Kirkland v. The New York State Department of Correctional Services Petition for Writ of Certiorari

    UNITED STATES COURT OF APPEALS
FOR THE SECOI'ID CIRCUIT 

Ho. 7^-2116

EDWARD C. ICERKLAHD end HATHAHIEL HAYES, 
each individually and on behalf of 
all others similarly situated,

Plaintiffs-Appellees,

-against-

HEW YORK STATE DEPARTI-EHT OF CORRECTIOHAL SERVICES, et al.
Defendants -Appellants

-and-

ALBERT M. RIBEIRO and HEHRY L. COOES,
Int ervenors -Appellant s

On Appeal from the U.S. District Court for the 
Southern District of Heu York

BRIEF OF AmICUS CURIAE 
ARTI-DEFAilATIOH LEAGUE OF B'EAI B'RITH

ARHOLD FORSTER
315 Lexington Avenue
Heu York, H. Y. 10016

Attorney for Amicus Curiae

JOY IJEYERS 
JUSTIH J. FIHGIR 

Of Colons el



STATEMENT OF THE CASE

Plaintiffs-Appellees have brought this action under the Fifth and 

Fourteenth Amendments to the U.S. Constitution and under *+2 U.S.C. Sec. 1981 
and 1983 and their jurisdictional counterparts. This is a class action on 
behalf of 119 black and Hispanic Correction Officers who took a Civil Service 

examination for promotion to Correctional Sergeant, but who either failed the 
examination or passed too low to be appointed. There was no allegation of 
intentional discrimination; following the model set by the U.S. Supreme Court 

in Griggs v. Duke Power Company, *+01 U.S. *+2*+ (1971) and by this court in 
Chance v. Board of Examiners, U58 F.2d 1167 (1972), the case merely involved 
a showing that the examination had a disparate pass/fail ratio for blacks and 
Hispanics as against whites, and was not proved by Defendants-Appellees to be 

job related (Appendix A-IU9).

The trial court issued an Opinion and Order finding for Plaintiffs 

on April 1, 197*+ (A-l*+8). An Order and Decree followed on July 31} 197*+ 

(A-2*+l). The Order and Decree, briefly, (l) enjoined any provisional or per­
manent appointments based on the examination in question, (2) ordered that a 
new validated non-discriminatory selection procedure be devised, (3) ordered 

the development of an interim selection procedure which should involve a 
hiring ratio of one black or Hispanic to three whites, and (*+) ordered that 
even after the non-discriminatory validated selection procedure is promulgated, 
appointments will continue to be made on a ratio of one to three.

While the Anti-Defamation League has serious reservations about the 
appropriateness of imposing any form of hiring quota, this amicus curiae 

brief will address itself exclusively to the impropriety of item *+, the hiring 

quota remedy ordered sifter the establishment of a new validated non-discrimi­
natory selection procedure.



CONSENT OF THE PARTIES

The parties and the intervenor have consented to the filing of this 

brief. A stipulation of consent is on file with this court.

INTEREST OF THE AMICUS

B ’nai B'rith, founded in I8U3 , is the oldest civic service organiza­
tion of American Jews. The Anti-Defamation League was organized in 1913 as a 
section of the parent organization to advance good will and mutual understand­

ing among Americans of all creeds and races, and to combat racial and reli­
gious prejudice in the United States.

Among its many other activities directed to these ends, the Anti- 

Defamation League has in the past filed briefs as amicus in this court and the 

U.S. Supreme Court urging the unconstitutionality or illegality of various 
racially discriminatory laws and practices in such cases as, e.g., Shelley v. 
Kraemer, 33U U.S. 1, (I9U8); Sweatt v. Painter, 339 U.S. 629 (1950); Brown v. 

Board of Education, 3*+7 U.S. U83 (l95*+)> Colorado Anti-Discrimination Commis- 
sion v. Continental Airlines, Inc., 372 U.S. 71*+ (19&3)> Jones v. Alfred H . 
Mayer Co., 392 U.S. U09 (1968); Sullivan v. Little Hunting Park, Inc♦, 396 

U.S. 229 (1969) and De Funis v. Odegaard, ______U.S._________ (197*+).

QUESTION PRESENTED

Is the imposition by the trial court of hiring ratios, after a valid 

non-discriminatory selection procedure has replaced the current procedure, an 
abuse of direction under the facts of this case?

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ARGUMENT

POINT I

Under the facts of this case the trial court's order goes 

beyond any order previously upheld by this court, and 
should be stricken with respect to the hiring quotas im­
posed after the new selection procedure has been adopted.

This court has had before it four times the issue of preferential 
hiring quotas. See U.S. v. Wood, Wire, and Metal Lathers International Union, 

Local U6, U71 F.2d U08, Cert, den. Ul2 U.S. 939, (1973); Vulcan Society of 
New York City Fire Department, Inc, v. The Civil Service Commission, U90 F.2d 
387, (1973); Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service

Commission, U82 F.2d 1333, (1973); Rios v. Steamfitters Local 638, _____ F.2d
__________, 8 FEP Cases 293 (June 197*+). In all of these cases this court has

upheld hiring quotas. However, all these cases are distinguishable from the 
instant case, and this court's approval of hiring quotas was not unequivocal.

In U.S. v. Lathers, intentional discrimination was charged against 

the Union, and patterns and practices of discrimination were continued even 
after the suit was filed and an affirmative action agreement had been reached. 

This court stated in Lathers, "While quotas merely to attain racial balance 

are forbidden" (emphasis added), "quotas to correct past discriminatory prac­

tices are not."
Furthermore, unlike Lathers, in which the work permits ordered to be 

issued were for jobs for which no apprenticeship was required, so that all ap­
plicants were expected to have interchangeable qualifications, the new vali­
dated selection procedures in the case at bar would develop a ranked list of

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eligibles, so that under the quota system lesser qualified minority group mem­
bers would be preferred over more highly qualified whites.

Again in Rios, past intentional discrimination continuing into the 
present was involved. This court upheld preferential hiring quotas under the 

circumstances there presented but said "Where a racial imbalance is unrelated 

to discrimination...no justification exists for ordering that preference be 
given to anyone on account of his race or for altering an existing hiring 
system or practice."

Even in the Rios case, which, unlike the instant case, involved in­

tentional discrimination, Justice Hayes dissented on the issue of hiring 
quotas, setting forth possible proper remedies not involving quotas. He said 
"Judicial resort to racial classification is designed to make racism respect­

able. It gives legal sanction to the unfortunate attitudes which have resulted 
in the exclusion of minorities from the mainstream of the nation's economy."

Bridgeport Guardians and Vulcan Society involved, as in the case 

at bar, a disparate effect of a Civil Service examination upon minorities.
In Vulcan this court upheld interim quotas only, pending the preparation of a 
validated non-discriminatory selection procedure. Moreover, in both cases, 
the quotas were approved "gingerly" and to cure the effects of past discrimina­

tion, whereas, here, the disparate effect of only a single test is involved.
In Bridgeport Guardians, in justifying the use of hiring quotas, this court 

pointed out that the discriminatory test was "archaic" and had been in use 

many years, that "The failure to recognize increasing evidence that tests of 

this type have an innate cultural bias cannot be overlooked", and further 
that there had been almost "no positive steps to recruit minority personnel".

In addition, this court struck a provision for hiring quotas on promotions on

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the grounds that no justification appeared for such quotas, as discrimination 

in promotions was not involved.
The remedy of hiring quotas, here imposed by the trial court even 

after a non-discriminatory validated selection procedure has been devised, 
and where there is no aura of past discrimination involved, has no basis in 

precedent in this court and should be stricken as inappropriate.

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POINT I I

The preferential hiring ratios imposed after a valid non-discrimi'- 

natory selection procedure has been devised, should be stricken 

as inappropriate in that they will- violate the rights of non­
preferred persons who are deemed more qualified under the new tests.

Defendants-Appellants have been directed by the trial court to 

devise new,non-discriminatory, Job-related selection procedures. These 

procedures will of necessity result in a ranked eligible list (Article V, 
Section 6, New York State Constitution; Civil Service Law, Section 50;
Rules and Regulations of the Department of Civil Service, Section 3.6). If 
preference in hiring is given on the basis of race to blacks and Hispanics 

who are ranked lower on the list then the others more qualified who are 
passed over, the constitutional rights of innocent parties will be violated.

There is a basic proposition, sometimes lost sight of, that the 

Equal Protection Clause of the Fourteenth Amendment prohibits state- 
sponsored or supported discrimination against all persons regardless of 

race.
The Supreme Court has struck down racial classifications in a 

variety of contexts. In McLaughlin v. Florida, 379 U.S. 18U (I96U), Mr. 
Justice White describes such classification as "constitutionally suspect... 

subject to the most rigid scrutiny...and in most circumstances irrelevant 

to any constitutionally acceptable legislative purpose."
A quota in favor of non-whites involves classification on the 

basis of race.

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See De Funis v. Odegaard, supra, in which the question of the con­

stitutionality of '^benign quotas" was presented. The case was mooted, but 
Justice Douglas, the only member of the Court to speak on the substantive 
issue, clearly stated his belief that selection procedures are constitu­

tionally infirm unless "racially neutral." "The State . . . may not proceed 
by racial classification to force strict population equivalencies for every 

group in every occupation, overriding individual preferences. The Equal 
Protection Clause commands the elimination of racial barriers, not their 

creation in order to satisfy our theory as to how society ought to be 

organized."
The result of the new selection procedures mandated by the court 

below will be that members of plaintiff class will have an equal opportunity 
to compete on merit and fitness for places on the eligible list. To super­
impose preferential hiring upon this ranked list will result in an uncon­
stitutional deprivation to those whites who are higher on the list but who 

are passed over for selection solely because of their race.
Swann v. Charlotte-Mecklenburg,Board of Education, U02 U.S. 1,

(1971), a school segregation case, which has been widely cited as sanctioning 
racial consideration in fashioning a remedy, was not a case where any depri­

vation of which legal cognizance can be taken was imposed on anyone. No 
student and no teacher lost a place for racial reasons and if reassignment 
based on race was involved it impinged on no cognizable rights. Significantly 

in Swann, supra, under the heading "Racial Balances or Racial Quotas , Chief 
Justice Burger stated, "If we were to read the holding of the district court 
to require as a matter of substantive constitutional right any particular 
degree of racial balance or mixing that approach would be disapproved and 

we would be obliged to reverse."

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Once a new valid selection procedure is developed in the case at 

bar, so that the disparate effect complained of has been eliminated, there 
is no rationale for excluding a white who ranks higher on the eligible list 
in favor of a lesser qualified minority group member. The wrong has already 

been remedied.
The trial court has additionally erred in not even restricting 

the ordered preference to members of the aggrieved class. In Castro v. 
Beecher, 1+59 F.2d 725 (1971), the First Circuit upheld an interim hiring 
procedure in which preference was ordered to be given those minority group 
members who had actually taken the previous discriminatory test and failed, 
but subsequently passed the new validated test. In this manner, only those 
individuals who had been discriminated against were eligible for a prefer­
ence. However, the trial court in the instant case has accorded a prefer­
ence to any black or Hispanic. In light of the fact that the disparate 
effect, as stated above, was not intentional, the deprivation of job oppor­
tunities which would be suffered by innocent third parties (those whites 
who rank higher on the new eligible list) cannot be justified.

Therefore so much of the trial court's order as continued hiring 

quotas even after new job related selection procedures have been adopted 
should be stricken, as violative of the rights of more qualified whites who 
would be passed over.

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POINT I I I

That part of the order which imposes preferential hiring quotas even 

after a new valid non-discriminatory selection procedure is adopted 
should be stricken because the remedy proposed exceeds the scope of 

the wrong complained of.

The U.S. Supreme Court in the recent case of Milliken v. Bradley 
(1+2 U.S. Law Week 52U9, July 25, 197*0, a school secregation case, clearly set 
forth the principles that should underline the remedial process. Citing Swann 

v. Charlotte-Mecklenberg Board of Education, k02 U.S. 1 (1971), the Court said, 
"The task is to correct by a balancing of the individual and collective in­
terests the condition that offends the Constitution". A federal remedial 
power may be exercised "only on the basis of a constitutional violation" and 
"as with an equity case the nature of the violation determines the scope of 
the remedy", (emphasis added)

The Court in Milliken addressed itself to the circumstances in which 
a federal court may order inter-district relief to remedy segregation found to 

exist in only one district. Although there was a finding of de jure segrega­
tion within the City of Detroit, and although the trial court had ruled that 

such segregation could not effectively be eliminated without resort to an 
inter-district remedy, the U.S. Supreme Court struck the trial court's order 

of cross-busing between districts. Chief Justice Burger, writing for the 
majority, stated, "The controlling principle, consistently expounded in our 
holdings, is that the scope of the remedy is determined by the nature and ex­
tent of the constitutional violation...an inter-district remedy might be in 
order where the racially discriminatory acts of one or more school districts 

cause racial segregation in an adjacent district or where district lines had 
been deliberately drawn on the basis of race... Conversely, without inter­

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district effect, there is no constitutional wrong calling for any inter­
district remedy".

The amicus submits that the Supreme Court in Milliken and Swann has 
clearly indicated the principles by which remedies should be devised. There 
are many gradations of wrong in racial discrimination cases. And by the same 
token there is a great variety of possible relief. (See e.g. Rios, supra. 
Justice Hayes' dissent.)

The Supreme Court has stated that the remedy must not be outside 
the scope of the wrong. In the case at bar the trial court has correctly 
ordered that a new validated non-discriminatory test be prepared, and further 
has ordered interim relief. The amicus submits that the very drastic addi­
tional remedy of hiring quotas superimposed upon the new, color-blind, vali­
dated selection procedure has no justification here. There is involved 
neither past nor present intentional discrimination, nor any inference of 
any such previous action by Defendants-Appellants. There is only the dis­

parate effect of one Civil Service examination, adopted in good faith by 

Defandants-Appellants, but declared after trial not to be job related.
That part of the order that imposes preferential hiring quotas even 

after the new procedures are devised should be stricken as inappropriate 
because it is beyond the scope of the wrong.

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» >

CONCLUSION

The amicus submits that so much of the order of the trial court as 

mandates continuation of hiring quotas after the new selection procedures 
have been adopted should be stricken by this Court as an inappropriate remedy 

on the facts of this case.

Respectfully submitted,

Arnold Forster
315 Lexington Avenue
New York, N. Y. 10016

Attorney for Amicus Curiae

Joy Meyers 
Justin J. Finger 

Of Counsel

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