYS FOR NAACP LEGAL
DEFENSE AND EDUCATIONAL 
FUND, INC.

6



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the attached 
Motion for Leave to File and Brief Amicus Curiae by depositing 
the same in the United States mail, first class mail prepaid, 
addressed to:

Rufus Cook, Esa.
1331 South Michigan Avenue 
Chicago, Illinois 60605

Attorney for Plaint iffs-Appellants
Jack J. Carriglio, Esq.
Foran, Wiss & Schultz 
30 North LaSalle Street 
Suite 3000
Chicago, Illinois 60602

Attorney for Defendants-Appellees

Dated this day of October,

- 7 -

f