Correspondence from Reynolds to Ganucheau (Clerk); Motion of the United States for Leave to File Brief as Amicus Curiae Out of Time; Correspondence from Guste and Vick to Ganucheau; Brief for the United States as Amicus Curiae

    — — -— -““ —T
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A

The Supreme Court
of the United States f

County of Los Angeles
versus
Von Davis, et al.

BRIEFS AMIC! CURIAE

Law Reprints
Labor Series
Volume 12, no. 6B
1978/1979 Term



The Supreme Court 
of the United States

County of Los Angeles
versus

Wan Davis, et al.

BRIEFS AMICI CURIAE

Law Reprints
Labor Series 
Volume 12, no. 6B  
1978/1979 Term



TABLE OF CONTENTS

Page

AMICUS BRIEFS
United States and the Equal Employment

Opportunity Commission ......................................  1
N.A.A.C.P. Legal Defense and

Educational Fund, Inc..............................................  27
American Civil Liberties Union and The ACLU

of Southern California ...........................................  73
Lawyers’ Committee for Civil Rights Under Law ... 147 
Incorporated Mexican American Government 

Employees, League of United American 
Citizens, American G.I. Forum, and S.E.R. -
Jobs for Progress, Inc..............................................  197

The Anti-Defamation League of B’Nai B’Rith .....  265
The Equal Employment Advisory Council ............  289
The City and County of San Francisco ..................  343
Pacific Legal Foundation ........................................... 399
California Organization of

Police and Sheriffs, Inc............................................ 427



No. 77-1553

3n %  #it|trintu' (Emtrt of %  Hmteft ilatro
October Term, 1978

County of Los A ngeles, et al., petitioners
v.

Van Davis, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

Wade H. McCree, Jr.
Solicitor General

Drew S. Days, III
Assistant Attorney General

Louis F. Claiborne 
Assistant to the Solicitor General

Brian K. Landsberg 
Cynthia  L. A ttwood 
Robert J. Reinstein 

Attorneys
Abner W . Sibal Department of Justice

General Counsel Washington, D.C. 20530
Joseph T. Eddins 

Associate General Counsel

Beatrice Rosenberg 
Lutz A lexander Prager 

Attorneys
Equal Employment Opportunity Commission 
Washington, D.C. 20506

1



I N D E X
Page

Questions presented__________________________ 1
Interest of the United States and the Equal 

Employment Opportunity Commission _____  2
Statement___________________________________  2
Discussion _____........____..............................................  12
Conclusion___________________________________ 21

CITATIONS
Cases:

Alexander v. Gardner-Denver Co., 415
U.S. 3 6 _______________________________  14

Belcher v. Stengel, 429 U.S. 118...............  13
Black v. Cutter Laboratories, 351 U.S.

292 ----------------------------------------------------  14
Calhoun v. Latimer, 377 U.S. 263 ______  19
Dothard v. Rawlinson, 433 U.S. 3 2 1 ____  10
Firemen v. Bangor & A. R. Co., 389 U.S.

327___________________________________ 17
Fusari v. Steinberg, 419 U.S. 379 ______  12
Goldlawr, Inc. v. Heiman, 369 U.S. 463____ 14
Griggs v. Duke Power Co., 401 U.S. 424__ 10
Hazelwood School District v. United

States, 433 U.S. 299 _________________  16
Johnson v. Railway Ex-press Agency, Inc.,

421 U.S. 454 _________________________  14
Jones v. Alfred H. Mayer Co., 392 U.S.

409 ______      2
Jones v. Hildebrant, 432 U.S. 183 ......    14
McClanahan v. Morauer & Hartzell, Inc.,

404 U.S. 1 6 __________________________  12
McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 _________________________  14

3



n

Cases— Continued Page
Milliken v. Bradley, 418 U.S. 7 1 7 ______  16
Rice v. Sioux City Cemetery, 349 U.S. 70.. 12
Runyon v. McCrary, 427 U.S. 1 6 0 ________  2
Teamsters v. United States, 431 U.S. 324.. 16
Tyrrell v. District of Columbia, 243 U.S.

1 ................ - - - - - - - .............................................................................................. 12
United Air Lines, Inc. v. Evans, 431 U.S.

553 __________________________________  16
United States v. W. T. Grant Co., 345

U.S. 629 ______________________________ 18
Washington v. Davis, 426 U.S. 229 ______ 10,11

Constitution and statutes:
United States Constitution:

Fifth Amendment__________________  10
Fourteenth Amendment____________  10

Civil Rights Act of 1964, Title VII, 42 
U.S.C. (and Supp. V ) 2000e et seq.:

42 U.S.C. (and Supp. V ) 2000e
et seq.______________________________ 3
42 U.S.C. (Supp. V ) 2000e-5(g) ___  16

42 U.S.C. 1981 .................... 2, 3 ,10 ,11 ,13 ,14 ,15
42 U.S.C. 1982 ________ 2
42 U.S.C. 1983 _________________________  3

Miscellaneous:
118 Cong. Rec. (1972)

P. 1662-1676 _________________  16
P. 1676 _______________________ . 16
P. 4917-4918 _______________________ 16
P. 4918 ___________________________  16

4



In %  ̂ upron? dnurt at %  Imtrii BUUb
October Term, 1978

No. 77-1553

County of Los A ngeles, et al., petitioners

v.

Van Davis, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

QUESTIONS PRESENTED

In our view, the questions framed by petitioners 
are not properly presented in this case and the writ 
of certiorari ought to be dismissed as improvidently 
granted. Shortly stated, those questions are:

1. Whether the use of arbitrary employment cri­
teria which are racially exclusionary in operation,

(1)

5



2

although not purposefully discriminatory, violates 42 
U.S.C. 1981.

2. Whether the imposition of minimum hiring 
quotas for minority applicants, provided they are 
fully qualified for the job, is an appropriate remedy 
in this employment discrimination case.

INTEREST OF THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

This case, although brought by private plaintiffs, 
is said to present questions concerning Title YII of 
the Civil Rights Act of 1964 and its relationship to 
42 U.S.C. 1981, as well as the appropriate remedies 
for violation of both statutes. There is, of course, 
a direct federal responsibility for enforcement of 
Title VII, assigned by Congress to the Equal Em­
ployment Opportunity Commission, the Department 
of Justice, and the Civil Service Commission. The 
United States also has an interest in the correct con­
struction and effective operation of Section 1981. For 
that reason, we have participated as amicus curiae 
in previous cases in this Court involving Section 1981 
and the companion statute, Section 1982. See, e.g., 
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968); 
Johnson v. Railway Express Agency, Inc., 421 U.S. 
454 (1975); Runyon v. McCrary, 427 U.S. 160
(1976). The same considerations suggest our speak­
ing here.

STATEMENT

1. This class action was filed on January 11, 
1973, by black and Mexican-American incumbent

6



3

Los Angeles County firemen and applicants, alleging 
hiring discrimination in violation of 42 U.S.C. 1981, 
42 U.S.C. 1983, and Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. (and Supp. V ) 2000e et seq.1 
The union representing incumbent firemen was al­
lowed to intervene. The plaintiffs requested, and the 
district court ordered, that the plaintiff class be 
defined to consist of present and future black and 
Mexican-American applicants to, and employees of, 
the fire department. The class was not defined to 
include past applicants (A. 41, 83).

At the time the complaint was filed in January 
1973, the fire department consisted of 1972 firemen, 
of whom 0.5% (nine) were black and 2.8% (50) 
were Mexican-American (A. 38-39). The proportion 
of blacks and Mexican-Americans in the County pop­
ulation at the time was 10.8% and 18.3%, respec­
tively (A. 39).1 2 Evidence in the record established 
that applicants for the entry level position of fireman 
have traditionally been required to take a written 
test as part of the application procedure (A. 21). 
Applicants with the highest scores were then given

1 The original complaint did not allege a violation of Title 
VII. However, Title VII was invoked in plaintiffs’ second 
amended complaint (A. 1-10), to which was attached the 
Equal Employment Opportunity Commission charge filed by 
plaintiffs and a “ right to sue” letter issued by the Department 
of Justice.

2 In contrast to the small number of blacks and Mexican- 
Americans in the fire department, 60% of the County posi­
tions paying less than that of fireman were filled by blacks 
and Mexican-Americans (Tr. 54, 69).

7



4

a physical agility test and an oral interview.3 These 
three elements of the examination process were as­
signed weights and a total score was computed for 
each applicant. Those not eliminated were then placed 
on an eligibility list and selected in rank order as 
vacancies occurred (A. 101).

Minority group applicants have done extremely 
poor on the County’s written tests. The parties 
stipulated that in 1969, 1424 applicants sat for the 
written test (id. at 21-22). Of these, 17% (244) were 
black, 8.1% (100) were Mexican-American, and
75.8% (1080) were white (ibid.). Of the 407 appli­
cants called for interviews following the written and 
physical agility tests, 4.5% (19) were black and 
3.4% (14) were Mexican-American (A. 23). Thus, 
35% (383) of the whites who took the written test 
passed it, whereas only 7% of the black and 14% 
of the Mexican-American applicants did so (id. at 
27).

Although the County was aware as early as 1969 
that its written tests had an adverse impact upon mi­
nority applicants (Tr. 42-43), it administered a simi­
lar test in January 1972. The County originally had 
planned to use the test solely to eliminate functional 
illiterates from consideration (about two percent of 
those taking the test).4 The County had determined

3 There was no evidence that either the physical agility test 
or the oral interview had a discriminatory impact on minority 
applicants (see, e.g., A. 24).

4 The test was administered to 2414 applicants. Of these, 
1904 (78.9%) were white, 196 (8.1%) were black and 283

8



5

to select approximately 500 of the remaining appli­
cants by lot for oral interviews (Tr. 65; A. 102-103). 
This procedure would have “ eliminated the written 
test as a ranking device”  and would have given “ every 
passing applicant an equal opportunity to be chosen 
for an oral interview” (A. 103). Before the lottery 
system could be implemented, however, a suit was 
brought in state court to enjoin that procedure on 
the ground that it would violate provisions of the 
County charter and civil service regulations (ibid.). 
The state court preliminarily enjoined the use of the 
random selection procedure pending a trial on the 
merits (ibid.).

In December 1972, while the state court injunction 
was still in effect, the County determined that it 
would interview applicants who had received the top 
544 scores on the 1972 written test in order to fill 
the increasing number of vacancies (ibid.). Of the 
top 544 applicants, 90.4% (492) were white, 1.8% 
(10) were black, 6.0% (33) were Mexican-American, 
and the remainder were “ other races”  (A. 24). 
The County did not implement that plan either, how­
ever. Upon hearing that the present suit was to be 
brought, the County abandoned its proposal in early 
January 1973, and instead interviewed all but the 
lowest scoring 3.1% of the applicants (A. 24-25).® 5

(11.7%) were Mexican-American (A. 24). The remaining 31 
applicants were evidently of other races. Those who passed 
were: 1,885 whites, 170 blacks and all 283 Mexican-Ameri- 
cans (A. 24, 103).

5 Although a stipulation refers to January 1972 as the time 
when interviews were commenced and the plan to limit those

9



6

The resulting rankings had no adverse impact on 
blacks or Mexican-Americans (A. 25). On the con­
trary, some 31% of those at the top of the new 
eligibility list belonged to these minorities (ibid .) 
and half of those actually hired in the Spring of 
1973 were blacks or Mexican-Americans (see A. 6; 
Pet. Br. at 8-9).

It was stipulated that the written entrance ex­
amination used by the County had not been validated 
as predictive of job performance (A. 23), and at trial 
the County’s personnel director testified that in his 
judgment the tests were almost useless except to 
eliminate functional illiterates (Tr. 79). Plaintiffs’ 
testing expert confirmed the personnel director’s as­
sessment of the written tests (Tr. 207-208).° 6

interviews to the top 544 was abandoned (A. 24), this is 
obviously an error (see A. 105 n.2). It is clear that interviews 
of all applicants not shown to be illiterates commenced in 
January 1973 (A. 25, 91 n.14, 104), and, presumably, the 
decision to follow that procedure immediately preceded. More­
over, it was expressly found that the previous plan to inter­
view only the top 544 applicants was abandoned only when 
petitioners learned “that this law suit was about to commence” 
(A. 39, 91 n.14) ; the present suit was filed on January 11, 
1973; and this would jibe with a date of January 8, 1973 (see 
A. 25; Tr. 48-49).

6 Evidence was also introduced regarding the impact of the 
County’s minimum height requirement. Until 1971, the county 
had a minimum height requirement of 5'8" for firemen (A. 24). 
In 1971 that requirement was lowered to 5'7". The parties 
stipulated that a study had been done which showed that 
41% of all male Mexican-Americans and only 14% of all male 
Caucasians in Los Angeles County were shorter than 5'7" 
(Tr. 200). Despite this adverse impact, the County had never 
attempted to validate the minimum height requirement 
(A. 28).

10



7

2. Assessing this evidence, the district court found 
that petitioners had not acted “ with a willful or 
conscious purpose of excluding blacks and Mexican- 
Americans from employment at the Los Angeles 
County Fire Department”  (A. 41). Nevertheless, the 
court concluded that they “ did intentionally engage 
in employment practices which had the effect of dis­
criminating against”  these minorities (A. 42; see 
also A. 41). The violations were specified (A. 39 ):

(a) [ujtilizing, until learning that this lawsuit 
was about to commence, written tests as a 
selection device for entry level positions at 
the Los Angeles County Fire Department, 
although such tests had a disproportionate 
detrimental impact upon black and Mexi- 
can-American applicants, and despite the 
fact that such tests have not been shown 
by a validation study to be related to or 
predictive of job performance statistically.

And

(b) [fJailing and refusing to take necessary af­
firmative steps to overcome the existence 
in the black and Mexican-American com­
munities of Los Angeles County of a repu­
tation that the Los Angeles County Fire De­
partment discriminates against blacks and 
Mexican-Americans.

The 5'7" height requirement, on the other hand, was 
found to be “ substantially and reasonably related to 
job performance as a fireman” (A. 39).

The judgment of the district court permanently 
enjoined the defendants from discriminating against

l l



8

blacks and Mexican-Americans and ordered that (A.
46 ):

3. A minimum of twenty per cent (20% ) of all 
new employees employed in fireman positions 
at the Los Angeles County Fire Department, in 
any one year, beginning with July 1, 1973, shall 
be blacks until such time as the percentage of 
blacks in the fireman workforce of the Los An­
geles County Fire Department is equal to the 
percentage of blacks in the general population 
of Los Angeles County.
4. A minimum of twenty per cent (20% ) of all 
new employees employed in fireman positions 
at the Los Angeles County Fire Department, in 
any one year, beginning with July 1, 1973, shall 
be Mexican-Americans until such time as the 
percentage of Mexican-Americans in the fireman 
workforce of the Los Angeles County Fire De­
partment is equal to the percentage of Mexican- 
Americans in the general population of Los An­
geles County.

But the court expressly added (A. 47 ):

Nothing in this Order shall in any way be deemed 
to require or encourage Defendants: (a) to em­
ploy any person not qualified for a fireman posi­
tion with the Los Angeles County Fire Depart­
ment; or (b) to in any way lower or refrain 
from increasing the standards for employment 
as firemen at the Los Angeles County Fire De­
partment, provided such standards are reason­
ably related to the qualifications of potential 
firemen; all other provisions jn  this order are 
subordinate to the provisions of this paragraph

12



9

* * * and shall be subject to modification in the 
event of any conflict herewith.

3. The court of appeals affirmed in part, reversed 
in part and remanded the case for further considera­
tion.7 The court held that “ [i]n  light of the fact that 
plaintiffs’ class did not include any prior unsuccessful 
applicants, it follows that plaintiffs neither suffered 
nor were threatened with any injury in fact from 
the use of the 1969 examination,” and therefore con­
cluded that “ plaintiffs lacked standing to challenge 
defendants’ prior use of the test in 1969” (A. 83). 
However, the court of appeals affirmed the district 
court’s holding that the County’s plan to rank ap­
plicants based upon the 1972 written entrance ex­
amination and to interview only those with the top 
500 scores was unlawful because it would have had 
an adverse impact on blacks and Mexican-Americans 
and was not job related (A. 84-91). Although the 
County had not hired anyone on the basis of the dis­
criminatory examination, and had discontinued use 
of the examination except to screen out illiterates 
after it had been informed that this suit was to be 
filed, the threat to use the examination persisted (A. 
91 & n.14; see also A. 105 & n.2, Wallace, J .).8

7 The court of appeals issued two opinions (A. 52-78, A. 79- 
119), the latter on defendants’ motion for rehearing. Unless 
otherwise noted, references are to the court’s second opinion.

8 The only discriminatory act—the threatened discrimina­
tory use of the 1972 test—that the court of appeals found 
plaintiffs to have standing to challenge therefore occurred 
after the effective date of Title VII (see pages 14-15, infra).

13



10

The court ruled that the 1972 test, as it was in­
tended to be used by the County, violated 42 U.S.C. 
1981 as well as Title VII (A. 90-91 & n.14). It held 
that in employment discrimination suits, the stand­
ards announced in Griggs v. Duke Power Co., 401 
U.S. 424 (1971), apply to Section 1981 because the 
courts of appeals had uniformly “ employed Title VII 
principles as a benchmark”  in such suits (A. 88). The 
court distinguished Washington v. Davis, 426 U.S. 
229 (1976), in which this Court ruled that evidence 
of discriminatory purpose is necessary to establish 
violations of the Fifth and Fourteenth Amendments.

The court of appeals reversed the district court’s 
finding as to the minimum height requirement, hold­
ing that the testimony upon which the district court 
relied “ falls far short of validating”  the height re­
quirement under the standards of Dothard v. Rawlin- 
son, 433 U.S. 321 (1977) (A. 92). The court con­
cluded that this requirement violated both Title VII 
and Section 1981 (A. 92 n.15).

With regard to the relief ordered by the district 
court, the court of appeals approved, as a general 
matter, of hiring quotas as remedies “ to erase the 
effects of past discrimination”  (A. 95). However, the 
court did not affirm the district court’s order, holding 
that (A. 96):

The court * * * should reconsider its order in 
light of our decision that the 5'7" height require­
ment is invalid and that plaintiffs lacked stand­
ing to challenge defendants’ use of the 1969 writ­
ten examination.

14



11

Judge Wallace dissented. He agreed with three 
parts of the majority’s opinion: that plaintiffs lacked 
standing to challenge pre-1972 actions of the County 
(A. 99); that the County’s continued threat to use 
the fireman’s test in a discriminatory manner consti­
tuted a violation of Title VII (A. 105); and that 
Washington v. Davis, supra, “ does not address the 
question of whether cases brought under section 1981
* * * always require proof of discriminatory intent
* * *” (A. 107). However, the dissent disagreed 
with the majority’s other conclusions. Having deter­
mined that the only violations at issue occurred after 
the effective date of Title VII, and that the County 
had violated Title VII, Judge Wallace thought it un­
necessary to examine whether the County had also 
violated Section 1981 (A. 105-106). He argued, how­
ever, that, “ [bjecause section 1981 is peculiarly linked 
to the Fourteenth Amendment, the standards pertain­
ing to that amendment should also control section 
1981” (A. 109). The dissenting judge also stated his 
view that hiring quota relief was inappropriate in 
this case. Noting that racial imbalance in the fire 
department was neither aggravated nor perpetuated 
by the 1972 examination, he argued that the “ limited 
threat of discrimination”  which the examination rep­
resented “ does not create a proper platform from 
which to reach back to correct the racial imbalance” 
(A. 118, footnote omitted). The dissent concluded 
that the district court could fashion an effective order 
prohibiting the use of the 1972 examination “without 
imposing quotas” (A. 119).

15



12

DISCUSSION

Our submission is that the writ of certiorari issued 
in the case should be dismissed as improvidently 
granted. A careful review of the record persuades 
us that the issues framed by petitioners are not prop­
erly presented and that, in the circumstances, the 
Court will wish to dismiss the writ in accordance 
with its usual practice. See, e.g., Belcher v. Stengel, 
429 U.S. 118 (1976); McClanahan v. Morauer & 
Hartzell, Inc., 404 U.S. 16 (1971); Tyrrell v. District 
of Columbia, 243 U.S. 1 (1917); Rice v. Sioux City 
Cemetery, 349 U.S. 70 (1955), and cases collected at 
78-79 n.2.

Of course, deference to the Court, as well as a 
natural diffidence about prejudicing the course of liti­
gation in which we are not parties, makes us reluc­
tant to suggest that certiorari was improvidently 
granted. But this is not an ordinary private lawsuit. 
As we have noted (supra, page 2 ), the questions 
raised by the petition are of immediate interest to 
the government and implicate public rights of vital 
importance to minorities throughout the Nation. 
Those considerations, we believe, make our participa­
tion in the case appropriate. Yet, if we are to speak 
at all, our duty to the Court requires disclosure of 
the obstacles which, in our view, inhibit review here. 
Cf. Fusari v. Steinberg, 419 U.S. 379, 387 n,12, 390- 
391 (1975). The task falls to us because neither the 
petition nor the brief in opposition, nor petitioners’ 
brief, suggests any doubt whether the questions said 
to be presented are properly in the case. Cf. Brief

16



13

for the United States as amicus curiae in Belcher v. 
Stengel, No. 75-823.

It may be that its procedural history had obscured 
the posture of the case as it reached this Court. The 
district court premised its remedial order— which in­
cluded minimum hiring quotas (A. 46, 48-50)— pri­
marily on a finding of discrimination occurring before 
Title VII became applicable to state public employers 
in March 1972 (A. 38, 41-43). Accordingly, reliance 
on 42 U.S.C. 1981 was necessary and both the ques­
tions now said to be presented were in the case when 
it came to the court of appeals. Initially, that court 
affirmed in all respects, except only that, contrary to 
the district court, it held the height limitation illegal 
(A. 52-66). At that stage, the court of appeals ex­
pressly based its judgment on the assumption that all 
actionable conduct, and relevant effects, occurred 
before March 24, 1972, and were therefore reachable 
only under Section 1981 (A. 56-57). Thus, until that 
opinion was withdrawn, the issues presented by peti­
tioners remained. But the court of appeals granted 
rehearing, and, as we elaborate in a moment, the new 
opinion and judgment reached very different conclu­
sions as to when actionable discrimination occurred 
and what remedy might be appropriate. The upshot 
is that issues once at the heart of the case are no 
longer present.

1. The first question said to be presented is 
whether Section 1981, like Title VII, reaches conduct 
which is not purposefully discriminatory but has a 
disparate adverse impact on racial minorities. At

17



14

least in a case like this one, that issue is wholly aca­
demic with respect to any period during which Title 
VII was in effect— here beginning March 24, 1972. 
To be sure, the applicability of Title VII does not 
foreclose a claim under Section 1981. See Alexander 
v. Gardner-Denver Co., 415 U.S. 36, 47-49 (1974); 
Johnson v. Railway Express Agency, Inc., 421 U.S. 
454, 460-461 (1975); McDonald v. Santa Fe Trail 
Transp. Co., 427 U.S. 273 (1976). But, if Title VII 
plainly covers the whole case and affords all possible 
relief, the Section 1981 claim is mere surplusage. In 
that situation, it may be questioned whether any court 
ought to reach out to decide a novel and difficult ques­
tion under the more general statute. In any event, 
however, this Court will not normally review the al­
ternative holding when it has no effect on the judg­
ment. Black v. Cutter Laboratories, 351 U.S. 292, 
297 (1956). And, although certiorari has already 
been granted, the writ usually will be dismissed. See, 
e.g., Goldlawr, Inc. v. Herman, 369 U.S. 463, 465 n.5 
(1962).

Those principles govern here. Both courts below 
have held that petitioners’ conduct violated Title VII. 
Although that ruling is now questioned (Pet. Br. at 
48-51), it was not challenged by the petition for cer­
tiorari, and, accordingly, the issue is not before the 
Court. E.g., Jones v. Hildebrant, 432 U.S. 183
(1977). As it happens, the conduct found violative 
of Title VII was, according to the final decision of 
the court of appeals, the only actionable conduct 
reachable in this suit. That was the consequence of

18



15
the holding, on rehearing, that the plaintiff class was 
unaffected by, and therefore lacked standing to com­
plain about, the use of the 1969 written test or, in­
deed, any other acts of petitioners before late 1972 
(A. 81-83)— by which time Title VII was in effect. 
Since there is no reason to believe that the nature of 
the relief would be affected, in this case, by remedies 
available under Section 1981 but not Title VII, the 
court’s discussion of Section 1981 was, as the dissent 
noted (A. 105-106), “wholly unnecessary.”  The up­
shot is that the judgment below rests on an independ­
ent ground not open in this Court and that a decision 
on the Section 1981 issue will have no effect on the 
case.

2. Somewhat different considerations counsel 
against this Court’s now deciding the other question 
said to be presented. Essentially, the quota hiring 
order is not final and accordingly is not ripe for 
review here.

In its initial decision, the court of appeals approved 
the district court’s imposition of minimum quotas and 
remanded the case only “ for reconsideration of the 
proper ratio of accelerated racial hiring to be or­
dered” in light of the holding that the 5'7" height 
requirement for firemen was unlawful (A. 53-54; see, 
also, A. 65-66). Presumably, this disposition would 
have left open only the question whether the quota 
for Mexican-Americans should be increased. But see 
pages 19-20, infra. Had that remained the judgment 
of the court below, it would indeed have presented the 
issue whether a “ catch up”  quota was appropriate 
relief in the circumstances. But here, also, the court’s

19



decision on rehearing was substantially different. Al­
though most of the broad language of the first opinion 
approving affirmative relief (A. 61-66) is reproduced 
in the second (A. 92-97), there is a critical distinc­
tion: under the final judgment, the district court on 
remand must reconsider its remedial order, not only 
because of the ruling invalidating the height limita­
tion, but also “ in light of [the appellate court’s hold- 
ing] * * * that plaintiffs lacked standing to challenge 
defendants’ use of the 1969 written examination” (A. 
96).

This may well require the district court to with­
draw its order mandating accelerated quotas and to 
substitute a lesser remedy, perhaps including no quota 
provision. At the least, the question of the appro­
priate relief is re-opened, since “ the scope of the 
remedy is determined by the nature and extent of 
the * * * violation.”  Milliken v. Bradley, 418 U.S. 
717, 744 (1974); see Teamsters v. United States, 431
U.S. 324 (1977); United Air Lines, Inc. v. Evans, 
431 U.S. 553 (1977); Hazelwood School District v. 
United States, 433 U.S. 299 (1977).® In sum, the 9

9 It is clear, of course, that minimum hiring quotas may be 
ordered in an appropriate case. The 1972 amendments to 
Title VII, which apply here, added to Section 706(g), 42 
U.S.C. (Supp. V) 2000e-5 ( g ) , authority to award “ any other 
equitable relief as the court deems appropriate.”  That lan­
guage must be read against congressional rejection of proposed 
amendments that would have barred hiring ratios (118 Cong. 
Rec. 1676, 4918 (1972)) and the express defense of two deci­
sions approving such relief by Senators Javits and Williams, 
the principal spokesman against the limiting proposals. Id. at 
1662-1676, 4917-4918. This is, moreover, the unanimous con­
clusion of the eight courts of appeals that have considered 
the question. See A. 94-95.

16



17

ultimate result is not yet known, even in broad out­
line, and, in these circumstances, this Court would 
normally decline premature review. See, e.g., Fire­
men v. Bangor & A. R. Co., 389 U.S. 327 (1967).

3. What has been said sufficiently indicates that, 
given the failure of the petition for certiorari to 
challenge the Title VII ruling of both lower courts, 
this Court’s intervention in the case is likely to re­
sult in no more than an advisory opinion. It need 
hardly be said that this is a role the Court has stead­
fastly eschewed. But there is yet a further reason 
for declining review: the staleness of the case.

The primary group among the remaining plaintiffs 
and the class they represent10 are blacks and Mexi- 
can-Americans who applied for openings as firemen 
six years ago, in late 1971 (A. 3, 20, 21, 25, 68, 83). 
They were required to take a written test in January 
1972, which, at the time, was intended only to screen 
out functional illiterates (A. 3, 24, 71-72, 102-103). 
Between some date in late 1972 and January 8, 1973, 
petitioners impermissibly threatened to use the test 
results as a basis for ranking applicants (A. 24-25; 
supra, note 5). But, on the latter date, that plan was 
abandoned and petitioners have not engaged in any

10 Some of the original plaintiffs were incumbent firemen 
and a class of incumbent blacks and Mexican-Americans was 
listed as claimants (A. 3). This was presumably because dis­
crimination in promotion, as well as hiring, was alleged 
(A. 4-5, 8-9). That claim, however, was not sustained, if, 
indeed, it was pressed (see A. 38-43). It follows that the 
only “ live” plaintiffs are rejected applicants who initially 
applied in 1971 and those who applied subsequently.

21



18

discriminatory practice since. Indeed, although the 
potential existed for a short period, no one (includ­
ing the plaintiffs) has actually suffered discrimina­
tory treatment since the plaintiffs became applicants 
in October 1971 (A. 83). And it is apparently un­
challenged that the County’s hiring record in the last 
five and a half years has been exemplary (Pet. Br. 
at 10).

We do not suggest that the district court’s order 
was entered improvidently. On the contrary, since 
petitioners abandoned their unlawful plan only when 
the present suit was imminent (A. 39, 91, 105), the 
court was, in our view, fully justified in enjoining a 
“ return to [the] old ways.”  See United, States v. W.T. 
Grant Co., 345 U.S. 629, 632-633 (1953). But that 
was more than five years ago, in July 1973 (A. 45; 
Pet. Br. at 3). In the meanwhile, we are told, some 
207 black or Mexican-American firemen have been 
hired, constituting more than 50% of the new recruits 
taken on in the five-year period (Pet. Br. at 10). Pre­
sumably, the plaintiff minorities now together account 
for some 12.6% of the total force of the Los Angeles 
County Fire Department.11 Although this is far from 
the 29% of the County population represented by 
blacks and Mexican-Americans, it is a radical im­

11 This figure assumes that the total number remains 1,762 
(see A. 39; but see A. 11, 19-20; Pet. Br. at 3) and that blacks 
and Mexican-Americans have left the force at the same rate 
as others. On that basis, some 12 of the original 59 minority 
firemen (A. 20) would have left, and, adding the 207 new 
recruits to the remaining 47, we reach a total of 254.

22



19

provement over the 3.3% minority membership in 
January 1973 when this suit was filed.

In light of this experience, it may be that the dis­
trict court today would appraise differently the need 
for rigid remedial quotas. For all we know, the dis­
trict court may properly take the view that what 
seemed reluctant acquiescence in 1973 has, five years 
later, given way to good faith compliance with the 
law. Since the court of appeals has remanded the 
case to reconsider questions of remedy, it would seem 
inappropriate for this Court to adjudge the matter on 
a stale record when changed circumstances might per­
suade the district court to withdraw or alter its order 
in significant respects. Cf. Calhoun v. Latimer, 377 
U.S. 263 (1964).

4. Finally, there is one aspect of the case which 
is not sufficiently fleshed out to permit intelligent re­
view by this Court at the present time. We refer to 
the holding of the court of appeals invalidating the 
5'7" height requirement. Although that ruling is now 
final, not having been challenged by the petition for 
certiorari insofar as it rests on Title VII (see A. 91- 
92 & n.15), it presumably affects the remedial order 
that ultimately must be entered (see A. 80-81, 96). 
Yet, the record before this Court reveals almost noth­
ing about the past and present impact of that require­
ment.

To be sure, the district court noted the parties’ 
stipulation that the 5'7" height rule “ eliminate[d] 
from consideration approximately 41% of the Mexi- 
can-American male population”  (A. 40). But, con-

23



20
eluding that the requirement was valid (A. 39, 40, 
42), the court did not pursue the matter, merely- 
reducing the Mexican-American quota to reflect the 
ineligibility of a large portion of that population (A. 
40, 80-81). The court of appeals, although reversing 
on this issue (A. 91-92), expressly left open on re­
mand how its ruling should affect a remedial order 
(A. 81, 96). Nor is the solution obvious. Among 
other difficulties confronting the district court will be 
how to adjust the quotas, if  quotas are retained, to 
reflect the newly eligible shorter Mexiean-Americans 
without prejudicing the plaintiffs, or at least the 
black plaintiffs; and, if quotas are eliminated, how to 
identify and make whole the victims of this discrimi­
natory requirement. See A. 100-101. Plainly, these 
are not matters for initial decision by this Court, 
without benefit of an adequate factual record or rul­
ings by the lower courts.

5. For the several reasons just articulated, we 
submit that this case is a wholly inappropriate vehicle 
for decision of far reaching questions that may gov­
ern much other litigation. Presumably, the issues will 
come before the Court in a proper case in due course.12 
But, at all events, we urge the Court to decline the 
present invitation. It is not apparent why petitioners 
have sought to obtain review of a first question that 
cannot affect the judgment and a second that is not

12 For the reasons given in our brief in opposition to that 
pending petition, we do not believe Johnson V. Alexander, 
No. 78-5180 is such a case. Johnson v. Ryder Truck Lines, 
Inc., petition pending, No. 78-179, presents a somewhat differ­
ent question, albeit, in defending the judgment, respondents 
may raise the Section 1981 issue sought to be presented here.

24



21

ripe and may well disappear after remand, on a rec­
ord that is in part stale and in another part incomplete. 
Whatever their motives, however, this Court cannot 
be expected to waive its salutary rules of practice to 
resolve points of law of general interest but not prop­
erly presented in the case. In all the circumstances, 
the right course, we believe, is to dismiss the writ as 
improvidently granted.

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the writ of certiorari should be dismissed 
as improvidently granted.

W ade H. McCree, Jr.
Solicitor General

Drew S. Days, III
Assistant Attorney General

Louis F. Claiborne
Assistant to the Solicitor General

Brian K. Landsberg 
Cynthia  L. A ttwood 

Abner W. Sibal Robert J. Reinstein
General Counsel Attorneys

Joseph T. Eddins 
Associate General Counsel

Beatrice Rosenberg 
Lutz A lexander Prager 

Attorneys
Equal Employment Opportunity Commission 

November 1978

25





In TH E

QInurt of %  InitTfi States
Octobeb Teem, 1978 

No. 77-1553

County of L os A ngeles, et al.,

Petitioners,

v.

V an Davis, et al.

ON W B IT  OF CEBTIOBABI TO T H E  U N ITE D  STATES 

COUBT OF APPEALS FOB T H E  N IN T H  CIKCUIT

BRIEF AMICUS CURIAE FOR THE 
N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

J ack Gbeenbebg 
0 . P eteb Shebwood 
E bic S chnappeb 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus

27





1

I N D E X

PAGE

Interest of Amicus .......................  1

Summary of Argument .....................  2

ARGUMENT ................................. 3
I. THE "RACIAL QUOTA HIRING 
ORDER" HAS NOT IN FACT BEEN 
APPLIED TO PETITIONERS AND QUESTION 
TWO IS THUS NOT ACTUALLY PRESENTED 
BY THIS CASE ......................  3

II. PETITIONERS' HIRING PRACTICES 
PERPETUATED THE EFFECT OF PAST 
DISCRIMINATION IN VIOLATION OF 
42 U.S.C. §1981 ....................  9

CONCLUSION ................................ 38

29



TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co.,
415 U.S. 36 ( 1974) ...................  13

Alexander v. Holmes County Board of
Education, 396 U.S. 19 (1969) ........  35

Brown v. Board of Education, 347
U.S. 483 (1954) .......................  31,33,34,35

Crawford v. Board of Education, 17 Cal.
Rptr. 389 ( 1976) ...........    34

DeFunis v. Odegaard, 416 U.S 312 (1972) .... 7

Ex parte McCardle, 7 Wall. 506
(1869) .................................  20

Fletcher v. Peck, 6 Cranch 87 (1810).......  20

Gaston County v. United States,
395 U.S. 285 ( 1969) ...................  3,30, 31

Golden v. Zwickler, 394 U.S. 104
(1969) ................................. 8

Green v. School Board of New 
Kent County, 391 U.S.
430 (1968) ................    29

Griggs v. Duke Power Co., 401 U.S.
158 ( 1971) ............................  9

Guey Heung Lee v. Johnson, 404 U.S.
1215 (1971) ............................

i i  -

PAGE

34

30



-Ill

Hall v. Beals, 396 U.S. 45 ( 1969) ..........  7,8

Hurd v. Hodge, 334 U.S. 24 (1948) ..........  11

Jones v. Alfred H. Mayer Co.,
392 U.S 409 (1968) ....................  10,15

Kelsey v. Weinberger, 498 F.2d 701
(D.C.Cir. 1974) ......................  3 4

Keyes v. School District No. 1,
413 U.S. 189 ( 1973) ........... . . _____ 30

Lane v. Wilson, 307 U.S 265 (1939) ........  30

McDonald v. Santa Fe Transportation
Co. , 427 U.S 273 ( 1976) ............... 14

Monell v. Department of Social
Services, 56 L.Ed.2d 611 (1978) .....  12

Moose Lodge No. 107 v. Irvis, 407
U.S 163 ( 1972) ........................  30

New York v. United States, 419 U.S 8 8 8
(1974) ................................. 36

Palmer v. Thompson, 403 U.S. 217 (1971) .... 21

Regents of University, of California 
v. Bakke, 57 L.Ed.2d 750
(1978) .......................    12,32

Reyes v. Matthews, 428 F.Supp. 300
(D.D.C. 1976) .........................  12

Runyon v. McGrary, 427 U.S 160
(1976) ................................. 10,13

Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S.
1 (1971) ............................... 29

PAGE



IV

Washington v. Davis, 426 U.S. 229
(1976) ..................... ...........  21

Statutes * 14

31 U.S.C. §1242(a) ......................... 12

42 U.S.C. §1981 ............................  passim

42 U.S.C. § 1983 ............................. 12

42 U.S.C. §2000e ............................ 13

Civil Rights Act of 1866 ...................  passim

Civil Rights Act of 1964 ...................  9,12

14 Stat. 27 ................................  10, . 14

14 Stat. 177 ...............................  14

1860 Cal. Stats, c.329 .............. .......  32

1863 Cal. Stats, c. 159 ...................... 32

1885 Cal. Stats, c.117 ...................... 33

1893 Cal. Stats, c.193 ...................... 33

1921 Cal. Stats, c.685 ......................  33

General School Law of California
§1662 ( 1880) ..........................  32

PAGE



Legislative Materials
PAGE

118 Cong. Rec............................ ^3

110 Cong. Rec.......................  33

Cong. Globe, 40th Cong., 2d Sess.........  11

Cong. Globe, 39th Cong., 1st Sess........  10,15-27
31,32,37’

Governmental Reports

California Legislative Assembly
Permanent Subcommittee on Post
Secondary Education, Unequal
Access to College (1975) ...........  35

Governor's Commission on the Los Angeles 
Riots, Violence in the City 
(1965) ............................... 3 4

United States Bureau of the Census,
1970 Census of Population,
Series PC(2)-2A, State of
Birth ............................ 33

United States Commission on Civil 
Rights, Mexican-American
Education Study (1971-74) ..........  35

Other Authorities

2 2 California Department of Justice,
Opinions of the Attorney General,
Opinion 6735a (1920) ................ 33



VI PAGE

H. Commager, Documents of American
History (7th Ed.) .................  31

W. Fleming, Documentary History
of Reconstruction .................  17-20,24,

25,32

W. Fleming, Documents Relating to
Reconstruction ....................  24

J. Hendrick, The Education of Non-
Whites in California, 1849-1970 ... 33

E. McPherson, Political History of 
The United States During The
Period of Reconstruction .........  17-20,24,25,

27,28

H. Swint, The Northern Teacher In The
South, 1862-1870 ..................  32

C. Wollenberg, All Deliberate Speed,
Segregation and Exclusion In 
California Schools, 1855-1975 ....  32



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1978

No. 77-1553

COUNTY OF LOS ANGELES, et al., 

Petit ioners,

v.

VAN DAVIS, et al.

On Writ of Certiorari to the United 
States Court of Appeals for the 

Ninth Circuit

BRIEF AMICUS CURIAE FOR THE 
N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

INTEREST OF AMICUS

The N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., is a non-profit corporation estab­
lished under the laws of the State of New York. 
It was formed to assist Negroes to secure their 
constitutional rights by the prosecution of 
lawsuits. Its charter declares that its purposes

35



2

include rendering legal services gratuitously to 
Negroes suffering injustice by reason of racial 
discrimination. For many years attorneys of the 
Legal Defense Fund have represented parties in 
employment discrimination litigation before this 
Court and the lower courts. The Legal Defense 
Fund believes that its experience in employment 
discrimination litigation may be of assistance to 
the Court

SUMMARY OF ARGUMENT
The "racial quota hiring order" that is the 

subject of Question 2 has never been implemented 
as such. Instead the petitioners, in compliance 
with an unchallenged portion of the district 
court's injunction, have deliberately interviewed 
large numbers of minority applicants. But the 
actual rating and hiring decisions are made 
without regard to race. Because this affirmative 
action in interviewing consistently results

1/ Letters of consent to the filing of this 
brief have been filed with the Clerk.

36



3

in hiring blacks and Mexican-Americans in numbers 
greater than the "racial quota hiring order", that 
order has never been, and is unlikely to become, 
operat ive.

The 1866 Civil Rights Act forbids racially 
neutral practices which perpetuate the effect 
of past discrimination. The relevant provisions 
of the Black Codes, which the Civil Rights Act 
was intended to annul, were generally neutral on 
their face, and penalized newly freed slaves by 
perpetuating past discrimination. Petitioners' 
written examinations perpetuate the effects of 
widespread der jure discrimination in the Califor­
nia schools. Gaston County v. United States, 395 
U.S 285 (1969).

ARGUMENT
1. THE "RACIAL QUOTA HIRING ORDER" HAS 

NOT IN FACT BEEN APPLIED TO PETITIONERS, AND 
QUESTION TWO IS THUS NOT ACTUALLY PRESENTED BY 
THIS CASE.

The second Question Presented contained in 
the petition relates to whether the district 
court erred in imposing "a racial quota hiring 
order." Petitioners' statement of the case 
recites that after finding liability,

37



4

[a]s a remedy, the [district] court ordered 
that the County hire all future entry level 
firemen in accordance with a hiring quota of 
20% black and 20% Mexican-American until such 
time as the percentage representation of 
those minorities in the entire Fire Depart­
ment in all ranks equaled their representa­
tion in the County's general population. 
Brief for Petitioners, p.6 .

Petitioners further state that after 1972,

[a] 1 1 subsequent hiring has been pursuant to 
the trial court's 40% preferential minority 
hiring order of July, 1973. Brief for 
Petitioners, p. 9.

The clear implication of these assertions is that 
the "quota hiring order" was the sole injunction 
entered by the district court, that it was an 
unconditional order, and that petitioners complied 
with that order by establishing a rigid quota 
system, consciously hiring, regardless of ability, 
1 black and 1 Mexican-American for every 3 whites. 
The facts appear to be otherwise.

The district court's decision contains four 
primary substantive requirements, of which only 
the first two are unconditional. Paragraph one is 
a general injunction against discrimination. 
Paragraph two mandates in general language that 
petitioners take steps to increase minority 
employment, but contains no specific direction as 
to how this is to be done.

38



Defendants shall in good faith make 
all affirmative action efforts reasonably 
possible and necessary to increase the 
black and Mexican-American participation 
rates in the fireman workforce at the Los 
Angeles County Fire Department until such 
time as those participation rates -are 
commensurate with the black and Mexican- 
American population percentages of Los 
Angeles County.

What is "reasonably possible and necessary” 
is left to the discretion of the petitioners; 
paragraph two does not itself mandate a quota or 
any form of race-conscious hiring. Certiorari was 
not sought as to the propriety of the injunctive 
provisions of paragraphs one and two. Paragraphs 
three and four state that "a minimum of twenty 
percent (2 0 %) of all new employees . . . shall
be blacks" and Chicanos. But paragraphs three and 
four are obviously of no operative significance if 
the actions taken to comply with paragraphs one 
and two result in minority hiring over the 40% 
floor. Thus paragraphs three and four are contin­
gent in nature; so long as compliance with para­
graphs one and two is resulting in substantial 
minority hiring, paragraphs three and four do not 
apply and impose no additional obligation on 
petitioners .

39



6

That is precisely what has occurred in this 
case. The hiring procedure adopted by petitioners 
to comply with paragraphs one and two is as 
follows. To fill each group of vacancies peti­
tioners interview 500 applicants who passed their 
written examination, including the highest 
scoring 300 whites, 100 blacks and 100 Mexican—  
Americans. The number of whites interviewed is 
several times the number of actual vacancies. 
The interviewers rate each of these applicants on 
his or her merits without regard to race or 
national origin. Thereafter applicants are hired 
solely on the basis of the score given by the 
interviewer, again without regard to race or 
national origin. The actual hires are not from
separate lists, no quotas are used, and the same 
rating standards are applied to all applicants. 
The interviewers are not authorized to give extra 
points because of an applicant's race or national 
origin, but are directed only to be alert for 
talented minority applicants. This racially 
neutral procedure, adopted pursuant to paragraphs 
one and two, has resulted in every year since 
1972 in a minority hiring level which consis­
tently, though by varying amounts, exceeded 50%. 
Thus paragraphs three and four simply have never 
gone into effect.

40



7

Petitioners do not contend that their present 
hiring procedure is likely in the future to 
result in a lower level of minority hiring, and 
there is nothing in the record suggesting that 
this will occur. Indeed, at the present rate of 
hiring, minority employment at the Los Angeles 
Fire Department is likely to reach popula­
tion levels by around 1981, at which time the 
entire injunction will become inoperative. Nor 
do petitioners assert that, even if they should 
prevail on the liability issue, they would 
alter their present procedures. Compare DeFunis 
v. Odegaard, 416 U.S. 312 (1974). It is thus 
unlikely that an advisory opinion by this Court 
with regard to the propriety of paragraphs three 
and four would ever have any impact on the 
outcome of this litigation or the conduct of the 
petitioners.

Under these circumstances the dispute as to 
whether the district court order should have 
included paragraphs three and four seems moot. 
This aspect of "[t]he case has . . . lost its 
character as a present, live controversy of the 
kind that must exist if [the Court is] to avoid 
advisory opinions on abstract questions of law." 
Hall v. Beals, 396 U.S. 45, 48 (1969). There may

41



-  8 -

be a remote possibility that some peculiar turn of 
events might render operative the disputed para­
graphs prior to their expiration in two or three 
years, "[b ]ut such speculative contingencies 
afford no basis for . . . passing on the substan­
tive issues" which petitioners would have the 
Court decide. Id. at 49. Even if these circum­
stances fall short of mootness, they are very 
different than those suggested by the Petition. 
We do not think certiorari would have been granted 
had it been clear that the relevance of this issue 
to the parties was at best "wholly conjectural." 
Golden v. Zwickler, 394 U.S. 103, 109 (1969). 
Accordingly we suggest that the grant of certio­
rari as to Question 2 appears to have been 
improvident.

Even if the district court had issued an 
unconditional order directing that firemen be 
hired on the basis of a quota, that relief would 
have been justified by the serious and long 
standing violation of 42 U.S.C. §1981 involved in 
this case.

42



9

II. PETITIONERS' HIRING PRACTICES PERPETUATED 
THE EFFECT" OF PAST DISCRIMINATION IN VIOLATION OF 
42 U . S . C . m

The parties urge the Court to decide whether 
section 1981 prohibits non-job related employment 
criteria with an adverse impact on minorities, a 
prohibition already contained in Title VII in 
light of Griggs v. Duke Power Co., 401 U.S. 
158 (1971). They assume that this difficult 
issue turns on whether section 1981 should be 
construed in_ pari materia with Title VII or with 
the Fourteenth Amendment. Amicus suggests that 
the Griggs issue need not be reached, since 
section 1981 clearly forbids practices which have 
the effect of perpetuating past intentional 
discrimination, and the hiring practices in this 
case had just that effect. We further suggest 
that questions regarding construction of section 
1981 cannot, in general, be resolved by simply 
seeking to analogize it to either the Fourteenth 
Amendment or Title VII.

Petitioners' assertion that Congress intended 
the substantive requirements of section 1981 
to be the same as those of section 1 of the 
Fourteenth Amendment is refuted by the very - 
language and established construction of those 
provisions. In important areas the Amendment is

43



-  10 -

broader than section 1981. The equal protection 
clause forbids discrimination generally; Congress 
expressly considered and rejected proposals
to include such a provision in the 1866 Civil 

2 /Rights Act.—  The Fourteenth Amendment also 
guarantees due process of law and "the privileges 
and immunities of citizens of the United States," 
but section 1981 contains no such protections. On 
the other hand, section 1981 prohibits discrimina­
tion by private parties in a variety of specific 
areas, Runyon v. McCrary, 427 U.S. 160 (1976);
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 
but the Fourteenth Amendment does not. Section 
1981 was originally enacted as part of section 1 
of the 1866 Civil Rights Act to enforce the 
Thirteenth Amendment. Although the 1866 Civil 
Rights Act was subsequently reenacted in 1870 
after the adoption of the Fourteenth Amendment, 
this was done, not to make the Fourteenth Amend­
ment the sole basis of the 1866 Act, but to expand 
the group protected by the Act from "citizens of 
the United States"—  to "all persons within the

2_/ See Cong. Globe, 39th Cong., 1st Sess. , pp. 
1266 (remarks of Rep. Bingham), 1366 (remarks of 
Rep. Wilson).

3] 14 Stat. 27.

44



11

jurisdiction of the United States" in order to
protect aliens, particularly Chinese in Cal-

. 4  /ifornia.—
The most important connection between the 

1866 Civil Rights Act and the Fourteenth Amendment 
is that they were enacted by the same Congress 
only two months apart, and that one of the primary 
purposes of the Amendment was to incorporate 
certain of the guarantees of the Act into the 
Constitution. Hurd v. Hodge, 334 U.S. 24, 32 
(1948). Because both enactments "were expressions 
of the same general congressional policy," id., 
section 1981 should be construed, as to the 
specific subjects to which it applies, at least as 
broadly as the Fourteenth Amendment. But since 
Congress clearly intended that in certain respects 
the statute would be broader than the Fourteenth 
Amendment, limitations as to the scope of the 
Amendment cannot automatically be read into 
section 1981 itself.

4/ Cong. Globe, 41st Cong., 2d Sess., p. 3658. 
Senator Stewart explained that under the bill "We 
will protect Chinese aliens or any other aliens 
whom we allow to come here, and give them a 
hearing in our court; let them sue and be sued; 
let them be protected by all the laws and the same 
laws that other men are." See also id. p. 3807.
The proposal to reenact the 1866 Act was originally 
part of S. No. 865, id. p. 3409, which was 
referred to at the time as "The Chinese bill."
Id. p. 3702 (remarks of Sen. Thurman). 45



12

On the other hand, the 1866 Act in many 
instances cannot be construed simply by referring 
to other civil rights legislation. First, there 
may be several other civil rights statutes cover­
ing the same subject matter which may not set 
identical substantive or procedural standards. In 
the instant case, although Title VII does not 
require proof of discriminatory intent, Title VI, 
which also applies to hiring under certain circum­
stances, may establish a different rule, see 
Regents of University of California v, Bakke, 57 
L . E d . 2d 750, 767-69, 795-803 ( 1978), and the
anti-discrimination provision of the Revenue 
Sharing Act, 31 U.S.C. §1242(a), could have even 
another meaning. Similarly, if a dispute arose as 
to whether the principle of respondeat superior 
should be applied in a section 1981 case, reference 
could be made to 42 U.S.C. §1983, which rejects 
that principle, Monell v. Department of Social 
Services, 56 L.Ed.2d 611, 636-38 (1978), or to
Title VII which applies it.— ^Second, it was the 
clear intent of Congress in adopting Title VII not 
to repeal any pre-existing rights under other 
statutes. Both in 1964 and in 1972 Congress 1 

rejected proposals to make Title VII the exclusive *

5/ See, e.g., Reyes v. Matthews, 428 F.Supp. 
300, 301 (D.D.C. 1976).

46



13

prohibition against employment discrimination.— ^In 
1972 opponents of such a proposal expressly 
referred to the 1866 Civil Rights Act and argued 
that it was needed since "employees are not fully 
protected" by Title VII because of the restric­
tions written into Title VII to assure its pas­
sage In 1964 a Justice Department memorandum 
placed in the Congressional Record by Senator 
Clark stated "[T]itle VII is not intended to and 
does not deny to any individual, rights and
remedies which he may pursue under other Federal

8 /and State Statutes".—  Thus while the ijn pari 
materia rule may be used where it would have a 
possibly expansive impact on section 1981, that 
rule cannot be relied on to read into section 1981 
either the substantive-^- or procedural— ^limita­
tions of Title VII.

6_. See 118 Cong. Rec. 3964-65 (1972); 110 Cong. 
Rec. 13650-52 (1964); Runyon v. McCrary, 427 U.S. 
at 174-75; Alexander v. Gardner-Denver Co., 415 
U.S. 36, 48, n.9 (1974).

JJ 118 Cong. Rec. 3372 (remarks of Sen. 
Williams), 3962 (remarks of Sen. davits).

8 / 110 Cong. Rec. 7207.

9/ See, e.g., 42 U.S.C. §§2000e(b), 2000e-l,
2 0 0 0 e-2 (f), 2 0 0 0 e-2 (h), 2 0 0 0 e-2 (i), 2 0 0 0 e-2 (j).

10/ See, e.g., 42 U.S.C. § §2000e-5(c), 2000e-
5(e), 2000e-5(f), 2000e-5(g).

47



-  14 -

The language of section 1 of the 1866 Civil 
Rights Act does not expressly limit its protec­
tions to cases of intentional discrimination. It 
provides that all "citizens, of every race and 
color, without regard to any previous condition 
of slavery or involuntary servitude ... shall have 
the same right ... to make and enforce contracts 
.... as is enjoyed by white citizens. "— ^Grammati­
cally the references to race and previous servi­
tude merely explain who is included within the 
protection of the statute, not what rights are 
conferred. Cf. McDonald v. Santa Fe Trail Trans­
portation Co. , 427 U.S. 273, 288 ( 1976). Section 
2 of the Act, which clearly did have a particular 
intent requirement, referred to penalties on any 
person "on account of such person having at any 
time been held in a condition of slavery" or "by 
reason of his race or color", but this terminology 
is not used in section 1. Similarly, the phrase 
"because of race or color" was used in section 14

11/ 14 Stat. 27.

48



15

of the Freedmen's Bureau Act of 1866— to indicate 
an intent requirement. The broader language of 
section 1 of the Civil Rights Act was not, we 
suggest, "a mere slip of the legislative pen." 
Jones v. Alfred Mayer Co., 392 U.S. 409, 427
(1968). The reference to the rights actually 
"enjoyed" by whites, instead of a mere requirement 
that there be no express difference in rights, 
contemplates on its face equality in the practical 
consequences of rights. This is consistent with 
Senator Trumbull's assertion when introducing the 
bill that "[t]here is very little importance in 
the general declaration of abstract truths and 
principles unless they can be carried into effect, 
unless the persons who are to be affected by them 
have some means of availing themselves of their 
benefits. ^

The one undisputed goal of Congress in 
enacting the Civil Rights Act was "eliminating the 
infamous Black Codes." Jones v. Alfred Mayer Co., 
392 U.S. 409, 433 (1978). The codes were ex-

12/

12/ 14 Stat. 177.

_13_/ Cong. Globe, 39th Cong., 1st Sess . , 474.

49



16

pressly referred to by both the House-- and
15/Senate—  sponsors of the Act. In responding to 

President Johnson's veto message, Senator Trumbull 
insisted that it was these "oppressive" laws which 
made legislation necessary .-^-^Congres s was thor­
oughly familiar with the details of these Codes; 
they were quoted on the floor and the status of 
legislation in each state was the subject of 
repeated discussions .— ^Congress clearly under­
stood that if the Civil Rights Acts were passed

18/those Codes would be "annulled".—  Accordingly 
the terms and nature of the Black Codes themselves 
are of substantial importance in determining the 
intent of Congress.

The Civil Rights Act guarantees blacks the 
right to "make ... contracts" and Congressman 
Thayer complained that the Black Codes "impair 
[freedmens'] ability to make contracts for labor

14/ Id. pp. 39, 40, 41 (remarks of Rep. Wilson). 

15/ Id. pp. 474, 475 (remarks of Sen. Trumbull). 

16/ Id. p. 1759.

17/ See nn. 14-16, infra ; see also _id. pp. 
1118-19, 1123-25, 1151-53, 1159-60, 1838, 1839.

18/ Id. pp. 39, 40, 41, 111 (remarks of Rep.
Wilson).

14/

50



17

in such a manner as virtually to deprive them of
19/the power of making such contracts."—  None of

the Black Codes, however, literally forbade blacks
from making labor contracts; on the contrary, they
contemplated that such contracts would be made and

20 /frequently required that they be in writing,—  a 
practice encouraged by the Freedmen’s Bureau. The 
provisions of the Codes with which Congress was 
concerned affected freedom of contract in a dif­
ferent manner, and were generally racially neutral 
on their face, though not in their effect. The
provisions most repeatedly objected to by Congress

21 /were the vagrancy laws.—  These statutes defined 
vagrants in such a broad way as to include vir­
tually any adult black who was not gainfully 
employed, and provided that any person convicted 
of vagrancy could be punished by being bound out

19/ Cong. Globe, 39th Cong, 1st Sess., p. 1151.

20/ W. Fleming, Documentary History of Reconstruc­
tion, v . 1, pp. 288 (Mississippi), 299 (South 
Carolina); E. McPherson, Political History of the 
United States of America During The Period Of 
Reconstruction, p. 39 (Florida).

21/ See Cong. Globe, 39th Cong., 1st Sess., pp. 
504 (remarks of Sen. Howard), 1123, 1124 (remarks 
of Rep. Cook), 1151 (remarks of Rep. Thayer), 
1160 (remarks of Rep. Windom).

51



18

to any person for a period of up to one year.—  Of 
the five such laws, however, four contained no 
reference to race, and literally applied to 
whites as well as blacks. In Mississippi the 
general definition of vagrancy applied to every­
one, but the law also deemed as vagrants freedmen, 
regardless of their employment, who were "found 
unlawfully assembling together", but even in that
case whites assembling with the freedmen were

23/also considered vagrants.—
Second in importance to the vagrancy laws

were state laws regulating the terms and condi-
24/tions of employment.-- These provided, inter

alia, that an employee's wages would be forfeited 
if he did not complete the term of his contract, 
that he could be fined by his employer for dis­
obedience, being "absent from home without leave", 
or for injuries to tools and animals. No visitors

22/

22/ McPherson, supra, pp. 30 (Mississippi), 33
(Georgia), 39 (Florida), 41 (Virginia), 43-44 
(Louisiana).

23/ Fleming, supra, p. 284. In addition only
black vagrants could be hired out to earn their
fines. _Id_. p. 285.

24/ See Cong. Rec., 39th Cong., 1st Sess. , 39
(remarks of Rep. Wilson) (provisions of Georgia 
regulations condemned as "degrading and arbitrary").

52



19

could be received during working hours and no
livestock kept without the employer's permis-

2 5 /sion.-- Disobedience by an employee was a
criminal offense, and the employer could have a 
worker whipped for "want of respect and civility

O  £ j
to himself, his family, guests or agents".— 'Most
states made it a crime to induce an employee away
from his job, thus effectively locking him into

2 7/working for his old master-- for at least the
term of each contract, and in South Carolina an
employee could not contract with a new employer
"without production of the discharge of his former

28/master."—  These onerous regulations, in the 
case of South Carolina, Alabama, and Louisiana, 
literally applied to all laborers regardless of 
race; in Mississippi and Florida, on the other 
hand, they applied only to blacks.

25/ See, e.g., McPherson, supra, p. 39 (Florida).

26/ See, e.g., Fleming, supra, p. 3.01 (South 
Carolina).

27/ See, e.g., McPherson, supra, pp. 31 (Missis-
sippi), 34 (Alabama), 40 (Florida), 43 (Louisi­
ana); Fleming, supra, pp. 287-9 (Mississippi), 302 
(South Carolina).

28/ Fleming, supra, p. 30-2.

53



20

Carolina and Mississippi estab- 
apparently harsh rules regarding 
of masters and apprentices, but 
provisions applied regardless of

race
Thus the provisions of the Black Codes which 

restricted the right of freedmen to contract did 
so in most instances in a racially neutral 
manner. Congress, however, had no doubt that 
adoption of the Civil Rights Act would be suffi­
cient by itself to abrogate the Codes. Nothing 
in the legislative history suggests that Congress 
assumed the Codes would remain in effect unless 
and until it was proved at trial that they had 
been adopted to discriminate against blacks; 
indeed, under the then applicable decisions of 
this Court an inquiry into the motives of a 
legislature would have been impermissible. 
Fletcher v. Peck, 6 Cranch. 87, 130 (1810); Ex

29/ Id, pp. 282-83 (Mississippi), 297-99 (South 
Carolina). Mississippi, but not South Carolina, 
authorized local courts to apprentice out black 
children whose parents could not or would not 
support them. South Carolina, but not Missis­
sippi, required that an artisan who needed a 
license to practice his trade must also obtain a 
license for a black, but apparently not a white, 
apprent ice.

Third, South 
lished by statute 
the relationship 
in general these

54



21

parte McCardle, 7 Wall, 506, 514 (1869).— ^To 
the extent that the Thirty-Ninth Congress dis­
cussed the purposes of southern legislatures, it
was concerned with a continued spirit of insur-

31/rection and a desire to preserve s l a v e r y c e r ­
tainly proof of that sort of motivation is not 
required to establish a violation of section 
1981.

The characteristic of the Black Codes which 
placed them squarely within the prohibitions of 
the Civil Rights Act, and which was the central 
reason for congressional action, was that "under 
other names and in other forms a system of in­
voluntary servitude [was] perpetuated over this

32/unfortunate race."— The social conditions

30_/ This rule was adhered to as recently as 
Palmer v. Thompson, 403 U.S. 217, 224-25 (1971). 
Although Palmer indicates, and Washington v. 
Davis, 426 U.S. 229 (1976), holds that an inquiry 
into legislative motive may be necessary, and 
hence permissible, under the Fourteenth Amendment, 
that Amendment was not ratified until two years 
after passage of the 1866 Civil Rights Act.

31/ Id., pp. 1839 (remarks of Sen. Clarke), 1785 
(remarks of Sen. Stewart).

32/ _Id_. , p. 1124 (remarks of Rep. Cook) (Emphas is
added ) .

55



22

extant before the adoption of the Thirteenth
Amendment were "perpetuated" in two senses.
First, the restrictions in fact suffered by
blacks were similar if not identical to those
imposed in an expressly racial manner by the old 

33/slave codes.—  Second, the racially neutral 
provisions of the then Black Codes bore primarily 
on blacks because of the social and economic 
consequences of the recently ended discriminatory 
laws and economic system of the slave states. 
Thus Senator Clarke asserted the Codes would 
"virtually make serfs of the persons that the

O / /
constitutional amendment made free".— 'Repre­
sentative Thayer felt the Codes would "retain 
[freedmen] in a state of real servitude".— ■' Rep­
resentative Cook urged the Codes would "virtually

3 6 /reenslave" the blacks,—  and Representative
Wilson felt that under them blacks were "prac- 

3 7/tically slaves".—  Since Congress was con-

33/ Id • P . 474 (remarks of Sen. Trumbull)

34/ Id. P- 1839.

35/ Id. P- 1151.

36/ Id. p. 1124.

56 37/ Id. p. 41.



23

cerned with the practical consequences of the 
Black Codes, it naturally regarded the vagrancy 
and labor regulation laws, whose harsh impact fell 
primarily on former slaves, as depriving them of 
"the same right ... to make and enforce contracts 
... as is enjoyed by white citizens."

The other rights with which the Civil Rights 
Act was concerned were generally dealt with by the 
southern states, if at all, in an expressly 
racial manner, but these provisions were less 
common and of less practical importance than the 
labor and vagrancy portions of the Black Codes. 
No example was cited during the debates of a Black 
Code which limited the right of freedmen to sue 
and be parties; this clause appears to have been 
added because there were such restrictions in the
old Slave Codes,--'but the Black Codes that
mention the right to sue and be sued all expressly

_38/ Senator Sherman urged that this r 
protected because a man would not "be free 
the right to sue and be sued, to plead 
impleaded." Cong. Globe, 39th Cong., Is

ight be 
without 
and be 

t Sess.

57



24

39/ . .gave that right to blacks.—  No limitations 
appear to have existed with regard to personal 
property. The limitations on the ownership of 
real property were expressly racial, but so
far as we have been able to ascertain these

40 /existed only in Mississippi—  and certain local­
ities within Louisiana. 41/ In general state
laws provided for the same criminal penalties for
blacks and whites, 42/ except that the rape of a
white woman by a black man was often the subject

43/ .of a heavier penalty.— Those Codes dealing with 
testimony by freedmen either allowed it in all

39/ McPherson, supra pp. 29 (North Carolina), 31 
(Mississippi), 321 (Georgia), 33 (Alabama), 34 
(South Carolina), 42 (Tennessee), 43 (Texas); 
Fleming, supra, p. 274 (Arkansas).

40/ McPherson, supra, p.

41 / McPherson, supra, 
Landry); W. Fleming, 
Reconstruction, p. 31 (tc 
after cited as "Documents

31.

p. 279 (parish of St. 
Documents Relating to 
)wn of Opelousas)(herein- 
").

42/ McPherson, supra, p. 33 (Georgia); Fleming, 
supra, pp. 289 (Mississippi), 293 (North Carolina)

43/ Fleming, supra, p. 293 (North Carolina); 
McPherson, supra, p. 34 (South Carolina).

58



-  25

cases— 'or in any case where a black was a party
45 /or had an interest.  On the other hand, the

Black Codes contained numerous other forms of 
expressly racial discrimination which were not dealt
with by the Civil Rights Act, including prohibi-

, . 46/ ... -tions against blacks owning guns,—  co-habiting
47/ . • . 48/with whites,—  attending white public schools,—
• • 49/ , . 50/_, ...serving on juries-- and voting.—  Thus while

the Civil Rights Act clearly prohibited inten­
tional racial discrimination in the areas with 
which it was concerned, the greatest practical 
impact of nullifying the Black Codes, as Congress

44/ Fleming, supra, pp. 274 (Arkansas), 275
(Alabama); McPherson, supra, p. 42 (Tennessee).

45/ McPherson, supra, p. 29 (North Carolina);
Fleming, supra, pp. 287 (Mississippi), 293 North 
Carolina), 311 (Texas).

46/ Fleming, supra, p. 289 (Mississippi).

47/ Id. pp. 273, 274 (Alabama), 288 (Mississippi).

48/ Id. pp. 275 (Arkansas), 277-78 (Florida), 311 
(Tennessee), 312 (Texas).

49/ Id. pp. 275 (Arkansas), 311 (Tennessee). 

50/ Id. p. 275 (Arkansas).

59



26

must have been aware, was the elimination of the 
provisions on labor and vagrancy, often racially 
neutral on their face, which had the effect of 
perpetuating the inferior status to which black 
workers had earlier been consigned because of 
their race.

This construction of the 1866 Act is con­
firmed by the responses to the Black Codes of 
the military officials in charge of the union 
forces then occupying the south. With the knowl­
edge and approval of the Thirty-Ninth Congress, 
commanding generals annulled provisions of the 
Black Codes in Mississippi, Virginia, Alabama, 
North Carolina and South Carol ina This
action was not limited to the expressly racial 
provisions of those Codes; in South Carolina, for 
example, General Sickles' orders invalidated the 
racially neutral provisions of the state's laws 
which punished as vagrants people who could not 
find work, authorized corporal punishment for 
disobedient employees, and precluded workers from 
taking a new job without the approval of their * 111

51/ Cong. Globe, 39th Cong., 1st Sess., pp. 39,
111, 603 (remarks of Rep. Wilson), 1123 (remarks 
of Rep. Cook).

60



27

52/ . .former employer.—  In striking down the Virginia
vagrancy law, General Terry, in an explanation
quoted in part by Senator Trumbull during the

53/debates on the Civil Rights Act,.— -made no 
reference to the motives of the legislature, but 
considered only the fact that "[t]he ultimate 
effect of the statute will be to reduce the 
freedmen to a condition of servitude worse than 
that from which they have been emancipated —  a 
condition which will be slavery in all but its

52/ McPherson, supra, pp. 36-37, 1IIV, XIII, XVII.

53/ Cong. Globe, 39th Gong., 1st Sess., p. 1759.

54/ This is the passage quoted by Senator 
Trumbull. The more detailed explanation which 
preceded was as follows: "In many counties of
this State meetings of employers have been held, 
and unjust and wrongful combinations have been 
entered into for the purpose of depressing the 
wages of the freedmen below the real value of 
their labor, far below the prices formerly paid by 
masters for labor performed by their slaves. By 
reason of these combinations wages utterly in­
adequate to the support of themselves and families 
have, in many places, become the usual and common 
wages of the freedmen. The effect of the statute 
in question will be, therefore, to compel the 
freedmen, under penalty of punishment as criminals, 
to accept and labor for the wages established by

61



28

It is thus clear that Congress did not intend 
that the prohibition of the 1866 Civil Rights Act 
be limited to instances where racial motive could 
be proven, but was concerned about whether the 
consequence of a particular law or practice was to 
render blacks significantly less able to enjoy the 
rights exercised by whites. This Court need not 
in this case decide all possible legal questions 
which might arise from this aspect of the Act. It 
is sufficient for the disposition of this case to 
hold that a practice which prevents such equal 
enjoyment by perpetuating past intentional dis­
crimination is forbidden by section 1981. That 
was clearly the impact of the Black Codes, for 
their readily perceived coercive effect on blacks, 
and relatively minor effect on whites, derived 
from the drastically different social, economic 
and educational status of black and white workers,

54/ Cont'd .

these combinations of employers. It places them 
wholly in the power of their employers, and it 
is easy to foresee that, even where no such combina­
tion now exists, the temptation to form them 
offered by the statute will be too strong to be 
resisted, and that such inadequate wages will 
become the common and usual wages throughout the 
State." McPherson, supra, p. 42.

62



29

which was in turn rooted in a century of slavery 
and discrimination.

This construction of section 1981 accords 
with the established construction of the Four­
teenth Amendment. This Court has repeatedly held 
that neutral state practices which perpetuate the 
effects of past intentional discrimination are 
themselves unlawful. A school board which 
earlier assigned students on the basis of race 
remains in violation of the Constitution if it 
adopts a policy of reassigning students each year 
to the school they attended previously, subject 
only to a transfer procedure whose burdens 
are so great as to lock students into their 
original school. Green v. School Board of
New Kent County, 391 U.S. 430 (1968). A geo­
graphic assignment plan that "appears to be 
neutral is unlawful if it maintains in opera­
tion "the continuing effects of past school 
segregation." Swann v. Charlotte-Mecklenburg 
Board of Ed., 402 U.S 1, 28 (1971). So long as a 
past act of intentional discrimination caused the 
present assignment of a worker or student, 
the "remoteness in time" of the past inten­
tional conduct is irrelevant to the legality 
of present practices which perpetuate its impact.

63



-  30 -

Keyes v. School District No. 1 , 413 U.S. 189, 
210-211 (1973). A state which in an earlier
period refused to permit blacks to register to 
vote cannot thereafter adopt a "neutral" policy of 
prohibiting registration now by persons who failed 
to register during that earlier' time. Lane v . 
Wilson, 307 U.S. 265 (1939). See also Moose Lodge 
No. 107 v. Irvis, 407 U.S. 163, 178-79 (1972). So 
long as a state practice perpetuates the effect of 
past discrimination the state is in violation of 
the Constitution, regardless of whether that 
practice was adopted in good faith.

The application of written tests such as 
those administered by petitioners will operate to 
differentiate among applicants not primarily, if 
at all, on the basis of their innate ability, 
but also, and perhaps solely on the basis of the 
education which they have received. In Gaston 
County v. United States, 395 U.S. 285 (1969), this 
Court recognized that as a practical matter "among 
black children compelled to endure a segregated 
and inferior education, fewer will achieve any 
given degree of literacy than will their better 
educated white contemporaries." 395 U.S. at 295.

64



31

Gaston County drew that inference where the 
examination involved tested mere literacy; the 
quality of an applicant's education is of far 
greater importance where, as here, the examination 
tests more complex verbal and mathematical skills. 
If black and Mexican-American applicants were 
denied equal educational opportunities while 
young, the "[i]mpartial administration of the ... 
test today would serve only to perpetuate these 
inequities in a different form." 395 U.S. at 297. 
Practices which thus perpetuated the effect of 
past discrimination in education would have been 
particularly obnoxious to the Congress which 
enacted the Fourteenth Amendment and the 1866 
Civil Rights Act; that Congress was fully aware of 
the fact that prior to the Civil War the Slave 
Codes of most states forbade teaching slaves, and 
in some cases even freedmen, to read and write, 
and that similar prohibitions were still in effect 
in 1866. Brown v. Board of Education, 347 U.S 
483, 490 (1954).— /

5_5/ Cong. Globe, 39th Cong., 1st Sess., pp. 39 
(remarks of Rep. Wilson), 474 (remarks of Sen. 
Trumbull. Prior to the Civil War, teachers were 
actually jailed, for instructing black children to 
read. H. Commager, Documents of American History, 
pp. 327-29 (7th Ed.). After the Civil War the Ku 
Klux Klan threatened and murdered northerners who

65



32

Petitioners' written examinations perpetuate 
the discriminatory effect of a century of purpose­
ful racial segregation of California public 
schools. See Regents of University of California 
v. Bakke, 57 L.Ed.2d 750, 822 (opinion of Justices 
Brennan, White, Marshall and B1ackmun) ( 1 9 7 8 )  . 
Soon after the first public "colored school" was 
opened in San Francisco for black children, 
California's education law was expressly amended
in 1860 to authorize separate schools for "Negroes,

5 6/Mongolians and Indians."-- This statute was
5 7 /repealed m  1880,—  following the closing of

many of the separate black schools for reasons of 
5 8/economy,—  but was replaced in 1885 by a new * 14

55/ Cont'd .

had the effrontery to teach southern blacks. See 
Cong. Globe, 39th Cong., 1st Sess., p. 1834 
(remarks of Rep. Lawrence); H. Swint, The Northern 
Teacher in the South, 1862-1870, pp. 94-142; W. 
Fleming, Documentary History of Reconstruction, 
v .2, pp. 203-206.

56/ 1860 Cal. Stats., c.329, §8; see also 1863
Cal. Stats., c.159, §68.

57/ General School Law of California, §1662 at
14 (1880).

66

58/ C. Wollenberg, All Deliberate Speed, Segrega­
tion and Exclusion in California Schools 1855-1975, 
pp. 24-26 (1976).



-  33 -

statute authorizing segregated schools for Chi­
nese, and later Japanese, Mongolian and Indian 

59 /children.—  The state Attorney General subse­
quently issued an opinion that Mexican-Americans 
were Indians, and they were thus covered by this 
legislation— ;̂ despite the absence of express 
statutory authorization for excluding black 
children from white schools the systematic segre­
gation of blacks continued.—  ̂ The state segre­
gation laws were not repealed until 1947, but 
despite that step, and notwithstanding this 
Court's decision in Brown v. Board of Educa­
tion, California authorities continued to inten­
tionally exclude black and Mexican-American chil­
dren from white public schools. Within the last 
decade 20 major school districts in California, 23

59/ 1885 Cal. Stats., c.117, §1602 (Chinese);
1893 Cal. Stats., c.193, §1662 (Indians); 1921 Cal. 
Stats., c.685, §1 (Japanese).

60/ 22 California Department of Justice, Opinions
of the Attorney General, Opinion 6735a (January
23, 1930), 931-32 (1930). See also J. Hendrick, 
The Education of Non-Whites in California, 1849- 
1970, p. 87 (1977).

61/ See Hendrick, supra, at 78-80, 98-100.

67



-  34 -

including Los Angeles,—  have been found to
be in violation of federal or state prohibitions
against discrimination.--'About half of all
black and Mexican-American students attending
public schools in California in 1970 were in

64/districts operating such segregated schools.—  The
deleterious impact on minority students of this
dual system, which Justice Douglas properly
characterized as a "classic case of [the] de
jure segregation involved in Brown v. Board of 

6 5/Education,"— 'has been conceded by state of fi-

6 2 /

62/ See Kelsey v. Weinberger, 498 F.2d 701, 704, 
n.19 (D.C. Cir. 1974); Crawford v. Board of
Education, 17 Cal. 3d 280, 130 Cal. Rptr. 724, 551 
P. 2d 28 (1976).

63/ See Brief Amicus Curiae for the NAACP Legal 
Defense and Educational Fund, Inc., in No. 76- 
811, Regents of University of California v . 
Bakke, pp. 13a-15a.

64/ Id., p . 15a.

65/ Guey Heung Lee v. Johnson, 404 U.S 1215, 
1215-16 (1971).

66/ See, e.g., Governor's Commission on the Los 
Angeles Riots, Violence in the City, pp. 49 et

68



35

In addition, of black men in California 
between the ages of 21 and 29, the age limits for 
eligibility to take the disputed examination, 50%
were born in the south .-^-^The intransigent re-
fusal of southern school authorities to comply
with Brown is well known; voluntary action was
rare , and not until after Alexander v. Holmes
County Board of Education, 396 U.S. 19 (1969), did 
the federal courts achieve meaningful desegrega­
tion in a substantial number of southern school 
systems. Black students assigned to black schools 
in the south suffered not only because of segrega­
tion as such, but also because black schools 
provided in other ways as well an education far 
inferior to that afforded whites in the same 
states or elsewhere in the country. In the black 
schools there was generally a higher pupil-teacher

66/ Cont'd.

seq. (1965); California Legislative Assembly 
Permanent Subcommittee on Post Secondary Educa­
tion, Unequal Access to College (1975). See also 
United States Commission on Civil Rights, Mexican- 
American Education Study, Reports I-VI (1971—74).

67/ U.S. Bureau of the Census, 1970 Census of 
Population, Series PC(2)-2A, State of Birth, p. 
156.

69



-  36

ratio and lower per capita expenditures, the 
teachers were less well trained and had lower 
salaries, the physical facilities were frequently 
inferior, and in some cases the academic year was 
shorter.—

We think it unlikely that in adopting the 
1866 Civil Rights Act forbidding state practices 
which perpetuate the effect of past discrimination 
Congress intended that the Act would not protect 
an ex-slave from Virginia if he moved to Georgia. 
Such a distinction would have had the incongruous 
effect of forbidding states to apply their vagrancy 
laws to their own natives, but permitting the 
states to apply those laws to former slaves from

68/ State by state statistics on each of these 
factors were set forth in the Intervenors' State­
ment Of Material Facts As To Which There Is No 
Genuine Issue in New York v. United States, No. 
2419-71, D.D.C.. Judgment in favor of the interve­
nors in that case, which involved the applica­
bility to certain New York counties of the Voting 
Rights Act of 1965, was affirmed by this Court.
419 U.S. (1974) Some of these statistics
are reproduced in the Motion of Plaintiffs-Inter-
venors To Affirm, No. 73-1740, pp. la-31a.

70



37

6 9/other states.  It also would have tended to
discourage ex-slaves from moving away from their 
former masters, one of the primary goals of the 
Black Codes which Congress deplored. We therefore 
suggest that the 1866 Civil Rights Act forbids Los 
Angeles from using a non job-related test which 
perpetuates the effect of past discrimination 
regardless of whether that- discrimination occurred 
in California or some other state.

_69/ General Terry's decision to annul the Virgi­
nia vagrancy laws was premised on the fact that it 
would have an adverse impact on freedmen due, not 
to any past discrimination by Virginia, but to 
"wrongful combinations" by private employers to 
reduce wages. See n.54, supra. Congressman Windom 
expressed a similar concern with such private 
conspiracies, arguing they provided a reason for 
adopting the Civil Rights Act and annulling the 
Black Codes. Cong. Globe., 39th Cong., 1st Sess., 
p. 1160.

71



38

CONCLUSION

For 
court of

the foregoing reasons the judgment of the 
appeals should be affirmed.

JACK GREENBERG
0. PETER SHERWOOD 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus

72



In the

(Emtrl of %  Inttei Stales
October Term, 1977 

No. 77-1553

County of L os A ngeles, et al., 

— v . —
Petitioners,

V an Davis, et al.,
Respondents.

ON W R IT  OF CERTIORARI TO T H E  U N ITE D  STATES COURT OF APPEALS 
FOR T H E  N IN T H  CIRCUIT

BRIEF OF THE
AMERICAN CIVIL LIBERTIES UNION 

AND THE ACLU OF SOUTHERN CALIFORNIA 
AMICI CURIAE

Paul H offman
One Wilshire Building 
Suite 1600
Los Angeles, California 
90017
Of Counsel

Bruce J. E nnis 
Burt Neuborne 
E. R ichard L arson

American Civil Liberties 
Union Foundation 

22 East 40th Street- 
New York, New York 10016

F red Okrand
ACLU  o f Southern California 
633 South Shatto Place 
Los Angeles, California 90005

Attorneys for Amici Curiae

73





T A B L E  O F  C O N T E N T S

Page 
, 1Interest of the Amici. ............

Introduction and Summary of Argument ........  4
ARGUMENT ....................  . . . . . . . .  9
A. The 39th Congress, in Seeking to Remove 

the Badges and Incidents of Slavery from 
Freedmen, Did Not Impose a Requirement 
of Proof of Scienter upon Plaintiffs 
Challenging Racially Discriminatory 
Employment Practices Pursuant to 42 
U.S.C. §1981. . . . . . . . .  ..........  9
1. The Language of 42 U.S.C. §1981 

Compels the Conclusion that Proof 
of Scienter Is Not Required. . . . .12

2. The Legislative History of the 
Civil Rights Act of 1866 Rein­
forces the Absence of an Intent 
to Discriminate Requirement in
42 U.S.C. §1981.................... 15

3. There Is No Contemporary Rationale 
for Imposing a Scienter Requirement
on 42 U.S.C. §1981................ 21

B. Assuming Arguendo that 42 U.S.C. §1981 
Requires Proof of Scienter, Plaintiffs 
Have Overwhelmingly Established 
Scienter as a Matter of L a w ........ .. .24 1
1. Plaintiffs Established a Racially 

Discriminatory Purpose as a 
Matter of Law. . . . . . . . . . . .  26

- 1 - 75



Page

a. The Racial Imbalance of 
Defendants' Workforce, and 
the Discriminatory Impact of 
the 1972 Written Test Are 
Unexplainable on Grounds
Other than Race . . . . . . .  .28

b. The Historical Background of
Defendants' Hiring Practices 
Also Reveals Discriminatory 
Purpose........ .. 31

c. Defendants' Departure from
Normal Procedures Further 
Proves Improper Discrimina­
tory Purpose.................. 33

2. Plaintiffs Established a Suffi­
ciently Culpable Mental State to 
Justify Liability and Prospective 
Relief . . . . . .  ........  . . .  .36

3. The District Court Erred in Allo­
cating the Burden of Proof on the
'Issue of Scienter.................. 41

a. The Nature of Plaintiffs'
Production Burden............ 45

b . The Nature of Defendants'
Persuasion Burden............ 46

c. Castaneda v. Partida is an
Example of the Proper Allo­
cation of Burdens of Proof. . .47

d. Defendants Failed, as a 
Matter of Law, To Satisfy a 
Persuasion Burden on the
Issue of Scienter............ 49

76 - l i -



Page

C. The Affirmative Hiring Order Imposed To 
Remedy Defendants' Past Discrimination 
Is Constitutionally Permissible If Not 
Constitutionally Required . . . . . . .  .53

CONCLUSION ..................... ..............62

TABLE OF AUTHORITIES
Cases:
Albemarle Paper Co. v. Moody, 422 U.S.
407 (1975).................................. 14
Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1977) . .passim
Associated General Contractors of 
Massachusetts, Inc. v. Altschuler, 490 
F.2d 9 (1st Cir. 1973), cert, denied,
416 U.S. 957 (1974)..................  .54,56,57
Boston Chapter, NAACP, Inc. v. Beecher,
504 F.2d 1017 (1st Cir. 1974), cert.
denied, 421 U.S. 910 (1975).................... 54
Bradley v. Milliken, 484 F.2d 215 (6th
Cir. 1973), aff'd in relevant part, 418
U.S. 717 (1974)..............................39
Bridgeport Guardians, Inc. v. Bridgeport 
Civil Service Commission, 482 F.2d 1333 
(2d Cir. 1973).........................53,55,60
Carter v. Gallagher, 452 F .2d 327 (8th 
Cir.) (en banc), cert, denied/ 406 U.S.
950 (1972)..............................  54,56



Page

Castaneda v. Partida, 430 U.S. 482 (1977). passim
Contractors Association of Eastern Pa.
v. Secretary of Labor, 442 F.2d 159 (3d
Cir.), cert, denied, 404 U.S. 854 (1971).55,56,57
Crockett v. Green, 534 F.2d 715 (7th
Cir. 1976) . . . .  ............................. 56
Davis v. United States, 160 U.S. 469 (1895). 41,45
Dothard v. Rawlinson, 433 U.S. 321 (1977)...14,33
EEOC v. Detroit Edison Co., 515 F.2d 301 
(6th Cir. 1975) vac'd and rem'd on other 
grounds, 431 U.S. 951 (1977)..................  55
Erie Human Relations Commission v. Tullio,
493 F . 2d 371 (3d Cir. 1974).............. .. . 55
Ernst & Ernst v. Hochfelder, 425 U.S. 185 
(1976). ...................     21,37,38
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). . .10
Franks v. Bowman Transportation Co., 424
U.S. 747 (1976)........................   .53
Fullilove v. Kreps, F.2d (2d Cir.,
Sept. 22 , 1978) (No. 78-6011) . ............... 58
Griggs v. Duke Power Co., 401 U.S. 424 
(1971).................. ................... passim
Hazelwood School District v. United
States, 433 U.S. 299 (1977)...........  .29
Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964).....................10

78 -IV-



In re Winship, 397 U.S. 358 (1969)........ 42,44
International Brotherhood of Teamsters 
v. United States, 431 U.S. 324 (1977) . 28,29,60
Johnson v. Railway Express Agency, Inc.,
421 U.S. 454 (1975)....................  5,9,10
Jones v. Alfred H. Mayer Co., 392 U.S.
409 (1968)............ ..................passim
Katzenbach v. Morgan, 384 U.S. 641 (1966) . . 10
Local 53, Asbestos Workers v. Vogler,
407 F. 2d 1047 (5th Cir. 1969)........ .. 55
Louisiana v. United States, 380 U.S. 145,
(1965)..................................... 53,61
McDonald v. Santa Fe Trail Transportation
Co., 427 U.S. 273 (1976)................5,12,13
Monroe v. Pape, 365 U.S. 167 (1961) . . . .38,46
Morgan v. Kerrigan, 509 F.2d 580 (1st
Cir. 1974), cert. denied, 421 U.S. 963
(1975). . . . . .  ........................  .39
Morrow v. Crisler, 491 F.2d 1053 (5th 
Cir. 1974) (en banc), cert, denied,
419 U.S. 895 (1974) . . . . . . . . . . . . .  55
Morrow v. Dillard, F.2d ,47
U.S.L.W. 2233 (5th Cir., Sept. 29, 1978). .59,60
Mullaney v. Wilbur, 421 U.S. 624 (1975) . . .  42
NAACP v. Allen, 493 F.2d 614 (5th Cir.1974)..............  55

Page

-v- 79



Page

Oliver v. Michigan State Board of
Education, 508 F .2d 178 (6th Cir. 1974),
cert, denied, 421 U.S. 963 (1975)..........  39
Patterson v. New York, 432 U.S.197 (1977). .42,44
Regents of the University of California, 
v. Bakke, 57 L.Ed.2d 750 (1978) . . . . . passim
Rios v. Enterprise Association Steam- 
fitters Local 638, 501 F.2d 622 (2d 
Cir. 1974) ........................... .. .
Runyon v. McCrary, 427 U.S. 160 (1976). . 5,9,10
Screws v. United States, 325 U.S. 91 (1945) . 43
SEC v. Universal Major Industries Corp.,
546 F . 2d 1044 (2d Cir. 1976)................  37
SEC v. World Radio Mission, Inc., 544 
F .2d 535 (1st Cir. 1976)................ .23,38
Sherill v. J.P. Stevens & Co., 551 F.2d 
308 (4th Cir. 1977) .................... . . 55
Sims v. Local 65, Sheet Metal Workers,
489 F.2d 1023 (6th Cir. 1973) .......... . . 56
South Carolina v. Katzenbach, 383 U.S.
301 (1966) ............................... . . 10
Southern Illinois Builders Association 
v. Ogilvie, 471 F .2d 680 (7th Cir. 1972). . . 56
Sullivan v. Little Hunting Park, 396 
U.S. 229 (1969) . . . . . .  ............ . 6,10
Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971)............

80
. . 53

-vi-



Page
Tillman v. Wheaton-Haven Recreational 
Association, 410 U.S. 431 (1973).......... 6,10
United States v. Chicago, 549 F.2d 415 
(7th Cir. 1977), cert, denied, 434 U.S.
875 (1978)............ ...................
United States v. Feinberg, 140 F .2d 592 
(2d Cir. 1944)............................ . 45
United States v. Ironworkers Local 86,
443 F.2d 544 (9th Cir.), cert, denied,
404 U.S. 984 (1971) ...................... . 56
United States v. Local 39, IBEW, 428 
F.2d 144 (6th Cir.), cert, denied,
400 U.S. 943 (1970) . . .................. . 56
United States v. Local 212, IBEW,
472 F.2d 634 (6th Cir. 1973). . . . . . . . . 56
United States v. Masonry Contractors 
Association, 497 F.2d 871 (6th Cir. 1974) . . 55
United States v. Melillo, 275 F.Supp.
314 (E.D.N.Y. 1967) . . . . . . . . . . . . . 45
United States v. N.L. Industries, Inc.,
479 F.2d 354 (8th Cir. 1973). . . . . . . . . 56
United States v. Price, 383 U.S. 787 (1966) . 13
United States v. School District of Omaha, 
521 F.2d 530 (8th Cir.), cert, denied,
423 U.S. 946 (1975).................. .. . . 39
United States v. Taylor, 464 F.2d 240
(2d Cir. 1 9 72 ) . . . .  .................... . 45
United States v. Texas Educational
Agency, 564 F.2d 162 (5th Cir. 1977). . . .39,46

81
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United States v. United States Gypsum Co.,
333 U.S. 364 (1948)......................... 25
United States v. Wood Lathers Local 46,
471 F.2d 408 (2d Cir.), cert, denied,
412 U.S. 939 (1973)......................... 55
Washington v. Davis, 426 U.S. 229 (1976). passim
Wood v. Strickland, 420 U.S. 308 (1975).21,23,37

Constitutional Amendments:
Amend. 13 ....................  . . . . .  passim
Amend. 1 4 .......... .................... passim

Statutes: * 42
Civil Rights Act of 1866................ passim

42 U.S.C. §1981. . ................ passim
Civil Rights Act of 1871. . . . . . . . .  passim

42 U.S.C. §1983.............   passim
Title VII of the Civil Rights Act
of 1964 . . . . . . .    passim

§703 (h)....................   13
§703 ..................................... 29
§706 (g).     .14

Page

82
- v i i i -



Page

Legislative History:
Cong. Globe, 39th Cong., 1st Sess. . . . passim

at 43. ... ........  16
at 4 5................................... 16
at 129 ............. . .................16
at 474 ...........   16
at 599 ................................ 17
at 603 ...........    17
at 604 ................................  17
at 606-607 .......................   17
at 1124..............   18,19,20
at 1151..............     18,19
at 1679. . .............................  20
at 1809 . ...............................  20
at 1833. . ............   19
at 1861. ................................20

Treatises and Articles:
Cleary, Presuming and Pleading: An Essay 
on Juristic Immaturity, 12 Stan.L.Rev. 5 
(1959) . ................................... . 42
James, Burdens of Proof, 49 Va.L.Rev. 51 (1961). . .................................41,42
McBain, Burden of Proof: Degrees of
Belief, 32 Cal. L. Rev. 242 (1944) ............. 43
McNaughten, Burden of Production of 
Evidence: A Function of a Burden of 
Persuasion, 68 Harv.L.Rev. 1382 (1955). . . .  45
Morse, Evidentiary Lexicology, 59
Dick.L.Rev. 86 (1954).............. .. 44

- i x -  83



Michael and Wechsler, A Rationale of the
Law of Homicide, 37 Col.L.Rev. 701 (1937) . . 38
Perkins, The Criminal Law 61 (1957)........  38
J. Thayer, A Preliminary Treatise on
Evidence at the Common Law, 355-59 (1898) . . 41
Underwood, The Thumb on the Scale of
Justice: Burdens of Persuasion in
Criminal Cases, 86 Yale L.J. 1299 (1977). .43,44
Wechsler, Codification of the Criminal
Law in the United States: The Model
Penal Code, 68 Col.L.Rev. 1425 (1968) . . . .  38

Page

84 - x -



IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1977 
No. 77-1553

COUNTY OF LOS ANGELES, et al.,
Petitioners,

-v-
VAN DAVIS, et al.,

Respondents,

On Writ of Certiorari to the 
United States Court of Appeals 

for the Ninth Circuit

BRIEF OF THE
AMERICAN CIVIL LIBERTIES UNION 

AND THE ACLU OF SOUTHERN CALIFORNIA 
AMICI CURIAE

Interest of the Amici*
The American Civil Liberties Union is a 

nationwide, nonpartisan organization of over 
200,000 members dedicated to defending the

* The parties have consented to the filing of this brief, 
and their letters of consent have been filed with the Clerk 
of the Court pursuant to Rule 42(2) of the Rules of this 
Court.

- 1 - 85



fundamental civil rights and civil liberties of 
the people of the United States. The ACLU of 
Southern California is the ACLU's regional 
affiliate for Southern California.

Central among the fundamental rights and 
liberties guaranteed by our Constitution is the 
right not to be discriminated against on grounds 
of race or color. Because of the crucial impor­
tance of this long neglected and frequently 
subverted right in a free society, the ACLU, in 
a variety of cases before this Court and before 
numerous other tribunals, has defended the rights 
of those who have been discriminated against.

In such cases, the ACLU has consistently 
argued that Congress is empowered to enact broad 
legislation outlawing all forms of racial dis­
crimination, whether racially motivated or not; 
that persons discriminated against should not 
be required to bear onerous burdens in proving 
scienter where it serves no justifiable purpose 
and where such a requirement merely facilitates 
and encourages retention of discriminatory 
practices which have no countervailing benefit 
whatsoever to an identified defendant or to 
society at large; and that affirmative remedial 
relief is constitutionally permissible if not 
equitably necessary to remedy the continuing

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86



The issues in this case encompass each of 
these three conerns. Amici submit that Congress 
not only was empowered to but actually did enact 
legislation in the form of the Civil Rights Act 
of 1866 to prohibit all enumerated forms of 
racial discrimination regardless of whether that 
discrimination was motivated by an intent to 
discriminate. Amici also submit, in the event 
that this Court engrafts a scienter requirement 
which does not appear on the face of the statute 
and which is contrary to the legislative history 
of the 39th Congress, that plaintiffs in a §1981 
case could be required to bear no more than a 
burden of producing evidence of deliberate dis­
regard, and that plaintiffs here not only have 
met such a burden of production but also have 
satisfied a burden of persuasion despite the 
fact that such a burden is not theirs. Finally, 
Amici submit that, on the extensive evidence in 
the record before the trial court, the affirma­
tive numerical hiring relief ordered by that 
court was constitutionally permissible as well 
as equitably required in order to remedy the 
pervasive effects of defendants' past discrimi­
nation against racial minorities.

e f f e c t s  o f  p a s t  and p r e s e n t  r a c i a l  d is c r im in a t io n

a g a in s t  m in o r i t ie s  who c o n tin u e  to  be d e n ie d  th e

b e n e f i t s  o f  e q u a l i t y  in  a f r e e  s o c i e t y .

- 3 - 87



I N T R O D U C T I O N  A N D  S U M M A R Y  O F  A R G U M E N T

The facts in this, case pertaining to defen­
dants' discriminatory employment practices for 
the most part are undisputed. "Despite a minor­
ity population of approximately 29.1% in Los 
Angeles County, only 3.3% of the firemen employed 
by the defendants at time of trial were black or 
Mexican-American. " Davis v. County of Los Angeles, 
556 F.2d 1334, 1337 (9th Cir. 1977). This result 
was accomplished through the use of unvalidated 
written tests which not only had a severely 
discriminatory impact, 556 F.2d at 1337, but 
also were known by defendants to have a discrim­
inatory impact. (PI.Ex.7,8,9; R.T.48-49)* This 
result also was accomplished, inter alia, through 
the use of a non job related 5'7" minimum height 
requirement which excluded 41% of the otherwise 
eligible Mexican-American applicants, 556 F.2d 
at 1341-1342, through the conduct of application 
programs designed to assist whites but not 
minorities to apply (R.T.91-113), through the 
temporary loss of the names of 300 minorities 
who wanted to apply (R.T.187-188), and through

* The citations to the record below, which has been lodged 
with this Court, are as follows: "PI.Ex." refers to
plaintiffs' exhibits; "R.T." means the recorded transcript; 
"R." refers to other portions of the record below.

88 - 4-



the maintenance of a discriminatory reputation 
in the minority community (R.T.52,134,194).

Defendants for the most part do not contest 
these facts. But they do argue that 42 U.S.C. 
§1981 should not be interpreted, as the 39th 
Congress intended, to prohibit all enumerated 
forms of racial discrimination; they appear to 
argue that §1981 should be engrafted with a 
scienter requirement so onerous that their 
knowing use of discriminatory practices could 
not be proven unlawful under §1981; and they 
contend that the trial court exceeded its broad 
equitable authority by imposing affirmative 
relief to remedy their extensive past discrimi­
nation against blacks and Mexican-Americans.
Amici believe that defendants are wrong on all 
counts.

A. Defendants first misconstrue the 
breadth and intent of 42 U.S.C. §1981, a statute 
which never has been curtailed or given a 
mechanical reading by this Court but which 
instead has been accorded "a sweep as broad as 
its language." Jones v. Alfred H. Mayer Co.,
392 U.S. 409, 437 (1968); See also, McDonald v. 
Santa Fe Trail Transportation Co., 427 U.S. 273
(1976); Runyon v. McCrary, 427 U.S. 160 (1976); 
Johnson v. Railway Express Agency, Inc., 421 U.S.

- 5 -

89



454 (1975); Tillman v. Wheaton-Haven Recreational 
Association, 410 U.S. 431 (1973); Sullivan v. 
Little Hunting Park, 396 U.S. 229 (1969). Its 
language, on its face, embodies no scienter 
requirement. Engrafting one now would be 
entirely inconsistent with this Court's inter­
pretation of Title VII which on its face appears 
to require proof of intent to discriminate but 
which has been construed not to require proof 
of such intent. Griggs v. Duke Power Co., 401 
U.S. 424 (1971). Moreover, it would be directly 
contrary to the intentions of the 39th Congress 
which identified numerous badges and incidents 
of slavery and thought that it had enacted 
legislation prohibiting not just intentional 
discrimination but all enumerated forms of 
racial discrimination whatever their source or 
motivation.

B. If this Court erroneously writes a 
scienter clause into 42 U.S.C. §1981 (thereby 
relegating the considerable efforts of the 39th 
Congress to the position of historical worthless­
ness in view of the subsequent ratification of 
the Fourteenth Amendment and enactment of the 
Civil Rights Act of 1871) , this Court would have 
to decide whether defendants nonetheless have 
violated §1981 based on plaintiffs' proof 
"that a discriminatory purpose has been a moti­

90
- 6 -



vating factor" in defendants' challenged prac­
tices. Arlington Heights v. Metropo1itan 
Housing Development Corp., 429 U.S. 252, 265
(1977). Although the precise degree of neces­
sary mental culpability was not defined in 
Arlington Heights or in Washington v. Davis,
426 U.S. 229 (1976), it does not follow that 
any degree of mental culpability needs to be 
proved to establish a violation of §1981 in the 
circumstances of the instant case. The primary 
purpose of a scienter requirement, to provide a 
barrier against the unfair imposition of retro­
active legal sanctions, is not furthered where 
plaintiffs seek prospective equitable relief and 
especially where defendants were on clear notice 
that their employment practices raised serious 
issues of racial unfairness. A secondary 
purpose of scienter, to protect individuals 
from being over-deterred from performing legi­
timate functions by a fear of strict liability, 
similarly is not served where defendants engage 
in employment practices which perpetuate racial 
exclusion but which fail to improve the quality 
of their workforce. Although no discernible 
purpose thus could be found for imposing a 
scienter requirement on §1981 here, plaintiffs 
nevertheless have sustained any production 
burden on this issue. And, although a burden

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91



of persuasion on this issue, or on the issue of 
intent in general, could not logically be allo­
cated to plaintiffs, they also met any such 
persuasion burden.

C. The record of identified past discrim­
ination practiced by defendants provides a more 
than sufficient base for the affirmative hiring 
order imposed by the district court to remedy 
the pervasive effects of defendants' racial 
discrimination. As stated by Mr. Justice Powell 
in Regents of the University of California v. 
Bakke, 57 L.Ed.2d 750 (1978), once findings of 
past discrimination have been judicially ren­
dered, "the governmental interest in preferring 
members of the injured groups at the expense of 
others is substantial." 57 L.Ed.2d at 782 
(Powell, J.). See also, the opinion of Mr. 
Justice Brennan writing for himself and for 
Justices White, Marshall and Blackmun, 57 L.Ed. 
2d at 792-827 (Brennan, J.). In view of the 
positions taken by five members of this Court 
in Bakke, the affirmative hiring order here is 
constitutionally permissible and equitably 
necessary.

- 8 -

92



ARGUMENT
A. The 39th Congress, in Seeking to Remove 

the Badges and Incidents of Slavery from 
Freedmen, Did Not Impose a Requirement-  
of Proof of Scienter upon Plaintiffs 
Challenging Racially Discriminatory 
Employment Practices Pursuant to 42 
U.S.C. §1981.
In Washington v. Davis, 426 U.S. 229 (1976), 

and in Arlington Heights v. Metro Development 
Housing Corp., 429 U.S. 252 (1977), this Court 
ruled that some degree of scienter must be 
proven in equal protection actions brought 
pursuant to §1 of the Fourteenth Amendment. 
Whatever the wisdom of such a construction of 
Section 1 of the Fourteenth Amendment, it is 
undisputed that Congress possesses the power to 
enact remedial legislation, aimed at discrimina­
tory practices, which dispenses with any need 
to establish scienter. First, Congress may 
found such a remedial statute on its obligation 
to enforce the Thirteenth Amendment by eradicat­
ing all badges and incidents of slavery, includ­
ing hiring practices which exclude minorities 
without materially advancing legitimate employ­
ment concerns. Johnson v. Railway Express 
Agency, 421 U.S. 454 (1975); see also, Runyon v. 
McCrary, 427 U.S. 160 (1976); Jones v. Alfred H. 
Mayer Co. , 392 U.S. 409 (1968)̂ . Second, Congress 
may found such a remedial statute on its power 
to regulate interstate commerce. Griggs v . Duke

- 9 - 93



Power Co,, 401 U.S, 424 (1971) (Title VII of the 
Civil Rights Act of 1964) ; Heart of Atlanta 
Motel, Inc, v. United States, 379 U.S. 241 (1964) 
(Title II of the Civil Rights Act of 1964) . 
Finally, Congress may look to §5 of the Fourteenth 
Amendment as a source of power to enact broad 
prophylactic legislation extending beyond the 
contours of strict §1 liability. Katzenbach v. 
Morgan, 384 U.S. 641 (1966); South Carolina v. 
Katzenbach, 383 U.S. 301 (1966); see also, 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), 
Accordingly, whether one views 42 U.S.C. §1981 
as a statute enacted to enforce the Thirteenth 
Amendment, as a statute regulating interstate 
commerce, or as a statute to enforce the Four­
teenth Amendment, Congress' power to concern 
itself with the disproportionate racial impact 
of a challenged practice is undisputed.

As this Court has repeatedly recognized, 
however, the Civil Rights Act of 1866, of which 
42 U.S.C. §1981 is a part, was premised almost 
exclusively upon the Thirteenth Amendment, 
McDonald v. Santa Fe Transportation Co., 427 
U.S. 273 (1976) ; Runyon v. McCrary, 427 U.S.
160 (1976); Johnson v , Railway Express Agency,
Inc,, 421 U.S. 454 (1975); Tillman v. Wheaton- 
Haven Recreational Association, 410 U.S. 431 
(1973)? Sullivan v. Little Hunting Park, 396

94 - 1 0 -



U .S . 229 ( 1 9 6 6 ) ;  Jones v ,  A l f r e d  H, Mayer C o , ,

392 U.S, 409 (1968), Section 2 of the Thirteenth 
Amendment, the Enabling Clause of that Amendment, 
"'clothed Congress with power to pass all laws 
necessary and proper for abolishing all badges 
and incidents of slavery in the United States.'" 
Jones v. Alfred H, Mayer Co., 392 U.S. at 439 
(emphasis in Jones) (citation omitted).
Moreover, Congress was given "the power under 
the Thirteenth Amendment rationally to determine 
what are the badges and incidents of slavery, 
and the authority to translate that determination 
into effective legislation," Jones v, Alfred H, 
Mayer Co,, 392 U.S. at 440.

The 39th Congress did just that by enacting, 
over President Andrew Johnson's veto, the Civil 
Rights Act of 1866. In doing so, Congress 
exercised its "special competence" by making 
"findings with respect to the effects of identi­
fied past discrimination" and by exercising "its 
discretionary authority to take appropriate 
remedial measures." Regents of the University 
of California v. Bakke, 47 L,Ed.2d 779 n,41
(1978) (Powell, J,). The badges and incidents 
of slavery found by the 39th Congress were 
extensive, The legislation it enacted, the 
Civil Rights Act of 1866, was all-encompassing

- 1 1 -

95



with regard to racial discrimination.* Sweeping 
with the broadest possible brush, the 39th 
Congress focused not merely on the then-current 
badges and incidents of slavery but instead 
sought to legislate equality by outlawing all 
enumerated forms of racial discrimination,

1. The Language of 42 U.S.C, §1981 Compels
the Conclusion that Proof of Scienter 
Is Not Required

Two aspects of the language chosen for 
§1981 evidence the absence of any scienter 
requirement. The first is the simple but 
significant fact that intent is nowhere mentioned 
as a prerequisite for a violation of Section 1981, 
The pertinent portion of Section 1981 provides: 
"All persons... shall have the same right...to 
make and enforce contracts... as is enjoyed by 
white citizens...." This Court has consistently 
declined to read qualifications or additional 
requirements into the 1866 Act, and instead has 
declared "'that if we are to give [the law] the 
sweep that its origins dictate we must accord it 
a sweep as broad as its language.'" Jones v. 
Alfred H. Mayer Co., 392 U.S. 409, 437 (1968)

* 42 U.S.C. §1981 thus protects not only blacks but also 
other minorities and even whites from discrimination. 
McDonald v. Santa Fe Transportation Co., 427 U.S. 273 
(1976) .

96 - 1 2 -



(brackets in original), quoting United States v. 
Price, 383 U.S. 787, 801 (1966). Its broad 
language does not permit the courts "to carve.,. 
an exception" where there is none on its face. 
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437 
(1968). It is for this reason that this Court 
has rejected attempts, such as those by defen­
dants here, to alter the plain meaning of its 
broad language through "'ingenious analytical'" 
arguments, Jones v. Alfred H. Mayer Co,, 392 
U.S. 409, 437 (1968), or through a stilted and 
"mechanical reading" of that language, McDonald 
v. Santa Fe Trail Transportation Co., 427 U.S.
273, 287 (1976). And it is for this reason that 
an intent requirement cannot be judicially 
grafted onto this facially clear statute which 
has no such requirement.

Second, the unqualified language of §1981 
is less stringent than that of the comparable 
language of Title VII of the Civil Rights Act 
of 1964, which this Court has held not to 
require proof of intentional discrimination, 
Griggs v. Duke Power Co., 401 U.S. 424 (1971).
In Title VII, §7 03(h) , 42 U.S.C, §2000e-2(h) , 
appears to exempt from prohibited discrimination 
the use of "any professionally developed ability 
test" that is not "designed, intended or used to 
discriminate because of race...." Additionally,

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97



§706(g), 42 U.S.C. §2000e-5(g), appears to 
require as a prerequisite to any court ordered 
remedies that the employer "has intentionally 
engaged or is intentionally engaging in an 
unlawful employment practice." This language, 
however, does not require a Title VII plaintiff, 
in order to prove a violation of the statute and 
to obtain relief, to prove that a challenged 
test or other practice has been used with an 
intent to discriminate. For "good intent or 
absence of discriminatory intent does not redeem 
employment procedures or testing mechanisms that 
operate as 'built-in headwinds' for minority 
groups and are unrelated to measuring job capa­
bility." Griggs v. Duke Power Co■, 401 U.S.
424, 432 (1971). See also, Dothard v, Rawlinson, 
433 U.S. 321 (1977); Albemarle Paper Co. v. 
Moody, 422 U.S. 407 (1975).

Section 1981 could not be more clear on its 
face; there is no intent requirement. And when 
compared with a statute such as Title VII which 
employs the words "intended" and "intentionally," 
but which does not trigger an intent requirement, 
the totally neutral language of §1981, which 
simply provides that "[a]11 persons... shall have 
the same right...to make and enforce contracts 
...as is enjoyed by white citizens," cannot be 
construed to require such a showing,

98 - 1 4 -



2 The Legislative History of the Civil 
Rights Act of 1866 Reinforces the 
Absence of an Intent to Discriminate 
Requirement in 42 U.S.C. §1981

The lack of ambiguity in the sweeping lan­
guage of §1981 obviates an examination of its 
legislative history. Any such examination, 
however, reveals that the radical 39th Congress 
intended its language to be as broad as possible.

Nowhere in the congressional debates leading 
to the enactment of the Civil Rights Act of 1866 
is it hinted that a civil plaintiff seeking to 
enforce his rights under the Act must prove that 
the deprivation of his rights resulted from acts 
of intentional discrimination. Rather, the 
legislative history conclusively demonstrates 
that Congress intended to provide practical 
freedom by outlawing all forms of discrimination 
against blacks.

As is reviewed in some detail in Jones v. 
Alfred H, Mayer Co., 392 U.S. 409, 426-444 (1968), 
nullification of the Black Codes was an important 
but hardly the only objective of the 1866 Act.
The Black Codes of course had to be outlawed.
But Congress "also had before it an imposing 
body of evidence pointing to the mistreatment 
of Negroes." Jones v. Alfred H. Mayer Co., 392 
U.S. at 427 (emphasis in original). This mis-

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99



treatment too had to be outlawed.* Thus, 
rather than enacting any of the legislative 
proposals directed solely at the Black Codes, 
Congress waited for ratification of the Thir­
teenth Amendment and for Senator Trumbull's 
broader bill "to protect the freedman in his 
rights." Cong. Globe, 39th Cong., 1st Sess. at 
43. Jones v. Alfred H. Mayer Co., 392 U.S. at 
429-431.

Two weeks after ratification of the Thir­
teenth Amendment, Senator Trumbu11, author of 
the bill which became the Civil Rights Act of 
1866, introduced his bill. Cong. Globe, 39th 
Cong., 1st Sess. at 129. He described its 
objectives in sweeping terms. It was "intended" 
to give effect to the Thirteenth Amendment and 
to "secure for all persons within the United 
States-practical freedom." Cong. Globe, 39th 
Cong., 1st Sess. at 474 (emphasis added). More 
expansively, Senator Trumbull sought to insure 
that practical freedom through a bill which

* As is recounted in Jones v. Alfred H. Mayer Co., 392 
U.S. 409 (1968), "one of the most comprehensive studies 
then before Congress...concluded that, even if anti-Negro 
legislation were 'repealed in all the States lately in 
rebellion,' equal treatment for the Negro would not yet 
be secured." 392 U.S. at 428 (footnote omitted), citing 
Report of Carl Schurz, S . Exec. Doc. No. 2, 39th Cong., 
1st Sess. at 45.

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100



would "break down all discrimination between 
black men and white men." Cong. Globe, 39th 
Cong., 1st Sess. at 599 (emphasis added).

The opponents of Senator Trumbull's bill 
did not quibble with its language. Rather, they 
attacked it frontally as providing too much 
equality. For example, Senator Cowan bitterly 
opposed the bill because it would eliminate 
differential treatment "which in any way creates 
distinctions between black men and white men in 
so far as their civil rights and immunities 
extend." Cong. Globe, 39th Cong., 1st Sess. at 
603, A bill simply outlawing the Black Codes 
he might have supported. "But this is not a 
bill simply for the abolition of slave codes.
This is a bill for the abolition of all laws 
which create distinctions between black men and 
white ones." Cong. Globe, 39th Cong., 1st Sess. 
at 603 (emphasis added). In fact, objected 
Senator Cowan, the bill sought to place blacks 
and whites "upon precisely the same footing," 
Cong. Globe, 39th Cong., 1st Sess, at 604 
(emphasis added).

Less than a month after Senator Trumbull 
had introduced his bill, the Senate passed it, 
Cong. Globe, 39th Cong., 1st Sess. at 606-607,
The Senate did so "fully aware of the breadth 
of the measure it had approved." Jones v. Alfred

- 1 7 - 101



H . Mayer Co., 392 U.S. at 433.
The House was no less aware of the intended 

breadth of this bill. Representative Thayer, a 
proponent of the bill, spoke of the necessity of 
effectuating the Thirteenth Amendment's promise 
of freedom. "It is to give to it practical 
effect and force.... The practical question now 
to be decided is whether they shall be in fact 
freemen." Cong. Globe, 39th Cong., 1st Sess. at 
1151 (emphasis added). Representative Cook was 
equally emphatic. Being free meant the elimina­
tion of all barriers and headwinds. This bill 
thus was necessary, for otherwise any "combination 
of men in his neighborhood can prevent [a black 
person] from having any chance to support himself 
by his labor." Cong. Globe, 39th Cong., 1st 
Sess. at 1124,

Representatives Cook and Thayer, among other 
supporters of the bill, were acutely aware that 
not all forms of discrimination are direct or 
readily apparent. Some forms of discrimination 
may have only a discriminatory effect but are 
equally objectionable. As Representative 
Lawrence stated, "there are two ways in which a 
State may undertake to deprive citizens of these 
absolute, inherent, and inalienable rights; 
either by prohibitory laws, or by a failure to 
protect any one of them." Cong. Globe, 39th

102 - 1 8 -



Cong., 1st Sess. at 1833. Representative Cook 
expressed his concern about a similar but more 
onerous distinction. After making his observa­
tion that a number of whites could join together 
to deny a black person the opportunity to support 
himself, he commented on the probable further 
plight of the black person: "They can pass a
law [neutral on its face] that a man not support­
ing himself by labor shall be deemed a vagrant 
and shall be sold.... Now, are these men free?
If a man can be sold as a vagrant because he 
does not labor, without any inquiry as to 
whether he can or cannot procure labor, is he a 
freeman?" Cong. Globe, 39th Cong., 1st Sess. at 
1124. Echoing the same concern, Representative 
Thayer asked rhetorically; "[I]f it is compe­
tent for the new-formed Legislatures of the 
rebel States to enact...laws which impair their 
ability to make contracts for labor in such a 
manner as virtually to deprive them of the power 
of making such contracts... then I demand to know 
of what practical value is the amendment abolish­
ing slavery in the United States?" Cong, Globe, 
39th Cong,, 1st Sess. at 1151 (emphasis added).

The answer, of course, was in the bill 
pending before the House. That bill, according 
to Representative Cook, would require quite 
simply that there "be nc> discrimination" on

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103



grounds of race or color, Cong, Globe, 39th 
Cong., 1st Sess. at 1124 (emphasis added). When 
the House passed the bill, it, like the Senate 
before it, "too believed that it was approving 
a comprehensive statute forbidding all racial 
discrimination affecting the basic civil rights 
enumerated in the Act." Jones v. Alfred H ,
Mayer Co., 392 U.S. at 435 (emphasis in original).

President Andrew Johnson, believing the bill 
to be as broad as its language, vetoed the legis­
lation. In his words, the bill attempted to 
legislate "a perfect equality of the white and 
black races." Cong. Globe, 39th Cong., 1st Sess. 
at 1679. Within two weeks, and with virtually 
no debate, Congress overrode his veto. Cong. 
Globe, 39th Cong., 1st Sess. at 1809, 1861.

The legislative history of the Civil Rights 
Act of 1866 is entirely unambiguous. The 39th 
Congress, which was empowered to prohibit all 
forms of racial discrimination, whether racially 
motivated or not, sought to enact antidiscrimina­
tion legislation as broad as its §2 powers would 
allow. It undisputedly thought that it had 
accomplished that objective in its Civil Rights 
Act of 1866.

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104



3. There Is No Contemporary Rationale for 
Imposing a Scienter Requirement on 42 
U.S.C. §1981

Even if it were proper for this Court to 
amend §1981 by engrafting a scienter requirement, 
there is no contemporary rationale for imposing 
such a requirement here.

The primary purpose of a scienter concept 
has been to provide a barrier against the unfair 
imposition of retrospective legal sanctions upon 
an unsuspecting defendant. E.g., Ernst & Ernst 
v. Hochfelder, 425 U.S. 185 (1976). Since the 
plaintiffs herein seek solely prospective equi­
table relief and since the defendants were on 
clear notice that their employment practices 
raised serious issues of racial fairness, no 
necessity for a scienter requirement as a barrier 
to unfair retrospective legal sanctions exists 
in this case.

A secondary purpose of a scienter concept 
is to insure that governmental officials will 
not be over-deterred from performing legitimate 
functions by a fear of strict liability. E.g., 
Wood v. Strickland, 420 U.S. 308 (1975) . Since 
the defendants herein are engaged in employment 
practices which perpetuate racial exclusion while 
failing to improve the quality of the workforce, 
no necessity for a scienter requirement as a

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105



Given (a) the prospective equitable nature 
of the relief sought; (b) the defendants' know­
ledge of probable illegality; (c) the racially 
exclusionary nature of the practices at issue; 
and (d) the failure of the practices at issue 
to improve job performance, no substantial 
social policies would be served by imposing a 
scienter obligation on plaintiffs challenging 
racially exclusionary public employment practices 
under 42 U.S.C. §1981.

Moreover, viewed from the perspective of a 
minority applicant for employment, it matters 
not at all whether the irrational* hurdle which 
bars his path was constructed maliciously, 
recklessly, negligently or inadvertently, since 
the net result is identical— the exclusion of 
racial minorities from employment by means of 
tests or devices which screen out minorities 
without materially aiding in the establishment 
or maintenance of an effective civil service.

brak e on o v e r -d e t e r r e n c e  o f  l e g i t i m a t e  a c t i v i t y

e x i s t s .

* The employment practices which are the subject of this 
litigation are irrational because they screen out racial- 
minorities without improving the quality of the work force 
If the practices were rational, i.e., predictive of employ­
ment performance, no violation of §1981 can occur despite 
the practices' disproportionate racial impact.

106 - 2 2 -



Of course, where the issue is not the grant of 
prospective relief but rather the imposition of 
retrospective sanctions, the mental culpability 
of a defendant may assume greater importance.
S •9• i Wood v. Strickland, supra. However, where, 
as here, minority plaintiffs seek prospective 
relief against defendants who were on notice of 
the possible illegality of their actions and who 
cannot demonstrate that the practices at issue 
are predictive of job performance, the case for 
a scienter requirement is at its lowest ebb.
See generally, SEC v. World Radio Mission, Inc., 
544 F.2d 536 (1st Cir. 1976) [scienter not 
required for 10(b)(5) prospective injunction].

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107



B. Assuming Arguendo that 42 U.S.C. §1981 
Requires Proof of Scienter, Plaintiffs 
Have Overwhelmingly Established Scienter 
as a Matter of Law.
Even if the Court engrafts a scienter 

requirement onto 42 U.S.C. §1981, any requisite 
showing of scienter has been conclusively 
established by plaintiffs in this case. It 
must be emphasized that plaintiffs were "not 
requir[ed]...to prove that the challenged 
action rested solely on racially discriminatory 
purposes," but only "that a discriminatory 
purpose has been a motivating factor in the 
decision." Arlington Heights v. Metro. Housing 
Development Corp., 429 U.S. 252, 265-266 (1977)
(emphasis added); see also, Washington v. Davis, 
426 U.S. 229 (1976).

The trial court, however, believing the 
issue of scienter to be irrelevant under Section 
1981, nevertheless made a gratuitous finding 
that defendants did not act with the "willful or 
conscious prupose" of excluding blacks and 
Chicanos from public employment. Finding of 
Fact Number 7 in 8 FEP Cases 239, 241 (1973).
In making this finding, the trial court erred as 
a matter of law by not defining the culpable 
mental state applicable to defendants. The 
trial court also erred in placing the burden of

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108



persuasion on the scienter issue on plaintiffs. 
This Court's decisions establish that once a 
plaintiff produces evidence which indicates 
that it is more probable than not that a de­
fendant has acted with improper racially discrim­
inatory purpose, the burden of producing evidence 
to rebut that prima facie showing as well as the 
burden of persuasion on the issue of scienter 
shifts to the defendant. To the extent that 
scienter is added by this Court to §1981, the 
trial court's errors on culpable mental state 
and burdens of proof, discussed hereafter in 
sections B.2. and B.3., must be reversed as a 
matter of law.

However, even assuming arguendo that plain­
tiffs were legally required to prove the highest 
state of mental culpability and that plaintiffs 
had not only the production burden but also the 
persuasion burden, plaintiffs' proof was suffi­
ciently overwhelming for this Court to find the 
trial court's Finding of Fact Number 7 "clearly 
erroneous." United States v. United States 
Gypsum Co,, 333 U.S. 364, 395 (1948). As is set 
forth hereafter, plaintiffs unquestionably 
proved that a discriminatory purpose was a 
motivating factor in defendants' employment 
practices.

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109



1 . Plaintiffs Established a Racially 
Discriminatory Purpose as a Matter 
of Law.

As noted above, plaintiffs only were 
required to prove that a racially discrimina­
tory purpose had been a motivating factor in 
defendants' hiring practices. As Justice Powell 
stated for the Court in Arlington Heights: 
"Determining whether invidious discriminatory 
purpose was a motivating factor demands a 
sensitive inquiry into such circumstantial and 
direct evidence of intent as may be available." 
429 U.S. at 266. Fruitful subjects for such 
circumstantial and direct evidence are not a 
matter of speculation, as Justice Powell,
"without purporting to be exhaustive," specific­
ally described a number of "subjects of proper 
inquiry in determining whether racially discrim­
inatory intent existed." 429 U.S. at 266-268.

Three of the "subjects of proper inquiry" 
set forth in Arlington Heights are particularly 
relevant to defendants' conduct in this case:

(a) The discriminatory intent of defendants’ 
hiring practices is "unexplainable on grounds 
other than race," 429 U.S. at 266;

(b) The "historical background" of defendants' 
hiring practices evidences defendants' discrimina­
tory purpose, 429 U.S. at 267; and

110 - 2 6 -



(c) The defendants' "departures from the 
normal procedural sequence" further reveals 
defendants* "improper purposes." 429 U.S. at 
267.

The evidence in the record is more than 
sufficient to resolve this inquiry in plain­
tiffs* favor as a matter of law.

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111



a. The Racial Imbalance of Defen­
dants' Workforce, and the Discrim­
inatory Impact of the 1972 Written 
Test Are Unexplainable on Grounds 
Other than Race

In Washington v. Davis, 426 U.S. 229 (1976), 
this Court made clear that although statistics in 
some instances may not be enough to prove discrim­
inatory purpose, the use of statistics showing 
racial imbalance or racial impact is "not irrele­
vant." 426 U.S. at 241. Rather, a "discrimina­
tory purpose may often be inferred from the 
totality of the relevant facts, including the 
fact, if it is true, that the law bears more 
heavily on one race than another." 426 U.S. at
242. Far from irrelevant, racial statistics 
sometimes illuminate a "clear pattern" of 
discrimination, "unexplainable on grounds other 
than race." Arlington Heights v. Metro. Housing 
Development Corp., 429 U.S. 252, 266 (1977).

In the area of employment discrimination, 
workforce statistics are of primary importance 
in revealing improper discriminatory purpose.
As this Court explained in International Brother­
hood of Teamsters v. United States, 431 U.S. 324 
(1977) :

"Statistics showing racial or ethnic 
imbalance are probative in a case such 
as this one only because such imbalance 
is often a telltale sign of purposeful

112 - 2 8 -



discrimination; absent explanation, 
it is ordinarTly to be expected that 
nondiscriminatory hiring practices 
will in time result in a work force 
more or less representative of the 
racial and ethnic composition of the 
population in the community from which 
employees are hired." 431 U.S. at 
339-340 n.20 (emphasis added).
In this case, the racial and ethnic composi­

tion of defendants' workforce is wholly unrepre­
sentative of the racial and ethnic population of 
the community.* As the court of appeals below 
summarized:

* Defendants have argued that population statistics are 
not the best statistics for comparative purposes. Defen­
dants' argument is flawed for two reasons. First, the 
"argument fails in this case" even more resoundingly than 
it did in International Brotherhood of Teamsters v. United 
States, 431 U.S. 324, 339-340 n.20 (1977), because §1981, 
unlike Title VII, does not contain a statutory clause mili­
tating against workforce-population comparisons. Yet, even 
in Teamsters, this Court stated:

"Evidence of long standing and gross disparity 
between the composition of a work force and that 
of the general population thus may be significant 
even though §703(j) makes clear that Title VII 
imposes no requirement that a work force mirror 
the general population." 431 U.S. 324, 339-340 
n.20 (1977).

Second, use of population statistics for workforce compara­
bility is as proper here as it was in Teamsters where the 
jobs at issue were entry-level jobs requiring no special 
qualifications. Cf,, Hazelwood School District v. United 
States, 433 U.S. 299 (1977).

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113



"Despite a minority population of 
approximately 29.1% in Los Angeles 
County, only 3.3% of the firemen 
employed by the defendants at the 
time of trial were black or Mexican- 
American." 566 F.2d at 1337.

Stated otherwise, although approximately 10.8% 
of the general population of Los Angeles County 
is black, only 9 persons in defendants' workforce 
of 1,762, or .5%, were blacks. (R.136) And 
although 18.3% of the general population of Los 
Angeles County is Mexican-American, only 50 
persons in defendants' workforce, or 2.8%, were 
Mexican-Americans. (R.136) In a county with a
very sizeable and growing minority population, 
96.7% of the defendants' jobs had been given to 
whites. This considerable racial imbalance is 
not merely a telltale sign of purposeful discrim­
ination. It is entirely unexplainable on grounds 
other than race.

The second set of statistics of particular 
relevance is the racial impact of the challenged 
practice. "It is also not infrequently true that 
the discriminatory impact...may for all practical 
purposes demonstrate unconstitutionality because 
in various circumstances the discrimination is 
very difficult to explain on nonracial grounds." 
Washington v. Davis, 426 U.S. 229, 242 (1976).

The discriminatory impact of the defendants'

114
- 3 0 -



1972 and 1969 written tests was considerable.
As summarized by the court of appeals, in 1972, 
"while 25.8% of the white applicants were among 
the top 544 scorers on the test, only 5.1% of 
the black applicants were included in that group. 
556 F.2d at 1337. The 1969 test results were 
equally startling. "Of the 244 blacks who took 
the 1969 examination, 5 were hired; of the 100 
Mexican-Americans, 7 were hired, while of the 
1080 whites taking the test, 175 were hired.
Thus, while approximately 25% of the 1969 appli­
cants were black or Mexican-American, based on 
the results of this test, only 6.4% of the hires 
were minorities." 556 F.2d at 1337. Coupled 
with the defendants' severely unbalanced work­
force, defendants' use of written tests with 
such a racially disparate impact is difficult 
to explain on nonracial grounds.

b. The Historical Background of
Defendants' Hiring Practices Also 
Reveals Discriminatory Purpose

Plaintiffs below did not rely solely on the 
foregoing statistics. They also provided evi­
dence of the "historical background" of defen­
dants' practices which "reveal[ed] a series of 
official actions taken for invidious purposes." 
Arlington Heights v. Metropolitan Housing Devel­
opment Corp., 429 U.S. at 267.

- 3 1 - 115



Not only did defendants' written tests have 
a severe racially discriminatory impact, defen­
dants knew that the tests were discriminatory and 
could not be shown to be job related. (PI.Ex.8) 
As the evidence at trial revealed, high officials 
in defendants’ personnel department knew that the 
written tests operated with a discriminatory 
impact to exclude blacks and Mexican-Americans 
from firefighter positions. (PI.Exs.7,8,9; T.R. 
48-49) Moreover, defendants "conceded that no 
studies establishing the validity of the written 
employment tests have been conducted in accordance 
with 'professionally acceptable methods.'" 566
F. 2d at 1337 n.5. But despite these admissions, 
defendants knowingly and willfully continued to 
use their discriminatory tests until they learned 
that plaintiffs' lawsuit was about to be filed.

Defendants' use of this discriminatory 
written test was not the only selection criterion 
used to discriminate. Defendants also required 
applicants to meet a 5'7" height requirement. 
Aware that this requirement had a severely dis­
criminatory impact, defendants "stipulated that 
41% of the otherwise eligible Mexican-American 
applicants are excluded by the requirement."
556 F.2d at 1341 (footnote omitted). Again, 
defendants offered no validity studies. Instead, 
Fire Chief Stanley E. Barlow, who stood only

116 - 3 2 -



5'8" tall, "conceded that in the past firemen 
under 5'7" have been able to function without 
impairment dur to their height." 556 F.2d at 
1342. Despite these admissions, and despite the 
clear illegality of their use of this discrimina­
tory height requirement, Dothard v. Rawlinson,
433 U.S. 321 (1977), defendants knowingly and 
willfully continued their discriminatory practice.

Given this historical background, it is not 
surprising that the Los Angeles County Fire 
Department was known in the minority community 
as a racially discriminatory employer. (T.R. 
52,134) Defendants, however, took no steps to 
dispel their apparently well-earned discrimina­
tory reputation. (T.R. 194)

c. Defendants' Departure from Normal 
Procedures Further Proves Improper 
Discriminatory Purpose

Also probative of improper motives are 
" [d]epartures from the normal procedural sequence. 
Arlington Heights v. Metropolitan Housing Develop­
ment Corp., 429 U.S. at 267. Proof here is not 
limited only to procedural departures. "Substan­
tive departures too may be relevant." 429 U.S. 
at 267. Although evidence of procedural or 
substantive departures ordinarily is difficult 
to discover, three significant departures by 
defendants were proven here by plaintiffs.

- 3 3 -



Loss of 300 applications— Normally, an em­
ployer's discriminatory practices, especially a 
practice such as a discriminatory height require­
ment, will have an adverse impact on minority 
applicant flow "since otherwise qualified people 
might be discouraged from applying because of a 
self-recognized inability to meet the very 
standards challenged as being discriminatory."
Cf. , Dothard v. Raw'li'nson, 433 U.S. 321, 330 
(1977). This undoubtedly was the situation here. 
Yet, minorities continued to apply. Apparently 
defendants were concerned that too many minorities 
had applied or sought to apply. At one stage, 
defendants inexplicably "lost" the names of 300 
minorities who sought applications. (T.R.122- 
145, 188)

Discrimination in applicant assistance 
programs— In the normal course of events, defen­
dants conducted programs designed to assist 
applicants to compete for employment. However, 
according to the testimony of Harold McCann, a 
captain in the Los Angeles County Fire Department, 
these programs were conducted exclusively for 
whites, while similar programs for minority 
participants were prohibited by the Fire Depart­
ment. (T.R.91-113)

Sudden hiring of numerous minority 
applicants— The third and most telling departure

118
- 3 4 -



from past practices occurred after defendants 
learned that they were about to be sued by 
plaintiffs. Defendants' normal hiring practices 
had virtually excluded blacks and Mexican- 
Americans from employment. But, upon learning 
about the instant lawsuit, defendants backpedaled 
furiously. After this lawsuit was filed, defen­
dants demonstrated the depth of their past 
discrimination by easily hiring minorities above 
their representation in the population. (R.140- 
141; T.R.48-49) Although defendants' efforts to 
redress the effects of their past discrimination 
are commendable, they underscore the discrimina­
tory purposes which infected defendants' prior 
hiring practices.

Even if plaintiffs bear the burden of 
persuasion on the issue of scienter, the above- 
described facts conclusively establish that 
improper racially discriminatory purposes infected 
defendants' hiring practices. Although defendants 
testified that the exclusion of minorities from 
the Fire Department was not purposeful, the 
undisputed facts in the record make it impossible 
for a fact finder to determine that defendants' 
hiring practices were not in part motivated by 
racially discriminatory purposes. Arlington 
Heights v. Metropolitan Housing Development Corp., 
429 U.S. at 265-266.

- 3 5 - 119



2. Plaintiffs Established a Sufficiently 
Culpable Mental State to Justify 
Liability and Prospective Relief.

Although Amici submit that plaintiffs here 
proved as a matter of law "that a discriminatory 
purpose has been a motivating factor" in defen­
dants' use of discriminatory employment practices, 
Arlington Heights v. Metro. Housing Development 
Corp., 429 U.S. 252, 265-266 (1977) (emphasis 
added), plaintiffs need not have proved as much 
as they did.

In Arlington Heights and in Washington v. 
Davis, 426 U.S. 229 (1976), this Court ruled 
that some degree of mental culpability must be 
found to establish a violation of the Equal 
Protection Clause. However, in identifying a 
subjective mental condition as an element of a 
Fourteenth Amendment violation, this Court took 
merely the first step in the process of defining 
precisely the nature of the mental state which 
will trigger such a violation. The Court in 
Washington discussed only two possible mental 
states: malicious guilt and complete innocence. 
While such a bi-polar analysis may be helpful in 
deciding whether scienter is required at all to 
establish a constitutional violation, it is too 
simplistic to serve as a guide for determining

120 - 3 6 -



the precise mental state necessary to give rise 
to such a violation. Additionally, as we have 
pointed out in section A.3, supra, whatever the 
proper guide may be for constitutional liability, 
that guide is not necessarily appropriate for 
employment defendants under 42 U.S.C. §1981.
Since §1981 has never had a scienter requirement 
imposed upon it, the nature of such a require­
ment remains an open question if in fact 
scienter is engrafted.

Since mental states do not neatly divide 
into the extremes of the bi-polar model, it is 
necessary to identify intermediate or equivalent 
mental states which encompass neither malicious 
guilt or complete innocence. Thus, in mapping 
the contours of the good faith defense available 
to government officials sued for retrospective 
damages, this Court has been careful to identify 
a mental state consistent with recklessness or 
negligence, and to predicate liability upon it. 
E-g., Wood v. Strickland, 420 U.S. 308 (1975). 
Similarly, courts in the wake of Ernst & Ernst 
v. Hochfelder, 425 U.S. 185 (1976), have explored 
whether a mental state consistent with negligence 
may form the basis for prospective equitable 
relief even when negligence alone has been found 
insufficient for an award of retrospective damages. 
E-q-, SEC v. Universal Major Industries Corp.,

- 3 7 - 121



546 F.2d 1044 (2d Cir. 1976); SEC v. World Radio 
Mission, 544 F.2d 535 (1st Cir. 1976). Indeed, 
Ernst & Ernst v. Hochfelder, supra, itself 
reserved the question of whether a state of mind 
consistent with recklessness would give rise to 
a 10(b)(5) action for retrospective damages.
425 U.S. at 194 n.12. Similarly, the extent to 
which mental states consistent with recklessness 
and negligence provide sufficient culpability to 
warrant a conviction of varying degrees of 
homicide have been the subject of intense study.
E■g., Perkins, The Criminal Law 61 (1957); Michael 
and Wechsler, A Rationale of the Law of Homicide, 
37 Col.L.Rev. 701 (1937); Wechsler, Codification 
of the Criminal Law in the United States: The 
Model Penal Code, 68 Col.L.Rev. 1425 (1968).

Finally, the law of torts has systematically 
explored mental states lying on a continuum from 
willful intent to total inadvertence in an 
attempt to determine the requisite mental condi­
tion upon which to predicate liability. In 
fact, the negligence standards of tort liability 
in some instances have been adopted in whole as 
applicable to determining liability under 42 
U.S.C. §1983. Thus, in Monroe v. Pape, 365 
U.S. 167 (1961), the Court rejected a standard 
under 42 U.S.C. §1983 requiring proof of "the 
doing of an act with 'a specific intent to

122 -3 8-



deprive a person of a federal right,'" because 
the word "'willfully' does not appear in [§1983]" 
and because §1983 is not a "criminal law" but 
rather only "provides a civil remedy." 365 U.S. 
at 187. Accordingly, §1983 "should be read 
against the background of tort liability that 
makes a man responsible for the natural conse­
quences of his actions." 365 U.S. at 187.*

Just as courts have been compelled to iden­
tify and determine the legal consequences of 
intermediate or equivalent mental states in areas 
of the law as divergent as tort liability, 
securities regulation, and homicide, so must this 
Court confront the forseeable consequences test 
and the intermediate or equivalent mental states 
such as recklessness, negligence, gross disregard

This forseeable consequences test has been widely applied 
in school desegregation cases. Most recently, Judge Wisdom, 
writing for the court in United States v. Texas Educational 
Agency, 564 F.2d 162 (5th Cir. 1977), held that "discrimina­
tory intent may be inferred from...acts that had forseeable 
discriminatory consequences." 564 F.2d at 168; see generally, 
564 F.2d at 165-170. For other applications of the forsee­
able consequences test, see, United States v. School District 
of Omaha, 521 F.2d 530, 535-536 (8th Cir.), cefct. denied, 423 
U.S. 946 (1975); Morgan v. Kerrigan, 509 F.2d 580, 588 (1st 
Cir. 1974), cert, denied, 421 U.S. 963 (1975); Oliver v. 
Michigan State Board of Education, 508 F.2d 178, 181-182 (6th 
Cir. 1974), cert, denied, 421 U.S. 963 (1975); Bradley v. 
Milliken, 484 F.2d 215, 222 (6th Cir. 1973), aff'd in relevant 
Part, 418 U.S. 717, 738 n.18 (1974).

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123



and deliberate indifference in the context of 
§1981, assuming this Court imposes a scienter 
requirement on §1981. Given the facts of this 
case, no reasonable finder of fact could fail to 
find that defendants, at best, not only foresaw 
the consequences of their acts but also acted 
with recklessness, deliberate indifference of, 
and gross disregard for the discriminatory 
effects of their non job related practices on 
racial minorities. Such a culpable mental 
state is more than sufficient to found prospect­
ive relief.

Amici submit that defendants' negligence 
in gratuitously inflicting harm on minority 
applicants should constitute a sufficiently 
culpable mental state to found prospective 
liability under §1981. Where, as here, defen­
dants '* culpability far exceeds negligence, 
constituting instead reckless disregard and 
deliberate indifference, the district court was 
authorized and, indeed, obligated to enter 
effective prospective relief disestablishing 
racially exclusionary hiring practices.

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124



3. The District Court Erred in Allocating 
the Burden of Proof on the Issue of 
Scienter. '

Amici have argued in Point A, supra, that 
the legislative history and Thirteenth Amendment 
ancestry of 42 U.S.C. §1981 render it extremely 
unlikely that Congress intended to burden freed- 
men seeking prospective relief against racially 
exclusionary employment practices with a scienter 
requirement. However, if this Court determines 
that the district court lacked power to issue 
prospective relief in the absence of some degree 
of mental culpability, this Court must begin the 
task of defining and allocating the burdens of 
proof* on the issue of scienter.* ** In criminal 
cases, the Due Process Clause governs the allo­
cation and size of the persuasion burden, 
leaving to the courts substantial latitude in 
allocating the production burden. E.g., Davis 
v- United States, 160 U.S. 469 (1895) (production 
burden on insanity on defendant; persuasion

Amici use the term "burdens of proof" to include the 
burden of production and the burden of persuasion. See 
generally, J. Thayer, A Preliminary Treatise on Evidence 
at the Common Law, 355-59 (1898); James, Burdens of Proof, 
49 Va.L.Rev. 51 (1961).

** Amici have discussed the precise nature of the culpable 
mental states necessary to establish a §1981 violation in 
sections B.l. and B.2., supra.

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125



burden on prosecution). See generally, In re 
Winship, 397 U.S. 358 (1969); Mullaney v. 
Wilbur, 421 U.S. 624 (1975); Patterson v. New 
York, 432 U.S. 197 (1977). In many civil con­
texts, the legislature has directed a given 
allocation of the production and persuasion 
burdens. In most cases, however, the courts 
retain substantial latitude in choosing the 
size and allocation of both production and 
persuasion burdens. E.g■, James, Burdens of 
Proof, 47 Va.L.Rev. 51 (1961); Cleary, Presuming 
and Pleading; An Essay on Juristic Immaturity, 
12 Stan.L.Rev. 5 (1959). Although the court 
below did not explicitly allocate burdens of 
proof, it appeared to assume that both the pro­
duction and persuasion burdens on the scienter 
issue rested with the plaintiffs. Such an 
assumption was erroneous.*

Modern analysis reveals that the allocation 
and size of the burdens of proof in a civil case 
are governed by two factors: (1) relative ease
of access to the evidence; and (2) the degree of 
error displacement which the legal system wishes 
to impose on a given fact-finding process. See,

* As Amici have shown in section B.l, supra, even under 
such an erroneous view of the burdens of proof, plaintiffs 
established discriminatory purpose* as a matter of law.

126 - 4 2 -



e.g., Underwood, The Thumb on the Scale of 
Justice; Burdens of Persuasion in Criminal Cases, 
86 Yale L.J. 1299 (1977); McBaine, Burden of 
Proof; Degrees of Belief, 32 Cal.L.Rev. 242 
(1944). Whether one approaches the issue of 
proof of scienter in an employment discrimination 
case from the perspective of relative ease of 
access to the evidence or from the perspective 
of displacement of error, the burdens of proof 
should, in large part, be borne by the defendant.

First, as this Court noted in Arlington 
Heights v. Metro. Housing Development Corp., 
supra, proof of purposeful racial animus is a 
difficult task. The subjective motivation of 
actors in our legal system has consistently 
proven an elusive and baffling quarry. Cf.,
Screws v. United States, 325 U.S. 91 (1945). 
Moreover, the difficulty of establishing a state 
of mind is exacerbated when the particular 
mental state is morally repugnant. Put bluntly, 
subjective bigotry is uniquely difficult to 
prove precisely because bigots are not encouraged 
to advertise their true feelings and, indeed, 
may not even consciously recognize the racially 
tinged roots of their behavior. If, however, 
this Court directs the lower courts to embark 
upon a search for such an elusive subjective 
phenomenon, no doubt exists that defendants

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127



enjoy far greater access to the relevant proof 
than do plaintiffs. Proof concerning the 
existence of neutral justifications for racially 
exclusionary employment practices will rarely, 
if ever, be available to a plaintiff, but will be 
routinely available to a defendant.

Second, it is, of course, a truism to note 
that to the extent our legal system errs in the 
area of racially unfair hiring practices, it 
should err on the side of their prospective 
disestablishment of unfair practices. Thus, if 
error is to be displaced, it should be displaced 
in favor of ending racially exclusionary hiring 
practices which do not materially contribute to 
the effeciency of the work force. Traditionally/ 
our legal system has effected such a displacement 
of error by carefully allocating and defining the 
burden of persuasion. See generally, Underwood, 
The Thumb on the Scale of Justice, supra; Morse, 
Evidentiary Lexicology, 59 Dick.L.Rev. 86 (1954); 
cf., Patterson v. New York, 432 U.S. 197 (1977); 
Castaneda v. Partida, 430 U.S. 482 (1977); In re 
Winship, 397 U.S. 358 (1969).

Given the powerful arguments in favor of 
imposing both burdens of proof on the scienter 
issue on a §1981 defendant, it would be reason­
able to require a §1981 defendant to bear both 
the production and persuasion burdens. However,

128-
- 4 4 -



Amici believe that the purposes of §1981 may be 
served by the less dramatic allocation suggested 
by this Court in Castaneda v. Partida, 430 U.S. 
482 (1977). Under such an allocation, §1981 
plaintiffs would bear the production burden on 
the issue of scienter. Once such a production 
burden were satisfied, however, the persuasion 
burden would be borne by the defendant.*

a. The Nature of Plaintiffs' 
Production Burden

Orthodox evidentiary analysis defines a 
production burden as the obligation to produce 
evidence from which a reasonable finder of fact 
may determine that the contested fact (scienter) 
is more likely than not to exist.** Where, as

* A similar judge-made bifurcation of the production and 
persuasion burdens exists in most jurisdictions with respect 
to the insanity defense. Criminal defendants bear a produc­
tion burden on the issue of sanity. However, once such a 
production burden is met, the state bears the persuasion 
burden. E.g., Davis v. United States, 160 U.S. 469 (1895).
** Recent analysis has argued that the production burden is 
not a fixed quantum of evidence, but rather varies as a func­
tion of the persuasion burden. McNaughten, Burden of Produc­
tion of Evidence: A Function of a Burden of Persuasion, 68 
Harv.L.Rev. 1382 (1955). See United States v. Taylor, 464 
p-2d 240 (2d Cir. 1972); United States v. Melillo, 275 F.Supp. 
314 (E.D.N.Y. 1967). However correct such an approach may be 
as a matter of pure logic, Amici have described the production 
burden as a fixed concept, first, because substantial persua­
sion burden consequences turn on its satisfaction. Since the 
allocation of the persuasion burden to the defendant is trig­
gered by satisfaction, of the production burden, Amici deem it 
appropriate to adopt the concept of a fixed production burden. 
United States v. Feinberg, 140 F.2d 592 (2d Cir. 1944) (per 
Learned Hand) . 129

- 4 5 -



here, plaintiffs have demonstrated, first, that 
defendants' employment practices acted to exclude 
blacks and Chicanos from the work force and, 
second, that the practices were not materially 
effective in establishing or maintaining an 
efficient work force, an inference of scienter 
may be drawn by a reasonable finder-of-fact. 
Washington v. Davis, 426 U.S. at 253 (Stevens,
J., concurring opinion). See, United States v. 
Texas Educ. Agency, 564 F.2d 162, 165-170 (5th 
Cir. 1977) (defendants in a school desegregation 
case are presumed to intend the natural conse­
quences of their acts), citing Monroe v. Pape, 
supra. Accordingly, plaintiffs have clearly 
satisfied their production burden.* Castaneda 
v. Partida, 430 U.S. 482 (1977).

b. The Nature of the Defendants' 
Persuasion Burden

The persuasion burden instructs the finder 
of fact as to the proper disposition of doubtful 
cases. Where, as here, a plaintiff seeking 
prospective relief has come forward with evidence 
from which a reasonable finder of fact may infer 
purposeful racial discrimination, doubts should 
be resolved in favor of the plaintiff. Such a

* Not only have plaintiffs satisfied a production burden, 
they have produced sufficient evidence of racially discrim- 
inatory purpose to satisfy a persuasion burden as well.
See, section B.l., supra.

130
- 4 6 -



resolution maximizes the prospective disestab­
lishment of racially unfair practices, without 
saddling a defendant with retrospective liability. 
Thus, Amici suggest, a finder-of-fact should be 
instructed to find for a plaintiff in a §1981 
action seeking prospective relief unless the 
defendants persuade the finder of fact that it 
is more likely than not that scienter did not 
exist.*

c. Castaneda v. Partida is an Example 
of the Proper Allocation of 
Burdens of Proof

In Castaneda v. Partida, supra, a habeas 
corpus petitioner challenged the constitutional­
ity of the Grand Jury selection process in 
Hildago County, Texas, alleging that Mexican- 
Americans were substantially underrepresented 
on the panels. As the decisions of this Court 
made clear, in order to prevail, the petitioner 
was obliged to demonstrate the intentional exclu­
sion of racial minorities from the Grand Jury 
process. Thus, the issue of scienter was squarely 
posed.

* As noted in section B.I., infra, defendants' evidence 
is inadequate to meet the slightest of burdens of persua­
sion and, in fact, is wholly insufficient to rebut plain­
tiffs ' showing of purposeful discrimination, even if 
plaintiffs are found to have the burden of persuasion on 
the issue of scienter.

- 4 7 -
131



In support of his contention, the petitioner 
in Castaneda produced statistical evidence 
demonstrating that while Hidalgo County was 79 
percent Mexican-American, minority representation 
on Grand Jury panels approximated only 40 percent. 
This Court found that such evidence of dispropor­
tionate racial impact satisfied petitioners' 
production burden on the issue of scienter.

Respondents in Castaneda produced virtually 
no evidence tending to rebut the inference of 
scienter which flowed from petitioner's statis­
tics. Under such circumstances, this Court 
reversed a finding of fact by the trial court 
that scienter did not exist. Although this Court 
did not explicitly describe its allocation of 
the persuasion burden in Castaneda, its action 
in reversing the district court's finding of 
fact reveals that the persuasion burden was allo­
cated to the respondent. If the persuasion 
burden were deemed to rest with petitioner in 
Castaneda, this court's reversal could be explained 
only by a finding that, based on petitioner's 
statistics, no reasonable finder of fact could 
fail to find that it was more probable than not 
that scienter existed. While such a reading of 
Castaneda is possible, it is a highly strained
one. If, however, the persuasion burden is 
deemed to rest with the respondents in Castaneda,

132 - 4 8 -



this Court's reversal is explained by a finding 
that, given respondents' total failure to 
present rebuttal evidence, no reasonable finder 
of fact could find that it was more probable 
than not that scienter did not exist.

d. Defendants Failed, as a Matter of 
Law, To Satisfy a Persuasion 
Burden on the Issue of Scienter

Under an appropriately allocated persuasion 
burden, defendants must establish that it is 
more likely than not that no culpable mental 
state existed. Unlike the defendants in 
Washington v. Davis, supra, the defendants here­
in have come forward with no evidence tending to 
negate the existence of a culpable mental state. 
426 U.S. at 235, 246.

In Washington, the defendants first coun­
tered the discriminatory effect of their test by 
proving that it was "directly related to the 
requirement of the police training program and 
that [there was] a positive relationship 
between the test and training course perform­
ance." 426 U.S. at 250. More importantly, 
however, the Washington defendants had for years 
"systematically and affirmatively sought to 
enroll black officers." 426 U.S. at 235. These 
efforts had produced a 44% black work force, a 
workforce representation which was "roughly

- 4 9 - 133



equivalent" to black population in defendants' 
recruitment area. 426 U.S. at 235. These 
efforts also produced years of new recruit 
classes which also were 44% black. 426 U.S. at 
235.

The record in the instant case could not be 
more dissimilar from that in Washington. First, 
defendants here "conceded that no studies 
establishing the validity of the written employ­
ment tests have been conducted in accordance 
with 'professionally acceptable methods.'" 566 
F.2d at 1337 n.5. Since there were no studies 
correlating the test's relationship with job 
performance or with training performance, the 
court of appeals below quite properly noted 
that "defendants' proof not only is insufficient 
under Griggs, but also falls far short of the 
quality and quantity of proof offered in Washing­
ton ." 566 F .2d at 1341 n.13. Moreover, defen­
dants here had not undertaken systematic affirma­
tive efforts to enroll minority firefighters, 
as was the case in Washington, 426 U.S. at 235. 
Instead, their discriminatory practices resulted 
in only a trickle of black and Mexican-American 
employees, and produced a workforce of only 3.3% 
black and Mexican-American firefighters at the 
time of trial. 566 F .2d at 1337.

- 5 0 -

134



The absence of any good faith efforts by 
defendants here is further illustrated by the 
historical background of defendants' practices 
(including their knowing use of their discrimi- 
atory and unvalidated written test, and their 
knowing use of their discriminatory and unvalid­
ated 5'7" height requirement), as well as by 
their departures from normal procedures (includ­
ing their loss of the names of 300 minority 
applicants and their prohibition against conduct­
ing application programs which included minority 
applicants while conducting such programs for 
whites). While a smoking gun, of course, is 
unnecessary, plaintiffs' evidence at trial was 
so strong that Fire Chief Barlow himself admitted 
that defendants had engaged in intentional 
discrimination. (R.T.187-188)

The evidence of purposeful discrimination 
is so strong in this case that plaintiffs' proof 
is sufficient to carry a burden of persuasion 
on the issue of scienter. Given the allocation 
of the burden of persuasion suggested by Amici 
and by this Court's decision in Castaneda, how­
ever, it seems beyond question that no reasonable 
finder of fact on this record could find that 
the requisite scienter did not exist.

Accordingly, Amici urge this Court to follow 
its practice in Castaneda and to reverse the

- 5 1 - 135



district court's Finding of Fact on the scienter 
issue. At a minimum, however, the issue should 
be remanded for fresh findings of fact under an 
appropriately allocated burden of persuasion 
and with guidance as to the mental states under 
which prospective relief can be granted under 
§1981.

136 - 5 2 -



c . The Affirmative Hiring Order Imposed To 
Remedy Defendants' Past Discrimination- 
Is Constitutionally Permissible If Not 
Constitutionally Required
More than a decade ago, speaking of the 

remedial powers of the federal courts, this 
Court stated that a "court has not merely the 
power but the duty to render a decree which 
will so far as possible eliminate the discrimi­
natory effects of the past as well as bar like 
discrimination in the future." Louisiana v. 
United States, 380 U.S. 145, 154 (1965) (empha­
sis added). Where past discrimination is found, 
a district court's "task is to correct, by a 
balancing of the individual and collective 
interests, the condition that offends" the law. 
Swann v. Charlotte-Mecklenburg Board of Educa­
tion , 402 U.S. 1, 16 (1971) (emphasis added).

Nowhere have these maxims, requiring 
affirmative relief to overcome the effects of 
past discrimination, been more applicable and 
more widely applied than in employment discrim­
ination litigation. See, e .g ,, Franks v. Bowman 
Transportation Co., 424 U.S. 747 (1976). In 
innumerable instances, the affirmative relief 
required or approved by the federal courts has 
encompassed numerical hiring ratios and goals 
to overcome the effects of past discrimination. 
See, e .g ., Bridgeport Guardians v. Bridgeport 
Civil Service Commission, 482 F.2d 1333 (2d Cir.

- 5 3 - 137



1973) (where the affirmative relief imposed 
under 42 U.S.C. §1981 and §1983 established an 
ultimate goal, required future minority appli­
cants to be placed in a separate minority pool, 
required 50% of the next ten vacancies to be 
filled from the minority pool, required 75% of 
the next twenty vacancies to be filled from the 
minority pool, and required 50% of the vacancies 
thereafter to be filled from the minority pool 
until the goal was reached), and Carter v. 
Gallagher, 452 F.2d 327 (8th Cir.) (en banc), 
cert, denied, 406 U.S. 950 (1972) (where the 
affirmative relief imposed under §1981 estab­
lished a goal and required 33% of the future 
hires to be minority until the goal was attained), 
both of which were cited with approval by Mr. 
Justice Powell in his separate opinion in 
Regents of the University of California v.
Bakke, 57 L.Ed.2d 750, 778 (1978) (Powell, J.). 
See also, the cases cited by Mr. Justice 
Brennan, writing for himself and for Justices 
White, Marshall, and Blackmun, 57 L .Ed.2d at 
811 n.28 (Brennan, J.).*

* The courts of appeals in nine circuits have ordered 
or approved race conscious numerical measures to remedy 
past discrimination or minority underutilization in 
employment.
FIRST CIRCUIT: Associated General Contractors of Mass.,
Inc. v. Altschuler, 490 F.2d 9 (1st Cir. 1973), cert. 
denied, 416 U.S. 957 (1974); Boston Chapter, NAACP, Inc. 
v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied,

- 5 4



The judicial imposition of ratios and goals 
in order to remedy past discrimination was spe­
cifically approved by five members of this Court 
in Regents of the University of California v. 
Bakke, supra. In Bakke, Mr. Justice Powell 
unequivocally affirmed that after findings of 
discrimination have been made, "the governmental 
interest in preferring members of the injured 
groups at the expense of others is substantial." 
57 L.Ed.2d at 782 (Powell, J.). He continued:

"In such a case, the extent of the 
injury and the consequent remedy will 
have been judicially...defined. Also, 
the remedial action usually remains 
subject to continuing oversight to 
assure that it will work the least

421 u.S. 910 (1975);
SECOND CIRCUIT: Rios v. Enterprise Association Steam-
fitters Local 638, 501 F.2d 622 (2d Cir. 1974); Bridge­
port Guardians, Inc. v. Bridgeport Civil Service 
Commission, 482 F.2d 1333 (2d Cir. 1973); United States 
v. Wood Lathers Local 46, 471 F.2d 408 (2d Cir.), cert. 
denied, 412 U.S. 939 (1973);
third CIRCUIT: Erie Human Relations Commission v. Tullio,
493 F.2d 371 (3d Cir. 1974); Contractors Association v. 
Secretary of Labor, 442 F.2d 159 (3d Cir.), cert, denied, 
404 U.S. 854 (1971) ;
FOURTH CIRCUIT: Sherrill v. J.P. Stevens & Co., 551 F.2d
308 (4th Cir. 1977);
FIFTH CIRCUIT: NAACP v. Allen, 493 F.2d 614 (5th Cir.
1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974)
(gn banc) , cert, denied, 419 U..S. 895 (1974); Local 53, 
Asbestos Workers v, Vogler, 407 F,2d 1047 (5th Cir. 1969); 
SIXTH CIRCUIT: EEOC v. Detroit Edison Co., 515 F.2d 301,
317 (6th Cir. 1975) , vac'd and rem'd on other grounds,
431 U.S. 951 (1977); United States v. Masonry Contractors 
Association, 497 F.2d 871, 877 (6th Cir. 1974); United

- 5 5 -
139



possible harm to other innocent 
persons competing for the benefit."
57 L .Ed.2d at 782 (Powell, J.).

Mr. Justice Powell also, of course, cited with 
approval not only Bridgeport and Carter, where 
judicially imposed numerical ratios and goals 
had been premised upon findings of past discrim­
ination, but also cases such as Contractors 
Association of Eastern Pa. v. Secretary of Labor 
442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 
854 (1971), and Associated General Contractors 
of Massachusetts, Inc. v. Altschuler, 490 F.2d 
9 (1st Cir. 1973) , cert. denied, 416 U.S. 957 
(1974), where administratively imposed numerical 
ratios and goals had been premised not upon 
findings of past discrimination but only upon

States v. Local 212, IBEW, 472 F.2d 634, 6 3 6 (6th Cir. 1973) 
Sims v. Local 65, Sheet Ketal Workers, 489 F.2d 1023,
1037 (6th Cir. 1973); United States v. Local 38, IBEW,
428 F .2d 144, 149 (6th Cir.), cert. denied, 400 U.S. 943
(1970) ;
SEVENTH CIRCUIT: United States v. Chicago, 549 F.2d 415
(7th Cir. 1977), cert. denied, 434 U.S. 875 (1978); 
Crockett v. Green, 534 F.2d 715 (7th Cir. 1976); Southern 
Illinois Builders Association v. Ogilvie, 471 F.2d 680 
(7th Cir. 1972);
EIGHTH CIRCUIT: United States v. N.L. Industries, Inc.,
479 F .2d 354 (8th Cir. 1973); Carter v. Gallagher, 452 
F.2d 327 (8th Cir.) (en banc), cert. denied, 406 U.S.
950 (1972);
NINTH CIRCUIT: United States v. Ironworkers Local 86,
443 F.2d 544 (9th Cir.), cert, denied, 404 U.S. 984
(1971) .

140 - 5 6 -



determinations of minority underutilization. 
57 L .Ed.2d at 778 (Powell, J . ) .*

* To be sure, there has been extensive past discrimina­
tion in the building trades. But the constitutionality 
of executive order affirmative action requirements has 
been premised not upon findings of past discrimination 
but rather upon determinations of minority underrepre­
sentation. In Contractors Association of Eastern Pa. v. 
Secretary of Labor, 442 F .2d 159 (3d Cir.), cert, denied, 
404 U.S. 854 (1971), the court held that statistical 
evidence "revealing the percentages of utilization of 
minority group tradesmen in the six trades compared with 
the availability of such tradesmen in the five-county 
area, justified the issuance of the order without regard 
to a finding as to the cause of the situation.... A 
finding as to the historical reason for the exclusion of 
available tradesmen from the labor pool is not essential 
for federal contractual remedial action." 442 F.2d at 
177. A similar decision was reached in Associated General 
Contractors of Massachusetts, Inc. v. Altschuler, 490 F .2d 
9 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974), 
where the court upheld the constitutionality of a numerical 
hiring order which had been imposed under a state executive 
order designed not to remedy past discrimination but only 
to redress minority underrepresentation. 490 F .2d at
13, 14, & 19. Gratuitously, if not as an afterthought, 
the court of appeals observed "that past racial discrimi­
nation in Boston1s contruction trades is in large part 
responsible for the present racial imbalance." 490 F.2d 
at 21.

Similar decisions have upheld the constitutionality 
of the 10% set aside for minority business enterprises 
in §103(f)(2) of the Public Works Employment Act of 1977,
42 U.S.C. §6705(f)(2), despite the fact that the 10% set 
aside was premised not on findings of past discrimination 
but only upon statistical evidence of minority enterprise 
underrepresentation. For example, in, the first post-Bakke 
decision on the 10% set aside, the Court of Appeals for 
the Second Circuit upheld the 10% set aside as constitu­
tional while observing that "the absence of such a finding

- 5 7 -  141



Mr. Justice Brennan, writing for himself 
and for Justices White, Marshall and Blackmun, 
presented an even more expansive view of the 
constitutional appropriateness of race conscious 
preferential remedies. In his view, not only 
may such remedies be imposed on government 
employers by the courts but governments volun­
tarily "may adopt race conscious programs 
designed to overcome substantial, chronic 
minority underrepresentation where there is 
reason to believe that the evil addressed is a 
product of past racial discrimination." 57 
L.Ed.2d at 819 (footnote omitted) (Brennan, J.). 
The past discrimination being remedied need not 
be that of a specifically identified employer; 
rather, the past discrimination may be "its own 
or that of society's at large." 57 L.Ed.2d at 
820-821 (Brennan, J.).

Where the past discrimination being remedied 
is not that of society at large but rather that 
of a specific employer judicially determined to 
have engaged in discriminatory practices, judi­
cially imposed numerical relief is not only 
constitutionally permissible but also equitably 
necessary. As the Fifth Circuit recently observed, 
in a post-Bakke decision approving its pre-Bakke

[of past discrimination] in the [legislative history] is
not determinative. Fullilove v. Kreps, ___F„2d , ___
(2d Cir., Sept. 22, 1978) (No. 78-6011, Slip Op. at 4830).

-5 8-



imposition of numerical hiring relief: "The
Bakke decision should not be viewed as a con­
trary decision of law applicable to the issue 
of the constitutionality of affirmative hiring 
relief, but as a decision reaffirming the 
equitable power of federal courts to remedy the 
effects of unconstitutional acts through race­
conscious means." Morrow v. Dillard, ___ F„2d

___, 47 U.S.L.W. 2233, 2234 (5th Cir.,
Sept. 29, 1978) (approving affirmative relief 
which required the employer to offer appointment 
first to every black applicant who met the 
minimal qualifications necessary for employment).

The judicially imposed numerical relief 
at issue in the instant case, of course, was not 
intended to remedy the past discrimination of 
society at large. Rather, the community-repre­
sentation goal and the 1:1:3 hiring ratio (1 
black and 1 Mexican-American to be hired for 
every three whites hired)* were imposed to 
remedy the government employer's own longstanding

* There of course is no issue in this case about whether 
affirmative relief should extend to unqualified members 
of the victimized group. The court of appeals below 
emphasized that "while it should be obvious to all, we 
nevertheless repeat the admonition that nothing said 
by this Court is to be taken as a requirement that the 
defendants hire any unqualified applicant for the 
performance of these essential jobs.” 566 F.2d at
1344.

- 5 9 - 143



discrimination. In view of defendants1 past 
practices, this affirmative relief may be 
inadequate. It certainly is less far reaching 
than the hiring relief approved in Morrow v, 
Dillard, supra; in Bridgeport Guardians, Inc, 
v . Bridgeport Civil Service Commission, supra; 
and even in International Brotherhood of Team- 
sters v. United States, 431 U.S, 324, 330 n,4 
(1977) .*

Regardless, the less far reaching affirma­
tive relief imposed here is fully consistent 
with the forms of affirmative relief approved 
by a majority of this Court in Bakke. Given 
defendants' past practices resulting in the 
employment of a workforce which was only 3.3% 
minority in a community which was 29,1% minority 
several years before trial and which shortly 
will be 40% minority, "there is a sound basis 
for concluding that minority underrepresentation 
is substantial and chronic," 57 L.Ed.2d at 816 
(Brennan, J.), and "there are no practical

* In Teamsters, this Court addressed the difficult issue 
of applying remedies to current employees bound by 
seniority agreements. Not disturbed was the relatively 
simple 1:1 hiring formula for new employees. Under that 
formula, "the company obligated itself to hire one Negro 
or Spanish-surnamed person for every white person hired 
at any terminal until the percentage of minority workers 
at that terminal equaled the percentage of minority group 
members in the population of the metropolitan area sur­
rounding the terminal." International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 330 n,4 (1977) .

- 6 0 -



means by which [defendants] could [overcome the 
effects of their past practices] in the forsee- 
able future without the use of race-conscious 
measures," 57 L.Ed.2d at 825 (Brennan, J.).*
And, given the judicial findings of past discrim­
ination, the numerical remedy "preferring members 
of the injured groups at the expense of others1' 
is entirely appropriate "since the legal rights 
of the victims must be vindicated." 57 L.Ed.2d 
at 782 (Powell, J.).

The fact that the 1:1:3 hiring ratio was 
imposed only after due consideration by a 
federal court gives even greater constitutional 
credence to the appropriateness of the remedy.
The federal courts, in the cases before them, 
unquestionably have "the authority and capability 
to establish, in the record, that the classifica­
tion is responsive to identified discrimination."
57 L.Ed.2d at 783 (Powell, J.). Especially given 
their duty to remedy past discrimination, Louisi­
ana v. United States, supra, they are unparalleled 
as jurisdictionally "competent to make those 
decisions." 57 L.Ed.2d at 783 (Powell, J.).

* The near total exclusion of minorities from the 
defendants' workforce compels this conclusion. As the 
court of appeals below observed, "an accelerated hiring 
order is the only way 'to overcome the presently existing 
effects of past discrimination within a reasonable period 
of time.'" 566 F.2d at 1344 (emphasis added).

- 6 1 - 145



"Also, the remedial action...remains subject to 
continuing oversight to assure that it will work 
the least harm possible to other innocent per­
sons competing for the benefit." 57 L .Ed.2d at 
782 (Powell, J.). As Mr. Justice Brennan 
observed, "claims of rival groups, although 
they may create thorny political problems, 
create relatively simple problems for the 
courts." 57 L .Ed.2d at 815, n,35 (Brennan, J.).

In view of defendants' historically 
exclusionary practices, the court-imposed 
affirmative remedy not only is constitutionally 
permissible but is equitably necessary.

CONCLUSION
For the foregoing reasons, the judgment of 

the Court of Appeals for the Ninth Circuit should 
be affirmed.

Dated: New York, New York
November 1, 1978

Respectfully submitted,
BRUCE J. ENNIS 
BURT NEUBORNE 
E . RICHARD LARSON 
American Civil Liberties 
Union Foundation 
22 East 40th Street 
New York, New York 10016
FRED OKRAND 
PAUL HOFFMANACLU of Southern California 
633 South Shatto Place

146 Los Angeles, California 90005
Attorneys for Amici Curiae

- 62-



In T he

(Emtrf of %  littJrit iloti'B
October Term , 1978

No. 77-1553

County of Los A ngeles et al.,
Petitioners,

V an  Davis et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE

Charles A. Bane 
T homas D. Barr 

Co-Chairmen 
Norman Redlich 

Trustee
Robert A. Murphy 
Norman J. Chachkin 
Richard T. Seymour 
Richard S. Kohn 

Staff Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 

Attorneys for Amicus Curiae

147





TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ..............................  1

STATEMENT OF THE CASE ...................................... 4

SUMMARY OF ARGUMENT ........................................  6

ARGUMENT ............................... .................................... 9

I. The Writ Of Certiorari Should Be Dismissed As
Improvidently Granted .....       9

II. The Court Of Appeals Properly Held That A 
Racially Disproportionate Impact Alone Is Suf­
ficient To Establish A Violation Of 42 U.S.C.
§ 1981......   n

(a) The Statutory Language Of 42 U.S.C.
§ 1981 Compels The Conclusion That Proof 
Of Disproportionate Racial Impact Or Ef­
fect Is Sufficient To Enable A Plaintiff To 
Establish A Prima Facie Case......................  11

(b) The Legislative History Of The Civil
Rights Act Of 1866 Supports A Broad 
Reading, Unrestricted By An Intent Re­
quirement, Of The Civil Provisions Of The 
Statute....... ................................   16

(1) Direct Evidence That Congress
Did Not Intend To Limit The Civil 
Provisions Of The Statute By An In­
tent Requirement ...................    17 2

(2) Indirect Evidence That Con­
gress Did Not Intend To Limit The 
Civil Provisions Of The Statute By An 
Intent Requirement.......................    27

(c) Judicial Precedent Supports Amicus’
Position That Discriminatory Intent Need 
Not Be Proven To Establish A Statutory 
Violation Under 42 U.S.C. § 1981 ............. 28

Page
TABLE OF AUTHORITIES .......................................... m

149



n

(1) This Court’s Cases Applying 
§ 1981 Do Not Require Intent To Be

TABLE OF CONTENTS— Continued
Page

Proven .........    29
(2) Racially Discriminatory Motiva­

tion Need Not Be Shown To Establish 
Violations Of The Thirteenth Amend­
ment .........     82

III. 42 U.S.C. § 1988 Provides A Mechanism By 
Which To Apply The Disparate Impact Stand­
ard Of Title VII To Employment Discrimina­
tion Cases Brought Under § 1981 ....................... 87

CONCLUSION  ........................................................    42

150



TABLE OF AUTHORITIES
CASES: Page

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

Anderson V. Ellington, 300 F.Supp. 789 (M.D.
Term. 1969) ...... ..... ....... ..........  34

Bailey v. Alabama, 219 U.S. 219 (1911) 34
Brazier v. Cherry, 293 F.2d 401 (5th Cir.),cert.

denied, 368 U.S. 921 (1961) ...................  39
Browder v. United States, 312 U.S. 335 (1941)'” ’ 15
Clark v. Universal Builders, 501 F.2d 324 (7th

Cir.), cert, denied, 419 U.S. 1070 (1974)..........  34
Clyatt v. United States, 197 U.S. 207 (1905).........  33, 34
Davis v. County of Los Angeles, 566 F.2d 1334

(9th Cir. 1977) ........ ..................................... 6, 9, 10
District of Columbia V. Carter, 409 U.S 418 '

(1973) ....          33
Gaston County v. United States, 395 U.S. 285

(1969) .........    15
Griffin v. Breckenridge, 403 U.S. 88 (1971) ......... 14, 33
Griggs V. Duke Power Co., 401 U.S. 424 (1971).... 7,' l l ,

13,14,15,16, 36
In Re Turner, Fed. Cas. No. 14, 247 (Cir. Ct D

Md., 1867) ......... ......... ....................... .............  25
Johnson V. Railway Express Agency, 421 U.S. 454

(1975> -....... -.......... -............................... 13,32,36,39,40
Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471 

(4th Cir. 1978), cert, filed, 47 U.S.L.W. 3153
(1978) ..... ............................. ......... .......................  40

Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1968) ............ ............................ i 3) 14, 25, 30, 31, 32, 36

Jones v. Hildebrant, 432 U.S. 184 (1977).............. 40
League of United Latin American Citizens v. City

of Santa Ana, 410 F.Supp. 873 (C.D. Cal 1976).. 30
Mahone v. Waddle, 564 F.2d 1018 (1977) ............. 37
McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 2 73 (1976) ........................ ................... 13
Metropolitan Housing Development Corp. v. Vil­

lage of Arlington Heights, 558 F.2d 1283 (7th 
Cir. 1977), cert, denied, 98 S.Ct. 752 (1978) .....  35

in

151



IV

TABLE OF AUTHORITIES—Continued
Page

Monroe V. Pape, 365 U.S. 167 (1961) ...................  33
Moor v. County of Alameda, 411 U.S. 693 (1973).. 38, 39
Pollack V. Williams, 322 U.S. 4 (1944) ..................  34
Pope v. Atlantic Coast Line R. Co., 345 U.S. 379

(1953) ...........      17
Rhode Island Chapter, Associated General Con­

tractors of America, Inc. V. Kreps, 450 F.Supp.
. 338 (D. R.I. 1978) ................    35
Robertson V. Wegman,------ U.S.--------, 56 L.Ed.2d

554 (1978) ..................   40
Runyan V. McCrary, 427 U.S. 160 (1976) ...........  25,32
Stewart V. Kahn, 78 U.S. 493 (1871) ...................  16
Sullivan V. Little Hunting Park, 396 U.S. 229

(1969) ..................................................................... 36
Takahashi V. Fish and Game Commission, 334 U.S.

410 (1948) .............................................................  8,31
Taylor v. Georgia, 315 U.S. 25 (1942) ...................  34
Tillman V. Wheaton-Haven Recreation Ass’n., 410

U.S. 431 (1973) .......................... .........................  13, 32
United States V. Freeman, 44 U.S. 556 (1845).....  16
United States V. Hunter, 459 F.2d 205 (4th Cir.

1972), cert, denied, 409 U.S. 934 (1972) ...........  33-34
Washington v. Davis, 426 U.S. 229 (1976).....6, 8,11, 30,

31,32, 33, 36, 37
Yick Wo v. Hopkins, 118 U.S. 356 (1886)...............  31

CONSTITUTION, STATUTES AND REGULATIONS:
U.S. Const., 5th Amendment ..................................  11, 30
U.S. Const., 13th Amendment.................................passim
U.S. Const., 14th Amendment.................................passim
18 U.S.C. § 242 ..........................................................  25
42 U.S.C. § 1981 .................................passim
42 U.S.C. § 1982 ........................................ 30, 31, 33, 34, 35
42 U.S.C. § 1983 ........... ........................................... 4
42 U.S.C. § 1985(3) ..................................................  33,35

152



V

42 U.S.C. § 1988 ................................................8, 38, 39, 40
Civil Rights Act of 1866 ..........................................passim
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000a et seq.........................................................passim
Equal Employment Opportunity Act of 1972, Pub.

L . 92-261, 86 Stat. 103 ..............................  9, 41
D.C. Code § 1-320 ..................................................... 30
Black Codes (various) .............................. 7, 17,18,19, 24
EEOC Guidelines on Employee Selection Proced­

ures, 29 C.F.R. § 1697 ..........................................  4

TABLE OF AUTHORITIES—Continued
Page

LEGISLATIVE MATERIALS:
1 Senate Executive Documents, 39th Cong. 2nd

Sess. (1866) .......................    18,20
Report of the Joint Committee on Reconstruction,

39th Cong. 1st Sess. Part II (1866) .................. . 18
Ibid. Part I I I .........................    18
Ibid. Part I V .................      18

Report of Gen. Carl Schurz (Dec. 1865), Senate 
Executive Documents, No. 2 ,39th Cong. 1st Sess.
(1865) ..........   18

An Act Providing for the Punishment of Vagrants, 
Virginia, Jan. 15, 1866, set forth in 1 Senate 
Executive Documents, 39th Cong. 2nd Sess. 229-
230 (1866) ...................................................     18-20

Cong. Globe, 39th Cong. 1st Sess.................. 22, 23, 24, 25,
26, 27, 28, 29

118 Cong. Rec. (1972) ..............................................  41
H. Rep. No. 92-238 (1971) ................................ .....  39

BOOKS AND ARTICLES:
M cPherson, The Political History of the United 

States of America During the Period of Recon­
struction (1871) ................................................... 21,22

153



VI

Kohl, The Civil Rights Act of 1866, Its Hour Come
Round at Last, 55 Va. L. Rev. 272 (1969).......  14,18

Landis, Statutes and the Sources of Law, Harvard
Legal Essays, 213 (1934) ...................................-  16

Note, Racially Disproportionate Impact of Facially 
Neutral Practices—What Approach Under 42 
U.S.C. Section 1981 and 1982? 1977 Duke L.J.
1267  ................ ...............................................14,15,16

Note, The Expanding Scope of Section 1981: As­
sault on Private Discrimination and a Cloud on 
Affirmative Action, 90 Harv. L. Rev. 412 
(1976) ......................... ...........................................  14

TABLE OF AUTHORITIES— Continued
Page

154



In The

(Emtrt a t tfyp States
October Term, 1978

No. 77-1553

County of Los Angeles et aL,
Petitioners,

v.
Van Davis et al.,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for  Civil Rights Under Law 
was organized in 1963, at the request o f the President of 
the United States, to involve private attorneys through­
out the country in the national effort to assure civil 
rights to all Americans. The Committee’s membership 
today includes two form er Attorneys General, ten past 
Presidents o f the American Bar Association, a number 
of law school deans, and many o f the nation’s leading 
lawyers. Through its national office in Washington, D.C., 
and its offices in Jackson, Mississippi, and eight other 
cities, the Lawyers’ Committee over the past fifteen years

155



2

has enlisted the services of over a thousand members of 
the private bar in addressing the legal problems o f mi­
norities and the poor in voting, education, employment, 
housing, municipal services, the administration o f justice, 
and law enforcement.

The Lawyers’ Committee has been actively involved in 
a broad program  o f litigation across the country to 
enforce the rights o f minorities and o f women to freedom 
from  discrimination in employment. The Lawyers’ Com­
mittee provided representation before this Court in 
Chandler v. Roudebush, 425 U.S. 840 (1976), and has 
filed amicus briefs in Fitzpatrick v. Bitzer, 427 U.S. 445
(1976), in Hazelwood School District v. United States, 
438 U.S. 299 (1977), in Christiansburg Garment Co. V. 
EEOC, 54 L.Ed.2d 648 (1978), and in Monell v. New 
York City Dept, of Social Services, 56 L.Ed.2d 611 
(1978). The Lawyers’ Committee has perform ed ex­
tensive research on the legislative history o f civil rights 
measures enacted during the Reconstruction era, and has 
previously made the benefits o f its research available to 
this Court in cases such as Fitzpatrick, Monell, Jones V. 
Hiidebrant, 432 U.S. 183 (19771,1 and Hutto v. Finney, 
57 L.Ed.2d 522 (1978).

One o f the areas o f the Committee’s greatest involve­
ment has been that o f employment discrimination against 
State and local police and fire departments. This litiga­
tion is important not just for  the number o f jobs it 
entails, but also because o f the symbolic value o f such 
employment. When members o f m inority groups are able 
to compete for  these jobs and be hired, it demonstrates 
to society as a whole the reality o f equal opportunity.

1 After oral argument, this Court dismissed the writ of certiorari 
as improvidently granted, as it had become clear that Petitioner 
in Jones was not seeking damages for the injury to and killing of 
her son, but rather damages for deprivation of her claimed parental 
interest in the life of her son. 432 U.S. at 189.

156



3

The racial integration of police and fire departments is 
often perceived as responsible for dramatic improvements 
in the relations between such departments and members 
of minority groups, with a corresponding decline in com­
plaints of police brutality and a corresponding improve­
ment in the delivery of these important services.

The decision o f the present case will have a strong 
effect upon such litigation. Many suits against local 
police and fire departments were brought in the period 
before enactment of the Equal Employment Opportunity 
Act of 1972, Pub.L. 92-261, 86 Stat. 103, which extended 
the coverage of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §§ 2000e et seq., to State and local em­
ployment. These suits commonly challenged local testing 
requirements which, while unvalidated and often unre­
lated to the requirements of employment in police and 
fire departments, were routinely allowed to continue in 
operation despite a track record of disqualifying all but 
a handful of minority applicants. Many of these suits 
were successful, but resulted in remedial orders under 
which the district courts retained jurisdiction for par­
ticular purposes. Because it is rare that discriminatory 
purpose could be proven with respect to the adoption of 
a testing requirement, the relief granted in such cases 
may have to be dissolved if  this Court were to hold 
that proof of discriminatory purpose is required to es­
tablish a violation of § 1981.

The decision of the present case is important for yet 
another reason. As the record of the instant case shows, 
tests for employment in police and fire departments are 
not given according to a regular schedule, and several 
years may pass between tests. The period of time be­
tween the announcement of a test and the commencement 
of hiring based on the test results may be only a couple 
of months, far less than the minimum 180-day waiting 
period from the filing of a Title VII charge with the

157



4

Equal Employment Opportunity Commission to the At­
torney General’s issuance of a Notice of Right to Sue.2 
If relief cannot be sought under § 1981 in such testing 
cases, hiring may have been completed by the time a 
Title VII case can be brought.

The parties have consented to the filing of this brief.

STATEMENT
The Complaint was filed on January 11, 1973, alleg­

ing racial discrimination against blacks and against 
Mexican-Americans by the Los Angeles County Fire De­
partment. While the original Complaint is not included 
in the Appendix, the Second Amended Complaint, filed 
on April 16, 1973, alleged violations of Title VII and 
of 42 U.S.C. §§ 1981 and 1983 because of discrimina­
tion in recruitment “ at least until 1969” , and because of 
the use of written and oral tests, and of other practices, 
which had a racially disparate effect on blacks and on 
Mexican-Americans, but which had not been validated 
and which were not in fact job-related. App. 8-9. The 
parties stipulated facts establishing that the past hiring 
tests used by the Los Angeles County Fire Department 
had had a racially disparate effect on blacks and on 
Mexican-Americans, and stipulated that the County had 
never performed a validation study of these tests under 
the procedures set forth in the EEOC Guidelines on 
Employee Selection Procedures, 29 C.F.R. § 1607. App. 
21-23.

Paragraphs 22-24 of the parties’ Stipulation are cen­
tral to this case. They recite that a test was adminis­
tered in January 1972 to 2,414 applicants, that the 
highest-scoring 544 applicants were selected for oral in­
terviews, that the oral interviews commenced on January

2 Sec. 706(f)(1) of the Act, 42 U.S.C. § 2000e-5(f)(1).

158



5

3, 1972, that the County decided on January 8, 1972 to 
discontinue this procedure and to interview substantially 
all o f the applicants with passing scores, and that the 
expanded interviews began on January 20, 1973. App. 
24-25. There is no explanation o f record for  the differ­
ence of more than a year between the two sets of inter­
views. Given the district court’s finding that the County 
had used its old procedure with respect to the written 
test “ until learning that this lawsuit was about to 
commence” , App. 39, and given that the lawsuit actually 
commenced on January 11, 1973, it seems evident that 
most or all o f the stipulated 1972 dates should actually 
have been dates in 1973.

The district court found that the County’s use o f 
written tests was discriminatory, and found that the City 
had discriminatorily failed to take the necessary affirma­
tive steps to overcome its discriminatory reputation in 
the black and Mexican-American communities. It upheld 
the County’s 5 '7 " height requirement fo r  employment, 
and ordered affirmative hiring relief under which at least 
20% o f all new persons employed in firemen positions 
would be black, and at least 20%  would be Mexican- 
American, until the percentage o f each respective group 
employed as firemen should equal the percentage o f that 
group in the general population of the County. This 
hiring relief was expressly based on the district court’s 
finding that it was necessary to overcome the “ presently 
existing effects o f past discrimination” , and was thus 
based on the County’s failure to overcome the effects of 
its discriminatory reputation, as well as on its testing 
practices. App. 39-40, 42, 46.

On appeal, the U.S. Court o f Appeals for the Ninth 
Circuit affirmed the district court’s findings of discrimi­
nation, holding that Title V II standards o f proof were 
applicable to claims raised under § 1981, reversed the 
district court on the 5 '7" height requirement, and re­

159



6

manded the hiring relief fo r  reconsideration in light of 
the reversal o f the height requirement. App. 52-78. The 
Court of Appeals subsequently granted the County’s pe­
tition for rehearing in light o f the decision in W ashing­
ton  V. D avis, 426 U.S. 229 (1976), and withdrew its 
earlier opinion. In its new decision, the Court o f Appeals 
again decided that Title V II standards o f proof were 
applicable to § 1981 claims, and reached the same re­
sult with respect to the district court’s findings. The 
remand o f the hiring relief ordered by the district court 
was broadened, however, so that the district court could 
also consider the propriety o f the hiring relief in light 
o f the holding o f the Court o f Appeals that plaintiffs 
had no standing as individuals to challenge the 1969 
and earlier tests, and that the failure to certify  a class 
o f past applicants meant that the earlier tests could not 
be challenged in the litigation. 566 F.2d 1334, 1337-38 
(9th Cir., 1977). While the original decision o f the Court 
o f Appeals expressly refused to consider the County’s 
failure to overcome its discriminatory reputation as a 
ground for relief, App. 57 note 6, the Court o f Appeals 
deleted this statement in its decision on rehearing and 
this finding by the district court is apparently available 
as a ground for relief.

On June 19, 1978, the County’s petition fo r  certiorari 
was granted.

SUMMARY OF ARGUMENT

I .

This case presents a narrow but exceedingly important 
issue: whether racially motivated intent is necessary to 
establish a prima facie violation o f 42 U.S.C. § 1981. 
In the first section of our brief, we suggest that this 
case may not be the appropriate vehicle for  the resolu­
tion o f that question. There is good reason to believe 
that, but for  a clerical error in a stipulation, this case

160



7

could have been resolved under Title VII. Because the 
Court o f Appeals has ordered the case remanded to the 
lower court on remedial questions, there will be ample 
opportunity fo r  the court to ascertain whether a clerical 
error was made and to order relief under Title V II i f  
appropriate. Accordingly, wTe urge the Court to dismiss 
the w rit o f certiorari as improvidently granted.

II.

(a) By its plain language, § 1981 is directed to the 
consequences, and not the motivation, o f discriminatory 
employment practices. The similar language o f Title 
VII was construed by this Court in G riggs  v. D uke  
P ow er Co., 401 U.S. 424 (1971) to mean that disparate 
impact unjustified by business necessity is sufficient. The 
language o f § 1981 is no less stringent. The same stand­
ard o f proof should be applied to both statutes because 
they share the same remedial purposes and because Con­
gress intended them to be read in  pa ri m ateria.

(b) Adoption o f a broad, rather than a restrictive 
standard o f proof under :§ 1981 would better implement 
Congress’ aims as reflected in the legislative history and 
is consonant with the accepted doctrine o f the day that 
statutes were capable o f growth and should be adapted 
to meet new situations.

The legislative history shows that Congress was con­
cerned about facially neutral statutes that had a dis­
criminatory impact on blacks. The Congress was aware 
of, and approved, the action taken by military com­
manders in South Carolina and Virginia to enjoin the 
enforcement o f  vagrancy laws enacted as part o f the 
Black Codes to maintain the system o f white supremacy 
in the South. Although neutral on their face, these 
statutes had their greatest impact on blacks who were 
often unable to purchase land or find work.

161



8

The Congressional discussion o f intent centered on the 
penal provisions o f ;§ 2 o f the Act. W ithout making any 
separate reference to civil liability, proponents o f the bill 
maintained that the need fo r  proof o f intent in criminal 
prosecutions could be inferred from  the fact that § 2 was 
a penal provision. No' such implication can be drawn 
concerning civil redress.

Finally, limitation o f the scope o f  :§ 1981 to willful 
acts o f discrimination would be inconsistent with the 
broad practical purposes envisaged by Congress when it 
enacted the Civil Rights A ct o f 1866, 14 Stat. 27.

(c) This Court’s decisions support the contention that 
disparate impact is the proper test to be applied in 
cases brought under § 1981. This is the clear im port of 
W ashington  v. D avis, 426 U.S. 229 (1976) and was the 
express holding in Takahashi V. F ish  and G am e Com­
m ission, 334 U.S. 410 (1948). Moreover, it is settled 
that § 1981 derives from  the Thirteenth Amendment, and 
both this Court and the lower federal courts have held 
that intent need not be proven when suit is brought to 
eliminate the badges and incidents o f slavery.

III.

The provisions o f 42 U.S.C. § 1988 should be used to 
incorporate the Title V II standard o f proof into ;§ 1981 
employment discrimination cases. As part o f the Civil 
Rights A ct o f 1866, § 1988 was intended to augment 
the substantive provisions o f the A ct where matters 
unforeseen by Congress arise. In enacting Title VII, 
Congress has made clear that it is concerned with the 
consequences, and not the motivations, underlying em­
ployment practices unjustified by business necessity. Ap­
plying the Title V II standard to employment cases 
brought under § 1981 would carry out the intent of 
Congress.

162



9

ARGUMENT

I.

THE WRIT OF CERTIORARI SHOULD BE DIS­
MISSED AS IMPROVIDENTLY GRANTED

Before turning to a discussion o f the issues presented 
by this appeal, it is well to consider whether the Court 
should address those issues at all given the posture o f this 
case. First, it may be wholly unnecessary to decide the 
difficult question o f what standard o f proof should be 
required in cases brought under § 1981. As Judge W al­
lace points out in his dissent, it appears that a clerical 
error in a stipulation may be responsible for the finding 
that Title VII of the Civil Rights A ct of 1964, 42 U.S.C. 
§§ 2000e e t  seq., is unavailable to the plaintiffs as the 
basis fo r  a remedy fo r  the defendants’ activities occurring 
after March 24, 1972. 566 F.2d at 1347 n.2.;s Since the 
remedy ordered by the Court is within the scope o f Title 
VII, no practical purpose would be served by resolving 
the merits o f the § 1981 controversy. In fact, one might 
expect that, even i f  the petitioners prevail on the merits 
of their argument that the Court below applied the im­
proper standard o f  proof, the respondents would argue on 
remand that, once the record is corrected, Title V II is an 
independent and adequate basis upon which to predicate 
liability. Given this ambiguity in the record, the proper 
course would be to dismiss the grant o f certiorari con­
cerning this part o f the case as improvidently granted.

8 T h e  issu e  con cern s  w h eth er  th e  defen dants  abandoned th e ir  
pian to  m ake a  d is cr im in a tory  use o f  the 1972 exam in ation  on Janu­
ary  8, 1972, w h ich  w a s  b e fo r e  M a rch  24, 1972, th e  e ffectiv e  date o f  
the E qual E m p loy m en t O p p ortu n ity  A c t  o f  1972, P u b .L . 92-261, 
86 Stat. 103, w h ich  extend ed  T itle  V I I  to State and local gov ern ­
m ental em p loyers, o r  a t a  date subsequen t to  M arch , 1972. T h e  
record  s tron g ly  su g g ests  th at th e actual date w as in  Janu ary  1973, 
shortly  b e fo r e  th e  filin g  o f  su it. See d iscu ssion  in  S tatem en t o f  
Facts.

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10

Petitioners also contend that the district court exceeded 
its jurisdiction in its quota hiring order. The Court of 
Appeals rejected this argument on the ground that such 
relief would have been proper under Title V II and that 
the court’s remedial power under Section 1981 is at least 
as broad. 566 F.2d at 1342-43. The court remanded this 
aspect o f the case, however, to allow the district court 
to reconsider its hiring order in light o f the holding of 
the Court o f Appeals that the 5 '7"  height requirement 
for employment was invalid, and in light o f the Court of 
Appeals’ holding that respondents “ lacked standing to 
challenge defendants’ use o f the 1969 examination.” 4 
566 F.2d at 1343. On remand, the district court has the 
power to continue the existing order, to strengthen or 
weaken it, or to deny affirmative hiring relief altogether, 
in light o f the decision o f the Court o f Appeals on 
standing.

Because the present status o f the hiring order is un­
certain, because it may well be that the district court on 
remand will determine that any relief granted may be 
entered under Title V II as well as under Section 1981, 
and because the remedial issues may be altered greatly 
by an expansion o f the class to include past applicants, 
it is unnecessary to confront the remedial issues at this 
time. Dismissal o f the w rit o f certiora ri as improvidently 
granted would conserve judicial resources and obviate the 
need fo r  a ruling on important questions which appears 
to be unnecessary to the resolution o f this case.

4 T h is  h o ld in g  w a s  ba sed  on  th e  d is tr ic t  co u r t ’ s fa i lu re  to  c e r t ify  
a  class  o f  p a st app lican ts . 566 F .2 d  a t 1337. I f  th e d is tr ic t  court 
exp an ds th e class de fin ition  on  rem an d, th e  rem ed ia l issues w ould 
b e  ca st in  an  e n tire ly  d iffe ren t lig h t. T h e  d is tr ic t  co u r t ’s re ce ip t o f 
ev id en ce  o f  d iscr im in a tion  fr o m  ea rlie r  a d m in istra tion s  o f  the test 
su g g ests  th a t i t  th o u g h t th e  r ig h ts  o f  p a st app lican ts  w ere  included 
in  th e case, and  n o th in g  o f  re co rd  su g g ests  th a t th e ir  om iss ion  from  
th e  class d efin ition  w a s  a dverten t. N o w  th a t th e C ou rt o f  Appeals 
has em phasized  th e  con sequ en ces o f  th e  om ission , th e  d is tr ic t  cou rt 
m a y  ch oose  to  cu re  th e  om iss ion  ra th er  th an  to  can cel th e rem edy.

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11
II.

THE COURT OF APPEALS PROPERLY HELD THAT 
A RACIALLY DISPROPORTIONATE IMPACT ALONE 
IS SUFFICIENT TO ESTABLISH A VIOLATION OF 
42 U.S.C. § 1981

In Washington V. Davis, 426 U.S. 229 (1976), the 
Court held that proof o f discriminatory purpose or in­
tent is required to establish a constitutional violation 
under the equal protection guarantees o f the Fifth and 
Fourteenth Amendments. 426 U.S. at 239-45. But in the 
course o f its opinion, the Court made equally clear that 
Congress may predicate statutory liability for discrimi­
nation on proof o f racially disproportionate impact alone. 
426 U.S. at 246-48. Cf. Griggs V. Duke Power Co., 401 
U.S. 424 (1971). Amicus believes that the statutory 
language o f 42 U.S.C. § 1981, its legislative history, the 
case law, and underlying public policy considerations 
require the conclusion that racial animus need not be 
proven in order to establish a prima facie case.

(a) The Statutory Language of 42 U.S.C. § 1981 Compels 
the Conclusion That Proof of Disproportionate Racial 
Impact or Effect Is Sufficient to Enable a Plaintiff 
to Establish a Prima Facie Case.

Resolution o f the question o f what standard o f proof 
should be required in an employment discrimination suit 
under § 1981 is aided by the decisions o f this Court con­
struing the language o f Title VII. That statute was 
enacted “ to ensure equality o f employment opportunities 
by eliminating those practices and devices that discrimi­
nate on the basis o f race, color, religion, sex or national 
origin.”  Alexander v. Gardner-Denver Co., 415 U.S. 36, 
44 (1974 ).5 In Griggs, this Court found that “ Congress

5 T it le  V I I  p rov id es  in  p ertin en t p a r t :
Sec. 7 0 3 (a )  I t  shall b e  an u n law fu l em ploym ent p ra ctice  fo r  
an em p loyer—

*  * *  *  *

( 2 )  to  lim it, seg reg a te , o r  c la s s ify  h is  em ployees in  an y  w ay

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12

directed the thrust o f the A ct to the consequences o f em­
ployment practices, not simply the motivation” , and that 
“ good intent or absence o f discriminatory intent does 
not redeem employment procedures or testing mechanisms 
that operate as ‘built-in headwinds’ fo r  m inority groups 
and are unrelated to measuring job capability.”  Id. at 
432 (emphasis in original). This, the Court held, was 
the inexorable meaning o f the language chosen by 
Congress:

The objective o f Congress in the enactment o f title 
Y II is plain from  the language o f the statute. It 
was to achieve equality o f employment opportunities 
and remove barriers that have operated in the past 
to favor an identifiable group o f white employees over 
other employees. Id. at 429-30.

The language o f § 1981 is no less rigorous than Title 
V II in its protection in the same right o f all persons “ to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit o f all laws and 
proceedings for the security o f persons and property as 
is enjoyed by white citizens, . . .”  42 U.S.C. § 1981.'5

w h ich  w ou ld  d ep riv e  o r  ten d  to  d ep rive  a n y  in d iv id u a l o f  
em p loym ent op p ortu n ities  o r  o th erw ise  ad v erse ly  a ffe ct his 
status as an  em ployee, b eca u se  o f  such  in d iv id u a l’s race , color, 
re lig ion , sex, o r  n ation a l o r ig in . 78 Stat. 255, 42 U S C  § 2000e-2.

*  *  *  *

Sec. 7 0 6 (g )  I f  th e  co u r t  finds th a t th e  resp on d en t h as inten­
tion a lly  en g a g ed  in  o r  is  in ten tion a lly  e n g a g in g  in  an unlaw ful 
em p loym en t p ra ctice  . . . th e  co u r t  m ay  en jo in  th e  respon den t 
. . . and o rd e r  such  affirm ative  a ction  as m a y  b e  appropriate , 
w h ich  m a y  in clu d e . . . h ir in g  o f  em ployees, w ith  o r  w ith ou t 
ba ck  p a y  . . . , o r  an y  o th er  equ itab le  re lie f  as th e  cou rt deems 
ap p rop ria te . . . .

42 U .S .C . §§ 2 0 0 0 e -2 (a ) , 2 0 0 0 e -5 (g ) .

6 T h e  fu ll tex t o f  42 U .S .C . § 1981 i s :
A ll person s w ith in  th e ju r is d ic t io n  o f  th e U n ited  S tates shall 

h av e  th e  sam e r ig h t  in  ev ery  State  and T e r r ito r y  to  m ake and 
e n fo rce  con tra cts , to  sue, b e  p a rties , g iv e  ev id ence, an d  to  the

166



13

It was originally designed to uproot the institution of 
slavery and to eradicate its badges and incidents. See 
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-37 
(1968) ; Tillman v. Wheaton-Haven Recreation Ass’n., 
410 U.S. 431, 439 (1973). It was to ensure that all 
persons, white or black, would be afforded equal op­
portunities to secure those rights which the framers 
deemed fundamental to a civilized society, and which 
they enumerated in the statute. McDonald V. Santa Fe 
Trail Transportation Co., 427 U.S. 273  (1976). It is 
the condition of having lesser contractual rights and op­
portunities than those “ enjoyed by white citizens”  which 
demonstrates a violation o f the statute.

Title V II and § 1981 “ augment each other” , although 
they are not precisely coextensive in their coverage. 
Johnson v. Railway Express Agency, 421 U.S. 454, 460, 
461 (1975). While Congress intended these administra­
tive and judicial remedies to operate independently of 
one another, they share a common goal. There is noth­
ing in the language o f !§ 1981 that would require, or 
justify, a greater measure o f proof in making a prima 
facie case than is required under Title VII. In fact, 
proof under !§ 1981 should be less burdensome because it 
lacks the phrase “ because o f race”  which is contained in 
Title V II.* 7

fu ll and equal benefit o f  all law s and p roceed in g s  f o r  th e  secu r ity  
o f  p erson s and p r o p e r ty  as is en joy ed  b y  w h ite  citizen s, and 
shall b e  s u b je c t  to  like  pu nishm ent, pains, penalties, taxes, 
licenses, and ex a ction s  o f  ev ery  k ind, and to  n o other.

7 See fo o tn o te  5. I t  cou ld  b e  argu ed  th a t th e  ph rase  “ because o f  
race”  im plies  a  casual re la tion sh ip  betw een  m otiva tion  and the 
resultant d iscr im in a tion . In  Griggs, th is  C ou rt m ade no m en tion  o f  
this phrase. S ection  1981 con ta in s n o such  language and flatly states 
that all person s  shall b e  p ro tected  in  the r ig h ts  enum erated  in  the 
statute to  th e  sam e ex ten t as w h ite  c itizen s.

I t  w ou ld  b e  anom alous to  hold  th a t T it le  V I I  does n ot req u ire  
p ro o f o f  in ten t d esp ite  the sta tu tory  requ irem en t th at respondents 
have in ten tion a lly  en g a g ed  in  an u n law fu l em ploym ent p ra ctice  as

167



14

In Jones V. Alfred, H. Mayer Co., 392 U.S. 409 (1968), 
the Court held that § 1 o f the Civil Rights A ct of 1866 
was “ cast in sweeping terms” , Id. at 422, and that it 
should be given a “ sweep as broad as its language” . Id. 
at 437. Implementation o f this principle requires the 
conclusion that, by its terms, § 1981 does not require 
proof o f discriminatory intent.

In addition to the plain language o f the statute there 
are substantial policy reasons that would support ap­
plication o f the disparate-impact test in actions brought 
under § 1981. As we develop more extensively herein­
after, it is clear from  the legislative history that § 1981 
was intended to give practical force and effect to the 
mandate o f the Thirteenth Amendment to eradicate the 
badges and incidents o f slavery. See Jones v. Alfred 
H. Mayer Co., 392 U.S. at 422-37. The trend o f this 
Court’s decisions has been to broaden the reach o f the 
Thirteenth Amendment, as it did in Jones, by holding 
that racial discrimination in the sale o f real estate is a 
badge or incident o f slavery, and to accord the Recon­
struction Civil Rights statutes an expansive interpreta­
tion. Griffin v. Breckenridge, 403 U.S. 88, 97 (1971). 
See Note, The Expanding Scope o f Section 1981: As­
sault on Private Discrimination and a Cloud on Affirma­
tive Action, 90 Harv. L. Rev. 412 (1976) ; Kohl, The 
Civil Rights Act o f 1866, Its Hour Came Round at Last: 
Jones v. Alfred H. Mayer Co., 55 Ya. L. Rev. 272 
(1969 ).8 Even i f  the Reconstruction Congress did not

a  con d it ion  o f  re lie f, and to  hold  th a t § 1981 does re q u ire  p r o o f  o f  
d is cr im in a tory  p u rp ose  desp ite  th e  e ffects -or ien ted  la n g u a ge  o f  the 
statute.

8 Im p lic it  in  Griggs v . Duke Power Co., supra, is  th e  fa c t  th a t poor 
p er fo rm a n ce  b y  b lacks on  stan dard ized  in te llig en ce  te s ts  and th e low  
percen ta g e  o f  b lacks w ith  h ig h  sch ool d ip lom as “ a re  lin ked  to  slavery 
and its  p ern ic iou s  a fte r -e ffe c ts  on  th e edu cation a l op p ortu n ities  
ava ilab le  to  b lack s.”  N ote , R a cia lly  D isp rop ortion a te  Im p a ct o f  
F a cia lly  N eu tra l P ra c tice s— W h a t A p p roa ch  U n d er 42 U .S .C . Sec­

168



15

anticipate the form  that badges and incidents of slavery 
would take in modern times, the Court should adopt a 
rule o f proof that will effectuate the underlying inten­
tion to eradicate the incidents o f slavery. C f. B row d er
V. U nited S tates, 312 U.S. 335 (1941) ; see the discussion 
infra.

As one commentator has argued:

[U ]se o f the disproportionate impact theory under 
sections 1981 and 1982 is supported by three related 
considerations. First, civil rights legislation is now 
recognized by the courts as being remedial in nature 
and thus deserving o f liberal interpretation to realize 
the beneficient (sic) purposes underlying the statutes. 
Second, Title V II and sections 1981 and 1982 should 
be interpreted in pari materia because they have sim­
ilar remedial purposes. The courts have generally 
given these statutes parallel interpretations in mat­
ters o f substance. And finally, Congress has im­
pliedly consented to the reading o f section 1981 in 
pari materia with Title V II by refusing to amend 
Title V II in 1972 so as to make it the exclusive 
remedy for employment discrimination.

The use o f the disproportionate impact standard 
fo r  sections 1981 and 1982 is permissible under the 
broad language o f those statutes and is desirable as 
a method o f effectuating the underlying congressional 
purpose.

Note, supra, 1977 Duke L. J. at 1286-87. (Footnotes 
omitted.) 9

tion  1981 and 1982? , 1977 D uke L .J. 1267, 1286. T h e  stan dard  o f  
p r o o f  w h ich  th e  C ou rt announced in  Griggs w as design ed  to e ffe ctu ­
ate C on g ress ’ in ten t th a t “ artificia l, a rb itr a r y  and u nn ecessary  b a r ­
riers  to  em p loym en t”  b e  elim inated . 401 U .S . a t 481. See Gaston 
County v . United States, 395 U .S . 285 (1 9 6 9 ), c ited  b y  th is C ou rt 
in Griggs.

9 W ith  resp ect to  C on g ress ’ d iscu ssion  o f  the re la tion sh ip  b e ­
tween T it le  V I I  and  § 1981, see tex t, infra, a t 40-41.

169



16

(b) The Legislative History of the Civil Rights Act of 
1866 Supports A Broad Reading, Unrestricted By An 
Intent Requirement, of the Civil Provisions of the 
Statute

It would be unrealistic to examine the legislative his­
tory o f the Civil Rights A ct o f 1866 for discussions of 
disparate-impact analysis such as the discussion o f this 
Court in G riggs.10 There are strong indications in the 
legislative history o f the 1866 Act, however, that a 
broad reading o f the statute so as to prohibit both dis­
parate-impact and intentional discrimination is more in 
harmony with the intent o f Congress than a restriction 
o f its reach to acts o f purposeful discrimination.

Such indications are o f particular importance in con­
struing statutes o f this period because a contemporaneous 
doctrine o f statutory construction held that the words and 
original application o f a statute did not necessarily limit 
its effect. Like a judicial precedent, a statute was con­
sidered as being to some extent capable o f growth under 
the demands o f a changed situation, so that it would 
continue to serve its original purposes. This Court 
recognized this doctrine o f “ the equity o f the statute” 
in U nited S ta tes  v. F reem an , 44 U.S. 556, 565 (1845), 
and cautioned that there should not be “ an equitable 
construction of statutes beyond the just application of 
adjudicated cases.”  In S tew a rt v. K ahn, 78 U.S. 493, 
504 (1871), this Court held that “ severe and literal” 
constructions should be avoided, and continued: “ A  case 
may be within the meaning o f a statute and not within 
its letter, and within its letter and not within its mean­
ing. The intention o f the law maker constitutes the 
law.”  S ee also Landis, “ Statutes and the Sources of 
Law” , H arvard  L ega l E ssays  213 (1934). Whatever

10 E.g., Note, supra, 1977 D uke L .J . a t 1280.

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17

may be the current force o f this doctrine,11 it was un­
deniably accepted in the 1860’s, and the 39th Congress 
must be considered— absent persuasive evidence in the 
legislative history o f the 1866 Act to the contrary— to 
have fram ed the A ct under the assumption that its in­
terpretation would not be limited to the specific situa­
tions then facing Congress, but was capable o f growth 
to meet new situations. I f  there is no adequate direct 
evidence as to an intent requirement, therefore, the 
inquiry must shift to the identification o f the prim ary 
purpose o f Congress. I f  the prim ary purpose was to 
secure a practical result, this would indicate an inten­
tion that the reach o f the statute be capable o f growth 
sufficient to accomplish that result. I f  the congressional 
purpose was only to ensure facial neutrality in the ac­
tions o f State and local government officials, while ban­
ning the more egregious private actions as well, this 
limited view o f the statute would support petitioners.

(1) D i r e c t  E v i d e n c e  T h a t  C o n g r e s s  D i d  N o t  I n t e n d  

t o  L i m i t  t h e  C i v i l  P r o v i s i o n s  o f  t h e  S t a t u t e  B y  

a n  I n t e n t  R e q u i r e m e n t

The strongest indication that Congress considered and 
accepted a disparate-impact standard arose in the course 
of debate on the effect of the statute on the “ Black 
Codes”  adopted by Southern legislatures after the end 
of the war, and the desire o f Congress to enact into 
positive law in the statute the military orders disapprov­
ing those codes. Many provisions of the Black Codes 
were not discriminatory on their face; some went so fa r 11

11 In  h is  d issen tin g  op in ion  in  Pope v. Atlantic Coast Line R. Co., 
345 U .S . 379, 390 (1 9 5 3 ) , J u stice  F r a n k fu rte r  s ta ted :

S tatutes, even  as dec ision s, a re  n ot to  be deem ed se lf-en closed  
in sta n ces ; th ey  a re  to  b e  rega rd ed  as s ta rtin g  poin ts o f  rea ­
son in g , as m eans f o r  se cu r in g  coh eren ce  and fo r  e ffeetu ta tin g  
pu rpose.

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18

as to guarantee blacks the right to own property.12 The 
evils Congress sought to redress in relation to these 
codes were o f two kinds: the explicit racial discrimina­
tion in some provisions o f the codes, and also the racially 
disparate operation o f certain harsh but facially neutral 
provisions such as the vagrancy and apprenticeship laws. 
These latter provisions applied to blacks and whites 
alike,13 but harmed blacks to a much greater extent than 
whites because o f the private actions o f whites in re­
fusing to sell land to blacks or to employ blacks at a 
fa ir  wage.14

The provisions of the V irginia  vagrancy law are an 
excellent case in point. On its face, the statute applied 
to both blacks and whites, and defined as vagrants the 
members o f either race who were beggars, or who had 
no visible means o f support, or who, “ not having where­
with to maintain themselves and their families, . . . live 
idly and without employment, and refuse to work for  the

12 K ohl, supra, 55 V a .L .R ev . a t 276-78 . T h e  B lack  C odes w ere  col­
lected  in  1 Senate Executive Documents (3 9 th  C on g., 2nd Sess.) 
(1 8 8 6 ) N o . 6 a t 170-230. See n o te  15 infra.

13 1 Senate Executive Documents, supra, N o. 6 a t  170-71 (A la ­
bam a, A c t  o f  D ecem ber 15, 1865 con cern in g  v a g ra n ts  o r  v a g ra n cy ) ; 
a t 180-81 (G eorg ia , A c t  o f  M a rch  17, 1866 in  re la tion  to  appren ­
t ic e s )  ; a t  181-83 (L ou isian a , A c t  reg u la tin g  la b or  con tra cts  fo r  
a g r icu ltu ra l p u rsu its , n o t then  s ig n ed  b y  th e  G o v e r n o r ) ; a t 184-85 
(L ou isian a , A c t  o f  D ecem ber 20, 1865 f o r  th e  p u n ish m en t o f  va­
g ra n cy ) ; a t 186 (L ou isian a , A c t  o f  D ecem ber  21, 1865 in  relation  
to  a p p ren tices  and in den tu red  s e r v a n t s ) ; a t 218-19 (S o u th  C arolina, 
§§ 95-99 o f  th e A c t  o f  D ecem ber 21, 1865, re la tin g  to  v a g ra n cy ) ; 
and a t 229-30  (V ir g in ia , A c t  o f  Jan u a ry  15, 1866 p r o v id in g  f o r  the 
pu n ish m en t o f  v a g ra n ts ) . A s  w ill b e  seen  h erea fte r , th e  prov is ion s 
o f  th e  B lack  C odes w ere  d iscu ssed  fre q u e n tly  in  th e d eb a tes  on  the 
1866 A ct .

14 R ep or t o f  th e  J o in t  C om m ittee  on R econ stru ction , 39th  Cong., 
1st Sess. (1 8 6 6 ) , p a r t  II  a t 55, 83, 235-36 , p a r t  I I I  a t 9, 22, 36, 71, 
and p a rt I V  a t 56, 69, 82 and 11 7 ; R ep or t o f  G eneral C arl Schurz 
(D ecem b er  1 8 6 5 ), 1 Senate Executive Documents, (39 th  C ong., 1st 
Sess., 1865) N o. 2 a t 22, 24-25 , 8 2 ; K ohl, supra, 55 V a .L .R ev . at 
279-83.

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19

usual and common wages given to other laborers, in the 
like work, in the place where they then are.”  Vagrants 
of both races were subject to arrest and to a warrant 
ordering them “ to be employed in labor for any term not 
exceeding three months . . . fo r  the best wages that can 
be procured . . .  to be applied . . .  fo r  the use o f the 
vagrant or his fam ily.”  15 Nine days after its enactment, * 1

15 T h e  com p lete  p rov is ion s  o f  th e  V ir g in ia  A c t  o f  Jan u ary  15, 
1866, “ A n  A c t  P r o v id in g  f o r  th e P u n ish m en t o f  V a g ra n ts ” , a r e :

1. Be it enacted by the general assembly, T h a t th e  overseers  
o f  th e  p oor , o r  o th er  officers h av in g  ch a rg e  o f  th e p oor , o r  th e 
specia l cou n ty  p o lice , o r  th e p o lice  o f  an y  corp ora tion , o r  an y  one 
o r  m ore  o f  such  p erson s, shall be, and are h ereby , em pow ered  
and  req u ired , on  d is cov er in g  an y  v a g ra n t o r  va gra n ts  w ith in  
th e ir  resp ectiv e  cou n ties  o r  corp ora tion s , to  m ake in fo rm a tion  
th e r e o f  to  a n y  ju s t ic e  o f  th e p eace o f  th e ir  cou n ty  o r  corp ora ­
tion , and  to  req u ire  a  w a rra n t f o r  app reh en d in g  such  va gra n t 
o r  va g ra n ts , to  b e  b ro u g h t b e fo r e  h im  o r  som e o th er ju s t ic e ; 
and i f  u pon  due exa m in a tion  it  shall app ear th a t th e  person  o r  
person s  a re  w ith in  th e tru e  d escrip tion  o f  a  v a g ra n t, as h ere ­
in a fte r  m en tion ed , such  ju s t ic e  shall, b y  w arran t, o rd er  such 
v a g ra n t o r  v a g ra n ts  to  be em ployed  in  la b or  f o r  an y  term  n ot 
ex ceed in g  th ree  m onths, and b y  an y  con stab le  o f  such  cou n ty  o r  
co rp ora tion  to  b e  h ired  ou t f o r  th e b est w ages th at can  b e  pro ­
cu red  ; to  b e  applied , excep t as h e re a fte r  p rov ided , f o r  the use o f  
th e  v a g ra n t o r  h is fa m ily , as ord ered  b y  th e ju s tice . A n d  i f  any 
such  v a g ra n t o r  v a g ra n ts  shall, d u r in g  such tim e  o f  service, 
w ith ou t sufficient cause, run  a w ay  fr o m  th e person  so  em p loy in g  
h im  o r  them , h e o r  th ey  shall b e  apprehen ded  on th e w a rra n t o f  
a ju s tice , and retu rn ed  to  the cu stod y  o f  such  h irer , w ho shall 
have, fr e e  o f  an y  fu r th e r  h ire , th e  serv ices  o f  such  v a g ra n t f o r  
on e m on th  in  ad d ition  to  th e  or ig in a l term  o f  h ir in g ; and said 
em p loy er shall th en  have th e  p ow er, i f  au th orized  by  th e  ju stice , 
to  w ork  said  v a g ra n t con fined w ith  ball and c h a in ; o r  should 
sa id  h ire r  d ec lin e  a g a in  to  rece iv e  sa id  vagran t, then  sa id  
v a g ra n t shall b e  taken  b y  the officer, u pon  th e o rd er  o f  th e 
ju s tice , to  the p oor  o r  w ork  house, i f  th ere  be an y  such  in  sa id  
cou n ty  o r  co rp o ra tio n ; or, i f  au th orized  b y  the ju s tice , to  w ork  
h im  con fin ed  w ith  ball and ch a in  f o r  th e p er iod  f o r  w h ich  he 
w ou ld  have had to  serv e  h is  la te  em ployer, had he con sen ted  to  
rece iv e  h im  a g a in ; o r  should th ere  be, w hen  sa id  ru naw ay 
v a g ra n t is apprehended , an y  pu b lic  w ork  g o in g  on  in  sa id  cou n ty  
o r  co rp ora tion , then  said  vagran t, upon  th e o rd er  o f  a ju stice , 
shall be de livered  ov er  b y  sa id  officer to  th e superin tendent o f  
sa id  p u b lic  w ork , w h o shall, f o r  th e like  last-m en tion ed  per iod ,

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20

w ork  sa id  v a g ra n t on sa id  p u b lic  w ork s , con fin ed  w ith  ball and 
chain , i f  so  a u th orized  b y  sa id  ju s tice . B u t i f  th e re  b e  no 
p oor  o r  w ork  h ou se in  sa id  cou n ty  o r  co rp ora tion , and no public 
w ork  th en  in  p ro g re ss  th ere in , then , in  th a t event, sa id  ju s tice  
m ay cau se sa id  v a g ra n t to  be d e livered  to  an y  p erson  w ho 
w ill take ch a rg e  o f  h im , sa id  p erson  to  h ave h is  se rv ices  fr e e  o f  
ch a rg e , ex cep t m ain ten ance, f o r  a  lik e  la st-m en tion ed  p e r iod ; 
and sa id  p erson  so  re ce iv in g  said  v a g ra n t is  h ereb y  em pow ered, 
i f  a u th orized  b y  th e ju s tice , to  w o rk  sa id  v a g ra n t w ith  ball and 
ch a in ; o r  shou ld  n o such  p erson  be fou n d , th en  sa id  vagran t 
is to  b e  com m itted  to  th e  cou n ty  ja il, th ere  to  b e  con fin ed  f o r  the 
like  p er iod  and  fe d  on  brea d  and w a ter. B u t th e  p erson s de­
scr ib ed  as th e fifth  class o f  v a g ra n ts  in  the secon d  section  o f  
th is  act, m ay  b e  a rres ted  w ith ou t w a rra n t b y  the specia l cou nty  
o r  co rp ora tion  p o lice , and w hen  so  a rrested  shall b e  taken  b e fo re  
a  ju s tice , w h o  shall p roceed  to  d isp ose  o f  th em  in  th e m ode 
p rescr ib ed  in  th is  section , o r  m a y  a t  on ce  d ir e c t  th em  to  b e  com ­
m itted  to  p r ison  f o r  a  p e r iod  n ot ex ceed in g  th re e  m on th s, to  be 
k ept in  c lose  con fin em en t and fe d  on  b rea d  and w a ter.

2. T h e  fo llo w in g  d escr ibed  p erson s shall b e  lia b le  to  the 
pen a lties  im posed  b y  law  u pon  v a g r a n ts :

F ir s t . A ll p erson s w h o  shall u n la w fu lly  re tu rn  in to  any 
cou n ty  o r  co rp o ra tio n  w hen ce th ey  h ave been  lega lly  rem oved.

Second. A ll p erson  n o t h av in g  w h erew ith  to  m a in ta in  them ­
selves and th e ir  fam ilies , w h o  liv e  id ly  and  w ith o u t em ploy­
m ent, and  re fu se  to  w o rk  f o r  th e  usual an d  com m on  w ages 
g iv en  to  o th er  laborers , in  th e  lik e  w ork , in  th e  p lace  w h ere  they 
th en  are.

T h ird . A ll p erson s w h o  shall r e fu s e  to  p e r fo rm  th e w ork  
a llotted  to  th em  b y  th e  overseers  o f  th e  p oor , as a foresa id .

F ou rth . A ll p erson s g o in g  a b ou t fr o m  d oor  to  door, o r  plac­
in g  them selves in  streets , h ig h w a y s , o r  o th e r  roads to  b eg  a lm s ; 
and  all o th e r  person s w a n d erin g  a b roa d  and b e g g in g , unless 
d isab led  o r  in capable  o f  labor.

F if th . A ll person s  w h o  shall com e fr o m  an y  p lace w ith ou t 
th is  com m on w ealth  to  an y  p lace  w ith in  it, and shall b e  fou n d  
lo ite r in g  and res id in g  th erein , and shall fo llo w  n o  trade, labor, 
occu p a tion  o r  bu sin ess, and h ave no v is ib le  m eans o f  su bsist­
ence, and g iv e  n o reasonable  accou n t o f  them selves o r  th eir 
bu sin ess  in  such  place.

3. A ll costs  and expenses in cu rred  shall b e  p a id  ou t o f  the 
h ire  o f  such  vagran t, i f  su fficien t; an d  i f  n o t sufficient, th e  defi­
c ien cy  shall b e  p a id  b y  th e cou n ty  o r  corp ora tion .

4. T h is  a ct shall b e  in  fo r c e  fr o m  its  passage.
P assed  J an u ary  15, 1866.

I  Senate Executive Documents (39 th  C ong., 2nd Sess., 1 8 6 6 ), supra, 
N o. 6 a t 229-30.

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21

Major General A. H. Terry, the Commander of the De­
partment o f V irginia, issued an order prohibiting the 
enforcement o f this vagrancy law because, regardless of 
the intent o f the legislature, private actions would make 
its actual operation more onerous for  blacks than for 
whites. General Terry’s order reads in pertinent part:

In many counties o f this State meetings o f em­
ployers have been held, and unjust and wrongful com­
binations have been entered into fo r  the purpose of 
depressing the wages o f the freedmen below the real 
value o f their labor, fa r  below the prices form erly 
paid to masters fo r  labor performed by their slaves. 
By reason o f these combinations wages utterly inade­
quate to the support o f themselves and families have, 
in many places, become the usual and common wages 
o f the freedmen. The effect o f the statute in question 
will be, therefore, to compel the freedmen, under- 
penalty o f punishment as criminals, to accept and 
labor for  the wages established by these combina­
tions o f employers. It places them wholly in the power 
o f their employers, and it is easy to foresee that, 
even where no such combination now exists, the temp­
tation to form  them offered by the statute will be 
too strong to be resisted, and that such inadequate 
wages will become the common and usual wages 
throughout the State. The ultimate effect o f the 
statute will be to reduce the freedmen to a condition 
o f servitude worse than that from  which they have 
been emancipated— A  condition which will be slavery 
in all but its name.

It is therefore ordered that no magistrate, civil 
officer or other person shall in any way or manner 
apply or attempt to apply the provisions o f said sta­
tute to any colored person in this department.
By command o f M ajor General A. H. Terry,

Ed. W . Smith, A ssistan t A d ju tan t General.
McPherson, The Politica l H istory  o f  the United S tates  
o f A m erica  D uring  the P eriod  o f  R econstruction  (1871)

175



22

at 42. The President refused to disapprove this Order.
Id.

This was not an isolated occurrence. In South Caro­
lina, M ajor General D. E. Sickles ordered on January 
17, 1866 that the only vagrancy laws that could be 
enforced in the State were those “ applicable to free white 
persons” , and ordered further that even these laws, made 
racially neutral by his order, “ shall not be considered 
applicable to persons who are without employment, if 
they shall prove that they have been unable to obtain 
employment, after diligent efforts to do so.”  Order of 
January 17, 1866, X III, McPherson, supra  at 37. 
Orders quashing State laws were also issued by Gen­
eral Swayne in Alabama and by General Thomas in 
Mississippi.

In the debates on the 1866 Act, these Orders were 
frequently discussed and approved. Several members of 
Congress stated their view that the provisions o f these 
Orders would be continued by the provisions o f the Act, 
and would thus both survive the end o f m ilitary govern­
ment in the South and be made applicable nationally. 
Senator Wilson described the facially neutral V irginia 
vagrancy law as having been “ used to make slaves of 
men whom we have made free,”  thanked General Terry 
for his order, and described the State laws set aside by 
m ilitary order as “ nearly as iniquitous as the old slave 
codes that darkened the legislation o f other days.”  He 
thought passage o f the civil rights bill was required in 
order to bar such State laws forever. Cong. Globe, 39th 
Cong., 1st Sess., [hereafter, “ Cong. Globe” ] at 603. In 
the debate on initial passage, Senator Trumbull, the 
manager o f the bill, stated that one o f its purposes was to 
destroy all the discriminations o f the Black Codes. Cong. 
Globe at 474. In the debate on passage o f the bill over 
the President’s veto, Senator Trumbull quoted General 
Terry’s statement that the V irginia vagrancy law would

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23

have the effect o f “ [reducing] the freedmen to a con­
dition o f servitude worse than that from  which they 
have been emancipated” , and cited the orders issued 
by Generals Terry and Sickles as demonstrating the ex­
istence o f the evils— denied by the President— that the 
bill was intended to redress. Cong. Globe at 1759, 1760.

The House debate was equally clear. Rep. Cook cited 
the vagrancy laws and the orders o f Generals Thomas, 
Swayne, Sickles and Terry, and continued:

The time when these men can be protected by the 
m ilitary power will cease. Gentlemen are insisting 
that the time has come when these States should be 
represented in Congress and restored to their orig­
inal position in the Union; and the last part o f the 
speech o f the gentleman from  New Jersey [Mr. 
Rogers] was devoted to a denunciation o f gentlemen 
on this side o f the House because they do not believe 
the time had fully  come. Suppose that proposition is 
agreed to, and these States are restored to all the 
rights o f sovereign States within this Union, and they 
carry out the same spirit they have already mani­
fested toward these freedmen. Then the question is, 
shall we leave the men who have been loyal during 
this struggle, have fought on our side, and who have 
aided to carry the banner o f the Republic in triumph 
through this terrible rebellion; shall we leave them to 
the operation o f laws denounced as tyrannical by the 
m ilitary powers and as practically reducing these 
men to the condition o f slavery?

It is idle to say these men will be protected by the 
States. The sufficient and conclusive answer to that 
position I submit is, that those States have already 
passed laws which would now virtually reenslave 
them. . . .

*• *  * - *

. . . The question is, shall we leave these men in 
this condition? It is idle to say we are not leaving

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24

them to a system o f slavery. I f  it had not been for 
the acts o f the m ilitary commanders, had not the 
laws which have already been enacted by the Legis­
latures o f the rebel States been set aside, the negroes 
would all have been slaves now under the operation 
o f their vagrant acts or other laws.

I believe that this bill is a proper remedy fo r  these 
evils. . . .

Cong. Globe at 1124. Rep. Thayer cited the Black Codes, 
and the m ilitary orders prohibiting their enforcement in 
Mississippi, Alabama, South Carolina, and Virginia, as 
demonstrating that the Thirteenth Amendment would be 
“ o f no force or effect whatever”  i f  the bill were not en­
acted. Cong. Globe at 1153. Rep. W indom endorsed 
General Terry’s order setting aside the V irginia  vagrancy 
law, and said that the bill would accomplish the same 
end:

I believe, sir, that the entire party on the other side 
o f this Chamber indorse fully  the policy o f the 
President o f the United States, who has found it 
necessary through his general in V irginia  to over­
ride one o f the laws passed by that State affecting 
the negro. I ask, then how they can consistently in­
dorse that policy and at the same time declare a law 
o f Congress is unconstitutional which does the same 
thing?

. . .  I ask i f  it is consistent to claim this bill as 
unconsitutional when gentlemen indorse the President 
o f the United States, who overrides the laws of a 
State in time o f peace by m ilitary order? I indorse 
the President in setting aside those iniquitous laws 
o f V irginia, and I believe this bill is constitutional.

Cong. Globe at 1158. Rep. Broomall took the same posi­
tion. Cong. Globe at 1263.

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25

I f  Congress or the m ilitary had wanted to restrict 
their actions to purposeful discrimination, they could have 
stopped with outlawing the private combinations of em­
ployers that caused the vagrancy laws to bear more 
heavily on blacks than on whites. Both Congress and the 
military understood that they were going further, how­
ever, and prohibited the enforcement o f these facially 
neutral laws.

Yet a further indication of the intent o f Congress is 
provided by the discussion in debate on the requirement 
of intent for  crimes. This Court has previously held that 
the scope o f § 2 o f the Civil Rights A ct o f 1866, 14 
Stat. 27 16— the penal enforcement provision— is substan­
tially narrower than the scope o f § 1. Jones V. A lfred  H. 
M ayer Co., supra, 392 U.S. at 425 note 33. It is now 
settled that § 1 was intended to provide a civil remedy, 
Jones, su p ra ; R unyon  v. M cC rary , 427 U.S. 160 (1976), 
and it was equally clear at the time.17 Congress debated 
the question whether the statute required a showing of

16 Sec. 2 o f  th e  C iv il R ig h ts  A c t  o f  1866 has evolved  in to  18 U .S .C . 
§ 242. Jones, supra, 392 U .S . a t 424 n ote  32.

17 Sec. 3 o f  th e A ct , 14 S tat. 27, c learly  con tem plated  th at c iv il 
suits b e  b ro u g h t in  State  cou rts  to  e n fo rce  th e r ig h ts  gran ted  b y  
the A c t— n o  g ra n t o f  gen era l F ed era l-qu estion  ju r is d ic t io n  h av in g  
yet been  m ad e to  U .S . D is tr ic t  and C ircu it  C ou rts— and prov ided  
ju r isd ic tion  in  th e  U .S . C ircu it  C ou rts w h ere such  r ig h ts  cou ld  n ot 
be e n fo rce d  in  S tate  o r  local cou rts . T h e  ea rliest app lica tion  o f  
this r ig h t  o f  c iv il en fo rcem en t w h ich  amicus has been ab le  to  d is ­
cover w as in  In re Turner, F ed .C as.N o. 14,247 (C ir .C t., D .M d., 
18 6 7). T h ere , C h ie f  J u stice  Chase, s itt in g  as C ircu it  Justice , o r ­
dered th e  d isch a rg e , on  a  w r it  o f  habeas corpus, o f  a black ch ild  
who had been  in den tu red  as an ap p ren tice  u n der th e term s o f  a 
M aryland law  w h ich  d id  n o t p rov id e  th e  sam e term s o f  in den tu re 
fo r  b lack  a p p ren tices  as a  d iffe ren t law  p rov id ed  f o r  w hites.

In  th e debate, S en ator H en d rick s ob je cted  th a t th e  b ill w ould  
create  a c iv il rem ed y  f o r  dam ages, C ong. G lobe a t 601, and S en ator 
Cowan o b je c te d  th a t § 1 w ou ld  enable th e U .S . cou rts  to  expand 
th eir ju r isd ic t io n . C on g . G lobe a t 1782-83. N o  on e  d isa g reed  w ith  
these p rop os ition s . See also th e  rem arks o f  R ep. W ilson , infra note 
19.

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26

intent, but debated this question only in reference to the 
narrow  penal provisions o f :§ 2. The debate was oc­
casioned by the claim o f opponents of the bill that § 2 
would authorize the arrest o f a State judge fo r  follow­
ing in good faith  the provisions o f , a State constitution or 
o f State laws which were subsequently found to be 
inconsistent with the bill.18 19 The proponents o f the legis­
lation responded by stating that the requirement o f un­
lawful intent could be inferred from  the fact that § 2 
was a penal provision, and that there was therefore no 
need to add an intent requirement to the penal provisions 
o f the statute.1'9 I f  any express provision o f the statute 
had been considered by its proponents to require intent, 
they would surely have pointed it out rather than rely 
on an argument by implication, when the argument relied 
on would clearly be inapplicable to any provision but § 2.

18 E.g., Cong. Globe at 475 (remarks of Senator Cowan).
19 “ [I ]t  requires a union of act and intention to commit a crime.” 

Cong. Globe at 475 (remarks of Senator Trumbull); “ I suppose the 
essence of all crimes consists in the intention, the purpose. In the 
trial of criminal cases, we inquire into the animus with which the 
act was done by the accused . . . .” Cong. Globe at 502 (Discussion 
of culpability for treason) (remarks of Senator Howard) ; “ Sir, 
what is a crime? It is a violation of some public law, to constitute 
which there must be an act and a vicious will in doing the act . . . 
and a judge who acted innocently, and not viciously or oppressively, 
would never be convicted under this act.” Cong. Globe at 1758 (re­
marks of Senator Trumbull). Rep. Wilson stated in the House that 
“ there are two legal modes of meeting any and every willful de­
privation of these rights: one by action for damages at common 
law in the courts, which, however, will not lie against judicial offi­
cers; and the other by making it a penal offense, as the second 
section of this bill does . . . .”  Cong. Globe at 1836. Nothing in his 
remarks indicates that he intended to limit civil remedies under the 
statute to cases of willful violations, or that he ever addressed the 
precise reach of the civil provisions of the bill, as distinct from 
the criminal provisions. No other Representative or Senator dis­
cussed a limitation of the civil provisions in a manner corresponding 
to the limitation of the criminal provisions.

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27

(2) Indirect Evidence That Congress Did Not Intend 
to Limit the Civil Provisions of the Statute by an 
Intent Requirement

There is strong evidence that the fram ers o f the 1866 
Act wanted the rights they declared to be capable o f 
growth, so as to continue to accomplish their purposes 
under the demands of different situations. Senator Trum­
bull openly admitted that he did not know the exact 
dividing line between slavery and the liberty protected 
by the Thirteenth Amendment, but that he wanted to 
give the greatest possible practical effect to the policy 
declared in the Thirteenth Am endm ent:

Has Congress authority to give practical effect to 
the great declaration that slavery shall not exist in 
the United States? I f  it has not, then nothing has 
been accomplished by the adoption o f the constitu­
tional amendment. In my judgment, Congress has 
this authority. It is difficult, perhaps, to define ac­
curately what slavery is and what liberty is. . . .

Cong. Globe at 474. He went on to state that “ it is 
perhaps difficult to draw the precise line, to say where 
freedom ceases and slavery begins,”  but that the Black 
Codes passed that dividing line wherever it was. Cong. 
Globe at 475. Time and again, the bill’s proponents 
stressed that their aim was “ practical” , geared to a 
particular result. Senator Trumbull stated that the bill 
would secure “ freedom in fact” . Cong. Globe at 476. 
Rep. Thayer stated that the bill was to give the Thir­
teenth Am endm ent:

. . . practical effect and force. It is to prevent that 
great measure from  remaining a dead letter upon the 
constitutional page o f this country. It is to carry to 
its legitimate and just result the great humane 
revolution to which I have referred. . . . The prac­
tical question now to be decided is whether they shall 
be in fact freemen. It is whether they shall have

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28

the benefit o f this great charter o f liberty given to 
them by the American people.

*  *  * *

For one, sir, I thought when I voted for  the amend­
ment to abolish slavery that I was aiding to give real 
freedom to the men who had so long been groaning in 
bondage. I did not suppose that I was offering them 
a mere paper guarantee. . . .

Cong. Globe at 1151. He continued:

The bill under consideration is intended only to 
carry into practical effect the amendment o f the 
Constitution. Its object is to declare not only that 
slavery shall be abolished upon the pages o f your Con­
stitution, but that it shall be abolished in fact and 
in deed; not only that that feature o f slavery shall 
be abolished which permitted the purchase and sale 
o f men, o f women and o f little children as slaves, but 
that all features of slavery which are oppressive in 
their character, which extinguish the rights o f free 
ctizens, and which unlawfully control their liberty, 
shall be abolished and destroyed forever.

To put any other construction upon this great 
amendment o f the Constitution is to deprive it o f its 
vital force, o f its effective value. It is to cheat the 
world by sounding phrases; and while you pretend to 
give liberty to those who were in bondage, to leave 
them in reality in a condition o f modified slavery, 
subject to the old injustice and the old tyranny which 
characterized their form er unhappy condition.

Cong. Globe at 1152.

Rep. Windom stated that the civil rights bill would “ give 
practical effect to the principles of the Declaration of 
Independence,”  and stated th at:

It merely provides safeguards to shield them from 
wrong and outrage, and to protect them in the en­
joyment o f that lowest right o f human nature, the

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29

right to exist. Its object is to secure to a poor, weak 
class o f laborers the right to make contracts for  their 
labor, the power to enforce the payment o f their 
wages, and the means o f holding and enjoying the 
proceeds o f their toil.

W ho can deny them this? To do so would be to re­
pudiate utterly the pledges we made in the day of 
our sore trial, and would justly merit the scorn and 
contempt o f mankind. W e know, and the whole world 
knows, that when in the hour o f our extremity we 
called upon the black race to aid us, we promised 
them not liberty only, but all that that word liberty 
implies. . . .

Cong. Globe at 1159.
To restrict the scope o f § 1981 to purposeful acts of 

discrimination would be simply inconsistent with the 
broad practical purposes o f Congress in enacting the 
1866 Act. An intent requirement can readily be har­
monized with the goal o f ensuring the neutrality of gov­
ernment processes, towards which the Fourtenth Amend­
ment’s equal protection clause was later directed. How­
ever, the Civil Rights A ct o f 1866 was directed towards 
achieving the 'practical resu lt o f  equality, not towards 
ensuring a neutral process. The purpose o f the Act would 
be thwarted, and the equity o f the statute violated, i f  it 
were construed in the manner suggested by petitioners.

(c) Judicial Precedent Supports Amicus’ Position That 
Discriminatory Intent Need Not Be Proven to Estab­
lish a Statutory Violation Under 42 U.S.C. § 1981. 1

(1) This Court’s Cases Applying § 1981 Do Not Re­
quire Intent to Be Proven

A  holding that proof o f racial motivation is not re­
quired to establish a prim a fa cie  case under § 1981 
would be consistent with this Court’s previous interpreta­
tions o f § 1981. In fact, am icus believes that Part III

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30

o f the opinion in W ashington  V. D avis  is dispositive of 
this question.20 In W ashington  the Court noted that the 
defendants in the district court “ appear not to have dis­
puted that under the statutes and regulations govern­
ing their conduct standards similar to those obtaining 
under Title V II had to be satisfied.”  426 U.S, at 249 
(footnote om itted). Part II o f  the Court’s opinion was 
based on the fact that racially discriminatory purpose 
had not been shown and that therefore, under constitu­
tional standards, the defendants were not required to 
show that the test there involved— “ Test 21” — was job 
related. Accordingly, there would have been no need for 
the Court to go on— as it did in Part III o f its opinion—  
to reach the question whether Test 21 had been shown 
to be job related, unless it were assumed— as the Court 
obviously did assume— that discriminatory purpose need 
not be shown under the statutes, including § 1981, there 
involved. L eague o f  U nited L atin  A m erica n  Citizens V. 
C ity  o f Santa A na, 410 F.Supp. 873 (C.D. Cal. 1976).21

20 The respondents’ complaint in W ashington  v. D avis alleged vio­
lations of the Fifth Amendment, § 1981 and D.C. Code § 1-820. 426 
U.S. at 233. Respondents moved for summary judgment solely on 
the constitutional claim. The petitioners and the Federal parties 
filed cross-motions for summary judgment “ asserting that respond­
ents were entitled to relief on neither constitutional nor statutory 
grounds.” 426 U.S. at 284 (footnote omitted). In Part III of its 
opinion, this Court held “ that the Court of Appeals should have 
affirmed the judgment of the District Court granting the motions 
for summary judgment filed by petitioners and the Federal parties. 
Respondents were entitled to relief on neither constitutional nor 
statutory grounds.” 426 U.S. at 248. The petitioners consistently 
maintained that they had complied with “ all applicable statutory as 
well as constitutional standards.” 426 U.S. at 234 n. 4 and 249. 
Thus the holding of Part III must relate to § 1981 and D.C. Code 
§ 1-320. See 426 U.S. at 255 (Stevens, J., concurring).
21 The petitioners represent in their brief that in Jones V. A lfred  

H. M ayer Co., supra, this Court held that discriminatory intent is 
required under 42 U.S.C. § 1982. Brief at 20-22. Arguing from this 
premise, they contend that § 1981 must be Construed accordingly 
because of the historical relationship between the two sections. But

184



31

This reading of W ashington  V. D avis  is clearly con­
sistent with this Court’s use o f the disparate-impact test 
in Takahashi v. F ish  and G am e Com m ission, 334 U.S. 
410 (1948). There, the Court applied §1 6  o f the En­
forcement A ct o f 1870, now codified as § 1981, to “ pro­
tect ‘all persons’ against state legislation bearing un­
equally upon them either because o f alienage or color.”  
334 U.S. at 419-20. In reaching its decision, the Court 
found it unnecessary to resolve the question whether the 
legislation in question— a California statute barring 
aliens “ ineligible for  citizenship”  from  engaging in com­
mercial fishing in California’s coastal waters— was a 
legitimate fish conservation measure, or was an anti- 
Japanese measure motivated by racial antagonism. 334 
U.S. at 418-19.22 The Court held that, regardless of 
motive, the combined effects o f § 1981 and the Fourteenth 
Amendment “ embody a general policy that all persons 
lawfully in this country shall abide ‘in any state’ on an 
equality o f legal privileges with all citizens under non- 
discriminatory laws.”  Id. at 420.

In Takahashi, the Court made reference to the fact 
that § 1981 rests “ in part”  on the Fourteenth Amend­
ment. Id. at 420. Subsequent decisions re-affirmed 
that the Congress, in re-enacting the Civil Rights Act 
in 1870, did not renounce its Thirteenth Amendment

Jones does not stand for the proposition asserted. The Court’s use 
of the phrase “ racially motivated deprivation’’ occurs only in the 
context o f characterizing the arguments advanced by the parties 
—arguments that were concerned solely with the question whether 
§ 1982 reaches purely private discrimination. 892 U.S. at 421-22, 
425-26. The Court’s discussion is descriptive of these arguments 
only, and does not even rise to the level o f dicta.

22 Thus, Takahashi involves a principle different from that in 
Yick Wo v. Hopkins, 118 U.S. 356 (1886), cited by the Court in 
Washington v. Davis, 426 U.S. at 241. Takahashi was not a case 
in which intent could be inferred from discriminatory application 
of a statute otherwise neutral on its face. Takahashi, 334 U.S. at 
418 (citing Yick Wo).

185



32

origins. Although the petitioners seek to trivialize the 
inquiry into the origins of § 1981 as an “ interesting ex­
cursion into the realm o f legislative genealogy”  (Brief 
at 18), am icus believes that it is o f great importance in 
determining the standard o f proof in § 1981 cases. The 
following discussion shows that the Thirteenth Amend­
ment was enacted specifically to eliminate the “ badges 
and incidents”  o f slavery. Unlike constitutional viola­
tions under the Fourteenth Amendment, motivation is 
irrelevant when it comes to the destruction o f the in­
stitution o f slavery and its lingering manifestations.

(2) Racially Discriminatory Motivation Need Not Be 
Shown to Establish Violations of the Thirteenth 
Amendment

The petitioners argue at length that § 1981 was es­
sentially intended as an equal protection measure (Brief 
at 18-23), and stress that the statute was re-enacted as 
part o f the Civil Rights A ct o f 1870, “ which was de­
signed to implement the 14th . Amendment.”  It is clear 
that acceptance of the notion that § 1981 is a creature of 
the Fourteenth Amendment is indispensable to their ar­
gument that the test announced in W ashington  v. Davis 
be adopted here. But it is now well settled that Congress 
did not intend to repeal § 1 o f the 1866 A ct when it 
enacted § 16 o f the 1870 Act pursuant to the Four­
teenth Amendment. R unyon  v. M cC rary , 427 U.S. at 
168 n.8, 170-72. This reaffirmation that § 1981 has its 
roots in the Thirteenth Amendment proved critical in 
determining whether a right o f action could be main­
tained against a private party under § 1981, because the 
Fourteenth Amendment proscribes only discriminatory 
actions taken under color of State law. Johnson  v. Rail­
w ay  E xp ress  Co., su p ra ; Tillm an  v. W heaton-H aven  
R ecrea tion  A ss ’n, 410 U.S. at 439-40; cf. Jones V . A l­
fr ed  H . M a yer  Co., 392 U.S. at 424-30. By the same

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33

reasoning, the ruling in W ashington. v. D avis, supra, that 
racial motivation is an essential element o f proof under 
the Fourteenth Amendment does not dictate the same 
result under § 1981.

In D istr ic t o f  Colum bia  V. C arter, 409 U.S. 418  (1973), 
this Court observed that “ [d iffe re n t problems o f statu­
tory meaning are presented by two enactments deriving 
from  different constitutional sources.”  Id. at 423, quot­
ing from  M on roe  V. Pape, 365 U.S. 167, 205-206 (1961) 
(Frankfurter, J. concurring and dissenting). C a rter  held 
that the Thirteenth Amendment has a different, and more 
extensive, reach than the Fourteenth Amendment. Id. 
at 423; see C lyatt v. U nited States, 197 U.S. 207, 217 
(1905). In discussing § 1982, this Court held in C arter  
that, “ As its text reveals, the Thirteenth Amendment ‘is 
not a mere prohibition o f state laws establishing or up­
holding slavery, but an absolute declaration  that slavery 
or involuntary servitude shall not exist in any part o f the 
United States.’ ”  409 U.S. at 421-22 (citations omitted; 
emphasis supplied). Section 1982, the Court concluded, 
was an “  ‘absolute’ bar to all such discrimination, pri­
vate as well as public . . . .”  Id. at 422 (emphasis in 
orig inal).

This, o f course, does not mean that, where Congress 
intends that invidiously discriminatory motivation should 
be an element o f the offense, the Thirteenth Amendment 
forbids it. See, e.g ., Griffin  v. B reckenridge, supra, (42
U.S.C. § 1 9 8 5 (3 ) ) .23 But it is equally clear that Con­
gress has the power under the Thirteenth Amendment to 
determine the “ badges and incidents”  o f slavery, and 
the authority to “ translate that determination into ef­
fective legislation.”  403 U.S. at 105; U nited S tates  v.

23 42 U.S.C. § 1985(3) authorizes a suit for damages for con­
spiracies to interfere with civil rights. Wrongful intent has tradi­
tionally been regarded as an element o f conspiracy because the very 
nature of a conspiracy demands intentional involvement.

187



34
H u n ter, 459 F.2d 205, 214 (4th C ir .), cert, denied, 409 
U.S. 934 (1972). Thus, in the peonage cases, this Court 
has ruled consistently that discriminatory intent need 
not be shown in order to establish a violation under the 
Thirteenth Amendment and its enforcing legislation.

A  case in point is B ailey  V. Alabam a, 219 U.S. 219 
(1911), striking down, under the Thirteenth Amendment 
and implementing legislation, a statute, neutral on its 
face, which imposed criminal penalties on persons who 
accepted money from  an employer and then failed to fu l­
fill the employment contract. In holding the State statute 
unconstitutional, the Court sa id :

W ithout imputing any actual motive to oppress, we 
must consider the natural operation o f the statute 
here in question. H enderson  v. N ew  Y ork  [H ender­
son  V. W ickh am ], 92 U.S. p. 268, 23 L.Ed. 547 ), and 
it is apparent that it furnishes a convenient instru­
ment for  the coercion which the Constitution and the 
act o f  Congress fo rb id ; . . . .

219 U.S. at 244-45. S ee also Pollack  v. W illiam s, 322 U.S. 
4, 25 (1944) ; T aylor  v. G eorgia , 315 U.S. 25, 29 (1942) ; 
C lya tt v. U nited  S tates, 197 U.S. 207, 216 (1905) ( “ this 
amendment denounces a status or condition, irrespective 
o f the manner or authority by which it is created” ) ; 
A n d erson  V. E llington , 300 F.Supp. 789 (M.D. Tenn. 
1969) (three-judge court).

More recent cases confirm that the provisions o f the 
1866 Civil Rights A ct which were enacted to implement 
the Thirteenth Amendment do more than forbid in ten ­
tional discrimination. In Clark  v. U niversal Builders, 501 
F.2d 324 (7th C ir .), cert, denied, 419 U.S. 1070 (1974), 
§ 1982 was held to forbid a practice whereby housing de­
velopers would charge higher prices to black purchasers 
o f housing in black parts o f the city than were charged to 
white purchasers o f similar housing in white areas o f the 
city, where segregated housing patterns were the result

188



35

of racial prejudice. The Court held that, even though the 
defendant developers were not motivated by a racially dis­
crim inatory purpose, § 1982 prohibits the exploitation of 
“ a situation created by socio-economic forces tainted by 
racial discrimination.”  501 F.2d at 330. S ee also, M etro ­
politan H ousing D evelopm ent Corp. V . V illage o f  A rlin g ­
ton  H eights, 558 F.2d 1283 (7th Cir. 1977), cert, denied, 
98 S.Ct. 752 (1978).

Most recently, in R hode Island Chapter, A ssocia ted  
G eneral C on tractors o f  A m erica , Inc. V. K rep s, 450 
F.Supp. 338 (D .R .I. 1978), the court extensively dis­
cussed the Thirteenth Amendment in considering the 
constitutionality o f the 10% minority business enterprise 
requirement o f the Public W orks Employment Act. Id. at 
360-67. From its examination o f the “ unique historical 
relationship o f that Amendment to race,”  450 F.Supp. at 
363, the court concluded that,

Section 1981 assures not just freedom from  overt 
discrimination with invidious intent but also protects 
against an inequality o f results, fo r  under its Thir­
teenth Amendment power, Congress created a pro­
vision which, to use the Supreme Court’s words from  
another context, outlaws “ sophisticated as well as 
simple-minded modes o f discrimination,”  Lane V . 
W ilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 
L.Ed. 1281 (1939) (Fifteenth Amendment.)

As the foregoing cases illustrate, the courts, including 
the Supreme Court, have consistently recognized that the 
legislation passed by Congress to enforce the Thirteenth 
Amendment does not require a showing o f discriminatory 
motivation unless Congress has expressly stated other­
wise. See, e.g., 42 U.S.C. § 1985(3).

Petitioners contend that adoption o f the G riggs  stand­
ard in § 1981 cases involving employment discrimination

189



36

would undercut W ashington  V. D avis  and the administra­
tive procedures supplied by Title VII. (B rie f at 39.)

The first point, that adoption o f the G riggs  standard 
would undercut W ashington  V. D avis, is not well taken. 
W ashington  V. D avis  announces a constitutional rule. The 
issue here is what standard should be applied to a statu­
tory claim. The Court has already applied a less strict 
standard to claims o f  governmental discrimination under 
Title V II in accordance with Congress’ intent. G riggs  V. 
D u k e P ow er  Co., supra. Fullfillment o f congressional in­
tent, as long as it is within the legislative power, cannot 
be said to undercut the constitution.

A  complete answer to the second argument is found 
in Johnson  V. R ailw ay E xp ress  Co., supra, where this 
Court observed that the possible undesirable effects on 
the administrative procedure “ are the natural effects of 
the choice Congress made available to the claimant by its 
conferring upon him independent administrative and ju­
dicial remedies.”  421 U.S. at 461.®4 Imposition o f a 
higher burden o f proof in § 1981 cases as compared with 
Title V II would in fact result in a judicial “ preference 
fo r  one [remedy] over the other” , precisely what this 
Court declined to do in Johnson. Ibid. 24

24 Similar arguments were made and rejected in Jones v. Alfred
H. Mayer, Co., supra, and Sullivan v. Little Hunting Park, 396 U.S.
229 (1969). In Sullivan, the Court said:

We noted in Jones v. Mayer Co., that the Fair Housing Title 
of the Civil Rights Act of 1968, 82 Stat. 81, in no way impaired 
the sanction of § 1982. 392 U.S., at 413-417, 20 L.Ed.2d at 
1192-1194. What we said there is adequate to dispose of the 
suggestion that the public accommodations provision of the 
Civil Rights Act of 1964, 78 Stat. 243, in some way supersedes 
the provisions of the 1866 Act. For the hierarchy of adminis­
trative machinery provided by the 1964 Act is not at war with 
survival of the principles embodied in § 1982.

396 U.S. at 237.

190



37

III.

42 U.S.C. § 1988 PROVIDES A MECHANISM BY 
WHICH TO APPLY THE DISPARATE-IMPACT 
STANDARD OF TITLE VII TO EMPLOYMENT DIS­
CRIMINATION CASES BROUGHT UNDER § 1981

Petitioners have argued that, irrespective o f its con­
stitutional origins, § 1981 is basically an equal protection 
provision. They repeat the concern, voiced by this Court 
in W ashington  v. D avis, that adoption o f the racially 
disproportionate impact standard might call into question 
the validity o f a broad range o f legislation.25 Whatever 
force the petitioners’ argument might have, it is neces­
sarily directed to the “ equal benefit”  clause o f § 1981. 
That clause, o f course, is not involved in this suit. The 
“ equal benefit”  clause has been rarely utilized and its 
scope is uncertain. However, that clause, as well as the 
“ like punishment”  clause, plainly embraces separate and 
distinct rights than the others specifically enumerated in 
§ 1981, and may embody different considerations. M ahone
V. W addle, 546 F.2d 1018, 1026-1030 (1977).

In Johnson  v. R ailw ay E xp ress  Co., supra, this Court 
stressed that § 1981 “ on its face relates prim arily to 
racial discrimination in the making and enforcing o f 
contracts.”  421 U.S. at 459. This is such a case. There 
is no need to determine the meaning o f the “ equal benefit”

25 It is important to recognize that, unlike the Fourteenth Amend­
ment, § 1981 and the Thirteenth Amendment are fully applicable 
to actions taken by private persons. None of the reasons for adopt­
ing the intent requirement for Fourteenth Amendment claims apply 
to challenges to the actions of private persons. It would certainly 
be an undesirable result to have different rules as to the meaning 
of the Thirteenth Amendment depending on the nature of the de­
fendant, and this militates against a reflexive application of the 
Washington v. Davis Fourteenth Amendment standard to this case.

191



38

clause because 42 U.S.C. j §  1988 provides the mechanism 
by which to answer the narrow question presented.

As this Court said in Moor V. County of Alameda, 411 
U.S. 693, 702 (1973), “ [i]nevitably existing federal law 
will not cover every issue that may arise in the context 
o f a federal civil rights action.”  The Reconstruction Con­
gress anticipated this and enacted what is nowT § 1988 as 
part o f the Civil Rights A ct o f 1866.26

In pertinent part, § 1988 provides:

The jurisdiction in civil and criminal matters con­
ferred on the district courts by the provisions o f this 
chapter and Title 18, fo r  the protection o f all per­
sons in the United States in their civil rights, and 
for  their vindication, shall be exercised and enforced 
in conform ity with the laws o f the United States, so 
far as such laws are suitable to carry the same into 
effect; but in all cases where they are not adapted to 
the object or are deficient in the provisions necessary 
to furnish suitable remedies and punish offenses 
against law, the common law, as modified and changed 
by the constitution and statutes o f the State wherein 
the court having jurisdiction o f such civil or criminal 
cause is held, so fa r  as the same is not inconsistent

26 Section 1988 was enacted as part of § 3 of the Civil Rights 
Act of 1866, 14 Stat. 27. Section 1 of that Act was the source of 
§§ 1981 and 1982. As explained in Moor:

The initial portion of § 3 of the Act established federal juris­
diction to hear among other things, civil actions brought to 
enforce § 1. Section 3 then went on to provide that the juris­
diction thereby established should be exercised in conformity 
with federal law where suitable and with reference to the com­
mon law, as modified by state law, where federal law is defi­
cient. Considered in context, this latter portion of § 3, which 
has become § 1988 and has been made applicable to the Civil 
Rights Acts generally, was obviously intended to do nothing 
more than to explain the source of law to be applied in actions 
brought to enforce the substantive provisions of the Act, in­
cluding § 1. Moor v. County of Alameda, 411 U.S. at 704-705.

92



39

with the Constitution and laws o f the United States, 
shall be extended to and govern the said courts in 
the trial and disposition of the cause, and, i f  it is of 
a crim inal nature, in the infliction o f punishment on 
the party found guilty. [Emphasis supplied.]

This section is intended to “ complement the various acts 
which . . . create federal causes o f action for  the violation 
o f civil rights.”  Moor V. County of Alameda, 411 U.S. at 
702. It uses sweeping language. “ It reflects a purpose 
on the part o f Congress that the redress available will 
effectuate the broad policies o f the civil rights statutes.”  
Brazier V. Cherry, 293 F.2d 401 (5th Cir. 1961), cert, 
denied, 368 U.S. 921 (1961).

In order to vindicate the rights conferred by the Civil 
Rights Acts, § 1988 directs that the jurisdiction o f the 
Federal courts “ shall be exercised and enforced in con­
form ity with the laws of the United States, so fa r  as 
such laws are suitable to carry the same into effect.”  
Title V II is such a law. In Johnson V. Railway Express 
Agency, supra, the Court said:

that the remedies available to the individual under 
Title V II are co-extensive with the ind iv [i] dual’s 
right to sue under the provisions o f the Civil Rights 
A ct o f 1866, 42 U.S.C. i§ 1981, and that the two pro­
cedures augment each other and are not mutually 
exclusive.

421 U.S. at 459, quoting H.Rep. No. 92-238 at 19 (1971). 
This Court also held, in Griggs V. Duke Power Co., supra, 
that Congress has made plain its intention, in the statu­
tory language o f Title V II, that it is the consequences 
o f employment practices, and not motivation, which the 
A ct is intended to eliminate. W e have argued that a 
similar intent on the part o f Congress is manifest in the 
language o f § 1981. But to the extent that there is any 
doubt, there is no reason why § 1988 should not perform 
the task which Congress specifically assigned to it : to

193



40

fill in the interstices o f the Civil Rights statutes with 
current federal law insofar as “ such laws are suitable” 
to carry them into effect. 42 U.S.C. § 1988. C f. Johnson 
V. R yd er  T ruck L ines, Inc., 575 F.2d 471, 474 (4th Cir. 
1978) (dictum ), cert, filed, 47 U .S.L.W . 8153 (1978).

Although most cases to have come before the courts 
have involved the importation o f remedial or procedural 
rules from  State law when the Civil Rights statutes are 
silent, see, e.g ., R obertson  v. W egm ann, 56 L.Ed.2d 554 
(1 9 7 8 ); Jones  V. H ildebrant, 432 U.S. 183 (1977), it 
is clear that i §  1988 is not so limited. This is clear from 
the statutory language, stated in the disjunctive, that 
State law may be referred to where the laws o f the 
United States “ are not adapted to the object, or are de­
ficient in the provisions necessary to furnish suitable 
remedies. . . .”  The “ object”  referred to is plainly the 
vindication o f civil rights. R obertson  V. W egm ann, 56 
L.Ed.2d at 564 (M r. Justice Blaekmun, dissenting).

In W ashington  V. D avis, supra, this Court stated that 
extension o f the Title V II disparate-impact rule “ beyond 
those areas where it is already applicable by reason of 
statute, such as in the field o f public employment, should 
await legislative prescription.”  426 U.S. at 248. Ap­
plication o f the rule to § 1981 employment discrimination 
causes o f action through the application o f § 1988 would 
be fully  consistent with that principle.

Additional support for  the use o f ;§ 1988 is found in 
Johnson  v. R ailw ay E xp ress  Co., su/pra, where the Court 
said that, in view o f the fact that Congress had created 
two independent remedies against discrimination in em­
ployment on the basis o f race, it was disinclined to “ infer 
any positive preference fo r  one over the other, without a 
more definite expression in the legislation Congress has 
enacted . . .” . 421 U.S. at 461. Plainly, it would show 
a preference fo r  one remedy over the other i f  intent were 
required to be proven under § 1981 but not under Title 
V I I .

194



41

In fact, there is strong evidence that Congress looked 
to |§ 1981 to afford greater protection than was available 
to employees under Title VII. In passing the Equal Em­
ployment Opportunity A ct o f 1972, Congress refused to 
amend Title V II to make it the exclusive remedy for  
employment discrimination. 118 Cong. Rec. 3173 (1972). 
As the debates show, Congress believed that § 1981 
reaches discrimination not within the reach o f Title V II 
and that it desired to preserve § 1981 as an independent 
remedy for  the sake o f the difference in coverage. See  
118 Cong. Rec. 3370, 3962-63 (1972) (remarks o f Sen. 
Javits) ; 118 Cong. Rec. 3372, 3964 (1972) (remarks of 
Sen. Williams, floor manager o f S. 2515). As explained 
by Sen. Javits, the necessity o f having to make a number 
of political compromises to gain passage o f Title V II in 
1964 had weakened it, and other remedies, including 
§ 1981, were necessary to fill the gaps. 118 Cong. Rec. 
at 3962-63.

195



42

CONCLUSION

For the foregoing reasons, am icus  submits that the 
w rit o f certiorari be dismissed as improvidently granted 
but that, i f  the Court reaches the merits, the judgment 
o f the Court o f  Appeals be affirmed.

Respectfully submitted,

Charles A. Bane 
Thomas D. Barr 

Co-Chairmen 
Norman Redlich 

Trustee
Robert A. Murphy 
Norman J. Chachkin 
Richard T. Seymour 
Richard S. Kohn 

Staff Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
733 15th Street, N.W.
Suite 520
Washington, D.C. 20005 

Attorneys for Amicus Curiae

196



IN  T H E

&ttprrmr Court n! tfjr Inttrd States
October Term, 1978

No. 77-1553

County of Los A ngeles ; Board of Supervisors of the 
County of Los Angeles ; and Civil Service Commission 
of the County of Los Angeles,

Petitioners,
vs.

V an Davis, H ershel Clady, and Fred V ega, individ­
ually and on behalf of all others similarly situated, 
W illie Bursey, Elijah H arris, James W. Smith, 
W illiam Clady, Stephen H aynes, J immie R oy 
Tucker, Leon A ubry, R onald Crawford, James 
H eard, Alfred R. Baltazar, Osbaldo A. A mparah, 
individually and on behalf of all others similarly sit­
uated,

Respondents.

On Writ of Certiorari So the United States Court 
of Appeals for the Ninth Circuit.

BRIEF OF AMICI CURIAE

INCORPORATED MEXICAN AMERICAN GOVERNMENT 
EMPLOYEES, LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS, AMERICAN G.I. FORUM. S.E.R.-JOBS 
FOR PROGRESS, INC.

V ilma S. Martinez
M orris J. Baller
J oel 6 . Contreras
F elix V elarde-Munoz
Mexican American Legal Defense and
Educational Fund
28 Geary St., San Francisco, CA 94108

Attorneys for Amici Curiae

197





SUBJECT INDEX
P a g e

I n t e r e s t  o f  A m i c i  C u r i a e

Q u e s t i o n s  P r e s e n t e d ................................. ... 6

S t a t e m e n t  o f  t h e  C a s e ........................................  7

A r g u m e n t s ...................................................................- - '

I . U n d e r  4 2  U . S . C .  § 1 9 3 1 ,  a
P r ir n a  F a c i e  C a s e  o f  E m p 'lo y -  
m e n F ^ D i s c r i m i n a t i o n  C a n  B e  
E s t a b l i s h e d  T h r o u g h  a  
D e m o n s t r a t i o n  o f  A d v e r s e  
I m p a c t ;  P u r p o s e f u l  I n t e n t  t o  
D i s c r i m i n a t e  N e e d  N o t  B e  
P r o v e d  .................................  . . . . .  9

A .  T h e  P l a i n  T e r m s  o f  4 2  U . S . C .  
§ 1 9 8 1  a n d  I t s  A f f i r m a t i v e  
N a t u r e  O u t la w  A l l  D i s c r i ­
m i n a t i o n  I n f r i n g i n g  o n  t h e  
R i g h t s  E n u m e r a t e d  T h e r e i n .  1 3

B . T h i s  C o u r t  h a s  B r o a d l y  C o n ­
s t r u e d  t h e  L a n g u a g e  o f  t h e  
1 8 6 6  C i v i l  R i g h t s  A c t  t o  
P r o h i b i t  A l l  D i s c r i m i n a t i o n  
i n  C o n t r a c t s  A g a i n s t  A n y  
P e r s o n s  o r  G r o u p s .  T h i s  
C o n s t r u c t i o n  i s  C o n s i s t e n t  
w i t h  t h e  I n t e n t  o f  C o n g r e s s

199



-li- Page

i n  E n a c t i n g  t h e  C i v i l
R i g h t s  A c t  o f  1 8 6 6 .  . . .  1 9

C . T h e  S h a r e d  P u r p o s e  o f  § 1 9 8 1  
a n d  T i t l e  V I I  -  T o  E n d  A l l  
E m p lo y m e n t  D i s c r i m i n a t i o n  -  
R e q u i r e s  t h a t  t h e  Tw o  
S t a t u t e s  B e  H a r m o n i z e d  o n  
t h e  Q u e s t i o n  o f  P r o o f  o f  
L i a b i l i t y ...............................................  29

I I .  T h e  I s s u a n c e  o f  t h e  R e m e d i a l
H i r i n g  O r d e r  H e r e i n  W a s W i t h i n  
T h e  J u r i s d i c t i o n  o f  t h e  D i s ­
t r i c t  C o u r t .  ................................................ 3 9

Conclusion 55



- l i i -

TABLE OF AUTHORITIES CITED

CASES

A l b e m a r l e  P ap er C o. v. Pfoody, 4 2 2
U .S . 4 0 5  ( 1 9 7 5 ) ..................................................  4 0 ,  4 1 ,  4 2

A s b e s t o s  W o rk ers v .  V o lg e r ,  4 0 7  F .2 d  
1 0 4 7  (5 t h  C i r .  1 9 6 9 ) .................................  4 4

B o sto n  C h a p ter  NAACP, I n c .  v .  B e e c h e r ,
5 0 4  F .2 d  1 0 1 7  ( 1 s t  C i r .  1 9 7 4 ) ,  c e r t ,  
d e n ie d , 4 2 1  U .S .  9 1 0  ( 1 9 7 5 ) .  . . .  4 3

B r id g e p o r t  G u a r d ia n s , I n c . v .  C i v i l  
S e r v ic e  C a m n iss io n , 4 8 2  F .2 d  13 3 3  
(2 n d  C i r .  1 9 7 3 ) ,  c e r t ,  d e n ie d , 4 2 1  
U .S . 9 9 1  ( 1 9 7 5 ) ..................................................  4 9

C a r te r  v .  G a lla g h e r , 4 5 2  F .2 d  31 5  
( 8 t h  C i r .  1 9 7 1 ) ,  m o d if ie d  i n  
r e h g . en  b a n c , 4 5 2  F .2 d  32 7  (8 t h  
C i r .  1 9 7 1 ) ,  c e r t ,  d e n ie d , 4 0 6  
U .S . 9 5 0  ( 1 9 7 2 ) ..................................................  4 4 ,  4 9 ,  5 0

C a s tr o  v .  B e e c h e r , 4 5 9  F .2 d  7 2 5 , ( 1 s t  
C i r .  1 9 7 2 ) ................................................................... 43

C o n tr a c to r s  A s s 'n .  o f  E a s t e r n  P a. v .
S e c r e ta r y  o f  L a b o r , 4 4 2  F .2 d  15 9  (3 r d
C i r .  1 9 7 i ) , c e r t ,  d e n ie d , 4 0 4  U .S .  8 5 4
(1 9 7 1 )   ........................................................................  43

D a v is  v .  C ounty o f  L o s  A n g e le s , 8  FEP 
C a se s  2 3 9  (C .D . C a l .  1 9 7 3 ) ,  5 6 6  F . 2d  
1 3 3 4  ( 9 t h  C i r .  1 9 7 7 ) ....................................... 9 ,  1 0 , 11

5 3 , 54

201



P a g e

- i v -

TABLE OF AUTHORITIES CITED -  con tin u ed

F ran k s v .  Bowman T r a n s p o r t a t io n  C o , ,
4 9 5  F .2 d  3 9 8  (5 t h  C i r .  1 9 7 4 ) ,  m o d i f i e d ,
4 2 4  U .S .  7 4 7 ( 1 9 7 6 ) .......................................  4 1 ,  4 4 ,  4 8 ,

49

F u m c o  C o n s t r u c t io n  C orp . v .  W a t e r s ,
U .S .  [5 7  L .E d .2 d  957  

H 9 7 8 ) . “ T .............................................................. 1 2  ■ 37

G a m e r  v .  G ia r r u s s o , 571  F .2 d  1 3 3 0  
(5 t h  C i r .  1 9 7 8 ) .............................................  1 4 > 19

Graham v .  R ic h a r d s o n , 4 0 3  U .S .  3 6 5  
( 1 9 7 1 ) ......................................................................... 28  > 29

G r i f f i n  v .  B r e c k e n r id g e , 4 0 3  U .S .  8 8 ,
9 6 -9 7  ( 1 9 7 1 ) .......................................  3 3 , 34

G r ig g s  v .  Duke Power C o . ,  4 0 1  U .S .
4 2 4  ( 1 9 7 1 ) .............................................................. 1 1  - 38

G u erra  v .  M a n ch e ste r  T e rm in a l C o r p . ,
4 9 8  F . 2d  641  ( 5 t h  C i r .  1 9 7 4 ) .  . . 2 2 ,  29

I n t e r n a t i o n a l  B ro th e rh o o d  o f  T e a m ste rs  
v .  U n ite d  S t a t e s , 4 3 1  U .S .  3 2 4
( 1 9 7 7 ) .  . ........................................................ .....  3 8 ,  4 1 ,  55

Joh nson  v .  Raihw ay E x p r e ss  A g e n c y , 4 2 1
U .S .  4 5 4  (1 9 7 5 )  .............................................. 1 4 ,  1 9 , 30

3 6 ,  41

J o n es v .  A l f r e d  M ayer C o . ,  3 9 2  U .S .  
4 0 9  ( 1 9 6 8 ) .............................................................. 1 7 ,  2 1 , 25 

2 6 ,  2 7 , 31

202



- V -

P a g e

Kahn v .  S h e v in , 4 1 6  U .S . 3 5 1  ( 1 9 7 4 ) .  51

K a tzen b a ch  v .  M organ, 3 8 4  U .S . 641  
( 1 9 6 6 ) ..............................................................................  51

L o u is ia n a  v .  U n ite d  S t a t e s ,  38 0  U .S .
1 4 5 , 1 5 4  ( 1 9 6 5 ) ...................... 4 2

M cD an iel v .  B a n e s i , 4 0 2  U .S . 39  
( 1 9 7 1 ) ................................... .....................................  51

M cDonald v .  S a n ta  F e T r a i l  T r a n s n o r -  
t a t i o n C o . ,  4 2 7  U .S .  273  ( 1 9 7 6 ) * .  .1 4 ,  2 1 , 2 7 ,

28

M b n e ll v .  NYC D e p t , o f  S o c . S v c s . ,
_ _ U .S .____ , 5 6 'L .E d .2d 611

7 1 9 7 7 ) ........................................................................   . 34

Morrow v .  C r i s l e r ,  4 9 1  F .2 d  1053  
( 5 t h  C i r .  1 9 7 4 )  (e n  b a n c ) ,  c e r t ,  
d e n ie d , 4 1 9  U .S .  895  (1 9 7 4 )  . . . .  4 4

P e n n sy lv a n ia  v .  O 'N e i l l ,  4 7 3  F ,2 d  
1 0 2 9  (3 r d  C i r .  1 9 7 3 )  (e n  b a n c ) . . .  43

P ettw a y  v .  A m erican  C a s t  I r o n  P ip e  
C o . ,  4 9 4  F . 2d 2 1 1  ( 5 t h  C i r .  1 9 7 4 ) . 41

R io s  v .  E n t e r p r is e  A s s 'n .  S t e a m fi t t e r s  
L o c a l 6 3 8 , 5 0 1  F .2 d  62 2  (2nd C ir .
1 9 7 4 ) .............................................................................. 43  , 45

Runyon v .  M cC ra ry , 4 2 7  U .S .  160
( 1 9 7 6 ) ..............................................................................2 2 ,  2 6 , 27

TABLE OF AUTHORITIES CITED -  con tin u e d

203



- v i -

TABLE OF AUTHORITIES CITED -  con tin u e d

Page

Schlesinger v .  Ballard, 4 1 9  U .S .  4 9 8  
( 1 9 7 5 ) ............................................. 51

S e th y  v .  A lam eda C ounty W a ter  D i s t r i c t ,
54 5  F . 2d  1 1 5 7  ( 9 t h  C i r .  1 9 7 6 )
(e n  b a n c ) ...................................................................1 4 ,  1 7 ,  19

Swarm v .  C h a r lo tte -M e c k le n b u r g  B oard  
o f  E d u c a tio n , 4 0 2  U .S .  1 ( 1 9 7 1 ) .  . 42

United Jewish Organizations v. Carey,
4 3 0  U .S .  1 4 4  ( 1 9 7 7 ) .......................................  4 1 ,  51

U n ite d  S t a t e s  v .  C a r p e n te r s  L o c a l  1 6 9 ,
4 5 7  F . 2d 211  (7 t h  C i r .  1 9 7 2 ) ,  c e r t ,  
d e n ie d , 4 0 9  U .S . 851  ( 1 9 7 2 ) .  . . .  44

U n ite d  S t a t e s  v .  Iro n w o rk e rs  L o c a l  
8 6 ,  44 3  F . 2d  5 4 4  (9 t h  C i r .  1 9 7 1 ) ,  
c e r t ,  d e n ie d , 4 0 4  U .S .  9 8 4  ( 1 9 7 1 ) .  4 4

U n ite d  S t a t e s  v .  L o c a l  2 1 2 , I .B .E .W . ,
4 7 2  F . 2d 6 3 4  ( 6 t h  C i r .  1 9 7 3 )  . . .  44

U n ite d  S t a t e s  v .  M ason ry C o n tr a c to r s  
A s s 'n .  o f  M em phis, I n c . ,  4 9 7  F . 2d  
8 7 1  (6 t h  C i r .  1 9 7 4 ) ........  44

U n ite d  S t a t e s  v .  N .L . I n d u s t r i e s ,  I n c . ,
4 7 9  F . 2d 3 5 4  ( 8 t h  C i r .  1 9 7 3 )  (e n
b a n c ) ........................ ... .................................................. 4 4

U n ite d  S t a t e s  v .  Wood, W ir e , and  
M e ta l L a th e r s  I n t e r n a t i o n a l  L o c a l  
4 6 ,  4 7 1  F . 2d  4 0 8  (2 n d  C i r .  1 9 7 3 ) ,  
c e r t ,  d e n ie d , 4 1 2  U .S .  9 3 9  (1 9 7 3 )  . 4 3 ,  45

204



-VI1-

U n i v e r s i t y  o f  C a l i f o r n i a  R e g e n ts  v .
Bakke, U .S .____ , 57 L .E d .2 d  7 5 0
( 1 9 7 8 ) ......................................................................... 4 6 ,  4 7 ,  5 0 ,

5 1 ,  5 2 , 5 3 ,  
55

V u lc a n  S o c i e t y  v .  C i v i l  S e r v ic e  Comm­
i s s i o n ,  4 9 0  F . 2d 3 8 7  ( 1 s t  C i r .  1 9 7 3 ) ,  
c e r t ,  d e n ie d , 4 1 6  U .S . 95 7  ( 1 9 7 4 ) .  43

W a sh in g to n  v .  D a v is , 4 2 6  U .S .  229  
( 1 9 7 6 ) ........................................................................  1 0 ,  1 2 , 32

Young v .  I n t e r n a t i o n a l  T e le p h o n e  
& T e le g r a p h  C o . ,  4 3 8  F . 7 5 7  (3 r d  
C i r .  1 9 7 1 ) ......................................   17

STA T U T E S

C i v i l  R ig h t s  A c t  o f  1 8 6 6 , c .3 1  
4 1  S t a t .  2 7 .............................................................  p a ss im

C i v i l  R ig h t s  A c t  o f  1 8 7 1 , 1 7  S t a t .
1 3 ...................................................................................  1 7 , 34

C i v i l  R ig h ts  A c t  o f  1 9 6 4 , T i t l e  V I I ,
S e c . 7 0 1  e t  s e q ..................................................  p a ss im

C i v i l  R ig h ts  A c t  o f  1 9 6 4 , T i t l e  V I I ,
S e c . 7 0 3 ( j )  . . . ...............................................  4 5 ,  4 6

E n fo rcem e n t A c t  o f  1 8 7 0 , c . 1 6 ,  1 6  
S t a t .  4 4  ................................................................... 1 7 ,  2 0 , 34

R e v is e d  S t a t u t e s  o f  1 8 7 4 ............................  20

TABLE OF AUTHORITIES CITED -  c o n tin u e d

Page

205



U n ite d  S t a t e s  C od e, T i t l e  4 2 ,  S e c .
1 9 8 1  ..............................................................................  p a ssim

U n ite d  S t a t e s  C od e , T i t l e  4 2 ,  S e c .
1 9 8 2  ................................................................................  2 0 ,  2 1 ,  2 5 ,

2 6 ,  31

U n ite d  S t a t e s  C ode, T i t l e  4 2 ,  S e c .
1 9 8 3  ................................................................................. 1 7 , 3 0 ,  3 1 ,

3 2 ,  3 3 , 34

U n ite d  S t a t e s  C ode, T i t l e  4 2 ,  S e c .
1 9 8 5  .......................................................   3 0 ,  3 1 ,  32

3 3 ,  34

U n ite d  S t a t e s  C ode, T i t l e  4 2 ,  S e c .
2 0 0 0 (e )  . .................................................................... p a ssim

U n ite d  S t a t e s  C ode, T i t l e  4 2 ,  S e c .
2 0 0 0 ( e ) ( 2 ) ( c ) ......................................................... 4 5 ,  46

U n ite d  S t a t e s  C o n s t i t u t io n ,  T h ir t e e n t h
Amendment......................................................................... 2 1 , 3 2 , 3 4

U n ite d  S t a t e s  C o n s t i t u t io n ,  F o u r te e n th
Amendment...................................................  17

MISCELLANEOUS

C ong. G lo b e ,3 9 t h  C o n g ., 1 s t  S e s s .  5 9 9  1 7 ,  2 1 ,
2 3 ,  24

C ong. G lo b e ,4 1 s t  C o n g ., 2d  S e s s .  3 5 6 0  34

118  C ong. R e c . 3 3 7 1 -7 3  ( 1 9 7 1 ) .  . . .  35

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Page

206



I n  t h e  S u p r e m e  C o u r t  

O f  T h e

U n i t e d  S t a t e s

OCTOBER TERM , 1 9 7 8

N o . 7 7 - 1 5 5 3

COUNTY OF LO S A N G E L E S , e t  al. 
P e t i t i o n e r s , 

v s  .

VAN D A V I S , e t  al . ,  

R e s p o n d e n t s .

B R IE F  OF A M IC I  CU RIAE





3 -

IN T E R E S T  O F A M IC I  C U R IAE

T h e  I n c o r p o r a t e d  M e x i c a n  A m e r i c a n  

G o v e r n m e n t  E m p l o y e e s  (IM A G E ) i s  a  n a ­

t i o n a l  o r g a n i z a t i o n  c o n c e r n e d  w i t h  t h e  

p u b l i c  e m p lo y m e n t  o f  H i s p a n i c  A m e r i c a n s ,  

M e x i c a n  A m e r i c a n s ,  C u b a n  A m e r i c a n s ,  

P u e r t o  R i c a n s ,  C e n t r a l - S o u t h  A m e r i c a n s ,  

a n d  a l l  t h o s e  o f  H i s p a n i c  c u l t u r a l / l i n -  

g u i s t i c  h e r i t a g e .  W i t h  c l o s e  t o  7 0  

a f f i l i a t e s  c h a r t e r e d  i n  2 5  s t a t e s ,  IMAGE  

i s  i n c o r p o r a t e d  i n  t h e  D i s t r i c t  o f  

C o l u m b i a .  IMAGE w a s  c r e a t e d  b e c a u s e  o f  

t h e  s u b s t a n t i a l  u n d e r r e p r e s e n t a t i o n  o f  

H i s p a n i c s  i n  f e d e r a l ,  s t a t e ,  a n d  l o c a l  

e m p lo y m e n t .  F o r  e x a m p l e ,  a l t h o u g h  

H i s p a n i c  A m e r i c a n s  c o m p r i s e  o v e r  77o o f

209



-4-

t h e  n a t i o n a l  p o p u l a t i o n ,  t h e y  h o l d  o n l y  

3 . 5 %  o f  t h e  2 . 4  m i l l i o n  f e d e r a l  j o b s ,  

2 .4 7 o  o f  t h e  1 . 5  m i l l i o n  s t a t e  j o b s ,  a n d  

4 . 1 %  o f  t h e  2 . 5  m i l l i o n  l o c a l / m u n i c i p a l  

j o b s  .

T h e  L e a g u e  o f  U n i t e d  L a t i n  A m e r i c a n  

C i t i z e n s  (L U L A C ) i s  a  n a t i o n a l  c i v i l  

r i g h t s  o r g a n i z a t i o n  w i t h  s o c i a l  a n d  c u l ­

t u r a l  f u n c t i o n s .  I t s  5 0 t h  a n n i v e r s a r y  

y e a r ,  1 9 7 8 ,  h a s  b e e n  s p e n t  c o n t i n u i n g  

t h e  d e v e l o p m e n t  o f  a n  e q u i t a b l e  s h a r e  o f  

j o b  o p p o r t u n i t i e s  f o r  H i s p a n i c s .  LULAC  

h a s  b e e n  r e s p o n s i b l e  f o r  t h e  f o r m a t i o n  

o f  O p e r a t i o n  S E R , t h e  l a r g e s t  H i s p a n i c  

t r a i n i n g  p r o g r a m  i n  t h e  c o u n t r y .

T h e  A m e r i c a n  G . I .  F o r u m  i s  a  v e t ­

e r a n ' s  f a m i l y  o r g a n i z a t i o n  c o m p o s e d  

p r i m a r i l y  o f  M e x i c a n  A i t f e r i c a n s . I t  h a d

210



-5-

i t s  b e g i n n i n g s  a f t e r  W o r l d  W a r I I  i n  t h e  

a s p i r a t i o n s  o f  r e t u r n i n g  M e x i c a n  A m e r i ­

c a n  v e t e r a n s  t o  e n d  t h e  d i s c r i m i n a t o r y  

s o c i a l ,  e c o n o m i c ,  a n d  p o l i t i c a l  p r a c ­

t i c e s  t h a t  p e r v a d e d  t h i s  c o u n t r y .  T h e  

o r g a n i z a t i o n  n o w  h a s  c h a p t e r s  n a t i o n ­

w i d e .  O n e  o f  t h e  m a i n  g o a l s  o f  t h e  

F o r u m  i s  t h e  i m p r o v e m e n t  o f  e m p lo y m e n t  

o p p o r t u n i t y .

S E R -J o b s  f o r  P r o g r e s s ,  I n c . ,  ( S E R ) , 

i s  a  n o n p r o f i t  T e x a s  c o r p o r a t i o n ,  h a s  

b e e n  p r o v i d i n g  e m p lo y m e n t  a n d  t r a i n i n g  

s e r v i c e s  t o  e c o n o m i c a l l y  d i s a d v a n t a g e d  

H i s p a n i c s  t h r o u g h o u t  t h e  U n i t e d  S t a t e s  

f o r  t h e  p a s t  d e c a d e .  N a t i o n a l  SER i s  

p r o v i d i n g  $ 2 . 7  m i l l i o n  i n  t r a i n i n g  a n d  

t e c h n i c a l  a s s i s t a n c e  t o  so m e  s i x t y  l o c a l  

S E R /C E T A  p r o g r a m  s e r v i c e  d e l i v e r e r s .  

T h e r e  a r e  s e v e r a l  l o c a l  SER p r o g r a m

211



-6-

o p e r a t o r s  t h a t  p r o v i d e d  e m p lo y m e n t  a n d  

t r a i n i n g  s e r v i c e s  t o  e c o n o m i c a l l y  d i s ­

a d v a n t a g e d  u n e m p l o y e d  r e s i d e n t s  o f  t h e  

C o u n t y  o f  L o s  A n g e l e s . E a c h  o f  t h e  SER  

o p e r a t o r s ,  o n  a t  l e a s t  o n e  o c c a s i o n ,  h a s  

r e f e r r e d  q u a l i f i e d  H i s p a n i c  CETA a p p l i ­

c a n t s  t o  t h e  L o s  A n g e l e s  C o u n t y  F i r e  

D e p a r t m e n t .

Q U E ST IO N S PRESEN TED

1 .  I s  P r o o f  o f  P u r p o s e f u l  I n t e n t  

t o  D i s c r i m i n a t e  N e c e s s a r y  t o  M a k e  O u t  

a  V i o l a t i o n  U n d e r  4 2  U . S . C .  § 1 9 8 1 ?

2 .  D i d  t h e  T r i a l  C o u r t  E x c e e d  I t s  

J u r i s d i c t i o n  i n  F a s h i o n i n g  t h e  R e m e d i a l  

H i r i n g  O r d e r  i n  t h e  J u d g e m e n t  B e lo w ?

212



7 -

STATEM ENT OF THE CASE  

A m i c i  r e l y  u p o n  R e s p o n d e n t s  t o  s e t  

o u t  t h e  f a c t u a l  s e t t i n g  o f  t h i s  c a s e .

ARGUMENT

A m i c i  c u r i a e  r e s p e c t f u l l y  u r g e  t h a t  

t h e  d e c i s i o n  b e l o w  b e  a f f i r m e d ;  th e  c le a r  

l a n g u a g e  o f  t h e  s t a t u t e ,  t h e  l e g i s l a t i v e  

h i s t o r y ,  a n d  t h e  r e l e v a n t  c a s e  l a v ;  e s ­

t a b l i s h  t h a t  a l l  d i s c r i m i n a t i o n  a b r i d ­

g i n g  t h e  r i g h t s  e n u m e r a t e d  t h e r e i n  a r e  

p r o h i b i t e d  u n d e r  4 2  U . S . C .  § 1 9 8 1 .  C o n ­

s e q u e n t l y ,  t h e  C o u r t  c o r r e c t l y  f o u n d  

l i a b i l i t y  o n  t h e  p a r t  o f  P e t i t i o n e r s  a n d  

i n s t i t u t e d  t h e  r e m e d i a l  h i r i n g  o r d e r  t o  

o v e r c o m e  t h e  d i s c r i m i n a t i o n  f o u n d  t o  

e x i s t .

T h e  f i r s t  q u e s t i o n  p r e s e n t e d  i n

213



-8-

t h i s  c a s e  i s  w h e t h e r  p u r p o s e f u l  i n t e n t  

t o  d i s c r i m i n a t e  n e e d  b e  d e m o n s t r a t e d  i n  

o r d e r  t o  e s t a b l i s h  a  v i o l a t i o n  u n d e r  

§ 1 9 8 1 .  A m i c i  a g r e e  w i t h  t h e  t r i a l  

c o u r t ,  t h e  N i n t h  C i r c u i t  C o u r t  o f  A p ­

p e a l s ,  a n d  R e s p o n d e n t  h e r e i n ,  t h a t  a n  

u n r e b u t t e d  s h o w i n g  o f  a d v e r s e  i m p a c t  o n  

M e x i c a n  A m e r i c a n s  a n d  b l a c k s  r e s u l t i n g  

f r o m  s e l e c t i o n  p r o c e d u r e s  u t i l i z e d  b y  

t h e  P e t i t i o n e r  i s  s u f f i c i e n t  t o  

e s t a b l i s h  l i a b i l i t y  u n d e r  § 1 9 8 1 .  S u c h  

a  r e s u l t  i s  c o n s i s t e n t  w i t h  t h e  s t a n d a r d  

o f  p r o o f  o f  l i a b i l i t y  u n d e r  T i t l e  V I I ,

4 2  U . S . C .  § 2 0 0 0 ( e ) , e t  s e q .

T h e  s e c o n d  q u e s t i o n  p r e s e n t e d  

h e r e i n  i s  t h e  a p p r o p r i a t e n e s s  o f  t h e  

r e m e d y  o r d e r e d  b e l o w .  A m i c i  r e s p e c t ­

f u l l y  s u b m i t  t h a t  f e d e r a l  c o u r t s  h a v e  

w e l l  r e c o g n i z e d  b r o a d  p o w e r s  t o  f a s h i o n  

r e m e d i e s  t o  e n d  d i s c r i m i n a t o r y  c o n d u c t

214



- 9 -

o n  t h e  p a r t  o f  p u b l i c  e n t i t i e s .  M o r e ­

o v e r ,  f e d e r a l  c o u r t s  a r e  u n d e r  a  d u t y  t o  

o r d e r  r e l i e f  w h i c h  w i l l  n o t  o n l y  p r o h i ­

b i t  f u t u r e  d i s c r i m i n a t o r y  c o n d u c t  b u t  

a l s o  e r a d i c a t e  t h e  p r e s e n t  e f f e c t s  o f  

p a s t  d i s c r i m i n a t i o n .

I .  UNDER 4 2  U . S . C .  § 1 9 8 1 ,  A  PRIM A F A C IE  

CASE OF EMPLOYMENT D IS C R IM IN A T IO N  

CAN BE E S T A B L IS H E D  THROUGH A  

D EM ONSTRATION OF AD VER SE IM P A C T ; 

PU RPO SEFU L IN TE N T TO D IS C R IM IN A T E  

NEED NOT BE PR O VED .

T h e  N i n t h  C i r c u i t  C o u r t  o f  A p p e a l s ,  

i n  i t s  o p i n i o n  b e l o w ,  h e l d  t h a t :

" .  . . [ T ] h e r e  r e m a i n s  n o  o p e r a t i o n ­

a l  d i s t i n c t i o n  I n  t h i s  c o n t e x t  b e t w e e n  

l i a b i l i t y  b a s e d  u p o n  T i t l e  V I I  a n d  

§ 1 9 8 1 . "  5 6 6  F . 2 d  a t  1 3 4 0 .

T h e  C o u r t  i n  e f f e c t  h e l d  t h a t  a  p l a i n -

215



-10-

t i f f  u n d e r  4 2  U . S . C .  § 1 9 8 1  n e e d  n o t  

p r o v e  p u r p o s e f u l  i n t e n t  t o  d i s c r i m i n a t e  

i n  o r d e r  t o  e s t a b l i s h  a  p r i m a  f a c i e  

c a s e ;  R e s p o n d e n t s  w e r e  r e q u i r e d  o n l y  

t o  d e m o n s t r a t e  t h a t  t h e  c h a l l e n g e d  

e m p lo y m e n t  p r a c t i c e  h a d  a  d i s p r o p o r t i o n ­

a t e  a d v e r s e  i m p a c t  o n  t h e  e m p lo y m e n t  

c o n t r a c t  r i g h t s  o f  M e x i c a n  A m e r i c a n  a n d  

b l a c k  a p p l i c a n t s . ^ "

The q u e s t io n  o f  r a c i a l  anim us w as n o t  a t  i s ­
su e ; a t  t h e  tim e  th e  t r i a l  c o u r t  r e a c h e d  i t s  
d e c i s i o n ,  t h i s  C o u rt h ad  n o t  y e t  handed down 
i t s  o p in io n  i n  W a sh in g to n  v .  D a v is ,  4 2 6  U .S .  
229  ( 1 9 7 6 ) .

A t  th e  t r i a l  l e v e l  R esp o n d en ts  d em o n stra ted  
t h a t  i n  1 9 6 9 , and a g a in  i n  1 9 7 2 , P e t i t i o n e r s  
u t i l i z e d  a n  u n v a lid a t e d  w r i t t e n  a p t i t u d e  
t e s t  t o  r a n k  a p p l ic a n t s  f o r  p o s i t i o n s  a s  
f i r e f i g h t e r s .  B o th  th e  t r i a l  and th e  C o u rt  
o f  A p p e a ls  fo u n d  t h a t  th e  w r i t t e n  exam ina­
t i o n s  h ad  an  a d v e r s e  im p a c t on  m in o r i t y  
a p p l i c a n t s .  D a v is  v .  C ountv o f  L o s  A n g e le s ,  
8 F .E .P .  C a se s  2 3 9 , 2 4 0  (C .D . C a T  1 9 7 3 ) ,  "  
56 6  F . 2d  1 3 3 4 , 1 3 4 1 ,  ( 9 th  C i r . ,  1 9 7 7 ) .  In  
1 9 6 9  o n ly  se v e n  (7% ) o f  th e  1 0 0  M ex ica n  
A m erica n  a p p l ic a n t s  who to o k  th e  exam w ere  
h ir e d ; o f  th e  2 4 4  b la c k s  who to o k  th e  exam, 
(c o n t .  n e x t  p a g e )

216



- 1 1 -

T h e  r e s u l t  o f  t h e  C i r c u i t  C o u r t ' s

h o l d i n g  i s  t o  h a r m o n i z e  t h e  s t a n d a r d  o f

l i a b i l i t y  u n d e r  § 1 9 8 1  w i t h  t h e  s t a n d a r d  

2
u n d e r  T i t l e  V I I .  * 175

1  (c o n tin u e d  fro m  l a s t  p a g e )  
j u s t  f i v e  (o r  2%) w ere h ir e d . By co m p arison ,
1 7 5  o u t  o f  1 ,0 8 0  ( 1 6 .2 % )  w h ite  a p p l ic a n t s  
who to o k  th e  exam w e re  em ployed b y  P e t i t i o n ­
e r s  . Though M ex ic a n  A m erican  and b la c k  
a p p l ic a n t s  c o m p rise d  a p p r o x im a te ly  25% o f  
t h e  grou p  exam in ed , th e y  made up o n ly  6 .4 %  
o f  th o s e  h i r e d .  A d d i t i o n a l ly ,  a p p r o x im a te ly  
16%, o f  v h i t e  exam in ees w ere  h i r e d ,  compared  
t o  7 .0 2 %  o f  m in o r i t y  ex a m in e e s .

T h e 1 9 7 2  w r i t t e n  exam h ad  a  s i m i la r  im p a c t. 
Among th e  to p  5 4 4  s c o r e r s  w ere 2 5 .8 %  o f  th e  
w h ite  a p p l i c a n t s , 11%, o f  th e  M ex ican  A m eri­
ca n  a p p l i c a n t s ,  and  o n ly  5 .1% , o f  th e  b la c k  
a p p l i c a n t s .  56 6  F .2 d  a t  1 3 3 7 . D e s p it e  t h i s  
s e v e r e ly  d is p r o p o r t io n a t e  im p a ct on  m in o r i ­
t i e s ,  n o  e f f o r t  was made to  v a l i d a t e  th e  
t e s t s .  5 6 6  F . 2d  a t  1 3 4 1 .

^ 4 2  U .S .C .  § 2 0 0 0 (e )  e t  s e q . U nder th e  g u id e ­
l i n e s  e s t a b l i s h e d  i n  G r ig g s  v . Duke Power 
C o . , 4 0 1  U .S .  4 2 4  ( 1 9 7 1 ) ,  a  p r i m  f a c i e  
c a s e  o f  d i s c r im in a t io n  can  b e  e s t a b l is h e d  
p u r su a n t  t o  T i t l e  V I I  b y  a  d a m n s t r a t i o n  
t h a t  a  c h a lle n g e d  em ploym ent p r a c t i c e  
o r  p r o c e d u r e  h a s a  d is p r o p o r t io n a t e  im p a ct  
on  th e  em ploym ent o p p o r t u n it ie s  o f  a  p r o t e c ­
t e d  c l a s s . O nce s u d i  a  p rim a f a c i e  c a s e  i s  
(c o n t .  n e x t  p a g e )

217



-12-

P e t i t i o n e r s  c o n t e n d  t h a t  t h e  

C o u r t ' s  o p i n i o n  i n  W a s h i n g t o n  v .  D a v i s , 

4 2 6  U . S .  2 2 9  ( 1 9 7 6 ) ,  r e q u i r e s  p r o o f  o f  

p u r p o s e f u l  i n t e n t  t o  d i s c r i m i n a t e  i n  

o r d e r  t o  m a k e  o u t  a  v i o l a t i o n  u n d e r  

§ 1 9 8 1 .  H o w e v e r ,  t h e  d e c i s i o n  i n  W a s h ­

i n g t o n  v .  D a v i s  d i d  n o t  a d d r e s s  t h e  

q u e s t i o n  o f  s t a t u t o r y  l i a b i l i t y  u n d e r  

§ 1 9 8 1 ,  b u t  o n l y  d e a l t  w i t h  t h e  q u e s t i o n  

o f  w h e t h e r  T i t l e  V I I  s t a n d a r d s ,  w i t h  

r e g a r d  t o  a d v e r s e  i m p a c t  a n d  a  p r i m a  

f a c i e  s h o w i n g  o f  d i s c r i m i n a t i o n ,  c o u l d  

b e  a p p l i e d  i n  t h e  c i r c u m s t a n c e  o f  a  

c o n s t i t u t i o n a l  c h a l l e n g e .  4 2 6  U . S .  a t  

2 4 7  . T h e r e f o r e ,  t h e  q u e s t i o n  o f  w h e t h e r  

p u r p o s e f u l  i n t e n t  t o  d i s c r i m i n a t e  i s  2

2 (c o n t .  fro m  l a s t  p a g e )  
e s t a b l i s h e d ,  t h e  b u rd en  s h i f t s  t o  th e  
em p loyer t o  come fo rw a rd  w ith  a  l e g i t i m a t e  
and n e c e s s a r y  b u s in e s s  r e a s o n  w h ich  
i s  a d van ced  b y  th e  c h a lle n g e d  p r a c t i c e .  
F u m c o  v .  W a te r s , U .S .  , 5 7  L .E d .2 d  
9 5 7  ( 1 9 7 8 ) .

218



- 13 -

n e c e s s a r y  t o  m a k e  o u t  a  v i o l a t i o n  u n d e r  

§ 1 9 8 1  i s  b e f o r e  t h e  C o u r t  f o r  t h e  f i r s t  

t i m e .

A .  THE P L A IN  TERMS OF 4 2  U . S . C .  § 1 9 8 1  

AND I T S  A F F IR M A T IV E  NATURE OUTLAW  

A LL D IS C R IM IN A T IO N  IN F R IN G IN G  ON THE 

R IG H T S ENUMERATED TH ER EIN

T h e  t e r m s  o f  § 1 9 8 1  s u p p o r t  t h e  p o ­

s i t i o n  t h a t  i n t e n t  i s  n o t  a n  e l e m e n t  o f  

t h e  s t a t u t o r y  v i o l a t i o n .  4 2  U . S . C .  § 1 9 8 1  

r e a d s :

" A l l  p e r s o n s  w i t h i n  t h e  j u r i s d i c t i o n  

o f  t h e  U n i t e d  S t a t e s  s h a l l  h a v e  t h e  

sa m e  r i g h t  i n  e v e r y  s t a t e  a n d  t e r r ­

i t o r y  t o  m a k e  a n d  e n f o r c e  c o n t r a c t s , 

t o  s u e ,  b e  p a r t i e s ,  g i v e  e v i d e n c e ,  

a n d  t o  t h e  f u l l  a n d  e q u a l  b e n e f i t  

o f  a l l  l a w s  a n d  p r o c e e d i n g s  f o r  

t h e  s e c u r i t y  o f  p e r s o n s  a n d

219



- 14 -

p r o p e r .t y  a s  i s  e n j o y e d  by w h i t e  

c i t i z e n s ,  a n d  s h a l l  b e  s u b j e c t  t o  

l i k e  p u n i s h m e n t ,  p a i n s ,  p e n a l t i e s ,  

t a x e s ,  l i c e n s e s ,  a n d  e x a c t a t i o n s  

o f  e v e r y  k i n d ,  a n d  t o  n o  o t h e r . "  

[ E m p h a s i s  a d d e d ] .

O n i t s  f a c e ,  § 1 9 8 1  i s  a n  a f f i r m a ­

t i v e  g u a r a n t e e  o f  r i g h t s .  T h e  p l a i n  

l a n g u a g e  o f  § 1 9 8 1  r e f l e c t s  t h e  c o n g r e s s ­

i o n a l  i n t e n t  t o  o u t l a w  a l l  d i s c r i m i n a t i o n  

i n f r i n g i n g  o n  t h e  r i g h t s  e n u m e r a t e d  

t h e r e i n ,  i n c l u d i n g  t h e  r i g h t  t o  c o n t r a c t  

f o r  e m p l o y m e n t .^

3
S ee  g e n e r a l l y ,  M cDonald v .  S a n ta  F e T r a i l  
T r a n s p o r t a t io n  C o . ,  4 2 7  U .S .  273  ( 1 9 7 6 ) T~ 
Joh n son  v .  R a ilw a y  E x p re ss  A g e n c y , 4 2 1  U .S .  
4 5 4  ( 1 9 7 5 ) ;  G a m e r  v .  G ia r r u s s o , 5 7 1  F .2 d  
1 3 3 0  (5 t h  C i r .  1 9 7 8 ) ;  S e th y  v .  Alam eda Coun­
t y  W a te r  D i s t r i c t , 54 5  F .2 a  11 5 7  (9 t h  C i r .  
1 9 7 6 )~  ( en  b a n c )~

220



- 15-

B y  i t s  t e r m s ,  § 1 9 8 1  i s  n o t  l i m i t e d  

t o  r e d r e s s i n g  o n l y  t h o s e  d e n i a l s  o f  

r i g h t s  b y  p r a c t i c e s  o r  s t a t e  la w  w h i c h  

a r e  t h e  p r o d u c t  o f  b l a t a n t  r a c i a l  a n i m u s . 

T h e  b r o a d  l a n g u a g e  o f  § 1 9 8 1  t h a t  " a l l  

p e r s o n s . . . s h a l l  h a v e  t h e  s a m e  r i g h t "  

a l s o  e n c o m p a s s e s  t h e  u n e q u a l  a v a i l a b i ­

l i t y  o f  r i g h t s  r e s u l t i n g  f r o m  s u b t l e  o r  

f a c i a l l y  n e u t r a l ,  y e t  e q u a l l y  d i s c r i m i ­

n a t o r y ,  p r a c t i c e s .

A c t i o n s  a n d  p r a c t i c e s  n o t  m a n d a t e d  

b y  s t a t e  l a w s  a n d  w h i c h  a p p l y  t o  w h i t e s  

a s  w e l l  a s  n o n - w h i t e s  m ay  n e v e r t h e l e s s  

i m p i n g e  o n  t h e  r i g h t s  o f  r a c i a l  a n d  

e t h n i c  m i n o r i t i e s  t o  c o n t r a c t  a s  s e v e r e ­

l y  a s  a  b l a t a n t l y  r a c i a l l y  m o t i v a t e d  

l a w .  T h e  f a c t  t h a t  C o n g r e s s  i n t e n d e d  

b l a c k s  a n d  o t h e r  e t h n i c  m i n o r i t i e s  t o  

h a v e  t h e  s a m e  r i g h t s  m e a n t  t h o s e  r i g h t s  

a f f o r d e d  w e r e  t o  b e  a v a i l a b l e  i n  f a c t ,

221



- 16 -

n o t  j u s t  i n  n a m e . S e c t i o n  1 9 8 1  b y  i t s  

l a n g u a g e  i s  v e r y  c l e a r l y  a n  " e f f e c t s "  

o r i e n t e d  s t a t u t e .  I t  d o e s  n o t  s t a t e  

t h a t  a l l  p e r s o n s  s h a l l  h a v e  t h e  s a m e  

r i g h t s  i n  t h e  f a c e  o f  r a c i a l l y  m o t i v a t e d  

a c t s  ; i t  u n e q u i v o c a l l y  s t a t e s  " a l l  p e r ­

s o n s ”  s h a l l  h a v e  t h e  s a m e  r i g h t s  a n d  

a n y  c o n d u c t  i n f r i n g i n g  o n  t h o s e  r i g h t s  

i s  u n l a w f u l .

W h en  a n  a c t i o n  i s  b r o u g h t  p u r s u a n t  

t o  § 1 9 8 1 ,  t h e  t r i a l  c o u r t ,  i n  d e t e r m i n ­

i n g  t h e  m e r i t s  o f  t h e  c l a i m ,  n e c e s s a r i l y  

m u s t  f o c u s  o n  m e a s u r i n g  w h e t h e r  o r  n o t  

t h e  r i g h t s  c l a i m e d  u n d e r  a n d  e n u m e r a t e d  

i n  t h e  s t a t u t e  a r e  a v a i l a b l e  t o  " a l l  

p e r s o n s "  i n  t h e  s a m e  d e g r e e  i n  r e l a t i o n  

t o  o t h e r s ,  i . e . ,  w h i t e s .  I t  i s  o n l y  b y  

f o c u s i n g  o n  t h e  r e l a t i v e  m e a s u r e  o f  

r i g h t s  a v a i l a b l e  t o  i n d i v i d u a l s  o f  

d i f f e r e n t  r a c i a l  a n d  e t h n i c  g r o u p s

222



- 17 -

t h a t  t h e  C o u r t  c a n  d e t e r m i n e  w h e t h e r  t h e  

g u a r a n t e e s  o f  § 1 9 8 1  h a v e  b e e n  b r e a c h e d .

T h e  q u e s t i o n  o f  r a c i a l  a n i m u s  i s  

n o t  t h e  d e t e r m i n a t i v e  i s s u e  u n d e r  § 1 9 8 1 .  

R a c i a l  a n i m u s  o r  m o t i v a t i o n  i s  p r o p e r l y  

a n  i s s u e  w h e n  a  s t a t u t e  p r o h i b i t s  

s p e c i f i e d  c o n d u c t .  T h i s  i s  t h e  c a s e  

u n d e r  § 1 9 8 3 ,  w h i c h  d e r i v e s  f r o m  t h e  

C i v i l  R i g h t s  A c t  o f  1 8 7 1  a n d  t h e  F o u r ­

t e e n t h  A m e n d m e n t . ^

S e c t i o n  1 9 8 1 ' s  p r e d e c e s s o r ,  §1 o f  th e  C i v i l  
R i g h t s  A c t  o f  1 8 6 6 ,  was r e e n a c t e d  i n  th e  
E n fo rc em e nt A c t  o f  1 8 7 0 .  T h a t  A c t  was 
i n t e n d e d  t o  im plem ent t h e  1 4 t h  Amendment. 
H owever, C o n g r e ss  d i d  n o t  i n t e n d  b y  th e  
r e e n a c tm e n t  t o  change th e  g o a l s  o r  i n t e r ­
p r e t a t i o n s  o f  th e  p r o v i s i o n s . The a im  o f  
C o n g re ss  i n  i n c l u d i n g  § 1 ,  a lo n g  w i t h  o t h e r  
s e c t i o n s  o f  th e  1 8 6 6  A c t ,  i n t o  t h e  E n f o r c e ­
m ent A c t  o f  1 8 7 0 ,  was t o  p r o v i d e  m achinery  
f o r  p u t t i n g  t h e  1 8 7 0  A c t  i n t o  m o t io n .  Cong.  
G lo b e ,  4 1 s t  C o n g . ,  2d S e s s .  3 5 6 0  (S e n .  Stew ­
a r t ) ;  c f .  S e th y  v .  Alam eda County W a ter  
D i s t . , 5 4 5  F . 2d 1 1 5 7 ,  1 1 6 0  n .  4  ( 9 t h  C i r .  
1 9 7 6 )  ( en  b a n c ) ; J o n es  v .  A l f r e d  Mayer C o . ,  
3 9 2  U .S .  40 9  ( 1 9 6 8 ) ;  Young v .  I n t e r n a t i o n a l  
T e l .  & T e l .  C o . ,  4 3 8  F . 2 d  7 5 7 ,  7 5 9 - 6 0  (3 r d  
C i r .  1 9 7 1 ) .

223



- 18 -

H o w e v e r ,  w h e n  a  s t a t u t e  s u c h  a s  

§ 1 9 8 1  g u a r a n t e e s  r i g h t s  t o  i n d i v i d u a l s  

t h e  f o c u s  i s  o n  w h e t h e r  c o n d u c t ,  l a w ,  o r  

p r a c t i c e s  i n f r i n g e  o n  t h o s e  r i g h t s ;  t h e  

q u e s t i o n  i s  n o t  w h e t h e r  t h e  d i s c r i m i n a ­

t i o n  w a s  p u r p o s e f u l  b u t  w h e t h e r  i t  

e x i s t e d .

C o n s e q u e n t l y ,  u n d e r  t h e  t e r m s  o f  

§ 1 9 8 1 ,  i t  i s  e n o u g h  t h a t  e m p l o y m e n t  

d i s c r i m i n a t i o n  p l a i n t i f f s  i s o l a t e  a n d  

i d e n t i f y  a c t i o n s  o r  p r a c t i c e s  t h a t  h a v e  

a n  a d v e r s e  i m p a c t  o n  t h e i r  r i g h t  t o  g a i n  

e m p l o y m e n t ,  o r  t h a t  t h e r e  i s  a  d i s p a r i t y  

b a s e d  o n  r a c e  o r  e t h n i c i t y .  T h e y  n e e d  

n o t  s h o w  t h a t  d e f e n d a n t s  i n t e n d e d  t o  

a f f e c t  m i n o r i t i e s  a d v e r s e l y .

B .  T H I S  COURT HAS BROADLY CONSTRUED  

THE LANGUAGE OF THE 1 8 6 6  C I V I L  

R IG H T S A C T  TO P R O H IB IT  A LL

224



-19

D I S C R I M I N A T I O N  I N  CONTRACTS  

A G A IN S T  ANY PERSONS OR GROUPS.

T H I S  CO N STRU CTIO N  I S  C O N S IS T E N T  

W IT H  THE IN T E N T  OF CONGRESS IN  

E N A CT IN G  THE C I V I L  R IG H T S ACT OF  

1 8 6 6 .

I t  i s  c l e a r  b e y o n d  d i s p u t e  t h a t  t h e  

g u a r a n t e e s  o f  § 1 9 8 1  a p p l y  t o  e m p l o y m e n t  

c o n t r a c t s .  T h e  C o u r t  i n  J o h n s o n  v .  

R a i l w a y  E x p r e s s  A g e n c y , 4 2 1  U . S .  4 5 4

( 1 9 7 5 ) ,  j o i n e d  t h e  C o u r t s  o f  A p p e a l s  

i n  h o l d i n g  t h a t  § 1 9 8 1  a f f o r d s  a  f e d e r a l  

r e m e d y  a g a i n s t  d i s c r i m i n a t i o n  i n  p r i v a t e  

e m p l o y m e n t .  4 2 1  U . S .  a t  4 6 0 - 6 4 .  P u b l i c  

e n t i t i e s  a s  w e l l  a r e  s u b j e c t  t o  t h e  

c o v e r a g e  o f  § 1 9 8 1  w i t h  r e g a r d  t o  e m p l o y ­

m e n t .  G a r n e r  v ,  G i a r r u s s o , 5 7 1  F . 2 d  

1 3 3 0  ( 5 t h  C i r .  1 9 7 8 ) ;  S e t h y  v .  A l a m e d a  

C o u n t y  W a t e r  D i s t r i c t , 5 4 5  F . 2 d  1 1 5 7

225



- 2 0 -

( 9 t h  C i r .  1 9 7 6 )  ( e n  b a n c ) .

A l t h o u g h  § § 1 9 8 1  a n d  1 9 8 2  w e r e  l o n g  

n e g l e c t e d  a s  a  m e a n s  o f  r e d r e s s i n g  

d i s c r i m i n a t i o n ,  c o u r t s  h a v e  r e c e n t l y  

r e c o g n i z e d  t h e  s w e e p i n g  p r o t e c t i o n s  

i n t e n d e d  b y  t h e  C o n g r e s s  i n  t h e  e n a c t ­

m e n t  o f  t h e  C i v i l  R i g h t s  A c t  o f  1 8 6 6 ,  

f r o m  w h i c h  b o t h  § § 1 9 8 1  a n d  1 9 8 2  d e r i v e .

S e c t i o n  1 9 8 1  d e r i v e s  f r o m  § 1  o f

s
t h e  C i v i l  R i g h t s  A c t  o f  1 8 6 6 .  A l t h o u g h  

t h e  i m m e d i a t e  i m p e t u s  f o r  t h e  p a s s a g e  

o f  t h e  1 8 6 6  A c t  w a s  t o  g i v e  e f f e c t  t o

H e r e i n a f t e r  r e f e r r e d  t o  a s  t h e  " 1 8 6 6  A c t " .  
A c t  o f  A p r i l  9 ,  1 8 6 6 ,  c . 3 1 ,  1 4  S t a t . 27. 
S e c t i o n  *1 o f  t h e  A c t  was r e e n a c t e d  i n  t h e  
E n fo rc e m e n t  A c t  o f  1 8 7 0 .  A c t  o f  May 3 1 ,  
1 8 7 0 ,  c .  1 6 ,  16  S t a t .  4 4 ,  and was c o d i f i e d  
a s  § 1 9 7 7  o f  t h e  R e v i s e d  S t a t u t e s  o f  1 8 7 4 .

226



- 2 1 -

t h e  T h i r t e e n t h  A m e n d m e n t , ^  i t  w a s  r e c o g ­

n i z e d  e v e n  t h e n  b y  o p p o n e n t s  a s  w e l l  a s  

p r o p o n e n t s  o f  t h e  b i l l  t h a t  t h e  1 8 6 6  A c t  

h a d  a  b r o a d e r  r e a c h  t h a n  w o u l d  h a v e  b e e n  

n e c e s s a r y  t o  m e e t  t h e  p a r t i c u l a r  a n d  

i m m e d i a t e  p l i g h t  o f  t h e  n e w l y  f r e e d  N e ­

g r o  s l a v e s .  A c c o r d i n g l y ,  § § 1 9 8 1  a n d  

1 9 8 2  h a v e  b e e n  r e a d  t o  p r o h i b i t  p r i v a t e  

d i s c r i m i n a t i o n  i n  t h e  s a l e  o f  p r o p e r t y ,  

J o n e s  v . A l f r e d  M a y e r  C o m p a n y , 3 9 2  U . S . 

4 0 9  ( 1 9 6 8 ) ,  e m p l o y m e n t  d i s c r i m i n a t i o n  

a g a i n s t  w h i t e s ,  M c D o n a l d  v .  S a n t a  F e  

T r a i l  T r a n s p o r t a t i o n  C o . , 4 2 7  U . S .  2 7 3

^ I n  i n t r o d u c i n g  t h e  b i l l , S e n a to r  T ru n b u ll  
rem arked:

" T h i s  m easu re  i s  in t e n d e d  t o  g i v e  p r a c t i c a l  
e f f e c t  t o  t h a t  d e c l a r a t i o n  [ t h e  T h i r t e e n t h  
Amendment] and s e c u r e  t o  a l l  p e r s o n s  w i t h i n  
th e  U n i t e d  S t a t e s  p r a c t i c a l  f r e e d o m ."
Cong. G lo b e ,  3 9 t h  C o n g . ,  1 s t  S e s s . 4 7 4 .

227



22 -

( 1 9 7 6 ) ,  a n d  a l i e n s ,  G u e r r a  v .  M a n c h e s t e r  

T e r m i n a l  C o r p . , 4 9 8  F . 2 d  6 4 1  ( 5 t h  C i r .  

1 9 7 4 ) ,  a s  w e l l  a s  b l a c k s ,  a n d  d i s c r i m i ­

n a t i o n  b y  p r i v a t e  s c h o o l s  i n  e x c l u d i n g  

b l a c k  c h i l d r e n .  R u n y o n  v .  M c C a r y , 4 2 7  

U . S .  1 6 0  ( 1 9 7 6 ) .  T h i s  i s  i n  k e e p i n g  

w i t h  t h e  s p o n s o r s '  v i e w  t h a t  " . . . [ T ] h e  

v e r y  o b j e c t  o f  t h e  b i l l  ( t h e  1 8 6 6  A c t )
7

i s  t o  b r e a k  d o w n  a l l  d i s c r i m i n a t i o n . . . "

^ S e n a to r  T rum b ull  s t a t e d  n e a r  th e  end o f  S e ­
n a t e  d e b a t e s  on  t h e  m e a su re :

" S i r ,  t h i s  b i l l  a p p l i e s  t o  w h i t e  men a s  w e l l  
a s  b l a c k  men. I t  d e c l a r e s  t h a t  a l l  p e r s o n s  ~ 
i n  th e  U n i t e d  S t a t e s  s h a l l  b e  e n t i t l e d  to  
t h e  same c i v i l  r i g h t s ,  t h e  r i g h t  t o  th e  
f r u i t  o f  t h e i r  own l a b o r ,  t h e  r i g h t  t o  
make c o n t r a c t s ,  t h e  r i g h t s  t o  buy  and s e l l ,  
and e n j o y  l i b e r t y  and h a p p i n e s s .  . . . a  b i l l ,  
t h e  o n l y ” o b j  e c t  o f  w h ic h  i s  t o  s e c u r e  e q u a l  
r i g h t s  t o  a l l  t h e  c i t i z e n s  o f  t h e  c o u n tr y ,  
a  b i l l  t h a t  p r o t e c t s  a  w h i t e  man j u s t  as  
much a s  a  b l a c k  man. W i t h  w hat c o n s i s t e n c y  
and w i t h  what f a c e  can  a  S e n a to r  i n  h i s  
p l a c e  h e r e  s a y  t o  t h e  S e n a te  and t o  t h e  
C ou n try  t h a t  t h i s  i s  a  b i l l  f o r  t h e  b e n e f i t  
o f  b l a c k  men e x c l u s i v e l y  when t h e r e  i s  no  
su ch  d i s t i n c t i o n  i n  i t ,  and  when t h e  v e r y  
( c o n t .  n e x t  p a g e)

228



- 23 -

O p p o n e n t s  o f  t h e  b i l l  c r i t i c i z e d  

t h e  b i l l  o n  t h i s  v e r y  b a s i s ,  c h a r g i n g  

t h a t  i t  w o u l d  s w e e p  t o o  b r o a d l y  a n d  i n ­

v a l i d a t e  a n y  a n d  a l l  s t a t u t e s  w h i c h  m a d e  

a  d i s t i n c t i o n  b a s e d  o n  r a c e .  I n  t h e  

H o u s e ,  R e p r e s e n t a t i v e  K e r r  o p p o s e d  t h e  

b i l l  p a r t l y  b e c a u s e  i t s  r e a c h  w o u l d  e x ­

t e n d  t o  l a w s  i n  a n y  s t a t e  m a k i n g  

d i s c r i m i n a t i o n  o n  t h e  b a s i s  o f  r a c e  f o r  

p u r p o s e s  s u c h  a s  l i c e n s i n g  i l l e g a l .  H e  

n o t e d  a s  h e  r e a d  t h a t  t h e  b i l l ,  a n  I n d i a n a  

s t a t u t e  a l l o w i n g  o n l y  w h i t e s  t o  e n g a g e  

i n  t h e  r e t a i l  l i q u o r  b u s i n e s s ,  w o u l d  b e  

i n v a l i d  a n d  t h o s e  w h o  a t t e m p t e d  t o  u p -

8
h o l d  i t  w o u l d  b e  l i a b l e  u n d e r  t h e  A c t .  7

7 ( c o n t .  fro m  l a s t  p a g e )  
o b j e c t  o f  t h e  b i l l  i s  t o  b r e a k  down a l l  
d i s c r i m i n a t i o n  b etw een  b l a c k  men and  
w h i t e  m en . H (e m p h asis  a d d e d ) .  Cong. G lo b e ,  
3 9 t h  C o n g r e s s ,  1 s t  S e s s .  a t  5 9 9 .

Q
Cong. G lo b e ,  3 9 t h  C o n g r e s s ,  1 s t  S e s s .
1 2 7 1 .

229



24 -

On the Senate side, Mr. Johnson 
argued against the bill by stating that 
laws in any state, including those out­
side the South, prohibiting marriage 
contracts between blacks and whites would 
be invalidated by the Act, even if such 
were not an intended purpose of the 
bill.9

9Mr. Johnson stated:
" I  m e n t io n  t h a t  f o r ' t h e  p u r p o s e  o f  a p p ly i n g  
i t  t o  o ne  o f  t h e  p r o v i s i o n s  o f  t h e  b i l l .
What i s  t o  b e  i t s  a p p l i c a t i o n ?  T h e r e  i s  
n o t  a  S t a t e  i n  w h ich  t h e s e  n e g r o e s  a r e  t o  
fo u n d  w here  s l a v e r y  e x i s t e d  u n t i l  r e c e n t l y ,  
and I  am n o t  s u r e  t h a t  t h e r e  i s  n o t  t h e  
same l e g i s l a t i o n  i n  some o f  t h e  S t a t e s  
w here s l a v e r y  h a s  l o n g  s i n c e  b e e n  a b o l i s h e d ,  
w h ich  d o e s  n o t  make i t  c r i m i n a l  f o r  a  b l a c k  
man t o  m arry  a  w h i t e  wcman, o r  f o r  a  w h i t e  
man t o  m arry  a  b l a c k  woman; . . .  Do you  n o t  
r e p e a l  a l l  t h a t  l e g i s l a t i o n  b y  t h i s  b i l l ?
I  do n o t  know t h a t  you  i n t e n d  t o  r e p e a l  i t ;  
b u t  i t  i s  n o t  c l e a r  t h a t  a l l  su ch  l e g i s l a ­
t i o n  m i l  b e  r e p e a l e d . . . ? "  I d .  a t  5 0 5 .

230



- 25 -

C o n s i s t e n t  w i t h  t h e  i n t e n t  o f  

C o n g r e s s  t o  e n a c t  a  s w e e p i n g  m e a s u r e ,  

t h i s  C o u r t  a n d  l o w e r  f e d e r a l  c o u r t s  h a v e  

r e a d  t h e  o p e r a t i v e  l a n g u a g e  o f  § §  1 9 8 1  

a n d  1 9 8 2  b r o a d l y .

T h e  s e m i n a l  c a s e  b y  t h e  C o u r t  i n ­

v o l v i n g  t h e  r e a c h  o f  t h e  s t a t u t e s  d e r i v i n g  

f r o m  S e c t i o n  1 o f  t h e  C i v i l  R i g h t s  A c t  o f  

1 8 6 6  i s  t h e  C o u r t ' s  d e c i s i o n  i n  J o n e s  v .

A l f r e d  M a y e r  C o . , 3 9 2  U . S .  4 0 9  ( 1 9 6 8 )  i n  

w h i c h  p r i v a t e  r a c i a l  d i s c r i m i n a t i o n  i n  

t h e  s a l e  o r  r e n t a l  o f  r e a l  o r  p e r s o n a l  

p r o p e r t y  w a s  h e l d  p r o h i b i t e d  b y  § 1 9 8 2 .

T h e  C o u r t  i n  J o n e s  r e a s o n e d  t h a t  C o n g r e s s  

i n t e n d e d  j u s t  w h a t  t h e  t e r m s  o f  t h e  1 8 6 6  

A c t  s u g g e s t :

" T o  p r o h i b i t  a l l  r a c i a l  d i s c r i m i ­

n a t i o n ,  w h e t h e r  o r  n o t  u n d e r  t h e  

c o l o r  o f  l a w ,  w i t h  r e s p e c t  t o  t h e  

r i g h t s  e n u m e r a t e d  t h e r e i n  -  i n c l u d i n g  

t h e  r i g h t  t o  p u r c h a s e  o r  l e a s e

231



- 26 -

p r o p e r t y . "  3 9 1  U . S .  a t  4 3 6 .

M o r e  r e c e n t l y ,  t h e  C o u r t  r e l i e d  u p o n  

t h e  h o l d i n g  i n  J o n e s  t o  f i n d  t h a t  § 1 9 8 1  

p r o h i b i t s  p r i v a t e  s c h o o l s  f r o m  e x c l u d i n g  

q u a l i f i e d  c h i l d r e n  s o l e l y  b e c a u s e  t h e y  

a r e  b l a c k .  I n  R u n y o n  v .  M c C a r y , 4 2 7  U.S. 
1 6 0  ( 1 9 7 6 ) ,  t h e  C o u r t  f o u n d  t h a t  t h e  

p r a c t i c e  o f  e x c l u d i n g  b l a c k  c h i l d r e n  f r o m  

s c h o o l s ,  w h i c h  a d v e r t i s e d  a n d  o f f e r e d  

e d u c a t i o n a l  s e r v i c e s  t o  t h e  p u b l i c ,  w a s  

a  c l a s s i c  v i o l a t i o n  o f  § 1 9 8 1 .  T h e  C o u r t  

r e a c h e d  t h a t  c o n c l u s i o n  i n  t h e  f a c e  o f  

a r g u m e n t s  a s s e r t i n g  c o n s t i t u t i o n a l  

r i g h t s  t o  p r i v a c y  a n d  f r e e d o m  o f  a s s o c i a ­

t i o n .  T h e  C o u r t  i n  R u n y o n  n o t e d  t h a t  

b o t h  § §  1 9 8 1  a n d  1 9 8 2  d e r i v e  f r o m  § 1  o f  

t h e  C i v i l  R i g h t s  A c t  o f  1 8 6 6  a n d  t h a t  t h e  

C o u r t ' s  r e a s o n i n g  f o r  i t s  d e c i s i o n  i n  

J o n e s , p r o h i b i t i n g  p r i v a t e  r a c i a l  d i s c r i ­

m i n a t i o n  i n  t h e  s a l e  o f  p r o p e r t y ,  w a s  

e q u a l l y  a p p l i c a b l e  t o  r a c i a l  d i s c r i m i n a t i o n

232



- 27 -

b y  p r i v a t e  s c h o o l s .  T h e  C o u r t  i n  R u n y o n  

s p e c i f i c a l l y  c i t e d  t h e  b r o a d  h o l d i n g  i n  

J o n e s  t h a t  t h e  1 8 6 6  A c t  w a s  d e s i g n e d  t o  

p r o h i b i t  a l l  r a c i a l  d i s c r i m i n a t i o n .

T h e  C o u r t  h a s  a l s o  r e a d  t h e  l a n g u a g e  

o f  t h e  1 8 6 6  A c t  b r o a d l y  w i t h  r e g a r d  t o  

t h e  p e r s o n s  b e n e f i t e d  b y  t h e  g u a r a n t e e s  

o f  t h e  s t a t u t e .  M c D o n a l d  v .  S a n t a  F e  

T r a i l  T r a n s p o r t a t i o n  C o . , 4 2 7  U . S .  2 7 3  

( 1 9 7 6 )  h e l d  t h a t  § 1 9 8 1  p r o h i b i t s  r a c i a l  

d i s c r i m i n a t i o n  i n  p r i v a t e  e m p l o y m e n t  

a g a i n s t  w h i t e s  a s  w e l l  a s  n o n - w h i t e s .

T h e  C o u r t  i n  M c D o n a l d  r e l i e d  o n  b o t h  t h e  

p l a i n  l a n g u a g e  o f  § 1 9 8 1  a n d  t h e  l e g i s l a ­

t i v e  h i s t o r y  o f  t h e  1 8 6 6  A c t  f o r  i t s  

h o l d i n g  t h a t  t h e  s t a t u t e  " e x p l i c i t l y  

a p p l i e s  t o  ' a l l  p e r s o n s '  ( e m p h a s i s  a d d e d )  

i n c l u d i n g  w h i t e  p e r s o n s . "  4 2 7  U . S .  a t  

2 8 7 .  I n  i t s  d i s c u s s i o n  o f  t h e  l e g i s l a t i v e  

h i s t o r y  o f  t h e  1 8 6 6  A c t ,  t h e  C o u r t  n o t e d  

t h a t  t h e  i m m e d i a t e  i m p e t u s  f o r  t h e  b i l l

233



-28

w a s  t h e  n e c e s s i t y  f o r  e f f e c t i v e  r e l i e f

o f  t h e  n e w l y  f r e e d  b l a c k  s l a v e s ,  b u t

w e n t  o n  t o  h o l d  t h a t :

" . . . t h e  g e n e r a l  d i s c u s s i o n  o f  t h e  
s c o p e  o f  t h e  B i l l  d i d  n o t  c i r c u m r 
s c r i b e  i t s  b r o a d  l a n g u a g e  t o  t h a t  
l i m i t e d  g o a l .  (O n  t h e  c o n t r a r y ,  
t h e  B i l l  w a s  r o u t i n e l y  v i e w e d ,  
b y  i t s  o p p o n e n t s  a n d  s u p p o r t e r s  
a l i k e ,  a s  a p p l y i n g  t o  t h e  c i v i l  
r i g h t s  o f  w h i t e s  a s  w e l l  a s  n o n -  
w h i t e s . ) "  4 2 7  U . S .  a t  2 8 9 .

S i m i l a r l y ,  t h e  p r o t e c t i o n  o f  § 1 9 8 1  

h a s  b e e n  h e l d  o n  s e v e r a l  o c c a s i o n s  t o  

a p p l y  t o  a l i e n s .  I n  G r a h a m  v .  R i c h a r d ­

s o n , 4 0 3  U . S .  3 6 5  ( 1 9 7 1 ) ,  t h i s  C o u r t  

h e l d  t h a t  s t a t e  l a w s  t h a t  r e s t r i c t  t h e  

e l i g i b i l i t y  o f  a l i e n s  f o r  w e l f a r e  b e n e ­

f i t s  m e r e l y  b e c a u s e  o f  t h e i r  a l i e n a g e  

c o n f l i c t  w i t h  b o t h  n a t i o n a l  p o l i c i e s  o n  

i m m i g r a t i o n  c o n s t i t u t i o n a l l y  c o m m i t t e d  

t o  t h e  F e d e r a l  G o v e r n m e n t  a n d  § 1 9 8 1 ' s  

d e c l a r a t i o n  t h a t  " . . . a l l  p e r s o n s  

s h a l l  h a v e  t h e  s a m e  r i g h t s  i n

234



- 29 -

e v e r y  s t a t e  a n d  t e r r i t o r y .  . . t o

t h e  f u l l  a n d  e q u a l  b e n e f i t s  o f  a l l  l a w s  

a n d  p r o c e e d i n g s  f o r  t h e  s e c u r i t y  o f  p e r ­

s o n s  a n d  p r o p e r t y  a s  i s  e n j o y e d  b y  w h i t e  

c i t i z e n s . . . "  4 0 3  U . S .  a t  3 7 2 .  T h e  

F i f t h  C i r c u i t  i n  G u e r r a  v .  M a n c h e s t e r  

T e r m i n a l  C o r p o r a t i o n , 4 9 8  F . 2 d  6 4 1  ( 5 t h  

C i r .  1 9 7 4 )  h e l d  t h a t  e m p l o y m e n t  d i s c r i m i ­

n a t i o n  a g a i n s t  a l i e n s  i s  s i m i l a r l y  

p r o h i b i t e d  b y  § 1 9 8 1 .

C. THE SHARED PURPOSE OF § 1 9 8 1  AND  

T I T L E  V I I  -  TO END A L L  EMPLOYMENT 

D I S C R I M I N A T I O N  -  R E Q U IR E S THAT THE 

TWO STA T U T E S BE HARMONIZED ON THE 

Q U E ST IO N  OF PROOF OF L I A B I L I T Y .

S e c t i o n  1 9 8 1  i s  w i d e l y  r e c o g n i z e d  b y  

t h i s  a n d  l o w e r  f e d e r a l  c o u r t s  a s  a n  

i m p o r t a n t  m e a n s  o f  c o m b a t i n g  e m p l o y m e n t  

d i s c r i m i n a t i o n  a s  w e l l  a s  a  w i d e  r a n g e

235



- 30 -

o f  o t h e r  d i s c r i m i n a t o r y  c o n d u c t .  A s  i s  

t r u e  u n d e r  T i t l e  V I I , a  p e r s o n  m a k i n g  

o u t  a  c a s e  u n d e r  § 1 9 8 1  h a s  a v a i l a b l e  

a  s p e c t r u m  o f  r e m e d i e s  t o  r e d r e s s  e m p l o y ­

m e n t  d i s c r i m i n a t i o n . J o h n s o n  v . R a i l w a y  

E x p r e s s  A g e n c y , s u p r a , a t  4 6 0 .  T o  r e q u i r e  

t h a t  p l a i n t i f f s  p r o v e  p u r p o s e f u l  i n t e n t  

t o  d i s c r i m i n a t e  o n  t h e  p a r t  o f  d e f e n d a n t s  

i n  o r d e r  t o  m a k e  o u t  a  v i o l a t i o n  u n d e r  

§ 1 9 8 1  w o u l d  g r e a t l y  r e d u c e  i t s  a v a i l a ­

b i l i t y  a s  a n  e f f e c t i v e  t o o l  f o r  M e x i c a n  

A m e r i c a n  a n d  o t h e r  h i s t o r i c a l l y  d i s a d v a n ­

t a g e s  e t h n i c  a n d  r a c i a l  g r o u p s .  M o r e o v e r ,  

s u c h  a  r e q u i r e m e n t  w o u l d  c r e a t e  c o n f u s i o n  

i n  t h e  a r e a  o f  e m p l o y m e n t  d i s c r i m i n a t i o n  

l a w  b y  r e q u i r i n g  a  d i f f e r e n t  s t a n d a r d  

o f  p r o o f  u n d e r  t h e  tw o  m o s t  i m p o r t a n t  

s t a t u t o r y  r e m e d i e s  a v a i l a b l e  t o  a n  

a g g r i e v e d  p a r t y .

P e t i t i o n e r s  a r g u e  t h a t  § 1 9 8 1  s h o u l d  

b e  h a r m o n i z e d  w i t h  § §  1 9 8 3  a n d  1 9 8 5  o n

236



- 31 -

t h e  s t a n d a r d  o f  p r o o f  r e q u i r e d  t o  m a k e

o u t  a  v i o l a t i o n  u n d e r  e a c h  o f  t h e  r e -

. . . . . 10 
s p e c t i v e  s t a t u t e s .

P e t i t i o n e r s  a r g u e  t h a t  b o t h  § 1 9 8 3

a n d  § 1 9 8 5  r e q u i r e  p r o o f  o f  p u r p o s e f u l

i n t e n t  i n  o r d e r  t o  e s t a b l i s h  l i a b i l i t y

P e t i t i o n e r s  a l s o  c i t e  Jon es  v .  A l f r e d  Mayer  
C o , , 39 2  U .S .  4 0 9  ( 1 9 6 8 ) ,  f o r  t h e  p r o p o s i ­
t i o n  t h a t  § 1 9 8 2  a l s o  r e q u i r e s  p r o o f  o f  
p u r p o s e f u l  i n t e n t  t o  e s t a b l i s h  l i a b i l i t y  
t h e r e u n d e r .  P e t i t i o n e r s '  r e l i a n c e  i s  
m i s p l a c e d ;  i n  Jones  t h e  C ou rt  was p r e s e n t e d  
w i t h  f a c t u a l  c ir c u m s t a n c e s  w here p u r p o s e f u l  
i n t e n t  was c l e a r l y  p r e s e n t . The C ourt h as  
n e v e r  a d d r e s s e d  a  f a c t u a l  s e t t i n g  where  
l i a b i l i t y  under § 1 9 8 2  was c la im e d  w i t h o u t  
a  d e m o n s tr a t io n  o f  p u r p o s e f u l  i n t e n t .
A m ic i  w o u ld  a rg u e  t h a t , g i v e n  t h e  n a t u r e  o f  
§ 1 9 8 2  and i t s  h i s t o r i c a l  r e l a t i o n  w i t h  
§ 1 9 8 1 ,  p u r p o s e f u l  i n t e n t  -would n o t  b e  r e ­
q u i r e d  w here a  f a c i a l l y  n e u t r a l  p r a c t i c e  had  
a  d i s p r o p o r t i o n a t e  a d v e r s e  im p act on  t h e  
r i g h t s  o f  b l a c k s ,  M ex ican  A m e ric a n s ,  o r  
w h i t e s  t o  buy  o r  s e l l  r e a l  o r  p e r s o n a l  
p r o p e r t y .  But t h a t  i s s u e  i s  n o t  p r e s e n t e d  
h e r e .

237



32 -

u n d e r  e i t h e r .  H o w e v e r ,  a n  e x a m i n a t i o n  

o f  t h e  s t a t u t e s  r e v e a l s  a  c r u c i a l  d i s ­

t i n c t i o n  b e t w e e n  § 1 9 8 1  a n d  § § 1 9 8 3  a n d  

1 9 8 5 .

A s  i n d i c a t e d  e a r l i e r ,  § 1 9 8 1  i s  

a f f i r m a t i v e  i n  n a t u r e ;  i t  w a s  e n a c t e d  t o  

e f f e c t i v e l y  i m p l e m e n t  t h e  T h i r t e e n t h  

A m e n d m e n t ' s  m a n d a t e  t o  e n d  a l l  v e s t i g e s  

o f  i n v o l u n t a r y  s e r v i t u d e ,  a n d  b y  i t s  

l a n g u a g e  g u a r a n t e e s  t h e  s a m e  e n j o y m e n t  o f

11

P r o o f  o f  p u r p o s e f u l  i n t e n t  may b e  r e q u i r e d  
u n d er  § 1 9 8 3  a f t e r  t h e  C o u r t ' s  d e c i s i o n  i n  
W a sh in g to n  v .  D a v i s , s u p r a , w here t h e  r i g h t  
a l l e g e d  t o  h a v e  b e e n  a b r id g e d  d e r i v e s  from  
t h e  C o n s t i t u t i o n .  How ever, i t  i s  u n c l e a r  
w h e th e r  t h e  same r e q u ir e m e n t  w ould  a p p ly  i f  
an  a c t i o n  b r o u g h t  un d er  § 1 9 8 3  c la im e d  t h e  
v i o l a t i o n  o f  a  s t a t u t o r y  r i g h t  r a t h e r  th an  
o n e  o f  a  c o n s t i t u t i o n a l  n a t u r e .  T h e r e f o r e ,  
P e t i t i o n e r s '  b r o a d  a s s e r t i o n  t h a t  p u r p o s e ­
f u l  i n t e n t  i s  r e q u i r e d  under § 1 9 8 3  i s  n o t  
e n t i r e l y  j u s t i f i e d .

S e c t i o n  1 9 8 5 ,  on  t h e  o t h e r  hand, b y  i t s  v e r y  
la n g u a g e ,  r e q u i r e s  a  show ing o f  p u r p o se  i n  
o r d e r  t o  make o u t  a  v i o l a t i o n  under t h a t  
a n t i - c o n s p i r a c y  s t a t u t e .
( c o n t .  n e x t  p a g e)

238



33 -

t h e  r i g h t s  e n u m e r a t e d  t h e r e i n  t o  " a l l  

p e r s o n s " .  S e c t i o n s  1 9 8 3  a n d  1 9 8 5 ,  o n  

t h e  o t h e r  h a n d ,  a r e  p r o h i b i t o r y  i n  n a ­

t u r e .  T h e y  f o c u s  n o t  o n  t h e  m e a s u r e  o f  

r i g h t s  t o  b e  e n j o y e d  b y  p e r s o n s  s e e k i n g  

p r o t e c t i o n  t h e r e u n d e r ,  b u t  r a t h e r  a r e  

e x p l i c i t  b a n s  a g a i n s t  d i s c r i m i n a t o r y  c o n ­

d u c t  b y  i n d i v i d u a l s .  C o n s e q u e n t l y ,  i n  

d e t e r m i n i n g  l i a b i l i t y  u n d e r  t h o s e  s t a t ­

u t e s ,  c o u r t s  m u s t  e x a m i n e  t h e  n a t u r e  o f  

t h e  a c t i o n  o f  t h e  p a r t i c u l a r  i n d i v i d u a l ,  

i n c l u d i n g  t h e  p e r s o n ' s  m o t i v a t i o n  f o r  

e n g a g i n g  i n  t h e  q u e s t i o n e d  c o n d u c t .  * 42

11  ( c o n t .  fro m  l a s t  pa ge)

" ( 3 )  I f  two o r  more p e r s o n s  i n  any S t a t e  
o r  T e r r i t o r y  c o n s p i r e  o r  go  i n  d i s g u i s e  
on  t h e  highw ay o r  on  t h e  p r e m is e s  o f  
a n o t h e r ,  f o r  t h e  p u r p o se  o f  d e p r i v i n g . .
4 2  U .S .C .  § 1 9 8 5 ( 3 ) .  (em phasis  added)

S e e  a l s o ,  G r i f f i n  v .  B r e c k e n r id g e , 4 0 3  
U .S .  8 8 , 9 6 - 9 7  ( 1 9 7 1 ) .

239



- 34 -

T h i s  v i e w  i s  a l s o  c o n s i s t e n t  w i t h  

t h e  d i v e r g e n t  h i s t o r y  o f  t h e  r e s p e c t i v e  

s t a t u t e s .  S e c t i o n s  1 9 8 3  a n d  1 9 8 5  h a d  

t h e i r  g e n e s i s  i n  t h e  C i v i l  R i g h t s  A c t  o f  

1 8 7 1 ,  w h i c h  w a s  e n a c t e d  a s  a  f e d e r a l  

p r o h i b i t i o n  a g a i n s t  c o n d u c t  v i o l a t i v e  o f  

t h e  F o u r t e e n t h  A m e n d m e n t .  B y  c o n t r a s t ,  

§ 1 9 8 1  d e r i v e s  f r o m  t h e  C i v i l  R i g h t s  A c t  

o f  1 8 6 6 ,  w h i c h  w a s  e n a c t e d  t o  e f f e c t i v e l y  

s e c u r e  t h e  g u a r a n t e e s  o f  t h e  T h i r t e e n t h  

A m e n d m e n t . ^

1 2 C i v i l  R i g h t s  A c t  o f  1 8 7 1 ,  17  S t a t .  1 3 .
S ee  M p n e ll  v .  New Y o r k  C i t y  D epartm ent o f  
S o c i a l  S e r v i c e s , U .S .  , 56  L .E d .2 d  
6 1 1  ( 1 9 7 7 ) ;  G r i f f i n  v .  B r e c k e n r id g e ,  4 0 3  
U .S .  8 8 , 9 8 - 9 9  ( 1 9 7 1 ) .

1 3 A lth o u g h  §1  o f  t h e  18 6 6  A c t  was r e e n a c t e d  
i n  t h e  E n fo rcem e nt A c t  o f  1 8 7 0 ,  C on g ress  
d i d  n o t  i n t e n d  t h e  r e e n a c tm e n t  t o  change  
t h e  g o a l s  o r  i n t e r p r e t a t i o n s  o f  t h e  p r o v i ­
s i o n .  S e c t i o n  1 was i n c lu d e d  a s  a  means o f  
p r o v i d i n g  a  mechanism f o r  p u t t i n g  t h e  18 7 0  
A c t  i n t o  m o t io n .  Cong. G lo b e ,  4 1 s t  C o n g . , 
2d  S e s s .  35 6 0  (S e n .  S t e w a r t ) ;  s e e  a l s o  n o t e  
4 ,  s u p r a , a t  1 7 .

240



-35

T h e  d i f f e r e n c e  i n  t h e  p u r p o s e s  t o  b e  

s e r v e d  b y  t h e  r e s p e c t i v e  s t a t u t e s  a r g u e s  

a g a i n s t  t h e  n e e d  f o r  t h e m  t o  r e q u i r e  t h e  

s a m e  s t a n d a r d  o f  p r o o f  t o  m a k e  o u t  a  

v i o l a t i o n  u n d e r  e a c h .

A  m o r e  f o r c e f u l  a r g u m e n t  c a n  b e  m a d e  

f o r  § 1 9 8 1  t o  b e  r e a d  i n  h a r m o n y  w i t h  T i t l e  

V I I ,  w h i c h  d o e s  n o t  r e q u i r e  p r o o f  o f  

p u r p o s e f u l  i n t e n t  t o  d i s c r i m i n a t e .  C o n ­

g r e s s ,  i n  e n a c t i n g  T i t l e  V I I  a s  a  m e c h ­

a n i s m  t o  d e a l  w i t h  e m p l o y m e n t  d i s c r i m i n a ­

t i o n  o n  t h e  b a s i s  o f  r a c e ,  n a t i o n a l  

o r i g i n ,  r e l i g i o n ,  a n d  s e x ,  d i d  n o t  i n t e n d  

t o  e l i m i n a t e  § 1 9 8 1  a s  a m e a n s  o f  c o m b a t i n g

e m p l o y m e n t  d i s c r i m i n a t i o n  o n  t h e  b a s i s  o f

14
r a c e ,  e t h n i c i t y ,  a n d  a l i e n a g e .  1

1 \ j h i l e  amending T i t l e  V I I  i n  1 9 7 2  t o  i n c lu d e  
p u b l i c  e m p lo y e r s ,  C on g ress  s p e c i f i c a l l y  
r e j e c t e d  an  amendment w h ich  w ould  h av e  d e ­
p r i v e d  a  c la im a n t  o f  any r i g h t  t o  su e  under  
§ 1 9 8 1 .  1 1 8  Cong. R e c .  3 3 / 1 - 3 3 7 3  ( 1 9 7 1 ) .
( c a n t ,  n e x t  p a ge)

241



- 36 -

A s  t h i s  C o u r t  h a s  o b s e r v e d  i n  t h e  

p a s t ,  § 1 9 8 1  a n d  T i t l e  V I I  a r e  d i r e c t e d  

t o  m o s t  o f  t h e  s a m e  e n d s ,  J o h n s o n  v .  

R a i l w a y  E x p r e s s  A g e n c y , 4 2 1  U . S .  a t  4 6 1 .  

R a t h e r  t h a n  b e i n g  m u t u a l l y  e x c l u s i v e ,  

t h e  t w o  s t a t u t e s  a u g m e n t  o n e  a n o t h e r  a n d  

p r o v i d e  o v e r l a p p i n g  a n d  r e l a t e d  r e m e d i e s  

a g a i n s t  e m p l o y m e n t  d i s c r i m i n a t i o n .  J o h n ­

s o n  v .  R a i l w a y  E x p r e s s  A g e n c y , 4 2 1  U . S .  

a t  4 5 9 .  C o n s e q u e n t l y ,  t h e  s t a n d a r d s  f o r  

p r o o f  o f  l i a b i l i t y  u n d e r  t h e  t w o  s t a t u t e s

1 4  ( c o n t .  fro m  l a s t  p a g e )
S e e  a l s o  conments o f  S e n a to r  W i l l i a m s  i n  
s u p p o r t  o f  t h e  n e e d  f o r  r e t a i n i n g  § 1 9 8 1  as  
a  remedy t o  employment d i s c r i m i n a t i o n :

" T h i s  i s  e s p e c i a l l y  t r u e  w here t h e  l e g a l  
i s s u e s  under o t h e r  law s may n o t  f a l l  w i t h i n  
t h e  s c o p e  o f  T i t l e  V I I  o r  w here t h e  em p lo y ee ,  
e m p lo y e r ,  o r  l a b o r  o r g a n i z a t i o n  d o e s  n o t  
f a l l  w i t h i n  t h e  j u r i s d i c t i o n a l  c o n f i n e s  o f  
T i t l e  V T I .  T h e se  s i t u a t i o n s  do e x i s t ,  and  
I  am s u r e  t h a t  i t  i s  u n n e c e s s a r y  t o  s p e l l  
th a n  o u t  a t  t h i s  p o i n t . "  I d .  a t  3 3 7 2 .

242



- 37 -

s h o u l d  b e  h a r m o n i z e d .  P r o o f  o f  d i s c r i m ­

i n a t o r y  i m p a c t  a g a i n s t  a n  i d e n t i f i a b l e  

a n d  p r o t e c t e d  g r o u p  s h o u l d  b e  s u f f i c i e n t  

t o  d e m o n s t r a t e  a  p r i m a  f a c i e  c a s e  o f  

d i s c r i m i n a t i o n  u n d e r  § 1 9 8 1 ,  a s  i s  t h e  c a s e  

f o r  g r o u p s  p r o t e c t e d  b y  T i t l e  V I I .

I t  i s  i m p o r t a n t  t o  n o t e  h e r e  t h a t  

s u c h  a  s h o w i n g  o f  a d v e r s e  i m p a c t  d o e s  n o t  

c o n s t i t u t e  r e s o l u t i o n  o n  t h e  u l t i m a t e  

i s s u e  o f  l i a b i l i t y ,  b u t  r a t h e r  s h i f t s  

t h e  b u r d e n  t o  a n  e m p l o y e r  t o  d e m o n s t r a t e  

a  l e g i t i m a t e  b u s i n e s s  r e a s o n  f o r  t h e  u s e  

o f  t h e  p a r t i c u l a r  p r a c t i c e  w h i c h  i s  

c h a l l e n g e d .  F u r n c o  C o n s t r u c t i o n  C o r p . v .  

W a t e r s , 57  L . E d .  2 d ,  a t  9 6 7 .  I f  t h e  

e m p l o y e r  c a n  d o  s o , t h e n  t h e  p l a i n t i f f  

h a s  a n  o p p o r t u n i t y  t o  s h o w  t h a t  " t h e  

p r o f f e r e d  j u s t i f i c a t i o n  i s  m e r e l y  a  

p r e t e x t  f o r  d i s c r i m i n a t i o n . "  F u r n c o  

C o n s t r u c t i o n  C o r p . v .  W a t e r s , s u p r a , a t

243



- 3 8 -

9 6 8 .  B u t  i f  t h e  e m p l o y e r  f a i l s  t o  c o m e  

f o r w a r d  w i t h  a  l e g i t i m a t e  b u s i n e s s  r e a s o n  

f o r  t h e  u s e  o f  t h e  c h a l l e n g e d  p r o c e d u r e  

o r  p r a c t i c e ,  t h e  p r i m a  f a c i e  s h o w i n g  w i l l  

b e  d e t e r m i n a t i v e .  ( S e e  g e n e r a l l y ,  

I n t e r n a t i o n a l  B r o t h e r h o o d  o f  T e a m s t e r s  v .  * VII

U n i t e d  S t a t e s , 4 3 1  U . S .  3 2 4  ( 1 9 7 7 ) ;

Griggs v . Duke Power Co., supra.)
S u c h  h a r m o n y  w i l l  p r o t e c t  b o t h  

e m p l o y e r s  a n d  e m p l o y e e s . I t  w i l l  a l l o w  

g r o u p s  s u b j e c t  t o  d i s c r i m i n a t i o n  o n  a  

b a s i s  o t h e r  t h a n  t h o s e  c o v e r e d  b y  T i t l e

V I I  t o  r e c e i v e  p r o t e c t i o n .  I t  w i l l  a l s o  

a l l o w  p r o t e c t i o n  f o r  i n d i v i d u a l s  a g a i n s t  

d i s c r i m i n a t o r y  c o n d u c t  b y  e m p l o y e r s  w ho  

a r e  n o t  u n d e r  t h e  c o v e r a g e  o f  T i t l e  V I I .  

W i t h  r e g a r d  t o  e m p l o y e r s ,  t h e y  w i l l  b e  

j u d g e d  p u r s u a n t  t o  a  s i n g l e  s t a n d a r d  o f  

c o n d u c t .  T h e y  w o u l d  b e  s u b j e c t  t o  l i a ­

b i l i t y  o r  f r e e  o f  l i a b i l i t y  u n d e r  e i t h e r

244



- 39 -

s t a t u t e  a c c o r d i n g  t o  o n e  r u l e .  C o n s e ­

q u e n t l y ,  t h e y  n e e d  n o t  c o n f r o n t  t h e  

d i l e m m a  o f  b e i n g  i n  c o m p l i a n c e  u n d e r  o n e  

s t a t u t e  a n d  o u t  o f  c o m p l i a n c e  u n d e r  a n ­

o t h e r  .

I I .  THE IS S U A N C E  OF THE REM EDIAL H IR I N G  

ORDER H ER EIN  WAS W I T H IN  THE J U R I S ­

D I C T IO N  OF THE D I S T R I C T  COURT.

T h e  s e c o n d  q u e s t i o n  p r e s e n t e d  i n  

t h i s  c a s e  i s  w h e t h e r  t h e  D i s t r i c t  C o u r t  

e x c e e d  i t s  j u r i s d i c t i o n  w h e n  i t  i s s u e d  a  

m a n d a t o r y  i n t e r i m  h i r i n g  o r d e r  t o  r e m a i n  

i n  e f f e c t  u n t i l  s u c h  t i m e  a s  t h e  p e r c e n ­

t a g e  o f  M e x i c a n  A m e r i c a n s  a n d  b l a c k s  

e m p l o y e d  b y  t h e  L o s  A n g e l e s  C o u n t y  F i r e  

D e p a r t m e n t  a p p r o x i m a t e d  t h e  p e r c e n t a g e  

o f  t h o s e  g r o u p s  i n  t h e  g e n e r a l  p o p u l a t i o n  

o f  L o s  A n g e l e s  C o u n t y .

245



- 40 -

I t  i s  i m p o r t a n t  t o  n o t e  t h a t  P e t i ­

t i o n e r s  h e r e  d o  n o t ,  a n d  t h i s  c a s e  d o e s  

n o t ,  r e q u i r e  c o n s i d e r a t i o n  o f  t h e  b r o a d  

q u e s t i o n  o f  w h e n  a f f i r m a t i v e  a c t i o n  o r  

q u o t a  h i r i n g  i s  p r o p e r .  P e t i t i o n e r s  

c h a l l e n g e  w h e t h e r  t h e  c i r c u m s t a n c e s  o f  

t h i s  c a s e ,  o n  t h e s e  f a c t s ,  m a k e  t h e  

m a n d a t o r y  h i r i n g  o r d e r e d  b y  t h e  t r i a l  

c o u r t  a p p r o p r i a t e .  A s  t o  t h e  b r o a d e r  

q u e s t i o n ,  l o w e r  c o u r t s  a r e  u n a n i m o u s  

t h a t  b o t h  a f f i r m a t i v e  a c t i o n  a n d  q u o t a  

h i r i n g  a r e  a v a i l a b l e  a s  r e m e d i e s  f o r  

p a s t  d i s c r i m i n a t i o n  i n  a p p r o p r i a t e  c i r ­

c u m s t a n c e s  .

T h i s  C o u r t  h a s  o n  n u m e r o u s  o c c a s i o n s  

n o t e d  t h a t  f e d e r a l  c o u r t s  h a v e  b e e n  a r m e d  

w i t h  b r o a d  p o w e r s  t o  f a s h i o n  r e m e d i e s  i n  

c a s e s  i n v o l v i n g  e m p l o y m e n t  d i s c r i m i n a t i o n  

i n  v i o l a t i o n  o f  T i t l e  V I I ,  A l b e r m a r l e  

P a p e r  C o . v .  M o o d y , 4 2 2  U . S .  4 0 5 ,  4 1 8

246



- 41 -

( 1 9 7 5 ) ;  F r a n k s  v .  B o w m a n , 4 2 4  U . S .  7 4 7 ,

7 6 3  ( 1 9 7 6 ) ;  c f  U n i t e d  J e w i s h  O r g a n i z a t i o n s  

o f  W i l l i a m s b u r g h  v .  C a r e y , 4 3 0  U . S .  1 4 4

( 1 9 7 7 ) ,  i n c l u d i n g  e q u i t a b l e  p o w e r s  w i t h  

t h e i r  h i s t o r i c  p u r p o s e  o f  s e c u r i n g  " c o m ­

p l e t e  j u s t i c e . "  A l b e r m a r l e , s u p r a , 4 2 2  

U . S .  a t  4 1 8 .  L i k e w i s e ,  t h i s  C o u r t  a n d  

l o w e r  f e d e r a l  c o u r t s  h a v e  c o n s i s t e n t l y  

r e c o g n i z e d  t h e  p o w e r  a v a i l a b l e  u n d e r  

§ 1 9 8 1  t o  f a s h i o n  t h e  f u l l  r a n g e  o f  l e g a l  

a n d  e q u i t a b l e  r e m e d i e s ,  J o h n s o n , s u p r a ; 

s e e  a l s o  P e t t w a y  v .  A m e r i c a n  C a s t  I r o n  

P i p e  C o . , 4 9 4  F . 2 d  2 1 1 ,  2 4 3  ( 5 t h  C i r .

1 9 7 4 ) ,  t o  o v e r c o m e  b a r r i e r s  t o  e q u a l  

r i g h t  t o  c o n t r a c t  f o r  e m p l o y m e n t .

A  d i s t r i c t  c o u r t  i n  d e t e r m i n i n g  t h e  

s p e c i f i c  r e m e d y  t o  b e  a f f o r d e d  i n  a n  

e m p l o y m e n t  d i s c r i m i n a t i o n  c a s e  i s  " t o  

f a s h i o n  s u c h  r e l i e f  a s  t h e  p a r t i c u l a r  

c i r c u m s t a n c e s  o f  a  c a s e  m a y  r e q u i r e  t o  

e f f e c t  r e s t i t u t i o n . "  I n t e r n a t ' l .  B r o -

247



- 42 -

t h e r h o o d  o f  T e a m s t e r s  v .  U n i t e d  S t a t e s , 

4 3 1  U . S .  3 2 4 ,  3 6 4  ( 1 9 7 7 ) ,  c i t a t i o n s  o m i t ­

t e d .  I n  a d d i t i o n :

" W h e r e  r a c i a l  d i s c r i m i n a t i o n  i s  
c o n c e r n e d ,  ' t h e  ( d i s t r i c t )  c o u r t  
h a s  n o t  m e r e l y  t h e  p o w e r  b u t  t h e  
d u t y  t o  r e n d e r  a  d e c r e e  w h i c h  w i l l  
s o  f a r  a s  p o s s i b l e  e l i m i n a t e  t h e  
d i s c r i m i n a t o r y  e f f e c t s  o f  t h e  p a s t  
a s  w e l l  a s  b a r  l i k e  d i s c r i m i n a t i o n  
i n  t h e  f u t u r e . '  L o u i s i a n a  v .  U n i t e d  
S t a t e s ,  3 8 0  U . S .  1 4 5 ,  1 5 4  ( 1 9 6 5 1 7 ^ “  
4 2 T T J 7 S .  a t  4 1 8 .

T h e  u s e  o f  m a t h e m a t i c a l  r a t i o s  i n  

s h a p i n g  a  r e m e d y  h a s  b e e n  r e c o g n i z e d  b y  

t h e  C o u r t s  a s  w e l l  w i t h i n  t h e  e q u i t a b l e  

r e m e d i a l  p o w e r  a n d  d i s c r e t i o n  o f  t h e  f e d ­

e r a l  c o u r t s .  S w a n n  v .  C h a r l o t t e - M e c k l e n ­

b u r g  B o a r d  o f  S u p e r v i s o r s , 4 0 2  U . S .  1 ,

2 5  ( 1 9 7 1 ) .  E i g h t  C o u r t s  o f  A p p e a l s  h a v e  

c o n s i d e r e d  a n d  a p p r o v e d  t h e  e x e r c i s e  o f  

t h i s  d i s c r e t i o n  a n d  p o w e r  i n  t h e  f o r m u ­

l a t i o n  o f  a c c e l e r a t e d  h i r i n g  g o a l s  o r  

q u o t a s  t o  e r a d i c a t e  t h e  e f f e c t s  o f  p a s t

248



- 43 -

d i s c r i m i n a t i o n .  S e e :

B o s t o n  C h a p t e r  NAACP I n c . , v .  
B e e c h e r , 5 0 4  F . 2 d  1 0 1 7  ( 1 s t  C i r .  
1 9 7 4 ) ,  c e r t , d e n i e d . 4 2 1  U . S .
9 1 0  ( 1 9 7 5 )  ( § ' § 1 9 8 1  a n d  1 9 8 3 ,  T i t l e  
V I I )  ;

V u l c a n  S o c i e t y  v .  C i v i l  S e r v i c e  
C o m m i s s i o n , 4 9 0  F . 2 d  3 8 7  ( 1 s t  C i r .  
1 9 7 3 ) ,  c e r t . d e n i e d ,  4 1 6  U . S .  9 5 7  
( 1 9 7 4 )  ( T i t l e  V I I ) ;

C a s t r o  v .  B e e c h e r ,  459 F . 2 d  7 2 5  
(1st C i r .  T972) (§1983);
R i o s  v .  E n t e r p r i s e  A s s ' n .  S t e a m f i t -  
t e r s  L o c i !  6 3 8 ,  5 0 r T 7 2 d ~ T 2 T T 2 n d  
C i r .  1 9 7 4 )  ( T i t l e  V I I ) ;

B r i d g e p o r t  G u a r d i a n s ,  I n c ,  v . C i v i l  
S e r v i c e  C o m m i s s i o n , 4 8 2  F . 2 d  1 3 T 3  
T 2 n d  C i r 7  1 9 7 3 ) ,  c e r t . d e n i e d , 4 2 1  
U . S .  9 9 1  ( 1 9 7 5 )  ( § § 1 9 8 1 ,  1 9 8 3 ) ;

U n i t e d  S t a t e s  v .  W o o d  L a t h e r s  L o c a l  
46^, 4 7 1  F . 2 c f~ 4 0 8  ' ( 2 d  C i r T T 9 7 3 T ,  
c e r t ,  d e n i e d . 4 1 2  U . S .  9 3 9  ( 1 9 7 3 )  
( T i t l e  V I I ) ;

P e n n s y l v a n i a  v .  0 ' N e i l l , 4 7 3  F . 2 d  
1 0 2 9  ( 3 r d  C i r . 1 9 7 3 )  ( e n  b a n c )  
( § 1 9 8 3 ) ;

C o n t r a c t o r s  A s s ' n .  o f  E a s t e r n  P a .  v .  
S e c r e t a r y  o f  L a b o r s  4 4 2  F . 2 d  1 5 9  
( 3 r d  C i r  . 1 9 7 1 )  , c e r t . d e n i e d , 4 0 4  
U . S .  8 5 4  ( 1 9 7 1 )  ( T i t l e  V I I ) ;

249



- 44 -

F r a n k s  v .  B ow m an T r a n s p o r t a t i o n  C o . ,  
5 9 5  F . 2 d  3 9 8  ( 5 t h  C i r T  1 9 7 4 )  , ~ ~ ~
m o d i f i e d  4 2 4  U . S .  7 4 7  ( 1 9 7 6 )
( T i t l e  V I I ) ;

M o r r o w  v .  C r i s l e r , 4 9 1  F . 2 d  1 0 5 3  
( 5 t h  C i r .  1 9 7 4 )  ( e n  b a n c ) ,  c e r t .  
d e n i e d , 4 1 9  U . S .  S 7 5 ' 7 T 9 7 4 ) ~ 7 § T ? 8 3 )  ;

A s b e s t o s  W o r k e r s  v .  V o l g e r ,  4 0 7  F . 2 d  
1 0 4 7  ( 3 t l T c i r i  T 9 6 9 )  ( T i t l e  V I I )  ;

U n i t e d  S t a t e s  v . M a s o n r y  C o n t r a c t o r s  
A s s  ' n . o F  M e m p h i s ~ I n c . , 4 9 7  F . 2 d  
8 7 1  ( 6 t h  C i r .  1 9 7 4 )  ( T i t l e  V I I ) ;

U n i t e d  S t a t e s  v .  L o c a l  2 1 2 ,  IB E W ,
4 7 2  F . 2 d  6 3 4  ( 6 t h  C i r .  1 9 7 3 )
( T i t l e  V I I ) ;

U n i t e d  S t a t e s  v .  C a r p e n t e r s  L o c a l  
1 6 9 ,  4 5 7  F . 2 d  2 1 1  ( 7  t h  C i r .  1 9 7 2 ) “ , 
c e r t , d e n i e d , 4 0 9  U . S .  8 5 1  ( 1 9 7 2 )  
( T i t l e  V I I ) ;

U n i t e d  S t a t e s  v .  N . L .  I n d u s t r i e s ,
5 7 9  F . 2 d  3 5 4  ( 8 t h  C i r .  1 9 7 3 )  ( e n  
b a n c ) ( § 1 9 8 3 ) ;

C a r t e r  v .  G a l l a g h e r , 4 5 2  F . 2 d  3 1 5  
X 8 t h  C i r .  1 9 7 1 )  ( e n  b a n c ) ,  c e r t .  
d e n i e d , 4 0 6  U . S .  9 5 0 ~ U 9 7 2 )  ( § 1 9 8 3 ) ;

U n i t e d  S t a t e s  v .  I r o n w o r k e r s  L o c a l  
M , ' 4 4 3  F . 2 d ~ ~ 5 4 4  T 9 t h  C i r .  1 9 7 1 7 7 “  
c e r t . d e n i e d , 4 0 4  U . S .  9 8 4  ( 1 9 7 1 )  
( T i t l e  V I I ) ;

250



- 45 -

S u c h  a c c e l  r a t e d  h i r i n g  o r d e r s  do  

n o t  c o n f l i c t  w i t h  § 7 0 3 ( j )  o f  T i t l e  VII,
4 2  U . S . C .  § 2 0 0 0 ( e )  ( 2 )  ( c )  . S e c t i o n  7 0 3 ( j ) 

i n  p e r t i n e n t  p a r t  p r o v i d e s  t h a t  a n  em ­

p l o y e r  m a y  n o t  b e  r e q u i r e d :

" t o  g r a n t  p r e f e r e n t i a l  t r e a t m e n t  t o  
a n y  i n d i v i d u a l  o r  g r o u p  o n  a c c o u n t  
o f  a n  i m b a l a n c e  w h i c h  m a y  e x i s t  w i t h  
r e s p e c t  t o  t h e  t o t a l  n u m b e r  o r  
p e r c e n t a g e  o f  p e r s o n s  o f  a n y  r a c e . . .  
i n  c o m p a r i s o n  w i t h  t h e  t o t a l  n u m b e r  
o r  p e r c e n t a g e  o f  p e r s o n s  o f  s u c h  
r a c e . . . i n  a n y  c o m m u n i t y . "

T h a t  l a n g u a g e  w a s  i n t e n d e d  t o  b a r  p r e f e r ­

e n t i a l  q u o t a  h i r i n g  a s  a  m e a n s  o f  c h a n g i n g  

r a c i a l  i m b a l a n c e  a t t r i b u t a b l e  t o  c a u s e s  

o t h e r  t h a n  u n l a w f u l  d i s c r i m i n a t o r y  c o n ­

d u c t .  R i o s  v .  E n t e r p r i s e  A s s ' n .  S t e a m -  

f i t t e r s  L o c a l  6 3 8 , 5 0 1  F . 2 d  6 2 2 ,  6 3 0  ( 2 n d  

C i r . , 1 9 7 4 ) ;  U n i t e d  S t a t e s  v .  W o o d ,  W i r e ,  

a n d  M e t a l  L a t h e r s  I n t e r n a t i o n a l  U n i o n  L o ­

c a l  4 6 ,  4 7 1  F . 2 d  4 0 8 ,  4 1 3  ( 2 n d  C i r .  1 9 7 3 ) .  

W h e r e  p a s t  d i s c r i m i n a t i o n  i s  s h o w n ,  a n d

251



-46

r a t i o  h i r i n g  r e m e d i e s  t h a t  p a s t  d i s c r i m i ­

n a t i o n ,  t h e  o r d e r  i s  n o t  " p r e f e r e n t i a l  

t r e a t m e n t "  i n  v i o l a t i o n  o f  § 7 0 3 ( j ) .

The Court's decision in Regents of 
the University of California v . Bakke,

_ _ U . S . _______, 5 7  L . E d . 2 d  7 5 0  ( 1 9 7 8 ) ,

supports this view. The opinion of 
Justice Powell, expressing the Court's 
judgement, supports the use of affirmative 
hiring orders such as the one ordered by 
the trial court in the instant case where 
necessary to remedy discriminatory con­
duct and its effects. In Bakke, Justice 
Powell found that the Davis special ad­
missions program violated the Fourteenth 
Amendment because it was "undeniably" a 
classification based on race and ethnic 
background which afforded preferential 
treatment for individuals from certain 
minority groups. Justice Powell found 
persuasive the factual circumstances

252



- 4 7 -

presented to the Court where there was 
an absence of any finding by the trial 
court or an admission by the University 
of past discriminatory conduct on the 
part of the University.̂  The University 
in Bakke had argued that the special 
admissions program was necessary to 
redress societal discrimination and that 
the Court in the past had validated 
preferential treatment in other circum­
stances, specifically in the areas of 
education, employment, and sex discrimi­
nation ,

Justice Powell in his opinion point­
ed out that in each of the areas cited 
by the University as supporting the use 
of preferential treatment, there had been 
a finding of discrimination in the parti-

■^The University denied, and the Court assumed, 
that it had not discriminated in the past.

253



- 48 -

c u l a r  i n s t a n c e s  a n d  t h a t  t h e  p r e f e r e n t i a l  

t r e a t m e n t  a c c o r d e d  w a s  t h e  m e a n s  c h o s e n  

t o  r e m e d y  t h e  d i s c r i m i n a t i o n  f o u n d  t o  

e x i s t .  T h e  d i s c u s s i o n  b y  J u s t i c e  P o w e l l  

o f  t h e  e m p l o y m e n t  c a s e s  i s  e s p e c i a l l y  

p e r t i n e n t  t o  t h e  i s s u e  o f  t h e  a p p r o p r i a t e ­

n e s s  o f  t h e  h i r i n g  o r d e r  i n  t h e  i n s t a n t  

c a s e .  T h e  c a s e s  d e m o n s t r a t e  t h a t  q u o t a s  

a r e  n o t  i n  a l l  c i r c u m s t a n c e s  u n j u s t i f i e d  

p r e f e r e n t i a l  t r e a t m e n t  f o r  m i n o r i t y  g r o u p s  

o r  r e v e r s e  d i s c r i m i n a t i o n  a n d  t h e r e f o r e  

i l l e g a l .  F o r  e x a m p l e ,  h e  n o t e d  w i t h  

a p p r o v a l  F r a n k s  v .  B o w m a n , 4 2 4  U . S .  7 4 7  

( 1 9 7 6 ) ,  w h e r e i n  t h e  C o u r t  a p p r o v e d  a  

r e t r o a c t i v e  a w a r d  o f  s e n i o r i t y  t o  a  c l a s s  

o f  b l a c k  t r u c k  d r i v e r s  w h o  h a d  b e e n  t h e  

v i c t i m s  o f  d i s c r i m i n a t i o n . J u s t i c e  

P o w e l l ' s  c i t a t i o n  o f  t h e  F r a n k s  c a s e  i s  

s i g n i f i c a n t  b e c a u s e  t h e  r e m e d y  o r d e r e d  

w a s  d e t e r m i n e d  t o  o u t w e i g h  t h e  i n f r i n g e -

254



- 49 -

ment of seniority rights of innocent white 
employees. The Court in Franks had 
determined that the need to compensate 
the black employees for the discrimina­
tion which had been practiced by the 
employer took precedent over the senior­
ity expectations of white employees.
4 2 4  U . S .  a t  7 7 5 - 7 8 0 .

Also cited by Justice Powell were 
two lower court decisions approving 
issuance of ratio hiring orders as 
remedies for constitutional or statutory
violations resulting in identified, race- 

1 Abased injuries. For Justice Powell, * 452

1 6 57  L .E d .2 d  a t  7 7 8 , c i t i n g  B r id g e p o r t  G u ar- 
d ia n s , I n c .  v .  C i v i l  S e r v i c e  C o n m iss io n , 
4 8 2  F .2 d  1 3 3 3  (2n d  C ir .  1 9 7 3 ) ( 1 /1  h i r i n g  
r a t i o  a p p r o v e d ) ; C a r te r  v .  G a lla g h e r , 4 5 2  
F .2 d  3 1 5 , m o d if ie d  o n  r e h e a r in g  en  b a n c ,
4 5 2  F . 2d  3 2 7 , 329  (8 t h  C i r .  1 9 7 2 ) " ( 3 / 1  
h i r i n g  r a t i o  a p p r o v e d .)

Justice Powell's citation of the Carter v. 
(cont. next page)

255



- 50 -

p r e f e r e n t i a l  t r e a t m e n t  i s  n o t  r e v e r s e  

d i s c r i m i n a t i o n ,  a n d  t h e r e f o r e  i l l e g a l ,  

a s  l o n g  a s  t h e  r e m e d y  f a s h i o n e d  s e r v e s  

t o  c o r r e c t  i d e n t i f i e d  d i s c r i m i n a t i o n  

f o u n d  t o  e x i s t  b y  a  c o u r t  o r  r e s p o n s i b l e  

g o v e r n m e n t  a g e n c y . ^

T h e  c o n c u r r i n g  o p i n i o n  b y  J u s t i c e  

B r e n n a n  a l s o  s u p p o r t s  t h e  u s e  o f  r e m e d i e s  

i n v o l v i n g  p r e f e r e n t i a l  t r e a t m e n t ,  s u c h

1 6  (c o n t .  fro m  l a s t  p a g e )
G a lla g h e r  d e c i s i o n ,  s u p r a , i s  p a r t i c u l a r l y  
n o te w o r th y  i n  t h a t  i t  was an a c t i o n  b ro u g h t  
u n d er § 1 9 8 1 .

^ " T h e  c o u r t s  o f  a p p e a ls  h a v e  fa s h io n e d  v a r io u s  
t y p e s  o f  r a c i a l  p r e fe r e n c e s  a s  re m e d ie s  f o r  
c o n s t i t u t i o n a l  o r  s t a t u t o r y  v i o l a t i o n s  r e ­
s u l t i n g  i n  i d e n t i f i e d ,  r a c e -b a s e d  i n j u r i e s  
t o  i n d i v i d u a ls  h e ld  e n t i t l e d  t o  th e  p r e f e r -  
e n c e . Such p r e fe r e n c e s  a l s o  h av e  b e e n  
u p h e ld  w h ere a  l e g i s l a t i v e  o r  a d m in is t r a t iv e  
b o d y  ch a rg e d  w i t h  th e  r e s p o n s i b i l i t y  made 
d e te r m in a t io n s  o f  p a s t  d i s c r im in a t io n  b y  th e  
i n d u s t r i e s  a f f e c t e d ,  and fa s h io n e d  re m e d ie s  
deemed a p p r o p r ia te  t o  r e c t i f y  th e  d i s c r i m i ­
n a t i o n . "  57  L .E d .2 d  a t  7 7 8 . ( c i t a t i o n s  
o m itt e d , em p h asis a d d e d ) .

256



- 51 -

a s  r a t i o  h i r i n g  o r d e r s , i n  e m p lo y m e n t  

c a s e s .  I n  B a k k e , J u s t i c e  B r e n n a n  r e a d  

p r i o r  d e c i s i o n s  b y  t h e  C o u r t  t o  a p p r o v e  

t h e  u s e  o f  p r e f e r e n t i a l  t r e a t m e n t  a s  a  

m e a n s  o f  r e m e d y i n g  p a s t  d i s c r i m i n a t i o n ,  

i n c l u d i n g  i t s  p r e s e n t  e f f e c t s .  J u s t i c e  

B r e n n a n ,  h o w e v e r ,  a l s o  a r g u e d  t h a t  s u c h  

r e m e d i e s  w e r e  a p p r o p r i a t e  e v e n  a b s e n t  a  

s h o w i n g  o f  s p e c i f i c  d i s c r i m i n a t o r y  c o n ­

d u c t ,  a s  l o n g  a s  i t  c o u l d  b e  d e m o n s t r a t e d  

t h a t  t h e  a c t i o n  c o m p l a i n e d  o f  h a d  a n  a d ­

v e r s e  a n d  u n j u s t i f i e d  i m p a c t  u p o n  m e m b e r s

18
o f  r a c i a l  m i n o r i t i e s . T h e  k e y  f o r  

J u s t i c e  B r e n n a n  i s  t h a t  t h e  e x i s t e n c e  o f  

d i s c r i m i n a t i o n ,  o r  t h e  p r e s e n t  e f f e c t s  o f  * 351

^ B a k k e ,  57  L .E d .2 d  a t  8 1 7 -8 1 8 ,  B rennan, J . , 
c o n c u r r in g , c i t i n g  M cD an iel v .  B a r r e s i ,
4 0 2  U .S . 39  ( 1 9 7 1 ) ;  U n ite d  J ew ish  O r g a n iz a -  
t i o n s  o f  W i ll ia m s b u rgh  v .  C a r e y , 4 3 0 l T s j  
144 ( 1 9 7 7 ) ;  S c h le s in g e r  v .► B a lla r d , 4 1 9  
U .S . 4 9 8  ( 1 9 7 5 ) ;  K a h n v .  S h iv e n , 4 1 6  U .S .
351  ( 1 9 7 4 ) ;  K a tzen b a ch  v .  M organ, 3 8 4  U .S .  
6 4 1  ( 1 9 6 6 ) .

257



- 52 -

p a s t  d i s c r i m i n a t i o n ,  j u s t i f i e s  t a k i n g  

r a c e  i n t o  a c c o u n t  i n  o r d e r  t o  f a s h i o n  a  

r e m e d y  t o  e f f e c t i v e l y  o v e r c o m e  t h e  

d i s c r i m i n a t i o n .  U n d e r  s u c h  a n  a n a l y s i s ,  

t h e  q u o t a  h i r i n g  r e m e d y  o r d e r e d  b y  t h e  

t r i a l  c o u r t  i n  t h i s  i n s t a n c e  w o u l d  b e  

c l e a r l y  v a l i d .

I t  i s  i m p o r t a n t  t o  p o i n t  o u t  h e r e  

t h a t  t h e  o p i n i o n  b y  J u s t i c e  S t e v e n s  d o e s  

n o t  a d o p t  a  position t h a t  p r e f e r e n t i a l  

h i r i n g  o r d e r s  a r e  n o t  a p p r o p r i a t e  r e m e d i e s  

i n  e m p lo y m e n t  c a s e s .  J u s t i c e  S t e v e n s ,  

i n  h i s  o p i n i o n ,  d i d  n o t  a d d r e s s  t h e  l a r ^  

g e r  q u e s t i o n  o f  w h e n  r a c e  c a n  b e  u s e d  a s  

a  f a c t o r  i n  a n  a d m i s s i o n s  p r o g r a m  o r  i n  

o t h e r  s e t t i n g s .  H i s  o p i n i o n  w a s  s p e c i f i ­

c a l l y  l i m i t e d  t o  w h e t h e r  B a k k e  a s  a n  

i n d i v i d u a l  h a d  b e e n  d i s c r i m i n a t e d  a g a i n s t  

o n  t h e  b a s i s  o f  h i s  r a c e .  B a k k e , 5 7  L .

E d . 2 d  a t  8 4 5 .  ( S t e v e n s ,  J . ,  c o n c u r r i n g ) .

258



- 53 -

N o w h e r e  i n  h i s  o p i n i o n  d i d  J u s t i c e  S t e v e n s  

s t a t e  o r  i m p l y  t h a t  p r e f e r e n t i a l  t r e a t m e n t  

c o u l d  n o t  b e  u s e d  t o  r e m e d y  p r i o r  d i s c r i ­

m i n a t i o n .  On t h e  c o n t r a r y ,  n o t e  2 2  s e e m s  

t o  i m p l y  t h a t  p r e f e r e n t i a l  t r e a t m e n t  b e ­

y o n d  " s p e c i a l  r e c r u i t m e n t  p o l i c i e s "  w o u ld

b e  a p p r o p r i a t e  i n  t h e  c i r c u m s t a n c e s  w h e r e

, . 1 9
a  d i s c r i m i n a t o r y  p o l i c y  w a s  m  e f f e c t .

The district court held that 
the prospective hiring order was "neces­
sary to overcome the presently existing 
existing effects of past discrimi­
nation." Davis v. County of Los

19B akke, 57  L .E d .2 d  a t  8 5 1 , n o t e  2 2 . By 
s t a t i n g  t h a t  " a f f i r m a t i v e  a c t i o n "  r e f e r s  t o  
" s p e c i a l  r e c r u itm e n t  p o l i c i e s "  w h ere no  
d is c r im in a t o r y  p o l i c y  e x i s t s ,  J u s t i c e  S te v e n s  
le a v e s  open a  w id e r  d e f in i t i o n , f o r  "a f f i r m a ­
t i v e  a c t i o n "  w h ere a  d is c r im in a t o r y  p o l i c y  
d oes e x i s t .

The order by the district court is well with­
in the scope of the remedies available to 
district courts when unlawful employment 
discrimination has been found.

259



- 54 -

A n g e l e s , 8 FEP C a s e s  2 3 9  ( C . D .  C a l .

1 9 7 3 ) .  T h e  C o u r t  c i t e d  i n  s u p p o r t  o f

i t s  o r d e r  a n  u n r e b u t t e d  p r i m a  f a c i e  c a s e

e s t a b l i s h e d  b y  s e v e r e  u n d e r u t i l i z a t i o n

o f  M e x i c a n  A m e r i c a n s  a n d  b l a c k s  i n

20
P e t i t i o n e r s ' w o r k f o r c e  a n d  o f  P e t i t i o n ­

e r s '  i n t e n t i o n a l  u s e  o f  a n  u n v a l i d a t e d  

21
w r i t t e n  e x a m .

T h e  d i s t r i c t  c o u r t ' s  f i n d i n g  o f  

d i s c r i m i n a t i o n  i n  t h i s  c a s e ,  a f f i r m e d  b y  

t h e  N i n t h  C i r c u i t ,  i s  s u f f i c i e n t  b a s i s  20

20A t  th e  tim e  t h i s  a c t io n  was b r o u g h t , th e  
m in o r i t y  p o p u la t io n  o f  th e  C ounty o f  L os  
A n g e le s  was 2 9 . 1%, o f  th e  t o t a l , 18 .3% , 
M exican  A m erican  and 1 0 .8 %  b la c k .  A t  th e  
same t im e , o n ly  3 .3 %  o f  th e  f i r e f i g h t e r s  
em ployed  b y  th e  P e t i t i o n e r s  w ere  M exican  
A m erican  o r  b la c k .  O f  th e  L os A n g e le s  
C ounty F i r e  D epartm ent w o r k fo r c e  o f  1 ,7 6 2  
f i r e f i g h t e r s ,  f i f t y  (2 .8 % )  w ere  M exican  
A m erican  and n in e  (0 .5 7 ,)  w ere  b l a c k .  O pin­
io n  o f  th e  t r i a l  c o u r t  b e lo w , 8 FEP 2 3 9 ,  
a t  2 4 0 .

21
S ee  n o te 1, s u p r a , a t  1 0 - 1 1 .

260



- 55 -

f o r  a  p r e f e r e n t i a l  h i r i n g  o r d e r  c o n s i s ­

t e n t  w i t h  t h e  C o u r t ' s  v i e w  i n  B a k k e . 

M o r e o v e r ,  t h e  h i r i n g  o r d e r  b y  t h e  d i s ­

t r i c t  c o u r t  b e l o w  i s  w e l l  w i t h i n  t h e  

s c o p e  o f  t h e  e q u i t a b l e  p o w e r s  a n d  d i s ­

c r e t i o n  o f  f e d e r a l  c o u r t s  t o  f u l f i l l  

t h e i r  d u t y  t o  e l i m i n a t e  p r e s e n t  e f f e c t s  

o f  p a s t  d i s c r i m i n a t o r y  c o n d u c t ,  w h i l e  

b a r r i n g  l i k e  d i s c r i m i n a t i o n  i n  t h e  f u ­

t u r e .  T e a m s t e r s ,  s u p r a , 4 3 1  U . S .  a t  3 6 4 .  IV

IV
CO N CLU SIO N

T h e  p l a i n  l a n g u a g e ,  a f f i r m a t i v e  

n a t u r e ,  a n d  p u r p o s e  t o  b e  s e r v e d  b y  

§ 1 9 8 1  r e q u i r e  t h a t  p r o o f  o f  p u r p o s e f u l  

i n t e n t  t o  d i s c r i m i n a t e  n e e d  n o t  b e  

d e m o n s t r a t e d  t o  m a k e  o u t  a  v i o l a t i o n  

u n d e r  t h e  s t a t u t e .  T h e  s e v e r e  u n d e r r e p ­

r e s e n t a t i o n  o f  m i n o r i t i e s  i n  P e t i t i o n e r s '

261



- 56 -

l a b o r  f o r c e ,  c o m b i n e d  w i t h  t h e  u s e  o f  

u n v a l i d a t e d  e x a m  p r o c e d u r e  w h i c h  h a d  a  

d e m o n s t r a t e d  a d v e r s e  i m p a c t  o n  m i n o r i t i e s ,  

e s t a b l i s h e s  a  p r i m a  f a c i e  c a s e  o f  d i s ­

c r i m i n a t i o n  u n d e r  § 1 9 8 1 ,  j u s t i f y i n g  t h e  

e x e r c i s e  o f  t h e  t r i a l  c o u r t ’ s  r e m e d i a l  

p o w e r  a n d  d i s c r e t i o n  t o  f a s h i o n  t h e  q u o t a  

h i r i n g  o r d e r  b e l o w .  F o r  t h e  f o r e g o i n g  

r e a s o n s ,  t h e  o p i n i o n  o f  t h e  N i n t h  C i r c u i t  

C o u r t  o f  A p p e a l s  b e l o w  s h o u l d  b e  a f f i r m e d .  

H o w e v e r ,  i f  t h e  C o u r t  f i n d s  t h a t  t h e  C o u r t  

o f  A p p e a l s  a p p l i e d  a n  e r r o n e o u s  s t a n d a r d  

b e l o w ,  c a s e  s h o u l d  b e  r e m a n d e d  f o r  f u r t h e r  

d e v e l o p m e n t  o f  t h e  R e c o r d  a n d  t h e  C o u r t  

s h o u l d  w i t h h o l d  j u d g e m e n t  o n  t h e  q u e s t i o n  

o f  t h e  p o w e r  o f  f e d e r a l  c o u r t s  t o  u s e  

n u m e r i c a l  r e m e d i a l  h i r i n g  o r d e r s  w h e r e

262



- 57 -

a p p r o p r i a t e  a n d  u n d e r  c o r r e c t  s t a n d a r d s .

Respectfully submitted,

V IL M A  S .  M A R T IN E Z  
P r e s i d e n t  a n d  G e n e r a l  
C o u n s e l

M O RR IS J .  BALLER  
JO EL G . CONTRERAS  
F E L I X  VELARD E-M U N O Z

A t t o r n e y s ,
M e x i c a n - A m e r i c a n  L e g a l  
D e f e n s e  a n d  E d u c a t i o n a l  
F u n d  (M ALD EF)
2 8  G e a r y  S t . ,  6 t h  F l o o r  
S a n  F r a n c i s c o ,  C a l i f o r ­

n i a ,  9 4 1 0 8

O c t o b e r  3 0 ,  1 9 7 8

263





in  tfje
Supreme Court of tfje ?Hmteb States

O ctober T erm , 1978

No. 77-1553

COUNTY OF LOS ANGELES, et al.,

vs.
Petitioners,

VAN DAVIS, et al.,
Respondents.

On Writ o f Certiorari to the 
United States Court o f Appeals 

For the Ninth Circuit * 315

BRIEF OF THE ANTI-DEFAMATION LEAGUE 
OF B’NAI B RITH, AMICUS CURIAE,

IN SUPPORT OF PETITIONERS

ROBERT A. HELMAN 
MICHELE ODORIZZI 
Attorneys for Amicus Curiae 
231 South LaSalle Street 
Chicago, Illinois 60604

Of Counsel:
ARNOLD FORSTER 
JEFFREY P. SINENSKY 
RICHARD A. WEISZ 
Anti-Defamation League of 

B’nai B’rith
315 Lexington Avenue 
New York, New York 10016
MAYER, BROWN & PLATT 
231 South LaSalle Street 
Chicago, Illinois 60604

265





TABLE OF CONTENTS

Page

Consent of the Parties................................................. 1
Interest of the Amicus Curiae.......................   1
Statement of the Case..................................................... 2
Question Addressed..................................................... 5
Argument....................     6
The Racial Quota In This Case Violates The Princi­

ples Which Limit The Power Of The District Court 
To Grant Relief........................................................  6

A. The Court Failed to Tailor the Remedy to the
Limited Nature of the Violation.....................  7

B. The Plaintiff Class Did Not Contain
Identifiable Victims with Live Claims of Dis­
crimination.........................    10

C. The Racial Quota Fails to Consider the Inter­
ests of Innocent Third Parties.........................  15

D. The Quota Violates Equal Protection and
Due Process Principles.................................  16

Conclusion ....................................................................  17

267



TABLE OF AUTHORITIES

Cases
Page

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 6 
Brown v. Board of Education, 347 U.S. 483 (1954) 2
Colorado Anti-Discrimination Commission v. Con­

tinental Airlines, Inc., 372 U.S. 714 (1963).......... 2
Davis v. County of Los Angeles, 566 F.2d 1334 (9th

Cir. 1977) ............................................. ..................  3,4,
5,11

Dayton Board of Education v. Brinkman, 433 U.S.
406 (1977)...............................................................  6

De Funis v. Odegaard, 416 U.S. 312 (1974).............. 2
EEOC v. Griffin Wheel, 511 F.2d 456 (5th Cir. 1975) 13
EEOC v. Kimberly Clark Corp., 511 F.2d 1352 (6th 

Cir. 1975)................................. ............................  13
EEOC v. Occidental Life Ins. Co., 535 F.2d 533

(9th Cir. 1976), aff’d, 432 U.S. 355 (1977).......... 13
Franks v. Bowman Transportation Co., 495 F.2d 

398 (5th Cir. 1974), rev’d, 424 U.S. 747 (1976).... 8,9
Franks v. Bowman Transportation Co., 424 U.S.

747 (1976)............................. .................................. 6,11,15
Fumco Construction Corp. v. Waters, 98 S. Ct.

2943 (1978) ............................................................  12
Griggs v. Duke Power Co., 401 U.S. 424 (1971).... 12
Hazelwood School Dist. v. United States, 433 U.S.

299 (1977).........     14
Hirabayashi v. United States, 320 U.S. 81 (1943).. 16
Johnson v. Railway Express Agency, 421 U.S. 454

(1975).............     10
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) 2 
Korematsu v. United States, 323 U.S. 214 (1944).. 16 
Lemon v. Kurtzman, 411 U.S. 192 (1973)..............  7

ii

268



i:l>

Page

Los Angeles v. Manhart, 98 S. Ct. 1370 (1978).... 12 
Loving v. Virginia, 388 U.S. 1 (1967)....................  16
McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273 (1976)................................................. 2,12,16
Mills v. Small, 446 F.2d 249 (9th Cir.), cert, denied,

404 U.S. 991 (1971)................................................  10
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355

(1977)........................................................................  13
Regents v. Bakke, 98 S. Ct. 2733 (1978).................. 2,12,

15,16
Runyon v. McCrary, 427 U.S. 160 (1976).............. 2
San Antonio Independent School District v . Rodri­

guez, 411 U.S. 1 (1973)........................................ 2
Shelley v. Kraemer, 334 U.S. 1 (1948)....................  2
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) 2 
Sweatt v. Painter, 339 U.S. 629 (1950)................. .. 2
Teamsters v. United States, 431 U.S. 324 (1977).. 6,8,9,

11.14.15
United Air Lines, Inc. v. Evans, 431 U.S. 553 

(1 9 7 7 )....................................................................  14
Warth v. Selden, 422 U.S. 490 (1975).....................  11

Statutes

42 U.S.C. § 1981........................................................  3,5,7,
8 , 10, 11,

12.14.16
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, ef seq......................................................... 3,5,7,
8,10,
11,13,14

Other Authorities

110 Cong. Rec. 7213 (1964) 14
269





3 n tfje
Supreme Court of tfje Umteb States!

October T erm , 1978

No. 77-1553

COUNTY OF LOS ANGELES, et al.,

vs.
Petitioners,

VAN DAVIS, et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

For the Ninth Circuit

BRIEF OF THE ANTI-DEFAMATION LEAGUE 
OF B’NAI B’RITH, AMICUS CURIAE,

IN SUPPORT OF PETITIONERS

Consent of the Parties

Petitioners and Respondents have consented to the filing of 
this brief and their letters of consent have been filed with the 
Clerk of this Court.

Interest of the A micus Curiae

B’nai B’rith, founded in 1843, is the oldest civic service 
organization of American Jews. The Anti-Defamation League 
was organized in 1913 as a section of B’nai B rith to advance 
good will and mutual understanding among Americans of all 
creeds and races, and to combat racial and religious prejudice 
in the United States. The Anti-Defamation League is vitally 
interested in protecting the civil rights of all persons, be they



2

minority or majority, and in assuring that every individual 
receives equal treatment under law regardless of his or her 
race or religion.

Among its many other activities directed to these ends, the 
Anti-Defamation League has in the past filed amicus briefs in 
this Court urging the unconstitutionality or illegality Of ra­
cially discriminatory laws or practices in such cases as,e.g., 
Shelley v. Kraemer, 334 U.S. 1 (1948); Sweat! v. Painter, 339 
U.S. 629 (1950); Brown v. Board of Education, 347 U.S. 483 
(1954); Colorado Anti-Discrimination Commission v. Conti­
nental Airlines, Inc., 372 U.S. 714 (1963); Jones v. Alfred H. 
Mayer Co., 392 U.S. 409 (1968); Sullivan v. Little Hunting 
Park, 3% U.S. 229 (1969); San Antonio Independent School 
District v. Rodriguez, 411 U.S. 1 (1973); De Funis v. Ode- 
gaard, 416 U.S. 312 (1974);Runyon v. McCrary ,427 U.S. 160
(1976); McDonald v. Santa Fe Trail Transportation Co., 427 
U.S. 273 (1976); Regents v. Bakke, 98 S. Ct. 2733 (1978).

Statem ent  of the Case

In January, 1973, when this case was filed, the workforce of 
the Los Angeles County Fire Department was 0.5% black and 
2.8% Mexican-American, although the population of the 
County was 10.8% black and 18.3% Mexican-American, 
(R. 160.) From 1968 to 1972 (the only years for which data 
was included in the record), the Department was hiring new 
firemen at the rate of approximately 100 each year; in 1968 it 
had 683 applicants for these positions, in 1969 it had 1,424 
applicants and in 1972 , 2,414 applicants. (R. 138, 140.)

In 1968 and 1969 written tests were used in ranking appli­
cants. Although the district court found that defendants did 
not have “ a willful or conscious purpose of excluding blacks 
and Mexican-Americans from employment,” it did conclude 
that these tests had a disproportionately adverse effect upon 
black and Mexican-American applicants. (R. 160, 162.)

In 1972 the Department eliminated the use of the written 
test as a selection device, and substituted a procedure in 
which a written test was to be used only to screen out illiter­
ates. Because 97% of the 2,414 applicants passed the 1972

272



3

test, the Department decided to choose at random 500 of 
those who had passed for interviews and physical agility tests. 
The results of those interviews and physical tests were then to 
be used to construct a ranked eligibility list. However, before 
the Department selected the 500 candidates, a state court 
temporarily enjoined the random selection pending determi­
nation of whether it violated a California Code provision 
requiring merit selection.

In early January, 1973* the Department, not having formu­
lated an eligibility list for several years, decided to interview 
applicants who had scored in the top 544 places on the 1972 
test. Shortly thereafter, however, the Department abandoned 
this idea and instead interviewed all applicants who had 
passed the test. Later in 1973, as a result of those interviews, 
a hiring list was certified. Plaintiffs have stipulated that that 
hiring list did not have a disproportionate impact on black and 
Mexican-American applicants. R. 140-141; Davis v. County of 
Los Angeles, 566 F.2d 1334, 1346 (9th Cir. 1977).

On January 11, 1973, plaintiffs, who are blacks or Mexican- 
Americans who had applied for employment as firemen in 
1971 and taken the 1972 written test, filed this suit on behalf of 
a class consisting of all current and future black and Mexican- 
American applicants for employment as firemen,** (R. 62) 
alleging that the Department had engaged in racially discrimi­
natory hiring practices in violation of the Fourteenth Amend­
ment, 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 
1964 , 42 U.S.C. §§ 2000e, et seq.

The district court found in favor of the plaintiffs, holding 
that the Department had violated Title VII (which had become 
applicable to it in March 1972) and § 1981 by (1) using written 
tests as a selection device prior to learning that the present 
suit was about to be filed, and (2) failing to take the necessary

* The January 1972 date in the stipulation in the record (R. 141) is 
apparently a typographical error, inasmuch as the test was not given until 
January 1972 (H 6 o f  the complaint).

** The class also included blacks and Mexican-Americans who were 
already employees o f  the Department. These plaintiffs originally challenged 
the lawfulness o f defendants’ promotion practices as well. That claim was 
later abandoned, however, by stipulation o f the parlies. (R. 134.) 273



4

steps to dispel its reputation in the black and Mexican-Ameri­
can communities as an employer who discriminated against 
those groups. (R. 160.) However, the district court also found 
that the Department had not interfered with individual 
affirmative action efforts by certain of its officials to recniit 
larger numbers of black and Mexican-American applicants 
and, further, that neither the Department nor its officials had 
engaged in the foregoing unlawful practices “ with a willful or 
conscious purpose of excluding blacks and Mexican-Ameri­
cans from employment.” (R. 160, 162.) The court also found 
the Department’s minimum height standard of 5'7", chal­
lenged as having a disparate impact on Mexican-American 
applicants, to be job-related. (R. 160.)

In its findings of fact the court stated that the defendants 
had failed to “justify” the disparity between the numbers of 
minority workers it employed and the numbers in the popula­
tion. The court therefore concluded that the racial imbalance 
in defendants’ workforce was an “ effect” of past discrimina­
tion. Citing the principle that a court of equity has a duty to 
eliminate the “ present effects of past discrimination,” the 
court decreed that of the firemen hired each year, 20% must 
be black and 20% Mexican-American until the racial percent­
ages in the workforce were equal to the percentages of blacks 
and Mexican-Americans in the general population of Los 
Angeles County. (R. 160, 164, 166.) The record indicates that, 
at current hiring rates, it will take approximately ten more 
years to meet this goal for blacks and twenty more years for 
Mexican-Americans.*

Defendants appealed the entire judgment of the district 
court; plaintiffs appealed only those aspects of the judgment 
upholding the minimum height requirements.

The court of appeals affirmed the district court’s finding 
that, notwithstanding the absence of a racially discriminatory

* Footnote 3 o f  the court o f  appeals’ opinion, 566 F.2d at 1336, erro­
neously sets forth much shorter time spans, but they are in fact based upon 
an assumed 1-1-1 hiring ratio. Plaintiffs themselves pointed this out on page 
36 o f  their brief on rehearing, where they noted that it would take until 1987 
for blacks and until 2001 for Mexican-Americans to reach parity if the 
Department hired one-third minorities each year.

274



5

purpose, the Department’s proposed, but abandoned, use of 
the 1972 written test as a ranking device violated Title VII and 
§ 1981 (Judge Wallace dissenting as to § 1981); the court of 
appeals, however, rejected the district court’s finding that the 
use of the 1969 test constituted actionable discrimination, 
holding that the plaintiff class, which did not include unsuc­
cessful applicants from that year, “ lacked standing to chal­
lenge defendants’ prior use of [that] test.” 566 F.2d at 1338. 
The court of appeals affirmed (Judge Wallace dissenting) the 
quota remedy, but remanded the case for consideration of 
raising the Mexican-American quota in light of its holding that 
the 5'7" height limitation was unlawful. 566 F.2d at 1343.

QUESTION ADDRESSED
This brief will limit itself to the racial hiring quota issue. 

However, if this Court decides that a constitutional standard 
of liability applies to § 1981, there will be no need to decide 
the lawfulness of the racial quota relief in this case, inasmuch 
as the district court found that defendants did not at any time 
have a purposeful intent to discriminate against black and 
Mexican-American job applicants.

275



6

ARGUMENT

THE RACIAL QUOTA IN THIS CASE VIOLATES THE 
PRINCIPLES WHICH 

LIMIT THE POWER OF THE 
DISTRICT COURT TO GRANT RELIEF.

In recent years this Court has, on several occasions, dis­
cussed the standards to be followed by district courts in 
fashioning equitable decrees to grant relief from actionable 
race discrimination in employment. In such cases the Court 
has consistently held that every effort should be made to put 
identifiable victims of discrimination in the position they 
would have been in but for the discrimination. See Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 418 (1975); Franks v. 
Bowman Transportation Co., 424 U.S. 747, 772-73 (1976). 
However, this Court has also recognized that a member of a 
minority group that has been discriminated against does not 
automatically qualify as a “ victim of discrimination” simply 
by virtue of his race. Rather, in Teamsters v. United States, 
431 U.S. 324, 363-64 (1977), the Court emphasized that each 
individual requesting relief must prove that he or she has 
actually suffered discrimination.

This Court has also emphasized that, in framing an equita­
ble decree, the district court must “ tailor ‘the scope of the 
remedy’ to fit ‘the nature and extent of the . . . violation’ 
proved, Dayton Board of Education v. Brinkman, 433 U.S. 
406, 420 (1977). When the disparity between the violation 
found and the relief granted becomes too great, the district 
court’s order must be reversed, as it was in Dayton. Id. at 
419.

Furthermore, in considering what constitutes proper relief, 
the district court has an obligation to determine whether the 
legitimate expectations of innocent third parties would be 
imperiled by its proposed decree. If so, the court must under­
take the delicate task of balancing the interests at stake. For, 
as this Court stated in Teamsters v. United States, supra, 431 
U.S. at 375:

“ [WJhen immediate implementation of an equitable rem­
edy threatens to impinge upon the expectations of inno-

276



7

cent parties, the courts must ‘look to the practical reali­
ties and necessities inescapably involved in reconciling 
competing interests,’ in order to determine the ‘special 
blend of what is necessary, what is fair, and what is 
workable.’ Lemon v. Kurtzman, 411 U.S. 192, 200-201 
(opinion of Burger, C’.J.).”

Unfortunately, the lower courts in the case at bar appear to 
have ignored these fundamental principles. Instead of tailor­
ing the decree to the at best de minimis violations proved, the 
courts imposed a drastic quota remedy that will encumber 
defendants’ hiring decisions for many years to come. In so 
doing, the courts were not attempting to remedy injuries 
actually inflicted on individual members of the plaintiff class; 
plaintiffs conceded that no such injuries existed. Rather, the 
courts were apparently attempting to remedy the injuries 
suffered by an entire race of people over a long period of time.

We submit that such a result violates not only settled princi­
ples governing a court’s equitable powers but also fundamen­
tal concepts of standing, limitations, due process and equal 
protection.

A . The Court Failed to Tailor the Remedy to the Limited 
Nature o f the Violation.

The courts below found that defendants had engaged in two 
employment practices which, because of their dispropor­
tionate impact on blacks and Mexican-Americans, violated 
Title V II and § 1981: (i) the intent— never carried out— to use 
scores on the 1972 written test to rank job applicants and (ii) 
the enforcement of a 5'7" minimum height limitation.

In paragraph 9 of their second amended complaint, 
plaintiffs conceded that the 1973 hiring list compiled by the 
Department

“ did not have a disproportionate detrimental impact 
upon black and Mexican-American applicants. Due to the 
change in selection procedures, a substantial number of 
minorities have been placed at or near the top of the 
eligibility list of current applicants for hire as Los An­
geles County firemen, with the result that, subject to 
medical examinations now being carried out, it is antici- 277



8

pated that there will be approximately thirty-three minor­
ity persons among the first class of inductees which will 
total sixty persons." (R. 16.) (Emphasis added.)

Because of this lack of disparate impact, plaintiffs conceded 
before the court of appeals that the “ post-March 1972 dis­
crimination, challenged under Title VII and Section 1981, had 
no ‘effects.’ ” Plaintiffs’ Brief on Rehearing at 1.

From the foregoing it is clear that no relationship has been 
shown, or even claimed, between the uneffectuated intent to 
use the 1972 written test as a selection device and the drastic 
remedy of a racial hiring quota. The height limitation is also 
clearly not relevant to the quota.

The only other violation found in this case was the Depart­
ment’s “ failure and refusal to take necessary affirmative 
steps” to overcome the Department’s reputation of discrimi­
nating against blacks and Mexican-Americans. The district 
court held that this was an independent violation of § 1981 and 
Title VII. The court of appeals did not rule on this question, 
although it relied on the district court’s finding to support the 
quota remedy.

We think it is clear that the mere failure to take affirmative 
steps cannot be an independent violation of either § 1981 or 
Title VII, inasmuch as neither statute by its terms requires 
such affirmative steps. However, we do not dispute the court 
of appeals’ assumption that a bad reputation in the commun­
ity, although not actionable as such, may be an effect of past 
discrimination that will have a continuing impact on the em­
ployment opportunities of minorities in the future. As this 
Court noted in Teamsters v. United States,supra, 431 U.S. at 
365-66, the effect of such a reputation may well be to discour­
age minorities from even applying for work. But the appro­
priately tailored relief for such a condition surely is not a 
racial hiring quota.

A similar problem was faced in Franks v. Bowman Trans­
portation Co., 495 F.2d 398 (5th Cir. 1974), rev'd on other 
grounds, 424 U.S. 747 (1976), where the employer’s practice 
of relying on “ word of mouth” recruiting was found to have 
perpetuated the past discrimination which had created an all-

278



9

white workforce.* In that case the court of appeals required 
the district court to impose a “ recruitment remedy” that 
would compel the employer to take affirmative steps, such as 
placing advertisements for job openings and notifying employ­
ment agencies, to increase the number of minority appli­
cants.**

Assuming that a defendant cooperates with the court’s 
decree in good faith, this type of remedy should be sufficient 
to erase not only the reputation problem but the racial imbal­
ance as well. For, if the chilling effect of past discrimination is 
dissipated through a recruiting campaign and if new job appli­
cants are accorded an equal opportunity to compete for job 
openings, it is reasonable to assume that over a period of time 
the racial imbalance will be adjusted without the interference 
of a court:

“ . . .  it is ordinarily to be expected that nondiscrimi- 
natory hiring practices will in time result in a work force 
more or less representative of the racial and ethnic com­
position of the population in the community from which 
employees are hired.” Teamsters v. United States, su­
pra, 431 U.S. at 340 n. 20.

There is no reason to believe that a recruiting remedy would 
not have been successful in this case. As we noted above, the 
district court found that defendants were not guilty of pur­
poseful discrimination. Moreover, the court found that “ sev­
eral of Defendants’ officials [had] engaged in efforts designed 
to increase the minority representation in the . . . Depart­
ment,” without interference from the Department. Finally, 
the Department’s performance in the years since the hiring 
quota was imposed, in hiring 55% minorities rather than the

* The court in that case described the problem as follows:
“ [WJhen all current employees in a unit are white ‘word-of-mouth 
hiring alone would tend to isolate blacks from the “ web o f  informa­
tion”  which flows around opportunities at the company.’ Although this 
recruiting method is racially neutral in form, in practice it operates as a 
‘ built-in headwind’ to blacks.”  495 F.2d at 419.

** In Teamsters v. United States, supra, 431 U.S. at 365 n. 51, this Court 
specifically approved o f  this type o f  remedy to dispel more subtle forms o f 
continuing discrimination.



10

40% required by the decree, is strong evidence that it would 
have cooperated fully to ensure equal opportunity for minor­
ity applicants in the future.

B. The Plaintiff Class Did Not Contain Identifiable Victim s 
with Live Claims o f Discrimination.

The courts below sought to justify the imposition of a racial 
hiring quota on the ground that it was necessary to remedy an 
“ effect” of past discrimination: viz., the racial imbalance in 
the Department’s work force. In their brief in opposition to 
the petition for certiorari, plaintiffs attempt to support this 
reasoning, arguing that the defendants had been guilty of a 
“ pattern and practice of discriminatory practices that were 
unlawful . . . under § 1981.” Brief at 29.

Neither the courts below nor the plaintiffs have ever argued 
that this past, allegedly illegal conduct had an impact on the 
rights of individual class members. Indeed, it is clear that the 
events constituting the alleged past discrimination must have 
occurred before any of the current plaintiffs (who are all either 
1971 or future applicants) applied for jobs with the Depart­
ment. Plaintiffs concede that no discriminatory acts occurred 
after March, 1972, when Title VII became applicable to the 
Department. As noted above, they stipulated that the 1971 
applicants were not discriminated against in the formulation 
of the 1973 hiring list.

It is also clear that the “ past discrimination” must have 
occurred prior to the cut-off date for § 1981 claims under the 
applicable three-year statute of limitations.* The only “ viola­
tion” even arguably committed after January, 1970 would 
have been the continued use of a hiring list based on the 1969 
written test.** The court of appeals found that, because the 
plaintiff class did not include unsuccessful applicants from

* The statute o f  limitations for actions under § 1981 is borrowed from the 
applicable state statute. Johnson v. Railway Express Agency, 421 U.S. 454, 
462 (1975). The Ninth Circuit has held that under California law a three-year 
statute o f  limitations applies to § 1981 claims. Mills v. Small, 446 F.2d 249 
(9th Cir.), cert, denied, 404 U.S. 991 (1971).

** It is unclear from the record whether there was any hiring in this 
period.

280



11

1969, the class did not have standing to complain about the 
use of that test. 566 F.2d at 1337-38. But even if plaintiffs had 
included unsuccessful 1969 applicants in their class descrip­
tion, it is clear that the 1969 test did not create all, or even a 
significant part of, the racial imbalance that the quota was 
designed to remedy.

On the face of it, plaintiffs’ claim is defective in two re­
spects: first, because no member of the plaintiff class was 
injured by the past discrimination, or will be injured in the 
future by it, the class would seem to be without standing to 
sue to redress the alleged violations, and second, because the 
acts in question were committed prior to the effective date of 
Title VII and outside the applicable statute of limitations 
under § 1981, claims based thereon would seem to be time- 
barred. Plaintiffs, however, argue that they are not bound by 
the ordinary concepts of standing or statutes of limitation. 
They arrive at this extraordinary conclusion by asserting that 
they are acting as “ private attorneys general,” who are suing 
to redress an injury to the public interest rather than a wrong 
done to them individually.

Plaintiffs’ argument assumes that a class of individuals has 
standing to sue to redress injuries inflicted on other individu­
als, simply because the plaintiff class and the victims share a 
common racial or ethnic heritage. This Court, however, has 
never excused private parties from the requirement of estab­
lishing injuries to their own legally cognizable rights. See, 
e.g., Worth v.Selden, 422 U.S. 490, 499(1975): “ [Ejven when 
the plaintiff has alleged injury sufficient to meet the ‘case or 
controversy’ requirement, this Court has held that the 
plaintiff generally must assert his own legal rights and inter­
ests, and cannot rest his claim to relief on the legal rights or 
interests of third parties.”

Moreover, in pattern and practice cases, such as Team­
sters, and class actions, such as Franks, this Court has always 
paid close attention to the requirement that each person who 
asserts a claim for relief must prove that he or she was 
actually a victim of discrimination. A racial hiring quota ig­
nores the need for such individualized compensation in favor 281



12

of wholesale “ relief’ to anyone who happens to be a member 
of the allegedly disfavored group.

Such an approach is fundamentally inconsistent with the 
individual character of the rights guaranteed by § 1981. Sec­
tion 1981 says nothing about the rights of one racial group as 
against another. Rather, it'seeks to ensure that “all persons ” 
have an opportunity to enter into contracts, regardless of the 
color of their skin. See McDonald v. Santa Fe Trail Transpor­
tation Co., 427 U.S. 273 (1976).*

Furthermore, by deflecting concern away from the individ­
ual, the approach urged by plaintiffs would inevitably cause 
the courts to become less interested in preserving the “ equal­
ity of employment opportunities” guaranteed by the civil 
rights laws, Griggs v. Duke Power Co., 401 U.S. 424, 430 
(1971), and more interested in maintaining racial balance. As 
this Court has recently held, however, an individual’s equal 
opportunity rights may not be affected by the racial composi­
tion of the workforce he is seeking to join:

“ It is clear beyond cavil that the obligation imposed by 
Title VII is to provide an equal opportunity for each 
applicant regardless of race, without regard to whether 
members of the applicant’s race are already proportion­
ately represented in the work force.” (Emphasis in origi­
nal.)

Furnco Construction Corp. v. Waters, 98 S. Ct. 2943, 2951
(1978). Any other result would raise the type of concerns 
voiced by Mr. Justice Powell in Regents v. Bakke, 98 S. Ct. 
2733, 2752 (1978). As he noted, preferences for a particular 
group may in turn lead to the need for other preferences: for, 
as preferences “ have their desired effect and the conse­
quences of past discrimination [are] undone, new judicial 
rankings would be necessary.”

Plaintiffs also argue that their status as “ private attorneys 
general” exempts their claims from the statute of limitations.

* As Mr. Justice Stevens stated in Los Angeles v. Manhart, 98 S. Ct. 
1370, 1375 (1978), in construing similar language in Title VII: “ The statute’ s 
focus on the individual is unambiguous. It precludes treatment o f individu­
als as simply components o f  a racial, religious, sexual or national class.”



13

In support of this argument plaintiffs cite three court of ap­
peals cases* holding that “ pattern and practice” suits brought 
by the EEOC under Title VII are not barred by a state statute 
of limitations, because the statute does not apply to suits 
brought on behalf of the sovereign. In Occidental Life Ins. Co. 
v. EEOC, 432 U.S. 355 (1977), this Court agreed with the 
lower courts that the EEOC is not subject to a state statute of 
limitations in such suits. But it did not base its decision on the 
EEOC’s status as a representative of the public interest. 
Rather, the Court found support for its decision in the legisla­
tive history of the amendment extending the power to sue to 
the EEOC and in the procedural protections afforded poten­
tial defendants by the EEOC’s notice procedures.

There is no comparable legislative history to indicate that 
plaintiffs in this case should be similarly exempted from the 
ordinary limitations rules; nor were defendants in this case 
protected from stale claims by any type of notice procedures 
comparable to those employed by the EEOC. Moreover, 
there are clear policy reasons for not allowing a plaintiff to 
circumvent the statute of limitations in order to accelerate the 
elimination of a racial imbalance that resulted from a history 
of discrimination.

Under Title VII a court is prohibited from imposing a quota 
for the sole purpose of curing a racial imbalance resulting 
from pre-Act discrimination. The legislative history of Title 
VII indicates that its effect was to be prospective only. As an 
interpretive memorandum placed in the record by the spon­
sors of the bill stated:

“ if a business has been discriminating in the past and as a 
result has an all-white working force, when the title 
comes into effect the employer’s obligation would be 
simply to fill future vacancies on a nondiscriminatory 
basis. He would not be obliged— or indeed, permitted—  
to fire whites in order to hire Negroes, or to prefer Ne­
groes for future vacancies, or, once Negroes are hired, to

* EEOC v. Occidental Life Ins. Co., 535 F.2d 533, 537-40 (9th Cir. 1976), 
aff’d, 432 U.S. 355 (1977); EEOC v. Griffin Wheel, 511 F .2d 456,458-59 (5th 
Cir. 1975); EEOC v. Kimberly Clark Corp., 511 F.2d 1352, 1359-60 (6th Cir. 
1975). See Plaintiffs Brief in Opposition to the Petition for Certiorari at 30.



14

give them special seniority rights at the expense of the 
white workers hired earlier.” 110 Cong. Rec. 7213 (1964).

See also Teamsters v. United States, supra, 431 U.S. at 356- 
57, where this Court held that ‘ ‘Those employees who 
suffered only pre-Act discrimination are not entitled to relief, 
and no person may be given retroactive seniority to a date 
earlier than the effective date of the Act.”

The same principle applies to a racial imbalance in the 
workforce of a public employer that had discriminated prior to 
March 1972 when Title VII first became applicable to it:

“ A public employer who from [the Act’s effective date] 
forward made all its employment decisions in a wholly 
nondiscriminatory way would not violate Title VII even if 
it had formerly maintained an all-white work force by 
purposefully excluding Negroes.” (Emphasis added.) 
Hazelwood School Dist. v. United States, 433 U.S. 299, 
309 (1977).

In a footnote to Hazelwood, id. at 309 n. 15, the Court pointed 
out that the school district had been subject to the commands 
of the Fourteenth Amendment during the entire period when 
the past discrimination had occurred. Yet the Court held that, 
even if the school district had violated the Constitution, the 
pre-Act conduct could not be remedied under Title VII.

A racial imbalance caused by unlawful acts committed out­
side the the applicable statute of limitations under § 1981 
should be treated in the same way that a racial imbalance 
resulting from pre-Act discrimination is treated for Title VII 
purposes. As this Court stated in United Air Lines, Inc. v. 
Evans, 431 U.S. 553, 558 (1977):

“ A discriminatory act which is not made the basis for a 
timely charge is the legal equivalent of a discriminatory 
act which occurred before the statute was passed. It may 
constitute relevant background evidence in a proceeding 
in which the status of a current practice is at issue, but 
separately considered, it is merely an unfortunate event 
in history which has no present legal consequences.”

To uphold the imposition of a racial hiring quota in this case, 
where its sole purpose is to erase an historically caused racial

284



15

imbalance, would be to reach back into the past to remedy a 
series of “ unfortunate eventfs]” * which should not have 
“ present legal consequences.”

C. The Racial Quota Fails to Consider the Interests of Innocent 
Third Parties.

If there had been identifiable victims of actionable discrimi­
nation in this case, the district court would have been required 
under this Court’s decisions in Teamsters v. United States, 
supra, 431 U.S. 324, and Franks v. Bowman Transportation 
Co., supra, 424 U.S. 747, to undertake the “ delicate task of 
adjusting the remedial interests of discriminatees and the 
legitimate expectations” of other persons “ innocent of any 
wrongdoing.” Teamsters v. United States, 431 U.S. at 372. 
The district court failed even to recognize that it had this 
responsibility, and instead imposed a drastic quota remedy 
without discussion.

Where there is a close connection between an actionable 
injury to an identifiable victim and the relief proposed, a court 
may be justified in ultimately concluding that the need to 
compensate the victims outweighs the legitimate expectations 
of innocent white workers and applicants. But where the 
connection is as attenuated as it is in this case, the expecta­
tions of innocent individuals must take priority. As Mr. Jus­
tice Powell recognized in Bakke:

"All state-imposed classifications that rearrange burdens 
and benefits on the basis of race are likely to be viewed 
with deep resentment by the individuals burdened. The 
denial to innocent persons of equal rights and opportuni­
ties may outrage those so deprived and therefore may be 
perceived as invidious. These individuals are likely to 
find little comfort in the notion that the deprivation they 
are asked to endure is merely the price of membership in 
the dominant majority and that its imposition is inspired 
by the supposedly benign purpose of aiding others.” 
(Emphasis in original.) 98 S. Ct. at 2751 n. 34.

* In this case there was no proof o f  any past instances o f  discrimination. 
The district court, however, presumed from the racial imbalance itself that 
there must have been such discrimination.

285



16

If the quota is upheld in this case, for the next ten years 
white applicants for the position of a fire-fighter in the Los 
Angeles County Fire Department will be denied the opportun­
ity to compete for 40% of the available positions, solely on 
account of their race. Surely such a drastic curtailment of the 
equal opportunity rights of innocent individuals who happen 
to be white* cannot be justified in the absence of a showing 
that it is necessary to protect the rights of identifiable victims.

D. The Quota Violates Equal Protection and Due Process Prin­
ciples.

Although this Court need not reach constitutional due proc­
ess and equal protection principles in order to set aside the 
decree, we submit that the racial quota violates those princi­
ples as well. As Mr. Justice Powell stated in Bakke:

“ It suffices to say that ‘[o]ver the years, this Court con­
sistently repudiated “ [djistinctions between citizens 
solely because of their ancestry” as being “ odious to a 
free people whose institutions are founded upon the doc­
trine of equality.” ’ Loving v. Virginia, 388 U.S. 1, 
11 . . . quoting Hirabayashi, 320 U.S., at 100.” 98 S. Ct. 
at 2750.

*  *  *  its

“ This Court has not sustained a racial classification since 
the wartime cases of Korematsu v. United States, 323 
U.S. 214 . . . and Hirabayashi v. United States, 320 U.S. 
81 . . . involving curfews and relocations imposed upon 
Japanese-Americans.’ ’ 98 S. Ct. at 2752 n. 37.

This is certainly not the case in which the Court should 
embark upon a new course of constitutional law which would 
have the effect of resurrecting pernicious doctrines under 
which the Government, and in particular the judiciary, is 
allowed to classify people solely on the basis of their race.

* It is clear that § 1981— the only statute under which plaintiffs seek to 
justify the quota— is an equal protection statute intended to protect white 
persons, as well as members o f minority groups. McDonald v. Santa Fe 
Trail Transportation Co., 427 U.S. 273 (1976).

286



17

CONCLUSION
The racial quota hiring decree has no valid basis in law or 

public policy. To the extent that the lowerfederal courts have 
imposed such remedies, they are out of step with the deci­
sions of this Court and the requirements of our legal system. 
The judgment below, to the extent it imposed a racial hiring 
quota, should be reversed.

Respectfully submitted,

Robert A. Helman
M ichele O dorizzi 

Attorneys for Amicus Curiae 
231 South LaSalle Street 
Chicago, Illinois 60604

Of Counsel:
A rnold Forster 
Jeffrey P. S inensky 
Richard A. W eisz 
Anti-Defamation League 

of B’nai B’rith 
315 Lexington Avenue 
New York, New York 10016

MAYER, BROWN & PLATT 
231 South LaSalle Street 
Chicago, Illinois 60604

287





In The

Supreme Olmtrt irf %  States
October Term, 1977

No. 77-1553

County of Los A ngeles; Board of Supervisors of 
the County of Los A ngeles; and Civil Service 
Commission of the County of Los A ngeles,

P e tit io n e r s ,
v.

V a n  Davis, Hershel Clady and Fred Vega, indi­
vidually and on behalf of all others similarly situ­
ated, W illie C. Bursey, Elijah Harris, James
W. Smith, W illiam Clady, Stephen Haynes, 
Jimmie Roy Tucker, Leon Aubry, Ronald Craw­
ford, James Heard, A lfred R. Baltazar, Osbaldo
A. Amparah, individually and on behalf of all 
others similarly situated,

R esp o n d en ts . ■

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL

Robert E. W illiams 
Douglas S. McDowell 
Jeffrey A. Norris

McGuiness & W illiams
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006





TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ............. . 2

STATEMENT OF THE CASE ...... .... ...... ..................  3

SUMMARY OF ARGUMENT ___________ _______ 6

ARGUMENT ......... ................ ....... ................ ....... ........  9

I. The Standard of Proof For § 1981 Claims Should 
Be The Fourteenth Amendment Purposeful Dis­
crimination Standard Established In Washing­
ton v. Davis Rather Than The Title VII Dis­
proportionate Impact Standard Announced in 
Griggs V. Duke Power Co.............. ...... ...... ........  9

A. The Equal Protection Clause of the Four­
teenth Amendment and § 1981 are Correla­
tive Provisions Which Should Require The 
Same Standard of P roo f....... ................ ......  10

B. The Conclusion in Washington V. Davis That
Disproportionate Impact Alone Does Not 
Constitute A Denial Of Equal Protection Is 
Dispositive Of The § 1981 Allegations In This 
Case ..... ...... .............. ............ ....... ................ . 22

C. Application Of The Disproportionate Impact
Standard To § 1981 Would Undermine Sub­
stantially Both Washington V. Davis And The 
Title VII Enforcement Scheme___________ 29

II. The Ninth Circuit’s Quota Remedy Is Inappro­
priate .......... ...... ............ ...... .............. ...........  32

A. The Courts’ Remedial Authority Is Not Un­
limited, But Is Restricted To Remedying 
Specific Violations Found_________________  32

B. Workforce Racial Imbalance Alone Will Not
Support The Quota Remedy__________ ___  38

C. The Court’s Remedial Order Lacks Judicial
Support ______  _ 41

CONCLUSION  ................ ............. ....... ...ZZZZ] 44

Page

291



II

AUTHORITIES CITED
Cases: Page

Agnewv. City of Compton, 239 F.2d 226 (9th Cir.
1956), cert, denied, 353 U.S. 959 (1957) ______  25

Albemarle Paper Co. V. Moody, 422 U.S. 405
(1975)        32

Alexander V. Gardner-Denver Co., 415 U.S. 36
(1974) .......... .... ....... .......... ........ ......... ............ . 18

Arnold V. Ballard,------ F.2d------- , 12 EPD (CCH)
para. 11,224 (6th Cir. 1976) ..... .....  10

Basista V. Weir, 340 F.2d 74 (3d Cir. 1965) _____ 24
Blount V. Xerox Corp., 405 F. Supp. 849 (N.D.

Cal. 1975) _________ __ _____ _____ ________ _ 40
Boston Chapter, NAACP, Inc. V. Beecher, 504 F.2d 

1017 (1st Cir. 1974), cert, denied, 421 U.S. 910
(1975) ____ ________ ______ ______ __________ _ 43

Broussard V. IUOE Apprenticeship Committee,
— — F. Supp. ------ , 10 FEP Cases 780 (D.C.
Md. 1964) ...... .................. ............... ......... .... ......  40

Buchanan V. Warley, 245 U.S. 60 (1917) ....... ....12,14,16
Chance v. Board of Examiners, 534 F.2d 993 (2d 

Cir. 1976), mod. on other grounds, 534 F.2d
1007, cert, denied, 431 U.S. 965 (1977) .......... . 19

Chicano Police Officer’s Assn. V. Stover, 552 F.2d
918 (10th Cir. 1977) ................... .......................  10

Cincinnati, N.O. & T.P.R. Co. v. Kentucky, 115
U.S. 321 (1885) ___ ______ ____________ ___ _ 22

Civil Rights Cases, 109 U.S. 3 (1883) __________  13
Corrigan V. Buckley, 271 U.S. 323 (1926) _______  13
Croker v. Boeing Co., 437 F. Supp. 1138 (E.D. Pa.

1977) ---------------------- ------ -------------------------- 10,24,30
Crockett V. Green, 388 F. Supp. 912 (E.D. Wis.

1975), aff’d., 534 F.2d 715 (7th Cir. 1976) _____ 42
Dayton Board of Education V. Brinkman, 433 U.S.

406 (1977) _______ ____________________ __ _ 8,40
Detroit Police Officers Ass’n V. Young, 446 F. Supp.

979 (E.D. Mich. 1978), appeal pending, No. 78-
1163 (6th Cir.) ______________ _____________  38

Dickerson V. United States Steel Corp., No. 73-
1292 (E.D. Pa. August 2, 1978) ______ ______ 10, 40

292



Ill

EEOC V. Delta Airlines, Inc.,------  F.Supp. ------ ,
14 EPD (CCH) par. 7738 (N.D. Ga. 1977) .... . 36

EEOC V. IUOE Locals U  & 15, 553 F.2d 251 (2d
Cir. 1977) _______ ______ _____ __________ ____ 33

EEOC V. Local 638, 532 F.2d 821 (2d Cir. 1976).... 42
EEOC V. Sherwood Medical Industries, ------■

F.Supp. ------ , 17 FEP Cases 441 (M.D. Fla.
1978) ____________ _____________________ _ 31

East Texas Motor Freight Systems, Inc. V. Rod­
riguez, 431 U.S. 395 (1977) ............. ..... ........ . 3,34

Fitzpatrick V. Bitzer, 427 U.S. 445 (1976) _______  18
Franks V. Bowman, Transportation Co., Inc., 424

U.S. 747 (1976) _____ ______ _____ ______ 18,27,33,37
Fumco Construction Corp, v. Waters, ——  U.S.

------ , 46 U.S.L.W. 4966 (1978) ..... ....3, 9, 32, 33, 38, 39
Gardner v. Westing house Broadcasting Co., ------

U.S.------ -, 46 U.S.L.W. 4761 (1978) __________  3
Gibson V. Mississippi, 162 U.S. 565 (1896) ......... . 17,24
Griggs v. Duke Power Co., 401 U.S. 424 (1971).... 4, 9,

18, 38
Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973).. 42
Hazelwood School Dist. et al. V. U.S., 433 U.S. 299

(1977)  ............ ................................... ..........  39
Heart of Atlanta Motel, Inc. V. U.S., 379 U.S. 241

(1964) ______________________________ ___ _ 18
Hinton V. Lee Way Motor Freight, Inc., 412 F.

Supp. 625 (W.D. Okla. 1975) ...................... . 19
Hodges V. United States, 203 U.S. 1 (1906) ..........  13
Hurd V. Hodge, 334 U.S. 24 (1948) ....... ........ ...13,14, 21
Int’ l Brotherhood of Teamsters V. United States,

431 U.S. 324 (1977) __________ _______ ____36, 37, 39
Johnson v. Alexander, 572 F.2d 1219 (8th Cir.

1978) _____________ ___________________ ____ _ 25
Johnson v. Raihvay Express Agency, Inc., 421 U.S.

454 (1975) _____ ______ ___ ____.10,11,17,19,21,30
Jones V. Alfred H. Mayer Co., 392 U.S. 409 (1968).. 11,13,

14,15, 20, 28

AUTHORITIES CITED— Continued
Page

293



IV

AUTHORITIES CITED— Continued
Page

Kinsey V. First Regional Securities, Inc., 557 F.2d
830 (D.C. Cir. 1977).............................................  10

Kirkland V. N.Y. State Dept, of Correctional Serv­
ices, 520 F.2d 420 (2d Cir. 1975), rehrg. en banc 
denied, 531 F.2d 5, cert, denied, 429 U.S. 823
(1976) ........ ........ ........... ........ ............. ........ 9,10, 42, 44

League V. City of Santa Ana, 410 F. Supp. 873
(C.D. Cal. 1976) _____ ___________________ ___ _ 10

Lewis V. Bethlehem Steel Corp., 440 F. Supp. 949
(D. Md. 1977) _________ ______ ___ ________ 10,25,27

Lewis V. Tobacco Workers, ------  F.2d —-—, 17
FEP Cases 622 (4th Cir. 1978) ........ .......... ...... . 36

Local 60, Carpenters v. N.L.R.B., 365 U.S. 651
(1961) _____________________ ____ _________ 32

Long V. Ford Motor Co., 496 F.2d 500 (6th Cir.
1974) ........... ........... ................ .............................. 39-40

McDonald V. Santa Fe Transportation Co., 427
U.S. 273 (1976) _____ _______________ ______  11

McDonnell Douglas Corp. V. Green, 411 U.S. 792
(1973) ...... .......... ...... ............ ...................... ....... . 18,39

McLaughlin V. Florida, 379 U.S. 184 (1964) ..........  17, 24
Milliken V. Bradley, 418 U.S. 717 (1974) ..........8-9, 32, 33
Morrow V. Crisler, 491 F.2d 1053 (5th Cir. 1974)

{en banc), cert, denied, 419 U.S. 895 (1974)___ 43
NAACP V. Allen, 493 F.2d 614 (5th Cir. 1974).... 43
Occidental Life Insurance Co. V. EEOC, 432 U.S.

355 (1977) ............ ...............................................  31
Ortiz V. Bach, ------ F. Supp, ------- , 14 FEP Cases

1019 (D. Col. 1977) _____ ____________________  10
Ostapowicz V. Johnson Bronze Co., 541 F.2d 394 

(3d Cir. 1976), cert, denied, 429 U.S. 1041, reh.
denied, 430 U.S. 911 (1971) ... ............ ...... .........  42

Patterson V. American Tobacco Co., 535 F.2d 
257 (4th Cir. 1976), cert, denied, 429 U.S. 920
(1977) ....... ......... ............. ........ ....... ........... ......19, 31, 42

Republic Steel Corp. V. N.L.R.B., 311 U.S. 7
(1940) ............. ...... ........ ........... ...... ........... ........  32

294



V

Resident Advisory Board V. Rizzo, 564 F.2d 126 
(3d Cir. 1977), petition for cert, filed, 46 U.S.
L.W. 3403 (U.S. Nov. 28, 1977) (No. 77-762).... 9

Runyon V. McCrary, 427 U.S. 160 (1976)....11,12,17, 24
Shelly V. Kramer, 334 U.S. 1 (1948) ................... 21, 22
Spencer v. Kugler, 404 U.S. 1027 (1972) ________  41
Strauder v. West Virginia, 100 U.S. 303 (1879).... 16, 27 
Swann V. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971)... ........... ......................... 32,41
The Regents of the University of Calif. V. Allan 

Bakke, —  U.S. — , 48 U.S.L.W. 4896
(1978)  .......................... ......... .................... .....3,31,38

Tillman V. Wheaton-Haven Recreation Ass’n., 410
U.S. 431 (1973) .......... ....... .......... ..11,12,14,15,16, 20

United Air Lines V. Evans, 431 U.S. 553 (1977).... 3, 35
United States V. Burr, 25 Fed. Cas. 3 0 ..... .............  32
United States v. City of Chicago, 549 F.2d 415 (7th

Cir. 1977) .... .......... ......... .............. ......... ........ . 10,42
United States V. Lathers, Local U6, 471 F.2d 408

(2d Cir. 1973) _____________ ______ __________  43
United States V. Wong Kim Ark, 169 U.S. 649

(1898)  ........ ........ .................. ...............13, 15,16,23
Van Davis, et al. V. County of Los Angeles, et al.,

566 F.2d 1334 (C.A. 9 1977) _________________  4
Veizaga v. National Board for Respitory Therapy,

------ F. Supp.------- , 13 EPD (CCH) par. 11,525
(N.D. 111. 1977) ___________ _____ _________ ___  io

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252
(1977) ............... ....... ......... ............... ................... 25

Wade v. Mississippi Cooperative Extension Serv­
ice, 528 F.2d 508 (5th Cir. 1976) ................... . 9-10

Washington V. Davis, 426 U.S. 229 (1976) ......... . 4, 6, 7,
9, 20, 22, 24, 25, 26, 28, 29, 30 

Waters V. Wisconsin Steel Works, 502 F.2d 1309 
(7th Cir. 1974), cert, denied, 425 U.S. 997 
(1976) .... ......... .......... ............. ............................. 19

AUTHORITIES CITED— Continued
Page

295



VI

Weber V. Kaiser Aluminum & Chemical Co., 563 
F.2d 216 (5th Cir. 1977), pet. for rehg. denied,

AUTHORITIES CITED— Continued
Page

571 F.2d 337 ..... ......... ..... ....................... ...........  38
Western Addition Community Org. V. Alioto, 514 

F.2d 542 (9th Cir. 1975), cert, denied, 423 U.S.
994 (1975) ____ _______ _____ ______________  43

White V. Carolina Paperboard Corp., -— - F.2d 
— , 16 FEP Cases 44 (4th Cir. 1977) _............  42

Constitution and Statutes:

U.S. Const. Art. I, § 8, cl. 31 ..... ..... ................ 18
The Thirteenth Amendment....... ................ ........ 12,13, 27
The Fourteenth Amendment ------ ---------- 3, 4, 6, 9,10,11,

13,14,16,18, 21, 22, 24, 30
Section 1 .......................... —.......... .......... ..... — 13
Section 5 __________ ___ ______ ______ _____  13,18

Civil Rights Act of 1866 [14 Stat. 27]-----------------  14
Section 1 ...................................... 11,13,15, 20, 23, 28

Civil Rights Act of 1964
Title VII, 42 U.S.C, § 2000e et seq...... .....2, 3, 4, 5, 6,

7, 8, 9,17,18,19, 20, 27, 29, 30, 31, 39 
Section 706(e), 42 U.S.C. §2000e-5(e) .......  31

Civil Rights Act of 1968 [82 Stat. 81]
Title VIII, 42 U.S.C. § 3601 et seq-------------- - 20

Voting Rights Act of 1870 [16 Stat. 144] ..... .........  11,14
Section 16 _______________ _______ 11,14,15,16, 23
Section 18 ......................................................14,16, 23 42

42 U.S.C. § 1981 ------ ---------- ---------------------------- passim
42 U.S.C. § 1982 ....... ......... ............ ........ 12, 20, 21, 26, 28
42 U.S.C. § 1983 ......... ..... ... ....................... ...........  3, 4
Revised Statutes § 1977 ________________15,16, 21, 23, 24
District of Columbia Code § 1-320 ........................... 20

296



VII

AUTHORITIES CITED— Continued

L e g i s l a t i v e  M a t e r i a l s :  Page
111 Cong. Rec. 7202-7212 (1964) ... ... ... 18
118 Cong. Rec. 3371-3373 (1972) .. ....... 17
Cong. Globe, 39th Cong., 1st Sess. 77 (1866).... 28

474 ____   23
476 ....     23

1293-1294 .......   24
M i s c e l l a n e o u s :  ,

16 Am Jur 2d, Const. Law § 144 (1964) ___ __ 22
R. Berger, Government By  Judiciary, T he 

Transformation of the Fourteenth A mend­
ment (1977) ...      14

H. Flack, T he Adoption of the Fourteenth
A mendment (1908) _________    12

H. Graham, Everyman ’s Constitution (1968) .... 13-14 
McDowell and Huhn, N L R B  R e m e d i e s  f o r  U n f a i r  

L a b o r  P r a c t i c e s  Industrial Research Unit, The 
Wharton School, University of Pennsylvania
(1976) ...........      33

McGuiness, P r e f e r e n t i a l  T r e a t m e n t  i n  E m p l o y ­

m e n t — A f f i r m a t i v e  A c t i o n  o r  R e v e r s e  D i s c r i m i ­

n a t i o n ?  (1977) ...................    44

297





In T he

kapron? (Eanxt a t %  Itttttfi
October Term, 1977

N o. 77-1553

County of Los A ngeles; Board of Supervisors of 
the County of Los A ngeles; and Civil Service 
Commission of the County of Los A ngeles,

Petitioners,
v.

Van Davis, Hershel Clady and Fred Vega, indi­
vidually and on behalf of all others similarly situ­
ated, W illie C. Bursey, Elijah Harris, James
W. Smith , W illiam Clady, Stephen Haynes, 
Jimmie Roy Tucker, Leon Aubry, Ronald Craw­
ford, James Heard, Alfred R. Baltazar, Osbaldo 
A. A mparah, individually and on behalf of all 
others similarly situated,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF A M I C U S  C U R I A E  OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL

299



2

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae of the Equal Employment 
Advisory Council ( “ EEAC” ) is submitted pursuant 
to the written consent of all parties,1 and in support 
of the petitioners, EEAC is a voluntary nonprofit 
association organized as a corporation under the laws 
of the District of Columbia to represent and promote 
the common interest of employers and the general 
public in the development and implementation of 
sound government policies, procedures and require­
ments pertaining to nondiscriminatory employment 
practices. Its membership comprises a broad seg­
ment of the employer community in the United States, 
including both individual employers and trade and 
industry associations whose employer-members have 
a common interest in the foregoing purpose. Its gov­
erning body is a Board of Directors composed pri­
marily of experts and specialists in the field of equal 
employment opportunity whose combined experience 
gives the Council a unique depth of understanding 
of the practical and legal considerations relevant to 
the proper interpretation and application of EEC 
policies and requirements.

Substantially all of E El AC’s members, or their con­
stituents, are employers subject to the provisions of 
Title V II  of the Civil Rights Act of 1964 (42 U.S.C. 
§ 2000e, et seq.) and 42 U.S.C. § 1981 as well as other 
equal employment statutes and regulations. As such, 
they have a direct interest in the issues presented for 
the Court’s consideration in the instant case— i.e.,

1 Their consents have been filed with the Clerk of the Court.

300



3

whether proof of a purposeful intent to discriminate 
is necessary to establish a violation of § 1981, and 
whether imposition of a racial hiring quota was an 
appropriate remedy.

Because of its interest in issues pertaining to equal 
employment, EEAC has sought and been granted per­
mission by this Court to file briefs as Amicus Curiae 
in a number of other recent cases raising important 
related issues. See e.g., The Regents of the University
of California v. Allan Bakke,-------U .S .--------, 48 U.S.
L.W. 4896 (1978); Furnco Construction Corporation
v. Waters,-------U.S. —— , 46 U.S.L.W. 4966 (1978);
Int’l Brotherhood of Teamsters v. United States, 431 
U.S. 324 (1977); East Texas Motor Freight Systems, 
Inc., v. Rodriguez, 431 U.S. 395 (1977); United Air 
Lines, Inc. v. Evans, 431 U.S. 553 (1977); and 
Gardner v. Westinghouse Broadcasting Company, 
— _  U.S. -------, 46 U.S.L.W. 4761 (1978).

STATEMENT OF THE CASE
As part of the selection process for entry-level 

firefighters, petitioner County of Los Angeles imposed 
a 5'7" height requirement on all applicants and, in 
August of 1969 and January of 1972, administered 
written verbal aptitude tests. On January 11, 1973, 
respondents herein filed a class action complaint on 
behalf of themselves and all present and future—  
but not past— black and Mexican-American applicants 
for positions as firemen alleging that petitioners had 
been guilty of racial discrimination in hiring in viola­
tion of: (1) the Fourteenth Amendment, (2) Title 
VII of the Civil Rights Act of 1964, and (3) 42 
U.S.C. §§ 1981 and 1983.

301



4

The district court found that there existed a racial 
imbalance in the fire department resulting, at least 
in part, from the 1969 and 1972 use of unvalidated 
written tests having a disproportionate impact on mi­
nority applicants. The height requirement was deter­
mined to be “ substantially and reasonably related to 
job performance as a fireman,”  and therefore valid. 
Without specifying which of the alleged constitu­
tional and statutory provisions had been violated—  
and in spite of a finding that none of the petitioners 
had acted with “ a willful or conscious purpose”  of 
excluding minorities from employment— the district 
court imposed a hiring quota of one black and one 
Mexican-American applicant for every three white 
applicants until racial parity with the surrounding 
population was achieved.

The Ninth Circuit (Judge Wallace dissenting)2 
significantly pruned the scope of the district court’s 
findings. Since no purposeful or intentional dis­
crimination had been established, the Fourteenth 
Amendment and § 1983 violations were reversed on 
the basis of Washington v. Davis, 426 U.S. 229 
(1976). The Court also reversed all violations 
pertaining to the 1969 test on the basis that since 
neither the individual claimants nor any members 
of the class had been adversely affected by that ex­
amination, they lacked standing to challenge its va­
lidity. Because the 1972 test was administered before 
Title VII became applicable to municipalities, and 
since the results of the test were never actually used

2 V a n  D a v i s ,  e t  a l . V. C o u n t y  o f  L o s  A n g e l e s ,  e t  al., 566 F.2d 1334 (C.A. 9 1977).

302



5

in the selection process,13 the Title VII violation predi­
cated thereon was limited to the “ continued threat” 
that the test might one day be used.

The Ninth Circuit did, however, affirm the § 1981 
violations which were predicated upon the 1972 test 
and the height requirement. The court concluded 
that since these unvalidated selection devices had 
an adverse impact upon minorities, § 1981 violations 
had been established under the principles announced 
in Griggs v. Duke Power Co., 401 U.S. 424 (1971). 
The court thus held that a prima facie case of em­
ployment discrimination under § 1981 could be es­
tablished in the absence of an intent to discriminate.

The court of appeals also approved the imposition 
of a remedial hiring quota despite respondents’ lack 
of standing to challenge practices predating their em­
ployment applications and despite their concession that 
all post-application selection procedures had been non- 
discriminatory. Moreover, the court did not disturb 
the district court’s findings that petitioners (1) did 
not act with a “ willful or conscious purpose of ex­
cluding [minorities] from employment,” and (2) “ did 
not interfere with affirmative action efforts of in­
dividual persons designed to increase [minority] par­
ticipation rates in the work force.” Nevertheless, the 
Ninth Circuit approved the imposition of a remedial 
hiring quota “ to overcome the presently existing ef­
fects of past discrimination within a reasonable per­
iod of time”— effects which, by definition, were the 3 *

3 In an amended complaint respondents conceded that all
post-1972 hiring was nondiscriminatory.

303



6

result of conduct— specific nature unproven— which 
predated the employment applications of all class 
members.

SUMMARY OF ARGUMENT
The Ninth Circuit’s determination that a § 1981 

violation can be established in the absence of an in­
tent to discriminate is legally unsound and, as a 
practical matter, will seriouslly jeopardize efficient 
enforcement of the federal equal employment oppor­
tunity program.

Section 1981 was enacted, at least in part, to codify 
the equal protection clause of the Fourteenth Amend­
ment. In contrast, Title VII is designed to supple­
ment pre-existing judicial relief available under 
§ 1981 and the Fourteenth Amendment with broad 
administrative relief against a wide range of em­
ployment discrimination practices. Given the correla­
tive relationship between § 1981 and the Fourteenth 
Amendment— a relationship not shared with Title VII 
— the standard of proof for § 1981 claims should be 
consistent with that established for Fourteenth 
Amendment claims.

Section 1981, by guaranteeing to all persons “ the 
same right . . .  to make and enforce contracts . . . 
as is enjoyed by white citizens”  is fundamentally an 
equal protection statute. In Washington v. Davis 
this Court professed difficulty in understanding how 
a racially neutral qualification for employment—  
there, as here, an aptitude test— could violate equal 
protection guarantees “simply because a greater pro­
portion of Negroes fail to qualify than members of 
other racial or ethnic groups.”  426 U.S. at 245. The 
Court observed that unsuccessful Negro applicants

304



7

had no greater claim to the denial of equal protec­
tion than did unsuccessful white applicants. Similarly 
in this case, white applicants who failed the 1972 ex­
amination were subject to the same disqualification 
from contracting with petitioners as were unsuccess­
ful minority applicants. It cannot be said, therefore, 
that the minority applicants were denied “ the same 
right”  to contract as white applicants even assuming 
a higher minority failure rate.

Finally, applying the less stringent Title VII bur­
den of proof to § 1981 claims would have the prac­
tical effect of undermining both this Court’s decision 
in Washington v. Davis and the major goals sought 
to be accomplished by Congress through enactment 
of Title VII. In Washington v. Davis, this Court re­
fused to apply the “ disproportionate impact” standard 
of proof to equal protection claims for fear of jeopard­
izing “ a whole range of tax, welfare, public service, 
regulatory, and licensing statutes that may be more 
burdensome on the poor and to the average black than 
to the more affluent white.” 426 U.S. at 248. Since 
the equal protection clause of the Fourteenth Amend­
ment and § 1981 are substantively coextensive, the 
Ninth Circuit’s ruling simply guarantees through 
§ 1981 claims the very result sought to be avoided 
by this Court in requiring a higher standard of proof 
for Fourteenth Amendment claims.

_ Similarly, Congress sought through enactment of 
Title VII to encourage the prompt and voluntary con­
ciliation of employment discrimination claims. Ac­
cordingly, Title VII has a relatively short statute of 
limitations and mandates administrative conciliation 
efforts prior to commencement of suit. In contrast,

305



8

§ 1981 imposes no preconditions to suit and authorizes 
longer limitations periods. If the Ninth Circuit is 
correct that in terms of standards of proof “ there 
remains no operational distinction . . . between li­
ability based upon Title VII and § 1981,”  566 F.2d 
at 1340, claimants will be able to defy Congres­
sional desire and circumvent Title VII conciliation 
and limitation requirements simply by alleging § 1981 
claims instead.

In any event, in view of the limited post-1971 
violations which it found, “ the Court of Appeals 
simply had no warrant . . . for imposing the system- 
wide remedy which it apparently did. Dayton Board 
of Education v. Brinkman, 433 U.S. 406, 417 (1977). 
The only violations seen by the Ninth Circuit were 
the County’s unfulfilled decisions to use the 1972 
written test as a selection device and to utilize the 
height requirement. As Judge Wallace pointed out, 
the respondents’ conceded that “ the post-March 1972 
discrimination . . . had no ‘effects’.”  566 F.2d at 
1352. In addition, the majority below ruled that 
none of the named or putative class members had 
standing to attack any employment practices pre­
dating their 1971 employment applications. As a 
result, the work force statistics upon which the Ninth 
Circuit predicated the quota necessarily were the 
result of pre-1971 hiring practices, since no firemen 
were hired thereafter until after the complaint was 
filed. These statistics bear no relevance to the viola­
tions found or the remedy imposed.

Lacking an appropriate violation upon which to 
base its remedy, the quota remedy was outside the 
court’s equitable authority, Milliken v. Bradley, 418

306



9

U.S. 717, 744 (1974), and in contrast with the vast 
majority of courts which have viewed quotas as an 
extreme remedy which may only be imposed where 
no adequate relief can be obtained without their use. 
See e.g., Kirkland v. New York State Department of 
Correctional Services, 520 F.2d 420, 427 (2d Cir. 
1975), reh’g en banc denied, 531 F.2d 5, cert, denied, 
429 U.S. 823 (1976). Seen in this light, the remedial 
order below is at odds with this Court’s prior ruling 
that an employer’s hiring obligation “ is [only] to 
provide an equal opportunity for each applicant re­
gardless of race, without regard to whether members 
of the applicant’s race are already proportionately 
represented in the workforce.”  Furnco Construction
Corp. v. Waters, ----- - U.S. -------, 46 U.S.L.W. 4966,
4970 (1978) (Emphasis in original).

ARGUMENT
I. The Standard of Proof For § 1981 Claims Should Be 

The Fourteenth Amendment Purposeful Discrimina­
tion Standard Established In W a s h i n g t o n  v. D a v i s  

Rather Than The Title VII Disproportionate Impact 
Standard Announced In G r i g g s  v. D u k e  P o w e r  C o .

In predicating a § 1981 violation upon the basis 
of a Title VII “ disproportionate impact”  finding alone, 
the Ninth Circuit has parted company with six other 
circuits which have either held or implied that the 
burden of proof under § 1981 is to be measured in 
accordance with the more stringent Fourteenth 
Amendment standard set forth in Washington v. 
Davis.* Under that standard an employment practice 4

4 Third: R e s i d e n t  A d v i s o r y  B o a r d  V. R i z z o , 564 F.2d 126, 
140-145 (3d Cir. 1977), p e t i t i o n  f o r  c e r t ,  f i l e d , 46 U.S.L.W. 
3403 (U.S. Nov. 28, 1977) (No. 77-762); W a d e  V. M i s s i s s i p p i

307



10

is u n law fu l on ly  i f  intentional o r  p urposefu l d iscr im i­
nation  can  be established. A s  show n below , there are 
sound legal and  p ractica l reasons f o r  reversin g  the 
N inth  C ircu it.

A. The Equal Protection Clause of the Fourteenth 
Amendment and § 1981 are Correlative Provisions 
Which Should Require the Same Standard of Proof.

In the course o f  in terp retin g  § 1 9 8 1 5 this C ou rt has 
on several occasions in recent years exam ined its con -

C o o p e r a t i v e  E x t e n s i o n  S e r v i c e , 528 F.2d 508, 518 (5th Cir.
1976) ; Sixth: A r n o l d  V. B a l l a r d , -- F.2d ---, 12 EPD
(CCH) par. 11,224 (6th Cir. 1976) (Upon remand, the dis­
trict court specifically relied upon Judge Wallace’s dissent 
herein. Memorandum Decision and Order, C73-478, Mar. 14, 
1978); Seventh: U n i t e d  S t a t e s  V. C i t y  o f  C h i c a g o ,  549 F.2d 
415 (7th Cir. 1977) (In absence of intent showing, all con­
stitutional violations— including § 1981— reversed); Eighth: 
J o h n s o n  V. A l e x a n d e r ,  572 F.2d 1219, 1223 (8th Cir. 1978); 
Tenth: C h i c a n o  P o l i c e  O f f i c e r s  A s s n .  V. S t o v e r ,  552 F.2d 918* 
920 (10th Cir. 1977). See also> L e w i s  V. B e t h l e h e m  S t e e l  C o r p . ,  

440 F. Supp. 949, 963 (D. Md. 1977); C r o k e r  v. B o e i n g  C o . ,  

437 F. Supp. 1138, 1181 (E.D. Pa. 1977); D i c k e r s o n  V. U n i t e d  

S t a t e s  S t e e l  C o r p . , slip op. p, 20, No. 73-1292 (E.D. Pa. August 
2, 1978); V e i z a g a  V . N a t i o n a l  B o a r d  f o r  R e s p i t o r y  T h e r a p y ,

--- F. Supp. ---, 13 EPD (CCH) par. 11,525, p, 6881
(N. D. 111. 1977); O r t i z  V. B a c h , ---F. Supp. — -__, 14 FEP
Cases 1019, 1021 (D. Col. 1977); But see K i n s e y  v. F i r s t  

R e g i o n a l  S e c u r i t i e s ,  I n c . , 557 F.2d 830, 838, n.22 (D.C. Cir.
1977) ; L e a g u e  V . C i t y  o f  S a n t a  A n a . , 410 F. Supp. 873, 891- 896 (C.D. Cal. 1976).
5 Section 1981, entitled “Equal Rights Under the Law,” provides:
All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory to 
make and enforce contracts, to1 sue, be parties, give evi­
dence and to the full and equal benefit of all laws and

308



11

stitutional and legislative orig in s. See R u n y o n  v. M c ­
C ra ry , 427 U .S. 160, 168-175 (1 9 7 6 ) ;  M cD o n a ld  v. 
S a n ta  F e  T ra il T r a n sp o r ta t io n  C o ., 427 U .S. 273, 285- 
296 (1 9 7 6 ) ;  J oh n son  v. R a ilw a y  E x p r e s s  A g e n c y ,  
In c ., 421 U .S. 454, 459-460 (1 9 7 5 ) ;  T illm a n  v. 
W h ea to n -H a v en  R e c r e a t io n  A s s n .,  410 U .S. 431, 439- 
440 (1 9 7 3 ) ;  c f. J o n es  v. A l f r e d  H . M a y e r  C o., 392 
U .S. 409, 417-437 (1 9 6 8 ) . In R u n y o n  con cu rrin g  Jus­
tices Pow ell and Stevens and dissenting Justices 
W hite and R ehnquist expressed concern  that § 1981 
has in recent years been interpreted  too broad ly  and 
in a m anner w hich , in the w ords o f  M r. Justice 
Stevens, “ w ould  have am azed the legislators w ho voted 
fo r  it .”  427 U .S. a t 189. The decision o f  the N inth 
C ircu it herein , i f  perm itted  to  stand, w ould  fu rth er 
dislodge § 1981 fro m  its  constitutional and legislative 
roots.

In R u n y o n , this C ou rt concluded that § 1981 flowed 
from  both § 16 o f  the V otin g  R ights A ct  o f  1870 
[16  Stat. 144] and § 1 o f  the C ivil R ights A ct  o f  
1866 [14  Stat. 2 7 ] . 427 U .S. at 169, n .8.* 6 It is in ­
structive to exam ine both tributaries. A s  the C ourt

proceeding’s for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exac­
tions of every kind, and to no other.

6 Mr. Justice White in a dissent joined by Mr. Justice 
Rehnquist contended that § 1981 is derived from § 18 of the 
1870 statute alone. It is unnecessary to resolve this conflict 
because, as indicated below, whether § 1981 is viewed as a 
product of both the 1866 and 1870 enactments, or of the 1870 
enactment alone, the correlative nature of § 1981 and the 
equal protection clause of the Fourteenth Amendment is patent.

309



12

has noted on several occasions, “ the operative lan ­
guage o f  both § 1981 and § 1982 7 is traceable to the 
A ct  o f  A p r il 9, 1966.”  T illm a n  v. W h ea to n -H a v e n  
R e c r e a t io n  A s s n .,  410 U .S. a t 4 3 9 ; R u n y o n  v. M c ­
C r a r y ,  427 U .S. a t 171.

Section 1 o f  the 1866 A c t 8 w as enacted under san c­
tion  o f  the T h irteenth  A m endm ent. B u ch a n a n  v. 
W a r le y ,  245 U .S. 60, 78 (1 9 1 7 ) . A cco rd in g  to Sena­
tor Trum bull, its author and prin cipa l Senate sponsor, 
the purpose o f  the A c t  w as to “ destroy  the d iscr im i­
nation  m ade again st the N egro  in  the law s o f  the 
Southern States and to ca rry  into  effect the Thirteenth  
A m endm ent.”  H. Flack, Th e A doption of the 
Fourteenth A m e n d m e n t 20-21 (1 9 0 8 ) .  Im m edi­
ately  upon enactm ent, how ever, tw in  concerns devel­

7 Section 1982, “Property Rights,” provides:
All citizens of the United States shall have the same right, 
in every State and Territory, as is enjoyed by white citi­
zens thereof to inherit, purchase, lease, sell, hold, and 
convey real and personal property.

8 Section 1 provided in pertinent part:
That all persons bom in the United States and not subject 
to any foreign power, . . . are hereby declared to> be citi­
zens of the United States; and such citizens, of every race 
and color, without regard to any previous condition of 
slavery or involuntary servitude, . . . shall have the same 
right, in every State and Territory in the United States, 
to make and enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, hold, and con­
vey real and personal property, and to full and equal 
benefit of all laws and proceedings for the security of 
person and property, as is enjoyed by white citizens, and 
shall be subject to like punishment, pains, and penalties, 
and to none other, any law, statute, ordinance, regulation, 
or custom, to the contrary notwithstanding.

310



13

oped that the statute w as vulnerable to repeal b y  a 
subsequent Congress and that its app lica tion  to the 
states w as o f  questionable constitutionality.® W ith in  
tw o m onths a jo in t  resolution  w as d ra fted  address­
in g  these concerns. The resolution  eventually  be­
cam e the F ourteenth  A m endm ent. U n ited  S ta te s  v. 
W o n g  K im  A r k ,  169 U .S. 649, 675 (1 8 9 8 ) ;  H u r d  v. 
H od g e, 334 U .S. 24, 32-33 (1 9 4 8 ).

Courts and h istorians both have recognized that a 
m a jor  im petus behind enactm ent o f  the Fourteenth  
A m e n d m e n t9 10 w as a desire to preserve the rights 
created by  § 1 o f  the 1866 A ct. A s  stated by  one h is­
torian, “ v irtu a lly  every  speaker in  the debates on 
the Fourteenth  A m endm ent— R epublican  and D em o­
crat alike— said or  agreed that the A m endm ent was 
designed to em body o r  incorporate  the C ivil R ights 
A ct .”  H. Gr a h a m , E v e ry m a n’s Constitution 291

9 This Court has expressed doubt that the aims of the 1866 
Act could constitutionally be achieved under the Thirteenth 
Amendment exclusively. J o n e s  V. A l f r e d  H .  M a y e r  C o . , 392 
U.S. at 476-477 (Harlan, J., dissenting), citing H o d g e s  V. 
U n i t e d  S t a t e s , 203 U.S. 1, 16-18 (1906); C o r r i g a n  V. B u c k l e y ,  

271 U.S. 323, 330 (1926). But cf. C i v i l  R i g h t s  C a s e s , 109 U.S. 
3, 22 (1883).
10 The Amendment provides in pertinent part:

S e c t io n  1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal pro­tection of the laws.
Section 5. The Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article.

311



14

( 1 9 6 8 ) .11 One author has astutely  noted that the 
A m endm ent “ w as designed to ‘c o n s titu t io n a liz e ’ the 
A ct, that is, to ‘em body ’ it in  the C onstitution  so as 
to rem ove doubt as to its con stitu tion a lity  and to 
place it  beyond the pow er o f  a la ter C ongress to 
repeal.”  R . Berger, Government By Judiciary, 
The Transformation of the Fourteenth A m e n d­
m e n t 23 (1 9 7 7 ) (E m ph asis  in  o r ig in a l). These 
observations thus con firm  the va lid ity  o f  this C ou rt’s 
conclusion  in H u r d  v. H o d g e  that the 1866 C ivil 
R ights  A c t  and the Fourteenth  A m endm ent w ere 
“ expressions o f  the sam e general congressional pol­
icy .”  334 U .S. a t 32.

Shortly a fte r  its constitu tionalization  through  the 
F ourteenth  A m endm ent, the 1866 A ct  w as re-enacted 
in the V o tin g  R ights A ct  o f  1870. B u ch a n a n  v. 
W a r le y ,  245 U .S . at 7 8 ; J o n es  v. A l f r e d  H . M a y e r  
C o., 392 U .S. a t 422, n .2 8 ; T illm a n  v. W h ea to n -H a v e n  
R e c r e a t io n  A s s n .,  410 U .S. a t 440, n . l l .  T w o sec­
tions o f  the 1870 A ct  are relevant to ou r analysis. 
Section 18 sim ply re-enacted the 1866 A c t  in its en­
tire ty .11 12 Section 16— the provision  identified  b y  the 
C ou rt in  R u n y o n  as bein g  one o f  the tw o p rim a ry  
sources o f  § 1981— is s im ilar to, but not identical

11 See also Flack, s u p r a  at 81 (“[T]here seems to be little, 
if any, difference between the interpretation put upon the first 
section [of the Fourteenth Amendment] by the majority and 
the minority, for nearly all said that it was but an incorpora­
tion of the Civil Rights bill”).
12 Section 18 provided in pertinent part:
That the act to protect all persons in the United States in 
their civil rights, and furnish the means of their vindica­
tion, passed April nine, eighteen hundred and sixty-six, 
is hereby re-enacted....

312



15

with, § 1 o f  the 1866 A c t .13 W hile  the rights at issue 
in  th is case (i.e ., the r igh t to con tract and the righ t 
to fu ll and equal benefit o f  all law s) are preserved  in 
identical fash ion  in all three provisions, § 16, unlike 
§ 1 o f  the 1866 A c t  and § 18 o f  the 1870 A ct, gu aran ­
tees those righ ts  to “ all persons,”  not m erely “ all citi­
zens.”  14 In  sp ite  o f  this s ligh t m odification , how ever, 
the scope o f  the 1866 A ct  w as not altered b y  its 1870

13 Section 16 provided:
That all persons within the jurisdiction of the United 
States s h a l l  h a v e  t h e  s a m e  r i g h t  i n  e v e r y  S t a t e  a n d  T e r r i ­

t o r y  i n  t h e  U n i t e d  S t a t e s  t o  m a k e  a n d  e n f o r c e  c o n t r a c t s ,  

t o  s u e ,  b e  p a r t i e s ,  g i v e  e v i d e n c e ,  a n d  t o  t h e  f u l l  a n d  e q u a l  

b e n e f i t  o f  a l l  l a w s  a n d  p r o c e e d i n g s  f o r  t h e  s e c u r i t y  o f  

p e r s o n s  a n d  p r o p e r t y  a s  i s  e n j o y e d  b y  w h i t e  c i t i z e n s , and 
shall be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and none other, any 
law, statute, ordinancê, regulation, or custom to the con­
trary notwithstanding. No tax or charge shall be imposed 
or enforced by any State upon any person immigrating 
thereto from a foreign country which is not equally im­
posed and enforced upon every person immigrating to 
such State from any other foreign country; and any law 
of any State in conflict with this provision is hereby 
declared null and void.

It should be noted that the language relevant to this case 
which has been italicized is identical to' language appearing 
in § 1 of the 1866 Act, Revised Statutes § 1977 (See n. 15, 
i n f r a ) , and § 1981.
14 This Court has speculated that the first sentence of the 

Fourteenth Amendment— which grants United States citizen­
ship to “all persons born or naturalized in the United States 
and subject to [its] jurisdiction”— may itself have been re­
sponsible for this change in language from the 1866 Act. 
U n i t e d  S t a t e s  V. W o n g  K i m  A r k ,  169 U.S. at 696; T i l l m a n  v. 
W h e a t o n - H a v e n  R e c r e a t i o n  A s s n . , 410 U.S. at 440, n.ll.

313



16

re-enactm ent, J o n es  v. A l f r e d  H . M a y e r  C o., 392 U .S. 
a t 436, and as stated in  § 18 o f  the 1870 A c t  itself, 
§ 16 w as to be “ en forced  a ccord in g  to  the prov is ion s”  
o f  the 1866 A ct. T illm a n  v. W h e a to n -H a v e n  R e c r e a ­
t io n  A s s n .,  410 U .S . a t 439, n . l l .

The constitutional basis  o f  the 1866 and 1870 en­
actm ents w as im p lic it ly  reaffirm ed b y  this C ou rt fo l ­
low in g  the 1874 cod ification  o f  § 16 o f  the 1870 A ct  
in to  § 1977 o f  the R evised Statutes.15 U n ited  S ta te s  
v. W o n g  K im  A r k ,  169 U .S. a t 6 95 ; T illm a n  v. 
W h ea to n -H a v e n  R e c r e a t io n  A s s n .,  410 U .S. at 439, 
n . l l .  In  S tr a u d er  v. W e s t  V ir g in ia ,  100 U .S. 303, 
312 (1 8 7 9 ) the C ou rt noted that § 1977 put “ in  the 
fo rm  o f  a statute w h at had been substantia lly  or­
dained by  the [F ou rteen th ] am endm ent. It  w as a 
step tow ards en forc in g  the constitutional prov is ion s.”  
S im ilarly , in  B u ch a n a n  v. W a r le y ,  245 U .S. a t 79, 
§ 1977 w as described as a statute “ enacted in fu r ­
therance o f  the [F ou rteen th  A m en dm ent’s ] purpose.”  
R evised Statutes § 1977 n ow  appears as 42 U .S .C . 
§ 1981.

A s  th is developm ental analysis reveals, § 1981 and 
the F ourteenth  A m endm ent a re  correlative  provisions

15 R.S. § 1977 provided that:
All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory 
to make and enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses and exactions 
of every kind, and no other.

This is the precise language now codified as § 1981.

314



17

w hich share a com m on h istory  and are expressive o f  
the sam e congressional policies. The sam e m ay not 
be said, how ever, o f  § 1981 and T itle  V II . Those 
enactm ents, “ a lthough related, and although directed  
to m ost o f  the sam e ends,”  have nevertheless alw ays 
been view ed as “ separate, d istinct and independent 
rem edies fo r  em ploym ent d iscrim in ation .”  J oh n son  
v. 'R a ilw a y  E x p r e s s  A g e n c y ,  In c ., 421 U .S. at 461.16 
This C ou rt also noted in  J oh n son  that § 1981 and T itle 
V II  are n either procedu ra lly  nor substantively coex­
tensive and that C ongress has, in  fa ct, created  “ inde­
pendent adm in istrative and ju d ic ia l rem edies.”  Id .

In addition  to  p rov id in g  alternative rem edies, 
§ 1 9 8 1  and T itle  V I I  a re  fun dam entally  d ifferent 
statutes enacted to  accom plish  d ifferen t objectives. 
A s noted, § 1981 is  a m an ifestation  o f  C ongressional 
desire under the Thirteenth  and Fourteenth  A m end­
m ents “ to p rovide fo r  equal protection  o f  the law s to 
all persons.”  R u n y o n  v. M c C r a r y ,  427 U .S. at 204 
(W h ite  J ., d issen tin g ), c itin g  G ib son  v. M iss iss ip p i, 
162 U .S. 565, 580 (1 8 9 6 ) and M cL a u g h lin  v. F lo r id a , 
379 U .S. 184, 192 (1 9 6 4 ) . It  thus creates a ju d ic ia l 
rem edy fo r  p rivate litigants w ho claim  that they have

16 Congressional intent in establishing separate remedies 
was clearly reflected in the debates on the 1972 amendments 
to the Civil Rights Act of 1964 when a proposed amendment 
which would have deprived claimants of any right to sue under 
§ 1981 was rejected on the strength of Senator Williams’ 
observation that Title VII and the Civil Rights Acts of 1866 
and 1870 afford “alternative means” for redressing employ­
ment discrimination, and that adoption of the proposed amend­
ment would “repeal the first major piece of civil rights legis­
lation in the Nation’s history.” 118 Cong. Rec. 3371-3373 
(1972), cited in R u n y o n  V. M c C r a r y ,  427 U.S. at 174, n.ll.

315



18

been denied equal protection  o f  the law s on account 
o f  race. In  contrast, T itle  Y I I  is pred icated  upon  the 
p ow er o f  C ongress to regu late  com m erce,17 and is 
designed to elim inate d iscrim ination  in em ploym ent 
by  p roh ib itin g  “ all p r a c t ic e s  in  w h a te v e r  f o r m  w hich  
create inequality  in em ploym ent opportun ities due to. 
d iscrim in ation  on the basis o f  race, relig ion , sex or  
national o r ig in .”  F r a n k s  v. B o w m a n  T r a n sp o r ta t io n  
C o., In c ., 424 U .S. 747, 763 (1 9 7 6 ) (E m ph asis 
a d d e d ) ; c f . G r ig g s  v. D u k e  P o w e r  C o., 401 U .S. at 
4 29 -430 ; M cD o n n e ll D o u g la s  C orp . v. G reen , 411 U .S. 
792, 800 (1 9 7 3 ) ;  A le x a n d e r  v. G a r d n e r -D e n v e r  C o., 
415 U .S. 36, 44 (1 9 7 4 ).

Section 1981 is thus b roader than T itle V I I  in one 
sense and n arrow er in another. B ecause its reach ex­
tends fa r  beyond the area  o f  d iscrim ination  in em ­
ploym ent, it  is a m ore inclusive statute than T itle 
V II . H ow ever, to the extent that both provisions 
app ly  to em ploym ent d iscrim ination  T itle  V II  is con­
siderably  broader— § 1981 m erely  proh ib its racia l dis­
crim in ation  in em ploym ent con tractin g  w hereas T itle 
V II  encom passes “ all practices in  w hatever fo rm  
Which create inequality in em ploym ent op portu n ity .”  
F r a n k s  v. B o w m a n  T r a n sp o r ta t io n  C o., In c ., 424 U .S. 
at 763. A ccord in g ly , “ ;[C ]o n g re ss  clearly  has re- * 453

17 U.S. Const. Art. I, § 8, cl. 31. See 111 Cong. Rec. 7202- 
7212, 8453-8456 (1964); H e a r t  o f  A t l a n t a  M o t e l ,  I n c . v. 
U n i t e d  S t a t e s , 379 U.S. 241, 245-246 (1964). The extension of 
Title VII to governmental agencies in 1972, however, repre­
sented an exercise of congressional authority under § 5 of the 
Fourteenth Amendment. F i t z p a t r i c k  V. B i t z e r , 427 U.S 445453, n.9 (1976).

316



19

tained § 1981 as a rem edy again st p rivate  d iscrim ina­
tion separate fro m  and independent o f  the m ore 
elaborate and tim e-consum ing procedures o f  T itle  
V II .”  J oh n son  v. R a ilw a y  E x p r e s s  A g e n c y ,  421 U.S. 
at 466.1S

In the past this C ou rt has noted the extrem e im ­
portance o f d istinctions such as these in evaluating 
claim s that sta tu tory  standards are tran sferrable  
from  one sta tu tory  schem e to another. F o r  exam ple, 
in W a sh in g to n  v. D a v is , M r. Justice Stevens, a fte r  
noting that the parties had argued  the case as though 965

18 Respondents are not aided by several cases holding that, 
in many situations, the substantive requirements of § 1981 and 
Title VII should be interpreted consistently to avoid imposing 
conflicting requirements upon employers. See e . g . ,  C h a n c e  

V. B o a r d  o f  E x a m i n e r s ,  534 F.2d 993, 998 (2d Cir. 1976), 
m o d .  o n  o t h e r  g r o u n d s ,  534 F,2d 1007, c e r t ,  d e n i e d , 431 U.S.
965 (1977); and P a t t e r s o n  V. A m e r i c a n  T o b a c c o  C o . , 535 F.2d 
257, 270 (4th Cir. 1976), c e r t ,  d e n i e d , 429 U.S. 920 (1977); 
and W a t e r s  V. W i s c o n s i n  S t e e l  W o r k s ,  502 F.2d 1309, 1316 
(7th Cir. 1974), c e r t ,  d e n i e d , 425 U.S. 997 (1976). In those 
cases, the question of whether a showing of purposeful 
discrimination is required to establish a n y  § 1981 violation 
was not addressed. Rather, the courts correctly concluded that 
employment practices which are not violative of Title VII 
should be immune from attack under § 1981. Those cases 
recognize that although both Title VII and § 1981 somewhat 
overlap regarding employment discrimination, Title VII 
focused on specific contemporary employment practices and 
provides “modern legislative history which is directly in point,” 
as to which of these practices Congress intended either to 
permit or prohibit. See H i n t o n  V. L e e  W a y  M o t o r  F r e i g h t ,  I n c . ,  

412 F. Supp, 625, 628-629 (W.D. Okla. 1975).

317



20

T itle  V I I  standards w ere  autom atica lly  applicable to 
§ 1981 and § 1-320 o f  the D istr ict o f  C olum bia  Code, 
cautioned  that “ there is sufficient ind iv idu ality  and 
com plexity  to {T i t le  V I I ] ,  and to  the regulations 
prom ulgated u n der it, to m ake it in ap propria te  sim ­
p ly  to transplant those standards in th eir entirety  
into a d ifferen t sta tu tory  schem e h av in g  a d ifferent 
h istory .”  426 U .S . at 255. S im ilarly , in the course 
o f  analyzing w hether § 1982 19 proh ib ited  racia l dis­
crim in ation  in  the private  sale o f  real estate, the 
C ourt in  J on es  v. A l f r e d  H . M a y e r  C o ., evaluated the 
possible im pact on its decision  o f  the recently-enacted 
fa ir  h ousing title [T it le  V I I I ]  o f  the C ivil R ights A ct  
o f  1968. 42 U .S .C . § 3601 e t  seq . A ft e r  n otin g  that 
§ 1982 w ou ld  “ stand independently”  fro m  T itle V III , 
the C ou rt observed that there a r e :

[v ]a s t  d ifferences betw een, on the one hand, a 
general statute applicable on ly  to  racia l d iscrim i­
nation  in the rental and sale o f  p rop erty  and en­
forceab le  on ly by private  parties actin g  on their 
ow n in itiative, and, on the other hand, a detailed 
housing law , applicable to a broad  ran ge o f  d is­
cr im in a tory  practices  and enforceable  by  a com ­
plete arsenal o f  federa l authority.

19 The text of § 1982 appears in n.7, s w p r a .  Sections 1981 
and 1982 both originally appeared in § 1 of the 1866 Act and 
this Court has held that, “In light of the historical interrela­
tionship between Sec. 1981 and Sec. 1982, there is no reason 
to construe these sections differently when applied [to private 
forms of discrimination].” T i l l m a n  V. W h e a t o n - H a v e n  R e c r e ­

a t i o n  A s s n . ,  410 U.S. at 440, n.ll.

318



21

392 U .S. at 417. This analysis w as specifically  relied 
upon by  the C ou rt in  Johnson v. Railway Express 
Agency, as au th ority  supportive o f  “ the independence 
o f  the avenues o f  re lie f respectively  available under 
T itle V II  and the older § 1981.”  421 U .S. at 460.

This h istorica l com parison  o f  the relationship  be­
tween § 1981 and the F ourteenth  A m endm ent on the 
one hand, and § 1981 and T itle  V II  on the other, 
underscores the va lid ity  o f  the conclusion  draw n by 
dissenting Judge W alla ce  below  th at:

[s ]  ection 1981 en joys a  unique h istorica l and 
conceptual relationship  to the F ourteenth  A m en d­
m ent w hich  is n ot shared by T itle  V II  . . . [an d ] 
that the standards f o r  establish ing a p rim a  fa c ie  
case o f  d iscrim in ation  under section 1981 and 
the E qual Protection  Clause o f  the Fourteenth  
A m endm ent should be the sam e: there m ust 
be p ro o f  o f  d iscr im in atory  intent.

566 F .2d  at 1349. Judge W alla ce ’s analysis is fu lly  
supported b y  p r io r  decisions o f  this C ourt. In  Hurd 
v. Hodge, supra, the C ourt w as asked to decide 
w hether ju d ic ia l en forcem ent o f  ra cia lly  d iscrim in a­
tory  real estate restrictive  covenants by  the courts o f 
the D istrict o f  C olum bia violated  Revised Statutes 
§ 1978— the predecessor o f  § 1982.3® A ft e r  noting 
both the “ close relationship  betw een § 1 o f  the C ivil 
R ights A ct  and the Fourteenth  A m endm ent”  and the 
hold ing in Shelly v. Kramer, 334 U .S. 1 (1 9 4 8 ) that 
the Fourteenth Amendment forb id s  such d iscrim ina­
tion w here im posed b y  state courts in the en force ­
m ent o f  restrictive covenants, the C ourt concluded 20

20 See n. 7 and 19, s u p r a .

319



22

that the Shelly v. Kramer F ourteenth  A m endm ent 
holding “ is clearly indicative of the construction to 
be given the relevant provisions of the Civil Rights 
Act.” 334 U .S. a t 33 (E m ph a sis  a d d e d ). In precisely  
the sam e fash ion , g iven  the “ close relation sh ip”  be­
tw een § 1 o f  the C ivil R ights A c t  and the F ourteenth  
A m endm ent, this C ou rt’ s h old ing in  Washington v. 
Davis, that purposefu l d iscrim in ation  m ust be shown 
to establish an u n law fu l em ploym ent p ractice  under 
the F ourteenth  A m en dm ent “ is clearly  ind icative o f  
the construction  to be g iven  the relevant provisions 
[i.e ., § 1981] o f  the C iv il E ights A c t .”  Id. Such a 
determ ination  w ou ld  be consistent w ith  traditional 
rules o f  sta tu tory  construction  w hich  require that 
every  statute in volv in g  constitutional r igh ts  is to be 
read  in ligh t o f  the C onstitution , and that “ [ t ]h e  
C onstitution  and the statute w ill be construed to­
geth er as one la w .”  Cincinnati, N.O. & T.P. R. Co. 
v. Kentucky, 115 U .S. 321, 334 (1 8 8 5 ) ;  16 A m  Ju r 
2d, Const. L a w  § 144 (1 9 6 4 ).

O nly by  a pp ly in g  the F ourteenth  A m endm ent in­
tent standard  to § 1981 can  the trend  tow ard  its in ­
terpretation  as a  “ catch-a ll”  d iscrim in ation  provision  
be stem m ed, and its orig in a l constitu tional and leg­
islative roots reaffirm ed.

B. The Conclusion in W a s h i n g t o n  v. D a v i s  That Dis­
proportionate Impact Alone Does Not Constitute A 
Denial Of Equal Protection Is Dispositive Of The 
§ 1981 Allegations In This Case.

The F ourteenth  A m endm ent and § 1981 are con­
ceptually  as w ell as h istorica lly  linked. Both are 
fun dam entally  equal p rotection  enactm ents. The 
Fourteenth  A m endm ent provides that “ N o state shall

320



23

. . . deny to any person  . . . equal protection  o f  the 
law s.”  Section 1981 provides that “ A ll persons , . . 
shall have the same r igh t in every State . . .  to m ake 
and en force  contracts . . . and to the fu ll and equal 
benefit o f  all law s f o r  the secu rity  o f  persons and 
p rop erty  as is en joyed  by  w hite  citizens.”  21 (E m ­
phasis a d d ed ).

Section 1 o f  the 1866 A c t  and its  p rogen y  have 
alw ays been view ed as the gu aran tors  o f  equal p ro ­
tection o f  the law s, o r  as stated b y  this C ou rt in  
United States v. Wong Kim Ark, 169 U .S. a t 695, 
“ the protection  o f  equal law s.”  In  exp la in in g  the 
purpose o f  the b ill w h ich  w as eventually to  becom e 
Section 1 o f  the 1866 A ct, its  author and principa l 
Senate supporter, S enator Trum bull, stated that “ any 
statute w hich  is not equal to all, and w hich deprives 
any citizen o f  civ il rights, w hich  are secured to other 
citizens is an u n ju st encroachm ent upon his lib erty ; 
and it  is in  fa c t  a badge o f  servitude w hich  b y  the 
C onstitution is p roh ib ited .”  Cong. Globe, 39th Cong., 
1st Sess, 474 (1 8 6 6 ) (E m ph asis  a d d ed ). The equal 
protection  foun dation  o f  § 1 w as underscored by  
Senator T rum bull w hen  he asserted that “ it w ill have 
no operation  in any State w here the laws are equal, 
where all persons have the sam e civ il rights w ithout 
regard  to race o r  co lor .”  Id. a t 476 (E m phasis 
a dd ed ). S im ilarly  in the H ouse, R epresentative Shell- 
abarger, a bill proponent, contended that it  secured 
“ equality of protection in  those enum erated civil 
righ ts w hich  the States m ay  deem p rop er to con fer

21 As noted in n. 13, s u p r a ,  identical language appeared in 
§ 1 of the 1866 Act, §§ 16 and 18 of the 1870 Act, and § 1977 
of the Revised Statutes.

321



24

upon any races.”  Id . a t 1293-1294 (E m ph asis 
a d d e d ) .22

The equal p rotection  focu s  o f  § 1981 w as sharpened 
through  the constitu tionalization  o f  the 1866 A c t  into 
the F ourteenth  A m en dm ent and its subsequent re­
enactm ent in 1870 and cod ifica tion  in 1874 into R e­
vised Statutes § 1977. Thus, § 1981 is n ow  recognized 
as h av in g  been enacted— at least in p a r t 23— pursuan t 
to “ C ongress ’ p ow er u n der the Fourteenth  A m en d­
m ent to p rov ide  f o r  equal protection  o f  the law s to 
all persons.”  R u n y o n  v. M c C r a r y ,  427 U .S. a t 204 
(W h ite , J ., d issen tin g ), c itin g  G ib son  v. M iss iss ip p i, 
162 U .S. 565, 580 (1 8 9 6 ) and M c L a u g h lin  v. F lo r id a , 
379 U .S. 184, 192 (1 9 6 4 ) ;  C r o k e r  v . B o e in g  C o., su ­
p r a  note 4, a t 1181. Indeed, the official title to  § 1981 
— w hich  m ay  p rop erly  be considered as an aid to con­
struction— is “ E qual r igh ts  under the law .”  See 
R u n y o n  v. M c C r a r y ,  427 U .S. a t 193, n.3 (W h ite , J., 
d issen tin g ).

In  W a s h in g to n  v. D a v is  this C ou rt exp licitly  d is­
agreed  w ith  the notion that an equal protection  v io la ­
tion could be predicated  upon evidence o f  d isprop or­
tionate im pact alone. In  lan gu age w hich  is d isposi­
tive  o f  this case, the C ou rt stated :

W e  have difficu lty understan d in g  how  a  law  es­
tablish ing a  ra cia lly  neutral qualification  fo r  em ­

22 Accord, B a s i s t a  V. W e i r ,  340 F.2d 74, 86 (3rd Cir. 1965) 
(The Civil Rights Acts “were intended to confer equality in 
civil rights before the law in all respects for persons embraced within their provisions.”)
23 See n. 6, s u p r a .

322



25

ploym ent is nevertheless racia lly  d iscrim in atory  
and denies “ any person  . . . equal protection  o f  
the law s”  sim ply because a grea ter p rop ortion  o f 
N egroes fa il  to q u a lify  than m em bers o f  other 
racia l o r  ethnic grou ps. H ad  respondents, a long 
w ith  all others w h o had fa iled  T est 21, w hether 
w hite  or  black, brou gh t an action  cla im in g that 
the test denied each o f  them  equal protection  o f  
the law s as com pared  w ith  those w ho had passed 
w ith  h igh  enough scores to q u a lify  them  as police 
recru its, it is m ost unlikely that their challenge 
w ou ld  have been sustained . . . Respondents, as 
N egroes, cou ld  no m ore successfu lly  claim  that 
the test denied them  equal protection  than cou ld  
w hite applicants w ho also fa iled . The conclusion 
w ould  n ot be d ifferen t in the fa ce  o f  p ro o f  that 
m ore N egroes than w hites had been disqualified 
by  T est 21. T h at other N egroes also fa iled  to 
score w ell w ould, alone, not dem onstrate that 
respondents ind iv idu ally  w ere  being denied equal 
protection  o f  the law s by  the application  o f  an 
otherw ise va lid  q u a lify in g  test being adm inis­
tered to  prospective police  recruits.

426 U .S. at 245-246.®* This conclusion  w as subse­
quently echoed in Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U .S. 
252, 265 (1 9 7 7 ) w hen the C ou rt advised that “ p ro o f 
o f  ra cia lly  d iscr im in atory  intent or  purpose is re ­
quired to show  a violation  o f  the E qual Protection  
Clause.”

The Washington v. Davis and Arlington Heights 
analysis is equally applicable to  § 1981 cases such 24

24 Mr. Justice Brennan’s dissent in W a s h i n g t o n  V. D a v i s  did 
not address the issue under consideration in the quoted portion 
of the majority opinion. 426 U.S. at 257, n. 1.

323



26

as t h is /5 M in ority  app licants w ho are inelig ib le  to 
execute em ploym ent con tracts  w ith  petitioners by  v ir ­
tue o f  th eir fa ilu re  to pass a racia lly  neutral aptitude 
exam ination  su ffer no g rea ter a d isadvantage than 
unsuccessfu l w h ite  applicants. Identical exam ina­
tions have been adm in istered  to  all races and identical 
g ra d in g  and scorin g  standards applied. In  statutory 
term s, m in orities have been afforded, “ the sam e right 
. . .  to m ake and en force  contracts . . .  as is en­
joy ed  b y  w h ite  citizens.”  S im ply  because the ex­
am in ation  had a d isproportion ate  effect on m inorities 
does not— as this C ou rt stated  in W a s h in g to n  v. 
P a rts — “ dem onstrate that respondents, ind ividually  
w ere bein g  denied equal protection  o f  the law s by the 
app lication  o f  an otherw ise va lid  q u a lify in g  test.”  
426 U .S. a t 246. In  the absence o f  evidence that the 
d isproportionate im pact is  a p rod u ct o f  d iscrim ina- 
tor ily  m otivated conduct, it cannot be said that m i­
n orities  are bein g  deprived on racia l grou nds o f  an 
equal cap acity  to con tract as firem en:25 26

25 In L e w i s  V. B e t h l e h e m  S t e e l  C o r p . ,  s u p r a  note 4, at 963, 
the quoted portion of W a s h i n g t o n  V. D a v i s  was relied upon 
as a basis for imposing an intent requirement upon §§ 1981 
and 1982. See also J o h n s o n  V. A l e x a n d e r ,  s u p r a  note 4, at 1123.
26 This analysis is consistent with the Ninth Circuit’s own 

interpretation of § 1981 as expressed in A g n e w  v. C i t y  o f  

C o m p t o n ,  239 F.2d 226, 230 (9th Cir. 1956), c e r t ,  d e n i e d , 353 
U.S. 959 (1957). After noting that the purpose of §§ 1981 and 
1982 “is to provide equality of rights as between different 
races,” the complaint therein was dismissed because it did “not 
allege that appellant was deprived of any right which, 
under similar circumstances, would have been accorded a 
person of a different race.”

324



27

The application  o f  an intent requirem ent w ou ld  also 
serve to  harm onize § 1981 w ith  its  legislative p u r­
pose. U nlike T itle  V II  w hich  w as enacted fo r  p u r­
poses o f  p roh ib itin g  “ all practices  in w hatever form  
w hich create inequality  in  em ploym ent opportu n i­
ties” 27— includ ing , arguably , fa c ia lly  neutral exam i­
nations h av in g  a d isproportion ate im pact on m in ori­
ties— the predecessors o f  § 1981 w ere enacted in an 
e ffort to  cu rta il overt, intentional d iscrim ination  
against N egroes.28 The post-C iv il W a r  clim ate w hich 
generated these enactm ents w as described b y  this 
C ourt in S tr a u d er  v. W e s t  V irg in ia , 100 U .S. a t 306 
as fo llow s :

A t  the tim e w hen the [T h irteen th  through F i f ­
teenth A m endm ents] w ere  incorporated  in to  the 
C onstitution , it  requ ired  little  know ledge o f  hu­
m an nature to anticipate that those w ho had 
lon g  been regarded  as an in fe r io r  and subject 
race w ould, w hen suddenly raised  to the rank  o f  
citizenship , be looked upon w ith  jea lou sly  and 
positive dislike, and that State law s m ight be 
enacted o r  en forced  to  perpetuate the d istinctions 
that had b e fore  existed. D iscrim ination  against 
them  had been habitual. It  w as w ell know n that 
in som e States law s m akin g such discrim ination  
then existed, and others m ight well be expected. 
The colored race, as a  race, w as a b ject and ig ­
norant, and in that condition  w as unfitted  to 
com m and the respect o f  those w ho had superior 
intelligence [ s ic ] .  T h eir  tra in in g  had le ft  them 
m ere children , and as such they needed the p ro ­

27 F r a n k s  V. B o w m a n  T r a n s p o r t a t i o n  C o . ,  I n c . , 424 U.S. at 763.
28 L e w i s  V. B e t h l e h e m  S t e e l  C o r p . ,  s u p r a  note 4 , at 963.

325



28

tection  w hich  a  w ise  govern m en t extends to those 
w ho are  unable to  p rotect them selves. T hey es­
pecia lly  needed protection  again st u n fr ien d ly  a c­
tion  in the States w here they w ere  resident. It 
w as in  view  o f  these con sideration s the F o u r ­
teenth A m endm ent w as fra m ed  and adopted. It 
w as designed to  assure to  the colored  race  the en­
joym en t o f  all the civ il r igh ts  that under the 
law  are en joyed  by  w hite  persons, and to  g ive 
to that race the protection  o f  the general govern ­
m ent, in  that en joym ent, w henever it  should be 
denied by the States.

T h is  w as a p eriod  o f  ram pant, overt racia l d iscr im i­
n ation ; the concept o f  consequential d iscrim ination  
resu ltin g  fro m  the d isproportion ate  im pact o f  other­
w ise  ra cia lly  neutral conduct w as still a cen tu ry  into 
the fu tu re . C ongress in 1866 sought to address the fe a r  
o f  m an y that N egroes as a class m ight be “ oppressed 
and in fa c t  deprived  o f  th eir freed om ”  not on ly by 
hostile law s but also b y  “ p reva lin g  public sentim ent.”  
Cong. Globe, 39th Cong., 1st Sess, 77 (1 8 6 6 ), quoted 
in J o n es  v. A l f r e d  H . M a y e r  C o., 392 U .S. at 431- 
432, n. 54. It w as in  light o f  this h istorica l back ­
grou n d  that the C ou rt stated in J on es  w ith  specific 
re ference  to § 1 o f  the 1866 A ct  and § 1982— but w ith  
equal app licab ility  to  § 1981 29— that they w ere  in ­
tended to  p roh ib it all “ racia lly  m otivated”  depriva ­
tions enum erated therein. 392 U .S. a t 421 and 426.

A ccord in g ly , by  v irtu e  o f  this C ou rt’s in terpreta ­
tion  o f  equal protection  requirem ents in W a sh in g to n  
v. D a v is  and by v irtu e  o f  its  analysis in J on es  o f  
the evils sought to  be elim inated by  the predecessors 
o f  § 1981, it is evident that there a re  sound con ­

29 See n. 19, s u p r a .

326



29

ceptual as w ell as h istorica l reasons fo r  m ainta in ing 
an intent requ irem ent fo r  § 1981.

C. Application Of The Disproportionate Impact Stand­
ard To § 1981 Would Undermine Substantially Both 
W a s h i n g t o n  v. D a v i s  And The Title VII Enforce­
ment Scheme.

T here are also sound p ractica l reasons f o r  app ly in g  
an intent requirem ent to  § 1981. In  W a sh in g to n  v. 
D a vis , the C ou rt explained the adverse practica l con­
sequences w h ich  w ou ld  flow  fro m  app ly in g  a d ispro­
portionate im pact standard  to  Fourteenth  A m end­
m ent c la im s :

A  ru le  th at a statute designed to serve neutral 
ends is nevertheless invalid , absent com pelling 
ju stifica tion , i f  in p ra ctice  it benefits o r  burdens 
one race m ore than another w ou ld  be f a r  reach­
in g  and w ou ld  ra ise  serious questions about, and 
perhaps invalidate, a w hole ran ge o f  tax, w elfare, 
public service, regu latory , and licensing statutes 
that m ay  be m ore burdensom e to  the p oor and 
to the average b lack than to  the m ore affluent 
w hite. i[C itation  om itted ].

426 U .S. a t 248. The C ourt concluded that extension 
o f  the d isproportionate im pact standard beyond those 
areas w here it  is a lready available by  v irtu e  o f  T itle 
V II  “ should aw ait legislative prescrip tion .”  Id . A f ­
firm ance o f  the N inth  C ircu it in this case w ould  v io ­
late this p rincip le  and w ould  effectively  guarantee the 
very  resu lt w h ich  the C ou rt expressly sought to avoid.

Section 1981 guarantees to all races not on ly the 
“ sam e righ t . . .  to  m ake and en force  con tracts” , but 
also the “ sam e righ t . . .  to  the fu l l  an d  equ a l b en efit  
o f  all la w s an d  p r o c e ed in g s  fo r  the secu rity  o f  persons 
and p rop erty ”  as is en joyed  by  w hites. (E m phasis

327



30

a d d ed ). T he scope o f  § 1981 ’ s proh ib itions is thus 
v irtu a lly  coextensive w ith  that o f  the equal p rotec­
tion  clause o f  the F ou rteen th  A m endm ent, and both 
extend  fa r  beyond the area  o f  p u b lic  em ploym ent. 
A ccord in g ly , i f  a lesser standard  o f  lia b ility  is ap­
p lied  to  § 1981 than to the Fourteenth  A m endm ent, 
the h old ing in Washington v. Davis can  be circu m ­
vented en tire ly  though the exped iency o f  a lleg in g  a 
§ 1981 ra th er than a  F ou rteen th  A m en dm ent claim . 
Croker v. Boeing Co., supra note 4, a t 1181.

In  addition  to effectively  n egatin g  the p ractica l 
effect o f  the C ou rt’s decision  in  Washington v. Davis, 
application  o f  T itle  V II  standards o f  liab ility  to 
§ 1981 a llegations w ou ld  also underm ine the en force ­
m ent schem e o f  T itle  V II  itse lf. A ll o f  the rem edies, 
both legal and equitable, w h ich  are available under 
T itle  V II  m a y  be available u n der § 1981. Indeed, in 
som e respects the § 1981 rem edies are m ore generous. 
Johnson v. Railway Express Agency, Inc., 421 U .S. 
a t 460. U nlike § 1981, how ever, T itle  V II  requires 
the exhaustion  o f  certa in  adm in istrative procedures 
as a con d ition  to  suit. I f , how ever, the standards o f  
p ro o f  f o r  both provision s a re  identical and the rem e­
dies available u n der § 1981 m ore liberal, there is  ab ­
solutely no incentive fo r  aggrieved  p la in tiffs  to opt 
fo r  the m ore onerous adm in istrative  route.

This resu lt o f  the N inth  C ircu it ’s decision  is m ore 
than o f  m ere academ ic o r  passin g  interest. A s  a 
practica l m atter it w ill tota lly  fru s tra te  the scheme 
devised by C ongress fo r  the elim ination  o f  em ploy­
m ent d iscrim ination . T he centerp iece o f  this schem e 
is the p rom pt resolution  o f  d iscrim ination  charges 
through  concilia tion . U n d er T itle  V II  a  ch arge  m ust

328



31

be filed w ith in  the relatively  b r ie f  period  o f  180 
days. Section 7 0 6 (e ) ,  42 U .S.C . § 2 0 0 0 e -5 (e ) . A  
charge h av in g  been filed, the E qual E m ploym ent Op­
portu n ity  C om m ission (E E O C ) is required  to ex­
haust all concilia tion  e fforts  p r io r  to in stitu tin g  suit. 
Occidental\ L i f e  In su ra n ce  C o. v. E E O C , 432 U .S. 
355, 359-360 (1 9 7 7 ) . In  E E O C  v. S h erw ood  M ed ica l
In d u s tr ie s , -------- F .Supp. -------- , 17 F E P  Cases 441,
444 (M .D . F la . 1978) the cou rt noted “ the m andate 
that con cilia tion  be attem pted is unique to T itle  V II  
and it clea rly  reflects a stron g  congressional desire 
fo r  ou t-o f-cou rt settlem ent o f  T itle  V II  v iolations.”  
Sim ilarly, the F ou rth  C ircu it observed in P a tte r s o n  
v. A m e r ic a n  T o b a cco  C o., su p r a  n. 18, a t 272 that 
the E E O C ’s “ sta tu tory  duty  to  attem pt conciliation  
is am ong its m ost essential fu n ction s .”  C learly, the 
effect o f  equating the standards o f  p ro o f required 
under T itle  V II  and § 1981 w ill be to flood the federal 
courts w ith  em ploym ent d iscrim ination  cases w hich 
m ight otherw ise have been settled volu n tarily  and 
am icably by  the d isputants them selves through E E O C - 
supervised concilia tion  efforts.

A ccord in g ly , unless the N inth  C ircu it is reversed 
and the constitu tional intent standard applied to 
§ 1981, both the C ou rt’s desire to insulate nonem ploy­
m ent regu la tory  statutes fro m  disproportionate im ­
pact challenges, and C ongress ’ desire fo r  a prom pt 
and volu n tary  resolution  o f  em ploym ent d iscrim ina­
tion claim s, w ill be seriously frustrated .

329



32

II. The Ninth Circuit’s Quota Remedy Is Inappropriate.

A. The Courts’ Remedial Authority Is Not Unlimited, 
But Is Restricted To Remedying Specific Violations 
Found.

The rem edial quota established b y  the N inth  C ir­
cu it  offends th is C ou rt’s lon g  established princip le  
that “ as w ith  any equity  case, the nature o f  the v io la ­
tion determ ines the scope o f  the rem edy.”  Swann 
v. Charlotte-Mecklenburg Board of Education, 402 
U .S. 1, 16 (1 9 7 1 ) ;  Milliken v. Bradley, 418 U .S. 
717, 744 (1 9 7 4 ) ;  and The Regents of the University
of California v. Allan Bakke, ------- U .S. -------- , 46
U .S .L .W . 4896, 4904 (1 9 7 8 ) (op in ion  o f  M r. Justice 
P o w e ll ) , and cases cited  therein.

These sam e restriction s app ly  to  em ploym ent d is­
crim in ation  cla im s w here the rem edial choices “  ‘are 
not le ft  to a cou rt ’s inclination , but to its ju d gm en t; 
and its  ju d gm en t is to be gu ided  b y  sound legal p r in ­
cip les.’ ”  Albemarle Payer Co. v. Moody, 422 U .S. 
405, 416 (1 9 7 5 ) , c it in g  United States v. Burr, 25 
Fed. Cas. 30, 35. I t  is  evident, th erefore, that “ courts 
m ay not im pose . . .  a rem edy on an em ployer at 
least until a v io la tion  . . . has been proven .”  See
Furnco Construction Cory. v. Waters,--------U .S. — — ,
46 U .S .L .W . 4966, 4969 (1 9 7 8 ).

In  fu rth e r  exp la in in g  these rem edial lim its, this 
C ou rt has stressed that, as u n der the N ation al L abor 
R elations A ct ,30 rem edies u n der the civ il rights acts * 655

30 See R e p u b l i c  S t e e l  C o r p .  v. N . L . R . B . ,  311 U.S. 7, 9-11 
(1940); and L o c a l  6 0 ,  C a r p e n t e r s  V . N . L . R . B . ,  365 U.S. 651,
655 (1961) (Where “no ‘consequences of violation’ are re­
moved . . .; and no ‘dissipation’ of the prohibited action is

330



33

are designed to recreate the conditions and relation ­
ships that w ou ld  have existed  had there been no v io la ­
tion, and to  m ake the em ployees w hole as they w ould 
have been but fo r  the em ployer’s w ron g fu l act. See 
F ra n k s  v. B o w m a n  T r a n sp o r ta t io n  C o., In c ., 424 
U.S. at 769. T herefore , a cou rt should fra m e its re­
lie f w ith  an eye tow ard  rem edying the p articu la r 
w ron g  foun d , “ and should in terfere  w ith  the defend­
ant’s operations no m ore  than is necessary to a c­
com plish this resu lt.”  See E E O C  v. IU O E , L oca ls  
U  &  15 , 553  F .2d  251, 256 (2n d  Cir. 1 9 7 7 ).* 31 A s 
now  dem onstrated, the rem edial h ir in g  order im posed 
by the cou rt below  is inconsistent w ith  these require­
ments.

Thus, even assum ing that the violations foun d  by  
the N inth C ircu it m ay  be m aintained under § 1981,32 
the h ir in g  quota w as outside its rem edial authority. 
Indeed, the rem edy appears to be unprecedented both 
fo r  its d isregard  o f  the rem edial standards established

achieved . . . [t]he order .. . becomes punitive and beyond the 
power of the Board.”) See generally McDowell and Huhn, 
N L R B  R e m e d i e s  f o r  U n f a i r  L a b o r  P r a c t i c e s , Industrial Re­
search Unit, The Wharton School, University of Pennsylvania (1976) 6-15.
31 See also F u m c o  C o n s t r u c t i o n  C o r p .  v. W a t e r s ,  46 U.S. 

L.W. at 4969 (“Courts are generally less competent than em­
ployers to restructure business practices, and unless mandated 
to do so by Congress they should not attempt it.”); and M i l l i -  

k e n  v. B r a d l e y ,  418 U.S. at 744 (Control of school district “is 
a task which few, if any, judges are qualified to perform.”)
32 As shown above, however, the absence of discriminatory 

intent requires a dismissal of the § 1981 claims. If the Court 
accepts that contention, it need not reach the quota issue in this case.

331



34

b y  this and oth er courts, and fo r  its fa ilu re  to lim it 
the rem edy to the n ature and extent o f  the violations.

A lth ou gh  the scope o f  the v io la tions fou n d  by  the 
d istrict cou rt w as m arkedly  b roader than those sus­
ta ined  by  the N inth  C ircu it, the appellate cou rt ap ­
proved  essentially  the sam e rem edy, thereby evidenc­
in g  an in sen sitiv ity  to  the lim its o f  its equitable au­
thority . The d istrict cou rt ’s quota  ord er w as based 
on tw o p r im a ry  fa c to r s : (a )  an im balance betw een 
the percentage o f  B lacks and M exican -A m erican s in 
the C ounty ’s w ork force  and the su rrou n d in g  popu la ­
tion  at the tim e the com pla in t w a s  filed ; and (b )  the 
C ounty ’s 1969 and 1972 use o f  em ploym ent tests 
w h ich  had a d isproportion ate im pact on m inorities.

The N inth  C ircu it substantia lly  deviated  fro m  the 
find ings o f  the cou rt below  and s ign ifican tly  n a r­
row ed  the fa c to rs  upon w hich  its quota could be 
based. It  fou n d  that th ere w as no one am ong the 
nam ed p la in tiffs  o r  the putative  class w h o had stand­
in g  to  challenge the 1969 test because the h ir in g  list 
com piled  fro m  that test w as depleted b e fore  p la in ­
tiffs  applied  fo r  em ploym ent. 556 F .2d  at 1337-1338. 
T h is  h old ing effectively  p recluded  the nam ed p la in ­
tiffs  and putative  class m em bers (i.e ., all present and 
fu tu re  B lack  and  M ex ican -A m erican  app lican ts) 
fro m  a ttack in g  any em ploym ent practices  predatin g  
th eir app lica tions.83 33

33 Because of this complete lack of standing, the majority 
found it unnecessary to rule on the applicability of E a s t  T e x a s  

M o t o r  F r e i g h t  S y s t e m s ,  I n c . V. R o d r i g u e z ,  431 U.S. 395 
(1977). 556 F.2d at 1338, n. 6. There the Court held that a 
plaintiff who has been adjudicated not to have suffered the

332



35

The on ly testing  v io la tion  fou n d  by the N inth 
C ircu it w as in the C ou nty ’s un fu lfilled  decision  to use 
the 1972 w ritten  test as a selection device. A s  Judge 
W allace noted, both he and the m a jor ity  agreed  that 
“ defendants are liable fo r  n oth ing  m ore than de­
vising a p lan— never ca rr ied  out— w hich  w ould  have 
had a d iscrim in atory  im pact.”  556 F ,2d  at 1352. 
He also stressed that the p la in tiffs ’ b r ie f  had con ­
ceded that “ the post-M arch  1972 discrim ination  . . . 
had no ‘effects.’ ”  Id . The m a jor ity  nevertheless ra ti­
fied the quota im posed by  the d istrict court, appar­
ently re ly in g  upon the underutilization  o f  m inorities 
in the w ork force  as com pared  w ith  their availability . 
556 F .2d  at 1334. B u t as Ju dge W allace  indicated, 
these statistics “ a re  necessarily  the result o f  the 
C ounty’s pre-1971 h ir in g  practices, since no firem en 
w ere h ired  th erea fter until the com plain t w as filed.”  
556 F .2d  at 1345.

The e rror  com m itted  by  the N inth  C ircu it here is 
grounded on the sam e fa lla cy  w hich prom pted  this 
C ourt to reverse the Seventh C ircu it in U n ited  A ir  
L in es , In c . v. E v a n s , 431 U .S. 553 (1 9 7 7 ). There, 
the C ourt cau tioned  that the d ifference between a 
rem edy issue and a  violation  issue m ust be kept clear. 
431 U .S. a t 559. It  is on ly  a fte r  a tim ely d iscrim ina­
tion cla im  has been filed and a find ing o f  d iscrim ina­
tion upon that cla im  has been m ade that the courts 
have the au th ority  to contem plate w hether a rem edy 
m ay be im posed. U nder this teach ing in E v a n s , the

injury allegedly sustained by an uncertified class is not a 
class member and may not be a class representative. From 
R o d r i g u e z ,  it follows a  f o r t i o r i that the validity of petitioners’ 
pre-1971 employment practices could not be attacked here 
because no class member had standing to pursue the claim.

333



36

cru cia l question is n ot w hether there m ay be some 
con tin u ity  betw een ex istin g  cond itions and som e past 
conduct. T he question, rather, is  w hether any present 
v io la tio n  exists. 431 U .S. a t 558. It  is not sufficient—  
as the courts below  have sought to  do— to su pp ort a 
d iscrim in ation  cla im  b y  m erely  sh ow in g  that som e 
effects o f  past conduct persist. T h is  is  tru e  even i f  the 
past event m igh t have at som e tim e supported  a valid  
c la im  again st the em ployer. U nless such a  cla im  is 
m ade at the p rop er  tim e, it  m ay, at m ost, be used 
as relevant backgrou n d  evidence in a proceedin g  
con cern in g  a  cu rren t practice .

A s  cogen tly  stated in  Ju d ge  W alla ce ’s  dissent, “ the 
racia l im balance o f  w hich  the p la in tiffs  com plain  w as 
n either aggravated  n or  perpetuated  b y  the defen d ­
ants ’ actionable d iscrim in ation .”  556 F .2d  at 1352. 
B ecause there is no au th ority  f o r  a cou rt “ im posing 
on  an em ployer a duty  to im plem ent an affirm ative 
action  p rogram  or oth er corrective  m easures absent a 
cou rt fin d in g”  o f  a violation , the rem edy at issue is 
im proper. E E O C  v. D e lta  A i r  L in e s , In c ., — —
F .S u pp . --------, 14 E P D  (C C H ) par. 7783, p. 5633
(N .D . Ga. 1 9 7 7 ). See also L e w is  v. T ob a cco  W o r k e r s ,
--------  F .2d  -------- , 17 F E P  Cases 622, 627 (4 th  C ir.
1 9 7 8 ).

B ecause no a llegations o f  w idespread  pre-1971 v io ­
lations w ere  p rop erly  b e fore  the N inth  C ircu it, its 
rem edial ord er here is not supported  by  the prospective 
h ir in g  provisions contained  in the consent decree re­
fe rred  to in I n t ’ l B r o th e r h o o d  o f  T e a m s te r s  v. U n ited  
S ta te s , 431 U .S. 324, 330, n.4 (1 9 7 7 ). (S ee  R espond­
ents op. cert, a t 2 7 ) .  There, the C ou rt repeatedly 
stressed the fa c t  that a w idespread  “ pattern  and

334



37

practice”  o f  d iscrim in ation  had been shown, and fu r ­
ther poin ted  out that a “ single, insign ificant, isolated 
act o f  d iscrim in ation  b y  a single business’ ”  w ould  
not establish a  pattern  o r  p ractice . 431 U .S. a t 336- 
337, n. 16.

In addition , the rem edial discussion  s e t  f o r t h  in 
T ea m sters  does n oth in g  to  su pp ort the N inth  C ir­
cu it’s quota. F or , ra th er than p erm ittin g  a blanket 
p referen ce fo r  m inorities, the C ourt established a 
system  u n der w hich  app lican t and nonapplicant cla im ­
ants w ou ld  be requ ired  to id en tify  them selves to the 
d istrict cou rt in  a  rem edy proceedin g  as v ictim s o f  
the d iscrim in atory  h ir in g  and tra n sfer  practices. The 
requirem ents f o r  nonapplicants a re  p articu larly  in ­
structive, as the C ou rt stated  that the possib ility  o f  
obtain ing re lie f “ is a fa r  cry , how ever, fro m  holding 
that nonapplicants are a lw ays entitled  to  re lie f.”  431 
U .S. at 367. Instead, the cla im an t m ust ca rry  the 
difficult burden  o f  establish ing he w as deterred by  the 
illegal practices fro m  app ly in g  f o r  the job . 431 U.S. 
at 367-368.

Likew ise, the retroactive  sen iority  re lie f sanctioned 
in  F r a n k s  v. B o w m a n  T r a n sp o r ta t io n  C o., In c ., w as 
lim ited to identifiable v ictim s o f  an established pat­
tern or p ra ctice  o f  d iscrim ination . 424 U .S. at 772, 
774. A s  poin ted  out in  T ea m ste r s  v. U n ited  S ta tes , 
this pattern  or  p ractice  established in F r a n k s  w as a 
prerequisite fo r  the creation  o f  a rebuttable presum p­
tion in fa v o r  o f  ind ividual re lie f. See 431 U .S. at 
358-359 and n. 45.

It is evident, therefore, that the preferen tia l h ir ­
in g  order in this case fa r  exceeds any rem edy p re ­
viously  sanctioned  by  th is Court.

335



38

B. W orkforce Racial Imbalance A lone W ill N ot Sup­
port The Quota Remedy.

B y im posing  the pre feren tia l h ir in g  rem edy, the 
N in th  C ircu it attem pted to  co m p e l  the C ounty to 
adopt h ir in g  procedu res to assure that its w o rk fo rce ’s 
racia l com position  w ou ld  closely m irro r  the su rrou n d ­
in g  general population .34 B ut, w here, as here, the 
v io la tion  fou n d  has not contributed  to that im balance, 
such a rem edy is  m uch m ore strin gen t than perm itted  
by  the civ il righ ts  laws.

T h is C ou rt has em phasized repeatedly that the ob­
ligation  im posed on em ployers by  the relevant non­
d iscrim in ation  statutes is to p rovide “ an equal op ­
p ortu n ity  fo r  ea ch  app licant regardless o f  race, w ith ­
out regard  to w hether m em bers o f  the app lican t’s 
race are a lready p rop ortion ately  represented in the 
w o rk fo rce .”  See F u r n c o  C o n s tr u c tio n  C orp . v. W a te r s ,  
46 U .S .L .W . at 4970. A s  stated  in  G r ig g s  v. D u k e  
P o w e r  C o., 401 U .S. a t 4 3 0 :

C ongress d id not intend  T itle  V II , how ever, to 
gu aran tee  a  jo b  to every  person  regardless o f  * V.

34 It should be noted that this case does not call into question 
the validity of affirmative action plans which have been under­
taken v o l u n t a r i l y to achieve racial balance. Compare W e b e r

V. K a i s e r  A l u m i n u m  a n d  C h e m i c a l  C o r p . , 563 F.2d 216 (5th 
Cir. 1977), p e t .  f o r  r e h ’g  d e n i e d , 571 F.2d 337; and D e t r o i t  

P o l i c e  O f f i c e r s  A s s n .  V. Y o u n g ,  446 F.Supp. 979 (E.D. Mich. 
1978), a p p e a l  p e n d i n g  No. 78-1163 (6th Cir.). Cf. T h e  R e ­

g e n t s  o f  t h e  U n i v e r s i t y  o f  C a l i f o r n i a  V. A l l a n  B a k k e ,  s u p r a .  

Rather, at issue is the authority of the court to i m p o s e  such 
relief absent sufficient supportive findings of discrimination.

336



39

qualifications. In  short, the A ct  does not com ­
m and that any person  be h ired  sim ply because 
he w as fo rm er ly  the su b ject o f  discrim ination , 
or  because he is  a m em ber o f  a m in ority  group. 
D iscrim in atory  p re feren ce  fo r  any group, m i­
n ority  or m a jority , is precisely  and only w hat 
C ongress has proscribed. W h at is required  by 
C ongress is the rem oval o f  artificia l, a rb itrary , 
and unnecessary b arriers  to em ploym ent when 
the barriers  operate inv id iou sly  to d iscrim inate 
on the basis o f  racia l or  other im perm issible clas­
sifications.

A ccord , M cD o n n e ll  D o u g la s  C orp . v. G reen , 411 U.S. 
at 800 -801 ; and I n t ’ l. B r o th e r h o o d  o f  T ea m s te r s  v. 
U n ited  S ta te s , 431 U .S. a t 340, n.20 ( “ T itle  V II  im ­
poses no requirem ent that a  w ork force  m irror  the 
general popu lation .” ) : 3'5 S im ilarly , the courts repeat­
edly have held that Section 1981 “ is by its very  term s 
. . . not an affirm ative action  p rogram .”  L o n g  v. F o r d  35

35 Although statistical disparities in some circumstances 
might establish a p r i m a  f a c i e case of discrimination, it is im­
portant not to equate a p r i m a  f a c i e showing with an ultimate 
finding of a discriminatory refusal to hire. See F u r n c o  C o n ­

s t r u c t i o n  C o r p .  v. W a t e r s ,  46 U.S.L.W. at 4969-4970. Even 
less appropriate is the Ninth Circuit’s attempt to fashion a 
remedy based upon background underrepresentation statistics 
not directly related to the charges considered by the court. 
Such an approach effectively deprives the employer of his 
opportunity to present rebuttal evidence to counteract the 
plaintiff’s undifferentiated statistical evidence. See generally 
I n t ’l. B r o t h e r h o o d  o f  T e a m s t e r s  v. U n i t e d  S t a t e s , 431 U.S. at 
339-340 and n. 20; and H a z e l w o o d  S c h o o l  D i s t r i c t ,  e t  a l . V. 
U n i t e d  S t a t e s , 433 U.S. 299, 307-313 (1977).

337



40

M o to r  C o ., 496 F .2d  500, 505 (6 th  C ir. 1 9 7 4 ). 
R a th e r :

It  is an equalizing provision  seeking to ensure 
that righ ts  do not v a ry  a ccord in g  to race. It 
does not requ ire that persons be accorded  p re f­
erentia l treatm ent because o f  their race. Id .36

A s show n above, the evident purpose o f  the h ir in g  
rem edy w as to im pose a h ir in g  schem e to ra cia lly  
balance the em ployer ’s w ork force , even though there 
w as no related  fin d in g  o f  d iscrim in ation  and not even 
a putative class m em ber w ho w ould  have been eligible 
to  attack  the practices w hich  m igh t have contributed  
to the im balance. Previously , this Court, has cautioned 
the appellate cou rts that such an approach  is im per­
m issible. A s  stated in D a y to n  B o a r d  o f  E d u c a tio n  
v. B rin k m a n , 433 U .S. 406, 417 (1 9 7 7 ) :

V ie w in g  the fin d in gs o f  the D istr ict C ou rt as 
to the th ree-part “ cu m u lative  v io la tion ”  in the 
stron gest ligh t fo r  the respondents, th e  C o u r t  o f  
A p p e a ls  s im p ly  h ad  n o  w a r r a n t  in  o u r  c a s e s  f o r  
im p o s in g  th e  s y s te m w id e  r e m e d y  w h ich  i t  a p ­
p a r e n t ly  did . T here had been no sh ow in g that 
such a rem edy w as necessary to  “ elim inate all 
vestiges o f  the state-im posed school segregation .”  
It is clear fro m  the find ings o f  the D istr ict C ourt 
that D ayton  is a ra cia lly  m ixed  com m unity , and 
that m an y o f  its schools are e ith er predom in an tly  
w h ite  o r  predom in an tly  black. T h is  fa c t  w ithout

36 Accord, B l o u n t  V. X e r o x  C o r p . , 405 F. Supp. 849, 853, 
(N.D. Cal. 1975); B r o u s s a r d  V. I U O E  A p p r e n t i c e s h i p  C o m ­

m i t t e e , ---F. Supp. --- , 10 FEP Cases 780, 784 (D. Md.
1974); and D i c k e r s o n  v. U n i t e d  S t a t e s  S t e e l  C o r p . ,  s u p r a  n. 4, at slip op. p. 20.

338



41

m ore, o f  course, does not offend  the C onstitu­
tion. S p e n c e r  v. K u g le r ,  404 U .S . 1027 (1 9 7 2 ) ;  
S w a n n , ,[402 U .S. a t 2 4 ] . The C ou rt o f  A ppeals 
seem s to have view ed the present stru ctu re  o f  the 
D ayton  school system  as a  sort o f  “ f r u it  o f  the 
poisonous tree ,”  since som e o f  the racia l im ­
balance that presently  obtains m ay have resulted 
in som e p a rt fro m  the three instances o f  segrega ­
tion  action  fo u n d  b y  the D istr ict Court. B u t  
in s tea d  o f  ta ilo r in g  a  r e m e d y  co m m en su ra te  to  
th e th r e e  s p e c i f ic  v io la tio n s , th e  C o u r t  o f  A p p ea ls  
im p o sed  a  s y s te m w id e  r e m e d y  g o in g  b eyon d  th e ir  
scop e . (E m ph a sis  a dd ed ) .

U nder these princip les, the h ir in g  rem edy should 
be set aside because it  fa ils  to  lim it the rem edy to 
correlative acts o f  d iscrim in ation  and is d irectly  con­
trary  to the basic p rincip les u n derly in g  the civil 
rights acts.

C. The Court’s Remedial Order Lacks Judicial Support.
A s dem onstrated above, the preferen tia l h ir in g  rem ­

edy w as im posed b y  the N inth  C ircu it w ithout any 
evident concern  about w hether such a rem edy was 
justified  b y  the d iscrim in ation  found. In  fa ct, in its 
discussion o f  the quota rem edy, the N inth  C ircu it 
m a jority  barely  m entions the violations at all, but 
rather relies m ain ly  upon a boilerp late strin g  citation  
o f  the cases w hich  have approved preferen tia l h irin g  
relief. N one o f  those decisions w as discussed in any 
detail, and a b r ie f  exam ination  reveals that the N inth 
C ircu it’ s fa c ile  approach  contrasts g reatly  w ith  v ir ­
tually every other decision  approv in g  quotas.

Thus, m an y other appellate decisions have recog ­
nized the sensitive problem s raised by  the rem edy and 
have expressed reluctance in g ra n tin g  quota relief,

339



42

even w here w idespread  system ic d iscrim in ation  has 
been proven . A s  w as stated in C r o c k e t t  v. G reen , 388 
F . Supp. 912, 921 (E .D . W is . 1 9 7 5 ), ctff’d, 534 F .2d  
715 (7 th  C ir. 1 9 7 6 ) :

[R ]a t io  h ir in g  o r  quota re lie f is an unusual and 
ex tra ord in a ry  rem edy and  does n ot autom ati­
ca lly  fo llo w  fro m  the fin d in g  o f  any  k ind  o f  d is­
crim in ation  . . .  [ I t ]  is a pp rop ria te  . . . [w h ere] 
. . .  it  appears to  be the o n ly  possible m eans to 
provide re lie f f o r  racia l d iscrim in ation . (E m ­
phasis a d d e d ).87

In  addition , the p rin cip a l cases a pp rov in g  quota 
re lie f have done so on ly  a fte r  p a rticu la rly  egregious * 16

37 Accord, O s t a p o w i c z  V. J o h n s o n  B r o n z e  C o . , 541 F.2d 394 
(3rd Cir. 1976), c e r t ,  d e n i e d , 429 U.S. 1041, r e h .  d e n i e d , 430 
U.S. 911 (1977) (“Quotas are an extreme form of relief and, 
while this Court has declined to disapprove their use in nar­
row and carefully limited situations [citations omitted], cer­
tainly that remedy has not been greeted with enthusiasm.”); 
P a t t e r s o n  V. A m e r i c a n  T o b a c c o  C o . ,  s u p r a ,  note 18, at 274 
(“[T]he necessity for preferential treatment should be care­
fully scrutinized and . . . such relief should be required only 
when there is compelling need for it.”); U n i t e d  S t a t e s  V. C i t y  

o f  C h i c a g o ,  s u p r a  note 4, at 437 (“Preferential numerical re­
lief nevertheless remains an extraordinary remedy, and its 
use must be justified by the particular circumstances of each
case.”); W h i t e  V. C a r o l i n a  P a p e r b o a r d  C o r p . , ---F.2d--- ,
16 FEP Cases 44, 58 (4th Cir. 1977) (“But we have declined 
to approve the imposition of quotas where, as here, adequate 
relief can be obtained without their use.”); and H a m p e r  V. 
K l o s t e r , 486 F.2d 1134 (4th Cir. 1973). See also K i r k l a n d  

v. N e w  Y o r k  S t a t e  D e p a r t m e n t  o f  C o r r e c t i o n a l  S e r v i c e s , 520 
F.2d 420, 427 (2nd Cir. 1975), r e h ’g  e n  b a n c  d e n i e d , 531 F.2d 
5, c e r t ,  d e n i e d , 429 U.S. 823 (1976) (“The most ardent sup­
porters of quotas . . . have recognized their undemocratic in­
equities and conceded their use should be limited.”); and 
E E O C  V. L o c a l  6 S 8 , 532 F.2d 821 (2nd Cir. 1976).

340



43

d iscrim in atory  p ractices  had  been p rop erly  established 
by tim ely  claim s and specifica lly  set forth  as the basis 
fo r  the re lie f im posed. F o r  exam ple, in U n ited  S ta tes  
v. L a th e r s , L o ca l U6, 471 F .2d  408 (2 d  C ir. 1 9 7 3 ), a 
quota w as ordered  on ly  a fte r  the union  w as cited fo r  
contem pt in fa ilin g  to com ply  w ith  a cou rt-approved  
settlem ent agreem ent. A n d  even w here such practices 
have been established, the decisions indicate that the 
preferentia l re lie f m ay  go  no fu rth e r  than to elim i­
nate the identifiable lin gerin g  effects o f  previous dis­
crim in atory  p ractices b y  the p articu la r em ployer.38

In sum , m ost appellate courts, w hile not entirely 
consistent in th eir approaches to quotas and other 
preferentia l rem edies in cases o f  em ploym ent dis­
crim ination , have been m ore ca re fu l in  assessing lia­
bility, and m uch m ore relu ctan t to im pose quota rem ­
edies than the N inth  C ircu it in this case. It  fo llow s, 
therefore, that “ in v iew  o f  the lim ited scope o f  the 
issues fra m ed  in this class action  and the pau city  o f  * 419

38 B o s t o n  C h a p t e r ,  N A A C P ,  I n c . V. B e e c h e r ,  504 F.2d 1017 
(1st Cir. 1974), c e r t ,  d e n i e d , 421 U.S. 910 (1975); W e s t e r n  

A d d i t i o n  C o m m u n i t y  O r g a n i z a t i o n  v. A l i o t o , 514 F.2d 542 
(9th Cir. 1975), c e r t ,  d e n i e d , 423 U.S. 994 (1975); M o r r o w  V. 
C r i s l e r , 491 F.2d 1053 (5th Cir. 1974) (e n  b a n c ) ,  c e r t ,  d e n i e d ,

419 U.S. 895 (1974) (Temporary quota imposed because of 
lack of compliance with district court’s initial decree); and 
N A A C P  V. A l l e n , 493 F.2d 614, 621 (5th Cir. 1974) (The 
quota “is a form of relief which should be reserved for those 
situations in which less restrictive means have failed or in 
which the chancellor could reasonably foresee that they would 
fail.”).

341



44

the p ro o f  con cern in g  past d iscrim in ation ,”  59 the quota 
h ir in g  rem edy established below  should be set aside.4'0

CONCLUSION

F o r  the fo re g o in g  reasons, the E qual E m ploym ent 
A d v iso ry  C ouncil resp ectfu lly  subm its that the ju d g ­
m ent o f  the N inth  C ircu it should be reversed w ith  in ­
structions that the ord er o f  the d istrict cou rt be 
vacated  and the com pla in t dism issed.

R esp ectfu lly  subm itted,

Robert E. W illiams 
Douglas S. McDowell 
Jeffrey A. Norris

McGuiness & W illiams
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

September, 1978 39 40

39 K i r k l a n d  V. D e p a r t m e n t  o f  C o r r e c t i o n a l  S e r v i c e s , 520 
F.2d at 428.
40 For a fuller discussion of court decisions relating to pref­

erential treatment remedies under Title VII and other civil 
rights acts see McGuiness, P r e f e r e n t i a l  T r e a t m e n t  i n  E m ­

p l o y m e n t — A f f i r m a t i v e  A c t i o n  o r  R e v e r s e  D i s c r i m i n a t i o n ? ,  

EE AC (1977) 73-106.

342



In the Supreme Court of the 
United States

October Term, 1978  

N o. 7 7 -1 5 5 3

County of Los Angeles;
Board of Supervisors of the County 

of Los Angeles and Civil Service Commission of the 
County of Los Angeles 

Petitioners,

vs.
Van Davis, Hershel Clady and Fred Vega, individually and 
on behalf of all others similarly situated, W illie C. Bursey, 
Elijah Harris, James W. Smith, W illiam Clady, Stephen 
Haynes, Jimmie Roy Tucker, Leon Aubry, Ronald Craw­
ford, James Heard, Alfred R. Baltazar, Osbaldo A. Am- 
parah, individually and on behalf of all others similarly situated. 

Respondents.

On Writ o f Certiorari to the United States 
Court o f Appeals for  the Ninth Circuit

BRIEF OF AMICUS CURIAE 
IN SUPPORT OF PETITIONERS’ BRIEF

George Agnost
City Attorney of the City and 
County of San Francisco

Burk E. Delventhal 
Diane L. Hermann

Deputy City Attorneys
Room 206, City Hall 

San Francisco, CA 94102 
Telephone: (415) 558-3559

Attorneys for Amicus Curiae

343





Table of Contents

Page

I. Introduction ......................... 1
II. Overview of City’s argument ............ • 6
III. Nature of burden imposed on private employers 

under Title VII and Section 1981 as interpreted by
the Ninth Circuit.... ............... • 13

IV. Nature of Congress’ Commerce Power...... 16
V. Limitations on Congress’ power implicit in the 

concept of States’ Sovereignty set forth in the 
Tenth Amendment ...................  18

VI. Equal Protection Clause in employment discrim­
ination context......................  23

VII. Limits of Congress’ power set forth in the Consti­
tution the doctrine of State Sovereignty.....  28 VIII.

VIII. Conclusion ..........   48

345



Table of Authorities Cited

Acosta v. Southern Calif. Rapid Transit Dist. 2 Cal.3d 
19, 84 Cal.Rptr. 184, 465 P.2d 72 (1970) ........ 42

Albemarle Paper Co. v. Moody 400 U.S. 405, 45 L.Ed.2d 
280 95 S.Ct. 2362 (1974) ............... 13,18, 22

Bolling v. Sharpe 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed.
884 (1954) ........................... 24,40

Brady v. Bristol-Meyers Inc. 459 F.2d 621 (1972) ... 34
Christensen v. Charles School District 558 F.2d 1169, 
1171-1172 (1972) (4th Cir.) ...............  20

Davids v. Akers 599 F.2d 120 (1977) (9th Cir.) ....  7
Davis v. County of Los Angeles 566 F.2d 1335 (1977) . 8
Dothard v. Rawlinson 433 U.S. 321 (1977)........ 12
Ex parte Riggins 134 F.404 (1904) ............  35
Fisher v. Southern Pacific Railroad Co. 89 Cal. 399, 26 
P. 894 (1891) ...............   42

Fitzpatrick v. Bitzer 427 U.S. 455 (1976) ........ 19, 37
Geduldig v. Aiello 417 U.S. 484 (1974) ...... ....  15
General Electric Co. v. Gilbert 429 U.S. 125, 97 S.Ct.
401, 50 L.Ed.2d 162 (1976) ................ 14,42

Gibbons v. Ogden 9 Wheaton 1, 6 L.Ed. 23 (1824)...16, 29
Griggs v. Duke Power Co. 401 U.S. 424, 28 L.Ed.2d 158,
91 S.Ct. 849 (1971) ................ 14,18,22,28

Heart of Atlanta Motel v. United States 379 U.S. 241,
85 S.Ct. 348, 13 L.Ed.2d 258 (1964) ...........16, 30

Katzenbach v. Morgan 384 U.S. 641, 86 S.Ct. 1717, 10 
L.Ed.2d 828 (1960) ................. 30,31,32,36

Cases Page

ii

346



Page
Lafayette v. Louisiana Power & Light — — U .S .-- , 98
S.Ct, 1123, 55 L.Ed.2d 364 (1978) ........... 12

Lindsley v. National Carbonic Gas Co. 220 U.S. 61, 65 
(1910) ..............................  23

McGowan v. Maryland 366 U.S. 420 (1960) ....... 23
McRedmond v. Wilson 533 F.2d 757, (1976) ....... 17
National Labor Rel. Bd. v. Jones & Laughlin Steel Corp.
1 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1936) ...... 16

National League of Cities v. Usery 426 U.S. 833
(1976) ..... ...... .7, 16,19, 20, 28, 29, 36, 39, 40, 43

Officers for Justice v. Civil Service Commission of San 
Francisco 371 F.Supp. 1328 (1973), 395 F.Supp. 378
(1975) ............................ 3,4,5,10

Oregon v. Mitchell 400 U.S. 112, 27 L.Ed.2d 272 (1971) .34, 47
Regents of the University of California v. Bakke 
---U.S.---38 CCH S.Ct. Bull. 3910 (1978) . . .12,18, 31

United States v. Solomon 419 F.Supp. 358 (1976) ... 7
Usery v. Owensboro-Daviess Co. Hospital 423 F.Supp.
843, 845-846 (W.D. Ky.) (1976) .........  20

Washington v. Davis 426 U.S. 229
(1976) ......... 7,13,14,23,24,27,35,48

Western Addition Community Organization v. Alioto 514 
F.2d 542 (1975) (9th Cir.) .............. 3, 4, 8, 9

Younger v. Harris 401 U.S. 37 (1971) ...........  47

i i i 347



United States Code

Title 42 U.S.C. §1973b .... ............... . 31
Title 42 U.S.C. §1981 ... 1,12,15, 23, 28, 34, 35, 38,40, 41, 48
Title 42 U.S.C. §1983 ...................... 1,4
Title 42 U.S.C. §2000e ................... .4,16, 20
Title 42 U.S.C. §2000e-2(a) (1) ...............  20
Title 29 U.S.C. §203d ...................... 19
Title 29 U.S.C. §2034 ......................  29
Title 29 U.S.C. §213a........ ....... ......  29

Page

iv

348



INTRODUCTION

The C ounty o f  Los A ngeles, h ere in a fter Petitioner, 
has certified  as e rror  the ru lin g  o f  the C ourt o f  A ppeals 
fo r  the N inth  C ircu it that a show ing o f  statistical ad­
verse im pact resu ltin g  fro m  the application  o f  an em ­
ploym ent selection exam ination  is sufficient to establish 
a p r im a  fa c i e  v io lation  o f  T itle  42 U.S.C. §1981. In 
addition, P etition er has questioned the va lid ity  o f  that 
ru ling in term s o f  the scope and effectiveness o f  the 
racial h ir in g  order.

A s noted in m ore detail below , San F ran cisco  is pres­
ently d e fen d in g  a law su it challenging  its police depart­
ment h ir in g  procedures. T h at case is set fo r  tria l on 
October 2 4 ,1 9 7 8 . One o f  the central issues in that case 
involves w hether a p r im a  fa c i e  case m ay be m ade out 
against San F ran cisco  on a m ere show ing o f  statistical 
adverse im pact in the adm in istration  and application  
o f en try  and prom otion al exam ination  in the depart­
ment. The constitu tional con flict between C ongress ’ 
pow er to establish national econom ic policy  in the area 
o f em ploym ent and state and local prerogatives to or­
der their sovereign  operations lies in  the balance. A nd 
in particu lar the civil service m erit system  adopted 
early in this cen tu ry  across this cou n try  is threatened 
with destruction  as a consequence o f  quota h irin g  
which substitutes racia l cr iteria  fo r  m erit and w hich 
tends to d iscou rage w hite m ales and those m inorities 
who m ay not lay  claim  to the privileged  status o f  being- 
victim ized through  adverse im pact from  seeking ad­
vancem ent based on their know ledge and grasp  o f  a 
police departm ent’ s operations.

The m erit system  o f  public em ploym ent selection

349



2

w as adopted as a re fo rm  to rep lace the spoils system  
w hich  all too o ften  w as ethnically  or  ra cia lly  oriented  by 
po litic ian s w ho view ed the citizen ry  as con sistin g  o f  
ethnic votin g  blocks. These politicians w ere  m ore con ­
cerned  w ith  the politica l ga in s to be derived  fro m  pub­
lic  service appointm ents than w ith  the ind iv idu al tal­
ents o f  the applicants and the benefits to the public to 
be derived  fro m  the appointm ent o f  h igh  quality  app li­
cants. A dverse  im pact standards and quota h ir in g  
orders n u llify  the very  procedures w hich  civ il service re ­
fo rm  sought to elim inate. Thus there is m ore to th is case 
than the abstract question o f  w hat is  necessary fo r  a 
p r im a  fa c i e  case again st a public em ployer. W h a t lies 
in  the balance is  the w ell established and soundly based 
civ il service system  o f  m erit appointm ent as w ell as the 
p ow er o f  state and local governm ents to  ord er th eir 
a ffa irs  w ith in  the ran ge o f  w hole options perm itted  un­
der the Fourteenth  A m endm ent. It  is  to these essential 
issues that San F ran cisco  addresses this am icus cu riae  
b rie f.

A  w ord  o f  caution  is also in order. The case on ly 
involves questions re la tin g  to constitu tional lim itations 
on C ongressional p ow er to regu late state and local gov ­
ernm ents in their em ploym ent practices. C ongress has 
on ly  proh ib ited  “ d iscr im in ation ”  in em ploym ent. A s  
w ill be m ore fu lly  developed below  this p roh ib ition  
should be in terpreted  in  the context o f  public em ploy­
ers exten d in g  to and p roscr ib in g  on ly those em ployee 
section practices  o f  public em ployers w hich  am ount to 
constitu tional violations. The E E O C  in g o in g  beyond 
this lim it has exceeded its  statutory  and constitutional

350



3

authority. It  m ay  very  w ell be that in the private sec­
tor w here until re la tively  recently  racia l and religious 
d iscrim ination  w ere legal and prevelant there w as a 
need and basis fo r  C ongressional action. Intentional 
racial and re lig iou s d iscrim in ation  by  public em ployers 
and a lw ays has been, since the ra tifica tion  o f  the F ou r­
teenth A m endm ent, illegal. E n forcem en t o f  the F ou r­
teenth A m endm ent through  the proh ib ition  o f  and spe­
cification o f  rem edies fo r  constitutional v iolations is 
sufficient to im plem ent the policy  o f  the Fourteenth 
A m endm ent w hile not n u llify in g  the separate existence 
o f  the states as politica l entities and Federal system  as 
contem plated b y  the Tenth  A m endm ent.

The C ity  and C ounty o f  San Francisco, h erein after 
San F ran cisco , has a v ita l in terest in the outcom e o f  
this case. Since 1970, San F ran cisco  has expended con­
siderable am ounts o f  tim e, m oney and hum an resources 
in an effort to im prove the racia l m ix o f  its fire and 
police departm ents. T o  date the courts in the N orthern  
D istrict o f  C a liforn ia  have consistently applied the ad­
verse (o r  d ispa ra te ) im pact standard against San 
F rancisco in litiga tion  involv in g  both the San F ra n ­
cisco Police and F ire  D epartm ents.1 In both the W A C O  
and the O fficers  f o r  J u s tic e  cases, the p la intiffs chal­
lenged the w ritten  exam ination  used to select police 
officers and firefighters in San F ran cisco on the basis * 536

1. See Western Addition Community Organization v. Alioto, 514 F.2d 
542 (1975) (9th Cir.) (hereinafter referred to as “ WACO” ) and the ex­
tensive detail set forth in district court decisions reported at 330 F. Supp.
536 (N.D.Cal. 1971) ; 340 F.Supp. 1351 (N.D.Cal. 1972); 360 F.Supp 733 
(N.D.Cal. 1973); 369 F.Supp. 77 (N.D.Cal. 1973). See also Officers for 
Justice v. Civil Service Commission of San Francisco, 371 F.Supp. 1328 
(N.D.Cal. 1973) and 395 F.Supp. 378 (N.D.Cal. 1975) (hereinafter re­
ferred to as “Officers For Justice.” )

351



4

o f  T itle  42 U .S.C . §§1981 and 1983.2 In both W A C O  
and O fficers  f o r  J u s tic e , the p la in tiffs  in establishing 
entitlem ent to re lie f again st the w ritten  exam ination , 
relied  solely on statistical evidence dem on stratin g  an 
adverse im pact on identifiable m inorities. In  both 
cases there w as n o  evidence o f  any intentional d iscr im ­
ination  and in both cases San F ran cisco  w as unable to 
develop an em ploym ent selection device w hich  could  
pass m uster under the rigorou s  em pirical validation  
ru les set dow n in the E qual E m ploym ent O pportun ity  
C om m ission  (h erea fter , “ E E O C ” ) gu idelin es.3 These 
gu idelines w ere  prom ulgated  by  the E E O C  pursuant 
to  T itle  V II , w ere applied  in 1981, 1983 cases to  exam s 
w hich  had all been created  p r io r  to the effective date o f  
the 1972 am endm ent to T itle  V II , exten d in g  the statute 
to public em ployees.

A s  a result, in  both cases in ju n ction s w ere  issued 
w hich  e ffectively  nullified  San F ra n cisco ’ s p rofession ­
a lly  developed though not em p irica lly  validated  exam ­
inations fo r  police  officers and firefighters. The cou rt 
orders also contravened  the San F ran cisco  C harter and 
com m on law  concepts o f  com petitive exam inations fo r  
civil service em ploym ent. In  W A C O ,  San F ran cisco  
w as required  to low er the passing grade on the fire ­
figh ter w ritten  exam ination  to such a level that it  no 
longer served any u sefu l purpose as a device fo r  select­

2. In 1977 the Officers for Justice complaint was amended so as to in­
clude a cause of action based on Title VII of the Civil Rights Act of 1964, 
Title 42 U.S.C. §2000e. However, all litigated issues to date have involved 
claims based solely on Title 42 U.S.C. §§1981 and 1983.

3. Those rules were embodied in EEOC guidelines §1607 C.F.R. After 
President Carter’s reorganization of enforcement agencies, the EEOC is­
sued—8/23/78 new uniform guidelines. They are not yet available.

352



5

ing com petent em ployees. San F ran cisco  w as also re­
quired to cease u sin g  it as a ran k in g  device. A s a re­
sult, applicants w ere no longer ranked accord in g  to 
their perform a n ce  on the w ritten  exam ination. R ather 
those w ho “ m ade the cu t”  on the w ritten  exam ination  
w ere ranked on the basis o f  their perform an ce in the 
physical exam ination  and in  the oral interview  p u r­
suant to cou rt order.

A n d  as w ill be dem onstrated by San F ran cisco  in its 
O fficers  f o r  J u s tic e  Case, the adverse im pact and quota 
rules have an even m ore devastating im pact at the p ro ­
m otional level o f  the police departm ent. A s  these rules 
are being cu rren tly  applied  in the San F ran cisco police 
departm ent, they have a severe effect on those persons 
w ho have chosen to m ake a career o f  police w ork. M any 
o f  them  have spent years p rep arin g  fo r  prom otional 
exam inations on ly  to be fru stra ted  by learn ing that 
prom otions in the fu tu re  and under quota orders w ill 
be m ade on the basis o f  fa c to r  w hich bear no legitim ate 
relationship to th eir m erit w ith in  a civil service sys­
tem. The detrim ent to the public is patent.

A s can be seen Lrom these fa c ts  there has been a sub­
stantial, severe, and pervasive displacem ent o f  San 
F ran cisco ’ s C harter-m andated  em ploym ent selection 
procedures w hich  have never been proved to be racia lly  
biased or  otherw ise unconstitutional. T hus, the resolu­
tion o f  the Los A ngeles case involv ing some sim ilar 
facts  w ill d irectly  a ffect the O fficers  f o r  J u s tic e  case 
w hich is scheduled fo r  tria l on O ctober 24, 1978, as 
well as fu tu re  possible litigation  in the prom otive ranks 
o f the fire departm ent.

353



6

OVERVIEW OF CITY’S ARGUMENT

The P etition  fo r  W r it  o f  C ertiorari ably and thor­
ou gh ly  analyzes all the issues posed in this case except 
one. It  is the purpose o f  this A m icu s  C uriae b r ie f  to 
suggest to this C ou rt a resolution  o f  the constitutional 
issues posed in the instan t case w hich  w ill provide 
princip les to gu ide  em ploym ent selection litiga tion  in ­
vo lv in g  states and th eir subdivisions, both n §1981 and 
§1983 cases as w ell as in T itle  V I I  litigation .

A s  explained in detail below , the case in volv in g  on ly 
public em ployers w hose em ployee selection procedures 
are su b ject to the E qual P rotection  Clause. The on ly 
rational accom m odation  o f  the conflict betw een C on­
gress ’ en forcem ent pow er under Section 5 o f  the F o u r­
teenth A m en dm ent (o r  its  com m erce clause p ow ers) 
and the concept o f  state sovereign ty  em bodied in the 
Tenth  A m endm ent is  to conclude that in the con text o f  
state and local em ployers C ongress m ay proscribe  and 
prov ide  rem edies fo r  p ractices w hich  am ount to  con sti­
tu tional violations. H ow ever, C ongress m ay  not go 
fa r th e r  by  regu la tin g  w hat are constitu tional em ploy­
m ent p ractices because such regu lations invade essen­
tial state and local fu n ction s  w hich  are reserved b y  the 
C onstitution  to the states.

San F ran cisco  suggests to this C ou rt an additional 
and m ore con stitu tion a lly  thorough  grou nd  in support 
o f  the conclusion  that the "adverse  im pact”  standard 
applied by  the tria l cou rt and upheld by  the N inth  C ir­
cu it is constitu tionally  unsound. It  is San F ran cisco ’ s 
contention  that the adverse im pact standard  as a basis

354



7

fo r  a p r im a  fa c ie  case challenging  em ploym ent selec­
tion exam inations o f  state and local governm ent em ­
ployers both exceeds the constitutional standards a rtic­
ulated by  this C ourt in W a s h in g to n  v. D a v is , 426 U .S. 
229 (1 9 7 6 ) and v iolates the sovereign ty  o f  the State o f  
C aliforn ia  and its politica l subdivisions by in terfer in g  
with and d isp lacin g  em ploym ent selection procedures 
w here there has been no show ing o f  a v iolation  o f  the 
Fourteenth  A m endm ent. The m anner in w hich a local 
governm ent selects its  em ployees is as m uch an a ttri­
bute o f  state sovereign ty  as are the w ages and w ork in g  
conditions o f  those em ployees. Thus to the extent Con­
gress, the E E O C ,4 and the Federal cou rts5 have p ro ­
scribed and provided  rem edies fo r  em ploym ent selec­
tion procedures o f  local governm ental entities w hich  
do not v iolate the F ourteenth  A m endm ent, they have 
overstepped the bounds o f  state sovereignty recently 
reaffirm ed by  this C ou rt in N a tio n a l L e a g u e  o f  C itie s  
v. U s er y , 426 U .S. 833 (1 9 7 6 ).

The resolution  o f  the issues presented by  San F ra n ­
cisco in this case m erits  p articu la r attention because 
since the filin g  o f  the fire figh ter cases in Los A ngeles 
and San F ran cisco , C ongress am ended T itle V II  to ex­
tend its application  to state and local governm ents.6 It 
is th erefore  likely that all fu tu re  litigation  w ill be p re ­
m ised on T itle  V II  in  addition  to §§1981 and 1983. The 
adverse im pact standard relied on by  the tria l cou rt

4. See United States v. Solomon, 419 F.Supp. 358, 367 (1976) applying 
principles of the Tenth Amendment to Federal executive action interfer­
ing with state sovereign functions.

5. See Davids v. Akers, 549 F.2d 120, 127 (9th Cir. 1977).
6. See Pub.L. 92-261 §2(3), effective March 24, 1972.

355



8

and the N inth  C ircu it is derived  fro m  T itle  V II  cases 
in vo lv in g  private  em ployers.7 Thus, it  becom es clear 
that th is case cries  out f o r  a specification  o f  the line o f  
dem arcation  betw een C ongressional pow er pursuan t to 
Section  5 o f  the Fourteenth  A m endm ent and its author­
ity  pursuan t to the C om m erce Clause, on the one hand, 
and the sovereign  prerogative  o f  states to  adopt and 
im plem ent em ploym ent procedures w hich  do not v io ­
late the Fourteenth  A m endm ent on the other.8

The single m ost im portan t fa ctu a l m ateria l govern ­
in g  the resolution  o f  the C onstitutional issues in this 
case lies in the fin d in g  o f  the tria l c o u r t :

“ N either D efen dan ts n or their officials engaged  in 
em ploym ent practices  w ith  a w illfu l o r  conscious 
purpose o f  exclu d in g  b lacks and M ex ican -A m eri- 
cans fro m  em ploym ent at the Los A n geles  C ounty 
F ire  D epartm ent. T o  th e  c o n tr a r y , s e v e r a l  o f  d e ­
fe n d a n ts  o ffic ia lly  en g a g ed  in  e f fo r ts  to  in c r e a s e  
th e  m in o r i ty  r e p r e s e n ta t io n  in  th e  L o s  A n g e le s  
C o u n ty  F i r e  D e p a r t m e n t ”  (E m ph asis  a dded .) 
(S ee P etition  fo r  W r it  o f  C ertiorari, A pp en d ix  D , 
p. 4 .)

V e ry  s im ila r find ings w ere  m ade reg a rd in g  San F ra n ­
cisco ’s attem pts to in tegra te  its fire  departm ent in
W e s te r n  A d d it io n  C o m m u n ity  O rg a n iza tio n  v . A lio to ,

7. See Davis v. County of Los Angeles, 566 F.2d 1335, 1337 (Fn.4) and 
1338 (9th Cir. 1977) in which the Circuit Court makes clear that it is 
applying the Title VII standard in the §1981 context.

8. The result may very well be that Congress, acting pursuant to the 
Commerce Clause may impose more rigorous standards on private employ­
ers than the Constitution allows it to impose either under the Commerce 
Clause or the Fourteenth Amendment on state and local governments. The 
relationship between the state sovereignty concept embodied in the Tenth 
Amendment as it relates to Congress’ power under Section 5 of the Four­
teenth Amendment is discussed below.

356



9

330 F .Supp. 536, 540 (N .D .C a l. 1971) and 340 F .Supp. 
1351 ,1356  (N .D .C a l. 1 9 7 2 ) :

“  . . . [SJecondly, th e r e  is  n o  d ou b t th a t th e  C om ­
m ission , f a r  f r o m  e n te r ta in in g  a n y  in te n t  to  r a ­
c ia lly  d is c r im in a te , m ea n s  w e ll  and  has tr ied  in  i ts  
o w n  w a y  to  im p r o v e  m in o r i ty  r e p r e s e n ta t io n  in  th e  
F ir e  D e p a tr m e n t  w ith o u t  im p a ir in g  d ep a rtm en ta l  
e ffic ien cy , in c lu d in g  not on ly  its earlier efforts to 
m od ify  the C iv il Service exam ination  but also its 
separate and very  help fu l F ire  S a fety  Technician 
p rogram  (u n d er con tract w ith  E E O C ) designed to 
help m in ority  grou ps prepare them selves fo r  even­
tual classification  as H -2 F irem an .”  (E m phasis 
added.)

The findings o f  the tria l court, both in the instant 
case and in W A C O  illustrate the essential controversy 
underly ing the case. In adoptin g  T itle V II , C ongress 
set a national goa l o f  in tegra tion  o f  the w ork  fo rce  and 
sought to insu re  f o r  vertica l econom ic m obility  o f  m i­
norities w ho have trad ition a lly  been underrepresented 
in portions o f  the w ork  force . T h is policy  is substan­
tially  d ifferen t fro m  the u n derly in g  prem ise o f  the 
Fourteenth  A m endm ent w hich  is to eradicate all ves­
tiges o f  officially en forced  racia l discrim ination . Los 
A ngeles and San F ran cisco , by  their ju d ic ia lly  recog­
nized public efforts, have taken affirm ative action to 
integrate th eir w ork  fo rce  and to provide the very  same 
em ploym ent op portu n ity  w hich  C ongress in T itle V II  
sought to prom ote. N evertheless both cities are found  
to be in v iolation  o f  law .

H ow ever, the realities at the local level pose substan­
tial and concrete im pedim ents to the sw ift  achievem ent

357



10

o f  the goa l o f  in tegra tion  o f  w hich  the national legis­
lature is  on ly  rem otely  in form ed  and w ith  w hich  in any 
case it need not deal on a day-to -day  basis, F irst, there 
is  a w ell-foun ded , socia lly  desirable trad ition  o f  civ il 
service em ploym ent foun ded  on com petitive exam ina­
tion  designed to sa fegu a rd  public service careers and 
to  p rotect the pub lic fro m  the evils o f  politica l p atron ­
age system s. These princip les are prom u lgated  in local 
ch arters and ord inances, w hich  public officials are 
bound b y  law  to obey .9

The fa c t  that these civ il service exam ination  p ro ­
cedures are set fo r th  p r im a rily  in local charters, and 
in state constitu tions is im portant. Should the cou rt 
invalidate them  and prevent th eir app lication  on the 
basis o f  an adverse im pact or  statistical d isparity , the 
state or local officials w ou ld  have no law s to govern  
em ploym ent selection, and thus the w hole operation  
w ou ld  be taken over by  the F edera l cou rt w h ich  does 
not have the fa c ilities , the au th ority  o r  the com petence 
to select those w h o shall ca rry  out the public under­
taking.

Second, Los A n geles  C ounty, and San F ran cisco  to 
an even g rea ter  degree, em body the trad ition al notion 
o f  the A m erican  m elting pot. B oth urban  centers a re

9. In the Officers for Justice case San Francisco will factually demon­
strate that the quota hiring order has discouraged many police department 
personnel, especially white males, from seriously studying for promotional 
examinations. They feel that promotions will be made by the federal court 
on the basis of race rather than merit. Needless to say the public stands to 
suffer when its police department is directed by those who obtain promo­
tion on the basis of non merit-oriented criteria. In completely undermin­
ing the merit system of employment and promotion, the court order has 
thrown the City back into the dark ages of the political patronage and 
spoils system by virtue of congressional mandate rather than local corrup­
tion.

358



11

com m unities con ta in in g  an alm ost lim itless variety  o f  
racial, cu ltura l, ethnic, and re lig iou s groups. This lack 
o f  hom ogen ity  m akes em ploym ent selection devices al­
most im possible to va lidate em pirica lly  and guarantees 
adverse im pact on at least one m in ority  grou p  every 
time a test is adm inistered. The d iversity  o f  orig in s o f  
our populations and the resu lting w ide spectrum  o f  
varied abilities, perceptions and w elta n sch a u u n g s  
mean that there are alm ost lim itless explanations fo r  
the perform an ce o f  ind ividuals and various groups. 
Congress, in  adoptin g  n a tio n a l  legislation , is concerned 
about nationw ide policies w hich  m ay be ill-suited to 
urban settings such as Los A n geles and San F ran cisco 
and w hich  do not account f o r  the d ifferences between 
those tw o com m unities or fo r  the differences between 
them and other com m unities throughout the country.

F inally , at the local level, governm ents are required 
in attem pting to in tegrate  their w ork  forces  to deal 
with the dem ands o f  those grou ps not fa llin g  w ithin  
the classes identified  as the beneficiaries o f  T itle  V II  
in tegration  e fforts .10

A ll these fa c to rs  stron g ly  suggest that the F ou r­
teenth A m endm ent standard is practica l and w ell con ­
ceived. Local governm ents and the courts can act de­
cisively and im m ediately  to elim inate intentional racia l 
discrim inaton. H ow ever, the m ore sophisticated and 
no less im portan t social ob jectives o f  assuring vertica l 
socio-econom ic m ob ility  in public em ploym ent to all

10. See for example San Francisco Municipal Code Article 33 which 
prohibits discrimination on the basis of sexual orientation in housing, em­
ployment, and public accommodations.

359



12

segm ents o f  ou r society  are best le ft  to  the local offi­
cia ls w ho best understand and can respond to the local 
problem s. It is ju s t  th is concept am ong others that the 
Tenth  A m endm ent and its doctrin e  o f  State sover­
e ign ty  w ere intended to prom ote.

T h erefore , this w hole case— and m an y others across 
this cou n try— turns on a selection device p repared  and 
adm in istered  in  good  fa ith  and w ith ou t racia l or  ethnic 
con sideration s w hich  happen to resu lt in  the selection 
o f  w hites at an appreciab ly  grea ter rate than that fo r  
b lacks and M ex ican -A m eriean s ( in  San F ran cisco  
A sians also passed at a h igh er ra te ) .  A s  discussed 
more^ fu lly  below , since these fa c ts  do not constitute 
a constitu tional v iolation , they m ay not be held to 
su pport re lie f pursuan t to T itle  42 U .S .C . §1981 fo r  
tw o reason s: F irst, C ongress, in adoptin g  §1981 sought 
to p roh ib it and provide rem edies on ly  fo r  con stitu ­
tional v iolations. Second, under princip les o f  F edera l­
ism , C ongress m ay not, either under the Com m erce 
C lause or  the Fourteeenth  A m endm ent, regu late em ­
ploym ent selection policies and p ractices o f  states and 
their politica l subdiv isions beyond proh ib itin g  and p ro ­
v id in g  rem edies fo r  those p ractices and policies w hich  
am ount to v iolations o f  the F ourteenth  A m en dm ent.”  11

11. This Court has refused in the past to address this question. See
Regents of the University of California v. Bakke,------U.S.------- , 98 S.Ct.
2733, 2755, Fn. 41 and Dothard v. Rawlinson, 433 U.S. 321, 324 Fn. 1 
(1977). That this question continuously arises, and that public officials 
throughout the country as well as lower courts need guidance on this issue, 
cannot be gainsaid. At the very least this problem should be considered 
by this Court in its review and disposition of the issues posed in this case. 
Much time-consuming and costly litigation throughout this country may 
be avoided if this issue is resolved. For example, in 1972 there were 62,437 
different units of local government in this country. Lafayette v. Louisiana 
Power and Light,------U .S.------- , 98 S.Ct. 1123, 55 L.Ed.2d 364, 379 (1978).

360



13

NATURE OF BURDEN IMPOSED ON PRIVATE 
EMPLOYERS UNDER TITLE VII AND SECTION 1981 

AS INTERPRETED BY THE NINTH CIRCUIT

The federa l cou rts  have recognized that a cause o f  
action, or a p r im a  fa c i e  case fo r  em ploym ent d iscrim ­
ination under T itle  V II , m ay be stated and re lie f m ay 
be obtained on the basis o f  p leadin g  and provin g  that a 
selection device had an adverse im pact on an identifi­
able m in ority . A s  noted above, this standard has been 
incorporated into §1981 cases. T h ereafter, the cou rt 
must invalidate that selection device unless the em ­
ployer sustains his burden  o f  dem onstrating that it 
serves a com pelling  public o r  business purpose. In 
W a sh in g to n  v . D a v is , 426 U .S. 229, 246-247, 48 L .E d. 
2d 597, 611-612 (1 9 7 6 ) , this C ourt n oted :

“ U nder T itle  V II , C ongress provided that when 
h ir in g  and prom otion  practices d isqu a lify in g  sub­
stantially  d isproportion ate  num bers o f  blacks are 
challenged, d iscr im in atory  purpose need not be 
proved, and that it is an insufficient response to 
dem onstrate som e rational basis fo r  the challenged 
practices. It  is necessary, in  addition, that they be 
‘va lidated ’ in  term s o f  job  p erform an ce in any one 
o f  several w ays, perhaps by  ascerta in ing the m in­
im um  skill, ab ility  o r  potential necessary fo r  the 
position  at issue and determ in ing w hether the 
q u a lify in g  tests are appropriate  fo r  the selection 
o f  qualified applicants fo r  the job  in question .”
( F ootnotes om itted .)

See also A lb e m a r le  P a p e r  C o. v . M o o d y , 422 U.S. 405, 
425-426; (1 9 7 5 ) and G r ig g s  v. D u k e  P o w e r  C o., 401 
U.S. 424, 28 L .E d .2d  158, 91 S.Ct. 849 (1 9 7 1 ) in w hich 
this C ourt held that T itle  V II  forb id s  the use o f  em ­

361



14

ploym ent tests that have an adverse im pact unless the 
em ployer m eets, “ the burden  o f  sh ow in g that any given  
requirem ent has . . .  a m a n ifest relationship  to the 
em ploym ent in question .”  G r ig g s  v. D u k e  P o w e r  C o., 
su p r a  7 at 432. The p r im a  fa c ie  case requires that the 
p la in tiff plead and prove that the selection device in 
question selects applicants f o r  hire, prom otion  or  d is­
charge in a racia l pattern  s ign ifican tly  d ifferen t from  
that o f  the pool o f  applicants.

A n d  as noted in W a s h in g to n  v. D a v is , su p ra , at 2 47 :

“ H ow ever this process proceeds [ju d icia l exam ina­
tion o f  em ploym ent selection devices] it involves a 
m ore p rob in g  ju d ic ia l rev iew  o f  and less deference 
to the seem ingly r ea so n a b le  acts o f  adm in istrators 
and executives than is appropriate  under the con­
stitution  w here special racia l im pact, w ith ou t d is­
cr im in a tory  purpose is cla im ed.”  (E m ph asis  
added .)

In other w ords, w here the p la in tiffs  proceed under 
T itle  V I I  this C ou rt has ruled  that C ongress im posed 
m ore strin gen t gu idelines on em ployers than does the 
C onstitution  (a s  applicable to state a c t io n s ).12 T here­
fo re , the cou rts  under T itle  V II , a t least in  the context 
o f  testing  devices, have been given  broader pow ers to 
oversee, call into question, and even invalidate execu ­
tive and adm in istrative policies o f  em ployers, w hich

12. Some interesting discussion in the case of General Electric Co. v.
Gilbert, 429 U.S. 125,145 (1976) is relevant. In that case this Court noted. 

“ The concept of ‘discrim inationof course, was well known at the 
time of the enactment of Title VII, having been associated with the 
Fourteenth Amendment for nearly a century, and carrying with it 
a long history of judicial construction. When Congress makes it un­
lawful for an employer to ‘discriminate . . .  because of . . .  sex ..  .,* 
without further explanation of its meaning, we should not readily 
infer that it meant something different than ivhat the concept of dis-

362



15

w ere not o r  could  not be questioned on the grounds that 
they w ere a rb itrary , capricious, unreasonable or  “ d is­
cr im in a tory ”  but ra th er m erely  berause they violated  
a transcendental congressional policy  designed to ex­
pand em ploym ent opportun ities fo r  those grou ps w hich 
Congress fou n d  trad ition a lly  to have been excluded 
even though not in tention ally  or  irration ally .

T h erefore , under T itle  V I I  the em ployer m ay adm in­
ister w ritten  tests to applicants fo r  the position  o f  
n ightw atchm an. T h at test m ay  attem pt to m easure 
the ab ility  o f  the app licant to tell tim e, read em ploy­
m ent instructions, and exercise  ju dgm en t relating to 
problem s he fa ces  on the jo b  on ly  i f  the test does not 
have an “ adverse im pa ct.”  A ll those types o f  questions 
seem reasonable and n on a rb itra ry ; they are not “ m ere 
pretexts designed to e ffect an inv id ious d iscrim ination  
against the m em bers o f  . . .  ”  one race. G ed u ld ig  v. 
A ie llo , 417 U .S. 484, 496-497, fn . 20 (1 9 7 4 ). H ow ever, 
i f  they have an adverse im pact they m ay not be used 
unless they have been em pirica lly  validated as being 
job-related . T h is heavy burden w as extended both by  
the tria l cou rt and the N inth  C ircu it to the instant case 
involv ing a §1981 claim .

discrimination has traditionally meant, cf. Morton v. Mancari, 417 
U.S. 535, 549 (1974); Ozawa v. United States, 260 U.S. 178, 193 
(1922). There is surely no reason for any such inference here, see 
Gemsco v.WaUing, 324 U.S. 244, 260 (1945).”  (Emphasis added)

Similarly, “discrimination,” has been historically tied to invidious pur­
poses. The invocation and imposition of the compelling interest standard 
on a mere showing of adverse impact flies in the face of the term, “discrim­
ination,” as that word has acquired content and meaning in this country’s 
history following the internecine war of secession.

363



16

NATURE OF CONGRESS’ COMMERCE POWER
T h at C ongress, under the Com m erce C lause has 

p len ary  pow er over all m atters re la tin g  to interstate 
com m erce is beyond dispute. G ib b on s  v . O g d en , 9 
W heaton  1, 6 L .E d . 23 ( 1 8 2 4 ) ;  N a tio n a l L a b o r  R el. 
B d . v. J o n es  & L a u g h lin  S te e l  C o rp ., 301 U .S  .1, 57 S.Ct. 
615, 81 L .E d . 893 (1 9 3 6 ) . See also H e a r t  o f  A t la n ta  
M o te l  v . U n ited  S ta te s , 379 U .S. 241, 85 S.Ct. 348, 13 
L .E d .2d  258 (1 9 6 4 ) . The lim its on this pow er are de­
fined by the C onstitution . N a tio n a l L e a g u e  o f  C it ie s  v. 
U s er y ,  426 U .S. 833, 96 S.Ct. 2465 (1 9 7 6 ) .

Thus, as to private  em ployers engaged  in interstate 
com m erce, C ongress under the C om m erce C lause has 
the p ow er to im pose w hat it deem s to be desirable so­
cia l p o licy  by  p roh ib itin g  rational, n on arb itra ry  em ­
p loym ent selection devices fo r  the purpose o f  p rom ot­
in g  em ploym ent opportu n ity . In  other w ords, even i f  
a selection device is reasonable, C ongress m ay  proh ib it 
a private  em ployer from  u sin g  it  i f  it happens to have 
an adverse im pact on a grou p  identified  under 42 
U .S .C . 2 0 0 0 (e ) ,  e t  seq ., (i.e ., race, color, re lig ion , sex, 
o r  national o r ig in ) (C f . San F ran cisco  M unicipa l Code 
A rtic le  33 above) unless the em ployer can establish 
th at the device serves some com pelling business p u r­
pose or  has been em pirica lly  validated. In  litigation , 
once the p r im a  fa c i e  case is pleaded and proved  b y  the 
p la in tiffs , the burden  o f  p ro o f o f  ju stifica tion  (an d  the 
correla tive  risk  o f  n onpersuasion ) sh ifts  to the defen d ­
ant. T h at is, on the m ere show ing that the selection 
device, w ith ou t regard  to its  ra tion ality , results in 
some adverse im pact on any grou p  identified  in  T itle

364



V II, the em ployer in sh ow in g em pirical validation  m ust 
establish a com pelling business purpose.

The com pelling business purpose gauntlet is strik ­
ingly sim ilar in both substance and effect to the com ­
pelling interest basis o f  review . It is, as a practica l 
m atter, im possible f o r  em ployers to preserve their busi­
ness-related policies. Once a com pelling interest stand­
ard or the com pelling business standard com es into 
play, the cou rts  em ploy the “ strict scrutin y”  standard 
o f review . The h istory  o f  “ fundam ental in terest”  and 
“ suspect class”  cases dem onstrates the devastating 
effect ju d ic ia l in tervention  can have on legitim ate gov ­
ernm ental and business interests. The iron y  o f  ju d ic ia l 
im position  o f  the standard  is m anifest. The cou rt does 
not tell an em ployer w hat he m ay do, on ly that a par­
ticu lar device fa ils  to pass m uster under the extant 
com pelling interest (i.e ., em pirica l va lidation ) stand­
ard. The ju d ic ia ry , then, has the best o f  both w orlds. 
C ourts are g iven  the ex traord in ary  review  and veto 
pow ers over the other branches o f  govern m en t; how ­
ever, they are not responsible fo r  finding solutions to 
the problem s undertaken by  other branches o f  govern ­
ment. N or are they accountable to the people fo r  the 
fa ilu re  o f  these branches to provide effective solutions 
to the intractable  social problem s w ith  w hich they are 
faced. In this context one is rem inded o f  the aphoristic 
adm onition o f  Judge V an  G raa fe ila n d : “ A  federal 
ju d ge  rea rran g in g  a state ’ s penal or educational sys­
tem is like a m an feed in g  can dy to his grandchild . He 
derives a grea t deal o f  personal satisfaction  from  it 
and has no responsib ility  fo r  the resu lts.”  M cR ed m on d

17

365



18

v. W ilso n , 533 F .2d  757, 766 (1 9 7 6 ) , (V a n  G raa fe i- 
Iand d is s e n t in g ).18

LIMITATIONS ON CONGRESS’ POWER IMPLICIT 
IN TIIE CONCEPT OF STATES’ SOVEREIGNTY 
SET FORTH IN THE TENTH AMENDMENT

The question then is w hether the standard, as a rticu ­
lated in the E E O C  guidelines and applied  to p rivate 
em ployers by the Suprem e C ou rt in  G rig g s , A lb em a r le ,  
and other cases, m ay  con stitu tion a lly  by  applied  to a 13

13. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 499 (1975), Mr. Jus­
tice Blackman in his concurring opinion recognized this problem when he 
stated,

“ I cannot join, however, in the Court’s apparent view that absolute 
compliance with the EEOC Guidelines is a sine qua non of pre-em­
ployment test validation. The Guidelines, of course, deserve that def­
erence normally due agency statements based on agency experience 
and expertise. Nevertheless, the Guidelines in question have never 
been subjected to the test of adversary comment. Nor are the theories 
on which the Guidelines are based beyond dispute. The simple truth is 
that pre-employment tests, like most'attempts to predict the future, 
will never be completely accurate. We should bear in mind that 'pre­
employment testing, so long as it is fairly related to the job skills or 
work characteristics desired, possesses the potential of being an ef­
fective weapon in protecting equal employment opportunity because 
it has a unique capacity to measure all applicants objectively on a 
standardized basis. I fear that a too-rigid application of the EEOC 
Guidelines will leave the employer little choice, save an impossibly 
expensive and complex validation study, but to engage in a subjec­
tive quota system of employment selection. This, of course, is far 
from the intent of Title VII.”  (Emphasis added.)

Mr. Justice Blackman clearly understands the threat to the civil service 
merit system posed by quota hiring. And in fact, in the public context, the 
result is a paradox. The public employer who cannot afford to prepare or 
simply does not succeed in developing an empirically validated selection 
device is exposed to potential liability for violation of §1981 or Title VII. 
He may not respond by adopting a “quota system” because such a solution 
would violate the Equal Protection clause and expose him to liability to 
the applicant who does not meet the racial qualification. Bakke, supra. 
Federal courts, however, have taken it upon themselves to impose quotas 
on public employers like Los Angeles where there has been no showing of 
discrimination. How the judicial branch of the federal government claims 
entitlement to impose quotas, a device which under due process and equal 
protection no other branch of state or federal government may use is at 
the very least difficult to understand. In any case, the result in this case 
was that Los Angeles’ time-tested, fairly applied personnel procedures 
were abrogated by the federal court which compelled that employment 
selection decisions be made on a statistical rather than a merit basis.

366



19

m unicipa lity  in light o f  the princip le  o f  Federalism  
recently m entioned and applied by  this C ourt in N a ­

tional L e a g u e  o f  C it ie s  v. U s er y , su p ra , 426 U .S. 833, 
96 S.Ct. 2465, 49 L .E d . 245 (1 9 7 6 ) . In that case, the 
N ational L eague o f  C ities and individual state and 
local governm ental entities brou gh t an action challeng­
ing the va lid ity  o f  the 1974 am endm ents to F a ir  L abor 
Standards A ct, w hich  extended the m inim um  w age and 
m axim um  h our provision s to alm ost all em ployees o f  
states and th eir politica l subdiv isions.14

The cou rt noted the central issue in C itie s  at 426 
U.S. 837, 96 S.Ct. 2467,

“ The g ist o f  th eir com plain t w as not that the 
cond itions o f  em ploym ent o f  such public em ployees 
w ere beyond the scope o f  the com m erce pow er had 
those em ployees been em ployed in the private sec­
tor  bu t that the established constitutional doctrine 
o f  intergovernm ental im m u n ity  consistently rec­
ognized in  a long series o f  ou r cases affirm atively 
prevented the exercise o f  this authority  in the m an­
ner w hich C ongress chose in the 1974 am end­
m ents.”

In the instant case, it m ust be noted first that T itle 
V II , in so fa r  as it w as applied to public em ployers, w as 
adopted pursuant to the F ourteenth  A m endm ent. F i t z ­

p a tr ick  v . B i tz e r ,  427 U .S. 445 (1 9 7 6 ). C ongress ’ s 
pow er to act under the F ourteenth  A m endm ent vis a 
vis state governm ent is broader than its pow er to act

14. The original Fair Labor Standards Act passed in 1938 specifically 
exempted states and their political subdivisions from its coverage. 29 
U.S.C. §203d (1940 ed.).

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20

p ursuan t to the Com m erce C lause.15 H ow ever, there 
are lim its to that pow er and  it is the purpose o f  this 
analysis to suggest that in  the area  o f  em ploym ent 
selection those lim its are defined by  the F ourteenth  
A m endm ent.

The g ist o f  San F ra n cisco ’ s contention  in the instant 
case is that, except to the extent that Los A n geles ’ s em ­
p loym ent selection procedures v iolate the provisions o f  
the Fourteenth  A m endm ent, those em ploym ent selec­
tion  procedures are beyond the scope o f  C ongressional 
pow er to im plem ent the Fourteenth  A m endm ent be­
cause o f  the established constitu tional doctrine recog ­
nized in m any cases o f  the U nited  States Suprem e 
C ou rt in clu d in g  the m ost recent decision  o f  N a tio n a l  
L e a g u e  o f  C it ie s  v. U sery , su p ra .

In itia lly , the pertinent sta tu tory  regu lations m ust 
be rev iew ed in ord er to determ ine w h at regu lation s are 
sought to be im posed. T h is analysis m ust begin  by 
re feren ce  to T itle  V I I  and related statutes. T itle  V II  
is codified  in T itle  42, §2000e e t  seq . The basic p roh ib i­
tions relevant to this case are set fo r th  in  T itle  42, 
§ 2 0 0 0 e -2 (a ) (1 )  w hich  provides,

“ (a )  It shall be an u n law fu l em ploym ent practice  
fo r  an em ployer—

(1 )  to fa il o r  re fu se  to h ire or  to d isch arge any 
individual, o r  otherw ise to d iscrim in ate against 
any individual w ith  respect to his com pensation, * 423

15. See for example Christensen & Charleston School District 558 F.2d 
1169, 1171-1172 (1972) (4th Cir.) upholding the validity of the Equal Pay 
Act as an exercise of Congressional power pursuant to Section 5 of the 
Fourteenth Amendment. But see Usery v. Owensporo-Daviess Co. Hospital
423 F. Supp. 843, 845-846 (W.D. Ky) (1976). (Cities controlling an issue 
of application of Equal Pay Act to States.)

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21

term s, cond itions, o r  p riv ileges o f  em ploym ent, be­
cause o f  such in d iv id u a l’s race, color, religion , sex, 
or national o r ig in ; o r . . .  ” 16

The key language is the proh ib ition  against fa ilin g  or 
re fu sin g  to h ire  or  d isch arge an em ployee or otherw ise 
d iscrim inating on the basis o f  race, color, relig ion , sex 
or national orig in . C ognate p roh ib itory  language is 
applied by  §2000e-2 and other subsections to em ploy­
ment agency practices  ( b ) ,  labor organization  prac­
tices ( c )  and tra in in g  program s ( d ) .  See also 
§2000e-3. H ow ever, the cr it ica l term  in T itle V II  is 
“ d iscrim in ate”  in  term s o f  race, color, relig ion , sex, 
and national orig in .

§1607.3 o f  the E E O C  guidelines defines d iscrim in a­
tion as fo l lo w s :

“ The use o f  a n y  test w hich  adversely affects 
h iring , prom otion , tra n sfer  or any other em ploy­
m ent or m em bership  opportu n ity  o f  classes p ro ­
tected b y  T itle  V I I  constitutes d iscrim ination  un­
less: ( a )  the test has been validated and evidences 
a h igh  degree o f  u tility  as h erein after described, 
an d  ( b )  the person g iv in g  or  actin g  upon the re­
sults o f  the p articu la r test can dem onstrate that 
a lternative suitable h irin g , tran sfer or  prom otion  
procedures are unavailable fo r  his use.”  (E m ph a­
sis added.)

The standards set fo rth  in these guidelines have al­
ready been adopted by  cou rts  as applicable to private 
em ployers and subsequently extended in §1981 cases

16. In 1972 the Civil Rights Act of 1964 was amened by Equal Employ- 
ment Opportunity Act, extending Title VII coverage to state and local 
government employees.

369



22

to public em ployers. See G r ig g s  v . D u k e  P o w e r  C o., 
su p ra , A lb e m a r le  P a p e r  C o. v. M o o d y , su p ra .

H ow ever, the in itia l legislation  w as sought to be im ­
posed on em ployers in private  industry . P u rsu an t to 
its pow ers under the C om m erce Clause, C ongress has 
p len ary  pow er to regu late interstate com m erce. T here­
fore , a selection procedure w hich a p p ea rs  r ea so n a b le  
and  h as b een  e f fe c t iv e ly  an d  in  g o o d  fa i th  u sed  in  th e  
p a s t  m ay be rendered unacceptable because C ongress 
has articu lated  as a param ou n t goal, the “ equaliza­
tion ”  o f  em ploym ent opportu n ities in interstate com ­
m erce. In other w ords, C ongress17 18 has declared as a 
m atter o f  po licy  that otherw ise rational, fa ir ly  applied 
and w ell-accepted  em ploym ent selection p ractices m ay 
not be used i f  those devices operate again st certain  
identifiable m in orities to a g rea ter extent than they 
operate again st the m a jo r ity  population  unless those 
devices have been em pirica lly  validated  as being job  
related or in  some other w a y  are shown to serve a com ­
pelling public purpose and n o o th e r  a lte rn a tiv e  e x is ts .1* 
T his policy , in essence, reverses the norm al burden o f  
p roo f.

Once a p r im a  fa c i e  case is stated, the selection device 
fa lls , absent evidence o f  em pirical va lidation  or a com ­

17. It is not certain, at all, whether Congress, in using the term, dis­
criminate,”  in its prohibition, really intended to go so far as EEOC has 
gone in its guidelines.

18. This principle was explained in Albemarle Paper Co. v. Moody, 
supra, 422 U.S. 405, 425. After discussing what constitutes a prima facie 
case and how an employer may defend by showing that the test is job re­
lated, this Court made clear just how far the Congressional policy goes 
when it stated,

“ If an employer does then meet the burden of proving that its tests 
are ‘job related,’ it remains open to the complaining party to show 
that other tests or selection devices, without a similarly undesirable

370



23

pelling business purpose and absent a show ing that no 
alternative, less “ d iscr im in atory ”  device exists. The 
rejected applicant need not show the selection device 
to be a rb itra ry  or  unreasonable— he or she need only 
show the adverse im pact. The question here is w hether 
that policy  m ay be im posed upon the states.

EQUAL PROTECTION CLAUSE IN EMPLOYMENT 
DISCRIMINATION CONTEXT

In W a s h in g to n  v. D a v is , su p ra , 426 U .S. 229 (1 9 7 6 ) 
the U nited States Suprem e C ou rt ruled on a case in ­
volving tw o ind iv idu als w hose applications to becom e 
police officers in W ash ington , D .C ., had been rejected . 
They brou gh t action  pursuant to 42 U.S.C. 1981 (a t  
the tim e they brou gh t their action, T itle  V II  had not 
yet been extended to governm ental em ployers such as 
the D istr ict o f  C o lu m b ia ). The p la in tiffs had contended 
that the w ritten  exam ination  bore no reasonable re la ­
tionship to jo b  perform an ce  and excluded a d isprop or­
tionately h igh num ber o f  b lack applicants. The tria l 
court first noted the absence o f  any claim  o f  inten­
tional d iscrim ination . (L ik ew ise  in the instant case 
the tria l cou rt, as noted above, specifically  found  that

racial effect, would also serve the employer’s legitimate interest in 
‘efficient and trustworthy workmanship.’ Such a showing would be 
evidence that the employer was using its tests merely as a ‘pretext’ 
for discrimination.” (Citations omitted)

If this standard were applied to states, not only would the adverse impact 
rule upset the presumption of validity accorded by Federal courts review­
ing state actions under the Fourteenth Amendment, McGowan v. Mary­
land, 366 U.S. 420 (1960) but it would also upset the normal deference 
arising from both the Federalist nature of our system and from the doc­
trine of separation of powers pursuant to which Federal courts refrain 
from substituting their judgment for that of the states or striking down 
a state policy because it does not operate with absolute mathematical 
nicety. Linds ley v. National Carbonic Gas Co., 220 U.S. 61, 65 (1910)

371



24

there w as no intentional d iscrim in ation  on the basis o f  
ra ce .)  The p la in tiffs ’ cla im  centered on the a rb itra ry  
n ature o f  the selection device, by  v irtu e  o f  its adverse 
im pact o f  on the m em bers’ class caused by  its app lica ­
tion.

In itia lly  this C ourt noted in W a s h in g to n  v. D a v is , 
426 U .S. 229, 240, 96 S.Ct. 2040, 2047,

“ The central purpose o f  the E qual P rotection  
Clause o f  the Fourteenth  A m endm ent is the p re ­
vention  o f  official conduct d iscr im in atin g  on the 
basis o f  race. It is also true that the D ue Process 
C lause o f  the F ifth  A m endm ent conta ins an equal 
protection  com ponent p roh ib itin g  the U nited 
States fro m  inv id iou sly  d iscr im in atin g  between 
ind ividuals or  groups. B o llin g  v. S h a rp e , 347 U .S. 
497, 74 S.Ct. 693, 98 L .E d . 884 (1 9 5 4 ) . B ut ou r 
cases have not em braced the proposition  that a law  
or  oth er official act, w ith ou t regard  to w hether it 
reflects a racia lly  d iscr im in atory  purpose, is un­
constitu tional s o le ly  because it has a ra cia lly  d is­
p roportion ate  im pact.”

Then this C ou rt concluded at 426 U.S. 242 96 S.Ct. pp. 
2048-2049,

“ N ecessarily , an inv id ious d iscr im in atory  purpose 
m ay o ften  be in ferred  fro m  the tota lity  o f  the rele­
van t fa cts , inclu d in g  the fa c t , i f  it is  true, that the 
law  bears m ore heavily  on one race than another. 
It is also not in frequ en tly  true that the d iscrim in ­
a tory  im pact— in the ju r y  cases fo r  exam ple, the 
total or  seriously  d isproportion ate  exclusion  o f  
N egroes fro m  ju r y  venires— m ay fo r  all p ractica l 
purposes dem onstrate u n constitutionality  because 
in variou s circum stances the d iscrim ination  is

372



25

very  difficult to explain  on nonracial grounds. 
N evertheless, w e have not held that a law, neutral 
on its fa ce  and serv in g  ends otherw ise w ith in  the 
pow er o f  governm ent to pursue, is invalid  under 
the E qual P rotection  Clause sim ply because it m ay 
a ffect a grea ter p roportion  o f  one race than o f  an­
other. D is p r o p o r t io n a te  im p a c t is  n o t ir r e lev a n t,  
b u t i t  is  n o t  th e  so le  to u ch s to n e  o f  an  in v id iou s  
ra c ia l d is c r im in a tio n  fo r b id d e n  by  th e C o n s titu ­
tion . S ta n d in g  a lon e , i t  d oes  n o t t r ig g e r  th e ru le , 
M c L a u g h lin  v. F lo r id a , 379  U .S. 18  k, 85 S .C t. 2 8 3 , 
13 L .E d .2 d  2 2 2  (1 9 6 k .) , th a t ra c ia l classifica tioyis  
a re  to  be s u b je c te d  to  th e  s tr i c te s t  s c r u t in y  and  a re  
ju s tif ia b le  o n ly  by  th e  w e ig h t ie s t  o f  co n s id era ­
t io n s .”  (E m ph asis  added .)

This C ou rt discussed the policy  im plication  o f the
D a v is  case at 422 U .S. 242, 245-246, 96 S.Ct. 2040,
2050,

“ Both be fore  and a fte r  P a lm e r  v. T h om p son , how ­
ever, variou s C ourts o f  A ppeals have held in sev­
eral contexts, includ ing  public em ploym ent, that 
the substantia lly  d isproportionate racial im pact o f  
a statute o r  official practice  standing alone and 
w ith ou t regard  to d iscrim in atory  purpose, suffices 
to p rove racia l d iscrim in ation  v iola ting  the Equal 
P rotection  Clause absent some justification  goin g  
substantia lly  beyond w hat w ould be necessary to 
validate m ost other legislative classifications. The 
cases im pressively  dem onstrate that there is an­
other side to the issu e; but, w ith  all due respect, 
to the extent that those cases rested on or ex­
pressed the view  that p ro o f o f  d iscrim in atory  ra ­
cial purpose is unnecessary in m aking out an equal 
protection  violation , w e are in disagreem ent. A s

373



26

an in itia l m atter, w e have difficu lty understanding 
how  a law  establish ing a ra cia lly  neutral qualifica­
tion  fo r  em ploym ent is nevertheless racia lly  d is­
cr im in a tory  and denies ‘any  person equal p rotec­
tion o f  the law s ’ s im ply because a greater 
p rop ortion  o f  N egroes fa il  to q u a lify  than m em ­
bers o f  other racia l or ethnic groups. H ad respon­
dents, a long w ith  all others w ho had fa iled  T est 21, 
w hether w hite  or  black, brou gh t an action  cla im ­
in g  that the test denied each o f  them equal p rotec­
tion  o f  the law s as com pared  w ith  those w ho had 
passed w ith  h igh enough scores to q u a lify  them  as 
police recru its , it  is m ost un likely that their chal­
lenge w ould  have been sustained. T e s t  2 1 , w h ich  is  
a d m in is te r ed  g e n e r a lly  to  p r o s p e c t iv e  g o v e r n m e n t  
e m p lo y e e s , c o n c e d e ly  s e e k s  to  a s c e r ta in  w h e th e r  
th ose  w h o  ta k e  i t  h a v e  a cq u ired  a  p a r tic u la r  lev e l  
o f  v e r b a l s k i l l ;  and  i t  is  u n ten a b le  th a t th e  C on ­
s t i tu t io n  p r e v e n ts  th e  g o v e r n m e n t  f r o m  se ek in g  
m o d e s tly  to  u p g ra d e  th e  co m m u n ica tiv e  a b ilit ies  
o f  i ts  e m p lo y e e s  r a th e r  th a n  to  be sa tis fied  w ith  
som e lo w e r  lev e l o f  c o m p e ten ce , p a r tic u la r ly  w h e r e  
th e  jo b  r e q u ir e s  sp ec ia l a b ility  to  co m m u n ica te  
o ra lly  an d  in  w r it in g .  R espondents, as N egroes, 
could  no m ore su ccessfu lly  claim  that the test 
denied them  equal protection  than could w hite ap­
plicants w ho also fa iled . The conclusion  w ould  not 
be d ifferen t in the fa ce  o f  p ro o f that m ore N egroes 
than w hites had been disqualified by  T est 21. That 
other N egroes also fa iled  to score w ell w ould, 
alone, not dem onstrate that respondents in d iv id ­
ually  w ere bein g  denied equal protection  o f  the 
law s by  the application  o f  an otherw ise valid  qual­
i fy in g  test being adm inistered to prospective police 
recru its. N or on the fa cts  o f  the case be fore  us

374



27

w ould  the d isproportion ate im pact o f  Test 21 w a r­
ran t the conclusion  that it is a purposefu l device 
to d iscrim in ate against N egroes and hence an in ­
fr in gem en t o f  the constitutional rights o f  respon­
dents as w ell as other black applicants. A s  w e  
h a ve sa id , th e  te s t  is  n e u tr a l on its  fa c e  and r a ­
tio n a lly  m a y  be sa id  to  s e r v e  a  p u rp o se  th e  g o v e r n ­
m e n t is  c o n s titu t io n a lly  em p o w ered  to  p u rsu e .  
E ven agree in g  w ith  the D istrict C ourt that the 
d ifferentia l racia l effect o f  Test 21 called fo r  fu r ­
ther inqu iry , w e think the D istrict C ourt correctly  
held that the affirm ative efforts o f  the M etropoli­
tan P olice D epartm ent to recru it b lack officers, the 
ch an ging  racia l com position  o f  the recru it classes 
and o f  the fo rce  in general, and the relationship o f  
the test to the tra in in g  p rogram  negated and in ­
feren ce  that the D epartm ent d iscrim inated on the 
basis o f  race or  that a ‘police officer qualifies on the 
co lor o f  his skin ra th er than a b ility .’ ”  348 F. 
Supp., at 18. (F ootn ote  om itted .) (E m phasis 
a dd ed .)

A nd then this C ou rt com pared the D a v is  case w ith
Title V II  at 426 U .S. 229, 247-247 96 S.Ct. 2040, 2051,

“ U nder T itle  V II , C ongress provided that when 
h ir in g  and prom otion  practices d isqu a lify in g  sub­
stantially  d isproportion ate num bers o f  blacks are 
challenged, d iscrim in atory  purpose need not be 
proved, and that it is an insufficient response to 
dem onstrate som e rational basis fo r  the challenged 
practices. It  is necessary, in addition, that they be 
‘va lidated ’ in term s o f  job  perform ance in any one 
o f  several w ays, perhaps by  ascertain ing the m in i­
m um  skill, ab ility  or potential necessary fo r  the 
position  at issue and determ in ing w hether the

375



28

q u a lify in g  tests are app rop ria te  fo r  the selection 
o f  qualified app licants fo r  the jo b  in  question. 
H o w e v e r  th is  p r o c e s s  p ro c e ed s , i t  in v o lv e s  a  m o re  
p r o b in g  ju d ic ia l r e v ie w  o f , an d  less  d e fe r e n c e  to, 
th e  s e e m in g ly  r ea so n a b le  a c ts  o f  a d m in is tra to r s  
an d  e x e c u t iv e s  th a n  is  a p p r o p r ia te  u n d er  th e  C on ­
s t i tu t io n  w h e r e  sp ec ia l ra c ia l im p a c t, w ith o u t  d is ­
c r im in a to r y  p u rp o se , is  c la im ed . W e  a r e  n o t  d is­
p o sed  to  a d op t th is  m o re  r ig o r o u s  s ta n d a rd  f o r  th e  
p u r p o se s  o f  a p p ly in g  th e F i f t h  an d  th e  F o u r te e n th  
A m e n d m e n ts  in  ca ses  su ch  as th is .”  (E m ph asis  
a d d ed .) ( F ootnote om itted .)

The question then is w hether the tria l cou rt applied 
the p rop er standard  o f  rev iew  in eva lu atin g  the selec­
tion  procedu re  o f  the Los A n geles C ounty F ire  D epart­
m ent. I f  the G r ig g s  selection cr iteria  taken fro m  Title 
V II  gu idelines are applicable, then the p la in tiffs  m ade 
out a p r im a  fa c ie  v iolation .

LIMITS OF CONGRESS’ POW ER SET FORTH IN THE 
CONSTITUTION

THE DOCTRINE OF STATE SOVEREIGNTY

It is subm itted that §1981, to the extent that it  is 
read to go  beyond p roh ib itin g  and p rov id in g  rem edies 
fo r  constitutional v iolations is unconstitutional as ap­
plied to the states and politica l subdivisions thereof.

T h is contention  is based on N a tio n a l L e a g u e  o f  
C itie s  v . U s er y ,  426 U .S. 833, 96 S.Ct. 2465, su p ra . In 
the U s e r y  case the p la in tiffs  had challenged am end­
m ents to the F a ir  L abor Standards A ct  exten d in g  the 
A c t ’s coverage to state and local governm ent em ploy­
ers, inclu d in g  states and political subdivisions thereof.

376



29

(See 29 U .S .C . §§213a and 2 03 4 .) These am endm ents 
parallel the am endm ents o f  1972 to T itle V II  extend­
ing that A c t ’ s coverage to public em ployers. The gov ­
ernm ental entities contended that the am endm ents ex­
tending the m in im um  w age and m axim um  hour 
requirem ents to them  as state and local governm ent 
em ployers w ould  intrude upon the state’ s perform ance 
o f  an essential governm ental fun ction .

It is contended in the instant case that the applica­
tion o f  T itle  V II  standards, to the extent that they go 
beyond requ ir in g  the states to com ply w ith the F ou r­
teenth A m endm ent, intrudes upon Los A n geles ’ s per­
form an ce o f  an essential governm ental fun ction  by 
preventing Los A n geles fro m  u sing rational, generally 
acceptable em ploym ent selection procedures to obtain 
the best qualified civil servants in its fire departm ent, 
a trad ition al governm ent operation .

W ith  regard  to the issue o f  the pow er o f  the Con­
gress to regu late interstate com m erce, this C ourt in 
U sery  stated at 96 S.Ct. 2468-2469,

“ It  is established beyond per adventure that the 
Com m erce C lause o f  A rt. I o f  the C onstitution  is a 
g ran t o f  p len ary  au th ority  to Congress. That au­
th ority  is, in the w ords o f  C h ief Justice M arshall 
in G ib b on s  v . O g d en , 9 W heat. (22  U .S .) 1, 6 L .E d. 
23 (1 8 2 4 ) , ‘ . . . the pow er to regu late ; that is to 
prescribe the rule by  w hich com m erce is to be gov ­
erned .’ Id ., at 196. W hen considering the va lid ity  
o f  asserted applications o f  this pow er to w holly 
p rivate activ ity , the C ou rt has m ade it clear that 
‘ [e]ven a ctiv ity  that is purely  intrastate in char­
acter m ay be regulated  by Congress, w here the

377



30

a ctiv ity  com bined w ith  like con du ct b y  others sim ­
ila rly  situated, a ffects  com m erce am ong the States 
or  w ith  fo re ig n  n ation s.’ F r y  v. U n ited  S ta te s , 421 
U .S. 542, 547, 95 S.Ct. 1792, 1795, 44 L .E d .2 d  363 
(1 9 7 5 ) . C ongressional pow er over areas o f  p r i­
vate endeavor, even w hen its exercise m ay preem pt 
express state law  determ inations con trary  to the 
resu lt w hich  has com m ended itse lf to collective 
w isdom  o f  C ongress, has been held to be lim ited 
on ly  by the requirem ent that ‘the m eans chosen by  
[C ongress] m ust be reasonably  adapted to the end 
perm itted  by  the C on stitu tion .’ ”  H e a r t  o f  A t la n ta  
M o te l , In c . v . U n ited  S ta te s , 379 U .S. 241, 262, 85
S.Ct. 348, 3 6 0 ,1 3  L .E d .2 d  258 (1 9 6 4 ).

S im ilarly , C ongress ’ pow ers p ursuan t to the F o u r­
teenth A m endm ent to regu late, proh ib it, and provide 
rem edies fo r  constitu tional v io la tions is broad.

In fa ct, in K a tz en b a ch  v. M o rg a n , 384 U .S. 641, 86 
S.Ct. 1 7 1 7 ,1 0  L .E d .2d  828 (1 9 6 5 ) , the Suprem e C ou rt 
held that under §5 o f  the Fourteenth  A m endm ent C on­
gress had the pow er to pass appropriate  legislation  to 
im plem ent the d ictates o f  the E qual Protection  Clause 
and to adopt im plem enting legislation  w hich  m ay, un­
der very  lim ited  circum stances as discussed below , 
reach m ore b road ly  than the E qual P rotection  Clause 
itse lf.19 T h erefore , in  K a tz en b a ch  v. M o rg a n , su p ra , 
th is C ou rt upheld that portion  o f  the 1965 V o tin g  
R ights A ct  w hich  provided  that no person w ho had 
successfu lly  com pleted the sixth p rim a ry  grad e  in  a 
public school or  in a p rivate school accred ited  b y  the

19. Section 5 of the Fourteenth Amendment provides, “The Congress 
shall have the power to enforce, by appropriate legislation, the provisions 
of this article/'

378



31

Com m onw ealth o f  P u erto  R ico  in w hich the language 
o f  instruction  w as other than E nglish  could be denied 
the righ t to vote in any election because o f  his inability  
to read or  w rite  E n glish .20

N ew  Y ork  C ity  had ob jected  to this legislation on 
the grou nds that N ew  Y ork  election law s had a literacy 
requirem ent w hich  had not been shown to be a pre­
text fo r  unconstitutional denial o f  the righ t to vote. 
The cou rt based its decision  on §5 o f  the Fourteenth 
A m endm ent and on the C om m erce and Suprem acy 
Clauses.

In B a k k e , su p ra , this C ourt eschewed the very  ques­
tion San F ran cisco  is posing herein when it stated, at 
98 S.Ct. 2755, fn . 41,

“ F u rth erm ore, w e are not here presented w ith 
an occasion  to rev iew  legislation  by  Congress pur­
suant to its pow ers under Section 2 o f  the T h ir­
teenth A m endm ent and Section 5 o f  the F ou r­
teenth A m endm ent to rem edy the effects o f  p rior 
d iscrim in ation . K a tz en b a ch  v. M o rg a n , 384 U.S. 
641 (1 9 6 6 ) ; J o n es  v. A l f r e d  H . M a y e r  C o., 392 
U .S. 409 (1 9 6 8 ) . W e  h a ve p r e v io u s ly  r e co g n iz ed  
th e  sp ec ia l c o m p e ten c e  o f  C o n g res s  to  m a k e  fin d ­
in g s  w ith  r e s p e c t  to  th e  e f fe c ts  o f  id en tified  p a st  
d is c r im in a tio n  and  i ts  d is c r e t io n a r y  a u th o r ity  to  
ta k e  a p p r o p r ia te  r em ed ia l m ea su res . (E m phasis 
added .)

It is clear then that the ex traord in ary  C ongressional 
pow ers affirm ed by  this C ourt in M o rg a n , su p ra , m ust 
be based on special findings.

The “ special fin d in gs”  o f  C ongress referred  to above

20. See 79 Stats. 439, 42 U.S.C. 1973b.
379



32

w ere discussed in M o rg a n , su p ra , a t 384 U .S. 652. 
R e ly in g  on the legislative h istory  o f  the V o tin g  R ights 
A ct  o f  1965, this C ou rt noted that the legislation  w as 
specia lly  ta ilored  to a specific ethnic g rou p  (P u erto  
R ica n s) w ho had been educated under special circu m ­
stances (A m erica n  F la g  schools) in a U nited  States 
te rr ito ry  and w ho had subsequently m igrated  to the 
U nited  States. In the C ongressional hearings, the spe­
cia l th ru st o f  this legislation  w as discussed at length. 
See 384 U .S. 645, fn . 3. It is clear under these special 
circum stances that C ongress could  have concluded that 
it w ou ld  be a denial o f  equal p rotection  not to allow  
citizens to vote w ho had been educated in A m erican  
F la g  schools.

In contrast, the legislative h istory  p reced in g  the ex­
tension o f  T itle  V I I  to state and local governm ents 
dem onstrates no special C ongressional attention  fo r  an 
insu lar m in ority . T here is in the legislation  no spe­
cial find ing or declaration  o f  policy. A  rev iew  o f  the 
legislative h istory  (see H .R . 92-238, app earin g  in U .S. 
Code C ong, and A dm in . N ew s, 1972, v. 2, p. 2152, e t  
s e q . ) ind icates that there is a general public problem  o f  
em ploym ent d iscrim in ation  in state and local govern ­
m ents. H ow ever, the report on w hich  the C om m ittee 
relied, ind icates that each com m unity  in this cou n try  
fa ces  special and unique prob lem s; and, indeed, the 
report notes m any instances w herein  state and local 
governm ents had m ade substantial progress  in the 
area  o f  equalization  o f  em ploym ent opportunities. (See 
U .S. C ivil R ights C om m ission, “ F o r  A ll the People . . . 
B y A ll the People, a R eport on E qual O pportu n ity  in

380



33

State and L ocal G overnm ent,”  July, 1969.)
It becom es clear upon a read in g  o f  that report, that 

there w as no basis fo r  a C ongressional finding that a 
nationw ide, b lanket rule m ore stringent than the 
Equal P rotection  Clause o f  the Fourteenth  A m end­
ment w as necessary or even desirable. A bsent a clear 
specification o f  intent, this C ou rt should be extrem ely 
reluctant to a ttribute to C ongress either the desire to 
go beyond p roh ib itin g  and p rov id in g  rem edies fo r  
Fourteenth A m endm ent violations or so elim inate the 
options o f  state and local governm ent in in tegrating  
their w ork  forces . Such a cr ip p lin g  o f  those govern ­
mental em ployers w ho have in good  fa ith  acted affirm a­
tively to in tegrate  th eir w ork  forces  flies in  the face  o f  
the equal protection  trad ition  w hich  recognizes that 
out o f  the cru cib le  o f  d iverse solutions to problem s 
great social w isdom  can be draw n. A s  noted in C ities , 
one critica l criterion  in tne determ ination  as to w heth­
er a federa l enactm ent robs the states o f  their sov­
ereign pow ers is the extent to w hich  the capacity  o f 
the states to solve their problem s has been im paired.

The legislative h istory  o f  the extension o f  T itle  V II  
to state and local governm ents th erefore  supports San 
F ran cisco 's  contention  that there is no basis fo r  the 
conclusion that C ongress m ade special findings so as 
to ju s t ify  p roscrip tion s and rem edies broader than 
those to be invoked under the Fourteenth  Am endm ent.

The im portance o f  special findings in establishing 
the line o f  dem arcation  betw een C ongressional pow er 
under Section 5 o f  the Fourteenth  A m endm ent and 
State sovereign ty  em bodied in the Tenth A m endm ent

381



34

w as m ade clear in O r e g o n  v . M itch e ll  400 U .S. 11, 27 
L .E D .2d  27 (1 9 7 0 ) . In  that case th is C ou rt upheld 
that portion  o f  the V o tin g  R ights A ct  A m endm ents 
o f  1970, P ub L 91-285, 85 Stat. 314, w hich  low ered  the 
m in im um  votin g  age in  f e d e r a l  elections. H ow ever, 
this C ou rt held invalid  C ongress ’ s a ttem pt in that A ct  
to low er the m in im um  voter age in s ta te  and  loca l elec­
tions. In announcing the ju d gm en t o f  this C ourt, M r. 
Justice B lack relied  on the fa c t  that

“ C ongress m ade no legislative find ings that the 
21-year-old  vote requ irem ent w as used b y  the 
States to d isen fran chise voters on account o f  race 
. . . S ince C ongress has attem pted to invade an 
area  preserved to the States by  the C onstitution  
w ith ou t a fou n d ation  fo r  e n forc in g  the C iv il W a r  
A m endm ents’ ban on racia l d iscrim in ation , I 
w ou ld  hold that C ongress has exceeded its  pow ers 
in attem ptin g  to low er the votin g  age in State and 
local elections. On the other hand, w here Congress 
legislates in a dom ain  n ot exclusively  reserved by 
the C onstitution  to the States, its  en forcem ent 
pow er need not be tied so closely to the goa l o f 
e lim in atin g  d iscrim in ation  on the basis o f  ra ce .”  
O r eg o n  v . M itch e ll , su p ra , 400 U .S. 112, 130, 27 
L .E d .2d  272, 284.

The D a v is  case provides an additional basis fo r  this 
contention . T h at case, like the instant case, w as filed 
on the basis o f  T itle  42, §1981. In  B r a d y  v . B r is to l -  
M e y e r s , In c ., 459 F .2d  621 (1 9 7 2 ) the cou rt noted that 
§§2000e, e t  seq ., p roh ib itin g  “ d iscr im in atory ”  em ploy­
m ent practices is parallel to §1981 though broader in 
that it extends to other form s o f  “ d iscrim in ation ”  than 
racia l d iscrim ination  to w hich §1981 is solely directed.

382



35

H ow ever, in the context o f  w hat Congress sought to do, 
it is persuasive that this C ourt in W a sh in g to n  v. D a v is , 
su p ra , refu sed  to conclude that Congress had gone so 
fa r  in §1981 as to proh ib it racia l d iscrim ination  w hich 
m anifests itse lf on ly in term s o f  adverse im pact. By 
app ly in g  the rationale  o f  the K a tzen b a ch  case this 
C ourt could have held that §1981, being implementing- 
legislation adopted by  C ongress, “ m ay reach m ore 
broadly  than the E qual Protection  Clause itse lf.”  
T herefore , the C ou rt refu sed  in the D a v is  case to ex­
pand the defin ition  o f  “ d iscrim in ation ”  even in a con ­
text w here the constitutional lim its o f  federalism  
w ould have im posed no b arriers  (D is tr ic t  o f  Colum bia 
being su b ject to the exclusive ju risd iction  and control 
o f  the C on gress ). It is subm itted that i f  the C ourt re­
fused  to g ive  an expanded defin ition  to “ d iscrim ina­
tion ”  in D a v is , then it necessarily  fo llow s that this C ourt 
should be doubly reluctant to accept such an expanded 
definition o f  the term  w hen, in addition  to the lim ita ­
tions in term s o f  w hat the d ra fters  o f  the Fourteenth  
A m endm ent sought to p roscr ibe ,21 there is the affirm a­
tive constitutional con stra in t on the pow er o f  C ongress 
to regulate the sovereign  fu n ction s o f  the state.

T herefore , it m ust be concluded that the pow ers o f  
C ongress to adopt legislation  pursuant to §5 o f  the 
Fourteenth  A m endm ent is s im ilar to the pow er o f  Con­

21. It is recognized that §1981 was adopted initially in the Civil Rights 
Bill of April 9, 1866, C. 31, §1, 14 Stat. 27 pursuant to the power invested 
in Congress by §2 of the Thirteenth Amendment’,” . .. to enforce this article 
by appropriate legislation.”  Ex parte Riggins, 134 F.404 (1904) reversed 
on other grounds 199 U.S. 547, 50 L.Ed. 303. However, since Congress was 
vested with the same power under §2 of the Thirteenth Amendment as it 
was under §5 of the Fourteenth Amendment, the argument based on Wash­
ington v. Davis, is persuasive.

383



36

gress to adopt legislation  pursuan t to the Com m erce 
Clause. Just as in the C om m erce C lause cases, Con­
gress has p len ary  pow er to regu late a ctiv ities i f  those 
a ctiv ities m ay have an effect on interstate com m erce; 
so too, under the F ourteenth  A m endm ent, C ongress m ay 
regu late a ctiv ities w hich  m ay, in and o f  them selves, 
not constitute a denial in equal protection  o f  law s i f  
such regu lation s fu rth e r  the purpose o f  secu rin g  equal 
p rotection  o f  the law s fo r  d isadvantaged  citizens.22

H ow ever, in Usery this C ou rt noted that there w ere 
lim its to C ongress ’ pow er under the C om m erce Clause. 
Said this C ou rt at 426 U .S. 833, 840-844, 96 S.Ct. 2469- 
2471,

“ A ppellants in no w a y  challenge these decisions 
establish ing the breadth  o f  a u th ority  gran ted  Con­
gress under the com m erce pow er. Their contention, 
on the contrary, it that when Congress seeks to 
regulate directly the activities of States as public 
employers, it transgresses an affirmative limita­
tion on the exercise of its power akin to other com­
merce power affirmative limitations contained in 
the Constitution. Congressional enactments which 
may be fully within the grant of legislative author­
ity contained in the Commerce Clause may none­
theless be invalid because found to offend against 
the right to trial by jury contained in the Sixth 
Amendment, United States v. Jackson, 390 U.S. 
570, 88 S.Ct. 1209, 20 L .E d .2d  138 (1 9 6 8 ) , o r  the 
D ue P rocess C lause o f  the F ifth  A m endm ent, 
Leary v. United States, 395 U .S. 6, 89 S.Ct. 1532,

22. What device could more effectively secure for citizens educated in 
American flag schools their constitutional right to equal protection of the 
laws than the opportunity to participate in selecting the law makers and 
otherwise participating in the electoral process. See Katzenbach v. Mor­
gan > supra.

384



37

23 L .E d .2d  57 (1 9 6 9 ). A ppellants ’ essential con­
tention is that the 1974 am endm ents to the A ct, 
w hile undoubtedly w ith in  the scope o f  the Com ­
m erce C lause, encounter a sim ilar constitutional 
b a rrie r  because they are to be applied d irectly  to 
the States and subdivisions o f  States as em ployers. 
T h is C ou rt has never doubted that there are lim its 
upon the pow er o f  C ongress to override state sov­
ereignty , even when exercisin g  its otherw ise ple­
n ary  pow ers to tax or to regu late com m erce w hich 
are con ferred  by  A rt. I o f  the C onstitution . . .  In 
F r y ,  su p ra , the C ou rt recognized that an express 
declaration  o f  this lim itation  is found  in the Tenth 
A m en dm en t: ‘W hile  the Tenth A m endm ent has 
been characterized  as a “ tru ism ,”  stating m erely 
that ‘all is retained w hich  has not been surren­
dered ,’ U n ited  S ta te s  v. D a r b y ,  312 U .S. 100, 124, 
61 S.Ct. 451, 462, 85 L .E d . 609 (1 9 4 1 ), it is not 
w ith ou t significance. The A m endm ent expressly 
declares the constitutional policy  that C ongress 
m ay not exercise pow er in a fash ion  that im pairs 
the States’ in tegrity  or their ability  to fun ction  
effectively  in  a federa l system  . . .  ’ 421 U .S. at 547, 
95 S.Ct., a t 1795.”  Id ., at 76. (F ootn otes  om itted .) 
(E m ph asis  added .)

A ccord in g ly , it cannot be doubted that there are 
lim its upon the pow er o f  Congress to override state 
sovereignty, even w hen exercisin g  its otherw ise b road 23 
pow er to en force  the Fourteenth  A m endm ent. That 
this lim it exists w as thoroughly  discussed in F itz p a t ­

r ick  v. B itz e r ,  427 U .S. 445 (1 9 7 6 ). In that case this 
C ourt recognized  that since the Fourteenth  A m end­

23. No case has been uncovered which describes the power of Congress 
under §5 of the Fourteenth Amendment as “plenary.”

385



m ent w as in the C onstitu tion  it m ust be read as a com ­
prom ise o f  state and local governm ental prerogatives 
(in  that case the E leventh  A m endm ent w as in vo lved ). 
The on ly w a y  to g ive content and m ean in g  to both the 
E qual P rotection  Clause o f  the C onstitu tion  and the 
concept o f  Federa lism  em bodied in the Tenth  A m en d ­
m ent is by  con clu d in g  that C ongress m ay  “ invade”  
w h at otherw ise m igh t have been w ith in  the am bit o f 
state p rerogative  when it  seeks to p roscribe  and p ro ­
vide rem edies fo r  constitu tional v iolations. Conversely, 
C ongress m ay not exact fro m  states adherence in their 
em ploym ent selection procedures to standards w hich  
go  beyond those in the C onstitution . A  read in g  o f  the 
Fourteenth  A m endm ent as au th oriz in g  C ongressional 
action  d irected  at non -constitu tional d iscrim ination  
w ould  accord  to it m ore constitutional sign ificance than 
its d ra fte rs  intended. There is no ind ication  that the 
F ourteenth  A m endm ent w as intended to go beyond 
abolish ing racia l and other fo rm s  o f  d iscrim in atory  
pre ju d ice . It m ust be concluded that the federa l sys­
tem  o f  governm ent im poses definite lim its on the au­
th ority  o f  C ongress to regu late the a ctiv ities o f  states 
by  m eans o f  the pow er vested in  it by  §5 o f  the F o u r­
teenth A m endm ent. The question here is w hether 
§1981 has been u n constitutionally  applied  to states and 
their subdivisions as em ployers. The concept o f  fe d ­
eralism  in ou r C onstitution  also incorporates the F o u r­
teenth A m endm ent w hich  im poses specific proh ib itions 
on the states as states. I f  the federa l n ature  o f  our 
system  is to retain  any o f  its  v iab ility , the pow er o f  
C ongress in §5 o f  the F ourteenth  A m endm ent m ust be



39

lim ited to p roh ib itin g , and p rov id in g  rem edies fo r , vio­
lations o f  the Fourteenth  A m endm ent w hen the regu ­
lations im pin ge upon  the state’ s exercise o f  its sov­
ereign fu n ction s.

This C ou rt in Usery noted at 426 U .S. 844-845, 96 
S.Ct. 2471,

“ In  Metcalf & Eddy v. Mitchell, 269 U .S. 514, 46 
S.Ct. 172, 70 L .E d . 384 (1 9 2 6 ) , the C ourt likew ise 
observed that ‘neither governm ent m ay destroy 
the other n or cu rta il in  any substantial m anner 
the exercise  o f  its p ow ers.’ Id ., at 523, 46 S.Ct., 
at 174.

“ A ppellee S ecretary  argues that the cases in 
w hich  th is C ou rt has upheld sw eeping exercises o f  
a u th ority  by  C ongress, even though those exercises 
pre-em pted state regu lation  o f  the private sector, 
have a lread y  cu rta iled  the sovereignty o f  the 
Stats quite as m uch as the 1974 am endm ents to the 
F a ir  L abor Standards A ct. W e  do not agree. It 
is one thing to recognize the authority of Congress 
to enact laws regulating individual business nec­
essarily subject to the dual sovereignty of the gov­
ernment of the Nation and of the State in which 
they reside. It is quite another to uphold a similar 
exercise of congressional authority directed not to 
private citizens, but to the States as States. We 
have repeatedly recognized that there are attri­
butes of sovereignty attaching to every state gov­
ernment which may not be impaired by Congress, 
not because Congress may lack an affirmative 
grant of legislative authority to reach the matter, 
but because the Constitution prohibits it from 
exercising the authority in that manner.”  221 U .S., 
at 565, 31 S.Ct., a t 689 .”  (E m phasis added.)

387



40

T h erefore , it  is subm itted  that §1981, to the extent it  is 
read to extend beyond p roh ib itin g  and p rov id in g  rem ­
edies f o r  constitu tional v iolations, is not invalid  be­
cause o f  a lack o f  an affirm ative g ra n t o f  legislative 
authority , but because the C onstitu tion  p roh ib its  C on­
gress fro m  exercisin g  its p ow er to im p a ir  exercises o f  
sovereign  pow ers by  the States. The Fourteenth  
A m endm ent did indeed com prom ise the “ sovereign ty”  
o f  the states b u t o n ly  to the extent that it  im posed lim i­
tation s on the pow er o f  the several states tantam ount 
to the B ill o f  R ights w ith  the addition  o f  the Equal 
P rotection  concept.24 In  U s e r y  this C ou rt noted at page 
845,

“ One undoubted a ttribu te  o f  state sovereign ty  is 
the States’ pow er to determ ine the w ages w hich  
shall be paid to those w hom  they em ploy in order 
to ca rry  out their governm ental fun ction s, w hat 
hours these persons w ill w ork , and w h at com pen­
sation w ill be provided  w here these em ployees m ay 
be called  upon to w ork  overtim e. The question w e 
m ust resolve in this case, then, is w hether these de­
term inations are ‘fu n ction s  essential to separate 
and independent existence.’ C o y le  v . S m ith , su p ra , 
at 580, 31 S.Ct., a t 695, quotin g  fro m  L a n e  C o u n ty  
v. O reg o n , su p ra , 7 W all, a t 76, ‘so that C ongress 
m ay not abrogate  the S tate ’s otherw ise p lenary 
au th ority  to m ake them .’ ”

It is clear that selection cr iteria  fo r  determ in in g  w ho 
shall be governm ental em ployees to ca rry  out the public 
business are undisputed attributes o f  sovereignty . The

24. Indeed the Due Process Clause of the Fifth Amendment has been 
held to impose on the federal government the same restrictions articulated 
in the Equal Protection Clause, Bolling v. Sharp 347 U.S. 497, supra.

388



41

question, then, is w hether the state ’s pow er to deter­
mine cr iteria  fo r  em ployee selection and dism issal are 
“ fun ction s essential to the separate and independent 
[state] existence . . .  ” 25

One fa c to r  noted in U s e r y  in  determ in ing w hether 
the legislation  v iolated  the sovereignty o f  the states 
was the substantial increase in costs to the states i f  the 
m inim um  w age and m axim um  hours lim itations w ere 
applicable. The §1981 lim itations applied by  the tria l 
court and by  the N inth  C ircu it require m unicipalities 
to fo rego  tim e-tested  and rational selection procedures 
thereby resu ltin g  in increased  personnel costs incident 
to tra in in g  and d ism issin g  em ployees w ho fa il to  per­
form  sa tis fa ctor ily  fo r  reasons w hich could have been 
predicted  based the re jected  cr ite r ia .26 27 F urtherm ore, 
there are less easily  m easurable, but certa in ly  signifi­
cant costs to the public in term s o f  not having the best 
qualified people to do the job . In addition , Los A n ­
geles’ services m ay  be im paired  and the C ounty could 
be exposed to lia b ility  f o r  actions or  fa ilu res  to act 
w hich also could  have been predicted  and avoided but 
fo r  the §1981 lim itation s.2128 One im portan t considera­
tion, im plicit in  a reasonably  conceived em ployee selec­

4 25. Just as this Court in Usery undoubtedly would have upheld legisla­
tion prohibiting a pay scale which gave higher wages to whites than non­
whites, likewise, in the instant ease it is conceded that Congress may pro­
hibit and provide remedies for state governmental employment selection 
procedures which deny equal protection of the laws.

26. Whereas the employment examination held invalid by the trial court 
in the instant case was based on some rational attempt to select the most 
qualified applicants for the position of firefighters, the quota hiring order, 
following a determination of adverse impact, is.based exclusively on sta­
tistical, racial criteria and does not even purport to select the most quali­
fied applicant for the j ob.

27. As noted, Title VII as written by Congress merely prohibits “dis­
crimination.”  However, what is being applied are the guidelines developed 
by EEOC from a reading of the legislation. That EEOC may have gone

389



42

tion  exam ination , is the need f o r  efficient, cost-effective 
em ployees. T o  the extent C ongress (o r  the E E O C ) 
supplants the pow er to m ake determ inations o f  how  
best to m easure efficiency and effectiveness, it neces­
sarily  fo llow s  that the cost o f  d eliverin g  the govern ­
m ental services w ill be increased  and, correlatively  the 
quality  o f  the produ ct w ill decline.28 29 T h at one can at 
best on ly  speculate on these costs speaks30 cogen tly  fo r  
a conclusion  that C ongress should not regu late in the 
area  beyond p roh ib itin g  and p rov id in g  rem edies fo r  
constitu tional violations.

E m p irica l validation  as contem plated b y  the E E O C  
guidelines is an extrem ely  costly  and tim e-consum ing

beyond what was legitimately intended by Congress to constitute “discrim­
ination” is a powerful question. See General Electric v. Gilbert, supra.

28. California Civil Code §§2100-2104, for example, impose special 
duties on common carriers who are held to the duty of utmost care and 
diligence to the public. Fisher v. Southern Pacific Railroad Co., 89 Cal. 
399, 26 P. 894. Common carriers can be held responsible for any, even the 
slightest, negligence, and are required to do all that human care, vigilance 
and foresight reasonably can do under all the circumstances. Acosta v . 
Southern Calif. Rapid Transit Diet., 2 Cal.3d 19, 84 Cal.Rptr, 184, 465 
P.2d 72. If a municipality seeking to select bus drivers gets caught up in 
the nightmare of the adverse impact—empirical validation labyrinth, it 
very well may give up and submit to a consent decree pursuant to which 
employees are selected on the basis of racial roulette. Clearly it is less 
likely that chance will give the municipality bus drivers who will meet 
these standards. That Los Angeles should be required to select its future 
firefighters on such a basis is to deny, on the basis of hypertechnical con­
stitutional casuistry, the very foundations of organized social order and 
the social contract.

29. In light of Proposition 13, amending the California Constitution 
and limiting the powers of local governments to raise revenues, the cost 
of delivery of governmental services becomes a predominant consideration 
to the County of Los Angeles.

30. Another clear increased personnel cost would be the expense of con­
ducting validation studies which would pass muster under the EEOC em­
pirical validation guidelines. In addition, if the municipality succeeds in 
passing this hurdle it must still anticipate and respond to the potential 
claim that there are other equally effective selection devices which would 
not have a disparate impact and which therefore should be used. The re­
jection of a validated selection device in such a case would add waste onto 
increased cost.

390



43

undertaking w hen it is  at all possible.3"" W ith  m ost job  
categories the num ber o f  appointees is so small as to 
provide no reliable basis f o r  an em pirical validation  
study.

Then this C ou rt in  Usery w ent on to d iscuss other 
factors  w hich  w eigh  in determ ination  as to w hether 
the state ’s sovereign ty  has been invaded. Said this 
Court at 426 U .S. 833, 847-8452 S.Ct. 2465, 2472-2473,

“ Q uite a part fro m  the substantial costs im posed 
upon the States and their political subdivisions, 
the A ct  d isplaces state policies regard in g  the m an­
ner in w hich  they w ill structure delivery o f  those 
governm ental services w hich  their citizens require. 
The A ct, speaking d irectly  to the States qua 
States, requires that they shall pay all but an ex­
trem ely  lim ited  m in ority  o f  their em ployees the 
m in im um  w age rates cu rren tly  chosen by  Con­
gress. It  m ay w ell be that as a m atter o f  econom ic 
po licy  it  w ould  be desirable that States, ju st as p ri­
vate em ployers, com ply  w ith  these m inim um  w age 
requirem ents. B u t it  cannot be gainsaid  that the 
federal requirement directly supplants the consid­
ered policy choices of the States’ elected officials 
and administrators as to how  they w ish  to struc­
ture pay  scales in state em ploym ent . . . The only 
‘d iscretion ’ le ft  to them  under the A ct  is either to 
attem pt to increase their revenue to m eet the addi­
tional financial burden  im posed upon them by p ay ­
in g  con gression ally  prescribed  w ages to their ex­
istin g  com plem ent o f  em ployees, or to reduce that

30a. The U.S. Civil Rights Commission itself has recognized that 
“ [t]est validation is a complicated, expensive, and time-consuming opera­
tion under the best of circumstances”  and “ is even more difficult” in “a 
traditional civil service system.”  “ For All the People . . .  By All the Peo­
ple,” supra.

391



44

com plem ent to a num ber w hich  can be paid  the 
federa l m in im um  w age w ith ou t in creasin g  rev­
enue.

“ T h is dilem m a presented by  the m in im um  w age 
restriction s m ay seem not im m ediately  d ifferent 
fro m  that fa ced  by private  em ployers . . . T h e d i f ­
f e r e n c e ,  h o w ev er , is  th a t a  S ta te  is  n o t  m e r e ly  a  
fa c t o r  in  th e  ‘s h i f t in g  e co n o m ic  a r r a n g e m e n ts ’ o f  
th e  p r iv a te  s e c to r  o f  th e  eco n o m y . K o v a c s  v. 
C o o p er , 336 U .S. 77, 95, 69 S.Ct. 448, 458,93 L .E d. 
513 (1 9 4 9 ) (F ra n k fu r te r , J ., co n cu rr in g ), b u t is  
i t s e l f  a  co o rd in a te  e le m e n t in  th e  s y s te m  e s ta b ­
lish ed  b y  th e  f r a m e r s  f o r  g o v e r n in g  o u r  fe d e r a l  
u n ion .

“ T h e d e g r e e  to  w h ich  th e F L S A  a m en d m en ts  
w ou ld  in t e r f e r e  w ith  tra d itio n a l a sp e c ts  o f  s ta te  
s o v e r e ig n ty  ca n  be s e e n  e v e n  m o r e  c le a r ly  u p o n  
ex a m in in g  th e o v e r t im e  r e q u ir e m e n ts  o f  th e  A c t  
. . .  W e  do n o t d o u b t th a t th is  m a y  be a  s a lu ta r y  
r e su lt , an d  th a t i t  h as a  su ffic ien tly  ra tio n a l r e la ­
tion sh ip  to  c o m m erce  to  v a lid a te  th e  a p p lica tio n  
o f  th e o v e r t im e  p r o v is io n s  to  p r iv a te  em p lo y ers .  
B u t, lik e  th e  m in im u m  w a g e  p ro v is io n s , th e  v ic e  
o f  th e  A c t  a s so u g h t to  be a p p lied  h ere  is  th a t it  
d ir e c t ly  p en a liz es  th e  S ta te s  f o r  ch oos in g  to  h ire  
g o v e r n m e n ta l em p lo y e e s  on  te r m s  d if fe r en t  f r o m  
th ose  w h ich  C o n g r es s  has so u g h t to  im p ose.

“ T h is  c o n g re s s io n a lly  im p o sed  d isp la cem en t o f  
s ta te  d ec is io n s  m a y  s u b s ta n tia lly  r e s tr u c tu r e  tr a ­
d ition a l w a y s  in  w h ich  th e  loca l g o v e r n m e n ts  a r ­
r a n g ed  th e ir  a ffa ir s  . . . O ur exam ination  o f  the 
effect o f  the 1974 am endm ents, as sought to be ex­
tended to the States and their politica l subd iv i­
sions, satisfies us that both the m inim um  w age 
and the m axim um  hour provisions w ill im perm is­

392



45

sibly in terfere  w ith  the integral g o v ern m en ta l  
functions of these bodies . . . their a p p lica tion  ivill 
nonetheless significantly alter or d isp la ce  the 
States’ abilities to structure employer-employee 
relationships in such areas as fire prevention, po­
lice protection . . . These activities are typical of 
those performed by state and local governments 
in discharging their dual functions of administer­
ing the public law and furnishing public services. 
Indeed, it is fu n ction s such as these w hich govern ­
m ents are created to provide, services such as these 
w hich  the States have trad ition ally  a fforded their 
citizens. I f  C ongress m ay w ith draw  from  the 
States the authority  to m ake those fundam ental 
em ploym ent decisions upon w hich  their system  fo r  
perform a n ce  o f  these fu n ction s  m ust rest, we think 
there w ould  be little le ft  o f  the States’ separate 
and independent ex isten ce.’ . . . This exercise o f  
congressional a u th ority  does not com port w ith  the 
federa l system  o f  governm ent em bodied in the 
C onstitution . W e  hold that insofar as the chal­
lenged amendments operate to directly displace the 
States’ freedom to structure integral operations in 
areas of traditional governmental functions, they 
are not w ith in  the au th ority  granted  C ongress by 
A rt . I, §8, cl. 3.”  (F ootn otes  om itted .) (E m phasis  
a dded .)

Sim ilarly, the app lication  o f  T itle  V II  standards in the 
context o f  the instan t case “ displaces state policies re ­
ga rd in g  the m anner in w hich  they select those charged 
w ith  the responsib ility  fo r  the ‘delivery o f  these gov ­
ernm ental services w hich  the citizens requ ire .’ ”

L ikew ise, “ It m ay w ell be that as a m atter o f  . . . 
[social] policy  it w ould  be desirable that states, ju st as

393



46

private  em ployers, com ply  w ith  . , . [T itle  V I I  adverse 
im pact standards]. B u t it  cannot be ga in sa id  that the 
federa l requirem ent d irectly  supplants the considered 
po licy  choices o f  the states’ elected officials and adm in ­
istrators  as to h ow  they w ish  to stru ctu re . . . [em ploy­
m ent selection cr iter ia ] in state em ploym ent.”  A s  a 
practica l m atter, the state is le ft  w ith  no real choice. 
The local governm ent m ay stop u sing the tim e-tested 
em ployee selection device as a selection cr iterion  and 
start selecting its  em ployees on the basis o f  race, o r  it 
m ay abandon the public undertak ing.

In a sim ilar m anner, “ This con gression ally  im posed 
displacem ent o f  state decisions [re la tin g  to selection 
cr iteria ] m ay substantia lly  restru ctu re  trad ition al 
w ays in  w hich  local governm ents have arran ged  their 
a ffa irs ”  by  n u llify in g  the civ il service m erit system  
based on com petitive exam inations. A n d  it  can on ly 
be concluded that the tria l cou rt ’s in corpora tion  o f  
T itle  V I I  standards into th is Section  1981 case, to the 
extent that that in corp ora tion  attem pts to extend be­
yond p roh ib itin g  and p rov id in g  rem edies fo r  con stitu ­
tional v iolations, s ign ifican tly  alters and displaces local 
govern m en ts ’ ab ility  to select those persons m ost quali­
fied to p erform  services in such trad ition al governm en­
tal fu n ction s  as fire protection  and police protection . 
I f  the “ adverse im pact”  rule is allow ed to be applied 
to such an integra l operation  as em ployee selection, 
then there w ill be little  le ft  o f  the states’ “ separate and 
independent existence.”  A n d  clearly  the regu lation  in 
question w ould im pa ir the states’ “ ab ility  to fu n ction  
effectively  w ithin  a federa l system .”

394



47

L y in g  behind this p rincip le  is the Suprem e C ou rt ’s 
conception o f  the F ourteenth  A m endm ent, its p u rp ort 
and intent, its scope and potency. The ju d ic ia ry  does 
not v iew  the Fourteenth  A m endm ent as a tool w hich 
enables the federa l cou rts under the guise o f  the equal 
protection  to control the adm in istration  o f  govern ­
m ents by  the states. Y o u n g e r  v . H a r r is ,  401 U.S. 37, 
44 (1 9 7 1 ) . See also O r eg o n  v. M itch e ll , su p ra , at 400 
U.S. 112, 126-127, 27 L .E d .2d  272, 287 (1 9 7 1 ) w here 
M r. Justice  B lack  stated,

“ W hile  this C ou rt has recognized that the E qual 
P rotection  C lause o f  the F ourteenth  A m endm ent 
in som e instances protects against d iscrim inations 
other than those on account o f  race, . . .  i t  ca n n o t  
he s u c c e s s fu lly  a r g u ed  th a t th e  F o u r te e n th  
A m e n d m e n t  w a s  in ten d ed  to  s tr ip  th e  S ta te s  o f  
th e ir  p o w e r , c a r e fu l ly  p r e s e r v e d  in  th e  o r ig in a l  
C o n s titu t io n , to  g o v e r n  th em selv es . T h e F o u r ­
te e n th  A m e n d m e n t w a s  s u r e ly  n o t  in ten d ed  to  
m a k e  e v e r y  d is c r im in a tio n  b e tw e e n  g r o u p s  o f  p e o ­
p le  a  c o n s titu t io n a l d en ia l o f  eq u a l p r o te c t io n . N o r  
w a s th e  E n fo r c e m e n t  C la u se  o f  th e  F o u r te e n th  
A m e n d m e n t  in ten d ed  to  p e r m it  C o n g res s  to  p r o ­
h ib it e v e r y  d is c r im in a tio n  b e tw e e n  g ro u p s  o f  p e o ­
p le . On the other hand, the C ivil W a r  A m endm ents 
w ere unquestionably designed to condem n and fo r ­
bid every d istinction , h ow ever trifling, on account 
o f  ra ce .”  (F ootn ote  and citations om itted .) E m ­
phasis added .)

This decision  fu rth e r  re in forces  San F ran cisco ’ s con­
tention that this C ou rt cannot in terfere  w ith  its em ­
ploym ent selection procedures w hich are an intim ate 
part o f  se lf governm ent. A n d  the equal protection

395



48

standard  as noted in W a s h in g to n  v. D a v is , su p ra , is 
not violated  by  ra tio n a l  selection cr iteria  m erely  be­
cause they result in som e adverse im pact.

CONCLUSION

I f  §1981 (in co rp o ra tin g  T itle  V II  and E E O C  gu ide­
lines) v iolates the sovereign ty  o f  the state to the extent 
that it goes beyond E qual P rotection  Clause lim itations 
then it is subm itted that W a s h in g to n  v. D a v is , su p ra ,  
provides the standard  fo r  rev iew  o f  em ploym ent selec­
tion  devices o f  governm ental entities. W a s h in g to n  v. 
D a v is , quoted extensively  above, holds that a p r im a  
fa c i e  case o f  a Fourteenth  A m endm ent v io la tion  m ay 
not be pleaded and proved on the basis o f  “ adverse im ­
p act.”  T h is C ou rt held that the p la in tiff m ust plead 
and prove intent to d iscrim inate, and that a llegations 
and evidence o f  adverse im pact, though acceptable as 
one elem ent o f  a claim , do not alone m ake out a F ou r­
teenth A m endm ent violation . In the instant case p la in ­
tiffs  on ly pleaded and proved  adverse im pact. It is 
subm itted that the tria l cou rt erred  in conclud ing that 
p la in tiffs  had m ade out a p r im a  fa c ie  case. A cco rd ­
ingly , a §1981 claim  restin g  on p ro o f o f  statistical d is­
p arity  should be deem ed insufficient as a m atter o f  law.

In the instant case, the p la in tiffs  introduced  insuffi­
cient evidence to sustain their burden o f  overcom ing 
the presum ption  o f  va lid ity  that attached to the Los 
A n geles C ounty exam ination  to q u a lify  firefighters by 
show ing that that exam ination  w as a rb itra ry  or that 
it w as anim ated by an intent to d iscrim inate on the 
basis o f  race. A nd  since the standards applied by the

396



49

trial cou rt and upheld by  the N inth  C ircu it constituted 
a pervasive and unconstitutional invasion  o f  state p re­
rogative, that decision  o f  the N inth  C ircu it m ust be 
reversed.

T h erefore , the decision  o f  the N inth  C ircu it should 
be reversed  and the case rem anded w ith  appropriate  
d irections fro m  this court.

397





3« %  #Mpron? ffiwrrt
OF THE

Ittttgft Bttxtm
October Term, 1977

No. 77-1553
C o u n t y  o p  L o s  A n g e l e s ; B o a r d  o p  S u p e r v is o r s  o f  t h e  C o u n t y  

o p  L o s  A n g e l e s ; a n d  C i v i l  S e r v ic e  C o m m is s io n  o p  t h e  
C o u n t y  o p  L o s  A n g e l e s ,

Petitioners,

V a n  D a v is , H e r s h e l  C l a d y , a n d  F r e d  V e g a , in d i v i d u a l l y  a n d  o n  
b e h a l f  o f  a l l  o t h e r s  s im i la r ly  s i t u a t e d ;  W i l l i e  C . B u r s e y , 

E l i j a h  H a r r is , J a m e s  W . S m i t h , W i l l i a m  C l a d y , 
S t e p h e n  H a y n e s , J i m m i e  B o y  T u c k e r , L e o n  

A u b r y , R o n a l d  C r a w f o r d , J a m e s  H e a r d ,
A l f r e d  R. B a l t a z a r , O s b a l d o  A. A m- 

p a r a h , in d i v i d u a l l y  a n d  o n  b e h a l f  
o f  a l l  o th e r s  s im i la r ly  s itu a te d ,

Respondents.

BRIEF AMICUS CURIAE FOR PACIFIC LEGAL FOUNDATION

Ronald A. Ztjmbrtjn 
John H. F indley

Pacific Legal Foundation 

455 Capitol Mall, Suite 465 

Sacramento, California 95814 

Telephone: (916) 444-0154

A tto r n e y s  f o r  A m icu s  C u ria e  
P a c if ic  L eg a l F o u n d a tio n

O f  C o u n se l:

Sandra R. Johnson
455 Capitol Mall, Suite 465 

Sacramento, California 95814 

Telephone: (916) 444-0154

399





Subject Index

Page
In terest o f  a m icu s ......................................................................................... 1

O p in ion  b e low  ................................................................................................... 2

In tro d u ct io n  ........................................................................................................ 2

A rg u m en t ...............................................................................................................  6

T h e  con stitu tion a l s ta n d a rd  o f  p r o o f  m u st b e  a p p lied  
in  a ction s  a lleg in g  v io la tion s  o f  42 U .S .C . § 1981 . . . .  6

A . A c t io n s  b ro u g h t  u n d e r  T it le  Y I I  a n d  S ection
1981 a re  sep a ra te  a n d  d is t in c t ........................................ 6

B . T h e  h is to ry  o f  S e c t io n  1981 m an dates  a  con stitu ­
tio n a l s ta n d a rd  o f  p r o o f  .................................................... 11

C. T h e  scop e  o f  S ect io n  1981 d ic ta tes  a  sh ow in g  o f
d is cr im in a to ry  in ten t .................................................  15

D . W a sh in g to n  v. D a v is  a n d  F e d e ra l C o u rt  dec ision s 
co n stru in g  W a sh in g to n  v. D a v is  in d ica te  th at 
S ection  1981 req u ires  a con stitu tion a l sta n d a rd
o f  p r o o f  ...................................•..................................................  18

C on clu s ion  ............................................................................................................  21

401



Table of Authorities Cited

Cases P a g es

A le x a n d e r  v . G a rd n e r -D e n v e r  C om p a n y , 415  U .S . 3 6  (19 7 4  ) 7 , 8
A r n o ld  v . B a lla rd , 448  F . S u p p . 1025 (N .D . O h io  1978) . . 20

B a lla rd , 448  F . S u p p  1028 .....................................................................  21

C ity  o f  M ilw au k ee  v. Saxbe, 546 F .2 d  693 (7 th  C ir. 1 9 7 6 ) 20
C iv il  B ig h ts  Cases, 109  U .S . 1 (1 8 8 3 ) ............................................. 9 ; 13

D a v is  v . C o u n ty  o f  L o s  A n g e les , 8 F .E .P . C ases 239 (C .D .
C al. 1973) .....................................................................................................  3

D a v is  v . C o u n ty  o f  L o s  A n g e les , 566 F .d  1334 (9 th  C ir.
1 9 7 7 ) ............................................................2, 3 , 4 ,5 ,  7, 8 ,1 0 ,1 1 ,1 5 ,1 8 ,  21

G r ig g s  v . D u k e P o w e r  C o., 401  U .S . 424  (1 9 7 1 ) ........... ....... 4 , 9

H ern a n d ez  v . E rlen b u sch , 368 F . S u p p . 752 (D . O re. 1973) 16

J e ffe rson  v . H a ck n ey , 4 0 6  U .S . 535 (1 9 7 2 ) ................................ 1 6 ,1 7
J oh n son  v . A le x a n d e r , ....... F .2 d  ......., 16 F .E .P . C ases 894

( 8th  C ir . 1978) .................................................... ...................................  2 0
J o h n son  v . B a ilw a y  E x p re ss  A g e n c y , 421 U .S . 454  (1 9 7 5 )

................... .................. .............................................................. . . . 8,10
J on es  v . A l f r e d  H . M a y e r  C o., 392  U .S . 4 0 9  (1 9 6 8 ) ,  q u o t­

in g  fro m , 39 th  C on g ., 1st Sess. 43 ..................................... ......... 1 2 ,1 4

K e r r  v . E n o c h  P r u t t  F r e e  L ib r a r y  o f  B a lt im o re  C ity , 149 
F .2 d  212  (4 th  C ir. 1 9 4 5 ), cert, den ied , 326 U .S . 721 
( 1 9 4 5 ) ..............................................   1 5 ,1 6

L ew is  v , B eth leh em  S tee l C orp ., 440  F . S u p p . 949 (D  M o  

I 9 7 7 )   7 ,1 4

M a ck lin  v . S p ee to r  F r e ig h t  System s, In c ., 478  F .2 d  979 
(D .D .C . 1973) ...........................................................................................  15

B es id en t A d v is o r y  B d . v. B izzo , 564 F .2 d  126 (3 d  C ir.
1 9 7 7 ), cert, d en ied , 46 U .S .L .W . 3541 (1 9 7 8 ) .........................  20

B u n y o n  v . M cC ra ry , 427 U .S . 160 (1 9 7 6 ) ................................  5 ,1 6

U n ited  States v . M ed ica l S o c ie ty  o f  S ou th  C a ro lin a , 298 F .
S u p p . 145 (D .S .C . 19 6 9 ) .....................................................................  15

U n ited  S tates  v . W o n g  K im  A rk , 169 U .S . 649 (1 8 9 8 ) ____  13

402



T a b l e  o f  A u t h o r i t i e s  C i t e d i i i  

P a g es
W a sh in g ton  v. D a v is , 426  U .S . 229 (1 9 7 6 ) ................................

...................................................................4 , 5 ,6 ,1 0 ,1 1 ,1 5 ,1 6 ,1 7 ,1 8 ,1 9 ,2 0

Codes
D is tr ic t  o f  C o lu m b ia  C od e  § 1-320 ...................................................... 18

Constitutions
U n ited  S tates  C o n st itu tio n :

T h irteen th  A m e n d m e n t .................................................................. 12, 22
T h irteen th  A m en d m en t, S ection  2 ............................................. 12
F o u rte e n th  A m en d m e n t ...................................................................

.............................................5 ,1 0 ,1 1 ,1 2 ,1 3 ,1 4 ,1 5 ,1 6 ,1 7 ,1 8 ,1 9 ,  22
F o u rte e n th  A m en d m en t, S ection  1 .........................   12

Rules
U n ited  S ta tes  S u p rem e  C o u rt  B u ie  4 2 ............................. 1

Statutes
C iv il B ig h ts  A c t  o f  1866, T it le  V I I  (4 2  U .S .C . ) :

S ection  1 ..................................................................................................  14
S ection  1981 .......................................  passim
S ection  1983 ...........................................................................................  7
S ection  1982  ..................................     14

Texts
G oodm an , D e  F a c t o  S ch o o l S e g r e g a tio n : A  C on stitu tion a l 

a n d  E m p ir ic a l A n a ly s is , 60 C a lif . L . B ev . 275, 300  (1 9 7 2 ) 16

E . G ressm an , T h e U n h a p p y  H is to ry  o f  C iv il  B ig h ts  L e g is la ­
tion , 50  M ich . L . B ev . ( 1 9 5 2 ) :

P a g e  1323 ................................................................................................12, 13
P a g e  1326 ............................................................................................... .1 2 ,1 3
P a g es  1328-29 ......................................................................................  12
P a g e  1331 ................................................................................................  12
P a g es  1333-1334 .................................................................................. 13

403





Jtt %  §ujrrm? (Eiturt
OF THE

Ittiteii

October Term, 1977

N o. 77-1553

C o u n t y  o f  L o s  A n g e l e s ; B o a r d  o f  S u p e r v is o r s  o f  t h e  C o u n t y  
o f  Los A n g e l e s ; a n d  C i v i l  S e r v ic e  C o m m is s io n  o f  t h e  

C o u n t y  o f  L o s  A n g e l e s ,
Petitioners,

V a n  D a v i s , H e r s h e l  C l a d y , a n d  F r e d  V e g a , in d iv id u a l ly  a n d  o n  
b e h a l f  o f  a ll  o t h e r s  s im i la r ly  s i t u a t e d ;  W i l l i e  C . B u r s e y , 

E l i j a h  H a r r is , J a m e s  W .  S m i t h , W i l l i a m  C l a d y , 
S t e p h e n  H a y n e s , J i m m i e  B o y  T u c k e r , L e o n  

A u b r y , B o n a l d  C r a w f o r d , J a m e s  H e a r d ,
A l f r e d  B. B a l t a z a r , O s b a l d o  A. Am- 

p a r a h , in d iv id u a l ly  a n d  o n  b e h a l f  
o f  a ll  o th e r s  s im i la r ly  s itu a te d ,

Respondents.

BRIEF AMICUS CURIAE FOR PACIFIC LEGAL FOUNDATION

INTEREST OF AMICUS
This b r ie f  am icus cu r ia e  is respectfu lly  subm itted 

on beha lf o f  am icu s cu r ia e  P a cific  L egal Foundation  
( P L F )  pursuant to Suprem e C ourt R u le 42. Consent 
to the filing o f  this b r ie f  has been granted by counsel 
fo r  both parties and has been filed w ith the clerk.

405



2

P L F  is a nonprofit, tax-exem pt corp ora tion  organ ­
ized and existing under the laws o f  C a liforn ia  fo r  
the purpose  o f  engaging in  litiga tion  in  m atters a f­
fectin g  the broad  pub lic interest. P o lic y  fo r  P L P  is 
set by  a B o a rd  o f  Trustees com posed o f  concerned 
citizens, the m a jor ity  o f  w hom  are attorneys. The 
B oa rd  evaluates the m erits o f  any contem plated legal 
action  and authorizes such legal action  on ly  w here the 
F ou n d ation ’s position  has b road  su pport w ithin the 
general com m unity. The P L F  B oa rd  has authorized 
the filing o f  this b rie f.

P L F , due to its unique pub lic interest perspective, 
believes that it can prov ide  this C ourt w ith  a m ore 
com plete argum ent o f  the p u b lic interest at stake in 
establishing a standard o f  p r o o f  required  fo r  actions 
a lleging violations o f  42 U .S .C . § 1981.

OPINION BELOW
The op in ion  o f  the N inth  C ircu it C ourt o f  A ppea ls  

in  D a v is  v. C o u n ty  o f  L o s  A n g e le s  is reported  at 566 
F .2d  1334 (9th  C ir. 1977).

INTRODUCTION
The facts o f  this case, as set fo rth  in  petition ers ’ 

opening b r ie f and herein  adopted, raise several im ­
portant issues. O f these, the issue o f  the standard o f  
p r o o f  required  to show d iscrim ination  in violation  o f

406



3

42 U .8 .C . § 19811 is o f  vita l im portance w ith respect 
to the pub lic interest. The context in  w hich this issue 
arose was an alleged v io la tion  o f  S ection  1981 by the 
Los A ngeles C ounty F ire  D epartm ent, w hich used a 
general aptitude test to screen applicants fo r  fire­
fighter positions w ith the departm ent. A t trial, the 
p la intiffs presented statistical evidence w hich showed 
that this testing procedure had an adverse im pact on 
black and M exican -A m erican  applicants. T he d istrict 
court specifically  fou n d  that:

“ [n ]  either the defendants n or their officials had 
engaged in  em ploym ent practices w ith a w illfu l 
o r  conscious purpose o f  excluding blacks and 
M exican -A m ericans fro m  em ploym ent at the Los 
A ngeles C ounty F ire  D epartm ent.”  D a v is  v. 
C o u n ty  o f  L o s  A n g e le s ,  8 F .E .P . Cases 239, 24] 
(C .D . Cal. 1973).

N onetheless the court concluded  that the statistical 
data alone established a p r im a  fa c ie  case o f  racial 
d iscrim ination  w hich defendants w ere unable to rebut 
and ruled  in fa v o r  o f  p la intiffs. D a v is  v. C o u n ty  o f  
L o s  A n g e le s ,  566 F .2d  1334, 1337 (9th  Cir. 1977).

This ju dgm en t was appealed and the cou rt o f  ap­
peals affirmed the trial cou rt ’s findings. H ow ever, a 
rehearing was granted fo llow in g  this C ou rt’s decision

Section 1981 provides: “ All persons within the jurisdiction of 
the United States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit of Al laws and pro­
ceedings for the security of persons and property as is enjoyed 
by white citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, and to no 
other.”

407



4

in  W a s h in g to n  v. D a v is , 426 U .S . 229 (19 76 ), in  order 
to determ ine w hether that case requ ired  that p la in ­
tiffs  show d iscrim in atory  m otivation  or  intent in 
ord er  to m ake out a p r im a  fa c ie  case o f  em ploym ent 
d iscrim ination  under S ection  1981. O n rehearing, the 
court o f  appeals held that there was no ind ication  in 
W a s h in g to n  v . D a v is  that d iscrim in atory  intent or 
m otive had to be present in  S ection  1981 cases. F u r ­
ther, the cou rt again  agreed w ith  the d istrict court 
that statistical evidence o f  adverse im pact u pon  m i­
norities o f  the challenged procedures was sufficient to 
establish a p r im a  fa c ie  case o f  em ploym ent d iscrim i­
nation  under S ection  1981.

In  hold ing that under S ection  1981, p la intiffs, to 
m ake out a p r im a  fa c ie  case o f  em ploym ent d iscrim i­
nation  need on ly  show  that the challenged, practices 
have a d iscrim in atory  im pact on m inorities, the court 
o f  appeals relied  on the standard fo r  burden o f  p ro o f  
set fo rth  in  T itle  Y I I  cases ( G rig g s  v . D u k e  P o w e r  
C o., 401 U .S . 424 (1 9 7 1 )) , and re jected  the standard 
set fo rth  f o r  constitutional cases, i .e ., that p la in tiffs  
m ust show the challenged practices have a d iscrim ina­
tory  intent ( W a sh in g to n  v. D a v is , 426 U .S . at 229). 
Specifica lly , the court held that “ there rem ains no 
operational d istinction  in th is context between lia ­
b ility  based upon  T itle Y I I  and Section  1981.”  D a v is  v. 
C o u n ty  o f  L o s  A n g e le s ,  566 F .2d  at 1340.

T he significance o f  the N inth  C ircu it C ou rt o f  A p ­
peals ’ determ ination that the T itle Y I I  standard o f  
d isproportion ate im pact o f  challenged practices upon  
m inorities is sufficient to establish a p r im a  fa c ie  ease

408



5

o f  em ploym ent d iscrim ination  under 42 U .S .C . § 1981 
is enorm ous. B ecause S ection  1981 does n ot m andate 
the procedu ra l prerequisites required in  T itle Y U  
challenges to em ploym ent practices, the cou rt ’s deci­
sion foreshadow s increased challenges to num erous 
racia lly  neutral em ploym ent procedures. F urther, be­
cause o f  the broad  sweep o f  Section  1981 (s e e ,  fo r  
exam ple, R im y  o n  v . M c C r a r y , 427 U .S . 160 (1 9 7 6 )) , 
and because o f  its parallels to the Fourteenth  A m end­
ment, this decision  has the potentia l fo r  im pact be­
yond  the em ploym ent field and fo r  laying the grou nd ­
w ork  fo r  challenges to m any other neutral private 
and governm ental actions w hich  m ay be m ore burden­
some to m inorities than to others. D a v is  v. C o u n ty  o f  
L o s  A n g e le s ,  566 F .2d  at 1348-50 (d issenting op in ion ). 
This possib ility  was addressed in W a sh in g to n  v. 
D a v is , 426 U .S . at 248, in  the context o f  F ifth  and 
Fourteenth  A m endm ent challenges to em ploym ent 
practices and was noted b y  this C ourt as a reason fo r  
requ irin g  a show ing o f  d iscrim in atory  intent to estab­
lish a p r im a  fa c ie  case in  these challenges. In  effect, 
by rem oving this requirem ent from  Section 1981 chal­
lenges, the court o f  appeals has increased dangers 
w hich this C ourt seem ingly sought to prevent in 
W a sh in g to n  v. D a v is .

F urther, w ere the N inth  C ircu it decision  allowed 
to stand, governm ental entities (an d  therefore tax­
payers) cou ld  be subjected  to court im posed heavy 
m onetary penalties w ithout regard  to intent to d is­
crim inate— or even w here the entity has m ade the 
m axim um  affirm ative action effort but fa iled  to attain

409



6

the “ p ro p e r ”  num bers. In  addition , the N inth  C ircu it 
ru lin g  cou ld  ju s t ify  the im position  o f  reverse dis­
crim in ation  quotas in any case o f  statistical d isparity. 
The im position  o f  penalties w ithout fau lt raises sub­
stantial questions o f  v iolation  o f  due process o f  law 
w hile quotas w ithout fau lt raise equal p rotection  o f  
the laws questions.

The decision  o f  the court o f  appeals w hich raises 
these issues was apparently  taken w ithout an in-depth  
analysis o f  either S ection  1981 or  this C ou rt’s ruling- 
in  W a s h in g to n  v. D avis . H a d  such an analysis been 
m ade, it  w ou ld  be apparent that n ot on ly W a s h in g ­
to n  v . D a v is , but also the legislative h istory  o f  Sec­
tion  1981, the d ifferences betw een T itle  Y I I  and 
S ection  1981, and the m od em  scope and usage o f  
S ection  1981 all require that the burden  o f  p r o o f  fo r  
a p r im a  f a n e  case o f  racia l d iscrim ination  brought 
under S ection  1981 be the sam e as that fo r  cases 
brought u n der the Constitution.

ARGUMENT
THE CONSTITUTIONAL STANDARD OF PROOF MUST BE A P ­

PLIED IN ACTIONS ALLEGING VIOLATIONS OF 42 U.S.C.
§1981

A. Actions Brought Under Title VII and Section 1981 Are Sepa­
rate and Distinct

The cou rt o f  appeals ’ h old ing that S ection  1981 
actions m ust parallel those o f  T itle  V I I  and that 
there is “ no operational d istinction  . . . between lia ­
b ility  based u pon  T itle V I I  and S ection  1981”  was

410



7

apparently  based upon  reasoning that Section  1981 
is a bar to em ploym ent d iscrim ination  and that this 
Court “ has recognized that T itle  V I I  and § 1981 em ­
brace ‘parallel o r  overlapp in g  rem edies against d is­
crim ination .’ A le x a n d e r  v . G a rd n e r -D e n v e r  C o., 415 
U .S. 36, 47 & n. 7 . . . D a v is  v. C o u n ty  o f  L o s  
A n g e le s , 566 F .2d  at 1340.

The fa c t  that S ection  1981, as well as T itle V I I ,  
m ay be used as a bar to em ploym ent discrim ination  
is indisputable. H ow ever, the appellate cou rt ’s re li­
ance on this C ou rt’s statem ent in  A le x a n d e r  v. G ard ­
n e r -D e n v e r  C om p a n y  is m isplaced. This C ourt there 
stated th at: “ legislative enactm ents in  this area have 
long evidenced a general intent to accord  parallel or 
overlapp ing  rem edies against d iscrim ination .”  A l e x ­

a n d er  v . G a r d n e r -D e n v e r  C om p a n y , 415 U .S . 36, 47 
(1 9 7 4 ).2

This C ourt m ade no suggestion that T itle V I I  and 
Section  1981 are parallel or overlapping , the re fe r ­
ence is to  Sections 1981 and 1983.3 H ow ever, even i f  
the reference cou ld  be construed to app ly  to T itle V I I  
and S ection  1981, it cannot stand as precedent fo r  a 
ru ling that the tw o enactm ents require the same 
standards fo r  a p rim a  fa c ie  case or  that there can

2“ 8 ee  e. g., 42 USC § 1981 (Civil Rights Act of 1§66); 42 USC 
§ 1983 (Civil Rights Act of 1871).” A lexander v. G ardner-D enver  
Com pany, 415 U.S. 36, 47 n.7.

sIf this reference is to be read to mean that parallel or over­
lapping remedies must have the same burden of proof, it should 
be noted that Section 1983, which is specifically mentioned, has 
been noted to require a showing of discriminatory intent. Lewis  
v. Bethlehem  S teel Corp., 440 F. Supp. 949, 963-64 (D. Mo. 1977).

411



8

be no “ operational d istinction ”  between the tw o. In  
A le x a n d e r  v. G a r d n e r -!)  e n v e r  C o m p a n y  the reference 
was m ade solely in  su pp ort o f  a h old in g  that the 
existence o f  T itle  V I I  does n ot deny p la in tiffs  other 
rights and rem edies they m ay  have against d iscrim i­
nation  in private em ploym ent. I n  fa c t  this C ou rt con ­
tinues to  p o in t out that “ T itle  V I I  was designed to 
supplem ent, rather than supplant, existing law s and 
institutions relating to em ploym ent d iscrim ination .”  
Id .  at 48-49.

F urther, in  J o h n so n  v . R a ilw a y  E x p r e s s  A g e n c y ,  
421 U .S . 454, 459-63 (19 75 ), this C ourt reaffirm ed 
the existence o f  these supplem ental rem edies, but 
poin ted  out that they are not coextensive. This C ourt 
therein  concluded  its discussion  o f  T itle  Y I I  and S ec­
tion  1981 by  stating:

“ [T ]h e  rem edies available under T itle Y I I  and 
under § 1981, although related, and although d i­
rected  to m ost o f  the same ends, are separate, 
distinct, and independent,”  J oh n son , 421 U .S  at 
461.

The d issenting op in ion  in  D a v is  v. C o u n ty  o f  L o s  
A n g e le s ,  566 F .2d  at 1348, cogently  poin ts to the fa l­
lacy  o f  the m a jority 's  reason ing w hen it observes:

“ That both statutes [S ection  1981 and T itle  
V I I ]  can a pp ly  to the same fa cts  and that both 
m ay a fford  sim ilar rem edies is beside the point. 
T he sam e can be said o f  T itle  V I I  and the F o u r­
teenth Am endm ent, yet, a fter  W a s h in g to n  v. 
D a v is , there rem ains an essential ‘operational dis­
tin ction ’ between them .”

412



9

This d istinction  between T itle  Y I I  and Section  1981 
m anifests itse lf w hen the scope o f  the two statutes 
is studied. T itle  Y I I  was enacted in  1964 to deal w ith 
d iscrim ination  in  em ploym ent. The Court, in  ad­
dressing the purpose o f  this statutory rem edy, has 
sta ted :

“ T he ob jective  o f  Congress in the enactment 
o f  T itle  V I I  is p la in  fro m  the language o f  the 
statute. I t  was to achieve equality o f  em p lo y m en t  
o p p o r tu n it ie s  and rem ove barriers that have o p ­
erated in the past to fa v o r  an identifiable group  
o f  w hite em ployees over other em ployees.”  G rig g s  
v. D u k e  P o w e r  C o ., 401 U .S . at 429-30 (em phasis 
a d d e d ).

S ection  1981 is  not so lim ited to one area o f  dis­
crim ination , n or was it intended to achieve a narrow  
goal. The purpose o f  the C iv il R ights A ct o f  1866 
from  w hich  S ection  1981 is derived  has been described 
by  this C o u r t : “ to secure to all citizens o f  every race 
and color, and w ithout regard  to previous servitude, 
those fu n d a m en ta l r ig h ts  w h ich  a re  th e  e ssen ce  o f  
c iv il f r e e d o m C i v i l  B ig h ts  C ases , 109 U .S . 1, 22 
(1883) (em phasis added).

V iew in g  the two statutes in com parison , convergent 
on ly in  the area o f  em ploym ent discrim ination  and 
w idely  d ivergent in all other areas o f  d iscrim ination, 
it is difficult to  im agine how  the same standard o f  
p ro o f  cou ld  be applicable to both. E ven  in the n ar­
row  area o f  em ploym ent, these tw o rem edies fo r  the 
same ill m ay be parallel and overlapp ing w ithout o p ­
erating identically. C ertainly, because o f  the proee-

413



10

dural prerequisites involved  under T itle V I I ,  every 
p la in tiff who meets S ection  1981 standards, even as 
the cou rt o f  appeals describes them , w ould  not be 
able to b rin g  a successfu l T itle  Y I I  suit. ( S e e  J o h n ­
son  v. R a ilw a y  E x p r e s s  A g e n c y ,  421 U .S . at 460.)

These p rocedu ra l prerequ isites o f  T itle  V I I  suits, 
inclu d in g  the exhaustion o f  adm inistrative rem edies, 
“ tend to elim inate claim s that are fr ivo lou s  or  su f­
fe r in g  fro m  obvious legal or  factu al defects  [an d] 
it is not unreasonable to p rov id e  that a p r im a  fa c ie  
case m ay be established w ithout a show ing o f  d is­
crim in atory  intent.”  D a v is  v. C o u n ty  o f  L o s  A n g e le s ,  
566 F .2d  at 1350 (d issenting o p in io n ). Fourteenth  
A m endm ent actions lack the p rocedu ra l protections 
against obviously  defective  ca ses ; how ever, p rotection  
is p rov id ed  by  the requirem ent o f  p ro o f  o f  d iscrim ­
inatory m otivation  behind challenged practice  be fore  
a p r im a  fa c ie  case can be established. I f  S ection  1981 
is interpreted  in the m anner set fo rth  by the N inth 
C ircuit, cases brought u n der this section  w ill have 
neither o f  the screening devices o f  T itle  V I I  and the 
Fourteenth  Am endm ent. This fa c tor  standing alone 
is sufficient to require that S ection  1981 standards o f 
p r o o f  parallel those o f  the Fourteenth  Am endm ent. 
In  addition , because o f  the fa c t  that S ection  1981 
actions are extrem ely sim ilar to those o f  the F o u r­
teenth A m endm ent and in  light o f  the fa c t  that this 
C ourt has already prescribed  the standards fo r  the 
F ourteenth  A m endm ent in  W a sh in g to n  v. D a v is , 
there is am ple ind ication  that d iscrim in atory  m otiva­
tion  m ust be part o f  the p r im a  fa c ie  case under Sec­
tion  1981. W ere  this n ot the case:

414



11

“ I n  the vast array  o f  cases such as the one before 
us now and W a s h in g to n  v. D a v is  itself, where 
T itle  V I I  does not a p p ly  but Section  1981 and 
the Fourteenth  A m endm ent do, one could  easily 
avoid  the intent requirem ent o f  the A m endm ent 
by  sim ply p lead in g  section 1981.”  D a v is  v. C o u n ty  
o f  L o s  A n g e le s ,  566 F .2d  at 1350 (dissenting 
op in ion ) ( foo tn o te  om itted, citation  om itted ).

I t  appears quite lik ely  that this C ourt itse lf con ­
sidered this p rob lem  in W a s h in g to n  v . D a v is  when it 
ind icated  that the extension o f  T itle  V I I  standards 
beyond T itle  V I I  m ust await specific legislative ac­
tion. Id .  at 248.

B. The History of Section 1981 Mandates a Constitutional 
Standard of Proof

Justice  Stevens, con cu rrin g  in  W a sh in g to n  v . D a v is , 
426 U .S . at 255, stressed the im propriety  o f  transplant­
in g  T itle  V I I  standards into another statute w ithout 
an exam ination o f  that statute’s legislative history. 
S im ilarly , the dissent in D a v is  v. C o u n ty  o f  L o s  A n ­
g e le s  in d ica ted :

“ The p rop er  in qu iry  is w hether the legislative his­
tory  o f  Section  1981 indicates that it should track 
the Fourteenth  A m endm ent’s standards o f  p ro o f 
rather than those o f  T itle  V I I .  I  believe that the 
h istory  o f  Section  1981 strongly suggests precisely  
that.”  Id .  at 1348.

T h e  h istory  o f  S ection  1981 does m ore than suggest 
that S ection  1981 tracks the Fourteenth  Am endm ent. 
I t  suggests that it w as the d irect p rogen itor o f  the 
F ourteenth  Am endm ent.

415



12

The Thirteenth A m endm ent was ratified and adopted 
in D ecem ber o f  1865 abolishing slavery and involun ­
ta ry  servitude. F u rth er, it granted  to Congress the 
p ow er to m ake its p rov is ion s effective by appropriate  
legislation. Thirteenth  A m endm ent, S ection  2. U nder 
the auspices o f  this pow er o f  en forcem ent, the legisla­
ture enacted the C iv il R ights A ct  o f  1866 securing “ [ t ]o  
all persons w ithin  the U nited  States p ractica l free ­
dom .”  J o n es  v . A l f r e d  H . M a y e r  C o ., 392 U .S . 409, 
431-32 (19 68 ), q u o tin g  fr o m ,  39th Cong., 1st Sess. 43, 
474-75. The “ p ractica l freed om ”  guaranteed by  this 
A ct  was the righ t to m ake and en force  con tracts ; the 
rights to buy, sell, and ow n realty  and p erson a lty ; the 
righ t to sue, be parties, and give ev id en ce ; and the right 
to fu ll  and equal benefit o f  all law s and proceedings fo r  
the security  o f  persons and p rop erty . E . Gressm an, T h e  
U n h a p p y  H is to r y  o f  C iv il  B ig h ts  L eg is la tio n , 50 M ich. 
L . R ev. 1323, 1326 (1952) (h erein a fter H i s t o r y ) .

B ecause o f  the extent o f  con troversy  over the con­
stitutionality o f  this A ct, som e adverse court decisions, 
and the fee lin g  by  some advocates o f  the A ct  that it 
should be p laced  beyond the p ow er o f  subsequent con­
gressional action, the provision s o f  the C iv il R ights 
A c t  o f  1866 wrere cast in  the m old o f  a new  constitu­
tional provision , the F ourteenth  A m endm ent. H is to r y  
at 1328-29. Congressional speakers addressing the p u r­
pose o f  S ection  1 o f  the F ourteenth  A m endm ent m ade 
it quite p la in  that it was designed to m ake certain  that 
the C iv il R ights A ct  o f  1866 was constitutionally  valid  
(■H is to r y  at 1331), and a com parison  between the lan­
guage o f  Section  1 o f  the Fourteenth  A m endm ent and

416



13

the C iv il R igh ts  A ct  o f  1866 dem onstrates that this con ­
stitutionality was guaranteed by  enacting the C ivil 
R ights B ill  in to  the C onstitution  itself. F u rth er ind i­
cations o f  this equality between am endm ent and statute 
are fou n d  in  the language m aking all citizens born or 
naturalized in the U nited  States “ citizens o f  the U nited 
States and o f  the State w herein they reside,”  found 
in the F ou rteen th  A m endm ent and draw n from  the 
1866 A ct. A dd ition a lly , the “ privileges and im m unities 
clause”  also was draw n fro m  the A ct. H is to r y  at 1333.

T he Fourteenth  A m endm ent was subsequently ra ti­
fied on  J u ly  2l8, 1868, and on M ay 31, 1870, a new 
C iv il R igh ts  A ct  was passed. T h is  statute was a re­
enactm ent o f  the 1866 A ct  “ under the be lie f that 
w hatever doubts m ay have previou sly  existed as to con ­
stitutional va lid ity  w ere now  rem oved  by  the F o u r­
teenth A m endm ent.”  H is to r y  at 1333-34. ( S ee  also  
U n ited  S ta te s  v . W o n g  K im  A r k , 169 U .S . 649, 674-76 
(1 8 9 8 ).)  The language o f  S ection  1981, the m odern 
codification  o f  the C iv il R ights A cts  o f  1866 and 1870, 
still contains m ost o f  the orig inal language and still 
vindicates “ those fundam ental rights w hich  appertain  
to the essence o f  citizenship .”  C iv il E ig h ts  C ases, 109 
U .S . at 22.

The im port o f  the h istory  o f  Section  1981 is obvious. 
This h istory  shows that the Fourteenth  A m endm ent 
and S ection  1981 share not on ly a com m on heritage, 
but com m on language and purpose  as well. These 
factors  stron gly  suggest that actions brought under 
Section  1981 and the Fourteenth  A m endm ent must be 
treated in a sim ilar m anner and that the burden o f

417



14

p r o o f  fo r  a prim  a  fa c ie  case under each m ust be the 
same.

E ven  apart from  the genealogical connection  w ith 
the Fourteenth  A m endm ent, an exam ination o f  S ection  
1981 alone indicates that d iscrim in atory  m otivation  
m ust be show n in  order to  ind icate a statutory v io la ­
tion. I n  J o n es  v . A l f r e d  I I .  M a y e r  C o., 392 U .S . 409 
(19 68 ), this C ourt exp lored  the language and h istory  
o f  the C iv il B ights A c t  o f  1866 in  order to  determ ine 
w hether S ection  1982 app lied  to private  actions. A fte r  
exam ining the 1866 A ct, the C ourt in d ica ted :

“ [T ]h e  structure o f  the 1866 A ct, as well as its 
language, poin ts to the conclusion  u rged  by the p e ­
titioners in  this case— that § 1 was m eant to p ro ­
h ib it all [em phasis in  orig in a l] ra cia lly  m o tiv a ted  
[em phasis added] deprivations o f  the rights enu­
m erated in  the statute, although on ly  those d ep ri­
vations perpetrated  ‘under color o f  law ’ were to 
be crim in a lly  punishable under § 2 .”  Id .  at 426.

A lthough  it is recogn ized  that this statem ent in J o n es  
v . A l f r e d  H . M a y e r  C o. is d ic ta  on the issue o f  d iscrim i­
n atory  intent under the 1866 A c t :  “ it is an expression 
o f  the C ourt's  reading o f  the statute”  ( L e w is  v. B e th ­
leh em  S te e l  C o rp ., 440 F . S u pp. 949, 964-65 ( I). M o. 
1 9 7 7 )), and significant in  this case since Section  1981, 
like S ection  1982, is derived  fro m  S ection  1 o f  the C ivil 
R ights A ct  o f  1866. J o n es  v. A l f r e d  H . M a y e r  C o ., 392 
U .S . at 422-23, n.28. This read ing o f  the statute, when 
com bined w ith  its relationship  to the Fourteenth  
Am endm ent, dem onstrates that d iscrim in atory  intent 
behind challenged actions is a prim e ingred ient o f  a 
p r im a  fa c ie  case brought under Section  1981.

418



15

C. The Scope of Section 1981 Dictates a Showing of Discrimi­
natory Intent

In  assessing the dangers o f  app ly in g  T itle  V I I  dis­
crim inatory im pact standards in  constitutional cases, 
the C ou rt in  W a s h in g to n  v . D a v is , 426 IT.8 . at 248, ob­
served :

“ A  ru le that a statute designed to serve neutral 
ends is nevertheless invalid , absent com pelling ju s ­
tification, i f  in  p ractice  it benefits or  burdens one 
race m ore than another w ou ld  be far-reach in g  and 
w ou ld  raise serious questions about, and perhaps 
invalidate, a w hole range o f  tax, w elfare, public 
service, regu latory , and licensing statutes that m ay 
be m ore  burdensom e to the p oor and to the average 
b lack  than to  the m ore  affluent w hite .”

A lth ou gh  this com m ent is d irected  to  cases brought 
under the F ifth  or Fourteenth  Am endm ents, it is also 
app licable  to potentia l problem s should the show ing 
o f  d iscrim in atory  intent requirem ent be abandoned in 
S ection  1981 cases.

W h ile  it  is true that the case at bar goes no furth er 
than d ispensing w ith  p r o o f  o f  d iscrim inatory intent in 
Section  1981 p u b lic  em ploym ent cases ( D a v is  v . C o u n ty  
o f  L o s  A n g e le s ,  566 F .2d  at 1340), Section  1981, like 
the F i fth  and Fourteenth  Am endm ents, extends fa r  
beyond the pub lic em ploym ent field and is available as 
a rem edy in  a m u ltip licity  o f  cases when pub lic or p r i­
vate d iscrim ination  based u pon  race is alleged.* The

‘ S e ct ion  1981 h as b een  h e ld  to  p r e v e n t d is cr im in a tio n : in  the 
adm ittan ce  t o  h osp ita ls  (United States v. Medical Society of South 
Carolina, 298 F . S u p p . 145 (D .S .C . 1 9 6 9 ) ; in  th e  a ctiv ities  o f  
la b or  u n ion s  (Macklin v. Spector Freight Systems, Inc., 478 F .2 d  
979, 993 n .26  (D .D .C . 1 9 7 3 ) ) ;  in  access to  lib ra r ie s  (see Kerr v.

419



16

N inth  C ircu it ’s h old ing foreshadow s an end to p ro o f 
o f  d iscrim in atory  intent in  all these cases. Such a 
h old ing is frau gh t w ith the same dangers w hich  this 
C ourt sought to avoid  in W m h in g to n  v . D a v is5 and 
w ith  the additional dangers inherent in the fa ct that 
S ection  1981, unlike the F ifth  and F ourteenth  A m end­
ments, can be utilized to challenge private as w ell as 
public actions.

A n  exam ple o f  the problem s w hich  m ight arise is 
given  by  J e f fe r s o n  v . H a c k n e y ,  406 U .S . 535 (1972). 
In  that case, bare statistical evidence revealed that 
there was an adverse im pact upon  black and M exican- 
A m erican  recip ients o f  A id  to F am ilies w ith  D ependent 
C hildren (A F D C )  created by  a Texas constitutional 
p rov is ion  p lacin g  a ceilin g  on the am ount w hich  could 
be spent on w elfa re  assistance grants. B ecause this con­
stitutional ceiling was insufficient to  gran t the fu ll 
am ount to  all w elfare assistance recipients, the state 
reduced, by  a certain  percentage, the am oim t o f  grants

Enoch Prutt Free Library of Baltimore City, 149 F .2 d  212 (4 th  
C ir. 1 9 4 5 ), cert, denied, 326 U .S . 721 ( 1 9 4 5 ) ) ;  in  access to 
p r iv a te  schools (Runyon v. McCrary, 427  U .S . 160, 173-74 
( 1 9 7 6 ) ) ;  a n d  in  th e  r ig h t  to  eq u a l se rv ice  in  resta u ra n ts  ( Her­
nandez v. Erlenbusch, 368 F . S u p p . 752, 755 (D . O re. 1 9 7 3 )) .

•’G oodm an , De Facto School Segregation: A Constitutional and 
Empirical Analysis, 60  C a lif . L . E ev . 275, 300  (1 9 7 2 ) ,  c ite d  b y  
th is C ou rt in  Washington v. Davis, 426  U .S . 229, 248 n .14  (1 9 7 6 ), 
in d ica tes  th a t n eu tra l tests a n d  qu a lifica tion s  f o r  g ov ern m en t con ­
fe r r e d  ben efits  a n d  o p p ortu n itie s , su ch  as v o t in g , d r a f t  d e fe r ­
m ent, p u b lic  em p loym en t, a n d  ju r y  serv ice , w o u ld  b e  in v a lid a ted  
b y  a  d is cr im in a tory  im p a ct  test u n d e r  th e F o u rte e n th  A m e n d ­
m ent. A ls o  op en  t o  ch a llen g e  w o u ld  b e  “ [s ja le s  taxes, b a il sch ed ­
ules, u t i l i ty  rates, b r id g e  to lls, licen se  fees  a n d  o th er  sta te  im posed  
ch a rg es  [w h ich ] a re  m ore  bu rd en som e to  th e  p o o r  th a n  to  the 
rich , a n d  h en ce  m ore  so  t o  th e a v era g e  b la ck  th a n  t o  th e  average  
w h ite .”  M ost, i f  n o t  a ll o f  these, w o u ld  b e  ch a llen g ea b le  u n d er 
S ection  1981 as w ell as th e F i f t h  o r  F ou rte e n th  A m en dm en ts.

420



17

under the variou s program s. The largest reduction  
was in  the A F D C  area which, coincidentally , had the 
highest num ber o f  m in ority  recipients.

The p la in tiffs  argued  that such an action  deprived  
them, am ong other things, o f  th eir constitutional rights 
under the Fourteenth  A m endm ent. This C ourt noted 
that statistical inequalities d id  n ot autom atically result 
in in v id iou s racia l d iscrim ination  and ob served :

“ The acceptance o f  appellants ’ constitutional 
th eory  w ou ld  render suspect each d ifference in 
treatm ent am ong the grant classes, how ever lack­
in g  in  racia l m otivation  and how ever otherw ise 
rational the treatm ent m ight be. F ew  legislative 
e fforts  to deal w ith  the difficult problem s posed  by 
current w elfa re  p rogram s cou ld  survive.”  J e f f e r ­
son , 406 U .S . at 548.

I t  was thus held that p la in tiffs  could  not p reva il in 
their F ourteenth  A m endm ent challenge since the re­
duction  classifications w ere rational. The quote above 
em bodies reason ing sim ilar to that elucidated in  W a s h ­
in g to n  v . D a v is , 426 U .S . at 248.

H ad  the p la in tiffs  in  J e f fe r s o n  presented a Section 
1981 claim , and this section were to be construed as 
suggested by  the N inth  C ircuit, it is possible that p la in ­
tiffs  w hile fa ilin g  on th eir Fourteenth  A m endm ent 
claim  cou ld  have succeeded on their Section  1981 claim. 
The fears expressed b y  this C ourt in  J e ffe r s o n  w ould 
then have been realized, and indeed could yet be re­
alized i f  new  claim s, w hich  cou ld  be based on the F ou r­
teenth A m endm ent or  Section  1981, are brought under 
Section  1981 alone.

421



18

D. Washington v. Davis and Federal Court Decisions Con­
struing Washington v. Davis Indicate that Section 1981 
Requires a Constitutional Standard of Proof

In  D a v is  v . C o u n ty  o f  L o s  A n g e le s ,  566 F .2d  at 1340, 
the cou rt o f  appeals read  W a s h in g to n  v . D a v is  as hav­
ing n o  bearing on the S ection  1981 claim s involved  in 
this case. B ecause o f  the parallels between Section  
1981 and the Fourteenth  A m endm ent, discussed above, 
it is subm itted that this reason ing is incorrect. H o w ­
ever, it also subm itted that it is erroneous in  that this 
C ourt in  W a s h in g to n  v . D a v is  appears to have im ­
p lic it ly  decided the S ection  1981 question.

In  W a sh in g to n  v . D a v is , p la in tiff s-respondents chal­
lenged em ploym ent practices on both constitutional 
(F i fth  A m endm ent) and statutory (S ection  1981 and 
D istrict o f  C olum bia Code § 1-320) grounds and as­
serted, am ong other things, that a preem ploym ent test 
was invalid  in so fa r  as it had a d iscrim inatory im pact 
on  b lack applicants. T h e  case below  was heard on 
m otions fo r  sum m ary ju dgm en t w ith all the parties and 
courts assum ing that T itle  Y I I  standards regardin g  
burden o f  p r o o f  applied , i .e ., all that was necessary fo r  
a p la in tiff to  m ake out a pn im a  fa c ie  case o f  em ploy­
m ent d iscrim ination  was a show ing o f  d iscrim inatory 
im pact o f  the challenged practices. T h is C ourt d is­
agreed w ith  that assum ption. A lth ou gh  the C ourt p r i ­
m arily  discussed the in ap p licab ility  o f  T itle  Y I I  
standards o f  p ro o f  fo r  a p rim a  fa c ie  case o f  dis­
crim ination  in constitutional cases, it observed that 
“ [r e s p o n d e n ts  w ere entitled to re lie f on neither con ­
stitutional nor statutory grounds.”  W a sh in g to n  v.

422



19

D a v is , 426 U .S . at 248. The C ourt then proceeded  to 
uphold  the ju dgm en t o f  the d istrict cou rt w hich  had 
granted defendant-appellants ’ m otion  fo r  sum m ary 
judgm ent. T h is  m otion  had asserted that p la in tiffs  
were entitled to re lie f on neither statutory n or con ­
stitutional grounds. Id .  at 234.

In  his con cu rrin g  op in ion  Justice  Stevens states 
his v iew  that the C ou rt’s ru lin g  regard in g  the inap ­
p lica b ility  o f  T itle  Y I I  standards app lied  to S ection  
1981 claim s as w ell as those based on the C on stitu tion : 

“ S ince the C ourt o f  A pp ea ls  set aside the portion  
o f  the D istr ict C ou rt’s sum m ary judgm ent grant­
ing the defendants ’ m otion , I  agree that we can­
not ignore the statutory claim s even though, as 
the C ourt m akes clear, ante, at 238 n 10, there 
is no T itle  V I I  question in  this case. T h e  actual 
statutory holdings are lim ited  to 42 U S C  § 1981 
and § 1-320 o f  the D istrict o f  C olum bia Code, to 
w hich regulations o f  the E qual E m ploym ent O p ­
p ortu n ity  Com m ission have no d irect app lica ­
tion .”  Id .  at 255.

W h en  Justice S tevens’ observations are read  along 
w ith the h old ing o f  the m a jority , it is apparent that 
the C ourt was extending its constitutional ru lin g  to 
include S ection  1981. T h is conclusion  i s , em inently 
log ica l when it is n oted  that S ection  1981 parallels 
and guarantees constitutional rights sim ilar to those 
o f  the Fourteenth  Am endm ent.

F urther, as discussed above, this C ourt clearly  ev i­
denced its concern  in regard  to the consequences 
which cou ld  fo llow  i f  Fourteenth  A m endm ent chal­

423



20

lenges to practices  a ffecting the races unequally were 
allow ed to g o  fo rw a rd  w ithout a show ing o f  d iscrim ­
ina tory  intent. W a s h in g to n  v . D a v is , 426 U .S . at 248. 
A fte r  assessing these consequences, the C ou rt con ­
tinued :

“ [ I ] n  ou r view , extension  o f  the rule [th at a 
statute designed to serve neutral ends is invalid  
i f  it benefits one race m ore than another] beyond 
those areas w here it  is a lready app licable  by 
reason o f  statute, such as in the field o f  p u b lic  
em ploym ent, should aw ait legislative p rescr ip ­
tion .”  Id .

This stron gly  suggests that the C ou rt w ished to 
confine the T itle  V I I  standards solely to T itle  Y I I  
proceedings or  those fu tu re  situations in  w hich  the 
standards had been specifically  authorized  by  the leg­
islature. A ctions under S ection  1981 do not fa ll into 
this category.

I t  is significant to note  that, fo llow in g  W a s h in g to n  
v. D a v is , a num ber o f  federa l courts, inclu d in g  the 
T h ird , Seventh, and E ighth  C ircu its,6 have indicated 
that that case necessitates a show ing o f  intentional 
d iscrim ination  fo r  a p r im a  fa c ie  case under Section  
1981. In  A r n o ld  v . B a lla rd , 448 F . S u pp. 1025 (1ST.D. 
O hio 1978), w hich was rem anded to the d istrict court 
specifically  fo r  reconsideration  in ligh t o f  W a s h in g ­
ton  v. D a v is , the cou rt expressly  re jected  the reason­
ing o f  D a v is  v. C o u n ty  o f  L o s  A n g e le s  and held :

0Resident Advisory Bd. v. Rizzo, 564 F .2 d  126  (3 d  C ir. 1 9 7 7 ), 
cert, denied, 46 U .S .L .W . 3541 ( 1 9 7 8 ) ;  City of Milwaukee v.
Sax-be, 546 F .2 d  693 (7 th  C ir. 1 9 7 6 ) ;  Johnson v. Alexander, ..
F . 2 d ...... , 16 F .E .P . C ases 894 (8 th  C ir . 1 9 7 8 ).

424



21

“ The legislative h istory  o f  section  1981, p r io r  
S uprem e Court, op in ions dealing w ith  the C ivil 
R igh ts  A ct  o f  1866, e. g., J o n es  v. A l f r e d  I I .  M a y e r  
C o., 392 U .S . 409, 88 S.C't. 2186, 20 L .E d .2d  1189 
(19 68 ), and W a s h in g to n  v. D a v is  can be h ar­
m onized  on ly  by  a h old ing that p r o o f  o f  d is­
crim in atory  purpose is required  fo r  em ploym ent 
d iscrim ination  claim s under section 1981.”  B a l­
lard , 448 F . S upp. at 1028.

Such a hold ing appears em inently logical and correct.

CONCLUSION
The N inth  C ircu it C ourt o f  A ppea ls  decision  that 

a show ing o f  adverse im pact is sufficient to m ake out 
a p r im a  fa c ie  case o f  em ploym ent discrim ination  
under S ection  1981 is seriously deficient. I t  m ade no 
search o f  the h istory  o f  S ection  1981. I t  fa iled  to 
note the d ifferen t nature and scope1 o f  Section  1981 
and T itle V I I .  M ost seriously it fa iled  to com prehend 
the purpose o f  the requirem ent o f  a show ing o f  in ­
tent in  constitutional challenges to d iscrim in atory  
practices.

Intentional racia l d iscrim ination  should never be 
condoned. H ow ever, w henever d iscrim ination  is 
charged, it is  necessary to ensure that the rights o f 
all parties are p rotected  and that innocent people 
are not, themselves, d iscrim inated  against. The means 
o f  ensuring that these rights a re  p rotected  is by re ­
qu irin g  the show ing o f  d iscrim inatory intent or m oti­

425



22

vation. In  ligh t o f  this and fo r  the reasons set forth  
above, am icu s cu ria e  P a cific  L ega l F ou n dation  urges 
this C ourt to find that 42 U .S .C . § 1981, like its con­
stitutional analogs, the T h irteenth  and Fourteenth  
Am endm ents, requires a show ing o f  d iscrim in atory  
intent or  m otivation .

O f  C o u n se l:

R esp ectfu lly  subm itted,
Ronald A. Ztjmbrttn 
John H. F indley

A tto r n e y s  f o r  A m icu s  C u ria e  
P a c if ic  L e g a l  F o u n d a tio n

Sandra R. Johnson

Septem ber, 1978

426



IN THE
SUPREME COURT 

OF THE UNITED STATES 
October Term, 1978 

No.

COUNTY OF LOS ANGELES; BOARD OF 
SUPERVISORS OF LOS ANGELES; and CIVIL 
SERVICE COMMISSION OF THE COUNTY 
OF LOS ANGELES,

Petitioners,

vs.

VAN DAVIS, HERSHAL CLADY and FRED 
VEGA, individually and on behalf of all others 
similarly situated, WILLIE C. BURSEY, ELIJAH 
HARRIS, JAMES W. SMITH, WILLIAM CLADY, 
STEPHEN HAYNES, JIMMIE ROY TUCKER, 
LEON AUBRY, RONALD CRAWFORD, JAMES 
HEARD, ALFRED R. BALTAZAR, OSBALDO 
A. AMPARAH, individually and on behalf of 
all others similarly situated,

Respondents.

MOTION OF CALIFORNIA ORGANIZATION OF 
POLICE AND SHERIFFS, INC. FOR LEAVE TO 
FILE BRIEF AS AMICUS CURIAE AND BRIEF 

OF CALIFORNIA ORGANIZATION OF POLICE 
AND SHERIFFS AS AMICUS CURIAE

Law Offices of
STEPHEN WARREN SOLOMON, INC. 
STEPHEN WARREN SOLOMON 
RALPH B. SALTSMAN 

330 Washington Street, Suite 601 
Marina del Rey, California 90291 
(213) 822-9848

427



TABLE OF CONTENTS

Page

iiiT A B L E  OF C A S E S

M O TIO N  F O R  L E A V E  T O  FILE  
BRIEF AS A M IC U S  C U R IA E

BRIEF OF A M IC U S  C U R IA E

O PIN IO N S B E L O W

JU R ISD IC T IO N

Q U E STIO N S P R E SE N T E D

C O N S T IT U T IO N A L  ISSUES A N D  
S T A T U T E S  IN V O L V E D

A R G U M E N T

I. A  R E M E D Y  O F R A C IA L  Q U O T A S  
F O R  A  V IO L A T IO N  OF TITLE VII 
W IT H O U T  A  F IN D IN G  OF IN T E N T  
IS IM P E R M ISSA B LE  U N D E R  42  
U .S .C . §  2 0 0 0 e -5 (g ) II.

II. W IT H O U T  A  S U B S T A N T IA L
D E M O N S T R A T IO N  T H A T  A  LESS  
O N E R O U S  R E M E D Y  W O U L D  

A L L E V IA T E  TH E  D A M A G E  TO  
P L A IN T IF F S TH E  IM POSITIO N  
O F R A C IA L  Q U O T A S  IS A N  A B U SE  
O F D ISC R E T IO N  AS A  M A T T E R  
O F L A W

ii

1

6
7

7

8

8

9

9

19

428



TABLE OF CASES

Cases Pages

Bridgeport Guardians, Inc, v.
Civil Service Commission, 482
F.2d 1333 (CA.2 1973) 20

Carter v. Gallagher, 452 F.2d
315 (CA.8) 20

County of Los Angeles, et al. v.
Van Davis, etc., et al. 3

Davis v. County of Los
Angeles, 566 F.2d 1334 10

Evans v. Sheraton Park
Hotel, 503 F.2d 177 (D.C. 1974) 12

Franks v. Bowman Transportation
Co., 4024 U.S. 747, 47 L.Ed.2d
444, 96 S.Ct. 1251 11

Griggs v. Duke Power Co., 401 
U.S. 424, 91 S.Ct. 849, 28 L.Ed 
2d 158 15,16,17

Local 189, United Paper Mak 
and Paper Work v. United States,
416 F.2d 980 17,18

Regents of the University of 
California v. Bakke, 98 S.Ct.
2733 20,21

Robinson v. Lorillard Corporation,
444 F.2d 791 15

iii

429



Cases Pages

United States v. City of Chicago,
49 F.2d 415 13

Van Davis, et al, v. County of
Los Angeles, et al., 566 F.2d
1334 7

Washington v. Davis, 426 U.S.
229, 48 L.Ed.2d 597, 96 S.Ct. 240 13,14

Codes

United States Codes

28 U.S.C. §1254(1) 8

28 U.S.C. §1343 7

42 U.S.C, §1981 3,4

42 U.S.C. §1983 3

42 U.S.C. §2000e-5(g) 4,5,8,9,
11,13,15

Rule 19(l)(b) 8

Constitutions

United States Constitution 

Fifth Amendment 8

Fourteenth Amendment 8

Court Rules

United States Supreme Court

Rule 42 1

iv

430



IN THE
SUPREME COURT 

OF THE UNITED STATES 
October Term, 1978 

No.

COUNTY OF LOS ANGELES; BOARD OF 
SUPERVISORS OF LOS ANGELES; and CIVIL 
SERVICE COMMISSION OF THE COUNTY 
OF LOS ANGELES,

Petitioners,

vs.

VAN DAVIS, HERSHAL CLADY and FRED 
VEGA, individually and on behalf of all others 
similarly situated, WILLIE C. BURSEY, ELIJAH 
HARRIS, JAMES W. SMITH, WILLIAM CLADY, 
STEPHEN HAYNES, JIMMIE ROY TUCKER, 
LEON AUBRY, RONALD CRAWFORD, JAMES 
HEARD, ALFRED R. BALTAZAR, OSBALDO 
A. AMPARAH, individually and on behalf of 
all others similarly situated,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF AS 
AMICUS CURIAE AND BRIEF OF 

CALIFORNIA ORGANIZATION OF 
POLICE AND SHERIFFS

Pursuant to Rule 42 of the United 

States Supreme Court, the California Organiza­

tion of Police and Sheriffs, Inc., a labor organ­

ization consisting of the San Francisco Police 

1

431



Officers Association, the Anaheim Police Associ­

ation, the Burbank Police Officers Association, 

the Compton Police Officers Association, the 

Glendale Police Officers Association, the Ingle­

wood Police Association, the Long Beach Police 

Officers Association, the Novato Police Officers 

Association, the Santa Ana Police Benevolent 

Association, the Signal Hill Police Association, 

the Hawthorne Police Association, the Hermosa 

Beach Police Association, the Montebello Police 

Association, the Napa Police Association, the 

Santa Monica Police Association, the Benicia 

Police Association, the Bell Gardens Police Offi­

cers Association, the Half Moon Bay Police Offi­

cers Association, the Huntington Park Police 

Officers Association, the Huntington Beach Po­

lice Officers Association, the Redondo Beach 

Police Officers Association, the San Mateo Po­

lice Officers Association, the Santa Clara Po­

lice Officers Association, and the Yolo County 

Sheriffs Association. The membership of each 

2

432



of these Associations consists of sworn police 

officers or sheriffs employed by local public 

agencies throughout the State of California.

The issues involved in County of Los Angeles, 

et al. v. Van Davis, etc., et al, are of the greatest 

importance to police officers throughout the 

State. This case pertains to the standards of 

burdens of proof necessary to establish viola­

tions of Constitutional and statutory guarantees 

to equal employment. Each of the police and 

sheriff organizations within the California Organ­

ization of Police and Sheriffs is required by law 

to adhere to the statutory provisions guaranteeing 

equal employment and promotional opportunities 

within their respective local public agencies.

In order to comply with Constitutional and statu­

tory guarantees to equal employment, there 

must be a clearly delineated standard for burdens 

of proof in 1981, 1983 and Title VII litigation.

The primary interest of the California 

Organization of Police and Sheriffs is employer-

3

433



employee relations. The California Organization 

of Police and Sheriffs leads the vanguard in the 

State of California in this area as it pertains 

to sworn peace officers.

The amicus curiae brief raises Consti­

tutional issues not explicitly argued by counsel 

for the County of Los Angeles who consents 

to this brief being submitted. In its brief, County 

of Los Angeles argues that proof of purposeful 

racial discriminatory intent is required to establish 

a cause of action for employment discrimination 

under 42 U.S.C. § 1981. The amicus brief directs 

itself to the Constitutional issues of whether 

or not a racial quota can be imposed without 

a specific finding of intentional discrimination 

pursuant to 42 U.S.C. § 2000e-5 (g) and whether 

a court can impose a racial quota without a speci­

fic demonstration that no other remedy is avail­

able to rectify the past discriminatory practices. 

The arguments made in the amicus curiae brief 

are central to the disposition of this matter

4

434



and will not otherwise be before this Court.

It is the contention of this amicus 

curiae brief that the remedy of a racial quota 

imposed for a violation of Title VII without a 

finding of intent is impermissable under 42 U.S.C. 

§ 2000e-5 (g). Without a demonstration of pur­

poseful intent, the imposition of a racial quota 

exceeds the equitable jurisdiction of the District 

Court and is an abuse of discretion.

WHEREFORE, the California Organ­

ization of Police and Sheriffs respectfully requests 

this Court to permit the filing of the brief amicus 

curiae which is submitted herewith.

Respectfully submitted,

STEPHEN WARREN SOLOMON, INC.

By _ _ _ _______ __________ _______
STEPHEN WARREN SOLOMON

By ________________ ________ _
RALPH B. SALTSMAN

Attorneys for California Organization
of Police and Sheriffs, Inc.

5

435



IN THE
SUPREME COURT 

OF THE UNITED STATES 
October Term, 1978 

No.

COUNTY OF LOS ANGELES; BOARD OF 
SUPERVISORS OF LOS ANGELES; and CIVIL 
SERVICE COMMISSION OF THE COUNTY 
OF LOS ANGELES,

Petitioners,

vs.

VAN DAVIS, HERSHAL CLADY and FRED 
VEGA, individually and on behalf of all others 
similarly situated, WILLIE C. BURSEY, ELIJAH 
HARRIS, JAMES W. SMITH, WILLIAM CLADY, 
STEPHEN HAYNES, JIMMIE ROY TUCKER, 
LEON AUBRY, RONALD CRAWFORD, JAMES 
HEARD, ALFRED R. BALTAZAR, OSBALDO 
A. AMPARAH, individually and on behalf of 
all others similarly situated,

Respondents.

BRIEF AMICUS CURIAE FOR 
CALIFORNIA ORGANIZATION OF 

POLICE AND SHERIFFS, INC.

California Organization of Police and 

Sheriffs hereby submit the brief for consideration

by this Court in review of the judgment of the Uni­

ted States Court of Appeal for the Ninth Circuit

6

436



entered on this proceeding on December 14, 1977.

OPINIONS BELOW

The opinion of rehearing of the United 

States Court of Appeals for the Ninth Circuit is 

reported in Van Davis, et al. v. County of Los Angeles 

et al, 566 F.2d 1334 (9th Cir. 1977). This case is 

printed as Appendix A, page 1 in the petition for 

writ of certiorari submitted by petitioners in this 

matter. The unreported original opinion of the Cir­

cuit Court is printed as Appendix B thereto. The 

judgment and findings of the District Court are 

printed as Appendices C, and D, respectively to 

the petition for writ of certiorari.

JURISDICTION

The opinion and judgment were entered 

on December 14, 1977. A petition for rehearing 

was filed by respondents, Van Davis, et al. (plain- 

tiffs-appellants below), which was denied on Janu­

ary 30, 1978.

Jurisdiction of the District Court was 

based on 28 U.S.C. § 1343.

7

437



This Court's jurisdiction is invoked under 

28 U.S.C. § 1254(1) and Rule 19(l)(b).

QUESTION PRESENTED

Is the imposed remedy consisting of 

racial quotas for a violation of Title VII permissable 

pursuant to 42 U.S.C. § 2000e-5(g) where there is 

no finding of intentional discrimination?

Is the imposition of a racial quota where 

there is no demonstration of purposeful intention 

an appropriate remedy available to the District 

Court, or does the District Court exceed its equit­

able jurisdiction in fashioning such a remedy?

CONSTITUTIONAL ISSUES AND 
STATUTES INVOLVED

1. The Fifth and Fourteenth Amend­

ments to the United States Constitution; in par­

ticular, the due process and equal protection clauses 

thereof;

2. The following provisions of the United 

States Code:

42 U.S.C. § 2000e-5(g) (injunctions- re- 

8

438



instatement-backpay):

"If the Court finds that the 

respondent has intentionally engaged 

in or is intentionally engaging in an 

unlawful employment practice charged 

in the complaint, the Court may enjoin 

the respondent from engaging in such 

unlawful employment practice, and 

order such affirmative action as 

may be appropriate. . . . "

ARGUMENT

I.
A REMEDY OF RACIAL QUOTAS IMPOSED 
FOR A VIOLATION OF TITLE VII WITHOUT 
A FINDING OF INTENT IS IMPERMISSABLE 

UNDER 42 U.S.C. § 2000e-5(g)

42 U.S.C. S 2Q00e-5(g) provides in per­

tinent part:

"If the Court finds that the 

respondent has intentionally en­

gaged in or is intentionally engaging 

in an unlawful employment practice 

charged in the complaint, the Court

9

439



may enjoin the respondent from 

engaging in such unlawful employ­

ment practice, and order such 

affirmative action as may be 

appropriate, which may include, 

but is not limited to, reinstatement 

or hiring of employees, with or with­

out backpay . . (emphasis added.)

The District Court of Appeal in Davis 

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

1977) noted that the District Court "found that the 

Los Angeles County Fire Department employed 

blacks and Mexican-Americans grossly out of pro­

portion to their number in the population of Los 

Angeles County." There was never a judicial deter­

mination that there was a showing that the defen­

dants "administered the 1972 examination with any 

intent or purpose to discriminate against minority 

applicants." (page 1338.)

Although this Court, and the Circuit 

Courts of Appeal, have consistently recognized

10

440



the equitable relief available to District Courts 

in fashioning remedies for violations of Title VII, 

this Court in Franks v. Bowman Transportation Co., 

4024 U.S. 747, 47 L.Ed.2d 444, 96 S.Ct. 1251 (1976) 

significantly differentiated between the definitional 

provisions of Title VII and the remedial provisions 

of Title VII:

"On its face, § 703(h) appears 

to be only a definitional provision; 

as with the other provisions of 

§ 703, subsection (h) delineates 

which employment practices are 

illegal and thereby prohibited and 

which are not. § 703(h) certainly 

does not expressly purport to 

qualify or proscribe relief other­

wise appropriate under the remedial 

provisions of Title VII, § 706(g),

42 U.S.C. § 2000e-5(g) [42 U.S.C.S.

§ 2000e-5(g)], in circumstances 

where an illegal discriminatory

11

441



act or practice is found."

Other cases have duly recognized the 

obligation of the trial court to determine the existence 

of intentional unlawful employment practices pur­

suant to § 2000e-5(g).

The Court in Evans v. Sheraton Park 

Hotel, 503 F.2d 177 (D.C. 1974) found that the Dis­

trict Court in that matter did overcome the hurdle 

of finding intentional unlawful employment practices 

prior to employing its discretionary authority a 

scheme of affirmative action required to remedy 

those unlawful employment practices. The Court 

in Evans, supra, held:

"Having found intentional 

unlawful employment practices,

42 U.S.C. § 2000e-5(g) vests in 

the District Court discretionary 

authority to order, as part of 

the affirmative action necessary 

to obviate such unlawful employ­

ment practices, that the party

12

442



responsible pay to the aggrieved 

person backpay damages. . .

The District Courts, and the Courts 

of Appeal, have, from time to time, ignored the 

requirement of a finding of intent before fashion­

ing an equitable remedy in Title VII eases. (See 

United States v. City of Chicago. 49 F.2d 415 (7th 

Cir. 1977).

The error committed by the Court in 

United States v. Chicago, supra, and those Circuit 

Courts of Appeal cited therein, has been made re­

peatedly. This Court, has rendered decisions con­

sidering the propriety of remedial relief proposed 

by District Courts in Title VII cases, without squarely 

deciding the issue presented herein. The rule which 

has evolved concerning the burden of proof in Title 

VII cases, ignores the clear and plain legislative 

statement by Congress in its adoption of § 2000e~ 

5(g).

This Court in Washington v. Davis, 426 

U.S. 229, 48 L.Ed.2d 597, 96 S.Ct. 240 (1976) cir­

13

443



cumvented the issue of the propriety of the burden 

of proof set forth in the remedial section within 

Title VII. In Washington, supra, at page 240, it was 

simply stated:

"As the Court of Appeals 

understood Title VII, employees 

or applicants proceeding under it 

need not concern themselves with 

the employer's possibly discrimina­

tory purpose but instead may focus 

solely on the racially differential 

impact of the challenged hiring 

or promotion practices. This is 

not the Constitutional rule. We 

have never held that the Consti­

tutional standard for adjudicating 

claims of invidious racial discrimin­

ation is identical to the standards 

applicable under Title VII, and would 

decline to do so today."

No court has recognized the literal read- 

14

444



ing of § 2000e-5(g). This ease, however, requires 

such a recognition. The question which must be 

answered is: may a District Court fashion equitable 

relief without a demonstration of intent pursuant 

to Title VII? The response must be in the negative.

The Court of Appeal in Robinson v. Lor- 

illard Corporation, 444 F.2d 791 (4th Cir. 1971) held 

that:

"Good intent or absence of 

discriminatory intent does not 

redeem employment procedures 

or testing mechanisms that oper­

ate as 'built-in headwinds' for 

minority groups and are unrelated 

to measuring job capability."

The Court in Robinson, supra, relied 

on this Court's decision in Griggs v. Duke Power 

Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) 

wherein it was stated:

"Under the Act, practices, 

procedures, or tests neutral on

15

445



their face, and even neutral in 

terms of intent, cannot be main­

tained if they operate to 'freeze' 

the status quo of prior discriminatory 

employment practices."

This Court continued:

"Congress directed the thrust 

of the Act to the consequences 

of employment practices, not 

simply the motivation." (91 S.Ct. 

at 853.)

In reading Griggs, supra, however, it 

must be understood that the Court therein did not 

condone the use of racial quotas, and in fact issued 

a policy statement limiting the use of quotas: 

"Congress did not intend 

by Title VII however, to guarantee 

a job to every person regardless 

of qualifications. In short, the 

Act does not command that any 

person be hired simply because

16

446



he was formerly the subject of 

discrimination, or because he is 

a member of a minority group. 

Discriminatory preference for 

any group, minority or majority, 

is precisely and only what Congress 

has proscribed."

It is not the contention of amicus curiae 

herein to circumvent the holding of Griggs, supra, 

as to discriminatory intent, but to seek recognition 

of the concept that absent a clear demonstration 

of actual intent, the imposition of a remedy as dis­

ruptive as a racial quota, is not within the province 

of the trial court.

In Local 189, United Paper Mak and Paper 

Work v. United States, 416 F.2d 980 (5th Cir. 1969) 

the Court discussed the necessity of a finding that 

an employer has intentionally engaged in an unlaw­

ful employment practice. The Court stated:

"§ 706(g) limits injunctive 

(as opposed to declaratory) relief

17

447



to cases in which the employer or 

union has 'intentionally engaged 

in' an unlawful employment practice. 

Again, the statute, read literally, 

requires only that the defendant 

meant to do what he did, that is, 

his employment practice was not 

accidental."

The Court in Local 189, United Paper 

Mak and Paper Work, supra, continued:

"Here, as in Dobbins, the 

conduct engaged in had racially- 

determined effects. The requisite 

intent may be inferred from the 

fact that the defendants persisted 

in the conduct after its racial 

implications had become known 

to them."

In Paper Mak, supra, intention was found 

by implication. In the case at bar, intention was 

ignored altogether.

18

448



It is the position of amicus curiae that 

where a racial quota is to be imposed, actual demon­

strable intent must be established by the evidence. 

Intent by implication is insufficient for such relief 

to be imposed; intent by inference is insufficient 

for such relief to be imposed; and circumvention 

of the statutory requirement of intention altogether 

is unlawful.

II.

WITHOUT A SUBSTANTIAL DEMONSTRATION 
THAT A LESS ONEROUS REMEDY WOULD 
ALLEVIATE THE DAMAGE TO PLAINTIFFS 
THE IMPOSITION OF RACIAL QUOTAS IS 

AN ABUSE OF DISCRETION AS A MATTER 
OF LAW

The imposition of a racial hiring quota 

is the most devasting device that can be imposed 

by the Courts in the United States of America, both 

to the person passed over for public employment 

and the citizen requiring effective emergency ser­

vice. It on its face favors one person over another 

because of the color of their skin or race as opposed 

to merit and ability. People in burning buildings,

19

449



heart attack victims lying on the street, and small 

children stuck in treetops care not what the race 

or color of their fire department rescuers are but 

only hope and pray for effective and efficient public 

assistance.

Racial quotas are on their face judicial 

acts of court approved invidious discrimination and 

create a judicial suspect classification requiring 

a compelling justification allowing their use. Regents

of the University of California v. Bakke,___ U.S.

____ 98 S.Ct. 2733, 2748 (1978).

This Court has given approval to the 

Court of Appeal cases wherein District Courts have 

imposed racial quotas in employment discrimination 

cases. Bridgeport Guardians, Inc, v. Civil Service 

Commission, 482 F.2d 1333 (CA.2 1973), Carter v. 

Gallagher, 452 F.2d 315 (CA.8) modified on rehearing 

en banc, 452 F.2d 327 (CA.8 1972), but has not in­

dicated upon what legal standards trial courts should 

exercise their discretion prior to the imposition 

of racial quotas or some other remedy. Regents

20

450



of the University of California v. Bakke,___ U.S.

____98 S.Ct. 2733, 2754 (1978).

Racial hiring quotas should only be author­

ized when there is a demonstration to the Court 

that other less onerus remedies are not available 

and workable.

In the case at bar there was no evidence 

brought that other remedies would not be sufficient 

to vindicate any alleged suffering caused the plain­

tiffs.

Courts exercising legal discretion in 

imposing remedies for non-intentional acts of test 

discrimination should be required to evaluate their 

proposed remedy against a clear demonstrable stan­

dard. This standard should require an analysis of 

the following competing interest:

a) Was the employer guilty of intentional 

acts of discrimination?

b) Would monetary damages suffice?

c) Would an order requiring racially 

neutral retesting open employment opportunities?

21

451



d) Would remedial educational and train­

ing programs upgrade the applicant's skills to pass 

entry level tests?

The Court below failed to make the 

distinction between the case where intentional acts 

of discrimination have been demonstrated and where 

there has been no such showing in fashioning a remedy 

unsurpassed in its devasting effects. Additionally, 

no demonstrable standard has been established to 

aid the Courts in fashioning equitable relief in Title 

VII cases. For these reasons and for the above reasons 

set forth this matter should be reversed and remanded 

for further findings consistent with a standard to 

be established by the United States Supreme Court 

in aiding the trial courts in effecutating appropriate 

remedies in Title VII cases where no intentional 

discrimination is found.

WHEREFORE, the California Organiza­

tion of Police and Sheriffs respectfully request that 

the matter be reversed and remanded.

22

452



Respectfully submitted,

STEPHEN WARREN SOLOMON, INC.

B y _______
STEPHEN WARREN SOLOMON

By _____________________________ _
RALPH 6. SALTSMAN

Attorneys for California Organization 
of Police and Sheriffs 
330 Washington Street, Suite 601 
Marina del Rey, California 90291 
(213) 822-9848

Dated: September 1, 1978

23

453



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