Minnick v. California Dept. of Corrections Brief for Respondents

    No. 79-1213

I n  T he

Supreme (Enurt nf lift United

October T erm, 1979

W ayne M innick , et ah,
Petitioners,

v.
California D epartment 

of Corrections, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE 
CALIFORNIA COURT OF APPEAL, 

FIRST APPELLATE DISTRICT

BRIEF FOR RESPONDENTS

Stuart R. Pollak 
Steven Lee Mayer 
Steven E. Schon 
Howard, Prim, Rice,

Of counsel: N emerovski, Canady
Constance Henderson & Pollak 
State o f  California A Professional Corporation
D epartm ent o f  Corrections 650 California Street, Suite 2900

San Francisco, California 94108 
(415) 434-1600 

Attorneys for Respondents 
California Department of 
Corrections and Ruth L. Rushen



QUESTIONS PRESENTED

1. Is the decision of the California Court of Appeal which 
contemplates further state court proceedings a final judgment?

2. Do the State courts have jurisdiction over actions 
brought under Title VII of the Civil Rights Act of 1964?

3. Does Title VII prohibit the California Department of 
Corrections from voluntarily adopting a race- and sex-conscious 
affirmative action employment program which imposes no 
mandatory quotas and is designed both to remedy the contin­
uing consequences of past discrimination and to further other 
compelling correctional objectives?

4. Does the Equal Protection Clause of the Fourteenth 
Amendment bar the California Department of Corrections 
from voluntarily adopting a race- and sex-conscious affirmative 
action employment program which imposes no mandatory 
quotas and is designed both to remedy the continuing con­
sequences of past discrimination and to further other com­
pelling correctional objectives?

PARTIES

Petitioners are identified in the Brief for Petitioners. Re­
spondents are the California Department of Corrections and 
Ruth L. Rushen, as Director of the California Department of 
Corrections, who succeeded Jiro J. Enomoto on April 22, 1980. 
See Sup. Ct. R. 40.3. The judgment entered by the California 
Superior Court did not run against Carlos Sanchez, formerly 
Assistant Director of the Department of Corrections, nor did it 
run against the California State Personnel Board. See Petn. 
App. E2, F2, G l; R.T. 279, 1495. Petitioners did not cross­
appeal from the failure to include these parties in the judgment 
and therefore they are no longer parties to these proceedings.



11

TABLE OF CONTENTS

Page

STATUTES INVOLVED.......................    1
STATEMENT OF THE CASE.............................................. 1
SUMMARY OF ARGUMENT............................................. 11
ARGUMENT.......................................................................... 13

I. THE DECISION OF THE CALIFORNIA 
COURT OF APPEAL IS NOT A FINAL JUDG­
MENT........................   13

II. TITLE VII DOES NOT PROHIBIT THE 
DEPARTMENT OF CORRECTIONS FROM 
VOLUNTARILY ADOPTING AN AFFIRMA­
TIVE ACTION PLAN DESIGNED TO RE­
MEDY THE CONTINUING CONSE­
QUENCES OF PAST DISCRIMINATION 
AND TO FURTHER COMPELLING
CORRECTIONAL OBJECTIVES......................... 17
A. The State Courts Lacked Jurisdiction Over

Petitioners’ Title VII Claim..............................  17
B. The Holding In Weber That Title VII Does

Not Preclude Voluntary Adoption Of 
Affirmative Action Plans Is Fully Applicable 
To State Agencies..............................................  20

C. The Department of Corrections Affirmative 
Action Plan—Designed Both To Remedy 
Prior Discrimination And To Advance Other 
Correctional Objectives—Is Permissible Un­
der Weber.......................................................... 26

III. THE FOURTEENTH AMENDMENT DOES 
NOT BAR CONSIDERATION OF RACE IN 
CONNECTION WITH THE DEPARTMENT 
OF CORRECTIONS AFFIRMATIVE ACTION 
PLAN......................................   34
A. Remedying The Effects Of Identified Prior

Discrimination Is A Compelling State Inter­
est........................................................................ 35

B. The Department Was Authorized To Adopt
Its Affirmative Action Plan To Remedy The 
Effects of Identified Prior Discrimination 
Found To Exist By The California Legisla­
ture, Congress And The Department.............  37



Page

iii

C. The Department’s Affirmative Action Plan
Furthers The State’s Compelling Interests In 
Promoting Prison Security And Fostering In­
mate Rehabilitation..........................................  43

D. No Means Other Than Consideration Of
Race Would Achieve The Same Compelling 
Governmental Interests..................................... 51

IV. NEITHER TITLE VII NOR THE FOUR­
TEENTH AMENDMENT PROHIBITS CON­
SIDERATION OF GENDER IN CON­
NECTION WITH THE DEPARTMENT OF 
CORRECTIONS AFFIRMATIVE ACTION
PLAN........................................................................  57

CONCLUSION......................................................................  60
Appendix A ..............................................................................A-l
Appendix B .............................................................................. B-l



IV

TABLE OF AUTHORITIES
Cases Page

Adderley v. Florida, 385 U.S. 39 (1966).............................................47
Albemarle Paper Co. v. Moody, 422 U.S. 405 ( 1975)........................ 25
Alexandery. Gardner-Denver Co., 415 U.S. 36 ( 1974)......... .....19, 26
Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252 ( 1977)................................................................................  28
Bakery. City o f St. Petersburg, 400 F.2d 294 (5th Cir. 1968).... 32, 46
Bakke v. Regents o f the University o f California, 18 Cal. 3d 34

( 1976), aff’d in part, rev’d in part, 438 U.S. 265 ( 1978) .....passim 
Batiste v. Furnco Construction Co., 503 F.2d 447 (7th Cir. 1974),

cert, denied, 420 U.S. 928 ( 1975)....................................................  17
Baxter v. Palmigiano, 425 U.S. 308 ( 1976)......................................  56
Belly. Wolfish, 441 U.S. 520 ( 1979)..............................................47, 56
Bennun v. Board of Governors of Rutgers, 413 F. Supp. 1274

(D.N.J. 1976)...................................................................................  17
Blake v. City o f Los Angeles, 595 F.2d 1367 (9th Cir. 1979), cert.

denied, —U.S.—, 48 U.S.L.W. 3698 (April 28, 1980).................. 21
Boston Chapter NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir.

1974) cert, denied, 421 U.S. 910 ( 1975)........................................  27
Bradley v. School Board, 416 U.S. 696 (1974).................................. 40
Brand v. Finkel, 445 U.S. 507 ( 1980)................................................ 57
Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil

Service Commission, 482 F.2d 1333 (2d Cir. 1973)...................... 50
Brown v. Board of Education, 349 U.S. 294 ( 1955).....................32, 34
Brown v. Glines, 444 U.S. 348 (1980).................................................48
Byrdv. Gain, 558 F.2d 553 (9th Cir. 1977) cert, denied, 434 U.S.

1087 ( 1978)......................................................................................  48
Califanov. Webster, 430 U.S. 313 ( 1977).............................57, 58, 60
California Bankers Association v. Shultz, 416 U.S. 21 ( 1974)........  54
Cardinale v. Louisiana, 394 U.S. 437 ( 1969)..............................13, 28
Charles Dowd Box Co. v. Courtney, 368 U.S. 502 ( 1962)................. 18
Communist Party v. Subversive Activities Control Board, 367 U.S.

1 (1961)..............................................................................................54
Coopery. Aaron, 358 U.S. 1 ( 1958).................................................  32
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 ( 1975).................... 16
Craig y. Boren, 429 U.S. 190 ( 1976).................................................  58
Crowell v. Randell, 10 Pet. 368 ( 1836)...............................................  28
Cruz v. Beto, 405 U.S. 319 ( 1972)...... .......................................... 48, 50
Davis v. County o f Los Angeles, 566 F.2d 1334 (9th Cir. 1977),

vacated as moot, 440 U.S. 625 ( 1979)...........................................  36
Dawn v. State Personnel Board, 91 Cal. App. 3d 588 ( 1979)....36, 53
Detroit Police Officers’ Association v. Young, 608 F.2d 671 (6th 

Cir. 1979), pet. for cert, pending. No. 79-1080 (filed Jan. 10,
1980)............................................................................................ 21,27

Diamond v. Thompson, 364 F. Supp. 659 (M.D. Ala. 1973)...........  50
Diaz v. Pan American World Airways, Inc., 442 F.2d 385 ( 5th 

Cir.) cert, denied, 404 U.S. 950 ( 1971)..........................................  30



V

Cases Page

Dickinson v. Chrysler Corp., 456 F. Supp. 43 (E.D. Mich. 1978) 17, 19
Doremus v. Board o f Education, 342 U.S. 429 (1952)......................  13
Dothard v. Rawlinson, 433 U.S. 321 (1977 )......................20,27,30, 48
Electrical Workers Local No, 35 v. City o f Hartford, 625 F.2d 416

(2d Cir. 1980)................................................................................... 27
Erie Human Relations Commission v. Tullio, 493 F.2d 371 (3d

Cir. 1974)..........................................................................................  50
Erlin v. National Union Fire Insurance Co., 70 Cal. 2d 547 ( 1936) 14 
Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark. 1976) ajf’d, 548

F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678 ( 1978)................... 49
Firefighters Institute for Racial Equality v. City of St. Louis, 549

F.2d 506 (8th Cir. 1977) cert, denied, 434 U.S. 819 ( 1977)........  21
Fitzpatrick v. Bitzer, 427 U.S. 445 ( 1976).................................... 21,26
Fox v. Eaton Corp., 48 Ohio St. 2d 236, 358 N.E.2d 536 (Ohio

Sup. Ct. 1967).............................................................  17
Franks v. Bowman Transportation Co., 424 U.S. 747 ( 1976)..........  52
Fullilove v. Klutznick, —U.S.— 48 U.S.L.W. 4979

(July 2, 1980).......................................................................... ...passim
Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972); a ff’d, 501

F.2d 1291 (5th Cir. 1974)....... .......................... ............................  50
General Motors Corp. v. Washington, 377 U.S. 436 ( 1964)............  15
Gettlemen v. Werner, 377 F. Supp. 445 ( W.D. Pa. 1974)...............  48
Gospel Army v. Los Angeles, 331 U.S. 543 ( 1947)................. 14,15, 16
Griggs v. Duke Power Co., 401 U.S. 424 ( 1971 ) ............... 25,29,31, 38
Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457

(5th Cir. 1978)................................................    36
Guardians Association v. Civil Service Commission, —F.2d—, 23

EPD U 31,153 (2nd Cir. 1980)..................................................... ...36
Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079 (8th Cir.

1980), cert, denied, 100 S.Ct. 2942 (1980)....................................  17
H. K. Porter v. NLRB, 397 U.S. 99 ( 1970).......................................  57
Hardyv. Leonard, 371 F. Supp. 831 (N.D. Cal. 1974)..................... 6
Hazelwood School District v. United States, 433 U.S. 299 ( 1977)... 27 
Holtw. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973). aff’d inpart and 

rev’d in part sub. nom. Finney v. Arkansas Department of
Corrections, 505 F.2d 194 (8th Cir. 1974)................................49, 50

Houchinsv. KQED, 438 U.S. 1 ( 1978).......................................... . 47
Hutchings v. United States Industries, Inc., 428 F.2d 303 ( 5th Cir.

1970).........................................................................   17
Johnson v. Board of Education, 604 F.2d 504 ( 7th Cir. 1979), cert.

granted, —U.S.—, 48 U.S.L.W. 3852 (July 2, 1980)...................  30
Jones v. North Carolina Prisoners’ Union, 433 U.S, 119

( 1977)....................................................................................45,47,56
Kahn v. Shevin, 416 U.S. 351 ( 1974)........................................... 57, 58
Kelley v. Johnson, 425 U.S. 238 ( 1976).............................................  48
Kingv. Harris, 464 F. Supp. 827 (E.D.N.Y.), aff’d, 614 F.2d 1288 

(2d Cir. 1979)..................................................................................  30



VI

Cases Page

Kinsey v. First Regional Securities, Inc., 557 F.2d 830 (D.C. Cir.
1977).................................................................................................  36

Kirkland v. New York State Department of Correctional Services,
520 F.2d 420 (2d Cir. 1975), cert, denied, 429 U.S. 823 ( 1976).. 51 

Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377
( 1922)...............................................................................................  13

Lee v. Washington, 390 U.S. 333 ( 1968).......................32,46,47,48, 50
Longv. State Personnel Board, 41 Cal. App. 3d 1000 (1974).........  59
Los Angeles Department of Water and Power v. Manhart, 435 U.S.

702 ( 1978).....   29
Lucas v. Tanner Bros. Contracting Co., 10 F.E.P. Cases 1104

(Ariz. Super. Ct. 1974).....................................................................  17
Maehren v. City of Seattle, 92 Wash. 2d 480 ( 1979)........................ 21
Manzanares v. Safeway Stores, Inc., 593 F.2d 968 ( 10th Cir.

1979).................................................................................................  36
Massachusetts v. Wescott, 431 U.S. 322 ( 1977)................................  38
Meachum v. Fano, A ll  U.S. 215 ( 1976)............................................  56
Mescallv. Burrus, 603 F.2d 1266 (7th Cir. 1979)..............................  36
Methodist Hospital v. Saylor, 5 Cal. 3d 685 ( 1971)..........................  41
Miller v. Texas State Board o f Barber Examiners, 615 F.2d 650

(5th Cir.), cert, denied, 49 U.S.L.W. 3231 (Oct. 7, 1980)....... 31, 32
Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916)....  18
Mitchell v. Board of Trustees of Pickens County School District,

599 F.2d 582 (4th Cir.) cert, denied, 444 U.S. 965 ( 1979)..........  33
Monroe v. Board of Commissioners, 391 U.S. 450 ( 1968)...............  32
McClelland v. Sigler, 327 F. Supp. 829 (D. Neb. 1971), ajf’d, 456

F.2d 1256 (8th Cir. 1972)..........................................................49, 50
McDonnell Douglas Corp. v. Green, 411 U.S. 792 ( 1973).......... 29, 31
NAACPv. Allen, 493 F.2d 614 (5th Cir. 1974) ..............................  51
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)...............................  25
National League o f Cities v. Usery, 426 U.S. 833 ( 1976)................. 42
New York Transit Authority v. Beazer, 440 U.S. 568 (1979)...........  32
Northern Inyo Hospital v. Fair Employment Practice Commission,

38 Cal. App. 3d 14 (1974)............................... ................... .......... 37
Oregon v. Mitchell, 400 U.S. 112 (1970)...........................................  42
Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir.

1973).................................................................................................  30
Parent Association o f Andrew Jackson High School v. Ambach, 598

F.2d 705 (2d Cir. 1979).................................................................. 30
Parker v. Levy, 417 U.S. 733 ( 1974)...................................................  48
Paschall v. Christie-Stewart, 414 U.S. 100 ( 1973).......................13, 14
Pell v. Procunier, 417 U.S. 817 ( 1974)................................... 47, 49, 56
Pennsylvania v. O’Neill, 348 F. Supp. 1084 (E.D. Pa. 1972), aff’d 

in part and vacated in part, 473 F.2d 1029 (3d Cir. 1973)(en
b anc).................................................................................................. 51

People v. Gardner, 56 Cal. App. 3d 91 ( 1976)..................................  45
People v. Horton, 264 Cal. App. 2d 192 ( 1968)................................  42
People v. Hisquierdo, 45 Cal. App. 3d 397 ( 1975)............................ 45



vii

Cases Page

Phillips v. Adult Probation Department, 491 F.2d 951 (9th Cir.
1974)...................................................................................................48

Prate v. Freedman, 430 F. Supp. 1373 (W.D.N.Y. 1977), ajf’d 
573 F.2d 1294 (2d Cir. 1977), cert, denied, 436 U.S. 922 ( 1978) 21

Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978)................................ 21
Preisler v. Secretary of State, 257 F. Supp. (W.D. Mo. 1966)

ajf’d, 385 U.S. 450 ( 1967)...............................................................  38
Price v. Civil Service Commission, 26 Cal. 3d 251, pet. dismissed as

moot,— U.S.—, 49 U.S.L.W. 3244(Oct. 6, 1980).........................21
Procunierv. Martinez, 416 U.S. 396 (1974)..........................47, 49, 56
Regents o f the University o f California v. Bakke, 438 U.S. 265

( 1978)..........................................................................................passim
Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir. 1971),

cert, dismissed, 404 U.S. 1006 (1971).............................................31
Saxbe v. Washington Post, 417 U.S. 843 ( 1974)........................47, 56
Schlesingerv. Ballard, 419 U.S. 498 ( 1975)...... .........................57, 58
Scott v. City o f Anniston, 597 F.2d 897 ( 5th Cir. 1979), cert.

denied, lOOS.Ct. 1850 ( 1980).......................................................... 21
Shapiro v. United States, 335 U.S. 1 ( 1948).....................................  38
Shield Club v. City of Cleveland, 370 F. Supp. (N.D. Ohio 1973)... 50 
Smith v. Board of Education of Morrilton School District, No. 32,

365 F.2d 770 (8th Cir. 1966).......................................................... 32
Southern Pacific Co. v. Gileo, 351 U.S. 493 (1956).......................... 16
Spain v. Procunier, 408 F. Supp. 534 (N.D. Cal. 1976), ajf’d in

part and rev’d in part, 600 F.2d 189 (9th Cir. 1979)..................... 45
Spurlock v. United Airlines, Inc., 475 F.2d 216 ( 10th Cir. 1972)....  32
Stromer v. Browning, 268 Cal. App. 2d 513, 74 Cal. Rptr. 155

( 1968)...............................................................................................  14
Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1

(1971)................................................................................................ 33
Sweezy v. New Hampshire, 354 U.S. 234 ( 1957)...............................  42
Teamsters v. United States, 431 U.S. 324 ( 1977)................. 24, 29, 52
Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974)..................................  50
TIME, Inc. v. Firestone, 424 U.S. 448 (1976 ) ................................. 32
United Farm Workers v. Superior Court, 16 Cal. 3d 499 ( 1976)....  14
United Jewish Organizations o f Williamsburgh, Inc., v. Carey, 430

U.S. 144 ( 1977)...............................................................................  33
United States v. City o f Buffalo, 457 F. Supp. 612 (W.D.N.Y.

1978).................................................................................................  21
United States v. City of Chicago, 573 F.2d 416 ( 7th Cir. 1978). 21
United States v. City of Chicago, 549 F.2d 415 ( 7th Cir. 1977)...  21
United States v. City of Miami, 614 F.2d 1322 ( 5th Cir.

1980)..................................................................................... 21,27, 42
United States v. Kelley, 393 F. Supp. 755 (W.D. Okla. 1975).........  48
United States v. Scotland Neck City Board of Education, 407 U.S.

484 (1972)........................................................................................ 32
United States v. South Carolina, 445 F. Supp. 1094 (D.S.C.

1977), aff’d, 434 U.S. 1026 ( 1978)................................................  31
United States v. Wyandotte County, 480 F.2d 969 ( 10th Cir.), cert, 

denied, 414 U.S. 1068 ( 1973).......................................................... 50



Cases Page

viii

United Steelworkers v. Weber, 443 U.S. 193 ( 1979).................passim
Useryv. Tamiami Tours, Inc., 531 F.2d 224 (5th Cir. 1976)..........  30
Washington v. Davis, 426 U.S. 229 ( 1976).................................. 20, 35
Weeks v. Southern Bell and Telegraph Co., 408 F.2d 228 (5th Cir.

1969).................................................................................................  30
White v. Davis, 13 Cal. 3d 757 ( 1975)............................................... 13
Williams v. American Cas. Co., 6 Cal. 3d 266, 98 Cal. Rptr. 814

(1971).................................................................................................20
Williams v. DeKalb County, 582 F.2d (5th Cir. 1978).................. 36
Wolff v. McDonnell, 418 U.S. 539 (1974).................................... 45, 56
Zablocki v. Redhail, 434 U.S. 374 ( 1978)........     38

Constitutional P rovisions

United States Constitution, First Amendment................................... 45
United States Constitution, Fourteenth Amendment.............. 9, 35, 36
California Constitution, Article VII, §§ (1 ) (b), 3 (a ) .......................52

Statutes, Regulations and Executive Orders

Federal
Crime Control Act of 1973, 42 U.S.C. § 3766(c) ............................. 42
Crime Control Act of 1976, 42 U.S.C. § 3766(c).............................. 42
Juvenile Justice & Delinquency Prevention Act of 1974, 42 U.S.C.

§ 5272................................................................................................ 26
Omnibus Crime Control And Safe Streets Act of 1968, 42 U.S.C.

§ 3766(c)........................................................................................... 26
Title VII of the Civil Rights Act of 1964, as amended by the Equal 

Employment Opportunity Act of 1972, 42 U.S.C. § 2000e (a)
and ( b ) ...............................................................................9, 17, 21, 22

§ 2000e-2(a).................................................................. 21,29
§ 2000e-2(b)...................................................................21,29
§ 2000e-2(e).........................................................................30
§ 2000e-5(f)( 1 ) .............................................................19,22
§ 2000e-5(f)(2) ......................................................    18
§ 2000e-5(f)(3)...................................................................18
§ 2000e-5(f)(4).................................................................  18
§ 2000e-5(f)(5).................................................................  18
§ 2000e-5(j)........................................................................  18
§ 2000e-6(a)..........................................................................19
§ 2000e-6(b)........................................................................  19
§ 2000e-12..............................................................................25
§ 2000e-16..............................................................................22

28 U.S.C. § 1257...........................................................................  13
§ 1404......................................................................................18
§ 1406......................................................................................18

31 U.S.C. § 1242............................................................................ 26



IX

Statutes, R egulations and Executive Orders Page

42 U.S.C. § 1981................................................................................9,36
§ 1983..................................................................................  9

28C.F.R. § 42.203.......    26
29 C.F.R. § 1608.1(b).......................................................................... 25

§ 1608.3................................................................................ 31
§ 1608.4..................................................  24,25

31 C.F.R. §§ 51.53(d), 51.60(c)........................................................26
38 Fed. Reg. 23518 ( 1973)...........................................................  6
41 Fed. Reg. 38814 ( 1976)...........................................................  25
42 Fed. Reg. 9493 ( 1977)...................................... ............................  6
43 Fed. Reg. 19807 (1978).................................................................... 25
43 Fed. Reg. 28795 ( 1978)...........................................................  6
Memorandum on Permissible Goals and Timetables in State and

Local Government Employment Practices, 2 Employment Prac­
tices Guide (CCH) H3775 ( 1976)................................................... 25

State
Cal. Code of Civil Procedure § 634..................................................... 15

§ 1094.5.................................................. 53
Cal. Code of Fair Practices....................................................................39
Cal. Govt. Code § 3530.........................................................................56

§ 18930 ................................................................1,7, 37
§ 18936 .....................................................................  7
§ 19057 .....................................................................  7
§ 19057.1 ..................................................................  7
§ 19702 ..............................................................1,36, 37
§ 19702.1 ................................................................1,39
§ 19702.2 ..................................................................  1
§ 19702.5 ................................................................1, 39
§ 19790-97............................................................40, 41

Cal. LaborCode§ 1402(a).................................................................. 36
§ 1413(d).................................................................. 37
§ 1420(a).................................................................. 36

Cal. Penal Code § 5002.........................................................................42
§ 5054.........................................................................42

2 Cal. Administrative Code § 254....................................................... 7
§ 254.1 .....................................................  7
§§ 540 et seq..............................................53
§ 547..........................................................53

15 Cal. Administrative Code §§ 3000 et seq.......................................42
Executive Order No. R-34-71 (September 23, 1971 ) ...................... 39

R ules

Advisory Committee’s Note to Rule 33(b), 48 F.R.D. 487, 524
( 1970)...............................................................................................  2

Rule 65, Federal Rules of Civil Procedure........................................  18



X

Legislative M aterials Page

F ederal

Conference Report, S.Rep. No. 92-681, 92nd Cong., 2nd Sess., 15 
( 1972).............................................................. ................................  23

H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1 9 7 1 )......................... 22
H.R. Rep. No. 92-899, 92d Cong., 2nd Sess. ( 1972)........................23
S.Rep. No. 92-415, 92d Cong., 1st Sess. ( 1971 ) ............... 22,24,25, 28
110 Cong. Rec. ( 1964 ) 7213.............................................................. 19

12708.............................................................  19
12722.............................................................  19
13081.............................................................  19

117 Cong. Rec. ( 1971 ) 31961............................................................. 22
118 Cong. Rec. ( 1972) 581.....................................................22,24,25

590 ............................................................... 22
591 ............................................................... 24
1070................................................................ 22
1393-94..........................................................  22
1815-20........................................................... 22
1824...............................................................  23
1840...............................................................  40
3978-79..........................................................  24

119 Cong. Rec. ( 1973) 20070.............................................................42
122 Cong. Rec. ( 1976) 341 18.............................................................42

State

Assembly Concurrent Resolution No. 157...........................................39
“July 1971 Report on California As An Equal Employment 

Opportunity Employer” .....................................................................38
Legislative Analyst’s Analysis of Assembly Bill No. 1350.................40
Letter from Burton W. Oliver to the Honorable Wadie Deddeh, 

Attachment “A” .................................................................................37
State Personnel Board Bill Analysis of AB 674 ( 1972)..................... 37
State Personnel Board, Supplemental Report to Assembly Com­

mittee on Public Employees and Retirement (December 4,
1975)............................................................................................ 41,56

Transcript of Hearing of Assembly Committee on Employment 
and Public Employees Relating to Charges of Discrimination in 
State Hiring Practices (April 28, 1971 ) .........................................  38

Transcript of Hearing of Assembly Committee on Employment 
and Public Employees Relating to Charges of Discrimination in 
State Hiring Practices (May 12, 1971)............................................38



L egislative M aterials Page

Transcript of Hearing of Assembly Committee on Employment 
and Public Employees Relating to Equal Employment Opportu­
nity in State Service (September 12, 1974)................................... 41

Other Authorities

ABA Commission on Correctional Facilities and Services, A 
Correctional Must: Increased Staff Recruitment from Minority
Groups ( 1972).......................................................... ........................  50

ABA Commission on Correctional Facilities and Services, Minority 
Recruitment in Corrections— New Federal Aid Requirements 
( 1973)...........................................................................  ................. 6

Annotation: “What Constitutes ‘Business Necessity’ Justifying 
Employment Practices Prima Facie Discriminatory Under Title 
VII of the Civil Rights Act of 1964.” 36 A.L.R. Fed. 9 ( 1978).... 31 

Association of State Correctional Administrators. Uniform
Correctional Policies and Procedures, Racial Issues ( 1972 ) .........  50

Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and 
the Concept of Employment Discrimination, 71 Mich L Rev 59
(1972)............................................................................... ;........;.... 30

Brest, Loreword: In Defense o f the Antidiscrimination Principle,
90 Harv. L. Rev. 1 ( 1976)...............................................................  52

Burdman, Ethnic Self-Help Groups in Prison and On Parole, 20
Crime & Delinquency 107 ( 1974).................................................. 44

Burger. Our Options are Limited, 18 Vill. L. Rev. 165 ( 1972).........  45
Carroll, Hacks, Blacks and Cons ( 1974)...................................... 44, 50
Cleaver, Soul on Ice ( 1968)................................................................44
Davidson, Preferential Treatment and Equal Opportunity, SS Ore

L. Rev. 53 ( 1976)............................................. ..............................52
Denfeld & Hopkins, Racial-Ethnic Identification in Prison: 'Right 

On from the Inside,’ 3 Int. J. Criminology & Penology 355 
( 1975)...............................................................................................44

Fox, Racial Issues in Corrections: Cultured Awareness—How to 
Achieve It, in Proceedings of the 102nd Annual Congress of
Correction of the American Correctional Association (1972).....  44

Jackson, Soledad Brother: The Prison Letters of George Jackson 
(1970)................................................................ ............ .................. 44

Jacobs, Stratification and Conflict Among Prison Inmates, 66 J.
Crim. L. & Criminology 476 ( 1975)................................... ...........44

Jacobs & Grear, Dropouts and Rejects: An Analysis o f the Prison
Guard’s Revolving Door, 2 Crim. J. Rev. 57 ( Fall 1977).............  46

Joint Commission on Correctional Manpower and Training. Dif­
ferences That Make The Difference ( 1967)................................... 46

Karst & Horowitz, Affirmative Action and Equal Protection, 60 Va.
L. Rev. 955 ( 1974).............................................................;............52

Karst & Horowitz. The Bakke Opinions and Equal Protection 
Doctrine, 14 Harv. C.R.—C.L. L. Rev. 7 ( 1979).......................... 33



Other Authorities Page

Malcolm X and Alex Haley, Autobiography of Malcolm X  (1964) ..
Note, Benign Steering and Benign Quotas: The Validity Of Race- 

Conscious Government Policies to Promote Residential In ­
tegration, 93 Harv. L. Rev. 938 ( 1980).................................. .......

National Advisory Commission on Criminal Justice Standards and 
Goals, Corrections ( 1973)..................................................... 43,50,

National Conference on Corrections, We Hold These Truths. .. 
( 1971)...........................................................................................50,

New York State Special Commission on Attica, Attica: The
Official Report (1972).............................................................43,44,

Pappas, ed., The Jail: Its Operation and Management 125 ( 1970).
Pepper, Prisons in Turmoil, 36 Fed. Probation 3, (December 

1972).................................................................................................
Poplin, Fair Employment in a Depressed Economy: The Layoff 

Problem, 23 U.C.L.A. L. Rev. 177 ( 1975).....................................
Powers, Implications o f Weber—“A Net Beneath” 5 Empl. Rel. L. 

J. 325 (Winter 1979)........................................................................
Redish & Muench, Adjudication o f Federal Causes of Action in 

State Court, 75 Mich. L. Rev. 31 1 (1976).....................................
Sedler, Beyond Bakke: The Constitution and Redressing the Social 

History o f Racism, 14 Harv. L. Rev. 133 ( 1979)...........................
Serrill, Profile California, 1 Corrections 3 (September 1974).........
Skoler & Loewenstein, Minorities in Correction—Nondiscrimina­

tion, Equal Opportunity, and Legal Issues, 20 Crime & Delin­
quency 339 ( 1974)......................................................................6,

The Task Force to Study Violence, Report and Recommendations 
(1974)...............................................................................................

U.S. Commission on Civil Rights, Civil Rights 121 ( 1963).............
U.S. Commission on Civil Rights, For All the People . . .  By All the 

People, a Report on Equal Opportunity in State and Local 
Government Employment ( 1969)...............................................22,

U.S. Commission on Civil Rights, Mexican Americans and The 
Administration o f Justice in the Southwest ( 1970)........................

Wasserstrom, Racism, Sexism and Preferential Treatment: An 
Approach to the Topics, 24 U.C.L.A. L. Rev. 581 ( 1977)............

Wilbanks, The Report of the Commission on Attica, 37 Fed. 
Probation 3 ( 1973)...................................................................... .

6 Witkin, California Procedure, Appeal § 543 (2d ed. 1971).........
Wright, Color-Blind Theories and Color-Conscious Remedies, 47 

U. Chi. L. Rev. 213 ( 1980).............................................................

44

34

59

59

50
50

46

52

21

18

30
44

50

44
43

23

23

55

44
14

34



No. 79-1213

In The

Supreme Court of % States

October T erm, 1979

Wayne M innjck, et al„
Petitioners,

v.

California D epartment 
of Corrections, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE 
CALIFORNIA COURT OF APPEAL, 

FIRST APPELLATE DISTRICT

BRIEF FOR RESPONDENTS

STATUTES INVOLVED
In addition to the constitutional provisions and statutes 

cited by Petitioners (Pet. Br. 2; Pet. App. H), this case involves 
California Government Code §§18930, 19702, 19702.1,
19702.2, 19702.5 and 19790-97 and California Labor Code 
§§1413 and 1420. These are set forth in Appendix A.

STATEMENT OF THE CASE
Petitioners, two white male correctional officers and the 

California Correctional Officers Association, filed this action in 
the California state courts in December 1975, contending that 
the Affirmative Action Plan voluntarily adopted by the Califor­
nia Department of Corrections on July 1, 1974, discriminated 
against white males in violation of various state and federal



2

constitutional and statutory provisions. C.T. 6-7, 69.1 The 
individual petitioners alleged that they had been denied promo­
tions because they were Caucasian. C.T, 8, 10, 69-73.2 After 
an order to show cause was issued (C.T. 34), the parties 
stipulated that the hearing on the preliminary injunction was to 
be considered the trial on the merits. C.T. 105.

In answer to a pretrial interrogatory, before the decision by 
the California Supreme Court in Bakke  v. Regents o f  the 
University o f  California, 18 Cal. 3d 34 ( 1976), a f f ’d  in part, 
rev’d in part, 438 U.S. 265 (1978) (hereafter "B a kke”), the 
Department stated that “for purposes of this litigation” it did 
not allege that it had “wilfully, with a specific intent” engaged 
in illegal or improper discrimination against individuals on the 
basis of race, color, sex, or national origin; it did, however, 
allege that its past hiring and promotional practices and 
procedures had had an adverse discriminatory impact on 
minorities and women. C.T. 122-23.3 Some evidence of past 
discriminatory practices within the Department was introduced 
during the trial,4 and substantial evidence was offered to show

1 The Clerk’s Transcript will be cited as “C.T.”; the Reporter’s Transcript 
as “ R.T.”; the appendices to the Petition for Writ of Certiorari as “Petn. 
App.”; and the Brief for Petitioners as "Pet. Br.”

2 The action was brought as a class action. C.T. 2. Petitioners’ post-trial 
motion to certify the case as a class action (C.T. 1143-44) was denied, upon a 
stipulation that the named plaintiffs had standing to obtain prospective relief 
despite the failure of proof as to their own claims. R.T. 1465-68. The Court 
of Appeal questioned the validity of this stipulation and indicated that these 
questions should be examined if the case is retried. Petn. App. A23-24.

3 Petitioners’ brief asserts that Respondents “ filed a binding answer to 
interrogatories denying that they had ever previously engaged in any prior 
discrimination.” Pet. Br. 3; see also id. 15, 31-32. Petitioners thus mis- 
characterize the content of the Department’s answer. Moreover, interrogatory 
answers are not binding in California. Williams v. American Cas. Co., 6 Cal. 
3d 266, 275, 98 Cal. Rptr. 814, 820 ( 1971). Cf. Advisory Committee’s Note 
to Rule 33(b), 48 F.R.D. 487, 524 ( 1970).

4 With respect to racial discrimination, see, e.g.. Ex. “Q ”; R.T. 212-13 
338, 370-72, 443, 681, 706-708, 774, 824-25, 867-73, 879. 883, 903. With 
respect to sex discrimination, see, e.g., Ex. “ I”; R.T. 555-57. 608, 698. At 
several points, the Superior Court appeared to acknowledge the existence of 
prior discrimination, and to suggest that no further proof was necessary to 
establish that fact. R.T. 344, 380, 426-27, 661-62, 708, 883.



3

that the Department’s Affirmative Action Plan was adopted to 
remedy a marked underrepresentation of minorities and wom­
en in the Department’s work force, especially at supervisory 
levels.

This evidence revealed that historically most of the in­
stitutions within the Department were staffed almost exclusively 
by white males. R.T. 547, 593, 879, 892-893; sec also C.T. 502. 
In 1968, when the Department of Corrections initiated its first 
informal affirmative action efforts, minorities constituted ap­
proximately 9.5% of the Department staff. Ex. “Q ” at 1; R.T. 
885. In 1973, shortly before the formal Affirmative Action Plan 
was adopted, minority members accounted for 19.8% of the 
Department’s total personnel, in contrast with 23.7% of the 
California labor force. Ex. “G ” at 26; R.T. 527; Ex. “R”, Table 
1A, R.T. 1494. The corresponding numbers for the prisons 
alone—i.e., excluding the Parole Division and Central Of­
fice—reflected even greater underrepresentation of minorities, 
particularly at certain institutions. Ex. “G ” at 29; R.T. 527. 
For example, at the Sierra Conservation Center at Jamestown, 
the staff consisted of only 0.5% blacks and 3.2% Mexican- 
Americans; at the California Men’s Colony at Corona, there 
were only 2.2% blacks and 4.8% Mexican-Americans; and at the 
California Conservation Center at Susanville, only 1.2% were 
black and 3.1% Mexican-Americans. Id. at 30. With clerical 
and lower level positions excluded, the disparity was still more 
pronounced. Id. at 21-22, 33-34.5

Due to their concentration in lower-level positions, the 
Department’s minority employees earned less than their white 
counterparts. As of September 1973, 69.7% of the Caucasian 
personnel earned $900.00 per month or more, while the

5 For example, in September, 1973, the Department employed 186 
Correctional Lieutenants, of which 176 were Caucasian, eight were Spanish- 
surnamed and two were black. Ex. “G ” at 34. Of 400 Correctional Sergeants, 
355 were Caucasian, 22 Spanish-surnamed, and 20 black. Id. Thirty-one of 
33 Correctional Counselor Ills were Caucasian, as were 65 of 73 Correctional 
Counselor IIs. Id. See also the documentation submitted with the Motion to 
Augment Record. C.T. 704, 832-33, 836, 848-49, 853, 875, 883, 889, 899, 
909-10, 926, 932, 936, 940, 944-45, 947-48, 951, 955, 964, 967-68, 976-77.

If the “ traditional census undercount of minorities” and the apparent 
increase in the proportion of the minority population since 1970 are consid­
ered, see California Advisory Committee to the U.S. Commission on Civil 
Rights, California State Employment 2 (1980), the disparity is even greater.



4

comparable figures for blacks and Spanish-surnamed personnel 
were 46.3% and 45.2% respectively. Id. at 32. The monthly 
weighted average salary for Caucasians was $1,116.86; for 
blacks, $998.98; and for Mexican-Americans, $970.91. Id. at
31.

Much the same was true with respect to female employees. 
As of September 1973, only 17.3% of the Department’s total 
personnel was female, in contrast to 38.1% of the California 
labor force. Id. at 27. At the institutions, the percentages were 
significantly lower: at only two institutions ( one of which was 
the California Institution for Women) did the proportion of 
female employees exceed 13%, and at many it was considerably 
less. Id. at 31. Moreover, more than 75% of the female 
employees were in clerical positions. Id. at 35. While only 
26.6% of the Department’s male employees earned less than 
$900 per month, 76.3% of female employees earned less. Id. at
32. The monthly weighted average salary for males was 
$1,091.71, while for females it was $795.01. Id. at 32.

The underrepresentation of minorities and women was not 
accidental. The record demonstrates, for example, that the low 
number of minorities in supervisorial positions resulted not only 
from a shortage of minority employees in entry level positions, 
but also from the fact that interview panels consisted almost 
exclusively of white males, whose prejudices unquestionably 
influenced the consistently low evaluations of minority officers.
E.g., R.T. 372, 824-25, 833, 872-73, 883.6 Written tests also 
discriminated against minority groups. R.T. 370-71. Minority 
officers within the Department customarily received less desir­
able duty and shift assignments and were completely excluded 
from some posts. R.T. 212-13. As a result, the Department 
had difficulty retaining its minority employees, let alone pro­
moting them. See also Appendix B.

The evidence also reflected the sharp contrast between the 
minority inmate population and the correctional work force. In 
1973, the total inmate population contained 32.2% blacks, in 6

6 For example, one middle-level manager—whose testimony Petitioners 
quote at length (Pet. Br. 7-8)—told a superior that he believed minorities 
were less qualified than whites. R.T. 774. This individual promoted only 
white employees. Id.



5

contrast to 8.8% within the correctional force, and 17.3% 
Mexican-Americans, in contrast to 7.4% of the work force. See 
Ex. “G ” at 26. The evidence brought out the widespread 
presence of racial gangs throughout California’s prisons (R.T. 
340-41, 476, 560, 627, 899), and the ever-present danger of 
racial violence. E.g., R.T. 548-64, 896-99; C.T. 494-96, 500-05, 
510-11, 525-27, 541-42, 560-61.

It was against this background, and in response to man­
dates from California’s Legislature and Governor (Ex. “G ” at 
48; see pp. 37-41, infra), that the Department’s affirmative 
action efforts were initiated in 1968-69, and formalized in 1974. 
Exs. “G ”, “Q ”, “R”, R.T. 338; see also C.T. 704-05, 710. The 
Affirmative Action Plan is predicated upon a detailed statistical 
study of the underrepresentation of minorities and women 
throughout the Department. Ex. “G ” at 25-39; see also Ex. 
“Q”. Its principal elements are summarized in the Statement of 
Policy appearing at the front of the formal program documents:

“In order to insure compliance with equal employ­
ment opportunity laws and departmental policy, a 
formal Affirmative Action Program has been devel­
oped for immediate implementation. Specific actions 
required by this plan will include:

A. Increase the number of minorities and women 
employees at all levels by implementing pro­
grams for recruiting, selecting, hiring and pro­
moting minorities and women.

B. Establish a monitoring system of all employment 
practices related to the employment of women 
and minorities.

C. Establish specific goals, timetables and records 
for measuring success or failure in complying 
with laws of nondiscrimination.

D. Provide in-service training that will develop a 
sensitivity in staff to recognize and positively deal 
with discriminatory practices, and provide train­
ing for women and minority employees that will 
assure their full participation at all levels of 
employment.



6

E. Insure that all employees have equal employment 
opportunities and equal treatment.

F. Insure that each institution, parole region and 
Central Office develop an Affirmative Action Plan 
that is in keeping with the departmental guide­
lines.

G. Insure that disciplinary action will be taken, as in 
any violation of major departmental policy, in 
instances where administrators or individuals give 
inadequate cooperation or obstruct the goals of 
the program.” (Ex. “G ” at 1).

The Plan’s objective is “ [t]o increase significantly the 
utilization of minorities and women across organizational units 
of the CDC and at all levels possible as vacancies occur.” Ex. 
“G” at 10.7 The Plan incorporated the then-current Guidelines 
issued by the federal Law Enforcement Assistance Adminis­
tration,8 9 which directed that the percentage of minority groups 
in the work force, within five years, be at least 70% of the 
minority percentage in the inmate population. Ex. “G ” at 11- 
12; see R.T. 665-66.9 The Plan’s goal for female hiring is to 
achieve a proportion of women in the correctional work force 
corresponding to the proportion of women in the California 
labor force. Id.

7 According to the then Deputy Director, the goal of the program was, 
“very simply . . .  to make the Department of Corrections a fair place to work.” 
R.T. 665. See also R.T. 338. As further documented in the materials 
submitted with the Motion to Augment Record, the Plan was “designed in 
part to bring these discriminatory practices to an end and to undo the effects 
of these practices over so many years.” C.T. 710; see also C.T. 969; R.T. 338, 
665, 707; Exs. “G ”, “Q ”, “ R”. The Plan was also designed to lessen racial 
strife among inmates for which the discriminatory practices were considered 
partially responsible. See C.T. 703-04.

8 38 Fed. Reg. 23518 ( 1973). See Ex. “G ”, pp. 40-47; ABA Commission 
on Correctional Facilities and Services, Minority Recruitment in Correc­
tions—New Federal Aid Requirements ( 1973); Skoler & Loewenstein, Minor­
ities in Correction—Nondiscrimination, Equal Opportunity, and Legal Issues, 
20 Crime & Delinquency 339, 345-46 (1974); Hardy v. Leonard, 377 F. Supp. 
831, 835 n.2 (N.D. Cal. 1974). On February 16, 1977, these regulations were 
amended. See 42 Fed. Reg. 9493 ( 1977); 43 Fed. Reg. 28795 ( 1978). C T  
586-601.

9 In 1979, the Department slightly revised and extended its Affirmative 
Action Plan for an additional five years. A copy of the current Plan has been 
lodged with the Clerk.



7

In implementing the Plan, the Department has adhered to 
all civil service requirements and procedures. Applicants take 
written and oral examinations administered by the State Per­
sonnel Board and are ranked on certification lists according to 
their test performance. Cal. Gov’t. Code §§ 18930, 18936. In 
making selections from the list, the Department is limited to the 
top three individuals or ranks who choose to be considered for 
the particular opening. Cal. Gov’t. Code §§ 19057, 19057.1; 2 
Cal Admin. Code §§ 254, 254.1; see R.T. 15-16, 20-23, 198-99, 
214; Ex. 10, R.T. 90. It is only within the statutory selection 
process, among those found eligible under racially-neutral 
criteria, that consideration is given to the race and sex of 
applicants in making hiring and promotional decisions.10 The 
policy at all times has been to hire and promote only the most 
qualified applicants (R.T. 194, 203-06, 333-34, 383, 452-53, 
483, 487-88, 548, 563-64, 591, 666, 668, 672, 773, 777-78, 792, 
882; Ex. 35, R.T. 727);11 nonetheless, given the absence of 
minority personnel and the composition of the inmate popu­
lation, the fact that a well-qualified applicant is a minority 
member is a factor which may enhance that applicant’s quali­
fications for the particular position. R.T. 227-28, 284, 372-74, 
382-83, 453-54, 498-99, 600, 793. Some Departmental repre­
sentatives testified that if competing applicants were “ reason­
ably equally qualified,” the minority applicant would be se­
lected. E.g., R.T. 289, 601; see Ex. 16, p.3. However, as 
explained by other witnesses, the underlying concept is that the 
race and sex of applicants be considered in relationship to the 
needs of the position being filled, along with the many other 
factors that bear upon an individual’s qualifications. See R.T. 
195-97, 382-83, 488, 666-77, 707-08.

10 Efforts are also made to recruit or train minority members for openings 
that develop, but special training and staff development assignments, transfers 
and the like are made only in accordance with civil service requirements (see, 
e.g., R.T. 214-17, 266-69, 345-51, 389-92; Ex. 2, p.2, R.T. 43, 45; Ex. 16, p.3; 
R.T. 101) and have not been challenged in this litigation. C.T. 68; Petn. App. 
F4. The Department has also requested that a small number of positions be 
certified by the State Personnel Board as limited to female only. E.g., Ex. 24, 
R.T. 260, 394.

11 Contrary to repeated statements throughout the Brief for Petitioners 
(e.g., Pet. Br. i, 9-10 13, 16) no evidence wras introduced that a lesser 
qualified applicant was ever selected in preference to a more qualified non­
minority male applicant, nor did the Superior Court enter any such finding.



The Department acknowledged that there has been some 
misunderstanding concerning the operation of the Affirmative 
Action Program (R.T. 664), and the record contains some 
evidence—upon which Petitioners heavily relied—suggesting 
that under the Department’s program only minority or female 
candidates would be considered for some positions. E.g., Ex. 
M., R.T. 685, 686; Ex. 1, R.T. 38, 45; Ex. 2, R.T. 43, 45; Ex. 28, 
R.T. 462, 465. However, Department officials testified that this 
is not and never has been the policy of the Department; when 
such incidents were brought to the attention of the responsible 
administrators, they were promptly corrected. R.T. 684-86; see 
R.T. 84, 86 775-77, Exs. 35, 37, R.T. 862; Ex. 11, R.T. 97; 
Ex. 6A, R.T. 84,8672

After trial, the Superior Court issued a Notice of Intended 
Decision, indicating its agreement with Petitioners’ contention 
“that the hiring or promotion of a person based in whole or in 
part on sex or racial background or ancestry is unconstitutional 
and void.” C.T. 375. Thereafter, the Department filed a 
Motion to Augment Record, requesting the Superior Court to 
receive detailed evidence regarding the past and continuing 
discriminatory practices that the Affirmative Action Plan was 
designed to remedy. C.T. 670-71. The proferred evidence is 12

12 One important factor that must be considered in evaluating some 
misstatements concerning the Department’s policy quoted in Petitioners’ Brief 
is that the statements may have been made by correctional officers hostile to 
affirmative action, not to correctly characterize the program, but to discredit it. 
E.g., compare Ex. “M” with R.T. 774.

Several of Petitioners’ witnesses testified that the former Director of the 
Department had stated that white males were going to have to wait five years 
for promotions. See Pet. Br. 11. However, the Director denied this (R.T. 
284-85) and his testimony was confirmed by other top administrators. E.g., 
R.T. 369-70, 378-81, 442, 494, 678-79. The Director did state that the effect 
of the Department’s program will be to increase the competitive pool, so that 
it may take somewhat longer for promotions to be obtained. R.T. 286, 369, 
see also Ex. 10.

The Court of Appeal summarized the record in this respect as follows:
“According to all the evidence of instances where they had been 
applied, ‘preference’ was given to female sex or minority status 
only to the extent that each was considered a ‘plus’ factor 
in the assessment of a particular employee for promotion or 
transfer . . . .” (Petn. App. A6-A7)



9

summarized in Appendix B to this brief. The Superior Court 
denied this Motion, and refused the Department’s request for 
specific findings on the subject of past discrimination, on the 
ground that prior discrimination was irrelevant. R.T. 1029, 
1431-33.13 Although the Court of Appeal subsequently held 
that the refusal to augment the record could be upheld on the 
procedural ground of untimeliness, this was not the ground 
upon which the Superior Court acted (R.T. 1432-33), and the 
Court of Appeal also ruled that such evidence could be 
considered in the event of further trial court proceedings. Petn. 
App. A23.

Petitioners conceded that there was no evidence that the 
two named Petitioners, or any other specific individual, had 
been denied promotions because of their race or sex (R.T. 921 - 
24; C.T. 328-29; see C.T. 279-81), and no such finding was 
entered. However, the Superior Court felt that “discrimination 
against one is discrimination against all” and that “every 
employee in the Department, regardless of race, color, creed, 
background, and so on, was being discriminated against by the 
policy adopted by the Department.” R.T. 1335-36, 1339. 
Accordingly, the Superior Court entered Findings of Fact to 
that effect (Petn. App. F4) and conclusions of law and a 
judgment declaring that the Department’s employment prac­
tices violated the Fourteenth Amendment to the United States 
Constitution, Title VII of the Civil Rights Act of 1964 (42 
U.S.C. § 2000e et seq.), 42 U.S.C. Sections 1981 and 1983, as 
well as various provisions of California law. Petn. App. E, F7- 
F9.14 It also entered a Permanent Injunction prohibiting the

13 The Superior Court succinctly stated its views at one hearing at which 
the motion was being considered:

“THE COURT: Well, two wrongs don’t make a right. And 
if they’ve been doing that in the past, it’s high time they stopped, 
you see. That’s all it amounts to. I don’t see the relevance if 
they’ve been discriminating for generations.” (R.T. 1029).

The Superior Court did find that the Department’s Plan did not remedy 
societal discrimination (Pet. App. F5), but this finding says nothing about 
whether the Plan was justified by discrimination by the Department.

14 Based upon findings recognizing “ the unique and sensitive nature of 
the functions of the Department of Corrections and the peculiar difficulties 
inherent in the administration of California’s prison system,” the Superior 
Court provided that race or sex could be considered in determining employee 
job assignments and responsibilities. Petn. App. F6, G2.



10

Department “ from hiring or promoting any employee . . .  in 
which preference, advantage, or benefit is given to race, color, 
sex or national origin.” Petn. App. G.

The California Court of Appeal reversed. The court 
concluded that although the Superior Court had properly 
applied the decision of the California Supreme Court in Bakke, 
under the standards established by this Court’s resolution of 
that case, the Department’s Affirmative Action Plan withstood 
constitutional scrutiny. Without regard to the history of prior 
discrimination, the Court of Appeal concluded that “ there was 
evidence that the desired ‘minority’ level could serve inmate- 
related objectives of the Department by improving relation­
ships with prisoners and reducing severe racial conflict and 
violence within the State prison system” (Petn. App. A5), and 
held that in light of “ the prison-related realities of race and 
sex,” the Department’s personnel practices serve the “ ‘com­
pelling state interest’ in a safe and efficient correctional sys­
tem.” Petn. App. A 15-16. With reference to the percentage 
goals included in the Plan, the Court of Appeal concluded:

“This language sounds in ‘quota’ terms, but neither 
percentage figure bespeaks a ‘quota’ of the type 
proscribed in Justice Powell’s opinion in U.S. Bakke.
Each is an optimum ‘quota’ to the extent that it 
defines a goal to be attained in the future. Neither is 
a functional ‘quota’ which now operates to place 
either—or any—percentage of positions in the De­
partment beyond the reach of male or nonminority 
employees.” (Petn. App. A16).

With respect to Title VII, the Court of Appeal held that “ the 
fact that the Department is a public employer suggests no basis 
for excluding it from the reach of the Congressional intent and 
objectives analyzed in United Steelworkers [v. Weber, 443 U.S. 
193 ( 1979)], upholding the voluntary adoption of race con­
scious affirmative action plans”. Petn. App. B2.

The Supreme Court of California denied the Petitioners’ 
application for a hearing (Petn. App. “C” ), and this Court 
thereafter granted the Petition for a Writ of Certiorari.



11

SUMMARY OF ARGUMENT

The decision of the Court of Appeal is, under California 
law, an unqualified reversal which remands the case for a new 
trial. On retrial, both Petitioners and the Department will be 
able to present evidence concerning many pivotal factual issues 
which the Superior Court did not reach because it considered 
the granting of any racial preference in hiring and promotion to 
be per se unconstitutional. The new evidence necessarily will 
change the legal issues presented by the case. Thus, the Court 
of Appeal’s decision is not a final judgment.

The state courts had no jurisdiction to consider Petitioners’ 
Title VII claim. Congressional intent to provide for exclusive 
federal jurisdiction over Title VII claims is expressed both in 
the statutory languge—which explicitly makes numerous feder­
al statutes and rules of civil procedure applicable to cases 
brought under it—and in the legislative history. State court 
jurisdiction would be at odds with the carefully constructed 
remedial scheme fashioned by Congress. Since the state courts 
had no jurisdiction over Petitioners’ Title VII claim, it may not 
be considered by this Court.

Should the Court reach the merits of the Title VII claim, 
the Department’s Affirmative Action Plan passes muster under 
that statute. In United Steelworkers v. Weber, 443 U.S. 193 
(1979), this Court held permissible under Title VII voluntary 
affirmative action plans designed to eliminate racial imbalance 
in traditionally segregated job categories. Such a plan may 
grant preference to racial minorities provided that it does not 
“unnecessarily trammel” the interests of white employees. 
Although Weber involved a program adopted by a private 
employer, its holding is equally applicable to a program 
voluntarily adopted by a state agency. Title VII applies 
identical standards to public and private employers, as evi­
denced by decisions of this Court, the language and legislative 
history of the 1972 legislation extending Title VII to govern­
mental agencies, and the construction given the statute by the 
federal agencies entrusted with its administration. Moreover, 
the reasons which supported the Court’s decision in Weber are 
equally applicable to public employers.



12

Under Weber, the Department’s Plan is entirely per­
missible. The program was adopted in response to pronounced 
underutilization of minorities and women, reflected in a careful 
analysis of the Department’s work force conducted by the 
Department prior to the adoption of its program. The program 
was also designed to serve the additional purposes of improving 
prison security and fostering inmate rehabilitation, objectives 
which are both proper and consistent with the Department’s 
concurrent objective of eliminating the consequences of its prior 
discriminatory employment practices. Since the Department’s 
program—which creates no mandatory quotas but simply 
authorizes consideration of race and sex together with other 
relevant characteristics in evaluating qualified appli­
cants—affects non-minority workers only imperceptibly, and 
contains ample safeguards, the program conforms with the 
standards adverted to in Weber.

The Department’s consideration of race also satisfies the 
exacting standards of the Equal Protection Clause, however 
those standards may be articulated. The state’s interest in 
remedying the effects of prior identified discrimination un­
doubtedly justifies race-conscious affirmative action programs. 
The Governor of California and the California Legislature have 
recognized the existence of prior discrimination in the state’s 
civil service and required state agencies to adopt affirmative 
action plans; similar findings have been made by Congress and 
the Department itself. The Department’s consideration of race 
also is justified by the state’s compelling interest in maintaining 
safe and secure prisons. The Department’s Plan is both well 
tailored and necessary to achieve each of these compelling 
interests; no alternatives which do not involve consideration of 
race would work as well.

Similarly, the history of de jure discrimination against 
women within the Department justifies the gender-based por­
tion of the Affirmative Action Plan. Under Title VII, consid­
eration of gender for remedial purposes stands on the same 
footing as consideration of race. Under the Fourteenth Amend­
ment, this Court has created standards which are less demand­
ing than for consideration of race. Moreover, as with race, 
there are other compelling correctional interests which justify 
consideration of sex in hiring and promotion.



13

ARGUMENT
I.

THE DECISION OF THE CALIFORNIA COURT OF 
APPEAL IS NOT A FINAL JUDGMENT.

The decision of the California Court of Appeal con­
templates further state court proceedings. After declining to 
decide whether the evidence of prior discrimination proffered 
by the Department with its Motion to Augment Record was 
relevant, the court stated that “ [i]f the case is to be retried,” the 
relevance of that evidence would be determined in light of 
Justice Powell’s opinion in Bakke. Petn. App. A23. The Court 
also noted sua sponte that there were “problems with [Petition­
ers’] ‘standing’ ” which might affect the state courts’jurisdiction 
to hear the case; this question, too, the court noted would 
“require examination” on retrial. Id. at A23-24. The pendency 
of the retrial necessarily means that the decision of the Court of 
Appeal is not a “ final judgment” under 28 U.S.C. §1257.

The issue of state court jurisdiction is, of course, for the 
state courts to decide, at least in the first instance. Cardinale v. 
Louisiana, 394 U.S. 437, 439 (1969); c f Paschall v. Christie- 
Stewart, 414 U.S. 100 (1973). In light of the Court of Appeal’s 
expressed doubt on this score, it cannot be assumed that there is 
state court jurisdiction of the case or, therefore, that there is 
jurisdiction in this Court. Cf. Lambert Run Coal Co. v. 
Baltimore & Ohio R.R., 258 U.S. 377, 382 ( 1922). Depending 
on the ultimate ruling upon the jurisdiction of the California 
courts, the decision of the Court of Appeal on the merits of 
Petitioners’ constitutional claims may well be only an advisory 
opinion which this court is powerless to review. Doremus v. 
Board of Education, 342 U.S. 429 (1952).15 At the very least,

15 California courts, which are not subject to the restrictions on jurisdic­
tion imposed by Article III, may determine the merits of causes in numerous 
situations where the federal courts would lack jurisdiction. See, e.g., White v. 
Davis, 13 Cal. 3d 757, 762-65 ( 1975)(taxpayer suits); United Farm Workers 
v. Superior Court, 16 Cal. 3d 499, 503-04 ( 1976)(moot case decided due to 
“sufficient interest and importance” of question presented).



14

as in Paschall v. Christie-Stewart, supra, the case should be 
remanded to the state courts so this issue may be decided. Until 
the state courts decide whether they have jurisdiction of this 
action, the decision of the Court of Appeal simply is not final.

More importantly, the retrial contemplated by the Court of 
Appeal may radically transform the questions presented by this 
case. At a retrial, the Department will be free to introduce the 
evidence of prior discrimination previously preferred with its 
Motion to Augment Record.16 Although the Superior Court 
found this evidence irrelevant, Petitioners now tacitly admit 
that this ruling was in error, since they concede that an 
affirmative action plan may be constitutionally permissible if an 
employer has “been arguably guilty of prior employment 
discrimination . . . Pet. Br. 20; see also id. 31.

If, on retrial, the Department introduces the evidence of 
prior discrimination which the Superior Court previously re­
fused to admit, the issues which Petitioners claim this case 
presents will disappear. The first “question presented” by 
Petitioners’ Brief is whether, “absent proof that it has engaged in 
previous employment discrimination, [a State may] voluntarily 
establish ‘goals’, set aside positions, and grant preferences in 
public em ploym ent....” Pet Br. i (emphasis added). If, 
contrary to the Department’s contention (see pp. 2-4, supra), 
the Court should conclude that the present trial record does not 
adequately show prior discrimination within the Department, 
such proof unquestionably will be forthcoming on retrial.

16 Under California law, an appellate decision reversing a trial court 
judgment is, unless otherwise specified, an “unqualified reversal,” which 
“ordinarily has the effect of remanding the cause for a new trial on all of the 
issues presented by the pleadings.” 6 Witkin, California Procedure (2d ed. 
1971), Appeal § 543, p. 4484. An unqualified reversal “places the parties in 
the same position as if the case had never been tried.” Gospel Army v. Los 
Angeles, 331 U.S. 543, 546 ( 1947), citing Erlin v. National Union Fire Ins. 
Co., 1 Cal. 2d 547, 549 ( 1936). The parties may thus amend their pleadings 
and present new facts and legal contentions on retrial, Gospel Army, 331 U.S. 
at 547, unless “ the opinion [of the appellate court] as a whole establishes a 
contrary intention.” Stromer v. Browning, 268 Cal. App. 2d 513, 518-19, 74 
Cal. Rptr. 155, 158 ( 1968).



15

Similarly, the other deficiencies which Petitioners assert 
presently exist in the record (see, e.g., Pet. Br. 13-14, 16, 27, 28) 
stand to be cured on retrial.

Petitioners, too, may advance their cause on remand. 
Since the Superior Court granted judgment for Petitioners on 
the erroneous legal theory that racial and gender preference is 
per se unconstitutional, the case comes to this Court with a 
record unilluminated by trial court findings on many of the 
critical issues in the case, including those relating to past 
discrimination within the Department, the details of the Plan’s 
operations, the correctional interests served by the Depart­
ment’s program, and whether other alternatives would more 
appropriately further those interests.17 On remand, both parties 
may be expected to offer evidence going to these matters; the 
findings of the trial court necessarily will shape the legal issues 
appropriate for review, potentially to the advantage of either 
party. If, for example, the Petitioners should convince the state 
court that the correctional purposes supporting the Depart­
ment’s plan can be satisfied by minority hiring goals tied to the 
labor force rather than to the inmate population—an issue not 
yet considered below—they may still obtain some relief in the 
California courts.

The dispositive case with respect to the non-finality of the 
Court of Appeal decision is Gospel Army v. Los Angeles, 331 
U.S. 543 (1947). There, the state court plaintiff contended that 
certain state action was unconstitutional; the California Superi­
or Court granted judgment for plaintiff and the Supreme Court 
of California reversed. Because the California Supreme Court’s 
decision remanded the case for a new trial, that decision was 
not final, inasmuch as new facts and legal claims might change

17 Compare C.T. 605-633, 639-652, 1076-1086, with Petn. App. F. The 
numerous statements in Petitioners’ Brief that the Superior Court decided 
such issues (e.g., Pet. Br. 3, 4, 12, 13, 15, 16, 18, 27, 28, 29, 39-40) are thus 
erroneous. Under California law a reviewing court may not assume, as 
Petitioners imply, that the trial court made omitted findings necessary to 
support its judgment. Cal. Code Civ. Proc. § 634. While the Court of Appeal 
made factual findings on some of these issues, which should not be disturbed 
by this Court unless unsupported by substantial evidence, General Motors 
Corp. v. Washington, 377 U.S. 436, 441-42 (1964), the record as to other 
issues is unilluminated by findings of either court.



16

the constitutional questions presented by the case. Id  at 348. 
Here, as in Gospel Army, the Court should refrain from 
establishing constitutional doctrine—particularly in an area as 
sensitive as affirmative action—on the basis of a factual record 
still open to modification. See also Southern Pacific Co. v. 
Gileo, 351 U.S. 493, 495-96 (1956).

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 ( 1975), 
the Court described four categories of cases in which it had 
accepted jurisdiction of technically non-final state court deci­
sions “without awaiting the completion of the additional pro­
ceedings anticipated in the state courts.” Id. at 477. In their 
Reply to Respondents’ Brief in Opposition (at 8), Petitioners 
contend that this case falls within the first of these categories, 
i.e., that here the further course of state court proceedings has 
been preordained by resolution of the federal issue. See Cox 
Broadcasting Corp. v. Cohn, supra, 420 U.S. at 479. This 
contention is meritless. As Cox explicitly states, this category 
includes only cases where “ the federal issue would not be 
mooted or otherwise affected by the proceedings yet to be had 
because those proceedings have little substance, their outcome 
is certain, or they are wholly unrelated to the federal question.” 
Id. at 478. Here, because retrial is certain to affect the 
constitutional posture of the case, the federal issue will be 
affected by the proceedings to come. The case therefore does 
not fall within the first category described in Cox. Since 
Petitioners do not contend that it falls within any of the 
others—and it does not—the judgment of the Court of Appeal 
is not final, and this Court lacks jurisdiction over the case.18

18 There is also a question whether Petitioners have standing sufficient to 
give this Court jurisdiction under Article III, an issue addressed in the brief 
amicus curiae filed by the Anti-Defamation League (ADL). Petitioners did 
not establish at trial that any members of the California Correctional Officers 
Association, including the individual Petitioners, had failed or would fail to 
obtain a promotion because of the Department’s Plan, and no stipulation was 
entered concerning any such facts. However, since the Department stipulated 
to Petitioners’ standing (R.T. 1464-67), it takes no position on the question 
raised by the ADL.



17

II.
TITLE VII DOES NOT PROHIBIT THE DEPARTMENT 
OF CORRECTIONS FROM VOLUNTARILY ADOPTING 
AN AFFIRMATIVE ACTION PLAN DESIGNED TO REM­
EDY THE CONTINUING CONSEQUENCES OF PAST 
DISCRIMINATION AND TO FURTHER COMPELLING 

CORRECTIONAL OBJECTIVES.
A. The State Courts Lacked Jurisdiction Over Petition­

ers’ Title VII Claim.
The judgment of the California Superior Court purported 

to be based in part upon Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C. §2000e et. seq. (Petn. App. E2), 
and the Court of Appeal reversed that judgment only after 
concluding that the Plan conformed with Title VII standards. 
Petn. App. B2. While the Petition for Writ of Certiorari 
indicated the intention to question whether the interpretation of 
Title VII adopted in United Steelworkers v. Weber, 443 U.S. 
193 ( 1979), should be extended to “the public sector” (Petn. 
21; see also id. 3, 21-26), Petitioners now appear to have 
abandoned any reliance upon Title VII (see Pet. Br. 22, 33; 
Opposition to Application for Leave to File Brief in Excess of 
Fifty Pages 3-4) and, we submit, properly so, since the state 
courts lacked jurisdiction over Petitioners’ Title VII claim.

Numerous lower courts have concluded that the language 
and legislative history of Title VII conclusively demonstrate a 
Congressional purpose to place exclusive jurisdiction of civil 
actions under Title VII in the federal courts.19 While the 
general rule is that state courts have concurrent jurisdiction of 
federal claims, Congressional intent to exclude such jurisdiction

19 See Dickinson v. Chrysler Corp., 456 F. Supp. 43 ( E.D. Mich. 1978); 
Fox v. Eaton Corp., 48 Ohio St. 2d 236, 358 N.E. 2d 536 (Ohio Sup. C't. 
1967); Lucas v. Tanner Bros. Contracting Co., 10 F.E.P. Cases 1104 (Ariz. 
Super. Ct. 1974); see also Gunther v. Iowa State Men's Reformatory, 612 F.2d 
1079, 1084 n.5 (8th Cir.), cert, denied. 100 S.Ct. 2942 (1980); cf. Batiste v. 
Furnco Constr. Co., 503 F.2d 447, 450 ( 7th Cir. 1974), cert, denied, 420 U.S. 
928 ( 1975); Hutchings v. United States Indus., Inc., 428 F.2d 303, 310 (5th 
Cir. 1970)(“ to the federal court alone is assigned the power to enforce 
compliance with [42 U.S.C. §2000e-2(a)]” ). But see Bennun v. Board of 
Governors, 413 F. Supp. 1274 (D.N.J. 1976).



18

may be found in the language used by Congress, by in­
compatibility between the exercise of a federally created right 
and a state court forum, or from examination of the relevant 
legislative history. See Charles Dowd Box Co. v. Courtney, 368 
U.S. 502 (1962); Redish & Muench, Adjudication o f Federal 
Causes o f Action in State Court, 75 Mich. L. Rev. 311 ( 1976). 
Each of these criteria supports the conclusion that Congress 
intended jurisdiction over Title VII claims to be exclusively in 
the federal courts.

Congress specifically provided that, in many important 
respects, federal statutes and rules of procedure would be 
available to expedite Title VII actions and protect the federally 
created rights of Title VII litigants. Thus, Title VII not only 
provides that the district courts “shall have jurisdiction” of 
actions brought pursuant to its provisions (42 U.S.C. § 2000e- 
5 (f)(3 )), but specifically provides that federal venue provi­
sions (28 U.S.C. §§ 1404 and 1406) govern such actions (id.), 
that the “chief judge of the district court” shall “ immediately” 
designate a judge to hear Title VII actions (42 U.S.C. § 2000e- 
5 (f)(4 )), that the district or circuit court judge so designated 
shall assign the case for “hearing at the earliest practicable 
date,” that the court may appoint a master “pursuant to Rule 
53 of the Federal Rules of Civil Procedure” if the case has not 
been scheduled for trial within 120 days after issue has been 
joined (42 U.S.C. § 2000e-5(f)(5)), that “ [a]ny temporary 
restraining order or other order granting preliminary or tempo­
rary relief shall be issued in accordance with Rule 65 of the 
Federal Rules of Civil Procedure” (42 U.S.C. § 2000e- 
5 (f)(2 )), and that “any civil action brought under this sec­
tion . . . shall be subject to appeal as provided in sections 1291 
and 1292, Title 28” (42 U.S.C. § 2000e-5(j)). It should not be 
lightly inferred that Congress intended to require the state 
courts to import in wholesale lots provisions from the Judicial 
Code and the Federal Rules of Civil Procedure in order to 
accommodate federal litigants. See, e.g., Minneapolis & St. 
Louis R.R. v. Bombolis, 241 U.S. 211, 218 (1916).

With respect to actions which involve state agencies, Title 
VII is even more explicit: if efforts at conciliation fail, “ [ i ] n the 
case of a respondent which is a government, governmental



19

agency, or political subdivision, . . . the Commission shall take 
no further action and shall refer the case to the Attorney 
General who may bring a civil action against such respondent in 
the appropriate United States district c o u r t If the Attorney 
General fails to act, aggrieved persons may bring a civil action, 
although “the court” may permit the Attorney General to 
intervene 42 U.S.C. § 2000e-5(f)( 1) (emphasis added).2°

The legislative history of Title VII also indicates that 
Congress intended Title VII actions to be brought only in 
federal court.20 21 “It is significant to note that when reference 
was made by members of Congress to bringing actions in court, 
the references were to federal court.” Dickinson v. Chrysler 
Corp., 456 F. Supp. 43, 46 (E.D. Mich. 1978)(emphasis in 
original).

The statutory scheme compels the same result. As this 
Court noted in Alexander v. Gardner-Denver Co., 415 U.S. 36 
(1974), in enacting the remedial provisions of Title VII, 
Congress made reference to the broad powers of the federal 
courts to grant equitable relief: “ [FJinal responsibility for 
enforcement of Title VII is vested with federal courts. The Act 
authorizes courts to issue injunctive relief and to order such 
affirmative action as may be appropriate to remedy the effects 
of unlawful employment practices. 42 U.S.C. §§ 2000e-5(f) 
and (g) (1970 ed., Supp. I I ) . , . .  Taken together, these 
provisions make plain that federal courts have been assigned 
plenary powers to secure compliance with Title VII.” Id. at 44- 
45 (emphasis added).

Thus, the language, legislative history and scheme of Title 
VII dictate that the exclusive forum for Title VII actions is 
federal court. Accordingly, as Petitioners now seem to ac­
knowledge, whether the Department’s Plan is proper under 
Title VII is not properly before the Court.

20 Similarly, 42 U.S.C. §2000e-6(a) authorizes the Attorney General to 
bring “pattern and practice” actions “ in the appropriate district court of the 
United States.” 42 U.S.C. §2000e-6(b) provides that in such cases, the 
Attorney General may request the chief judge of the circuit to convene a 
three-judge court.

21 For example, the Interpretive Memorandum of Senate floor managers 
Clark and Case makes repeated reference to actions in “ federal court” only. 
110 Cong. Rec. 7213 ( 1964). See also 110 Cong. Rec. 13081 ( 1964) 
(remarks of Sen. Case); 110 Cong. Rec. 12708, 12722 ( 1964) (remarks of 
Sen. Humphrey).



2 0

B. The Holding in W eber That Title VII Does Not 
Preclude Voluntary Adoption Of Affirmative Action 
Plans Is Fully Applicable To State Agencies.

In United Steelworkers v. Weber, 443 U.S. 193 ( 1979), this 
Court held that Title VII does not prohibit the voluntary 
adoption of a bona fide affirmative action plan that accords 
preference to racial minorities if the plan is “designed to 
eliminate conspicuous racial imbalance in traditionally segre­
gated job categories,” id. at 209, and if it “does not unnecessar­
ily trammel the interests of white employees.” Id. at 208. 
Holding that Title VII “cannot be interpreted as an absolute 
prohibition against all private, voluntary, race-conscious 
affirmative action efforts to hasten the elimination of such 
vestiges [of the unfortunate and ignominious history of dis­
crimination against the Negro in this country],” id. at 204, the 
Court upheld a craft training program which temporarily 
reserved a fixed percentage of places for blacks, even though 
there was no prior determination of illegal discriminatory 
employment practices.

Although Weber involved a private employer, the Califor­
nia Court of Appeal properly held that under Title VII the same 
standards apply to a program voluntarily adopted by a state 
agency. In Dothard v. Rawlinson, 433 U.S. 321 ( 1977), this 
Court acknowledged that in amending Title VII in 1972 to 
apply to governmental agencies, “Congress expressly indicated 
the intent that the same Title VII principles be applied to 
governmental and private employers alike.” Id. at 331 n. 14. 
See also Washington v. Davis, 426 U.S. 229, 263 ( 1976)(Bren­
nan and Marshall, JJ., dissenting); Regents o f the University of 
California v. Bakke, 433 U.S. 265, 368 ( 1978)(Opinion of 
Brennan, White, Marshall and Blackmun, JJ.). Following 
Weber, the several federal courts of appeal that have consid­
ered the question are unanimous that Title VII sanctions the 
voluntary adoption of race-conscious affirmative action pro­
grams by governmental agencies as well as by private 
employers, even in the absence of a proven history of prior



2 1

employment discrimination.22 The same conclusion has been 
reached by the Supreme Courts of California and of Washing­
ton.23 See also Powers, Implications o f Weber— ‘A Net Be­
neath’, 5 Empl. Rel. L. J. 325, 333-35 (Winter 1979).24

Both the text and history of the 1972 legislation extending 
the reach of Title VII to governmental agencies confirm the 
soundness of this uniform judicial view. As originally enacted 
in 1964, Title VII was expressly inapplicable to “a state or 
political subdivision thereof.” Section 701(a), (b ), 78 Stat. 
253. In the Equal Employment Opportunity Act of 1972, 
Congress amended Sections 701(a) and (b) to expand the 
terms “person” and “employer” to include “governments, 
governmental agencies, [and] political subdivisions.” 86 Stat. 
103, 42 U.S.C. § 2000e(a) and (b) (1970 ed., Supp. IV). See 
Fitzpatrick v. Bitzer, 421 U.S. 445, 448-49 (1976). Since the 
amendments did not modify the applicable substantive provi­
sions defining unlawful employment practices by employers, 
Section 703(a), 42 U.S.C. § 2000e-2(a), but simply enlarged

22 United States v. City of Miami, 614 F.2d 1322, 1336 n.27 (5th Cir. 
1980); Scott v. City o f Anniston, 597 F.2d 897, 900 (5th Cir. 1979), cert, 
denied, 100 S. Ct. 1850 ( 1980); Detroit Police Officers’ Ass’n v. Young, 608 
F.2d 671, 689 n.7 (6th Cir. 1979), pet. for cert, pending, No. 79-1080 (filed 
Jan. 10, 1980); Blake v. City o f Los Angeles, 595 F.2d 1367 (9th Cir. 1979), 
cert, denied, —U.S.—, 48 U.S.L.W. 3698 (April 28, 1980).

23 Price v. Civil Serv. Comm’n, 26 Cal. 3d 257, 274 n.!2, 284, pet. 
dismissed as moot, —U.S.—, 49 U.S.L.W. 3244 (Oct. 6, 1980); Maehren v. 
City of Seattle, 92 Wash. 2d 480 ( 1979).

24 Prior to Weber, it was also the consensus that the statute sanctions 
remedial decrees imposing upon public employers quotas and related race 
conscious programs to remedy judicially established prior discrimination. 
See, e.g., United States v. City o f Chicago, 573 F.2d 416 (7th Cir. 1978), and 
see 549 F.2d 415, 436-437; Prate v. Freedman, 430 F. Supp. 1373 
(W.D.N.Y.), a ff’d, 573 F.2d 1294 (2nd Cir. 1977), cert, denied, 436 U.S. 922 
( 1978), and see 583 F.2d 42 (2nd Cir. 1978); United States v. City o f Buffalo, 
457 F. Supp. 612, 640 (W.D.N.Y. 1978); Firefighters Institute for Racial 
Equality v. City o f St. Louis, 549 F.2d 506, 510 (8th Cir.), cert, denied, 434 
U.S. 819 ( 1977); see also cases cited in Appel ants’ Opening Brief in the Court 
of Appeal at 41 n.23.



2 2

the applicability of those provisions to governmental agencies, 
there is absolutely no indication on the face of the statute of any 
intention to apply different standards to public bodies.25

To the contrary, the legislative history of the 1972 amend­
ments reflects explicit Congressional recognition of the pre- 
velance of discriminatory employment practices among state 
agencies, particularly in the field of law enforcement, and of the 
special need for these agencies affirmatively to correct and to 
eliminate the consequences of those practices. Throughout the 
debates, both branches of Congress repeatedly took note26 of 
two then-recent reports of the U.S. Commission on Civil Rights. 
The first, For All The People . . .  By All The People, A Report On 
Equal Opportunity In State And Local Government Employment 
( 1969), condemned the denial of equal access for minority 
group members to the growing number of state and local 
government jobs, finding:

“4. State and local government employment 
opportunities for minorities are restricted by overt 
discrimination in personnel actions and hiring deci­
sions, a lack of positive action by governments to 
redress the consequences of past discrimination, and 
discriminatory and biased treatment on the job.

(a) A merit system of public personnel admin­
istration does not eliminate discrimination against 
members of minorities. It proclaims objectively, but 
does not assure it. Discrimination occurs both in 
recruiting and in selection among final applicants.

25 By contrast, the Federal Government remained exempt under the 
general definition of “employer”, 42 U.S.C. § 2000e-(b), and was covered by 
an entirely separate section newly added to the statute in 1972. Section 717, 
42 U.S.C. § 2000e-16. The enforcement provisions are substantially the same 
with respect to private and state employers, except that the Equal Employ­
ment Opportunity Commission (“EEOC” ) may not initiate a civil action 
against a state, but may only refer unconciliated complaints to the Attorney- 
General for the filing of suit. Section 706(f)( 1), 42 U.S.C. § 2000e-5(f)( 1).

26 E.g., S. Rep. No. 92-415, 92d Cong., 1st Sess., 419 (1971); H. Rep. 
No. 92-238, 92d Cong., 1st Sess., 17 (1971); 117 Cong. Rec. 31961
(1971) (remarks of Rep. Perkins); 118 Cong. Rec. 1070, 1816. 1819
(1972) (quoting reports); 118 Cong. Rec. 581 ( 1972), (remarks of Sen. 
Javits); 118 Cong. Rec. 590 ( 1972) (remarks of Sen. Humphrey); 118 Cong. 
Rec. 1070 (1972) (remarks of Sen. Williams); 118 Cong. Rec. 1393-1394 
( 1972) (remarks of Sen. Saxbe).



23

(b) . . .  governments have failed to undertake 
programs of positive action to recruit minority appli­
cants and to help them overcome barriers created by 
current selection procedures.

(c) Promotional opportunities are not made 
available to minorities on an equal basis by govern­
ments that rely on criteria unrelated to job perfor­
mance and on discriminatory supervisory ratings.”
( Id. 119)

The 1969 report recommended that state and local agencies 
adopt programs to “undo any patterns of minority under­
utilization which had been brought about by past dis­
crimination,” and suggested that “ [w]here patterns of minority 
utilization are to be changed, the program should include 
specific goals, or estimates, to be achieved within a specified 
period of time.” Id. 124; 118 Cong. Rec. 1818 ( 1 9 7 2  ).2v

The second report, Mexican Americans And The Adminis­
tration of Justice in the Southwest ( 1970), observed that 
Mexican-America'n citizens were “excluded from full participa­
tion in law enforcement agencies, especially in supervisory 
positions,” id. at iiii, 118 Cong. Rec. 1820 ( 1972), and con­
veyed the opinion “that the fear and distrust which many 
Mexican Americans feel toward law enforcement agencies 
could be significantly dispelled by increasing the number of 
Mexican American law enforcement officers at all levels of 
authority.” Report at 83; 118 Cong. Rec. 1824.

Both the House and Senate Committees that reported out 
the legislation27 28 emphasized the serious and widespread nature

27 Anticipating the program subsequently adopted by the California 
Department of Corrections, the Civil Rights Commission recommended that 
governmental agencies “ [d]o not in all cases give preference to non-minority 
applicants on the basis of higher performance on tests or other hiring criteria, 
as long as it is apparent that competing minority applicants, especially where 
they have waiting list seniority, are qualified to do the job” and that such 
agencies “ [iIndividually appraise the promotion potential and training needs 
of minority employees, and take action necessary to permit advancement.” 
Report at 126; 118 Cong. Rec. 1818 ( 1972).

28 The amending legislation as originally adopted by the House did not 
contain the provision extending coverage to state and local agencies, as did 
the Senate version. The Committee of Conference recommended the Senate 
version. See Conference Report, S. Rep. No. 92-681, 92d Cong.. 2nd Sess., 
15 ( 1972); H R. Rep. No. 92-899, 92d Cong., 2nd Sess. 15 ( 1972).



24

of employment discrimination in governmental agencies, 
particularly those involving law enforcement. According to the 
House of Representatives Report:

“The problem of employment discrimination is 
particularly acute and has the most deleterious effect 
in these governmental activities which are most vis­
ible to the minority communities (notably education, 
law enforcement, and the administration of justice) 
with the result that the credibility of the government’s 
claim to represent all the people equally is negated.

“This widespread discrimination is evidence that 
State and local governmental units have not in­
stituted equal employment opportunity required by 
the national policy to eliminate discrimination in 
employment.” (H.R. Rep. No. 92-238, 92d. Cong.,
1st Sess. 17 (1971 )(emphasis added )).

See also S. Rep. No. 92-415, 92d Cong., 1st Sess. 10 (1971). 
Similar remarks were made on the floor of the Senate. For 
example, Senator Javits observed:

“The employment discrimination problem is 
especially acute in areas where there is heavy minor­
ity population. This goes for law enforcement, for 
education, and for the administration of jus­
tice. . . [w]hen the special nature of the state and 
local governmental activity involved is considered, 
the case for ending this kind of discrimination is even 
stronger” (118 Cong. Rec. 581 ( 1972)).29 
The legislative history of the Equal Employment Opportu­

nity Act of 1972 has been recognized repeatedly as reflecting 
endorsement of race-conscious remedies.30 This history is 
hardly consistent with any reading of a Congressional intention 
to bar the voluntary implementation of such programs by 
governmental agencies. Indeed, Congress intended state

29 See also. e.g.. 118 Cong. Rec. 3978-79 ( 1972), (remarks of Sen. 
Moss); 118 Cong. Rec. 1840 (1972) (remarks of Sen. Cooper); 118 Cong. 
Rec. 591 ( 1972) (remarks of Sen. Humphrey).

30 See Bakke, supra. 438 U.S. at 353 n.28 (Opinion of Brennan. White. 
Marshall, & Blackmun, JJ,); Teamsters v. United States, 431 U.S. 324, 391- 
394 ( 1977) (Opinion of Marshall & Brennan, JJ .); see E.E.O.C. Guidelines 
on Affirmative Action, 29 C.F.R. § 1608.4.



25

agencies to “ lead the way” in the adoption of such programs.31
Still further support for reading Title VII as amended to 

endorse voluntary affirmative action programs by public as well 
as by private employers is provided by the construction given 
the statute by the federal agencies entrusted with its adminis­
tration.32 The Guidelines on Affirmative Action issued by the 
Equal Employment Opportunity Commission, the agency spe­
cifically authorized to promulgate such regulations, 42 U.S.C. 
§ 2000e-12, set forth a three-step procedure to be followed by 
employers “without awaiting litigation or formal government 
action” 29 C.F.R. § 1608.1(b); see id. § 1608.4. These Guide­
lines apply not only to private employers, but to all other 
persons subject to Title VII as defined in Section 701(a) of the 
Act, including governmental agencies. 29 C.F.R. § 1608.1(b). 
The inclusion of governmental agencies is consistent with the 
principles developed in both prior and subsequent adminis­
trative policy statements, including the Policy Statement on 
Affirmative Action Programs for State and Local Government 
Agencies previously adopted by the Equal Employment 
Opportunity Coordinating Council,33 the Memorandum on 
Permissible Goals and Timetables in State and Local Govern­
ment Employment Practices,34 and regulations issued by the

31 See S. Rep. No. 92-415, 92d Cong. IstSess. (1971), reprinted in part 
at 118 Cong. Rec. 1070, 1071 (1972): 118 Cong. Rec. 1815 ( 1972) (remarks 
of Sen. Williams); 118 Cong. Rec. 1817 ( 1972): 118 Cong. Rec. 581 (1972) 
(remarks of Sen. Javits).

32 Their interpretation is entitled to great judicial deference. E.g., Griggs 
v. Duke Power Co., 401 U.S. 424, 434 ( 1971 ); Albemarle Paper Co. v. Moody, 
422 U.S. 405, 431 ( 1975 ). Compare Nashville Gas Co. v. Satty, 434 U.S. 136, 
142 n.4 ( 1977).

33 41 Fed. Reg. 38814 ( 1976). This policy statement expressed the views 
of the EEOC, the Department of Justice, the Department of the Treasury, the 
Department of Labor, the Civil Service Commission, and the Commission on 
Civil Rights. The Equal Employment Opportunity Coordinating Council was 
abolished and all of its functions transferred to the EEOC by President 
Carter’s Reorganization Plan No. 1, 43 Fed. Reg. 19807 ( 1978).

34 2 Employment Practices Guide (CCH ) 1)3775 (1976). This statement 
of policy was developed by the EEOC, the Department of Justice, the Civil 
Service Commission, and the Department of Labor’s Office of Federal 
Contract Compliance. Id. at 2096.



26

Department of the Treasury,35 and by the Law Enforcement 
Assistance Administration.36

Finally, this Court’s rationale in approving voluntary 
affirmative action by private employers in Weber is equally 
applicable to public employers. The overriding Congressional 
design behind the 1972 extension of Title VII to public agencies 
was to eliminate traditional patterns of racial segregation in 
public service. As in Weber, “an interpretation [of Title VII] 
that forbade all race-conscious affirmative action would ‘bring 
about an end completely at variance with the purpose of the 
statute and must be rejected.” Weber, 443 U.S. at 201-02. In 
public service no less than private employment, voluntary 
compliance is “ the preferred means for achieving” this objec­
tive. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 ( 1974). 
Moreover, state agencies, like private employers, are subject to 
civil liability for violations of Title VII. Fitzpatrick v. Bitzer, 
supra. As was true for private employers in Weber, see 443 U.S. 
at 209-10 (Blackmun, 1, concurring), requiring a public agency 
to expose itself to liability to minority employees as the price of 
remedying a pronounced racial imbalance in its work force 
would deter the adoption of those measures which it is the 
principal purpose of Title VII to encourage.

C. The Department of Corrections Affirmative Action 
Plan—Designed Both To Remedy Prior Dis­
crimination And To Advance Other Correctional 
Objectives—Is Permissible Under Weber.

While the trial did not focus upon the overt discrimination 
which historically permeated the Department of Corrections, 
there is nonetheless ample evidence that the Department’s 
Affirmative Action Plan was adopted to remedy the dis­
criminatory employment patterns which existed throughout the

35 See 31 C.F.R. §§ 51.53(d), 51.60(c). The Office of Revenue Sharing, 
in the Department of the Treasury, enforces the civil rights provisions of the 
State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1242.

36 28 C.F.R. § 42.203. The LEAA administers federal financial assis­
tance to state and local law enforcement agencies and enforces the anti- 
discrimination provisions of the Omnibus Crime Control and Safe Streets Act 
of 1968, as amended. 42 U.S.C. § 3766(c), and the Juvenile Justice and 
Delinquency Prevention Act of 1974, 42 U.S.C. § 5272.



27

Department when the Plan was adopted. See pp. 2-4, supra. 
The Department’s analysis of its work force contained within 
the Affirmative Action Plan reflects a traditional pattern of 
racial segregation sufficient to justify the adoption of appropri­
ate affirmative action measures under Weber. 443 U.S. 193 at 
202, 208. This evidence unquestionably constituted prima facie 
proof of prior discriminatory employment practices by the 
Department of Corrections,37 and was entirely unrebutted by 
the Petitioners.

Moreover, as indicated above, prior to the entry of judg­
ment, the Department moved to supplement the record to 
clarify further the nature of the discriminatory practices that 
had plagued and continued to affect the Department of Correc­
tions. The disturbing—indeed shocking—evidence which the 
Department proffered is summarized in Appendix B to this 
brief. The Superior Court rejected this proffer as irrelevant. 
Although the Court of Appeal observed that the trial court 
might properly have excluded the evidence on procedural 
grounds, it also held that such evidence could be considered 
should there be further proceedings below. Petn. App. A23. 
Thus, this case cannot be considered on the plainly incorrect 
premise suggested by Petitioners, that the Affirmative Action 
Plan was not adopted to remedy the Department’s longstand­
ing discriminatory employment practices.

In reversing the Superior Court, the California Court of 
Appeal relied on the substantial correctional purposes which 
are served by the Department’s program, and the

37 Teamsters v. United States, supra, 431 U.S. at 339-40 n,20; Hazelwood 
School Dist. v. United States, 433 U.S. 299, 307-08 ( 1977); Dothard v. 
Rawlinson, 433 U.S. 321, 329-31 ( 1977); United States v. City of Miami, 614 
F.2d 1322, 1339 (5th Cir. 1980); Detroit Police Officers Ass’n v. Young, 608 
F.2d 671, 686 (6th Cir. 1979); Boston Chapter NAACP, Inc. v. Beecher, 504 
F.2d 1017, 1020 n.5 (1st Cir. 1974), cert, denied, 421 U.S. 910 (1975). The 
trial judge’s comments suggesting that no further evidence was necessary to 
establish prior discrimination (R.T. 344, 380, 426-27, 661-62, 708, 883) may 
be taken as tantamount to judicial notice of matters which, particularly in 
view of the record before Congress cited above and the numerous judicial 
findings of unlawful discrimination by law enforcement agencies, are appro­
priate subjects for judicial notice. United Steelworkers v. Weber, supra, 443 
U.S. at 199 n. 1; Detroit Police Officers Ass’n v. Young, supra, 608 F.2d at 690- 
691; cf. Electrical Workers Local No. 35 v. City o f Hartford, 625 F.2d 416 (2d 
Cir. 1980).



2 8

reasonableness of that program within the standards articulated 
by this Court. As discussed in Sections III(C) and (D ), infra, 
these objectives are indeed proper and compelling, and the 
Department’s program well-tailored to achieve them without 
trammeling the rights of non-minority employees. Contrary to 
Petitioners’ assertions (Pet. Br. 3, 13, 32), these objectives are 
not inconsistent with the Department’s concurrent objective of 
eliminating the consequences of prior discriminatory employ­
ment practices. Indeed, as noted repeatedly in the 1972 
Congressional debates, discrimination by public entities, 
particularly law enforcement agencies, is “doubly destructive” 
(e.g., S. Rep. No. 92-415, 92d Cong., 1st Sess. 10 (1971); 118 
Cong. Rec. 1815 ( 1972) (remarks of Sen. Williams)), because 
it adversely affects both the treatment of minority employees 
and the minority community’s perception of the governmental 
agency. By increasing the representation of minorities and 
women at all levels and at all penal institutions throughout the 
Department, the Plan rectifies the prior underutilization and 
mistreatment of minority and women officers, and in doing so, 
thereby enhances the Department’s performance of its 
correctional mission. See pp. 43-50, infra.

No question concerning the significance of expressing the 
Plan’s goals as percentages of the inmate population, or of the 
necessity for doing so, was explored by either the parties or the 
courts in the proceedings below, so that examination of this 
single feature of the Plan by this Court at this time would be 
inappropriate. Cardinale v. Louisiana, 394 U.S. 437, 438 
(1969); Crowell v. Randell, 10 Pet. 368, 391 ( 1836); cf. 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 
252, 271 ( 1977). Moreover, since the record does not disclose 
whether, over the life of the Plan, the promotion rate of 
minorities has exceeded the proportion of minorities in the 
Department—the relevant labor force of applicants for promo­
tion38— it is entirely conjectural whether expression of the

38 The focus of attention throughout has been upon promotion, the only 
matter of direct interest to Petitioners, who already hold or represent 
individuals who hold positions in the Department. The Court of Appeal 
found that the evidence did not support a finding of discrimination in hiring 
(Petn. App. A17), and Petitioners’ Brief refers to no such evidence.



29

program’s goals in terms of the inmate population rather than 
of the labor market has made or ever will make any difference 
to anyone. This is especially true since, as the Court of Appeal 
found, the Plan’s percentages are not fixed quotas, but merely 
non-mandatory goals for evaluating program performance.

However, if this Court should consider the issue, the 
expression of the Department’s goals as percentages of the 
service population would render the program no less acceptable 
under Title VII. The high percentage of minority inmates, and 
the objectives discussed at pages 43-50, infra, to which the 
Department’s goals are responsive, are themselves very much 
the product of the broader societal mistreatment of those racial 
minorities which the Civil Rights Act of 1964 was designed to 
redress. Since the legislative history of the 1972 amendments 
reflects a strong Congressional purpose to improve effective law 
enforcement among minorities (see pp. 21-24, supra), to the 
extent the Department of Corrections program considers race 
for this very purpose, it hardly runs afoul of the restrictions of 
Title VII. As four Justices of this Court pointed out in Bakke: 

“Even assuming that Title VII prohibits employ­
ers from deliberately maintaining a particular racial 
composition in their work force as an end in itself, 
this does not imply, in the absence of any consid­
eration of the question, that Congress intended to bar 
the use of racial preferences as a tool for achieving 
the objective of remedying past discrimination or 
other compelling ends.” (438 U.S. at 340 n.17 (Opin­
ion of Brennan, White, Marshall, & Blackmun, JJ.) 
(emphasis added)).

Cf. Los Angeles Department o f Water and Power v. Manhart. 
435 U.S. 702, 716 n.30 ( 1978).

Furthermore, the language of Sections 703(a) and 703(b), 
42 U.S.C. §§ 2000e-2(a) and (b), must be read to prohibit 
only the invidious forms of racial discrimination which the 
statute was designed to remedy. United Steelworkers v. Weber, 
supra; Bakke, 438 U.S. at 284-287 (Opinion of Powell, J.); id. 
at 337-340 (Opinion of Brennan, White, Marshall, & Black­
mun, JJ.); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 
800-01 ( 1973); Griggs v. Duke Power Co., supra, 401 U.S. 424,



30

429-30 ( 1971). Employment goals designed to improve prison 
security, enhance inmate rehabilitation, and counteract racial 
prejudice among white officers against minority inmates and 
fellow officers (see pp. 43-50, infra) stigmatize no one, because 
they are not drawn on the presumption that one race is inferior 
to another and they do not put the weight of government 
behind racial hatred and separatism. Bakke, supra, 438 U.S. at 
357-58, 366. Cf. Johnson v. Board of Education, 604 F.2d 504, 
516 (7th Cir. 1979), cert, granted, —U.S.—, 48 U.S.L.W. 3852 
(July 2, 1980); Parent Ass’n. o f Andrew Jackson High School v. 
Ambach, 598 F.2d 705, 719-20 (2d Cir. 1979); Otero v. New 
York City Housing Auth., 484 F.2d 1122, 1132-37 (2d Cir.
1973); Kings. Harris, 464 F. Supp. 827, 837 (E.D.N.Y.), a jf’d 
614 F.2d 1288 (2d Cir. 1979). Accordingly, they cannot be 
regarded as “discrimination” proscribed by Title VII. Id. at 
340 n. 17; Bakke v. Regents of the University of California, 
supra, 18 Cal. 3d at 67-68; see Fullilove v. Klutznick, —U.S.—, 
48 U.S.L.W. at 4998 (Opinion of Marshall, J. with Brennan & 
Blackmun, JJ.); Sedler, Beyond Bakke: The Constitution and 
Redressing the Social History o f Racism, 14 Harv. C.R.—C.L. 
L. Rev. 133, 156-163 (1979).

Even if the language of Sections 703(a) and (b), read 
literally, were deemed to proscribe the Department’s program 
to the extent that it strives for a racial balancing of correctional 
officers and inmates, the statutory language should still be 
subject to an implied defense for compelling reasons of public 
policy consistent with the basic purpose of the statute.39 See 
generally, Blumrosen, Strangers in Paradise: Griggs v. Duke 
Power Co. and the Concept o f Employment Discrimination, 71

39 The Department does not rely upon the bona fide occupational 
qualification (“bfoq” ) exception contained in Section 703(a), 42 U.S.C. 
§ 2000e-2(e). Under the bfoq exception, all persons of a particular religion, 
sex or national origin may be excluded from consideration in connection with 
an employment decision based upon a determination that no members of that 
class are likely to be qualified for the position. See, e.g., Dothard v. 
Rawlinson, supra, 433 U.S. at 333-36; Usery v. Tamiami Tours, Inc., 531 F.2d 
224, 236 (5th Cir. 1976); Diaz v. Pan American World Airways, Inc., 442 
F.2d 385 (5th Cir.), cert, denied, 404 U.S. 950 ( 1971 ); Weeks v. Southern 
Bell Telephone and Telegraph Co., 408 F.2d 228, 235 ( 5th Cir. 1969). No 
such class exclusion may be made on racial grounds, and the Department’s 
Affirmative Action Plan does not do so.



31

Mich. L. Rev. 59, 81-89 ( 1972); Annot. 36 A.L.R. Fed. 9 
( 1978). An employer may defend against a prima facie 
showing of racially disparate treatment by showing a “ legiti­
mate, nondiscriminatory reason” for an employment decision. 
McDonnell Douglas Corp. v. Green, supra, at 802. And, 
although the statute contains no such explicit exception, an 
employer may defend against a prima facie showing that 
employment practices have a discriminatory impact by showing 
the job-relatedness of those practices. “Title VII prohibits 
practices, procedures, or policies which have an adverse impact 
unless they are justified by business necessity.” 29 C.F.R. 
§ 1608.3 (emphasis supplied). See also Griggs v. Duke Power 
Co., supra, 401 U.S. at 431. While this Court has not had 
occasion to apply such an exception to practices involving 
explicit consideration of race, as opposed to practices facially 
neutral but adversely affecting certain racial groups, there is no 
reason why such an exception should not be equally available 
in such situations. See Miller v. Texas State Board o f Barber 
Examiners, 615 F.2d 650, 653-654 (5th Cir.), cert, denied 49 
U.S.L.W. 3231 (Oct. 7, 1980). Provided that application of the 
exception is circumscribed by stringent standards to ensure that 
it is not misused,40 compelling public safety objectives may on

40 In Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert, 
dismissed, 404 U.S. 1006 (1971), the Fourth Circuit suggested a standard to 
govern the applicability of the business necessity defense, similar to that 
which has been applied to the Equal Protection Clause:

“Collectively these cases conclusively establish that the 
applicable test is not merely whether there exists a business 
purpose for adhering to a challenged practice. The test is 
whether there exists an overriding legitimate business purpose 
such that the practice is necessary to the safe and efficient 
operation of the business. Thus, business purpose must be 
sufficiently compelling to override any racial impact; the chal­
lenged practice must effectively carry out the business purpose it 
is alleged to serve; and there must, be available no acceptable 
alternative policies or practices which would better accomplish 
the business purpose advanced, or accomplish it equally well with 
a lesser differential racial impact.” [footnotes omitted]

United States v. South Carolina, 445 F. Supp. 1094 (D.S.C. 1977), aff'd, 
434 U.S. 1026 (1978), suggests an alternative standard of “whether there is 
available to the employer an alternative practice that would achieve his 
business purpose equally well but with a lesser disparate impact by race. In 
examining alternatives, the risk and cost to the employer are relevant.” Id. at 
1115.



32

relatively rare occasions render essential the express consid­
eration of racial factors just as business necessity may justify 
consideration of neutral factors which have a racially dis­
proportionate impact. Failure to recognize the exception in 
such situations would create anomalies that Congress certainly 
did not intend by the enactment of Title VII. See Miller v. 
Texas Barber Examiners, supra.

This Court’s recent decision in New York City Transit 
Authority v. Beazer, 440 U.S. 568 ( 1979), holding that the 
refusal of the New York City Transit Authority to employ 
present or former methadone users did not violate Title VII, is 
predicated on an acknowledgement of the legitimacy of “safety 
and efficiency” as employment goals; the decision recognizes 
that rules which bear a “manifest relationship to” such goals do 
not violate Title VII despite their differential impact on minority 
races. 440 U.S. at 587 n.31. See, e.g., Spurlock v. United 
Airlines, Inc., 475 F.2d 216 (10th Cir. 1972). The extraor­
dinary public safety concerns addressed by the California 
Department of Corrections program are certainly no less com­
pelling. See pp. 43-50, infra. The Plan’s employment goals 
therefore must be held to pass muster under Title VII.41

Because no consideration was given by the California 
courts to the permissibility of the inmate-related ratios under 
Title VII, as suggested above these questions may be in­
appropriate for present decision. If this Court determines that 
this issue is necessary to a final determination on the merits, the 
case should be remanded so that the facts and the law may be 
developed, in the first instance, in the trial court. See Time, Inc.

41 The cases cited by Petitioners to support the proposition that racial 
classifications designed to serve the “operational needs” of public employers 
are never permissible (Pet. Br. 30-31) are all inapposite. In most of the cases, 
the rationale was proffered to justify continued racial segregation of school 
children. United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484 
( 1972); Cooper v. Aaron, 358 U.S. 1 ( 1958); Monroe v. Bd. of Comm’rs, 391 
U.S. 450 ( 1968); Brown v. Bd. of Educ., 349 U.S. 294 ( 1955); Cf. Smith v. 
Bd. of Educ., 365 F.2d 770 (8th Cir. 1966). Here, of course, the Depart­
ment’s goal is not continued segregation but increased integration. See 
Johnson v. Bd. of Educ., supra. As to Lee v. Washington, 390 U.S. 333 
( 1968), see pp. 47-48, infra. In Baker v. City o f St. Petersburg, 400 F.2d 294 
(5th Cir. 1968), the Fifth Circuit refused to sanction “the blanket assignment 
of all Negroes and only Negroes to patrol Zone 13”. but explicitly did “not 
hold that the assignment of a Negro officer to a particular task because he is a 
Negro can never be justified.” Id. at 300. 301 (emphasis in original).



33

v. Firestone, 424 U.S. 448, 463-64 ( 1976); Mitchell v. Board of 
Trustees o f Pickens County School Dist., 599 F.2d 582 (4th 
Cir.), cert, denied, 444 U.S. 965 (1979). Even if the Court 
should decide to pass on the question at this time and concludes 
that these goals are invalid under Title VII, such a conclusion 
would not invalidate the Department’s program as a whole. At 
most, this conclusion would justify remand for the limited 
purpose of directing the modification of this single provision of 
the Affirmative Action Plan by restating the goals with refer­
ence to the relevant labor force.

III.
THE FOURTEENTH AMENDMENT DOES NOT BAR

CONSIDERATION OF RACE IN CONNECTION
WITH THE DEPARTMENT OF CORRECTIONS 

AFFIRMATIVE ACTION PLAN.
Petitioners’ primary claim is based not on Title VII, but on 

the Equal Protection Clause. Petitioners no longer assert, as 
they did in the trial court (C.T. 207-11), that consideration of 
race or sex by a state agency is per se unconstitutional, a 
position foreclosed by numerous decisions of this Court.42 
Instead, they contend that the Affirmative Action Plan does not 
survive “strict scrutiny” under the Fourteenth Amendment 
because the Department has failed to show that the Plan 
furthers a compelling state interest. Pet. Br. 27-35. Petitioners 
also contend that the Plan is not narrowly tailored to achieve its 
intended result and that other, non-race-conscious means would 
achieve the same goals. Id. 36-42.

At the outset, we recognize that the Court has not defini­
tively settled the appropriate level of constitutional scrutiny for 
passing judgment on affirmative action plans. The issue has 
engendered considerable scholarly43 as well as judicial

42 E.g., Fullilove v. Klutznick, —U.S.—, 48 U.S.L.W. 4979 (July 2, 1980) 
(hereafter “Fullilove”)-, Bakke, supra; United Jewish Organizations of Wil- 
liamsburgh, Inc. v. Carey, 430 U.S. 144 ( 1977); Swann v. Charlotte- 
Mecklenburg Board o f Education, 402 U.S. 1, 19-20 ( 1971).

43 For articles appearing prior to this Court’s Bakke decision, see Bakke, 
438 U.S. at 288 n.25. See also, e.g., Karst & Horowitz, The Bakke Opinions 
and Equal Protection Doctrine, 14 Harv. C.R.—C.L. L. Rev. 7 ( 1979); Note,

(footnote continued)



34

commentary, but we shall eschew it here. In this case, as in 
Fullilove, the Department’s program “survive[s] judicial re­
view under either ‘test’ articulated in the several Bakke opin­
ions.” 48 U.S.L.W. at 4991 (Opinion of Burger, C.J. )44

A. Remedying the Effects of Identified Prior Dis­
crimination Is a Compelling State Interest.

California’s compelling interest in “ameliorating the dis­
abling effects of identified discrimination” (Fullilove, supra, at 
4992 (Powell, J. concurring)) can scarcely be overstated. “The 
line of school segregation cases, commencing with Brown, 
attests to the importance of this state goal and the commitment 
of the judiciary to affirm all lawful means toward its

(footnote continued)
Benign Steering and Benign Quotas: The Validity o f Race-Conscious Govern­
ment Policies to Promote Residential Integration, 93 Harv. L. Rev. 938, 949- 
52 ( 1980); Wright, Color-Blind Theories and Color-Conscious Remedies, 47 
U. Chi. L. Rev. 213 ( 1980).

44 If, as urged in the remainder of this portion of the brief, the 
Department’s Affirmative Action Plan satisfies the “ strict scrutiny compelling 
state interest” test advanced by Justice Powell in his opinions in Bakke and 
Fullilove, it follows a fortiori that the plan also passes constitutional muster 
under the analysis adopted by Justices Brennan, White, Marshall and 
Blackmun. See Bakke, 438 U.S. at 326 n.l. Under that analysis, “ the proper 
inquiry is whether racial classifications designed to further remedial purposes 
serve important governmental objectives and are substantially related to 
achievement of those objectives.” Fullilove, 48 U.S.L.W. at 4998 ( Marshall, J. 
joined by Brennan and Blackmun, JJ., concurring).

To the extent that this intermediate standard of review incorporates 
elements which are not also subsumed within the compelling state interest 
standard (see Bakke, 438 U.S. at 361), these requirements are also met here. 
The Department’s Affirmative Action Plan does not operate to “stigmatize [ ] 
any discrete group . . . Id. at 373. Non-minority males who are not hired or 
who fail to receive a particular promotion are not “in any sense stamped as 
inferior,” nor is there “a significant likelihood that they will be treated as 
second-class citizens because of their color” throughout their lives. Bakke, 
435 U.S. at 375. The program does not stigmatize as inferior its beneficiaries 
because of the Department’s adherence to promoting only the most qualified 
applicants. Compare Bakke, 438 U.S. at 375-376 and Fullilove, 48 U.S.L.W. 
at 4999. Since the marginal impact of the Plan on non-beneficiaries falls 
equally upon a large number of diverse individuals, the Plan hardly “singles 
out those least well represented in the political process to bear the brunt of a 
benign program.” Bakke, 438 U.S. at 361; Fullilove, 48 U.S.L.W. at 4999. 
The fact that over 70% of all promotions continue to go to non-minorities 
(C.T. 563) confirms that the Department’s Plan does not unduly penalize any 
individuals or groups.



35

attainment.” Bakke, 438 U.S. at 307 (Powell, J .). As the Chief 
Justice noted in Fullilove, achieving “equality of economic 
opportunity” is a “constitutional mandate.” 48 U.S.L.W. at 
4990. Even Petitioners acknowledge that “remedying estab­
lished past discrimination may be a compelling state interest 
sufficient to justify the limited use of racial classifications by a 
public entity.” Pet. Br. 31.

The Affirmative Action Plan adopted by the Department 
of Corrections grew out of a pattern of historical under­
representation of minorities comparable to the backdrop 
against which the statute upheld in Fullilove was enacted. 
Compare 48 U.S.L.W. at 4982-86 with pp. 2-4, supra. This 
underrepresentation was the result of prior discriminatory 
practices within the Department. See pp. 26-27, supra. Peti­
tioners contend that this evidence is constitutionally insufficient 
to sustain the plan because “ the Fourteenth Amendment has 
consistently been held to require prior intentional dis­
crimination to justify imposition of racial classifications” (Pet. 
Br. 34 (emphasis in original)). This argument apparently is 
based on the unarticulated premises that the use of race­
conscious remedial measures is permissible only to remedy 
prior illegal discrimination; that Title VII did not apply to the 
Department until 1972; that, prior to that year, state agencies 
violated the law only if they engaged in the intentional 
discrimination proscribed by the Fourteenth Amendment under 
Washington v. Davis, 426 U.S. 229 ( 1976), and that the 
Department’s discrimination prior to 1972 was unintentional.

This argument is meritless for several reasons. First, its 
factual assumption concerning the nature of the past dis­
crimination within the Department is neither consistent with the 
record (see pp. 2-4, supra; Appendix B infra) nor supported by 
any findings of the trial court. See n. 17, supra. Second, it is 
not the law that only prior discrimination which was illegal at 
the time of its commission may be voluntarily remedied. To the 
contrary, Fullilove indicates that prior discrimination need not 
be illegal in order to be correctible. Cf. United Steelworkers v. 
Weber, supra. The Chief Justice’s opinion in that case upheld 
the legality of the 10% set-aside without ever inquiring whether 
the prior discrimination on the part of federal grantees which 
the set-aside was designed to counter violated applicable law.



36

Nor did Justice Marshall’s opinion propose such an inquiry. 
And while Justice Powell found that “purposeful discrimination 
[had] contributed significantly to the small percentage of 
federal contracting funds that minority business enterprises 
[had] received” ( id. at 4995), the report on which he based 
that conclusion in fact found a mix of both overt and facially 
neutral discrimination, the latter of which would not have been 
illegal under the statutes and constitutional provisions cited by 
Justice Powell.45 The urgency of remedying prior dis­
crimination simply does not depend on whether that dis­
crimination was illegal at the time of its commission.

Third, even if Respondents were required to show that the 
acts sought to be remedied constituted violations of law. 
Petitioners’ argument overlooks the fact that California has 
since at least 1959 prohibited both intentional and uninten­
tional racial discrimination in the state civil service. Section 
19702 of the California Government Code, enacted in 1945, 
provides in relevant part that “ [a] person shall not be dis­
criminated against under . . . [the state civil service law] 
because o f . . . race . . . .” This statute has never been construed 
by the California courts to bar only intentional dis­
crimination.46 Moreover, Section 1420(a) of the California

45 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and the 
Fourteenth Amendment—each cited by Justice Powell—bar only intentional 
discrimination. As to 42 U.S.C. § 1981, see Guardians Ass'n. v. Civil Serv. 
Comm’n, —F.2d—, 23 EPD U 31,153 (2d Cir. 1980); Mescall v. Burrus, 603 
F.2d 1266 (7th Cir. 1979); Manzanares v. Safeway Stores, Inc., 593 F.2d 968 
(10th Cir. 1979); Williams v. DeKalb County, 582 F.2d 2 (5th Cir. 1978); and 
Grigsby v. North Mississippi Medical Center. Inc., 586 F.2d 457 ( 5th Cir. 
1978); but see Davis v. County of Los Angeles, 566 F.2d 1334 ( 9th Cir. 1977 ), 
vacated as moot, 440 U.S. 625 ( 1979); and Kinsey v. First Regional Securities, 
Inc., 557 F.2d 830, 838 n.22 ( D.C. Cir. 1977) (dictum). As to Title VI, a 
majority of this Court held in Bakke that it “proscribe[s j only those racial 
classifications that would violate the Equal Protection Clause or the Fifth 
Amendment.” Bakke, supra, at 287 (Powell, J . ); see also id. at 328-55 
(Opinion of Brennan, White, Marshall & Blackmun, JJ).

46 This section has been cited by the California Court of Appeal as 
authority for an affirmative action plan similar to that at issue here. Dawn v. 
State Personnel Bd., 91 Cal. App, 3d 588, 593 ( 1979). The Assistant 
Executive Officer of the California State Personnel Board reported to the 
Assembly Committee on Public Employees and Retirement that the Griggs

(footnote continued)



37

Labor Code, part of the California Fair Employment Act 
(FEPA), since 1959 has prohibited employers, including the 
state (§ 1413(d)), from “discriminat[ing] . . .  in compensation 
or in terms, conditions or privileges of employment” because of 
race, and the California courts have held that discriminatory 
intent need not be shown to establish a violation of that section. 
Northern Inyo Hospital v. Fair Employment Practice Commis­
sion, 38 Cal. App. 3d 14, 25 (1974). Whether the dis­
crimination practiced against minority employees of the 
Department prior to 1972 was intentional or not, it was a 
violation of California law and thus constitutionally remediable 
under any of the theories enunciated in Bakke and Fullilove.

B. The Department Was Authorized To Adopt Its 
Affirmative Action Plan To Remedy the Effects of 
Identified Prior Discrimination Found To Exist by the 
California Legislature, Congress and the Department.

In his opinions in Bakke and Fullilove, Justice Powell has 
taken the position that “ the legitimate interest in creating a race 
conscious remedy is not compelling unless an appropriate 
governmental authority has found that [a constitutional or 
statutory violation] has occurred.” Fullilove, supra, 48 
U.S.L.W. at 4992-93 (Powell, J., concurring); Bakke, supra, 
438 U.S. at 307-09 (Opinion of Powell, J .). This standard 
presents no difficulty here since the California Department of 
Corrections has specifically been authorized—indeed, com­
pelled—to adopt an affirmative action plan in response to the 
underutilization of minorities within its work force. Its Plan is 
supported by findings by the California Legislature, by Con­
gress, and by the Department of Corrections itself.

In the Spring of 1971, the California Assembly Committee 
on Employment and Public Employees held two days of

(footnote continued)
case and the Equal Employment Opportunity Act of 1972 had not had a great 
impact on California, because state law “ long had specific provisions requir­
ing nondiscrimination in hiring and the use of job-related selection proce­
dures,” citing Cal. Gov’t Code §§ 18930 and 19702. Letter of January 21, 
1976 from Burton W. Oliver to the Honorable Wadie Deddeh, Attachment 
“A” at 2; see also State Personnel Board Bill Analysis of AB 674 ( 1972 ).



38

hearings on racial discrimination in the state civil service.47 This 
Court had recently decided Griggs v. Duke Power Co., 401 U.S. 
424 (1971), and much of the testimony focused on the adverse 
impact which the State’s job qualification and examination 
process had on minorities.48 During these hearings, both 
legislators and witnesses commented on the low percentage of 
minorities in the Department of Corrections.49

Following the hearings, the Assembly Committee issued a 
“July, 1971 Report on California As An Equal Opportunity 
Employer.” (hereafter “Committee Report” ) Under the head­
ing, “Need for Affirmative Action”, the Committee stated:

“The Committee concludes that the mere prohibition
of discriminatory practices is not enough to effectuate

47 Copies of the California legislative materials cited in the following 
pages have been lodged with the Clerk and furnished to Petitioners. Judicial 
notice of these materials unquestionably is proper. Massachusetts v. Westcott, 
431 U.S. 322, 323 n.2 ( 1977); Shapiro v. United States, 335 U.S. 1, 14 n. 19 
(1948); Preisler v. Secretary of State, 257 F. Supp. 953, 960-66 ( W.D. Mo. 
1966), a jf’d, 385 U.S. 450 (1967); see also Fullilove, 48 U.S.L.W. at 4981-84 
(Opinion of Burger, C.J.); id. at 4994-95 (Opinion of Powell, J .); Zablocki v. 
Redhail, 434 U.S. 374, 388 and nn.13-15 ( 1978).

48 For example, William Burns, Chairman of the Technical Advisory 
Committee on Testing to the California Fair Employment Practices Commis­
sion, testified that the civil service examinations used by the State Personnel 
Board would be unacceptable under the Griggs decision because there was 
“very little, if any, evidence indicating that their tests are related to the job.” 
Transcript of Hearing of Assembly Committee on Employment and Public 
Employees Relating to Charges of Discrimination in State Hiring Practices 
(May 12, 1971) (hereafter “ May, 1971 Transcript” ) at 17. He also stated 
that the “ Rule of Three” (under which a state agency hires from the three 
highest scoring applicants on a particular test) discriminated against minor­
ities. Id. at 12-13. Other testimony concerned civil service job qualifications 
which, like the high school diploma requirement in Griggs, had an adverse 
impact on minorities and were not job-related. Id. at 10; Transcript of 
Hearing of Assembly Committee on Employment and Public Employees 
Relating to Charges of Discrimination in State Hiring Practices (April 28, 
1971) (hereafter “April, 1971 Transcript” ) at 24. Testimony also established 
that the adverse impact which the State’s facially neutral civil service policies 
had on minorities was the result of prior discrimination. May 1971 Transcript 
at 6.

49 April, 1971 Transcript at 12. In the course of reviewing the recruit­
ment process for correctional officers, Assemblyman Ketchum stated that the 
possibility of bias in the oral examination process was “part of this whole 
discrimination problem.” Id. at 14-15. Another witness testified that the lack 
of Mexican-American prison superintendents resulted from discrimination in 
the Department of Corrections. Id. at 87.



39

the principle of equal opportunity in state employ­
ment. An affirmative action program is needed to 
achieve this goal.” (Id. at 10).50
On September 23, 1971, Governor Reagan issued Execu­

tive Order No. R-34-71, which redefined the “California Code 
of Fair Practices.” The Executive Order stated that “ [t]ime 
and experience have shown that laws and edicts of nondiscrimi­
nation are not enough” to achieve equal opportunity; thus, “a 
personal commitment to affirmative action” on the part of each 
citizen was required. The Code of Fair Practices promulgated 
with the Executive Order required each state agency to promul­
gate “clear, written directives to . . . guarantee equal employ­
ment opportunities at all levels of state government.” Id. 
California Code of Fair Practices at 2. The Executive Order 
also required the State Personnel Board to “ take positive steps 
to insure that the entire civil service process is free from 
conscious, unconscious, or inadvertent bias of any kind.” Id.

On February 1, 1974, Governor Reagan issued a memo­
randum to the heads of all California agencies and departments 
concerning the “State Equal Employment Opportunity Pro­
gram.” Ex. G at 48. The memorandum announced that the 
State Personnel Board had “accepted the leadership responsi­
bility” in the State’s affirmative action efforts and required each 
state agency and department to “develop and submit to the 
[State]Personnel Board written equal employment opportunity 
policies and an affirmative action plan by July 1, 1974 . . . .” Id. 
The Legislature indicated its approval of the Governor’s order 
when it enacted Government Code § 19702.5, Stats. 1974, ch. 
1395, requiring the State Personnel Board to provide the Fair 
Employment Practices Commission with a copy of each

50 The Committee’s report also contained several recommendations for 
administrative action by the State Personnel Board, all of which were later 
incorporated in a resolution passed by the California Legislature. Assembly 
Concurrent Resolution No. 157. Among other things, the Resolution required 
the State Personnel Board to review its examination procedures in accordance 
with Griggs (U2) and to seek out members of minority groups to serve as 
raters on oral interview panels to guard against the possibility of racial bias in 
oral examinations. Id. U 5. In 1972, the state Civil Service Act was amended 
by including the specific requirement that hiring and promotion conform to 
the federal Civil Rights Act of 1964, Cal. Gov’t. Code § 19702.1. and, in effect, 
to the teaching of this Court in Griggs. Id. § 19702.2.



40

affirmative action plan submitted by a state agency. The 
Department of Corrections’ Plan was promulgated on July 1, 
1974, in compliance with Governor Reagan’s directive.

The statewide commitment to affirmative action, which 
prompted the initial adoption of the Department’s Affirmative 
Action Plan in 1974, was reconfirmed prior to the extension of 
the Department’s Plan in 1979. In 1977, the California 
Legislature adopted a “State Civil Service Affirmative Action 
Program.” Stats. 1977, ch. 943, Cal. Gov’t. Code §§ 19790-97. 
In enacting this statute, the Legislature declared:

“ [b]eyond assurances of nondiscrimination, it is the 
policy of the State of California to have each state 
hiring unit initiate comprehensive written affirmative 
action programs which will take steps to remedy any 
disparate staffing and recruitment patterns.” Stats.
1977, ch. 943 § 1(c).

Section 19790 provides that “each agency and department is 
responsible for establishing an affirmative action program” and 
directs that “each agency and department shall establish goals 
and timetables designed to overcome any identified under­
utilization of minorities and women in their respective 
organizations.” These provisions unquestionably reflect the 
public policy of the State of California. Price v. Civil Service 
Commission, 26 Cal. 3d 257, 276, 277, petition dismissed as 
moot, —U.S.—, 49 U.S.L.W. 3244 (Oct. 6, 1980).®i

Thus, by the time it enacted Government Code Sections 
19790-97, the Legislature had considered evidence reflecting 
the underutilization of minorities in the State work force,51 52 and

51 In this injunctive action, the Court must take the law as it now is, not 
as it was when the action was commenced. Bradley v. School Bd., 416 U.S. 696 
(1974). Moreover, when the Assembly considered the bill which enacted 
Government Code Sections 19790-97 (AB 1350), it was told that the bill 
“would simply codify present state affirmative action procedures.” Legislative 
Analyst’s Analysis of Assembly Bill No. 1350 at 2.

52 In its 1971 hearings, the Assembly Committee on Employment and 
Public Employees had discussed a 1969 Report to the Governor giving an 
ethnic breakdown of the state’s work force. See Committee Report at 6. The 
Legislature later passed Assembly Concurrent Resolution No. 157 which, 
inter alia, required the State Personnel Board to “establish a permanent 
ethnic data reporting system to provide the Legislature with a periodic review 
of the number of blacks, Mexican-Americans and other minorities in the 
employ of the State of California.” Id. f  1. Commencing in 1973, the State 
Personnel Board has annually provided this information to the Legislature.



41

showing that this underutilization was due to prior dis­
crimination.53 In requiring each state agency to undertake 
affirmative action efforts to remedy any underutilization of 
minorities within its work force, the Legislature concluded that 
any such underrepresentation was the result of “disparate 
staffing and recruitment patterns” (Stats. 1977, Chap. 943, 
§ 1(c)) which had discriminated against minorities. See also 
Cal. Gov’t Code §19793. Like the Congress which passed the 
MBE set-aside, the Legislature concluded that more positive 
steps than merely proscribing discrimination were required to 
rectify the effects of such discrimination.54

The California Legislature is not the only legislative body 
which has recognized the existence of racial discrimination in 
state employment. The Congress—which is “expressly charged 
by the Constitution with competence and authority to enforce 
equal protection guarantees” (Fullilove, supra, 48 U.S.L.W. at 
4989 (Opinion of Burger, C.J.) (—explicitly found such dis­
crimination to exist when it amended Title VII in 1972 to 
proscribe discrimination in state and local employment ( see pp. 
21-24, supra), and reconfirmed that determination when it

53 In 1974 and 1975, the Assembly Committee on Employment and 
Public Employees held hearings relating to discrimination in the state civil 
service similar to its 1971 hearings. At the outset of the 1974 hearings, the 
Chairman of the Committee, Assemblyman Deddeh, explicitly linked 
affirmative action with the need to remedy prior discrimination, by both 
society-at-large and the State as an employer. Transcript of Hearing of 
Assembly Committee on Employment and Public Employees Relating to 
Equal Employment Opportunity in State Service (September 12, 1974) at 2-3. 
In connection with the 1975 hearings, the State Personnel Board submitted a 
“Supplemental Report” which advised the Committee that discriminatory 
practices were still “deeply imbedded” in the State’s employment structure. 
State Personnel Board, Supplemental Report to Assembly Committee on 
Public Employees and Retirement at 1 (December 4, 1975). The 
Supplemental Report also stated that “the State of California has, as the 
major focus of its equal employment efforts, affirmative actions beyond 
neutral “nondiscriminatory” and “merit-hiring” policies.” Id.

54 There can be no doubt that the Legislature was fully competent both 
to find that minorities were underrepresented in the state civil service as a 
result of the agencies’ prior discriminatory practices and to authorize state 
agencies to take effective steps to remedy this disparity. Unlike the Congress, 
which has only such authority as may be granted by the Constitution, the 
California Legislature may “exercise any and all legislative powers which are 
not expressly or by necessary implication denied to it by the constitution.” 
Methodist Hosp. v. Saylor, 5 Cal. 3d 685, 691 ( 1971 ).



42

adopted the Crime Control Act of 1973, 87 Stat. 197, and the 
Crime Control Act of 1976, 90 Stat. 2407, 42 U.S.C. § 3766(c); 
see 119 Cong. Rec. 20070 ( 1973) (remarks of Rep. Jordan); 
122 Cong. Rec. 34118 (1976) (remarks of Rep. Conyers). 55

In addition to the findings by Congress and the California 
Legislature, the Department of course was aware of its own 
prior discriminatory practices when it adopted its Affirmative 
Action Plan.56 The breakdown of the Department’s work force 
by ethnicity and gender contained in the Plan, Ex. G at 25-39, 
“disclosed appreciable imbalances in the ethnic and sex 
distributions of the California Department of Corrections per­
sonnel.” Id. at 24. And the Department’s top administrators 
had personal knowledge that this imbalance was due to prior 
discrimination. See, e.g., R.T. 338, 707-08. Nothing in Justice 
Powell’s Opinion in Bakke can fairly be read to impair the 
ability of a responsible public agency to conclude, on the basis 
of its own self-examination, that it has been guilty of prior 
discrimination. Indeed, in that case it was conceded that the 
University had not itself discriminated. Bakke, 438 U.S. at 296 
n.36. When an agency turns its scrutiny inward and concludes 
that its own practices have had the intended or unintended 
result of discriminating against minority groups, the amorphous 
quality of the inquiry into “societal discrimination” that trou­
bled Justice Powell in Bakke completely disappears.

55 Of course Congress made no specific findings concerning the Califor­
nia civil service in general or the Department of Corrections in particular. Of 
necessity, Congress usually acts on a national level, not on a case-by-case 
basis. See Oregon v. Mitchell, 400 U.S. 112, 284 ( 1970) (Stewart, J., 
concurring and dissenting). The absence of specific Congressional findings 
relating to California is as constitutionally irrelevant in this case as the 
absence of Congressional findings that discrimination in federal contracting 
had occurred in the New York area (the geographical location of the Fullilove 
plaintiffs) was in that case. See Fullilove, 48 U.S.L.W. at 4989; United States 
v. City of Miami, supra, 614 F.2d at 1337-38.

56 Under California law, the Department of Corrections is the agency 
entrusted with authority to administer state prisons. See California Penal 
Code §§ 5002, 5054; 15 Cal. Adm. Code §§ 3000, et seq.; People v. Horton, 
264 Cal. App. 2d 192 ( 1968). These general provisions in and of themselves 
may well constitute a sufficient delegation of authority to the Department to 
determine the need for and to adopt a remedial affirmative action program. 
See Sweezy v. New Hampshire, 354 U.S. 234, 256 ( 1957) (Frankfurter, J., 
concurring); National League of Cities v. Usery, 426 U.S. 833 ( 1976); Sedler, 
supra, 14 Harv. C.R.—C.L. L. Rev. at 168.



43

In all events, here the Department’s knowledge of its own 
prior practices does not stand alone. The adoption of the 
Affirmative Action Plan was premised not only on self-review, 
but also on the Governor’s command that an affirmative action 
program be promulgated and Congressional findings that 
“widespread discrimination” against minorities in state employ­
ment existed throughout the nation. By the time a successor 
plan was adopted in 1979, the gubernatorial command had 
been reinforced by a further legislative mandate, accompanied 
by legislative findings of prior discrimination in the state civil 
service. The Department’s adoption and retention of its 
Affirmative Action Plan is thus supported by constitutionally 
sufficient authorization and findings.

C. The Department’s Affirmative Action Plan Furthers 
the State’s Compelling Interests in Promoting Prison 
Security and Fostering Inmate Rehabilitation.

Because of social problems deeply ingrained in our society, 
racial and ethnic minorities are significantly overrepresented 
among the inmate population. While approximately half of the 
inmates within California’s penal institutions are black or 
Mexican-American, historically the prison staff has been almost 
exclusively white male. See pp. 4-5, supra.57

Within the prison population, deep-seated racial hostility is 
a sad reality with which prison administrators must contend on 
a daily basis. The testimony at trial established-—and Petition­
ers admit—that California’s prisons are “plagued by racial 
gangs.” Pet. Br. 26; see also R.T. 340-41, 476, 560, 627, 899;
C.T. 525, 561. Many inmates in California’s prison system are 
“intensely conscious of race” and “potentially violent and 
assaultive.” C.T. 510. Many “have never had a satisfactory 
relationship with anyone of another race. The only contact 
which many minority inmates have had with white persons has

57 This situation is not peculiar to California, but exists in most other 
states. “ For too long, minority groups have been overrepresented as 
offenders and underrepresented as staff. Affirmative action is required to alter 
the situation created by years of discrimination and indifference.” National 
Advisory Commission on Criminal Justice Standards and Goals. Corrections 
599 ( 1973 ). See also, e.g., U.S. Commission on Civil Rights, Civil Rights 121 
(1963); New York State Special Commission on Attica, Attica: The Official 
Report, 106-107 ( 1972) (hereafter “Attica Report”).



44

been with authority figures and these experiences have general­
ly been unfortunate for the inmate.” C.T. 501. Until the 
adoption of the affirmative action program, “ the resentment of 
minority inmates against white authority figures was further 
reinforced by a prison situation where the overwhelming major­
ity of correctional officers was white.” Id.

Because of these attitudes, the specter of racial violence is 
ever-present in California’s prisons. E.g., R.T. 548-64, 896-99; 
C.T. 494-96, 501, 560-61. The existence of racial hostility 
within the prisons has been confirmed by academic studies,58 
the writing of minority inmates,59 prison disturbances in Cali­
fornia’s prisons and elsewhere,60 and numerous California

58 Attica Report 39-40, 79-82, 106-07; Carroll, Hacks, Blacks and Cons 
91-113. 187, 188 (1974). According to this study:

“ In brief, the white custodians regard the black inmates with 
a mixture of hostility and fear derived from several sources. As 
members of the white middle class, they share many of the 
traditional stereotypes of blacks and see their status threatened 
by the current wave of black militancy. As correctional officers in 
a reform-oriented institution, many of their powers and much of 
their status had been eroded, and this threat—coincident during 
the latter part of the study period with incidents such as the 
Attica tragedy—is interpreted to a large extent in racial terms.
Thus, on the one hand, the officers see the black prisoners as lazy, 
ignorant, crude and hypersexual; on the other hand, they view 
them as dangerous, conspiring revolutionaries whose intentions 
are not only to challenge the authority of the custodians but quite 
possibly to seek control of the institution by means of open 
rebellion.

“Such conceptions differ markedly from those the custodians 
have of the white inmates . . .” (Id. at 126-27).

See also, e.g., Denfeld & Hopkins, Racial-Ethnic Identification in Prison: 
‘Right On from the Inside,’ 3 Int. J. Criminology & Penology 355. 363-65 
( 1975); Jacobs, Stratification and Conflict Among Prison Inmates, 66 J. Crim. 
L. & Criminology 476 ( 1975); Burdman, Ethnic Self-Help Groups in Prison 
and On Parole, 20 Crime & Delinquency 107, 116-117 (1974); Wilbanks, The 
Report of the Commission on Attica, 37 Fed. Probation 3, 4-5 (March 1973).

59 See, e.g., Malcolm X and Alex Haley, Autobiography o f Malcolm X  
(1964); Cleaver, Soul on Ice ( 1968); Jackson, Soledad Brother: The Prison 
Letters of George Jackson ( 1970).

60 See e.g., Serrill, Profile California, 1 Corrections 3, 33 (Sept. 1974); 
The Task Force to Study Violence, Report and Recommendations (1974) 
(Record, Ex. “C”; not in evidence); Attica Report; Fox, Racial Issues in

(footnote continued)



45

appellate cases which describe specific racial incidents.61 This 
Court has also recognized the unremitting tension that exists 
behind prison walls.62

There can thus be no doubt of the imperative need to 
ameliorate these conditions. At stake is not only the orderly 
and efficient administration of California’s correctional system, 
but the safety of officers, inmates and, on occasion, visitors and 
other members of the public who may be touched by prison 
outbursts. Respondents need not denigrate the First Amend­
ment interest in academic diversity found by Justice Powell to 
be a compelling governmental interest in Bakke to state that it 
scarcely compares, in terms of human life and limb, with the 
“self-evident” interest in preserving prison order repeatedly 
recognized by the Court. Jones v. North Carolina Prisoners’ 
Union, supra, 433 U.S. at 132 ( 1977). Petitioners—as prison 
guards—have a very real and direct stake in preserving prison 
security; not surprisingly, they advise the Court that they do not 
“dispute[] the interest of the State in reducing racial conflict 
and violence in its prison system.” Pet. Br. 28.

Nor can there be any doubt that increasing the minority 
composition of the correctional work force at all levels is 
essential to the accomplishment of this task. There is, in 
general, greater cultural identification between inmates and 
officers of the same race, which often enables an inmate to 
relate more easily to an officer of the same race. R.T. 324-25, 
343, 344, 383, 445, 459-61, 620-32, 853, 892-901; C.T. 502, 
5 2 5-526.63 There is also a greater ability to communicate—not
(footnote continued)
Corrections: Cultured Awareness—How to Achieve It, in Proceedings of the 
102nd Annual Congress of Correction of the American Correctional Associ­
ation 178-80 (1972); Burger, Our Options are Limited, 18 Vill. L. Rev 165 
167 (1972).

61 See, e.g., People v. Gardner, 56 Cal. App. 3d 91, 93 ( 1976); People v. 
Hisquierdo, 45 Cal. App. 3d 397, 405 ( 1975); Spain v. Procunier, 408 F. 
Supp. 534, 539 (N.D. Cal. 1976), a ff’d in part, rev’d in part, 600 F.2d 189 
(9th Cir. 1979).

62 E.g., Jones v. North Carolina Prisoners Union, 433 U.S. 119, 132 
( 1977); Wolff v. McDonnell, 418 U.S. 539, 562 (1974).

63 Although Petitioners’ witnesses expressed some contrary views {e.g., 
R.T. 758-59), those witnesses did not, of course, purport to express the 
reasoning of the Department administration. While the Superior Court

(footnote continued)



46

only between Spanish speaking Mexican-American officers and 
inmates, but also between other minority staff and inmates 
whose “ghettoese” is often unfamiliar to white officers from 
different backgrounds. R.T. 478-79, 550, 564-65, 591, 654-55, 
842, 846-47, 853, 893-99, 903; C.T. 500-02, 525-26. And 
improved communication is an important start to the elimina­
tion of friction and needless confrontations. C.T. 502, 504.

Because of this shared cultural identification, minority 
inmates often will react to the same treatment from minority 
officers more favorably than from officers of a different race. 
R.T. 561, 846-47, 896-97; C.T. 502, 510, 525-26, 541. The 
presence of minority officers also provides a communication 
vehicle by which administrators are more certain to be advised 
of inmate grievances and to become aware of prisoner dis­
content and impending outbursts. C.T. 496-97, 526.64 In 
potentially explosive situations, an officer of the same race may 
be able to quiet a group of inmates that would react violently if 
approached by an officer of a different race. R.T. 896-97; C.T. 
494-96, 525-26; see also Lee v. Washington, 390 U.S. 333, 334 
(1968)(concurring opinion); Baker v. City o f St. Petersburg, 
400 F.2d 294, 301 n. 10 (5th Cir. 1968). In such situations, the
(footnote continued)
rejected as irrelevant numerous findings of fact proposed by both sides 
concerning the effects on inmates and prison conditions of increasing the 
number of women and minority officers and supervisors (C.T. 621-23, 646-48, 
1080-81; R.T. 1427-33), the court did, in Finding No. 19, find that because of 
the conditions within California prisons, in making job assignments it is 
necessary to consider the race and sex of employees “ in order to serve the 
compelling state interest in promoting the safety of correctional officers and 
inmates, encouraging inmate rehabilitation, minimizing racial tensions, and 
furthering orderly and efficient prison management.” Petn. App. F6.

64 The Chief Justice has written that “every penal institution” should 
have a “proper grievance procedure [ ] a “means of having complaints 
reach decision making sources through established channels so that valid 
grievances can be remedied and spurious grievances exposed.” Burger, supra, 
at 170 (1972). But unless there are minority correctional officers who are 
trusted by minority inmates to act fairly with their grievances, the means of 
communication between inmates and custodians will be blocked. See Pepper. 
Prisons in Turmoil, 36 Fed. Probation 3, 4 (December 1972); Joint Commis­
sion on Correctional Manpower and Training, Differences That Make The 
Difference, p. 67 (1967); Jacobs & Grear, Dropouts and Rejects: An Analysis 
of the Prison Guard’s Revolving Door, 2 Crim. J. Rev. 57 (Fall 1977).



47

presence or absence of minority officers may have a direct and 
immediate bearing on whether life is lost or needless bloodshed 
averted. See, e.g., C.T. 494-96, 504, 525-26, 560-61.

This Court’s sensitivity to the special needs of prison 
administration has led it, on many occasions, to accommodate 
constitutional guarantees to the “self-evident” interest in pre­
serving order and authority in the prisons.65 As the Court 
stated in Bell v. Wolfish, 441 U.S. 520 (1979):

“Prison officials must be free to take appropriate 
action to ensure the safety of inmates and corrections 
personnel and to prevent escape or unauthorized 
entry. Accordingly, we have held that even when an 
institutional restriction infringes a specific con­
stitutional guarantee . . . the practice must be eval­
uated in light of the central objective of prison 
administration, safeguarding institutional security.”
(Id. at 547).
These cases cannot be distinguished on the ground that 

they involve merely the constitutional rights of convicted felons, 
for they also hold that rights of members of the public may be 
curtailed due to the compelling state interests in maintaining 
prison order and security. Thus the Court in Procunier v. 
Martinez, supra, after holding that censorship of prison mail 
restricts First and Fourteenth Amendment rights of those who 
correspond with prisoners (id. at 409), went on to hold that 
censorship was nonetheless justified if it furthered “one or more 
of the substantial governmental interests of security, order, and 
rehabilitation.” Id. at 413. See also Pell v. Procunier, supra, 
417 U.S. at 829-835; Adderley v. Florida, supra, n.65.

If the rights of persons only tangentially connected to the 
prison may be curtailed in the interests of orderly prison 
administration and security, the same is certainly true of prison 
employees whose occupational duties are intimately related to 
prison operation. The Fourth Amendment rights of prison 
employees “may be diluted by the specialized requirements of 
discipline, safety and security” necessary for operation of a

65 Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 ( 1977); 
Procunier v. Martinez, 416 U.S. 396 ( 1974); Pell v. Procunier, 417 U.S. 817 
(1974); Saxbe v. Washington Post, 417 U.S. 843 (1974); Houchins v. KQED. 
438 U.S. 1 ( 1978); Adderley v. Florida, 385 U.S. 39 ( 1966).



48

prison. Gettlemen v. Werner, 377 F. Supp. 445, 451 (W.D. Pa.
1974) ; United States v. Kelley, 393 F. Supp. 755 (W.D. Okla.
1975) . And persons holding analogous government positions, 
such as policemen, probation officers, or military personnel, 
may find their rights substantially restricted. Brown v. Glines, 
444 U.S. 348 (1980); Kelley v. Johnson, 425 U.S. 238 ( 1976); 
Parker v. Levy, 417 U.S. 733, 753-757 ( 1974).66

The compelling state interest in maintaining prison security 
has led the Court to permit use of racial and sexual criteria in a 
manner which accommodates the legitimate needs of prison 
administrators. When the Court banned racial segregation in 
prisons, it did so only after finding that the District Court’s 
order requiring desegregation made due “allowance for the 
necessities of prison security and discipline,” and three Justices 
added explicitly in concurrence that “prison authorities have 
the right, acting in good faith and in particularized circum­
stances, to take into account racial tensions in maintaining 
security, discipline, and good order in prisons and jails.” 
Lee v. Washington, supra, 390 U.S. at 333, 334 (Black, Harlan, 
and Stewart, JJ., concurring).67 See also Cruz v. Beto, 405 U.S. 
319 ( 1972) (“racial segregation, which is unconstitutional 
outside prisons, is unconstitutional within prisons, save for ‘the 
necessities o f prison security and d i s c i p l i n e I d .  at 321 (em­
phasis added)). The “peculiarly inhospitable” environment of 
Alabama’s prisons has been held to justify the refusal of prison 
administrators to allow women to serve in “contact positions” 
in all-male maximum-security institutions, despite the fact that 
the Court simultaneously held the “bona fide occupational 
qualification” exception to Title VII to be “extremely narrow.” 
Dothard v. Rawlinson, 433 U.S. 321, 334, 336 ( 1977).

There is an additional interest furthered by the Depart­
ment’s Plan which is sufficiently compelling to justify it: inmate

66 See also, e.g., Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977), cert, denied, 
434 U.S. 1087 (1978); Phillips v. Adult Probation Department, 491 F.2d 951 
(9th Cir. 1974).

67 In Fullilove, Justice Powell cited the three-Justice concurrence in Lee v. 
Washington as evidence of the general proposition that “ in narrowly defined 
circumstances, the presumption [that official action based on racial criteria is 
inherently suspect and invalid] can be rebutted.” Fullilove, at 4992 (Powell, 
J., concurring); see also Bakke, 438 U.S. at 287 (Powell, J.).



49

rehabilitation. Such rehabilitation is among the important 
governmental interests served by the maintenance of penal 
institutions. Procunier v. Martinez, supra, 416 U.S. at 412; Pell 
v. Procunier, supra, 417 U.S. at 823.

The integration of minority members throughout the 
correctional work force has a direct and salutory effect on 
prisoner rehabilitation. C.T. 510. Minority officers provide role 
models with whom minority inmates identify and whose con­
duct they may seek to emulate. C.T. 504, 526, 542. The 
presence of minority officers, particularly in positions of super­
vision and authority, helps demonstrate to minority inmates 
that those in authority understand their concerns and will treat 
them fairly.68

68 “ [ B]lack inmates will make a better adjustment to prison life and will 
conform better to prison routine and requirements if they believe affir­
matively that members of their race are being treated fairly and without 
discrimination on account of race.” Holt v. Hutto, 363 F. Supp. 194, 205 (E.D. 
Ark. 1973), a jf’d in part and rev’d in part sub. nom. Finney v. Ark. Bd. Corr., 
505 F.2d 194 (8th Cir. 1974). Compare McClelland v. Sigler, 327 F. Supp. 
829, 831 (D. Neb. 1971), a ff’d, 456 F.2d 1256 (8th Cir. 1972).

The need for integration at all levels of the correctional hierarchy to 
prevent racial discrimination against inmates, and the necessity for explicit 
consideration of race in achieving this goal, are exemplified by the protracted 
litigation involving the Arkansas Board of Corrections. There the court 
rejected the contention that racially neutral hiring was an adequate means to 
alleviate racial discrimination against inmates:

“This is not a fair employment practices case. The question 
is not whether the Department is discriminating against blacks in 
matters of hirings, promotions, or discharges, but whether the 
recruitment and promotional policies of the Department are 
designed to correct or alleviate the racial imbalance of the 
Department’s staff which has contributed so much to the diffi­
culties that the Department has had in the area now under 
consideration.

“What the Department needs to do is not to hire people 
without regard to race but to make a conscious effort to hire 
qualified blacks in additional numbers and to place them in 
positions in the institutions which will enable them to exercise 
some real authority and influence in the aspects of prison life with 
which black inmates are primarily concerned.

“The Department needs more blacks who are in positions 
that will enable them to sit on classification committees and on 
disciplinary panels, to counsel with inmates about their problems, 
and to supervise inmates while at work.” Finney v. Hutto, 410 F.
Supp. 251, 267 (E.D. Ark. 1976), a jf’d, 548 F.2d 740 (8th Cir. 
1977), aff’d, 437 U.S. 678 ( 1978).



50

For these reasons and others,69 there can be no doubt that 
several compelling public interests justify the Department’s 
Affirmative Action Plan. “A correctional population where 
minority groups are highly overrepresented can hardly be well 
served by a staff that is overwhelmingly white.” National 
Advisory Commission on Criminal Justice Standards and 
Goals, Corrections, 474 ( 1973).70 Indeed, it is difficult to 
imagine a context in which more demanding public objectives 
might justify such governmental action.71

69 Increasing the number of minority correctional officers also protects 
minority inmates against unconstitutional racially discriminatory treatment. 
C.T. 526-27. See also Diamond v. Thompson, 364 F. Supp. 659, 667 n.6 
(M.D. Ala. 1973). Prisoners do not shed their right to be free from racial 
discrimination at the prison gate. Lee v. Washington, supra; Cruz v. Beto, 
supra; McClelland v. Sigler, supra; Thomas v. Pate, 493 F.2d 151 (7th Cir. 
1974); United States v. Wyandotte County, 480 F.2d 969 ( 10th Cir.), cert, 
denied. 414 U.S. 1068 (1973); Holt v. Hutto, supra; Gates v. Collier, 349 F. 
Supp. 881 (N.D. Miss. 1972), a ff’d, 501 F.2d 1291 (5th Cir. 1974). 
Discriminatory treatment of minority inmates is a well documented phenome­
non in prisons staffed by predominantly white personnel (e.g., Attica Report, 
pp. 39-40; Carroll, supra, pp. 116-123, 127-130 (1974); Gates v. Collier, 
supra, 349 F. Supp. at 887; Holt v. Hutto, supra, 363 F. Supp. at 204) and, 
unhappily, California’s prisons are no exception. C.T. 501, 526-27.

70 See also, e.g., Association of State Correctional Administrators, Uni­
form Correctional Policies and Procedures, Racial Issues 23-24 (1972); ABA 
Commission on Correctional Facilities and Services, A Correctional Must: 
Increased Staff Recruitment from Minority Groups 4-5 ( 1972); Skoler & 
Loewenstein, Minorities in Correction—Nondiscrimination, Equal Opportu­
nity, and Legal Issues, 20 Crime & Delinquency 339 (1974); Pappas, ed., The 
Jail: Its Operation and Management 125 ( 1970); Carroll, supra, at 124-127; 
Attica Report, pp. 79-82, 106-107; National Conference on Corrections, We 
Hold These Truths . . ., p. 85 ( 1971).

71 The objectives to be served in integrating the correctional workforce 
are not unlike those which numerous courts have recognized in ordering other 
law enforcement agencies to hire and promote minority officers. E.g., 
Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Serv. Comm’n, 
482 F.2d 1333, 1341 (2nd Cir. 1973)(“this is not a private employer and not 
simply an exercise in providing minorities with equal opportunity employ­
ment. This is a police department and the visibility of the Black patrolman in 
the community is a decided advantage for all segments of the public at a time 
when racial divisiveness is plaguing law enforcement.” ); Shield Club v. City o f 
Cleveland, 370 F. Supp. 251, 256 (N.D. Ohio 1973) ( “ [a] substantial 
increase in the number of black and Hispanic police officers in the Depart­
ment should assist the Cleveland Police Department in administering its 
overwhelmingly difficult and daily frustrating job of enforcing the law in 
Cleveland. This is particularly true in the “high crime area” to which the 
Impact Cities Program is directed.” ). See also, Erie Human Relations Comm.

(footnote continued)



51

D. No Means Other Than Consideration of Race Would 
Achieve the Same Compelling Governmental Interests.

Under the “strict scrutiny” standard, the Department must 
demonstrate that the burden which the Affirmative Action Plan 
places on white employees is “necessary to promote a substan­
tial state interest” which could not equally be served by means 
other than an explicit racial classification. Bakke, 438 U.S. at 
320 (Powell, J.). The record below supports the reason­
ableness of the Department’s judgment that there are no 
racially-neutral alternatives to its Plan.72 Nor is the effect 
which the Department’s Plan has on white employees unrea­
sonable, in light of the several compelling purposes which the 
Plan serves. This is so for several reasons.

First, the Department’s Affirmative Action Plan affects 
white male officers only imperceptibly, and far less than many 
other forms of affirmative action. While special admission 
programs, such as the one invalidated in Bakke, may in practice 
result in the permanent exclusion of a non-minority applicant 
from professional education, the principal detriment to any 
white males affected by the Department’s program is to 
temporarily defer possible promotion. The record demon­
strates that despite the Department’s Affirmative Action Plan, 
most promotions are still being given to non-minority officers. 
C.T. 563; see Ex. 2, p. 2, R.T. 43, 45, 440-42, 482-83. If as a 
result of the affirmative action effort some white males have not 
obtained a particular appointment they would otherwise have 
received, there is no evidence that these individuals failed to 
obtain a promotion soon thereafter. Morever, the Depart­
ment’s program entails no “ bumping” and removes no employ­
ee from any position or status which he had previously attained. 
Compare Kirkland v. New York State Department of

(footnote continued)
v. Tullio, 493 F.2d 371 (3d Cir. 1974); Pennsylvania v. O’Neill, 348 F. Supp. 
1084 (E.D. Pa. 1972), a ff’d in part and vacated in part, 473 F.2d 1029 (3d 
Cir. 1973) (en banc); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974).

72 While the Department submitted such a proposed finding (C.T. 
1084), the Superior Court did not reach the issue because it deemed racial 
criteria per se invalid. Petitioners’ proposed findings on this issue (C.T. 623- 
24, 649) were similarly rejected. Petitioners’ statements that the Superior 
Court found that the Department’s Plan did not serve the State’s compelling 
interest in secure prisons (Pet. Br. 3-4, 11-13, 27-28) are thus erroneous.



52

Correctional Services, 520 F.2d 420, 429 (2nd Cir. 1975), cert, 
denied, 429 U.S. 823 (1976); Teamsters v. United States, 431 
U.S. 324 (1977). The minimal extent to which the expectations 
of white employees may be affected by the Department’s 
program, as well as the relatively small number of employees 
affected, bears significantly on the reasonableness of the pro­
gram. See Franks v. Bowman Transportation Co., 424 U.S. 747, 
794-99 (1976)(Powell, J., concurring and dissenting); Full- 
ilove, supra, at 4989 (Opinion of Burger, C.J.); id. at 4997 
(Powell, J., concurring).73 Thus, it was not surprising that 
Petitioners were unable to identify any individual who actually 
failed to obtain a promotion due to the Department’s affirma­
tive action policy.

Moreover, the expectations of some white male officers for 
earlier promotions necessarily have been predicated in large 
part on a promotional system in which these officers had a 
decided advantage. Extending somewhat the waiting period 
for promotion is an inevitable consequence of bringing minority 
members within the promotional pool; to the extent that any 
minority members rise faster than they might have done in the 
absence of affirmative action, they may be making up for time 
lost when promotions were not equally available to them, and 
the white officers temporarily passed over in all probability are 
losing nothing which they would have had in the absence of 
prior discrimination.74

Second, the California legislation establishes several layers 
of administrative and legislative oversight for the development 
and implementation of affirmative action plans. The California 
State Personnel Board, an agency charged by the California 
Constitution with the duty to enforce the merit principle in state 
employment, Cal. Const. Art. VII, §§ 1(b), 3(a), is responsible 
for approving all goals and timetables contained in affirmative 
action plans filed by state agencies. Cal. Gov’t. Code § 19790.

73 See also Brest, Foreword: In Defense of the Antidiscrimination
Principle, 90 Harv. L. Rev. 1, 36-41 ( 1976); Davidson, Preferential Treat­
ment and Equal Opportunity, 55 Ore. L. Rev. 53, 75 ( 1976); Poplin, Fair 
Employment in a Depressed Economy: The Layoff Problem, 23 U.C.L.A. L. 
Rev. 177, 202, 224 ( 1975).

74 Karst & Horowitz, Affirmative Action and Equal Protection, 60 Va. L. 
Rev. 955, 965 n.35 ( 1974); see Franks v. Bowman Transportation Co., supra, 
424 U.S. at 767-68; Brest, supra, 90 Harv. L. Rev. at 37 ( 1976).



53

The Board is also required to “ [r]eview and evaluate 
departmental affirmative action programs to insure that they 
comply with federal statutes and regulations.” Id. §19792. 
Each year, the Board must report to the Governor, the Legisla­
ture, and the Department of Finance as to the accomplishment 
of each state agency in meeting its affirmative action goals. Id. 
§19793. The “equal employment opportunity efforts and 
affirmative action progress” of each state agency is then re­
viewed by the Legislature during its evaluation of the annual 
state Budget Act. Id. There is thus continuing oversight to 
ensure that state agencies adhere to proper standards in their 
affirmative action efforts.

Third, an employee who believes that he or she has been 
unjustifiably discriminated against by the Department’s Plan 
has several remedies to challenge its implementation. The 
employee may first pursue a grievance internally within the 
Department of Corrections. The grievance must be pressed first 
with the employee’s immediate supervisor (if the supervisor has 
jurisdiction to provide a remedy) and then, if the decision is 
unsatisfactory, raised with the appropriate division or section 
chief. Ex. 21 at 2. The grievant may then appeal to the 
Director of the Department. Id. These procedures provide for 
quick review75 and ensure that the grievance will come to the 
attention of the highest policy-makers within the Department.

Following exhaustion of internal administrative remedies, 
an employee may appeal to the State Personnel Board, which 
has a mandate “ to insure that unlawful discrimination does not 
occur in the State civil service.” 2 Cal Admin. Code § 547; see 
id. §§ 540 et seq.; R.T. 236-53. Judicial review of the Board’s 
decision may also be had pursuant to California Code of Civil 
Procedure Section 1094.5. See, e.g., Dawn v. State Personnel 
Board, 91 Cal. App. 3d 588 ( 1979).

State law thus provides three different procedural remedies 
for persons who believe they have been aggrieved by the 
Department’s Affirmative Action Plan, in addition, of course, to 
those provided by federal law. Here, as in Fullilove, “ the

75 The first and second grievance levels are required to respond within 15 
days of the submission of the grievance, while the Director has 20 days in 
which to respond. Id.



54

administrative process gives reasonable assurance that . . . 
misapplications of the racial and ethnic criteria can be reme­
died.” 48 U.S.L.W. at 4990 (Opinion of Burger, C J .)76 
Petitioners’ claim that the Affirmative Action Plan provides “no 
appeal rights for non-minorities . . . , adversely affected by it” 
(Pet. Br. 20) is thus misleading. The Plan does not include an 
appeal procedure because such remedies already exist.77

Fourth, the Department’s Affirmative Action Plan was 
designed as a temporary, five-year measure. Ex. G, cover letter, 
11; Ex. R at 18. While the failure fully to achieve its goals 
within the original time period has required the extension of the 
plan, the new plan is for only five additional years and will be

76 While the Department’s Plan does not contain a provision like that 
found in the statute upheld in Fullilove, authorizing the Secretary of Com­
merce to waive compliance with the 10% requirement in appropriate cases, id. 
at 4985, such a provision is not needed. A numerical quota like the MBE 
provision must contain provisions for exceptions where meeting the quota 
may be impossible or inconsistent with the agency’s statutory mandate. But 
the Department’s program is not a quota system; it merely authorizes the 
granting of limited preferences where appropriate in light of the Department’s 
needs for a particular position. The “waiver” is thus inherent in the system; it 
does not need to be grafted on as an extra protection.

77 Throughout the trial, the Superior Court frequently expressed doubt as 
to whether the Department could distinguish individuals who were members 
of minority groups. E.g., R.T. 37-38, 87-88, 191-94, 229-32, 290-300, 355-68, 
679-80. Its findings recite that there is “no scientific or objective basis” for 
such classification, and no dispute-resolution procedure for any complaints on 
the basis of improper classification. Petn. App. F5-F6. Petitioners contend 
that the possibility of an individual improperly claiming a racial preference 
under the Affirmative Action Plan warrants its rejection. Pet. Br. 41-42.

This issue was not raised by the pleadings nor was it an issue at trial. 
Indeed, there was no evidence that a dispute has ever arisen as to whether a 
Department employee had been improperly “placed in one [racial] category, 
instead of another,” nor is there any evidence that the grievance procedures of 
the Department and of the State Personnel Board described above would not 
provide an adequate “dispute-resolution procedure” if such a dispute were to 
arise. Petitioners’ claim is purely speculative and not ripe for adjudication. 
California Bankers Ass’n. v. Shultz, 416 U.S. 21, 56 ( 1974); Communist Party 
v. Subversive Activities Control Bd., 367 U.S. 1, 78 ( 1961).

In any event. Petitioners’ argument leads to absurd results. The 
proposition that before individuals may be classified by race, there must be 
some “scientific” procedure to ensure that the class is not under- or over- 
inclusive, would be equally applicable to desegregation orders, and, indeed, 
orders involving any type of class-based relief for racial discrimination. Such 
a novel requirement would make civil rights litigation virtually impossible.



55

reviewed annually by the State Personnel Board and the 
Legislature in accordance with the comprehensive statutory 
scheme discussed above.

Fifth, the racial hostility and tension plaguing California’s 
prisons simply demands increasing the number of minority 
correctional officers. That is perhaps the principal reason for 
which reformulating the Department’s affirmative action policy 
to exclude consideration of race and sex and to substitute such 
racially neutral characteristics as the ability to relate to minority 
inmates is not a satisfactory alternative. If such a policy forbid 
administrators from taking race into account in making employ­
ment decisions, it would require the Department to close its 
eyes to the fact that inmates react to staff in a race-conscious 
manner, thus affecting the manner in which different applicants 
will be able to perform. See, e.g., C.T. 494-97, 500-02, 504, 
510, 525-26, 542, 560-61. If black inmates need black “role 
models” to increase minority participation in rehabilitative 
programs, more sensitive white correctional officers are not the 
answer. Confronted with many institutions with predominantly 
black and Mexican-American inmate populations, but virtually 
no minority supervisors, the fact that an otherwise qualified 
applicant for a supervisory position is a member of such a 
minority group unquestionably bears upon that applicant’s 
overall qualifications. See Wasserstrom, Racism, Sexism, and 
Preferential Treatment: An Approach to the Topics, 24
U.C.L.A. L. Rev. 581, 585-86 ( 1977).

Sixth, there are no feasible alternatives to consideration of 
race in hiring and promotion by which the Department can 
effectively place meaningful numbers of minority members and 
females at all levels of the Department. Forceful recruitment 
and special training may bring some additional minorities into 
the Department, and furnish them with necessary skills for 
advancement. But recruitment and training are not enough. 
Even assuming that these steps, coupled with a prospective 
policy of nondiscrimination, might eventually produce a work­
force satisfactorily balanced at all levels (but see, e.g., C.T. 
562), this certainly would not happen quickly. Even while the 
Affirmative Action Plan has been in effect, the increase in



56

minority employment has been slow. C.T. 566. Yet rectifying 
the present racial imbalance is urgent in light of the explosive 
conditions within California’s prisons.

The legacy of racial discrimination is such that recruitment 
and training of minority members and women, together with an 
official policy of nondiscrimination, is not presently enough to 
compensate for prior discrimination. R.T. 338, 707-08; C.T. 
503. The difficulties inherent in advancing minorities to 
supervisorial positions are compounded by a low turnover rate 
and the Department’s policy of promoting exclusively from 
within. C.T. 561, 566. At least until such time as minority 
members and women are dispersed fairly throughout the 
supervisory structure, so that all employees are treated and 
evaluated free from the hidden prejudices of a predominantly 
white male administrative organization, minority officers will 
continue to be denied fair opportunity for promotion. C.T. 563; 
see also State Personnel Board, Supplemental Report to Assem­
bly Committee on Public Employees and Retirement at 9.

The Department’s Affirmative Action Plan thus represents 
a considered effort to rectify the effects of historic employment 
discrimination within the Department and carry out the 
Department’s critical mission, while minimizing the repercus­
sions of its program on the understandable concerns of its 
predominantly white male staff. The Department believes that 
there are no feasible alternatives that can be expected to 
accomplish the same objectives. In light of the deference which 
the Court repeatedly has given to prison officials trying in good 
faith to carry out their difficult task,78 the considered judgment 
of the Department should not be lightly set aside.79

78 Bell v. Wolfish, supra, 441 U.S. at 547-48, 568-69; Procunier v. 
Martinez, supra, 416 U.S. at 404-05; Jones v. North Carolina Prisoners’ Union, 
supra, 433 U.S. at 126; Meachum v. Fano, 427 U.S. 215, 228-29 ( 1976); 
Baxter v. Palmigiano, 425 U.S. 308 ( 1976); Wolff v. McDonnell, supra, 418 
U.S. at 561-63; Saxbe v. Washington Post, supra; Pell v. Procunier, supra, 417 
U.S. at 826.

79 Petitioners also attack the Affirmative Action Plan because it was not 
the product of collective bargaining. Pet. Br. 42-44. Their argument 
overlooks the fact that, as of 1974, when the Department adopted the plan, 
state agencies had no duty to meet and confer with employee organizations 
except “upon request” (Cal. Gov’t. Code § 3530) and nothing in the record 
indicates that the CCOA made a request for meet and confer sessions prior to

(footnote continued)



57

IV.

NEITHER TITLE VII NOR THE FOURTEENTH AMEND­
MENT PROHIBITS CONSIDERATION OF GENDER IN 

CONNECTION WITH THE DEPARTMENT OF
CORRECTIONS AFFIRMATIVE ACTION PLAN.

The Department’s history of discrimination against female 
job applicants and employees is unambiguous. As late as 1974, 
women were explicitly barred, as a matter of official policy, 
from both entry level and supervisorial positions. Ex. “ I”; R.T. 
258, 557, 559, 608. Even where women were formally eligible 
for consideration in hiring and promotion, higher standards 
were imposed on them for equivalent positions. R.T. 211.

The legacy of this explicit de jure discrimination was a 
correctional work force in which the percentage of women 
employees in 1973 was less than half that in the California 
labor force as a whole. Ex. “G ” at 22. If one excludes clerical 
employees and other traditionally female positions, the dis­
parity was even greater. Id. at 23-24, 35-36.80 Female 
employees also earned substantially less than their male count­
erparts, the result of their concentration in the clerical and 
subprofessional staff. Id. at 23, 32.

The constitutional validity of the Department’s efforts to 
remedy the effects of its prior discrimination simply cannot be 
doubted. At least three decisions of this Court, Kahn v. Shevin, 
416 U.S. 351 ( 1974), Schlesinger v. Ballard, 419 U.S. 498 
(1975), and Califano v. Webster, 430 U.S. 313 ( 1977), have

(footnote continued)
the adoption of the Affirmative Action Plan. Morever, nothing in either state 
or federal labor law requires an employer to obtain consent of a union before 
taking action affecting its employees. The duty of the employer is only to 
bargain in good faith. H.K. Porter v. NLRB, 397 U.S. 99 ( 1970). Accepting 
Petitioners’ argument would constitutionalize the states’ laws concerning 
collective bargaining with their own employees. Cf. Brand v. Finkel, 445 U.S. 
507 ( 1980) (Powell, and Rehnquist, JJ., dissenting).

80 For example, as of 1973, women accounted for only five of 172 policy 
making adminstrative positions, eight of 342 correctional captains or super­
visors, and 11 of 186 correctional lieutenants. Ex. “G ” at 35-36. By contrast, 
out of a clerical staff of 827, 775 were female. Id.



58

upheld gender-based classifications which served the “ lauda­
tory purpose” of “remedying disadvantageous conditions suf­
fered by women in economic . . . life.” Craig v. Boren, 429 U.S. 
190, 198, n.6 ( 1976). Schlesinger v. Ballard, supra, holds that 
women may be granted preferential treatment in promotion if 
necessary to assure fairness to female employees adversely 
affected by other prior or contemporaneous practices of the 
employer. Kahn v. Shevin, supra, and Califano v. Webster, 
supra, hold that the state may explicitly take sex into account if 
the gender-based classification tends to rectify the subordinate 
status of women in our economy and society.

Like the statutes upheld in Kahn, Ballard and Webster, the 
Department’s Affirmative Action Plan was designed to amelio­
rate the continuing effects of economic discrimination against 
women. Its purpose, like the challenged statute in Ballard, is 
“ to provide women [employees] with fair and equitable career 
advancement programs”. Schlesinger v. Ballard, supra, at 508. 
Since the goal of redressing discrimination against women has 
been held to justify remedial gender-based classifications, the 
constitutionality of the Plan in this regard is clear.81

Indeed, under Kahn and Webster, the Department need 
not even show that it discriminated against female employees in 
order to justify its remedial efforts. The Court in those cases 
upheld favorable treatment of women on the ground that it 
ameliorated “our society’s longstanding disparate treatment of 
women,” without any showing that the defendants themselves 
had been guilty of prior discrimination against women. Cali­
fano  v. Webster, supra, at 317; see also Kahn v. Shevin, supra, 
416 U.S. at 353. In Ballard, the Army’s prior discrimination 
against female officers was conceded to have been legal. Hence 
the claim (Pet. Br. 44-45) that the Department failed to prove 
its own prior discrimination against women is not only factually 
incorrect, but also legally irrelevant.82

81 Petitioners also seem to argue that the Department has failed to show 
that its gender-based employment preferences are supported under California 
law. Pet. Br. at 20, 44-45. Even if this were true, the claimed violation of 
California law is not reviewable here.

82 Petitioners also contend that Respondents are collaterally estopped 
from claiming that they have discriminated against women by the case of

(footnote continued)



59

As with consideration of race, there are other govern­
mental interests justifying consideration of sex in hiring and 
promotion. There is growing recognition of the importance of 
including a fair proportion of female officers at virtually all 
correctional positions to accomplish the compelling state inter­
ests discussed in Part III(C), supra. Evidence in the record 
showed that the presence of women tends to improve inmate 
behavior and reduce violence and, by restoring to institutional 
life a vital element of normal society, often facilitates the task of 
rehabilitation. C.T. 505-06, 511-12; R.T. 444, 485-86, 583, 594, 
611-13; see Ex. 24.83 The compelling importance of easing 
prison tensions and promoting rehabilitation of inmates {see 
pp. 43-50, supra) and the reasons why less explicit alternatives 
to the Department’s program would be inadequate {see pp. 55- 
56, supra) provide as much justification for consideration of sex 
as for consideration of race. Indeed, whatever skills in race 
relations may be imparted by training to white officers, the 
normalizing influence of female presence can hardly be dupli­
cated in the absence of women.

Nor does the Department’s program have a severe impact 
on male officers, as is well-illustrated by contrast with Sehlesin- 
ger v. Ballard, supra. The statute there attacked had the direct 
result of diminishing promotional opportunities available to 
male officers in contrast to female officers similarly situated; 
indeed, the statute imposed automatic loss of employment on 
those male employees who came within its terms. Here, by 
contrast, no male employees have been or will be terminated by 
reason of the Department’s Affirmative Action Plan and, in 
fact, the overwhelming majority of promotions within the 
Department still go to males. C.T. 563.

The same result obtains under Title VII. Weber holds that 
voluntary affirmative action programs designed to remedy

(footnote continued)
Long v. State Personnel Bd., 41 Cal. App. 3d 1000 ( 1974). Pet. Br. 46 n. 12. 
Contrary to their claim that Long upheld “Respondents’ policy of issuing 
“ male-only” certifications” (id.), that case involved certifications issued by 
the California Youth Authority. See 41 Cal. App. 3d at 1003. The 
Department of Corrections was not a party to that suit.

83 See also National Conference on Corrections, We Hold These 
Truths. . . , pp. 94-95 ( 1971); National Advisory Commission on Criminal 
Justice Standards and Goals, Corrections, pp. 379, 476-77 ( 1973).



60

“manifest. . . imbalances in traditionaly segregated job cate­
gories” are permissible under that statute. 443 U.S. at 197. 
Nothing in Weber limits its reach to redressing racial—as 
opposed to gender-based—discrimination. Indeed, it would be 
difficult to imagine a more “ traditionally [sex] segregated job 
category” than correctional officers in all-male prisons. Since 
race-conscious affirmative action efforts may be subject to 
stricter constitutional scrutiny than is applicable to analogous 
actions based on gender ( compare Bakke, 438 U.S. at 302-03 
(Powell, J .) with Califano v. Webster, supra), it would be 
surprising if Weber gave employers less flexibility in seeking to 
redress gender-based wrongs than in seeking to remedy racial 
discrimination.

CONCLUSION

For the reasons advanced above, the decision of the 
California Court of Appeal should be affirmed. Alternatively, 
the writ of certiorari should be dismissed as improvidently 
granted or the action remanded to the state courts for further 
findings and consideration of the issues not heretofore consid­
ered below.

DATED: October 17, 1980.
Stuart R. Pollak 
Steven L. Mayer 
Steven E. Schon 
Howard, Prim, R ice,

N emerovski, Canady & Pollak 
A Professional Corporation

By: Stuart R. Pollak
Attorneys for Respondents 

California Department of 
Corrections and Ruth L. Rushen

Of Counsel:
Constance H enderson, 
State of California 
Department of Corrections



A-l

APPENDIX A

Examinations for the establishment of eligible lists 
shall be competitive and of such character as fairly to test 
and determine the qualifications, fitness and ability of 
competitors actually to perform the duties of the class of 
position for which they seek appointment.

Examinations may be assembled or unassembled, 
written or oral, or in the form of a demonstration of skill, 
or any combination of these; and any investigation of 
character, personality, education and experience and any 
tests of intelligence, capacity, technical knowledge, manual 
skill, or physical fitness which the board deems are appro­
priate, may be employed.

California Government Code § 19702
A person shall not be discriminated against under this 

part because of sex, race, religious creed, color, national 
origin, ancestry, or marital status except that positions 
which in the opinion of the appointing power and the 
board require the services of a specific sex may be reserved 
to that sex.

California Government Code § 19702.1
Hiring and promotion pursuant to this part shall 

conform to the Federal Civil Rights Act of 1964.

California Government Code § 19702.2
Educational prerequisites or testing or evaluation 

methods which are not job-related shall not be employed 
as part of hiring practices or promotional practices con­
ducted pursuant to this part unless there is no adverse 
effect.

Nothing in this section shall be interpreted to limit the 
authority of the State Personnel Board regarding the state 
merit selection and examining program under Article 
XXIV of the California Constitution and this division.

California Government Code § 18930



A-2

(a) The [State Personnel BJoard shall provide to the 
State Fair Employment Practice Commission a copy of 
each affirmative action plan, and all subsequent amend­
ments of such plans, adopted by each state agency, depart­
ment, office or commission.

(b) The board shall annually, commencing January 
1, 1975, submit to the State Fair Employment Practice 
Commission a statistical survey of the employment of each 
state agency, department, office or commission. The 
survey shall include, but not be limited to: sex, age, ethnic 
origin, current employment classification, salary, full-time 
or other employment status, department and adminis­
trative unit, and county of employment of employees.

(c) Such reports and information shall constitute 
public records.

Statutes 1977, Chapter 943 (California Government Code 
§§ 19790-97 (Preamble))

The people of the State of California do enact as follows:
SECTION 1. The Legislature finds and declares that:

(a) The State of California remains committed 
to its policy of nondiscrimination and equal employ­
ment opportunity and to continuing and expanding 
positive programs which will assure the strengthening 
of this policy. To this end the Legislature accepts 
leadership responsibility for insuring that equal em­
ployment opportunities are available to all applicants 
and employees in all agencies and departments in the 
state civil service system.

(b) It is the policy of the Legislature to encour­
age the state civil service system to utilize to the 
maximum all available human resources to provide 
equal employment opportunity to all persons without 
regard to race, color, religion, national origin, political 
affiliation, sex, age, or marital status; and, insofar as 
possible, to achieve and maintain a work force in 
which are represented the diverse elements of the 
population of the State of California.

California Government Code § 19702.5



A-3

(c) Beyond assurances of nondiscrimination, it is 
the policy of the State of California to have each state 
hiring unit initiate comprehensive written affirmative 
action programs which will take steps to remedy any 
disparate staffing and recruitment patterns.

( d ) This equal employment opportunity policy is 
adopted to insure that maximum utilization of human 
resources occurs, that true equality of opportunity is a 
reality with the State of California, and that the rights 
of all employees and applicants are safeguarded.

SECTION 2. Chapter 12 ( commencing with Section 
19790) is added to Part 2 of Division 5 of Title 2 of the 
Government Code, as follows:

CHAPTER 12. STATE CIVIL SERVICE AFFIRMATIVE 
ACTION PROGRAM

California Government Code § 19790
Each agency and department is responsible for estab­

lishing an effective affirmative action program. The State 
Personnel Board shall be responsible for providing state­
wide advocacy, coordination, enforcement, and monitoring 
of these programs.

Each agency and department shall establish goals and 
timetables designed to overcome any identified under­
utilization of minorities and women in their respective 
organizations. Agencies and departments shall determine 
their annual goals and timetables by June 1 of each year 
beginning in 1978. These goals and timetables shall be 
made available to the board for review and approval or 
modification no later than July 1 of each year.

California Government Code § 19791 
As used in this chapter:

(a) “Goal” means a projected level of achieve­
ment resulting from an analysis by the employer of its 
deficiencies in utilizing minorities and women and 
what reasonable remedy is available to correct such 
underutilization. Goals shall be specific by the small­
est reasonable hiring unit, and shall be established 
separately for minorities and women.



A-4

est reasonable hiring unit, and shall be established 
separately for minorities and women.

(b) “Timetable” means an estimate of the time 
required to meet specific goals.

(c) “Underutilization” means having fewer per­
sons of a particular group in an occupation or at a 
level in a department than would reasonably be 
expected by their availability.

California Government Code § 19792
The State Personnel Board shall:

(a) Provide statewide leadership designed to 
achieve positive and continuing affirmative action 
programs in the state civil service.

(b) Develop, implement, and maintain affirma­
tive action and equal employment opportunity guide­
lines.

(c) Provide technical assistance to state depart­
ments in the development and implementation of their 
affirmative action programs.

(d) Review and evaluate departmental affirma­
tive action programs to insure that they comply with 
federal statutes and regulations.

(e) Establish requirements for improvement or 
corrective action to eliminate the underutilization of 
minorities and women.

(f) Provide statewide training to departmental 
affirmative action officers who will conduct super­
visory training on affirmative action.

(g) Review, examine the validity of, and update 
qualifications standards, selection devices, including 
oral appraisal panels and career advancement pro­
grams.

(h) Maintain a statistical information system 
designed to yield the data and the analysis necessary 
for the evaluation of progress in affirmative action and 
equal employment opportunity within the state civil 
service. Such statistical information shall include 
specific data to determine the underutilization of 
minorities and women. The statistical information



A-5

shall be made available during normal working hours 
to all interested persons. Data generated on a regular 
basis shall include, but not be limited to, the 
following:

(1) Current state civil service work force 
composition by race, sex, age, department, salary 
level, occupation, and attrition rates by occupa­
tion.

(2) Current local and regional work force 
and population data of women and minorities.
( i ) Data analysis shall include, but not be limit­

ed to, the following:
(1) Data relating to the utilization by 

department of minorities and women compared 
to their availability in the labor force.

(2) Turnover data by department and occu­
pation.

(3) Data relating to salary administration, 
such as average salaries by race and sex, and 
comparisons of salaries within state service and 
comparable state employment.

(4) Data on employee age, and salary level 
compared among races and sexes.

(5) Data on the number of women and 
minorities recruited for, participating in and pass­
ing state civil service examinations. Such data 
shall be analyzed pursuant to the provisions of 
Section 19704 and 19705.

(6) Data on the job classifications, geo­
graphic locations, separations, salaries, and other 
conditions of employment which provide addi­
tional information about the composition of the 
state civil service work force.

California Government Code § 19793
By November 15 of each year beginning in 1978, the 

State Personnel Board shall report to the Governor, the 
Legislature, and the Department of Finance on the accom­
plishment of each state agency and department in meeting



A-6

its stated affirmative action goals for the past fiscal year. 
The report shall include information to the Legislature of 
laws which discriminate or have the effect of discrimination 
on the basis of race, color, religion, national origin, politi­
cal affiliation, sex, age or marital status. The Legislature 
shall evaluate the equal employment opportunity efforts 
and affirmative action progress of state agencies during its 
evaluation of the Budget Bill.

California Government Code § 19794
In cooperation with the State Personnel Board, the 

director of each department shall have the major responsi­
bility for monitoring the effectiveness of the affirmative 
action program of the department.

California Government Code § 19795
The secretary of each state agency and the director of 

each state department shall appoint an affirmative action 
officer, other than the personnel officer, except in a depart­
ment with less than 500 employees the affirmative action 
officer may be the personnel officer who shall report 
directly, and be under the supervision of the director of the 
department, to develop, implement, coordinate, and moni­
tor the agency or departmental affirmative action program. 
The departmental or agency affirmative action officer shall, 
among other duties, analyze and report on appointments 
of employees, request appropriate action of the 
departmental director or agency secretary, submit an eval­
uation of the effectiveness of the total affirmative action 
program to the State Personnel Board annually, monitor 
the composition of oral panels in departmental exam­
inations, and perform other duties necessary for the effec­
tive implementation of the departmental and agency 
affirmative action plans.

The departmental and agency affirmative action offi­
cers shall be assisted in these responsibilities by an equal 
employment opportunity committee as determined by the 
department whose day-to-day responsibilities are vital to 
the effective implementation of the affirmative action pro­
gram.



A-7

Bureau or division chiefs within a department or 
agency shall be accountable to the department director for 
the effectiveness and results of the program within their 
division or bureau. Each bureau or division may assign an 
administrator to assist the departmental affirmative action 
officer.

All management levels, including firstline supervisors, 
shall provide program support and take all positive action 
necessary to ensure and advance equal employment 
opportunity at their respective levels.

California Government Code § 19797
Each state agency and department shall develop, 

update annually, and implement an affirmative action plan 
which shall at least identify the areas of underutilization of 
minorities and women within each department by job 
category and level, contain an equal employment opportu­
nity analysis of all job categories and levels within the 
hiring jurisdiction, and include an explanation and specific 
actions for improving the representation of minorities and 
women.

California Labor Code § 1413
As used in this part, unless a different meaning clearly 

appears from the context:

(d) “Employer,” except as hereinafter provided, 
includes any person regularly employing five or more 
persons, or any person acting as an agent of an 
employer, directly or indirectly; the state or any 
political or civil subdivision thereof and cities. 
“Employer” does not include a religious association or 

corporation not organized for private profit.
California Labor Code § 1420

It shall be an unlawful employment practice, unless 
based upon a bona fide occupational qualification, or, 
except where based upon applicable security regulations 
established by the United States or the State of California:

California Government Code § 19796



A-8

(a) For an employer, because of the race, reli­
gious creed, color, national origin, ancestry, physical 
handicap, medical condition, marital status, or sex of 
any person, to refuse to hire or employ him or to 
refuse to select him for a training program leading to 
employment, or to bar or to discharge such person 
from employment or from a training program leading 
to employment, or to discriminate against such person 
in compensation or in terms, conditions or privileges 
of employment.

(c) For any person to discriminate against any 
person in the selection or training of that person in any 
apprenticeship training program or any other training 
program leading to employment because of the race, 
religious creed, color, national origin, ancestry, physi­
cal handicap, medical condition, marital status, or sex 
of the person discriminated against.



B-l

APPENDIX B

The following is a summary of the facts concerning the 
history of employment discrimination within the California 
Department of Corrections which the Department offered to 
prove in its Motion to Augment Record. C.T. 670, 688. For the 
sake of completeness and coherence, to the extent that related 
evidence was also presented at trial, references to such evidence 
also are cited below.

Sex-based discrimination within the Department of 
Corrections was a matter of official policy as recently as 1974. 
Written job descriptions explicitly barred qualified women from 
consideration for many positions, both at entry levels and in 
supervisorial capacities. Ex. “I”, R.T. 258, 557, 559, 608; see 
C.T. 874, 880, 945-46, 949, 951-52, 955. Where comparable 
job opportunities did exist, women were required to meet 
higher standards than men. R.T. 211; C.T. 974; 952.

Discrimination within the Department against racial and 
ethnic minorities was more subtle, but nonetheless pervasive. 
Historically, California correctional officers were recruited from 
areas where minority members are not to be found. C.T. 705- 
06, 833, 853-54, 872, 889-90, 899-900, 932-33, 941, 948, 952, 
956, 959, 968. Many of the State’s penal institutions have been 
located in rural areas far removed from urban centers of 
minority populations; most recruitment was by word of mouth 
among family and friends of existing white personnel. C.T. 
705-06, 853-54, 872, 889-90, 932-33, 941, 948, 956, 959, 963- 
64, 968. The Department conducted no recruiting in urban 
ghettos or barrios where large numbers of blacks and Mexican 
Americans reside. Even at those prisons located near large 
concentrations of minority members—such as San Quentin and 
Soledad—no attempt was made to recruit from within those 
areas. C.T. 833, 872, 889-90, 899, 941, 956. Indeed, the 
Department refused as a matter of policy to recruit through 
minority media. C.T. 706, 797.

Rather than seeking out minority applicants, the Depart­
ment of Corrections actively discouraged them. Throughout 
the Department, white officers feared that minority members 
were “radicals”, that they would subvert Department authority, 
and that they might join minority inmates in attacking white



B-2

officers in the event of prison disturbances. C.T. 709, 841-42, 
852, 854, 872-73, 926-27. At many institutions, black and 
Chicano applicants were openly told by administrators that 
they were not welcome. C.T. 837-39, 967. At other institutions, 
such covert mechanisms were employed as intentionally with­
holding notices of job opening, C.T. 706-07, 911, 972, 977, 
falsifying the results of qualifying physical examinations, C.T. 
708, 972-73, 977, and deliberately disqualifying minority appli­
cants on the basis of subjective oral interviews. C.T. 833, 940- 
41. According to the present warden of the California State 
Prison at Folsom:

“In the course of my duties [prior to 1970], I sat on 
interview panels to consider applicants for correc­
tional positions in the camp system. During that 
period, I personally participated on interview panels 
where decisions were made not to hire otherwise 
qualified minority applicants for positions in the 
camp system on the basis that minorities were not 
acceptable in the predominantly Caucasian rural 
communities.” C.T. 883; 18-24.

A disproportionately large percentage of minority applicants 
was excluded on the basis of written entrance examinations 
that, by 1964, were known to be culturally biased. C.T. 707-08, 
948-49, 956, 993-94. A 1964 Departmental memorandum 
acknowledged that “ the non-white who applies to the Depart­
ment of Corrections for the position of correctional officer has 
less than a 10% chance of getting over both the written and oral 
examination hurdles.” C.T. 798.

Those minority members who nonetheless succeeded in 
obtaining employment were discouraged from remaining. Ver­
bal abuse, intimidation and physical harassment were com­
monplace. C.T. 833-34, 836-37, 843-44, 851, 854, 864, 891, 
894-95, 897, 910, 926-27, 936-39, 969, 973, 977-78. As 
described by one white male correctional counselor:

“ [A] critical discriminatory factor in that period and 
one which persists to this day was simply the treat­
ment of minority employees by their peers and 
supervisors in the Department. Deep-seated prej­
udices against Chicanos and Blacks were expressed in



B-3

many ways, all of them calculated to intimidate and 
harass. Minority employees were snubbed, ostra­
cized and often subject to verbal insults and racial 
name-calling such as “nigger”, “buckwheat”, “greas­
er” and “spick”. Often the harrassment was petty in 
nature; lunches would mysteriously disappear from 
locked rooms or be found to contain urine. In other 
cases, the behavior ran to fundamental issues of 
effectiveness and prison security, as when white in­
mates were incited to harass Chicano and Black 
officers.” C.T. 873.

According to one black male officer, later to become an 
associate superintendent:

“ [Bjlack officers at Chino were frequently treated with 
disrespect. On one occasion I was ordered by Sergeant 
Riccardi to bus his dishes although this was not part of 
my duties as a search and escort officer. When I picked 
up the tray of dishes to remove them from the room, 
Sergeant Riccardi kneed me and told me to ‘get a move 
on, boy.’ On another occasion I heard an in-service 
training officer refer to a baton as a ‘nigger head- 
cracker.’ This remark was made to a class which 
included black officers.” C.T, 936-937.
Minority members were denied customary job orientation, 

C.T. 840, 884, 895, 903-04, and conscious efforts were made to 
“bomb out” as many as possible during their probationary 
period. C.T. 840, 844-45, 851, 970. According to one Chicano 
officer, who later became a superintendent, who began his 
career at the California Training Facility at Soledad:

“Every new employee undergoes a probationary 
period during which his performance is closely eval­
uated. Particularly during this period, supervisory 
personnel and staff members go out of their way to 
haze new minority employees. In my own experience 
I recall that I was assigned the gun tower dogwatch 
when I first began as a CO and my lieutenant used to 
creep up on my tower through the weeds frequently, 
trying to catch me asleep and give me a bad report.
New Anglo CO’s received nc similar treatment.” C.T.
851.



B-4

Minority officers customarily received less desirable duty and 
shift assignments and were completely excluded from some of 
the most preferable posts. C.T. 526, 837, 840-41, 845, 849-52, 
879, 883-85, 890, 901, 905-07, 912, 927, 930, 936; R.T. 212-13. 
They often were subjected to arbitrary and unequal discipline. 
C.T. 837, 845, 851, 885, 903-04, 912, 937, 969. As a con­
sequence of this treatment, many blacks and Mexican- 
Americans left the Department. E.g., C.T. 844, 845, 855, 875, 
886-87, 894, 896, 956, 978.

Minority members who did not succumb to such dis­
criminatory practices were denied advancement opportunities 
afforded to white officers. Throughout the Department, minor­
ities were systematically excluded from many of the training 
programs and acting assignments leading to accelerated 
advancement. C.T. 884-86, 890, 911-12, 929-30, 941-942. 
Unvalidated written promotional examinations excluded many 
qualified minority officers from promotional consideration. 
C.T. 708, 912-13, 948-49, 953, 993-95; R.T. 370-71. Many 
more were passed over in oral promotional examinations by 
panels consisting almost exclusively of white males, whose 
prejudices unquestionably influenced the consistently low eval­
uations of minority officers. E.g., C.T. 708-09, 842, 879-80, 
886-87, 942-43, 953-54, 960-61, 967-68, 978; R.T. 372, 824-25, 
833, 872-73, 883. As described by one black officer who finally 
left the Department in frustration (and who returned after 
affirmative action efforts had begun):

“Prior to 1967, I took four written promotional 
examinations and passed each of them. However, in 
each case, my overall score on the promotional 
examination, after including the results of the oral 
examination was a score which was a small fraction 
under 77 (i.e. 76.86 and the like). A score of 77 was 
the minimum passing grade necessary to be placed 
on the promotional list. At one of the oral exam­
inations which I took, one of the questioners in­
dicated clear hostility to me from the start of the 
examination session; before I had said a word, it was 
clear to me that I would not be considered. In 1966, 
when I was walking in to take the oral examination, 
an associate warden asked me why I was wasting my



B-5

time taking the promotional examination. On other 
occasions in 1966, I was told by a program adminis­
trator that I should not expect to receive a promotion. 
Finally, in 1967, I too became discouraged and 
convinced that I could never obtain a promotion 
within the Department of Corrections. That is the 
reason I left the Department in 1967.” C.T. 886-887. 

When a minority member did manage to rise to the top of a 
promotional list, various subterfuges were used to circumvent 
the civil services requirements and to avoid promoting “dumb 
Mexicans” and blacks. See C.T. 853, 877-78, 901-03, 907-08, 
942-43, 955. In several instances where minorities wrere placed 
in supervisory positions, picketing and strikes occurred. C.T. 
709, 879, 969.

Largely because of these discriminatory practices, most 
institutions within the Department were, as of the 1960’s, 
“virtually all white male organizations.” C.T. 704; see also Ex. 
“Q” at 5; R.T. 547, 593, 879, 892-93. In 1963, 91.9% of the 
staff of the Department of Corrections was Caucasian, C. L 983.

Although some progress towards improving the racial and 
sex balance throughout the Department has been made as a 
result of the Affirmative Action Program, see Ex. “N ” at 1-2, 
12, a pattern of resistance to the employment and promotion of 
minorities continues at many levels throughout the Department. 
Newly hired or promoted employees continue to be subjected 
to various forms of harassment, particularly at institutions 
where patterns of staff segregation remain acute. E.g., C.T. 
835, 853, 873, 874-75, 894-95, 897-98, 910-11, 927-28, 929, 
945, 950, 973-74, 978-80. For example, according to the 
Superintendent of California Conservation Center as Susan- 
ville:

“Although the Department’s Affirmative Action 
Program has made substantial progress in alleviating 
racial discrimination at many institutions, certain 
institutions within the Department remain overtly 
hostile to the hiring of minorities and women. At the 
California Conservation Center, which has historical­
ly been a virtually all-white male institution, minority 
employees have been physically attacked, have had 
their tires slashed, have had eggs placed in their



B-6

automobile gasoline tanks, have received threatening 
telephone calls and letters, and have otherwise been 
subjected to direct abuse. When the first black 
lieutenant was assigned to this institution, a snake 
was put into his room at the bachelor officers’ 
quarters. During a visit to the Center shortly before I 
became Superintendent [in September 1976], I saw 
an obscene photograph of a woman and a slogan 
opposing affirmative action for women posted on a 
bulletin board. Other literature criticizing affirmative 
action for minorities has been circulated.” C.T. 890- 
91.

Later, a handbill was circulated by the staff at this institution 
referring to the former Japanese-American Director of the 
Department as “ the esteemed Kamakazi pilot who prefers to 
run the Department through his Goddamned affirmative action 
guidelines”, C.T. 891; Dr. Shockley’s articles on the genetic 
inferiority of blacks were widely distributed among the staff at 
another institution, C.T. 854, and Nazi emblems are still being 
worn at a third. C.T. 929.

There remains a pronounced absence of minorities at 
supervisory levels throughout the Department. As of June 
1976, minorities held only 13.8% of the supervisory positions 
within the prisons, and 16.3% of the supervisory positions 
Department-wide. Ex. “N ” at 17, 24; see also Ex. “L”. At the 
Sierra Conservation Center at Jamestown, where only 11.4% of 
the correctional officers were minorities, only 5.5% (six out of 
109) of the supervisors at that institution were minority mem­
bers. Ex. “N ” at 17.

With respect to continuing discrimination against women, 
the program adminstrator at the California Correctional In­
stitution at Tehachapi stated:

“Although women are no longer overtly ex­
cluded from most Departmental employment and the 
educational requirements for both sexes are now 
identical women continue to suffer from severe sexual 
discrimination in the Department. There has been 
and remains a deep hostility among male personnel 
toward the very idea of women occupying inmate



B-7

supervisory or administrative positions in a men’s 
institution. This hostility is expressed in many ways, 
often directly in blunt language, often indirectly 
through social ostracism and incitement of inmates.
As one example, it has been and continues to be 
common for women officers at the Tehachapi facility 
to receive nuisance telephone calls, both on and off 
the grounds. Indeed, sometimes these calls are 
received over the in-house call boxes during inmate 
counts, leaving little doubt that it is Department 
personnel who are responsible. These calls are 
extremely abusive, similar in kind to one recent 
instance in which the caller stated: ‘Bitch, you’re 
taking up a job from some good man’.” C.T. 874- 
875.
In the opinion of the Department’s leadership, the slack­

ening of affirmative action efforts at this time unquestionably 
would cause a reversion towards the discriminatory patterns of 
the past. This is so largely because of the lingering hostility 
towards minorities and women among the predominantly white 
male middle level supervisors. According to the former Direc­
tor of the Department:

“Since the adoption of the Department’s 
Affirmative Action Program, there has been a visible 
change in the racial composition of the Department’s 
work force, although minorities still are con­
spicuously absent at several institutions and at super­
visory positions in most institutions. As a result of the 
increased number of minority employees, it has be­
come less acceptable for staff members openly to 
express their prejudices towards minorities. 
Nonetheless, in the performance of my duties as 
Director, I am continually reminded that these dis­
criminatory attitudes are still present, although they 
are more difficult to detect. The ingrained prejudices 
of a great many first line and intermediate level 
supervisors are still such that qualified minority mem­
bers are regarded as less capable than white males 
with lesser or, at most, equal qualifications.



B-8

Sometimes without realizing it, supervisors assume 
that a white would be more qualified for a position, 
and do not in fact give fair and equal consideration to 
competing minority applicants. Since the selection of 
the most qualified applicant often depends largely on 
subjective factors, it is especially difficult to prevent 
racial prejudice from adversely affecting the promo­
tion of minority applicants.

“It is still common in the Department to encoun­
ter highly qualified minority employees who for 
many years were passed over for promotion. More­
over, institutionally there is still considerable support 
and protection for white male officers that as a 
practical matter does not exist for minority officers . .

“Thus, if the administration were compelled to 
discontinue its conscious efforts to ensure that quali­
fied minority members are promoted within the 
Department, I believe it is unquestionable under 
present conditions that minorities would not receive 
their fair proportion of promotions and that the slight 
progress in rectifying the historical pattern of dis­
crimination that has been made over the past eight 
years would be quickly undone.” C.T. 979-980 
Given present conditions, the senior administrators and the 

superintendents of every institution in the California prison 
system are unanimous in their view that there is no effective 
alternative to the consideration of the race and sex of applicants 
in making employment selections if minorities and women are 
to receive fair and equal treatment and a balanced work force is 
to be achieved in the foreseeable future; in their view, if “ forced 
to close our eyes to race and sex,” it will be impossible 
effectively to counteract the prejudices against minorities and 
women that are still present after years of discrimination. C.T. 
913, 834-35, 845-46, 880-81, 891-92, 908, 950, 974, 979-80.