# Anthony v. Com. of Mass.

> District Court, D. Massachusetts · March 29, 1976 · 415 F. Supp. 485

URL: https://www.frixlaw.com/law-library/cases/9745362

## Case

- **Full name:** Carol A. ANTHONY Et Al. v. the COMMONWEALTH OF MASSACHUSETTS Et Al.; Helen B. FEENEY v. the COMMONWEALTH OF MASSACHUSETTS Et Al.
- **Court:** District Court, D. Massachusetts
- **Decided:** March 29, 1976
- **Citations:** 415 F. Supp. 485; 12 Empl. Prac. Dec. (CCH) 10,991; 12 Fair Empl. Prac. Cas. (BNA) 915; 1976 U.S. Dist. LEXIS 15869
- **Precedential status:** Published
- **Opinion:** Concurring in part by Murray
- **Judges:** Campbell, Murray, Tauro
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FRANK J. MURRAY, District Judge
(concurring in part and dissenting in part).
I concur in the opinion and judgment of the court in the Anthony case.
The court holds in the Feeney case that Mass.Gen.Laws ch. 31, § 23 is unconstitutional because it deprives women of equal protection of the laws. In reaching this result the court acknowledges that the Massachusetts Veterans’ Preference statutory scheme “was not enacted for the purpose of disqualifying women from receiving civil service appointments”, ante at 495, that the policy of “rewarding . . . those who have rendered public service as members of the military is a worthy state purpose”, id. at 496, and that “. . . there is no constitutional right to public employment”. Id. at 499. The court also declares that there is nothing in the Fourteenth Amendment that prohibits the state from “providing special treatment to veterans in considering candidates for public employment”, id. at 496, and that such a state policy “responsibly recognizes both the special problems of veterans and the need to promote an important aspect of the nation’s welfare”. Id. at 497. I find nothing in the statutory scheme to support the supposition that the Commonwealth in furtherance of the legitimate state purposes referred to by the court has created a statutory classification which is either gender based or invidiously discriminates against women.
*502 As justification for its holding, the court employs a means/end calculus to assess the constitutionality of the Veterans’ Preference statute by analyzing the effect on women of its implementation. Using this analysis the court concludes that while the end of rewarding veterans is legitimate and rational, the means adopted by the statutory scheme to achieve the end are not. At the heart of the court’s decision is the conclusion that there is justification in the Equal Protection Clause for a court to exercise “its fundamental responsibility to ensure that all citizens are treated equally and fairly under the law”. Id. at 497. This largely unobjectionable general statement of justification can quite easily be read as authority for a court’s displacement of every choice of classification made by a legislature. 1 Considerations of federalism and separation of powers, however, have disciplined the exercise of this “responsibility” by causing development by the Supreme Court of certain traditional principles for evaluation of equal protection challenges to state legislation. The central theme of the equal protection analysis developed by the Supreme Court has been the search for the proper standard of review by which to measure challenged legislation. I find in the court’s opinion here with its means/end calculus neither sufficient concern for the institutional considerations militating against displacement of state legislation nor a fully articulated standard by which the legislature’s choice of means should be evaluated. Having concluded that proper concern for the relevant considerations leads to a standard of review under which the legislation challenged in this case must be sus-
tained, I respectfully dissent for the reasons stated below.
I
In addressing an equal protection challenge to state legislation a court must be sensitive to the crucial institutional considerations which define its role as that of restraint when called upon to interpose its judgment against the judgment of the political processes of the states. Justice Brennan has noted that “[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which [the Supreme] Court examines state action”. Allied Stores of Ohio v. Bowers, 358 U.S. 522, 532 , 79 S.Ct. 437, 444 , 3 L.Ed.2d 480, 488 (1959) (Brennan, J., concurring). Principles of federalism áre not merely a recognition “that our Constitution is an instrument of federalism”, id., but also a recognition of the value of state experimentation with a variety of means for solving social and economic problems. Cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 , 52 S.Ct. 371, 386 , 76 L.Ed. 747, 771 (1932) (Brandeis, J., dissenting). See Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971) (Black, J., for the Court, for a discussion of “Our Federalism”). In approaching the legislation challenged here these principles require due recognition of the settled arrangements adopted by virtually every state legislature 2 —not to mention the Federal'Government 3 —granting some form of veterans preference in public employment.
The doctrine of separation of powers requires that the courts give deference to the *503 means by which the representative branches of government choose to implement state policies. Justice Harlan has succinctly summarized the dangers inherent in overly intrusive judicial review of legislation:
It is said that there can be nothing wrong with courts exercising [active judicial review] because whatever they may do can always be undone by legislative ’ enactment or constitutional amendment . [But] in the end what would eventuate would be a substantial transfer of legislative power to the courts.
Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B. A.J. 943, 944 (1963).
The issue for the courts examining challenged legislation, as Justice Douglas, speaking for the Court, put it in a case upholding a state statute which discriminated against men on the basis of gender as such,
is not whether the statute could have been drafted more wisely, but whether the lines chosen by the . . . Legislature are within constitutional limitations. The dissents would use the Equal Protection Clause as a vehicle for reinstating notions of substantive due process that have been repudiated. “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to pass laws.” Ferguson v. Skru-pa, 372 U.S. 726, 730 , 83 S.Ct. 1028, 1031 , 10 L.Ed.2d 93, 97 .
Kahn v. Shevin, 416 U.S. 351 , 356 n. 10, 94 S.Ct. 1734, 1737 , 40 L.Ed.2d 189, 194 (1974).
In weighing the separation of' powers considerations inherent in any constitutional challenge to legislation “it must be remembered that legislatures are ultimate guardians'of the liberties' and' welfare of the people in quite as great a degree as the courts”. Missouri, K. & T. Ry. v. May, 194 U.S. 267, 270 , 24 S.Ct. 638, 639 , 48 L.Ed. 971, 973 (1904) (Holmes, J.). It is therefore not inapposite to note in considering the challenge here that Congress has taken an active role in defining the applicability of the Fourteenth Amendment to gender discrimination in the employment context through Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2. Congress, however, -"'has specifically chosen to protect veterans preference legislation from challenge under Title VII. 42 U.S.C. § 2000e-ll. 4 To paraphrase Justice Brennan in Frontiero v. Richardson, 411 U.S. 677 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973), the judgment of a coequal branch of government which has specifically addressed the issue of accommodating equal employment rights with veterans preference legislation is not without significance in evaluating the question presented in this case. Id. at 687-88 , 93 S.Ct. at 1770-71 , 36 L.Ed.2d at 592 .
II
Guidance for judicial inquiry in an equal protection case is set out in Dunn v. Blumstein, 405 U.S. 330 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972), where the Court said “we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification”. Id. at 335 , 92 S.Ct. at 999 , 31 L.Ed.2d at 280 . The gravamen of plaintiff Feeney’s complaint is that the statute and its implementation “unlawfully discriminate in public employment on the basis of sex”. Para. 36. The Supreme Court, in recent cases, has defined sex discrimination as dissimilar treatment of men and women who are similarly situated. Frontiero v. Richardson, supra, 411 U.S. at 688 , 93 S.Ct. at 1771 , 36 L.Ed.2d at 592 , citing Reed v. Reed, 404 U.S. 71, 77 , 92 S.Ct. 251, 254 , 30 L.Ed.2d 225, 230 (1974).
Treating the statutory classification first, it is obvious that the division between veterans and non-veterans is not drawn along sex lines and does not provide for dissimilar treatment for similarly situated men and women. On its face the statute is neutral, and, beyond that, there is no showing that the statutory class distinctions “are mere pretexts designed to effect an invidious dis *504 crimination against the members of one sex or the other . . . Geduldig v. Aiello, 417 U.S. 484 , 496-97 n.20, 94 S.Ct. 2485, 2492 , 41 L.Ed.2d 256, 265 (1974). The statute was not passed to disqualify women from civil service appointments, as the court has acknowledged. Ante at 495. If there exists the almost insuperable barrier to women attaining higher level civil service jobs, a result the court has found, it is a circumstance that non-veteran women share with a large number of non-veteran men. 5 This circumstance presents an even less compelling claim for sex discrimination than Geduldig v. Aiello, supra, where only women were in the group burdened by the classification. 6 I cannot assent to the supposition that plaintiff has shown the classification challenged here to be sex based or that it invidiously discriminates against women. 7 Having reached that conclusion, I, like the court, find it unnecessary to address the question whether sex discrimination involves legislative creation of a suspect category. 8
It is clear that plaintiff Feeney’s interest at stake in the case is her interest in appointment to an administrative assistant position in the civil service. There is, to be sure, a due process dimension to the procedures by which the Commonwealth provides for the allocation of civil service jobs. 9 *505 More to the point for purposes of analysis of equal protection grounds, the basis on which the court rests its decision, is whether plaintiff’s interest in public employment can be termed a “fundamental interest”, a term having specific consequences for determination of the proper standard of federal review of the legislation. The Supreme Court in San Antonio Independent School District v. Rodriquez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973), articulated the “key to discovering” whether an asserted individual interest can be viewed to be of such fundamental importance that unequal treatment of the interest under a state statute, absent a strong showing of justification, will require a federal court to strike down the legislation. The Court there stated that “the answer lies in assessing whether [the interest, is] explicitly or implicitly guaranteed by the Constitution”. Id. at 33-34 , 93 S.Ct. at 1297, 36 L.Ed.2d at 43, see Shapiro v. Thompson, 394 U.S. 618, 642 , 89 S.Ct. 1322, 1335 , 22 L.Ed.2d 600, 619 (1969) (Stewart, J., concurring). As the court here acknowledges, ante at 499, there is no constitutional right to public employment, and, therefore, under traditional equal protection analysis the plaintiff’s interest cannot be viewed to be a “fundamental interest”.
There are valid reasons which justify the Commonwealth’s interest in creating a preference for veterans, that is, of providing special benefits to a class of persons deemed to have made special sacrifices for their country. In Feinerman v. Jones, 356 F.Supp. 252 (M.D.Pa.1973) (three-judge court), the “underlying justifications” of upholding Veterans’ Preference legislation were expressed:
(1) As a recognition that the experience, discipline, and loyalty which veterans gain in military service is conducive to the better performance of public duties;
(2) As a reward for those veterans who, either involuntarily or through enlistment, have served their country in time of war; and
(3) As an aid in the rehabilitation and relocation of the veteran whose normal life style has been disrupted by military service. [Footnote omitted.]
Id. at 259 . Other courts have held these reasons a valid basis for the statutory classification of veterans and non-veterans. See Russell v. Hodges, 470 F.2d 212, 218 (2d Cir. 1972); Koelfgen v. Jackson, 355 F.Supp. 243 (D.C.Minn.1972) (three-judge court), aff’d mem. 410 U.S. 976 , 93 S.Ct. 1502 , 36 L.Ed.2d 173 (1973). Cf. Hutcheson v. Director of Civil Service, 361 Mass. 480 , 281 N.E.2d 53 (1972). 10 There is nothing in the Fourteenth Amendment that precludes the granting of a preference to veterans who have initially passed a civil service examination.
Ill
Traditional equal protection analysis has presented a court with a choice of tests to determine the validity of challenged state legislation — restrained review and active review. See generally, Developments in the Law —Equal Protection, 82 Harv.L.Rev. 1065, 1076-1132. As the Supreme Court stated in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172 , 92 S.Ct. 1400, 1405 , 31 L.Ed.2d 768, 777 (1972): “The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, *506 at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose”. Active review, a strict standard of review under the Equal Protection Clause, which requires the state to show that the statutory classification was necessary to promote a “compelling state interest”, is called for only when the discrimination is based on a classification of a suspect character or adversely affects a fundamental interest. The factual requirements calling for active review are not present here and a more restrained standard of review should be applied. 11
Assuming arguendo that the statutory scheme challenged here is sex discrimination, plaintiff’s claim should be tested by a standard of review which lies somewhere between restrained review and active review. 12 In Reed v. Reed, supra, where the classification in the statute was explicitly sex based, the standard articulated .was that the challenged classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike”. 404 U.S. at 76 , 92 S.Ct. at 254, 30 L.Ed.2d at 229 , citing Royster Guano Co. v. Virginia, 253 U.S. 412, 415 , 40 S.Ct. 560, 561 , 64 L.Ed. 989, 990 (1920). This traditionally deferential articulation of the standard has been applied in gender-based classification cases with a good deal moré vigor than would normally be associated with restrained review. An intermediate standard has been articulated and applied in cases involving gender-based discrimination as embodying a requirement that the state show “a factually demonstrable distinction between the positions of the men and women affected by the classification which is substantially related to its objective”. Women's Liberation Union of Rhode Island v. Israel, 512 F.2d 106, 108 (1st Cir. 1975). See also, Nowak, Realigning the Standards of Review Under the Equal Protection Guarantee — Prohibit ed, Neutral, and Permissive Glassifications, 62 Geo.L.J. 1071 (1974). Even assuming this case involves sex discrimination, based on the court’s finding on the record here of nonintentional adverse discriminatory impact on women, a less stringent standard of review than the demonstrable rational basis test is justified. Cf. Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972).
IV
In applying the demonstrable rational basis test to the case here, it should be recognized that the Veterans’ Preference statute and the civil service regulations represent a fully considered “rough accommodation” 13 of the Commonwealth’s interests which come into play when priorities are set for the allocation of a limited state resource. Cf. San Antonio Independent School District v. Rodriquez, 411 U.S. at 55, 93 S.Ct. at 1308, 36 L.Ed.2d at 55. The scheme provides for identification through a test of the pool of applicants qualified to perform a specific job; it then arranges the qualified persons on an eligibility list in the order of their performance on the test. The statute provides that the names of persons who pass the examinations for appointment to a civil service position shall be divided into two classes: veterans and non-veterans. Those men and women placed in the veterans classification receive the benefit of the statute and those men and women not classed as veterans do not receive the bene *507 fit of the statute. The preference is integrated into the scheme by placing qualified veterans at the top of the eligibility list. The statutory scheme incorporates in two ways a policy of the Commonwealth that raw test score need not be the absolute measure of whether an individual should be chosen for a job. First, it provides certification to an appointing authority in order of appearance on the list of a number of persons greater than the number of jobs available, but leaves the appointing authority free to select a certified applicant irrespective of the applicant’s test score; second, the scheme gives special advantage in placement on the list to qualified veterans.
The clear purpose of the statute is to prefer qualified veterans for consideration for civil service jobs, and analysis of the statutory scheme and the civil service regulations demonstrates that the classification at the very least substantially serves and furthers obvious state interests. To assert that the legislation “suspends the application of . job-related criteria and substitutes a formula that relegates demonstrable professional qualifications to a secondary position, absolutely and permanently”, ante at 497, or that the Commonwealth has “incorporated into its public employment policy a set of criteria having no demonstrable relation to an individual’s fitness for civilian public service”, ante at 498, assumes the unacceptable premise that only selection criteria adhering exclusively and strictly to raw test score meet the standard of “demonstrable professional qualifications”. Irrespective of whether the preference for veterans is applied in the selection of an applicant for a civil service job, the Commonwealth, as noted above, does deviate from the raw test scores in its selection procedures. The assertion that the preference is absolute and permanent is but another way of arguing that “the preference accorded to veterans is simply too great”, cf. Rios v. Dillman, 499 F.2d 829, 332 (5th Cir. 1974), not that there is no rational basis for the classification.
The Commonwealth’s Veterans’ Preference statute is based on the factually demonstrable distinction of whether or not a person is a veteran. This classification is substantially related to the Commonwealth’s purpose to benefit veterans in the area of public employment. The Commonwealth’s choice of means to implement the purpose does not invidiously discriminate against women. The issue is whether the means chosen by the Commonwealth are within constitutional limitations, and as I believe they are I am unwilling to engage in speculation regarding alternative measures 14 for achieving the statutory purpose. I would uphold the statute.
.Professor Cox has noted, “[o]nce loosed the idea of Equality is not easily cabined”. Cox, The Supreme Court, 1965 Term-Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966). The Equal Protection Clause has not been read, however, as a general warrant to rewrite legislation because some persons are treated differently from others in the classification schemes established by legislation. “Classification is inherent . in legislation;- the Equal Protection Clause has not forbidden it.” Morey v. Doud, 354 U.S. 457, 472 , 77 S.Ct. 1344, 1354 , 1 L.Ed.2d 1485, 1496 (1957). (Frankfurter, J., dissenting).
. All but four states use a veterans preference in connection with public employment appointments. Brief for the Defendants at 34 n. 9. Cf. Koelfgen v. Jackson, 355 F.Supp. 243 , 252 n. 9 (D.Minn.1972), aff'd mem. 410 U.S. 976 , 93 S.Ct. 1502 , 36 L.Ed.2d 173 (1973).
. 5 U.S.C. §§ 2108 , 3309-12, 3316.
. Cf. EEOC, Decision 74-64, CCH Emp.Prac. Guide 116419.
. The agreed statement of facts filed by the parties indicates that 852,000 male veterans and 16,000 female veterans reside in the Commonwealth. The agreed statement also indicates that approximately 1,823,000 males and 1,990,000 females over the age of 18 live in the Commonwealth. Feeney Statement ¶] 31. Based upon these figures, approximately 53 percent of the males over the age of 18 and 99 percent of the females over 18 in the Commonwealth are non-veterans.
. The court distinguishes Geduldig on the basis of the subject matter of the legislation challenged there — California’s disability insurance program. Ante at 495 n.8. But the principle teaching of Geduldig as I view it is the definition of sex discrimination. The Supreme Court’s definition stated therein, as legislation that is either based on gender as such or invidiously discriminates against one or the other sex, has led one commentator who favors a much broader constitutional definition of sex discrimination to conclude that:
the Court will not find states to be engaging in invidious discrimination in violation of the equal protection clause where they draw distinctions between men and women on the basis of traits exclusive and peculiar to one or the other sex.
Comment, Geduldig v. Aiello, Pregnancy Classifications and the Definition of Sex Discrimination, 75 Colum.L.Rev. 441, 442 (1975).
. The court states that “in the context of the Fourteenth Amendment ‘[t]he result, not the specific intent, is what matters,’ ” ante at 497, citing six cases in support of that proposition. I find nothing in the cases cited, particularly in light of the teaching of Geduldig regarding the definition of sex discrimination, to justify an “impact” theory of discrimination here. Cf. Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3360 .
. A majority of the Supreme Court has not yet been found to declare sex discrimination a suspect classification. Cf. Frontiero v. Richardson, 411 U.S. 677, 682-88 , 93 S.Ct. 1764, 1768-71 , 36 L.Ed.2d 583, 589-593 (1973) (Brennan, J., for plurality contending sex is suspect classification). A majority of the Court has apparently not found it necessary to reach the question. Cf. Stanton v. Stanton, 421 U.S. 7, 13 , 95 S.Ct. 1373, 1377 , 43 L.Ed.2d 688, 694 (1975); Smith v. Troyan, 520 F.2d at 495 n.6.
. See, e. g., Arnett v. Kennedy, 416 U.S. 134 , 94 S.Ct. 1633 , 40 L.Ed.2d 15 (1974); Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972). The court takes the position that the Fourteenth Amendment “demands that [a state providing public employment] must do so in a fair and equitable manner”. Ante at 499 & n.14. I do not read Boston Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910 , 95 S.Ct. 1561 , 43 L.Ed.2d 775 (1975), and Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972), to mandate in a public employment context a more rigorous constitutional concept than is required by traditional equal protection analysis or by Title VII when applicable. As the court pointed out in Feinerman v. Jones, 356 F.Supp. 252 :
All of the cases which have talked of the need for compelling state interests in connection with state employment practices have either involved other constitutional rights, such as first amendment freedoms, or have dealt with the exclusion or dismissal of people from public employment on arbitrary grounds without proper due process procedures.
Id. at 258 .
Plaintiffs due process argument that the statute is unconstitutional because it raises an irre- *505 buttable presumption that non-yeterans are not as qualified for civil service positions as are veterans is not persuasive. The doctrine of irrebuttable presumptions is directed at statutory schemes which raise evidentiary presumptions against a specific class. See, e. g., Board of Educ. v. LaFleur, 414 U.S. 632 , 94 S.Ct. 791 , 39 L.Ed.2d 52 (1974); Vlandis v. Kline, 412 U.S. 441 , 93 S.Ct. 2230 , 37 L.Ed.2d 63 (1973). The due process objection to these presumptions is that they cannot be overcome by factual demonstration. The classification effected by the Veterans’ Preference statute under attack here is of a different character. It does not represent an evidentiary assumption, rather it represents a policy choice of rewarding one class of citizens.
. See also Johnson v. Robison, 415 U.S. 361 , 94 S.Ct. 1160 , 39 L.Ed.2d 389 (1974); Mitchell v. Cohen, 333 U.S. 411 , 68 S.Ct. 518 , 92 L.Ed. 774 (1948).
. See Section II of this opinion supra.
. As more fully discussed in Section II supra, I have concluded that this case does not involve sex discrimination. Accordingly, the standard of review I would employ here would be one' even less demanding than that discussed in the text in Sections III and IV.
. The Veterans’ Preference and the civil service scheme have been modified from time to time throughout their history and the Commonwealth has not been adverse to limiting the breadth of the preference. Brief for the defendants at 44 — 45. The Commonwealth’s efforts to adjust the competing interests involved in civil service selection procedures are well illustrated by the disposition of the Anthony case. This change in the application of the Veterans’ Preference is but a recent illustration of the Commonwealth’s continuing efforts to accommodate the claims of diverse groups for the limited number of state jobs.
. A bonus point Veterans’ Preference such as the one employed by the Federal Government, ante at 499 & n.13, is one which would appear to have no practical effect of benefiting non-veteran women, like the plaintiff, seeking administrative assistant positions. After reordering the administrative assistant list, see Brief of the Plaintiffs at 235-38, to apply a bonus point preference system like the Federal system, it appears that the highest non-veteran woman would not be reached until at least eighteen names are certified from the list. Plaintiff would not be reached under such sys-tern until at least 31 names are certified. Since under civil service procedure the number of requisitioned positions would result in certification of no more than eleven names, no benefit would accrue under such bonus point system to non-veteran women generally and plaintiff in particular.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9745362. Public record. Not legal advice.