Brazier v. Cherry Appellant's Reply Brief

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No. 73-235

■§>tuir£tu£ tourt at tlje Xnitrt States
OCTOBER TERM, 1973

M arco D e F unis, et al., 
Appellants 

v.
Charles Odegaaro, P resident of the 

U niversity of W ashington, ct al.

T c t i ' t i t on  <l,<' 9

Q« Appeal From The Supreme 
Court Of The State Of 

Washington

uO f\; |-p O  U Ct-^TIOr ck̂ x  \ \ Q>

BRIEF FOR THE AMERICAN FEDERATION OF 
LABOR AND CONGRESS OF INDUSTRIAL 

ORGANIZATIONS AS AMICUS CURIAE

J. A lbert W oll
General Counsel, AFL-CIO ; 

R obert C. M ayer 
'X  L aurence Gold

736 Bowen Building 
815 Fifteenth Street, N.W. 
Washington, D. C. 20005 

T homas E. H arris
Associate General Counsel, 

AFL-CIO
815 Sixteenth Street, N.W. 
Washington, D. C. 20006

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2

American Indians and Philippine Americans), who were 
acknowledge^ less qualified under the School’s admission 
standards than applicants of other races. That court con­
cluded that this system of racial classification was justified 
by the elimination of “ racial imbalance within public legal 
education,”  (507 P.2d at 1182), the production of “ a racial­
ly balanced student body at the law school,”  (id. at 1184), 
and the alleviation of a nation-wide “ shortage of minority 
attorneys,’ (ibid.).

_/

The position of the American Federation of Labor and 
Congress of Industrial Organizations (AFL-CIO) is that 
this holding can not be squared with the Fourteenth 
Amendment’s guarantees of due process and the equal pro­
tection of the laws.

The AFL-CIO is a federation of 113 national and inter-' 
national unions having a total membership of approxi­
mately 13,500,000 working men and women. The Federa­
tion’s interest in the question presented here is the product 
of the following interrelated considerations:

First:

“ [T]he labor movement is the most integrated major 
institution in American society, certainly more inte­
grated than the corporations, the churches, or the uni­
versities. * * * The percentage of blacks in the unions 
is a good deal higher than the percentage of blacks in 
the total population. # * * Moreover, blacks are joining 
unions in increasing numbers. According to a 1968 re­
port by Business Week, one out of every three new 
union members is black.”  Rustin, The Black And The 
Unions, Harper’s Magazine, May, 1971, pp. 73, 76.

The major function of the trade union movement is to act'



ns its members’ exclusive bargaining represenlativc in 
dealing with llieir employers on matters of “ wages, hours,, 
and other tei'ms and conditions of employment.”  See 
§§8(a) (5), 8(d) & 9(a) of the National Labor Relations 
Act, as amended, 29 U.S.C. §151 et seq. And as this Court 
has recognized:

“ Inevitably differences arise in the maimer and degree 
to which the terms of any negotiated agreement affect 
individual employees and classes of employees. The1 
mere existence of such differences does not make then 
invalid. The complete satisfaction of all represented is 
hardly to be expected. * * * Differences in wages, hours 
and conditions of employment reflect countless varia­
bles.”  Ford Motor Co. v. Huffman, 345 U.S. 330, 338.

Thus, unions are front-line institutions dealing with and 
attempting to harmonize, on a day-to-day basis, the inevi­
table clashes of economic interest between individual em­
ployees and between groups of employees (as well as those 
between employees as a class and their employers).

Organized labor, therefore, well understands that there 
is no escape from the necessity of rules of selection where 
there are more applicants than there are openings, whether 
the places to be filled are jobs, or positions in a professional 
school (which serves as the method of entry to a particular 
field of endeavor). And the union movement is fully cog­
nizant that in our society, where employment is a major 

, determinant of economic position, such rules are perhaps 
the most important of all the norms governing the distri­
bution of scarce resources. Precisely because this is so, 
organized labor knows that if there is to be domestic tran­
quility these rule's must be fair in fact and must be per-

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eoived to bo fair by those whose fate they decide.

George Lichtheim has pointed o u t-“ Tf n
as a source of political antagonism'is rn ledm T * -  the 
resHlaal tensions • • • need not and doubtless wil] „ ol M

\VX1  'r” C M d * ‘ o'erab,

ZIZZTZZZ; n The N w  Y o " k  ^  *

™ st potent in a period, such as the present in w h ilh T  
and rising nnemplovment spiralin. !„fl hlgh
sess ion , sudden shortensT  ^
radical restrnetnring of establ s W  , ! T *  T * * *  * 
and an overall nno e * , ! d f and wo,'k Patterns,

‘- “ ’ M r
disequilibrium J" " P thG P0*0" 1''"1 for a violent

. , ^ r : r  b°T  7  •
firmly eommitted to ! e*P°n ™«>. is- therefore,
hope ,„ r  “ ul°  , ~ io”  ,h“ ‘  « »  one best
‘ "ose rules of selection Z t  ^  • *  '

"artificial, arbitrarv !  a 7 m" S‘ ” ot constitute

ployment [that] opiate invffiousTy To T -" '"  '"  *° 
the basis of racial ^  T y to discriminate on

and that they must n o t ° p r o ^ ^ ^ . Cl.a8,^ tioil,,»
erence for any group, minority or U o r  “ JT, ̂

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GnM N v- Vide rower Co., 401 U.8. 424, 431).

This commitment is not based on tlie fallacy^that there

: :  ac,“ ' r  c,i,ori“ * '»  ^
appioacli the accuracy of the litmus test. Rather it is

from'' f'a a 'W°s,li,io" ,,w‘  retreat is beat
. fair and racialJy neutral employment * * * de

792° 801) ^  411 u t
two’ t! ’ here -S ” ° equitable method of mediating be­
tween the competing claims of minority workers, majority
workers, employers and the society at large.

. ®°CaUSe thG decision below rejects the proposition stated
a l t h o l f  U McDonnell Douglas, its effects are pernicious,
although its intentions are the best.

Second, the AFL-CIO’s commitment to equal oppor
tumty as just defined has been manifested in two major 
parallel courses of action. J *

T’ “  Rederat‘011 pressed for enactment of Title VII of 
tLe CT  R« hts A «  of 1904 („,,d the strengthen!,,-1972 
amendments), with the approving understanding that the 
n,o„ movement would be strictly regulated thereby It 
as ice,; c only multi-racial organization to thus prefer 

fidelity to the eradication of racial discrimination ahead

in the 80 r r r  frc0d01" ,rom government dictation 

has reclll'ed ** m t N " al ^  AS * * * * *  R“sti“

. 7 ! ™  drive aoa‘nst discrimination was ex
a Fair °F th<i figh‘  made b  ̂ tbe AFL-CIO to have

• section writtea illt0 tbe
Rohert Tf ?  Act B° tb Presid^ t  Kennedy and 
Robert Kennedy were opposed to including an FEPd

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V.A

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6

'  ̂ section because they thought it would kill the bill, but 
George Meany pressed for it. He did so for a simple 
reason. The AFL-CIO is a federation of affiliates 
which retain a relatively high degree of autonomy. 
The parent body can urge compliance with its policies, 
but the decision to act is left up to the affiliates. Meany' 
felt that the only way the AFL-CIO could deal ef­
fectively with unions practicing discrimination would 
be to demand compliance with the law of the land. 
He testified before the House Judiciary Committee 
that the labor movement was calling “ for legislation 
for the correction of shortcomings in its own ranks.”  
And the passage of the 1964 Civil Rights Act greatly 
speeded the process of this correction.”  Rustin, The 
Blacks And The Unions, supra at p. 76.

In a complementary effort, the AFL-CIO has been a 
major force in a far-ranging affirmative action program, 
the Apprenticeship Outreach Movement, to assure that 
minorities have meaningful access to the most highly 
skilled and well paying technical jobs in industry. William 
M. Ross, the Deputy Executive Director of the Recruitment 
and Training Program Inc. of New York, in a speech to 
the Annual Rocky Mountain Apprenticeship Conference in 
Salt Lake City, delivered in November 1973, described the 
essence of the Outreach approach as follows:

“ Above all else, the outreach approach is an advocacy 
strategy which is designed to provide a wide variety of 
tutorial and supportive services to minority workers 
who are seeking entry in the apprenticeship training 
programs and skilled jobs in the construction industry.

“ The outreach concept originated in 1964 when The 
Workers Defense League established a program to re­
cruit black and Spanish speaking youth for placement



i

in construction apprenticeship training programs in 
New York City. This program was the outgrowth of 
a series of violent demonstrations which occurcd at 
several construction sites in the city during the summer 
of 19G3. These demonstrations, which were part of an 
attempt to halt all publicly financed construction in 
New York until 25 percent of the jobs in this industry 
were tilled by black and Spanish speaking workers, 
resulted in hundreds of arrests and costly work stop­
pages. The Harlem hospital project, which was shut 
down for more than four months, cost the city of New 
York more than $250,000 for overtime payments to 
police alone. The total,cost of this shut down ran into 
the millions.

“ Together with most of the other civil rights or­
ganizations in the city, the W.D.L. became a member 
of the Joint Committee on Equal Employment Oppor­
tunity which was established to coordinate the various 
demonstrations. Initially, these protest activities were 
predicated on the belief that it would be relatively easy 
to find enough qualified black and Spanish workers to 
fill the job slots which were being demanded, if sufficient 
legal and community pressure could be brought to bear 
upon the unions and contractors to force them to open 
their apprenticeship programs to non-whites. However, 
it soon became increasingly obvious that a special effort 
was required to seek out qualified applicants who would 
commit themselves to a career in the building trades.

“ With a-small grant from the Taconic Foundation, 
The Workers Defense League rented a storefront in the 
heart of the Bedford-Stuyvesant ghetto in Brooklyn and 
established a program to (1) disseminate information 
on construction employment opportunities; (2) to recruit, 
counsel, and tutor black and Spanish speaking appren­
ticeship applicants and (3) to provide follow-up sup-

i



portive services to the non-white apprentices who were 
accepted into the unions’ training programs.

“ Within our first two years, we had placed more than 
500 black and Spanish speaking youths in apprenticeship 
programs.

“ Because of our success in New York and the failure 
of other approaches in various cities around the coun­
try, our outreach concept was adopted as a formal 
program within the Manpower Administration of the 
U.S. Department of Labor in 1967. Subsequently, our 
approach became the model for several other local 
organizations throughout the nation.

“ Since 1967, the apprenticeship outreach movement has 
grown by leaps and bounds. At the present time, there 
are 120 federally funded outreach programs in 227 dif­
ferent cities. Of this total

. . .  37 are operated by the Urban League’s leap 
program
. . .  26 are operated by R-T-P
. . .  17 are operated by local building and construction 
trade councils
. . .  15 are operated by the AFL-CIO Human Re­
sources Development Institute
. . .  24 are operated by other miscellaneous local 
organizations such as the Trade Union Lcadci ship 
Council in Detroit and Philadelphia; The New Jersey 
Department of Labor and Industry; The Mexicain- 
American Opportunities Foundation in Los Angeles; 
The Opportunities Industrialization Center in Pitts­
burgh, etc.
“ Because of the apprenticeship outreach movement, 

there has been a dramatic and significant increase in

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the number a ml percent ago of minority youth in con­
struction apprenticeship programs. For example:

In 1960, there were less than 2,000 non-white 
apprentices in the entire united states, and as late as 
1906 non-white apprentices represented only two per­
cent of all registered construction apprentices.
“ But between the time the outreach program was 

first funded in 1967 and July of this year more than 
26,000 non-white youths have been indentured in regis­
tered apprenticeship programs in construction.

274 Asbestos Workers
1223 Bricklayers
5372 Carpenters
1126 Cement Masons
2896 Electricians •
466 Elevator Constructors k
251 Glaziers

1411 Iron Workers ; -
287 Lathers

1603 Operating Engineers y
1909 Painters
354 Plasterers .

.1031 Roofers
1289 Sheet Metal

145 Tile Setters
2410 Pipe Trades
“ At the present time non-white youths comprise ap­

proximately fifteen percent of all registered construc­
tion apprentices.”

Both Title VII and the Outreach program are faithful 
to the premise that the rules of selection for employment 
must, in this Court’s words in Griggs, make “ j6b 
qualifications the controlling factor, so that race, religion,



10

nationality and sex become irrelevant”  (401 U.S. at 436), 
Indeed, perhaps the most significant fact about Outreach 
is that it puts the lie to the counsel of despair and con­
descension that racial preferences, such as that instituted 
by the University of Wasliingon Law School, are nec­
essary because minorities can not compete on the basis 
of qualifications. As Mr. Ross noted in another passage 
o f the same speech:

“ Our experience convinced us that fairly administered 
tests and other qualifications which are relevant to job 
requirements are not in surmountable obstacles to the 
entry of minorities into apprenticeship. Indeed, we are 
very proud of the tutoring techniques we have developed 
to overcome the testing problem. In fact, we have now- 
reached the point where in some cities our applicants: 
are achieving higher test scores than all other appli­
cants, white or black. For example, 73 percent of our 
applicants scored ‘ high’ on a recent test which was given 
by the Steamfitters Joint Apprenticeship Committee in 
Now York. We have now reached the point where our 
applicants are better at taking tests than the average 
applicants.”

The answer, in other words, is not to abandon our com­
mitment to the allocation of employment opportunities on 
the basis of merit, a course that would be inconsistent with 
the urgent need to maximize productivity and efficiency to 
meet the critical economic problem we now face, but to 
refine our measures of merit and to provide those who 
have not received a sufficient grounding in . basic skills 
the compensatory tutoring necessary to enable them to 
compete on the basis of qualifications.

It is, we suppose, possible, in theory, that a system of



I I

equal opportunity embracing tlie principles slates iii 
Griggs and McDonnell Douglas could survive affirmance 
of the holding below. But it is not even remotely likely 
that this would be the consequence. -The pressure, by a 
significant number of policy makers, for sweeping, short­
term, solutions to the agonizing economic problems of the 
minority communities, without regard to the unfairness 
of such solutions to those like Mr. De Funis, who have 
both legitimate aspirations and substantial problems of /  
their own, is too intense. In this area, as in others in our 
political life, the overriding recent trend has been to ignore 
the long-term costs of utilizing questionable means to 
achieve the end sought.

Yet those long-term costs promise to be immense. In 
an address to the AFL-CIO’s Eighth Constitutional Con­
vention, some five years ago, Mr. Rustin pointed out the 
factor that these planners overlook—it is that this country 
faces a racial problem consisting of “ two elements—black 
rage and white fear [that] feed on each other and set 
this nation on a collision course.”  (Proceedings of the 
AFL-CIO’s Eighth Constitutional Convention, pp. 105-106) 
Obviously neither this rag'e nor this fear can be pandered 
to insofar as it is irrational. The program the labor move­
ment has evolved does not do so. But the white fears en­
gendered by racial preferences are not irrational. And 
such preferences, while they may give the appearance of 
answering “ black [or more broadly minority] rage,”  do 
not do so in a meaningful sense. As Mr. Rustin noted:

“ We don’t want special categories labeled ‘ Negro 
carpenters’ >or ‘ Negro plumbers’ who have lower skills 
and get less pay. We want Negroes.who are carpenters
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12

and plumbers—with the same skills and training and 
wages that everyone else. has. We want the same pride 
in our trade that any worker with dignity wants. And 
We will not settle for less.”  Id at 111.

That result can only be achieved by affording equal em­
ployment opportunities as we have defined that concept. 
It will not he achieved by a program of racial preferences.

It is because of the foregoing considerations that the 
AFL-CIO has sought this opportunity to present its views 
concerning this case to the Court.

ARGUMENT

The profound central lesson of the Fourteenth Amend­
ment for this case, is, in the words of the brief amicus of 
the Anti-Defamation League of B ’nai B ’ritli in- support of 
the jurisdictional statement (at pp. 11, 12, 16), that the:

“ Constitutionality [of racial classifications! turns on 
whether [they! work any deprivation, and even if not, 
on whether they are justified by a compelling interest,

' by ‘ some overriding statutory purpose,’ McLaughlin 
' v. Florida, 379 U.S. 184, 192 (1964). ‘ Without such 

justification the racial classification . . .  is reduced to 
an invidious discrimination forbidden by the Equal 
Protection Clause.’ McLaughlin v. Florida, supra, 

‘ 379 U.S. at 192-93.
# # # #

“ [A! compelling state interest sufficient to justify a 
racial classification can he shown only if the classifica­
tion is undertaken in the course of administering a 
remedy for proven prior discrimination, * * * [so that 
the] remedy has followed with precision a wrong shown 
with precision in a record # * *, or at least if, while



serving an allowable state purpose, it imposes no depri­
vation on anyone.”

That statement of the law is drawn from, and meticulously 
documented to, this Court’s decisions. To avoid needless 
repetition we therefore incorporate the discussion of those 
precedents in that brief by reference, take the conclusion 
reached as a given, and devote ourselves herein to enlarg­
ing upon and refining the basic proposition quoted above.

1. In allocating the 145 to 150 openings in the first-year 
class, the University of Washington Law School applied 
its test of qualification, expressed in essence in a weighted 
formula, the “ predicted first year average,”  so that black 
Americans, Chicano Americans, native American Indians 
or Philippine Americans (but not Asian Americans) were 
treated separately from, and more favorably than, appli­
cants of other races. The qualifications of these “ minority”  
applicants wore compared only with others in that group, 
and not against the entire universe of applicants.

The result was that “ minority”  applicants were accepted 
who would have been summarily rejected but for their mem­
bership in that class. Juris. Stat. App. C. Finding XXIII. 
In all, 44 minority applicants .were accepted, 38 of whom 
had qualifications lower than Mr. Do Funis, the plaintiff- 
appellant here, who is white, and who was not accepted. 
Thus, “ the admissions of the less qualified [minority] stu­
dents resulted in a denial of places to those better qualified 
[of other races].”  Juris. Stat. App. C. Finding XXIV.

There can be no dispute, then, that the Law School uti­
lized a racial classification in determining who should be 
accepted for its first year ftlass. And it is equally clear that

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tliis deprived Mi-. T)e Funis, and others similarly situated, 
of a right to compote for placement in the Law School under- 
some system of selection that does not discriminate against 
them on the grounds of race.

2. There is no showing here that this racial classification 
and preference for minority students is justified as a rem­
edy, either for present discrimination, or for the present 
effects of past discrimination.

(a) The record is barren of evidence that the Law School 
was motivated by an intent to discriminate against minority 
applicants. And there is no evidence that the School’s pres­
ent rules of selection have discriminatory consequences for 
minority applicants. Those rules as applied equally to all 
had produced a student body with a racial mix approxi­
mately that of the state (B ’nai B ’rith Juris. Stat. Brief, 
p. 14), and were based on criteria that reliably predicted 

'law school performance of both “ minority”  and majority 
students.

In a carefully considered and comprehensive decision, 
Vulcan Society v. Civil Service Comm., — F.2d —, 6 FEP 
Oases 1045 (C.A.2, Nov. 21, 1973), Judge Friendly has re­
viewed the standards for judging the legality of testing 
procedures challenged as discriminatory:

“ In Castro v. Beecher, supra, 459 F.2d at 732, the First 
Circuit stated that
‘The public employer must, we think, in order to justify 
the use of a means of selection shown to have a racially 
disproportionate impact, demonstrate that the means 
is in fact substantially related to job performance.’
Judge Coffin later referred to the defendants’ obli-

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gation to ‘ come forward with convincing facts estab­
lishing a fit between the qualification and the job.’ Td.
* * * [A] showing of a racially disproportionate impact 
puts on the municipal or state defendants not simply 
a burden of going forward but a burden of persuasion.
* * * But if the public employer succeeds in convincing 
the court that the examination was “ substantially re­
lated to job performance,”  an injunction should not 
issue simply because he has not proved this to the hilt.
* * * “ Cases like this one have led the courts deep into 
the jargon of psychological testing. Plaintiffs insist 
that the only satisfactory examinations are those which 
have been subjected to ‘ predictive validation’ or ‘ con­
current validation,’ preferably the former. The district 
court defined these terms as follows: ‘ Predictive vali­
dation consists of a comparison between the examina­
tion scores and the subsequent job performance of those 
applicants who are hired’ ; ‘ Concurrent validation re­
quires the administration of the examination to a group 
of current employees and a comparison between their 
relative scores and relative performance on the job.’ 
The judge wisely declined to insist on either. The Four­
teenth Amendment no more enacted a particular theory 
of psychological testing than it did Mr. Herbert 
Spencer’s Social Statics. Experience teaches that the 
preferred method of today may be the rejected one of 
tomorrow. What is required is simply that an examina­
tion must be ‘ shown to bear a demonstrable relation­
ship to successful performance of the jobs for which 
it was used.’ Griggs v. Duke Power Co., 401 U.S. 424, 
431; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
802 n.14. To be sure, an impressive showing of pre­
dictive validation may end the inquiry then and there, 
and one of concurrent validation may come close to 
•doing so; thus these methods may well be preferable 
in that sense. But these two schemes have their own



16

difficulties, and the failure to use one of them is not 
fatal, at least from a constitutional standpoint, as long 
as the examination is properly job-related.”  Vulcan 
Society, 6 FEP Cases at pp. 1049, 1050, footnotes 
omitted.

In the instant case even the threshold showing—“  racially 
.disproportionate impact” —necessary to require justifica­
tion of the Law School’s qualifications criteria has not 
been met. And, in any event, the “ demonstrable relationship 
to successful [school] performance,”  which must be proved 
on that showing, is, as we understand the record, universally 
acknowledged. *

(b) We hasten to add that none of this is -to say that 
the present criteria are the only lawful ones, or, indeed, 
that Mr. De Funis or any one else has a Fourteenth Amend­
ment right to insist on these or similar rules of selection.

The law is a field as broad as human experience itself. 
The range of permissible performance-related admission, 
criteria is correspondingly broad. The Law School retains 
the primary responsibility for the development of sensitive 
and accurate measures of qualification attuned to its edu­
cational mission as the School defines that mission. In 
Judge Friendly Trenchant paraphrase: “ The Fourteenth 
Amendment no more enacted a particular theory of psy­
chological testing than it did Mr. Herbert Spencer’s Social 
Statics.”  Vulcan Society, 6 FEP Cases at 1050. But that 
Amendment did enact a ban on rules of selection based on 
racial classifications. •' ,

. I

(c) Even proof of past discrimination against minority 
applicants would not validate the racial classification here



17

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H

i

which works a deprivation of the constitutional rights of 
the majority applicants.

Initially, it is difficult, at best, to give content to the 
concept of past discrimination by the Law School against 

• the minority applicants who are the beneficiaries of this 
preference. A number of attempts, by a single individual, 
over a period of years, to gain admission to a law school 
is the rare exception. Almost without exception to speak 
o f past discrimination in this context, as the court below 
recognized, is to speak of overall societal failures or 
failures at a lower rung in the educational ladder.

The policy of “ remedying”  such discrimination by sub­
stituting racial criteria for criteria “ shown to bear a 

4 demonstrable relationship to successful performance”
(Griggs v. Duke Power Co., 401 U.S. 424, 431) suffers from 
four fatal flaws:

First, “ the indiyidual [majority applicant who is not 
admitted] may have had no part in discrimination against 

4 blacks; to impose on him the costs of remedying societal 
discrimination seems unjust. It is all the more unjust since 
the burden would fall most heavily on, whites who are 
themselves relatively deprived.”  Developments In The Law 
—Employment Discrimination And Title VII Of The Civil 
Rights Act of 19C4', 84 Harv. L. Eev. 1109, 1116. To weight 
economic competition in this fashion against those who 
can not be said to have meaningfully participated in a , 
wrong is impermissibly close to imposing punishment on the 
ground of “ collective guilt,”  in effect creating “ attaints 
of the blood”  for all members o f non-minority groups.

Second, such racial classifications:
“ have serious countereducative effects. Gordon Allport

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has defined ethnic prejudice as ‘ an antipathy based 
upon a faulty and inflexible generalization.’ A crucial 
objective of any antidiscrimination [program] must, 
then, be education; it must break down faulty racial 
stereotypes. Preferences, however, have the reverse 
effect. * * * white [applicants], resentful of being 
turned down * * * due to minority quotas, will only 
have their stereotypes reinforced by a government that 
proclaims blacks and other minorities to be in need of 
special advantages.”  Ibid; footnotes omitted.

Both of these factors, as we have pointed out (at pp. 
supra) tend to create and maintain legitimate white fears, 
thereby increasing social tensions and exacerbating the 

, overall racial dilemma.

Third, the paternalistic grant of “ benign”  preferences 
serves to demean the recipient in his own eyes. The rein­
forcement of invidious stereotypes just noted is not confined 
to the majority applicants who are discriminated against. 
See McPherson, The Blade Law Student: A Problem of 
Fidelities, Atlantic Magazine, April 1970, p. 88; Gfraglia, 
Special Admission Of The “ Culturally Deprived”  To Law 
School, 119 U. of Pa. L. Rev. 351, 353-359. By the same 
token this device tends to deprive minority applicants, who 
have in fact qualified on merit, of the full recognition for 
their achievement they richly deserve. See p. supra.

Fourth, it is a delusion to believe that the overall inter­
ests of society are advanced by diluting the reliance on 
qualification and relying on race in selecting those who 

• will fill a limited number of positions (either in a profes­
sional school class or a job market). To the extent that well 
paying positions are plentiful and there is an economy of

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10

abundance, modifying rules of selection in this manner 
may be of relatively little moment except to tliose directly 
and adversely affected. Hut neither of those conditions 
obtain. These are not times that allow the prodigal waste - 
of scarce resources, the most valuable of which is “ efficient 
and trustworthy workmanship assured through fair and 
racially neutral employment and personnel decisions,”  
(McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801), 
responsive to the expectation that achievement brings re­
wards. Thus:

, i
“ Many economists have suggested that in increasing 

: equality, productivity should not be sacrificed. Instead, ]
output should be maximized and changes made in the 
way tliat output is distributed. Such an approach is 
a more refined and efficient means of giving aid, since , 
the beneficiaries can be identified more precisely and , 
the true costs of the process can be computed with 
greater precision.”  Developments— Title VII, 84 Harv. 
L. Rev. at 1115.

The sum of the matter is that this racial classification is 
“ an invidious discrimination forbidden by the Equal Pro­
tection Clause”  (McLaughlin v. Florida, 379 U.S. 184, 193), ■> 
because the guarantee of the “ equal protection of the law 
can not be squared with a system that deprives members 
of one race of their rights in order to provide “ recom­
pense”  tp members of another.

This conclusion accords with that reached by Congress. 
Cf. Katzenbach v. Morgan, 384 U.S. 641. The problem here 
is in all essential respects that treated in Title VII, where 
Congress banned all employment discrimination against, 
minority groups, (§§703(a)-(d)) as well as preferences for



20

them (§703( j )) and affirmed the lawfulness of job-related 
qualifications. (§703(h)). As this Court stated in Griggs 
40b U.S. at 430-431 (footnote omitted):

The Court of Appeals’ opinion, and the partial dissent, 
agreed that, on the record in the present case, “ whites 
register far bettor on the Company’s alternative re­
quirements’ ’ than Negroes. 420 F. 2d 1225,' 1239 n. 6. 
This consequence would appear to bo directly traceable 
to race. Basic intelligence must have the means of 
articulation to manifest itself fairly in a testing 
process. Because they are Negroes, petitioners have 
long received inferior education in segregated schools 
and this Court expressly recognized these differences 
in Gaston County v. United States, 395 U.S. 285 
(1969). There, because of the inferior education re­
ceived by Negroes in North Carolina, this Court barred 
the institution of a literacy test for voter registration 
on the ground that the test would abridge the right to 
vote indirectly on account of race. Congress did not 
intend by Title VII, however, to guarantee a job to 
every person regardless of qualifications. In short, the. 
Act does not command that any person be hired simply 
because he was formerly the subject of discrimination, 
or because he is a member of a minority group. Dis­
criminatory preference for any group, minority or 
majority, is precisely and only what Congress has 
proscribed. What is required by Congress is the re­
moval of artificial, arbitrary, and unnecessary barriers 
to employment when the barriers operate invidiously 
to discriminate on the basis of racial or other im­
permissible classification’ ’

The critical difference between Gaston County, on the 
one hand, and Griggs and the instant case, on the other, 
is that in the former the method utilized to eradicate the



21

effects of past discrimination did not deprive any other 
voter of his rights, while in the latter, to substitute selec­
tion on the basis of race for selection on the basis of 
qualification does impinge on the rights of those not 
accorded the preference, because their opportunity to obtain 
one of a limited number of places is correspondingly 
diminished.

(d) The burden of the argument thus far has been that 
racial classifications that result in a preference, in securing 

' one of a limited number of openings, to less qualified 
minority applicants over more qualified majority appli­
cants, as measured by criteria “ shown to bear a demonstra­
ble relationship to successful performance,”  ( Griggs, 401 
U.S. at 431), does not meet the.jequirements of the Consti­
tution. There is a contrary line of authority in the lower 
federal courts upon which the court below relied. The most 
recent decision in that line is Associated General Con­
tractors v. Altshuler, ------F. 2d------ , 6 FEP Cases 1031
(C.A.l, Nov. 30,1973).

In Altshuler, the court sustained the validity of a re­
quirement, imposed by the Commonwealth of Massachu­
setts, upon contractors engaged in publically funded con­
struction, that the contractor must:

“  ‘ . . . maintain on his project, which is located in an 
area in which there are high concentrations of minor­
ity group persons, a not less than twenty percent ratio 
of minority employee man hours to total employee man » 
hours in each job category. . . . ’ ”

• ♦ # #
. “ The Secretary of Transportation and Construction 

for the Commonwealth, who is charged with enforcing



22

[this] provision, interprets [it] to mean that [the 
Commonwealth] requires the hiring of only ‘ qualified’ 
workers.”

Contractors who do not meet this ratio are subject to 
sanctions unless at a hearing they demonstrate that they 
have taken “ every possible measure to achieve compli­
ance.”  6 FEP Cases at 1014.

The First Circuit recognized that:
“The Commonwealth’s affirmative action plan forces us 
to address a fundamental question: are there consti­
tutional limits to the means by which racial criteria 
may be used to remedy tbe present effects of past dis­
crimination and achieve equal opportunity in the fu­
ture?”  6 FEP Cases at 1019.

The answer it proposed was that rules of selection may be 
based on racial criteria so long as these do not require pref­
erence to “ unqualified minority workers,”  and so long, as 
the employer is granted the opportunity to prove that the 
only reason he did not meet his assigned “ goal”  is that to 
.do so he would have been required to hire “ unqualified mi­
nority workers.'”  6 FEP Cases at 1019-1021. This was in 
essence the approach of Contractors A ss’n. of Eastern Pa. 
v. The Secretary of Labor, 442 F.2d 159 (C.A.3) cert, 
denied 404 U.S. 854, where the court relied upon the asser­
tion that the goals and timetables for minority hiring there 
set would not “ eliminat[e] job opportunities for white 
tradesmen,”  (422 F.2d at 173).

But neither the First Circuit nor the Third Circuit (or 
the other of the lower courts that have embraced this posi­
tion) have explained the justification for discriminating in 
favor of less qualified minority workers and against, more



23

qualified majority workers. This is undoubtedly because no 
justification exists. The harm to the majority worker who 
is thereby unemployed is precisely the same. It is, in fact, 
precisely the same as the harm visited upon a more qualified 
minority worker who is rejected in favor of a less qualified 
majority worker on racial grounds.

This Court has therefore emphasized that:
“ Congress has not commanded that the less qualified be 
preferred over the better qualified simply because of 
minority origins. Far from disparaging job qualifica­
tions as such, Congress has made such qualifications 
the controlling factor, so that race, religion, nationality, 
and sex become irrelevant.”  Griggs, 401 U.S. at 436. '

Thus, it is not constitutionally sufficient that the better > 
qualified worker had an attenuated opportunity for a job 
rather than having his job opportunities “ eliminated” . For 
his right is to a system of selection embodying “ fair and 
racially neutral employment and personnel decisions,”
( cf., McDonell Douglas, 411 U.S. at 801).

(e) The conclusion that the decision below, and kindred 
decisions such as Altshuler, are wrongly decided does not 
“ provide equality of opportunity merely in the sense of 
the fabled offer of milk to the stork and the fox.”  Griggs,
401 U.S. 431. The argument pressed here rests on the 
premise that if a method of selection “ which operates to 
exclude Negroes cannot be shown to be related to * * * 
performance, [it] is prohibited.”  Ibid. Moreover, organized 
labor’s entire response to'the challenge of providing equal 
employment opportunity is predicated upon the recogni­
tion: first, that the range of affirmative actioji open to 
enable minority Americans to meet performance related

\



/

24

rules of selection is, and should be, all but unlimited; and, 
v second, that affirmative action, in this sense, does work. 

See pp. supra. But we do insist that Government may 
“ not command that any person be [preferred] simply 
because he was formerly the subject of discrimination, 
or because he is a member of a minority group,”  and 
that the Constitution does forbid “ discriminatory pref­
erence for any group, minority or majority,”  (cf. Griggs4 
.401 U.S. at 431).

-----—'V..



25

CONCLUSION

For the reasons set out above, as well as those stated 
by the appellants, and the other amici supporting their 
position, the decision below should be reversed.

Ts . '

AT.

(A Hi

*

Respectfully submitted,
J. A lbert W oll i

General Counsel, AFL-CIO 
R obert C. M ayer 
L aurence Gold 
* 736 Bowen Building 

815 Fifteenth Street, N.W. 
Washington, D. C. 20005

T homas E. H arris 
Associate General Counsel, 

AFL-CIO
815 Sixteenth Street, N.W. 
Washington, D. C. 20006