Desegregation in Beaufort County, N.C. Schools (Telegram)

    No. 83-672

I n the

(Enttrt of t o  States
October T erm , 1983

F rederick E . A lthiser , et al.,
Petitioners,

v.

N ew Y ork S tate Department of 
Correctional S ervices,' et al.,

Respondents.

ON writ op certiorari to the  united states

COURT OP APPEALS POR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

J ack Greenberg 
0 . P eter S herwood*
J udith  R eed 

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

Attorneys for Respondents, 
Edward L. Kirkland, et al.

* Counsel of Record



TABLE of c o n te n ts

Page

STATEMENT ........... ............. . . 1

ARGUMENT

I. THE DECISION BELOW' IS CON­
SISTENT WITH THE CONGRESSIONAL 
POLICY FAVORING VOLUNTARY 
SETTLEMENT OF TITLE VII 
SUITS ...................... 10

II. THE DECISION BELOW IS CON­
SISTENT WITH THE PRIOR DECI­
SIONS OF THIS COURT AND WITH 
THE DECISIONS OF OTHER COURTS
OF APPEALS .................. 13

A. The Decision Below is Con­
sistent With The Principles 
Announced in Bakke and
Full ilove ..............  13

B. The Decision Below is Con­
sistent With Those of
Other Circuits ........  16

III. THIS CASE DOES NOT RAISE QUES­
TIONS PERTAINING TO SECTION 703(h) 
NOR DOES IT RAISE ISSUES 
SIMILAR TO THOSE PRESENTED BY 
CASES PENDING IN THIS
COURT ...................... 17

CONCLUSION... . .......... . 20

i



TABLE OF AUTHORITIES

Page

Cases

Airline Stewards and Stewardesses Ass'n ,
Local 550 v. American Airlines,
Inc., 573 F.2d 960 (7th Cir.
1978) ..........................  16

Alexander v. Gardner-Denver Co., 415
U.S. 36 (1974) ................. 11

Carson v . American Brands, Inc., 450
U.S. 79 (1981) ................. 11

Connecticut v . Teal, 457 U.S. 440
(1982) ......................... 17

Erie Human Rights Relations Comm'n 
v. Tullio, 493 F.2d 371 (3d 
Cir. 1 974) ...............____   16

Ford Motor Co. v. EEOC, 458
U.S. 219 ( 1 982) ................ 1 1

Franks v . Bowman Transportation Co.,
424 U.S. 747 (1976) .....  19

Fullilove v . Klutznik, 448 U.S. 448
(1980) ......................... 13,14

Furnco Construct ion Corp. v . Waters,
438 U.S. 567 (1978) ............ 15

11



Page
Kirkland v. New York State Department 

of Correctional Services, 374 
F. Supp. 1361 (S.D.N.Y. 1974), 
aff'd in part and rev'd in part,
520 F.2d 420 (2d~Cir. 1975), 
cert. denied, 429 U.S. 823 
{1976), on remand, 482 F. Supp.
1179 (S.D.N.Y.) aff'd, 628 F.2d 
796 {2d Cir. 1980), cert, denied,
450 U.S. 980 (1981) ............ 8

Memphis Fire Department v. Stotts,
679 F. 2d 541 (5th. Cir. 1982),
cert, granted, U.S. , 88
L„Ed.2d 1331 (1983) ............ 18

Moore v. City of San Jose, 615 F.2d
1265 (9th Cir. 1980) ........... 15

Occidental Life Insurance v. EEOC,
432 U.S. 355 ( 1 977) .......... . . 1 1

Regents of the University of
California v. Bakke, 438 U.S.
265 (1978) ..................... 13,14

Sarabia v. Toledo Police Patrolman's 
Ass'n, 601 F.2d 914 (6th Cir.
1979) ..........  16

United States v. City of Jackson, 519
F.2d 1147 (5th Cir. 1975) .....  16

United States v. City of Miami, 664
F.2d 435 ( 5th Cir. 1981) ..... . 16

Statutes
42 U.S.C. § 2000(e) (h) .........   17
Section 703(h) .........   17

- i i i -



No. 83-672
IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1983

FREDERICK E. ALTHISER, et al.,

Petitioners,
V.

NEW YORK STATE DEPARTMENT OF 
CORRECTIONAL SERVICES, et al. ,

Respondents,

On Writ of Certiorari
To The United States Court of Appeals

For The Second Circuit

BRIEF IN OPPOSITION

STATEMENT*

Petitioners are individual white

*_/ Vie have included this brief descrip­
tion of the facts and the proceedings



-  2 -

corrections officers who were permitted to 
intervene in a suit brought by Edward 

Kirkland and other minority corrections 

officers challenging the selection proce­

dures used to promote officers from the 
rank of sergeant to lieutenant,

Promotion to lieutenant is accom­
plished through appointment from a list of 

eligibles. The list of concern in this 

case was based on the results of an 
examination administered in October 3, 
1981. Of the approximately 739 candidates 

who took that test, 570 were white and 169 
were minority. Of this number 527 white 
and 1 4 8 minority off icers passed (App.

V  continued
below, because of the many inaccuracies and 
misleading statements contained in the 
petition.



- 3 -

Contrary to petitioners' assertion
at 3), disproportionate impact

2/existed even at the pass-fail level.
Based on the examination results,, the

eligibles were ranked according to their

scores, adjusted for seniority and veteran's
3 /

credits, if applicable. The effect of the 
list's rank-ordering was to maximize the 

disparate racial impact of the examination 

(App. 5a n.3).
On the first round of promotions based 

on this list, the New York State Department 
of Correctional Services ("DOCS") made 171

1/9c) . 
(pet.

V  Reference is to the pages of appendices 
that follow the petition.
2/ See Affidavit of Dr. James L. Outtz, 
dated October 15, 1982, paragraph 10. This 
affidavit contained expert testimony, of­
fered by the plaintiffs below and admitted 
by the district court, demonstrating the 
adverse impact and lack of job-relatedness 
of the examination.
3/ The addition of these credits did not 
play a significant role in the resulting 
disparate impact (App. 5a, 27a).



4

appointments, of which only 17, or close to 

10%, were minority, despite the fact that 

over 22% of the candidates who sat for the 
exam were minority. As further appoint­

ments were made the percentage of minority 
appointments decreased: by July 28, 1982, 
DOCS had made 222 appointments and only 9%, 

or 20, were minority (App. 6a).
Several months after the filing of the 

complaint in January 1982, after conducting 

discovery and holding several negotiation 
sessions, the parties were able to reach a 
settlement. The attorney for petitioners 

participated in the settlement conference 
with the court and, indeed, indicated that 

he approved of the outlines of the settle­

ment (App. 2-3e) . The settlement had two 

basic elements: provisions to lessen the 

adverse impact of the existing selection 
process and provisions for the development 

of a new, non-discriminatory select ion



5

procedure. The settlement did not prohibit 

all use of the examination results, thus 

appointments already made were not dis­

turbed, and white officers, although 

alleged by plaintiffs to have been wrong­

fully promoted at the expense of minority 
officers who passed the examination, 
retained their positions and suffered no 

detriment.
The purpose of the settlement was to 

provide equal opportunity and eliminate the 

disadvantage for minorities that resulted 
from the use of the examination (App. 3f 
i|7). In order to diminish the adverse 

impact resulting from the exam and the 
list, the settlement modified the rank­
ordering of the list, by placing candidates 

into three zones, based on their final 

scores (App. 8-9f). All candidates 

within a given zone were deemed to be of



6

equal fitness for promotion.“ Under the
settlement, appointments from within a zone

are first offered to minority eligibles
until minority appointments reflect the
proportion of the eligible pool which is

minority, or 21%, of the total appoint:-

ments. After that point, appointments are
to be made in a ratio of one minority to

5 /four non-minority (App. 9f).

4/ Each zone contained candidates whose 
scores differed by no more than four points 
(App. 30a). The size of the zones was not 
arbitrarily chosen but rather, as the 
appellate court noted, "... was based 
on a statistical computation of the likely 
error of measurement inherent in Exam 
36-808...."(App. 31a). the parties origin­
ally considered a random ranking within 
each zone; however, the original rankings 
were retained to satisfy the concerns of 
the petititoners (see transcript of Sept. 
29, 1982 hearing at pp. 29-30, 47-52).

5/ The percentage and ratio are not 
absolute. If no minority candidate 
who is within the zone from which selec­
tions are being made desires to serve at 
the facility where there is a vacancy, the 
appointment is offered to a non-minority 
candidate, regardless of whether the



7

However, no minority elig ible who falls 

within a lower zone will be promoted ahead 
of any candidates, regardless of race, 
within the highest unexhausted zone (App. 

9a) ,
The court of appeals found zone-scor­

ing an ideal method of accomplishing 
the settlement's modest purpose, without 

substantially burdening non-minorities:
[T]he adjustment was a proper means of 
compliance with Title VII since, by 
creating a more valid method to assess 
the significance of test scores, it 
eliminated the central cause of the 
adverse impact, 1 . e . , the rank-order­
ing system, while assuring promotion 
on the basis of merit. In fact, the 
rank-ordering system permissibly could 
have been modified to produce a result 
more disadvantageous to [peti­
tioners].... Thus, the creation of a 
tiered zone system ... may have 
the least detrimental effect on the

5/ continued
desired percentage has been reached (App. 
9a). In addition, the district court noted 
the ease with which the modest 21% goal 
would be met (App. 12c).



8

interests of non-minority candidates 
who obtained high test scores.

App. 31a.

Plaintiffs had made out a prima facie 

case, by showing that the selection proce­

dure had an adverse impact on minorities 
(App. 25~27a). While defendants initially 

sought to defend the use of the test 

as job-related, they came to recognize that 
they were unlikely to prevail. In fact, 

the state had vigorously defended a similar 

case and lost. See, Kirkland v . New York
State■ Department of Correctional Services,
374 F . Supp. 1361 (S.D.N.Y. 1!974) , aff 'd in
part and rev 1 d in part, 520 F. 2d 420 (2d
C i r . 1975), cert . denied, 429 U.S. 823
( 1 9 7 <3 ) , on renia n a , 482 F . SujPF * 1 179
( S.D. N. Y. ) af f ' d , 628 F.2d 7 9 6 ( 2d Ci r .
1980) , cert. deni<ed, 450 U.S . 980 (1981 ) .
The outcome of that prior case served as 

one of the underpinnings of the settlement, 
i •e. , that a written test cannot make the



9 -

kind of fine distinctions in candidate 

qualifications that would justify a rank-

ordered list, (App. 30 31a) fne peti
tioners failed to proffer any evidence to

support either the validity of the exam or
6/

the use of rank-ordering.
The district court's approval of the 

settlement came only after all persons who 

might be affected by the settlement, 
including petitioners, received notice and 

were afforded an opportunity to be heard 

(App. 10a). Petitioners were allowed to 

intervene for purposes of objecting to the 
settlement. The district court examined

6/ Were the state to have unilaterally 
chosen to use zone scoring in order to 
derive an eligibility list, petitioners 
would have no cognizable claim (see App. 
18a: state law affords "wide discretion
on modification of procedures" to determine 
merit and fitness"). The fact that the 
state initially used rank-ordering and 
subsequently adopted zone—scoring does 
not alter the situation.



10

the settlement to determine whether it was 
fair and reasonable and then considered the 

objections raised by the petitioners and 

rejected them. (App. 27-30c) . The only 

effect of the limitation on the scope 

of intervention was to prevent petitioners 

from forcing the state to engage in the 

futile act of a full trial on the merits 

(App. 25c). The district court's approval 
of the settlement was affirmed on appeal, 

based on the Second Circuit's holding that, 
after noting the interim nature of the 

race-conscious promotional procedures, the 
remedies were "sustantially related to and 

do not go beyond the goal of eliminating 

[the exam's] adverse impact" (App. 34a).

ARGUMENT

I. THE DECISION BELOW IS CONSISTENT 
WITH THE CONGRESSIONAL POLICY 
FAVORING VOLUNTARY SETTLEMENT OF 
TITLE VII SUITS

"Cooperation and voluntary compliance



were selected as the preferred means 

of achieving [the goal of eliminating 

discrimination]." Alexander v. Gardner- 

Denver Co. , 415 U.S. 36, 44 ( 1 974). This

Court more recently affirmed that view 

in Carson v, American Brands, Inc. , 450
7/ '

U.S. 79, n.14 (1981).
I n C arson the Court held that a 

court's refusal to approve a consent decree 

was an appealable order, based not only on 

this Court ' s view of the importance of 
voluntary settlements, but also because the 

effect of such a refusal was to force the 

parties to the decree to proceed to 

trial. 450 U.S at 8 7. Here t o o , the
petitioners sought to force the parties to

7/ See also Ford Motor Co. v . E E O C , 
458 U.S. 219, 228 (1982)”; Occidental Life
Insurance v_._EJE 0<1 , 432 U.S. 355, 368
TT977T7



-  12 -

assume the costs and uncertainties of 

1 it igat ion.
The court of appeals in the instant 

case undertook to examine the settlement for 

reasonableness and to measure the relief 
obtained by the settlement against the 

the relief that might have been ordered had 

the case proceeded to trial (App. 28a). 
The Second Circuit concluded that the 

rank-ordering system could have been 

modified even futher, producing a result 
’’more disadvantageous" to petitioners (App. 

31a). The appellate court also recognized 

that tne settlement did not go as far as it 
could have, since no backpay was provided 
and appointments of white officers that had 

been made were not rescinded (App. 11a). 
To adopt the' position urged by petitioners 

would sound the death knell for voluntary 
compliance and Title VII settlements.



13

II. THE DECISION BELOW IS CONSISTENT 
WITH THE PRIOR DECISIONS OF THIS 
COURT AMD WITH THE DECISIONS OF 
OTHER COURTS OF APPEALS

A . The Decision Below is Con- 
istent With the Principles 
Announced in Bakke arid 
Fulli.love

Petitioners imply that the decision 

below is in conflict with this Court's 

decisions in Regents of the University of 
California v. Bakke,, 438 U.S. 265 (1978)

and Fullilove v. Klutznick, 448 U.S. 448 

(1980). While they fail to point out 
any direct conflict between those decisions 

and the decision below, it is petitioners' 

contention that a public employer may never 
enter into a pre-trial settlement that 
provides a race-conscious remedy, even 

where the employer is faced with overwhelm­
ing evidence of discrimination and the 

remedy is specifically tailored to the 

violation alleged. Under the facts in this 
case, the principles handed down in Bakke



14

and Full Hove support rather than vitiate 
the decision below.

The instant case simply does not 
involve a racial preference without regard 
for qualifications, as did the university 

program considered by the Court in Bakke. 

The zone-scoring remedy in this case was 

adopted to cure "established inaccuracies 
in predicting ... performance." 438 

U.S. at 306 n .4 3; see also, n .4, supra. 

The action taken by courts below, institut­

ing a race-conscious remedy after review of 

a "well substantiated claim of racial

discrimination", is consistent with the
8/teachings of Bakke.

8/ The Court there reaffirmed the valid­
ity of Title VII consent decrees. 438 U.S. 
at 302 n.41. The parties appropriately 
took steps that were "reasonably necessary 
to assure compliance" with federal law. 
Fullilove v. Klutznik, 448 U.S. at 483.



1 5

Plaintiffs below made a considerable 

statistical showing of disparate impact, 

and offered evidence through an expert that 

tended to show the test was not job-related. 

The facts brought forward by plaintiffs 
provided a reasonable basis for a settlement, 

which was then subject to court review. 
Based on that showing, the district 

court could, and did, properly infer 

discrimination (App. 22c), because such 

disparity, "if otherwise unexplained" was 
likely to have resulted from "impermissible 

factors". Furnco Construction Corp. v . 

Waters, 438 U.S. 567, 577 (1978). The lack 
of any evidence that the examination was 

job related, or that rank-ordering based on 
the examination was justified, necessitated 

the implementation of a remedy for what 
amounted to a violation of Title VII.



16

B" The Decision Below is Consistent 
With Those of Other Circuits

Courts have often approved settlements 

involving governmental employers which 

mandate race-conscious memedies, even 

though no findings or admissions of 
liability have been made. See, e . g . , 

United States v. City of Miami, 664 f . 2d

435 (5th Cir. 1981); Moore v. City of San

J o s e , 615 F .2d 1265 (9th Cir. 1980);
Sarabia v. Toledo Police Patrolman 1s Ass'n, 

601 F .2d 914 (6th Cir. 1979); United States 

v. City of Jackson, 519 F. 2d 1147, 1150

(5th Cir. 1 9 7 5 ) ;__Erie Human Relations 
Comm ’ n v. Tullio, 493 F.2d 371 (3rd Cir. 

1974). Defendants are under no obligation 

to seek to rebut plaintiffs' prima facie 
case. See City of Miami, 664 F.2d at 453. 
Further, third parties are not entitled to 

force defendants to mount a defense. See 
Air1ine_Stewards and Stewardesses Ass'n,



17

Local 550 v. American Airlines, Inc. , 573

F. 2d 960, 963-64 (7th Cir. 1 978).

HI. THIS CASE DOES NOT RAISE QUESTIONS 
PERTAINING TO SECTION 703(h) NOR 
DOES IT RAISE ISSUES SIMILAR 
TO THOSE PRESENTED BY CASES 
PENDING IN THIS COURT______ ______

Contrary to petitioners’ argument 

(pet. at 12), Section 703(h), 42 U .S .C .

§ 2000(e)(h) (App. 2g), simply does not
insulate the results of the selection 

procedure at issue. Section 703(h) 
provides, in part that an employer may act 

upon the results of any professionally 

developed ability test, but only where the 
"test, its administration or action upon 

the results is not designed, intended or 

used to discriminate .
As the Court noted in Connect icut 

v. Teal, 457 U.S. 440, (1982), this section 

means that it is only "tests that were job 

related, [which are] permissible despite



18

9 /their disparate impact.” Id, at 452.“ 
Nor is the eligibility list the 

equivalent of a seniority system as peti­

tioners would like to imply (see pet. at 
19). Longevity plays virtually no role in 

the promotional process (App. 5a n.2). The 

list was not the product of collective

bargaining, nor did the list create vested
10/

rights (App. 31a). This is not a

case, therefore, in which expectations 
based upon collectively bargained seniority

9/ As noted earlier, the district court's 
judgment was based on more than disparate 
impact. Supra, nn.2, 4.

10/ Thus, the instant case bears no 
relationship to the situation presented by 
Memphis Fire Department v. Stotts, 679 F.2d 
541 (5th Cir. 1982), cert, granted,
U.S. ___, 88 L. Ed. 2d 1 331 ( 1 983). Stotts
involves the question of whether a district 
court has the power to prohibit layoffs in 
accordance with a last-hired, first-fired 
seniority system, pursuant to an earlier 
consent decree.



19

rights must be harmonized with the remedial 

requirements of Title VII. See, e.g., 

Franks v. Bowman Transportation Co. , 424

U .S . 747 (1976). While the court of
appeals recognized that petitioners had a 

right to be heard, the appellate court 

noted that an interest in protecting the 
"expectation of promotion pursuant to 

possibly discriminatory selection proce­

dures" was not the sort of interest that 
made the consent of the petitioners essen­

tial (App. 19a).
Finally, the petitioners urge this 

Court to grant review so that it can 

examine an asserted conflict with state law 

(pet. at 20-24). Since the brief in
opposition to be filed on behalf of respon­

dents DOCS will probably address this argu­

ment in detail, we simply note that both
lower courts have examined this contention 
and were unpersuaded by this claim.



20

Further,, the Attorney General of the State 

of New York disagrees with petitioners' 
interpretation of New York law (App. 6f, 
1! 14; 18-19a; 26c).

CONCLUSION

For the reasons set forth above, the 

petition for a writ of certiorari should be 
denied.

December 19, 1983

Respectfully submitted,

JACK GREENBERG 
0. PETER SHERWOOD*
JUDITH REED

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

Attorneys for Respondents, 
Edward L. Kirkland, et al.

*Counsel of Record



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