Bakke v. Regents Brief Amicus Curiae for the Order of Sons of Italy in America in Support of Respondent

    No. 83-551

<3f« tip jgmprrmo Court of i\\t Pntteh J&atos
O ctober  T e r m , 1983

H a n so n  B r a t t o n , et a l ., pe t it io n e r s

v.

C ity  of D e t r o it , et a l .

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF A PPEALS FOR 

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES 
AS AMICUS CURIAE

R ex E. Lee 
Solicitor General 
Department o f  Justice 
Washington, D.C. 20530 
(202) 633-2217



TABLE OF CONTENTS
Page

Interest of the United S ta te s ............... .............. ................  1

Statement .............................................................................. 2

D iscussion .........................     7

TABLE OF AUTHORITIES
Cases:

Boston Firefighters Union, Local 718 v.
Boston Chapter, NAACP, No. 82-185
(May 16, 1983) ......................................................... 9

DeFunis v. Odegaard, 416 U.S. 3 1 2 ......................... 9

Detroit Police Officers Ass’n v. Young,
608 F.2d 671, cert, denied,
452 U.S. 938 .......... .............................................. 5 ,6

Fullilove v. Klutznick, 448 U.S. 448 ............... 8

Jones v. Alfred H. Mayer Co.,
392 U.S. 409 .............................................................  9

Katzenbach v. Morgan, 384 U.S. 641 ...................  9

Kent v. Dulles, 357 U.S. 1 1 6 .................................... 9
Minnick v. California Dep't o f  Corrections,

452 U.S. 105 ..............   9
United Steelworkers v. Weber,

443 U.S. 193 .............. ........................................4, 8
University o f  California Regents v. Bakke,

438 U.S. 265 ....................................................... 5,8

(I)



II
Page

Constitution and Statutes:

U.S. Const.:

Amend. X I I I ........................................................  9
Amend. X I V ..................... ............................... 3, 9

Civil Rights Act of 1964:

Title VI, § 601, 42 U.S.C. (& Supp. V)
2G00d et seq....................................................'............ 3

Title VII, § 701, 42 U.S.C. (& Supp. V)
2000e et seq................................................................. 3

§ 703(h), 42 U.S.C. 2000e-2(h) .........................
§ 706(f)(1), 42 U.S.C. 2000e-5(f)(l) ............. 1,
§ 706(g), 42 U.S.C. 2000e-5(g) .........................

Title IX, § 902, 42 U.S.C. 2000h-2..................... .. 1,2

42 U.S.C. 1981 ...........................................................3 ,4

42 U.S.C. 1983 ........................................................  3, 4

O
s <N t—



<3ht i\\t Supreme Court of i\\t ^nttoh $ in tm
October Term, 1983

No, 83-551

Hanson Bratton, et al., petitioners 

v.

C ity of Detroit, et al.

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

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES AS AMICUS
CURIAE

INTEREST OF THE UNITED STATES 

The Attorney General has primary responsibility for the 
enforcement of Title VII’s prohibition against various 
forms of discrimination, including racial discrimination, in 
the area of public employment. 42 U.S.C. 2000e-5(f)(l), 
2000h-2. This C ourt’s resolution of the broad issue pres­
ented in this case, viz., the validity of a racial quota for 
promotions voluntarily adopted by a municipal police 
department in response to past hiring and promotion dis­
crimination by the department, will have a significant effect 
on these responsibilities. The Court’s resolution of the con­
stitutional questions presented also could more generally 
affect the government’s civil rights enforcement responsibil­
ities. Indeed, the Attorney General previously certified this 
case to be of general public importance and moved unsuc­
cessfully to intervene in the case, pursuant to Sections

(1)



2

706(f)(1) and 902 of the Civil Rights Act of 1964, 42 U.S.C. 
2000e-5(f)(l); 2000h-2, after the panel decision of the court 
of appeals.

STATEMENT
1. One of the responsibilities of the Detroit Board of 

Police Commissioners (Board) is to decide how and on 
what basis all promotions, including those from sergeant to 
lieutenant, are made (Pet. App. 149a). The City has long 
used a merit selection system for promotions; prior to 1974, 
all candidates for promotion were ranked on a single list 
according to numerical ratings based on various factors, 
including individual scores on a written examination (id. at 
4a).1 Promotions were made in rank order from the list of 
candidates. Pursuant to this system the percentage of black 
lieutenants in 1967 was 1.3% (two of 158). Id. at 105a. After 
the well-known riots in Detroit in 1967, the Department 
undertook a vigorous recruiting effort to increase the 
number of blacks throughout the Department. By 1974, the 
percentage of black lieutenants had risen to 4.8% (11 of 
219). Id. at 123a-124a.

In 1974, the Board, after conducting two days of public 
hearings, adopted a race-conscious “affirmative action 
plan” for promotions in order to remedy the Departm ent’s 
prior discriminatory employment practices and to meet 
what the Board perceived to be an “operational need” for 
more black officers. The plan, as it related to promotions 
from the rank of sergeant to lieutenant, was as follows (Pet. 
App. 4a; footnote omitted):

'The other criteria that contributed to a candidate’s overall score 
were length of service, service ratings by superiors, college education, 
veterans’ preference and an oral interview (Pet. App. 4a n. 11).



3

The affirmative action plan does not alter the basic 
criteria for determining promotion eligibility, nor does 
it alter the minimum requirements necessary for con­
sideration for the rank of lieutenant. The plan man­
dates that two separate lists for promotion be com­
piled, one for black and the other for white officers. 
The rankings on those lists are then made in accor­
dance with the same numerical rating system pre­
viously employed. The promotions are made alter­
nately from each list so that white and black officers 
are promoted in equal numbers. This 50/50 plan is to 
remain in effect until fifty percent of the lieutenant 
corps is black, an event estimated to occur in 1990.

2. In November 1975, petitioners, five white police ser­
geants who were passed over for promotions on the 1975 
promotion eligibility list and the Detroit Lieutenants and 
Sergeants Association, the union for the officers, instituted 
the instant suit as a class action in state court against, inter 
alia, the City of Detroit, the Board, Mayor Coleman 
Young, and other municipal officials. The defendants 
removed the suit to the United States District Court for the 
Eastern District of Michigan. Petitioners’ amended com­
plaint alleged that the one-to-one racial quota for promo­
tions to lieutenant violated Titles VI and VII of the 1964 
Civil Rights Act (42 U.S.C. (& Supp. V) 2000d et seq. and 
2000e et seq.), 42 U.S.C. (& Supp. V) 1981 and 1983, and the 
Fourteenth Amendment.2

Petitioners also alleged that the City violated the collective bargain­
ing agreement with the Union, which incorporated the City’s Charter 
provision requiring promotions to be made solely on the basis of 
competitive examinations, and therefore the plan violated Michigan 
law. Because the district court concluded that the affirmative action 
plan of the City was not only permissible under federal law but also was 
mandatory in light of its findings of past discrimination, it had no basis 
for considering petitioners’ pendent state law claim. Although that part 
of the district court’s judgment that pretermitted its consideration of the 
state law claims eventually was vacated by the court of appeals (see page 
7, infra), that court did not resolve the state law part of the case.



4

After an extensive trial, the district court entered judg­
ment for the City and its officials (Pet. App. 85a-254a). The 
court first found that the Department had been guilty of 
past hiring and promotion discrimination against blacks; 
there had been intentional discrimination between 1943 and 
1967 and after 1967 the City’s promotion system, primarily 
because of its continued use of a non-job related examina­
tion, had a disparate impact on blacks (Pet. App. 123a- 
137a). Against this background the district court consi­
dered petitioners’ Title VII claim.3

Finding that the Board’s one-to-one promotion quota 
satisfied all the requirements for a permissible affirmative 
action plan outlined by this Court in United Steelworkers v. 
Weber, 443 U.S. 193 (1979), the district court held that the 
promotion quota did not violate Title VII. Indeed, noting 
the City’s use of unvalidated and discriminatory hiring and 
promotion tests until 1974, the district court held that 
“ Weber aside, the affirmative action plan is justifiable to 
remedy clear violations of Title VII which continued into 
1972 and 1973.” Pet. App. 201a.

The district court also rejected petitioners’constitutional 
challenge. The court determined that the promotion quota 
was a “reasonable” effort to remedy the present effects of 
the City’s past intentional employment discrimination, 
which did not cease until about 1967, when the minority 
recruitment program was instituted by the Department. 
Pet. App. 199a-216a.4

3The court stated that petitioners’ claim under Section 1981 was 
coextensive with their Title VII claim and their claims under Title VI 
and Section 1983 were coextensive with the constitutional challenge 
(Pet. App. 185a-186a). Petitioners have not challenged these 
conclusions.

4The district court also upheld the City’s contention that “effective 
law enforcement required that the Police Department at all ranks 
roughly reflect the population which it serves” (id. at 218a) and thus



5

In a separate opinion, the district court incorporated the 
Board’s affirmative action plan, including the promotion 
quota for lieutenants, into a final and mandatory judicial 
decree. Likening the voluntary plan to a consent decree, the 
court determined that the plan should be incorporated into 
a j udicial decree (1) to insulate the plan from further attacks 
and (2) to ensure that the City maintained its affirmative 
action efforts, which the court held were constitutionally 
required. Pet. App. 242a-247a.

3. The court of appeals, with three separate opinions, 
affirmed (Pet. App la-45a). Noting that “what is valid 
under [the Fourteenth Amendment] will certainly pass 
muster under Title VII” (id. at 13a), the opinion of the court 
focused solely on the constitutionality of the Board’s pro­
motion quota. The court reasoned that its constitutional 
analysis was governed by the Sixth Circuit’s earlier decision 
in Detroit Police Officers A ss’n v. Young, 608 F.2d 671 
(1979), cert, denied, 452 U.S. 938 (1981), which upheld a 
one-to-one racial quota for promoting Detroit police 
patrolmen to the rank of sergeant (Pet. App. 10a & n.26). 
Adopting the standard of judicial review outlined in the 
opinion of Justices Brennan, White, Marshall, and Black- 
mun in University o f  California Regents v. Bakke, 438 U.S. 
265,336 (1978), the Fouwgcourt and the court of appeals in 
this case determined that the substantial governmental 
interest in redressing the effects of past racial discrimination 
justifies race-conscious remedial measures so long as they 
are “reasonable.” The reasonableness inquiry, according to

concluded that the Department’s “operational needs”justified imposi­
tion of the one-to-one promotion quota for lieutenants. In this regard, 
the court concluded that in light of the “history of antagonism between 
the Department and the black community, the affirmative action plan 
was a necessary response to what had been an ongoing city crisis” (id. at 
229a).



6

the court, requires an examination into whether any dis­
crete group or individual is stigmatized by the racial classi­
fication and whether the racial classification is “reasonable 
in light of [the program’s remedial] objectives.” Id. at 13a, 
20a.

Applying this standard to the instant case, the court of 
appeals concluded that the evidence amply supported the 
Board’s and the district court’s findings of past intentional 
employment discrimination against blacks in the Detroit 
Police Department. Furthermore, the court determined 
that the Board’s promotion quota for lieutenants did not 
unduly stigmatize anyone (id. at 20a-23a) and passed the 
“test of reasonableness” (id. at 23a).5 The court of appeals 
further found that to the extent the one-to-one quota is 
excessive as a remedy for past discrimination in employ­
ment, it can be justified as redress “to the black population 
[of Detroit] as a whole” for a prior “pattern of unconstitu­
tional deprivation of the rights of a specific, identifiable 
segment of the Detroit population by white members of the 
segregated police departm ent.” Id. at 3 la. Finally, the court 
affirmed the district court’s entry of the Board’s affirmative 
action plan as a mandatory judicial decree.6

5The court’s determination that the promotion quota was “reasona­
ble” was based on its subsidiary conclusions that (1) the quota was 
“substantially related” to the objective of remedying past discrimina­
tion, (2) there were practical limitations on the effective use of other 
means to remedy past discrimination, (3) the quota was to terminate 
when its remedial objectives were fulfilled, and (4) the quota did not 
“unnecessarily trammel” the interests of white candidates for promo­
tion to lieutenant since 50% of the promotions still went to whites (id. at 
24a). The court expressly found it “unnecessary to address the validity 
of the operational needs defense to affirmative action in this context” 
(id. at 12a n.30).

6Judge Celebrezze concurred in the result only, finding the case 
governed by the constitutional analysis enunciated in Young (Pet. App. 
42a). Judge Merritt concurred in the court’s application of its constitu­
tional analysis, but dissented from, among other things, affirmance of



7

4. On April 29, 1983, the United States sought leave to 
intervene as a party appellant and to file a petition for 
rehearing in which the United States argued, inter alia, that 
the Board’s adoption of a one-to-one promotion quota 
violated the equal protection guaranty of the Fourteenth 
Amendment and that the incorporation of the Board’s 
quota into a court order was inconsistent with the court’s 
authority under Section 706(g) of Title VII, 42 U.S.C. 
2000e-5(g). The motion to intervene was denied, with Judge 
M erritt dissenting. Pet. App. 47a-50a. The court also 
denied petitioner’s petition for rehearing, but, in so doing, 
the court vacated that part of the district court’s final order 
incorporating the quota into a judicial decree. The court 
also remanded the case to the district court for further 
consideration of the 50% quota in light of 1980 census data 
showing that Detroit now has a 63% black population. Id. 
at 77a-78a.7

DISCUSSION
The sensitiveness of the issues presented in this case is 

readily apparent. The City of Detroit has unilaterally modi­
fied an otherwise apparently reasonable merit promotion 
system that had been bargained for collectively and has 
declared that fully half of all individuals promoted should 
be selected not solely on the basis of their measured ability 
but rather pursuant to an explicit racial criterion. We do not 
believe that this action can be sustained under the relevant 
statutes; nor do we believe that the City’s decision here can 
be squared with the Constitution—notwithstanding the fact 
that the City’s action was expressly made as a response to

the district court’s incorporation of the Board’s affirmative action plan 
into a judicial decree. Id. at 43a-45a,

’Judge Wellford dissented from the denial of rehearing en banc, 
because the panel “inappropriately considered the racial breakdown of 
the Detroit population as a whole instead of the racial breakdown of the 
applicable qualified labor pool” (Pet. App. 79a).



8

undeniable past discrimination against blacks that had 
created a police force that was largely unresponsive to the 
concerns of a substantial portion of the City’s population.

The courts below in grappling with this case labored 
under a serious handicap; this Court has heretofore, in its 
first three “reverse discrimination” decisions, not agreed on 
broad principles to guide the lower courts in resolving such 
cases. Moreover, none of the prior cases before this Court 
presented a setting comparable to this one and thus the 
specific reasoning and decisions in those cases did little to 
assist the courts below in reaching their results. For exam­
ple, unlike the situation in University o f  California Regents 
v. Bakke, 438 U.S. 265 (1978), the plan here was adopted to 
remedy actual discrimination by the institution involved; 
but, unlike the “Harvard plan” discussed by Justice Powell 
in Bakke, the plan here gave an absolute preference based 
on race, instead of using race solely as one factor in choos­
ing which candidates to promote (compare 438 U.S. at 
307-310, 315-319). Similarly, unlike United Steelworkers v. 
Weber, 443 U.S. 193 (1979), this case involves a public 
rather than a private employer and the plan it adopted 
allegedly contravenes a collectively bargained for merit 
promotion system. Finally, unlike Fullilove v. Klutznick, 
448 U.S. 448 (1980), this case concerns a quota with a 
potential life span exceeding ten years that was adopted in 
the context of public employment and by a municipality 
rather than by Congress.8 Whether all or some of these

8Nor is it likely that the Court’s decision in Stotts v. Memphis Fire 
Department, No. 82-229, will make clear precisely how this case should 
be decided. Stotts involves a district court’s remedial authority under 
Title VII and a consent decree to prohibit a City from conducting 
layoffs and demotions according to seniority and to order that layoffs 
be conducted by race in order to guarantee that the percentage of blacks 
hired and promoted under an affirmative action plan will not be 
reduced. While a decision by the Court on the merits in Stotts may well 
provide some illumination of the issues presented here, the cases are 
sufficiently dissimilar that review here would seem warranted whatever 
the outcome of Stotts.



9

factors should affect the proper disposition of this case is a 
matter that should be resolved by this Court. Moreover, 
this case comes before this Court after a full trial and final 
judgment, and with no justiciability issues that might cloud 
its final disposition. Compare Boston Firefighters Union, 
Local 718 v. Boston Chapter, NAACP, No. 82-185 (May 
16, 1983); Minnick v. California Dep’t o f  Corrections, 452 
U.S. 105 (1981); DeFunis v. Odegaard, 416 U.S. 312 
(1974). In sum, this case presents an appropriate occasion 
for the Court to attempt to reach some consensus on the 
proper approach to cases involving the adoption by the 
government of quotas for employment. There is an obvious 
public interest and importance in providing guidance for 
governmental entities which, like Detroit, may have engaged 
in past discrimination, but would prefer to avoid litigation 
by adopting voluntarily their own remedial plan.

As is evident from our participation in the court of 
appeals, the United States is of the view that the judgment 
below was erroneous. We are concerned about the adoption 
of race-conscious, non-victim-specific remedies, particu­
larly by any institution other than Congress. We have pro­
found doubts whether the Constitution permits govern­
ments to adopt remedies involving racial quotas to benefit 
persons who are not themselves the victims of discrimination— 
at least in the absence of a clear statement by Congress 
itself, acting pursuant to its broad remedial authority under 
the Thirteenth and Fourteenth Amendments, requiring the 
use of such remedies. See Fullilove v. Klutznick, supra', 
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437-444 
(1968); Katzenbach v. Morgan, 384 U.S. 641, 656-658 
(1966);cf. Kent v. Dulles, 357 U.S. 116,130(1958). Wealso 
have serious doubts about the validity of the unilateral 
adoption of a quota in place of a merit system in apparent 
disregard of the approval Congress expressed for merit 
systems in Section 703(h) of Title VII, 42 U.S.C. 2000e-2(h);



10

and we are troubled by the City’s intention to retain its 
quota until the percentage of black lieutenants equals the 
percentage of blacks in Detroit, even though that may be an 
artificial goal that needlessly disadvantages innocent non­
black persons and could take two decades to achieve. 
Should the Court grant the petition, the United States 
would attempt to address these issues fully, in light of prior 
decisions and government practice and available indicia of 
congressional intent. In our view, this case provides an 
excellent vehicle for addressing important and recurring 
issues that so far have evaded clear resolution by this Court 
and the lower courts, and there is a pressing public need for 
whatever clarification can be achieved. Accordingly, we 
respectfully submit that the petition for a writ of certiorari 
should be granted.

R ex E. Lee 
Solicitor General

D ecember 1983

D O J-1983-12