Modification of Order

    No. 791213

In %  &u#ym t OIrrurt rtf %  Intto
October Term, 1980

Wayne Minnick, et  al., petitio n ers

v.
California Department of Corrections, et al.

ON WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF 
APPEAL, FIRST APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES AND THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

W ade H. McCree, Jr .
Solicitor General

Drew  S. Days , III 
Assistant Attorney General

Lawrence  G. W allace 
Deputy Solicitor General

Edw in  S. K needler 
Assistant to the Solicitor General

Brian  K. Landsberg 
Jessica D unsay  Silver 
V incent  F. O’R ourke, Jr .
A ndre M. Davis

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217

Leroy D. Clark  
General Counsel

L utz A lexander P rager 
P aul E. M irengoff

Attorneys
Equal Employment Opportunity 

Commission
Washington, D.C. 20506



1\\ tlrr tour! nf %  Hutted
October  T e r m , 1980

No. 79-1213

W a y n e  M in n ic k , et a l ., petition ers

v.

Ca lifo r n ia  D e pa r t m e n t  of Corrections , et a l .

ON WRIT OF CERTIORARI TO THE CALIFORNIA COURT OF 
APPEAL, FIRST APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES AND THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

QUESTIONS PRESENTED

1. Whether the decision of the California Court of 
Appeal is a final judgment or decree subject to review in 
this Court under 28 U.S.C. 1257 (3).

2. Whether state courts have jurisdiction over actions 
brought under Title VII of the Civil Rights Act of 1964.

3. Whether the California Court of Appeal properly 
reversed the state trial court’s injunction barring re­
spondents from considering race, national origin,* or sex 
in their hiring and promotion decisions under any cir­
cumstances.

* In the interest of brevity, we will use the term “ race” to 
include “national origin.”

(I)



TABLE OF CONTENTS
Page

Interest of Amici Curiae ......... ................... .................... 1
Statement ________ __ ___________ ___________ _______ 1
Summary of argument _______ _______ ____ ________  5
Argument:

I. The writ of certiorari should be dismissed be­
cause the decision below is not a final judgment
or decree reviewable under 28 U.S.C. 1257(3).. 7

II. The question whether respondents’ affirmative
action program violates Title VII of the Civil 
Rights Act of 1964 is not properly presented 
because state courts do not have jurisdiction of 
actions under Title VII __________ ___ _______  11

III. The Court of Appeal properly reversed the trial 
court’s injunction prohibiting respondents, un­
der any circumstances, from taking race or sex 
into account in particular employment decisions.. 15
A. The Fourteenth Amendment does not pro­

hibit a state agency from remedying the 
effects of its past discrimination by volun­
tarily adopting an affirmative action plan 
that permits race or sex to be considered as 
a factor in selecting employees for positions 
that reasonably appear to have been affected
by such discrimination ________________ _ 16

B. The Court should not reach the operational
needs justification ______ ___ ____ ________  26

Conclusion____________ __ _______________________ _ 31

TABLE OF AUTHORITIES
Cases:

Albemarle Paper Co. V . Moody, 422 U.S. 405 ___ 15, 21
Alexander V . Gardner-Denver Co., 415 U.S. 36..13,14, 22 
Bakke V . Regents of the University of California,

18 Cal. 3d 34 ______ ______ _____ _____________  4

(III)



Bateman V. Arizona, 429 U.S. 1302 ..... -.... ............ 10
Califano V. Goldfarb, 430 U.S. 199 ___ _________ 17
Califano V. Webster, 430 U.S. 313 __________ ___  17, 25
California V. Arizona, 440 U.S. 59 ____________  11
California V. Krivda, 409 U.S. 33 ...... ..................... 10
Chandler V. Roudebush, 425 U.S. 840 __________  21
Charles Dowd Box Co. V. Courtney, 368 U.S. 502.. 13
City of Rome V. United States, No. 78-1840 (Apr.

22, 1980) ____    19
Claflin V. Houseman, 93 U.S. 130 _______ _______  12
Cox Broadcasting Corp. V. Cohn, 420 U.S. 469.... 8, 9
Cruz V. Beto, 405 U.S. 319 ______________ ___ _ 28
Dayton Bd. of Educ. V. Brinkman, 443 U.S. 406.. 16
Doremus V. Board of Education, 342 U.S. 429 .....  10
Dothard V. Rawlinson, 433 U.S. 321 ________ ___  1, 21
East Texas Motor Freight System, Inc. V. Rod­

riguez, 431 U.S. 395 ____ ___ ________________  10,15
England V. Louisiana State Board of Medical Ex­

aminers, 375 U.S. 411 ------------   14
Erlin V. National Union Fire Ins. Co., 7 Cal. 2d

547 __________________________________ ___ -..... 7
Fox V. Eaton Corp., 615 F.2d 716, petition for cert.

pending, No. 79-1856 _____________    11
Fullilove V. Klutznick, No. 78-1007 (July 2, 1980..4, 9, 19,

23, 24, 25
Furnco Construction Co. V. Waters, 438 U.S. 567.. 23
General Telephone Co. V. EEOC, No. 79-488 (May

12, 1980) _________ ___________ ___________ 10, 13, 15
Gospel Army V. Los Angeles, 331 U.S. 543 --- -----  7, 9
Green V. County School Board, 391 U.S. 430 ____ 16
Gunther V. Iowa State Men’s Reformatory, 612 

F.2d 1079, cert, denied, No. 79-1566 (May 27,
1980) .................. ............-............... --------------------  11

Hazelwood School District V. United States, 433
U.S. 299 _________ __ ______ __ ____________20,23,30

Hills V. Gautreaux, 425 U.S. 284 ..... .................... . 16
Hirabayashi V. United States, 320 U.S. 81 .........  29
Kahn V. Shevin, 416 U.S. 351 ........ .......... ........ —  17
Katzenbach V. Morgan, 384 U.S. 641 __________  19, 23
Korematsu V. United States, 323 U.S. 214 ...........  29
Lee V. Washington, 390 U.S. 333 ______ _________  28
Louisiana v. United States, 380 U.S. 145 .............. 16

IV
Cases— Continued Page



y

Love V. Pullman, 404 U.S. 522 _________________  13
Martinez V. California, 444 U.S. 277 __________  11,12
McDaniel V. Barresi, 402 U.S. 39 _______________ 16
Mercantile Nat’l Bank V. Langdeau, 371 U.S. 555.. 13
Mohasco Corp. V. Silver, No. 79-616 (June 23,

1980) ____________ ____ ______________________- 20
Nebraska Press Ass’n V. Stuart, 427 U.S. 539 ----  10
New York Gaslight Club, Inc. v. Carey, No. 79-

192 (June 9, 1980) ________ ______ __________  13,14
Occidental Life Ins. Co. V. EEOC, 432 U.S. 355.... 13
People V. Shuey, 13 Cal. 3d 835, 120 Cal. Rptr. 83.. 7
Peterson V. Eastern Airlines, 20 Fair Empl. Prac.

Cas. 1322 ______ _____________________________ 15
Philadelphia Newspaper, Inc. V. Jerome, 434 U.S.

241 ............... ..... ........................................-----------  10
Regents of the University of California V. Bakke,

438 U.S. 265 .... .......... 3 ,4,10,15,16,19,21,22,23,26
Salaman V. Bolt, 74 Cal. App. 3d 907, 141 Cal.

Rptr. 841 --------- ---- ------ ---------- ---------------- ---- 7
Schlesinger V. Ballard, 419 U.S. 498 ___________  17
Sinicropi V. Nassau City, 601 F.2d 60, cert, denied,

444 U.S. 983 ________________ ___ ____ __ ____  14
Steelworkers V. Weber, 443 U.S. 193 ___________  6, 21
Stromer V. Browning, 268 Cal. App. 2d 513, 74

Cal. Rptr. 155 _____ _________________________ 7
Swann V. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 ________ _____________  _________ _ 16
Teamsters V. United States, 431 U.S. 324 ______  20, 24
Testa V. Katt, 330 U.S. 386 _________ __ ________ 12
United Jewish Organizations V. Carey, 430 U.S.

144 _______ ____________- ________________ 16, 19, 23
United States V. City of Los Angeles, 595 F.2d

1386 _______________ ________________________  24
Village of Arlington Heights v. Metropolitan Hous­

ing Corp., 429 U.S. 252 ................. ............. ........ 25

Cases— Continued Page

Constitution, statutes, rules and regulations:
United States Constitution, Fourteenth Amend­

ment _____________ __________1, 6, 8, 15,16, 17, 22, 23
Civil Rights Act of 1964, Title VII, 42 U.S.C.

2000e et seq. ....... ......................... ......... ............... passim



VI

Constitution, statutes, rules and regulations— Continued

Section 705, 42 U.S.C. 2000e-4 _____________ 1
Section 706, 42 U.S.C. 2000e-5 ____________ 1, 5,12
Section 706(b), 42 U.S.C. 2G00e-5(b) ............ 12
Section 706(f) (1), 42 U.S.C. 2000e-5(f) (1).. 1, 12
Section 706 ( f ) (2), 42 U.S.C. 2000e-5 ( f ) (2).. 12
Section 706(f) (3), 42 U.S.C. 2000e-5(f) (3).. 12,13
Section 706 ( f ) (4), 42 U.S.C. 2000<^5 ( f ) (4).. 12
Section 706 ( f ) (5), 42 U.S.C. 2000&-5 ( f ) (5).. 12

Omnibus Crime Control and Safe Streets Act of
1968, 42 U.S.C. 3701 et seq------------------------------  1, 23

Pub. L. No. 92-261, Section 2, 86 Stat. 103..... 17
28 U.S.C. 1257 ________________________________  8
28 U.S.C. 1257(3) _____________________________ 5,7,10
28 U.S.C. 1291 ________ __ ___________________ -  12
28 U.S.C. 1292 ________________________________  12
Fed. R. Civ. P .:

Rule 53 ................... ......... ------.............- - ...... ~~ 12
Rule 65 _____ ____ __ _____________ ___ ____  12

28 C.F.R.:

Section 42.203 (i) ____    23
Section 42.301 et seq. --------------------------------- 2
Section 42.306(b) and (c) (1976) ----   29
Section 50.14 .....................—...........  23

29 C.F.R.:

Section 1601.25 (b) (a) (1971) ------------------  15
Section 1601.25 (c) (a) (1973) — ................. . 15
Section 1601.28 (1979) ____________________  15
Section 1608.1 --------------     23

Miscellaneous:

21
18, 19, 20 

18

Page

110 Cong. Rec. 6548 (1964)
118 Cong. Rec. 1816 (1972)
119 Cong. Rec. 20070 (1973)



Miscellaneous— Continued Page
122 Cong. Rec. (1976) :

p. 33880 ...............      24
p. 34118 18

35 Fed. Reg. 10006 (1970) ____ _________________  15
37 Fed. Reg. 9219 (1972) ______________________  15
41 Fed. Reg. 38814 (1976) ............................. .........  23
42 Fed. Reg. 55393 (1977) _____    15
44 Fed. Reg. 4422 (1979) ___ __ ____________ _ 23
H.R. Conf. Rep. No. 94-1723, 94th Cong., 2d Sess.

(1976) ---------------------------------------------------------- 30
H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971) .. 14, 17,

18, 20
M. Redish & S. Muench, Adjudication of Federal 

Causes of Action in State Court, 76 Mich. L.
Rev. 311 (1976) ________    11

S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971) .... 14, 18,
19, 20

United States Commission on Civil Rights, For All 
the People—By All the People—A Report on 
Equal Employment Opportunity in State and 
Local Government Employment (1969) _______ 20

vn



INTEREST OF AMICI CURIAE
Petitioners challenge, under Title VII of the Civil 

Rights Act of 1964, as amended, 42 U.S.C. 200Ge et seq., 
and the Fourteenth Amendment to the Constitution, an 
affirmative action program implemented by respondent 
California Department of Corrections. The Equal Employ­
ment Opportunity Commission has responsibility to admin­
ister, interpret, and enforce Title VII of the Civil Rights 
Act. 42 U.S.C. 20Q0e-4 and 5. The Attorney General has 
enforcement responsibility under Title VII when the em­
ployer is a government, governmental agency, or political 
subdivision. 42 U.S.C. 2000e-5(f) (1).

Moreover, respondent California Department of Cor­
rections has received funds under the Omnibus Crime 
Control and Safe Streets Act of 1968, as amended, 42 
U.S.C. 3701 et seq., which is administered by the Law En­
forcement Assistance Administration (LEAA). The non­
discrimination provisions of that Act and implementing 
LEAA regulations are of some relevance in this case.

STATEMENT
Petitioners contend that respondents, acting pursuant 

to an Affirmative Action Program adopted in 1974 (Exh. 
G) and revised in 1975 (Exh. R ), impermissibly discrim­
inate on the basis of race and sex by giving preferences 
to women and minorities in hiring and promotions. The 
written Program says nothing about how, or even whether, 
race or sex may be taken into account in individual hiring 
or promotion decisions,1 It describes other measures to be 
taken to fulfill the policy of equal employment opportunity 
— e.g., undertaking aggressive recruiting measures di­
rected to women and minorities (Exh. R at 15, 22-24) ;

1 The Program, as revised in 1975, provides that each institu­
tion and parole region was to develop an affirmative action plan 
“ directed toward actively seeking out minorities and women and 
encouraging job retention by creating a realistic climate for equal 
opportunity in the Department of Corrections. The plan must give 
priority consideration to minorities and women in all hiring and 
promotional practices” (Exh. It at 6; emphasis added). The Program 
does not, however, direct that any preference be given.

(1)



working with the State Personnel Board to ensure that 
qualifications are job-related {id. at 14, 24, 32) ; providing 
job-related training to all employees, with special focus on 
minorities and women {id. at 34-35) ; and training all 
employees in equal employment opportunity matters {id. 
at 36-38). Petitioners do not challenge these aspects of 
the Program (Pet. Br. 38; Pet. App. F-4) which, at all 
events, appear to be required by LEAA regulations. 28 
C.F.R. 42.301 et seq. However, petitioners do contend 
that officials of the Department, motivated by the aims of 
the written Program, impermissibly give preference to 
women and minorities in individual hiring and promotion 
decisions.

At trial, officials of the Department testified that it 
is the Department’s policy to hire and promote only the 
most qualified applicants (R.T. 194, 203-206, 333-334, 383, 
452-453, 483, 487-488, 548, 563-564, 591, 666, 668, 672, 773, 
777-778, 792, 882). However, the officials, in response to 
hypothetical questions about how that policy was to be im­
plemented, testified that the fact that an applicant is a mi­
nority or woman is a consideration that would be taken into 
account, along with other factors, in determining appli­
cants’ qualifications for positions where there is an under­
representation of women or minorities (R.T. 227-228, 284, 
309, 372-374, 382-383, 453-454, 498-499, 600, 793). The 
effect was described to be that if competing applicants were 
reasonably equally qualified, the minority individual or 
woman would get the position (R.T. 289, 601). No fixed 
percentage of positions was reserved for women and minor­
ities (Pet. App. A-7, A-16), nor was there an official policy 
of setting positions aside for them, except where female or 
male-only certifications were obtained because sex was a 
bona fide occupational qualification.2

2 The Court of Appeal did note (Pet. App. A-7) that some posi­
tions were designated for one sex. Designations of positions by sex 
may, of course, be justified under Title VII and the Fourteenth 
Amendment where sex is a bona fide occupational qualification. 
Dothard V. Rawlinson, 433 U.S. 321, 332-337 & n.20 (1977). 
No assessment of the particular positions affected is available on 
the present record.

There were also certain instances in which positions were identi­
fied as being reserved for minorities. But, as respondents point out

2



3

The evidence did not show, and the state courts did 
not determine, what weight was given to race or sex in 
any particular instance when it actually was taken into 
account. Indeed, petitioners did not establish and the trial 
court did not find any specific occasion in which a lesser 
qualified minority or female applicant was selected over a 
more qualified white or male. Nor did the Court of Appeal 
identify any such specific instance. The Court of Appeal 
noted (Pet. App. A-6 to A-7) only that, although the quali­
fications of non-minorities and males “ are still ‘weighed 
fairly and competitively’ ”  (Pet. App. A-16, quoting Re­
gents of the University of California v. Bakke, 438 U.S. 
265, 317-318 (1978) (Powell, J .) ), “ [s]ome evidence sup­
ported the inference that this ‘plus’ [given to minorities and 
women] has occasionally contributed” to the promotion of a 
minority or woman ahead of a more qualified applicant. 
The court found no evidence, however, of any specific in­
stance in which a preference was given in initial hiring (see 
also note 5, infra).® On this record, then, petitioners’ chal­
lenge to respondents’ employment practices is a challenge 
only to the Department’s promotional practices on their 
face.3 4

(Resp. Br. 8), responsible Department officials testified that this 
was never the Department’s policy and that when such incidents 
were brought to the attention of supervisors they were promptly 
corrected. Neither the trial court nor the Court of Appeal made 
any finding that those corrective measures were inadequate.

3 Even with the Department’s affirmative action efforts, non­
minorities and males continued (in the period reflected in the 
record thus far) to receive a large portion of the promotions in 
the Department. In 1975, whites received 72% of the promotions 
to the higher ranking security positions, Correctional Program 
Supervisor II and III (Exh. D). In that year, males received 
94% of the promotions to these positions (ibid). Whites received 
70% of the Department-wide promotions in 1976 (R.T. 679).

4 Thus, petitioners do not challenge an application of the policy 
to any particular employment decision— e.g., on the ground that the 
factor of race or sex was given too much weight, that a female or



Respondents contend (Resp. Br. 26-28, 34-43) that this 
policy permitting preferences in particular cases furthers 
a compelling interest in remedying the effects of past dis­
crimination by the Department. They also contend (id. at 
28-33, 43-50) that the policy furthers the compelling state 
interest in promoting prison security and fostering inmate 
rehabilitation. The trial court made no finding whether 
either of these purposes was supported by the evidence. 
Indeed, the trial court viewed the purpose to be furthered 
by the plan— and whether past discrimination existed— to 
be irrelevant (Pet. App. A-22 to A-23; 5 /5/77 Tr. 132; 
4/14/77 Tr. 20; R.T. 344). It was the trial court’s con­
clusion, apparently based on the California Supreme 
Court’s decision in Bakke v. Regents of the University of 
California, 18 Cal. 3d 34, 553 P.2d 1152, 132 Cal. Rptr. 
680 (1976), that respondents were prohibited from giving 
consideration to race, sex, or national origin in individual 
hiring and promotion decisions under any circumstances, 
and it enjoined them from doing so (Pet. App. D-2, F-4, 
G-2).

On appeal, the California Court of Appeal concluded 
that under this Court’s decision in Regents of the Uni­
versity of California v. Bakke, 438 U.S. 265 (1978), 
which was decided after the trial court’s decision, the 
Fourteenth Amendment does not preclude consideration 
of race or sex where necessary to further a compelling 
state interest (Pet. App. A-14 to A-15). The Court of 
Appeal therefore reversed the Superior Court’s injunc­
tion barring consideration of race or sex under any cir­
cumstances. Like the trial court, the Court of Appeal did 
not consider whether the Department’s promotions policies 
could be supported as a means to remedy past discrimina­
tion by the Department; it left this issue open for consider­
ation on remand (Pet. App. A-23). But the Court of Appeal
minority individual who was not qualified nevertheless was ap­
pointed, or that race or sex was taken into account in selecting 
employees for positions in which minorities or women were not 
underrepresented. Compare Fullilove v. Klutznick, No. 78-1007 
(July 2, 1980), slip op. 28-29, 34-35 (opinion of Burger, C.J.). In­
deed, the only individual petitioners in this case, Minnick and 
Darden, were found not to have been qualified for promotion to the 
positions they sought (Pet. App. A-9, A-23).

4



5

did conclude that those practices could be supported by Cali­
fornia’s compelling interest in the proper management 
of its correctional system (Pet. App. A-17). Even this issue, 
however, was left open for further examination on retrial. 
See point I, infra.

SUMMARY OF ARGUMENT
I.

A. The Court of Appeal’s decision is not a final judg­
ment or decree subject to review under 28 U.S.C. 1257 (3). 
Under California law, an appellate decision reversing a 
trial court judgment remands the case for a new trial as if 
a judgment had never been entered, unless the appellate 
court indicates a contrary intention. Here, the Court of Ap­
peal’s decision plainly contemplates a retrial. This case does 
not fall into any exceptions to the final judgment rule, be­
cause the new trial will be on the very federal questions pe­
titioners raise in this Court, and many factual issues bear­
ing on these questions remain to be explored.

B. The Court of Appeal held that respondents’ practices 
do not violate Title VII of the Civil Rights Act of 1964. In 
our view, however, jurisdiction of Title VII claims is exclu­
sively in the federal courts. Section 706 of the Act provides 
that federal district courts “ shall have jurisdiction” of such 
cases, and the structure of the Act is indicative of a legisla­
tive intent that this jurisdiction would be exclusive, as a 
supplement to available state remedies. The legislative his­
tory of Title VII and decisions of this Court reinforce this 
conclusion.

II.
If the Court reaches the merits, it should affirm the 

judgment of the California Court of Appeal, which re­
versed the trial court’s injunction barring respondents 
from considering the race or sex of an applicant under 
any circumstances.

A. The Fourteenth Amendment does not bar a state 
agency from giving limited, class-based preferential treat­
ment to qualified women or minorities in order to remedy 
the effects of its own prior discrimination. Indeed, the Con­



6
stitution requires consideration of race to remedy the pres­
ent effects of past discrimination, and a state may do so 
even where there has been no judicial determination of past 
discrimination. When Congress extended Title VII to state 
and local governments in 1972, it found that racial discrim­
ination by these entities has a particularly deleterious ef­
fect because it promotes ignorance of minority problems on 
the part of government officials and creates distrust of the 
government by minorities.

A state agency ordinarily is the appropriate authority to 
remedy its own past discrimination. It has access to all rele­
vant information and has the expertise to identify and ana­
lyze its previous practices to determine if they were the re­
sult of discrimination, subtle or overt. A state agency’s rem­
edying of its own discrimination is also consistent with the 
policy reflected in Title VII of deferring to the states and 
localities in remedying employment discrimination. In fash­
ioning an appropriate remedial program, the agency is not 
confined to identifying particular instances of discrimina­
tion and affording individualized relief on a case-by-case 
basis. In order to undo the impact on society at large of its 
employment discrimination, it is especially appropriate for 
a state agency to adopt measures designed to increase 
minority representation on the work force to the level that 
would have obtained in the absence of discrimination.

Moreover, Title VII is to serve as a catalyst to cause 
employers to self-evaluate their employment practices and 
to endeavor to eliminate discrimination. As we explained 
in our brief in Steelworkers v. Weber, 443 U.S. 193 
(1979), if this self-evaluation discloses a sound basis on 
which it reasonably could be concluded that the employer 
has violated Title VII, it may voluntarily undertake 
measures to remedy that violation. A governmental 
agency should not be held to violate the Fourteenth 
Amendment if it reasonably and in good faith takes meas­
ures to comply with a statute enacted by Congress to 
enforce that Amendment.

B. Respondents’ alternative justification for its employ­
ment practices—-that they promote prison security and



1
inmate rehabilitation— creates a significant potential for
involving the government in reinforcing racial stereo­
types. It could be supported only by the most compelling 
circumstances, which have not been demonstrated on the 
record. The Court need not reach this question, however. 
The preferable course in a case such as this is first to 
determine what measures are appropriate to remedy prior 
discrimination, for which some class-based, race-conscious 
relief is permissible. Only then should the court consider 
what, if any, additional measures are justified by the em­
ployer’s operational needs. The trial court may follow this 
course on remand.

ARGUMENT

I. THE WRIT OF CERTIORARI SHOULD BE DIS­
MISSED BECAUSE THE DECISION BELOW IS 
NOT A FINAL JUDGMENT OR DECREE REVIEW- 
ABLE UNDER 28 U.S.C. 1257(3)

Under California law, an appellate decision reversing a 
trial court judgment vacates the judgment and returns 
the case for a newT trial “ as if no judgment had ever 
been rendered.” See Salaman V. Bolt, 74 Cal. App. 3d 
907, 914, 141 Cal. Rptr. 841, 844 (1977), and cases cited. 
Because a reversal “places the parties in the same position 
as if the case had never been tried,” the losing party in the 
appellate court is free on retrial to introduce additional evi­
dence in support of its claims. See Gospel Army v. Los An­
geles, 331 U.S. 543, 547 (1947), quoting Erlin V. National 
Union Fire Ins. Co., 7 Cal. 2d 547, 549 (1936). The only 
exceptions to this rule are where the appellate court clearly 
does not intend a new trial, see, e.g., Stromer v. Browning, 
268 Cal. App. 2d 513, 518-519, 74 Cal. Rptr. 155, 158 
(1968), or where the appellate court finally resolves a dis­
positive legal issue which does not turn upon facts which 
might change at a new trial. 268 Cal. App. 2d at 520; 
74 Cal. Rptr. at 160; People v. Shuey, 13 Cal. 3d 835, 
842, 533 P.2d 211, 216, 120 Cal. Rptr. 83, 88 (1975).

In the present case, the Court of Appeal plainly did 
not intend to foreclose a new trial or determine an issue 
in a manner that would be unaffected by the introduction



8
of new evidence. To the contrary, the court expressly ob­
served that it need not consider the relevance of respond­
ents’ evidence of prior discrimination or the validity of 
another of the trial court’s findings because both ques­
tions would be determined “ [ i] f  the case is to be retried” 
(Pet. App. A-23). The Court of Appeal also observed that 
questions of jurisdiction and standing would “ require ex­
amination if the case is to be retried” (Pet. App. A-24). In 
these circumstances, this Court’s decision in Gospel Army 
v. Los Angeles, supra, compels the conclusion that the Court 
of Appeal’s decision is not a final judgment or decree under 
28U.S.C. 1257.

The Court has carved out certain exceptions to the 
finality requirement where the highest court of a State 
“has finally determined the federal issue present in a 
particular case, but in which there are further proceed­
ings in the lower state courts to come.” Cox Broadcast­
ing Corp. y. Cohn, 420 U.S. 469, 477 (1975). But the excep­
tions to the finality rule discussed in Cox apply in situations 
in which the further proceedings in state court are on non- 
federal issues. Id. at 477-487. Here, the further proceedings 
in state court would be on the very federal issues that peti­
tioners seek to have reviewed by this Court—whether, and 
to what extent, the Department’s practices are inconsistent 
with the Fourteenth Amendment and Title VII. The Court 
of Appeal hardly can be thought to have “ finally deter­
mined” these federal questions when it has given petition­
ers the opportunity to retry them, subject to further appel­
late review in the state courts.

It is true that the Court of Appeal held, on the basis 
of the record before it, that the Department’s practice of 
considering race or sex as one factor in assessing qualifi­
cations was not invalid on its face, in view of what is per­
ceived to be the Department’s compelling interest in the 
proper management of the correctional system. This ruling 
on the legal principle will govern further proceedings in the 
trial court, but will remain subject to review by this Court 
after a final judgment is rendered by the state courts. And 
the parties will be free on retrial to introduce additional 
evidence.



9
Moreover, the principal question in this case is whether 

petitioners are entitled to injunctive relief (Pet. App. 
A-9 & n.4, G). The trial took place more than four 
years ago, and concerned incidents that occurred early 
in the Program’s implementation. The new trial contem­
plated by the Court of Appeal presumably would be con­
cerned with whether petitioners are now entitled to in­
junctive relief, in light of experience under the Program, 
changed circumstances, and intervening developments in 
the law, including the decisions in Bakke and Weber, supra, 
and Fullilove v. Klutznick, No. 78-1007 (July 2, 1980). For 
example, respondents’ new Affirmative Action Program, 
adopted in 1979, could be taken into account, and the pas­
sage of time may have resulted in substantial changes in 
the composition of the work force and the Department’s se­
curity requirements, affecting the Department’s purported 
need to consider race or sex for operational purposes. Ac­
cordingly, even as to the asserted operational needs justifi­
cation, “ [w]e cannot assume that the [Court of Appeal] 
would hold the [practices] in question constitutional no 
matter what facts might be presented upon a second trial. 
Indeed, experience demonstrates that particularly in con­
stitutional cases issues turn upon factual presentation.” 
Gospel Army v. Los Angeles, supra, 331 U.S. at 548.

Finally, the Court of Appeal left open for consideration 
on remand whether respondents’ practices are justified to 
remedy past discrimination by the Department; accordingly 
the decision of the Court of Appeal plainly is not final on 
that question. Because the prior discrimination issue re­
mains unresolved, the decision of the Court of Appeal on the 
operational needs issue does not fall into the exceptions 
to the final judgment rule discussed in Cox Broadcasting 
Corp. v. Cohn, supra, for the additional reason that fur­
ther proceedings in the trial court would “ require the 
decision of other federal questions [i.e., the prior dis­
crimination issue] that might also require review by the 
Court at a later date * * 420 U.S. at 477.

Because the decision below is not a final judgment or 
decree, the Court is without jurisdiction to review the 
case at this time. Therefore, the writ of certiorari should



be dismissed. Even if the Court were to conclude that it has 
jurisdiction under 28 U.S.C. 1257 (3), the Court may wish 
to consider dismissing the writ as improvidently granted 
because of a number of other features of the case, set forth 
in the margin, that may not have been apparent when the 
petition for a writ of certiorari was granted.’5 6

6 ( 1 ) If the Court were to find the decision below “ final” , 
it could only be in the sense that the Court of Appeal finally re­
jected the trial court’s holding that the state’s consideration of 
race, sex, or national origin would be impermissible under any 
circumstances. That narrow question does not warrant review at 
this time in light of this Court’s decision in Regents of the Uni­
versity of California V. Bakke, supra, 438 U.S. at 272.

(2) The Court of Appeal perceived problems with petitioners’ 
standing and the state court’s jurisdiction that it concluded would 
“ require examination if the case is to be retried” (Pet. App. A-23 
to A-24). If it should turn out that the state court does not have 
jurisdiction or petitioners do not have standing under state law, 
this may be an adequate independent state ground supporting the 
judgment of the Court of Appeal. Philadelphia Newspaper, Inc. V. 
Jerome, 434 U.S. 241 (1978) ; California v. Krivda, 409 U.S. 33 
(1972). Further review of petitioners’ standing under state law 
might also shed some light on whether petitioners have properly 
invoked this Court’s Article III jurisdiction, in view of their failure 
to establish injury to any specific individual employee and uncer­
tainty respecting the likelihood of future injury. See Nebraska 
Press Ass’n V. Stuart, 427 U.S. 539-546 (1976) ; Doremus V. Boa,rd 
of Education, 342 U.S. 429, 434 (1952) ; Bateman v. Arizona, 429 
U.S. 1302, 1305 (1976) (Rehnquist, J.).

(3) The Court of Appeal reversed the trial court’s apparent 
finding (Pet. App. F-4, F-7, E-2) that the Department granted 
preferences to minorities and women in its hiring practices, holding 
(Pet. App. A-7 to A-8) that “ [tjhere was no substantial evidence of 
any instance in which [such preference] had been exercised in the 
‘initial hiring’ of a new employee.” See also Pet. App. A-17. More­
over, although petitioners Darden and Minnick (but not CCOA) 
sought to represent a class that would have included applicants for 
employment (First Amended Complaint, at 2), the Superior Court 
declined to certify the case as a class action (Pet. App. A-23). As a 
result, claims of discrimination in initial hiring are not properly 
before the Court. Cf. General Telephone Co. v. EEOC, No. 79-488 
(May 12, 1980), slip op. 12; East Texas Motor Freight v. Rodriguez, 
431 U.S. 395, 403 (1977). Questions 1, 2 and 3 presented by peti­
tioners (Pet. Br. i) must therefore be limited to promotions. For 
similar reasons, Questions 4 and 5 (ibid.), which challenge the 
validity of the five-year goals for employment of minorities and

10



II. THE QUESTION WHETHER RESPONDENTS’ 
AFFIRMATIVE ACTION PROGRAM VIOLATES 
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 
IS NOT PROPERLY PRESENTED BECAUSE 
STATE COURTS DO NOT HAVE JURISDICTION 
OF ACTIONS UNDER TITLE VII

The Superior Court held (Pet. App. E-2, F-7) that 
respondents’ employment practices violated Title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq. ) . 
The Court of Appeal reversed that portion of the judgment, 
finding no violation of Title VII (Pet, App. B-2). In our 
view, however, federal court jurisdiction of Title VII cases 
is exclusive 8 and the California courts were therefore with­
out jurisdiction to entertain petitioners’ Title VII claims.

Ordinarily state courts may enforce rights created by 
federal law. Indeed, this Court has indicated that concur­
rent jurisdiction “might be presumed” unless Congress pro­
vides to the contrary. See California v. Arizona, 440 U.S. 
59, 66-68 (1979). See generally M. Redish & S. Muench, 
Adjudication of Federal Causes of Action in State Court, 
76 Mich. L. Rev. 311, 313-325 (1976). Thus, as this Court 
recently stated in Martinez v. California, 444 U.S. 277 
(1980), with respect to 42 U.S.C. 1983, “ [where] ‘an act 
of Congress gives a penalty to a party aggrieved, without 
specifying a remedy for its enforcement, there is no rea­
son why it should not be enforced, if not provided other­
wise by some act of Congress, by a proper action in a * 6

women, are not properly presented for review. The Court of Appeal, 
after reviewing the Affirmative Action Program, concluded (Pet. 
App. A-6) that these goals were “directed to the hiring of new 
female and minority employees,” not promotion of existing em­
ployees.

6 Two courts of appeals have declined to reach the question 
where it arose tangentially. Fox v. Eaton Corp., 615 F.2d 716, 719 
n.7 (6th Cir. 1980), petition for cert, pending, No. 79-1856; Gun­
ther v. Iowa State Men’s Reformatory, 612 F.2d 1079, 1083-1084 & 
nn.4, 5 (8th Cir.), cert, denied, No. 79-1566 (May 27, 1980). The 
few federal district courts and state courts that have considered the 
question are divided. See cases cited in Fox v. Eaton Corp., supra, 
615 F.2d at 719; see also Peterson v. Eastern Airlines, 20 Fair 
Empl. Prac. Cas. 1322 (W.D. Tex. 1979) (finding concurrent 
jurisdiction).

11



12
State court.’ ”  444 U.S. at 283 n.7, quoting Testa V. Katt, 
330 U.S. 386, 391 (1947), and Claflin v. Houseman, 93 
U.S. 130, 137 (1876).

In the case of Title VII, however, Congress has, in 
considerable detail, “ specif [ied] a remedy for its enforce­
ment.”  Section 706, 42 U.S.C. 2000e-5. The person ag­
grieved first must file a charge with a federal administra­
tive agency, the EEOC. Section 706(b). If the EEOC can­
not resolve the controversy through conciliation, the person 
aggrieved, the EEOC, or the Attorney General may bring a 
civil action. Section 706(f) (1). Section 706(f) (3) then 
provides that each United States district court “ shall have 
jurisdiction” of actions brought under Title VII. Although 
the language of subsection (f) (3) does not, in so many 
words, provide that this jurisdiction is exclusive, Congress’ 
intent that it be so appears from the numerous provisions 
in Section 706 that assume that the action will be brought 
in federal court. For example, Section 706(f) (4) provides 
for the chief judge of the district or the circuit to ensure ex­
pedited consideration of the case, and Section 706(f) (5) 
provides for appointment of a master under Fed. R. Civ. P. 
53. Section 706(f) (2) states that the granting of tem­
porary or preliminary relief shall be governed by Fed. 
R. Civ. P. 65. And, finally, Subsection (j) provides that 
“ [a]ny civil action” brought under Section 706 “ shall be 
subject to appeal” as provided in 28 U.S.C. 1291 and 
1292, which govern appeals in federal courts. These provi­
sions are inconsistent with the notion that Title VII cases 
can be brought in state court.

Nor was Congress silent regarding the role of the states 
in guaranteeing equal employment opportunity. Section 
706 (b) provides that where state or local law prohibits the 
alleged discriminatory practices and permits a state or local 
authority to grant or seek relief, no charge may be filed 
with the EEOC for 60 days after proceedings were “ com­
menced under the State or local law.” Congress’ express pro­
vision for state agencies and courts to play a role in secur­
ing fair employment practices only “under * * * State 
or local law” suggests that they have no role in enforcing 
the parallel federal law, Title VII. Thus, as the Court stated



13
last Term in New York Gaslight Club, Inc. v. Carey, No. 79- 
192 (June 9, 1980) (slip op. 10; emphasis added), “ [i]t is 
clear from this scheme of interrelated and complementary- 
state and federal enforcement that Congress viewed pro­
ceedings before the EEOC and in federal court as supple­
ments to available state remedies for employment discrimi­
nation.” Indeed, this Court has often assumed, apparently 
without deciding, that it is the federal courts that have en­
forcement authority under Title VII. See id. at 9, 11 & n.6, 
12; General Telephone Co. v. EEOC, No. 79-488 (May 12, 
1980), slip op. 13; Occidental Life Ins. Co. v. EEOC, 432 
U.S. 355, 360, 361, 364, 366, 367, 368, 370 (1977) ; Alex­
ander v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974) ; 
Love v. Pullman Co., 404 U.S. 522, 523 (1972).7

As amicus AFL-CIO points out (Br. 13-16), the legis­
lative history of the Civil Rights Act of 1964 and the

7 This case differs substantially from Charles Dowd Box Co. v. 
Courtney, 368 U.S. 502 (1962), in which the Court held that Sec­
tion 301(a) of the Labor Management Relations Act, which pro­
vides that federal district courts “may” hear suits for violation 
of collective bargaining agreements, did not divest state courts of 
their preexisting authority to entertain suits for breach of con­
tracts. Here, Section 706(f) (3) provides that district courts 
“shall” have jurisdiction, not that suits “may” be brought there 
(Dowd Box Co. V. Courtney, supra, 368 U.S. at 506; compare 
Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 559 (1963)).

Moreover, in Dowd Box, the Court emphasized that state courts 
had traditionally exercised jurisdiction over breach of contract 
actions (368 U.S. at 508); that the legislative history demonstrated 
that Congress merely intended to expand the availability of forums 
in which such actions could be brought (id. at 508-514) ; that 
Congress had rejected proposals to invoke a federal administrative 
process to resolve such disputes (id. at 513) ; and that the federal 
law to be applied would often adopt state law (id. at 506-507). In 
contrast, exclusive federal jurisdiction under Title VII would not 
divest state courts of preexisting jurisdiction over employment 
discrimination claims; remedies under state law, to the extent they 
exist, are expressly preserved. Congress created in Title VII a new 
and distinct federal right (not within the traditional scope of state 
court jurisdiction) and provided for its enforcement by a federal 
administrative agency. There is also no occasion under Title VII 
to adopt as the rule of decision provisions of state law with which 
state courts might be more familiar.



14

1972 amendments to Title VII also confirm that civil 
actions would be brought in federal court. For example, the 
House report on the 1972 amendments states that the per­
son aggrieved “ shall * * * have the right to commence an 
action * * * in the proper United States district court.” 
H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 12 (1971) ; see 
also S. Rep. No. 92-415, 92d Cong., 1st Sess. 23 (1971) 
(“ in the appropriate U.S. district court” ) .

State court jurisdiction to enforce Title VII would also 
create a significant potential for frustrating Title VII’s 
purpose of encouraging resolution of discrimination com­
plaints through resort to state proceedings and conciliation 
by the EEOC. While the application of the common law 
rules of preclusion to Title VII claims is not clear (compare 
Alexander v. Gardner-Denver Co., supra, 415 U.S. at 49 
n.10, with Sinicropi v. Nassau County, 601 F.2d 60 (2d 
Cir.), cert, denied, 444 U.S. 983 (1979)), if  the person 
aggrieved could have, but did not, join his Title VII claim 
with his state law claim in state court, he might be barred 
by principles of res judicata from later bringing a Title 
VII action in federal court. This possibility might deter full 
pursuit of remedies under state law. See New York Gaslight 
Club, Inc. v. Carey, supra, slip op. 11 n.6. Moreover, in 
order to preserve his right to a federal forum, a person 
whose federal charge is still pending before the EEOC 
when he seeks relief in state court might feel constrained 
to short-circuit EEOC conciliation efforts and file a pro­
tective action in federal district court in order to prevent 
the res judicata bar. Cf. England v. Louisiana State Board 
of Medical Examiners, 375 U.S. 411 (1964) .8

8 Since Title VII was enacted in 1964, the approximately 100 
federal district courts have developed considerable expertise in 
handling the complex facts, sensitive legal and equitable issues, and 
technical procedural problems that frequently arise in these cases. 
When trial of these cases is confined to the federal district courts, 
as it has been to date, the federal courts of appeals are available 
to apply their considerable expertise and thereby to perform an 
essential screening function for this Court. In many cases, resolu­
tion of the issues presented requires reliance on substantive Title 
VII law, federal rules of procedure, and the exercise of the Court’s



15

For these reasons, we submit that, while the question is 
not without difficulty, the California courts were without 
jurisdiction to consider petitioners’ Title VII claims.9 Ac­
cordingly, if the writ of certiorari is not dismissed, the por­
tion of the Court of Appeal’s judgment pertaining to Title 
VII should be vacated with instructions to dismiss the 
complaint in pertinent part.

III. THE COURT OF APPEAL PROPERLY REVERSED 
THE TRIAL COURT’S INJUNCTION PROHIBITING 
RESPONDENTS, UNDER ANY CIRCUMSTANCES, 
FROM TAKING RACE OR SEX INTO ACCOUNT 
IN PARTICULAR EMPLOYMENT DECISIONS

We agree with the Court of Appeal that, under this 
Court’s decision in Bakke, the Fourteenth Amendment does 
not bar a public entity from taking race or sex into account 
under all circumstances. 438 U.S. at 272. As we explain be­
low, a state agency may institute programs that utilize such 
classifications where the program is tailored in purpose 
and effect to remedy prior discrimination. Respondents 
have sought to defend the employment practices chal- * *

supervisory power. See, e.g., General Telephone Co. v. EEOC, supra, 
slip op. 10-12; East Texas Motor Freight System, Inc. v. Rodriguez, 
431 U.S. 395, 403-406 (1977) ; Albemarle Paper Co. v. Moody, 422 
U.S. 405, 417-425 & n.14 (1975). Resort to some of these sources of 
guidance may be foreclosed in review of cases coming from state 
courts.

* Early versions of the EEOC’s regulations pertaining to right- 
to-sue letters stated that the person aggrieved would be notified of 
his “right to sue in a Federal District Court.” See 29 C.F.R. 
1601.25b(a) (1971), as added, 35 Fed. Reg. 10006 (1970); 29 
C.F.R. 1601.25c (a) (1973), as added, 37 Fed. Reg. 9219 (1972). 
Presumably for this reason, the right-to-sue letters issued to peti­
tioners Minnick and Darden in this case informed them of their 
right to sue “ in the appropriate United States District Court” 
(Exhs. 39, 40). The reference to federal district court was deleted 
when EEOC’s regulations were revised in 1977. See 29 C.F.R. 
1601.28 (1979), as added, 42 Fed. Reg. 55393 (1977). See also 
Peterson V. Eastern Airlines, 20 Fair Empl. Prac. Cas. 1322 (W.D. 
Tex. 1979) (EEOC, as amicus curiae, urges concurrent jurisdic­
tion) . On reexamination, however, we believe that the interpretation 
suggested in the earlier EEOC regulations is correct.



lenged here on the ground that they are necessary to 
remedy the effects of past discrimination, and this ques­
tion remains open for consideration on remand to the trial 
court. Therefore, if  the Court reaches the merits, the 
judgment of the Court of Appeal, which reversed the trial 
court’s injunction prohibiting consideration of a candi­
date’s race or sex under any circumstances and remanded 
for a new trial, should be affirmed.

A. The Fourteenth Amendment Does Not Prohibit A 
State Agency From Remedying The Effects Of Its 
Past Discrimination By Voluntarily Adopting An 
Affirmative Action Plan That Permits Race Or Sex 
To Be Considered As A Factor In Selecting Em­
ployees For Positions That Reasonably Appear To 
Have Been Affected By Such Discrimination 

This Court has recognized that remedying racial dis­
crimination and preventing its effects from being carried 
forward serves such an important public purpose .that a 
public entity may utilize racial classifications to achieve 
that end. See Fullilove v. Klutznick, supra; Regents of the 
University of California v. Bakke, supra, 438 U.S. at 307 
(Powell, J.) ; id. at 325, (Brennan, Marshall, White, and 
Blaekmun, JJ.). Indeed, when a state entity has engaged 
in discrimination, the Constitution requires the considera­
tion of race where necessary to eliminate the present ef­
fects of that discrimination. See Green v. County School 
Board, 391 U.S. 430 (1968). This duty arises wherever 
discrimination has been practiced— in public schools, e.g., 
ibid.; Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 
(1979) ; Swann v. Charlotte-Mecklenburg Bd. of Educ., 
402 U.S. 1 (1971) ; in voting, e.g., Louisiana v. United 
States, 380 U.S. 145, 154 (1965) ; and in housing, e.g., 
Hills v. Gautreaux, 425 U.S. 284, 297 (1976). A public 
entity which has discriminated in the past, or which is 
likely to be found to have so discriminated, may voluntar­
ily take race-conscious measures to remedy the effects of 
its practices without violating the Fourteenth Amendment 
— even where there has been no finding of a constitutional 
violation by a court. See McDaniel v. Barresi, 402 U.S. 
39 (1971) (upholding a voluntary desegregation plan) ; 
United Jewish Organizations V. Carey, 430 U.S. 144

16



(1977). The same principles apply, in our view, where a 
state agency’s employment practices have discriminated 
on the basis of race.10

Although the validity of respondents’ practices under 
Title VII are not before the Court (see pages 11-15, 
supra), the statutory provisions in Title VII and the 
legislative background and purposes of its extension to 
state and local governments in the exercise of Congress’ 
power to enforce the Fourteenth Amendment reinforce the 
conclusion that would have been reached as to the constitu­
tional questions before the extension of Title VII. In our 
view, the Fourteenth Amendment does not prohibit a public 
employer from taking remedial measures that are consist­
ent with this legislative background and purpose and are 
designed to ensure compliance with Title VII.

The importance of eliminating racial discrimination in 
state and local government employment was underscored by 
Congress when it extended Title VII to those governments 
in 1972. Pub. L. No. 92-261, Section 2, 86 Stat. 103. Con­
gress found that “widespread discrimination against mi­
norities exists in State and local government employment,” 
and that this discrimination “ is perpetuated by the pres­
ence of both institutional and overt discriminatory prac­
tices [, e.g.,\ * * * through de facto segregated job ladders, 
invalid selection techniques, and stereotyped misconcep­
tions by supervisors regarding minority group capabili­
ties.” H.R. Rep. No. 92-238, supra, at 17. Indeed, em­

10 Petitioners challenge respondents’ promotions policy principally 
on the ground that it is based on impermissible racial classifications 
(Pet. Br. 21-32, 36, 38-40), although they also take issue with 
gender-based classifications (e.g., Pet. Br. 33, 37-38, 40, 44-46). In 
our view, a state agency has at least as much flexibility to remedy 
discrimination on the basis of sex as it does where race is con­
cerned. This Court has recognized that equal protection principles 
permit the use of gender-based classifications to remedy the “ ‘long­
standing disparate treatment of women.’ ” Califano v. Webster, 430 
U.S. 313, 317 (1977), quoting Califano V. Goldfarb, 430 U.S. 199, 
209 n.8 (1977). Where governmental practices have operated to 
limit employment opportunities for women, governmental programs 
designed to remedy these limitations serve constitutionally permis­
sible objectives. See Califano V. Webster, supra; Schlesinger V. 
Ballard, 419 U.S. 498 (1975) ; Kahn V. Shevin, 416 U.S. 351 (1974).

17



ployment discrimination by state and local government
was found to be even “more pervasive than in the private 
sector” {ibid.). See also S. Rep. No. 92-415, supra, at 10; 
118 Cong. Rec. 1816 (1972) (remarks of Sen. Williams).

Congress also recognized that the harm resulting from 
discrimination in government employment extends well be­
yond the loss of employment opportunities to individuals :

This failure of State and local governmental 
agencies to accord equal employment opportunities is 
particularly distressing in light of the importance 
that these agencies play in the daily lives of the av­
erage citizen. From local law enforcement to social 
services, each citizen in a community is in constant 
contact with many local agencies. The importance of 
equal opportunity in these agencies is, therefore, 
self-evident. In our democratic society, participatory 
government is a cornerstone of good government. 
Discrimination by government therefore serves a 
doubly destructive purpose. The exclusion of mi­
norities from effective participation in the bureau­
cracy not only promotes ignorance of minority prob­
lems in that particular community, but also creates 
mistrust, alienation, and all too often hostility toward 
the entire process of government.

S. Rep. No. 92-415, supra, at 10; see also H.R. Rep. No. 
92-238, supra, at 19; 118 Cong. Rec. 1816 (1972) (re­
marks of Sen. Williams). Congress found that employment 
discrimination was “particularly acute” and had “the most 
deleterious effect in [those] governmental activities which 
are most visible to the minority communities (notably 
education, law enforcement, and the administration of jus­
tice) with the result that the credibility of the government’s 
claim to represent all the people equally is negated.”  H.R. 
Rep. No. 92-238, supra, at 17 (emphasis added).11 Accord- * 122

18

11 Similar concerns about the effect on minority communities 
of employment discrimination in law enforcement agencies were 
voiced when the non-discrimination provisions of the Omnibus 
Crime Control and Safe Streets Act were amended in 1973 and 
1976. 119 Cong. Rec. 20070 (1973) (remarks of Rep. Jordan) ;
122 Cong. Rec. 34118 (1976) (remarks of Rep. Conyers).



19

ingly, Congress concluded that “governmental units should
lead the way in providing equal opportunity.” S. Rep. No. 
92-415, supra., at 434; see also 118 Cong. Rec. 1816 (1972). 
Thus, although Congress did not require state agencies uni­
laterally to adopt race-conscious measures to remedy the 
effects of their own past discrimination, the legislative 
background of the 1972 amendments to Title V I I 12 rein­
forces the conclusion that a state has a compelling interest 
in doing so.

Furthermore, a state or local agency ordinarily is the 
appropriate authority to remedy its own discrimination, 
as distinguished from that of society. Compare Fulli- 
love V. Klutznick, supra, slip op. 3 (Powell, J.) ; Regents 
of the University of California v. Bakke, supra, 438 U.S. 
at 309-310 (Powell, J .).13 The agency is in the best posi­
tion and has the expertise to identify and analyze its pre­
vious practices and to determine if they were the result 
of discrimination, subtle or overt. Unlike a court, which 
is restricted to evidence adduced at a formal trial, the 
agency has access to all relevant information, including 
subjective motivations of its officials. Such initiatives are 
also consistent with the policy reflected in Title VII of de­

12 Congress’ legislative findings regarding the effects of and 
need to remedy racial discrimination in state and local government, 
expressed in conjunction with the exercise of its power under 
Section 5 of the Fourteenth Amendment to enforce the equal 
protection guarantee of that Amendment, is due great weight, Cf. 
Fullilove v. Klutznick, supra, slip op. 24-27, 30-32 (Burger, C.J.) ; 
id. at 4-7, 13-15 (Powell, J.) ; id. at 4-5 (Marshall, J.) ; City of 
Rome V. United States, No. 78-1840 (Apr. 22, 1980), slip op. 15-24; 
Regents of the University of California V. Bakke, supra, 438 U.S. 
at 301-302 & nn.40, 41, 307-310 (Powell, J.) ; id. at 367-369, 373 
(Brennan, White, Marshall & Blackmun, JJ.) ; United Jewish 
Organizations v. Carey, 430 U.S. 144, 175-178 (1977) (Brennan, 
J.) ; Katzenbach V. Morgan, 384 U.S. 641, 652-656 (1966).

13 In the instant case, for example, the Department was explicitly 
instructed by the Governor to prepare an affirmative action plan, 
subject to continuing oversight by the State Personnel Board (see 
Regents of the University of California V. Bakke, supra, 438 U.S. 
at 308 (Powell, J .)) , and the California legislature approved affirm­
ative action efforts by the state agencies. See generally Resp. Br. 
37-41.



20
ferring to the states and localities in remedying employ­
ment discrimination (Mohasco Corp. v. Silver, No. 79-616 
(June 23, 1980), slip op. 12-13)— a policy that applies 
with equal force where it is the state or locality that is 
alleged to have discriminated. See H.R. Rep. No. 92-238, 
supra, at 19.

For these purposes, a state agency is not confined 
merely to seeking to identify individual victims of past 
discriminatory decisions and, if it finds them, affording 
relief on a case-by-case basis. As Congress so plainly 
recognized when it extended Title VII to state and local 
governments (see pages 12-19, supra), the effects of em­
ployment discrimination in this setting extend well beyond 
the loss of employment opportunities by particular individ­
uals. Such discrimination deprives the agency of the per­
spective of minority persons regarding the impact of its 
programs on minorities; it fosters distrust on the part of 
minorities of governmental functions carried out by person­
nel who are not representative of the community at large, 
thereby perhaps deterring minorities from full participa­
tion in government programs; and it sets a highly visible 
example of discrimination, or acquiescence in the results of 
past discrimination. In order to remedy these broader ef­
fects of discrimination, the agency may appropriately 
take measures designed to bring minority representation 
in its work force to the same percentage that obtains in 
the relevant labor market, and thereby to place the agency 
in the position it presumably would have been in had 
there been no discrimination. See Hazelwood School Dis­
trict v. United States, 433 U.S. 299, 307 (1977), quoting 
Teamsters V. United States, 431 U.S. 324, 340 n.20 
(1977).14

14 Adoption of such voluntary plans also comports with recom­
mendations (contained in a report of the United States Commission 
on Civil Rights) on which Congress relied in extending Title VII 
to state and local governments. For All the People—By All the 
People— A Report on Equal Employment Opportunity in State and 
Local Government Employment (1969). See H.R. Rep. No. 92-238, 
supra, at 17-18; S. Rep. No. 92-415, supra, at 121-130; 118 Cong. 
Rec. 1816 (1972).



21

Although, as we have shown, Congress made legisla­
tive findings regarding the effects of racial discrimina­
tion in government employment, it of course did more 
than merely make findings. It extended to state and local 
governments the provisions of Title VII of the Civil Rights 
Act of 1964A  Title VII is to serve “ as a spur or catalyst to 
cause employers to self-examine and to self-evaluate their 
employment practices and to endeavor to eliminate, so far 
as possible, the last vestiges of an unfortunate and igno­
minious page in this country’s history.”  Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 418 (1975) ; Steelworkers V. 
Weber, supra, 443 U.S. at 204. As we explained in our 
brief in Steelworkers v. Weber, supra (at 35-53), if this 15

15 The overriding purpose of Title VII is to “ break down old 
patterns of racial segregation and hierarchy” and “ ‘to open em­
ployment opportunities for Negroes in occupations which have been 
traditionally closed to them’ ” (Steelworkers V. Weber, swpra, 443 
U.S. at 208, quoting 110 Cong. Rec. 6548 (1964) (remarks of Sen. 
Humphrey)). As this Court held in Weber, a voluntary affirmative 
action program adopted by an employer to give limited preference 
to qualified minorities to remedy traditional patterns of racial 
hierarchy and a manifest imbalance in its employment of minorities 
is permissible under Title VII. In view of the unique public respon­
sibilities of a governmental entity and the legislative history of the 
1972 amendments to Title VII (see pages 17-19, supra; Regents of 
the University of California V. Bakke, supra, 438 U.S. at 353-354 
n.28 (Brennan, White, Marshall & Blackmun, JJ.)), it would be 
“ ironic indeed” if the 1972 amendments to Title VII were read as 
a legislative prohibition against adoption by state and localities of 
race-conscious measures to undo traditional patterns of racial segre­
gation and hierarchy. Steelworkers v. Weber, supra, 443 U.S. at 
204. The holding in Weber therefore applies with particular force 
to state and local governments. Moreover, as this Court has recog­
nized, Congress “expressly indicated the intent that the same Title 
VII principles be applied to governmental and private employers 
alike.” Dothard V. Rawlinson, supra, 433 U.S. at 335 n.14; accord 
Chandler v. Roudebush, 425 U.S. 840 (1976). Therefore, if states 
are subject to greater restriction than private employers in the 
adoption of affirmative action plans, that restriction derives from 
the Fourteenth Amendment. For the reasons stated in the text, we 
believe the Fourteenth Amendment permits a state agency to take 
reasonable race-conscious measures to remedy its own prior dis­
crimination.



22
good faith self-examination and self-evaluation create a 
sound basis on which it reasonably could be concluded that 
the employer has violated Title VII, he may voluntarily 
undertake remedial measures even in the absence of an 
independent finding of discrimination.16 Such corrective 
action by the employer is consistent with the statutory 
scheme, under which “ [c] ooperation and voluntary com­
pliance were selected as the preferred means for achiev­
ing [the] goal” of equal employment opportunity. Alex­
ander V. Gardner-Denver Co., supra, 415 U.S. at 44. 
Nothing in Title VII suggests that this policy of encourag­
ing voluntary compliance applies with less force to state and 
local governments.17 Accordingly, we submit that a state 
agency should not be held to violate the Fourteenth Amend­
ment if it reasonably and in good faith takes race-con­
scious measures to remedy the effects of what could fairly 
be found to be a violation of a statutory provision (Title 
VII) enacted to enforce the Fourteenth Amendment. United 
Jewish Organizations v. Carey, supra. Because properly 
tailored race-conscious hiring or promotion are appropriate 
means of requiring employers to remedy their discrimina­

16 To require a state agency to go further before adopting race­
conscious remedial measures, by conclusively proving its own prior 
discrimination in an independent forum or laying bare all the evi­
dence of that discrimination, would be “self-defeating.” Regents 
of the University of California V. Bakke, supra, 438 U.S. at 364 
(Brennan, White, Marshall, & Blackmun, JJ.). As Mr. Justice 
Blackmun observed in his concurring opinion in Weber, if the 
employer were required to present concrete, nonstatistical evidence 
to establish specific instances of discrimination, he would pave the 
way for successful suits by the victims. 443 U.S. at 211. This could 
lead employers to eschew the voluntary measures Congress intended 
employers to take to come into compliance with Title VII. Id. at 
210. In this case, for example, the Department did not offer much 
of its evidence of specific discrimination until after trial, in its 
motion to augment the record.

17 When Congress extended Title VII to employees of state and 
local government in 1972, it endorsed the view that preferential 
remedial action may be necessary to redress past discrimination 
by defeating amendments designed to limit such remedies. Regents 
of the University of California V. Bakke, supra, 438 U.S. at 353- 
354 n.28 (Brennan, White, Marshall, & Blackmun, JJ.).



23

tory conduct (see, e.g., Fuliilove v. Klutznick, supra, slip 
op. 19 (Powell, J . ) ), a state agency may undertake such 
measures voluntarily.18 Indeed, an obligation to adopt af­
firmative measures to overcome the effects of its prior dis­
crimination is made explicit in LEAA’s regulations imple­
menting the nondiscrimination provisions of the Omnibus 
Crime Control and Safe Streets Act of 1968, which apply 
here. 28 C.F.R. 42.203(i).19 See Regents of the University 
of California v. Bakke, supra, 438 U.S. at 341-345 (Bren­
nan, White, Marshall & Blaekmun, JJ .). This regulation is

18 Petitioners maintain that affirmative action is not permissible 
where the agency concerned admitted only that its past actions had 
a discriminatory impact but did not admit that its practices were 
purposefully discriminatory. However, statistical evidence may es­
tablish a prima facie showing of purposeful discrimination in vio­
lation of Title VII and the Fourteenth Amendment (see note 21, 
infra). Thus, even if such a showing is a prerequisite to voluntary 
affirmative action by a public employer, this requirement may be 
met without an express admission.

In any event, petitioners’ assumption that the Constitution pro­
hibits affirmative measures designed to correct nonpurposeful dis­
crimination is without merit. See Fuliilove V. Klutznick, supra, 
slip. op. 27-28 (Burger, C.J.). In enforcing the Fourteenth 
Amendment, Congress may declare illegal actions which are not 
purposefully discriminatory in order to protect the rights guaran­
teed by the Fourteenth Amendment. See ibid.; Katzenbach V. Mor­
gan, 384 U.S. 641, 653 (1966). Public entities may then act to 
ensure that they comply with Congress’ enactments even when they 
have not purposefully discriminated. See United Jewish Organiza­
tions V. Carey, supra, 430 U.S. at 149-161; Fuliilove v. Klutznick, 
supra, slip op. 27-28 (Burger, C.J.).

This Court’s decision in Dothard v. Rawlinson, supra, forecloses 
petitioners’ suggestion (Pet. Br. 34) that Title VII prohibits only 
purposeful discrimination by state and local governments. Under the 
cases, a discriminatory impact of a public employer’s practices vio­
lates Title VII unless the employer rebuts the prima facie case by 
establishing a business necessity for the practices. Furnco Con­
struction Corp. v. Waters, 438 U.S. 567, 579-580 (1978) ; Hazelwood 
School District v. United States, 433 U.S. 299, 311 n.17 (1977).

19 Guidelines implementing Title VII also require such self- 
analysis and recommend affirmative measures to ensure compliance 
with Title VII. 44 Fed. Reg. 4422 (1979) ; 29 C.F.R. 1608.1. See 
also Policy Statement on Affirmative Action for State and Local 
Government Agencies. 41 Fed. Reg. 38814 (1976); 28 C.F.R. 50.14.



fully consistent with the intent of Congress. 122 Cong. 
Rec. 33880 (1976).20

The courts below did not consider whether the particular 
affirmative action plan at issue here was adopted for the 
purpose of remedying prior discrimination or whether there 
was a sound basis for believing that some remedial meas­
ures were necessary. These issues remain open for consider­
ation on remand to the Superior Court. We therefore do not 
urge this Court to make the legal and factual findings 
necessary to sustain the Program, in whole or in part, 
on this ground. We note, however, that the record de­
veloped thus far indicates that the Program was insti­
tuted, at least in substantial part, to remedy prior dis­
crimination and that there was a sound basis for believing 
that some remedial measures were necessary;21 The fact

24

20 Senator Hruska, in commenting on the 1976 amendments to 
Section 518(b) of the Act, which bars LEAA from requiring the 
adopting of a percentage ratio or quota system, explained (122 
Cong. Rec. 33880 (1976) (emphasis added) :

LEAA does have an affirmative obligation under this law 
to seek to eliminate discriminatory practices, voluntarily, if 
possible, prior to resorting to fund termination. LEAA can 
request that a recipient eliminate the effect of past discrimina­
tion by requiring the recipient to commit itself to goals and 
timetables. The formulation of goals is not a quota prohibited 
by section 518(b) of the act. A goal is a numerical objective 
fixed realistically in terms of the number of vacancies expected 
and the number of qualified applicants available. Factors such 
as a lower attrition rate than expected, bona fide fiscal re­
straints, or a lack of qualified applicants would be acceptable 
reasons for not meeting a goal that has been established and 
no sanctions would accrue under the program.

See United States V. City of Los Angeles, 595 F.2d 1386 (9th Cir. 
1979).

21 The Affirmative Action Program indicates that the Department 
reviewed its own employment practices in order to identify their 
discriminatory aspects. See Fullilove V. Klutznick, supra, slip op. 
3 (Powell, J.). The Department undertook an extensive statistical 
analysis of the composition of its own work force, finding under­
representation of women and minorities in a number of areas 
(Exh. G at 21-38). As this Court has frequently noted, a dis­
parate impact itself is often strong evidence of discrimination. 
See, e.g., Teamsters V. United States, 431 U.S. 324, 339 & n.20



25

that the Department may also have considered its opera­
tional need for prison security and inmate rehabilitation 
(see infra, page 26) does not undercut the validity of the 
Program’s remedial purpose.

Moreover, although the precise operation of the Program 
is not clear from the record and is open for examination on 
remand, certain of its features as they affect promotions, 
indicated on the record developed thus far, suggest that it 
is appropriately tailored to accomplish a remedial pur­
pose.'212 Fullilove v. Klutznick, swpra, slip op. 28, 33 (Burger, 
C .J .); Calif am  v. Webster, supra, 430 U.S. at 317. The 
Department’s Program stigmatizes no group or individual.

(1977) ; Village of Arlington Heights V. Metropolitan Housing Corp,. 
429 U.S. 252, 266 (1977). The Department’s commitment (Exh. R 
at 12-13, 24) to review job qualifications for their job-relatedness 
indicates, moreover, that it could not then justify any disparate 
impact on the basis of business necessity. The Program appears in 
other ways implicitly to acknowledge prior discrimination by the 
Department, noting the need (1) to develop staff sensitivity and 
commitment to equal employment opportunity; (2) to correct 
underepresentation of women and minorities; and (3) to develop 
upward mobility programs for women and minorities. Exh. R at 
12-13, 24.

Moreover, as regards preferences given in promotions—the only 
issue in this case (see note 5, supra) —the Program specifically 
noted a need to correct underrepresentation of women and minori­
ties at supervisory and management levels. The statistical analysis 
showed that as of September 1973, minorities held only 16.3% of 
the administrative positions and 10.9% of the higher ranking 
security positions in the Department, as compared with 23.7% 
minorities in the California labor market and 26% in the entry- 
level security positions (Exh. G. at 26, 33-34). Similarly, women 
held only 8% of the Department’s non-clerical positions (id. at 22), 
although they comprised 38% of the California labor force. While 
5.9% of the entry level correctional officers were female, women 
held only 3.6% of the higher level security positions (id. at 36). 
The record shows that women were not allowed to hold security 
positions in the eleven all-male prisons until 1972 (R.T. 73, 211, 
442). Other testimony at trial also reflected a purpose to remedy 
prior discrimination (e.g., R.T. 338, 344, 706).

22 While this plan does not involve set-asides, this Court has held 
that remedial set-aside are lawful under some circumstances. See 
Steelworkers V. Weber, supra; Fullilove V. Klutznick, supra.



26
Minority or female status is only a “ plus” or a factor to be 
taken into account, and only in those instances where sta­
tistics indicate that minorities and women are underrepre­
sented. Once this underutilization is cured in a particular 
category, all individuals presumably would be considered 
on an equal basis.

The Program also has a limited impact on nonminori­
ties and men. No white or male is required to relinquish 
a previously obtained promotion, and no white or male 
is foreclosed from consideration for any position. Rather, 
the Department’s plan is very similar to the Harvard plan 
approved by this Court in Bakke. 438 U.S. at 316-319 
(Powell, J.) ; id. at 326 n.l (Brennan, White, Marshall & 
Blackmun, JJ.). It is (id. at 317-318 (Powell, J . ) ) :

flexible enough to consider all * * * qualifications of 
each applicant [including whether promoting the ap­
plicant would further remedial goals,] and to place 
them on the same footing for consideration, although 
not necessarily according them the same weight. In­
deed, the weight attributed to [minority or female 
status] may vary from [position to position] de­
pending upon the [level of underrepresentation] and 
the [ability of the] applicants for the [position].

B. The Court Should Not Reach The Operational 
Needs Justification

Respondents also have sought to defend their employment 
practices under the Affirmative Action Program as they af­
fect minorities on the ground that they further the state’s 
compelling interests in promoting prison security and fos­
tering inmate rehabilitation (Resp. Br. 43-50).as In our 23

23 Respondents contend (Resp. Br. 43-45), for example, that in­
creasing the minority composition of the correctional workforce 
at all levels is essential to ameliorate racial tension and the threat 
of racial violence. This is so, they maintain (Resp. Br. 46-48), 
because there is in general greater cultural identification between 
inmates and officers of the same race, which can lead to better 
communications and reduced tension. Minority guards also can 
serve as a vehicle for the airing of grievances to the prison 
administration. Respondents also contend (Resp. Br. 48-50) that 
integration of minority members throughout the correctional work



27
view, this asserted justification for respondents’ policies 
largely overlaps with, and therefore cannot be considered 
separately from, respondents’ argument that their policies 
are appropriate remedial measures for prior discrimination 
by the Department. If there has been a history of racial dis­
crimination in the Department’s past employment prac­
tices, then the racial tension, barriers to communication, 
and lack of sensitivity to minority problems that respond­
ents describe may have been attributable in large part to 
that discrimination. As explained above, Congress recog­
nized that employment discrimination by the government 
(and particularly by law enforcement agencies) is par­
ticularly deleterious because it creates hostility and dis­
trust on the part of the minority community and fos­
ters ignorance among responsible government officials 
regarding minority problems. See pages 18-19, supra. It 
is precisely for this reason that it is particularly appro­
priate for a state agency to take affirmative action to 
increase minority representation to the level that would 
have obtained in the absence of discrimination. Thus, 
an affirmative action plan incorporating race-conscious 
measures to remedy prior discrimination would be cal­
culated to address the very effects of racial discrimina­
tion that respondents identify. And, indeed, many of the 
arguments respondents advance (see note 23, supra) only 
go to the need for the presence of minority staff, not any 
particular percentage of minorities (see note 25, infra).

The use of race-conscious selection techniques is far 
more troubling, however, when supported solely by an as­
sertion that government could perform more effectively

force fosters inmate rehabilitation, because minority officers pro­
vide role models for minority inmates and their presence serves to 
demonstrate that those in authority understand their concerns and 
will treat them fairly. Amicus City of Detroit also contends (Br. 
26-50) that greater minority representation is necessary because 
racial discrimination practiced against minority inmates by a 
virtually all white staff had been a major cause of serious racial 
violence in the California prison system (Br. 26-30), and that 
minority supervisors can help shape institutional policies to avoid 
racial difficulties (Br. 36).



28
with more employees of a particular race and that the 
people with whom the agency comes into contact would 
prefer to communicate with persons of their own race. 
Race-conscious selection on this ground significantly in­
volves the government in the reinforcement of racial 
stereotypes and comes perilously close to embracing— 
however limited and compelling the circumstances— the 
perceptions and practices that it was the very purpose of 
the Civil War Amendments and Title VII to eliminate.124

We do not urge the Court to conclude that race- 
conscious action could never be defended against a Four­
teenth Amendment challenge on the basis of operational 
needs. This Court has indicated, for example, that 
prisoners might be segregated on the basis of race on a 
temporary basis in extreme circumstances to preserve 
or restore prison security and discipline in a race-charged 
atmosphere. Cruz v. Beto, 405 U.S. 319, 321 (1972) ; 
Lee v. Washington, 390 U.S. 333, 334 (1968). The Su­
perior Court’s order recognized that there may be a 
similar need to assign duties to employees on the basis 
of their race in particular circumstances (Pet. App. F-6 
to F-7). This latitude may well satisfy the Department’s 
desire to have minority guards available to communicate 
with and air grievances of minority inmates. But this day- 
to-day flexibility is far different from taking race-conscious 
measures on a class-wide basis to achieve a particular level 
of employment for one race because of its asserted desir­
ability in the normal course or for an indefinite period. 24

24 This Court’s decision in Weber only recognized the authority 
of an employer under Title VII to adopt temporary race-conscious 
measures to further the purposes of Title VII of breaking down 
racial segregation and hierarchy and opening up job opportunities. 
Thus, whatever may be the latitude of a state under the Fourteenth 
Amendment, standing alone, we seriously doubt that race-conscious 
measures adopted solely to further operational needs would be 
permissible under Title VII, at least in the absence of the type of 
extreme circumstances suggested in Lee V. Washington, 390 U.S. 
333, 334 (1968), and Cruz V. Beto, 405 U.S. 319 (1972). There 
is no occasion to resolve that question here, however, because 
the state courts were without jurisdiction over the Title VII claims.



29
Cf. Hirabayashi v. United States, 320 U.S. 81 (1943); 
Korematsu V. United States, 323 U.S. 214 (1944). Only 
the most compelling of justifications, which we do not 
believe have been shown on the present record, could sup­
port such a practice. Accordingly, in a case such as this, 
the Court should first consider what measures are appro­
priate to remedy prior discrimination, for which the 
temporary use of class-based, race conscious measures is 
appropriate. Only then, and on a far more particularized 
and exacting basis than has thus far been developed in 
the courts below, should the Court consider whether addi­
tional measures, not supportable on remedial grounds, 
might be warranted.2'5 The Superior Court can follow this 25

25 Although the validity of the particular goals adopted for 
minority and female employment is not before the Court (see 
note 5, supra), the Department’s establishing of a goal for 
minority representation in the work force at 70% of the per­
centage in the inmate population illustrates the difficulty with 
the operational needs concept. The Department appears to have 
adopted that goal principally, if not solely, on the belief that 
LEAA guidelines required that level of minority representation; 
the Program, as adopted in 1974 and revised in 1975, contains no 
explanation why that figure should apply to support staff, who 
have no contact with inmates; why a particular level in excess of 
the percentage of minorities in the labor market is vital; or why 
70% of the representation is significantly preferable to some other 
figure (Exh. G at 11, 21, 40).

Moreover, the LEAA guidelines did not require such a level of 
minority employment. They provided only that LEAA would give 
priority in conducting compliance reviews to recipient agencies in 
which the disparity between the percentage of minority employees 
and minority inmates was greater than this 70% figure. 28 C.F.R. 
42.306(b) and (e) (1976). Furthermore, LEAA deleted the 70% 
guideline when it revised its regulations in 1977. LEAA observed 
that a representative of petitioner CCOA had observed that the 
reference to inmate population “shifted the principle of equal em­
ployment opportunity to ‘a notion that race or sex is job-related to 
the work the employee is performing’ ”  and “ sugests that a partieu- 
large percentage of minorities or women in the correctional officer 
work is somehow required to do an adequate job in guarding and/or 
supervising the inmates.” Ibid. LEAA stated that “ [w]o empirical 
evidence supporting this notion was offered to LEAA.”  Ibid.; 
emphasis added. Acocrdingly, LEAA chose to look to the relevant



course on remand, first considering the remedial justifica­
tion for the Program.

labor market in testing for discrimination. Ibid. This conforms to 
Title VII principles (see Hazelwood School District v. United States, 
433 U.S. 299, 308 (1977)), which Congress made applicable to the 
nondiscrimination provisions administered by LEAA when it 
amended the Omnibus Crime Control and Safe Streets Act in 1976. 
See H.R. Conf. Rep. No. 94-1723, 94th Cong., 2d Sess. 32 (1976).

Thus, it is the considered judgment of LEAA that an institu­
tion’s operational needs do not in general require a percentage of 
minorities in the work force mirroring that in the inmate popula­
tion. Respondents nonetheless chose to carry forward the 70% goal 
in the Affirmative Action Program adopted in 1979, a copy of which 
has been lodged with the Clerk of this Court. Of course, the 
selection of the 70% goal for employment of minorities in the 
future would not, as petitioners seem to suggest (Pet. Br. 32), 
undercut the validity of the Department’s apparent conclusion that 
it discriminated against minorities in the past.



CONCLUSION

31

The writ of certiorari should be dismissed. If the writ 
is not dismissed, the judgment of the Court of Appeal, 
reversing the Superior Court’s injunction prohibiting con­
sideration of race or sex under any circumstances, should 
be affirmed.

Respectfully submitted.

W ade H. McCree, Jr .
Solicitor General

Drew  S. Days , III 
Assistant Attorney General

Lawrence G. W allace 
Deputy Solicitor General

E dw in  S. K needler 
Assistant to the Solicitor General

Brian  K. Landsberg 
Jessica Dunsay Silver 
V incent  F. O’R ourke, Jr .
A ndre M. Davis 

Attorneys
Leroy D. Clark  

General Counsel
Lutz A lexander P rager 
P aul E. Mirengoff 

Attorneys
Equal Employment Opportunity 

Commission
November 1980

☆  u .  S . GOVERNMENT PRINTING OFFICE; 1 9 8 0 3 3 2 7 9 5  1 3 6