Amicus Brief — Hazelwood School Dist. v. United States

Supriir ¢ Cowet, U, Ss

. Filree pv Se

. --

Supreme Court af the United State

TABLE OF CONTENTS

OcroBer TERM, 1976 Page

ee cebu ee ee dt eKeebess 1

No. 76-255 I ee he A et dees 3

I. INTROPUCTION AND SUMMARY ..........cccceee. 3

HazkELWoop Scuoo., District ET AL.,

Petitioners, Il. Tuere Is No Neep ror Tats Covrat To Reacu

Vv. THE ConstiTruTIONAL Issuzs Presentep py Pert-

— " , TIONERS Because Tuer Hretne Practices Were

UNITED StTaTEs OF AMERICA, Snown To Vio.tate THe FourreentH AMEND-

Respondent. MENT’S Prouipition Aaatnst PurposeruL Dts-

SUN: ve AS CabwieGecacssasesecesecceces 6

Writ rtiorari to the United States Court of A :

- sa for the Eighth nec — A. In Concluding That Defendants Had Not

Engaged In Purposeful Discrimination, The

District Court Applied An Improper Stand-

ONAL SEUCATION , Rn BEE 005s Cab GSES dBA Ess ceseces 7

NATION AS AMICUS CURIAE 1. District Courts Must Consider the Total-

ity of the Evidence in Determining

Whether a School District’s Employment

STEPHEN J. PoLLaK Practices Are Purposefully Discrimina-

Riowarp M. Swarp __. MTEL EC PR TTT LECLERC TET Te 7

734 Fifteenth Street, N.W. 2. The District Court Erroneously Compart-

. mentalized the Evidence of Purposeful

Washington, D.C. 20005 EE oo cn. W oo adGSd's Ohba’ oo 8

Davip Rusin B. The Court of Appeals, Applying The Ag ol

MatrHEew M. Horowitz Standard, Correctly Concluded That The

1201 Sixteenth Street, N.W. United States Had Established A Prima

Washitigton, D.C. 20036 Facie Case Of Purposeful Discrimination .. 13

Of Counsel: Attorneys for Amicus Curiae III, Peririoners’ Use or Unwrirren, Vacue anpD

SHEA & GARDNER National Education Association Hiouty Sussective Crrrerta ror Hinino Tracu-

; h Street, N.W ers Viotatep TitLe VII Because It Serven As A

734 Fifteenth Street, N.W. Buit-In Heapwinp Tuat Was Nerruer Justi-

Washington, D.C. 20005 FreD BY Evipence or Business Necessiry Nor

Suown To Be Jos RELATED ......... cee eens 15

April 2, 1977

Passes or Byaon S. Adams Painting, Inc.. WASHINGTON, D. C.

ii Table of Contents Continued

Page

TV. Exrension or Trrte VII Coverace tro Pvusiic

Empvovers Is A Vatt> Exercise or Conores-

sionaL Power Unper Born tHE CoMMERCE

Cause AND Ssorion 5 or THe Fovurreenta

ADBUDREBNT cccveveccdtccrevecvuvebvessverver 20

A. The Commerce Clause Authorizes Applica-

tion Of Title VIL To Agencies Of State

Government .....s.s05. PE dedeeeeereedvees 21

B. Section 5 Of The Fourteenth Amendment

Authorizes Application Of Title VII To

State And teu Public Employers ........ 26

1. Principles of State Sovereignty Do Not

Restrict the Scope of Legislation Enacted

Pursuant to $5 of the Fourteenth Amend- ~-

BOONE .-. vc ccccevercewreneesiesedscccesece

2. Section 5 of the Fourteenth Amendment

Empowers Congress to Prohibit Conduct

That May Lie Outside the Direct Prohibi-

tions of the Equal Protection Clause If

the Legislation Is in Aid of the Equal

Protection Clause .........eseeeeeeeees 28

3. Extension of Title VTI to State and Local

Public Employers Is Within the Author-

ity of Congress Under Section 5 of the

Fourteenth Amendment ...........-.++: 30

oetaett . ook scccnncdgvatutetsatdnittienneee 36

TABLE OF AUTHORITIES

CasEs :

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 19

Ashwander v. Tennessee Valley Authority, 297 U.S. 288

(19BG) .norcvcvvvcvccrveccvevseccceverevecverss 15

Brown v. Board of Education, 347 U.S. 483 (1954) . .8, 9, 10

California v. Taylor, 353 U.S, 553 (1957) .......... 21

Table of Authorities Continued iii

Page

Christensen v. State of Towa, 417 F. Supp. 423 (N.D.

Towa 1976) ......00.e00e Te caWee eeePet cesbodns 23

Continental Ore Co. v. Union Carbide and Carbon

Corp., 370 U.S. G90 (1962)... cece cece cence eens 7

Coyle v. Oklahoma, 221 US. 559 (1911) «..-. eee eee 21

Cypress v. Newport News General and Nonsectarian

Hosp. Assn., 375 ¥.2d 648 (4th Cir, 1967) ........ 18

District of Columbia v. Little, 339 U.S. 1 (1950) ...... 15

EEOC vy. Detroit Edison Co., 515 F.2d 301 (6th Cir.

MET Saldege PedNeeseresesecscesrcetecreevececs 17

Everard’s Breweries v. Day, 265 U.S. 545 (1924) . .30, 33

Ex Parte Virginia, 100 U.S. 839 (1879) .......665- 27, 29

F.T.C. v. Cement Institute, 333 U.S. 683 (1948) ...... 7

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .....-..-- 27

Fry v. United States, 421 U.S. 542 (1975) ........-. 21

Gaston County v. United States, 395 U.S, 285 (1969) 32

Griggs v. Duke Power Co., 401 U.S, 424 (1971) ... passim

Hawkins v. North Carolina Dental Society, 355 F.2d

718 (4th Cir. 1966) ....: RsWeadhe a Neageder sedéees 18

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .... 30

Joy Silk Mills v. N.L.R.B., 185 F.2d 732 (D.C. Cir. 1950) 7

Katzenbach v. McClung, 379 U.S. 294 (1964) ........ 33

Katzenbach v. Morgan, 384 U.S. 641 (1966) ...... passim

Keyes v. School District, No. 1, Denver, 413 U.S. 189

CITED oc cWS ebb se deeb ewencscsesvcvewecccceoseces 8

Lassiter v. Northampton County Board of Education,

BGO U.S. 45 (1959) .....ccecccccccccccccccveves

Louisiana v. United States, 380 U.S. 145 (1965) ...... 16

McCulloch v. Maryland, 4 Wheat. 316 (1819) ........ 33

iv Table of Authorities Continued

Page

Meredith v. Fair, 298 F.2d 969 (5th Cir.), cert. denied,

S71 US. G88 (2068) ...cecccccccscsccntsenenens

Milliken v. Bradley, 418 U.S. 717 (1974) ....++-0+s 24, 25

Muller vy. United States Steel Corp., 509 F.2d 923 (10th

Cir.), cert. denied, 423 U.S. 825 (1975) ....ceeeee 17

N.L.R.B. v. Cascade Employers Association, Inc., 296

F.2d 42 (9th Cir, 1961) .,...c ccc e cece eee eee eees 7

N.L.R.B. v. National Seal Corp., 127 F.2d 776 (2d Cir.

1942) ..cccccccccceecccecenecscnecesessseseres

N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131 (Ist |

Cir, 1953) .... cece cece cece ee eeeeeeeeeeeecenes i

N.L.R.B. v. Wonder State Mfg. Co., 344 F.2d 210 (8th

Cir, 1965) oc... cece cece cece e ee eneeereeeeneees

National League of Cities v. Usery, 426 U.S, 833 (1976) |

passim

Neese v. Southern Railway Co., 350 U.S. 77 (1955) ... 15

Oregon v. Mitchell, 400 U.S. 112 (1970) ....-0-eeeee 30

Parden v. Terminal Railway Co., 377 U.S. 184 (1964) 21

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.

OP) eer ere 17,18

Smith v. Texas, 311 U.S. 128 (1940) «0.62 eee eeeeeee 16

Standard Oil Co. v. United States, 221 U.S. 1 + Fe

South Carolina v. Katzenbach, 383 U.S. 301 (1966) . — =

United Public Workers v. Mitchell, 330 U.S. 75 (1947) 15

United States v. California, 297 U.S. 175 (1936) .... 22

United States v. Darby, 312 U.S. 100 (1941) ......-. 33

United States v. Guest, 383 U.S. 745 (1966) ......-. 30

United States v. Reading Co., 253 U.S. 26 (1920) .... 7

Usery v. Bettendorf Community School District, 423

F. Supp. 637 (S.D. Iowa 1976) ....-.-eeeeeeeee 23

Table of Authorities Continued aor

Page

Usery v. Dallas Independent School District, 421 F.

Supp. 111 (N.D. Tex. 1976) 2.0... . 6c e eee ee eees 23

Usery v. Fort Madison Community School District, 79

7 33,419 (S.D. Towa 1976) «0.6.66. cece ee eee 23

Usery v. Kenosha Unified School Dist. Number One, 138

EPD 911,240 (B.D. Wis, 1976) 2.0... e eee eeees 23

Usery v. Kermit C. Morrissey, 79 LC § 33,455 (D. Mass.

DE. ackcacbdubnecawenngysasseseceveesee renes 23

Usery v. Univ. of Texas at El Paso, 12 KPD { 11,254

de oe ond ig whbaieennasinn 23

se of Arlington Heights v. Metropolitan Housing

evelopment Corp., 45 U.S.L.W. 4073 (Jan. 11,

BVED. nde dnvccwcens<ccccccesacecegessceccccece 8

Washington v. Davis, 426 U.S. 229 (1976) ........ passim

CONSTITUTION AND STATUTES:

United States Constitution:

Article IJ, §8, clause 3 ........... cece eee eees 4, 20, 21

Baa FH nose ccawccccccccccdeccccess 22, 27, 28

DEN TEE, Sic cc ccccecacdccconccesesecees 27, 28

Amondimont XIV .....cccccccccccccccccccees passim

Unitrep Strares STaTuUTES:

Civil Rights Act of 1964, Title VII, as amended by the

Equal Employment Opportunity Act of 1972,.42

U.S.C. $ 20000 ct seq. .... cc ccececcccsevceves passim

Fair Labor Standards Act of 1938, as amended, 29

is toe) OF F Sereererrrre rr reer rere 21, 23

National Labor Relations Act, as amended, 29 U.S.C.

B1BL ef BOG. occcccce ceccccccccccvccceseccens 7

LEGISLATIVE MATERIALS:

H.R. Report No. 1370, 87th Cong., 2d Sess. (1962), re-

printed in EEOC, Legislative History of Titles VIT

and XI of the Civil Rights Act of 1964 ........ 25

vi Table of Authorities Continued

Page

H.R. Report No. 92-238, 92d Congress, 1st Session

CROTES sivas cdaansesdacehncqadh advances isageges 20

‘Mexican Americans and the Administration of Justice

in the Southwest: A Report of the United States

Commission on Civil Rights,’’ reprinted in Senate

Subcommittee on Labor, 92d Cong., 2d Sess., Legis-

lative History of the Equal Employment Oppor-

tunity Act of 1972 (1972) ...... cece e eee er eeeees 35

S. Report No. 92-415, 92d Congress, Ist Session (1971)

20, 31, 32

118 Cong. Record 1816, 1839-40 (1972) ......6..eeeees 20

118 Cong. Record 784-823 (daily ed. Jan. 31, 1972), re-

printed in Senate Subcommittee on Labor, 92d

Cong., 2d Sess., Legislative History of the Equal

Kxmployment Opportunity Act of 1972 (1972) .... 34

a ee rn as

IN THE

Supreme Court of the United States

Ocroser TERM, 1976

No. 76-255

HAZELWoop ScuHool, DisTRICT ET AL.,

Petitioners,

v.

Unirep States or AMERICA, ~

Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR THE

NATIONAL EDUCATION ASSOCIATION

AS AMICUS CURIAE

—_ ----

° INTEREST OF AMICUS '

The National Education Association (‘‘NEA’’) is an

independent, voluntary organization of educators, open

to any person who is actively engaged in the profession

‘The parties have consented to the filing of this brief and their

letters of consent have been tendered to the Clerk of the Court

pursuant to Rule 42(2) of the Rules of this Court.

2

of teaching or other educational work, or any person

interested in advancing the cause of education. NEA

presently has more than 1,500,000 regular members

and is the largest professional organization in the na-

tion. Pursuant to the terms of its charter, 34 Stat. 805

(1906), NEA’s purpose is ‘‘to elevate the character

and advance the interest of the profession of teaching,

and to promote the cause of education in the United

States.’’

In pursuit of these goals, NEA has supported school

desegregation in the North and South and to that end,

has submitted briefs amicus curiae in such cases as

Alexander v. Holmes County Board of Education, 396

U.S. 19 (1969); Swann V. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1 (1971) ; Keyes v. School

District No. 1, Denver, 413 U.S. 189 (1973) ; Richmond

School Board v. State Board of Education, 412 U.S. 92

(1973) ; and Milliken v. Bradley, 418 U.S. 717 (1974).

The instant case is of particular concern to NEA be-

cause petitioners’ arguments, if accepted by the Court,

would deny to most teachers and prospective teachers

the protections that Title VIT of the Civil Rights Act

of 1964, as amended by the Equal Employment Oppor-

tunity Act of 1972, 42 U.S.C. § 2000e et seq., affords to

persons who are not public employees, Furthermore,

petitioners’ arguments, if accepted, would necessarily

lead to an unduly narrow construction of Congress’

power, pursuant to the Commerce Clause and Section 5

of the Fourteenth Amendment, to legislate on matters

affecting public education and the rights of public em-

ployees.

3

ARGUMENT

I. INTRODUCTION AND SUMMARY

This case arises from a school district in St. Louis

County, Missouri, that was segregated by law prior to

Brown v. Board of Education, 347 U.S. 483 (1954).

Thereafter, by various means including racially dis-

criminatory advertising and other forms of discrimina-

tory recruiting, the school district maintained an all-

white faculty until the fall of 1969. In hiring matters,

the school district entrusted virtually absolute discre-

tion to its all-white staff of 23 principals who in turn

utilized their own brands of vague and highly subjec-

tive hiring criteria. These procedures and criteria pro-

duced a dynamic process whereby vacancies vanished

when eligible black candidates appeared and then ma-

* terialized again for eligible white candidates and quali-

fications deemed essential for black candidates, became

inoperative for white candidates. (See, pp. 9-11 infra).

As we show in Part II of this brief, this case is a

garden variety example of purposeful racial discrim-

ination against black candidates for teaching positions.

The district court was required to consider the evidence

of racial discrimination in its totality, but failed to do

so. The court of appeals considered the totality of the

evidence and concluded that the Government had es-

tablished a prima facie case of a pattern or practice

of purposeful discrimination. In this respect, the court

of appeals was careful to make clear that while the sta-

tistical evidence provided ‘‘indications’’ or inferences

of racial discrimination, the Government’s prima facie

ease was bottomed on ‘‘actual’’ discrimination as well

(Pet. App. 14b).’ Because the record and the court of

2 The opinions of the district court and the court of appeals are

4

appeals’ opinion demonstrate that the Government

proved a pattern or practice of purposeful discrimina-

tion, this Court should affirm the decision below with-

out reaching the other issues in the ease.

In Part ITI, we show that Title VIT of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as inter-

preted by Griggs v. Duke Power Co., 401 U.S. 424

(1971), provides a second ground for affirming the

decision of the court of appeals. This alternative

ground is not dependent on proof of purposeful dis-

crimination. Title VII bars ‘built-in headwinds”’

against the employment opportunities of minority

groups unless they are justified by evidence of business

necessity. A showing by the employer of good faith or

benign intent, standing alone, will not suffice. The

evidence in the record shows that the unwritten, vague

and highly subjective criteria applied by Hazelwood’s

all-white staff of principals serve as built-in headwinds

to minority applicants. The record also shows that

Hazelwood introduced no evidence tending to show that

its criteria and procedures are justified either by busi-

ness necessity or even by sound business reasons.

In Part IV, we address petitioners’ contention that

neither the Commerce Clause nor Section 5 of the Four-

teenth Amendment authorizes Congress to extend Title

VII to state and local public employees. To ascertain

whether Title VII, as amended, may be sustained on

the basis of the Commerce Clause, this Court must

printed in the appendix to the petition for certiorari and are cited

herein as ‘‘Pet. App.’’ followed by the page reference. Petitioners’

brief on the merits is cited as ‘“‘Br.’’ The Joint Appendix is cited

as “‘JA.’’ Our citations to testimony not printed in the Joint Ap-

pendix consist of the witness’ name followed by the appropriate

page of the deposition or trial transcript.

5

weigh the federal interests protected by Title VII

against the impact of that statute on state sovereignty.

National League of Cities v. Usery, 426 U.S. 833

(1976). As we show, the balance in this case should be

struck in favor of the amendments to Title VII for the

statute, as applied in this case, does not significantly

infringe upon legitimate state interests, and the fed-

eral interests secured by the statute are substantial.

Likewise, the Court should rejeet petitioners’ argu-

ments concerning Section 5, which would narrowly re-

strict the ability of Congress to give effect to the great

purposes of the Fourteenth Amendment. In Katzen-

bach v. Morgan, 384 U.S. 641 (1966), this Court held

that Congress may, under the enforcement clause of

the Fourteenth Amendment, prohibit state conduct—

the administration of literacy tests—that was not pro-

hibited by the Amendment itself. The Court said that

the relationship between the legislation im issue and

_the Fourteenth Amendment was sufficient because :Con-

gress could have concluded that the ban on literacy

tests would help remedy discrimination in the provision

of public services. In the case at bar, Congress actually

determined to bar the use of unnecessary barriers to

minority employment because, inter alia, such barriers

perpetuate the effects of past discrimination against

minority groups and because the elimination of those

barriers to public employment would contribute to the

nondiscriminatory provision of government services.

In sum, if this Court determines ‘to review the eon-

stitutionality of Title “VII insofar as it prohibits state

conduct in the absence of proof of purposeful discrim-

ination—even though such proof was adduced in this

case—then the Court should sustain Title VII as an

6

appropriate exercise of the legislative powers conferred

by the Commerce Clause and the Fourteenth Amend-

ment.

Petitioners’ brief is premised on the assumption that

Hazelwood’s employment practices were not shown to

be purposefully discriminatory (Br. 26-27). Once that

assumption is made, important issues of law may arise.

But, there is ample evidence in this record demonstrat-

ing that Hazelwood has engaged in purposeful discrim-

ination against black applicants for teaching positions.

Although the district court did not reach that conelu-

sion because it evaluated the evidence of purposefu!

discrimination piecemeal, the court of appeals correct-

ed that mistake. It evaluated the evidence as a whole

and concluded that Hazelwood had engaged in racial

discrimination (Pet. App. 3b). Furthermore, as we

read its opinion, the court of appeals concluded that

this discrimination was purposeful. In any event, the

record compels the conclusion that Hazelwood’s hiring

practices were purposefully discriminatory, and thus

violated the Fourteenth Amendment as well as Title

VII. Accordingly, this Court should affirm the decision

below without reaching the constitutional issues pre-

sented by petitioners.

7

A. IN CONCLUDING THAT DEFENDANTS HAD NOT ENGAGED

IN PURPOSEFUL DISCRIMINATION, THE DISTRICT COURT

APPLIED AN IMPROPER STANDARD.

1. District Courts Must Consider the Totality of the Evidence

in Determining Whether a School District’s Employment

Practices Are Purposefully Discriminatory.

It is well established that where a defendant’s pur-

pose, motive or intent is an element of an alleged viola-

tion of law, the courts must look to the totality of the

defendant’s conduct. For example, in anti-trust cases

this Court has said that it is the “‘established judicial

rule of evidence that testimony of prior or subsequent

transactions, which for some reason are barred from

forming the basis for a suit, may nevertheless be intro-

duced if it tends reasonably to show the purpose and

character of the particular transactions under scruti-

ny.’’* Similarly, where an employer’s “good faith” or

anti-union animus is in issue under the National Labor

Relations Acts, as amended, 29 U.S.C. § 151 et seq., it

is the established rule that ‘‘the Board must inquire

into the ‘totality of the employer’s conduct.’ ”’ *

The same rule applies where the Court must deter-

mine whether racial motive or purpose taints chal-

*F.T.C. v. Cement Institute, 333 U.S. 683, 705 (1948). Accord,

Standard Oil Co. v. United States, 221 U.S. 1, 46-47, 75-77 (1911) ;

United States v. Reading Co., 253 U.S. 26, 43-44 (1920); Conti-

nental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690,

698-99 (1962).

*N.L.R.B. v. Cascade Employers Assn., Inc., 296 F.2d 42, 47

(9th Cir. 1961). Accord, N.L.R.B. vy. Reed & Prince Mfg. Co., 205

F.2d 131, 134, 139-40 (1st Cir. 1953); N.L.R.B. v. Wonder State

Mfg. Co., 344 F.2d 210, 216 (8th Cir. 1965) ; Joy Suk Mills v.

N.L.R.B., 185 F.2d 732, 741-42 (D.C. Cir. 1950) ; N.L.R.B. v. Na-

tional Seal Corp., 127 F.2d 776, 778 (2d Cir. 1942).

8

lenged practices or policies of a defendant. In Wash-

ington v. Davis, 426 U.S. 229, 242 (1976), this Court

pointed out that ‘‘[n]Jecessarily, an invidious discrim-

inatory purpose may often be inferred from the total-

ity of the relevant facts. ...’’ And in Keyes v. School

District, No. 1, Denver, 413 U.S. 189 (1973), this

Court held that the trial court had failed to apply a

proper legal standard when it compartmentalized the

evidence relevant to the issue of segregatory intent. Cf.

Village of Arlington Heights v. Metropolitan H ousing

Development Corp., 45 U.S.L.W. 4073, 4077-78 (Jan.

11, 1977).

2. The District Court Erroneously Compartmentalized the

Evidence of Purposeful Discrimination.

As we show below, the district court did not consider

all of the relevant factors together in resolving the

issue of racial purpose. Instead, the court isolated each

item of proof and weighed it as if it bore no relation-

ship to the rest of the evidence.

The district court, in its analysis of the evidence,’

narrowly and erroneously characterized the Govern-

ment’s contentions concerning racial purpose. Accord-

ing to the court, the Government contended that two

faets ‘‘standing alone demonstrate[d] the operation of

a dual system in Hazelwood’’—(1) that prior to Brown

v. Board of Education, 347 U.S. 483 (1954), Missouri

law required all school districts to operate their schools

on a racially segregated basis, and (2) that immediate-

ly after Brown I, the Hazelwood school board estab-

* The district court’s analysis of the evidence commences on page

17 of its opinion (Pet. App. 17a).

SE es SEE

9

lished a policy that would pay tuition for any black

children who might reside in the district so that these

children could be educated outside the district ( Pet.

App.17a).

Having too narrowly defined the Government’s con-

tentions, the court held that ‘‘[p]laintiff’s evidence

falls far short of establishing that a dual system ever

existed in Hazelwood” because there were no black

students in Hazelwood prior to Brown and the policy

adopted immediately upon the appearance of black resi-

dents after Brown ‘‘was not a policy of mandatory

transfer and would in any case have had a de minimus

effect,’’ given the ‘“‘small number of black students who

might have been involved.’’ (Id.).

In so characterizing the claims of the United States,

the court failed to take account of the following facts

adduced by the Government:

(1) Before Brown the school districts in St. Louis

County assigned black faculty to black schools

exclusively and Hazelwood, having no black

schools, employed no black faculty (Pet. App.

3b) ;

(2) In determining to provide tuition for black

children so that they would attend schools out-

side of the district, the Hazelwood School Board

was consciously engaging in racial discrimina-

tion against black children (id. at 2a, 17a) ;

(3) As late as 1962, the school district advertised

publicly for teachers who were ‘‘whites only’”’

(id. at 3b) ;

(4) As late as the 1962-63 school year, some of

Hazelwood’s application forms still vided a

e for designation of race (id. at 3b. See also

et. App. 4a) ;

10

(5) The school district recruited for teachers ex-

tensively during the ’60s and to a lesser extent

during the ’70s, but in all that time it never re-

eruited at a teacher training institution having

a predominantly black student body,* although

there were such institutions well within the com-

pass of the school district’s recruiting area (id.

at 3a-4a, 4b) ;

(6) Until at least 1967, the school district did not

hire any black person in a nonteachin capacity

such as janitor or bus driver (Kirby Dep. 3, 52-

53, 55) ;’ and

(7) For 15 years following Brown, the school]

board did not hire a single black teacher, not-

withstanding the fact that by 1970, over 15 per-

cent of all teachers, or approximately 3,000

teachers, in St. Louis City and County were

black (id. at 3a, 18a, 4b, 10b).°

(8) During the two school years immediately prior

to the trial, 1972-73 and 1973-74, seven black ap-

plicants were rejected because they had not yet

received their teaching certificates while white

*In 1963 or 1964, Hazelwood’s personnel director visited Lincoln

University, a predominantly black schoo] in Missourj. He met with

the placement director but did not interview teaching candidates

(Pet. App. 9b n.6).

‘Superintendent Kirby testified that he served as superintend-

ent of the Hazelwood district between 1953 and 1967 and that it

did not hire a black person during that time in any ‘‘non certi-

fied’’ or nonprofess‘onal capacity (Kirby Dep. 2-3, 52-53, 55).

*The district court adverted to the fact that no black faculty

members were hired prior to 1969, saying simply—and erroneous-

ly—that plaintiff contends that this “‘shows a lack of affirmative

action to overcome previous discrimination”’ (Pet. App. 17a).

Plaintiff contended that the failure to hire a single black teacher in

15 years was evidence of purposeful discrimination (U.S. Trial

Brief, p. 6, and U.S. Proposed Findings of Fact, 7 4).

11

candidates who also lacked certificates were em-

ployed to fill jobs sought by these black appli-

cants.” In addition, Teudened advised four

black applicants that there were no vacancies in

their teaching areas, but soon thereafter hired

white candidates to fill positions in those areas.””

Finally, two black applicants who had served as

student teachers in the system were not afforded

the preference customarily granted for prior

service in the Hazelwood District.”

* The court of appeals found that seven black applicants—Alice

Moore Roach, Delores Penton, Georgia Shaw, Alexis Smith, Ger-

aldine Thomas, Mary Etta Wilson and Robert Wilson—were re-

jected by Hazelwood for lack of certification at the time of

their respective applications. In the period during or subsequent

to 1972-73, Hazelwood hired as teachers at least thirty-nine whites

who were not certified at the time of their application. (Pet. App.

18b-23b). See also Plaintiff’s Trial Exhibit 61 (JA, 429-31) which

identifies 101 persons serving as Hazelwood teachers who were not

certified at the time of application. ‘Fifty-three of these teachers

had not yet received their certification at the time they were of-

fered employment”’ (Pet. App. 5b n.2).

*° Hazelwood informed black applicants Derek Novel and James

Washington that there were no vacancies in their field, social stud-

ies. Subsequently, it hired 20 social studies teachers. (Pet. App.

17b-18b). Black applicant Samuel Downs was informed that ‘‘there

would probably be no vacancies in his field,’’ industrial arts, and

“*never had a formal interview. .. . Two such vacancies were filled

after his application . . .’’ (id. at 18b). Cynthia Edmond, a black

applicant for a social studies position, ‘‘was told no vacancies

existed’’ and was not interviewed; yet five whites were hired

thereafter as social studies teachers. She renewed her application

the next year, 1973, was again not interviewed, and nine more

social studies teachers were hired (id. at 19b).

™**Persons with student or substitute teaching experience at

Hazelwood are given preference if their performance was satisfac-

tory. (Huss Dep. 29)’’ (Pet. App. 6a). Black applicant Robert

Howell ‘‘had served as a student teacher at Hazelwood Senior

High, and his cooperating teacher had been impressed with his abil-

ities. Hazelwood offered no evidence to explain why Howell was

12

The district court’s compartmentalized approach to

the evidence is manifested in its treatment of the sta-

tistical evidence (Pet. App. 18a). Treating the Gov-

ernment’s case as if it were based solely on statistics,

the court stated that it ““found no authority to suggest

that a school district may be guilty of violating Title

VII for failing to maintain a ratio of black teachers

based upon the racial makeup of all teachers in the

geographic area’’ (id. at 19a).” Thus, the court im-

properly isolated the statistical evidence instead of

considering that evidence together with the rest of the

case to determine whether the Government had estab-

lished a prima facia case.

The court’s piecemeal approach is further reflected

in its treatment of the evidence demonstrating that the

school district utilized vague, unwritten and highly

never interviewed for any of the 10 vacancies in social studies

filled by whites subsequent to his application. Only one of these

whites had more experience than Howell. Neither did Hazelwood

attempt to explain why, as a former student teacher at Hazelwood,

Howell was not given preference over other applicants, in light of

their practice of doing so.’’ (Pet. App. 17b-18b). Black applicant

Georgia Shaw also had served as a student teacher in the Hazel-

wood District and had reeeived a ‘‘laudatory recommendation’’

from her cooperating teacher, yet Hazelwood never interviewed

her. (Id. at 21b-22b).

why the available pool of black teachers is ‘‘distorted’’ by inclu-

sion of those black teachers who teach in a nearby sehoel system

having a substantia] pereentage of black students and faeulty.

Even assuming some “distortion ’’ existed, this could not begin to

account fully for a complement of black teachers in the Hazelwood

District which the trial judge found to be ‘undeniably meager’’

cn

13

subjective criteria. The court noted the need for pub-

lished standards in order to prevent principals from

abusing their “‘broad discretion’”’ (id. at 22a). At the

same time, the court concluded that none of the criteria

that the principals said they used involved explicit

“racial distinctions” (id.). It is not enough, we sub-

mit, to conclude that vague, subjective and unwritten

criteria are not explicitly racial. It was necessary to

consider whether, in light of other evidence of racially

discriminatory hiring, the decision to vest unbridled

and unsupervised discretion in white administrators

was calculated to produce, and did produce, discrimi-

natory hiring decisions.

Finally, the district court turned to the evidence

presented by the United States regarding the school

district’s decision not to hire 55 black applicants during

1972 and 1973 (4d. at 23a). Again, the court erceted an

artificial wall between related items of proof. In eon-

cluding that the United States had failed to prove in-

tentional racial discrimination” (id at 23a-252), the

court did not review these hiring decisions in light of

the relevant body of evidence showing a pattern of pur-

poseful discrimination in hiring.

B. The Court of Appeals, Applying The Proper Standard, Cor-

rectly Concluded That The United States Had Established A

Prima Facie Case Of Purposeful Discrimination.

Petitioners argue that “‘[t]he court of appeals did

not find that Hazelwood had purposefully discrimi-

nated against black applicants for teaching positions’’

(Br. 16). Petitioners would have this Court read the

opinion below as though it rested upon the notion that

the Government had established a prima facie case of

racial discrimination based solely on effect (id. at 16,

14

17). If that were so, of course, then the court of ap-

peals would have relied only on the statistical data in-

troduced by the United States. But the court of appeals

did not rest its conclusion solely on statistical data.

Rather, it cautioned against placing undue reliance on

statistical evidence (Pet. App. 8b n.5).

Furthermore, petitioners’ interpretation of the

court of appeals’ opinion would read out of that

opinion one of its principal criticisms of the district

court’s decision—namely that it failed to give sufficient

weight to the evidence showing that prior to Brown,

Hazelwood operated pursuant to a State law requiring

racial segregation ; that until the early ’60s Hazelwood

requested applicants to identify their race; that as late

as 1962 Hazelwood publicly advertised for teachers,

specifying ‘‘whites only’’; that throughout the ’60s and

into the "70s Hazelwood recruited extensively—but in

predominantly white schools only ; and that not a single

black teacher was hired prior to 1969. The court of

appeals found these facts “highly relevant’’ (Pet.

App. 9b). They are relevant, of course, because they

show a purpose to discriminate on the basis of race.

Finally, while the court was persuaded that the sta-

tistical evidence, when considered in light of Hazel-

wood’s hiring procedures involving the use of vague

criteria, ‘‘indicated”’ a prima facie case, the court was

convinced that the Government had “‘established”’ a

prima facie case only after determining that this aspect

of the government’s proof was buttressed by ‘‘evi-

dence of actual discriminatory practices in the hiring

of teachers during the period prior to the effective date

of Title VII and in the rejection of some 16 black ap-

plicants . . .’’ (Pet. App. 14b-15b ; emphasis added).

15

The evidence in the record warranted, indeed com-

pelled, the conclusion of the court of appeals that the

Hazelwood School District has engaged in a pattern

and practice of purposeful hiring discrimination. Ac-

cordingly, this Court should affirm the judgment be-

low without reaching the broad constitutional issues

tendered by petitioners,”

In this section, we show that there is a second ground

for affirming the decision of the court below—namely

that defendants’ employment criteria and practices

violated Title VII, as interpreted and applied by this

Court in Griggs v. Duke Power Co., 401 U.S. 424

(1971). In Griggs this Court ruled that employment

criteria or procedures which operate to exclude a sig-

nificantly disproportionate percentage of minority

group persons are barred by Title VII unless the

employer shows that the criteria and procedures are

justified by business necessity (id. at 431-32).

** If this Court should disagree with our reading of the court of

appeals’ opinion, the Court should, on the basis of its own review

of the evidence, affirm the judgment below on the ground that the

Government proved a pattern or practice of purposeful diserim-

ination. While this Court does not often sit to review evidentiary

issues, such a review would be warranted by the Court's policy of

avoiding far-reaching constitutional issues where the record pre-

sents a narrower ground for disposition of the ease, Neese v. South-

ern Railway Co., 350 U.S. 77, 78 (1955) ; District of Columbia vy.

Little, 339 U.S. 1, 3-4 ( 1950). Cf. Ashwander vy. Tennessee Valley

Authority, 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring) ;

United Public Workers vy. Mitchell, 330 U.S. 75, 90 n.22 (1947),

16

This Court made clear that “‘good intent or absence

of discriminatory intent does not redeem employment

procedures or testing mechanisms that operate as

‘built-in headwinds’ for minority groups...’ Griggs,

supra, 401 U.S. at 432..* We show below that Hazel-

wood’s employment procedures and criteria serve as

“built-in headwinds’ against minority employment

opportunity.

Long before Griggs, this Court recognized that seem-

ingly neutral standards which vest broad diseretion in

white administrators may serve as barriers to minority

participation in public activities. In Smith v. Te#as,

311 U.S. 128 (1940), this Court noted that ‘the Texas

statutory scheme [for selecting grand jurors] is not

in itself unfair ; it is capable of being carried out with

no racial diserimination whatsoever. But, by reason

of the wide discretion permissible in the various steps

of the plan, it is equally capable of being applied in

such a manner as practically to proscribe any group

thought by the law’s administrators to. be undesirable”’

(ad. at 130-31). In Louisiana v. United States, 380

U.S. 145 (1965), the Court said that “*[t]he applicant

facing a [voting] registrar in Louisiana . . . has been

compelled to leave his voting fate to that official’s un-

controlled power to determine whether the applicant’s

understanding of the Federal or State Constitution is

satisfactory. As the evidence showed, colored people,

** While petitioners place great weight on Washington v. Davis,

426 U.S. 229 (1976), nothing in Davis alters Griggs’ ruling on

intent. The Court in Davis stated that “‘Under Title VII, Con-

gress provided that when hiring and promotion practices disquali-

fying substantially disproportionate numbers of blacks are chal-

lenged, discriminatory purpose need not. be proved, and that it is

an insufficient response to demonstrate some rational basis for

the challenged practices’? (id. at 246-47).

Se See ee

17

even some with the most advanced education and schol-

arship, were declared by voting registrars with less

education to have an unsatisfactory understanding of

the Constitution of Louisiana or of the United States,”’

(Id. at 152-53).

Griggs and its progeny serve to prevent similar

abuses by public and private employers. Where em-

ployers utilize unwritten, extremely vague and highly

subjective standards that effectively confer unfettered

discretion on hiring officials and that process dispro-

portionately impedes the employment opportunities

for minority groups, lower federal courts have held

that the employer’s hiring criteria and procedures vio-

late Title VII unless they are shown to be justified

by business necessity. Muller vy. United States Steel

Corp., 509 F.2d 923, 928 (10th Cir.), cert. denied, 423

U.S. 825 (1975); Rowe v. General Motors Corp., 457

F.2d 348 (5th Cir. 1972) ; Cf. EEOC v. Detroit Edison

Co., 515 F.2d 301, 313 (6th Cir. 1975).

Hazelwood’s vague and subjective criteria serve as

built-in headwinds against minority groups. The court

of appeals pointed out that in Hazelwood ‘“‘each prin-

cipal is vested with almost total discretion in hiring

teachers for his school’ (Pet. App. 12b). The only

written instruction to these principals is to hire the

‘“‘most competent.”’ There is ‘‘no evidence . . . which

would indicate that any two principals apply the same

criteria—-objective or subjective.’’ Principals “‘are free

to give whatever weight they desire to subjective fac-

tors....’’ The interview process, at least in the minds

of some principals, becomes so much a matter of per-

sonal taste or whimsy as to be “ ‘like dating a girl,

18

some of them impress you, some of them don’t.’’’”

(Id.).

The potential for racial abuse inherent in Hazel-

wood’s vague and highly subjective criteria is substan-

tially enhanced by the fact that Hazelwood has hired

white administrators exclusively (Plaintiff’s Trial Ex-

hibit 55, HEW 101 and 102 forms from School Year

1967-68 to 1972-73 and EEOC Form EE0O5 for 1973-

74). As a result, the intensely personal and subjective

values that are factored into hiring decisions are loaded

in favor of white candidates.** The administrators who

approach the interviewing process for black and white

candidates as though they were “ ‘dating a girl’ ’’ are

white administrators only (Pet. App. 12b).

The record demonstrates that the potential for racial

abuse has been realized. For fifteen years after Brown,

the Hazelwood district did not hire a single black

teacher. In recent years, black applicants have been

barred on grounds not applied to white applicants,

** Even the district court observed that school] officials in Hazel-

wood ‘‘should be encouraged to develop and publish standard

guidelines for employment of teachers in order to minimize the

possibility that an individual interviewer might abuse the broad

discretion which he currently possesses’’ (Pet. App. 22a).

16 In Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir.

1972), the Fifth Circuit noted that subjective evaluations, unstruc-

tured by written instructions ‘‘are a ready mechanism for diserim-

ination against Blacks much of which can be covertly concealed

and, for that matter, not really known to management. We and

others have expressed a skepticism that Black persons dependent

directly on decisive recommendations from Whites can expect non-

discriminatory action, See, Hawkins v. North Carolina Dental So-

ciety, 4 Cir., 1966, 355 F.2d 718, 723-24; Cypress v. Newport News

General and Nonsectarian Hosp. Assn., 4 Cir.,,1967, 375 F.2d 648,

655 ; Meredith v. Fair, 5 Cir., 1962, 298 F.2d 696, 702, cert. denied,

1962, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed. 2nd 66.”’

19

vacancies have been found for white applicants though

they purportedly did not exist for black applicants, and

the customary preference for student teaching expe-

rience has not been afforded to at least two black can-

didates. (See, pp. 10-11, supra). Petitioners argue (Br.

46-49) that applicant flow data in the record show that

black candidates in more recent years have been hired

at a rate as high as or higher than the hiring rate for

white candidates. Petitioners’ argument rests on a fac-

tually unsupported premise. While one may be able to

determine how many black teachers are in fact hired

each year by Hazelwood, one cannot reliably determine

how many of the persons applying to Hazelwood for

employment are black because, as the district court

found, Hazelwood has not required applicants to sub-

mit photographs or to otherwise identify their race

since 1962-63 (Pet.App. 4a, 3b). Whatever the gross

statistics may be, they cannot refute or explain the fact

that individual black applicants have been treated

differently from similarly situated white applicants.

The defendants have offered no evidence that the

built-in headwinds created by their hiring procedures

and criteria are justified by business necessity. Indeed,

they have offered no evidence that these procedures and

criteria are job-related. In view of the Government’s

evidence, it is clear why they did not attempt to offer

such proof. Here, as in Albemarle Paper Co. v. Moody,

422 U.S. 405, 433 (1975), ‘‘[t] here is no way of know-

ing precisely what criteria of job performance the su-

pervisors were considering, whether each of the super-

visors was considering the same criteria—or whether,

indeed, any of the supervisors actually applied a fo-

cused and stable body of criteria of any kind. There is,

in short, simply no way to determine whether the cri-

20

teria actually considered were sufficiently related to the

... [employer’s] legitimate interest in job-specific abil-

ity to justify a... system with a racially discriminatory

impact.’’ Accordingly, petitioners’ hiring criteria and

procedures are repugnant to Title VII.

IV. EXTENSION OF TITLE VII COVERAGE TO PUBLIC EMPLOY-

ERS IS A VALID EXERCISE OF CONGRESSIONAL POWER

UNDER BOTH THE COMMERCE CLAUSE AND SECTION 5

OF THE FOURTEENTH AMENDMENT.

In the Equal Employment Opportunity Act of 1972,

Congress extended Title VII to agencies of state gov-

ernment, relying upon the authority granted to it by

the Commerce Clause, Article I, § 8, cl. 3, and Section 5

of the Fourteenth Amendment. See H.R. Report No.

92-238, 92d Congress, Ist Session 19 (1971); S. Rep.

No. 92-415, 92d Congress, Ist Session 11 (1971), 118

Cong. Ree. 1816, 1839-40 (1972) (remarks of Senators

Williams and Javits). Petitioners contend that in light

of this Court’s decision in National League of Cities

v. Usery, 426 U.S. 833 (1976), and Washington v.

Davis, supra, neither source of legislative authority

ean sustain Title VII of the Civil Rights Act of 1964

insofar as that law bars state and local public agencies

from engaging in employment practices which, while

adversely affecting minority groups and females, are

not shown to be purposefully discriminatory (Br. 18-

19). We show below that petitioners have overdrawn

the scope of National League of Cities and the impact

of Washington v. Davis. Both the Commerce Clause

and the Fourteenth Amendment support Title VII as

amended in 1972.

me mm nm st gu te

to meg eee er me -

es

21

A. The Commerce Clause Authorizes Application Of Title VII To

Agencies Of State Government.

1. In National League of Cities, this Court held

that the minimum wage and maximum hour provisions

of the Fair Labor Standards Act could not constitu- —

tionally be applied to employees of state and local gov-

ernments who were engaged in traditional government

functions. The teaching of National League of Cities

is that even though an activity directly affects inter-

state commerce, pertinent legislation based on the Com-

merce Clause may nonetheless be invalid if it offends

state sovereignty principles inherent in the federal

constitution and embodied in the Tenth Amendment

(id. at 840-41; see also Brennan, J., dissenting at 858).

The holding of that case is that these principles con-

stitute an affirmative limitation on Congressional exer-

cise of the commerce power when that power is exer-

cised in a fashion that unnecessarily intrudes upon

governmental ‘‘ ‘functions essential to [the] separate

and independent existence’ ’’ of the state (id. at 845,

quoting from Coyle v. Oklahoma, 221 U.S. 559, 580

(1911)).

National League of Cities does not indiscriminately

bar all federal legislation enacted pursuant to the

Commerce Clause that would regulate state agencies

in their role as employers. The Court specifically de-

clined to overrule Fry v. United States, 421 U.S. 542

(1975) (sustaining congressional power to apply a

wage freeze to employees of state government) ; Par-

den v. Terminal Railway Co., 377 U.S. 184 (1964)

(sustaining congressional power to apply the Federal

Employers Liability Act to state-owned railroads) ;

California v. Taylor, 353 U.S. 553 (1957) (sustaining

congressional power to apply the Railway Labor Act

22

to state-owned railroads); or United States v. Cali-

fornia, 297 U.S. 175 (1936) (sustaining congressional

power to apply the Safety Appliance Act to state-

owned railroads). Rather, National League of Cities,

as we read it, sets forth a three-fold test for determin-

ing whether federal regulation of state affairs under

the Commerce Clause violates Tenth Amendment pro-

scriptions. First, the legislation must affect ‘‘areas of

traditional governmental functions’”’ of the states and

not merely proprietary functions (426 U.S. at 852).

Second, the legislation affecting such traditional gov-

ernmental functions must impair an attribute of state

sovereignty which is ‘‘essential’’ to the states’ ‘‘sep-

arate and independent existence’’ in the federal sys-

tem; e.g., the right to determine the wages of state em-

ployees (id. at 845). Third, the federal interest in the

legislation must not outweigh the impact of the legis-

lation on the states (id. at 851-52).

That this Court applied a balancing test in National

League of Cities seems clear from the rationale which

the Court used in reconciling its holding with that in

Fry v. United States, 421 U.S. 542 (1975) (td. at 852-

53). The opinion of the Court acknowledged that the

legislation sanctioned in Fry intruded upon the states’

sovereign authority. Nonetheless, the Court concluded

that Fry and National League of Cities were reconcil-

able since the federal interest in imposing narrowly

drawn, ‘‘emergency’’ legislation exceeded the degree

of intrusion resulting from temporary inhibitions upon

state and local prerogatives.” As we show below,

17 See Mr. Justice Blackmun’s concurring opinion, 426 U.S. at

856 (‘‘I may misinterpret the Court’s opinion but it seems to me

that it adopts a balancing approach .. .’’). See also Mr. Justice

ee greene -

ee

—

—_—— Fe eee —

23

the balance struck in National League of Cities does

not dictate the same resv't here.

2. Petitioners have not demonstrated that Title

VII intrudes upon an attribute of state sovereignty

which is essential to the state’s independent existence,

nor that the federal interest is outweighed by Title

VII’s impact on state sovereignty. As petitioners ac-

knowledge, Title VII does not directly impose costs

upon covered state or local agencies (Br. 21). The

point is an important one, for the direct imposition of

substantial costs upon state and local agencies appears

to have been the principal, if not determinative, factor

that led this Court in National League of Cities to in-

validate in part the Fair Labor Standards Act (426

U.S. at 845-47).

In arguing that Title VII infringes upon state sov-

ereignty, petitioners have erroneously stated the bur-

dens that Title VII imposes. Petitioners claim to be

burdened by the record-keeping and reporting require-

ments decreed by the court of appeals and by its di-

rective that petitioners afford the right of first re-

fusal to 16 black applicants determined by that court

to have been denied their Title VII rights (Br. 21).

These requirements, however, were imposed only be-

Brennan’s dissenting opinion (id.). Lower courts have concluded

that National League of Cities requires a balancing test. £.g.,

Christensen v. State of Iowa, 417 F.Supp. 423 (N.D. Iowa 1976) ;

Usery v. Univ. of Texas at El Paso, 12 EPD { 11,254 (W.D. Tex.

1976); Usery v. Kenosha Unified School Dist. Number One, 13

EPD 111,240 (E.D. Wis. 1976). See also Usery v. Fort Madison

Community School District, 79 LC { 33,419 (S.D. Iowa, 1976) ;

Usery v .Bettendorf Community School District, 423 F.Supp. 637

(S.D. Iowa 1976); Usery v. Dallas Independent School District,

421 F.Supp. 111, 114-16 (N.D. Tex., 1976); Usery v. Kermit C.

Morrissey, 79 LC {33,455 (D. Mass. 1976).

24

cause petitioners had violated Title VII. That law

does not lay these ‘‘burdens’’ upon employers who

comply with its provisions.

Petitioners further argue that as a practical matter

school districts may satisfy the requirements of Title

VII only if they engage in racially, religiously or sex-

oriented hiring practices designed to bring their aver-

age workforce statistics up to the defined area stand-

ard, without regard for qualifications (Br. 22). This

is so, petitioners assert, because ‘‘[i]n view of the in-

herently subjective nature of the process of hiring

teachers,’’ a prima facie case of statistical discrimina-

tion ‘‘cannot be rebutted’’ (id.).

Petitioners’ argument assumes that under Title VII

a prima facie statistical case of discrimination in the

hiring of teachers can only be rebutted by a showing

that the employer utilized objective criteria. But Title

VII was not so applied by the court below. That court

did not conclude that Title VII required petitioners

to utilize objective criteria. On the contrary, it ordered

petitioners to formulate a written ‘‘description of

the proper subjective factors to be considered’’ during

interviews (Pet. App. 26; emphasis added). Thus, this

ease does not present the questions whether a prima

facie statistical case of discrimination in the hiring of

teachers can be rebutted under Title VII only by a

showing that the employer used objective criteria, and,

if so, whether Title VII, as so construed, is constitu-

tional.

Petitioners also stress language from Milliken v.

Bradley, 418 U.S. 717, 741-42 (1974), regarding the

tradition of ‘‘local control’’ that has prevailed in pub-

lie education. Relying on prior cases, the Court in

Milliken pointed out that such ‘“‘local control .. . af-

25

fords citizens an opportunity to participate in deci-

sionmaking, permits the structuring of school pro-

grams to fit local needs, and encourages ‘experimen-

tation, innovation, and a healthy competition for edu-

cational excellence’ ”’ (id.). We fail to see how these

values are undermined by the application of Title VIT

té Hazelwood. In our view, local citizens would have

a more adequate ‘‘opportunity to participate in de-

cisionmaking”’ and the structuring of programs con-

cerning teacher hiring if the school system maintained

a written body of hiring criteria rather than a con-

glomeration of procedures so unstructured as to afford

no focus for citizen comment or criticism (see pp. 17-

18, supra).

3. The alleged burdens complained of by Hazel-

wood which are attributable to Title VII are, in our

view, clearly outweighed by the federal interests in-

volved. The legislative history of the Civil Rights Act

of 1964 shows that in adopting Title VII, Congress

recognized that this nation needed to draw extensively

upon the talents and energies of minority group per-

sons and females. E.g., H.R. Report No. 1370, 87th

Cong., 2d Sess. 3 (1962), reprinted in EEOC, Legisla-

tive History of Titles VII and XI of the Civil Rights

Act of 1964, at 2157. The 1972 Amendments to Title VIT

not only substantially helped to meet this need, but also

implemented the Constitution’s commitment to the

protection of the civil rights »f all persons. As we dis-

cuss later in greater detail, the 1972 Amendments to

Title VII serve this commitment by barring state and

local government employment practices that unneces-

sarily freeze in the effects of prior discrimination and

by furthering elimination of discrimination in public

26

services. See infra, pp. 30-35. These federal interests,

we submit, outweigh any legitimate interest that state

and local governments may have in being free to utilize

unnecessary hiring criteria and procedures which seri-

ously disadvantage minority groups.

In a related context, lower federal courts which have

reached the question subsequent to National League

of Cities have concluded that the Equal Pay Act, as

applied to state and local government employees, is

within the power of Congress under the Commerce

Clause. These courts have determined that the federal

interest served in preventing employers, whether or

not motivated by a discriminatory purpose, from en-

gaging in pay practices which treat similarly situated

men and women differently outweighs any state interest

in preserving the power to indulge such disparate treat-

ment.” In like fashion, this Court should hold that

the federal interests in promoting equal opportunity

in public employment outweigh the purported sov-

ereign right of state and local agencies to exclude pro-

tected minorities on the basis of criteria and pro-

cedures that are not shown to be justified by business

needs.

B. SECTION 5 OF THE FOURTEENTH AMENDMENT AUTHOR-

IZES APPLICATION OF TITLE VII TO STATE AND LOCAL

PUBLIC EMPLOYERS.

1. Principles of State Sovereignty Do Not Restrict the Scope

of Legislation Enacted Pursuant to §5 of the Fourteenth

Amendment.

While the grant of legislative authority in the Com-

merce Clause must accommodate state sovereignty

18 See cases cited at note 17, supra.

27

principles preserved by the Tenth Amendment, those

principles do not have a similar restrictive effect on

legislation enacted pursuant to Section 5 of the Four-

teenth Amendment. In Ex Parte Virginia, 100 U.S.

339 (1879), this Court observed that the Civil Rights

Amendments ‘‘were intended to be, what they really

are, limitations of the power of the States and en-

largements of the power of Congress,’’ 100 U.S. at 345.

The Court concluded that Congress’ authority to enact

appropriate legislation is plenary:

‘“‘'T]he Constitution now expressly gives author-

ity for congressional interference and compulsion

in the cases embraced within the Fourteenth

Amendment. It is but a limited authority, true,

extending only to a single class of cases; but with-

in its limits it is complete.’’ 100 U.S. at 347-48.

Last term in Fitzpatrick v. Bitzer, 427 U.S. 445, 456

(1976), the Court noted that Section 5 of the Four-

teenth Amendment was designed specifically to permit

legislation that would inhibit a state’s sovereign

power.

“| [W]e think that the Eleventh Amendment,

and the principle of state sovereignty which it

embodies, [citations omitted] are necessarily lim-

ited by the enforcement provisions of §5 of the

Fourteenth Amendment. In that section Congress

is expressly granted authority to enforce ‘by ap-

propriate legislation’ the substantive provisions

of the Fourteenth Amendment, which themselves

embody significant limitations on state authority.

When Congress acts pursuant to §5, not only is

it exercising legislative pore | that is plenary

within the terms of the constitutional grant, it is

exercising that authority under one section of a

constitutional Amendment whose other sections

28

by their own terms embody limitations on state

authority.”’

See also South Carolina v. Katzenbach, 383 U.S. 301,

324 (1966) (‘‘As against the reserved powers of the

States, Congress may use any rational means to ef-

fectuate the constitutional prohibition of racial dis-

crimination in voting’’).

In sum, legislation enacted pursuant to Section 5

of the Fourteenth Amendment is not limited by the

precepts of the Tenth or Eleventh Amendments.

Therefore, if Title VII is ‘‘appropriate’’ legislation

within the meaning of Section 5—an issue to which

we now turn—then it must stand.

2. Section 5 of the Fourteenth Amendment Empowers Con-

gress to Prohibit Conduct That May Lie Outside the Direct

Prohibitions of the Equal Protection Clause If the Legislation

Is in Aid of the Equal Protection Clause.

Petitioners urge that legislation cannot be ‘‘appro-

priate’’ within the meaning of Section 5 if it prohibits

state conduct ‘‘in the absence of proof of purposeful

discrimination”’ (Br. 31). Petitioners’ argument, how-

ever, collides with this Court’s ruling in Katzenbach

v. Morgan, 384 U.S. 641 (1966).

In Morgan, the Court upheld Section 4(e) of the

Voting Rights Act of 1965, which prohibited states

from denying voting privileges to non-English speak-

ing citizens who were educated in “American flag’”’

schools. The defendants in Morgan urged that because

the Court had previously determined that literacy re-

quirements do not per se violate the Fourteenth

Amendment, Congress could not enact Section 4(e).

29

See Lassiter v. Northampton County Board of Edu-

cation, 360 U.S. 45 (1959). This Court, however,

rejected this argument. It ruled that Section 5

permits Congress to exceed the Fourteenth Amend-

ment’s substantive standards where Congress believes

that the prohibition of otherwise permissible practices

will aid in the elimination of Fourteenth Amendment

violations. As the Court stated in Morgan, ‘‘[c]or-

rectly viewed, § 5 [of the Fourteenth Amendment] is

a positive grant of legislative power authorizing Con-

gress to exercise its discretion in determining whether

and what legislation is needed to secure the guarantees

of the Fourteenth Amendment’”’ (id. at 651; emphasis

added).

In applying this standard, the Morgan Court noted

that Congress might well have concluded that elimina-

tion of English literacy tests would enhance Puerto

Riean political power and thereby prevent govern-

mental discrimination against the entire Puerto Rican

community in matters relating to the provision of

public services. 384 U.S. at 652-53. Since the Court

could ‘‘perceive a basis’? upon which Congress cou!d

find a rational relationship between the prohibited

practice and a recognized Fourteenth Amendment

violation, it upheld the legislation as an appropri-

ate exercise of Congress’ enforcement clause author-

ity. See also Ex Parte Virginia, 100 US. 339,

345-46 (1879): ‘‘Whatever legislation is appropriate,

that is, adapted to carry out the objects the amend-

ments have in view, whatever tends to enforce submis-

sion to the prohibitions they eontain, and to secure to

all persons the enjoyment of perfect equality of civil

rights and the equal protection of the laws against

State denial or invasion, if not prohibited, is brought

30

within the domain of congressional power.’’ See also

South Carolina v. Katzenbach, 383 U.S. 301 (1966)

(expressing in the same broad terms the scope of Sec-

tion 2 of the Fifteenth Amendment) ; Jones v. Alfred

H. Mayer Co., 392 U.S. 409 (1968) (same as to Section

2 of the Thirteenth Amendment); Hverard’s Brew-

erties V. Day, 265 U.S. 545, 558-559 (1924) (same as to

Section 2 of the Eighteenth Amendment).”

Thus, the decisions of this Court are inconsistent

with petitioners’ argument that legislation cannot be

appropriate within the meaning of Section 5 if it pro-

hibits state conduct ‘‘in the absence of proof of pur-

poseful discrimination”’ (Br. 31).

3. Extension of Title VII to State and Local Public Employers

Is Within the Authority of Congress Under Section 5 of

the Fourteenth Amendment.

(a) The legislative history of the 1972 Amendments

to Title VII demonstrates that Congress sought not

only to eliminate the isolated discriminatory acts of

% And see United States v. Guest, 383 U.S. 745 (1966), where

six justices in concurring opinions declared that Section 5 author-

izes Congress to punish private conspiracies that impede Four-

teenth Amendment rights.

2° Petitioners seek comfort from Oregon v. Mitchell, 400 U.S. 112

(1970), but their reliance is misplaced. In that case, this Court, by

a 5-4 vote, concluded that Congress lacked authority under Section

5 of the Fourteenth Amendment to require states to permit 18 year

olds to vote in state elections. A majority of this Court was assem-

bled in support of this position only because three justices, in an

opinion authored by Mr. Justice Stewart, could not conceive of any

constitutional infirmity that the statute might possibly have been

designed to address. Because they could find no possible constitu-

tional violation that would be remedied by legislation, these three

justices did not decide what remedial legislation is appropriate

once it is established that the objective of Congress is to remedy

acknowledged Fourteenth Amendment violations.

31

public officials but also to remove unnecessary barriers

to minority group employment—barriers which had

the effect of perpetuating the past purposeful discrim-

ination that had occurred throughout American so-

ciety and was especially pervasive in state and local

governments. The preceding seven years of litigation

under Title VII, culminating in this Court’s decision

in Griggs, had demonstrated that unnecessary job re-

quirements, though facially neutral, served to freeze

in the effects of past racial discrimination against mi-

nority groups. The Senate Committee Report sum-

marized the lessons of those seven years as follows:

**In 1964, employment discrimination tended to

be viewed as a series of isolated and distinguish-

able events, for the most part due to ill-will on the

part of some identifiable individual or organiza-

tion. It was thought that a scheme that stressed

conciliation ‘rather than compulsory processes

would be most appropriate for the resolution of

this essentially ‘human’ problem, and that litiga-

tion would be necessary only on an occasional basis.

Experience has shown this view to be false.

‘*Employment discrimination as viewed today is

a far more complex and pervasive phenomenon.

Experts familiar with the subject now generally

describe the problem in terms of ‘systems’ and

‘effects’ rather than simply intentional wrongs,

and the literature on the subject is replete with

discussions of, for example, the mechanics of sen-

iority and lines of progression, perpetuation of

the present effect of pre-act discriminatory prac-

tices through various institutional devices, and

testing and validation requirements.’’ (S. Rep.

No. 92-415, 92d Cong., Ist Sess., 5, 10 (1971);

emphasis added)

32

The Senate Committee Report also states that findings

of the U.S. Commission on Civil Rights

‘‘indieate that the existence of discrimination

is perpetuated by both institutional and overt dis-

eriminatory practices, and that past discrimina-

tory practices are maintained through de facto

segregated job ladders, invalid selection tech-

niques, and stereotypical misconceptions by super-

visors regarding minority group capabilities. The

study also indicates that employment discrimina-

tion in State and local governments is more per-

vasive than in the private sector.’’ (Id.)

Congress, aware of the pervasive and massive pur-

poseful discrimination which had occurred in the past

—including the maintenance of dual school systems in

many states such as Missouri—wanted to insure that

the effects of such discrimination were not perpetuated

by needless barriers which continued the exclusions

and disadvantages suffered by minorities as a result

of past intentional discrimination.” The Equal Pro-

tection Clause, by its own force, bars a state from per-

petuating the effects of its own prior discrimination.

See Louisiana v. United States, 380 U.S. 145, 154-55

(1965) ; Gaston County v. United States, 395 U.S. 285,

296-97 (1969). But in seeking to remove the effects of

prior purposeful discrimination by public agencies,

Congress may prevent one agency from perpetuating

the effects of discrimination wrought by another

agency, and Congress need not limit the protection of its

statute to those members of the victimized class who

** The countless references to Griggs in the testimony, reports

and debates preceding the adoption of the 1972 amendments leave

no doubt that Congress was aware of and intended to curtail the

use of procedures by state and local public employers that need-

lessly freeze in the effects of past discrimination.

33

are able to disentangle the effects of private and official

discrimination and to trace their plight to the latter.

Pursuant to the ‘‘ positive grant’’ of authority in See-

tion 5 of the Fourteenth Amendment, Congress may

in its ‘‘discretion’’ determine that such past intentional

discrimination has been sufficiently pervasive to war-

rant a blanket prohibition against unnecessary pro-

cedures and criteria which would have the effect of per-

petuating prior discriminatory practices. It could con-

clude that case-by-case litigation in which individual

minority group members had the burden of establishing

that they were individually victimized by such prior

discrimination would be unduly burdensome and inef-

fective in removing the barriers which Congress wished

to dismantle.

Congress, on the basis of the facts and testimony

before it, had a rational basis for finding that its chosen

regulatory scheme was necessary to remove the evil it

was addressing. Its action was within the scope of its

power under Section 5, which confers upon Congress

‘the same broad powers expressed in the Necessary

and Proper Clause, Art. I, § 8, cl. 18.’’ Katzenbach v.

Morgan, 384 U.S. 641, 650 (1965). For Congress is

empowered, in pursuit of a “‘legitimate end’’ which is

‘‘within the scope of the Constitution,’’ to adopt ‘‘all

means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but con-

sistent with the letter and spirit of the Constitution

.... Id. at 650, 651. See McCulloch v. Maryland, 4

Wheat. 316, 421 (1819) ; South Carolina v. Katzenbach,

383 U.S. 301, 327-328 (1966). Katzenbach v. McClung,

379 U.S. 294, 303-304 (1964) ; United States v. Darby,

312 U.S. 100, 120-121 (1941); Everard’s Breweries v.

Day, 265 U.S. 533, 560-561 (1924).

34

(b) There is an additional basis supporting Congress’

reliance upon the authority granted in Section 5 of the

Fourteenth Amendment. The legislative history shows

that Congress, in extending Title VII to state and local

public agencies, intended to further the elimination of

purposeful discrimination in the provision of public

services. In 1972, when Congress amended Title VII

to cover state and local public employers, discrimina-

tion in public services, like discrimination in public

employment, was still pervasive. Congress was con-

cerned with insuring that minority group persons were

employed in the various levels of state and local gov-

ernment because that would impede discrimination in

the provision of public services. Senator Williams, the

floor manager for the 1972 Amendments, urged in de-

bate that:

‘this failure of state and local governmental agen-

cies 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 in a community is in

constant contact with many local agencies. The

importance of equal opportunity in these agencies

is, therefore, self-evident.” 118 Cong. Ree. 784-

823 (daily ed. Jan. 31, 1972) (remarks of Sen.

Williams), reprinted in Senate Subcommittee on

Labor, 92d Cong., 2d Sess., Legislative History of

the Equal Employment Opportunity Act of 1972,

at 1114 (1972).

in the same speech, Senator Williams stated that

**. .. employment discrimination at the state and local

government level reflects very unfavorably upon the

ability of those governmental units to deal equitably

in their contracts [ste] with those groups against whom

35

they discriminate in employment”’ (id. at 1116). Sen-

ator Williams based his view, at least in part, upon

a report of the United States Commission on Civil

Rights that was incorporated into the legislative rec-

ord. That report reflected that in Albuquerque, New

Mexico, where no Mexican-American law enforcement

officer held a high-ranking position, the Spanish-speak-

ing community continuously complained of police mis-

conduct. In contrast, the report noted that in another

large city in New Mexico where the Spanish-speaking

community was represented at all levels within the

police department, police-community relations were ex-

cellent because the Spanish-speaking community was

confident that it would receive fair treatment from the

police. ‘‘ Mexican Americans and the Administration of

Justice in the Southwest: A Report of the United

States Commission on Civil Rights,’’ reprinted in

Legislative History of the Equal Opportunity Act of

1972, supra at 1130 (1972).

As petitioners point out, this Court sustained the

statute at bar in Morgan because the Court perceived

that Congress ‘‘could have concluded’’ that literacy

tests should be banned ‘‘in order to remedy discrimi-

nation against Puerto Ricans in the provision of public

services’’ (Br. 34). As the foregoing legislative history

reveals, a similar rationale was actually considered

by Congress when it determined to bring state and local

officials within the coverage of Title VII.

Thus, in the 1972 Amendments, Congress sought to

prevent official perpetuation of the effects of prior

racial discrimination, as well as to encourage the pro-

vision of public services to all persons without discrim-

ination on the basis of race, sex or national origin.

36

Designed as they are to secure the guarantees of the

Fourteenth Amendment, the 1972 Amendments to Title

VII are authorized by Section 5 of the Fourteenth

Amendment.

CONCLUSION

For the foregoing reasons the judgment below

should be affirmed.

Respectfully submitted,

STEPHEN J. PoLLAK

RicHarp M. SHARP

734 Fifteenth Street, N.W.

Washington, D.C. 20005

Davip RuBIN

MatTrHew M. Horowitz

1201 Sixteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Amicus Curiae

National Education Association

Of Counsel:

SHEA & GARDNER

734 Fifteenth Street, N.W.

Washington, D.C. 20005

April 2, 1977