Hishon v. King & Spaulding Brief of Amicus Curiae

    wA

NO. 82-940 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1982

ELIZABETH ANDERSON HISHON, 
Petitioner, 

v.
KING & SPAULDING,

A Partnership,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

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

Jack Greenberg 
Charles S. Ralston 
Gail J. Wright*

Suite 2030 
10 Columbus Circle 
New York, NY 10019 
[212]586-8397

Elizabeth Bartholet
Harvard Law School 
Cambridge, Massschusetts 
[617]495-3128

Attorneys for the NAACP 
Legal Defense and Educational 
Fund, Inc.

Dated: May 9 1 983 *Counsel of Record



TABLE OF CONTENTS
Page

Table of Authorities ..................  i
Statement of Interest of

Amicus Curiae ........................ 1
SUMMARY OF ARGUMENT ...................  3
ARGUMENT
I. IN ENACTING TITLE VII, CONGRESS

WAS AWARE OF THE INTENTIONAL 
DISCRIMINATION WITHIN LAW PART­
NERSHIPS AND ITS ROLE IN PER­
PETUATING PAST RACIAL INJUSTICE .. 6
A. Prior to 1964 Overt Racial 

Discrimination Was Prevalent 
Throughout the Institutions 
Which Trained, Regulated,
and Employed Lawyers ........  7

B. Congress Chose Not to Create 
An Exemption to Protect the 
Discriminatory Practices of
Law Partnerships ............. 26

II. RACIAL DISCRIMINATION WITHIN LAW
PARTNERSHIPS REMAINS A SIGNIFI­
CANT BARRIER TO EQUAL EMPLOYMENT 
OPPORTUNITY ....................... 31
A. The Racially Premised De­

cision Making That Persists 
in Most Law Partnerships Is 
Precisely the Type of Barrier 
Title VII Was Intended to 
Eliminate ....................  31

l



B. As A Result of Continued Racial 
Discrimination, Blacks
Remain Dramatically Under­
represented in the Legal 
Profession and in Law
Partnerships .................  41

C. A Failure to Permit Title 
VII Scrutiny of Partnership Promotion Decisions Will 
Have Far-Reaching Effects 
and Inhibit Integration of
the Entire Legal Profession .. 48

CONCLUSION .............................  55
APPENDIX ...............................  1a



TABLE OF AUTHORITIES

Cases: Pa9£
Albermarle Paper Co. v. Moody,

422 U.S. 405 ( 1 975)................  9/27
Anderson v. City of Albuquerque,

690 F.2d 796 (10th Cir. 1982) ....  37
Andrus v. Glover Construction Co.,

446 U.S. 608 ( 1 980)................  29
Bradwell v. Illinois, 83 U.S. (16

Wall.) 1 30 ( 1 873) ..............  10
Brown v. Board of Education of

Topeka, 347 U.S. 483 ( 1 954) ......  13
City of Los Angeles Department 

of Water v. Manhart, 435
U.S. 702 ( 1 978 )....................  36

Connecticut v. Teal, ___ U.S. ___,
50 U.S.L.W. 4716 (June 4,
1982) ..............................  36

County of Washington V. Gunther,
452 U.S. 161 ( 1981 ) ...............  29

Davis v. Califano, 6131 F.2d 957
(D.C. Cir. 1 979)...................  38

Davis v. Weidner, 596 F.2d
726 ( 7th Cir. 1 979 )................  41

Diaz v. Pan American World 
Airways, 442 F.2d 385 (5th 
Cir.), cert, denied, 404 
U.S. 950 (1971) .......

- i i i -

33,34



Cases: Page

Dickerson v. U.S. Steel Corp., 15
Fair Empl. Prac. 752 (E.D. Pa.
1977)...............................  35

Dothard v. Rawlinson, 433 U.S. 321
(1977)..............................  35

Faro v. New York University, 502
F . 2d 1229 (2d Cir. 1 974)........... 40

Fisher v. Hurst, C.I., 333 U.S.
147 (1948).......................... 14

Franks v. Bowman Transport Co.,
424 U.S. 747 ( 1 976)................  55

Griggs v. Duke Power Co., 401 U.S.
424 ( 1 971 ) ....................... 28

In Re Charles Taylor, 48 Md. 2B
( 1 877)..............................  10, 1 1

International Brotherhood of 
Teamsters v. United States,
431 U.S. 324 ( 1 977 )............. 26,28,36

Jepsen v. Florida Bd. of Re­
gents, 610 F .2d 1379 (5th
Cir. 1980).......................... 40

Johnson v. Railway Express
Agency, 421 U.S. 454 (1 975 ) ......... 49

Kohn v. Royall, Koegel & Wells,
59 F.R.D. 515 (S.D.N.Y. 1973)
appeal dismissed, 496 F.2d
1 094 ( 2d Cir. 1 974 )................  37

Kunda v. Muhlenberg College,
621 F. 2d 532 ( 3d Cir. 1 980 ) ......  41

Louisiana v. United States,
380 U.S. 145 ( 1965)................. 27

IV



Cases: Pa.9_e.
McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)................  26
McLaurin v. Oklahoma State Regents,

339 U.S. 637 ( 1 950 )................  14
Missouri ex rel. Gaines v. Canada,

305 U.S. 337 ( 1 938)................  13
Powell v. Syracuse University,

580 F .2d 1150 (2d Cir.), cert.
denied, 439 U.S. 984 (1 978 ).......  40

Scheur v. Rhodes, 416 U.S. 232
( 1 974 )..............................  31

Sipnel v. Board of Regents of 
University of Oklahoma, 332 
U.S. 631 ( 1 948 )....................  14

The Slaughter-House Cases, 83 U.S.
(16 Wall. ) 36 ( 1 873) ............. 10

Sweatt v. Painter, 339 U.S. 629
(1950)..............................  14

Sweeney v. Board of Trustees of 
Keene State College, 569 F.2d 
169 (1st Cir.), vacated and 
remanded on other grounds,
459 U.S. 24 ( 1 978 )................... 40

United States v. Jacksonville 
Terminal Co., 451 F.2d 418
(5th Cir. 1971 )....................  35

University of Maryland v. Murray,
169 Md. 478, 182 A.2d 590 
( 1 936)..............................  13

v



U.S. ex rel: Robinson v. Bar Asso­
ciation of the District of Columbia,
197 F .2d 408 (D.C. Cir. 1952) .....  18

U.S. Postal Service v. Aikens, ___ U.S.
51 U.S.L.W. 4354 April 5,

1983 ...............................  39
Statutes and Regulations:
29 C.F.R. §1 604.2.................... 34
Md. Act of 1 876, ch. 264, §3........  10

Statutes and Regulations:
Md. Act of 1872, ch. 91, §3.......... 10
Md. Code 1860, Art 11, §30........... 10
42 U.S.C. §2000 (a ) et. seq..........  30
42 U.S.C. § 2000e et. seq...........  30
42 U.S.C. § 2000-2 ( i ) ..............  30
42 U.S.C. §3603 (b ) et. seq..........  30
42 U.S.C. §3607......................  30
Legislative History:
110 Cong. Rec. 1 3088 ( 1 964 ) ....... 30,36
118 Cong. Rec. 3802 ( 1 972) ........  30,36
H. Rep. No. 238, 92 Cong., 1st

Sess. (1971) .....................  54
S. Rep. No. 415, 92 Cong., 1st Sess.

(1971) ...........................  54

Cases Page

vi



Rules: Page

Other Authorities:
A.A.L.S. Proceedings, 1964, Part

One: Reports of Committees 159 .... 14
A.A.L.S. Proceedings, 1963,

Part Two 100 ....................... 24,25
37 A.B.A. Reports, 1912..............  16,17
J. Auerbach, Unequal Justice

( 1 976)..... ....................  16, 1 7, 1 9
Baker, Black Lawyers and Corporate 

and Commercial Practice: Some 
Unfinished Business of the Civil 
Rights Movement, 18 How. L. J.
685 ( 1 975 ).......................... 8,21

Bartholet, Application of Title 
VII to Jobs in High Places,
95 Harv. L. Rev. 947 (1982) ......  37,54

Blacks Moving Into Key Legal Posts, 
Washington Post, April 11, 1976,
at A— 1..............................  17

M. Bloomfield, American Lawyers in 
a Changing Society, 1776-1876 
( 1 976)..............................  12

Brown, Racial Discrimination in the 
Legal Profession, 53 Judicature 
385 ( 1 970 ).......................... 52

- vii -

F.R. Civ. P. 12 (b ) (i ) ..............  31



Other Authorities: Page
Carl and Callahan, Negroes and the 

Law, 17 J. of Legal Ed. 250 
( 1 964-65)........................ 52

Civil Rights, Report of United 
States Commission on Civil Rights (1963) .................  14,15,19

Clark and Clark, The Black Lawyer 
—  A New Day, But Slow in Dawn­
ing, in Minority Opportunities 
for Blacks, Puerto Ricans and 
Chicanos, 256 (C.P. Clark ed.
1974)...............................  22

J. Comer, Beyond Black and White,
(1972) ...........................  7

B. Curran, Career Patterns of 
Minority Lawyers (paper pre­
sented at ABA midyear meetings,
Feb. 5, 1 983)....................... 29

B. Curran, Lawyer Demographics 
(paper presented at ABA Annual 
Meeting, Aug. 8, 1 981 )............ 42,50

Edwards, A New Role for the Black 
Law Graduate —  A Reality or an 
Illusion?, 69 Mich. L. Rev.
1407 ( 1 971 ).....................  34,44,50

Edwards, "Headwinds" Minority Place­
ment in the Legal Profession,16 L. Quadrangle Notes.(U. of
Mich. L.S. Spring ( 1 972)).......... 44

G. Franklin Edwards, The Negro
Professional Class (1959).......... 21

Gellhorn, The Law Schools and the
Negro, 1 968 Duke L.J. 1 069....  8, 1 3,20,50

VI 11



Other Authorities: Page

M. Goldman, A Portrait of the Black
Attorney in Chicago (1972).. 9,18,20,21,2632,33,35,52

A . L. Higginbotham, Jr., Racism and
the Early American Legal Process,
1619-1896, 407 Annals, 1, 17
(May 1973) ........................ 9

B. Kroger, The Negro Lawyer in
Maryland (1948)....................  10,1 1

LeFlar, Legal Education: Desegre­
gation in Law Schools, 43 A.B.A.J.
145 (1 957)........................ 14

W. Leonard, Black Lawyers
(1977) ......................  12,14,20,23

W. Leonard, The Development of the 
Black Bar, 407 Annals 134 (May 
1973) .............................  11

Minority Attorneys Struggle to
Land that First Job, Legal Times,
Feb. 7, 1 983, at 32................. 48,49

G. Myrdal, An American Dilemma
( 1944 )............................  7,25,53

National Law Journal, Dec. 20, 1982,
at 1................................  47

National Law Journal, April 20,
1981, at 1.......................... 33

Nelson, Practice and Privilege:
Social Change and the Structure 
of Large Law Firms, 1981 Amer.
Bar Fnd. Research 97................  52

IX



Other Authorities: Page
Ortique, The National Bar Associa­

tion —  Not Just an Option, 53 
Judicature 390 ( 1 970)............ 15, 1 7

Paone and Reis, Effective Enforce­
ment of Federal Non-Discrimina­
tion Provisions in the Hiring 
of Lawyers, 40 U.S. Cal. L. Rev.
61 5 ( 1 967)........................ 8

B. Schlei and P. Grossman, Employ­
ment Discrimination Law 1976).... 49

G. Segal, Blacks in the Law
( 1 983 ).....................  8,13,15,16,17,18,22,43,44,

45,46
Shuman, A Black Lawyer Study,

16 How. L.J. 225 ( 1 971 ).......... 21,33, 34
C. Silberman, Crisis in Black and

White (1964).....................  25
E. Smigel, The Wall Street Lawyer

(1 964)........................ 22,33,34,52
Statistical Abstract of the

United States (1969) ...............  20
The Firms —  What Do They Want,

Harvard Law Record, Dec. 12, 1963
at 1 ...........................  23,24,33

U.S. Bureau of the Census, 1960
Census............................  20

Westcott, Blacks in the 1970s: Did 
They Scale the Job Ladder, 105 
Bureau of Labor Statistics Monthly
Labor Review 32 (June 1982).......  42

C.G. Woodson, The Negro Professional
Man and the Community (1934) .....  7

x



NO. 82-940
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1982

ELIZABETH ANDERSON HISHON, 
Petitioner, 

v.
KING & SPAULDING,

A Partnership,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

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

STATEMENT OF INTEREST OF AMICUS CURIAE
The NAACP Legal Defense and Educational 

Fund, Inc. is a non-profit corporation, 
which was established for the purpose of

J_/ Consent has been granted by both the 
petitioner and the respondent for the filing 
of this amicus curiae brief.



2

assisting Black citizens in securing their 
consitutional civil rights. Its attorneys 
have represented parties and participated as 
amicus curiae in numerous cases before this 
Court involving various facets of the law.

Amicus interest in the outcome of this 
case is twofold. First, the Legal Defense 
Fund is acutely aware of the gross underrep­
resentation of Blacks in the legal arena, 
resulting from historical and persistent 
patterns and acts of racial discrimination. 
Amicus recognizes the need for Black attor­
neys to participate fully in all aspects of 
the legal community. For example, we 
recognize that due to their race, Blacks 
have been excluded from practicing in the 
nation's law firms, the bastions of the 
legal world.

The Legal Defense Fund has appeared 
before this Court as amicus c u r i_ a e i n 
cases addressing the need to protect and 
guarantee the civil rights of Blacks engaged 
in the legal profession. E. g . De Funis v.



3

Odegard, 416 CJ.S. 312 (1974); NAACP v.
Button, 371 U.S. 415 (1963).

Amicus second interest is that this 
case may have far-reaching implications on 
the scope of Title VII in other litigation 
involving professionals and professional 
institutions. An affirmance would sound a 
death knell to Black lawyers seeking entry 
into or advancement within law firms, by 
notifying employers who discriminate that 
they were immune to the scrutiny of Title 
VII. Such a conclusion could have severe 
negative ramifications not only on the 
legal profession, but in other professional 
institutions as well.

SUMMARY OF ARGUMENT
This case raises a single narrow issue: 

whether a federal court is totally without 
power under Title VII of the Civil Rights 
Act of 1 964, 42 U.S.C. 2000e, et seq. , to
take jurisdiction of an employee's claim 
that she or he was denied promotion to a



4

partnership position with a law firm and 
consequently discharged by the employer 
solely on the basis of race, color, re­
ligion, sex or national origin. The reso­
lution of this issue turns primarily on the 
construction and application of several 
statutory terms found in Title VII. Fully 
supporting the statutory interpretation set 
forth in Petitioner's brief, the arguments 
here focus on the special significance of 
this case to blacks.

Historically, the legal profession has 
been one of the most racially segregated 
occupational groups in American society. 
During the century preceeding the passage of 
the Civil Rights Act of 1964, minorities 
were excluded from the legal profession or 
relegated to a second-class professional 
status as a result of overt racial discri­
mination on the part of educational and 
professional institutions, including em­
ployment discrimination by large law firms. 
This history of institutionalized discri­



5

mination was well recognized at the time 
Title VII was enacted and was precisely the 
type of racial injustice that the Civil 
Rights Act of 1964 was intended to remedy. 
In the absence of any express statutory 
exemption, Title VII should not be read to 
immunize any segment of the legal profession 
from Congress' mandate of equal opportunity 
in the work force.

Since 1 964 a decline in the openly 
racist practices of legal institutions has 
facilitated some increase in the number of 
black lawyers. Nonetheless, many law firms 
continue to discriminate in the hiring and 
promotion of minority lawyers, frequently 
relying on racially premised assumptions 
regarding the ability of minorities to "fit 
in" with non-minority clients and co­
workers. Such discrimination has denied 
black laywers access to the most important 
and lucrative areas of practice and has 
contributed to a perpetuation of the histor­
ic under-representation of blacks in the



6

legal profession. The creation of a special 
partnership exception to Title VII coverage 
will not only encourage a perpetuation of 
this covert segregation, but will authorize 
law partnerships to once again engage in the 
deliberate overt discrimination that flour­
ished prior to 1964. Unless Title VII is 
read to provide law firm associates with 
some assurance that they will not be denied 
partnership and discharged because of their 
race, blacks will be understandably reluc­
tant to seek employment with firms and will 
be generally discouraged from entering the 
legal profession. The terms of Title VII 
should not be construed in a manner which 
undermines the purpose of the Act to protect 
individuals from discriminatory treatment 
and eliminate racially stratified job 
environments.

ARGUMENT
I

IN ENACTING TITLE VII, CONGRESS WAS 
AWARE OF THE INTENTIONAL DISCRIMINATION 
WITHIN LAW PARTNERSHIPS AND ITS ROLE IN 
PERPETUATING PAST RACIAL INJUSTICE



7

A • Prior to 1964 Overt Racial Discri­
mination Was Prevalent Throughout 
the Institutions Which Trained, 
Regulated, and Employed Lawyers.

In some respects, the historical lack 
of black lawyers can be attributed to the 
general discriminatory attitude common 
throughout American society. During the 
century before' the Civil Rights Act of 1964 
a socialized acceptance of black inferior­
ity by judges, jurors, clients stood as a
constant barrier to the successful practice

1/of the law by blacks. However, a more
direct and in many respects more powerful 
set of racial barriers was purposefully 
erected by the institutions that controlled 
access to legal practice.

In 1963, Secretary of Labor Willard 
Wirtz labeled the legal profession "the 
worst segregated group in the whole economy

1 / See e . g . , G. Myrdall, An American 
Dilemma, 325-26, 550,325-26, 550, 801-02
(1944); C.G. Woodson, The Negro Professional 
Man and the Community, 184-239 (1934);
J. Comer, Beyond Black and White 11 (1972).



8

or society."— This segregation was the 
result of a succession of overt racial 
barriers erected by the institutions that 
controlled access to legal practice. 
Through policies set first by legislatures 
and courts, and then by law schools, bar 
associations and large law firms, blacks 
were excluded from practicing law and forced 
to the "fringe of the profession."—^

A similar conclusion drawn by an 
American Bar Foundation study was that "the 
latent racism which has accumulated in all 
major American social institutions also

2 /

2/ Reported in G. Segal, Blacks in the 
Law, 24 (1983); Paone and Reis, Effective 
Enforcement of Federal Non-Discrimination 
Provision in the Hiring of Lawyers, 40 U.S. 
Cal. L. Rev. 615, 616 (1967).
_3 / Gellhorn, The Law S chools and the 
Negro, 1968 Duke L.J. 1069, 1070; Baker, 
Black Lawyers and Corporate and Commercial 
Practice: Some Unfinished Business of the Civil Rights Movement^ 18 How. L.J. 685, 692 
(1975) ("The major reason for the lack of 
Black lawyers today is traceable to both 
state enforced and institutionalized racial 
discrimination. ") .



9

pervades the legal profession." — in 
determining the applicability of Title VII 
to this case and attempting to promote the 
legislative objective "to eliminate so far 
as possible, the last vestiges of an unfor­
tunate and ignominious page in this coun­
try's history," Albermarle Paper Co. v. 
Moody, 422 U.S. 405, 41 8 ( 1 975 ), the dis­
criminatory history of the profession and 
the role of law partnerships in that history 
cannot be ignored. It is thus "appropriate 
... to look down the corridor of history and 
rcognize that so many for so long failed to 
deal with the racial injustices around 
them." A. L. Higginbotham, Jr., Racism and 
the Early American Legal Process, 1619-1896, 
407 Annals, 1, 17 (May 1973).

The earliest racial restrictions on the 
practice of law were imposed in state courts 
and legislatures. These state imposed ra­
cial restrictions continued even after the

4/ M. Goldman, A Portrait of the Black 
Attorney in Chicago, 49 (1972).

4 /



10

ratification of the Civil War Amendments. 
In Maryland, for example, a law requiring an
applicant for the state bar to be a "free
white male citizen" was re-enacted in 1872
and 1876. This Act was construed to
prohibit all blacks from practicing law in 
Maryland, even those who had previously been 
admitted to the bar of another state. In Re 
Charles Taylor, 48 M d . 28 (1877). The
Maryland Court of Appeals relied on the 
decisions of this Court in Bradwell v. 
Illinois, 83 U.S. (16 Wall.) 130 (1873) and 
The Slaughter-House Cases, 83 U.S. (16 
Wall.) 36 (1873), to affirm the constitu­
tionality of the state law. 48 M d . at 
30-32. This absolute exclusion of blacks 
from the legal profession in Maryland

5/ See Md. Code 1860, Art. 11, 30; re­
pealed and reenacted without change to relevant portions by Act of 1872, Ch. 91 
3 and Act of 1876, C h . 264,§3. No other 
profession was restricted by law in post- 
Civil War Maryland. See B. Kroger, The 
Negro Lawyer in Maryland 3 (1948).



continued until 1885.—^
State enforced restrictions, along with 

the general racial animosity of which those 
restrictions were both a symptom and a 
cause, limited black lawyers in the nine­
teenth century to a scattered handful.—^ 
Although there were some bright spots sig­
naling the emergence of a black bar during 
the Reconstruction period —  including the 
graduation of George Ruffin from Harvard Law 
School and the opening of Howard University 
Law School, both in 1869 —  these prospects 
were too few to provide any meaningful 
employment opportunities to blacks as a 
whole. The few blacks who were able to 
penetrate the legal profession's ivory tower

6/ B. Kroger, supra note 5, at 3 (discus­
sing unpublished opinion of the Supreme 
Bench of Baltimore City which "virtually 
overruled the Maryland Court of Appeals 
decision in In Re Charles Taylor, supra).
7/ See generally W. Leonard, The Develop­
ment of the Black' Bar, 407 Annals 134 (May 
1 9 73) To11e11, Black Lawyers, Their Educa- 
tion, and the Black Community, 17 How. L.J. 
72 '6 (1971).



12

were those, like John Mercer Langston, who 
combined an extraordinary amount of talent 
and determination with a degree of good
fortune that was rarely bestowed upon blacks

8 /of this period.— Even in the absence 
of legislation, state courts in the nine­
teenth century frequently refused to ac-

9 /credit black lawyers.—
As state laws directly barring blacks 

access to the legal profession were chal­
lenged and forced to collapse, states began 
to require that bar applicants have law 
degrees. Many states and private law 
schools, however, continued to refuse to 
admit blacks during the first half of the 
twentieth century and hence the difficulty

8/ Id.
9/ See, e .g ., M. Bloomfield, American Law­
yers in a Changing Society, 1776-1876, 312-
315 (1976)(Ohio court admitted John Mercer
Langston to bar in 1854 only after a visual 
examination of applicant convinced the court 
that he possessed more white than Negro 
blood) ; see generally W . Leonard, Black 
Lawyers (1977).



in obtaining legal education became the 
"fundamental discouragement" excluding 
blacks from the practice of law. G. Segal, 
supra note 2, at 1 ; see also Gellhorn, 
supra note 3, at 1069 (Northern law schools 
were only "nominally open" to blacks, and 
most Southern law schools were "completely 
closed to the Negro until the 1950's.")

Discrimination in law schools original­
ly took the form of state laws and official 
policies that absolutely prohibited black 
enrollment in "white" institutions. These 
formal racial standards were challenged and 
invalidated one by one during the two de­
cades leading up to Brown v. Board of Ed­
ucation of Topeka, 347 U.S. 483 ( 1 954 ). ^

- 13 -

10/ University of Maryland v. Murray, 169 
Md. 478, 182 A.2d 590 (1936) (ordering state 
law schools to admit black applicant, but 
leaving open possibility that state might 
satisfy its constitutional obligations by 
providing blacks with grants to attend 
out-of-state schools.) Missouri ex rel 
Gaines v. Canada, 305 U.S. 337 (1938) (in-
validating state law that excluded blacks
from state law school, despite state sub­sidy for out-of-state legal education for



1 4

Yet, even after this Court's explicit
rejection of the "separate but equal
doctrine, many law schools persisted in

, . 11/refusing to consider black applicants.
It was not until 1 964 that the Association 
of American Law School's Committee on Racial 
Discrimination, could state that no member 
school reported a policy of denying admis­
sion on the grounds of race or color. AALS 
Proceedings, 1964, Part One: Reports of Com­
mittees 159. See also Civil Rights, Report 
of United States Commission on Civil Rights

10/ continued
blacks. The response to these cases by 
Missouri and by a number of other states was 
to set up separate in-state law schools for 
blacks. These schools were generally 
recognized as inferior and further suits 
were necessary to force states to abandon 
their formal policies of discrimination. 
Sipnel v. Board of Regents of University of 
Oklahoma, 332 U.S. 631 (1948); Fisher v..
Hurst," C. I. , 333 U.S. 147 ( 1 948 ); McLaunn
v. Oklahoma State Regents, 339 U.S. 637 (1950); Sweatt v.Painter, 339 U.S. 629 
(1950). See also LeFlar, Legal Education: 
Desegregation in Law Schools, 43 A.B.A.J. 
145 (1957) (citing additional cases).
11/ W. Leonard, supra note 7, at 1 45-47.



118 (1963) (most law schools have either
totally excluded Blacks or admitted only 
token numbers). Even more significant is 
the fact that progress was not actually made 
toward raising the black enrollment in 
American law schools until 1968. G. Segal, 
supra note 2, at 5-7.

Black lawyers were also flatly denied 
admission to most national, state, and local 
bar associations through the first half of 
the twentieth century. This racial exclu­
sion denied minority lawyers professional 
contact with the main body of the bar, 
advanced the racial stratification of an 
already white-dominated occupation, and
forced blacks to organize separate pro-

12/fessional associations.—

- 15 -

12/ In response to the discrimination of 
"traditionally white professional associa­
tions, black lawyers organized the National 
Bar Association in 1 925, as well as local 
bar assocations in nearly every major city. 
Ortique, The National Bar Assocation -- 
Not Just an Option ,
(1970).

3~3 Judicature 3 9 0



16

The American Bar Association was 
publicly confronted with the issue of race 
for the first time in 1912 when the ABA 
executive committee unknowingly admitted 
three black lawyers to membership in the 
Association. Informed of its oversight, the 
executive committee immediately rescinded 
the admissions, stating that "the settled 
practice of the Association has been to 
elect only white men to membership." G. 
Segal, supra note 2, at 17; J. Auerbach, 
Unequal Justice 65 (1976). Although the 
executive committee's recission was rejected 
on procedural grounds, and the memberships 
affirmed, by a resolution at the ABA's 1912 
annual meeting, this resolution made clear 
that the election "was by inadvertance" and
that "it has never been contemplated that
colored men were to be members of the
Association." 37 A. B .A . Reports, 1912, 13,
93, 95. The resolution also directed that
henceforth those recommending a black lawyer 
for membership should "accompany the recom­



mendation with a statement of the fact that
1 3 /he is of such a race." I_d. at 13.

It was not until 1943 that this openly 
racist policy was dropped and the ABA began 
to consider black applicants for membership. 
G. Segal, supra note 2, at 19. An entire 
decade passed before black lawyers were ac­
cepted as active participants in the Asso­
ciation. Id. See also Ortique, supra note 
12, at 392.

Similar policies excluded black lawyers 
from bar associations at the local level. 
For instance, the Bar Assocation of the 
District of Columbia maintained an official 
policy of segregation until 1958. Blacks 
Moving into Key Legal Posts, Washington 
Post, April 11, 9176, at A-1, 19. Despite
the fact that Washington D.C. was the center 
of legal education for blacks, black lawyers

13/ The motivation behind this disclosure 
requirement was made plain by the Assoca- tion's membership chairman who baldly stated
that the admission of blacks posed "a question of keeping pure the Anglo-Saxon
race." J. Auerbach, supra p. 16, at 66.

- 17 -



were barred from the library in the federal 
courthouse in that city until a lawsuit was 
instituted. U.S. ex rel. Robinson v. Bar 
Assocation of the District of Columbia, 197 
F.2d 408 (D.C. Cir. 1 952 ). In the same
tradition, Black students were not permitted 
to attend review courses offered prior to 
bar examinations. G. Segal, supra, note 2 
at 196. In like manner, blacks were ex­
pressly excluded from the Chicago Bar 
Association until well after World War II. 
M. Goldman, A Portrait of the Black Attorney 
in Chicago 35-36 (1972). (This policy re­
flected the "direct hostility" and racial 
prejudice of many of the organization's most 
influential members, who were also among the 
city's most prominent corporate attor­
neys."). The evolution of separate black 
bar assocations across the country —  Harlem 
Lawyers Association, Blackstone Law Club, 
Houston Lawyers Association, Louis A.

- 18 -

Martinet Legal Society, and many others —  
attests to widespread discrimination by



19

professional associations. While the pro­
claimed ethics of these local assocations 
supported the ideal of equal justice for 
all, their actions manifested deep-seated 
hositility to blacks. Quite simply, racism 
was elevated above professionalism. See J. 
Auerbach, supra p. 16 at 66. It is not 
surprising that as late as 1963 the United 
States Commission on Civil Rights reported 
that black lawyers were "severely limited"
in their opportunities for bar assocation 

14/participation.
With the proliferation of corporate and 

commercial law firms in the twentieth 
century and the growing domination by these 
firms of the most lucrative areas of prac-

14/ Civil Rights, U.S. Commission on Civil 
Rights 119 (1963):

The opportunities for professional 
contacts and continuing legal education 
that attend bar assocation membership 
appear to be severely limited for Negro 
lawyers . . . Even where Negroes are 
admitted to membership, they are 
usually excluded or discouraged from 
participation in social and education 
programs sponsored by the associations.



20

tice, especially within associations located 
in metropolitan areas, the discriminatory 
employment practices of these firms came to 
play an increasingly central role in the 
racial stratification of the bar. Prior to 
the enactment of Title VII, overt racial 
discrimination by law firms confined most 
black lawyers to the least desirable areas 
of practice at the "fringe of the profes­
sion" —  criminal, domestic relations and 
small claims. Gellhorn, supra note 3, at 
1070; M. Goldman, sup r a note 4, at 6.

By 1960 there were still barely 2000 
black lawyers, comprising slightly more than 
1% of the legal profession.— ^ Denied 
"the social, economic and political rewards 
of the white legal profession," W. Leonard, 
Black Lawyers, 214 (1977), the majority of
these black lawyers operated in what G. 
Franklin Edwards in his 1 959 study of the

15/ U.S. Bureau of the Census, 1960 Census, 
Vol. 1, Pt. 1, Table 205, pp. 1-544; Statis­
tical Abstract of the United States, 1969 at
24.



21

opportunities available to black lawyers 
labeled a "starvation profession." G.F. 
Franklin, The Negro Professional Class 135 
(1959).

That this professional stratification 
and racial segregation is attributable in 
large part to discriminatory employment 
practices on the part of white law firms has 
been widely recognized. See, e .g ., Shuman, 
A Black Lawyer Study, 16 How. L.J. 225, 20 
(1971) ("the most prominent factor obstruct­
ing Blacks from successful private practice 
is discrimination by large estaolished White 
firms."); M. Goldman, supra note 4, at 6 
(American Bar Foundation study concludes 
that " [t]he persistence of formal and 
informal policies of segregation within most 
white law firms and local corporations has 
... placed major limits on opportunities for 
black attorneys."); Baker, supra note 3, at 
691 (black lawyers "were virtually excluded 
from large and medium size law firms until 
the mid-sixties", resulting in "second-class



22

the mid-sixties", resulting in "second-class 
status"), E. Smigel, The Wall Street Lawyer, 
45 (1964) (study finds only three black
lawyers employed by large New York firms.)

Moreover, the refusal to hire minor­
ities cannot be attributed to the low number 
of blacks graduating from prestigious law 
schools prior to 1964. Amicus is familiar 
with numerous black lawyers who graduated 
with impressive academic records from highly
respected law schools and were flatly

£ . 16/rejected by corporate firms.

16/ One blatant example, which has drawn 
public attention, is William T. Coleman, Jr. 
Despite the fact that Mr. Coleman graduated 
magna cum laude from Harvard Law School and 
was an editor of the Harvard Law Review, he 
was unable to find employment with any major 
Philadelphia law firm in 1946. G. Segal, 
supra note 2, at 32, 77-78, 218-219. 
Coleman went on to clerk for Judge Goodrich 
of the U.S. Court of Appeals for the Third 
Circuit (1947-48), and then for Justice 
Frankfurter as the first black law clerk to 
this Court. Id_. Even with this background, 
Coleman was turned down by a number of New 
York law firms before finally finding 
employment with a firm in that city. Clark 
and Clark, The Black Lawyer —  A New Day, 
But Slow in Dawning, in Minority Opportun- 
ities in Law for Blacks, Puerto Ricans and



23

In a survey of 120 Northern law firms 
conducted by the Harvard Law Record in 1963, 
many firms openly admitted that race was a 
central criterion used in hiring. The Firms 
—  What Do They Want, Harvard Law Record, 
Vol. 37, no. 9, 1, 8-9 (Dec. 12, 1963). The 
firms were asked to rate different qualities 
on a scale between +10 and -10, with +10 
representing a characteristic that in and of 
itself would assure an applicant of a job 
offer, and -10 designating a characteristic 
that would lead to an automatic rejection. 
On an average, the firms gave a -3.5 rating 
to the "Negro" trait, confirming the overt 
nature of law firm discrimination against 
blacks. Id. at 8-9 A number of firms 
emphatically commented that, when hiring

16/ continued
Chicanos 256 (1974). Similiarly, Judge A
Leon Higginbotham, Jr., a 1952 graduate of 
Yale Law School was repeatedly denied em­
ployment with Philadelphia labor law firms. 
I d . at 256-257 ; see_also, W. Leonard, 
supra note 9, at 32.



24

associates, they looked for "an intelligent 
white male." _Ic3. at 8.

Secretary of Labor W. William Wirtz ac­
knowledged the overt discrimination within 
law firms at the time of the enactment of 
Title VII. In a speech before the Associa­
tion of American Law Schools in December, 
1963, he declared that "the legal profession 
has got a lot to answer for" with respect to 
the "racial barriers" that exclude blacks 
from the practice of law. A.A.L.S. Proceed­
ings, 1963, Part Two 100 (reporting that 
a Department of Labor Study found only 
thirty-five firms in the entire country 
which employed a black lawyer.) Wirtz 
emphasized that an elimination of existing 
intentional discrimination within law firms 
was an essential prerequisite to any in­
tegration of the profession. He told his 
audience of educators that their efforts to 
increase the number of black law students 
would be doomed to failure until law firms 
were willing to offer blacks an equal op­



25

portunity incentive to pursue a career in
, T j 17/law. Id.—

The United States Commission on Civil 
Rights also gave special attention to the 
plight of black lawyers in its 1963 Report. 
C ivil R ights, Report of United States 
Commission on Civil Rights (1963). The 
Commission noted that blacks in many states 
"have faced difficulty in gaining admission 
to law schools, impediments to admission to 
the bar, and severe limitations on their 
professional association and contacts." Ic[ 
at 118.

An American Bar Foundation study con­
cluded that "the latent racism which has 
accumulated in all major American social

17/ See also Carl and Callahan, Negroes 
and the Law, 17 J. of Legal Ed. 250, 254
( 1 964-65) ("Motivation [to go to law school] 
implies a strong desire to learn with the 
hope or knowledge that one's effort and 
determination will be satisfied by rewards 
of a profession: social status, respect,
the opportunity to render service, as well 
as the acqusition of some of the comforts 
and pleasures of life..."); G. Myrdal, 
supra note 7, at 325-26, 550, 801-02;
C7 "sTlberman, Crisis in Black and White 
( 1964).



26

institutions also pervades the legal pro­
fession." M. Goldman, supra note 4 at 49. 
The overt discrimination that was openly 
displayed by law firms prior to the enact­
ment of Title VII played a major role in 
denying black lawyers access to important 
areas of practice and perpetuating a racial­
ly stratified profession.

B. Congress Chose Not to Create An Exemption to Protect the Dis­
criminatory Practices of Law 
Partnerships

As the Court has repeatedly recognized, 
"[t]he primary purpose of Title VII was 'to 
assure equality of employment opportunities 
and to eliminate those discriminatory 
practices and devices which have fostered 
racially stratified job environments to the 
disadvantage of minority citizens.' McDon­
nell Douglas Corp. v. Green, 411 U.S. 792, 
800 [1973], "International Brotherhood of
Teamsters v. United States, 431 U.S. 324
(1977). In achieving this objective, Title 
VII was intended to "eliminate discrimina­



27

tory effects of the past as well as bar 
discrimination in the future." Albermarle 
Paper Co. v. Moody, 422 U.S. 405, 418 (1975) 
(quoting Louisiana v. United States, 380 
U.S. 1 45 ( 1 965) ) .

The Court of Appeals below, after
admitting that " [njeither the statutory
language nor the legislative history of
Title VII greatly illuminate its decision in
this case, 678 F.2d, at 1027, presumed that
Congress intended to exempt partnership

18/decision from Title VII scrutiny.
This presumption regarding congres­

sional intent is directly contrary to the 
overall objectives of the Act. In the light 
of the recognized discriminatory history of 
the legal profession prior to 1964, ante at

18/ The majority opinion for the divided 
Court of Appeals refused to recognize Title 
VII jurisdiction in the absence of a showing 
of "the requisiste congressional intent to 
permit Title VII's intervention." 678 F.2d, 
at 1026. Thus, it is clear that the major­
ity opinion approached this case with an 
implicit presumption, albeit rebutable, that 
Title VII was not intended to reach part­
nership decisions.



28

6-26, an exemption of partnership decisions 
would have frustrated the central statutory 
purposes of eliminating racial discrimina­
tion from the workplace and eradicating its 
past effects.

Indeed, the discriminatory policies 
that Congress undoubtedly observed within 
law firms in 1964 reflected precisely the 
kind of discrimination that Title VII was 
most directly designed to address. Inten­
tional discrimination, such as that openly 
demonstrated by law firms prior to 1964, 
ante at 21-26, was "the most obvious evil 
Congress had in mind when it enacted Title 
VII. International Brotherhood of Teamsters 
v. United States, 431 U.S., at 335 n. 15. 
Moreover, by excluding blacks from the most 
lucrative areas of legal practice, law firms 
perpetuated the long-standing racial strati­
fication of the bar and "operated[a] to 
'freeze' the status quo of prior discrim­
inatory practices." Griggs v. Duke Power 
Co., 401 U.S. 424, 430 (1971), ante at 6-26.



29

In the absence of a "clear congres­
sional mandate" to the contrary, Title VII 
should be read to be "broadly inclusive," 
County of Washington v. Gunther, 452 U.S.
1 6 1 , 1 70 , 1 78 ( 1 98 1 ); it should not be 
assumed that Congress knowingly intended 
to sanction intentional discrimination that 
would undermine the effectiveness of the 
Act.

That Congress did not intend to exempt 
partnership decisions from Title VII scru­
tiny is strongly supported by the fact that 
where Congress did wish to exclude a rela­
tionship from regulation under the Civil 
Rights Act of 1964, it did so by express 
statutory provision. See Andrus v. Glover 
Construction Co., 466 U.S. 608, 616-17 
(1980) ("[w]here Congress explicity enumer­
ates certain exemptions to a general pro­
hibition, additional exceptions are not to 
be implied, in the absence of a contrary 
legislative intent.). Title VII excludes
certain employment decisions in order to



30

similar to those asserted by Respondent in 
1 9 /this case,—  as well as protecting a

20/number of similiar concerns.—  Both
2 1/Title II of the Civil Rights Act of 1 964—

2 2/and Title VIII—  also include statutory

protect certain associational interests

19/ See 42 U.S.C. §2000e(b)(2) (exempting 
bona fide private membership clubs); 42 
U.S.C. §2000e(b ) (excluding employers with 
fewer than minimum number of employees —  
this requirement was adopted at least in 
part to protect associational concerns of small employers. See Cong. Rec. 1 3088 
(1964) (Statements of Senator Humphrey)).
20/ See 42 U.S.C. §2000e-1 and 42 U.S.C. 
§2000-2(e)(2)(exempting religious groups and 
religious educational institutions respec­
tively) ; see also 42 U.S.C. §2000-2(i) 
(permitting preferential treatment in hiring 
of American Indians by employers on or near 
Indian reservations); £f. 42 U.S.C. §2000e- 
2(h) (protecting seniority rights estab­
lished prior to time of enactment).
21/ See 42 U.S.C. §2000a(e) (exempting 
private clubs from Public Accomodations 
Act); 42 U.S.C. §2000a(b)(1) (exempting 
establishment with no more than five rooms 
to rent where proprietor is an occupant).
22/ See 42 U.S.C. §3603(b)(2) (exclusion 
for residential units occupied by no more 
than four families where owner maintains 
residence within); 42 U.S.C. §3607 (exemp­
tion for private membership organization 
renting rooms to own members).



31

exemptions designed to protect associational 
interests.

II. RACIAL DISCRIMINATION WITHIN LAW PART­
NERSHIPS REMAINS A SIGNIFICANT BARRIER TO EQUAL EMPLOYMENT OPPORTUNITY
A. The Racially Premised Decision 

Making That Persists In Most Law 
Partnerships Is Precisely the Type 
of Barrier Title VII Was Intended 
to Eliminate

For the purpose of this appeal, it must
be assumed that Petitioner can demonstrate
that overt and deliberate discrimination
motivated Respondent's decision to deny
Petitioner partnership and to terminate her 

2 3/employment.— Thus, if the decisions

23/ In dismissing Petitioner's complaint on 
its face under F.R. Civ. P. 12(b)(1), the 
District Court was obligated to accept 
Petitioner's claims of sex discrimination as 
true. Scheuer v. Rhodes, 416 U.S. 232, 236 
(1974). The complaint alleged, inter alia, 
that Respondent knowingly applied different 
standards to males than to females in making partnership promotions. Complaint 1(17. 
Indeed, the trial judge expressly stated 
that his decision to dismiss assumed that even if "naked discrimination was the sole 
and producing cause of plaintiff's rejection 
as a partner," the court lacked jurisdiction 
under Title VII to proceed. 25 Empl. Prac. 
Dec. (CCH ) 113 1 , 703 at 20 , 064 (N.D. Ga. 
1980).



32

below are affirmed, Title VII will present 
no obstacle to a partnership that wishes to 
maintain an outright policy of refusing to 
consider any minority for partnership 
promotion. By adopting a partnership 
structure law firms will be able to return 
to the type of discrimination that flour­
ished prior to 1964. See ante at 6 — 26.

It is generally recognized that "more 
subtle" and "indirect forms of racism" exist 
in most law firms today. M. Goldman, supra, 
note 4, at 3. Two such barriers, based on 
invidious racial sterotypes reflecting the 
perceived prejudices of clients and co-work- 
ers, are widespread and operate to deny 
black lawyers access to partnership posi­
tions. Both reflect a form of insitution- 
alized racism that Title VII was intended to 
eliminate from the workplace.

The most frequently offered "behind- 
the-scenes" explanation for the continued 
exclusion of blacks from law partnerships is 
that firms fear that clients would prefer



33

not to have frequent contact with, or 
depend upon, black attorneys. National Law 
Journal, April 20, 1981, at 10 (quoting 
Robert Kutak of Kutak, Rock & Huie, the only 
major firm with more than two black part­
ners) ; M. Goldman, supra note 4, at 6 > 
Shuman, supra p. 21, at 260; see also E. 
Smigel, The Wall Street Lawyer 66 (1964);
The Harvard Law Record, supra p. 23, at 
1 3.

That Title VII proscribes employment 
discrimination stemming from the perceived 
racial prejudices of clients or customers 
has been so clear that this principle has 
seldom merited explicit discussion in the 
context of a race discrimination case. In 
the area of sex discrimination, where 
employers have occasionally attempted to 
openly justify employment practices on the 
basis of customer preferences, it has been 
declared "totally anomalous ... to allow the 
preferences and prejudices of customers to 
determine whether ... discrimination was 
valid." Diaz v. Pan American World Airways,



34

442 F . 2d 385, 389 ( 5th Cir.), cert denied
404 U.S. 950 ( 1 971 )(leading case); see also 
29 C.F.R. §1604.2(a)(1)(iii)(except in very 
limited and specific situations, bfoq may 
not be granted "because of preferences of 
coworkers, the employers, clients or cus­
tomers"). Since Diaz, supra, it has been 
axiomatic that employers may not discrimin­
ate on the basis of client's preferences and 
the elimination of employment practices that 
cater to such prejudices has been a primary 
target of Title VII.

A second excuse offered for the exclu­
sion of blacks from partnership ranks is the 
fear that a minority lawyer will not "fit 
in" socially with an otherwise all white 
partnership. See Shuman, supra, p. 21, at 
235, 260 ; Edwards, A New Role for the Black
Law Graduate -- A Reality or an Illusion? 
69 Mich. L. Rev. 1407, 1411 (1971); see 
also Smigel, supra p. 33, at 66. This pur­
ported justification is no more than a rem­
nant of the racial animus and openly-enforced



35

segregation that existed prior to 1964. It
reflects the continued prejudicial inability
of many whites in upper level positions to

24/view blacks as equals.—
Title VII was intended to eliminate 

decision-making based on such "'stereotyped' 
characterizations," Dothard v. Rawlinson, 
433 U.S. 321 333 (1977), "[i]t provides that 
men and women shall be employed on the basis 
of their qualifications, ... not as colored 
citizens, but as citizens of the United

24/ The principle that discriminatory 
employment practices cannot be justified by 
co-workers' racial prejudice is also so 
well accepted that it is seldom explicitly raised. Title VII has, however, been 
frequently used to invalidate employment 
policies that reflect and reinforce social 
prejudice among employees. See, e .g . , 
United States v. Jacksonville Terminal Co., 
451 F . 2d 418, 458 (5th Cir. 1 971 )(employer
and union ordered to institute nonracial 
rules regarding use of toilet, locker and 
shower facilities; segregated facilities 
seen as "a vestige of pervasive discrimin­
ation"); Dickerson v. U.S. Steel Corp., 15
Fair Empl. Prac. 752, 772 (E.D.Pa. 1977)
("[t]he decision of an interviewer not to 
send blacks to a certain department in order to avoid complaints on harrassment is
as much a racially based decision as is a foreman's decision to reject blacks because 
he does not want to work with them").



36

States." 110 Cong. Rec. 13088 (1964)(state­
ment of Senator Humphrey) quoted in Inter­
national Brotherhood of Teamsters v. United 
States, 431 U.S. at 335 n.15. A decision to 
reject a black partnership candidate and to 
terminate her employment, based solely on a 
suspicion that a minority lawyer would not 
"fit in", is racially premised and violates 
the fundamental mandate of the Civil Rights 
Act of 1 964 not to treat individuals as 
simply components of a racial class." City 
of Los Angeles Department of Water v. Man- 
hart , 435 U.S. 702, 708 (1978); see also
Connecticut v. T e a l , ___  U.S. ___ , 50
U.S.L.W. 4716 (June 4, 1982).

Law partnerships should not be given 
special privileges to engage in racial 
discrimination based on a fear of client or 
collegue discomfort. Nor should the federal 
courts abdicate their responsibility to 
eliminate these forms of racial discrimin­
ation simply because partnership decisions 
necessarily entail subjective judgements.



37

The trial court's decision below relied 
heavily on the misperception that recogni­
tion of Title VII jurisdiction would under­
mine law firms' freedom to select partners 
based on a subjective evaluation of a wide 
range of "needed, worthy and desirable 
qualities." 25 Empl. Prac. Dec. 31 , 703 at 
1|20, 062 (analogizing partnership promotions 
to marriage). Title VII has been applied to 
a wide range of subjective decision-making 
processes, including those involving employ­
ment of lawyers and other professionals. 
See, e .g., Kohn v. Royall, Koegel & Wells, 
59 F.R.D. 515 (S.D.N.Y. 1973), appeal dis­
missed 496 F . 2d 1 094 ( 2d Cir. 1 974 )(hiring 
of law firm associates); Anderson v. City of 
Albequerque, 690 F.2d 796, 802 ( 1 0th Cir. 
1982)(female attorney alleges unlawful 
discrimination in hiring for position of 
director of city's Human Rights Board, 
"subjective evaluations" at issue); see also 
Bartholet, Application of Title VII to Jobs
in High P l a c e s , 95 H a r v . L . Rev. 947,



38

973-578 (1982). In cases involving this
type of subjective system, the courts have 
warned that subjectivity may serve to mask 
discrimination, and therefore the courts 
must exercise special scrutiny. Davis v.
Calif ano, 613 F.2d 957 D.C. Cir. 1979). 
Title VII jurisdiction has been exercised to 
fulfill the statutory mandate to ensure that 
such decisons are not tainted by unlawful 
discrimination, while not necessarily 
disturbing the subjective process. Id.

Thus, the trial court's apparent mis­
apprehension that Title VII would restrict a 
firm's consideration of a prospective 
partner's "ability and industry, ... moral 
character, fidelity, trustworthiness, 
loyalty, personality and love," 25 Empl. 
Prac. Dec. 31 , 703 at 1120, 062, is totally
unfounded. Law firms would continue to be 
free to evaluate these qualities and to 
reject candidates, minority or otherwise, 
who fell short of the firm's standards. The 
application of Title VII would merely pro­



39

hibit the addition -- either overtly or 
covertly —  of "white," "male," "protest- 
ant," or any_ other discriminatory criteria 
to the list of characteristics required for

u • 25/partnership.—
The reluctance of the courts below to 

become involved in reviewing this type of 
subjective selection system and the court's 
confusion regarding the effect of Title VII 
on such systems are not unprecedented. In 
the years immediately following the 1972

25/ While this task will undoubtedly in­
volve the courts in "sensitive and diffi­
cult" factual inquiries, U.S. Postal Service 
v. Aikens, 51 U.S.L.W. 4354, 4356 (April 5,
1983), regarding the state of mind of 
persons who make partnership decisions, the 
Court has recently affirmed that this 
difficulty does not justify a departure from 
the general judicial function of attempting 
to determine such ultimate questions of 
fact.

In addition, it should be noted that 
under well-established Title VII doctrine, 
plaintiffs should be permitted to challenge 
facially neutral standards used in the 
partnership promotion process. Such stand­
ards, would however, be unlawful only where 
they were unrelated to the wide range of 
qualities that can be legitimately desired 
in a partner.



40

amendments that extended Title VII to cover 
academic institutions, several courts openly 
expressed their hesitance to review faculty 
appointments at the university level. See, 
e . g. , Faro v. New York University, 502 F. 2d 
1229 (2d Cir. 1974) (plaintiff's Title VII
claim "would remove any subjective judgments 
by her faculty collegues in the decision­
making process"). This "hands off" approach 
has since been soundly rejected and recog­
nized as a "judicial abdication of a respon­
sibility entrusted to the courts by Con­
gress. " Sweeney v. Board of Trustees of 
Keene State College, 569 F. 2d 1 69, 1 76 (1st
Cir. ), vacated and remanded on other 
grounds, 439 U.S. 24 (1978)(remand expressly 
sanctioning application of traditional Title 
VII standards to universities); Powell v. 
Syracuse University, 580 F.2d 1150 (2d
Cir.), cert. denied, 439 U.S. 984 (1978)

26/(retracting Faro, supra. Similarly,

26/ See also Jepsen v. Florida Bd. of 
Regent s , 610 F.2d 1 379 , 1 383 ( 5th Cir.



41

this Court should reject the "hands off" 
approach articulated by the opinions below 
and encourage the courts to undertake their 
statutory responsibility to eradicate 
racially premised practices in law firms.

B. As A Result of Continued Racial 
Discrimination, Blacks Remain 
Dramatically Underrepresented in 
the Legal Profession and in Law 
Partnersh ips.

The vestiges of the legal profession's 
racist history and the effects of ongoing 
racial discrimination are apparent in the 
continued underrepresentation of blacks in 
the profession. Although minorities have 
made substantial gains during the past de­
cade in their particpation rate within the 
profession, the practice of law remains one 
of the most segregated of all occupations.

That the legal profession has remained

26/ continued
1980); Kunda v. Muhlenberg College, 621 F.2d 
532, 551 (3d Cir. 1980); Davis v. Weidner,
596 F .2d 726, 731 (7th Cir. 1979).



one of the most racially exclusionary and 
segregated occupational groups in this 
country is an inescapable fact. In 1972, 
for instance, of the seventy-nine occupa­
tions for which statistics are available, 
the category of "lawyers and judges" ranked 
seventy-ninth as employing the fewest black
men —  as a percent of all men in the pro-

27/fession -- of any occupation. . Fur­
ther, while the ratio of the total popula­
tion to all lawyers in 1980 was 420 to 1, 
the ratio for blacks was 2000 to 1. B. 
Curran, Career Patterns of Minority Lawyers 
3, (paper presented at a program on "The Need 
for Recruitment of Minority Lawyers" at the 
ABA midyear meetings, Feb. 5, 1983 (prepared
by the American Bar Foundation)).

Still another major impediment is the 
fact that black lawyers continue to be 
denied access to the most lucrative areas of

27/ Westcott, Blacks in the 1970's: Did they scale the job ladder, 105 Bureau oT 
Labor Statistics Monthly Labor Review 32 
(June 1982).

- 42 -



43

practice. According to a 1979 estimate by
J. Clay Smith, Jr., then Acting Chariman of
the Equal Employment Opportunity Commission,
only 13.6% of black lawyers were employed in

28/private practice This figure stands
in sharp contrast to the 70% of the total

29/lawyer population m  private practice.—  
The majority of black lawyers are forced to 
accept employment in less desirable posi­
tions with governmental agencies and cor­
porations. G. Segal, supra note 2, at 216. 
Smith attributed the disproportionately 
small number of black lawyers in private 
practice at least in part, to the failure of 
established white firms to hire blacks in

28/ See G. Segal, supra note 2, at 215-16 
(citing J. Clay Smith, Jr., "The Future of 
the Black Lawyer in America," speech before 
the Annual Convention of the Old Dominion 
Bar Association, May 26, 1 979, p. 2). The 
remainder of black lawyers is divided as follows: public interest law firms (4.5%); 
corporations (20.9%); federal or state 
government lawyers (31.8%); federal or state 
judges (3.6%); law teachers (2.7%); nonlegal 
jobs or unemployed (22.7%).
29/ B. Curran, Lawyer Demographics 4, 
paper presented at ABA Annual Meeting, 
Aug. 8, 1981.



44

substantial numbers. Id.
In 1971, Judge Harry T. Edwards, then a 

professor at the University of Michigan 
Law School, conducted a study of seventy-one 
law firms in seven midwestern states. A New 
Role for the Black Graduate —  A Reality or 
an Illusion? 69 Mich. L. Rev. 1407 ( 1 971 ).
The study revealed that while blacks com­
prised 8.1% of the population and 2.0% of 
the lawyers in the relevant states, they 
accounted for fewer than 0.6% of the total 
number of lawyers working at the responding 
firms (13 of 2,225), and only 0.8% of the 
partners (1 of 1,249). Id. at p p . 1434,
1438. Judge Edwards concluded that the 
major barrier to providing black lawyers 
with opportunities for "quality" practices 
was the "lack of interest on the part of
firms to employ beyond a 'token' minimum

30of Blacks." I_d. at 1 428 .—  See also M.

30/ Edwards, "Headwinds" Minority Placement 
in the Legal Profession, 16 L. Quadrangle 
Notes 15, 17 (U. of Mich. L.S., Spring
(1972)).



45

Goldman, supra note 4, at 6-7 (American Bar 
Foundation study reports that although a few 
Chicago firms in 1972 were willing to 
consider "a few highly qualified blacks" to 
work as "research attorneys" or in "low- 
status areas of the law," black law grad­
uates were still severely limited by the 
"persistence of formal and informal poli­
cies of segregation within most white law 
firms.")

Current studies confirm that although 
minorities have made progress in the past 
decade in attaining associate positions with 
firms, very few black lawyers have been 
promoted to the rank of partner. Thus, the 
progress that has been made will not have 
lasting effect unless the growing number of 
black associates is guaranteed an oppor­
tunity to continue their careers free from 
racially motivated employment decisions.

A study recently published by Geraldine 
Segal reports the 1980 racial composition of 
325 law firms in sixteen cities. G. Segal,



46

Blacks in the Law (1983). This study in­
cludes data from 218 "medium size" firms, 
each employing twenty-five to ninety law­
yers, and 107 large firms, each with more 
than ninety attorneys. These firms ac­
counted for over 28,000 lawyers. From this 
extensive study, Ms. Segal concludes "that 
blacks in this country have not acquired 
their fair share of the opportunities and 
rewards potentially available from the 
pursuit of law." I_d. at 243.

A tabulation of the data gathered by 
Segal's study is contained in the attached 
Appendix. A brief summary of the figures 
for several cities suffices to demonstrate 
that blacks continue to be severely under­
represented in the legal progression, and 
that black lawyers in many metropolitan bars 
are grossly underrepresented in law part­
nerships.



- 47 -

% Blacks 
In City

% Black 
Lawyers 
In SMSA

% Black 
Lawyers 
In Firms

% Black 
Partners 
In Firms

A 1982 survey of 151 of the nation's 
largest 200 law firms confirmed Segal's 
finding regarding the unwillingness of most 
law firms to promote minorities to partner­
ship positions. National Law Journal, 
Dec. 20 , 1 982, at 1, 8, 10. Despite a
significant increase in the number of 
minority associates hired by these firms 
over the past decade, less than 30% of the 
firms surveyed employed a black partner. 
Id. Blacks accounted for only 54 of the 
total 9,210 partners (0.59%) of the 151

San
Atlanta Chicago Francisco 

65.7 34.7 11.3

5.02 3.25 3.43

1.8 1 . 1 1 . 1

02 . 02 . 01

firms.



48

An even more recent pronouncement on 
the failure of law firms to provide minor­
ities with equal employment opportunities 
came at this year's American Bar Association 
midyear meeting. In a program co-sponsored 
by the ABA Section on Legal Education and 
the National Association for Law Placement 
(NALP), officials form both of these organ­
izations along with law students and law 
firm hiring partners expressed deep concern 
over the continued practice of many law 
firms to discriminate on the basis of race. 
See Minority Attorneys Struggle to Land that 
First Job, Legal Times, Feb. 7, 1983, at 32, 
31. The results of a NALP presented at 
this program were plain: "minorities re­
mained dramatically underrepresented in 
private law firms." Id_. at 32.

C. A Failure to Permit Title VII 
Scrutiny of Partnership Promotion 
Decisions Will Have Far-Reaching 
Effects and Inhibit Integration of 
the Entire Legal Profession.

This case involves a narrowly drawn



49

question of law related solely to Title VII
of the Civil Rights Act of 1 964 and its
coverage. No issues are raised related to
the "separate, distinct, and independent
remedies provided under 42 U.S.C. §1981 or
similar statutes. J oh n s o n_ v  R ailway
Express Agency, 421 U.S. 454, 461 (1975);
see B. Schlei and P. Grossman, Employment

11/D iscrim ination L a w , 635-39 (1976).
Nevertheless, amicus believes that the 
resolution of the issue presented here is of 
tremendous importance to racial minorities 
and to the future of the legal profession.

Today, the partnership promotion pro­
motion process within law firms is the most 
firmly entrenched racial barrier in a long 
history of barriers that have denied blacks 
equal access to the legal profession. The

31/ Additionally, because the courts below 
dismissed the Petitioner's complaint prior 
to the introduction of evidence, this case 
does not present many of the more subtle 
substantive issues that might properly pre­
sent themselves in later actions if the 
judgement here is reversed.



50

sanctioning of such a discriminatory barrier 
by this Court would be perceived by minor­
ities as a clear message that black lawyers, 
as a group, will remain exiled at the 
"fringe of the profession." Gellhorn, supra 
note 3, at 1070. A closing off of the "top 
of the ladder" would create "frustration, 
dissatisfaction, and disillusionment," Ed­
wards, supra p. 34, at 1431, and have both 
direct and indirect effects on the employ­
ment opportunities available to minorities.

In 1980 there were over 1100 law firms 
that employed twenty or more lawyers, and 
this number was expected to increase. B. 
Curran, Lawyers Demographics, supra note 29, 
at 11. Most of these firms are located in 
metropolitan areas, where the majority of 
minority lawyers seek employment. Id̂ . at 10 
(48% of the private practitioners in the 
District of Columbia are employed in firms 
of ten or more lawyers). Thus, in the most 
direct and limited sense, if the judgement 
in this case becomes the law of the land,



51

tens of thousands of jobs in the legal 
profession will be cordoned off as an area 
of authorized discrimination. Added to this 
could be hundreds of thousands of partner­
ship positions in other professions that 
are, or could be, organized as partnerships.

Moreover,, the failure to provide some 
legal assurance that a black associate will 
not be denied partnership and discharged for 
racially motivated reasons will undoubtedly 
limit the number of blacks willing to accept 
positions with firms. Despite the trial 
court's chimerical prognosis that a quali­
fied associate who is denied partnership 
remains "just as much a promising young 
lawyer" who "will simply have to seek 
stardom elsewhere," 25 Empl. Prac. Dec. 
31,703 at 20,064, it is unlikely that many 
blacks will wish to spend a significant 
portion of their careers working for 
firms, and for a firm's clients, at the risk 
of being moved "up and out" by racially 
motivated and premised decisions. Partner­



52

ship positions, with their security, re­
sponsibility and renumerat ion remain the 
"strongest reward" attracting and motivating 
law firm associates. E. Smigel, supra p. 
33, at 259; see also Nelson, Practice and 
Privilege: Social Change and the Structure 
of Large Law Firms, 1981 Amer. Bar Fnd. 
Research J. 97. If these positions can be 
distributed according to racial prejudice or 
sterotyped characterizations, the desire of 
black lawyers to spend five or more years as 
an associate will be greatly diminished.

Finally, because of the position of law 
firm partners at the perceived apex of the 
stratified legal profession, see Goldman 
note 9, at 3-5, the message conveyed 
by an affirmance of the judgement below 
would dissuade many blacks from entering the 
profession at all. See Brown, R a£_i al 
Discrimination in the Legal Profession, 53 
Judicature 385, 386 (1970)("[1]aw firms must 
also realize that their disinterest in 
hiring black lawyers discourages potential



53

black college graduates from ever enrolling 
in law school"); see also G. Myrdal, supra 
note 1, at 550 (discriminatory treatment 
results in socialized perception, within 
minority group, that minorities are incom­
petent and unable to function in lawyer's 
role).

The necessity of keeping upper level 
positions open finds support in the legis­
lative history of Title VII. In 1 972, 
Congress specifically considered and re­
jected a proposal to exempt physicians and 
surgeons from Title VII coverage. Speaking 
in opposition to the exemption, Senator 
Javits said:

One of the things that those dis­
criminated against have resented the 
most is that they are relegated to the 
position of the sawers of wood and the 
drawers of water; ... they cannot 
ascend the higher rungs in professional 
and other life.

Yet, this amendment would ... re­
instate the possibility of discrimina­
tion on grounds of ethnic origin, 
color, sex, religion ... [for] one of 
the rungs of the ladder ... and thus 
lock in and fortify the idea that being 
a doctor or a surgeon is just too good



54

for members of a minority. 18 Cong. 
Rec. 3802 (1972).

The desire to open upper level positions to 
encourage minority advancement at all levels 
was also a motivation behind the 1972 exten­
sion of Title VII to cover academic institu-

32/ 33/tions,—  and government employment.
Bartholet, supra p. 37, at 980-83.

This Court has repeatedly observed that 
"in enacting Title VII of the Civil Rights 
Act of 1964, Congress intended to prohibit 
all practices in whatever form which create 
inequality of employment opportunity due to 
discrimination on the basis of race, reli­
gion, sex, or national origin [citations 
omitted], and that its policy of outlawing

32/ See, e.g., S. Rep. No. 415, 92d Cong., 
1st Sess. 12 (1971) (minorities must be 
ensured equal opportunity to "the higher­
paying and more prestigious positions in the 
institutions of higher learning").
33/ Id. at 14 (criticizing "inordinate 
concentrations of minorities and women in 
the lower [civil service] grade levels, and 
their conspicuous absence from the higher 
grades") See, e.g., H. Rep. No. 238, 92d Cong., 1st Sess. 23-24 (1971).



55

such discrimination should have the 'highest 
priority.'" Franks v. Bowman Transport Co., 
424 U.S. 747, 763 (1976)(citations omitted).

CONCLUSION
The courts below failed to appreciate 

the substantial effect that the judgement 
here would have on employment practices 
throughout the bar. To accomplish the 
purposes of Title VII, this Court should 
reverse the judgement of the Eleventh 
Circuit.

Respectfully submitted,

Jack Greenberg 
Charles S. Ralston 
Gail J. Wright 

Suite 2030 
10 Columbus Circle 
New York, NY 10019 
[212]586-8397

Elizabeth Bartholet 
Harvard Law School 
Cambridge, Massachusetts 
[61 7] 495 — 31 28

Attorneys for the NAACP 
Legal Defense and Educa­
tional Fund, Inc.

Dated: May 9, 1983



1 »

la -
APPENDIX
1Law Firros-

City/Type 
of Firm

Itotal
Law­
yers

Black
Lawyers

Total
Part­
ners

Black
Part­
ners

Ttatal
Asso­
ciates

Black
Asso­
ciates

Atlanta
Large Firms 
Medium Firms 
All Firms

432
620
1052

4(0.9%)
15(2.4%)
19(1.8%)

212
278
490

1(0%)
1(0.4%)
1(0.2%)

220
342
562

4(1.8%)
14(4.1%)
18(3.2%)

Boston
Large Firms 
Medium Firms 
All Firms

368
1015
1383

4(1.1%)
9(0.9%)
13(0.9%)

182
524
706

1(0.5%)
1(0 .2%)
2(0.3%)

186
491
677

3(1.6%)
8(1.6%)

1 1(1.6%)

Chicaqo 
Large Firms 
Medium Firms 
All Firms

1691
2050
3741

22(1.3%)
19(0.9%)
41(1.1%)

812
1000
1812

2 (0 .2%)
1(0.1%)
3(0.2%)

879
1050
1929

2 0(2.2%)
18(1.7%)
38(2.0%)

Cleveland
Large Firms 
Medium Firms 
All Firms

536
584

1120

8(1.5%)
1 2(2.1%)
2 0(1.8%)

246
268
514

2 (0.8%)
2(0.7%)
4(0.8%)

290
316
606

6 (2.1%)
10(3.2%)
16(2.6%)

Columbus
Large Firms 
Medium Firms 
All Firms

223
42
265

5(2.2%)
1(2.4%)
6(2.3%)

111
24
135

0 (0%)
0 (0%)
0 (0%)

112
18
130

5(4.5%)
1(5.6%)
6(4.6%)

Detroit 
Large Firms 
Medium Firms 
All Firms

212
363
580

8(3.8%) 
10(2.7%) 
18(3.1%)

103
206
309

0(0%)
2(1.0%)
2 (0 .6%)

109
162
271

8(7.3%)
8(5.0%)
16(5.9%)

Houston
Large Firms 
Medium Firms 
All Firms

1045
729
1774

1 0(1.0%)
7(1.0%)
17(1.0%)

424
301
725

0 (0%)
0 (0%)
0 (0%)

621
428
1049

1 0(1.6%)
7(1.6%)
17(1.6%)

Los Anqeles
Large Firms 
Medium Firms 
All Firms

716
1444
2160

16(2.0%)
26(1.8%)
42(1.9%)

250
682
932

2 (0.8%)
5(0.7%)
7(0.7%)

466
762
1228

14(3.0%)
2 1(2 .8%)
35(2.9%)

149, 154,1/ G. Segal, supra 1iote i, at pp. 1

180, 185, 190, 194, 205 (1983)

Citv
% Black 
Lawyerst 
in SMSA-

5.02%

2.07%

3.25%

4.97%

3.73%

5.42%

3.27%

3.38%

159, 165,

% Blacks 
in City 3 
Population~
65.7%

21. 1%

34.7%

42.5%

21.9%

61.6%

25.9%

13.4%

168, 170,

2/ Census of Population: Equal Employment Opportunity Special File [machine readable 
data file]/prepared by Bureau of Census, Washington: The Bureau. 1982.

3/ G. Segal, supra note 1, at 118.



t > +>

- 2a -

Law Firms-

Total Ttotal Black Total Black % Black % BlacksCity/Type Law- Black Part- Part- Asso- Asso- Lawyers, in City ,of Firm yers Lawyers ners ners dates dates in SMSA- Population-
Milwaukee 1.45% 22.9%
Large Firms 277 4(1.4%) 153 1(0.7%) 124 3(2.4%)Medium Firms 116 0(0%) 60 0(0%) 56 0(0%)
All Firms 393 4(1.0%) 213 1(0.5%) 180 3(1.7%)
Minneapolis 1.04% 7.6%
Large Firms 272 • 2(0.7%) 145 0(0%) 127 2(1.6%)Medium Firms 184 0(0%) 101 0(0%) 83 0(0%)All Firms 456 2(0.4%) 246 0(0%) 210 2(0.9%)
New York 2.59% 21.0%
Large Firms 3831 56(1.5%) 1267 1(0.1%) 2564 55(2.1%)Medium Firms 4280 40(0.9%) 1565 3(0.2%) 2715 37(1.4%)
All Firms 8111 96(1.2%) 2832 4(0.1%) 5279 92(1.7%)
Pittsburgh 2.63% 24.0%
Large Firms 497 3(0.6%) 236 1(0.4%) 261 2(0.8%)Medium Firms 145 0(0%) 62 0(0%) 83 0(0%)
All Firms 642 3(0.5%) 298 1(0.3%) 344 2(0.6%)
Philadelphia 3.67% 36.5%
Large Firms 1094 26(2.4%) 531 4(0.8%) 563 22(3.9%)Medium Firms 550 6(1.0%) 228 1(0.3%) 262 5(1.9%)All Firms 1644 32(1.9%) 759 5(0.7%) 825 27(3.3%)
Richmond 4.28% 50.7%
Large Firms 276 3(1.1%) 134 0(0%) 142 3(2.1%)Medium Firms 177 1(0.6%) 96 0(0%) 81 1(1.2%)
All Firms 453 4(0.9%) 230 0(0%) 223 4(1.8%)
San Francisco 3.43% 11.3%
Large Firms 927 14(1.5%) 397 1(0.2%) 520 13(2.5%)Medium Firms 727 5(0.6%) 312 0(0%) 415 5(1.2%)All Firms 1654 58(2.1%) 709 1(0.1%) 935 18(1.9%)
Washington, D.C. 6.57% 68.4%
Large Firms 361 22(2.5%) 352 4(1.1%) 509 18(3.5%)
Medium Firms 1867 36(1.9%) 877 7(0.8%) 990 29(2.9%)All Firms 2728 58(2.1%) 1229 11(0.9%) 1499 47(3.1%)
TOTALS
Large Firms 13258 207(1.6%) 5555 19(0.3%) 7693 188(2.4%)Medium Firms 14898 187(1.3%) 6584 23(0.3%) 8254 164(2.0%)All Firms 28156 394(1.4%) 12139 42(0.3%) 15947 352(2.3%)