Correspondence from Schnapper to Hebert; United States' Motion for Preliminary Injunction

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IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-8014 SEP 2  2 1990
LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 
et al.,

Plaintiffs-Appellees,
HOUSTON LAWYERS' ASSOCIATION, 
et al.,

Plaintiff-Intervenor- 
Appellees,

V.
JIM MATTOX, et al..

State Defendants- 
Appellants,

JUDGE SHAROLYN WOOD AND 
JUDGE F. HAROLD ENTZ,

Defendant-Intervenor- 
Appellant.

Appeal from the United States District Court for the Western 
District of Texas, Midland-Odessa Division

SUPPLEMENTAL BRIEF ON REHEARING EN BANC 
OF PLAINTIFF-INTERVENOR-APPELLEES 

HOUSTON LAWYERS' ASSOCIATION, et al.
JULIUS LeVONNE CHAMBERS 
SHERRILYN A. IFILL

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

GABRIELLE K. MCDONALD
301 Congress Avenue 
Suite 2050 
Austin, Texas 78701 
(512) 320-5055

Of Counsel:
MATTHEWS & BRANSCOMB 
A Professional Corporation



TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................ ii
SUPPLEMENTAL STATEMENT OF FACTS ............................  1

* INTRODUCTION AND SUMMARY OF THE ARGUMENT ..................  2
SUMMARY OF THE ARGUMENT....................................  3
ARGUMENT ..................................................  6

I. Section 2 Covers the Election of Judges ..........  6
II. The Application of Section 2 is Not Dependent on the

Function of the Elected Officer ..................  11
A. The Trial Judges in the Challenged Counties Are

Not Single Person Officers ..................  13
2. Butts Does Not Support Limiting Section 2's

Scope to Collegial Decision-Makers . . .  17
3. Butts Erroneously Interprets Amended §2 . 18

III. Remedial Concerns Are Not Properly Addressed at the
Liability Stage of a Voting Rights Case ........  21

A. The Proper Scope of the Liability Inquiry . . .  22
B. The LULAC Panel's Analysis of Sub-Districts

as a Remedy is Critically F l a w e d ............ 23
1. The LULAC Panel's Analysis of the 

Plaintiffs' District Plan Fails on Its
Own T e r m s ................................ 2 5

C. The LULAC Panel's Focus on a Sub-Districting
i Remedy is Particularly Inappropriate in

This C a s e .................................... 28
I 1. Limited Voting.......................... 3 0

2. Cumulative Voting ....................  32
IV. The District Court's Finding of a §2 Violation is

Not Clearly Erroneous .................... 32
CONCLUSION................................................ 3 6 l

l



TABLE OF AUTHORITIES
CASES

Bell v. Southwell, 376 F.2d 659
(5th Cir. 1967) ..................................  20, 21

Blaikie v. Power, 13 N.Y.2d 134,
243 N. Y. S . 2d 185 (1963)................................  31

Bolden v. City of Mobile, 571 F.2d 238 rev'd on other grounds,
Mobile v. Bolden, 446 U.S. 55 (1980) ..................  15

Buchanan v. City of Jackson, 683 F.Supp.
1515 (W.D. Tenn., 1988) ..............................  15

Butts v. City of New York, 614 F.Supp. 1527 (S.D.N.Y. 1985) . 13
Butts v. City of New York, 779 F.2d

141 (2d. Cir. 1985).......................... 11, 19, 21
Campos v. City of Baytown, 840 F.2d 1240,1243 

(5th Cir. 1988) cert denied 109 S. Ct.
3213 (1989)....................................  2, 6, 35

Carrollton Branch of NAACP v. Stallings, 829 F.2d
1547 (11th Cir. 1987)cert, denied sub nom. Duncan v. 
Carrollton. 485 U.S. 936 (1988) ......................  10

Chisom v. Edwards, 839 F.2d 1056,
cert denied, 109 S.Ct. 390 (1988) ................  passim

Cintron-Garcia v. Romero-Barcelo, 671 F.2d
1,6 ( 1st Cir. 1982) ................................  31

Citizens for a Better Gretna v. City of Gretna,
636 F.Supp. 1113, (E.D. La. 1986), aff'd,
834 F. 2d 496 (5th Cir. 1987) ..........................  35

City of Port Arthur v. United States,
459 U.S. 159 (1975)....................................  18

City of Richmond v. United States, 422 U.S. 358 (1975) . . . .  18
Cox v. Katz, 22 N.Y.S.2d 545 (1968) ........................  28
Dillard v. Chilton County Bd. of Educ., 699 F.Supp.

870 (M.D. Ala. 1988) . ............................... 29

iii



Dillard v. Crenshaw County, 831 F.2d 246
(11th Cir. 1987)............................ 12, 22, 29

Dillard v. Town of Cuba, 708 F.Supp. 1244 (M.D. Ala. 1988) . . 29
Gingles v. Edmisten, 590, F.Supp. 345 (E.D. N.C. 1984) . 35, 36
Gray v. Sanders, 372 U.S. 368 (1963)........................  21
Haith v. Martin, 477 US 901 (1986)..........................  13
Hechinger v. Martin, 411 F.Supp.

650 (D.D.C 1976) aff'd per curiam
429 U.S. 1030 (1977) ..................................  31

Holhouser v. Scott, 335 F.Supp. 928 (M.D.N.C. 1971) ........  28
Kaelin v. Warden, 334 F.Supp. 602 ..........................  31
Kirksey v. Allain, 635 F.Supp. 347 (S.D. Miss., 1986) . . . .  13
Kirksey v. City of Jackson, Miss., 663 F.2d.,

659 (5th Cir. 1981) rehearing and 
rehearing en banc denied 669 F.2d.
316 (5th Cir. 1982).....................................37

LoFrisco v. Schaffer, 341 F.Supp. 743 (D. Conn., 1972) . . . .  31
LULAC v. Mattox, No. 90-8014, (May 11, 1990) . ........... passim
LULAC v. Midland ISD, 812 F.2d 1494,

(5th Cir. 1987), vacated on other grounds,
829 F. 2d 546 (5th Cir. 1987)   35

Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988)  8
Martin v. Allain, 658 F.Supp. 1183 (S.D. Miss 1987)   11
Martin v. Allain, 700 F.Supp. 327 (S.D.Miss. 1988) . . . 22, 28
Martin V .  Haith, 477 U.S. 901 (1986), aff'g. 618 F.Supp.

410 (E.D.N.C.1985) ....................................  7
Nipper v. U-Haul, 516 S.W.2d 467 (Tex. Civ. App. 1974) . . 27, 28
Orloski v. Davis, 564 F.Supp. 526 (M.D. Pa. 1983)   31
Overton v. City of Austin, 871 F.2d 529,

538 (5th Cir. 1989)................................  6, 35
Reed v. State of Texas, 500 S.W.2d 137

(Tex. Crim. App. 1973) ..........................  27, 28
iv



SCLC v. Siegelman, 714 F.Supp. 511, (M.D. Ala. 1989) . . . 14, 15
Smith v. Allwright 321 U.S. 649 (1944)...................... 2
Solomon v. Liberty County, No. 87-3406

(11th Cir. April 5, 1990)..............................  36
Terry v. Adams 345 U.S. 461 (1952).......................... 2
Thornburg v. Gingles, 478 U.S. 30 (1986)................ passim
Upham v. Seamon, 456 U.S. 37 (1982) ........................ 2
White v. Regester, 412 U.S. 755 (1973)..................  2, 38
Whitcomb v. Chavis 403 U.S. 124 (1971)....................  38
Voter Information Project v. City of

Baton Rouge, 612 F.2d 208 (5th Cir., 1980) ........ 38, 39
Zimmer v. McKeithan 485 F.2d 1297 (5th Cir. 1973) ..........  38

STATUTES

Voting Rights Act, 42 U.S.C. §1973 ....................... passim
Tex. Gov't Code §74.047 (Vernon 1988) ....................  .16
Tex. Gov't Code §74.091 (Vernon 1988 & Supp.1990) ..........  16

LEGISLATIVE

House Report No. 97-227, 9th Cong., 1st Sess.,
at p. 19 (1982) ..............................  2, 20, 37

S. Rep. No. 97-417, 97th Cong.,
2nd Sess., at p. 30 (1987)........................passim

Voting Rights: Hearings Before Subcommittee No. 5
of the House Judiciary Comm., Testimony of 
Attorney General Katzenbach, 89th Cong.,
1st Sess. (1965) ......................................  7

v



OTHER

Issacharoff, The Texas Judiciary and
the Voting Rights Act: Background
and Options, at 18, Texas Policy Research
Forum (December 4, 1989) .............. 30, 31

Karlan, Maps and Misreadings: The Role
of Georgraphic Compactness in Racial 
Vote Dilution Litigation, 24 Harv. 
C.R.-C.L.L.Rev. 173 (1989) . . . . 30, 32

Office of Court Administration, Texas Judicial
Council, Texas Minority Judges, Feb. 10, 1989 2

R. Engstrom, D. Taebel & R. Cole, Cumulative
Voting as Remedy for Minority Vote Dilution:
The Case of Alamogordo, New Mexico, The Journal
of Law & Politics, Vol. V., No. 3 (Spring 1989) . . . 29, 32

State Court Organization 1987, National
Center for State Courts, 1988 ..........................  2

vi



SUPPLEMENTAL STATEMENT OF FACTS

Plaintiff-intervenor appellees Houston Lawyers' Association, 
et al. , directs this court to the Statement of Facts which appears 
in their original Brief on Appeal, as well as the Statement of 
Facts in the original Brief on Appeal for the United States as 
Amicus Curiae, describing in detail the structure of the court 
system in Texas.

SUPPLEMENTAL STATEMENT OF THE CASE
Plaintiff-intervenor appellee Houston Lawyers' Association 

incorporates by reference the Statement of the Case which appears 
in its original Brief on Appeal, and supplements that statement as 

follows.
This case was heard on appeal before a panel of the Fifth 

Circuit on April 30, 1990. On May 11, 1990, the panel issued an
opinion reversing the decision of the district court. That panel 
opinion did not address the district court's finding that African- 
American voters in Harris County, Texas do not enjoy an egual 
opportunity to elect their preferred candidates to the judiciary. 
Rather, the panel opinion, relying principally on Second Circuit 
case law, held that the election of trial judges cannot be 
challenged under §2 of the Voting Rights Act of 1965, 42 U.S.C. 
§1973, because trial judges are independent decisionmakers.

On May 16, 1990, this court, sua sponte, vacated the panel
opinion and ordered that the case be heard in banc. Oral argument



was set by the court for June 19, 1990. The parties were invited 
to file simultaneous supplemental briefs to the court on or before 

June 5, 1990.

INTRODUCTION AND SUMMARY OF THE ARGUMENT 

INTRODUCTION
Texas has a long history of enacting and maintaining electoral 

structures and practices which inhibit the political and electoral 
participation of African Americans and other minorities. See, 
Smith v. Allwriaht. 321 U.S. 649 (1944); Terry v. Adams, 345 U.S.
461 (1953); White v. Regester. 412 U.S. 755 (1973); Upham_Vj_
Seamon. 456 U.S. 37 (1982); Campos v. City of Baytown, 840 F.2d
1240 (5th Cir. 1988). See also House Report No. 97-227, 9th Cong., 
1st Sess., at p. 19 (1982) [hereinafter "House Report"]. The case 
before this court challenges the electoral structure of one of the 
last nearly all-white elected bodies in the Texas government —  the 

judiciary.
Of the 9,977 appellate and general jurisdiction trial court 

judges in the United States, 6,466 are elected to office. State 
Court Organization 1987. at 127-142, 271-302, National Center for 
State Courts, 1988. These judges are elected in nearly forty 
states across the county. .Id. at 7-10. In Texas alone, there are 
375 elected district court trial judges. Only 7 of these judges 
are African American. Office of Court Administration, Texas 
Judicial Council, Texas Minority Judges, Feb. 10, 1989. In Harris

2



County, the largest and most populous judicial district in the 
State, only 3 African Americans have ever served as district 
judges. African Americans, however, make up nearly 20% of the 
population of Harris County, and 18% of the voting age population.

Under the current county-wide method of electing district 
judges, African American voters are submerged in a district of 
nearly 2.5 million people and over 1,200,000 registered voters. 
Because white voters in Harris County district judge elections do 
not vote for African American judicial candidates who face white 
opponents, African American voters in the county cannot elect their 
preferred representatives to the bench.

If based on these facts and those in the record, this case 
involved a challenge to city council elections, the district 
court's judgment would have been upheld, and this case would be 
before the district court for a determination of the appropriate 
remedy. But alone among all appellate courts, a panel of this 
court has created an exemption for the election of trial judges 
from the strictures of §2 of the Voting Rights Act.

SUMMARY OF THE ARGUMENT
As "the major statutory prohibition of all voting rights 

discrimination" in the United States, Senate Report No. 97-417, 
97th Cong., 2nd Sess., at p. 30 (1982) [hereinafter "S. Rep."] §2 
of the Voting Rights Act of 1965, 42 U.S.C. §1973, prohibits the 
use of discriminatory election structures and practices in every

3



election in which electors are permitted to cast votes. Section 
2 of the Voting Rights Act is violated whenever electoral 
structures or procedures "result in a denial or abridgement of the 
right of any citizen of the United States to vote on account of 
race or color." 42 U.S.C. §1973.

Congress intended §2 of the Voting Rights Act to be 
comprehensive in scope and application. The only limiting language 
in the Act cautions that lack of proportional representation does 
not constitute a §2 violation. Congress did not exempt, neither 
explicitly nor implicitly, particular elected offices from the 
purview of the Act. In particular, the Act covers the election of 
judges - both appellate and trial. Nothing in the legislative 
history indicates that Congress intended to exclude nearly 10,000 
elected offices from the reach of African American voters. In 
fact, the legislative history of the Act makes reference to both 
the election of judges and the creation of judicial districts. 
Almost all of these references are to trial judge elections and 
districts. See discussion in original Brief on Appeal for the 
United States as Amicus Curiae at 16-17, LULAC v. Mattox, No. 90- 
8014 (May 11, 1990).

The Act also applies to the election of single-person 
officers, or offices for which only one person is elected in the 
geographical district. There is no legislative history to the 
contrary.

The Supreme Court has instructed that in order to prevail in 
a §2 claim, plaintiffs must show: that the minority population in

4



the challenged district is sufficiently large and geographically 
compact to constitute a majority in a fairly drawn single-member 
district; that the minority group in the district is politically 
cohesive; and that whites in the district vote sufficiently as a 
bloc so as to usually defeat the candidate of choice of minority 
voters, absent special circumstances. Thornburg v. Gingles, 478 
U.S. 30, 50-51 (1986). Once plaintiffs have made this threshold 
showing, they may further support their claim by demonstrating 
through objective factors, how the challenged electoral structure 
"interacts with social and historical conditions to cause an 
inequality in the opportunities enjoyed by black and white voters 
to elect their preferred representatives." Id. at 47. To guide 
courts in their analysis, Congress has provided a list of objective 
factors which, if proven, tend to support the existence of 
impermissible vote dilution. Most important among these factors 
is the extent to which minorities have been elected to office in 
the challenged jurisdiction and the existence of racially polarized 
voting. Gingles, 478 U.S. at 45 n.15. While this list is not 
exhaustive, Congress specifically excluded highly subjective 
factors from consideration. House Report at 30.

In proving the first prong of Gingles, plaintiffs are not 
required to provide the court with actual remedial plans to cure 
the alleged violation. Therefore, remedial concerns based on the 
plaintiffs' illustrative plans are not a basis for rejecting a 
liability finding. The trier of fact must limit its liability 
determination to the "impact of the contested structure or practice

5



on minority electoral opportunities." Gingles. 478 U.S. at 44.
Plaintiffs may prove the existence of the second and third 

prong of the Gingles test through standard statistical analyses for 
determining racial vote dilution, supported by lay testimony. See 
Gingles. 478 U.S. at 53 n.20. Accord Overton v. City of Austin, 
871 F.2d 529 (5th Cir. 1989); Campos v. City of Baytown, 840 F.2d 
1240 (5th Cir. 1988), cert. denied. 109 S.Ct. 3213 (1989). 
Congress deliberately excluded subjective inquiries into the 
motives of white voters who do not vote for African American 
candidates from the proper scope of a vote dilution analysis.

In the case at hand, the district court, based on the record 
and the proper application of the relevant law, correctly found 
that the county-wide election of district judges in Harris County 
violates §2 of the Voting Rights Act.

ARGUMENT

I. Section 2 Covers the Election of Judges
There is no reason for this court to reconsider the issues 

briefed, argued and decided in Chisom v. Edwards, 839 F.2d 1056, 
(5th Cir. 1988), cert, denied. 109 S.Ct. 390 (1988). Chisom1s
conclusions were based on an exhaustive analysis of "the language 
of the [Voting Rights] Act itself; the policies behind the 
enactment of section 2; pertinent legislative history; previous

6



judicial interpretations of section 5, a companion section to 
section 2 in the Act; and the position of the United States 
Attorney General on this issue." 839 F.2d at 1058. Both the 
Chisom and LULAC panels' comprehensive review of the relevant 
legislative history of amended §2 found no indication that Congress 
contemplated the creation of an exemption for elected judges from 
the purview of §2. This court's decision in Chisom therefore 
applied the general and undisputed principle that Congress intended 
the Voting Rights Act to cover "[e]very election in which 
registered electors are permitted to vote"1 to the particular 
elections at issue in that case (Louisiana Supreme Court Judges). 
The defendants in this case raise no new arguments or subseguent 
history which could alter this court's holding in Chisom that 
judicial elections are covered by §2.

Every appellate court to address the issue has concluded that 
judicial elections are covered by the Voting Rights Act. See 
Martin v. Haith, 477 U.S. 901 (1986), aff'g, 618 F.Supp. 410 
(E.D.N.C 1985)(three judge court) (holding that §5 covers the

Voting Rights; Hearings Before Subcommittee No. 5 of the 
House Judiciary Comm., Testimony of Attorney General Katzenbach, 
89th Cong., 1st Sess. (1965) [hereinafter "House Hearings"]. 
Section 14 (c)(1) of the Act defines "voting" for purposes of the 
Act as:

all action necessary to make a vote effective in any 
primary, special or general election, including, but not 
limited to, registration, listing pursuant to this sub­
chapter or other action required by law prerequisite to 
voting, casting a ballot, and having such ballot counted 
properly and included in the appropriate totals of votes 
cast with respect to candidates for public or party 
office and propositions for which votes are received in 
an election.

7



election of superior court trial judges in North Carolina) ; 
Mallorv v. Evrich. 839 F.2d 275 (6th Cir. 1988) (holding that §2 
covers the election of Cincinnati municipal trial judges); LULAC 
v. Mattox. No. 90-8014, (May 11, 1990) [hereinafter "LULAC Panel 
Op."] (holding, in relevant part, that judicial elections are 
covered by §2), vacated and reh'g en banc granted (May 16, 1990); 
Chisom v. Edvards. 839 F.2d 1056 (5th Cir. 1988), cert, denied, 109 
S.Ct. 390 (1988) (holding that §2 covers judicial elections). Cf. 
Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th 
Cir. 1980) (holding that intentionally discriminatory election 
scheme for Baton Rouge trial judges violates Fifteenth Amendment).

* * * * * *

The defendants' argument that the election of trial judges, 
in particular, must be exempt from the strictures of the Voting 
Rights Act has never been endorsed by any court. Even the panel 
majority in LULAC concedes that there is no rationale for drawing 
a distinction between trial judges and other judges for the 
purposes of §2 coverage. LULAC. Panel Op. at 24.

In LULAC. the plaintiffs prevailed in the district court on 
proof of discriminatory results.2 In Voter Information Pronect, 
the plaintiffs proceeded under the Fifteenth Amendment intent

discriminatory intent in violation of §2 may be proven 
"through direct or indirect circumstantial evidence, including the 
normal inferences to be drawn from the foreseeability of 
defendant's actions." S.Rep. at 27 n.108.

8



standard. In essence, therefore, the only difference between the 
cause of action brought in Voter Information Project and the cause 
of action in LULAC is the intent behind the adoption and 
maintenance of at-large judicial systems.

The defendants and the LULAC panel view the absence of intent 
as fatal to the LULAC plaintiffs' claim under §2. Apparently, if 
the plaintiffs in LULAC had presented "smoking gun" evidence of 
the existence of an intentionally discriminatory motive in the 
enactment of the county-wide district judge election system in 
Texas, defendants would concede that this method of election would 
violate both §2 and the Fifteenth Amendment. See LULAC, Panel Op. 
at 34 n.10. Absent such a showing of intent, the defendants and 
the LULAC majority argue that §2 cannot be applied to the election 
of trial judges.

But Congress has specifically instructed that the presence or 
absence of discriminatory intent is irrelevant to the question 
whether §2 has been violated. The very essence of amended §2 
negates the relevance of intent. See House Report at p. 29-30. 
Therefore, given that this Court has found that the election of 
trial judges may not intentionally discriminate against African 
American voters, a trial judge electoral system that results in 
African Americans having an unequal opportunity to participate and 
elect candidates of their choice must be an equally invalid under 
§2. No other of the Act interpretation is consistent with 
Congress' intent in amending §2 and this court's prior 
interpretation of vote dilution law. The LULAC panel mistakenly

9



relies on Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547
(11th Cir. 1987), cert, denied sub nom. Duncan v. Carrollton, 485 
U.S. 936 (1988) to support its distinction between the application 
of the Voting Rights Act to intentionally discriminatory electoral 
structures and its in—applicability to electoral schemes which 
result in an unequal opportunity for African Americans to elect 
their candidates of choice. The LULAC panel interprets Stallinqs 
to hold that a single-person office may be challenged on grounds 
of racial discrimination only if such a challenge is based on a 
claim of impermissible intent. LULAC. Panel Op. at 34 n. 10. This 
reading of Stallings is clearly contradicted at the very outset of 
the Stallings opinion: "[w]e consider the single-member county 
commission here to be in all essential respects comparable with the 
multi-member district discussed by the court in Gingles." 829 F_.2d 
at 1549 (referring to Thornburg v. Gingles, 478 U.S. 30 (1986)). 
The court in Stallings then engages in an exhaustive review and 
analysis of the results test under Gingles for determining whether 
the one person commissioner form of government in Carroll County 
violates §2. 829 F.2d at 1553-1562. Finally, the Eleventh Circuit 
remanded the case to the district court, not only because it found 
a constitutional violation, but also "for consideration in light 
of Gingles." and its interpretation of the test set out in 
Gingles. 829 F.2d at 1563. See also LULAC. Dissent at 5, n.4. 
Both the trial court's and the Eleventh Circuit's reliance on 
Gingles makes clear that Stallings did not require proof of intent.

10



II. The Application of Section 2 Does Not Depend on the
Function of the Elected Officer

At its core, this Court's decision in Chisom is a rejection
of the view that the function of the elected officer determines
the applicability of section 2. The court in Chisom specifically
disavowed the approach advocated by the defendants, which focussed
on the function of the elected officer as determinative of the
applicability of section 2. The Chisom panel, finding the
defendants' view "untenable" 839 F.2d at 1063, explained that:

Judges, while not 'representatives' in the 
traditional sense, do indeed reflect the 
sentiment of the majority of the people 
as to the individuals they choose to entrust 
with the responsibility of administering 
the law.

Id. The Chisom panel endorsed the view of the court in Martin v 
Allain. 658 F.Supp 1183 (S.D. Miss 1987), that §2's use of the word
representatives "denotes anyone selected or chosen_by_popular
election from among a field of candidates to fill an office, 
including judges." 839 F.2d at 1063,(emphasis added) (quoting 
Martin v. Allain. 658 F.Supp at 1200). Chisom never referred to 
the function of the Louisiana Supreme Court judges as "collegial" 
decision-makers as a rationale for the inclusion of those elections 
under the purview of §2.

No appellate court since Butts v. City of New York, 779 F.2d 
141 (2d. Cir. 1985), cert, denied. 478 U.S. 1021 (1986), has
conditioned application of the Voting Rights Act to an elected

11



office on the function of the elected officers at issue. The 
Eleventh Circuit, in particular, has recognized that the function 
of an elected official is irrelevant to a court's inquiry under §2.

The Eleventh Circuit's decision in Dillard v. Crenshaw 
County. 831 F.2d 246 (11th Cir. 1987), clearly contradicts the 
analysis endorsed by the LULAC panel. Dillard rejects the 
defendants' attempt to carve out a §2 exemption for elected 
officers performing administrative functions. The court found that 
§ 2 applies to all elected offices, whether the function performed 
by the officer is either legislative or administrative. As the 
Dillard court explains,

Nowhere in the language of Section 2 nor in 
the legislative history does Congress 
condition the applicability of Section 2 
on the function performed by an elected 
official. The language is only and 
uncompromisingly premised on the fact 
of the nomination or election. Thus, on 
the face of Section 2, it is irrelevant 
that the chairperson performs only 
administrative or executive duties. It 
is only relevant that Calhoun County has 
expressed an interest in retaining the 
post as an electoral position. Once a 
post is open to the electorate, and if it 
is shown that the context of that election 
creates a discriminatory but corrigible 
election practice, it must be 
open in a way that allows racial groups to 
participate equally, (footnote omitted)

831 F 2d at 250-251. Following the reasoning of Dillard, the 
Eleventh Circuit would not, as the LULAC panel does, foreclose a 
finding of §2 liability based on the functions performed by the

12



elected official.3
Nevertheless, the LULAC panel adopts the radical analysis of 

the Second Circuit in Butts. and holds that the function of trial 
judges warrants exemption from §2. The LULAC panel reconstructs 
the analysis and holding of Chisom to apply only to the election 
of judges who serve, like legislators, on collegial decision­
making bodies. Butts is completely inapposite to the case at hand 
and, in any event, seriously misinterprets §2.

A. The Trial Judges in the Challenged Counties Are Not 
Single Person Officers

The holding in Butts cannot be applied to the facts in this 
case. In Butts, the district court held that the 40% vote 
requirement in party primaries for the offices of Mayor, City 
Council President and Comptroller violated §2 of the Voting Rights 
Act, in that it denied African American and Hispanic voters in New 
York City an equal opportunity to elect candidates to those three 
city-wide offices. Butts v. City of New York, 614 F. Supp. 1527 
(S.D.N.Y. 1985). The Second Circuit Court of Appeals reversed the 
district court's holding on the grounds that "there can be no equal 
opportunity for representation within an office filled by one 
person." 779 F.2d at 148. The court in Butts found that "there

3This conclusion is consistent with the way courts have 
construed §5 cases. See Haith v. Martin. 477 U.S. 901 (1986) ; 
Kirksev v. Allain. 635 F. Supp. 347 (S.D. Miss. 1986) (three-judge 
court). In accordance with Congressional intent, "[sjections 2 
and 5 operate in tandem." LULAC. Panel Op. at 23. The function 
of the elected officer has no part in the application of any 
section of the Voting Rights Act.

13



is no such thing as a 'share' of a single-member office". Id.
The offices at issue in Butts were offices for which only one 

candidate was elected to serve the entire city. "[T]here would 
not, for example, be two comptrollers serving that geographic 
area." LULAC, Dissent at 7. At issue in the case at hand are at- 
large elections for district judges in counties served by more than 
one district judge. In Harris County, for example, 59 district 
judges are elected in staggered elections for six—year terms. Each 
judge runs for a numbered post —  but each judge is elected by all 
voters in the county and each judge has statewide jurisdiction. 
"Unlike the election for mayor or comptroller in Butts, the instant 
case is concerned with the election, within discrete geographic 
areas, of a number of officials with similar, and in most cases
identical, functions." LULAC, Dissent at 9; see also SCLC_v_;_
Sieaelman. 714 F.Supp 511,518 n.19 (M.D. Ala. 1989) ("what is
important is how many positions there are in the voting 
jurisdiction") .

If Harris County elected only one district judge to serve 
the entire county, then plaintiffs might find it difficult to prove 
that there should be 59 judges, and the Butts analysis would 
arguably be relevant, though not controlling. But that is not this 
case. Counties in Texas that elect only one district judge are not 
at issue in this case. The LULAC majority correctly points out 
that "it is no accident" that those counties' electoral systems 
were not challenged by the plaintiffs. Panel Op. at 38. The State 
of Texas has decided to have 59 district judges serve Harris

14



County. The at-large system of electing district judges in the 
challenged counties in Texas therefore, is simply not comparable 
to the elected offices at issue in Butts. See SCLC v. Siegelman, 

supra.
The specialization of family, civil and criminal court judges 

does not support the argument made by the LULAC panel that district 
judges are single-person officers exempt from §2. Section 2 has 
been applied to the election of commissioners who, like the judges 
in this case, are elected at-large by all the voters in the 
jurisdiction, to serve special functions. See e.g ., Bolden v. City 
of Mobile. 571 F.2d. 238 (5th Cir. 1978) (upholding application of 
§2 to three-member city commission, each assigned particular city­
wide functions) rev'd on other grounds, 446 U.S. 55 (1980) on
remand. 642 F.Supp. 1050 (S.D. Ala. 1982) (striking down Commission
system based on discriminatory intent); Buchanan v. City__of
Jackson. Tenn.■ 683 F.Supp. 1515 (W.D. Tenn.1988) (striking down
as violative of §2, at—large method of electing three-member 
commission, where the city charter assigned each commissioner 

specific duties).4
A review of the function of district judges in Texas also 

suggests that district judges do not, in fact, exercise the full

4In Mobile. the administration of the Department of Finance 
and Administration, the Department of Public Safety, and the 
Department of Public Works and Services, were assigned to each of 
the three commissioners respectively. In Buchanan, "The Mayor 
served as Commissioner of Public Affairs, Public Safety, Revenue 
and Finance, and the other commissioners served as the Commissioner 
of Streets, Sewers, Public Improvements and Public Utilities, and 
the Commissioner of Health, Education, Parks, and Public Property." 
683 F.Supp. at 1522

15



authority of their offices independently. Trial judges engage in 
a number of collegial decision-making functions. Panel Op. at 27 — 
30. Some of these collegial administrative functions are minor, 
while others affect the structure and function of the entire trial 
judge electoral system in the county.5

Even after trial judges are assigned cases they do not 
function as exclusive and independent decision-makers.6 "Cases 
can be freely transferred between judges...and any judge can work 
on any part of a case including preliminary matters." Panel Op. 
at 28. In addition, case assignments, jury empaneling and case 
record-keeping are handled on a county—wide collective basis. Tr. 
at 3-267; Tr. at 4-255-256. These collegial functions within the 
county-wide electoral structure demonstrate that district judges 
do not, in fact, exercise the full authority of their offices

5For instance, the Governor appoints a presiding 
administrative judge to correspond to the nine administrative 
judicial regions in Texas, from among the sitting district judges. 
Panel Op. at 28. This judge "is the key administrative officer in 
the Texas judicial system." Id. The presiding administrative 
judge is responsible for assigning judges within his region. Id. 
at 29. This judge also calls two meetings at which all of the 
judges in his/her region meet "to promulgate administrative rules, 
rules governing the order of trials and county-wide recordkeeping, 
and other rules deemed necessary." Id. at 29, quoting Tex. Gov't 
Code §74.048 (b)-(c) (Vernon 1988). The presiding judge is also 
endowed with the more general power to initiate action which will 
"improve the management of the court system and the administration 
of justice" in his region. Tex. Gov't Code §74.047 (Vernon 1988).

In addition, a local administrative judge, whose duties are 
similar to those of the presiding judge on a local level, is 
elected by a majority vote of all the judges in the county. Tex. 
Gov't Code §74.091 (Vernon 1988 & Supp.1990). District judges are 
also responsible for the appointment of a county auditor. LULAC, 
Dissent at 8.

6A11 cases are filed in a central "intake" for the county. 
Cases are then assigned randomly to a trial judge. Tr. at 4-255.

16



exclusively.
The LULAC panel's suggestion that "other rules attending the 

election of single officials, such as majority vote requirements, 
anti-single-shot voting provisions, or numbered posts," can be 
challenged under §2 reveals the weaknesses in its reasoning. Panel 
Op. at 39. First, as the dissent points out, "voting structures 
such as numbered posts do not logically apply to a single office 
position." LULAC. Dissent at 8-9 n.9. Indeed, a majority vote and 
numbered post requirement are two of the three factors specifically 
identified in the Senate Report as electoral features which in an 
at—large system tend to "enhance the opportunity for discrimination 
against the minority group." S.Rep. at 29. The LULAC panel 
implicitly recognizes therefore, that district judges in Texas are 
elected in an at-large system. Secondly, if the LULAC panel 
believes that the majority vote requirement can be challenged under 
§2, then it cannot rely on Butts, because Butts held precisely the 
opposite.

2. Butts Does Not Support Limiting Section 2's Scope to 
Collegial Decision-Makers

The court's reliance on Butts to advance the view that 
only collegial decision-makers are covered by §2 is also faulty. 
"Butts was not based on a 'collegial decisionmaking' rationale, 
nor was this concept even discussed. The Butts exception is 
premised simply on the number of elected officials being elected 
and the impediment to subdividing a single position so that

17



LULAC.minority voters have the opportunity to elect a 'share'."
Dissent at 9. The interpretation that only collegial-
decisionmaking offices elected at-large can be challenged under §2 
is of the LULAC panel's own creation.

3. Butts Erroneously Interprets Amended §2
In carving out an exemption for single-person offices from 

the restrictions of the Voting Rights Act, the Second Circuit in 
Butts suggests that Congress was not concerned with ensuring that 
minority voters have an equal opportunity to participate in the 
election of a particular group of elected office-holders —  single­
person officeholders. Nothing in the legislative history of the 
Voting Rights Act, nor in the Supreme Court's decision in Ginqles, 
in fact, suggests that single-person offices, such as mayor or 
governor, are entitled to greater deference than other offices open 
to the electorate. The Butts court cites no statutory language,7 
legislative history or even relevant §2 cases8 which support its 
radical approach to interpreting the scope of amended §2.

The legislative history of the Act shows, in fact, that

7The statutory language of the Act in defining "voting" 
clearly contradicts the Butts court's holding. See Voting Rights 
Act, Section 14 (c)(1) supra at n.l.

8The Butts court rests its conclusion'entirely on two §5 cases 
neither of which involved a challenge to a majority vote
requirement for a single—person office. See City of Richmond_v .
United States. 422 U.S. 358 (1975)(finding that §5 was not violated
by annexation of white suburb) ; City of Port Arthur v._United
States. 459 U.S. 159 (1982) (affirming district court's order
enjoining use of majority vote requirement for at-large 
councilmanic elections).

18



Congress was concerned with eradicating discrimination 
"comprehensively and finally" from every election in which voters 
were eligible to cast ballots. S. Rep at 13. Even elections for 
referenda, therefore, must comply with §2. See Voting Rights Act, 
Section 14(c)(1), 42 U.S.C. §1973 1 (c)(1); see also S.Rep. at 37.

The Butts court further errs in its interpretation of the 
focus of the Act. According to the Butts court, the Voting Rights 
Act was not meant to abolish electoral laws or structures that 
"make it harder for the preferred candidate of a racial minority 
to be elected . . .  the Act is concerned with the dilution of 
minority participation and not the difficulty of minority victory."
779 F. 2d at 149. The Supreme Court in Ginqles, expressly 

contradicts this interpretation of the focus of amended §2. In 
Ginqles. the Court struck down the use of an electoral scheme 
precisely because it made it difficult for African American voters 
to elect their preferred candidate to the North Carolina 
legislature. The at-large structure in Ginqles did not entirely 
inhibit African American voters from electing some candidates. 
African American voters, in fact, "enjoyed. . . sporadic success 
in electing their representatives of choice." 478 U.S. at 53. The 
at-large structure combined with white bloc voting made it 
difficult, absent special circumstances, for African American 
voters to elect their preferred candidates.

Butts' creation of a single-member office exception is simply 
inconsistent with the comprehensive scope of amended §2. If a New 
York City law explicitly stated that candidates for mayor must run

19



in election after election until a white candidate received a 
majority of the vote, §2 would clearly be violated. Similarly, if 
Harris County were divided into fifty-nine judicial districts which 
fragmented politically cohesive geographically compact communities 
of African American voters, this districting scheme could also be 
challenged under §2, even if that fragmentation were not the result 
of intentional discrimination. A change from the election of 
district judges to an appointive system could also be challenged 
under §2.9 See House Report at 18 (identifying shifts from 
elective to appointive systems as a potentially discriminatory 
election practice). The function of judges as single or collegial 
decision-makers would be irrelevant to whether such a cause of 
action could be sustained under §2.

Discriminatory election schemes for single-person offices have 
been struck down by this Court. In Bell v. Southwell, 376 F.2d 659 
(5th Cir. 1967) , for example, this Court voided the results of a 
Justice of the Peace election in which a white candidate defeated 
a African American candidate, because the voting lists and booths 
for that election were segregated. In that case, this court did 
not analyze the role or function of the official on the ballot.

9Plaintiffs would have to prove either that the change was 
enacted intentionally to discriminate against minorities or that 
the effect of the change resulted in the inability of African- 
American voters to participate in the political process. Such a 
change, of course, would first be subject to the preclearance 
requirements of §5 of the Voting Rights Act. Preclearance of this 
change could be denied on the grounds that the change from an 
elected to an appointive system violates §2. See Letter from 
Assistant Attorney General, April 25, 1990, Attached at Appendix 
"A" (objecting to changes in superior court judge elections in 
Georgia based, in part, on their apparent violation of §2).

20



The court was only concerned with the fact that segregated election 
practices offend the Constitution. Id. at 663. In fact, the 
results of the election were voided, even though the African 
American voting population was so small that if all the qualified 
African Americans had voted in the election, the results would not 
have been changed, and the white candidate would still have won. 
Id. at 662. The holding in Butts that the rules for the election 
of single-person offices are immunized from §2 application 
therefore, is wrong in light of the statutory language, legislative 
history and subsequent Supreme Court decision in Ginqles 10. It is 
also inconsistent with the law of this Circuit.

III. Remedial Concerns Are Not Properly Addressed at the 
Liability Stage of a Voting Rights Case

Despite its lengthy inquiry into the independent decision­
making role of trial judges, the LULAC panel is clearly most 
troubled by the prospect of carving up each of the challenged 
counties into single-member judicial districts. Conceding the lack 
of minority representation in the judiciary, the panel argues that

10The Supreme Court, in fact, has never focussed on the 
function of an elected officer in striking down a discriminatory 
election scheme. In Gray v. Sanders. 372 U.S. 368 (1963), for 
instance, the Supreme Court struck down the use of Georgia's county 
unit electoral system for the nomination for single-person 
(Governor) and multi-member (legislators) officers. In finding that 
the county unit system violated the Equal Protection Clause, the 
Supreme Court drew no distinction between the function of the 
multi-member and single-member officers at issue.

21



"the problems inherent in attempting to create a remedy for lack 
of minority representation" in the challenged counties 
"emphasiz[es]" the character of trial judges as single-office 
holders. LULAC. Panel Op. at 35. The Panel's preoccupation with 
the appropriateness and legality of a single-member district remedy 
in this case is premature, and taints its review of the District 
Court's finding of liability under §2.

A. The Proper Scope of the Liability Inquiry
Undoubtedly, the fashioning of an appropriate remedy which 

will completely remedy the §2 violation with "certitude" is a 
complex and daunting task for the parties and the reviewing court. 
See, e.g.. Dillard v. Crenshaw. 831 F.2d at 252. In part because 
of the complex and important nature of the task, the reviewing 
court at the liability stage need not adopt, review or otherwise 
engage in an analysis of the remedy best suited to cure the proven 
violation. The trier of fact and the reviewing court at the 
liability stage must limit its inquiry to an assessment of the 
"impact of the contested structure or practice on minority 
electoral opportunities." Ginqles. 478 U.S. at 44. At a separate 
remedy hearing, the trier of fact has an opportunity to assess the 
feasibility of the plans offered by the parties and rule on those 
plans according. See. e.g.. Martin v. Allain, 700 F.Supp. 327 
(S.D.Miss. 1988).

The LULAC panel's profound misgivings about a single-member 
judicial district remedy underscores the importance of separating

22



the liability inquiry from the question of remedy. In a separate 
remedial hearing, a full factual record related to a particular 
remedial plan can be developed and reviewed. To cure the 
violation, the State will also have the opportunity to submit its 
own plan which protects its bona fide interests. At the liability 
stage, the illustrative district maps offered by the plaintiffs at 
trial do not provide any sound basis upon which the court may rule 
on the appropriateness of a sub-districting remedy.

B. The LULAC Panel's Analysis of Sub-Districts 
as a Remedy is Critically Flawed

As the basis for its analysis of remedy, the LULAC panel 
refers to the illustrative sub-district plans offered by the 
plaintiffs as actual remedial plans for each county. That is
incorrect. These plans by the plaintiffs solely to illustrate the 
way in which the current system dilutes the voting strength of 
African American voters. Plaintiff—intervenors showed, that
African Americans in Harris County are sufficiently numerous and 
geographically compact to constitute a majority in a fairly drawn 
single-member district plan. These maps were not intended to serve 
as actual remedial plans. In sum, the illustrative hypothetical 
plans show the possibility of alternatives to the existing 
electoral structure that could provide African American voters with 
a more equal opportunity to elect their preferred candidates. 
["Gingles I districts"]. See Plaintiffs Exhibit H-04 ; HLA Exhibits 
2a-2c. Unilaterally transforming these maps into actual remedial

23



plans, the LULAC panel concludes that "the remedy in this case 
seems to lessen minority influence instead of increasing it." 
Panel Op. at 35.

In creating illustrative Ginqles I districts both the 
plaintiffs and Harris County plaintiff-intervenors developed sub­
district maps which divided the county into districts equalling 
the number of currently sitting district judges. For example, 
plaintiffs' and plaintiff-intervenors' experts created 59 
illustrative judicial electoral districts for Harris County, since 
the county is served by 59 district judges. Referring specifically 
to the plaintiffs' suggested plan for Harris County, which showed 
that if the county-wide electoral system were changed, politically 
cohesive African American voters could constitute a majority in at 
least nine districts,11 the LULAC panel argues that "[m]inority 
voters would have very little influence over the election of the 
other 50 judges, for the minority population is concentrated in 
those 9 subdivisions." Panel Op. at 36. An appropriate remedy 
for Harris County, however, might not include the creation of 59 
separate electoral districts in Harris County. So long as the 
creation of a sub-districting plan fully cured the §2 violation, 
it might take a number of different forms and might contain fewer 
than 59 electoral districts in Harris County. The conclusions 
drawn by the LULAC panel from the plaintiffs illustrative maps 11

11Plaintiff-intervenors ' expert testified that African American 
in Harris County could constitute a majority in thirteen [13] 
single-member districts. See. Plaintiff-Intervenor HLA Exhibits 
2, 2a, 2b.

24



would be relevant only if these maps were submitted as remedial 
plans once the liability phase of this case had been completed. 
The LULAC panel's concerns about the creation of an appropriate 
remedy should be properly considered by the district court on 
remand. These legitimate concerns, however, should not infect this 
court's review of the presence of underlying §2 liability.

1. The LULAC Majority's Analysis of the Plaintiffs'
District Plan Fails on Its Own Terms

Assuming that 59 separate judicial electoral districts would 
be created in Harris County, the LULAC panel argues that African 
American voters in Harris County would suffer greater injury under 
a sub-district plan because "it is much more likely than not that 
a minority litigant will be assigned to appear before a judge who 
is not elected from a voting district with a greater than 50% 
minority population." Panel Op. at 36. The panel calculates that 
in Harris County, "a minority member would have an 84.75% chance 
of appearing before a judge who as no direct political interest in 
being responsive to minority concerns." Panel Op. at 36-37. Under 
the current system, the panel reasons that "[m]inority voters.
. have some influence on the election of each judge," because they 
are permitted to vote for every judicial race in their county. 

Panel Op. at 36.
The panel's analysis simply does not hold up under close 

scrutiny. Since all cases in the county are assigned to judges 
randomly, Tr. at 4-255-256, no litigant in Texas should anticipate

25



appearing before a judge that he or she elected. In fact, no 
evidence was introduced at trial to suggest that voters vote for 
particular candidates because they expect to appear before them as 
litigants. It would seem more likely that voters vote for 
candidates who they anticipate will "administer and interpret the 
law" in accordance with the voter's philosophy about the rules 
under which their society should be governed. Chisom, 839 F.2d at 

1065.
Moreover, maintaining the countywide election system gives 

white litigants a virtual guarantee that they will appear before 
judge who are the candidates of choice of the white community. If, 
as the LULAC panel argues, a sub-district remedy would be 
"perverse," Panel Op. at 38-39, then maintaining the current system 
which, in effect, rewards whites who vote as a bloc against African 
American sponsored African American candidates, would be obscene.

If indeed the panel is concerned that African American 
litigants will not, under a sub-districting plan, appear before 
African American judges, the its own analysis contradicts itself.

12The panel's entire discussion assumes that minority judges 
will decide cases on the basis of race, instead of in accordance 
with the law, and that African American litigants will therefore 
wish to appear before African American judges. Nothing in the 
record supports this assumption. It is offensive to the many 
qualified minority candidates to assume that they will not apply 
the law as impartially as currently sitting white judges do. No 
witness or party in this case has ever claimed that he or she seeks 
to influence the outcome of litigation by electing minority judges. 
That is neither the anticipated nor desired outcome of this §2 
challenge. Instead, the plaintiffs in this action simply seek an 
equal opportunity to participate in all phases of the electoral and 
political process. In keeping with that goal, plaintiffs seek the 
right to elect candidates of their choice as district judges. As 
the dissent points out, "[t]he majority's discussion approaches the

26



Under the current electoral system, only two African Americans have 
been elected to serve as district judges in Harris County since 
1980.13 It is difficult to understand how African Americans would 
fare worse under an electoral scheme that would give them the 
opportunity to elect 9 of the 59 judges.

The panel's concern that white judges outside the majority 
African American sub-districts will not feel responsible to the 
African American community merely supports the need for change in 
the current system. Under the county-wide election scheme, none 
of the 59 district judges in Harris County has any incentive to be 
responsive to the minority community because African Americans make 
up only 18% of the County's 1,266,655 registered voters. 
Therefore, under the current system, district judges in Harris 
County may "ignore minority interests." Ginqles, 478 U.S. at 48 

n. 14.
Contrary to the defendants' argument, the election of judges 

from sub-districts with countywide jurisdiction would not violate 
the constitutional rights of voters. District judges in Texas 
currently have statewide jurisdiction. See Nipper v. U—Haul, 516 
S.W .2d 467 (Tex. Civ. App. 1974). This means that district judges 
may hear cases anywhere in the State of Texas. Id.; see also, Reed

problem from the wrong direction; quite simply, the focus should 
be on the rights of the voter, not the litigant." Dissent at 12- 
13, n.12 .

130f the three sitting African American district judges in 
Harris County, two are criminal court judges, and one is a family 
law judge. No African American has ever been elected to a district 
civil court bench. Tr. at 3-207.

27



v. State of Texas. 500 S.W.2d 137 (Tex. Crim. App. 1973). Often
judges sit in counties from which they were not elected in order 
to help with docket control. Tr. at 5-120. Therefore, litigants 
in Texas frequently appear before trial judges over whom they have 
no electoral control. This political reality has been upheld in 
a number of cases challenging the power of district judges in Texas 
to hear cases outside their electoral district. See, e. q . , Nipper; 
Reed. Other states have also upheld the constitutionality of 
similar judicial electoral systems. See e.q., Holhouser v. Scott, 
335 F.Supp. 928 (M.D.N.C. 1971) (upholding statute permitting
judges with statewide jurisdiction to be elected statewide or from 
districts; also upholding transfer of district judges from one 
district to another for temporary or specialized duty); Cox v . 
Katz. 294 N .Y.S.2d 544 (1968) (upholding constitutionality of
electing judges with citywide jurisdiction from districts within 
each borough). Moreover, in Martin v. Allain. the District Court 
approved the election of chancery, circuit and county court judges 
from sub-districts, while maintaining countywide jurisdiction for 
the judges. 700 F.Supp 327,332 (S.D. Miss. 1988).

C. The LULAC Panel's Focus on a Sub-Districting Remedy 
is Particularly Inappropriate in This Case Where 
Plaintiff-intervenors Proposed Alternative Remedies

The Panel's reversal of the district court's decision, based 
primarily on its analysis of a sub-districting remedy, is 
particularly inappropriate in this case, where plaintiff- 
intervenors in their complaint specifically pleaded that "the use

28



of a non-exclusionary at-large voting system could afford African 
Americans an opportunity to elected judicial candidates of their 
choice." HLA Complaint at ^42. The HLA plaintiff-intervenors 
specifically stated that an at-large system using limited or 
cumulative voting would give African American voters a more equal 
opportunity to elect district judges. Id. The HLA plaintiff- 
intervenors, therefore, recognized that alternative at—large 
election schemes provide a viable alternative to sub—districting 
to cure a proven §2 violation. So long as these modified at-large 
methods of electing judges could completely cure the violation with 
"certitude," they too would be acceptable remedies. See Dillard
v . Crenshaw County; see also Dillard v. Chilton County_Bd.— of
Educ.. 699 F.Supp 870 (M.D. Ala. 1988) summarily aff'd, 868 F.2d
1274 (1989) (adopting magistrate's recommendation that cumulative
voting be used for election of county commission and school board); 
Dillard v. Town of Cuba, 708 F.Supp. 1244 (M.D. Ala. 1988) (limited 
voting scheme acceptable under §2 for city council elections).

As the HLA plaintiff-intervenors alleged in their complaint, 
single-member districts "are by no means the only alternative 
electoral system" that can give minority voters the potential to 
elect candidates of their choice. R. Engstrom, D. Taebel & R.
Cole, Cumulative Voting as Remedy for Minority Vote Dilution:__The
Case of Alamogordo, New Mexico. The Journal of Law & Politics, Vol.
V., No. 3 (Spring 1989).14 Both cumulative and limited voting

14In the case at hand, Dr. Engstrom testified as an expert for 
plaintiffs and plaintiff-intervenors and Dr. Taebel testified for 
both the State defendants and defendant-intervenors.

29



undercut the "winner-take-all" quality of at-large elections 
whereby "a bare political majority of the electorate can elect all 
the representatives and totally shut out a minority." Karlan, Maps 
and Misreadings: The Role of Geographic Compactness in Racial 
Vote Dilution Litigation. 24 Harv. C.R.-C.L.L.Rev. 173 (1989); see 
also HLA Complaint at f39 ("district judges in Harris County run 
in exclusionary at-large, winner-take-all, numbered place 
elections."). Both these alternative at-large systems would 
maintain the countywide election district, thus preserving the 
State's articulated interest in avoiding the creation of sub­
districts .

1. Limited Voting
In a limited voting electoral scheme the multimember district 

is maintained, but "each voter has fewer votes than there are seats 
to be filled: the voter is limited to voting for less than a full 
slate." Karlan, supra at 224 (emphasis in original). Using a 
mathematical equation, experts can calculate "the percentage of the 
vote that will guarantee the winning of a seat [for the minority 
group] even under the most unfavorable circumstances. '" Id. at 222 
This calculation yields the number of votes which should be 
allotted to each elector for that election. Each elector receives 
the same number of votes.

One expert has concluded that "[ljimited voting is a viable 
remedial system" for Harris County. Issacharoff, The Texas 
Judiciary and the Voting Rights Act: Background and Options, at

30



18, Texas Policy Research Forum (December 4, 1989) attached at
Appendix "B". According to Professor Issacharoff, "voters would 
be allowed to cast a number of ballots equal to roughly 60 percent 
of the judicial offices to be filled at any given time." Id.

The constitutionality of limited voting systems has been 
upheld in a number of states. See e.g.. Cintron-Garcia v. Romero- 
Barcelo. 671 F.2d 1,6 ( 1st Cir.1982) (holding that limited voting 
scheme for election of Commonwealth representative is "reasonable" 
and facilitates minority representation); Hechinger v. Martin, 411 
F.Supp. 650 (D.D.C 1976) (three-judge court) (upholding limited 
voting scheme for District of Columbia city council elections) 
aff'd per curiam. 429 U.S. 1030 (1977); LoFrisco v. Schaffer, 341 
F.Supp. 743 (D.Conn 1972) (three-judge court) (limited voting
scheme for Conn, school boards upheld); Kaelin v. Warden, 334 
F.Supp. 602, 605 (E.D. Pa. 1971) (Equal Protection Clause is not 
violated by limited voting scheme, so long as each voter casts the 
same number of votes); Blaikie v. Power. 243 N.Y.S.2d 185 (1963) 
(upholding limited voting for some New York City Council elections 
seats), appeal dism'd. 375 U.S. 439 (1964). Limited voting has 
also been approved for the election of trial judges. In Orloski 
v. Davis. 564 F.Supp. 526 (M.D. Pa. 1983), for instance, the
district court upheld the use of a limited voting scheme to elect 
Pennsylvania's Commonwealth Court.15

15The Commonwealth Court's jurisdiction includes, in part, 
"original jurisdiction over civil actions brought against the 
Commonwealth and its officials... concurrent jurisdiction with the 
Courts of Common Pleas over all actions brought by the 
Commonwealth; exclusive (with specific exceptions) appellate

31



2. Cumulative Voting
A cumulative voting electoral scheme permits each voter "to 

cast as many votes as there are seats to be filled,. . . [but]. . 
a voter may cumulate or aggregate her support by giving preferred 
candidates more than one vote." Karlan, supra at 231. A 
mathematical equation can calculate "the percentage or proportion 
of the electorate that a group must exceed in order to elect a 
candidate of its choice, regardless of how the rest of the 
electorate votes." R. Engstrom, D. Taebel, & R. Cole, supra at 
478. (emphasis in original). Cumulative voting was used 
successfully for over 100 years to elect the Illinois House of 
Representatives. See Karlan, supra at n.250.

These modified at-large electoral systems, although best 
explored at the remedy stage, clearly provide alternatives to 
single-member district schemes. In light of these alternatives, 
the LULAC panel's remedy concerns are both premature and unfounded.

IV. The District Court Properly Held that Under the Totality 
of the Circumstances African American Voters in Harris 
County Do Not Enjoy an Equal Opportunity to Elect Their 
Preferred Candidates in District Judge Elections

jurisdiction over all appeals from Courts of Common Pleas involving 
the Commonwealth, Commonwealth officials; secondary review of 
certain appeals from Commonwealth agencies.... and exclusive 
original. . . jurisdiction over election contests." 564 F.Supp. 
526,532.

32



While implicitly recognizing the existence of underlying §2 
liability in the election of district judges in Texas, see e.g., 
Panel Op. at 35; Dissent at 17-18, n.15 ("trial record is replete 
with evidence [that] minorities are seldom ever able to elect 
minority candidates to any of the at-large district court judge 
positions available in the districts"), the LULAC panel opinion 
never reached the question whether African Americans, in fact, have 
an equal opportunity to elect their candidates of choice as 
district judges in Harris County. In light of some of the 
questions raised at oral argument however, HLA plaintiff— 
intervenors will address below the only factual defense offered by 
the defendants16 —  that is, that African Americans lose district 
judge elections because they vote and run as Democrats.

Despite their failure to prove this claim as either a matter 
of fact or law, the defendants persist in arguing that partisan 
politics rather than race explains the outcome of district judge 
elections in Harris County. According to the defendants, elections 
in Harris County are politically polarized, not racially polarized. 
The defendants further argue that Judge Bunton's findings of 
racially polarized voting were clearly erroneous, because he failed 
to consider the role of partisan politics to explain the outcome

16The District Court's opinion and the original briefs of the 
plaintiff-intervenors on appeal, detail the plaintiffs' proof of 
the threshold Gingles factors and the existence of relevant Senate 
Report Factors in Harris County. The only issue about which there 
remains controversy regarding underlying §2 liability in Harris 
County, is the District Court's analysis of existence of racially 
polarized voting.

33



Defendants' argument, which seeks toof the elections analyzed.17 
import a causation requirement into a §2 analysis squarely rejected 
by Ginales and this Court, is wrong both as a matter of law and 
fact.

Judge Bunton's findings are not clearly erroneous. The 
district court properly applied, to the record in this case, the 
standard methods for determining racially polarized voting and vote 
dilution approved by the Supreme Court in Gingles and in every 
decision in this Circuit. The unquestionable outcome of the 
court's analysis revealed that white bloc voting in Harris County, 
in combination with other Senate Factors, prevents African American 
voters from electing district judges to office.

A. Congress Has Expressly Rejected a Causation Analysis 
Every decision in this Circuit which has addressed the 

question of the role of causation in an analysis of polarized 
voting, has concluded that a court need not engage in an inquiry 
into the motives of white voters in rejecting African American

17The Court relied on the testimony of plaintiff-intervenors' 
expert, Dr. Richard Engstrom. Dr. Engstrom testified that voting 
in district judge elections in Harris County is racially polarized. 
In support of his conclusion, Dr. Engstrom analyzed the 17 
contested district judge elections involving white and African 
American candidates in Harris County since 1980. In 16 of those 
17 elections, African American voters gave more than 95% of their 
vote to the Black candidate. In those same elections, white voters 
never gave more than 40% of their vote to the African American 
candidate. Only 3 African American candidates have been successful 
in contested district judge races in Harris County since 1980. Dr. 
Engstrom concluded that district judge elections in Harris County 
are racially polarized.

34



candidates. See Overton v. City of Austin. 871 F.2d 529,538 (5th
Cir. 1989); Campos v. City of Baytown. 840 F.2d 1240,1243 (5th Cir.
1988); Citizens for a Better Gretna v. City of Gretna. 636 F.Supp.

181113,1130 (E.D. La. 1986), aff'd. 834 F.2d 496 (5th Cir. 1987).
In Overton v. City of Austin, in particular, this Court held 

that the analysis used by the district court in this case, which 
focuses on the results of bivariate regression and homogenous 
precinct analysis and supporting lay testimony, rather than 
extrinsic factors such as political party, is an appropriate method 
of determining the existence of legally significant racial bloc 
voting. 871 F.2d at 538. Furthermore, a multi-variate analysis 
while perhaps "helpful in determining whether racial polarization 
exists,. . . in no way negate[s] the use of bi-variant regression 
analysis to determine whether in fact polarization exists." 
Gretna,. 636 F.Supp. at 1130.

This conclusion is compelled by Thornburg v. Ginqles. In 
Gingles, the Supreme Court upheld the district court's finding of 18 * *

18This Circuit has consistently affirmed findings of racially 
polarized voting in the lower court based on a statistical review 
of white vs. minority candidate contests, using bivariate 
regression and homogenous precinct analyses. See Campos v. City 
of Baytown. 840 F.2d 1240,1243 (5th Cir. 1988); Gretna; LULAC v. 
Midland ISP. 812 F.2d 1494,1501 n.14 (5th Cir. 1987), vacated on 
other grounds. 829 F.2d 546 (5th Cir. 1987). These statistical 
methods are standard in the literature for the analysis of racially 
polarized voting. Gingles. 478 U.S. at 53 n.20. The causation
inguiry advocated by the defendants is at odds with these standard 
methods of analysis. Attempting to determine the motive of white 
voters in rejecting Black candidates "flies in the face of the 
general use, in litigation and in the general social science
literature, of correlation analysis as the standard method for 
determining whether vote dilution in the legal... sense exists." 
Ginqles v. Edmisten. 590 F.Supp 345 at 368 n.32.

35



racially polarized voting, despite the defendants' arguments in the 
lower court that experts must "factor in all of the circumstances 
that might influence particular votes in a particular election," 
including political party. 19 Gingles v. Edmisten, 590, F.Supp. 345 
(E.D. N.C. 1984) (three-judge court). Over these arguments, the 
Supreme Court unanimously affirmed the District Court's findings.20

The approach advocated by the defendants and recently by Chief 
Judge Tjoflat in an Eleventh Circuit concurrence in Solomon v. 
Liberty County. No. 87-3406 (11th Cir. April 5, 1990),21 * is fraught 
with dangers already anticipated by Congress. First, a test which 
focused on the motives of white voters in voting against African 
American candidates "would make it necessary to brand individuals 
as racist in order to obtain judicial relief." S.Rep. at 36. 
Congress specifically sought to avoid this outcome in amending §2.

19The District Court in Gingles, specifically found that the 
white bloc vote which tended to defeat Black candidates was made 
up of both Republicans and Democrats. 590 F.Supp at 368-369.

20In their Jurisdictional Statement to the Supreme Court, the 
Gingles appellants specifically argued, as do the defendants in 
this case, that extrinsic factors besides race best explained the 
outcome of elections in the North Carolina legislative districts 
at issue. See, Jurisdictional Statement of Appellants at 17-18, 
Thornburg v. Gingles. The Supreme Court was not persuaded by this 
argument.

21In Solomon v. Liberty County. No. 87-3406 (11th Cir. April
5, 1990), the Eleventh Circuit remanded to the district court a 
claim brought by African American voters challenging the at-large 
election of county commissioners and school board members. In one 
of the three concurring opinions, Chief Judge Tjoflat argued that 
the objective factors which make up the §2 results test "must show 
that the voting community is driven by racial bias and that the 
challenged scheme allows that bias to dilute the minority 
population's voting strength," in order for plaintiffs to prevail. 
Solomon v. Liberty County. Slip Op. at 22, (Tjoflat, J., 
concurring)(emphasis deleted).

36



Mindful of the fact that levelling charges of racism against 
individual officials or entire communities" leads to divisiveness 
in the commmunity, Congress specifically "avoid[ed the inclusion 
of] highly subjective factors" in the "results" test. House Report 
at 30; S.Rep. at 36 It is difficult to imagine a more potentially 
divisive inquiry than attempting to prove that individual white 
voters voted against a African American candidate because of the 
candidate's race.22.

In addition, although under the defendants' analysis of racial 
bloc voting the motives of each and every white voter who voted 
against a African American candidate would be relevant to the 
plaintiffs' case, it would be impossible for plaintiffs to meet 
their burden because "[t]he motivation(s) of . . . individual
voters may not be subjected to. . . searching judicial inquiry."
Kirksev v. City of Jackson. Miss., 663 F.2d 659,662 (5th Cir 1981) 
rehearing and rehearing en banc denied 669 F.2d 316 (5th Cir. 
19 8 2 ) 23.

22Personal accounts of racial discrimination involving elected 
officials, community leaders, neighbors, shopkeepers, banks and 
ordinary citizens would also be relevant to establishing "the 
interaction between racial bias in the community and the challenged 
[electoral] scheme."

23Congress cited the near impossibility of meeting an intent 
burden as a factor necessitating a return to a results-oriented 
standard under §2. S.Rep. at 36; see also Gingles, 478 US at 43. 
Congress was concerned, for instance, that "plaintiffs may face 
barriers of 'legislative immunity' both as to the motives involved 
in the legislative process, and as to the motives of the majority 
electorate when an election law has been adopted or maintained as 
the result of a referendum." S.Rep. at 37 (emphasis added). 
Similar barriers would be faced by plaintiffs attempting to discern 
the motives of white voters who did not vote for Black candidates.

37



Finally, contrary to the defendant's repeated assertions, 
Congress' stated return to the standards developed in White, 
Whitcomb and Zimmer does not support the introduction of extrinsic 
factors into an analysis of racially polarized voting. Congress 
has expressly interpreted White. Whitcomb and Zimmer as results 
cases. S.Rep. at 28 (concluding that "White and the decisions 
following it" required no proof of intent). Congress noted, in 
fact, that "[i]n Whitcomb. plaintiffs conceded that there was no 
evidence of discriminatory intent. If intent had been required to 
prove a violation the opinion would have ended after it 
acknowledged plaintiffs' concession." S.Rep. at 21. The courts 
in White, Whitcomb and Zimmer simply recognized that "[i]t would 
be illegal for an at-large election scheme for a particular... local 
body to permit a bloc voting majority over a substantial period of 
time consistently to defeat minority candidates or candidates 
identified with the interests of a racial or language minority." 
House Report at 30. Moreover, Congress clearly instructed that, 
"[r]egardless of differing interpretations of White and Whitcomb.
. . . the specific intent of this amendment [to §2] is that the 
plaintiffs may choose to establish discriminatory results without 
proving any kind of discriminatory purpose." S.Rep. at 28 
(emphasis added).

The arguments offered by the defendants in this case, 
therefore, were expressly addressed and rejected by Congress in 
amending §2.

Finally, even if defendants arguments were well-founded they

38



failed to prove at trial that, in fact, factors other than race 
explain the loss of African-American candidates in district judge 
elections. The defendants' own expert, Dr. Taebel, articulated the 
proper test to determine whether party and not race explains the 
outcome of these elections: "the minority candidate who run [sic] 
on a partisan basis should receive the same support as any White 
candidate or any other candidate might." Tr. at 5-189. "In other 
words, did the Democratic White voters, for example, support the 
minority Democratic candidate to the same extent that they 
supported other White candidates." Id. The results of this test 
clearly support the plaintiffs' case.

A gross disparity exists in the success rates of white and 
African American candidates within the Democratic party. According 
to the expert for the plaintiff-intervenors, 52% of white 
Democratic candidate won in contested district judge general 
election contests since 1980. Only 12.5% of Black Democratic 
candidates were similarly successful. Tr. at 134-135. These 
figures were not disputed by Dr. Taebel. Therefore, using the 
defendants' own analytical formula, race not political party, 
controls the outcome of district judge races in Harris County.

The clear weight of the evidence in the record supports the 
district court's finding that the county-wide method of electing 
district judges in Harris County does not provide an equal 
opportunity for African-American voters to elect their preferred 
candidates.

39



CONCLUSION
Based on the legislative history of §2, the interpretation of 

amended §2 in this circuit, and the district court's proper 
application of the relevant law, HLA plaintiff-intervenors 
respectfully request that this court affirm the district court's 
judgment and remand this case for a determination of the 
appropriate remedy.

SHERRILYw A. IFILL
99 Hudson Street, 16th Floor 
New York, New York 10013

Of Counsel:
MATTHEWS & BRANSCOMB 
A Professional Corporation

GABRIELLE K. MCDONALD
301 Congress Avenue 
Suite 2050 
Austin, TX 78701

40



CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of June, 1990 a true and 

correct copy of Plaintiff Intervenor-Appellees Houston Lawyers 
Association, et al. Supplemental Brief on Appeal was mailed to 
counsel of record in this case by first class United States mail, 
postage pre-paid, as follows:

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225
Rolando L. Rios 
Southwest Voter Registration 

and Education Project 
201 North St. Mary's Street 
Suite 521
San Antonio, TX 78205
Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201 North St. Mary's Street 
Suite 600
San Antonio, TX 78205
Edward B. Cloutman, III 
Mullinax, Wells, Baab & 

Cloutman, P.C.
3301 Elm Street 
Dallas, TX 75226-9222

J. Eugene Clements
John E. O'Neill
Evelyn V. Keyes
Porter & Clements
700 Louisiana, Suite 3500
Houston, TX 77002-2730
Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 200
John L. Hill, Jr.
Liddell, Sapp, Zivley, 

Hill & LaBoon 
3300 Texas Commerce Tower 
Houston, TX 77002

David R. Richards 
Special Counsel 
600 West 7th Street 
Austin, TX 78701



Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajaro 
Attorney General's Office 
Supreme Court Building 
1401 Colorado Street 
7th Floor
Austin, TX 78701-2548

Seagal V. Wheatley 
Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg,

Kelleher & Wheatley, Inc. 
711 Navarro, Sixth Floor 
San Antonio, TX 78205
E. Brice Cunningham
777 South R.L. Thornton Freeway
Suite 121
Dallas, TX 75203
Darrell Smith
10999 Interstate Highway 10 
Suite 905
San Antonio, TX 78230
Mark H. Dettman
P.0. Box 2559
200 West Wall
Midland County Courthouse
2nd Floor
Midland, TX 79702

Robert H. Mow, Jr.
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, TX 75201
Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Avenue 
Suite 2050 
Austin, TX 78701
Walter L. Irvin 
5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, TX 75232-2255
Ken Oden
Travis County Attorney 
P.O. Box 1748 
Austin, TX 78767
Tom Rugg
Jefferson County Courthouse 
Beaumont, TX 77701
John R. Dunne, Esq.
Jessica Dunsay Silver, Esq. 
c/o Hon. Richard Thornburgh 
Attorney General of the 

United States 
United States Department 

of Justice
Main Justice Building 
10th & Pennsylvania 

Avenue, N.W. 
Washington, D.C. 20530

I
La ; i ( ' A c L l

Sherrilyn A. Ifill
Attorney -for Plaintiff Intervenor- 
Appellees,
Houston Lawyers' Association, et al.





l S Pepnrtm ei^.u!' Justice 

( I'.il Rights Division

“- iv  v'uj 202 724 6961 P.02

(itf:iv «t

April 25, 1990

Honorable Michael J. Bowers
Attorney General
State of Georgia
132 State Judicial Building
Atlanta, Georgia 30334
Dear Mr. Attorney General:

This refers to the following matters which are before the 
United States Attorney General for review under Section 5 of the 
Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c, with 
respect to the State of Georgia:

1 . the January 2, 1990, request for reconsideration of the
June 16, 1989, objection to the establishment of 48 additional
superior court judgeships, the specification of the date on which 
the first full term of office commenced for each new judgeship, 
and the creation of two additional superior court circuits and 
the district attorney positions to serve those circuits;

2. the January 2, 1990, submission of five additional
superior court judgeships created in 1989, and the specification 
of the date on which the first full term of office commences for 
each judgeship; and

3. the April 3, 1990, submission of five additional
superior court judgeships created in 1990, and the specification 
of the date on which the first full term of office commences for 
each judgeship.
On March 2, 1990, we received the information necessary to
complete our review of the reconsideration request and to 
complete the January 2, 1990, submission.

The changes now before; the Attorney General for Section 5 
review date back to 1967 and involve a far-reaching expansion of 
the superior court system undertaken over a period of twenty- 
three years. This includes; over one-third of the system's 143 
elective judgeships, and involves 30 of the 45 superior court



w  '  U ' U 1 v 11_ nr i u-i I b L1 i l 1 DO J 202 724 6961 P.03

circuits in the state. Thus, while we have been fully cognizant 
of the state's request for expedited review, the comprehensive 
nature of these submissions, as well as the importance of the 
changes to the state and its minority citizens, has required a 
considerable amount of time for us to give the kind of careful 
consideration due a submission of such proportions.

At the outset, we note that the expansion of the superior 
court system occasioned by the establishment of the additional' 
judicial positions must be analyzed in the context of the method 
utilized to elect the judges. City cf Lockhart v. United States. 
460 U.S. 125, 131-132 (1983). See also McCain v. Lvbrand. 465
U.S. 236, 255 n.27 (1934). In Georgia, superior court judges are 
elected at large within each circuit. A majority vote 
requirement exists in both the primary and general elections, and 
candidates must run for a designated position which precludes 
voters from using the technique of single-shot voting. According 
to the 1980 Census, only one circuit (the Atlanta Circuit) is 
majority black in population, and no circuit is majority black in 
voting age population. In addition, our information is that 
incumbency plays an important role in the electoral process for 
the superior court in that incumbents rarely are defeated. We 
understand that for about three-fourths of the current judges 
such incumbency was first established by their having been 
appointed to the bench.

We note further that most interracial judicial elections 
have occurred in the Atlanta Circuit, and these elections appear 
generally to exhibit a pattern of polarized voting. See also 
Busbee v. Smith■ 549 F. Supp. 494, 499 (D.D.C. 1982), sum, aff'd.
459 U.S. 1166 (1983). No black ever has defeated a white 
incumbent superior court judge and, while black incumbents on the 
superior court also have been elected, they have never faced 
opposition. Only five blacks ever have served on the superior 
court in this circuit; three obtained gubernatorial appointments 
and two gained their seats in contests in which no incumbent was 
running (a circumstance which appears rarely to occur in superior 
court elections). The result is that only three of the eleven 
sitting judges are black although the circuit is 51 percent black 
in population.

Outside the Atlanta Circuit, only three blacks ever have 
served on the superior court, and these three all initially were 
appointed to the bench. Two of the three were then opposed in 
subsequent elections, and both elections appear to have been 
characterized by polarized voting. In addition, since there are 
few judicial elections to analyze outside the Atlanta Circuit, it 
is appropriate to consider contests for other elected offices in 
these circuits. Our review of a broad range of evidence in this 
regard indicates that polarized voting generally prevails in all



of the superior court circuits new under review and there is a 
consistent lack of minority electoral success in at-large 
elections. Thus, it appears that, in the totality of the 
circumstances, black voters in these circuits have a limited 
opportunity to elect their preferred candidates, even when blacks 
enjoy the advantages of incumbency by initially having been 
appointed to the bench.

Two features which are of particular import in the superior 
court electoral system are the majority vote and designated post 
requirements. It is well recognized that these requirements, 
acting in tandem, tend to minimize black voting strength in an 
at-large system. See, e.g.. City of Rome v. United States. 446 
U.S. 156 (1930). Indeed, there is substantial information 
indicating that the majority vote requirement was adopted in 1964 
by the state precisely for that invidious purpose; the designated 
post requirement was adopted in the same legislation. The state 
has advanced no persuasive nonracial reason for continuing the 
use of these features, especially since there appear to be 
alternative methods for electing superior court judges which 
would not similarly minimize and submerge black voting strength.

In addition, the state has not shown how its interests are 
served by circuitwide elections in many of the circuits now at 
issue where the at-large election feature is in apparent 
violation of Section 2 of the Voting Rights Act. Thornburg v. 
Ginales. 473 U.S. 30 (1986). While a state may have more 
flexibility under Section 2 in justifying the at-large election 
of judges than it does with respect to other elected officials, 
we look to the submitting authority to proffer persuasive 
justifications. Here, it has not done so.

Under Section 5 of the Voting Rights Act, the submitting 
authority has the burden of showing that a submitted change has 
neither a discriminatory purpose nor a discriminatory effect, and 
preclearance also must be denied where a clear violation of 
Section 2 is found to exist. See Georgia v. United States. 411 
U.S. 526 (1973); Procedures for the Administration of Section 5 
(28 C.F.R. 51.52 and 51.55(b)). In this connection, we in 
particular cannot ignore the substantial information which has 
come to our attention suggestive of the racially discriminatory 
purpose underlying the adoption of a major feature of the present 
system - the majority vote requirement and, possibly, the 
designated post as well. As the Supreme Court has noted, "an 
official action, ..., taken for the purpose of discriminating 
against Negroes on account of their race has no legitimacy at all 
under our Constitution or under the [Voting Rights Act]." City 
of Richmond v. United States, 422 U.S. 353, 378 (1975),

In light of these considerations, therefore, I cannot 
conclude, as I must under the Voting Rights Act, that the state 
has carried its burden of showing that the expansion of an

JUN 5 ’90 IB: IS
■3* n o



724 6961 P .05

electoral systen, which include?.; the restrictive majority vote 
e:ia designated post features, through the additional judgeships 
under review here meets the preclearance standards. Accordingly, 
on behalf of the Attorney General I must decline to withdraw the 
June 16, 1939, objection to the 48 additional judgeships and the
related changes concerning the dates on which terms of office 
commenced, and also must object to the ten judgeships established 
in 1989 and 1990, and the dates on which terms of office are to 
commence.

With respect to the creation of two additional circuits 
(Alcovy and Houston) and the district attorney positions 
therefor, our analysis indicates that these changes have met the 
preclearance standards. Accordingly, on behalf of the Attorney 
General, the objection to these changes is withdrawn.

As you are aware, the state retains the right under 
Section 5 to seek a declaratory judgment from the United States 
District Court for the District of Columbia that the changes for 
which Section 5 clearance has been denied do not deny or abridge 
the right to vote on account of race or color. However, until a 
declaratory judgment is obtained or the objection is withdrawn, 
these changes continue to be legally unenforceable. 28 C.F.R. 
51.10. In that regard, we would underscore the Court's 
observation in Brooks v. State Board of Elections. C.A. No. 
CV288-146 (S.D. Ga.), that the objection in no way implicates the 
validity of the actions taken by the judges who have been serving 
in the unprecleared judgeships. Memorandum Opinion and Order, at 
21-22 (Dec. 1, 1989). We are fully aware of the importance of 
the additional judgeships at issue to the proper functioning of 
the Georgia judicial system, and we will continue to work with 
the court and the parties in Brooks to assure that those needs 
are met consistent with the requirements of Section 5.

To enable this Department to meet its responsibility to 
enforce the Voting Rights Act, please inform us of the course of 
action the State of Georgia plans to take regarding these 
matters. If you have any questions concerning this letter, you 
may feel free to telephone Mark A. Posner, an attorney in the 
Voting Section (202-724-8338).

J U N S ’ Q Ca



- \ i u n  1 3  u  l  V  L'UJ 202 724 6961 P.06

- 5 -

Because the status of
Brooks v . Scats Board_o^
this letter to the court in

tne submitted changes is 
ections, we are providing 
that case.

at issue in 
a copy of

Sincerely,

John R. Dunne 
Assistant Attorney General 

Civil Rights Division

cc: Honorable Phyllis A. Kravitch 
United States Circuit Judge
Honorable B. Avant Edenfield 
United States District Judge
Honorable Dudley H. Bowen, Jr, 
United States District Judge



ug u X ld N S d d V



THE TEXAS JUDICIARY AND THE

VOTING RIGHTS ACT: 

BACKGROUND AND OPTIONS

A  STUDY CONDUCTED FOR THE 
TEXAS POLICY RESEARCH FORUM

by

SAMUEL ISSACHAROFF
Faculty, University of Texas School of Law

Consultant:
Thomas P. Prehoditch, Ph.D.

December 4, 1989



THE TEXAS JUDICIARY AND THE VOTING RIGHTS ACT

A STUDY CONDUCTED FOR THE 
TEXAS POLICY RESEARCH FORUM

Table of Contents

I. Introduction.............................................................................................. 1

II. Addressing the Problem...................................  2

III. Discussion of Remedial Alternatives................................................. 6
A. Martin v. M abus.......................................................................... 6
B. Single Member Districts.............................................................8
C. Limited Voting.......................................................................... 9

IV. Application of Remedies to Texas Courts....................................... 11
A. Creating Districts...................................................................... 13

1. Appellate Courts............................................................. 13
2. District Courts.............................................................  14

a. Districts over 300,000......................................  14
b. Multi-member/single county

districts under 300,000 ............................... 16
c. Multi-member districts comprising

multiple counties............................................16
d. Single member/single county

districts............................................................ 16
e. Single member/multi-county

districts............................................................ 16
B. Limited Voting............... 17

1. Appellate Courts............................................................. 17
2. District Courts.............................................................  18

V. Conclusion..............................................................................................19

VI. Appendices:
A. Multi-Member, Single County Court Districts,

Counties with over 300,000 Population.........................A - l
B. Multi-Member, Single County Court Districts

with No Overlapping Jurisdiction............................... B - 1



C. Multi-Member, Single County Court Districts
with Overlapping Jurisdiction........................................C - l

D. Multi-Member, Multi-County Court Districts
with No Overlapping Jurisdiction...............................D - 1

E. Multi-Member, Multi-County Court Districts
with Overlapping Jurisdiction........................................E - l

F. Single Member, Single County Court Districts
with No Overlapping Jurisdiction.................................. F - l

G. Single Member, Single County Court Districts
with Overlapping Jurisdiction........................................G - l

H. Single Member, Multi-County Court Districts
with No Overlapping Jurisdiction................................. H - l

I. Single Member, Multi-County Court Districts
with Overlapping Jurisdiction...................................... I - 1

ii



THE TEXAS JUDICIARY AND THE VOTING RIGHTS ACT: 

BACKGROUND AND OPTIONS

L Introduction

In the past four months, two separate federal court cases have ruled that 

substantial features of the election system for state court judges in Texas violate 

Section 2 of the Voting Rights Act. In the first of these, Rangel u. Mattox,1 Judge 

Vela of the Southern District of Texas struck down the system of electing judges to 

the Thirteenth Court of Appeals, which covers twenty counties in the Corpus 

Christi area. In November, Judge Bunton of the Western District of Texas in 

LULAC v. Mattox similarly declared unlawful the system of electing district court 

judges in nine of the most populous counties in the state.1 2 These cases hold that the 

use of multi-member judicial districts in the challenged areas of the state 

unlawfully dilutes the voting strength of minority citizens and must be replaced by 

an electoral system that provides minorities with an equal opportunity to elect 

judicial candidates of their choice. As cogently expressed by Judge Bunton, "Some 

fixing has to be done, because the current system is broken."3

This report addresses some legal and policy considerations in fashioning the 

"fixing" needed. By drawing on prior voting rights cases and an examination of the 

remedial plans previously implemented, it is hoped that a more informed decision 

can be reached, reconciling the need to provide meaningful participation to minority

1 - Civil A. No. B-88-053 (S.D. Tex., Brownsville Div. July 29, 1989).

2 - LULAC v. Mattox, Civil A. No. MO-88-CA-154 (W.D. Tex., Midland-Odessa Div. Nov. 8, 1989).
The nine counties are: Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Ector and 
Midland.

3 - Id.., slip op. at 4.

- 1 -



citizens and, at the same time, to preserve the integrity of judicial office. In so 

doing, this report will look beyond the nine counties and one appellate district that 

are the subject of current judicial orders to address the possibilities for integrated 

reforms on a state-wide basis.

EE. Addressing the Problem

As a consequence of the two recent Texas judicial election cases, the disparities 

between the number of minority voters and the limited number of successful 

minority judicial candidates can no longer be disregarded. The judiciary remains the 

province of government whose composition has changed least in the nearly 25 years 

since the passage of the Voting Rights Act. Thus, as of February 1989, there were 

375 district judges in Texas, of which 7 were black and 35 Hispanic: a total of 11.2 

percent in a state that had a 33 percent minority population as of the 1980 Census.4 

To a large extent, these numerical disparities are the product of an accident of 

history: the elected judiciary was not subjected to challenge under Section 2 of the 

Voting Rights Act until 1984 with the filing of the Mississippi judicial cases, Martin 

v. Allain and Kirksey v. Allain.5 Nonetheless, these disparities are genuine, as 

evidenced by the county by county breakdowns in the Appendices, comparing the 

demographic makeup of each district court or each county with the distribution of 

judicial office in that jurisdiction.

4 - Office of Court Administration, Texas Judicial Council, Texas Minority Judges, Feb. 10, 1989.
Subsequent to the publication of this data, eight district judgeships have been added.

5 - The liability phase of the Mississippi judicial litigation is reported as Martin v. Allain, 658 F.
Supp. 1183 (S.D. Miss. 1987). The remedy phase of this case is reported as Martin v. Mabus, 
700 F. Supp. 327 (S.D. Miss. 1988).

-2-



It is now established that Section 2 of the Voting Rights Act is applicable to

judicial elections.6 Given the applicability of Section 2, the district court findings in

the Texas judicial elections cases do not present a significant extension of the prior

voting rights caselaw. As expressed by Judge Johnson of the Fifth Circuit:

Minorities may not be prevented from using Section 2 in their efforts 
to combat racial discrimination in the election of state judges; a 
contrary result would prohibit minorities from achieving an effective 
voice in choosing those individuals society elects to administer and 
interpret the law.7

Indeed, the judicial cases can fairly be interpreted as the judicial replay of the 

landmark Texas legislative litigation of almost two decades ago. In that case, 

ultimately presented to the Supreme Court as White v. Regester,8 a mixed system of 

electing members of the state House of Representatives from single member and 

multi-member districts across the state was struck down for its discriminatory 

impact against minority citizens of Dallas and Bexar counties.

The same features that were struck down in White v. Regester have been 

challenged in a score of subsequent cases and now form the backbone of the court 

findings in the judicial cases. The use of multi-member districts in the context of 

racially polarized voting diminishes the value of the minority franchise by rewarding 

the majority community with superordinate representation.9 The problem is

6 - See Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 1988), cert, denied sub nom. Roemer v. Chisom,
109 S.Ct. 390 (1989).

7 - Chisom u. Edwards, 839 F.2d at 1065. In light of the direct holding of Chisom and the fact that
Texas is within the Fifth Circuit, there appears little prospect for a direct appeal on the issue of 
the federal district court applications of the Voting Rights Act to the Texas state judiciary.

8 - The case was initially filed as Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 1972) (three-judge
court). The decision of the three-judge court was affirmed by the Supreme Court under the 
name White v. Regester, 412 U.S. 755 (1973).

9 - A simple numerical model gives an example of what is meant by "superordinate"
representation. Assume that a jurisdiction is 60 percent white and 40 percent minority. If the 
white community and the minority community voted as cohesive blocs, known in the caselaw as 
racial bloc voting, any system that provided for equality of electoral opportunity would be 
expected to provide the white community with roughly 60 percent of elected positions and the 
minority community with 40 percent. Thus, in a five member city council, for example, one

- 3 -



compounded in judicial elections which generally have lower turnout, higher roll-off 

rates, and less voter interest.10 11 Moreover, judicial elections are easily controlled by 

an organized slating process.11

As a result of the lower levels of voter awareness of judicial elections, the fact 

of incumbency takes on a strong role as a critical "cue" in influencing the way votes 

are cast. The importance of incumbency is reflected in the extraordinary number of 

judges who first assumed their present office by appointment and were 

subsequently elected as incumbents. According to the most recent data available,

55 percent of courts of appeals judges and 64 percent of district court judges were 

appointed to office prior to first standing for election.12 This partially stems from 

the practice of judges not seeking re-election to resign their offices so that the

would expect 3 white councilmembers and 2 minority councilmembers. If the elections to the 
council are held at-large, however, and each voter is allowed to vote for all five positions, the 
cohesive 60 percent white voting bloc would elect all five councilmembers, a "superordinate" 
level of representation well beyond its proportionate size in the community as a whole.

Among the numerous cases finding racial bloc voting in diverse communities in Texas are: 
Lockhart v. United States, 460 U.S. 125 (1983); City of Port Arthur v. United States, 459 U.S. 
159 (1982); Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988), reh. denied en banc, 849 
F.2d 943 (5th Cir. 1988), cerf. denied, 109 S.Ct. 3213 (1989); LULAC v. Midland Ind. School 
Dist., 829 F.2d 546 (5th Cir. 1987); Political Civil Voters Org. v. City of Terrell, 565 F. Supp.
338 (N.D. Tex. 1983); Jones v. Lubbock, 727 F.2d 364 (5th Cir. 1984), reh. denied, 730 F.2d 233 
(5th Cir. 1984); Gilbert v. Sterrett, 509 F.2d 1389 (5th Cir. 1975), reh. denied, 515 F.2d 510 (5th 
Cir. 1975), cert, denied, 423 U.S. 951 (1975); Sierra v. El Paso Ind. School Dist., 591 F. Supp. 
802 (W.D. Tex. 1984); Mosely v. Sadler, 469 F. Supp. 563 (E.D. Tex. 1979); Greater Houston 
Civic Counsel v. Mann, 440 F. Supp. 696 (S.D. Tex. 1977).

10 - The lower visibility of judicial elections results in fewer number of votes being cast in judicial
contests, which typically are placed at the bottom of the ballot lists, than contests of higher 
recognition such as national or congressional elections. The drop in the number of votes cast is 
known as the "roll-off." See LULAC v. Mattox, slip op. at 88 ("This Court recognizes that 
judicial elections are characterized by less voter interest than high profile candidates receive at 
the top of the ticket."); Chisom v. Roemer, Civ. A. No. 86-4057 (E.D. La., Sept. 13, 1989), slip op. 
at 11.

11 - Because of the lower voter attention to bottom of the list elections discussed supra in the
context of roll-off rates, voters tend to follow "cues" in casting their votes in elections such as 
judicial elections. As a result, the most obvious cues, such as party slating, have strong 
significance in bottom of the list elections. See Williams v. State Board of Elections, No. 88 C 
2377 (N.D. 111., June 30, 1989), slip op. at 2-3.

12 - Office of Court Administration, Texas Judicial Council: Sixtieth Annual Report, p. 75
(information as of August 31, 1988).

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governor may appoint a successor. This also reflects the ability to influence judicial 

elections through the appointment process; appointments, even if short-term, confer 

the benefits of incumbency for subsequent elections.

The power of incumbency poses acute problems for minorities. To begin with, 

there is little evidence that the appointive process as exercised to date has 

addressed the problem of minority under-representation in the state judiciary.

Thus, of 36 appointments made between Jan. 20, 1987 and January 31, 1989, 33 of 

the appointed judges were white, 3 were Spanish sumamed, and none were black.13 

This included the appointment of seven white judges to the Dallas County district 

courts, despite the fact that the county is over 30 percent minority and only three of 

37 judges are minority. The problem for minorities is further compounded because 

the combination of polarized voting and multi-member districts deprives appointed 

minority incumbents of the benefits of their incumbent status, as was evidenced by 

the electoral defeats of black appointed incumbents, Jesse Oliver and Fred Tinsley, 

in Dallas County, in 1988 and 1986, respectively.

Texas is not unique in confronting the impact of judicial election systems at 

this time. States in which cases challenging judicial elections have recently been 

decided or are pending include Louisiana,14 Ohio,15 North Carolina,16 Arkansas,17

13 - These data are derived from cross-referencing records provided by the Office of the Governor
pursuant to a request by Texas Rural Legal Aid under the Open Records Act with information 
from Office of Court Administration, Texas Minority Judges (2/10/89). According to Office of 
Court Administration, Texas Minority District Judges Appointed January 1, 1979 - December 
31, 1988, there have been 206 appointments in the ten year period reported of which 21 were 
minority appointments. There is one additional minority appointment not reported in this 
document.

14 - Clark v. Edwards, No. 86-435-A (M.D. La., Aug. 15, 1988).

15 - See Mallory v. Eyrich, 839 F.2d 275 (6th Cir. 1988).

16 - See Republican Party v. Martin, C.A. No. 88-263 CIV-5 (E.D.N.C. 1988); see also Alexander v.
Martin, C.A. No. 86-1048 CIV-5 (E.D.N.C., 1987) (challenge to method of electing superior court 
judges settled by legislative initiative).

17 - Hunt v. State of Arkansas, C.A. No. PDC 89-406 (E.D. Ark., filed July 1989).

- 5 -



Alabama,18 Florida,19 Georgia,20 and Illinois.21 The strong likelihood of litigation 

exists in most states electing judges at large or from multi-member districts. 

Viewed from a national perspective, the problem is quite simple. As of 1985, only- 

four percent of judges in the United States were black and one percent Hispanic, 

despite a nation that was 18 percent black and Hispanic as of the 1980 Census.22

HI. Discussion of Remedial Alternatives

A. Martin v. Mabus

To date, the only case to address the issue of remedial alternatives for the 

dilution of minority voting strength in judicial elections is Martin u. Mabus,23 the 

Mississippi judicial elections case. Because the Mississippi case provided the 

federal court with the first opportunity to apply the remedial principles developed 

under the Voting Rights Act to judicial elections, the court's reasoning in that case 

bears careful examination. The principles that guided the Mississippi court were 

the following:

1. The relief granted must "completely remed[y] the prior dilution of 

minority voting strength and fully providef ] equal opportunity for

18 - SCLC v. Siegelman, No. 88-D-0462-N (N.D. Ala., June 7, 1989).

19 - Marzug A. Al-Hakim v. State of Florida, 88-1416-CIV-T-10-(A), (M.D. Fla., filed 1988).

20 - Brooks v. Glynn County, Georgia Bd. of Elections, Civ. A. No. CV 288-146 (S.D. Ga., filed 1988).

21 - See Williams v. State Board of Elections, No. C 2377 (N.D. 111., June 30, 1989).

22 - The most recent source on the composition of the judiciary is the 1985 publication of the Fund
for Modem Courts, Inc., The Success of Women and Minorities in Achieving Judicial Office.

23 - 700 F. Supp. 327 (S.D. Miss. 1988). This is the decision of the court on remedy. The liability
phase is reported as Martin v. Allain, 658 F. Supp. 1183 (S.D. Miss. 1987).

-6-



minority citizens to participate and to elect candidates of their 

choice."24

2. In fashioning a remedy, the electoral unit for each judgeship may be a 

geographical subunit of the judicial unit over which that judge will 

have jurisdiction. Thus, the court affirmed the propriety of "[s]ub- 

districts for election purposes with judges having district-wide 

jurisdiction . . . "25

3. While judicial elections are not held to the rigorous one person, one 

vote standard of legislative elections,26 population variances in any 

electoral districts used for judicial elections should be minimized to the 

extent possible.27

4. Because there will be less need to redistrict judicial offices because of 

minor shifts in population, established pre-existing electoral units 

should be used as the basis for any judicial electoral districts.28

24 - 700 F. Supp. at 331. This passage is quoted from the Senate Report that was the authoritative
legislative record of the 1982 amendments to the federal Voting Rights Act, 42 U.S.C. Sec. 1973 
et seq. See S.Rep. No. 417, 97th Cong., 2d Sess. (1982), reprinted in 1982 U.S. Code Cong. &
Ad. News 177.

25 - 700 F. Supp. at 332. This is consistent with several features of the Texas judicial code that
permit judges to exercise jurisdiction beyond their electoral base. These provisions include the 
assignment of judges across districts in order to alleviate caseload requirements and the right 
of the Chief Justice of the Texas Supreme Court to assign a justice of one court to temporary 
service on another court, or to assign a retired justice to such duty. These provisions are cited 
in Office of Court Administration, Texas Judicial Council: Sixtieth Annual Report, p. 102. 
During the year ending Aug. 31, 1988, 4,219 cross-district assignments were made in the 
district courts alone.

26 - Although the application of one-person, one-vote to judicial elections has not been the subject of
recent review by the courts, nonetheless the laxer standard of population variances was 
established in Wells v. Edwards, 347 F. Supp. 453, 454-55 (M.D. La. 1972) (three-judge court), 
affd mem., 409 U.S. 1095 (1973); see also Voter Information Project, Inc. v. City of Baton Rouge, 
612 F.2d 208, 211 (5th Cir. 1980).

27 - 700 F. Supp. at 332.

2 8 - Id.

- 7 -



5. Judicial candidates must be residents of the judicial district over which 

they will have jurisdiction, but do not need to be residents of any 

particular electoral sub-district. In light of the fact that the pool of 

candidates for judicial office is smaller than that of potential 

representatives and that judges are not entrusted with "representing" 

their constituencies as are legislators, there is no compelling need for 

residency within any particular electoral sub-district.29

B. Single Member Districts

The court’s decision in Martin u. Mabus therefore establishes that the 

process of electing judges may be remedied without altering the districts judges 

serve. In other words, judges may be selected from altered electoral configurations 

without changing the structure of the courts.

The court in Martin v. Mabus applied the five factors described above to 

adopt single member electoral sub-districts for judges that would retain their 

original district-wide jurisdiction once elected.30 The use of altered election 

districts in Mississippi has a direct parallel in the system already in place in New 

York City, allowing for the election of judges of city-wide civil jurisdiction from 

electoral sub-districts; the New York City system has been upheld against federal 

constitutional challenge.31

29 - 700 F. Supp. at 332-333. These observations appear to be equally applicable to this state. For 
appellate court judgeships in Texas, the requirements for office include being 35 years of age 
and having at least 10 years of legal practice or judicial office. For district court judgeships the 
requirements include 2 years residence in the district and 4 years of legal practice or judicial 
office.

30 - 700 F. Supp. at 332.

31 - See Cox v. Katz, 241 N.E.2d 747, 294 N.Y.S.2d 544 (Ct.App.N.Y. 1968), cert, denied, 394 U.S.
919 (1968).

- 8 -



There are also two other state systems under which the electoral base of 

state court judges is not coextensive with their judicial jurisdiction. In Georgia 

and North Carolina, judges are nominated from county judicial districts but 

elected state-wide. Both of these systems have been upheld against federal 

constitutional challenge.32 Moreover, in response to litigation, Louisiana, Illinois 

and North Carolina are in the process of adopting plans for the election of judges 

from circumscribed electoral sub-districts with their original judicial jurisdiction 

remaining intact.33

C. Limited Voting

The problem with multi-member systems, as explicated through the voting 

rights case law,34 is the winner-take-all feature by which a cohesive voting bloc of 

the majority community is rewarded with super-representation.35 In devising 

remedies to unlawful systems of judicial elections, it should be borne in mind 

that additional systems are in place that offer alternatives to electoral sub­

districts while curing the defects of multi-member districts. In particular, 

limited voting appears to be an attractive system for judicial elections, since it 

combines the checks of district-wide accountability of elected judges with a 

preventative measure against the exclusive domination of the electoral process 

by a cohesive, organized, well-financed voting bloc.

32 - See Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971) (three-judge court), summarily a ff d,
409 U.S. 807 (1972); Stokes v. Fortson, 234 F. Supp. 575'(N.D. Ga. 1964) (three-judge court).

33 - See, e.g., Public Act 86-786 (Senate Bill 789) of the 86th Illinois General Assembly (providing
for electoral sub-districts).

34 - See, e.g., Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

35 - See note 9, supra, for an illustration of the super-representation available to a cohesive
majority community in at-large electoral configurations.

- 9 -



Limited voting is "limited" in the sense that each voter is to cast fewer votes 

than the total number of judgeships to be filled. Thus, each voter is still allowed to 

pass on each judicial candidate in that electoral district. However, each voter would 

be permitted to vote for, e.g., only three candidates for five judicial positions. As a 

result, limited voting denies to a cohesive voting majority the ability to exclude any 

representatives of an organized minority constituency.36

The limited voting system therefore preserves the accountability of each 

candidate to all voters in the district but takes away from a cohesive majority voting 

bloc the ability to have its candidates fill all judicial offices. Limited voting further 

has the advantage of not requiring redistricting to account for population shifts 

within electoral sub-districts. This last feature is of particular significance because 

of the imminence of the 1990 Census count and the potential need to realign 

electoral sub-districts after the new Census information becomes available in 1991.

Limited voting has a significant amount of support among academics who 

have analyzed various voting systems.37 Limited voting is used in a directly 

analogous situation in Pennsylvania for selection of Commonwealth Court judges,

36 - This is expressed as the threshold of exclusion. If the number of votes each voter may cast is
divided by the number of votes each voter may cast plus the number of seats to be filled, the 
threshold can be calculated. Thus, if each voter could cast three ballots in a five seat election 
the threshold of exclusion would be 3/8 or 37.5 percent. This means that any candidate getting 
over 37.5 percent of the votes could not be denied election whatever the configuration of 
remaining votes. This in turn means that any candidate who is the choice of 37.5 percent of the 
voters would be elected. This contrasts with the current multi-member election districts in 
which candidates of choice of 49 percent of the voters may be defeated if the majority 51 
percent bloc votes cohesively for slate candidates.

37 - See, e.g., E. Still, "Alternatives to Single-Member Districts," in C. Davidson, (ed.), Minority Vote
Dilution, pp. 242-267; L. Weaver, "Semi-Proportional and Proportional Representation Systems 
in the United States," in A. Lijpart and B. Grofman (eds.), Choosing an Electoral System:
Issues and Alternatives, pp. 191-206; Note, Affirmative Action and Electoral Reform, 90 YALE 
L.J. 1811-32 (1981); Note, Alternative Voting Systems as Remedies for Unlawful Ad-Large 
Systems, 92 Yale L.J. 144-60 (1982); Karlan, Maps and Misreadings: The Role of Geographic 
Compactness in Racial Vote Dilution Litigation, 24 HARV. C.R.C.L. L. REV. 173, 223-36 (1989).

- 10 -



and has been upheld against federal constitutional challenge.38 The use of limited 

voting has also been upheld against constitutional challenge in cases involving the 

election of local legislative bodies.39 In addition, limited voting has been adopted as 

a remedy in federal court cases involving dilution of minority voting strength as a 

result of at-large or multi-member district elections.40

IV. Application of Remedies to Texas Courts

Single member districts and limited voting thus have in common that in both 

systems judges have jurisdiction over a full judicial district although they are 

elected by a subset of that judicial jurisdiction. The use of these remedial systems 

to cure the problems of racial exclusion in elections also addresses an important 

problem that is of considerable significance yet goes beyond the racial impact 

inquiry of the federal courts. In Harris and Dallas counties, there are currently so 

many district judgeships to be filled in any given election that informed voter 

participation is extraordinarily difficult. By creating sub-districts with more 

manageable slates of candidates, the prospect for intelligent and active voter 

participation in the election of judges would be considerably enhanced.

This proposal for altering the system of electing district court and appellate 

court judges will attempt to address the concerns of minority underrepresentation

38 - See Orloski v. Davis, 564 F. Supp. 526 (M.D. Pa. 1983).

39 - See Hechinger v. Martin, 411 F. Supp. 650 (D.C.D.C. 1976), affd, 429 U.S. 1030 (1977);
LoFrisco v. Schaffer, 341 F. Supp. 743 (D. Conn. 1972), affd, 409 U.S. 972 (1972); Kaelin v. 
Warden, 334 F. Supp. 602 (E.D. Pa. 1971); Blaikie v. Power, 13 N.Y.2d 134, 143, 243 N.Y.S.2d 
185 (1963), appeal dissm'd, 375 U.S. 439 (1964); see also Am. Jur. 2d Elections Sec. 276 (citing 
other examples of limited voting).

40 - See McGee v. Granville County, No. 87-29-CIV-5 (E.D.N.C., Feb. 4, 1988) (county
commissioners); Dillard v. Town of Loachapoka, Civ. A. No. 87-T1248-N (M.D. Ala., Feb. 2, 
1988) (city council); Dillard v. Town of Webb, Civ. A. No. 87-T1311-N (M.D. Ala., April 1, 1988) 
(city council).

- 11 -



within the confines of the current judicial system. To the extent possible, this 

proposal adopts the remedial framework of Martin u. Mabus in seeking to alter the 

electoral configurations for the affected judgeships without changing the judicial 

jurisdiction of the judgeships.

The existence of courts of specialized jurisdiction in Texas, such as the 

probate or criminal courts, poses special remedial problems. In any remedial 

system adopted, there will be some difficulty allowing for the election of the sole 

probate judge in a county from a single electoral sub-district. It is difficult to 

configure rational districts that would allow voters of one sub-district to elect only 

a probate judge or criminal judge, while denying to the remainder of the county or 

jurisdiction the right to participate in that process. In LULAC v. Mattox, Judge 

Bunton proposed that this problem be remedied by abolishing the courts of 

specialized jurisdiction and moving to a unified system of courts of general 

jurisdiction.41 If the suggestion of Judge Bunton that such courts of specialized 

jurisdiction be abolished is not followed, the most readily apparent solution would 

be an administrative one in which the judges run for election to the courts of the 

jurisdiction as a whole, with appointment to the specialized court reserved to the 

administrative authority of the presiding judge.

In what follows, two alternative remedial options for selecting Texas 

appellate and district judges are considered: (1) creating districts; and, (2) limited 

voting.

41 - Slip op. at 78.

- 12-



A. Creating Districts

1. Appellate Courts

Excluding the Supreme Court and the Court of Criminal Appeals, currently 80 

appellate judges are elected from 14 judicial districts. Of the 80 judges, there are no 

blacks and 3 Hispanics, yielding a minority percentage of under 4 percent.42 The 

district lines are not discrete, with some counties appearing in more than one judicial 

district; Brazos County is in three separate judicial districts. By applying the 

remedial principle adopted by the federal district court in Martin v. Mabus, single 

member districts can be created within each of the current judicial districts, as 

directed by the court in Rangel v. Mattox for the Thirteenth Court of Appeals.

Any reexamination of the structure of appellate court districts, however, 

must confront both the odd array of judicial districts and the imbalance between the 

number of Supreme Court justices and Court of Criminal Appeals judges on the one 

hand and appellate court districts on the other. Should the legislature undertake to 

reconsider the rationale for the current appellate judicial alignment, it may wish to 

consider the creation of nine appellate districts, each geographically defined and 

each under the direct supervision of one Supreme Court justice and one Court of 

Criminal Appeals judge. The creation of one additional appellate judgeship would 

balance the nine districts at nine judges each. The nine judicial districts could then 

be broken down into single member districts for electoral purposes, such as the 

remedy mandated by the court in Rangel v. Mattox for the Thirteenth Court of 

Appeals.

42 - Office of Court Administration, Texas Judicial Council, Texas Minority Judges, Feb. 10, 1989.

- 1 3  -



2. District Courts

a. Districts over 300.000: As of the 1980 Census there are six 

counties in this category, ranging in size from Harris (2.4 million, 59 judges) to 

Travis (419,000, 13 judges). In addition, the 1986 Census projections would bring 

Hidalgo and Nueces above 300,000. These counties could be subdivided for electoral 

purposes to create geographically-confined, multi-member sub-districts.43

This process is facilitated by the fact that these districts are already 

subdivided for judicial purposes along Justice of the Peace Court jurisdictions.

These in turn range between 8 districts for Harris, Dallas, and Tarrant; 6 districts 

for El Paso; and 5 districts for Bexar and Travis. Hidalgo has 5 districts and 

Nueces has 8 districts within the county. In addition, all of these counties are also 

already subdivided along county commissioner district lines, and all counties in the 

state of Texas have four county commissioner districts. Finally, each of these 

counties is also divided along House legislative districts and, as the following table 

shows, these legislative districts offer significant additional remedial options in 

Harris and Dallas counties.44

43 - The analysis of Nueces is complicated by the fact that in addition to the seven judgeships
within Nueces, there is an eighth district incorporating Nueces together with Kennedy and 
Kleberg counties. All seven judges serving Hidalgo County are elected within that county.

44 - In addition to the districts listed below, House district 47 includes part of Travis county
together with three other counties.

- 14 -



For ease of review, the six counties are arrayed as follows:

Countv Judges JP Dists Leg,pi?t§ Ctv Comm.

Harris 59 8 26 4

Dallas 37 8 17 4

Tarrant 23 8 9 4

Bexar 19 5 10 4

Travis 13 5 4 4

El Paso 8 6 5 4

In Harris, Dallas, Tarrant, Travis and Bexar counties the district court 

judgeships could be subdivided for electoral purposes using existing JP district 

lines. In El Paso, the eight existing judgeships45 could be divided among the six JP 

districts by forming three electoral districts. Each electoral district would be 

comprised of two JP districts. Two of the electoral districts could each elect three 

district judges, and the remaining electoral district could elect two district judges. 

Nueces could elect two judges each from three electoral districts comprised of two 

JP districts and one judge from an electoral district comprised of the two least 

populous JP districts. Hidalgo could be broken down into two electoral districts, 

one comprised of three JP districts and one of two JP districts. The larger district 

would elect four judges and the smaller would elect three.

If these counties were subdivided along county commissioner district lines, 

they would elect between two and fifteen judges per county commissioner district 

according to the number of judges in each county. Similarly, if Harris and Dallas

45 - In addition to the eight judges elected exclusively from El Paso, there are three elected from El 
Paso together with Culberson and Hudspeth. As with the overlap in Nueces County, the multi- 
judge/multi-member districts are treated below.

- 15-



counties were divided along House legislative lines, each sub-district would elect 

two to three judges.

b. Multi-member/single county districts under 300.000: 

With the exception of Jefferson County, which may soon reach the 300,000 figure, 

these counties have five or fewer district court judges; Jefferson has eight.

Because of the small numbers, the only meaningful alternative districting system 

appears to be one breaking down these counties into single member districts, along 

JP district lines where these are available, or along county commissioner or other 

electoral unit lines.

c. Multi-member districts comprising multiple counties: 

In districts such as those serving Cameron and Willacy Counties, multi-member 

districts serving multiple counties would be broken down into single member 

districts (as with multi-member/single county districts under 300,000) following 

county, JP district, county commissioner district, or other available electoral lines.

d. Single member/single countv districts: These would 

remain as is under any alternative system that alters only the electoral base of the 

judgeships but preserves — as all the proposals contained herein do -- the preexisting 

judicial jurisdiction of the affected judgeships.

e. Single member/multi-countv districts: Unlike the single 

member/single county districts, the single member/multi-county judgeships are of 

two sorts. First, there are courts such as judicial district 118 comprising Glasscock, 

Martin and Howard counties that are for all purposes the equivalent of a single 

member/single county judgeship, except for the presence of several counties within 

the judicial district. In addition, there are counties that are served by several single 

member/multi-county judgeships, such as Polk County which is in District 9 with

- 16-



Montgomery, San Jacinto and Waller counties; in District 2nd 9 with Montgomery, 

San Jacinto and Trinity counties; and in District 258 with San Jacinto and Trinity 

counties.

In the case of the single member/multi-county districts such as District 118, 

no alteration can be proposed. In the case of the patchwork districts scattered 

throughout the state, no proposals can be consistent with the premise of this 

analysis that no judicial jurisdictions shall be altered. Nonetheless, any legislative 

initiative aimed at reviewing the state judiciary may well wish to reconsider the 

rationale for the complicated jurisdictional patterns found in numerous district 

court judgeships.

B. Limited Voting

1. Appellate Courts

Under the current system of 14 appellate court districts, there are between 

thirteen judges (5th Appellate District) and three judges (5 districts: 6th, 9th, 10th,

11th, 12th) in each district. In order to provide for a limited voting system that will 

also allow for minority electoral opportunity in those districts in which there are 

minority concentrations, it will be necessary to limit each voter to votes roughly 

equal to 60 percent of the total number of seats to be filled in any election. Thus, in 

the 5th Appellate District, four or five judges would be up for election every two 

years, and voters would be allowed two or three ballots, depending on the number of 

judicial offices to be filled. In the smaller districts, such as those containing only

- 17-



three judges, it will be necessary to elect all judges at once, and allow each voter 

only two ballots.46

Alternatively, if the appellate courts were reorganized into nine equal 

districts, elections could be held every two years for three members of each court.

In such elections, each voter would be allowed to cast two ballots. Such a system 

would allow for cohesive minority populations to achieve representation and would 

bring the entire appellate system under one administrative rubric.

2. District Courts

For purposes of the district courts, a system of limited voting would require 

no subdivisions for electoral purposes except in the largest counties. For all 

district courts other than those in Harris, Dallas, and possibly Tarrant, it would be 

possible to hold elections using the same principles set forth above in the 

discussion of the appellate court districts. Specifically, voters would be allowed to 

cast a number of ballots equal to roughly 60 percent of the judicial offices to be 

filled at any given time. In order for this system to work, at least three judges 

would have to be elected in any given election.

Limited voting is a viable remedial system in the largest counties as well, if 

the problem is addressed solely in terms of the prospects for minority electoral 

opportunity. However, limited voting alone will not cure the problem of overly large 

slates of judicial candidates running at any given time and the consequent problem 

of voter lack of information and disinterest. The size of Harris, Dallas, and possibly 

Tarrant counties makes some subdistricting preferable even within the context of a

46 - In order to remedy the problem of minority exclusion, it would be necessary to have limited
voting at all levels of elections, such as both primary and general elections in a partisan voting 
system.

- 18-



limited voting system. For example, were each of these counties to be subdistricted 

for electoral purposes along county commissioner lines, a limited voting system 

would then provide a meaningful opportunity for minority-preferred candidates, as 

well as provide a manageable number of judicial races for purposes of informed 

voter participation.

V. Conclusion

The two Texas judicial election decisions present both a challenge and an 

opportunity. The challenge is that a system of electing judges has been found to 

exclude a large and growing part of the state's population. This will have to be 

remedied, either by legislative initiative or by directives from the federal courts. 

The opportunity is that a system which has emerged without clear direction may be 

re-examined under the press of the federal court decisions to determine what 

judicial structures will best serve the citizens of this state. The legacies of the past 

need not be the inheritances of the future.

a:\TXT\RLa8VHLM. 124

- 19-



Appendix A

MULTI-MEMBER, SINGLE COUNTY COURT DISTRICTS*
COUNTIES OVER 300,000 POPULATION (AS OF 1980 CENSUS)

CO. #COURTS POPULATION BLACK% HISP.% #H #B

Bexar 19 988,800 6.97% 46.60% 5 0

Dallas 37 1,556,390 18.36% 9.90% 1 2

El Paso 8 479,899 3.83% 61.93% 4 0

Harris 59 2,409,547 19.6% 15.28% 3 3
Tarrant 23 860,880 11.7% 7.85% 0 2

Travis 13 419,573 10.68% 17.24% 0 0

Total: 6,715,089

* These counties have 159 of the 384 existing district courts. There are 
presently 13 Hispanics and 7 Blacks sitting as district court judges in 
these counties. As of the 1980 census, 58.13% of the state s Black 
population and 47.57% of the state’s Hispanic population was in these 
six counties.

All of the data in this appendix and the appendices that follow are 
derived from U.S. Bureau of the Census, County and City Data Book, 
1983. The racial and ethnic background of district court judges is 
found in Office of Court Administration, Texas Judicial Council, Texas 
Minority Judges, Feb. 10, 1989.

A - 1



Appendix B

MULTI-MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COUNTY POPULATION COURT BLACK% HISP.% R/E

Angelina 64,172 159 15.05% 6.20% W
217 W

Brazos 93,588 272 11.17% 10.19% W
361 W
85 W

Collin 144,576 199 4.30% 4.89% W
219 W
296 w
366 w

Denton 143,126 158 4.29% 4.39% w
16 w

211 w
362 w
367 w

Ector 115,374 161 4.41% 21.51% w
244 w
358 w
70 w

Fort Bend 130,846 240 15.61% 20.40% w
268 w
328 w

Galveston 195,940 10 18.59% 12.07% w
122 w
212 w
306 w
56 w

Gregg 99,487 124 17.92% 2.03% w
188 w
307 w

Hidalgo 283,229 139 00.19% 81.31% H
206 w
275 H
332 H
370 Vacant
92 H
93 H

B -1



Appendix B

COUNTY POPULATION COURT BLACK% HISP.% R/E

Jefferson 250,938 136 28.23% 
172 
252 
279 
317 
58

Criminal District Court 
60

4.08%

W

McLennan 170,755 170
19
54
74

15.95% 8.86%

Midland 82,636 142
238
318

8.78% 14.90%

Orange 83,838 128
163
260

8.16% 2.33%

Wichita 121,082 30
78
89

8.94% 6.57%

Williamson 76,521 26
277
368

5.51% 12.60%

60 District Courts

These 15 counties have 60 district courts and represent 
2,056,108 Texans (14.44% of the state total). There is a total of 5 
Hispanics and 0 Blacks presently sitting as judges of these district 
courts.

B - 2

3
3

3
 

3
3

3
3

 
3 

3
3

3
3

3
3



Appendix C

MULTI-MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COUNTY POPULATION COURT BLACK% HISP.% R/E

Bell 157,889 146
169
264

16.36% 11.02%

Brazoria 169,587 149
239
300

7.75% 13.26%

Grayson 89,796 15
59

6.97% 1.32%

Lubbock 211,651 137
140
237
364
99

7.25% 19.53%

Montgomery 128,487 221
284
359

4.77% 3.22%

Nueces 268,215 117
148
214
28

319
347
94

4.56% 48.95%

Potter 98,637 108
320

8.13% 11.71%

Smith 128,366 241
321

7

21.90% 3.18%

Taylor 110,932 104
326
350

6.11% 11.79%

Webb 99,258 111
341

0.06% 91.50%

33 District Courts

There are presently 6 Hispanics and 0 Blacks sitting as district judges 
in these district courts.

C - 1

Ba
 

35
=3

 
3a
 3

a3
33

B
3 

33
3 

3
33

33
 

33
 

33
3 

33
3



Appendix D

MULTI-MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

103 Cameron 209,727 0.45% 77.10% W
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

107 Cameron 209,727 0.45% 77.10% H
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

138 Cameron 209,727 0.45% 77.10% H
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

197 Cameron 209,727 0.45% 77.10% W
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

357 Cameron 209,727 0.45% 77.10% H
Willacy 17,495 0.64% 80.30%

Total: 227,222 0.46% 77.35%

24 Calhoun 19,574 2.73% 33.88% W
De Witt 18,903 10.91% 23.04%
Goliad 5,193 9.15% 35.36%
Jackson 13,352 10.42% 18.81%
Refugio 9,289 8.05% 36.37%
Victoria 68,807 6.96% 30.35%

Total: 135,118 7.40% 29.30%

135 Calhoun 19,574 2.73% 33.88% W
De Witt 18,903 10.91% 23.04%
Goliad 5,193 9.15% 35.36%
Jackson 13,352 10.42% 18.81%
Refugio 9,289 8.05% 36.37%
Victoria 68,807 6.96% 30.35%

Total: 135,118 7.40% 29.30%

D -  1



Appendix D

COURT COUNTY POPULATION BLACK% HISP.% R/E

267

36

156

343

81

Calhoun 19,574 2.73% 33.88%
DeWitt 18,903 10.91% 23.04%
Goliad 5,193 9.15% 35.36%
Jackson 13,352 10.42% 18.81%
Refugio 9,289 8.05% 36.37%
Victoria 68,807 6.96% 30.35%

Total: 135,118 7.40% 29.30%

Aransas 14,260 1.74% 19.08%
Bee 26,030 2.41% 45.90%
Live Oak 9,606 - 32.03%
McMullen 789 - 34.47%
San Patricio 58,013 1.08% 46.36%

Total: 108,698 1.38% 41.32%

Aransas 14,260 1.74% 19.08%
Bee 26,030 2.41% 45.90%
Live Oak 9,606 - 32.03%
McMullen 789 - 34.47%
San Patricio 58,013 1.08% 46.36%

Total: 108,698 1.38% 41.32%

Aransas 14,260 1.74% 19.08%
Bee 26,030 2.41% 45.90%
Live Oak 9,606 - 32.03%
McMullen 789 - 34.47%
San Patricio 58,013 1.08% 46.36%

Total: 108,698 1.38% 41.32%

Atascosa 25,055 0.37% 47.83%
Frio 13,785 0.34% 68.39%
Karnes 13,593 2.54% 43.19%
La Salle 5,514 - 73.70%
Wilson 16,756 1.01% 36.48%

Total: 74,703 0.88% 50.27%

W

W

W

H

W

D - 2



Appendix D

COURT COUNTY POPULATION BLACK% HISP.% R/E

218 Atascosa 25,055 0.37% 47.83% W
Frio 13,785 0.34% 68.39%
Karnes 13,593 2.54% 43.19%
La Salle 5,514 - 73.70%
Wilson 16,756 1.01% 36.48%

Total: 74,703 0.88% 50.27%

18 Johnson 67,649 2.66% 4.23% W
Somervell 4,154 0.10% 6.91%

Total: 71,803 2.51% 4.38%

249 Johnson 67,649 2.66% 4.23% W
Somervell 4,154 0.10% 6.91%

Total: 71,803 2.51% 4.38%

21 Bastrop 24,726 17.22% 13.48% W
Burleson 12,313 21.87% 10.01%
Lee 10,952 16.13% 5.68%
Washington 21,998 22.09% 2.98%

Total: 69,989 19.40% 8.34%

335 Bastrop 24,726 17.22% 3.48% W
Burleson 12,313 21.87% 10.01%
Lee 10,952 16.13% 5.68%
Washington 21,998 22.09% 2.98%

Total: 69,989 19.40% 8.34%

64 Castro 10,556 3.26% 38.53% w
Hale 37,592 4.94% 33.64%
Swisher 9,723 4.66% 27.48%

Total: 57,871 4.58% 33.50%

242 Castro 10,556 3.26% 38.53% w
Hale 37,592 4.94% 33.64%
Swisher 9,723 4.66% 27.48%

Total: 57,871 4.58% 33.50%

D -3



Appendix D

COURT COUNTY POPULATION BLACK% HISP.% R/E

293 Dimmit
Maverick
Zavala

11,36
31,398
11,666

0.40%
0.07%
0.21%

78.02%
90.34%
89.03%

H

Total: 54,431 0.17% 87.48%

365 Dimmit
Maverick
Zavala

11,36
31,398
11,666

0.40%
0.07%
0.21%

78.02%
90.34%
89.03%

W

Total: 54,431 0.17% 87.48%

Count: 21 District Courts

There are presently 5 Hispanics and 0 Blacks sitting as judges on 
these district courts.

D - 4



Appendix E

MULTI-MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COURT COUNTY :POPULATION BLACK% HISP.% R/E

34 Culberson 3,315 63.38% W
El Paso 479,899 3.83% 61.93%
Hudspeth 2,728 0.18% 58.25%

Total: 485,942 3.78% 61.91%

205 Culberson 3,315 _ 63.38% W
El Paso 479,899 3.83% 61.93%
Hudspeth 2,728 0.18% 58.25%

Total: 485,942 3.78% 61.91%

210 Culberson 3,315 63.38% W
El Paso 479,899 3.83% 61.93%
Hudspeth 2,728 0.18% 58.25%

Total: 485,942 3.78% 61.91%

181 Potter 98,637 8.13% 11.71% w
Randall 75,062 0.74% 4.64%

Total: 173,699 4.94% 8.65%

251 Potter 98,637 8.13% 11.71% w
Randall 75,062 0.74 % 4.64%

Total: 173,699 4.94% 8.65%

25 Colorado 18,823 18.25% 14.02% w
Gonzales 16,883 11.63% 28.81%
Guadalupe 46,708 6.62% 25.4%
Lavaca 19,004 7.61% 6.86%

Total: 101,418 9.80% 20.38%

2nd 25 Colorado 18,823 18.25% 14.02% w
Gonzales 16,883 11.63% 28.81%
Guadalupe 46,708 6.62% 25.4%
Lavaca 19,004 7.61% 6.86%

Total: 101,418 9.80% 20.38%

E - l



Appendix E

COURT COUNTY POPULATION BLACK% HISP.% R/E

22 Caldwell 23,637 16.36% 32.80% W
Comal 36,446 0.98% 23.93%
Hays 40,594 2.99% 30.52%

Total: 100,677 5.40% 28.67%

207 Caldwell 23,637 16.36% 32.80% W
Comal 36,446 0.98% 23.93%
Hays 40,594 2.99% 30.52%

Total: 100,677 5.40% 30.52%

12 Grimes 13,580 27.75% 9.45% W
Leon 9,594 19.88% 2.57%
Madison 10,649 24.76% 7.65%
Walker 41,789 24.24% 7.30%

Total: 75,612 24.39% 7.14%

278 Grimes 13,580 27.75% 9.45% w
Leon 9,594 19.88% 2.57%
Madison 10,649 24.76% 7.65%
Walker 41,789 24.24% 7.30%

Total: 75,612 24.39% 7.14%

Count: 11 District Courts

There are presently 0 Hispanics and 0 Blacks sitting as judges in these 
11 district courts.

E - 2



Appendix F

SINGLE MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

2 Cherokee 38,127 18.47% 3.38% W

4 Rusk 41,382 21.78% 1.69% W

13 Navarro 35,323 20.05% 3.90% w
20 Milam 22,732 13.47% 10.73% w
29 Palo Pinto 24,062 3.27% 5.45% w
40 Ellis 59,743 12.41% 9.51% w
43 Parker 44,609 0.87% 3.12% w
52 Coryell 56,767 19.02% 8.52% w
66 Hill 25,024 10.20% 5.61% w
71 Harrison 52,265 31.48% 1.59% w
86 Kaufman 39,015 18.96% 3.92% w
91 Eastland 19,480 1.95% 4.44% w
145 Nacogdoches 46,786 17.03% 3.20% w
154 Lamb 18,669 6.18% 30.32% w
235 Cooke 27,656 4.40% 1.83% w
266 Erath 22,560 0.66% 4.14% w
355 Hood 17,714 0.08% 2.81% w

Count: 17 District Courts

There are presently 0 Hispanics and 0 Blacks sitting as judges in these 
district courts.

F - 1



Appendix G

SINGLE MEMBER, SINGLE COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

75 Liberty 47,088 14.37% 1.75% W

130 Matagorda 37,826 14.67% 20.90% W

173 Henderson 42,606 10.85% 1.17% w
196 Hunt 55,248 12.72% 2.44% w
202 Bowie 75,301 21.98% 1.17% w
223 Gray 26,386 3.9% 4.13% w
316 Hutchinson 26,304 2.94% 4.54% w
329 Wharton 40,242 16.60% 21.76% w
340 Tom Green 84,784 4.02% 21.14% H

344 Chambers 18,538 14.34% 3.55% w
356 Hardin 40,721 10.05% 1.38% w
377 Victoria 68,807 6.96% 30.35% w

Count: 12 District Courts

There are presently 1 Hispanic and 0 Blacks sitting as judges in these 
12 district courts.

G - 1



Appendix H

SINGLE MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH NO OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

32 Fisher 5,891 3.33% 18.38% W
Mitchell 9,088 5.14% 25.13%
Nolan 17,359 4.77% 19.54%

Total: 32,338 4.61% 20.90%

33 Blanco 4,681 0.81% 9.23% W
Burnet 17,803 2.00% 7.18%
Llano 10,144 0.24% 2.83%
Mason 3,683 0.30% 16.24%
San Saba 6,204 0.68% 15.60%

Total: 42,515 1.11% 8.38%

38 Medina 23,164 0.56% 43.35% W
Real 2,469 - 22.36%
Uvalde 22,441 0.46% 55.23%

Total: 48,074 0.48% 47.82%

39 Haskell 7,725 4.44% 15.47% W
Kent 1,145 1.66% 8.12%
Stonewall 2,406 1.87% 7.27%
Throckmorton 2,053 - 5.36%

Total: 13,329 3.05% 11.80%

46 Foard 2,158 4.49% 11.03% W
Hardeman 6,368 8.17% 8.01%
Wilbarger 15,931 8.38% 9.30%

Total: 24,457 7.98% 9.12%

50 Baylor 4,919 3.64% 6.22% w
Cottle 2,047 6.82% 14.15%
King 425 4.94% 8.71%
Knox 5,329 7.07% 17.77%

Total: 12,720 5.62% 12.42%

H - 1



Appendix H

COURT COUNTY POPULATION BLACK% HISP.% R/E

63 Edwards 2,033 0.25% 47.57% W
Kinney 2,279 3.51% 57.48%
Terrell 1,595 - 43.32%
Val Verde 35,910 1.82% 62.97%

Total: 41,817 1.81% 62.68%

69 Dallam 6,531 2.51% 16.74% W
Hartley 3,987 - 4.46%
Moore 16,575 0.23% 19.63%
Sherman 3,174 0.35% 11.47%

Total: 30,267 0.70% 16.15%

79 Brooks 8,428 85.99% H
Jim Wells 36,498 0.62% 67.18%

Total: 44,926 0.50% 70.71%

82 FaHs 17,946 27.21% 9.17% W
Robertson 14,653 32.07% 9.34%

Total: 32,599 29.39% 9.24%

90 Stephens 9,926 3.26% 5.74% W
Young 19,083 1.38% 3.76%

Total: 29,009 2.02% 4.44%

97 Archer 7,266 0.65% 1.38% w
Clay 9,582 0.99% 1.00%
Montague 17,410 0.02% 1.12%

Total: 34,258 0.15% 0.86%

100 Carson 6,672 0.28% 3.87% w
Childress 6,950 5.24% 9.76%
Collingsworth 4,648 7.34% 11.92%
Donley 4,075 4.27% 3.29%
Hall 5,594 7.65% 14.93%

Total: 27,939 4.75% 8.80%

H - 2



Appendix H

COURT COUNTY POPULATION BLACK% HISP.% R/E

106 Dawson 16,184 3.59% 37.64% W
Gaines 13,150 2.01% 30.80%
Garza 5,336 6.11% 24.06%
Lynn 8,605 3.22% 37.93%

Total: 43,275 3.35% 33.95%

109 Andrews 13,323 1.52% 21.78% W
Crane 4,000 0.83% 24.52%
Winkler 9,944 2.42% 25.80%

Total: 27,267 1.75% 23.65%

110 Briscoe 2,579 1.78% 17.33% W
Dickens 3,559 4.61% 16.59%
Floyd 9,834 4.63% 33.88%
Motley 1,950 5.28% 7.90% w
Total: 17,922 4.29% 25.24%

118 Glasscock 1,304 28.83% w
Howard 33,142 3.96% 21.02%
Martin 4,684 1.94% 34.59%

Total: 39,130 3.58% 22.91%

121 Terry 14,581 3.39% 33.97% w
Yoakum 8,299 1.57% 27.79%

Total: 22,880 2.73% 31.73%

132 Borden 859 0.70% 13.50% w
Scurry 18,192 3.67% 18.63%

Total: 19,051 3.54% 18.40%

143 Loving 91 35.16% w
Reeves 15,801 2.82% 61.93%
Ward 13,976 2.94% 27.00%

Total: 29,868 2.87% 45.50%

W  - 3



Appendix H

COURT COUNTY POPULATION BLACK% HISP.% R/E

220 Bosque
Comanche
Hamilton

13,401
12,617
8,297

02.07%
0.16%

05.14%
10.64%
3.34%

W

Total: 34,315 0.87% 6.73%

222 Deaf Smith 
Oldham

21,165
2,283

1.90%
0.53%

40.66%
5.56%

W

Total: 23,448 1.77% 37.24%

229 Duval 
Jim Hogg 
Starr

12,517
5,168

27,266

0.19% 85.42%
90.54%
96.86%

H

Total: 44,951 0.05% 92.95%

259 Jones
Shackelford

17,268
3,915

4.05%
0.89%

14.78%
5.39%

W

Total: 21,183 3.47% 13.04%

271 Jack
Wise

7,408
26,575

1.00%
0.86%

1.57%
5.10%

w
Total: 33,983 0.89% 4.33%

286 Cochran
Hockley

4,825
23,230

6.40%
4.03%

34.90%
27.09%

w
Total: 28,055 4.44% 28.43%

287 Bailey
Parmer

8,168
11,038

1.79%
1.57%

33.91%
32.67%

w
Total: 19,206 1.67% 33.20%

Count: 27 District Courts

There are presently 2 Hispanics and 0 Blacks sitting as judges in these 
district courts.



Appendix I

SINGLE MEMBER, MULTI-COUNTY COURT DISTRICTS
WITH OVERLAPPING JURISDICTION

COURT COUNTY POPULATION BLACK% HISP.% R/E

1 Jasper 30,781 19.30% 1.05% W
Newton 13,254 24.02% 0.45%
Sabine 8,702 15.79% 1.78%
San Augustine 8,785 29.61% 1.47%

Total: 61,522 21.29% 1.08%

1A Jasper 30,781 19.30% 1.05% W
Newton 13,254 24.02% 0.45%
Tyler 16,223 12.93% 0.65%

Total: 60,258 18.62% 0.81%

3 Anderson 38,381 21.34% 4.82% W
Henderson 42,606 10.85% 1.17%
Houston 22,299 32.35% 3.70%

Total: 103,286 19.39% 3.07%

5 Bowie 75,301 21.98% 01.17% W
Cass 29,430 21.95% 0.84%

Total: 104,731 21.97% 1.07%

6 Fannin 24,285 7.49% 1.32% W
Lamar 42,156 14.89% 0.64%
Red River 16,101 20.24% 1.94%

Total: 82,542 13.76% 1.09%

8 Delta 4,839 8.12% 0.27% w
Franklin 6,893 5.51% 0.90%
Hopkins 25,247 10.11% 1.33%
Rains 4,839 5.60% 1.45%

Total: 41,818 8.59% 1.15%



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E
9 Montgomery 128,487 4.77% 3.22% W

Polk 24,407 15.76% 3.74%
San Jacinto 11,434 21.01% 1.16%
Waller 19,796 42.05% 5.47%

Total: 184,124 11.24% 3.40%

2nd 9 Montgomery 128,487 4.77% 3.22% W
Polk 24,407 15.78% 3.74%
San Jacinto 11,434 21.01% 1.16%
Trinity 9,450 20.20% 0.92%

Total: 173,778 8.22% 3.03%

23 Brazoria 169,587 7.75% 13.26% W
Matagorda 37,826 14.67% 20.90%
Wharton 40,242 16.60% 21.76%
Total: 247,655 10.25% 15.81%

27 Bell 157,889 16.36% 11.02% w
Lampasas 12,005 1.58% 10.70%

Total: 169,894 15.32% 11.00%

31 Gray 26,386 3.90% 4.13% w
Hemphill 5,304 - 10.28%
Lipscomb 3,766 - 7.94%
Roberts 1,187 - 2.70%
Wheeler 7,137 2.58% 4.06%

Total: 43,780 2.77% 5.15%

35 Brown 33,057 4.72% 7.92% w
Mills 4,477 0.16% 6.75%
Total: 37,534 4.17% 7.78%

42 Callahan 10,992 0.07% 3.23% w
Coleman 10,439 3.82% 8.83%
Taylor 110,932 6.11% 11.79%

Total: 132,363 5.43% 10.85%

1-2



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

47 Armstrong 1,994 0.30% 2.76% W
Potter 98,637 8.13% 11.71%
Randall 75,062 0.74% 4.64%

Total: 175,693 4.88% 8.59%

49 Webb 99,258 0.06% 91.50% H
Zapata 6,628 - 76.07%

Total: 105,886 0.05% 90.53%

51 Coke 3,196 12.67% W
Irion 1,385 - 18.54%
Schleicher 2,820 1.38% 25.99%
Sterling 1,206 0.33% 23.13%
Tom Green 84,784 4.02% 21.14%

Total: 93,391 3.7% 20.98%

62 Delta 4,839 8.12% 0.27% w
Franklin 6,893 5.51% 0.90%
Hopkins 25,247 10.11% 1.33%
Lamar 42,156 14.89% 0.64%

Total: 79,135 12.13% 0.86%

72 Crosby 8,859 5.37% 37.04% w
Lubbock 211,651 7.25% 19.53%

Total: 220,510 7.16% 20.23%

76 Camp 9,275 25.54% 1.07% w
Morris 14,629 21.80% 1.76%
Titus 21,442 13.90% 2.86%

Total: 45,346 18.83% 2.14%

77 Freestone 14,830 21.56% 1.63% w
Limestone 20,224 23.23% 3.18%

Total: 35,054 22.52% 2.52%

1 -3



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

83 Brewster 7,573 0.41% 43.07% H
Jeff Davis 1,647 - 47.18%
Pecos 14,618 0.47% 48.56%
Presidio 5,188 0.04% 76.89%
Reagan 4,135 3.94% 31.22%
Upton 4,619 2.34% 28.04%

Total: 37,780 0.99% 46.88%

84 Hansford 6,209 11.63% W
Hutchinson 26,304 2.94% 4.54%
Ochiltree 9,588 - 9.36%

Total: 42,101 1.84% 6.68%

87 Anderson 38,381 21.34% 4.82% W
Freestone 14,830 21.56% 1.63%
Leon 9,594 19.88% 2.57%
Limestone 20,224 23.23% 3.18%

Total: 83,029 21.59% 3.57%

88 Hardin 40,721 10.05% 1.38% w
Tyler 16,223 12.93% 0.65%

Total: 56,944 10.87% 1.17%

102 Bowie 75,301 21.98% 1.17% w
Red River 16,101 20.24% 1.94%

Total: 91,402 21.67% 1.30%

105 Kenedy 543 82.50% H
Kleberg 33,358 3.99% 52.13%
Nueces 268,215 4.56% 48.95%

Total: 302,116 4.49% 49.36%

112 Crockett 4,608 0.28% 44.55% w
Pecos 14,618 0.47% 48.56%
Reagan 4,135 3.94% 31.22%
Sutton 5,130 - 40.37%
Upton 4,619 2.34% 28.04%

Total: 33,110 1.07% 35.45%

1 - 4



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

114 Smith 128,366 21.90% 3.18% W
Wood 24,697 10.37% 1.12%

Total: 153,063 20.04% 2.85%

115 Marion 10,360 34.72% 0.78% W
Upshur 28,595 15.42% 0.61%

Total: 38,955 20.55% 0.65%

119 Concho 2,915 27.65% W
Runnels 11,872 1.80% 19.36%
Tom Green 84,784 4.02% 21.14%

Total: 99,571 3.64% 21.12%

123 Panola 20,724 19.90% 1.23% W
Shelby 23,084 21.24% 0.78%

Total: 43,808 20.61% 0.99%

155 Austin 17,726 14.55% 5.47% W
Fayette 18,832 8.96% 4.98%
Waller 19,796 42.05% 5.47%

Total: 56,354 22.34% 5.31%

198 Concho 2,915 27.65% w
Kerr 28,780 2.57% 13.57%
Kimble 4,063 - 17.40%
McCulloch 8,735 2.46% 18.97%
Menard 2,346 0.34% 28.64%

Total: 46,839 2.06% 16.54%

216 Bandera 7,084 0.13% 12.18% w
Gillespie 13,532 0.25% 10.04%
Kendall 10,635 0.12% 13.22%
Kerr 28,780 2.57% 13.57%

Total: 60,031 1.32% 12.55%



Appendix I

CO U R T C O U N T Y  P O P U LA TIO N B LAC K % HISP.% R/E

253 Chambers 18,538 14.34% 3.55% W
Liberty 47,088 14.37% 1.75%

Total: 65,626 14.36% 2.26%

258 Polk 24,407 15.76% 3.74 % W
San Jacinto 11,434 21.01% 1.16%
Trinity 9,450 20.20% 0.92%

Total: 45,291 13.80% 2.31%

273 Sabine 8,702 15.79% 1.78% W
San Augustine 8,785 29.61% 1.47%
Shelby 23,084 21.24% 0.78%

Total: 40,571 21.88% 1.14%

274 Caldwell 23,637 16.36% 32.80% W
Comal 36,446 0.98% 23.93%
Guadalupe 46,708 6.62% 25.4%
Hays 40,594 2.99% 30.52%

Total: 147,385 5.79% 27.63%

276 Camp 9,275 25.54% 1.07% W
Marion 10,360 34.72% 0.78%
Morris 14,629 21.80% 1.76%
Titus 21,442 13.90% 2.86%

Total: 55,706 21.78% 1.89%

294 Van Zandt 31,426 4.09% 1.81% W
Wood 24,697 10.37% 1.12%

Total: 56,123 6.85% 1.51%

336 Fannin 24,285 7.49% 1.32% w
Grayson 89,796 6.97% 1.32%
Total: 114,081 7.08% 1.32%

349 Anderson 38,381 21.34% 4.82% w
Houston 22,299 32.35% 3.70%
Total: 60,680 25.38% 4.41%

1-6



Appendix I

COURT COUNTY POPULATION BLACK% HISP.% R/E

354 Hunt
Rains
Rockwall

55,248
4,839

14,528

12.72%
5.60%
5.15%

2.44%
1.45%
3.28%

W

Total: 74,615 10.78% 2.54%

369 Anderson
Cherokee

38,381
38,127

21.34%
18.47%

4.82%
3.38%

W

Total: 76,508 19.91% 4.10%

Count: 44 District Courts

There are presently 3 Hispanics and 0 Blacks sitting as judges in these 
district courts.

1 - 7



No. OS­

IN The
H>upmm Court of tljo ttnitofr states

A r t h u r L. L ewis, Jr ., et al.,
Petitioners,

v.
City of Chicago,

Respondent.

On Petition For Writ of Certiorari 
To The United States Court of Appeals for the 

Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Clyde M u r p h y 
C hicago La w y e r s’ 
Committee for Civil 
R ights U n d e r La w  

100 N. LaSalle St. 
Chicago, IL 60602 
(312) 630-9744

Jo h n  Payton 
M a t t h e w Colangelo 

Counsel of Record 
R eN ika C. M oore 
Joy M illigan 
NAACP Legal D efense & 
Educational Fu n d , In c. 

99 Hudson St.
New York, NY 10013 
(212) 965-2200

Additional counsel listed inside cover



Ju d s o n H. M iner 
G eorge F. G all an d, Jr . 
M iner, Barnhill & 
G all an d, P.C.

14 W. Erie St.
Chicago, IL 60610 
(312) 751-1170

M a t t h e w J. Piers 
Jo s h u a K arsh 
H u g h e s, So co l, Piers, 
R esnick & D y m  Lt d.

70 W. Madison St.
Chicago, IL 60602 
(312) 580-0100

Patrick O. Patterson, Jr . 
La w  O ffice of Patrick O.
Patterson, S.C.

7841 N. Beach Dr.
Fox Point, WI 53217 
(414) 351-4497

Fay Clayton 
Cynthia H. H y n d m a n  
R obinson, C urley & 
Cl ayton, P.C.

300 S. Wacker Dr. 
Chicago, IL 60606 
(312) 663-3100

Bridget A rimond 
357 E. Chicago Ave. 
Chicago, IL 60611 
(312) 503-5280



1

QUESTION PRESENTED
Under Title VII, a plaintiff seeking to bring suit 

for employment discrimination must first file a 
charge of discrimination with the EEOC within 300 
days after the unlawful employment practice oc­
curred. Where an employer adopts an employment 
practice that discriminates against African Ameri­
cans in violation of Title VII’s disparate impact pro­
vision, must a plaintiff file an EEOC charge within 
300 days after the announcement of the practice, or 
may a plaintiff file a charge within 300 days after 
the employer’s use of the discriminatory practice?



11
PARTIES TO THE PROCEEDINGS

The petitioners are Arthur L. Lewis, Jr., Gregory 
S. Foster, Jr., Arthur C. Charleston III, Pamela B. 
Adams, William R. Muzzall, Philippe H. Victor, 
Crawford M. Smith, Aldron R. Reed, and the African 
American Fire Fighters League of Chicago, Inc., all 
of whom were plaintiffs and appellees in the courts 
below. The African American Fire Fighters League 
of Chicago, Inc., is a not-for-profit corporation which 
has not issued stock and has no corporate parent.

The respondent is the City of Chicago, which was 
the defendant and appellant in the courts below.



Ill

TABLE OF CONTENTS
QUESTION PRESENTED.................. ...................... i
PARTIES TO THE PROCEEDINGS........................ii
TABLE OF CONTENTS............................................iii
TABLE OF AUTHORITIES.......................................v
OPINIONS BELOW..................................................... 1
JURISDICTION........................................................... 1
STATUTORY PROVISIONS INVOLVED................1
STATEMENT OF THE CASE....................................3

A. The Statutory Framework...........................4
B. Proceedings in the District Court.............. 5
C. Proceedings in the Court of Appeals..........8

REASONS FOR GRANTING THE WRIT................ 9
I. There is an Acknowledged Division Among

the Courts of Appeals Regarding the Ques­
tion Presented.....................................................10

II. The Question Presented is of Significant
Importance to the Administration of Title 
VII Claims......................   19

III. The Court Below Erred......................................24
CONCLUSION........................................................... 27
APPENDIX
Opinion of the United States Court of Appeals 

for the Seventh Circuit, reported at 528 
F.3d 488 (7th Cir. 2008)..................................... la



IV

Memorandum Opinion and Order of the 
United States District Court for the 
Northern District of Illinois, entered
March 24, 2005..........................................    12a

Memorandum Opinion and Order of the 
United States District Court for the 
Northern District of Illinois, entered May 
26, 2000......    44a

Order of the United States Court of Appeals 
for the Seventh Circuit denying petition 
for rehearing en banc, filed August 21,
2008.................................................................... 71a



V

TABLE OF AUTHORITIES
Cases

Adams v. City of Chicago, 469 F.3d 609 (7th 
Cir. 2006)...............................................................

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

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir.
1999).................................................................  11,

Association Against Discrimination in Em­
ployment v. City of Bridgeport, 647 F.2d 
256 (2d Cir. 1981).................................................

Bazile v. City of Houston, No. 08-cv-02404 
(S.D. Tex. filed Aug. 4, 2008)..............................

Beavers v. American Cast Iron Pipe Co., 975 
F.2d 792 (11th Cir. 1992)..............................  11,

Bishop v. New Jersey, 144 F. App’x 236 (3d 
Cir. 2005) (unpublished).................................14,

Bishop v. New Jersey, 84 F. App’x 220 (3d 
Cir. 2004) (unpublished).... .................................

Bouman v. Block, 940 F.2d 1211 (9th Cir. 
1991)...................................... ................ 9, 11-13,

Bradley v. City of Lynn, 443 F. Supp. 2d 145 
(D. Mass. 2006).....................................................

Bronze Shields, Inc. v. New Jersey Depart­
ment of Civil Service, 667 F.2d 1074 (3d 
Cir. 1981).................................... 7, 9, 11, 14, 16,

Brunet v. City of Columbus, 1 F.3d 390 (6th 
Cir. 1993)...............................................................

Burlington Industries, Inc. v. Ellerth, 524 
U.S. 742 (1998).....................................................

20

24

15

18

21

15

16

16

18

21

18

21

2 3



VI

Christiansburg Garment Co. v. EEOC, 434 
U.S. 412 (1978)...................................................   24

Connolly v. McCall, 254 F.3d 36 (2d Cir.
2001)........................................................................  18

Cox v. City of Memphis, 230 F.3d 199 (6th 
Cir. 2000).........................................9, 11, 14, 16, 18

Davis v. City of San Francisco, 976 F.2d 1536 
(9th Cir. 1992), vacated in part, 984 F.2d 
345 (9th Cir. 1993)..................................................21

Delaware State College v. Ricks, 449 U.S. 250 
(1980)................  25

Dothard v. Rawlinson, 433 U.S. 321 (1977).......... 22
EEOC v. Westinghouse, 725 F.2d 211 (3d Cir.

1983)..............................................................   16
Gonzalez v. Firestone Tire & Rubber Co., 610 

F.2d 241 (5th Cir. 1980)................  7, 11, 14, 17-18
Green v. Missouri Pacific Railroad, 523 F.2d 

1290 (8th Cir. 1975).......................    22
Griggs v. Duke Power Co., 401 U.S. 424

(1971)........................................................... 4, 21, 24
Guardians Association v. Civil Service 

Commission, 633 F.2d 232 (2d Cir.
1980)............................................7, 11, 13-14, 17-18

Harris v. City of New York, 186 F.3d 243 (2d 
Cir. 1999).................................       18

Hood v. New Jersey Department of Civil
Service, 680 F.2d 955 (3d Cir. 1982)..................  16

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977)...............26-27



vii

Johnson v. City of Memphis, No. 00-2608,
2006 WL 3827481 (W.D. Tenn. Dec. 28,
2006).........................................................................21

Lanning v. Southeastern Pennsylvania 
Transportation Authority, 308 F.3d 286 (3d 
Cir. 2002).......................   22

Ledbetter v. Goodyear Tire & Rubber Co., 127 
S. Ct. 2162 (2007).............................................25-26

Lorance v. AT&T Technologies, Inc., 490 U.S.
900 (1989)............................................................... 26

Mems v. City of St. Paul, 224 F.3d 735 (8th 
Cir. 2000)...........................................................20-21

Morton v. Mancari, 417 U.S. 535 (1974)...............  23
Nash v. Consolidated City of Jacksonville,

905 F.2d 355 (11th Cir. 1990).............................. 21
National Railroad Passenger Corp. v. Mor­

gan, 536 U.S. 101 (2002)................................. 25-26
New York Gaslight Club, Inc. v. Carey, 447 

U.S. 54 (1980)........................................................ 24
Pettway v. American Cast Iron Pipe Co., 494 

F.2d 211 (5th Cir. 1974)........    22
Tatreau v. City of Los Angeles, No. 03-56638,

138 F. App’x 959 (9th Cir. 2005) (unpub­
lished)....................................................................... 18

United Air Lines, Inc. v. Evans, 431 U.S. 553 
(1977)......................................................................25

United States v. City of New York, No. 07-cv- 
2067 (E.D.N.Y. filed Sept. 25, 2007)..........    21

Van Zant v. KLM Royal Dutch Airlines, 80 
F.3d 708 (2d Cir. 1996) 1 8



V lll

Walls v. Mississippi State Department of 
Public Welfare, 730 F.2d 306 (5th Cir.
1984)........................................................................  14

Federal Statutes
28 U.S.C. § 1254(1)...................................................... 1
28 U.S.C. § 1331...........................................................7
28 U.S.C. § 1343(a)(3)................................................. 7
42 U.S.C. § 2000e-2(a)........................................... . 2, 4
42 U.S.C. § 2000e-2(k).................................. 2, 4-5, 26
42 U.S.C. § 2000e-5(e)(l).......................................3, 5
42 U.S.C. § 2000e-5(f)(l)............................................. 5

State Constitutions and Statutes
Ala. Const, art. V, § 138.01(A)................................20
Ariz. Rev. Stat. Ann. § 38-1003(3) to (4 ) ...............20
Ark. Code Ann. §§ 14-49-304(b)(2), 14-50-

304(b)(2), 14-51-301(b)(2)......................................20
Cal. Const, art. VII, § 1(b).......................................... 20
Colo. Const, art. XII, § 13(1).......................   20
Conn. Gen. Stat. §§ 5-195, 7-413............................20
Haw. Rev. Stat. §§ 76-1, -18.................................... 20
Idaho Code Ann. § 50-1604.......................................20
65 111. Comp. Stat. 5/10-1-7.......................................20
Ind. Code §§ 4-15-2-12 to -15.................................. 20
Iowa Code §§ 341A.8, 400.8, 400.17...................... 20
Kan. Stat. Ann. §§ 19-4311(a), 75-3746(h).........   20
Ky. Rev. Stat. Ann. §§ 67A.270, 90.160,

90.320, 90.350 20



IX

La. Const, art. X, § 7 ................................................ 20
Mass. Gen. Laws ch. 31, § 6..................................  20
Mich. Const, art. XI, § 5 ....................  20
Minn. Stat. §§ 44.06, 387.36(b)(2), 419.06(2), 

420.07(2)..................................................................20
Mont. Code Ann. §§ 7-3-4258, 7-32-4108, 7-

32-4111.......................................   20
Neb. Rev. Stat. §§ 19-1829, 23-2525(3), 23- 

2541(3)...................................................................  20
Nev. Rev. Stat. § 284.205......................................... 20
N.J. Const, art. VII, § I, para. 2 ..............................20
N.M. Stat. § 10-9-13(C)..........................................   20
N.Y. Const, art. V, § 6 ............................................... 20
Ohio Const, art. XV, § 10.......................................... 20
71 Pa. Stat. Ann. § 741.501(a)................................ 20
R. I. Gen. Laws §§ 36-4-17 to -18........................... 20
S. C. Code Ann. §§ 5-19-20, -180...........................20
S.D. Codified Laws § 3-7-9, -11...........................   20
Tenn. Code Ann. § 8-30-201(a)................................ 20
Tex. Loc. Gov’t Code Ann. §§ 143.021,

143.025.............................................    20
Utah Code Ann. § 10-3-1007.....................................20
Wash. Rev. Code §§ 41.08.050, 41.12.05(4)............ 20
Wis. Stat. §§ 63.25(l)(a), 230.15(1)..................   20
Wyo. Stat. Ann. § 15-5-106(b)...................................20

Other Authorities
Lex K. Larson, 4 Employment Discrimina­

tion (2d ed. 1994 & Supp. 2008).......................... 18



Barbara T. Lindemann & Paul Grossman, 
Employment Discrimination Law (4th ed.
2007) ................................................................  17-20

Barbara T. Lindemann & Paul Grossman, 
Employment Discrimination Law (Supp.
2008) .....................................................................  27

H.R. Rep. No. 88-914 (1963), reprinted in 
1964 U.S.C.C.A.N. 2391.............      23

H.R. Rep. No. 92-238 (1971), reprinted in 
1972 U.S.C.C.A.N. 2137........................................23

Sup. Ct. R. 30 .1 .............................................................1

X



1

Petitioners Arthur L. Lewis, Jr., et al. respect­
fully petition for a writ of certiorari to review the 
judgment and opinion of the United States Court of 
Appeals for the Seventh Circuit in this case.

OPINIONS BELOW
The opinion of the United States Court of Appeals 

for the Seventh Circuit, reversing the judgment of 
the district court, is reported at 528 F.3d 488 (7th 
Cir. 2008), and is reproduced at App. la-11a. The 
opinion of the United States District Court for the 
Northern District of Illinois, finding liability under 
Title VII against respondent City of Chicago, is un­
reported and is reproduced at App. 12a-43a. The 
opinion of the district court finding that petitioners’ 
EEOC charges were timely is unreported and is re­
produced at App. 44a-70a.

JURISDICTION
The court of appeals entered its judgment on 

June 4, 2008. Petitioners filed a timely petition for 
rehearing en banc on July 3, 2008, which the court of 
appeals denied on August 21, 2008. See App. 71a. 
On November 5, 2008, this Court extended the time 
for filing a petition for a writ of certiorari by sixty 
days. Order on Application No. 08A404; see also 
Sup. Ct. R. 30.1. This Court has jurisdiction under 
28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED
Section 703(a) of Title VII of the Civil Rights Act 

of 1964 provides:
(a) It shall be an unlawful employment 
practice for an employer —



2

(1) to fail or refuse to hire or to discharge 
any individual . . . because of such indi­
vidual’s race, color, religion, sex, or na­
tional origin; or
(2) to limit, segregate, or classify his em­
ployees or applicants for employment in 
any way which would deprive or tend to 
deprive any individual of employment op­
portunities or otherwise adversely affect 
his status as an employee, because of 
such individual’s race, color, religion, sex, 
or national origin.

42 U.S.C. § 2000e-2(a).
Section 703(k)(l)(A) of Title VII provides:
(k) Burden of proof in disparate impact cases
(l) (A) An unlawful employment practice 
based on disparate impact is established un­
der this subchapter only if -
(i) a complaining party demonstrates that a 
respondent uses a particular employment 
practice that causes a disparate impact on 
the basis of race, color, religion, sex, or na­
tional origin and the respondent fails to 
demonstrate that the challenged practice is 
job related for the position in question and 
consistent with business necessity . . . .

42 U.S.C. § 2000e-2(k).
Section 706(e)(1) of Title VII provides in perti­

nent part: “A charge under this section shall be filed 
. . . within three hundred days after the alleged



3

unlawful employment practice occurred.” 42 U.S.C. 
§ 2000e-5(e)(l).

STATEMENT OF THE CASE
The district court found that respondent City of 

Chicago discriminated against petitioners, who were 
African American applicants for entry-level fire­
fighter positions, by using a hiring practice that had 
a disparate impact on African American applicants 
and bore no demonstrable relationship to determin­
ing firefighter performance. The court of appeals, 
however, reversed on timeliness grounds, holding -  
contrary to the law of five circuits -  that an EEOC 
charge for disparate impact discrimination must be 
filed within 300 days of the announcement of the 
practice. Under this rule, any subsequent challenge 
to an employer’s use of the practice as the basis for 
employment decisions is time-barred.

In the opinion below, the Seventh Circuit as­
serted that two other circuits (the Third and Sixth 
Circuits) agree with this approach. By contrast, at 
least five circuits (the Second, Fifth, Ninth, Elev­
enth, and D.C. Circuits) disagree; under their prece­
dents, making employment-related decisions from a 
tainted system is an act of discrimination distinct 
from the original implementation of the system, such 
that new claims accrue each time the tainted system 
is used to make those decisions. The split in the cir­
cuits is clear and well-established, and not only was 
acknowledged by the Seventh Circuit in this case, 
but also has been recognized by other federal courts, 
leading commentators, and the respondent itself.

This Court should grant this petition for a writ of 
certiorari to resolve the well-established split in the



4

circuit courts, and to establish uniformity among the 
lower courts on this important question affecting 
millions of employees and employers nationwide.

A. The Statutory Framework.

Title VII of the Civil Rights Act of 1964 makes it 
an “unlawful employment practice” for an employer:

(1) to fail or refuse to hire or to discharge any 
individual . . . because of such individual’s 
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employ­
ees or applicants for employment in any way 
which would deprive or tend to deprive any 
individual of employment opportunities or 
otherwise adversely affect his status as an 
employee, because of such individual’s race, 
color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a). Both “disparate treatment” 
claims (which challenge intentionally discriminatory 
employment practices) and “disparate impact” claims 
(which challenge employment practices that have an 
adverse effect on protected classes regardless of in­
tent) are cognizable under Title VII. See Griggs v. 
Duke Power Co., 401 U.S. 424, 431 (1971) (“[Title 
VII] proscribes not only overt discrimination but also 
practices that are fair in form, but discriminatory in 
operation.”); see also 42 U.S.C. § 2000e-2(k).

Disparate impact discrimination is established if 
a “complaining party demonstrates that a respon­
dent uses a particular employment practice that 
causes a disparate impact on the basis of race . . . 
and the respondent fails to demonstrate that the 
challenged practice is job related . . . and consistent



5

with business necessity.” 42 U.S.C. § 2000e- 
2(k)(l)(A). Any person subject to such a practice 
must file a charge of discrimination with the EEOC 
“within three hundred days after the alleged unlaw­
ful employment practice occurred.” 42 U.S.C. 
§ 2000e-5(e)(l).1 If after investigating the charge, 
the EEOC cannot secure voluntary compliance from 
the employer and the EEOC elects not to file suit on 
behalf of the employee,1 2 the employee can receive a 
“right-to-sue” letter and institute a civil action 
against the employer. 42 U.S.C. § 2000e-5(f)(l). The 
employee has ninety days from receipt of a right-to- 
sue letter to file suit. Id.

B. Proceedings in the District Court.

In 1995, the City of Chicago administered a 
scored test to over 26,000 applicants as the first step 
in its hiring process for entry-level firefighters. 
After the test was scored, the City divided the 
applicants into three categories based on whether 
their scores fell above or below specified minimums, 
and labeled these categories “well qualified,” 
“qualified,” and “not qualified.” The City’s use of the 
test scores to rank applicants in this manner had a 
severe disparate impact upon African American 
applicants: white test-takers were five times more

1 In certain circumstances not present here, the limitations 
period is 180 days. See 42 U.S.C. § 2000e-5(e)(l).

2 With respect to charges that involve private employers, 
the EEOC has the authority to initiate civil litigation, and with 
respect to charges that involve a government, governmental 
agency, or political subdivision as the employer, the EEOC re­
fers the case to the Attorney General who then has discretion to 
initiate civil litigation. See 42 U.S.C. § 2000e-5(f)(l).



6

likely than African American test-takers to be 
ranked “well qualified.” Petitioners are a class of 
approximately 6,000 African Americans who took the 
1995 test and were rated “qualified.”

In January 1996, the City mailed notices of the 
test results to all applicants, advising them of the 
creation of the three categories and of the City’s plan 
to advance only those in the “well qualified” category 
to the next steps of the hiring process. In May 1996, 
five months after announcing its plan to make hiring 
selections from the disproportionately white pool of 
test-takers in the “well qualified” group, the City 
began using that method to hire its first class of 
firefighters from the pool of applicants who took the 
1995 test. During the next five years (with limited 
exceptions not relevant here), the City used this 
method nine more times to fill subsequent firefighter 
classes, each time selecting a new class at random 
from the “well qualified” group. The result was that 
between 1996 and 2001, the City’s entry-level 
firefighter hires were 77% white and 9% black 
(compared to an applicant pool that was 45% white 
and 36% black). In each of these ten rounds of 
hiring, applicants in the pool of test-takers ranked 
“qualified,” including petitioners, were denied 
consideration for hire.

Petitioners filed EEOC charges of race 
discrimination in March 1997, within 300 days after 
the City’s hiring of a new class for which petitioners 
and others in the “qualified” group were denied 
consideration, but more than 300 days after the 
City’s initial announcement of the test results in 
January 1996. After receiving right-to-sue letters 
from the EEOC, petitioners filed this lawsuit in



7
1998. The district court had jurisdiction under 28 
U.S.C. §§ 1331 and 1343(a)(3).

In the district court, the City moved for summary 
judgment on the ground that petitioners’ EEOC 
charges were untimely. The City argued that the 
only alleged act of discrimination occurred in 
January 1996, when petitioners were notified that 
they were placed in the “qualified” category rather 
than the “well qualified” category. The district court 
denied the motion, holding that an employer’s use of 
a discriminatory hiring practice is an actionable 
Title VII violation that starts its own charge-filing 
period. App. 69a-70a. Because petitioners’ EEOC 
charges were filed within 300 days of the City’s use 
of the test results to make hiring decisions, the 
district court held that those charges were, timely. 
The district court recognized that the circuits were 
split on this question, and agreed with the reasoning 
of the Second and Fifth Circuits while declining to 
follow the Third Circuit. App. 61a-62a, 67a-69a 
(citing Guardians Ass’n v. Civil Serv. Comm’n, 633 
F.2d 232 (2d Cir. 1980); and Gonzalez v. Firestone 
Tire & Rubber Co., 610 F.2d 241 (5th Cir. 1980); and 
declining to follow Bronze Shields, Inc. v. N.J. Dep’t 
of Civil Serv., 667 F.2d 1074 (3d Cir. 1981)).

The case proceeded to a bench trial, at which the 
City admitted that the hiring practice in question 
had a severe disparate impact on African American 
candidates, but argued that the practice did not vio­
late Title VII because it was job related and consis­
tent with business necessity. The district court re­
jected this defense, holding in March 2005 that the 
City’s firefighter hiring practice unlawfully discrimi­
nated against African American applicants in viola­



8

tion of Title VII.3 The court later resolved remedial 
issues and entered final judgment.

C. Proceedings in the Court of Appeals.

On appeal, the City did not challenge the district 
court’s finding of unlawful race discrimination, and 
instead argued only that petitioners had not timely 
filed their EEOC charges. Br. of Def.-Appellant at 4, 
Lewis v. City of Chicago, No. 07-2052 (7th Cir. Oct. 
5, 2007). The Seventh Circuit agreed and, in an 
opinion by Judge Richard Posner, reversed the dis­
trict court’s judgment.

The Seventh Circuit held that discrimination 
against petitioners “was complete when the tests 
were scored and . . . was discovered when the appli­
cants learned the results.” App. 4a. Because peti­
tioners had filed EEOC charges within 300 days of 
the City’s use of the hiring list, but more than 300 
days after initial notification of the test results, the 
court of appeals concluded that the EEOC charges 
were untimely.

3 Specifically, the district court held that the test was 
skewed toward the “least important aspects of the firefighter 
position at the expense of more important abilities,” App. 32a, 
and that the cut-off score selected by the City for dividing the 
“well qualified” from the “qualified” pool was a “statistically 
meaningless benchmark.” App. 34a. The court found that 
there was no evidence that those in the disproportionately 
white “well qualified” pool “are the most qualified candidates 
for the job or that they are better qualified than individuals” in 
the “qualified” pool. App. 36a. The district court further found 
that the City set the cut-off score for dividing among the “well 
qualified” and “qualified” pools not for business necessity but 
for administrative convenience, against the advice of the test 
developer. App. 34a-35a.



9

The court of appeals acknowledged that if the 
City’s hiring practice had been discriminatory on its 
face, each use of the practice after adoption would 
have been unlawful, because such use would have 
been intentional discrimination. App. 4a-5a. But 
the court concluded that in a disparate impact case, 
once testing is done and applicants are sorted into 
facially neutral categories such as “well qualified” 
and “qualified,” no further discrimination occurs by 
giving preference in actual hiring decisions to those 
in one category rather than another. App. 4a-7a.

The Seventh Circuit acknowledged the split of 
authority among the courts of appeals, and cited the 
Third and Sixth Circuits favorably while disagreeing 
with the Ninth Circuit. App. 6a-7a (citing Cox u. 
City of Memphis, 230 F.3d 199 (6th Cir. 2000); and 
Bronze Shields; and disagreeing with Bouman v. 
Block, 940 F.2d 1211 (9th Cir. 1991)).

Petitioners filed a petition for rehearing en banc 
on July 3, 2008, noting the Seventh Circuit’s depar­
ture from the rule applied in other courts of appeals. 
The Seventh Circuit denied rehearing on August 21, 
2008. App. 71a. This petition for certiorari followed.

REASONS FOR GRANTING THE WRIT
The courts of appeals are intractably divided over 

the proper analysis and resolution of claim-accrual 
questions in disparate impact cases. Some courts 
hold that a challenge to an employment practice 
with a discriminatory adverse impact is timely if 
filed within the charge-filing period after any use of 
the practice that adversely affects the charging 
party. Other decisions hold that a challenge is 
timely only if charges are filed within the charge­



10

filing period after the charging party learns of the 
adoption of the employment practice in question, 
even if the practice is not immediately used to make 
employment decisions and is then used repeatedly 
for this purpose over a lengthy period of time.

This legal distinction is of enormous practical im­
portance, effectively determining whether an em­
ployer may indefinitely follow a discriminatory em­
ployment practice if affected employees or applicants 
fail to object to the initial promulgation of the proce­
dure within the brief Title VII limitations period. 
The use of employment practices such as the hiring 
procedure at issue here is widespread -  and is in fact 
required by state or local law for many public em­
ployers across the country -  making the need for a 
nationally uniform claim-accrual rule paramount.
I. There is an Acknowledged Division Among

the Courts of Appeals Regarding the Ques­
tion Presented.

This Court should grant the petition for a writ of 
certiorari to resolve an important question that has 
long divided the courts of appeals. The division of 
authority on the question presented — whether an 
EEOC charge for disparate impact discrimination 
must be filed within the charge-filing period after 
the adverse impact of an employment practice is first 
announced, or whether charges are timely if filed 
within the time period after any subsequent use of 
that practice — was acknowledged by the Seventh 
Circuit and district court below. App. 6a-7a, 61a- 
62a, 67a-69a. This division of authority has previ­
ously been noted by the Third, Fifth, and Sixth Cir­



11

cuits, and leading commentators likewise agree that 
the courts of appeals are in conflict.

Five circuits -  the Second, Fifth, Ninth, Eleventh, 
and D.C. Circuits — have held that each instance of a 
repeated refusal to hire, promote, or provide em­
ployment benefits, based on a facially neutral policy 
that has a disparate impact on a protected group and 
that is not job related and consistent with business 
necessity, constitutes an independent violation of Ti­
tle VII. See Guardians Ass’n v. Civil Serv. Comm’n, 
633 F.2d 232, 248-50 (2d Cir. 1980), aff’d on other 
grounds, 463 U.S. 582 (1983); Gonzalez v. Firestone 
Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir. 1980); 
Bouman v. Block, 940 F.2d 1211, 1220-21 (9th Cir. 
1991); Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 
792, 797-800 (11th Cir. 1992); Anderson v. Zubieta, 
180 F.3d 329, 335-37 (D.C. Cir. 1999). This rule pro­
vides plaintiffs with a new limitations period that 
commences with each subsequent refusal to hire (or 
other adverse employment action) caused by the ap­
plication of the policy.

Contrary to the holdings of these five circuits, the 
Seventh Circuit held in this case that petitioners’ 
disparate impact claims accrued only when they 
were told the results of the City’s discriminatory hir­
ing practice. App. 4a-5a. The Seventh Circuit cited 
the decisions of the Third and Sixth Circuits as being 
in accord. App. 6a (citing Bronze Shields, Inc. v. N.J. 
Dep’t of Civil Serv., 667 F.2d 1074 (3d Cir. 1981) and 
Cox v. City of Memphis, 230 F.3d 199 (6th Cir.
2000)). The rule in these courts requires plaintiffs to 
file EEOC charges within the short limitations pe­
riod after the adverse impact of an employment 
practice is first announced, or else lose permanently



12

the ability to challenge employment decisions result­
ing from the subsequent use of that practice.

The respondent “readily acknowledged” this split 
of authority in its briefs below and at oral argument, 
albeit without recognizing the full depth of the split. 
Reply Br. of Def.-Appellant at 12, Lewis u. City of 
Chicago, No. 07-2052 (7th Cir. Jan. 25, 2008). 
(“While we readily acknowledge that the Second and 
Fifth Circuits have applied the continuing violation 
doctrine to the ongoing use of facially neutral lists 
with disparate impact, the Sixth Circuit, like the 
Third, has refused.” (citations omitted)).4

1. The majority position in the courts of appeals 
is to treat EEOC charges regarding disparate impact 
discrimination in an employer’s selection, pay, or 
benefits practices as timely if filed within the limita­
tions period after any use of that practice.

In Bouman, the Ninth Circuit considered a Title 
VII challenge to a promotional exam that allegedly 
had a disparate impact on women. Bouman, 940 
F.2d at 1217-18. Much like the instant case, the 
plaintiff was told when the eligibility list was cre­
ated that she was not likely to be reached for promo­

4 See also Br. of Def.-Appellant at 36, Lewis v. City of Chi­
cago, No. 07-2052 (7th Cir. Oct. 5, 2007) (“Other Circuits have 
split in cases with similar facts to those here. The Third and 
Sixth Circuits refuse to extend the accrual of claims based on 
the ongoing use of eligibility lists, while the Second and Fifth 
Circuits regard it as a continuing violation.” (citations omit­
ted)); Transcript of Oral Argument at 1, Lewis v. City of Chi­
cago, No. 07-2052 (7th Cir. Feb. 22, 2008) (“While this Court 
has not addressed this precise issue, the time to challenge a 
tainted eligibility list has been litigated in four other circuits, 
which have split two to two.”).



1 3

tion. See id. at 1217. Noting that “ [t]he crucial issue 
in this case is whether [the plaintiffs] non­
appointment from the eligible list was a separate in­
jury from the allegedly discriminatory examination 
itself,” the Ninth Circuit concluded that it was, and 
that the plaintiffs EEOC charge -  filed within 300 
days of the expiration of the eligibility list -  was 
timely. Id. at 1220-21. The Seventh Circuit below 
recognized that “ [t]he Ninth Circuit reached a con­
trary result in Bouman v. Block,” but declared Bou- 
man’s rationale mistaken. App. 6a-7a.

The Second Circuit is in agreement with the posi­
tion of the Ninth Circuit. In Guardians, the Second 
Circuit addressed the timeliness of the plaintiffs’ 
charges alleging that an exam for police hiring had a 
disparate impact on black and Hispanic applicants. 
Guardians, 633 F.2d at 235-36. The plaintiffs filed 
EEOC charges several years after creation of the eli­
gibility list but within 300 days of the defendant’s 
last use of that list.5 See id. The Second Circuit 
held that the charges were timely because “the re­
sults of the test were in effect being ‘used to dis­
criminate’” in violation of Title VII “each time a 
member of the plaintiff class was denied a chance to 
fill a vacancy.” Id. at 249; see also id. at 250 (“[A]n 
unjustified refusal to hire is in itself a violation 
which cannot be dismissed as a mere effect of an ear­
lier wrong.”). The Sixth and Third Circuits (which 
the Seventh Circuit viewed as being in accord with 
it) themselves recognize a conflict between their po­

5 Although the plaintiffs in Guardians alleged a discrimina­
tory refusal to hire minority applicants, the case arose as a 
challenge to the defendant’s last-hired, first-fired layoff policy. 
See Guardians, 633 F.2d at 235-36.



14

sitions and the Second Circuit’s holding in Guardi­
ans. See Cox, 230 F.3d at 204 (“In contrast to the 
Third Circuit, the Second Circuit treats hiring from 
an allegedly tainted roster as an act of discrimina­
tion distinct from the original acts of discrimina­
tion.”); see also Bishop v. New Jersey, 144 F. App’x 
236, 239 (3d Cir. 2005) (unpublished) (relying on 
Bronze Shields and Cox, and noting that the Second 
Circuit’s decision in Guardians is to the contrary).

The Fifth Circuit has also addressed the same 
question and has reached the same conclusion as the 
Ninth and Second Circuits. In Gonzalez, the court 
held that the plaintiffs disparate impact challenge 
would be timely filed if the plaintiff could show that 
the defendant “denied him a promotion or transfer 
within the 180-day period on the basis of the prior 
testing.”6 Gonzalez, 610 F.2d at 249. The court re­
manded for determination of the fact question 
whether the defendant “continued to base its selec­
tion of employees to receive job opportunities upon 
scores from an unvalidated battery of tests.” Id.

Two other circuits have addressed the same ques­
tion in the context of disparate impact claims arising 
from the adoption and repeated application of em­
ployment benefit policies. The Eleventh and D.C. 
Circuits have each held that every instance of a re­
peated refusal to provide employment benefits, 
based on a facially neutral policy that violates Title 
VII, constitutes an independent act of discrimination

6 The Fifth Circuit subsequently noted the apparent split in 
authority on this point. See Walls v. Miss. State Dep’t of Pub. 
Welfare, 730 F.2d 306, 319 (5th Cir. 1984) (noting the conflict 
between Guardians and Bronze Shields).



15

and restarts the clock for filing an EEOC charge. 
See Beavers, 975 F.2d at 794, 797-800 (upholding the 
timeliness of a plaintiffs challenge to his employer’s 
policy of refusing health care coverage for children 
who did not reside with the parent-employee, where 
the plaintiff filed his EEOC charge eight years after 
his children’s benefits were first denied, because the 
employer had continued to apply the policy within 
the filing period preceding the plaintiffs EEOC 
charge)7; Anderson, 180 F.3d at 333, 335-37 (holding 
that the plaintiffs’ discrimination challenge to the 
adverse impact of their employer’s pay and benefits 
policies was timely, even though the plaintiffs did 
not file EEOC charges within the charge-filing pe­
riod after notice that the policies would apply to 
them, because each application of the benefits poli­
cies was an actionable Title VII violation).

7 The Seventh Circuit sought to distinguish Beavers by as­
serting that the discriminatory practice at issue — affording 
benefits to an employee’s children only if the employee was 
their custodial parent — was the “sole cause of the denial” of 
benefits to the plaintiffs children, while in this case there was 
an “intervening neutral act”-  the City’s decision to hire only 
those whose scores placed them in the group labeled “well 
qualified.” App. 5a. In fact, however, what the Seventh Circuit 
characterized as an “intervening neutral act” was an integral 
part of the practice as originally adopted by the City: filling 
firefighter vacancies by classifying the test scores into groups 
and preferentially hiring from the purportedly “higher” group. 
Hence, in both Beavers and this case, a single practice was 
originally adopted that would have a predictable disparate im­
pact on a protected group, and that practice was subsequently 
used over a lengthy period to make decisions that disparately 
affected that group. In Beavers, the Eleventh Circuit held that 
the continuing use of such a practice started new charge-filing 
periods; in the present case, the Seventh Circuit held that it did 
not.



16

2. The Seventh Circuit departed from the rule 
applied in the five courts of appeals cited above, 
holding here that disparate impact charges must be 
filed within the limitations period after the initial 
announcement of the challenged practice. App. 4a- 
7a. The court recognized the split of authority on 
this point, citing the Third Circuit’s decision in 
Bronze Shields and the Sixth Circuit’s decision in 
Cox in support of its holding. App. 6a.

In Bronze Shields, a disparate impact challenge 
to a civil service test, the Third Circuit indicated 
that only the initial administration of the test, and 
not its subsequent use to refuse to hire minority ap­
plicants, could be a disparate impact violation.8 See 
Bronze Shields, 667 F.2d at 1081-84. Similarly, in 
Cox, the Sixth Circuit held that EEOC charges alleg­
ing intentional racial discrimination associated with 
the use of a police department promotional exam 
were not timely because they were filed outside the 
charge-filing period after the promulgation of the 
eligibility list. See Cox, 230 F.3d at 201-04.

8 Bronze Shields arguably left open the question whether 
an applicant who does not fail an employment test, but remains 
on a ranked list throughout the time the list is in use, can chal­
lenge each use of the list as a new violation. See Hood v. N.J. 
Dep’t of Civil Serv., 680 F.2d 955, 958-59 (3d Cir. 1982); cf. 
EEOC v. Westinghouse Elec. Corp., 725 F.2d 211, 219 (3d Cir. 
1983). However, two recent unpublished decisions in the Third 
Circuit have applied Bronze Shields to hold that “otherwise 
neutral use of an allegedly tainted exam is not itself a dis­
criminatory act under Title VII, but rather is merely an effect 
of the prior act of discrimination.” Bishop, 144 F. App’x at 239; 
see also Bishop v. New Jersey, 84 F. App’x 220, 224-25 (3d Cir. 
2004) (unpublished).



17

In sum, eight courts of appeals have weighed in 
on the question presented. Five have held that 
EEOC charges regarding disparate impact discrimi­
nation in an employer’s selection, pay, or benefits 
practices are timely if filed within the limitations pe­
riod after any use of that practice. Three have dis­
agreed, holding that EEOC charges must be filed 
within the limitations period after the challenged 
practice is initially adopted and results showing an 
adverse impact first become known.9

Leading employment discrimination commenta­
tors have noted the long-established split in the cir­
cuits on this point. A prominent treatise notes:

[W]hen an employer uses the results of a dis­
criminatory test over a period of time as the 
basis for employment decisions, . . . [m]ust 
an aggrieved party file a charge within the 
statutory period running from the date of 
administration of the test, or is a charge 
timely if filed while the results are still being 
used as a basis for employment decisions?
The courts are divided on this issue.

Barbara T. Lindemann & Paul Grossman, 2 Em­
ployment Discrimination Law 1775 & n.134 (4th ed. 
2007) (comparing Guardians and Gonzalez with

9 Petitioners argued below that all of the courts of appeals 
to address this question supported petitioners’ position on time­
liness, and that the rulings of the Third and Sixth Circuits 
could be distinguished based on the specific facts of those cases. 
See Br. of Pis.-Appellees at 33-35, Lewis v. City of Chicago, No. 
07-2052 (7th Cir. Dec. 14, 2007). Regardless how the decisions 
of the Third and Sixth Circuits are counted, the Seventh Cir­
cuit’s decision below is in conflict with the holdings of at least 
five other courts of appeals.



18

Bronze Shields); see also Lex K. Larson, 4 Em ploy­
ment D iscrim ination  § 72.07[7][c] & nn.109-11 (2d 
ed. 1994 & Supp. 2008) (“If an employee chooses not 
to bring a timely challenge to the methods used in 
compiling [an allegedly tainted] eligibility list, 
should that employee subsequently be able to chal­
lenge the failure to grant him or her a promotion? 
The courts are not of one mind on this question.” (cit­
ing Cox, Bronze Shields, Guardians, Gonzalez, and 
Boum an)).

3. There is nothing to suggest that this widely - 
recognized split among the circuits will resolve itself 
without this Court’s intervention. The Second Cir­
cuit, for example, has maintained its position since 
the Guardians decision in 1980, and has reaffirmed 
its holding repeatedly since then.10 The Ninth Cir­
cuit, likewise, has recently reaffirmed its Boum an  
ruling. See Tatreau v. City o f Los Angeles, No. OS- 
56638, 138 F. App’x 959, 961 (9th Cir. 2005) (unpub­
lished). And the Seventh Circuit was aware of, and 
explicitly acknowledged, contrary and long-standing

10 See, e.g., Connolly v. McCall, 254 F.3d 36, 41-42 (2d Cir. 
2001) (relying on Guardians to hold that the plaintiffs chal­
lenge to the New York public pension system was timely); Har­
ris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999) (hold­
ing that the plaintiffs failure-to-promote claim did not accrue 
until the allegedly discriminatory eligibility list expired); Van 
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 
1996) (stating that a claim accrues when “there is evidence of 
an ongoing discriminatory policy or practice, such as use of dis­
criminatory seniority lists or employment tests”); Ass’n Against 
Discrimination in Emp’t v. City of Bridgeport, 647 F.2d 256, 
274-75 (2d Cir. 1981) (holding that a firefighter test was dis­
criminatory and that employee selections based on that test 
were independent acts of discrimination).



19

authority from other circuits in concluding that peti­
tioners’ claims were time-barred. App. 6a-7a.

This case presents an ideal vehicle for this Court 
to resolve the entrenched circuit split. The question 
presented is a pure question of law unencumbered 
by any factual disagreement between the parties. 
The legal question was outcome-determinative in 
this case, was extensively briefed by the parties,11 
and was clearly decided by the Seventh Circuit.
II. The Question Presented is o f Significant

Importance to the Administration o f Title
VII Claims.
This conflict requires resolution by this Court not 

only because of the intractable split among the 
courts of appeals, but also because clarity and uni­
formity regarding the charge-filing deadline are of 
significant importance to the administration of Title 
VII claims in the lower courts.

The use of employment tests like the one at issue 
in this case to make hiring, promotion, or other em­
ployment decisions is widespread: “For more than a 
half-century, employers, employment agencies, ap­
prenticeship committees, and others have used 
scored tests to assist in making selection decisions 
for employment opportunities, including hiring, job 
assignments, training, and promotion.” Barbara T. 
Lindemann & Paul Grossman, 1 Employment Dis- 11

11 See Br. of Def.-Appellant at 16-41, Lewis v. City of Chi­
cago, No. 07-2052 (7th Cir. Oct. 5, 2007); Br. of Pis.-Appellees 
at 8-38, Lewis v. City of Chicago, No. 07-2052 (7th Cir. Dec. 14, 
2007); Reply Br. of Def.-Appellant at 3-16, Lewis v. City of Chi­
cago, No. 07-2052 (7th Cir. Jan. 25, 2008).



2 0

crimination Law 161 (4th ed. 2007). Many public 
employers and civil service departments, in particu­
lar, are required by state law to use scored tests to 
select among candidates for hiring, promotion, and 
other job benefits.12

As a result, adverse impact lawsuits that chal­
lenge alleged disparities caused by these employ­
ment practices have been regularly filed for dec­
ades.13 This is an ongoing feature of Title VII litiga- * * * § * * * §§

12 At least thirty-four states have constitutional or statu­
tory provisions requiring state agencies or localities to use 
competitive examinations in making employment decisions for 
public employees. See Ala. Const, art. V, § 138.01(A); Ariz. Rev. 
Stat. Ann. § 38-1003(3) to (4); Ark. Code Ann. §§ 14-49- 
304(b)(2), 14-50-304(b)(2), § 14-51-301(b)(2); Cal. Const, art. 
VII, § 1(b); Colo. Const, art. XII, § 13(1); Conn. Gen. Stat. §§ 5-
195, 7-413; Haw. Rev. Stat. §§ 76-1, -18; Idaho Code Ann. § 50- 
1604; 65 111. Comp. Stat. 5/10-1-7; Ind. Code §§ 4-15-2-12 to -15; 
Iowa Code §§ 341A.8, 400.8, 400.17; Kan. Stat. Ann. §§ 19- 
4311(a), 75-3746(h); Ky. Rev. Stat. Ann. §§ 67A.270, 90.160, 
90.320, 90.350; La. Const, art. X, § 7; Mass. Gen. Laws ch. 31,
§ 6; Mich. Const, art. XI, § 5; Minn. Stat. §§ 44.06, 387.36(b)(2),
419.06(2), 420.07(2); M on t. Code A nn. §§ 7-3-4258, 7-32-4108,
7-32-4111; Neb. Rev. Stat. §§ 19-1829, 23-2525(3), 23-2541(3); 
Nev. Rev. Stat. § 284.205; N.J. Const, art. VII, § I, para. 2; 
N.M. Stat. § 10-9-13(C); N.Y. Const, art. V, § 6; Ohio Const, art. 
XV, § 10; 71 Pa. Stat. Ann. § 741.501(a); R.I. Gen. Laws §§ 36-
4-17 to -18; S.C. Code Ann. §§ 5-19-20, -180; S.D. Codified Laws 
§ 3-7-9, -11; Tenn. Code Ann. § 8-30-201(a); Tex. Loc. Gov’t 
Code Ann. §§ 143.021, 143.025; Utah Code Ann. § 10-3-1007; 
Wash. Rev. Code §§ 41.08.050, 41.12.05(4); Wis. Stat.
§§ 63.25(l)(a), 230.15(1); Wyo. Stat. Ann. § 15-5-106(b).

13 See, e.g., Adams v. City of Chicago, 469 F.3d 609, 610 &  
n . l  (7 th  C ir. 2006) (no ting  th a t “ Chicago’s methods fo r p rom ot­
in g  [police] o fficers . . . has proven to be a contentious issue th a t 
has spawned lit ig a tio n  over the  past several decades,” and c it­
in g  challenges to police prom otions from  1971 to  1998 in  e ight 
o the r law su its); Mems v. City of St. Paul, 224 F.3d 735, 739-41



21

tion. In the last several years alone, new disparate 
impact challenges have been filed to civil service ex­
ams used for municipal hiring and promotion in 
Houston, Texas; New York City; and Lynn, Massa­
chusetts, to give just a few examples.* 14

Nor is the use of scored tests the only form of em­
ployment practice that is affected by the circuit split 
at issue here. Other employment criteria -  includ­
ing, for example, education requirements,15 physical

(8th Cir. 2000) (reviewing a disparate impact challenge to St. 
Paul fire department’s promotional exam); Brunet v. City of 
Columbus, 1 F.3d 390, 393-94 (6th Cir. 1993) (describing gen­
der-based disparate impact challenges to entry-level firefighter 
exams for the Columbus fire department); Davis v. City of San 
Francisco, 976 F.2d 1536, 1539 (9th Cir. 1992) (describing dis­
parate impact challenges to San Francisco fire department’s 
hiring and promotion exams between 1970 and 1984), vacated 
in part, 984 F.2d 345 (9th Cir. 1993); Nash v. Consol. City of 
Jacksonville, 905 F.2d 355, 356 (11th Cir. 1990) (reviewing dis­
parate impact challenge to Jacksonville fire department’s pro­
motional exam); Johnson v. City of Memphis, No. 00-2608, 2006 
W L  3827481, at *1-6 (W.D. Tenn. Dec. 28, 2006) (“Since the 
early seventies the employment practices of the City of Mem­
phis have frequently been challenged in court as discriminatory 
against African Americans and women.”).

14 E.g., Complaint, Bazile v. City of Houston, No. 08-cv- 
02404 (S.D. Tex. filed Aug. 4, 2008) (alleging race discrimina­
tion in firefighter promotional exams); Intervenor Complaint, 
United States v. City of New York, No. 07-cv-2067 (E.D.N.Y. 
filed Sept. 25, 2007) (alleging race discrimination in firefighter 
hiring exam); Bradley v. City of Lynn, 443 F. Supp. 2d 145, 148 
(D. Mass. 2006) (alleging race discrimination in firefighter hir­
ing and promotional exams).

15 See, e.g., Griggs, 401 U.S. at 426, 436 (invalidating an 
employer’s high school diploma requirement for hiring and job 
transfers on the ground that it disproportionately disqualified 
black employees and was not justified by business necessity);



2 2

standards,16 and no-conviction policies17 — are in 
common use and are frequently challenged because 
of alleged adverse impact on protected groups, in­
cluding racial and ethnic minorities, women, and 
older employees.

The disarray among the courts of appeals in ad­
judicating the timeliness of these frequent disparate 
impact challenges is contrary to Congress’s determi­
nation to establish nationally uniform protection 
against employment discrimination. As the House 
Judiciary Committee report on the Civil Rights Act 
of 1964 explained, Title VII was enacted to provide a 
uniform, national solution to a national problem: 
“ [NJational legislation is required to meet a national 
need which becomes ever more obvious. . . . [The 
Act] is designed as a step toward eradicating signifi­
cant areas of discrimination on a nationwide basis. 
It is general in application and national in scope.”

Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 236-39 (5th 
Cir. 1974) (invalidating a diploma requirement for admission
in to  an apprenticeship  program ).

16 See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 328-32 
(1977) (invalidating Alabama’s height/weight minimums for 
employment as a prison guard on the ground that the require­
ment had a disparate impact on female applicants and was not 
job related); Lanning v. Se. Pa. Transp. Auth., 308 F.3d 286, 
291-93 (3d Cir. 2002) (upholding employer’s use of a physical 
test for employment as a transit police officer despite adverse 
impact against women on the ground that the test was suffi­
ciently job related).

17 See, e.g., Green v. Mo. Pac. R.R., 523 F.2d 1290, 1298- 
1300 (8th Cir. 1975) (invalidating, because it had a racially dis­
parate impact and was not job related, an employer’s policy of 
refusing employment consideration to any applicant convicted 
of a crime).



23

H.R. Rep. No. 88-914 (1963), reprinted in 1964 
U.S.C.C.A.N. 2391, 2393. Indeed, this Court has 
long recognized that in passing legislation to elimi­
nate pervasive discrimination in employment, Con­
gress sought to ensure “the effective application of 
uniform, fair and strongly enforced policies.” M orton  
v. M ancari, 417 U.S. 535, 547 (1974) (discussing the 
legislative history of the 1972 amendments to Title 
VII) (quoting H.R. Rep. No. 92-238, at 24-25 (1971), 
reprinted in 1972 U.S.C.C.A.N. 2137, 2159); cf. B ur­
lington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 
(1998) (noting that Title VII requires a “uniform and 
predictable standard”).

The split among the courts of appeals also threat­
ens to undermine Congress’s broad remedial purpose 
in enacting Title VII. The Seventh Circuit’s ruling 
in this case immunized a discriminatory hiring sys­
tem that was in place for more than half a decade, 
and that both caused and perpetuated severe racial 
disparities in the Chicago firefighting workforce. 
But Congress enacted Title VII to eliminate systems 
that perpetuate workplace discrimination:

The objective of Congress in the enactment of 
Title VII . . . was to achieve equality of em­
ployment opportunities and remove barriers 
that have operated in the past to favor an 
identifiable group of white employees over 
other employees. Under the Act, practices, 
procedures, or tests neutral on their face, 
and even neutral in terms of intent, cannot 
be maintained if they operate to “freeze” the 
status quo of prior discriminatory employ­
ment practices.



2 4

Griggs, 401 U.S. at 429-30.
Under the Seventh Circuit’s rule, a discrimina­

tory employment practice that is not challenged 
within the short charge-filing period after its initial 
adoption may be immunized from subsequent chal­
lenge by applicants or employees. This outcome 
would undermine Congress’s intent to authorize civil 
actions by private litigants as an important means of 
eradicating employment discrimination: “Congress 
has cast the Title VII plaintiff in the role of ‘a private 
attorney general,’ vindicating a policy ‘of the highest 
priority.’” New York Gaslight Club, Inc. v. Carey, 
447 U.S. 54, 63 (1980) (quoting Christiansburg Gar­
ment Co. v. EEOC, 434 U.S. 412, 416 (1978)); see also 
A lexander v. Gardner-Denver Co., 415 U.S. 36, 45 
(1974) (“Congress gave private individuals a signifi­
cant role in the enforcement process of Title VII. . . . 
[T]he private litigant not only redresses his own in­
jury but also vindicates the important congressional 
policy against discriminatory employment practices.” 
(citations omitted)).

The entrenched split in the circuits on so central 
a question as when Title VII disparate impact claims 
accrue is untenable, especially in light of the fre­
quency with which disparate impact challenges to 
employment practices arise and the clear Congres­
sional mandate for nationally uniform application of 
the law.
III. The Court Below Erred.

The clear and acknowledged conflict among the 
circuits on this important question of employment 
law is sufficient, without more, to justify this Court’s 
review. Certiorari is also warranted, however, be­



25

cause the Seventh Circuit’s decision departs from 
this Court’s precedents on the timeliness of employ­
ment discrimination claims and is inconsistent with 
the language of Title VII.

Although this Court has not had occasion to de­
cide the claim-accrual question in a disparate impact 
case, the Court has established two clear principles 
governing claim accrual in Title VII disparate 
treatment cases. First, a Title VII violation exists, 
and a new charge-filing period consequently begins, 
each time an employer’s actions satisfy — at the time 
of those actions — all elements of a violation. See 
Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 
2162, 2167-68 (2007) (emphasizing that the “critical 
question” in determining timeliness is “whether any 
present violation exist[ed]” within 300 days of the 
filing of the charge (quoting United A ir Lines, Inc. v. 
Evans, 431 U.S. 553, 558 (1977))); see also Del. State 
Coll. v. Ricks, 449 U.S. 250, 252-54, 258 (1980).

Second, where there are recurring present viola­
tions of the statute, that those violations may be re­
lated to an earlier act of discrimination does not pre­
vent new claims from accruing (and a new charge­
filing period from commencing) with each subse­
quent act that satisfies all elements of a Title VII 
violation. This Court explained in National Railroad  
Passenger Corp. v. M organ, 536 U.S. 101 (2002), 
that:

[e]ach discrete discriminatory act starts a 
new clock for filing charges alleging that act.
The charge, therefore, must be filed within 
the 180- or 300-day time period after the dis­
crete discriminatory act occurred. The exis­



2 6

tence of past acts and the employee’s prior 
knowledge of their occurrence, however, does 
not bar employees from filing charges about 
related discrete acts so long as the acts are 
independently discriminatory and charges 
addressing those acts are themselves timely 
filed.

Id. at 113; see also Ledbetter, 127 S. Ct. at 2174 (“ [A] 
freestanding violation may always be charged within 
its own charging period regardless of its connection 
to other violations.”).

Applying these principles to claims of disparate 
impact discrimination, an EEOC charge should be 
considered timely if filed within the charge-filing pe­
riod after any use or application of a selection proc­
ess that adversely affects protected groups. Cf. Lo- 
rance v. A T & T  Techs., Inc., 490 U.S. 900, 908 (1989) 
(noting that a claim for disparate impact discrimina­
tion would accrue at the time the adverse effect of an 
employment practice is felt by an individual plain­
tiff); see also 42 U.S.C. § 2000e-2(k)(l)(A) (providing 
that a disparate impact violation is established when 
an employer “uses a particular employment practice 
that causes a disparate impact on the basis of race” 
and “fails to demonstrate that the challenged prac­
tice is job related . . . and consistent with business 
necessity”).

The Seventh Circuit’s holding to the contrary re­
sults in different claim-accrual rules for disparate 
treatment and disparate impact cases, despite this 
Court’s recognition that the same set of facts can be 
the subject of both disparate treatment and dispa­
rate impact analysis. See In ti  Bhd. o f  Teamsters v.



2 7

United States, 431 U.S. 324, 335-36 n.15 (1977) (de­
scribing the disparate treatment and disparate im­
pact theories, and noting that “ [ejither theory may, 
of course, be applied to a particular set of facts”); see 
also Barbara T. Lindemann & Paul Grossman, Em­
ployment Discrimination Law 3-2 (Supp. 2008) 
(“Courts . . . permit plaintiffs to assert both dispa­
rate treatment and disparate impact theories in a 
single case . . . .”).

Accordingly, the Seventh Circuit’s holding that 
petitioners’ right to challenge the City’s discrimina­
tory hiring practice expired 300 days after the classi­
fication was first made and announced -  no matter 
that the City subsequently used its discriminatory 
classification to hire firefighters for years -  is 
wrongly decided under this Court’s precedents, and 
should be reviewed.

For the foregoing reasons, the petition for a writ 
of certiorari should be granted.

CONCLUSION

Respectfully submitted,

Clyde M u rp hy 
Chicago La w y e r s’ 
Committee for Civil 
R ights U n d e r La w  

100 N. LaSalle St. 
Chicago, IL 60602 
(312) 630-9744

Jo h n  Pa yt on 
M a t t h e w Colangelo

Counsel of Record
R eN ika C. M oore 
Joy M illigan 
NAACP Legal D efense & 
Educational Fu n d , In c . 

99 Hudson St.
New York, NY 10013 
(212) 965-2200



2 8

Ju d s o n H. M iner 
G eorge F. G a ll an d, Jr. 
M iner, Barnhill & 
G alland, P.C.

14 W. Erie St.
Chicago, IL 60610 
(312) 751-1170

M a t t h e w J. Piers 
Jo s h u a K arsh 
H u g h e s, Socol, Piers, 
R esnick & D y m  Lt d.

70 W. Madison St.
Chicago, IL 60602 
(312) 580-0100

Patrick O. Patterson, Jr . 
La w  O ffice of Patrick O.
Patterson, S.C.

7841 N. Beach Dr.
Fox Point, WI 53217 
(414) 351-4497

Fa y Clayton 
Cynthia H. H y n d m a n  
R obinson, Curley & 
Cl ayton, P.C.

300 S. Wacker Dr. 
Chicago, IL 60606 
(312) 663-3100

Bridget A rimond 
357 E. Chicago Ave. 
Chicago, IL 60611 
(312) 503-5280



APPENDIX



In the
United States Court of Appeals 

for the Seventh Circuit

la

No. 07-2052

A r t h u r L. Lewis, Jr ., et a l ,  Plaintiffs-Appellees,

v.
City OF Chicago, Defendant-Appellant.

Appeal from the United States District Court 
for the Northern District of Illinois, Eastern 

Division.
No 98 C 5596—Joan B. Gottschall, Judge.

A r g u e d February 22, 2008-
D ecided Ju n e 4, 2008

Before EASTERBROOK, Chief Judge, and BAUER 
and POSNER, Circuit Judges.

POSNER, Circuit Judge. In 1995, the City of Chicago 
administered a new written test to 26,000 applicants 
for jobs as firefighters. After grading the tests, the City 
placed the applicants in three categories, based on 
their scores: “well qualified,” “qualified,” and “not 
qualified.” The plaintiffs (and the members of their 
class) are black applicants who were placed in the



2 a

“qualified” category. Applicants were told the test 
results within days after January 26, 1996, when 
notices of the results were mailed to all the applicants. 
On that day the mayor had announced that the test 
scores were in, but that “after all our efforts to improve 
diversity [including racial], these test results are 
disappointing.” There were no names in his public 
announcement.

The notices stated that applicants in the qualified 
category were unlikely to be hired because of the large 
number whose scores had placed them in the “well 
qualified” category, but that the applicants rated 
“qualified” would remain on the eligible list (since they 
had passed the test) for as long as the list was used. In 
fact, as the media reported the next day, the City 
expected to hire only about 600 of the 1,782 applicants 
in the “well qualified” category in the next three years, 
implying that no one in the “qualified” category would 
be hired.

The suit, now entering its second decade, charges 
that the test had a disparate impact on the black 
applicants (that is, disproportionately classified them 
as “qualified” rather than “well qualified”) and was not 
a valid test of aptitude for firefighting. If these things 
are true, the basing of hiring decisions on the test 
violated Title VII of the Civil Rights Act of 1964. After 
protracted proceedings, the district judge ruled in 
favor of the plaintiffs and decreed injunctive relief.

The City argues that the suit is untimely. The 
plaintiffs were required, as a prerequisite to being 
allowed to sue, to file a charge with the EEOC within 
300 days after their claim accrued. 42 U.S.C. § 2000e- 
5(e)(1); Stepney v. Naperville School District 203, 392



3 a

F.3d 236 (7th Cir. 2004). They filed their charge on 
March 21, 1997, which was 420 days after the date on 
which notice of the results of the test had been sent 
them and probably 417 to 419 days after they received 
the notice. But it was within 300 days of the City’s 
beginning to hire applicants from the “well qualified” 
list, and the district judge ruled that the suit was 
therefore timely because each time the City hired 
applicants in the “well qualified” group as determined 
on the basis of the January 1996 test results it 
committed a fresh violation of Title VII that may have 
harmed “qualified” applicants.

The plaintiffs acknowledge that in a “disparate 
treatment” case, that is, a case of intentional 
discrimination, the charging period begins when the 
discriminatory decision is made, e.g., Ledbetter v. 
Goodyear Tire & Rubber Co, — U.S. —-, 127 S. Ct. 
2162, 2168, 2172 (2007); Lorance v. A T & T  Tech­
nologies, Inc., 490 U.S. 900, 910-11 (1989); Delaware 
State College v. Ricks, 449 U.S. 250 (1980); Huels v. 
Exxon Coal USA, Inc.,121 F.3d 1047, 1051 (7th Cir. 
1997); Cox u. City of Memphis, 230 F.3d 199, 204-05 
(6th Cir. 2000), rather than when it is executed. We 
have held that if the plaintiff does not learn of the 
decision until later, the limitations period begins to 
run then. Cada v. Baxter Healthcare Corp., 920 F.2d 
446, 450 (7th Cir. 1990); see also Oshiver v. Levin, 
Fishbein, Sedran & Berman, 38 F.3d 1380, 1385-86 
and n. 5 (3d Cir. 1994). But Hamilton v. 1st Source 
Bank, 928 F.2d 86, 87-88 (4th Cir. 1990) (en banc), is 
to the contrary, and the question was left open by the 
Supreme Court in Ledbetter v. Goodyear Tire & Rubber 
Co., supra, 127 S. Ct. at 2177 n. 10. It is of no moment 
in this case.



4 a

In the Ricks case a college denied a faculty member 
tenure but offered him a “terminal” one-year contract, 
which he accepted. The Supreme Court held that the 
statute of limitations began to run from the denial of 
tenure rather than from the plaintiff s termination at 
the end of the one-year period, since that termination 
was the automatic consequence of the fact that he had 
only a one-year contract, rather than being the 
consequence of some fresh act of discrimination. It is 
the same here. The hiring only of applicants classified 
“well qualified” was the automatic consequence of the 
test scores rather than the product of a fresh act of 
discrimination.

The plaintiffs do not quarrel with the proposition 
that “well qualified” applicants should be hired ahead 
of those who are merely “qualified.” They argue that 
the test that sorted applicants into those categories 
was discriminatory. That discrimination was complete 
when the tests were scored and, especially in light of 
the mayor’s public comment about them, was 
discovered when the applicants learned the results. It’s 
not as if the City had divided applicants into “a white 
branch” and “a Negro branch” and fixed a higher 
qualifying score for the latter; for then a refusal to hire 
a black who scored higher than a white but below the 
qualifying score for blacks would be an unmediated act 
of discrimination. See Bazemore v. Friday, 478 U.S. 
385 (1986) (per curiam); Anderson v. Zubieta, 180 F.3d 
329, 335-36 (D.C. Cir. 1999); Brinkley-Obu v. Hughes 
Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994). The 
refusal to hire would not be due, even in the first 
instance, to the policy of basing hiring on test scores, 
since, by hypothesis, some blacks would have had 
higher scores than some whites yet, purely because of



5a

the racial division, would not have been hired. This 
case is different because “well qualified” is not a racial 
category, though its racial composition may have been 
influenced by a discriminatory decision taken earlier.

In Beavers u. American Cast Iron Pipe Co., 975 F,2d 
792, 796-800 (11th Cir. 1992), on which the plaintiffs 
heavily rely, the employer limited insurance coverage 
to employees’ children who lived with their employee 
parent, and the charge was that this discriminated 
against male employees. The plaintiffs sued long after 
the policy was adopted but within 180 days (the 
limitations period applicable to them) of the denial of 
their claim for dependent coverage, and this was held 
to be timely because the allegedly discriminatory 
policy was the sole cause of the denial; there was no 
intervening neutral act, as in this case.

The distinction is a fine one (and it is arguable on 
which side of it the facts of Beavers fell) but it is the 
distinction that the Supreme Court has drawn. The 
plaintiffs argue that it does not apply to a disparate- 
impact case, but we cannot think why not. The 
difference between the two types of discrimination case 
is not fundamental. Disparate-impact analysis, much 
like the McDonnell Douglas method of establishing a 
prima facie case, involves the use of circumstantial 
evidence to create an inference of discrimination. “The 
concept of disparate impact was developed for the 
purpose of identifying discriminatory situations where, 
through inertia or insensitivity, companies were 
following policies that gratuitously—needlessly— 
although not necessarily deliberately, excluded black 
or female workers from equal employment 
opportunities. Often these were policies that had been 
adopted originally for discriminatory reasons and had



6 a

not been changed when the employer ceased 
deliberately discriminating—if he had; for another way 
of looking at the disparate impact approach is that it is 
primarily intended to lighten the plaintiffs heavy 
burden of proving intentional discrimination after 
employers learned to cover their tracks.” Finnegan v. 
Trans World Airlines, Inc., 967 F.2d 1161, 1164 (7th 
Cir. 1992) (citations omitted). So if a test or other 
method of screening applicants for employment bears 
more heavily on one protected group than on another, 
the burden shifts to the employer to show that the 
method is a rational method of selecting employees. 42 
U.S.C. § 2000e-2(k); see A llen  v. City o f  Chicago, 351 
F.3d 306, 311-12 (7th Cir. 2003); El v. Southeastern  
Pennsylvania Transportation Authority, 479 F.3d 232, 
240-41 (3d Cir. 2007); M eacham  v. Knolls Atom ic 
Power Laboratory, 461 F.3d 134, 139 (2d Cir. 2006). If 
he cannot show this, his continuing to use the test 
suggests that his purpose in doing so may be 
discriminatory, although that need not be shown.

Why any of this should change the date on which 
the statute of limitations begins to run escapes us; and 
years ago, in Davidson v. Board o f Governors, 920 F.2d 
441, 445 (7th Cir. 1990), we held that it does not. An 
applicant who fails to meet the employer’s standard is 
hurt not by a fresh act of discrimination, but as the 
automatic consequence of an earlier one—the adoption 
of the standard. See also Cox v. City o f  Memphis, 
supra, 230 F.3d at 204-05; Bronze Shields, Inc. v. New  
Jersey Departm ent o f  Civil Service, 667 F.2d 1074, 
1083-84 (3d Cir. 1981).

The Ninth Circuit reached a contrary result in 
Boum an v. Block, 940 F.2d 1211, 1221 (9th Cir. 1991), 
but did so on the mistaken premise that until the



7 a

plaintiff was not promoted she could not be “certain” 
that the use of the allegedly discriminatory eligibility 
list would have that consequence and until she was 
certain her claim would not accrue. As explained in 
Davidson, if a plaintiff cannot by exercise of 
reasonable diligence determine within the statutory 
period whether he has been injured by an unlawful 
practice, then even though his claim accrued when the 
practice was adopted the doctrine of equitable tolling 
will allow him to delay suing until he can collect the 
information he needs in order to be able to sue. 920 
F.3d at 445. (The plaintiffs in this case argue equitable 
tolling, but unavailingly as we shall see.) “ [W]hen 
there is only one wrongful act the claim accrues with 
the first injury.” Palm er v. Board o f  Education o f  
Community Unit School District 201-U, 46 F.3d 682, 
686 (7th Cir. 1995). The first injury in this case was 
the classification of the black applicants as merely 
“qualified” on the basis of a test that they contend was 
discriminatory.

The plaintiffs argue in the alternative that the 
City’s violation of Title VII was a “continuing 
violation.” The phrase does not mean what it seems to 
mean. Suppose that year after year for ten years your 
employer does not pay you the minimum wage. That is 
a continuing violation in an acceptable sense of the 
term in ordinary language, though “repetitive 
violation” would be more precise. But the recurrent 
nature of the defendant’s conduct would not entitle you 
to wait until year 15 (assuming the statute of 
limitations was five years) and then sue not only for 
the wages you should have received in year 10 but also 
for the wages you should have received in years 1 
through 9. The statute of limitations begins to run



8 a

upon injury (or discovery of the injury) and is not 
restarted by subsequent injuries. Knight v. Columbus, 
19 F.3d 579, 581 (11th Cir. 1994); Hendrix v. City o f  
Yazoo City, 911 F.2d 1102, 1103 (5th Cir. 1990); cf. 
Klehr v. A.O. Smith Corp., 521 U.S. 179, 190 (1997). 
That is the “first injury” rule.

The doctrine of continuing violation allows you to 
delay suing until a series of acts by a prospective 
defendant blossoms into a wrongful injury on which a 
suit can be based. Lim estone Developm ent Corp. v. 
Village o fL em ont, 520 F.3d 797, 801 (7th Cir. 2008); 
Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 
1011-12 (7th Cir. 2003); Huckabay v. Moore, 142 F.3d 
233, 239 (5th Cir. 1998); Glass v. Petro-Tex Chemical 
Corp., 757 F.2d 1554, 1561 (5th Cir. 1985). Despite its 
name, it is a doctrine about cumulative rather than 
continuing violation. A typical case is workplace 
harassment on grounds of sex. The first instance of a 
coworker’s offensive words or actions may be too trivial 
to amount to actionable harassment, but if they 
continue they may eventually amount to an actionable 
pattern of harassing behavior. And then the entire 
series is actionable. E.g., National Railroad Passenger 
Corp. v. M organ, 536 U.S. 101, 117 (2002); DeClue v. 
Central Illinois Light Co., 223 F.3d 434, 435 (7th Cir. 
2000); Galloway v. General M otors Service Parts 
Operations, 78 F.3d 1164,1166 (7th Cir. 1996); Jensen  
v. Henderson, 315 F.3d 854, 859 (8th Cir. 2002); Rush  
v. Scott Specialty Gases, Inc., 113 F.3d 476, 482 (3d 
Cir. 1997). If each harassing act had to be considered 
in isolation, there might be no actionable claim even 
when by virtue of the cumulative effect of the acts it 
was plain that the plaintiff had suffered unlawful 
harassment. There is nothing of that sort here. The



9a

plaintiffs were injured, and their claim accrued, when 
they were placed in the “qualified” category of the 
hiring list on the basis of their score in the firefighters’ 
test; for that categorization delayed indefinitely their 
being hired.

Extension of the “continuing violation” doctrine in 
the manner urged by the plaintiffs would have 
ludicrous consequences. The plaintiffs received 
notification of their “qualified” status in 1995; could 
they ten years later ask to be hired as firefighters and 
when turned down sue the City for violating Title VII 
because the reason for not hiring them was that were 
not in the “well qualified” part of the hiring list? The 
answer implied by the plaintiffs’ argument is “yes.”

The plaintiffs further argue that even if their claim 
accrued in January 1996, the running of the statute of 
limitations was tolled (stopped) because they could not 
determine within 300 days whether they had a case. 
The City claimed that its hiring test had been 
validated by an expert, but it was slow to produce the 
expert report for the plaintiffs to scrutinize.

The doctrine of equitable tolling allows a plaintiff 
additional time within which to sue (or meet some 
other deadline) if even diligent efforts on his part 
would not have enabled him to prepare and file his 
suit within the statutory period. E.g., Beam on v. 
M arshall & Ilsley Trust Co., 411 F.3d 854, 860-61 (7th 
Cir. 2005); Cada v. Baxter Healthcare Corp., supra, 
920 F.2d at 451; Chung v. United States Department o f  
Justice, 333 F.3d 273, 278-80 (D.C. Cir. 2003); EEOC  
v. K entucky State Police Department, 80 F.3d 1086, 
1096 (6th Cir. 1996). The question is whether the 
plaintiffs in this case knew enough within 300 days of



1 0 a

the announcement of the test results to file a charge 
with the EEOC. The deadline is short, but a charging 
party is not required to conduct a precomplaint 
investigation, Ccidci v. Baxter Healthcare Corp., supra, 
920 F.2d at 452, as he would have to do if he were 
filing a suit. To impose such a requirement would 
frustrate a remedial scheme in which laypersons, 
rather than lawyers, are expected to initiate the 
process.” Edelm an v. Lynchburg College, 535 U.S. 106, 
115 (2002), quoting EEO C v. Comm ercial Office 
Products Co., 486 U.S. 107, 124 (1988). The EEOC is 
supposed to do the investigating. EEO C v. Shell Oil 
Co., 466 U.S. 54, 68 (1984).

And even a precomplaint investigation need not 
inquire into possible defenses, such as the defense that 
an employment requirement having a discriminatory 
impact is a bona fide qualification for hiring. To file a 
suit, you need only have a prima facie case; you are not 
required to plead the nonapplicability of possible 
defenses. Gomez v. Toledo, 446 U.S. 635, 640 (1980). 
Complaints need not contain any information about 

defenses and may not be dismissed for that omission.” 
Xechem, Inc. v. Bristol-M yers Squibb Co., 372 F.3d 
899, 901 (7th Cir. 2004) (emphasis in original). See 
also Oakes v. United States, 400 F.3d 92, 98 (1st Cir. 
2005). The information bearing on the existence of a 
meritorious defense is likely to be in the defendant’s 
possession, or at least more readily accessible to him 
than to the plaintiff; relative access is one of the 
criteria for parceling out issues between the plaintiffs 
case and the defendant’s case. Moreover, precomplaint 
investigation of possible defenses would often be to a 
great degree wasted motion, because a plaintiff cannot 
be certain which defenses the defendant will plead,



1 1 a

and so he would end up investigating some defenses 
that turned out not to be pleaded.

The plaintiffs’ lawyer admitted at argument, 
moreover, that his reason for not filing the charge 
within 300 days was not that he needed more time to 
be able to file such a charge but that he didn’t think it 
necessary because he thought that the statute of 
limitations would not begin to run until the City began 
hiring applicants from the “well qualified” category on 
the list. That was a fatal mistake.

The judgment is reversed with directions to enter 
judgment for the defendant.

R eversed.



1 2 a

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

ARTHUR L. LEWIS, JR., et al., 
Plaintiffs,

v.
CITY OF CHICAGO,

Defendant.

Judge Joan B. Gottschall 
Case No. 98 C 5596 

Entered Mar. 24, 2005

MEMORANDUM OPINION AND ORDER
Plaintiffs, the African-American Fire Fighters 

League of Chicago (the “League”) and a class of 
African-Americans who applied for entry-level 
firefighter jobs with the Chicago Fire Department 
(“CFD”) and who scored between 65 and 88 on an 
entrance exam administered to firefighter candidates 
in 1995 (the “1995 Test”) by defendant City of Chicago 
(“City”), have sued the City alleging violations of Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, 
et seq. Specifically, plaintiffs argue that the City’s 
decision to select only those firefighter applicants who 
scored at least 89 points on the 1995 Test had an 
unjustified adverse impact on African-American 
applicants. 42 U.S.C. § 2000e-2(k)(l)(A)(i). The City 
concedes that its hiring procedure had an adverse



13a

impact on African-American applicants, but argues 
that: (1) the 1995 Test validly measured some of the 
cognitive skills necessary to training and for 
performing the job of firefighter; and (2) the City’s 
decision to set a cut-off score of 89 was justified by 
administrative convenience in that the City wanted to 
limit the number of applicants that it accepted for 
further evaluation.

The court conducted an eight-day bench trial on 
plaintiffs’ claims in January 2004. The parties 
submitted post-trial findings of fact and conclusions of 
law, post-trial motions for ruling on unresolved 
motions in limine and evidentiary objections, motions 
related to the issue of the League’s standing to join 
plaintiffs’ class claims against the City, and 
supplemental authority related to the court’s May 25, 
2000 ruling denying the City’s motion for summary 
judgment on grounds of untimeliness. These matters 
were fully briefed before the court as of August 2, 
2004.

For the reasons that follow, the court rules in favor 
of plaintiffs on the liability aspects of their 
discrimination claim against the City. The court finds 
that the City has not carried its burden of proof in this 
case; it has not proven that its decision to hire only 
those applicants who scored 89 and above on the 1995 
Test was consistent with business necessity. To the 
contrary, the evidence at trial demonstrated that: (a) 
the 1995 Test may not be a reliable measure of the 
four cognitive abilities it was intended to measure; (b) 
the 89 cut-off score was a statistically meaningless 
benchmark; (c) even if the 1995 Test could reliably 
measure what it was supposed to measure, it could not 
distinguish between those who were qualified for the



14a

position of CFD firefighter and those who were not; 
and (d) less discriminatory, and equally convenient, 
selection strategies were available. In short, the City 
has not proven that its discriminatory selection 
process was justified. The court, therefore, finds the 
City’s selection procedure unlawful under Title VII.

B a c k g r o u n d 1

The City’s Hiring Procedure
Since 1996 and through the present, the City has 

relied on test scores from a written exam given in 1995 
as the primary basis for selecting entry-level 
firefighters. On July 26 and 27, 1995, the City 
administered the exam to approximately 26,000 people 
who satisfied the minimum registration requirements 
of: (1) being at least 18 years old; (2) living in the City 
of Chicago; and (3) holding a high school degree or its 
equivalent. After scoring the exam, the City decided 
that, with exceptions for military veterans and certain 
paramedics, only applicants with scores of 89 and 
higher—out of a possible 100 points—would be eligible

1 Plaintiffs have moved to admit into evidence several 
exhibits (PI. Exs. 16,18, 37-39, 42, 43-49, 50, and 55-61) that were 
introduced at trial over the City’s objection. The City continues to 
object to the admission of this evidence, primarily on the grounds 
of unfair prejudice. Fed. R. Evid. 403. In the context of a bench 
trial, however, Rule 403 objections have no logical application and 
are routinely overruled. As this case was not tried before a jury, 
the court fails to understand how the City will be prejudiced by 
the court’s consideration of any and all material introduced during 
the bench trial. To the extent the material was relevant and 
probative of plaintiffs’ case or the City’s defense, the court has so 
considered it, and to the extent the evidence was irrelevant or 
unfairly prejudicial, the court has disregarded it. Plaintiffs’ 
motion for the admission of evidence is granted.



15a

to proceed to the next phase of the hiring process, a 
physical abilities test. Applicants who passed the 
physical abilities test were subject to a background 
investigation, and those passing the background check 
were given a medical exam and a drug test. Once an 
applicant passed all of the City’s preliminary tests, he 
or she was hired as a candidate firefighter. To become 
a full firefighter with the CFD, candidates were 
required to complete the Chicago Fire Academy’s (the 
“Academy’s”) training program and to pass the Illinois 
board certification exam.

It is undisputed that the City’s decision to set the 
cut-off score for the 1995 Test at 89 points had a severe 
disparate impact on African-American applicants. Of 
the 26,000 applicants taking the exam, 11,649 (45% of 
test takers) were white and 9,497 (37%) were African- 
American. It is undisputed that there is no difference 
between whites and African-Americans in firefighter 
performance. However, there were pronounced group 
differences in performance on the 1995 Test: the 
difference between the mean score of whites and the 
mean score of African-Americans on the 1995 Test was 
almost a full standard deviation.2 The disparate 
impact of the 1995 Test was heightened by the City’s 
use of the 89 cut-off score. Approximately 12.6% of 
whites compared to 2.2% of African-Americans scored 
89 or above. In other words, the City’s decision to 
select only those applicants who scored 89 and above 
meant that white applicants were five times more 
likely than African-Americans to advance to the next

2 A standard deviation is a statistical measure of the dis­
persion of results from the mean. The standard deviation tells us 
how far a typical member of a population is from the average 
member of that population.



16a

stage of the hiring process.
From 1996 to 2001, the City advanced applicants 

for entry-level firefighter positions from the “well- 
qualified” pool (those who scored 89 and above on the 
1995 Test). The City made a few exceptions to the 89 
cut-off score: from 1996 to 2001, the City hired 
approximately 182 paramedics and 325 military 
veterans with scores between 65 and 88. The City 
considered those paramedics and veterans qualified for 
the position of probationary firefighter despite their 
lower scores on the 1995 Test. By the summer of 2001, 
the City had run out of candidates from the “well- 
qualified” pool and decided to begin processing 
applicants at random from the “qualified” pool (those 
scoring between 65 and 88). Most of the 100 cadets 
entering the Academy in the fall of 2002 received a 
score between 65 and 88. That class graduated from 
the Academy at the end of April 2003. There is no 
evidence that those firefighters from the Academy 
class of 2003 are any less qualified, in any respect, 
than those hired with test scores of 89 or above. 
Moreover, virtually all candidates who have entered 
the Academy -  regardless of test performance -  have 
successfully completed their training and passed the 
state certification examination.
The Development o f  the 1995 Test

The City devoted considerable resources to creating 
the 1995 Test. The City hired the consulting firm 
Human Performance Systems, Inc. (“HPSI”), and Dr. 
James Outtz, an industrial organizational psychologist 
with extensive experience designing and evaluating 
entrance tests, to develop its firefighter exam. The 
1995 Test was constructed using a “content-oriented”



17a

test validation strategy, which measures whether the 
content of the test reflects important aspects of 
performance on the job for which the candidates are 
being evaluated. The City chose not to pursue a 
“criterion-related” validation strategy, which uses 
empirical data to show that the test can predict (or at 
least correlates to) the test taker’s ability to perform 
the job. The City avoided the “criterion-related” 
approach because it did not have the data required to 
link test performance to job performance: the City had 
security concerns about giving the test to incumbent 
firefighters, and the CFD does not conduct formal 
evaluations of firefighter performance.

The City’s “content-based” job analysis aimed to: (1) 
identify the tasks performed by firefighters on the job; 
(2) identify the knowledges, skills, and abilities 
required to perform the tasks effectively; (3) eliminate 
from consideration for testing those tasks that were 
unimportant or done infrequently and those abilities 
that were not “needed day one” ( i.e., prior to training); 
and (4) link the remaining knowledges, skills, and 
abilities to tasks that require them. Those knowledges, 
skills, and abilities that survived the job analysis 
procedures were termed “critical” or “essential.” The 
job analysis for Chicago firefighter proceeded in three 
broad phases: (a) a “job inventory,” which identified 
the tasks and abilities required to perform the job; (b) 
a “job analysis questionnaire” to collect ratings from 
incumbent firefighters of the job tasks, knowledges, 
skills, and abilities identified by the job inventory; and 
(c) a “linkage questionnaire” which required incumbent 
firefighters to link important knowledges, skills, and 
abilities identified from the job analysis questionnaire 
to “task groups” comprising the firefighter job.



18a

The job analysis conducted by Dr. Outtz and HPSI 
yielded a list of 46 skills deemed critical to the job of 
Chicago firefighter. Of these 46, 18 were deemed 
“essential” and “needed day one,” meaning they were 
required of firefighter candidates before training at the 
Academy. Of those 18 “needed day one” abilities, Dr. 
Outtz and HPSI determined that 8 were physical 
skills, 3 were essentially untestable because of their 
intangible qualities, and 7 were “cognitive” skills 
appropriate for testing on a written exam. Of those 7 
cognitive abilities, 4 were tested by the 1995 exam: (1) 
the ability to comprehend written information; (2) the 
ability to understand oral instructions; (3) the ability 
to take notes; and (4) the ability to learn from or 
understand based on demonstration.

The 1995 Test had two parts, a multiple choice 
“pencil and paper” section and a video demonstration 
section. The written portion of the exam was designed 
to measure an applicant’s ability to comprehend 
written information. The 1995 Test was written at a 
twelfth-grade reading level, which approximated the 
reading level of the materials used at the Academy and 
written CFD policies and procedures. The video 
portion of the exam was designed to measure an 
applicant’s ability to understand oral instructions, 
ability to take notes, and ability to learn from or 
understand based on demonstration. The subject of the 
video was a fictitious mechanical device called a “fuel 
converter system.” Applicants were first shown the 
device and its components on the video screen, along 
with a “trainer” and “trainee” using the device, while 
an off-camera narrator explained its operation. 
Applicants were then asked questions about the device 
based on the information that had just been shown on



19a

the video. Prior to taking the exam, applicants were 
given reference booklets that contained the written 
material upon which the test questions would be based 
and a description of the fictitious device that would be 
the subject of the video component. Applicants were 
permitted to refer to these materials during the exam.
The Scoring Of The 1995 Test And The City’s 
Selection o f Candidates

Raw scores on the written and video components of 
the 1995 Test were: (1) corrected according to standard 
statistical methods; (2) weighted at 15% and 85%, 
respectively, to reflect the importance of the cognitive 
abilities being tested in each section; and (3) converted 
to a 100-point scale. The distribution of scores ranged 
from a low score of 12 points to a high score of 98 
points with an average score of 75. The City set the 
passing score for the exam at 65, which was one full 
standard deviation below the mean. The City concedes 
that every applicant scoring 65 and higher on the 1995 
Test possessed the minimum level of cognitive ability 
to master the Academy curriculum and perform the job 
of firefighter. Out of approximately 26,000 people 
taking the exam, 93.45% of whites and 72 .3% of 
African-Americans “passed” with a score of at least 65 
points and were thus considered “qualified” to advance 
in the hiring process.

With the results of the 1995 Test in hand, the City’s 
Deputy Commissioner of Personnel, Robert Joyce, set a 
cut-off score of 89, selecting only those applicants who 
scored at least 89 points for further evaluation. That 
decision had a profound effect on the racial makeup of 
the candidate pool. The so-called “highly qualified” 
pool—those who scored 89 and above—from which the



2 0 a

City hired all of its entry-level firefighters from 1996 
to 2001, was comprised of approximately 5.4 times 
more whites than African-Americans. By contrast, the 
“qualified” pool of applicants—those who passed the 
1995 Test by scoring a 65 or above—was comprised of 
only 1.3 times more whites than African-Americans. In 
arriving at the cut score of 89, Joyce testified that the 
City considered: (1) the hiring needs of the CFD during 
the three to five years the City planned to rely on the 
results of the 1995 Test; (2) the fairness to applicants 
of identifying several thousand applicants as 
“qualified” for further processing when only several 
hundred of them would ever be hired; and (3) the 
adverse impact of setting the cut score at various 
points higher than the passing score of 65. Joyce also 
stated that he assumed, based on Dr. Outtz’s analysis 
of the test scores, that the 1995 Test was valid, 
meaning “you can make some inferences from [the 
test] scores. The higher scores—in a very general way, 
higher scores are more predictive of success than lower 
scores.”

However, Joyce’s assumption was not correct and 
his decision to set the cut-off score at 89 did not 
account for the statistical properties of the 1995 Test. 
Dr. Outtz testified that, based on his statistical 
analysis of the 1995 Test, he initially recommended 
that the City set the cut-off score by counting down 
from the top score of 98 in 13-point increments. He 
arrived at his 13-point band by calculating the 
“standard error of the difference,” an index measuring 
the extent to which a difference in scores is 
statistically significant or due to chance, based on the 
internal “reliability’ of the 1995 Test. The reliability of 
a test refers to the extent to which scores are free from



2 1 a

random error, i.e., the extent to which retesting of a 
given applicant is expected to yield a consistent result. 
Since retesting was not an available option, Dr. Outtz 
instead calculated reliability by comparing the 
consistency of answers given to different questions on 
the 1995 Test by the individual applicants who took it. 
By Dr. Outtz’s calculations, the 1995 Test had a 
reliability coefficient of .77, meaning that approxi­
mately 23% of the variance in individual scores was 
due to random error.

Based on that calculation, Dr. Outtz determined 
that there is no statistical difference between any two 
scores from the 1995 Test that are within 13-points of 
each other, i.e., a score of 98 cannot be meaningfully 
distinguished from a score of 85. Given the statistical 
properties of the 1995 Test, Dr. Outtz concluded that 
there was a “psychometric basis”—a basis rooted in 
cognitive analysis—for setting the cut score using that 
13-point band. As he explained, “[T]here is a 
psychometric basis for saying, for reaching the 
inference that the people who are within the band that 
I had determined . . . have more of the abilities 
measured by the test than people outside the band.”3 
Dr. Outtz also testified, however, that there was no 
psychometric basis for setting the cut score at any 
point within the 13-point band. In other words, in Dr. 
Outtz’s opinion, a score of 89 could not be statistically

3 For example, according to Dr. Outtz’s testimony, a cut-off 
score of 85 would be somewhat defensible as it would “capture” all 
of the scores that are indistinguishable from the top score of 98. 
Although there would be no way to differentiate candidates within 
the 13-point range, there would be a basis for claiming that an 
individual who scored 98 has greater tested skills than an 
individual who scored 84.



2 2 a

distinguished from a score of 87 or 88, two lower scores 
within the 13-point range below the top score of 98. 
Because the standard error of the difference was so 
large, Dr. Outtz discussed with the City the possibility 
of randomly selecting candidates from the pool of 
applicants who passed the 1995 Test with a score of 
65.

Despite Dr. Outtz’s conclusion that the 1995 Test 
could not distinguish between scores within 13 points 
of each other, the City decided to set the cut score at 
89, only 11 points below the highest score. Joyce 
testified that he made the decision to hire only those 
applicants scoring 89 and above: (a) against Dr. 
Outtz’s recommendation: and (b) with full awareness 
of the 1995 Test’s disparate impact on African- 
Americans generally, and of the even greater disparate 
impact on African-Americans caused by setting the cut 
score at 89. Joyce testified that he set the cut-off score 
at 89 because it was the most administratively 
convenient way to trim the list of potential applicants 
to a manageable number while still fulfilling the hiring 
needs of the CFD.

Approximately six months after the 1995 Test was 
given, the City sent all applicants notices of their final 
scores. The City grouped the scores into three 
categories: applicants who scored 89 and above were 
considered “well qualified” and were eligible to 
advance in the hiring process; applicants who scored 
between 65 and 88 were considered “qualified”; and 
applicants who scored below 65 failed the examination. 
Applicants in the “qualified” pool—the plaintiff class in 
this case—were informed that, due to the large 
number of applicants who received higher scores, and 
based on the hiring needs of the CFD, it was not likely



2 3 a

that they would be called for further processing. 
However, the “qualified” pool was also told that 
“because it is not possible at this time to predict how 
many applicants will be hired in the next few years, 
your name will be kept on the eligible list maintained 
by the Department of Personnel for as long as that list 
is used.”

On the same day that the City mailed the notice of 
scores to applicants, the City issued a press release 
detailing the results of the exam, including its 
disparate impact on minority applicants. Represen­
tatives from the League and a number of class 
plaintiffs met with counsel to discuss the legal 
implications of the 1995 Test. During the following 
year, plaintiffs’ counsel obtained technical information 
from the City regarding the test’s development and 
validation, which plaintiffs’ experts reviewed. Based 
on the results of this analysis, several plaintiffs filed 
charges of discrimination with the EEOC. Plaintiffs 
then filed this lawsuit in September of 1998, seeking 
damages under Title VII for the City’s unlawful use of 
the 1995 Test in its firefighter hiring practices.

A nalysis
I. Pre-Trial Motions

Before turning to the merits of plaintiffs’ Title VII 
claim, the court will briefly address two preliminary 
matters.

First, the City has challenged the standing of the 
League as a plaintiff, arguing that the League: (a) is 
not a proper plaintiff under Title VII; and (b) does not 
otherwise meet the constitutional requirements for 
standing: injury in fact, causation, or redressability. 
See Lujan v. Defenders of Wildlife, 504 U.S. 565, 560-



24a

61 (1992). The court disagrees. It is undisputed that 
the League is a non-profit organization made up of 
African-American firefighters, which, among other 
activities, seeks to recruit additional African- 
Americans to the CFD, increase African-American 
representation in the CFD, train African-American 
members of the CFD for promotional exams, and fight 
racism within the CFD. The disparate impact of the 
1995 Test on African-American firefighter candidates 
has caused the League to suffer a concrete injury: 
decreased membership as a result of fewer African- 
Americans being hired for the position of firefighter. 
Additionally, the remedies available to the class 
plaintiffs under Title VII, particularly a hiring remedy, 
will likely redress the League’s injury because more 
African-American firefighters means more potential 
members for the League. Moreover, because one of the 
primary aims of the League is to combat 
discrimination against African-Americans in the CFD, 
prevailing in this action will further the mission of the 
League. The type of injury suffered by the League and 
its likelihood of redress if it prevails is sufficient to 
justify the League’s standing as a plaintiff in this case.

Second, plaintiffs have renewed their motion for 
judicial estoppel which was denied by the court 
without prejudice prior to trial.4 Plaintiffs argue that 
the City should be judicially estopped from seeking to

4 At the time the court denied plaintiffs’ motion, it did not 
have the benefit of hearing the parties’ theories of the case or their 
evidence in support, and did not believe it was in a position to rule 
on plaintiffs’ motion. Now, of course, the court is well aware of the 
City’s defense to plaintiffs’ claims and can properly evaluate 
whether the City should be estopped from seeking to establish 
facts that appear contrary to those relied on in Horan.



25a

establish facts regarding the 1995 Test which are 
contrary to factual positions upon which the City 
prevailed in another case involving that test, Horan v. 
City of Chicago, No. 98 C 2850, 2003 U.S. Dist. LEXIS 
17173 (N.D. 111. Sept. 30, 2003).

In Horan, white incumbent firefighters challenged 
a series of CFD affirmative action personnel decisions 
made by the City. As here, the parties’ positions in 
Horan focused, in part, on their characterization of the 
results of the 1995 Test. In challenging the affirmative 
action decisions of the City, the Horan plaintiffs 
attempted to prove “that the 1995 entrance 
examination was content valid” and that firefighters 
with scores of 89 and higher on the 1995 entrance 
examination were better qualified than those with 
lower passing scores. Horan, 2003 U.S. Dist. LEXIS 
17173, at *185. During the bench trial and in its 
proposed findings of fact submitted after trial, the City 
contested that argument and took positions that 
appear to question the validity of the 1995 Test and, 
therefore, ostensibly undermine positions taken by the 
City in this case.

The City’s defense in Horan was that the 1995 Test 
could not predict overall firefighter performance. The 
City argued that the job of firefighter depended on 
proficiency in a number of physical, psychological, 
emotional, and cognitive skills and abilities, and that 
the 1995 Test, itself a measure of only a narrow set of 
cognitive abilities, could not predict on-the-job 
performance. In so arguing, the City took factual 
positions that, at least in some respects, are 
inconsistent with positions it has advanced in this 
case. For example, whereas the City now claims that 
the 1995 Test is a valid predictor of at least some



2 6 a

aspects of firefighter performance or trainability, the 
City in Horan asserted that there was no evidence that 
those applicants who scored 89 and above on the 1995 
Test were any better qualified to perform the job of 
firefighter than individuals who obtained a score 
between 65 and 88. Moreover, whereas the City now 
claims that success on the 1995 Test is an indicator of 
overall cognitive ability, the City in Horan argued that 
there are numerous cognitive abilities required by the 
firefighter position that are not measured by the 1995 
Test.

Plaintiffs in this case argue that the City ought to 
be estopped from switching tack from their prevailing 
position in Horan. “When a party assumes a certain 
position in a legal proceeding, and succeeds in 
maintaining that position, he may not thereafter, 
simply because his interests have changed, assume a 
contrary position.” New Hampshire v. Maine, 532 U.S. 
742, 749-51 (2001). “The purpose of the doctrine . . .  is 
to reduce fraud in the legal process by forcing a 
modicum of consistency on a repeating litigant.” Ladd 
v. ITTCorp.,148 F.3d 753, 756 (7th Cir. 1998). In other 
words, “a party who prevails on one ground in a 
lawsuit cannot turn around and in another lawsuit 
repudiate the ground. If repudiation were permitted, 
the incentive to commit perjury and engage in other 
litigation fraud would be greater. A party envisaging a 
succession of suits in which a change in position would 
be advantageous would have an incentive to falsify the 
evidence in one of the cases, since it would be difficult 
otherwise to maintain inconsistent positions.” 
McNamara v. City of Chicago, 138 F.3d 1219, 1225 
(7th Cir. 1998) (citations omitted).

Although it is a close question, after hearing the



2 7 a

City’s evidence in this case and comparing it to the 
City’s prevailing positions in Horan, this court 
concludes that judicial estoppel is not applicable. Here, 
the City does not argue (or at least has not attempted 
to prove) that the 1995 Test accurately predicts overall 
job performance. Rather, the City’s position appears to 
be that the 1995 Test predicts performance on a few of 
the cognitive aspects of the job related to “trainability.” 
As discussed below, that position is not adequately 
supported and, in any event, is contrary to the City’s 
obligations under Title VII. However, the court will not 
go so far as to hold the City estopped from espousing 
this argument. While the City’s position in Horan may 
severely undermine its defenses in the instant case, its 
position is sufficiently different from its position in 
Horan to avoid estoppel.

That said, the court agrees with plaintiffs that 
factual assertions made by the City to the court in 
Horan, to the extent they are relevant in this case, are 
admissible as party admissions under Fed. R. Evid. 
801(d)(2). Thus, the court admits into evidence 
Plaintiffs’ Exhibit 61, which contains numerous 
proposed findings of fact submitted by the City after 
its trial in Horan. As discussed below, the admissions 
in Horan expose the weaknesses in the City’s defenses 
in this case.5

5 In addition to its other pre-trial motions, the City has filed 
a motion to introduce supplemental authority related to the 
timeliness of plaintiffs’ claims. The court has already granted that 
motion. However, to the extent the City’s additional motion also 
seeks reconsideration of the court’s order denying the City 
summary judgment on this issue, the motion is denied.



2 8 a

II. The Merits Of Plaintiffs’ Title VII Claim

The court now turns to the merits of plaintiffs’ 
discrimination claim. Title VII employs a burden- 
shifting approach for disparate impact claims, which 
requires plaintiffs to prove first that the challenged, 
facially-neutral employment practice had a disparate 
impact on a protected class of people. 42 U.S.C. 
§ 2000e-2(k)(l)(A)(i). In this case, the disparate impact 
of the 1995 Test is not in dispute; the parties have 
stipulated that the 1995 Test, used with a cut-off score 
set at 89, had a severe disparate impact on African- 
American firefighter candidates. Therefore, the burden 
of proof in this case shifts to the City to prove that its 
use of the 1995 Test was “job related for the position in 
question” and “consistent with business necessity.” 42 
U.S.C. § 2000e-2(k)(l)(A)(i). If the City justifies the 
adverse impact of the 1995 Test, the burden shifts 
back to plaintiffs to prove that a substantially equally 
valid, and less discriminatory alternative to the 
challenged practice was available but not employed 
42 U.S.C. § 2000e-2(k)(l)(A)(ii).

The 1991 Civil Rights Act defines the City’s burden 
of proof, codifying the concepts of job relatedness and 
business necessity “enunciated by the Supreme Court 
in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and 
in other Supreme Court decisions prior to Wards Cove 
Packing Co. v. Antonio, 490 U.S. 642 (1989).” Pub.L. 
102-166 § 3. The Seventh Circuit has clarified this 
standard, holding that “Griggs does not distinguish 
business necessity and job relatedness as two separate 
standards. It states that: ‘The touchstone is business 
necessity. If an employment practice which operates to 
exclude [a protected group] cannot be shown to be 
related to job performance, the practice is prohibited.’”



29a

Bew v. City of Chicago, 252 F.3d 891, 894 (7th Cir.
2001) (quoting Griggs, 401 U.S. at 431). In other 
words, an employment test shown to have a disparate 
impact is presumptively unlawful unless it “bear[s] a 
demonstrable relationship to successful performance of 
the jobs for which it was used.” Griggs, 401 U.S. at 
431.

To prevail in this case, therefore, the City must 
prove that its decision to hire only those applicants 
who scored 89 and above on the 1995 Test was 
“predictive of or significantly correlated with impor­
tant elements of work behavior which comprise or are 
relevant to the job or jobs for which candidates are 
being evaluated.” Albemarle Paper Co. v. Moody, 422 
U.S. 405, 431 (1975). The critical question here is not 
so much whether the 1995 Test actually measures 
skills that are part of the job of firefighter, but 
whether setting the cut-off score at 89 “properly 
discriminate [d] between those who can and cannot 
perform the job well.” Bew, 252 F.3d at 895; Allen v. 
City of Chicago, No. 98 C 7673, 2002 U.S. Dist. LEXIS 
18973, at *10 (N.D. 111. Sept. 30, 2002) (explaining that 
“[tjests are valid if, and only if, they predict 
performance”).

The court finds that, by that standard, the City has 
failed to prove that its use of the 1995 Test with a cut­
off score of 89 was justified by business necessity and, 
therefore, the City’s Title VII defense cannot succeed. 
The City’s “business necessity’ defense hinges on two 
central arguments: (1) that the 1995 Test is an 
effective measure of the applicants’ relative abilities as 
to four specific cognitive skills; and (2) an applicant’s 
performance on the 1995 Test, at least in some 
respects, can predict (or correlates to) that applicant’s



3 0 a

performance on certain aspects of the job of Chicago 
firefighter. As explained below, the City’s proof falls 
short on both arguments. The evidence at trial 
demonstrated that: (a) there are serious questions 
regarding whether the 1995 Test can reliably measure 
the four cognitive skills it was designed to measure; (b) 
the cut-off score of 89 is statistically meaningless in 
that it fails to distinguish between candidates based on 
their relative abilities; and (c) even assuming that the 
1995 Test reliably measures the skills it is supposed to 
measure (and that the 89 cut-off score is a meaningful 
benchmark), the City failed to prove that test results 
could be used to predict firefighter performance, i.e., 
that those who scored 89 or higher on the 1995 Test 
were more qualified for the job than those who scored 
between 65 and 89. In short, the court finds that the 
City has failed to prove that its selection process— 
which disproportionately excluded African-American 
applicants from the firefighter candidate pool—was 
justified by business necessity. Therefore, the court 
holds that selection procedure unlawful under Title 
VII.

A. The Ability Of The 1995 Test To Reliably 
Measure The Cognitive Skills That It Was 
Designed To Measure.

Before reaching the question whether the 1995 Test 
can accurately distinguish between those who can 
perform the job of firefighter and those who cannot, 
the court must address the threshold question whether 
the City has proven that the 1995 Test can reliably 
measure the four cognitive skills that it was designed 
to measure. After all, if the 1995 Test cannot even 
measure the cognitive skills in question, the City 
cannot reasonably claim that its reliance on the 1995



31a

Test was justified by business necessity. The court has 
serious concerns regarding the City’s proof on this 
threshold question.

The statistical reliability of the 1995 Test was 
established at trial; Dr. Outtz testified that 23% of the 
variance in an individual’s score could be blamed on 
random error. Although that figure indicates that the 
1995 Test is a relatively blunt instrument, the 1995 
Test’s reliability coefficient is within the acceptable 
range. However, the court’s concerns are more 
fundamental: regardless of the effect of random error, 
it is not clear that the 1995 Test measures what it is 
supposed to measure. Rather, the evidence at trial 
indicated that design flaws in the video portion of the 
1995 Test may have significantly affected the 1995 
Test’s ability to measure some of the cognitive skills at 
issue.

The video demonstration section was an entirely 
novel test, created in the hope that using an 
audiovisual component in the 1995 Test might 
minimize adverse impact. Like the rest of the 1995 
Test, the video portion had never been “piloted” in a 
practical setting before its debut, was never used prior 
to the 1995 Test and has not been used since. 
According to Dr. Outtz, the video section—which 
represented 85% of the applicant’s total score—was 
designed to measure three cognitive skills: an 
applicant’s ability to: (a) understand oral instructions; 
(b) take notes; and (c) learn from or understand based 
on demonstration. Those skills were not measured by 
any other portion of the 1995 Test. However, the 
evidence at trial demonstrated that, contrary to that 
design, the results of the video portion of the 1995 Test 
hinged almost entirely on a single skill—the candi­



3 2 a

date’s ability to take notes. Information in the video 
portion of the 1995 Test is complex, involves fictitious 
subject matter and is presented very quickly. Based on 
testimony from plaintiffs’ expert, Dr. Cranny, as well 
as the court’s own observation of the video 
demonstration, the court is persuaded that, aside from 
those test-takers blessed with a photographic memory, 
performance on the video portion of the 1995 Test 
depends on the applicant’s ability to take effective 
notes while not missing any of the information 
conveyed by the video. The video demonstration is 
chaotic and is 83 minutes long. The questions asked of 
candidates at the end of the demonstration require the 
candidates to recall specific facts from the 83 minute 
demonstration. If a candidate does not take volumi­
nous and accurate notes during those 83 minutes, that 
candidate will perform poorly on that section 
regardless of his or her other cognitive abilities.

That design flaw is compounded by the fact that, 
even according to the City’s own job analysis, the 
ability to take notes is not particularly important in 
performing the job of firefighter. The job analysis 
performed for the 1995 Test revealed that “note­
taking” was dead last among the 46 identified abilities 
required for the job of Chicago firefighter. In fact, two 
subsequent job analyses for the position of San 
Francisco firefighter, performed in 1996 and 2000, 
failed to identify “note-taking” as a skill required by 
the position at all.

In short, the evidence at trial reflected that, 
contrary to the intentions of the 1995 Test’s designers, 
the 1995 Test was skewed towards one of the least 
important aspects of the firefighter position at the 
expense of more important abilities. That fact



3 3 a

undermines the 1995 Test’s utility as a valid measure 
of candidates’ relative cognitive skills and, therefore, 
undermines the City’s defense in this case.

B. Inability Of The 89 Cut-Off Score To 
Distinguish Between Qualified And 
Unqualified Candidates.

As stated above, the keystone of the City’s 
“business necessity” defense in this context is whether 
the City’s selection strategy could distinguish between 
those qualified to be a firefighter and those who are 
not qualified for that position. However, the uncon­
tradicted evidence at trial established that, contrary to 
that standard, the City’s cut-off score of 89 could not— 
and was never intended to— make that distinction.

To survive a disparate impact challenge, “ [A] 
discriminatory cutoff score on an entry level 
employment examination must be shown to measure 
the minimum qualifications necessary for successful 
performance of the job in question.” Lanning v. 
Southeastern Pennsylvania Transp. Authority 
(SEPTA), 181 F.3d 478, 481 (3d Cir. 1999); United 
States v. Delaware, No. Civ. A. 01-020-KAJ, 2004 WL 
609331, at *24 (D. Del. Mar.22, 2004) (explaining that 
“minimum qualifications necessary” means “likely to 
be able to do the job”). As interpreted by the Seventh 
Circuit, this means that a cut score may satisfy the 
business necessity requirement if it is based on “a 
professional estimate of the requisite ability levels, or, 
at the very least by analyzing the test results to locate 
a logical break-point in the distribution of scores.” 
Gillespie v. Wisconsin, 771 F.2d 1035, 1045 (7th Cir. 
1985).6 The cut-off score of 89 in this case simply does

6 The EEOC’s Uniform Guidelines—which are “entitled to



34a

not satisfy those criteria.
In fact, the cut score of 89 was a statistically 

meaningless benchmark; it provided no information 
regarding the relative abilities of the test-takers. As 
explained above, supra, pp. 8-9, because of the 1995 
Test’s large margin of error, Dr. Outtz—the 1995 
Test’s creator and one of the City’s expert witnesses in 
this case—proposed scoring the 1995 Test using a 
sliding band of 13 points from the highest score of 98. 
Dr. Outtz made that proposal because he could not 
find any statistical difference between scores that are 
within 13 points of each other. Dr. Outtz testified that, 
because of the significant rate of error inherent in the 
1995 Test, a cut-off score of 89 had no psychometric 
basis, meaning, there was no basis for an inference 
that people who had a higher score within the 13-point 
band possessed more of the abilities measured by the 
1995 Test than people who scored at the lower end of 
that range. Dr. Outtz informed the City of the 
shortcomings of the 1995 Test, notifying the City of the 
1995 Test’s 13-point margin of error and warning that 
there was no statistical basis for setting the cut-off 
score within that 13-point band.

The evidence demonstrated that the City ignored 
Dr. Outtz’s counsel and set the cut score at 89 simply 
to limit the number of candidates selected for further 
processing. As the City admitted in Horan, the “cut 
score was not set by the City because it believed that

great deference” by the court, Albemarle, 422, U.S. at 431— 
provide that “where cut-off scores are used, they should normally 
be set so as to be reasonable and consistent with normal 
expectations of acceptable proficiency within the work force.” 29 
C.F.R. § 1607.5(H); Bew, 252 F.3d at 894 (using “the EEOC’s 
standard” to determine propriety of cut score in Title VII case).



35a

individuals who scored 89 or higher were the best 
qualified candidates for the job of firefighter.” Rather, 
the cut-score was established for “administrative 
convenience.”

Based on Dr. Outtz’s uncontroverted testimony 
about the statistical properties of the 1995 Test, the 
court finds that the City has not presented sufficient 
evidence to justify its admittedly discriminatory 
decision to set the cut score for the 1995 Test at 89 
points. The evidence in this case clearly showed that 
the City: (1) knew that a cut-off score of 89 would 
disproportionately exclude African-American appli­
cants from the candidate pool; and (2) knew that the 
cut-off score was a statistically useless method of 
evaluating candidates. However, ignoring the statis­
tical limitations of the 1995 Test, the City went ahead 
and applied the 89 cut-off score for reasons of 
“administrative convenience” even though less discri­
minatory, and equally convenient, selection methods 
were available and later employed (namely, selection 
of applicants at random from the pool of candidates 
who passed the 1995 Test). Those facts alone are fatal 
to the City’s defense in this case and lead the court to 
find that defendant’s selection methods are unlawful 
under Title VII.

C. Validity / Predictive Value Of The 1995 
Test.

Even assuming that the 1995 Test reliably 
measured the four cognitive abilities that it was 
designed to measure (and ignoring the fact that the 89 
cut-off score is statistically meaningless), the City’s 
‘business necessity” defense must fail because the City 
failed to prove that the 1995 Test, applied with a cut­
off score of 89, can meaningfully distinguish



3 6 a

candidates who are qualified to perform the job of 
firefighter from those who are not qualified for that 
position. As the City conceded in Horan, there “is no 
evidence to support a finding that the top seven (7) 
percent of the candidates on the written portion of the 
1995 entrance examination [ i.e., those who scored 89 
or above on the 1995 Test] are the most qualified 
candidates for the job or that they are better qualified 
than individuals who obtained a score between 88 and 
65 . . That admission accurately summarizes the 
fatal weakness of the City’s position in this case.

The ability of the 1995 Test to predict firefighter 
performance is key to the City’s Title VII defense. “The 
mere fact that a test ‘is representative of important 
aspects of performance on the job’ (as content validity 
requires) matters only because it is reasonable to 
suppose that such a test will usefully distinguish 
among candidates -  in other words, that using the test 
in selection will likely lead to a better performing 
workforce.” Allen, 2002 U.S. Dist. LEXIS 18973, at 
* 10.

The evidence in this case does not support such a 
supposition. As the City admitted in Horan, there is no 
evidence that candidates with a score of 89 and above 
are more qualified than those who passed the exam 
but fell short of the 89 cut score. The City has hired 
hundreds of paramedics and veterans who scored 
below an 89 on the 1995 Test. Moreover, most of the 
cadets who graduated from the Academy in 2003 
scored between a 65 and 88. The City has presented no 
evidence that those firefighters are any less qualified 
on any aspect of job performance than those who 
scored 89 or above on the exam. To the contrary, the 
City has admitted a lack of correlation between test



3 7 a

scores and job performance in the context of the 1995 
Test’s disparate impact on African-Americans; the City 
admitted in Horan that both the designer of the 1995 
Test, Dr. Outtz, and several of the CFD’s top officials 
concluded that “there are no measured differences in 
job performance between Blacks and whites in any 
rank in fire services despite measured differences on 
cognitive ability tests.”

Plaintiffs’ expert, Dr. Charles Cranny, convincingly 
articulated the City’s problem in statistical parlance, 
explaining that the predictive value of the 1995 Test 
cannot be determined because there is no “correlated 
known value.” Although the test scores are known, 
there is no actual evidence of a correlation between 
those test scores and job performance. According to Dr. 
Cranny, while the two variables could be plotted on a 
“scatter graph” and a regression line could be drawn to 
reflect a linear relationship between test scores and job 
performance, without evidence of a correlation 
between the two variables (called the correlation 
coefficient), the strength of the relationship between 
test scores and job performance cannot be determined.

The City has attempted to overcome the dearth of 
evidence in this case, and its fatal admissions in 
Horan, by arguing that: (1) even if the 1995 Test is not 
predictive of overall job performance, it is a valid 
measure of the “trainability” of cadets; and (2) while 
there is no data in this case linking test performance 
and job performance, the 1995 Test should 
nevertheless be found valid because there is always a 
strong correlation between the results of cognitive 
tests and subsequent job performance. The court is not 
convinced by either of the City’s arguments.



3 8 a

In support of its argument that the 1995 Test is a 
valid measure of the “trainability” of candidate 
firefighters, the City offered the testimony of Chicago 
Fire Chief and Assistant Director of Training, Steve 
Chikerotis. Chief Chikerotis testified that, in his 
opinion, the 2002 class of cadets who entered the 
Academy with scores between 65 and 88 performed 
less well on weekly pencil and paper quizzes and 
needed more remedial work than prior cadet classes 
who entered the Academy with scores of 89 and above. 
The Chiefs opinion on the relative “trainability” of 
cadets is based on his own observations of cadets 
training at the Academy.

The court finds that the City’s evidence is 
insufficient to establish a relationship between test 
performance and the “trainability” of cadets. At the 
outset, the 1995 Test was not designed to measure 
skills related to trainability. In identifying the skills 
required of a Chicago firefighter, the designers of the 
1995 Test focused exclusively on on-the-job 
observations. They did not conduct any observations of 
skills needed during training at the Academy. 
Moreover, while the court credits the testimony of 
Chief Chikerotis, the court finds that it is entitled to 
only modest weight. The court is uncomfortable relying 
on anecdotal evidence of training performance to prove 
an essential element of the City’s defense, especially 
when the observations at the core of that anecdotal 
testimony occurred in the late stages of this litigation. 
In addition, Chief Chikerotis’s testimony regarding 
cadets’ performance on written exams did not provide 
a comprehensive picture of the cadets’ training 
regimen. Chief Chikerotis made it clear that cadets are 
evaluated at the Academy on much more than their



3 9 a

performance on quizzes and tests. Among other 
criteria, cadets are evaluated on their ability to 
operate fire engines, to perform rescues from multiple 
story buildings and to work as a team. The Chief 
testified that these skills and many others are 
essential to the job of firefighter and that candidates 
who fail to master those skills, regardless of their 
ability on written tests, will not pass the Academy. 
Since the cadets’ scores on written tests do not reflect 
how well the cadets mastered the myriad other skills 
required to pass the Academy, those scores alone are 
not convincing proof of the candidates’ relative 
“trainability.”7

In addition to its use of anecdotal evidence of the 
relative trainability of firefighter candidates, the City 
argues that the 1995 Test is valid for the simple 
reason that cognitive tests, as a general rule, are 
predictive of job performance. In essence, the City 
argues that the problem identified by Dr. Cranny (the 
lack of any correlation coefficient specific to the 1995 
Test) can be overcome by borrowing correlation 
coefficients measured in other cognitive exams. The 
City’s expert, Dr. Campion, testified that, although 
there is no data that links performance on the 1995 
Test to job performance or “trainability,” the City can 
rely on the correlation coefficients measured in other 
cognitive tests and use them to validate the 1995 Test 
regardless of whether those other tests measured any 
of the four cognitive skills that the 1995 Test was

7 Chief Chikerotis also testified that the Academy switched 
its curriculum in the Fall of 2002. That switch in curriculum may 
well have accounted, albeit to some entirely unknowable degree, 
for some of the variance in performance to which the Chief 
testified.



4 0 a

designed to measure. Dr. Campion’s opinion is based 
on his review of 13 meta-analyses of general 
intelligence tests.8 His resulting conclusion is that 
“cognitive abilities tend to correlate” in that “you can 
have widely different kinds of abilities, but yet they 
will correlate amongst each other in a reasonably 
representative sample of people.” In other words, all 
cognitive tests are created equal and any well-designed 
cognitive test can be used to predict job performance.

While the court appreciates the value of meta­
analysis to the field of industrial and organizational 
psychology in general, the court is not persuaded by 
the City’s sweeping application of meta-analysis in this 
instance. Significantly, the City’s broad conclusion that 
“all cognitive abilities correlate” is strikingly different 
from its admissions in the Horan case, where the City 
emphasized that cognitive skills are varied and 
distinguishable and that the results—and conse­
quently the predictive value—of a cognitive test can 
vary depending on which skills are tested.9 The 
testimony of plaintiffs’ expert, Dr. Cranny, is 
consistent with the City’s position in Horan, and the 
court finds the City’s position in Horan, and not its 
argument here, more persuasive. Even accepting that 
there is some correlation between various tests of 
cognitive and mental abilities, that hardly establishes 
that those tests test substantially the same thing or 
are interchangeable.

8 A meta-analysis is a statistical analysis of the results of a 
collection of individual studies to integrate and summarize their 
results.

9 Defendant’s other expert, Dr. Outtz, was far more 
circumspect on this point than Dr. Campion, noting that cognitive 
abilities correlate only “for the most part” and sometimes do not.



41a

The 1995 Test was unique. It was designed to 
measure only four specific cognitive abilities and 
included a heavily-weighted video demonstration 
section that was never piloted and was never used 
before or since. As discussed above, the unique 
structure of the 1995 Test was far from perfect and 
may have interfered with the 1995 Test’s ability to 
measure some of the skills it was intended to measure. 
Yet, regardless of the 1995 Test’s unique design and 
evident flaws, the City would have the court import 
data from other cognitive tests based on the simple 
conclusion that “all cognitive abilities correlate.” The 
City asks the Court to reach this conclusion without 
evidence or analysis of whether the tests underlying 
the City’s conclusions are comparable to the 1995 Test. 
Given the unique character of the test at issue here, 
and the lack of evidence of the nature of the tests on 
which the meta-analytic studies discussed by Dr. 
Campion were based, the court rejects the City’s 
argument that those studies validate the 1995 Test.

D. Less Discriminatory Alternative.
The Court finds that the City did not carry its 

burden of proof in this case and, therefore, rules in 
favor of plaintiffs on their Title VII claim. However, 
even if the City had successfully proven that the 
disparate impact of its decisions was justified by 
business necessity—and thereby shifted the burden of 
proof back to plaintiffs—plaintiffs would still prevail in 
this case because the evidence clearly shows that an 
equally valid and less discriminatory alternative was 
available. See 42 U.S.C. § 2000e-2(k)(l)(A)(ii) (descri­
bing burden shifting standard).

Quite simply, the City could have done what it is 
doing now: it could have randomly selected candidates



42a

who passed the exam for further evaluation. Such an 
alternative would have been less discriminatory; 
although the 1995 Test would have had a disparate 
impact on African-American candidates regardless of 
the cut-off score, random selection of qualified 
candidates has indisputably lessened the disparate 
impact of the 1995 Test. Moreover, the new policy of 
random selection of qualified applicants is “equally 
valid” in that it is equally effective at serving the 
essential goal of the CFD, producing quality 
firefighters.10 There is no indication that the shift in 
selection procedures caused a drop-off in the quality of 
firefighters produced by the Academy. As the City 
candidly admitted in Horan, there is no evidence that 
firefighters who scored between 65 and 89 are any less 
qualified than candidates who scored 89 or above.

The court finds that, from 1995 to 2001, the City 
used a hiring procedure that had a disparate impact on 
African-American candidates even though an equally 
valid, and less discriminatory, option was available. 
For that reason—even if the City had proven that its 
practice was justified by business necessity—plaintiffs 
are entitled to a ruling in their favor on the liability 
aspects of their Title VII claims.

C o n c l u s io n

The City admits that its use of the 1995 firefighter 
examination with a cut score of 89 had a disparate

10 The new random selection policy also serves the City’s 
stated goal of “administrative convenience.” With random 
selection from the pool of qualified candidates, the City, without 
further deliberation or administrative action, can meet its hiring 
goals without clogging the process with an unmanageable number 
of candidates.



impact on African-American applicants, and has failed 
to prove that its hiring procedures were job-related 
and consistent with business necessity. The court 
therefore concludes that the City’s use of the 1995 Test 
with a cut-off score of 89 was a manifest violation of 
Title VII and enters judgment of liability against the 
City of Chicago and in favor of plaintiffs.

ENTER:

s/ Joan B. Gottschall 
United States District Judge

DATED: March 22, 2005



44a

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

ARTHUR L. LEWIS, JR.; GREGORY S. FOSTER, 
ARTHUR C. CHARLESTON, III; PAMELA B. 

ADAMS; WILLIAM R. MUZZALL; PHILIPPE H. 
VICTOR; CRAWFORD M. SMITH; ALDRON R. 

REED; and AFRICAN AMERICAN FIRE 
FIGHTERS LEAGUE OF CHICAGO, INC.; 

individually, and on behalf of all others similarly
situated,

Plaintiffs,
v.

CITY OF CHICAGO, 
Defendant.

No. 98 C 5596. 
Judge Joan B. Gottschall 
Docketed May 26, 2000

MEMORANDUM OPINION AND ORDER

Plaintiffs, several African-American applicants for 
positions as firefighters with the Chicago Fire 
Department, have brought suit on behalf of themselves 
and all other African-American firefighter applicants 
who took and passed the City of Chicago’s 1995 
written firefighter examination. Plaintiffs allege that 
the examination had a disparate impact on African-



45a

American applicants. Defendant, the City of Chicago, 
has moved for summary judgment, alleging that 
plaintiffs’ suit is time-barred because they failed to file 
the required discrimination charges with the Equal 
Employment Opportunity Commission (EEOC) within 
the limitations period. Resolution of the City’s motion 
turns on a single issue: Does the City’s ongoing 
reliance on a discriminatory examination’s results in 
making hiring decisions constitute a continuing 
violation of Title VII? Because the court believes that 
it does, the City’s motion for summary judgment is 
denied.

Background
On July 26 and 27, 1995, the Chicago Fire 

Department administered the written component of 
the 1995 firefighter entrance examination to 
applicants for firefighter positions with the 
Department. More than 26,000 applicants—including 
each of the named plaintiffs—took the July 1995 
written component.

In January 1996, the City sent “Firefighter 
Examination Final Score Notices” to all applicants, 
including the named plaintiffs. The City grouped the 
scores into categories: Applicants who scored at or 
above 89 on the examination were considered “well 
qualified” and were eligible to advance through the 
hiring process. Applicants who scored between 65 and 
88 were considered “qualified”; and applicants who 
scored below 65 failed the examination. Neither the 
“qualified” applicants or those who failed the 
examination continued in the hiring process, with two 
exceptions: certain incumbent paramedics who were 
eligible pursuant to a collective bargaining agreement 
and veterans.



4 6 a

The examination scores of the eight named 
plaintiffs ranged from 70 to 87. On January 26, 1996, 
the City sent plaintiffs written notifications of their 
examination results. The form notification letter 
advised plaintiffs that:

You have achieved a score o f ____ out of a
possible 100 on the written/video portion of 
Firefighter Examination # 39501. This means 
that you have been rated “Qualified” for the 
position of Firefighter. While this means you 
have passed the examination, you are not in 
the group of candidates who received a rating 
of “Well Qualified” on the examination. Due to 
the large number of candidates who received 
higher scores and were rated as “Well 
Qualified,” and based on the operational needs 
of the Chicago Fire Department, it is not likely 
that you will be called for further processing. 
However, because it is not possible at this time 
to predict how many applicants will be hired in 
the next few years, your name will be kept on 
the eligible list maintained by the Department 
of Personnel for as long as that list is used.
If you recently moved or are planning to move, 
or have changed your name, you must notify 
the City of Chicago Department of Personnel 
in writing . . . . Failure to notify the City of 
Chicago Department of Personnel may result 
in the removal of your name from the 
eligibility list.

. . . .  ALL FUTURE COMMUNICATIONS 
YOU RECEIVE WILL BE FROM THE 
CHICAGO FIRE DEPARTMENT -  PER­
SONNEL DIVISION AND THE CITY OF



4 7 a

CHICAGO DEPARTMENT OF PERSONNEL. 
KEEP THIS NOTICE FOR YOUR RECORDS!

(Exh. I to Pis.’ Resp. to Mtn. for Summ. J.)
The form notification letter that the City sent to 

candidates who had failed the written examination 
advised:

We regret to inform you that you did not 
achieve a passing score on Firefighter
Examination # 39501. Your score was _____
out of a possible 100, which is below 65, the 
passing score for the examination. As a result, 
you will no longer be considered for this 
position. . . . THIS IS THE LAST
COMMUNICATION YOU WILL RECEIVE 
REGARDING FIREFIGHTER EXAMINA­
TION #39501.

(Exh. J to Pis.’ Resp. to Mtn. for Summ. J.)
On January 26, 1996, Mayor Richard Daley 

announced the examination results in a news release. 
The release contained a breakdown of the examination 
results by race, national origin and sex. According to 
the release, the “well qualified” group was 75.8 percent 
white and 24.2 percent minority, of which 11.5 percent 
were African-American. (Exh. 1 to Def.’s Mtn. for 
Summ. J.) The release reported that “ [o]f the more 
than 26,000 people who took the test, 1782 (or 6.8 
percent) have been deemed ‘well-qualified’ and each 
will be contacted by the city, in random order, for the 
next round of tests.” ( Id.) In the release, the Mayor 
acknowledged his concern with the results, stating 
that “ [ajfter all our efforts to improve diversity, these 
test results are disappointing.” ( Id.)



48a

Chicago’s major newspapers, including the Chicago 
Sun-Times, Chicago Tribune, and Chicago Defender, 
reported the examination results and impact on 
minority applicants, as well as reaction and protests 
from applicants, firefighters, and members of the 
African-American community. Among these reports 
was a front-page article published by the Chicago Sun- 
Times on January 27, 1996 with the headline: “Fire, 
Police Exams Leave Racial Divide—Daley’s Decision 
Angers Whites, Minorities Alike.” (Exh. 2 to Def.’s 
Mtn. for Summ. J.) The article featured a graph titled 
“Fire Exam Finalists” that illustrated the racial 
breakdown in percentage terms of the exam takers and 
those in the “well qualified” category. ( Id.) The article 
reported that “ js]ix hundred firefighters will be hired 
from the ‘well-qualified’ pool over the next three 
years.” ( Id.)

Around April 1996, representatives of plaintiff 
African American Fire Fighters League and a number 
of class members met with former lead counsel for 
plaintiffs, Judson Miner. Miner concluded from his 
meeting with plaintiffs that the type of lawsuit that 
they could bring would be an “adverse impact” lawsuit 
and that, assuming that the examination actually had 
an adverse impact on African-Americans, the case 
would largely turn on the “job relatedness” or 
“validity’ of the examination. According to Miner, he 
could not determine whether the candidates had a 
possible claim without some information on the test 
and its validity. On November 6, 1996—after
discussions with the City and the filing of a Freedom of 
Information Act request with the Chicago Fire 
Department—Miner was provided with a copy of the 
“final technical report prepared by the test consul­



4 9 a

tant,” as well as “a copy of the appendices to the 
validation report” from the City’s law department. 
(Exh. K to Pis.’ Resp. to Mtn. for Summ. J.)

After receiving these materials, Miner retained a 
consulting expert to analyze the examination’s 
validity. Over the next two months, the consultant 
requested additional information, which Miner 
obtained from the City and forwarded to the 
consultant. On March 15, 1997, Miner received a 
preliminary report from the consultant concluding that 
the examination had substantial adverse impact and 
was invalid. Miner then met with a number of the 
firefighter candidates and advised them that they had 
a possible disparate impact claim against the Chicago 
Fire Department.

Six of the eight named plaintiffs filed Charges of 
Discrimination with the EEOC: Crawford M. Smith 
filed on March 31, 1997; Aldron R. Reed filed on April 
1, 1997; Gregory S. Foster, Jr. filed on April 14, 1997; 
Pamela Adams filed on April 14, 1997; Arthur C. 
Charleston, III filed on July 8, 1997; and William R. 
Muzzall filed on September 17, 1997. The EEOC 
issued right to sue letters on July 28, 1998. Arthur 
Lewis and Philippe Victor did not file charges of 
discrimination with the EEOC.

Plaintiffs filed this suit on September 9, 1998. The 
plaintiff class is now composed of over six thousand 
African-American firefighter candidates who took and 
passed the City’s 1995 written examination. The City 
admits that the Chicago Fire Department has been 
processing firefighter candidates for hire from the 
“well qualified” pool of candidates on the firefighter 
eligibility list since approximately April 1996.



Analysis

50a

Summary judgment is proper where “the pleadings, 
depositions, answers to interrogatories, and 
admissions on file, together with the affidavits, if any, 
show that there is no genuine issue as to any material 
fact and that the moving party is entitled to a 
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In 
determining whether a genuine issue of material fact 
exists, courts must construe all facts in the light most 
favorable to the non-moving party and draw all 
reasonable and justifiable inferences in that party’s 
favor. See Anderson v. Liberty Lobby, Inc., A ll U.S. 
242, 255 (1986).

Under Title VII of the Civil Rights Act of 1964, 42 
U.S.C. § 2000e, et seq., it is unlawful for an employer:

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate 
against any individual with respect to his 
compensation, terms, conditions, or privileges 
of employment, because of such individual’s 
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his 
employees or applicants for employment in any 
way which would deprive or tend to deprive 
any individual of employment opportunities or 
otherwise adversely affect his status as an 
employee, because of such individual’s race, 
color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).
Plaintiffs may prove a violation of Title VII by 

demonstrating either that the City’s failure to hire 
them was “disparate treatment” or that the procedures



51a

by which the City has made its hiring decisions have a 
“disparate impact.” Disparate treatment “occurs when 
a plaintiff is intentionally treated less favorably than 
others simply because of his race, color, religion, sex, 
or national origin.” Vitug v. Multistate Tax Comm’n, 88 
F.3d 506, 513 (7th Cir. 1996). It requires plaintiffs to 
prove that the City acted with actual discriminatory 
intent. Id.

Establishing disparate impact, on the other hand., 
does not require a showing of discriminatory intent. 
Rather, a disparate impact “exists where a specified 
employment practice, although neutral on its face, has 
a disproportionately negative effect on members of a 
legally protected class.” Id. The disparate impact 
theory may be utilized to challenge both objective and 
subjective hiring processes. See id. In challenging the 
City’s use of the results from the 1995 written 
examination in its hiring of firefighters, plaintiffs’ 
claims arise under the disparate impact theory of Title 
VII liability.

Regardless of a plaintiff s theory of discrimination, 
before bringing a suit for employment discrimination 
in federal court, the plaintiff must first file a 
discrimination charge with the EEOC. In Illinois, in 
order for the federal court action to be timely, the 
EEOC charge must be filed within 300 days after the 
allegedly discriminatory act occurred. 42 U.S.C. 
§ 2000e-5(e)(l); Koelsch v. Beltone Elec. Corp., 46 F.3d 
705, 707 (7th Cir. 1995). “The limitations periods, 
while guaranteeing the protection of the civil rights 
laws to those who promptly assert their rights, also 
protect employers from the burden of defending claims 
arising from employment decisions that are long past.” 
Delaware State College v. Ricks, 449 U.S. 250, 256-57



52a

(1980).
The City argues that summary judgment is 

warranted because none of the named plaintiffs filed a 
timely charge of discrimination with the EEOC. 
According to the City, the alleged adverse action 
against plaintiffs occurred in January 1996, when they 
were notified of their placement by the City in the 
“qualified” category of candidates, rather than the 
“well qualified” category. The City argues that the 
January 1996 notification letters, the Mayor’s news 
release and the Chicago media coverage provided 
notice to plaintiffs of the examination’s alleged 
disparate impact on African-Americans. Because none 
of the plaintiffs filed EEOC charges until March 31, 
1997— more than 420 days after they received notice— 
the City argues that plaintiffs failed to satisfy the 
administrative prerequisites to filing this suit.

In response, plaintiffs argue that the 300-day 
limitations period for filing their EEOC charges has 
not begun to run because the City’s ongoing refusal to 
process plaintiffs’ firefighter applications constitutes a 
continuing violation. According to plaintiffs, “The 
City’s continued refusal to permit members of the 
plaintiff class to advance to the next stage of the hiring 
process is a systemic continuing violation because it is 
rooted in a discriminatory policy or practice.” (Pis.’ 
Resp. to Mtn. for Summ. J. at 5) The court agrees.

“The continuing violation doctrine allows a plaintiff 
to get relief for a time-barred act by linking it with an 
act that is within the limitations period.” Selan v. 
Kiley, 969 F.2d 560, 564 (7th Cir. 1992). In 
determining the timeliness of the plaintiffs claim, the 
court treats the linked acts as one continuous act that



53a

ends within the limitations period. Id. The Seventh 
Circuit has discussed three viable continuing violation 
theories. The first theory “stems from ‘cases, usually 
involving hiring or promotion practices, where the 
employer’s decision-making process takes place over a 
period of time, making it difficult to pinpoint the exact 
day the violation occurred.’” Id. at 565 (quoting 
Stewart v. CPC Int’l, Inc., 679 F.2d 117, 120 (7th Cir. 
1982)). The second theory “stems from cases in which 
the employer has an express, openly espoused policy 
that is alleged to be discriminatory.” Id. (citing 
Stewart, 679 F.2d at 121). Such policies are also 
referred to as “systemic” continuing violations. Id. at 
565 n. 5. The third theory “stems from cases in which 
‘the plaintiff charges that the employer has, for a 
period of time, followed a practice of discrimination, 
but has done so covertly, rather than by way of an 
open notorious policy.. . .  In such cases the challenged 
practice is evidenced only by a series of discrete, 
allegedly discriminatory, acts.’” Id, (quoting Stewart, 
679 F.2d at 121).

The second continuing violation theory is the only 
one relevant here. Plaintiffs allege that the City has 
maintained an ongoing discriminatory policy by 
continuing to make hiring decisions based on the 
results of the discriminatory 1995 examination. While 
the Seventh Circuit has not spoken directly on this 
issue, this court believes that, based on relevant case 
law, the nature of plaintiffs’ claims, and the proffered 
evidence construed in plaintiffs’ favor, plaintiffs have 
established a continuing violation.1

1 The court rejects the City’s assertion that “plaintiffs have 
not pleaded the continuing violation doctrine, nor haye they set



54a

In Delaware State College v. Ricks, 449 U.S. 250 
(1980), the Supreme Court addressed a continuing 
violation claim in determining the timeliness of an 
EEOC discrimination charge. Ricks, a college 
professor, was denied tenure, but was then given a 
one-year “terminal” contract by the college. In attempt­
ing to delay the accrual of his cause of action, Ricks 
argued that the college’s conduct constituted a “contin­
uing violation” of the civil rights laws because “discri­
mination motivated the College not only in denying 
him tenure, but also in terminating his employment” 
upon the expiration of his subsequent one-year con­
tract. Id. at 257. As a result, according to Ricks, the 
limitations period did not begin to run until his one- 
year contract expired.

The Court initially observed that “[d]etermining the 
timeliness of Ricks’ EEOC complaint, and this ensuing 
lawsuit, requires us to identify precisely the ‘unlawful 
employment practice’ of which he complains.” Id. The 
Court found that Ricks’ complaint did not support his 
continuing violation argument because it did not allege 
discriminatory conduct by the college after denying 
Ricks tenure. “If Ricks intended to complain of a 
discriminatory discharge, he should have identified the 
alleged discriminatory acts that continued until, or

forth any factual basis supporting the applicability of the 
doctrine.” (Def.’s Mtn. for Summ. J. at 10) Plaintiffs’ EEOC 
charges list the date of the discrimination as “3/97 and 
continuing.” (Exh. 3 to Def.’s Mtn. for Summ. J.) Further, 
plaintiffs’ complaint alleges that the City “has used and continues 
to use” the results from the discriminatory examination (Compl. U 
1), that plaintiffs “have been and continue to he denied the 
opportunity’ to be hired as firefighters ( Id. 11 7), and that the City 
“has violated, and is continuing to violate” Title VII. ( Id. H 30)



occurred at the time of, the actual termination of his 
employment.” Id.

The fact that Ricks did not feel the effect of the 
college’s alleged discrimination until he was 
discharged was insufficient to postpone his claim’s 
accrual. The Ricks Court recognized a crucial 
distinction between the present effects of a one-time 
violation and the continuation of the violation into the 
present:

It appears that termination of employment at 
Delaware State is a delayed, but inevitable, 
consequence of the denial of tenure. In order 
for the limitations periods to commence with 
the date of discharge, Ricks would have had to 
allege and prove that the manner in which his 
employment was terminated differed discri- 
minatorily from the manner in which the 
College terminated other professors who also 
had been denied tenure. But no suggestion has 
been made that Ricks was treated differently 
from other unsuccessful tenure aspirants. 
Rather, in accord with the College’s practice, 
Ricks was offered a 1-year “terminal” contract, 
with explicit notice that his employment would 
end upon its expiration.
In sum, the only alleged discrimination 
occurred—and the filing limitations periods 
therefore commenced—at the time the tenure 
decision was made and communicated to 
Ricks. That is so even though one of the effects 
of the denial of tenure— the eventual loss of a 
teaching position—did not occur until later.

Id. at 257-58 (emphasis in original). The Court thus

55a



56a

concluded that “the limitations periods commenced to 
run when the tenure decision was made and Ricks was 
notified.” Id. at 259.

Plaintiffs insist that “Ricks does not change the fact 
that the City’s continued use of the results of its 
discriminatory exam is a continuing violation” because 
the case merely “stands for the proposition that a 
plaintiff may not rely on the continuing violation 
theory to advance claims about an isolated, past 
instance of discrimination, even though the effects 
persist into the present.” (Pis.’ Resp. to Mtn. for 
Summ. J. at 8-9) The cases cited by plaintiffs in their 
effort to distinguish Ricks highlight the difficulty in 
discerning whether an injury stems from an ongoing 
pattern or policy of discrimination, or whether it 
merely reflects the impact of a single, time-barred 
discriminatory act.

In Palmer v. Board of Educ., 46 F.3d 682, 683 (7th 
Cir. 1995), a class of African-American parents and 
children sued their school board for racial 
discrimination, alleging that the board closed a junior 
high in University Park—a predominately African- 
American town—because white residents did not want 
to send their children there. The board claimed that 
the closing was temporary, until renovations could be 
completed. Id. The plaintiffs pointed out that 
renovations had yet to be scheduled, and the school 
remained closed. Id.

The Seventh Circuit rejected the school board’s 
statute of limitations argument, ruling that “a claim of 
racial discrimination arises each day a child is 
assigned to school under a racially discriminatory 
policy.” Id. The court distinguished Ricks as involving



57a

a single discriminatory act, rather than “ [a] series of 
wrongful acts,” which “creates a series of claims.” Id. 
at 686. The court reasoned:

A public employer that applies different salary 
schedules to black and white employees 
commits a new wrong every pay period, and 
the fact that the employer has been violating 
the Constitution for a generation does not 
permit it to commit fresh violations. . . . Just 
so here. Every fall the school board decides 
which buildings to use and which children 
shall be assigned to which schools. If, as 
plaintiffs believe, the school board’s explana­
tion for closing Deer Creek is a pretext for 
discrimination, then each year’s decision to 
leave the building shuttered is a new 
violation—as is each assignment plan that 
compels black pupils to board busses for a 
distant junior high school that they would not 
be required to attend if the population of 
University Park had a lighter complexion.

Id. (citations omitted).
Similarly, in Webb v. Indiana Nat’l Bank, 931 F.2d 

434, 436 (7th Cir. 1991), the court acknowledged the 
uncontroversial notion that “ [fjoreknowledge [of an 
injury] does not set the statute of limitations running.” 
The court recognized that in Ricks, the injury was the 
denial of tenure, but that “ [t]he statute of limitations 
would not have begun to run when Ricks was told (if 
he had been told) that he would be denied tenure at 
the next faculty meeting, because that would have 
been a prediction of injury, not the injury itself.” Id. 
The Ricks Court did not abolish the principle that “in



58a

the case of a continuing unlawful practice, every day 
that the practice continues is a fresh wrong for 
purposes of the statute of limitations.” Id. at 438.

The Seventh Circuit’s analyses in Palmer and 
Webb—viewed against the background of Ricks— 
clarify the continuous injury inquiry in this case. The 
determination as to whether the continuous injury 
theory applies boils down to one question: Has the City 
engaged in a continuing unlawful practice toward 
plaintiffs? According to plaintiffs, the City has done so 
by continuing to base its hiring decisions on the results 
of the discriminatory examination.

At first glance, this notion -  that an employer’s 
reliance on results generated by a discriminatory 
examination constitutes ongoing discrimination -  
appears to have been rejected by the Seventh Circuit. 
In Huels v. Exxon Coal USA, Inc., 121 F.3d 1047,1048 
(7th Cir. 1997), Huels claimed that his employer, 
Exxon, discriminated against him based on his 
alcoholism in violation of the Americans with 
Disabilities Act. Huels alleged that Exxon ranked him 
dead last in job performance because Huels had sought 
alcohol treatment, not because of his job performance. 
Id. Based on Huels’ position on the job performance 
list, Exxon laid him off, then failed to recall him when 
it asked many of its other laid-off workers back. In 
attempting to defeat Exxon’s statute of limitations 
argument, Huels argued that Exxon’s conduct 
amounted to a continuing violation of the ADA. 
According to Huels, each employment decision 
amounted to a fresh act of discrimination by Exxon. 
See id. at 1049.

The Seventh Circuit disagreed, finding that any



59a

claim based on Huels’ “allegedly discriminatory 
position on the list would have accrued when he was 
assigned that ranking.” Id. at 1050. The court 
reviewed cases in which courts held that employees’ 
discrimination claims accrued at the time of their loss 
of seniority, rather than when they felt the 
consequences of the loss of seniority. See id. at 1050-51 
(discussing Lorance v. AT&T Technologies, Inc., 490 
U.S. 900 (1989); Kennedy v. Chemical Waste Manage­
ment, Inc., 79 F.3d 49 (7th Cir. 1996)). The court held 
that the same reasoning applied to Huels’ claim:

In each case, an employer committed a single 
dispositive (and allegedly discriminatory) act— 
it assigned certain employees poor positions on 
relative seniority lists. And although those 
employees only felt the most painful 
consequences of the employer’s conduct down 
the road (when the lists were used in a 
nondiscriminatory manner to fire or demote 
employees), their claims accrued when the 
discriminatory act was committed. . . . We see 
no compelling reason to treat the neutral 
application of an allegedly discriminatory 
employee-ranking list compiled using 
performance evaluations differently from a list 
based upon relative seniority. As a result, even 
though Huels’ low ranking was not a “certain 
prelude” to being laid off and then not being 
recalled, his claim—to the extent he ever had 
one—accrued when he, like the plaintiffs in 
Lorance and Kennedy, was assigned an 
allegedly discriminatory position on the 
ranking list.

Id. at 1051 (citations omitted).



60a

Despite this seemingly relevant language, the court 
believes that the City’s reliance on Huels is misplaced. 
Huels alleged that Exxon discriminated against him by 
giving him a poor performance ranking based on his 
alcoholism. Exxon’s subsequent use of that ranking— 
in conjunction with the other employees’ non- 
discriminatory rankings—did not amount to a separate 
act of discrimination against Huels. Further, Huels did 
not allege that he was injured as a result of a 
discriminatory Exxon policy. Huels did not allege that 
Exxon’s ranking system was discriminatory, nor that 
Exxon’s reliance on that ranking system constituted 
discrimination. Because Huels’ claim centered on his 
individualized treatment by Exxon, it accrued at the 
time of that individualized treatment—not when Huels 
felt the effects of that treatment pursuant to a neutral, 
generalized, and unchallenged lay-off and rehiring 
policy.

Here, by contrast, plaintiffs are not alleging any 
individualized adverse treatment by the City. Rather, 
they allege that the 1995 examination had a disparate 
impact on African-American firefighter candidates, 
and that the City’s reliance on the examination’s 
results continues to have a disparate impact on 
African-American candidates. The City cannot simply 
explain away the disparate impact of the hiring 
process as “the present consequences of a one-time 
past violation.” (Def.’s Reply at 8) If plaintiffs establish 
that the City’s examination had a disparate impact on 
African-American candidates, then the City’s ongoing 
use of the examination’s results—rather than some 
other, non-discriminatory criteria for candidate 
selection—has the same disparate impact.

The City’s motion for summary judgment is



61a

premised on the notion that, in analyzing a disparate 
impact claim based on an employment examination, 
the disparate impact reflected in the examination 
results can be separated from the disparate impact 
arising from the employer’s use of those results. This 
notion is not supported by logic or case law. In 
Guardians Ass’n v. Civil Service Comm’n, 633 F.2d 
232, 235 (2d Cir. 1980), aff’d, 463 U.S. 582 (1983), 
black and Hispanic police officers challenged the 
written examinations used in making appointments to 
the New York City Police Department, alleging that 
the examinations had a racially disparate impact. The 
officers did not file suit until New York City laid off 
over 2,500 officers pursuant to the police department’s 
“last-hired, first-fired” policy. Id. The officers alleged 
that, if not for the discriminatory entry-level 
examinations, they “would have been hired earlier and 
thus would have accrued sufficient seniority to 
withstand being fired.” Id. at 236. The defendants 
argued, as the City does here, that the utilization of 
the examination-based eligibility lists was “merely the 
non-actionable perpetuation of the effects of past” 
discrimination. Id. at 249. The court rejected this 
argument, holding that:

By utilizing the tainted test results for years 
after becoming subject to the commands of 
Title VII, defendants continued a course of 
discriminatory conduct that had indeed begun 
before the effective date of the Act but did not 
cease until defendants abandoned the practice 
of making hiring decisions in this manner. 
Even if the unjustified refusals to hire did not 
comprise the core of defendants’ discrimina­
tory conduct, at the very least they represen-



62a

ted the culmination of a continuously main­
tained illegal employment policy.

Id.. Similarly, in Gonzalez v. Firestone Tire & Rubber 
Co., 610 F.2d 241, 249 (5th Cir. 1980), the Fifth Circuit 
held that the employee’s EEOC charge was timely if 
his employer, within the limitations period, “continued 
to base its selection of employees to receive job 
opportunities upon scores from an unvalidated battery 
of tests.”

The City unjustifiably downplays Guardians and 
Gonzalez by pointing out that both decisions predate 
the Supreme Court’s decision in Ricks. This court does 
not interpret Ricks as calling into question—much less 
repudiating—the approaches taken by the Guardians 
and Gonzalez courts. As discussed above, the Ricks 
Court held that an employee’s disparate treatment 
claim accrued at the time of his discriminatory 
treatment, not at the time he felt the effect of that 
treatment. Ricks has not been interpreted as 
establishing that a disparate impact claim accrues at 
the genesis of the policy giving rise to the disparate 
impact, regardless of how long that policy is 
perpetuated. The fact that the City has overstated the 
demise of Guardians and Gonzalez is underscored by 
the fact that the decisions continue to be cited 
favorably in the wake of Ricks. See, e.g., Ross v. 
Buckeye Cellulose Corp., 980 F.2d 648, 658 (11th Cir. 
1993) (applying Gonzalez’ s continuing violation 
analysis); United States E.E.O.C. v. City of Chicago, 
No. 85 C 7281, 1989 WL 134788, at *5 (N.D. 111. Oct. 
13, 1989) (citing Guardians favorably).

As noted, the Seventh Circuit has yet to speak 
directly on the particular issue raised by the City’s



6 3 a

motion. In a factually analogous case, Judge Will 
rejected an argument similar to the one raised here by 
the City. In United States E.E.O.C. v. City of Chicago, 
the EEOC sued the City for violating the Age 
Discrimination in Employment Act by refusing to hire 
or take applications for police officer positions from 
anyone age thirty-five or older. See id. at *1. Judge Will 
held that “ [a] roster created from a discriminatory 
exam, and used for purposes of hiring, constitutes a 
continuing violation over the entire period of its use.” 
Id. at *6. He reasoned that:

If there was discrimination in these claimants’ 
exclusion from the exam, that discrimination 
did not occur only when the roster was posted.
It did occur then, but it also continued to occur 
for as long as the roster barred the claimants 
from an opportunity to be hired. Each decision 
to hire from the roster perpetuated any 
violation begun by their initial exclusion and 
made it an act of present discrimination.

Id.
Judge Will’s reasoning is not rendered inapplicable 

to this case merely because the City’s age-35 policy 
was facially discriminatory, whereas the City’s 
reliance on the 1995 examination results is facially 
neutral. Such a distinction may be dispositive where 
the employee’s claim is based on disparate treatment, 
but not where it is based on disparate impact. See 
Vitug, 88 F.3d at 513 (“A disparate impact exists 
where a specified employment practice, although 
neutral on its face, has a disproportionately negative 
effect on members of a legally protected class.”).

Judge Plunkett took a different path in



64a

determining the timeliness of the plaintiffs’ claims in 
In re Matter of Chicago Police Officer Promotions, No. 
91 C 668, 1993 WL 322834 (N.D. 111. Aug. 23,1993). In 
that case, white candidates for detective promotions 
alleged that they were intentionally excluded from the 
promotions list because of their race. Id. at *2. In order 
to qualify for the oral boards, the City required that 
white candidates achieve a higher minimum score on a 
written examination than the score required of 
minority candidates. Id. at *1. The results from the 
oral boards, in combination with the written 
examination results, were used to compose the 
promotions list. Id. at *2. Based on Ricks, Judge 
Plunkett concluded that:

[T]he discriminatory act with respect to 
Plaintiffs eligibility for promotion was the 
July 1990 compiling of the 1990 detective’s 
promotions list, for it was not until this time 
that the Plaintiffs could be certain that the 
oral boards, from which they were excluded 
based on their race, would be used in future 
promotion decisions (or, put another way, that 
they would be denied promotions based on 
their race). Denial of the . . . promotions in 
1992 is but a later effect of Plaintiffs’ earlier 
exclusion from the 1990 list.

Id. at *6. In finding that the plaintiffs’ claims were 
untimely, Judge Plunkett echoed the principle set 
forth in Ricks that “the clock starts to run when the 
discriminatory act takes place, not when the plaintiff 
is affected by it.” Id. at *7; see also Kuan v. City of 
Chicago, 563 F. Supp. 255, 256-57 (N.D. 111. 1983) 
(holding that, where plaintiff alleged that he received a 
discriminatory performance evaluation, his claim



65a

accrued at the time of the evaluation, not when the 
evaluation was later used as part of a promotion 
examination).

Regardless of whether Judge Plunkett's approach 
can be harmonized with Judge Will’s, Judge Plunkett’s 
approach is not inconsistent with finding a continuing 
violation in this case. The plaintiffs in Chicago Police 
Officer Promotions alleged that they were intentionally 
discriminated against because of their race. 1993 WL 
322834, at *2. Their only allegation that could have 
amounted to intentional discrimination was the City’s 
decision effectively to exclude them from the 
promotions list by requiring a higher score from them 
on the written examination. The City’s subsequent use 
of the promotions list was not a new instance of 
intentional discrimination. There is nothing in Judge 
Plunkett’s analysis, however, to suggest that the use of 
a promotion roster or candidate rankings could not 
amount to an ongoing discriminatory policy where the 
nature of the discrimination alleged is that the use has 
a disparate impact on a protected class of candidates.

The other cases relied on by the City do not alter 
the court’s conclusion. In Lorance v. AT&T Tech­
nologies, Inc., 490 U.S. 900, 903 (1989), three women 
who worked as testers for AT & T alleged that an 
alteration to the rules governing tester seniority was 
designed to protect incumbent male testers and to 
discourage women from promoting into tester 
positions. Significantly, the Court observed that the 
plaintiffs’ “allegation of a disparate impact on men and 
women would ordinarily suffice to state a claim” under 
Title VII, but that Title VII affords seniority systems 
special treatment. Id. at 904; see 42 U.S.C. § 2000e- 
2(h) (providing that employment differences arising



6 6 a

from operation of seniority system are unlawful only if 
they are a result of intentional discrimination). The 
Court went on to hold that when an employer’s 
“seniority system is nondiscriminatory in form and 
application, it is the allegedly discriminatory adoption 
which triggers the limitations period.” 490 U.S. at 911 
(emphasis in original).

The City correctly points out that, although 
Lorance s specific holding has been abrogated by 
statute, see 42 U.S.C. § 2000e-5(e)(2) (allowing employ­
ees injured by application of intentionally discrimi­
natory seniority system to measure limitations period 
from date of that application), the Seventh Circuit has 
recognized that Lorance’ s “reasoning remains persua­
sive outside of the Title VH/intentionally discrimina­
tory seniority system context.” Huels, 121 F.3d at 1050 
n.l. Nevertheless, the court does not believe that the 
Seventh Circuit’s embrace of Lorance's reasoning 
can—without further guidance from the court—be 
construed as a blanket rejection of the continuing 
violation theory as applied to an employer’s ongoing 
use of rankings generated by a discriminatory exam­
ination.

In Kennedy v. Chemical Waste Mgmt., Inc., 79 F.3d 
49 (7th Cir. 1996), the court held that the statute of 
limitations began to run on an employee’s adverse 
treatment claim at the time he was deprived of 
seniority, not at the time he was laid off as a result of 
that deprivation. The court reasoned that:

Seniority is an important employee benefit 
because, like academic tenure, which it resem­
bles, it provides job protection. Its deprivation 
is an injury that sets the statute of limitations



67a

running . . . even though the injury is 
contingent rather than actual unless and until 
job protection is needed.

Id,., at 50 (citing Ricks ). Kennedy’ s analysis does not 
bear on the statute of limitations inquiry in this case 
because plaintiffs’ claims are based not on the single 
deprivation of an employment benefit or opportunity, 
but on a continuing policy that has a disparate impact 
on African-American firefighter candidates. The 
disparate impact is not limited to the initial 
promulgation of the examination results, but arises 
every time the City decides to hire based on the results 
of the discriminatory examination.

A factual pattern more similar to this case is 
presented by Bronze Shields, Inc. v. New Jersey Dep’t 
of Civil Service, 667 F .2d 1074,1077-78 (3d Cir. 1981), 
in which the plaintiffs alleged that the eligibility roster 
used to hire Newark police officers was racially 
discriminatory because the written examination on 
which it was based had a disparate impact on 
minorities. Once plaintiffs were notified that they were 
not on the roster, they “knew they would not be hired 
by the Newark police department for the next three 
years because they were not on the eligibility roster.” 
Id. at 1083. The Third Circuit rejected plaintiffs’ 
argument that Newark continued to discriminate 
against them by continuing to use the eligibility roster. 
First, the court observed that “Newark never used the 
list prior to plaintiffs’ filing charges with the EEOC.” 
Id. On this basis, the court distinguished Guardians, 
noting that “had Newark used the list and hired 
recruits within 180 days before plaintiffs filed, their 
filings would have been timely.” Id. at 1083 n.23. 
Second, the court found that, “even if Newark had



6 8 a

used the list, plaintiffs do not allege that Newark 
would have followed anything but a neutral, non- 
discriminatory procedure in hiring from the list.” Id. at 
1083.

To the extent that the Bronze Shields holding is 
based on Newark’s failure to use the eligibility roster 
after its promulgation, its reasoning does not apply to 
this case. The City admits that “the Chicago Fire 
Department has been processing firefighter candidates 
for hire from the well-qualified pool of candidates on 
the firefighter eligibility list since approximately April 
1996.” (Def.’s Resp. to Pis.’ Rule 56.1(b)(3)(B) 
Statement of Additional Facts U 7)

However, to the extent that the Bronze Shields 
holding is based on the fact that Newark neutrally 
applied rankings generated by a discriminatory 
examination, this court declines to follow it.2 The 
Bronze Shields court followed the Ricks analysis, 
finding that “Newark’s non-discriminatory policy as to 
the use of the roster is similar to Delaware State’s non­

2 Judge Will found Bronze Shields similarly unhelpful in 
United States E.E.O.C. v. City of Chicago, 1989 WL 134788. Judge 
Will first factually distinguished the case before him from Bronze 
Shields, observing that the City had already relied on the 
discriminatory age-35 roster to hire police recruits by the time the 
claimants filed charges, whereas Newark’s roster had not been 
used at the time charges were filed. See id. at *5. He went on to 
find that the Third Circuit’s reliance on Ricks was misplaced 
because “the holding in Ricks does not apply to cases where the 
allegations charge a continuing policy and practice of 
discrimination rather than just isolated instances of it.” Id. 
Finally, Judge Will concluded that the Bronze Shields court 
reached “a result not compelled by any prior Third Circuit or 
Supreme Court precedent,” and one which is “inconsistent with 
the purposes of the ADEA.” Id. at *6.



69a

discriminatory policy in discharging all faculty denied 
tenure.” Id. at 1084. In drawing this analogy, the 
Third Circuit overlooked the fundamentally different 
natures of the discrimination alleged in the two cases. 
In Ricks, the discrimination consisted of the college’s 
racially motivated rejection of Ricks’ bid for tenure. 
Once tenure was denied, the college did not further 
discriminate against Ricks, but simply treated him as 
it did any other professor denied tenure—granting him 
a one-year terminal contract, then discharging him.

By contrast, in Bronze Shields, the discrimination 
occurred not because minority police officer candidates 
were required to take an examination that had a 
disparate impact on them, but because Newark’s 
subsequent use of the examination’s results in hiring 
police officers had a disparate impact on minority 
candidates. If Newark had jettisoned the tainted 
results and substituted some other employment 
criteria before beginning the hiring process, there 
would have been no actionable discrimination- 
regardless of the timing of the plaintiffs’ EEOC filings. 
Because the claims brought by plaintiffs here and in 
Bronze Shields centered on the disparate impact 
arising from the cities’ use of the examinations’ results, 
Title VII was violated for as long as the cities 
continued using those results.

Conclusion
The court concludes that, if plaintiffs establish that 

the 1995 written examination used in the City’s 
firefighter selection process had an unlawful disparate 
impact on African-American candidates, then the 
City’s ongoing reliance on those results constitutes a 
continuing violation of Title VII. In light of this



7 0 a

conclusion, the court need not address the other 
arguments raised by plaintiffs in opposition to the 
City’s motion for summary judgment based on the 
statute of limitations. Pursuant to the continuing 
violation doctrine, the court finds that plaintiffs’ EEOC 
charges were timely, and that, as a result, this suit is 
not time-barred. Accordingly, the City’s motion for 
summary judgment is denied.

ENTER:

s/ JOAN B. GOTTSCHALL 
United States District Judge

DATED: May 25, 2000



71a

United States Court of Appeals, 
Seventh Circuit.

Arthur L. LEWIS, Jr., et al., Plaintiffs-Appellees,
v.

CITY OF CHICAGO, Defendant-Appellant. 
No. 07-2052.

August 21, 2008.

ORDER
On July 3, 2008, plaintiffs-appellees filed a petition 

for rehearing and petition for rehearing en banc. All of 
the judges on the original panel have voted to deny the 
petition, and none of the active judges has requested a 
vote on the petition for rehearing en banc*

* Circuit Judges Joel M. Flaum and liana Diamond 
Rovner did not take part in the consideration of this 
matter.



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