Hammon v. Barry Supplemental Brief of Amici Curiae

    UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

Nos. 85-5669, 85-5670, 85-5671

MARVIN K. HAMMON, et al■,
Plaintiffs-Appellees,
v .

MARION S. BARRY, JR., MAYOR OF THE 
DISTRICT OF COLUMBIA, et al..

Defendants-Appellees.

KEVIN MICHAEL BYRNE, et al.,
Plainti f fs-Appellees,

v .

THEODORE R. COLEMAN, D.C. FIRE CHIEF, et al_. ,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Plaintiff-Appellant.
v .

DISTRICT OF COLUMBIA, et al._,
Defendants-Appellees.

On Appeal from the United States District Court 
for the District of Columbia

SUPPLEMENTAL BRIEF AMICI CURIAE FOR THE LAWYERS' COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, THE WASHINGTON LAWYERS' COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW, AND THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.

BARRY L. GOLDSTEIN 
NAACP Legal Defense &

Educational Fund, Inc.
806 Fifteenth St., N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278

(List of Counsel Continued on

WILLIAM L. ROBINSON 
RICHARD T. SEYMOUR 
Lawyers' Committee for 

Civil Rights Under Law 
1400 'Eye' St., N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212 

Inside Cover)



JULIOS LeVONNE CHAMBERS 
NAACP Legal Defense &

Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013 
(212) 219-1900

RODERICK V. 0. BOGGS 
Washington Lawyers 1

Committee for Civil 
Rights Under Law 

1400 'Eye' St., N.W. 
Suite 450
Washington, D.C. 20005 
(202) 681-5900

Dated: October 14, 1986



INTRODUCTION AND SUMMARY

I. THE JUSTICE DEPARTMENT MISSTATES THE
EVIDENCE OF DISCRIMINATION WHICH SUPPORTS 
THE AFFIRMATIVE ACTION PLAN, THE PLAN'S 
REMEDIAL PURPOSE AND OTHER IMPORTANT 
FACTUAL MATTERS.

A. The Adverse Impact of the 1984 Test.

B. The Purpose of the Hiring Provisions 
in the Fire Department's Affirmative 
Action Plan.

IT. THE LOWER COURT’S CONSTITUTIONAL
ANALYSIS IN APPROVING THE HIRING PART 
OF THE AFFIRMATIVE ACTION PLAN IS 
CONSISTENT WITH THE RECENT SUPREME 
COURT OPINIONS.

III. THE JUSTICE DEPARTMENT DISTORTS THE 
SUPREME COURT'S RECENT AFFIRMATIVE 
ACTION DECISIONS.

CONCLUSION



Page

Cases:

Geier v. Alexander, No. 84-6055 (6th Cir.
Sep. 5, 1986), Slip Opinion at 8 .............. 11

Griggs v. Duke Power Co., 401 U.S. 424 (1971).... 14-15

♦Local 28, Sheet Metal Workes v. EEOC, 478 U.S.
, 92 L. Ed. 2d 344 (1986)..................  passim

Local 93, Firefighters v. Cleveland, 478 U.S. ,
92 L. Ed . 2d 405 (1986).......................  7

Regents of the University of California v. Bakke,
438 U.S. 265 ( 1978 )............................  7-9

♦Wygant v. Jackson Bd. of Education, 476 U.S. ,
90 L. Ed. 2d 260 (1986)......................  passim

Other Authorities:

Title VII of the Civil Rights Act of 1964 (as
amended 1972), 42 U.S.C. §§ 2000e et seq.......  8, 14

P. Freund, A. Sutherland, M. DeWolfe Howe,
E . J . Browh, Constitutional Law :__ Cases and
Other Problems, Vol . 1 (1961).................  12

Uniform Guidelines on Employee Selection
Procedures, 28 C.F.R. § 50.14-4(D) (1978). ... 3

Table of Authorities

ii



UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

Nos. 85-5669, 85-5670, 85-5671

MARVIN K. HAMMON, et a_l .
Plaintiffs-Appellees

v .

MARION S. BARRY, JR., MAYOR OF THE 
DISTRICT OF COLUMBIA, et al■,

Defendants-Appellees.

KEVIN MICHAEL BYRNE, et al.,
Plaintiffs-Appellees.

v .

THEODORE R. COLEMAN, D.C. FIRE CHIEF, et al.,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v .

DISTRICT OF COLUMBIA, et aJK ,
Defendants-Appellees.

On Appeal from the United States District Court 
for the District of Columbia

SUPPLEMENTAL BRIEF AMICI CURIAE For THE LAWYERS' COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, THE WASHINGTON LAWYERS' COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW, AND THE NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.

INTRODUCTION AND SUMMARY.
Amici file this Supplemental Brief to respond to a number of 

the arguments made in the Justice Department's Supplemental

Brief.



Over the years, the Justice Department has enjoyed an 

enviable reputation for the quality of its advocacy, and for the 

candor and honesty of its representations to courts. This has 

been due, in no small part, to the felt obligation of Justice 

Department officials and line attorneys to represent the cause of 

justice as well as the cause of the Department's official 

clients. The Justice Department's Supplemental Brief departs 
from these former standards.

Although the Supplemental Briefs, amici thought, were 

intended to describe the impact of the recent Supreme Court 

decisions upon the legal issues before this Court, the Justice 

Department included in its Supplemental Brief substantial factual 

argument. The Department errs in its assertion of facts. See 

Section I. Furthermore, the Department fails to set forth 

accurately the affirmcttive action rulings of the Supreme Court, 

see Section II, and, in critical respects, distorts those recent 

rulings, see Section III.

I. THE JUSTICE D E P A R T M E N T  MISSTATES THE EVIDENCE OF 
DISCRIMINATION WHICH SUPPORTS THE AFFIRMATIVE ACTION PLAN, 
THE PLAN'S REMEDIAL PURPOSE AND OTHER IMPORTANT FACTUAL 
MATTERS.

A . The Adverse Impact of the 1984 Test.

The Justice Department continues to insist that there 

was no adverse impact against blacks arising from the use of the 

1984 hiring test. The Department argues that "any unlawful 

disparate impact is eliminated" by the setting of the passing 

score on the 1984 test at a level at which the percentage of 

blacks passing the test were at least 80% of the percentage of
n£



whites passing the test. Supplemental Brief at 4 . In other 

words, if every white (100%) passed the test, the Justice 

Department would think that an 80% pass rate for blacks would 

show that there was no adverse impact. In point of fact, this is 

almost exactly what happened here.

The Justice Department's argument is wrong on several

grounds. First, amici demonstrated in their initial brief that

there was statistically significant adverse impact against

blacks, arising from the fact that 98.8% of all white test-takers

passed and only 79.0% of all black test-takers passed. Brief

Amici Curiae at 9-12. Second, the Uniform Guidelines on Employee

Selection Procedures themselves make clear that the "80% rule" is

only a guide for prosecutorial discretion, and continue:

Smaller differences in selection 
rate may nevertheless constitute 
adverse impact, where they are 
significant in both statistical and 
practical terms ... .

Sec. 4(D) of the Uniform Guidelines, 28 C.F.R. § 50.14-4(D), set 

out in the Appendix to amici's main brief at 5a.

B . The_Purpose of the Hiring Provisions in the Fire
Department 's Affirmative Action Plan.

In its Supplemental Brief at 6, the Justice Department

embraces the untenable position which only Local 36 had earlier
taken on this appeal:

The District's hiring quota, which 
was stipulated below to be intended 
to achieve proportionate racial 
representation (rather than to 
correct discrimination), ... .

The same statement is urged again and again in the Justice

3



Department's brief. The Justice Department's opening brief, 

while seriously misleading in many respects, was, at least in 

this one respect, more honest:

The District adopted a plan 
for the Fire Department to comply 
with the OHR order of November 
1983, the 1984 Hammon consent 
decree, and D.C. Code § 1-508.

The brief went on to describe the system of hiring certificates. 

Justice Dept, opening brief at 6. The United States, and all 

other parties stipulated that the challenged hiring provisions of

the plan had an exclusively remedial purpose :

30. The AAP requires the use 
of multiple certificates to select 
firefighters and is designed solely 
to eliminate the racial and sexual 
disparity which would exist if the 
examination results were used in 
rank order.

D .App. 15. The district court so found -- "[t]hese procedures 

are designed solely to eliminate the racial, sexual and ethnic 

disparity which would exist if the candidates were selected in 

rank order of examination results." App. 45. The Justice 

Department has not previously urged that this finding was clearly 

erroneous. See generally amici's opening brief at 19-21.

The Justice Department raises a number of similar 

contentions which require no extended argument to refute.1

1 First, Justice argues that:

"[t]here has been a question in this 
case whether the plan was enacted 
pursuant to the D.C. statute or the
Hammon consent decree or both. See 
U.S. Brief 40-41 n.24. The District

4



effectively denied this in its brief, 
characterizing the relief as "voluntary"
(see, e_._ĝ , District Br. 29).

Supplemental Brief at 17 n.9. As we have seen, the "question" 
which assertedly "has been" in existence was the subject of a 
binding stipulation and an explicit finding by the lower Court.

Second, Justice tries to avoid the plain meaning of its 
own stipulation on the sole purpose of the challenged hiring 
provisions by urging that the elimination of the unlawful racial 
disparities which would exist in the absence of the plan "is 
hardly inconsistent with the statute's proportional represen­
tation mandate." Supplemental Brief at 18 n. 10. By this 
reasoning, Justice could criticize the mere act of setting up a 
sidewalk recruitment stand in front of City Hall as "hardly 
inconsistent" and attack it as a quota.

I^ird, the Justice Department characterizes the District's 
justification for the challenged provisions, whi ch it had 
stipulated to be the actual, real reason for their adoption, as a 

hp_P_ justification." Supplemental Brief at 20.

Fourjth, the Justice Department urges that this Court 
should not believe the District's statements of its reasons for 
adopting the challenged hiring provisions, because the existence
°f.other reverse-discrimination cases against the District-- some
stila in litigation, although the Justice Department chose not to
reveal this material fact-- shows that the District cannot be
believed. This assertedly "severely undermines the credibility 
of any assertion that the hiring quotas were designed to prevent 
J-u^ur’e discrimination and eliminate the effects of past discrim­
ination." Supplemental Brief at 20-21.

Fifth, the Justice Department sings the praises and the 
superior probative powers of applicant-flow statistics. Id. at 
21-22. This is precisely what the District Court had chosen as 
the most relevant standard of black availability for Fire 
Department positions, and had relied upon to find a significant 
under-representation of blacks in the Fire Department; this is 
also precisely the information on which amici rely to show that 
the 1980 and 1984 tests had severe adverse impact against blacks 
even when used on a pass/fail basis. See generally amici1 s 
opening brief at 7-8 and 9-10 (stipulated applicant/hire rates 
showing adverse impact) and 13-14 (district court's adoption of 
applicant-f1ow data as proper standard).

However, the Justice Department goes on to argue: "Since 
1981, (the only years for which hiring data is available), the

5



proportion of blacks hired has equalled or exceeded the propor­
tion of applicants (see U.S. Br. 35)." When one turns to the 
Justice Department's opening brief at 35, it is plain that the 
"support" for this astounding and entirely unsupported assertion 
has nothing to do with the applicant-flow data of which its 
Supplemental Brief sings so eloquently:

As noted, however, the Department 
since 1981 has been hiring blacks 
at a rate that equals or exceeds 
t h e i r  r e p r e s e n t a t i o n  in the 
District labor force and any 
effects of the allegedly unlawful 
1981 examination have been fully 
cured by the 1983 OHR order and 
1984 consent decree.

Sixth , the Justice Department leaves its praises of 
applicant-flow data to speak of civilian labor-force statistics 
for the Washington, D.C. SKSA and for the District of Columbia, 
without mentioning that the District Court had expressly rejected 
these standards or explaining why that rejection should be held 
to be clearly erroneous. Supplemental Brief at 22-23. In 
perhaps the single most preposterous statement in an unusually 
preposterous brief, the Justice Department states:

And even if one avoids this 
comparison in favor of the District 
of Columbia population, again 
blacks are overrepresented when one 
looks at the issue solely in terms 
of males, who constitute almost 99% 
of the Department (see App. 52).
While, in 1980, black males 
accounted for 30.8% of the D.C. 's 
population, they accounted for 37% 
of the Fire Department (ibid.).

Supplemental Brief at 22-23. The Justice Department has 
litigated many hundreds of employment discrimination cases, and 
it strains credulity to think that its Assistant Attorney General 
for Civil Rights is unaware of the error in comparing the 
absolute percentage of the combined male and female population 
which is black male (30.8%) with the absolute percentage of a 
virtually all-male group which is black male (37%).

With equal justification, one could argue that, because 
white males are only 15.8% of the total D.C. population of both 
genders (Stipulation 1! 2, D . App. 3), but constitute 61.6% of the

6



11■ LOWER COURT'S CONSTITUTIONAL ANALYSIS IN APPROVING THP
HIRING PART OF THE AFFIRMATIVE ACTION PLAN IS CONSISTENT
WITH THE RECENT SUPREME COURT OPINIONS.

In order to satisfy constitutional standards, Judge Richey 

con c l u d e d  that "[a] g o v ernment can employ race-based 

classifications only when they serve a compelling governmental 

interest," and only if those "classifications" are "narrowly 

tailored" to serve the compelling governmental interest. App. 

61-63. Judge Richey determined that "[t]he hiring part of [the 

Fire Department’s] plan [which] seek[s] only to correct the 

adverse impact of the entry-level test, and to remedy past 

discrimination" meets this exacting test. App. 64. Thus, in 

adopting Justice Powell's "suspect" classification standard for 

evaluating the cons t i tut i onal i ty of affirmative action, which 

Justice Poweli initially adopted in Regents of the University of 

California.y... Bakke, 438 U.S. 265, 305 (1978), see App. 62, Judge 

Richey applied the strictest standard articulated by any Justice 

in the recently rendered affirmative action decisions. Wyqant

---^ ck-Son__Bd.-,_Qf Education. 4 76 U.S. _______, go L. Ed. 2d 260
(1986); Local 28^ _Sheet Metal Workers v. EEOC, 478 U.S. ,92
L . Ed. 2d 344 (1986) . 2

Fire Department's uniformed members (Stipulation <H 5 , D.App. 4) 
there are four times as many whites in the Fire Department as 
there should be. Such comparisons are absurd, and the Justice 
Department well knows it.

The third affirmative action case considered 
Court, Loca 1_ 93, Firefighters v. Cleveland, 478 U.S.
Ed. 2d 405 (1986), did not contain any constitutional 
the only issue presented, a six-member majority ruled

by the 
___ , 92 L.
issue. On 

that §
7



In his Wygant opinion, Justice Powell restated his Bakke

standard -- that any racial classification is "suspect" and that 

the classification is only constitutional if justified by a 

compelling governmental goal and "narrowly tailored to the 

achievement of that goal." 90 L. Ed. 2d at 268. But less than a 

majority of the Justices have agreed with Justice Powell. In 

addition to Chief Justice Burger and Justice Rehnquist, who 

joined Justice Powell's opinion, only Justice O'Connor concurred 

in Justice Powell's standard. Wygant, 90 L. Ed. 2d at 276.

In his dissent in Wygant, joined by Justices Brennan and 

Blackmun, Justice Marshall restated the standard announced in the 

four-justice joint opinion in Bakke (Justices Brennan, White, 

Marshall, and Blackmun): the "remedial use of race is 

permissible if it serves 'important governmental objectives' and 

'is substantially related to achievement of these objectives.'" 

90 L . Ed. 2d at 286. In a separate dissent, Justice Stevens 

determined that there is "a critical difference between a 

decision to exclude a member of minority race because of his or 

her skin color and a decision to include more members of the 

minority...." (Emphasis in original), Wygant, 90 L. Ed. 2d at 

295. Justice Stevens concluded that the layoff goal was 

permissible because of "the fairness of the procedures used to 

adopt the race-conscious provision" and the "serious consequence

706(g) of Title VII, 42 U.S.C. § 2000e-6(g), "does not restrict 
the ability of employers or unions to enter into voluntary 
agreements providing for race-conscious remedial action." 92 L. 
Ed. 2d at 423.

8



to the [ nonminor ities ] is not based on any lack of respect for 

their race, or on blind habit and stereotype." (Footnote 

omitted), 90 L. Ed. 2d at 296-97.3 * * *

Both Justices Brennan and O'Connor observed that the 

Court has not reached a consensus about the proper constitutional

Justice White is the only Justice who did not issue or 
join an opinion in the recent cases setting forth the 
constitutional standard for evaluating affirmative action plans. 
Nevertheless, the Department of Justice asserts that Justice 
White "subscribe[s ] " to Justice Powell's standard. Brief at 8 
n. 6 .

The Department relies upon the reference in Justice 
Powell's Wygant opinion that Justice White joined the section of 
Powell's Bakke opinion which included the constitutional 
standard. 90 L. Ed. 2d at 266.

The pertinent part of Justice White's Bakke opinion is 
as follows:

"[M]y views with respect to the 
equal protection issue[ ] are 
included in the joint opinion that 
my Brothers Brennan, Marshall, and 
Blackmun and I have filed.7

7 I also join Parts I, III-A, and V-C 
of Mr. Justice Powell's opinion.

University of California Regents v._Bakke, 438 U.S. at 387, n.7.

As Justice Powell in Wygant inferred Justice White's 
agreement to his constitutional standard, so did Justice Brennan 
in Sheet Metal Workers, 92 L. Ed. 2d at 391 infer Justice White's 
agreement to his constitutional standard ("racial classification 
must be necessary to accomplishment of substantial state interest 
... [Bakke, 438 U.S.] at 359 ... opinion of Brennan, White,
Marshall and Blackmun, JJ.")

Justice White did not comment upon Justices Powell's or 
Brennan's statements of his position. Thus, it is unwarranted to 
claim without any question, as does the Department, that "at 
least five Justices have subscribed to" Justice Powell's suspect 
classification standard.

9



standard for evaluating affirmative action. Sheet Metal Workers

v._EEOC, 92 L. Ed. 2d at 390 (Brennan, J.) ("We have not agreed,

however, on the proper test to be applied in analyzing the

constitutionality of race-conscious remedial measures"); Wygant ,

90 L. Ed. 2d at 275 (O'Connor, J.) ("The Equal Protection Clause

standard applicable to racial classifications that work to the

disadvantage of 'nonminorities' has been articulated in various

ways...."). However, as Justice O'Connor concluded,

[ a ] 1 t h o u g h  Justice Powell's 
formulation may be viewed as more 
stringent than that suggested by 
Justices Brennan, White, Marshall, 
and B lackmun, the disparities 
between the two tests do not 
p r e c l u d e  a fair m e a s u r e  of 
consensus. In particular, as 
regards certain state interests 
commonly relied upon in formulating 
affirmative action programs, the 
distinction between a "compelling" 
and an "important" governmental 
purpose may be a negligible one.

The Court is in agreement that, 
whatever the formulation employed, 
remedying past or present racial 
discrimination by a state actor is 
a s u f f i c i e n t l y  weighty state 
interest to warrant the remedial 
use of a carefully constructed 
affirmative action program. This 
remedial purpose need not be 
accompanied by contemporaneous 
findings of actual discrimination 
to be accepted as legitimate as 
long as the public actor has a firm 
basis for believing that remedial 
action is required.

* * * * *

Ultimately, the Court is at least 
in accord in believing that a 
public employer, consistent with

10



the Constitution, may undertake an 
affirmative action program which is 
designed to further a legitimate 
r e m e d i a l  p u r p o s e  and w h i c h  
implements that purpose by means 
that do not impose disproportionate 
h a r m  on the i n t e r e s t s ,  or 
unnecessarily trammel the rights, 
of innocent individuals directly 
and adversely affected by a plan's 
racial preference.

Wygant, 90 L. Ed. 2d at 276-77.

As it turns out, Judge Richey applied the strictest 

test articulated by the Justices in Sheet Metal Workers and

Wygant and determined that the hiring part, but not the promotion 

part, of the affirmative action plan passed that test. Thus, the 

lower court's approval of the plan falls well within the contours 

of "the fair measure of consensus" on permissible affirmative 

action which Justice O'Connor described.

III. THE JUSTICE DEPARTMENT DISTORTS THE SUPREME COURT'S RECENT 
AFFIRMATIVE ACTION DECISIONS.

The Justice Department argued before the Supreme Court that 

an employer may never implement a race-conscious affirmative 

action plan which provides a benefit to an individual without 

establishing that the individual was a victim of discrimination. 

The Supreme Court unequivocally rejected this argument. See, 

Geier v. Alexander, No. 84-6055 (6th Cir. Sept. 5, 1986), Slip

Opinion at 8. Significantly, Justice Powell, joined by Chief 

Justice Burger and Justice Rehnquist, expressly rejected the 

Department's position by concluding "that in order to remedy the 

effects of prior discrimination, it may be necessary to take race 

into account. As part of this Nation's dedication to eradicating

11



racial discrimination innocent persons may be called upon to bear 

some of the burden of the remedy." Wygant, 90 L. Ed. 2d at 273.

However, the Justice Department attempts to avoid the 

Supreme Court's rejection of its anti-affirmative action theory 

by a series of misreadings of the recent decisions. Amici only 

discuss several of the significant errors in the Department's 

Supplemental Brief.

First, the Department argues that "[t]he proper standard 

[, strict scrutiny,] ... is now clear" for evaluating the 

constitutionality of affirmative action plans.4 Supplemental 

Brief at 7. However, only four Justices have agreed upon this 

"prope^r standard" and both Justices Brennan and O'Connor stated 

that there was not a "clear" agreement between a majority of the 

Justices on the applicable standard. Section II.

Second, the Department asserts that the recent "cases 

severely limit the legitimate use of race ... to remedial 

situations only...." (Emphasis in original), Supplemental Brief 

at 5. Justice O'Connor determined to the contrary: "And 

certainly nothing the Court has said today necessarily forecloses

4 The Department repeatedly supports its assertions with 
words such as "clear" and "patently" but with little logic or 
foundation.

The Department's style is similar to the writing of 
Justice Edward Douglass White as described by several scholars. 
"What impresses later generations in White's opinions is less 
their substance than their extraordinary form. He moved 
portentously across the thinnest ice, confident that a lifeline 
of adverbs - 'inevitably' 'irresistibly,' 'clearly,1 and 
'necessarily' -- was supporting him in his progress." P. Freund, 
A. Sutherland, M. DeWolfe Howe, E. J. Brown, Constitutional Law: 
Cases and other Problems, Vol . 1 (1961) at LXIII.

12



the possibility that the Court will find other governmental 

interests which have been relied upon in the lower courts but 

which have not been passed on here to be sufficiently 'important' 

or 'compelling' to sustain the use of affirmative action 

policies." Wygant, 90 L. Ed. 2d at 276-77. Of course, Justice

O'Connor makes a majority of the Court when she joins the four 

dissenters, Justices Brennan, Marshall, Blackmun, and Stevens, in 

Wygant.
Third, the Justice Department asserts that only "an 

employer's' discriminatory conduct of an egregious, flagrant or 

pervasive nature" may justify race conscious affirmative action. 

See e^s, Supplemental Brief at 5-6, 21. In Sheet Metal Workers

the Justices agreed that the union's conduct amounted to 

"pervasive" discrimination which established a justification for 

court imposed race conscious relief. Apparently, the Department 

seeks to generalize from this particular case in order to 

establish a rule for Court imposed and voluntary plans that, as 

the Department admits, would "severely limit" affirmative action.

In Wygant the Court carefully avoided requiring an employer 

to establish that it had discriminated or to make "findings" of 

discrimination in order to engage in voluntary affirmative 

action.5 Nevertheless, the Department perceives a Supreme Court

5 Justice Powell determined that an employer "must have 
sufficient evidence to justify the conclusion that there has been 
prior discrimination" and expressly stated that "[t]he ultimate 
burden remains with the e m p 1oyees to demonstrate the 
unconstitutionality of an affirmative action program." (Emphasis 
added), Wygant, 90 L. Ed. 2d at 271.

13



requirement that an employer establish an evidentiary basis that 

its conduct was comparable to the extraordinarily blatant conduct 

of the Sheet Metal Workers before it could undertake affirmative 

action.

Justice O'Connor argued forcefully that

[t]he imposition of a requirement that public 
employers make findings that they have 
engaged in illegal discrimination before they 
engage in affirmative action programs would 
severely und e r m i n e  public employers' 
incentive to meet voluntarily their civil 
rights obligations.... This result would 
clearly be at odds with this Court's and 
Congress' consistent emphasis on "the value 
of v o l u n t a r y  efforts to further the 
objectives of the law."

Wygant , 90 L. Ed. 2d at 279. The requirement that an employer 

establish evidence that it engaged in "discriminatory conduct of 

an egregious, flagrant or pervasive nature," as the Department 

argues, would, at the least, as "severely undermine" voluntary 

affirmative action and compliance with civil rights objectives as 

a requirement that an employer admit or make findings about its 

own discrimination before undertaking affirmative action.

Fourth, the Department takes the position that only evidence 

of "intentional" discrimination may justify affirmative action by 

a public employer. See e .q ., Supplemental Brief at 6, 21, 23. 

Of course, Title VII of the Civil Rights Act of 1964 is directed 

"to the consequences of employment practices, not simply the 

motivation." (Emphasis in original), Griggs v. Duke Power Co.,

The Department of Justice omitted this crucial burden­
placing sentence from its quotation of Justice Powell's direction
to lower courts. Supplemental Brief at 12.

14



401 U.S. 424, 432 (1971). But the Department would preclude 

public employers, but apparently not private employers, from 

engaging in affirmative action in order to remedy or prevent 

certain violations of Title VII which failed the Griggs rule but 

did not involve intentional discrimination in violation of the 

Consti tution.

The Supreme Court did not in any way establish a more 

onerous standard for the implementation of affirmative action by 

public employers than by private employers. To the contrary, 

Justice O'Connor condemned "the anomalous result" of 

"constitutionally forbidd[ing]" public employers to use 

affirmative action "to correct their statutory and constitutional 

transgressions" while permitting such action by private 

employers. Wygant , 90 L. Ed. 2d at 279.

15



CONCLUSION

Thus, the recent Supreme Court decisions support Judge 

Richey's determination that the hiring part of the affirmative 

action plan was constitutional and lawful.

BARRY L. GOLDSTEIN 
NAACP Legal Defense &

Educational Fund, Inc. 
806 Fifteenth St., N.W. 
Suite 940
Washington, D.C. 20005
(202) 638-3278

JULIUS LeVONNE CHAMBERS 
NAACP Legal Defense &

Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013 
(2 1 2 ) 219-1900

Respectfully submitted,

WILLIAM a. ROBINSON 
RICHARD T. SEYMOUR 
Lawyers' Committee for Civil 

Rights Under Law 
1400 'Eye' St., N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

RODERICK 0. BOGGS 
Washington Lawyers' Committee 

for Civil Rights Under Law 
1400 'Eye' St., N.W.
Suite 450
Washington, D.C. 20005 
(202) 681-5900

16