Barry v. United States Brief for the United States in Opposition

    No. 87-1150

in  tfje Supreme Court of tfjc Hmteb states
October Term, 1987

Marion S. Barry, etc., et al., petitioners

United States of America, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED ST A TES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Charles Fried 
Solicitor General 

Wm. Bradford Reynolds 
Assistant A ttorney General

David K. Flynn 
Robert J. Delahunty 

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



QUESTION PRESENTED

Whether the hiring portions of the District of Columbia 
Fire Department’s now-superseded affirmative action 
plan, which created a racial quota for selecting entry-level 
firefighters, violated Title VII of the Civil Rights Act of 
1964, 42 U.S.C. 2000e et seg.

(I)





TABLE OF CONTENTS

Page
Opinions below ............................................................................  1
Jurisdiction.................................................................................  1
Statement ...............................    2
Argument .............    10
Conclusion .................    16

TABLE OF AUTHORITIES

Cases:
Bishopp v. District o f  Columbia, 788 F.2d 781 (D.C. Cir.

1986) ...........    15
Connecticut v. Teal, 457 U.S. 440 (1982)...........................  14, 15
Dougherty v. Barry, 607 F. Supp. 1271 (D.D.C. 1985) . . .  15
Firefighters Local No. 1784 v. Stotts, 467 U.S. 561

(1984) ................................................................................. 16
Fullilove v. Klutznick, 448 U.S. 448 (1980).......................   14
Johnson v. Transportation Agency, No. 85-1129 (Mar. 25,

1987) ................................................................ 9, 10, 13, 14, 15
Local 28, Sheet Metal Workers’ Int’l Ass’n v. EEOC,

No. 84-1656 (July 2, 1986)...............................................  14
McCormick v. District o f  Columbia, 554 F. Supp. 640

(D.D.C. 1982)................................................................... 15
Steelworkers v. Weber, 443 U.S. 193 (1979)..................7, 10, 13
Stone v. FCC, 466 F.2d 316 (D.C. Cir. 1972)...................  11
United States v. County o f  Fairfax, 629 F.2d 932 (4th Cir.

1980), cert, denied, 449 U.S. 1078 (1981)........................ 12
United States v. Town o f Cicero, 786 F.2d 331 (7th Cir.

1986) .....................    11
University o f  California Regents v. Bakke, 438 U.S. 265

(1978).............................     13-14
Washington v. Davis, 426 U.S. 229 (1976)........................ 3

Constitution, statutes and regulation:

U.S. Const. Amend. V (Due Process Clause)...................  5 ,8
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e 

et seq................................................................................... 5

(III)



IV

Statutes and regulation -  Continued: p age
D.C. Code Ann. (1987):

§1-507 .....................................    8
§§ 1-507 to 1-514.......................... ............ . 4
§ 1-608.1(e)(1) ......................  7

29 C.F.R. 1607.4 (D) ........................ ................................... 4



in  ttje Supreme Court of ttje Mmteb states
October Term, 1987

No. 87-1150
Marion S. Barry, etc., et al„ petitioners

v.
United States of America, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED ST A TES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-78a) 
is reported at 813 F.2d 412. A subsequent opinion of the 
court of appeals denying a petition for rehearing (Pet. 
App. 79a-123a) is reported at 826 F.2d 73. The order of 
the court of appeals granting rehearing en banc (Pet. App. 
167a-168a) is reported at 833 F.2d 367; the opinion and 
order of the court of appeals vacating the order in which 
rehearing en banc was granted (Supp. Pet. App. la-3a) is 
unreported. The opinion of the district court (Pet. App. 
124a-156a) is reported at 606 F. Supp. 1082. The opinion 
of the district court granting a motion for a stay pending 
appeal (Pet. App, 159a-163a) is unreported.

JURISDICTION

The judgment of the court of appeals was initially 
entered on February 27, 1987. A timely petition for re­
hearing was denied on August 14, 1987 (Pet. App. 166a). 
On October 26, 1987, the Chief Justice extended the time

0 )



2

for filing a petition for a writ of certiorari to and including 
January 11, 1988 (Pet. App. 169a). On November 20, 
1987, the court of appeals granted a suggestion for rehear­
ing en banc (Pet. App. 167a-168a). On January 11, 1988, 
petitioners filed both a petition for a writ of certiorari and 
a motion that the Court defer consideration of the petition 
and grant leave for the filing of a supplemental petition in 
light of the en banc decision of the court of appeals. On 
March 4, 1988, the court of appeals vacated its earlier 
order granting rehearing en banc. A supplemental brief in 
support of the petition for a writ of certiorari was then 
filed on March 16, 1988. The jurisdiction of this Court is 
invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In October 1980, two black firefighters of the 
District of Columbia’s Fire Department filed complaints 
with the District of Columbia’s Office of Human Rights 
(OHR) (Pet. App. 3a). The complaints alleged that, begin­
ning in October 1979, the Fire Department had engaged in 
racially discriminatory acts, including the use of un­
validated tests for the hiring of entry-level firefighters 
{ibid.). In June 1981, without the benefit of an evidentiary 
hearing, the Director of OHR issued a “Summary Deter­
mination” in which he found that a prima facie case of 
discrimination existed with respect to the Fire 
Department’s recruitment, hiring, and promotion prac­
tices (ibid.). In August 1981, the OHR Director ordered 
that 60 of the next 70 entry-level firefighter positions be 
filled with minorities {ibid.). The Fire Department, deny­
ing that it had committed any discrimination whatsoever, 
appealed this ruling, and an appellate officer remanded 
the complaints for reconsideration {id. at 4a).

On remand, after holding 50 days of adjudicatory hear­
ings, throughout which the Fire Department adamantly



3

denied having committed any discrimination whatsoever, 
an OHR Hearing Examiner rejected the bulk of the com­
plaining parties’ allegations (Pet. App. 4a-8a). The Ex­
aminer found that the complainants had failed to show 
that the job qualifications established for entry-level fire­
fighters were either intentionally discriminatory or had an 
adverse impact on blacks; and he further found that there 
was no evidentiary basis for the claim that the Fire Depart­
ment had discriminated against blacks in recruiting or that 
its promotion process was infected by discrimination (Pet. 
App. 4a-8a & n.5). The Examiner did note that the un­
validated entry-level written examination which the Fire 
Department began using in November 1980 would have 
had an adverse effect on blacks had it been used as a rank­
ordering device (id. at 5a). But he found that, except for a 
short period in early 1981, the Fire Department had used 
the test only as a pass-fail screening device, with the pass­
ing score set at a level one would reasonably expect to 
achieve by answering the questions at random (id. at 5a, 
7a, 8a-10a).‘ Finally, the Examiner found (id. at 7a) that

1 Prior to January 1980, the federal government was responsible for 
testing at the entry level of the Fire Department (Pet. App. 8a). The 
federal government —specifically, the Civil Service Commission and, 
after 1978, the Office of Personnel Management (OPM) —had relied 
on “Test 21,” the written test that this Court in Washington v. Davis, 
426 U.S. 229 (1976), found to be valid as applied to entry-level hiring 
in the District of Columbia’s Police Department (Pet. App. 8a). At the 
request of the Fire Department, however, beginning in the early 
1970’s, the registers of those passing Test 21 were exhausted before a 
new examination would be administered. Thus, in order to avoid the 
disparate effect that Test 21 had on minority candidates, the test was 
essentially used as a screening device, rather than a rank-ordering 
device, for the hiring of entry-level firefighters (ibid.).

Beginning in the 1980s, when the Fire Department took over the 
responsibility for entry-level testing, OPM and the Fire Department 
jointly developed and implemented an examination that they believed



4

the Fire Department had failed to achieve a racial com­
position in its workforce corresponding to the racial com­
position of the adult population of the District of Colum­
bia and, therefore, that it had failed to comply with D.C. 
Law 1-63 (D.C. Code Ann. §§ 1-507 to 1-514 (1987))/ 
which mandates proportional representation of “all 
groups” within the District of Columbia’s working age 
population in all employment categories.

Based on these findings, the Examiner recommended 
that the Fire Department validate its entry-level test; 
establish written procedures for investigating the 
background of applicants to ensure that black applicants 
are processed at the same rate as white applicants; exhaust 
the eligibility list established as a result of the examination 
administered in 1980, assigning to all hired from that list 
the same date of hire; and adopt and implement an affirm­
ative action plan (Pet. App. 7a-8a, 10a-13a, 128a-129a). 
The OHR affirmed the Examiner’s recommendations in all 
material respects and, in November 1983, issued an order 
to this effect {id. at 12a-13a). Neither the Fire Department 
nor the complaining parties sought review {id. at 13a).

2. During the course of the OHR proceedings, the Fire 
Department continued its aggressive recruitment of 
minorities (Pet. App. 13a). Thus, in 1982, 67.5% of its 
new hires were black; in 1983, 80.5% of its new hires were

would better predict job performance —the Firefighters Service Test 
(FST) (Pet. App. 8a). OPM and the Fire Department developed the 
FST in accordance with the EEOC’s Uniform Guidelines on Employee 
Selection Procedures, 29 C.F.R. 1607.4(D), and thus believed that it 
was a valid, nondiscriminatory selection device, even if used for rank­
ordering purposes (Pet. App. 8a-9a). After using the FST as a rank­
ordering device for a brief period in January 1981, however, the Fire 
Department’s experts advised it that the FST might not be valid, and 
the Fire Department promptly ceased using the FST as a rank­
ordering device (id. at 9a-10a, 12a n.12).



5

black; and, in 1984, 78.6% of its new hires were black 
(ibid.). Nevertheless, in March 1984, because the Fire 
Department planned to administer its entry-level examina­
tion again, the Progressive Fire Fighters Association and 
four minority applicants filed suit to enforce the OFIR’s 
order and to require the Fire Department to eliminate the 
racial disparities that allegedly existed in the firefighter 
ranks (id. at 14a). Two months later, the district court 
entered a consent decree in which the Fire Department 
agreed to validate an entry-level test, to submit a proposed 
affirmative action plan to the court, and to hire from the 
eligibility list derived from the 1984 examination only after 
exhausting the eligibility list derived from the 1980 ex­
amination (ibid.). The consent decree made clear, 
however, that it was “ ‘neither an admission nor a finding 
that the [Fire Department] ha[d] violated any law or 
regulation regarding prohibited discrimination’ ” (ibid.).

In February 1985, the Fire Department submitted a pro­
posed affirmative action plan to the court (Pet. App. 14a). 
It addressed both hiring and promotion issues (id. at 
14a-15a). With respect to hiring, it provided, among other 
things, that each entering class of firefighters would be at 
least 60% black (id. at 15a n.14).

3. In March 1985, eight nonminority firefighters and 
their union, Local 36, International Association of 
Firefighters, filed suit in the district court, alleging that the 
promotion provisions of the plan violated Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e et seg., and the 
Due Process Clause of the Constitution (Pet. App. 15a). 
Shortly thereafter, the United States filed a similar suit, 
challenging the hiring as well as the promotion provisions 
of the plan (ibid.). The district court consolidated the 
three cases (id. at 129a-131a).

In April 1985, on the parties’ cross-motions for sum­
mary judgment, the district court sustained the hiring pro-



6

visions against statutory and constitutional attack and 
struck down the promotion provisions as violative of Title 
VII (Pet. App. 124a-156a). The court found (id. at 
13la-132a, 140a-144a) that the Fire Department had been 
segregated in the 1950s; that some “vestiges” of this past 
discrimination remained; that the 60% hiring quota was 
“reasonable” because over 60% of the persons taking the 
unvalidated 1984 examination were black; and that white 
applicants were not “ ‘unnecessarily trammelled]’ ” (id. at 
143 a (citation omitted)) by the quota because they had lit­
tle expectation of or entitlement to a job with the Fire 
Department. Thus, although it was “not comfortable with 
[the plan’s] racially based discriminations,” and stated that 
“in this case perhaps a strength or agility test might be less 
objectionable,” the court approved the hiring provisions 
of the plan (id. at 151a). But it found that the promotion 
provisions “ ‘unnecessarily trammelled]’ upon the rights 
and interests of the white firefighters, who are in line for 
promotions, by advancing blacks based solely on their 
race over more qualified and more senior white fire­
fighters” (id. at 152a). Finally, by order of April 26, 1985 
(id. at 159a-163a), it ruled that the Fire Department should 
be permitted to hire entry-level personnel pursuant to the 
plan “until or unless modified by a higher court” (id. at 
163a).

4. On appeal by the United States,2 a divided panel of 
the court of appeals reversed (Pet. App. la-78a). Drawing 
upon cases decided under both Title VII and the Constitu­
tion (id. at 19a-27a), the court concluded that “remedia­
tion of present discrimination (or extant results of its 
insidious prior operation) is the absolutely indispensable 
element of the legality of remedies which differentiate

2 The Fire Department did not appeal the invalidation of the pro­
motion provisions of the plan.



7

human beings on the basis of race” (id. at 27a). The court 
further noted (id. at 28a) that “the law contains yet 
another hurdle before a race-preference program may 
properly be employed: the remedy crafted to address a 
violation must be tailored to fit that violation.” The court 
concluded that the Fire Department had “failed to estab­
lish the requisite predicate of discrimination and did not 
consider, let alone employ, alternatives to its race- 
preference plan” (id. at 3a).

With respect to the predicate of discrimination, the 
court found that “the racial preference plan had nothing to 
do with ‘breaking] down old patterns of racial segregation 
and hierarchy’ ” (Pet. App. 32a, quoting Steelworkers v. 
Weber, 443 U.S. 193, 201,208 (1979)). The court reasoned 
(Pet. App. 34a-35a) that, since 1981, the average percent­
age of blacks filling entry level positions had far exceeded 
their proportion — 29.3% — within the relevant job market, 
the Washington Metropolitan area,3 and had even ex­
ceeded each year “the 74.35 black percentage in the 1980 
applicant pool.” “Since 1981 * * * an average of no less 
than 75.5 percent of those hired each year have been 
black” (id. at 33a). Even “between 1969 and 1980, an 
average of 41.8% of those hired by the Fire Department 
each year were black” (id. at 32a). In light of these 
statistics, the court concluded (id. at 32a-33a) that there 
was no basis for finding that the affirmative action plan 
was “designed to dismantle the structure of discrim­
ination” (id. at 36a).

3 Until the District of Columbia enacted a law in 1980 requiring new 
hires to become District residents within six months (see D.C. Code 
Ann. § 1-608.1(e)(1) (1987)), the Fire Department had extensively 
recruited firefighters from this greater metropolitan area (such that 
about half of its entry-level firefighters were suburbanites). Even after 
1980, the Fire Department continued to hire firefighters in substantial 
numbers from the surrounding suburbs. See Pet. App. 34a, 90a n.8.



8

The court also found that the Fire Department had 
failed to tailor its affirmative action remedy to the only 
discrimination-related concern articulated by the Depart­
ment—its concern to avoid the adverse impact of a rank- 
order use of its hiring test (Pet. App. 36a-40a). The court 
reasoned that the Fire Department had been “unimagina­
tive in the extreme in seeking to avoid a regime of racial 
preferences,” observing that the Fire Department had 
refused even to consider using tests employed by fire 
departments in other jurisdictions (id. at 38a-39a). It 
stated that the Department “could have exhausted the 1984 
eligibility list” (id. at 39a), or “moved in the intervening 
years to validate the FST for rank-order use (as the experts 
at OPM thought had already been done as of 1979)” 
(ibid.). Or, it added, the Fire Department “could have 
ceased to use the test, especially since * * * the passing 
score was set at such a meek and lowly level that the exam 
results, at least in the lower strata, would seem virtually 
meaningless” (ibid.). The court thus concluded (ibid.) that 
the District’s affirmative action plan violated Title VII and 
the Due Process Clause because, “even assuming arguendo 
that the District’s hiring procedures constituted a ‘viola­
tion’ necessitating remedial action, its race-based hiring 
methods were not narrowly tailored to accomplish its 
remedial purposes.”

Finally, the court addressed the question “why the 
District of Columbia would embark upon this course” and 
found the answer in “[the Fire Department’s] effort to 
achieve a strict racial balance in its workforce in com­
pliance with” D.C. Law 1-63 (D.C. Code Ann. § 1-507 
(1987)) (Pet. App. 40a-41a). That statute requires every 
agency in the District of Columbia government to have, as 
a hiring goal, “full representation, in jobs at all salary and 
wage levels and scales, in accordance with the representa­
tion of all groups in the available work force of the Dis-



9

trict of Columbia, including, but not limited to, Blacks, 
Whites, Spanish-speaking Americans, Native Americans, 
Asian Americans, females and males” (id. at 41a). The 
court concluded that “the statutory goal of a racially 
balanced workforce is not only an inadequate ground 
upon which to support the [affirmative action plan], * * * 
[it] is a ground that stands condemned by Title VII and the 
higher law of the Constitution” (id. at 43a).

5. On petition for rehearing, the divided panel ruled 
that the decision in Johnson v. Transportation Agency, 
No. 85-1129 (Mar. 25, 1987), did not lead to a different 
result (Pet. App. 79a-123a). The court reasoned (id. at 
82a-83a) that, in requiring affirmative action plans to be 
justified by the existence of a “manifest imbalance” re­
flecting underrepresentation in “traditionally segregated 
job categories,” the Court in Johnson “was * * * clear in 
relating the existence of employment discrimination (and 
the goal of eliminating its effects) to the bedrock Congres­
sional purposes informing Title VII” (id. at 83a). See also 
id. at 94a-95a. After noting that its decision was grounded 
solely on Title VII (id. at 86a),4 the court reviewed the 
racial composition and hiring patterns of the Fire Depart­
ment (id. at 86a-90a) and concluded that “there is no 
manifest imbalance in the District’s Fire Department; in­
deed, there is manifestly no imbalance at all” (id. at 90a). 
Rather, the court said, “[i]t could hardly be plainer that

4 The court elected not to resolve the issue, raised sua sponte by the 
court following oral argument on the rehearing petition, whether the 
United States has standing to challenge the constitutionality of the af­
firmative action plan. Accordingly, it declined to rule on the constitu­
tional challenge to the plan (Pet. App. 84a-86a). Judge Silberman, 
while joining the opinion of Judge Starr for the court, concluded for 
himself that the United States does have such standing, and also con­
cluded that the affirmative action plan is invalid on constitutional as 
well as Title VII grounds (id. at 98a-l 1 la).



10

the District’s Fire Department is not burdened with the 
clogged channels of opportunity that characterized the 
employment situation in Johnson * * *” (id. at 90a-91a). 
It then turned to the “tailoring” issue and noted that, 
whereas Johnson involved an affirmative action plan that 
set aside no specific numbers of positions for minorities or 
women and that merely authorized consideration of 
ethnicity or sex as one factor in evaluating qualified can­
didates, the Fire Department’s plan used race as a “hard­
core, cold-on-the-docks quota,” and “nothing less” (id. at 
91a-92a). For these reasons, the court concluded (id. at 
94a-97a) that the decision in Johnson did not require a 
change in either the legal methodology employed by the 
panel majority or the conclusion it had thereby reached.

ARGUMENT

The decision below is correct. It does not conflict with 
any decision of this Court or of any other court of ap­
peals. Accordingly, review by this Court is not warranted.

1. The Fire Department’s affirmative action plan 
plainly does not seek to eliminate a “manifest imbalance” 
in a “traditionally segregated job category.” While the Fire 
Department was segregated in the 1950s, an average of 
over 40% of those hired as firefighters by the Fire Depart­
ment since 1969 have been black; and roughly 37% of the 
present employees of the Fire Department are black (Pet. 
App. 107a n.9 (Silberman, J., concurring)). Therefore, 
there is no basis for suggesting either that the entry-level 
firefighter position continues to be reserved for white 
employees, or that it is so perceived. Cf. Steelworkers v. 
Weber, 443 U.S. at 198 n.l; Johnson v. Transportation 
Agency, slip op. 15-16. Moreover, whether the firefighter 
position is correctly characterized as a “traditionally 
segregated job category]” or not, there plainly was no im-



11

balance, must less a “manifest imbalance,” in that job 
category at the time the Fire Department put this affirma­
tive action plan into effect. The 37% black population 
within the Fire Department compares very favorably to 
the 29% black population in the greater Washington 
metropolitan area.5 And while the Fire Department’s ap­
plicant pool was about 74.53% black in 1980 and 64.6% 
black in 1984, the Fire Department hired on average at 
least 75% blacks for the firefighter positions that opened

5 In originally concluding that a “manifest imbalance” existed, 
Judge Mikva argued in dissent below (Pet. App. 65a) that the 37% 
representation of blacks in the Fire Department should be compared 
to the working age population of the District of Columbia, which is 
70% black. But, as the panel majority recognized (id. at 88a-90a, 107a 
& n.9), the Fire Department’s past and present recruitment practices, 
which have successfully reached far outside of the District, indicate 
that the greater Washington metropolitan area is the far more ac­
curate benchmark. See Stone v. FCC, 466 F.2d 316, 322 (D.C. Cir. 
1972) (greater Washington SMSA data, not District data alone, is the 
proper benchmark for determining whether radio station discrim­
inated in hiring). In any event, it does not appear that the definition of 
the most appropriate geographic market for statistical comparisons 
with respect to the hiring of firefighters for the District of Columbia 
raises a question worthy of review by this Court.

In his dissent to the denial of rehearing, Judge Mikva further sug­
gested that (Pet. App. 118a) a “manifest * * * imbalance” existed be­
tween the percentage of blacks in the Fire Department and the per­
centage of blacks in the overall workforce of the District of Columbia 
government. Whether such an imbalance exists or not, this com­
parison is not legally relevant. The work force of the District of Co­
lumbia government is not the labor pool from which entry level 
employees of the Fire Department are drawn, and, therefore, com­
parisons of the racial compositions of the two work forces proves 
nothing about discrimination or imbalances in traditionally segregated 
job categories. See United States v. Town o f Cicero, 786 F.2d 331, 
335-337 (7th Cir. 1986) (Posner, J., concurring and dissenting).



12

up in all years after 1981.6 Thus, the court below quite cor­
rectly held (Pet. App. 86a-91a) that there was no “manifest 
imbalance” in the firefighter position that could justifiably 
be corrected by a racial quota.7

6 As Judge Silberman noted (Pet. App. 107a n.9), the suggestion of 
Judge Mikva (id. at 120a) and petitioner (Pet. 17) that a “manifest im­
balance” may be found in the disparity between the representation of 
blacks in the work force (37%) and the representation of blacks in the 
1984 applicant pool (64.6%) muddles “stock” and “flow” statistics. In­
deed, under this reasoning, an employer can create an artificial 
justification for race-conscious action simply by increasing the flow of 
minority applicants through vigorous recruitment methods.

7 Petitioners’ off-handed suggestion (Pet. 11 n.5) that, in making 
this judgment, the court below improperly overturned the findings of 
fact by the district court is wrong. The district court decided this case 
on cross-motions for summary judgment based on stipulated facts. 
The district court was thus in no position to, and did not, make any 
findings of fact. Concomitantly, in reviewing the district court’s judg­
ment, the court of appeals was entitled —indeed, required —carefully 
to review the summary judgment record and to apply the law to that 
record.

Petitioners further err in suggesting (Pet. 17-18) that the decision 
below conflicts with United States v. County o f Fairfax, 629 F.2d 932, 
940 (4th Cir. 1980), cert, denied, 449 U.S. 1078 (1981). In that case, 
the Fourth Circuit held that statistics concerning representation of 
minorities in the greater metropolitan Washington area did not pro­
vide an appropriate benchmark for assessing whether Fairfax 
County’s local government had engaged in discrimination. Nothing in 
that holding addresses, much less decides, whether such statistics pro­
vide an appropriate benchmark for assessing whether the District of 
Columbia government has engaged in discrimination —and there is no 
reason to assume that these labor markets are in fact symmetrical 
(and, indeed, common experience teaches that more suburban 
dwellers will work in the city than vice versa). In any event, the Fourth 
Circuit held only that the district court’s judgment approving use of 
applicant flow figures in that case was not clearly erroneous; it did not 
hold that applicant flow figures must always be used.



13

2. Contrary to petitioners’ assertion (Pet. 12-14), 
Johnson does not hold that race-conscious employment 
action may be taken in the absence of any predicate of past 
discrimination. On the contrary, the Court in Johnson 
said (slip op. 9-10) that its judgment “must be guided by 
[its] decision in [Steelworkers v.] Weber, [433 U.S. 193 
(1979)],” which found that, where blacks have been 
historically excluded from a position, “taking race into ac­
count [is] consistent with Title VII’s objective of 
‘breaking] down old patterns of racial segregation and 
hierarchy’ ” (slip op. 10 (citation omitted)). The Johnson 
Court then determined (id. at 13, 14) that the affirmative 
action plan at issue there was prompted by “concerns 
similar to those of the employer in Weber’’1 — specifically, 
the elimination of “the effects of employment discrimina­
tion.” And while the Court said that an employer need not 
produce the evidence necessary to support a prima facie 
case of discrimination against itself (id. at 14), it reiterated 
(id. at 19) that the employer must produce evidence that its 
plan “satisfies the first requirement enunciated in 
Weber” — i.e., that the plan aims to break down old and 
continuing patterns of racial segregation and hierarchy. 
Johnson thus reaffirms the requirement of prior, per­
sisting exclusion or segregation as a necessary predicate to 
race-conscious employment action.

3. Petitioners similarly err in suggesting (Pet. 13-14) 
that, under Johnson, an employer may undertake race­
conscious action without tailoring its remedial action to 
the manifest imbalance identified, including consideration 
of race-neutral alternatives. Johnson makes clear that an 
affirmative action plan must not “unnecessarily trammel[] 
the rights of male [or nonminority] employees or createf] 
an absolute bar to their advancement” (slip op. 19). In do­
ing so, Johnson relies heavily on Justice Powell’s opinion 
in University o f California Regents v. Bakke, 438 U.S. 265



14

(1978), which expressly warns that race-conscious action is 
appropriate only where it is properly tailored to the nature 
of the problem it seeks to correct. And, as Justice Powell 
has explained elsewhere, any legitimate effort at tailoring 
of remedies requires a consideration of alternatives — 
including non-race based ones. See Fullilove v. Klutznick, 
448 U.S. 448, 510-511 (1980) (Powell, J., concurring). 
That remedial action is voluntary should not and does not 
change the degree of care that the law requires of the 
employer.8

Here, the Fire Department did not even consider using 
nonracial means —such as recruitment through a cadet 
program, development of a valid test, or use of a physical 
agility requirement —to hire firefighters. Cf. Local 28, 
Sheet Metal Workers’ In t’l Ass’n v. EEOC, No. 84-1656 
(July 2, 1986), slip op. 23 (plurality opinion) (normal 
remedies for employment discrimination are not race­
conscious). Far from the situation in Johnson where sex 
was used as a “plus-factor” in choosing among closely 
competing candidates (see Johnson v. Transportation 
Agency, slip op. 18-19), here race was the only factor 
used, apart from the requirement of achieving an ex­
amination score equivalent to what can be achieved by 
random choice. Blind reliance on race fails Johnson’s re­
quirement that an employer using an affirmative action 
plan tailor its race-conscious action to ensure that the 
rights of nonminorities are not unnecessarily trammelled.

4. Petitioners appear to contend (Pet. 14-17) that the 
Fire Department’s hiring quota was designed to “remedy”

8 Petitioners’ assertion (Pet. 14) that nonminority candidates have 
no “legitimate expectations” of being evaluated without regard to their 
race because the Fire Department has failed to develop a non- 
discriminatory test is inconsistent in principle with this Court’s deci­
sion in Connecticut v. Teal, 457 U.S. 440 (1982), and stands Title VII’s 
nondiscrimination guarantee on its head.



15

an arguable disparate impact arising from the employment 
tests it has administered. But, with one minor exception,9 
the Fire Department never employed these tests as rank­
ordering devices —precisely because it wanted to increase 
the representation of minorities in its ranks. See Pet. App. 
8a. Thus, as petitioners themselves maintained throughout 
the administrative proceedings giving rise to this case (see 
id. at 5a), there is no basis for suggesting that a prior 
history of discrimination can be attributed to the use of 
these tests.10 In any event, petitioners did not properly 
tailor their so-called remedial action to address their 
allegedly discriminatory tests. On the contrary, they sim­
ply adopted a bottom-line quota —providing that, in hir­
ing firefighters, the Fire Department must hire a percent­
age of blacks equal to the percentage of blacks that passed 
their unvalidated examination —in order to achieve com­
pliance with District of Columbia law. Such actions 
unlawfully discriminate against all individuals protected 
by Title VII —white and Flack. See Connecticut v. Teal, 
457 U.S. 440 (1982); Johnson v. Transportation Agency, 
slip op. 18.

5. As petitioners note (Pet. 10), the affirmative action 
plan in issue here has expired and been superseded by a 
racially-neutral hiring plan that petitioners themselves 
have proposed and that the United States has accepted.11

9 As to this exception, the Fire Department took immediate steps to 
remedy the effects of that action long before it proposed the affirm­
ative action plan at issue in this case. See Pet. App. 33a n.29.

10 By contrast, the courts have found marked animus against non­
minorities and males in the upper levels of the Fire Department in re­
cent years. See Pet. App. 105a, citing Bishopp v. District o f Colum­
bia, 788 F.2d 781, 786-789 (D.C. Cir. 1986); Dougherty v. Barry, 607 
F. Supp. 1271, 1284 (D.D.C. 1985); McCormick v. District o f Colum­
bia, 554 F. Supp. 640 (D.D.C. 1982).

11 Under the terms of the new plan, selection of entry-level 
firefighters will be made solely on the basis of a “cadet program,”



16

While this action does not moot the case, at least for the 
reason that claims for monetary relief may still turn upon 
it (see Firefighters Local No. 1784 m. Stotts, 467 U.S. 561, 
571 (1984)), it clearly diminishes any importance that the 
case might otherwise have had.

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.

Charles Fried 
Solicitor General 

Wm. Bradford Reynolds 
Assistant Attorney General 

David K. Flynn 
Robert J. Delahunty 

A ttorneys

May 1988

until such time as the petitioners develop a valid, nondiscriminatory 
selection device. Selection apparently will also involve exhaustion of 
the 1984 eligibility list.

U.S. GOVERNMENT PRINTING OFFICE: 1988-202-037/60436