Boston Firefighters Union v. Boston Chapter, NAACP Brief for the City of Detroit Amicus Curiae in Support of Respondents

    Nos. 82-185, 82-246, 82-259

In t h e

Bnpremt (fiwrt nt % lutfrib BMzb
October Teem, 1982

B oston F irefighters Union, L ocal 718,
Petitioner,v.

Boston Chapter, N.A.A.C.P., et at.

Boston P olice P atrolmen’s Ass’n , I nc.,
Petitioner,

v,
P edro Castro, et al.

Nancy B. Beecher, et al.,
Petitioners,

v.
B oston Chapter, N.A.A.C.P., et al.

ON WRITS OP CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOE THE CITY OF DETROIT AMICUS CURIAE 
IN SUPPORT OF RESPONDENTS

D onald P alen
Corporation Counsel 

F rank -Jackson*
Deputy Corporation Counsel 
1010 City-County Building 
Detroit, Midi. 48226

Attorneys for Amicus 
^Counsel of Record

0 . P eter Sherwood 
Clyde E. Murphy 
P enda D. H air 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Barry L. Goldstein 
806 15th Street, N.W.
Washington, D.C. 20005

Of Counsel



TABLE OF CONTENTS
Page

Table of Authorities ...............  i
Interest of Amicus .................  1
SUMMARY OF ARGUMENT ......   3
ARGUMENT
I. THE DISCRETION EXERCISED BY THE

DISTRICT COURT IN THIS CASE 
SERVED TO FACILITATE CRITICALLY 
IMPORTANT PUBLIC SAFETY CON­
SIDERATIONS ...................  5

II. THE DISTRICT COURT'S ORDER IS 
THE MOST FLEXIBLE AND LEAST 
INTRUSIVE MEANS OF ACHIEVING
THE GOALS OF TITLE VII ........  20

III. THE DISTRICT COURT'S ORDER IS 
CONSISTENT WITH SECTIONS 
703(h) AND 706(g) OF TITLE
VII .................   31
A. Statutory Preferences Are

Not Protected by 703(h) .. 31
B Section 703(h) Defines 

What Constitutes A 
Violation of Title 
VII. It Does Not Limit 
The Scope of Remedial 
Orders ..................  38

C. Title VII Authorizes
Affirmative Remedies .....  40

D. The District Court's Order
Is Consistent With Section 
706(g) ....................  54

i



Page
IV. THE DISTRICT COURT'S ORDER

IS CONSISTENT WITH THE FOUR­
TEENTH AMENDMENT ............... 56

Conclusion ......  60
Appendix ...........     1a

- ii



TABLE OF AUTHORITIES
Cases: Page
Adams v. United States ex rel McCann,

317 U.S. 269 (1942)..............  24
Aeronautical Lodge v. Campbell, 337

U.S. 521 (1949)..................  35
Albemarle Paper Co. v. Moody, 422 U.S.

405 (1975) ..................   20
American Tobacco Co., v. Patterson,

U.S. 71 L.Ed.2d 748
(1982) ..........   32,35,39

Ass'n Against Discrimination v. City 
of Bridgeport, 647 F.2d 256 (2d 
Cir.) cert, denied, 454 U.S. 897 
(1981).........................  42

Baker v. City of Detroit, 483 F. Supp.
930 (E.D. Mich. 1979)......  3,16,17,18

Bonner v. City of Pritchard, 661 F.2d
1206 (11th Cir. 1981).....   43

Boston Chapter, NAACP, Inc. v. Beecher,
504 F.2d 1017 (1st Cir. 1974),
cert, denied, 421 U.S. 910
(1975).........   24,42

Boston Chapter, NAACP, Inc. v. Beecher,
679 F.2d 695, cert. granted sub 
nom., Boston Firefighters Union,
Local 718 V. Boston Chapter,
NAACP, U.S. , 103 S.Ct.
293 ( 1982) .................. 24,42

Bridgeport Guardians Inc. v. Members 
of the Bridgeport Civil Service 
Comm., 482 F.2d 1333 (2d Cir.
1973)................ ............ 9

- iii



Cases; Page
California Brewers Association v.

Bryant, 444 U.S. 598 (1980)....- 35,39
Carter v. Gallagher, 452 F.2d 315

(1971)......................... . 22,29
Castro v. Beecher, 334 F. Supp. 930

(D. Mass. 1971), aff'd in part andrev'd in part, 459 F.2d 725
(1st Cir.), on remand, 365
F. Supp. 655 ( 1 973) ............. 8,9

Castro v. Beecher, 522 F. Supp. 873
(D. Mass. 1981), aff *d sub nom. ,Boston Chapter, NAACP, Inc. v.
Beecher, 679 F.2d 965 (1st 
Cir. 1982), cert. granted sub 
nom., Boston Firefighters 
Union, Local 718 v. Boston 
Chapter, NAACP, Inc., U.S.

, 103 S.Ct. 293 (1982) ... 9,26,29,31
Chisholm v. United States Postal 

Service, 665 F.2d 482 (4th Cir.
1981)....................   42

Contractors Association of Eastern
Pennsylvania v. Secretary of Labor,
442 F.2d 159 (3d Cir. 1971), cert, 
denied 404 U.S. 854 (1971)........ 49

Davis v. City of Los Angeles, 566
F.2d 1334 (9th Cir. 1977), vacated 
on other grounds, 440 U.S. 625 (1979).......  43

Detroit Police Officers Assn. v.
Young, 608 F.2d 671 (6th Cir. 1979) cert. denied 452 U.S. 940 

(1981) .............     2,9,11,43

xv



Cases: Page
EEOC v. American Telephone & Telegraph 

Co., 556 F.2d 167 (1977), cert, 
denied, 438 U.S. 915.............  42,

EEOC v. Detroit Edison Co., 515 F.2d 
301 (6th Cir. 1975), vacated on other grounds 431 U.S. 951
(1977) ........................

EEOC v. Longshore (ILA), Locals 829
and 858, F. Supp. , 9 E.P.D.
II 10,159 (D. Md. 1975)..........

EEOC v. Plummer & Pipefitters Local 
189, 438 F.2d 408 (6th Cir.1971) . ...........................

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1977)..... 32,34,37,39,

Fullilove v. Klutznick, 448 U.S. 448
(1980)..................  43,56,57,

Harris v. Nelson, 394 U.S. 266
(1969).........................

International Brotherhood of Teamsters 
v. United States, 431 U.S. 324(1977) ..................  32,34,37,

James v. Stockham Valves and Fittings
Co., 559 F.2d 310 (5th Cir. 1977), 
cert, denied, 434 U.S. 1034
(1978) .......................

Local 53, Asbestos Workers v. Volger,
407 F.2d 1047 (5th Cir. 1969)___

Louisiana v. United States, 380 U.S.
145 (1964)......................  21,

45

43

23

23

41

59

24

39

42

49

29

v



Cases: Page

McDaniel v. Barresi, 402 U.S. 39
(1971)........................... 58

NAACP, Detroit Branch v. Detroit
Police Officers Assn., 525 F. Supp.1215 (E.D. Mich. 1981)........... 3

North Carolina Board of Education v.
Swann, 402 U.S. 43 (1971)......  58

Pullman Standard v. Swint, U.S.
, 102 S.Ct. 1781 (1982)....... 39

Regents of the University of California 
v. Bakke, 438 U.S. 265
(1978) ........................ 43,56,59

Rios v. Enterprise Association of
Steamfitters Local 638, 501 F.2d
622 (2d Cir. 1974)............... 42

Southern 111. Builders Ass'n v.
Ogilvie, 471 F.2d 680 (1972)..... 49

Steelworkers v. Weber, 443 U.S. 193
(1979) .........  41,44,48

Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 (1971).. 58

Talbert v. City of Richmond, 648 F„2d 
925 (4th Cir. 1981), cert, denied 
454 U.S. 1145 (1982) ........... 9

Thompson v. Sawyer, 678 F.2d 257 (D.C.
Cir. 1982)..................  43

United States v. City of Chicago, 549
F.2d 415, cert, denied, 434 U.S. 875 
(1977)...... .................... 43

vx



Cases: Page
United States v. Hall, 472 F.2d 261

(5th Cir. 1 972)................  22
United States v. International Brother­

hood of Electrical Workers, Local 
38, 428 F.2d 144 (6th Cir.), cert, denied, 400 U.S. 943 (1970)..___ 42,49

United States v. International Union
of Elevator Constructors, Local 38,
538 F.2d 1012 (3d Cir. 1975)..... 42

United States v. Ironworkers Local 86,
443 F.2d 544 (9th Cir.), cert, 
denied, 404 U.S. 984 (1971).... 49

United States v. Lee Way Motor
Freight, Inc., 625 F.2d 918 (10th
Cir. 1979).................... . 43

United States v. New York Telephone
Co., 434 U.S. 159 (1977)________ 24

United States v. N.L. Industries,
Inc., 479 F.2d 354 (8th Cir.1973)...........................  43

United States v. Swift and Company,
286 U.S. 106 (1932) .............. 22,23

United States v. United Brotherhood of
Carpenters and Joiners, Local 169,
451 F.2d 210, cert, denied, 409U.S. 851 (1972)...........  49

United States v. United Shoe Machinery
Corp., 391 U.S. 244 (1968).......  23

Van Aken v. Young, 541 F. Supp.
448 (E.D. Mich. 1982)...   19

- vii -



Cases: Page
Washington v. Fishing Vessel Ass'n,

443 U.S. 658 (1979)...... ....... 29
Williams v. The City of New Orleans

694 F.2d 987 (5th Cir. 1982) ... 41
Zipes v. Trans World Airlines,

U.S. , 71 L.Ed„2d 234 (1982).. 40

Constitutional Provisions, Statutes
and Regulations;
United States Constitution,

Fourteenth Amendment............. 56
28 U.S.C. § 1651................... 23
Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. § 2000e, et seq........ passim
42 Op. Att'y Gen. No. 37 (Sept. 22,

1969)........___................ 41
Uniform Guidelines on Employee 

Selection Procedures, 29 C.F.R.
§ 1607. ..........     41

Mass. Gen. Laws, ch. 30 § 9A...... 33
Mass. Gen. Laws c. 31, § 39........ 25
Oregon House Bill 3306, Feb. 22,

1982. ........     27
Arizona Senate Bill 1005 Jan. 1,

1982. . ...........   27
Detroit City Chapter, § 7-806...... 19

- viii



Page
Legislative History:
110 Cong. Rec. 6548 (1964)........  46
110 Cong. Rec. 7207 (1964)........  34
118 Cong. Rec. 7214 (1964)........  46
110 Cong. Rec. 7217 (1964)........  34
117 Cong. Rec. 321 1 (1971 )___ ..... 50
118 Cong. Rec. 2298 (1972)........   54
118 Cong. Rec. 578 (1972)........ 52
118 Cong. Rec. 7166 (1972)........ 52
118 Cong. Rec. 789-811 (1972)..... 14
118 Cong. Rec. 1676............... 51
H.R. Rep. No. 914, 88th Cong., 1st

Sess. (1963)....................  33
H.R. Rep. No. 92-238, 92nd Cong.,

1st Sess. (1971)................  14, 50
S.Rep. 92-415, 92nd Cong., 1st Sess.

(1971) at 10....................  13,53
Legislative History of Title VII 

and XI of the Civil Rights Act of 
1964..............   33

Legislative History of the Equal 
Employment Opportunity Act of 
1972............................  14,15

xx



Other Authorities: Page
Aaron, Reflections on the Legal

Nature and Enforcement of Seniority 
Rights, 75 Harv. L. Rev. 1532 
(1962)............. . 19

Brief for Petitioners the United 
States and the Equal Employment Opportunity Commission, Steelworkers 
v. Weber, No. 76-432............. 41,46

Brief for United States and the Equal 
Employment Opportunity Commission 
as Amici Curiae, Minnick v. Calif. 
Dept, of Corrns., No. 79-1213 .. 6

Leonard Greenhalgh, A Cost Benefit 
Balance Sheet For Evaluating 
Layoffs As A Policy Strategy, 
October 1, 1978.................. 28

Legislative History of the Equal 
Employment Opportunity Act of 
1972...... ..................... . 14

Legislative History of Title VII and 
XI of the Civil Rights Act of 1964 
(hereinafter Legislative History) 
2071. ..................... 33

Moran and McPherson, Union Leader 
Responses to California's Work 
Sharing Unemployment Insurance 
Program, Bureau of National Affairs, 
Daily Labor Report, Vol. 102, D.
1 (May 28, 1981)............. 27,28

Short Time Compensation Act, P.L. 
92-248, Part of the Tax Equity Act 
of 1982, Section 194....... . 28

X



Other Authorities: Page

Uniform Guidelines on Employee Selection
Procedures (Policy Statement on 
Affirmative Action), 29 C.F.R.
§ 1607..........................  41

U.S., Civil Rights Commission on 
Confronting Racial Isolation in 
Miami (1982), p. 290............  12

U.S., Commission on Civil Rights, Who 
Is Guarding the Guardians: A Report 
On Police Practices (1981), p.... 12

Vass, Title VII: Legislative History,
70 B.C. Ind. & Comm. C. Rev. 431(1966).....................   47

xi



Nos. 82-185, 82-246, 82-259
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1982

BOSTON FIREFIGHTERS UNION, LOCAL 718,
Petitioner,

v.
BOSTON CHAPTER, NAACP, et al.

BOSTON POLICE PATROLMEN'S ASSOCIATION, INC.,
Petitioner,v.

PEDRO CASTRO, et al.,

NANCY B. BEECHER, et al.,
Petitionersv.

BOSTON CHAPTER, NAACP, et al.

On Writs of Certiorari to the United 
States Court of Appeals For The First Circuit

BRIEF FOR THE CITY OF DETROIT AMICUS CURIAE 
IN SUPPORT OF RESPONDENTS

Interest of Amicus
The City of Detroit has suffered



2

adverse consequences because of prior 
discriminatory practices of its public 
safety agencies particularly its Depart­
ment of Police and a failure to correct 
the effects of that discrimination. 
For the past nine years Detroit has 
implemented affirmative action plans to 
eradicate the effects of past discrimina­
tion against minorities and the debilitat­
ing effects of that discrimination on 
the ability of its public safety agencies 
to operate effectively. The outcome of 
this case may have a crucial impact on 
the lawfulness of those plans. Presently 
pending in the lower courts are two cases 
brought on behalf of white police officers 
which challenge the lawfulness of Detroit's 
race-conscious affirmative action plan 
in the police department. See Detroit 
Police Officers Assn, v. Young, 608 F.2d
671 (6th Cir. 1979) cert. denied, 452 U.S.



3

938 (1981) and Baker v. City of Detroit,
483 F. Supp. 930 (E.D. Mich. 1979). In a 
third lawsuit, NAACP, Detroit Branch v. 
Detroit Police Officers Assn., 525 F. Supp. 
1215 (E.D. Mich. 1981) the City and the
union representing police officers are 
being sued for failure to agree on workable 
alternatives to the collectively bargained 
reverse seniority sequence order of lay­
offs. That failure has had the effect of 
undoing some of the hiring gains achieved 
through implementation of the City's 
affirmation action plan. We believe that 
Detroit's experience with undoing the 
effects of longstanding racial discrimina­
tion by means of affirmative action may 
provide an important perspective to the 
issues presented in this case.

SUMMARY OF ARGUMENT
This case raises important questions 

concerning the discretion of a district



4

court to preserve gains made pursuant to a 
remedial consent decree where fiscal 
considerations require a municipal govern­
ment to achieve economies. In this case 
the employer elected initially to effec­
tuate these economies through the expedient 
of layoffs which, under state law, could 
only be made in reverse sequence seniority.

After the district court barred 
layoffs in a manner which adversely affect­
ed minorities and which undid gains made 
under nearly a decade of court ordered 
remedies, the employer managed to solve its 
financial problems without laying off any 
employees. If, as petitioners argue, the 
district court were stripped of its 
equitable powers, then the catalyst — ■ the 
order of the district court —  to a crea­
tive solution which averted layoffs would 
have been absent. Moreover, important 
public safety benefits derived from having



5

public safety institutions which reflect 
the racially diverse character of the 
community served would have been sacri­
ficed. Neither Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. 
§2000e, et seq. nor the Fourteenth Amend­
ment of the United States Constitution 
requires a result that would strip a 
district court of the power to preserve 
remedial gains particularly where, as here, 
larger public interests are at stake.

I. THE DISCRETION EXERCISED BY THE 
DISTRICT COURT IN THIS CASE SERVED 
TO FACILITATE CRITICALLY IMPORTANT 
PUBLIC SAFETY CONSIDERATIONS_______
Petitioners' contention that the

seniority expectations of non-minority
officers may not be upset except to the
extent necessary to slot in proven victims
of unlawful racial discrimination^ see

]_/ Some of the amicus briefs filed 
on behalf of petitioners take similar



6

e .g . Brief of Petitioner 
Patrolman's Assn., at 18

Boston Police
would stifle

continued
positions . £5 £e>, e ^ ^ B r i e f  For The
United States, 20. This claim on the 
part of the United States contrasts sharply 
with positions it has taken in the past in 
this Court. For example in Minnick v. 
California Dept, of Corrections , No. 
79-1213, at p. 20, the United States and 
the Equal Employment Opportunity Commission advised this Court that:

[a] state agency is not confined 
merely to seeking to identify indi­vidual victims of past discriminatory 
decisions and, if it finds them, 
affording relief on a case-by-case 
basis. As Congress so plainly recog­
nized when it extended Title VII to 
state and local governments, the 
effects of employment discrimination 
in this setting extend well beyond the 
loss of employment opportunites by 
particular individuals. Such dis­
crimination deprives the agency of the 
perspective of minority persons re­
garding the impact of its programs 
on minorities? it fosters distrust on 
the part of minorities of governmental 
functions carried out by personnel 
who are not representative of the 
community at large, thereby perhaps 
deterring minorities from full parti­
cipation in government programs; and 
it sets a highly visible example of



7

efforts to end the mistrust and antagonisms 
that have developed in our cities between 
law enforcement agencies and minority- 
citizens as a result of long-standing 
policies and practices of exclusion of 
minorities from employment in such agen­
cies. Reliance on reverse seniority 
sequence layoffs as the only means of 
addressing Boston's fiscal crisis would 
serve to resegregate these agencies and 
thereby exacerbate existing racial ten­
sions .

]_/ continued
discrimination, or acquiescence in the 
results of past discrimination. In 
order to remedy these broader effects 
of discrimination, the agency may 
appropriately take measures designed 
to bring minority representation in 
its work force to the same percentage 
that obtains in the relevant labor 
market, and thereby to place the agency in the position it presumably 
would have been in had there been no 
discrimination.



8

When the first of these cases, 
Castro v. Beecher , Civil Action No. 
70-1220-W, was filed, the existence of an 
on-going hostility between the Boston 
police and that city's minority commu­
nity was immediately apparent and that 
hostility affected the willingness of 
minority citizens to apply for employ­
ment. See Castro v. Beecher , 334 F .
Supp. 930, 936 (D. Mass. 1971) and 365
F. Supp. 655, 659 (1973). The district
court recognized the need to end this 
unfortunate alienation between citizens and 
the police as well as the general positive 
effect on the public interest to be ac­
hieved by a police force which reflects 
the racial diversity of the community.



9

See, e„g., Castro v. Beecher, 365 F. Supp.
659 and 522 F. Supp. 873, 877 (1981).
Moreover, the First Circuit stated:

We do not need expert testimony to make the point that, unless the public 
safety departments of a city reflect 
its growing minority population, there 
is bound to be antagonism, hostility, 
and strife between the citizenry and 
those departments. The inevitable 
result is poor police and fire protec­
tion for those who need it the most. 
679 F.2d at 977.
Other courts of appeals have agreed

2/with the First Circuit.— The Sixth Cir­
cuit recently collected and summarized the 
many studies that make the importance of 
having racially representative police 
forces in our cities judicially noticeable.

2/ See Detroit Police Officers Assn, v. 
Young, 608 F.2d 671 , 695 (6th Cir. 1 979); 
Talbert v. City of Richmond, 648 F. 2d 925, 
931 (4th Cir. 1981); Bridgeport Guardians 
Inc, v. Members of the Bridgeport Civil 
Service Comm., 482 F.2d 1333, 1341 (2d Cir. 
1973).



The operational need to have a minority 
presence in public safety agencies that 
is representative of the miniority popula­
tion of the community served:

is based on law enforcement expe­
rience and a number of studies 
conducted at the highest levels. 
E.g., National Advisory Commission 
on Criminal Justice Standards and 
Goals, Pol ice (1 973); National Commis­
sion on the Causes and Prevention of 
Violence, Pinal Report: To Establish
Justice, To Insure Domes tic Tran­
quility (1969); Report of the National Advisory Commission an Law Enforcement 
and Administration of Justice, Task 
Force Report: The Police (1967). As 
these reports emphasize, the relation­
ship between government and citizens 
is seldom more visible, personal and 
important than in police-citizen 
contact. See To Establish Justice, 
supra at 145; Report on Civil Dis­
orders , supra a 300 (New York Times 
edition). It is critical to effective 
law enforcement that police receive 
public cooperation and support. 
Report on Civil Disorders, supra at 
301; Task Force Report: The Police,
supra at 144-45, 167; Police, supra at 
330.

These national commissions recommend the recruitment of addi­
tional numbers of minority police



officers as a means of improving 
community support and law enforcement 
effectiveness. In fact, the benefits 
of Negro officers were recognized as 
early as 1931 by the "Wickersham 
Commission." Report on the Causes of 
Crime 242, National Commission on Law Observance and Enforcement (Vol. 
I, 1931 ) .

In 1967, a presidential commis­
sion stated the proposition offered by 
the defendants in this case:

In order to gain the general 
confidence and acceptance of a community, personnel within a 
police department should be repre­
sentative of the community as 
a whole.

Detroit Police Officers Assn., 608 F.2d at 
695. More recently completed studies have
reached the same conclusion. In a report, 
published in October 1981, the United
States Commission on Civil Rights found:

Finding 2.1; Serious underutiliza­
tion of minorities and women in 
local law enforcement agencies con­
tinues to hamper the ability of police 
departments to function effectively



12

in and earn the respect of predomi­
nantly minority neighborhoods, thereby increasing the probability of tension 
and violence.

U.S. Commission on Civil Rights, Who Is
G u a rding the Guardians:__A Report On
Police Practices 5 (1981). Following an
investigation into the May 1 980 racial
disturbance in Miami, Florida the U.S.
Civil Rights Commission observed:

In Dade County, an essentially 
white system administers justice to 
a defendant and victim population 
that is largely black. The lack of 
minorities throughout the criminal 
justice system maintains the percep­
tion of a dual system of justice.

U.S. Commission on Civil Rights, Confront­
ing Racial Isolation In Miami 290 (1982).

Congress was acutely aware of the 
deleterious community effect of maintenance 
of segregated employment patterns in 
government and it identified the need to 
remedy this condition as one of the pur-



13

poses of the 1 972 amendment to Title VII. 
When Title VII was amended in 1972 to cover 
state and local governments, the accompany­
ing Report of the Senate Committee on Labor 
and Public Welfare stated that

The failure of State and local 
governmental agencies to accord 
equal employment opportunities is 
particularly distressing in light 
of the importance that these agencies 
play in the daily lives of the average citizen. From local law enforcement 
to social services, each citizen is in 
constant contact with many local 
agencies. . . . Discrimination by 
goverment therefore serves a doubly 
destructive purpose. The exclusion of 
minorities from effective participa­
tion in the bureaucracy not only 
promotes ignorance of minority prob­
lems in the particular community, but 
also creates mistrust, alienation, and 
all too often hostility towards the 
entire process of government.

S. Rep. 92-415, 92nd Cong., 1st Sess. 10 
(1971). Congress was particularly con­
cerned with protecting the operational 
ability of police departments to provide 
effective law enforcement.



1 4

The problem of employment discrimi­
nation is particularly acute and 
has the most deleterious effect in 
those government activities which 
are most visible to the minorit 
communities (notably education, la 
enforcement, and the administration 
of justice) with the result that the credibility of the government's 
claim to represent all the people 
is negated. H. R. Rep. No. 92-238, 
92nd Cong., 1st Sess. 17 (1971).
Senator Harrison Williams, chairman 

of the Labor and Public Welfare Commit­
tee and sponsor of the bill in the Senate, 
emphasized strongly the Congressional 
concern for the ability of units of state 
and local government to carry out their 
assigned responsibilities. He stated that 
the Committee had acted out of a belief 
that their work was "essential to the 
viability of State and local governmental 
units" 118 Cong. Rec. 789-811 (1972),
reprinted in EEOC, Legislative History of 
the Equal Employment Opportunity Act of
1972, at 1116 (hereinafter 1972 Legislative



1 5

History.) The Committee's concern with 
employment discrimination was based, in 
large part, upon the unfavorable impact 
which it had on "the ability of . . . 
governmental units to deal equitably in 
their contacts with those groups against 
whom they discriminate in employment." 
Id. As Senator Williams succinctly phrased 
the matter, "if they are to carry out their 
jobs with any success whatever, public 
confidence in their impartiality is vital." 
Id. This expressed Congressional solicitude 
for protecting the ability of local govern­
mental units to carry out their essential 
functions requires a construction of Title 
VII that permits use of racial criteria, 
when needed, to assist in the provision of 
public safety services.

Amicus has experienced —  and federal 
court records document, see Baker, 483 F. 
Supp. at 996-97 —  racially-based police 
community tensions caused in substantial



16

part by years of neglect in the recruit­
ment, hiring and advancement of black 
public safety officers. Major riots in 
1943 and 1967 as well as several other less 
noted civil disturbances before and after 
1 967 were just one of the many manifesta­
tions of the breakdown of police community 
relations. Prior to 1974, six to eight 
Detroit police officers were killed in the 
line of duty each year. Moreover the 
widespread belief in Detroit’s black 
community that the police lacked interest 
in investigating black on black crime 
resulted in a loss of essential black
citizen cooperation in the police depart-

3 /ment's crime fighting efforts.-' Id . 
See Baker 483 F. Supp. at 996-97.

3/ In the appendix to this brief we have 
reproduced the district court's fuller 
description of these events. See Appendix 
pp. 1a-5a.



The willingness of amicus to recognize
and act on the destructive consequences of 
failure to correct the extreme under-utili­
zation of black officers came painfully. 
The riots in 1967 jolted the City of 
Detroit into a realization that something 
would have to be done to correct these 
imbalances. See 483 F. Supp. 946. Between 
1967 and 1973 some efforts were made to 
recruit, hire and promote blacks, but these 
efforts were not successful. 483 F .  

Supp. at 447-52. In the interim the City 
continued to hemorrhage. See 483 F. Supp. 
at 996-99. Finally, in 1974, the City 
adopted a voluntary affirmative action 
plan of hiring and promotion. These 
efforts have resulted in dramatic improve­
ments in the ability of amicus to deliver 
effective police service.

In Baker the district court detailed



4/these improvements and concluded:—
There is clear evidence in the 

record that before 1974 there existed 
enormous tension between the Depart­
ment and the black community. There 
is clear evidence in the record that 
after the institution of the affirma­
tive action program, police-community 
relations improved substantially, 
crime went down, complaints against 
the Department went down, and no 
police officers were killed in the 
line of duty. High ranking police 
officials attributed this change to 
the affirmative action program and 
its general aim of having the Depart­
ment -- at all levels -- reflect the 
City's population.

483 F. Supp. at 1000.
In the experience of amicus the 

ability to make race conscious employ­
ment decisions has been the critical 
ingredient in efforts to restore community
trust in Detroit's public safety agencies 
and to facilitate Detroit's ability to pro­
tect the lives and property of its people. 
See _id. , 483 F. Supp at 999.

4/ We have set forth in the appendix, pp. 
5a-8a, the full text of the portion of the 
opinion detailing these improvements.



Detroit, and we suspect all municipalities, 
approached the point of decision slowly 
and with maximum caution, for the path to 
that decision and the road beyond it
are covered with political, practical

5 /and legal o b s t a c l e s . A s  the district 
court's summary of the breakdown of police 
community relations in Detroit shows,

5/ For example, amicus has attempted to 
implement an affirmative action plan in 
its fire department. Initially we were 
unable to proceed because of an archaic 
City Charter provision which required that 
promotions up to the rank of Deputy Fire 
Commissioner be filled on the basis of seniority. See Detroit City Charter, § 
7-806. As a result that department was 
saddled with many undistinguished and unproductive supervisors at virtually all 
levels. This system of advancement served 
primarily to perpetuate the prior racially 
exclusionary practices of that department. 
Cf. Van Aken v. Young, 28 F.E.P. Cases 1669 
(E.D. Mich 1982). After several years of effort the voters approved a charter 
amendment which substituted a merit system 
for promotions. Despite this change the 
City has not been able to implement the new 
merit plan due to an ongoing arbitration 
proceeding instituted by the union which 
represents firefighters.



20 -

the human and financial costs of that delay
were enormous. We submit that without the
presence of a perceived legal duty to
correct prior discrimination and the
threat that a federal court might impose 
tough remedial obligations as a result of 
the City's failure to act, it would have 
been virtually impossible for amicus to 
take the necessary affirmative action steps 
it took in 1 974 to correct prior racial 
discrimination and its debilitating effects.

II. THE DISTRICT COURT'S ORDER IS THE MOST
FLEXIBLE AND LEAST INTRUSIVE MEANS OFACHIEVING THE GOALS OF TITLE VII
As this Court has repeatedly noted, a 

critical purpose of Title VII is "to 
eliminate, so far as possible, the last 
vestiges of an unfortunate and ignominious 
page in this country's history," Albemarle 
Paper Co . v . Mood y , 422 U.S. 405, 418
(1975) (citation omitted), and to "eliminate



21 -

the discriminatory effects of the past as 
well as bar like discrimination in the 
future," id. (quoting Louisiana v. United 
States, 380 U.S. 145 (1965)).

The District Court's order represents 
an attempt to salvage the limited progress 
made toward achievement of these goals. 
The public safety crisis caused by the 
exclusion of minorities from the police and 
fire departments is clearly a vestige of 
the City's prior discriminatory conduct. 
In view of the legislative history of the 
1972 Act, discussed above, it is clear that 
Title VII mandates that the District Court 
eliminate this vestige. Similarly, the 
District Court had to devise a means of 
overcoming the reluctance of minorities to 
apply for employment with these City 
agencies in order to eliminate the dis­
criminatory effects of the past and prevent



22

6 /future discrimination.—
Title VII gives district courts broad 

powers to achieve these goals. Section 
706(g) authorizes the courts to order "such 
affirmative action as may be appropriate," 
as well as "any other equitable relief as 
the court deems appropriate." Clearly, 
these provisions are sufficient to encom­
pass both the original hiring goals
incorporated into the consent decree

7 /and the layoff order now at issue.-

6/ See, e.g. , Carter v. Gallagher, 452 
F.2d 315, 331 (8th Cir. 1971) (en banc)
cert. denied, 406 U.S 950 (1972).
1/ A court of equity may modify a decree of injunction even though it was entered 
by consent, and whether or not the power 
to modify was reserved by its terms. 
United States v. Swift and Company, 286
U.S. 106 (1932). This expression of the 
inherent authority of a court to enforce 
its own decrees is frequently noted 
throughout the case law, generally, in 
civil rights cases, United States v. Hall, 
472 F.2d 261 (5th Cir. 1972), and in cases



23

7/ continued
involving the enforcement of consent 
decrees under Title VII, EEOC v. Longshore 
(ILA), Locals 829 and 858, F. Supp.
____, 9 E.P.D. 1f 10,159 (D. Md. 1975). In
EEOC v. Plummer & Pipefitters Local 189, 
438 F. 2d 408 , 414 ( 6th Cir. 1971), the
court asserted:

And beyond question, the district 
court had authority either sua sponte 
or on petition to reshape its in­junction so as to achieve its original 
and wholly appropriate purpose, 
(citation omitted).
See also United States v. United Shoe 

Machinery Corp., 391 U.S. 244, 251 (1968)
(district court had the power to modify its 
decree entered ten years earlier, where the 
decree had not achieved the adequate relief 
to which the government was entitled).

While this exercise of a Court's 
power to protect the efficacy of its 
orders is commonly viewed as an expression 
of the court's inherent authority, United 
States v. Swift & Co., supra; United 
States v. United Shoe Machinery Corp., 
supra, the All Writs Act, 28 U.S.C. § 1651, 
offers another basis for this authority. Under the All Writs Act a federal court may 
issue such commands as may be necessary or 
appropriate to effectuate and prevent 
frustration of orders it has previously 
issued, even if they extend to persons "not 
partners to the original action or engaged



24

In this case a municipal employer 
entered into consent decrees following 
specific judicial findings of past dis­
crimination. In upholding the district 
court's imposition of color-conscious 
relief, the First Circuit held that the 
remedy went "no further than to eliminate 
the lingering effects of previous practices 
that bore more heavily than was warranted 
on minorities." Boston Chapter, NAACP, 
Inc, v. Beecher, et al. , 504 F.2d 1017,
1027 (1st Cir. 1974), cert. denied, 421
U.S. 910 (1975).

In subsequent rulings, now before 
this Court for review, the district court

7/ continued
in wrongdoing" United States v. New York 
Telephone Co., 434 U.S. 159, 172 (1977).See also, Harris v. Nelson, 394 U.S. 266, 
299 (1969); Adams v. United States ex rel
McCann, 317 U.S. 269, 273 (1942).



25

and the Court of Appeals imposed a modifi­
cation of those decrees which would allow 
the City of Boston to respond to its 
unforeseen fiscal restraints, subject only 
to a reasonable deference to its obligations 
under the decrees. In so doing, the 
district court, working within the context 
of a judicially imposed consent decree and
a state statute governing the manner of

8 /layoffs for the affected agencies,-' 
achieved a modification that offered the 
defendants great flexibility in responding 
to the City’s fiscal constraints. The 
court's order allowed the City to seek 
alternatives to layoffs, or, if layoffs 
were unavoidable and the state civil 
service statute proved in conflict with the 
ongoing judicial remedy, the order relieved 
the City from the operation of the statute

8/ Mass. Gen. Laws c. 31, § 39.



26

on a limited and temporary basis in order 
to prevent nullification of prior court 
orders.

The district court restrained the 
defendant employer from implementing any 
program of reductions which reduced the 
level of minority firefighters or police 
officers below the level that had been 
obtained pursuant to the decree, i.e. , 14.7 
percent of all firefighters and 11.7 
percent of all police officers The
district court did not order layoffs nor 
did it order any specific response to the 
fiscal problems of Boston. The flexibility 
and generality of the court's rented ial 
order was effective. The State and City 
subsequently developed a plan which both 
alleviated the need for any layoffs and

10/ Castro, 522 F. Supp. at 877.



27

incorporated the pre-layoff staffing
patterns of the respective departments.

Moreover, the plan developed by the
City and State was only one of several
options available to the City under the
court's order. For example, the presumed
fiscal constraints of Proposition 2-1/2
could have been met via plans which in-

1 2/eluded work sharing,—  pay reductions, 
or early retirements, none of which would

1 2 / In recent years the concept of
voluntary work-saving has received widen­
ing consideration as a fair and effective 
alternative to layoffs. For example, 
anticipating the layoff of thousands of 
public employees because of the passage of 
Proposition 13, California became the 
first state to adopt a Work Sharing 
Unemployment Insurance plan in 1978,
§ 1279.5 of the California Unemployment
Insurance Code. This plan allowed Cali­
fornia employers to reduce the work week 
instead of reducing the work force and 
further allowed each employee to get a pro rata share of unemployment compensation. 
Similar bills have been adopted in Oregon, 
House Bill 3306, Feb. 22, 1982, and Arizona, 
Senate Bill 1005 Jan. 1, 1982, and in 1982,



28 -

have reduced the percentages of minorities 
obtained under the decrees or required any 
conflict with the state civil service 
statute.

Indeed it was only if the city 
determined that layoffs were inevitable 
and that such layoffs "would allow the 
substantial eradication of all progress 
made by blacks and hispanics in securing 
public employment as members of either 
the police or fire departments since

12/ continued
U.S. Representative Patricia Schroeder 
introduced the Short-Time Compensation Act, 
P.L. 92-248, Part of the Tax Equity Act of 
1982, Section 194 which would achieve a 
similar result. See, Morand and McPherson, Union Leader Responses To California's 
Work Sharing Unemployment Insurance 
Program, Bureau of National Affairs, Daily 
Labor Report, Vol. 102, D. 1 (May 28, 
1981). See also Leonard Greenhalgh, A
Cost_Benefit Balance Sheet for EvaluatingLayoffs As A Policy Strategy, October 1 , 
1978 (study conducted under the auspices 
the State of New York and the Civil Service 
Employees Association).



29
1 3 /1 9 7 0 " — / that any interference with 

the operation of the statute would be 
required.

The district court did not hold that 
the civil service statute which established 
a reverse seniority system for layoffs of 
public employees was invalid. The court 
simply held that the implementation of 
the statute cannot eradicate the results
gained over the past eleven years from the

. . . 1 4 /judicially imposed remedy.— /
The district court specifically strove

13/ Castro, 522 F. Supp. at 877.
14/ Moreover, as noted by the court below, 
"remedies to right the wrong of past 
discrimination may suspend valid state 
laws." Boston Chapter, NAACP v. Beecher, 
679 F.2d at 975. See also, Louisiana v. 
United States, 380 U.S. 145 (1964); Carter 
v. Gallagher, 452 F.2d at 328. A " [s]tate 
law prohibition against compliance with the 
District Court's decree cannot survive the 
command to the Supremacy Clause of the United States Constitution." Washington v. 
Fishing Vessel Ass'n, 443 U.S. 658, 695
( 1979).



30

to limit the effect, if any, its order 
would have on the state statute. The order 
did not prohibit layoffs of members of 
either department. It did not bar the 
layoff of all minority officers. Moreover, 
notwithstanding the fact that the hiring 
goals of the original order had not 
yet been obtained, the order did not 
require any increase in minority represen­
tation .

On the contrary, the court settled for 
an order that merely prohibited the reduc­
tion of minority personnel below the 
levels which had been obtained pursuant to 
the prior operation of its decree. Thus 
the district court's order represents a 
careful balancing of interests of the City, 
the non-minority employees and the impor­
tance of preserving progress toward the 
goals of Title VII.



31

Consistent with the goal of maintain­
ing the gains achieved by its remedial 
order, the district court paid maximum 
respect to the procedures and other pre­
ferences established by the state statute. 
Castro, 522 F. Supp. at 878, 879. The
district court's allowance of strict 
statutory layoffs until the achieved 
levels were threatened, its establishment 
of separate lists and allowance of layoffs 
pursuant to those lists in reverse order 
and its provision for recall in reverse 
order of layoff, all follow the require­
ments of the statute.

III. THE DISTRICT COURT'S ORDER IS CONSIS­
TENT WITH SECTIONS 703(h) AND 706(g) 
OF TITLE VII
A. Statutory Preferences Are Not 

Protected by Section 703(h)
Section 703(h) of Title VII offers 

limited exemption from some of the require-



32

ments of Title VII for bona fide seniority- 
systems. Section 703(h) has no applicabil­
ity to the statutory preference established 
by Mass. Gen. Laws c.31, § 39. This is
simply not a case in which expectations 
based upon collectively bargained seniority 
rights must be harmonized with the remedial 
requirements of Title VII. Franks v. Bow­
man Transp. Co. , 424 U.S. 747 (1976);
International Bhd. of Teamsters v. United 
States, 431 U.S. 324 (1977); and American
Tobacco Co. v. Patterson, ____ U.S. ____ 71
L.Ed.2d 748 (1982). Indeed the collective 
bargaining agreements between the unions 
and the Police and Fire Departments are 
silent on the method of layoffs. Here, a
statutory provision, which incorporates a

1 5 /variety of preferences—  and which is 
subject to amendment or repeal by the

15/ For example, one reason for layoffs of 
police officers hired as early as 1970,



33

Massachusetts legislature at any time, 
cannot be viewed as creating a bona fide 
seniority system.

The 1964 legislative history defines 
bona fide seniority systems as being syn- 
onomous with a collectively bargained 
agreement. For example, the House Minority 
Report on the Act— ^ explained its insist­
ence on protection of seniority as follows:

Seniority is the base upon which 
unionism is founded. Without its 
system of seniority, a union would 
lose one of its greatest values to 
its members.
The provisions of this act grant the 
power to destroy union seniority...
• • •
To disturb this traditional practice 
is to destroy a vital part of unionism 
... (emphasis in original)

15/ continued
was the absolute preference for veterans 
in the statutory layoff scheme. Mass. 
Gen. Laws, ch. 30 § 9A. See Brief For
The United States As Amicus Curiae, In Support of Petitioners, 8.
16/ See H.R. Rep. No. 914, 88th Cong., 1st 
Sess. (1963), reprinted in EEOC, Legisla-



34

This association of seniority and col­
lective bargaining agreements was consist­
ently expressed. For example, the Justice 
Department statement concerning Title VII,
placed in the Congressional Record by 

1 7/Senator Clark— ' speaks specifically of 
seniority rights obtained pursuant to a 
"collective bargaining contact," Teamsters, 
supra, 431 U.S. at 351; a set of questions 
and answers introduced by Senator Clark 
references "last hired, first fired agree- 
ments"--/ 110 Cong. Rec. 7217 (1964;
Franks, 424 U.S. at 760 n.16; Teamsters,
431 U.S. at 351 n.36.

The court also has consistently recog-

16/ continued
tive History of Title VII and XI of the 
Civil Rights Act of 1964, 2071 (hereinafter 
1964 Legislative History).
V7/ 110 Cong. Rec. 7207 (1964).
18/ This language was also adopted by 
Senator Dirkson. 110 Cong. Rec. 7212 (1964) .



35

nized that Section 703(h) protects the
variety of uses for seniority that are
included as part of the process of collec- 

, , 1 9 /five bargaining.— ' For example, in Cali­
fornia Brewers Association v. Bryant, 444
U.S. 598, 608 (1980), the Court specifically 
refers to the ability of employers and 
unions to develop such systems:

Significant freedom must be afforded 
employers and unions to create differ­
ing seniority systems.
Similarly, in American Tobacco Co., the 

Court specifically noted the "policy favor­
ing minimal governmental intervention in 
collective bargaining," 71 L.Ed.2d at 760 n. 
17, and several times underscored the 
inextricable relationship between seniority

19/ Aaron, Reflections on the Legal Nature 
and Enforcement of Seniority Rights, 75 
Harv. L. Rev. 1532 (1962). See also 
Aeronautical Lodge v. Campbell, 337 U.S. 
521 (1949).



36 -

systems and collective bargaining:
Seniority provisions are of "over­
riding importance" in collective 
bargaining, Humphrey v. Moore, 375 
U.S. 335, 346, 11 L.Ed.2d 370, 84 S.Ct. 
363 (1964), and they "are universallyincluded in these contracts." Trans- 
World Airlines v. Hardison, 2264. See 
also Aaron, Reflections on the Legal Nature and Enforcement of Seniority 
Rights, 75 Harv. L. Rev. 1532 (1962).
The collective bargaining process "lies at the core of our mature 
labor policy..." Trans-World Airlines, 
Inc. v. Hardison, supra, at 79, 53L.Ed. 2d 113, 97 S.Ct. 2264. See, e.g., 
29 U.S.C. § 151 [29 U.S.C. § 151].

Id. at 760.
It is clear that Congress intended 

Section 703(h) as being protective of a 
primary aim of collective bargaining, and 
it is that adherence to collective bargain­
ing and the notion of hard won seniority 
rights obtained thereby, that informs 
the Section 703(h) protections written 
into Title VII in 1964.

Since 1971 all hiring in the Police 
and Fire Departments has been subject to a



37

court ordered system that includes judicial 
oversight of the hiring and employment 
process because of judicially determined 
racial discrimination. Hired under the 
constraints of this judicial oversight, 
these employees' expectations of job 
security and other employment benefits are 
necessarily colored by the court's ongoing 
duty to eradicate the discriminatory evil 
at which the decree was directed. Franks, 
424 U.S. at 758, certainly holds that even 
employee expectations based on collective­
ly bargained seniority rights may be 
modified to remedy unlawful discrimination. 
Certainly in this case where there is no 
collective bargaining agreement which 
addresses seniority; where the applicable 
provision is part of a statutory scheme 
which has been judicially determined to be 
discriminatory; and where all hiring for



38

the past eleven years and virtually all 
those subject to layoff were hired pursu­
ant to the court's supervision of its 
remedial order, the court's power is no 
less.

B. Section 703(h) Does Not Limit The 
Scope of Remedial Orders

Even if the Court determines that the 
statutory preference scheme constitutes 
a seniority system within the meaning of 
Section 703(h), petitioners are incorrect 
in their suggestion that Teamsters and its 
progeny preclude the remedial relief or­
dered below. Such assertions misperceive 
the essence of this case for several 
reasons.

First, as the Court of Appeals 
observed below:

None of the Supreme Court cases apply 
to the basic issue at stake here; the 
power of a court in a litigated 
discrimination case to ensure that 
relief already ordered not be evis-



39

cerated by senioriy based layoffs. 
To hold a seniority system inviolate 
in such circumstances would make a 
mockery of the equitable relief 
already granted.

Boston Chapter, NAACP, 679 F.2d at 974-75.
Second, Section 703(h), merely helps 

define what is and what is not a violation 
of the Act. Franks, 424 U.S. at 758.
Thus, in every case in which this Court 
has ruled regarding a seniority system that 
is claimed to be bona fide, it was address­
ing the question of whether or not a
violation of the Act has been established.
See, Teamsters, 431 U.S. 324; California
Brewers Ass 'n, 444 U.S. 598 ; American
Tobacco Co., 71 L.Ed .2d at 760. Pullman
Standard v. Swint, U.S. , 102 S.
Ct. 1781 (1982). Here the issue is whether 
or not a remedial order, which seeks to 
preserve the integrity of a prior court 
decree, may require departures from the 
routine operation of an arguably bona fide



- 40

seniority system . Where the contours of
remedial orders are involved, this Court
has repeatedly approved alteration of
seniority rules. See Franks, and Zipes v.
Trans World Airlines, ____ U.S. ____, 71
L.Ed.2d 234, 247 (1982).

C. Title VII Authorizes Affirmative 
Remedies

The amicus briefs for the United 
States and the AFL-CIO argue that the 
remedy under Title VII is limited to 
providing make-whole relief. Thus, they 
conclude that Title VII absolutely pro­
scribes affirmative remedies that inciden­
tally benefit individual members of the 
disadvantaged class who have not proved 
that they were directly victimized by the 
employer's unlawful conduct.— /

20/ The United States does not explicitly 
state to this Court that its reasoning 
would result in absolute prohibition of 
affirmative measures.



41

However, the Court repeatedly has 
concluded that make whole relief is only 
"one of the central purposes of Title VII." 
Franks, 424 U.S. at 763 (emphasis added).— /

20/ continued
However, the United States has taken its 
argument to this conclusion in other cases. 
See Motion to Intervene As A Party Appellee 
and Suggestion of Rehearing En Banc, 
Williams v. The City of New Orleans, No. 
82-3435 , 694 F.2d 987 (5th Cir. 1982).
This position is contrary to the prior con­
sistent interpretation of Title VII by the 
Attorney General, the Solicitor General, the Equal Employment Opportunity Commis­
sion, the Department of Justice and other 
agencies of the federal government. See, 
e.g., Brief for Petitioners the United 
States and the Equal Employment Opportunity 
Commission, Steelworkers v. Weber N o . 
76-432, at 26-35; 42 Op. Att'y Gen. No. 37 
(Sept. 22, 1969); Uniform Guidelines onEmployee Selection Procedures , Appendix 
(Policy Statement on Affirmative Action), 
29 C.F.R. § 1607.
21 / In Steelworkers v. Weber, 443 U.S. 
193, 204 (1979), the Court concluded that
affirmative measures are "effective 
steps to accomplish the goal that Congress 
designed Title VII to achieve," and that such measures "hasten the elimination of 
[the vestiges of past discrimination]."



42

The lower federal courts have concluded 
that a proscription on judicially-imposed 
affirmative remedies for proven Title VII 
violations "would allow complete nullifica­
tion of the stated purposes of the Civil 
Rights Act of 1964." United States v . 
Inti. Bro. of Elec. Wkrs, L. No. 38, 428
F.2d 144, 149-50 (6th Cir.), cert. denied,
400 U.S. 943 (1970). Indeed, every federal 
circuit has concluded that use of affirma­
tive remedies is not proscribed by Title
Yu. 22/

22/ See , e . g . , Boston Chapter, NAACP, Inc. , 504 F. 2d at 1026-28; Ass'n Against 
Discrimination v. City of Bridgeport, 647 
F.2d 256, 279-84 (2d Cir.), cert. denied, 
454 U.S. 897 (1981); Rios v . Enterprise 
Assn., Steamfitters Loc. 638, 501 F.2d 622, 
631 (2d Cir. 1974); E.E.O.C. v. American 
Tel. & Tel. Co. , 556 F.2d 167, 1 74-77 (3rd 
Cir. 1 977), cert, denied, 438 U.S. 915 
( 1 9 7 8) ; United States v. Intern. Union of 
Elevator Constrs., Local 38, 538 F.2d 1012 
1017-20 (3d Cir. 1975); Chisholm v. United 
States Postal Service, 665 F.2d 482, 498-99 (4th Cir. 1981); James v. Stockham Values &



43

22/ continued
Fittings Co., 559 F.2d 31 0, 356 ( 5th Cir.
1977), cert, denied, 434 U.S. 1034 (1978); 
Detroit Police Officers Assn., 608 F.2d at 
696; EEOC v. Detroit Edison Co., 515 F.2d 
301 (6th Cir. 1975); vacated on other 
grounds, 431 U.S. 951 (1977); United States 
v. City of Chicago, 549 F.2d 415, 436,
cert, denied, 434 U.S. 875 (1 977); United
States v. N.L. Industries, Inc., 479 F.2d 
354 (8th Cir. 1973); Davis v. County of Los 
Angeles, 566 F.2d 1334, 1342-44 ( 9th Cir.
1977), vacated on other grounds, 440 U.S. 625 (1979); United States v. Lee Way Motor
Freight, Inc. , 625 F.2d 918 (10th Cir.
1979); Thompson v. Sawyer, 678 F.2d 257, 
293-95 (D. C... Cir. 1 982). See also cases
listed at n.26, infra.

Although the new Eleventh Circuit has 
not itself addressed this issue, the 
decisions of the former Fifth Circuit are 
controlling in the new Eleventh Circuit. 
See Bonner v. City of Pritchard, 661 F.2d 
1206, 1207 (11th Cir. 1981).

Several of the lower court deci­
sions imposing affirmative remedies have 
been cited with approval in opinions of 
this Court. See , e_̂cj . , University of 
California Regents v. Bakke , 4 3 8 U.S.
265, 353-54, n.28 (1978) (opinion of
Justices Brennan, White, Marshall and 
Blackmun); Fullilove v. Klutznick, 448 U.S. 448, 510-11 (1980) (opinion of Justice
Powell).



44

Amicus the AFL-CIO relies on one sen­
tence of Title VII — • the last sentence
of Section 706(g) —  to support its asser­
tion that Title VII proscribes a remedy 
which this Court has found to be "effec­
tive," Steelworkers v. Weber, 443 U.S. 193, 
204 (1979), and which the federal courts of 
appeals unanimously have found to be 
necessary. As discussed below, Section
706 (g), like Section 7 0 3 ( j ) of Title 

2 3/VII,— / was intended to make clear that 
the Act does not require any particular 
racial composition of the workforce solely 
for the purpose of racial balance, and does 
not speak to the issue of affirmative 
remedies for Title VII violations.

The last sentence of Section 706(g) 
sets out a factual predicate for its

23/ 42 U.S.C.. § 2000e-2(j).



45

application: that "an individual ...
was refused employment or advancement or 
was suspended or discharged for any reason 
other than discrimination on account of 
race, color, sex, or national origin or in 
violation of section 704(a)." Affirmative 
measures do not require the hiring or 
promotion of an individual; rather they 
direct the employer to select from among 
qualified members of the class against whom 
the employer has discriminated. Thus, as 
the Court of Appeals for the Third Circuit 
has found, the last sentence of Section 
706(g) was designed to preserve the em­
ployer's defense against a claim for indi­
vidual relief. See EEOC v. American Tel. & 
Tel. Co., 556 F.2d 167, 177 (1977), cert.
denied, 438 U.S. 915 (1978).

The 1964 legislative history of Title 
VII provides no clear indication concerning



46

Congress' view on affirmative action. See, 
e . g . , Brief for Petitioners the United 
States and the Equal Employment Opportunity 
Commission, Steelworkers v. Weber, No. 
76-432, at 28-31. However, the 1964 leg­
islative history supports amicus' conclu-
s ion that the last sentence of Section
706(g) is directed toward individual rem-
ed ies and that the 1964 Congress did not
address the issue of affirmative relief.— ^

24/ We have located only three explana­
tions of the last sentence of Section 
706(g). Congressman Celler explained that 
the sentence was to preclude the finding of "any violation of the act which is based on 
facts other ... than discrimination." 110 
Cong. Rec. 2567 (1964) (emphasis added).

An interpretative memorandum intro­
duced into the Congressional record by the 
Senate floor leaders Senators Clark and 
Williams also suggests that the sentence 
addresses violations of the Act, and not 
affirmative remedies. 110 Cong. Rec. 7214 (1964).

Finally Senator Humphrey explained 
that the "hiring, firing, or promotion of 
employees [will not be permitted] in order 
to meet a racial 'quota' or to achieve a 
certain racial balance." 110 cong. Rec. 
6548. This statement also is consistent 
with the view that Section 706 (g) bars



47

The brief for the AFL-CIO cites 
several "anti-quota" statements made during 
the 1964 debates. However, these state­
ments were not specifically directed 
at Section 706(g). As a result of concerns 
about the imposition of quotas, Section 
703(j) was added to the bill which became 
Title VII. See Vaas, Title VII: Legisla­
tive History, 7 B.C. Ind. & Comm. L. Rev. 
431, 447-57 (1966). There is simply no 
basis for believing that the statements 
cited in the brief of the AFL-CIO refer to 
Section 706(g), rather than the concern 
addressed by Section 703(j).— ^

24/ continued
affirmative remedies imposed solely for the 
purpose of achieving a specific racial 
balance, but does not prohibit such remedies 
where they are necessary to achieve the 
valid remedial purposes of Title VII.
2_5/ Thus, since "Section 703(j) speaks to 
substantive liability under Title VII and 
does not concern whether race can be taken 
into account for remedial purposes,"



48

Any doubts that Title VII authorized 
affirmative remedies were put to rest with 
enactment of the Equal Employment Opportun­
ity Act of 1972, Pub. L. No. 92-261, which 
comprehensively revised Title VII. The 
intent of Congress when it passed the 1972 
Act is particularly significant to this 
case, because the Act extended Title VII 
to state and local governments, including 
the City of Boston. Moreover, Congress in 
1972 carefully considered the court's 
remedial powers and amended Section 706(g) 
to expand the remedial authority of the 
courts. Thus, with respect to the remedies 
that can be imposed against local govern-

25/ continued
Weber, 443 U.S. at 204, n.5, the remarks
cited by the AFL-CIO have no relevance to 
this case.



49

mental bodies, Congress' intent in 1972 is 
of much greater relevance than the ambigu­
ous 1964 legislative history.

By the time Congress enacted the 1972 
Act, the case law firmly established that 
affirmative remedies are necessary and
appropriate in some situations to correct

2 6/Title VII violations. These court deci —

26/ See, e^g^ United States v . United 
Brotherhood of Carpenters & Joiners, Local 
169, 457 F.2d 210 (7d Cir.), cert, denied, 
409 U.S. 851 (1972); U n_i t e d_ S t a t e s_ v .
Ironworkers Local 86 , 443 F.2d 544 (9th
Cir.), cert. denied, 404 U.S. 984 (1971);
United States v. International Bro. of 
Elec. Wkrs. L. No. 38, 428 F.2d 144, 149-50 
(6th Cir.), cert. denied, 400 U.S. 943
(1970); Local 53, Asbestos Workers v. 
Volger , 407 F.2d 1047, 1055 (5th Cir.
1969).

The federal courts had also upheld the 
affirmative measures required of federal 
contractors under Executive Order 11246 
against challenges that such measures were prohibited by Title VII. See , e^g^, 
Contractors Association of Eastern Pennsyl­
vania v. Secretary of Labor, 442 F.2d 159, 173 (3d Cir.), cert, denied, 404 U.S. 854
(1971); Southern 111. Builders Ass'n v. 
Ogilvie, 471 F.2d 680, 684-86 (7th Cir. 
1972).



50 -

sions were well-known to Congress and
figured predominantly in the Committee

2 7/Reports and debates on the 1972 Act.— 7 
The House Report explicitly stated: 
"Affirmative action is relevant not only to 
the enforcement of Executive Order 11246 
but is equally essential for more effective 
enforcement of Title VII in remedying 
employment discrimination." H. R. Rep. NO. 
92-238, 92nd Cong., 1st Sess. 16 (1971).

Moreover, amendments were introduced 
in both the House and the Senate to re­
strict federal agencies and courts from 
ordering affirmative hiring remedies, and 
all of these amendments were defeated. See 
117 Cong. Rec. 32111 (1971); 118 Cong. Rec.

2 7/ Both the House and Senate reports 
cited with approval several of the court 
decisions upholding affirmative remedies. 
See, e.g., S. Rep. No. 92-415, 92nd Cong., 
1st Sess. 5 n. 1 (1971); H.R. Rep. No.
92-238 , 92 Cong., 1st Sess. 8 n. 2, 13
(1971).



51

1676 (1972); _ic3. , at 4 918.-̂ -// in opposing
such amendments offered by Senator Ervin, 
Senator Javits, the co-floor leader of the 
bill, specifically defended the affirmative 
measures ordered by several federal courts, 
and had two of the courts' opinions 
printed in their entirety in the Congres­
sional Record. 118 Cong. Rec. 1664-1676

28_/ The Brief for the AFL-CIO, at 17-21 
asserts that statements made in connection 
with the rejection of the Dent Amendment 
establish Congress' common understanding 
that such an amendment was unnecessary 
because Title VII already prohibited 
quotas. There is no doubt that Congress 
believed that quotas were prohibited; 
in fact Section 7 0 3 ( j ) of Title VII 
explicitly so provides. However, this 
understanding provides no insight as to 
whether Congress thought that court-imposed 
affirmative remedies were proscribed quotas. For example, Representative Hawkins 
(quoted at Brief for AFL-CIO, at 18) 
explained that the Philadelphia Plan, 
which provided numerical hiring guide­
lines, did not constitute establishment of 
quotas. 118 Cong. Rec. 8465. See, also 
id. at 8520 (remarks of Representative Ford.)



52

(1 9 7 1) /
Third, Congress indicated its ap­

proval of affirmative measures when it 
added Sections 717 and 718 to Title 
VII. Section 718 was proposed by Senator 
Ervin for the purpose of correcting 
inconsistency of administration of the 
affirmative action program under Executive 
Order 11246. See 118 Cong. Rec. 578-81
(1972) .— / Enactment of Section 718

29/ Congress' awareness of the decisions 
that had ordered affirmative measures 
in Title VII cases is particularly sig­
nificant in view of the understanding 
expressed in the section-by-section anal­
ysis submitted with the conference report 
to both Houses of Congress that in any area 
not addressed by the 1 972 Act "the present 
case law as developed by the courts would 
continue to govern the applicability and 
construction of Title VII." 118 Cong. Rec. 
7166 (1972).
30/ Thus, contrary to the assertion in the 
Brief for the AFL-CIO, at 24, Congress did 
not reject all amendments offered by 
Senator Ervin in order to end the filibus­
ter.



53

demonstrates that Congress carefully- 
considered the Executive Order program, 
modified one aspect of that program and 
deliberately left intact the substance of 
the program, including its affirmative 
action requirements. Congress' approval of 
the affirmative measures used under the 
Executive Order program necessarily in­
cluded the Congressional decision that such 
measures do not violate Title VII.

Section 717 extended Title VII to 
federal government employees. Section 717 
requires, among other things, that each
department and agency develop an affirma-

3 1 /tive action plan for employment.— /

31/ The Civil Service Commission "is to 
review, modify and approve each department or agency developed [plan] with full 
consideration of particular problems and 
employment opportunity needs of individual minority group populations within each 
geographic area." S. Rep. No. 92-415, supra, at 15.



54

The purpose of section 717 was to make the 
Federal Government a "model employer." 
118 Cong. Rec. 2298 (statement of Mr. 
Williams). Thus requirement of affirmative 
measures by the Federal Government is 
inconsistent with the notion that Congress 
intended to prohibit, or thought it had 
already prohibited, court-imposed affirma­
tive remedies for proven violations of 
Title VII.

D. The District Court's Order Is
Consistent With Section 706(g)
The Brief for the United States, 

at 22-24, asserts that the District 
Court's order is contrary to Section 
706(g). The position of the United States 
is based on its view that "make whole" 
relief for proven victims is the only 
purpose of a Title VII remedy. Because the 
United States' position would result in 
prohibition of all affirmative remedies



55

under Title VII, the arg ument o f the
United States must be rej ected for the
reasons stated in Part C, above.

Moreover, it is clear that the 
layoff order is consistent with Section 
706(g). As discussed above, the order 
served important Title VII goals and the 
first sentence of Section 706(g) is broad 
enough to encompass relief which is neces­
sary to preserve the court's original 
decree.

The last sentence of Section 706(g) 
simply does not pertain to the Court's 
layoff order. The order does not require 
the City to hire, reinstate, etc., any 
particular individual. Rather, the order 
gives the City the option of engaging 
in no layoffs, or utilizing any layoff 
program that does not interfere with the 
purposes of the original decree. Moreover, 
because the order is designed to preserve a



56

decree aimed at achieving goals of Title 
VII other than individual make-whole 
relief, the order is not within the purpose 
of the last sentence.

IV. THE DISTRICT COURT'S ORDER IS CONSIST­
ENT WITH THE FOURTEENTH AMENDMENT
It is beyond serious question that 

imposition of affirmative measures in 
appropriate situations to remedy Title VII 
violations is consistent with the equal 
protection guarantees of the Constitution. 
See, e.g., University of California Regents 
v. Bakke, 438 U.S. 265, 363 (1978) (opinion 
of Justices Brennan, White, Marshall and 
Blackmun). Indeed, the standards developed 
by the courts of appeals in the Title VII 
area have been used for guidance in deter­
mining the constitutionality of other types 
of affirmative action. See, e.g., Fulli-
love v. Klutznick, 448 U.S. 448, 510-11



57

(1980) (opinion of Justice Powell); Bakke, 
438 U.S. at 301 (opinion of Justice 
Powell).

"Where federal antidiscrimination 
laws have been violated, an equitable 
remedy may in the appropriate case include 
a racial or ethnic factor." Fullilove, 
448 U.S. at 483 (opinion of Justice Bur­
ger). While the Court has insisted that 
such a remedy is appropriate only in cases 
of "identified discrimination", id., at 498 
(opinion of Justice Powell) the Court has 
never suggested that the remedy is consti­
tutionally limited to make-whole relief for 
identified victims. Rather, the scope of 
the constitutionally permitted relief is 
defined by what is necessary to ”repai[r] 
the effects of discrimination," id. at 
510.— /

32/ For example, the Court repeatedly has 
held that race-conscious numerical remedies



- 58

The District Court's order in this 
case is a remedial measure that is consist­
ent with the Fourteenth Amendment. The 
District Court imposed its layoff order 
only when it became apparent that the 
remedy it had previously ordered would 
otherwise be nullified. The same compel­
ling necessity that mandated the initial 
affirmative relief also mandated action to 
preserve that remedy.

The court's layoff order satisfies all 
of the requirements for constitutional

32/ continued
are necessary to remedy unconstitutional 
school desegregation. See, e,g. , Swann v. 
Chariotte-Mecklenburg Board of Education, 
402 U.S. 1 (1971); McDaniel v. Barresi,
402 U.S. 39 (1971); North Carolina Board
of Education v. Swann, 402 U.S. 43 (1971). 
The race-conscious remedies in these cases 
were not limited to "make-whole" relief 
for children in the school system during 
the years in which violations occurred. 
Rather, race-conscious remedies affecting 
future generations of schoolchildren were 
found necessary to overcome the effects of 
past discrimination and to assure future compliance with the law.



59

affirmative action. The order 
only way possible to preserve the 
remedy, see , e,g . , Fullilove, 448 
480-89 (opinion of Justices 
White and Powell); id., at 498-99

was the 
original 
U.S. at 
Burger, 
(opinion

of Justice Powell); Bakke, 438 U.S. at 315 
(opinion of Justices Brennan, White, 
Marshall and Blackmun), and it did not 
stigmatize or single out any politi­
cally weak non-minority group to bear the
brunt of the remedy. Id., at 361. 33/

While the burdens of discriminatory 
conduct and its remedy may be harsher in a 
recessionary, financially-depressed econ­
omy, the constitutional issues and analysis

33/ Indeed, the strong political power of 
the affected non-minority employees is 
demonstrated by the fact that the state 
legislature appropriated funds sufficient 
to prevent any layoffs when the district 
court determined that non-minority rather 
than minority employees primarily would be 
laid off.



60

must remain the same. Where such measures 
are necessary to achieve the remedial 
purposes of Title VII, the constitutional 
requirements for their imposition are 
satisfied.

CONCLUSION
We have focused on an aspect of the 

issues in this case as they impact on 
factors that affect the well being of our 
Nation's cities. We believe that it is of 
some significance that no City, not even 
the City of Boston which is the immediate 
city involved, has sought to support 
the position espoused by petitioners. In 
this case the discretion exercised by Chief 
Judge Cafferty served as a spur to release 
the creative energies that produced a 
solution which served well the interests of 
the citizens of the City of Boston. It 
appears that, so long as the last-hired



61

first-fired system of layoffs was followed, 
resulting in placement of the entire burden 
on the shoulders of politically-weak 
minorities, there was little incentive for 
the diverse actors to devise alternatives 
that would not undo the progress made 
pursuant to the district court's earlier 
orders. If this Court were to approve the 
arguments being advanced by petitioners, 
the ability of financially strapped cities 
to find alternatives to destructive layoffs 
would be undermined. The decision of 
the United States Court of Appeals for the 
First Circuit should be affirmed.



62

Respectfully submitted,

Donald Palen
C o rporation Counsel, 

City of Detroit 
Frank Jackson
Supervising Asst. Corp. 

Counsel1010 City-County Building 
Detroit, Michigan 48226

Attorneys, City of Detroit, 
for A m i c u s  C u r i a e

0. Peter Sherwood 
Clyde E. Murphy 
Penda D. Hair10 Columbus Circle 

Suite 2030New York, New York 10019
Of Counsel



APPENDIX



In Baker v. City of Detroit, 483 F.
Supp. 930, 996 (E.D. Mich. 1979) a
district court described fully the causes 
and public safety consequences of the 
Detroit Police Department's discriminatory 
conduct as follows:

[T] he Police Department and the 
black community were at each other's throats at least until the early 
1970's. ... the Police Department was
regarded as an "occupation army" in 
the black community and was treated as 
such. Precinct stations in the black 
community looked like armed for­
tresses; they were shot at by passing 
cars of black youths. Officers were 
afraid to venture into the community 
for fear of being harassed or worse.

This sad state of affairs had 
many causes. The primary cause 
was discriminatory practices. Racial 
criteria entered into the everyday 
judgments of police officers regarding 
who they stopped, searched or detained 
and how they did it. Racial slurs 
were common. Police brutality against 
black citizens was less common but 
still severe. Some of the testimony 
of Mr. Arthur Johnson before the Civil 
Rights Commission in 1960, previously 
quoted in this opinion, vividly



2a

portrays the attitudes and practices 
of the Department -- practices that 
Mr, Johnson testified were such that 
there wasn't a black citizen in the City of Detroit who had not been subject to them.

Witness after witness at trial 
testified that discriminatory police 
practices were common. Inspector 
Harold Johnson testified that officers 
would often stop black motorist for 
traffic offenses, search the car, take 
the seat of the car out, and then 
leave the seats on the street when 
they were finished. Deputy Chief 
Police Reginald Turner, who commanded 
the tactical mobile unit starting in 
1974, corroborated this testimony. He 
noted that disproportionately large 
numbers of black citizens were injured 
as a result_ of traffic stops. Chief 
Hart testified that "[i]t's a matter 
of public record that members of the 
black community have been beaten up by 
police unjustifiably and without 
cause; its a matter of record." 
Deputy Chief Bannon testified that 
informal police rules in the forties and fifties were that "all blacks west 
of Woodward Avenue after sundown would 
be investigated unless they were known to the police officer." This 
"pattern of systematic discrimination" 
continued against blacks in individual 
officer-on-citizen contacts.

Empirical proof of ongoing 
crisis in relations between the Depart­
ment and the black community is the



3a

fact that Detroit suffered major riots 
in 1 94 3 and 1 967 which required 
federal troops to subdue the violence. 
This Court has already discussed these 
riots and the major role that police- 
black community friction played in 
triggering each of them. This 
Court has also discussed the so-called 
"Kercheval incident" of 1966. In 
subsequent years the City underwent 
unrest triggered, in 1 968 , by the 
assassination of Martin Luther King, 
Jr., and, in the following years, by a 
special tactical police squad known as 
STRESS.

Vivid testimony was presented at 
trial regarding the New Bethel Church 
incident of 1969 by eyewitness police 
inspector Mack Douglas. Following 
reports that a white policeman had 
been shot near the New Bethel Church, 
twenty or thirty policemen converged 
on the building. The people inside 
the church were black and included 
women and children. The police went 
on an unprovoked rampage and began 
shooting and looting. The people in the church ducked for cover as best 
they could. The shooting was stopped 
by two black officers who physically 
removed the guns from the hands of 
the white officers. This incident is 
an extreme example of police practices 
which outraged the black community.

The Department paid a heavy 
price for its discriminatory prac­
tices. The defendants have accurately



4a

characterized what resulted a a "cycle 
of violence" as the Department and the 
black community warred on each other. 
Six to eight police officers a year 
would die in the line of duty; no officer felt safe in the black 
community. The burden of the dis­
criminatory police practices, however, 
was ultimately borne by the black and white citizens of Detroit.

The black community's response 
to department practices was deep 
hatred and alienation. Not only 
did the community hate the police, 
it had no confidence in the police's 
interest in investigating or solving 
black on black crime. This lack of 
confidence was justifiable. The 
result was that the police got 
no cooperation from the black com­
munity in solving crime.

This is significant because 
citizen cooperation is essential to 
solve crime. Lack of support in 
the black community was devastating to the Department's efforts to 
police the City. This was the view of 
Police Chief Hart, and former Chiefs 
Tannian and Murphy. So substantial 
was the community's alienation that at 
times there was active interference 
with officers performing their duty. 
Many times, crowds developed when the police arrived at the scene of a 
crime. These crowds were often 
hostile to the police and interfered 
with them. White officers who had



5a

responded to a radio run often 
had to get assistance for themselves. 
The police themselves— and ultimately 
the citizens of Detroit— were the real 
victims of discriminatory practices, 
(footnotes omitted).

483 F. Supp. 996-97.
In Baker the district court described

the effects of Detroit's affirmative action
efforts on po1ice-community relations
as follows:

The empirical proof that racial 
classifications were needed is the 
testimony of witness after witness as 
to the results of affirmative action 
hiring and promotions. Chief Hart in 
particular noted the harmony which has 
gradually developed between the 
Department and the community. He 
testified that as a result of the 
affirmative action program, there 
was a significant decrease in dis­
criminatory police practices and a 
concomitant increase in good feelings 
toward the Department. The affirma­
tive action program gave the Depart­
ment the credibility in the black 
community which had been absent 
previously. The Department had 
historically been all but off-limits to blacks. Now the community saw 
increasing numbers of their friends 
and neighbors in the Department, and 
at all levels.



6a

The good feeling which d e ­
veloped was evident in many ways. 
A survey by Market Opinion Research 
found that while white attitudes 
toward the Department had stabil­
ized, there was a "dramatic increase" 
in the number of blacks rating the 
relationship between the police and 
the community as "good." 22% of black 
citizens surveyed so characterized the 
relationship in 1973; 43% did so in
1 978. Chief Hart testified that the 
"occupation army" mentality melted 
away as did problems of hostile crowds 
and sullen, incooperative citizens.

Chief Hart and Deputy Chief 
Bannon directly linked the dramatic 
improvement in police-community 
relations to the affirmative action 
plan and its objective of having 
a police force reasonably represen­
tative of the community it policed. 
Former Police Commissioner Patrick 
Murphy testified that where white 
officers did not share the cultural 
values and backgrounds of black 
citizens, courses in black culture or 
sensitivity training in race relations 
for white officers did not work. 
In Commissioner Murphy's eyes, all the training in the world could not 
"substitute for the understanding, the deep perceptions of people who have 
come from the minority background 
and culture." The fact that other 
Departmental efforts to improve 
police-community relations were, in 
the words of Deputy Chief Bannon, "absolutely ineffective," demonstrates



7a

the truth in Commissioner Murphy's 
words, and confirm the need for more 
black officers at all ranks.

The testimony at trial addi­
tionally linked the affirmative 
action plan to less citizen com­
plaints, less shootings of police 
officers, and ultimately a lowered 
crime rate. Chief Hart and Deputy 
Chief Bannon testified that the 
affirmative action plan dramatically 
reduced citizens' complaints filed 
against the Department. Chief Hart 
testified that the plan resulted in a 
reduction of the number of officers 
killed in the line of duty of from 
6 to 8 each year to zero. Chief 
Hart testified at trial that no 
police officer has been killed in 
the line of duty since 1 974, when 
the affirmative action plan was 
instituted. Chief Hart also testified 
that crime was reduced significantly 
because of police-citizen cooperation fostered by the affirmative action 
program. Former Chief Tannian cor­
roborated these views:

"After we put substantial 
numbers of minorities in a 
supervisory capacity on the 
street, I found that the number 
of complaints from a racial 
standpoint went down, the level 
of cooperation in terms of 
information that witnesses at the scene just gratuitously 
offered improved, and the 
most significant example of



- 8a

fact that I can point to is 
the homicide area. When I 
took over the Police Depart­
ment the homicide solution 
rate was between 50 and 60 
percent and when I left the Police Department it was between 
70 and 80 percent, and I am 
claiming that that is a direct 
result of citizen cooperation.

483 F. Supp. at 999-1000.



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