Amicus Brief — New York City Transit Authority v. Beazer

iN THI

Supreme Court of

CTORBER TERM }

On Writ of Certiorari to the

the Rnited States

United States Court of Appeals for the

Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION

a A TY .

ALCOHOL AND DRUG ABUSE DIRE

AS AMICUS CURIAE

ROBERT B TITE

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TABLE OF CONTENTS

Page

Re ED cn cckudincassndtdaelesarndesbbeunenens ul

CRD CEE kc se seccadeacenscenanbacdcecseds l

INTEREST OF THE NATIONAL ASSOCIATION

OF STATE ALCOHOL AND DRUG ABUSE DIRECTORS. 2

STATEMENT OF THE CAGE ccccccccscccccccccvccsosevecces 4

SUMMARY OF ARGUMENT...........2.2eeeeeeeceeeeeceee 7

ARGUMENT

1. The Courts below correctly applied the ‘rational

relationship’ test in determinating that the

Transit Authority's blanket exclusionary policy

toward methadone maintained employees

violates the Fourteenth Amendment...........+++- 8

ll. Former heroin addicts, including those

participating in methadone maintenance

programs, are employable in a variety of

GOCUBOMGRD. 6.0 cc ccacecceccdvovesesereteccaesees 12

Ill. Federal Policy has consistently stressed the

importance of employment opportunity to

fulfilling the goals of treatment and rehabilitation

of drug addicts and abusers. .........-.eeeeeees 14

ee 8 bi « EPP PrrrrrrrrrrrrrrrTrrTrrrrrrrrrrr TT rere 20

AUTHORITIES CITED

Page

CASES

Cleveland Board of Education v. LaFleur,

ee aes. Gee CEE oc daceeucdbdesesocuhdencdeuss 10

Lindsley v. Nationa! Carbonic Gas Co,

» fF Sh Bow.) ee re penne eer 1]

Schwere v. Board of Bar Examiners

ee Be Oe ee CRE s oo bd 00 esandencssecteneuns Q

Sugarman v. Dougal!

ee Ge ee CET Oe oo Gk doc seecselassastanecuens 9

STATUTES

Drug Abuse Office and Treatment Act of 1972,

P.L. 92-255, 86 Stat. 65 ef seq, 21 U.S.C.

§ 1101 ef seq. ......... pore ne eee 2 ae fia 14,15

Title VII, Civil Rights Act of 1964.

ee es Oe ee ee deeb ecaw en's 4

oe ee et en OE i aan ccnaedvededeabinan de 4

OTHER AUTHORITIES

Congressional Record March 17, 1972,

Ps CA gedciite widths ne tegceen ima d kad eh 15

Domestic Council Drug Abuse Task Force, White

Paper on Drug Abuse, 77: Washington, DC.,

1975: G-P.O. No. 041-010-00027-4. .........00.. 17

DSPI, NIDA Statistica! Series, Quarterly Report

Provisional Data, Jan. - Mar 1978, Series D,

No. 6, Rockville, Md. 1978...............cccccees 12

‘Dunlap and Associates, Inc, Drug Abuse and

Driving Performance Final Report National

Highway Trattic Satety Administration,

NL TORS, BUU 66 ssccccccnndovscssennces 13

Gordon and Appel, Pertormance Effectiveness

in Relation to Methadone Maintenance’ in

Proceedings. Fourth National Conference on

Methadone Treatment New York, N.Y.. 1972...... 13

Gerdon, Warner, and Henderson, Psychomotor

and Intellectual Performance Under Meth

adone Maintenance, Reported to Commiitee

on Drug Dependence, National Academy of

Sciences, National Research Council, 1967. ...... 13

Methadone Program Standards, 21 CFR. §

Ee Ge OP eda cteecna ckebhsadnscenucewacenss 19

Nationa! Commission on Marijuana and Drug

Abuse, Drug Use in America’ Problem in

Perspective, 386-87; Washington, D.C.,

1973; G.P.O. No. 5266-00003. ...........ccceees 16

President Jimmy Carter, Special Message to the

Congress, August 2, 1977, Office of Drug Abuse

Policy, 1978 Annual Report 84:

Wena: GT Boas ceedancasseasaccecsncs 18

Strategy Counci! 9n Drug Abuse, Federa/ Strategy

for Drug Abuse and Drug Traffic Prevention

1973, 67-68: Washington, D.C., 1973;

GPO. Bo. SAOFGIOOL. 2c cccavcoccccvccecccvess 17

Strategy Council on Drug Abuse, Federal Strategy

for Drug Abuse and Drug Tratfic Prevention

1974, 26: Washington, D.C., 1974:

G.P.O. No. 4110-00014. ......cccccccccccccceces 17

Strategy Council on Drug Abuse, Federa/ Strategy

for Drug Abuse and Drug Trafttic Prevention

1976, 44-45; Washinaton, D.C. 1976;

CAPO. He. OS2-GOS-GOGSE-E. cxcowccvevccscasces 18

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1977

No. 77—1427

NEW YORK CITY TRANSIT AUTHORITY, er

CARL BEAZER, ef a

On Writ of Certiorari to the

United States Court of Appeals for the

Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF STATE

ALCOHOL AND DRUG ABUSE DIRECTORS

AS AMICUS CURIAE

QUESTIONS PRESENTED

AT a. T

l ; the New I K Ully rar t A nority s fF

11 ex sion ! empioy nt 1a rormer neroin

rr successtully completing

programs an

' 1e| a maintenance treatment

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] { | 1en1a I dadue process r equa!

rot t } lor th Fo virt »nth Amer iment

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2. Is the New York City Transit Authority's policy of

total exclusion from employmeni of all former heroin

addicts participating in, or successfully completing,

methadone maintenance treatment programs an

unlawtul racial discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea.?

INTEREST OF THE NATIONAL ASSOCIATION

OF STATE ALCOHOL AND DRUG ABUSE

DIRECTORS

The National Association of Ctate Alcohol and Drug

Abuse Directors (NASADAD) is a non-profit corporation

of the District of Columbia whose membership consists

of the State alcoholism and drug abuse prevention

authorities of the several States and territories, as

designated under Public Laws 91-616 (42 USC. §

4551 ef seq.) and 92-255 (21 US.C. § 1101 ef seq),

respectively, as amended. The purposes of the

corporation are to foster the development of a

comprehensive alcohol and drug abuse program

capability in each State; to facilitate the evaluation,

dissemination, and interstate exchange of alcoho! and

drug abuse information and program activities among

the State program administrators; to assist the Federal!

and State governments in the design and development

and implementation of coordinated, cooperative

Federal State programs; to encourage the Federal

government to engage with the States in the

comprehensive planning and utilization of government

resources at all levels: to identify common interests and

differences among the States in the nature of their

alcohol and drug problems and to assist in the design of

programs tailored to local characteristics; and to

identify problems and issues that require study and

research, as well as to conduct evaluation activities

upon the request of State alcohol or drug abuse

coordinators.

The responsibilities of the corporation's individual

members include the planning, development, and

support of comprehensive treatment and rehabilitation

programs to reduce the effects of drug addiction and

abuse. The objectives of such programs, and thus of the

State authorities concerned with them, are to aid

individuals in ridding themselves of drug addiction and

abuse problems and becoming contributing members

of society. An important element in habilitating or

rehabilitating such individuals is the removal of

obstacles to employment in jobs for which those

individuals are qualified. Some obstacles are personal

to the patient, eg., poor attitudes, lack of

self-contidence, or lack of markefable skills, which the

programs deal with directly. Others are institutional,

such as exclusionary policies of employers and

misunderstandings of the nature of drug addiction and

abuse and former drug addicts and abusers, toward

which the State authorities as well as the programs

direct their attention.

Exclusionary policies ere widespread throughout

the nation and are followed by some public employers

and some private employers in many States. The

arbitrary exclusion of former drug addicts or abusers,

including persons still in treatment who have ceased

illegal use of drugs, has limited the effectiveness of

treatment and rehabilitation efforts, and therefore

limited the effectiveness of individual members of

NASADAD in carrying out the statutory and adminis-

trative mandates of their positions in State government.

Aftirmance of the decisions below will aid the

NASADAD members individually and collectively by

expanding employment opportunities for former

addicts both directly, by establishing legal precedent

binding upon public employers subject to the

Fourteenth Amendment, and indirectly, by

encouraging private employers to hire qualified former

addicts.

The interest of NASADAD in the present case is

limited to the public policy impact of the case, and does

not extend to the private interests of the parties.

Therefore, inasmuch as the Title VII claim was

admittedly pressed for the sole purpose of allowance of

attorney's fees, this brief amicus curiae will discuss only

the constitutional question presented.

STATEMENT OF THE CASE

This is a class action commenced under 42 U.S.C.

§§ 1981 and 1983, the Fourteenth Amendment, and

Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000e ef seq.) against the New York City Transit

Authority (TA), the Manhattan and Bronx Surtace

Transit Operating Authority (MABSTOA), and certain

ofticials of those governmental instrumentalities. Other

initial defendants were excluded by the District Court

judgment from liability for the relief granted. The class

represented by the four named plaintiffs - respondents

are all former heroin addicts who are participating in or

have completed a methadone maintenance treatment

program who have been, or would in the future be,

subject to dismissal! or rejection for employment by the

detendants - petitioners.

The suit challenges, as an _ unconstitutional

violation of the due process and equal protection

clauses of the Fourteenth Amendment, the policy of the

defendants - petitioners to exclude from employmentin

any position persons who are receiving methadone

maintenance ‘treatment or who have successfully

concluded such treatment.

The four named plaintiffs include two former

employees of the TA, both of whom used heroin at the

times they were hired by the TA, who were discharged

after the TA learned that they were participants in

methadone maintenance treatment programs. The

other named plaintiffs were applicants for employment

who were rejected by the MABSTOA and the TA

because they were former and current methadone

maintenance treatment participants, respectively.

The District Court for the Southern District of New

York heard fifteen days oi testimony and received other

evidence in an exhaustive effort to examine the factual

issues presented. Expert witnesses gave evidence of the

effects of methadone used for treatment of heroin

addiction, described in cetail the operations and

experiences of the major methadone maintenance

programs in New York City, and presented data on

employment and employability of methadone

maintenance patients; major employers who had

experience with methadone maintained employees

also testified regarding the work performance of those

employees.

The District Court entered an opinion on August 6,

1975 (399 F. Supp. 1032) containing extensive findings

of fact and holding that the Transit Authority's blanket

exclusion of present and former methadone

maintenance patients violated the due process and

equal protection clauses of the Fourteenth Amendment,

thus entitling the plaintiffs - respondents to relief under

that Amendment and under 42 U.S.C. § 1983. The

defendants - petitioners were directed to consider each

methadone maintained employee or applicant for

employment according to his individual merits and the

position held or sought.

The TA was directed to reexamine the

employability of the named plaintiffs - respondents

and report back to the Court for determination of

reinstatement and back pay rights. Subsequently the

Court ordered two of the named plaintiffs - respondents

employed with back pay, but denied relief to two named

plaintiffs - respondents and one applying member of

the class. The Court found it unnecessary to reach the

issue of the alleged violation of Title VII of the Civil

Rights Act of 1964 in view of its holding on the issue of

constitutionality.

In a Supplemental! Opinion entered May 5, 1976.

the Court held that the defendants - petitioners were

guilty of discrimination in violation of Title VII, upon a

renewed application of the plaintiffs - respondents. The

sole purpose of the application was to obtain the benetit

of the Title VII provision authorizing the award of a

reasonable attorney's fee to the prevailing party. The

final order of the District Court permanently enjoined

the detendants - petitioners from enforcing the blanket

exclusionary policy and awarded attorney's fees to the

plaintiffs - respondents.

On appeal, the United States Court of Appeals for

the Second Circuit entered an opinion on June 22, 1977

(558 F.2d 97) affirming the judgment of the District

Court, except reversing as to the denial of relief to the

three plaintiffs - respondents and reducing the amount

ot the award of attorney's fees.

On June 28, 1978, the Supreme Court of the United

States granted the defendants - petitioners’ Petition tora

Writ of Certiorari, limiting the Court's review to the two

issues heretofore stated as Questions Presented.

SUMMARY OF ARGUMENT

The blanket exclusionary policy of the defendants -

petitioners barring emp'oyment in any position of

former heroin addicts who are participating in, or have

successfully completed, a methadone maintenance

treatment program has nro rational relationship to the

legitimate interests of the defendants - petitioners.

Applying established constitutional doctrines, the trial

court correctly held the blanket exclusion to be in

violation of the due process and equal protection

clauses of the Fourteenth Amendment.

Studies of many methadone maintained patients

over long periods have shown them to be

indistinguishable trom similar persons in the general

population who have not used narcotic drugs.

Consideration of such persons on an individual! basis,

matching their qualifications with the requirements of

specific occupations or positions, would reveal many to

be employable.

The policy of the Federal government since at least

1972, when major efforts to increase treatment and

rehabilitation of drug addicts and abusers began, has

been to increase employment opportunities for former

addicts. This policy, expressed by both the legislative

and executive branches, increases the effectiveness of

treatment and rehabilitation efforts to return the former

addict to productivity and social acceptability.

ARGUMENT

I. The Courts below correctly applied the

"rational relationship” test in determining that

the Transit Authority's blanket exclusionary

policy toward methadone maintained em-

ployees violates the Fourteenth Amendment.

In its opinion, the District Court succinctly stated

the constitutional doctorine applicable to the present

case, “A public entity such as the Transit Authority

cannot bar persons from employment on the basis of

criteria which have no rational relation to the demands

of the jobs to be performed. Todo so isa violation of both

the due process and equa! protection clauses of the

Fourteenth Amendment. This applies to new applicants

tor employment, and to existing employees threatened

with termination.’ 399 F. Supp. at 1057. (Emphasis

added.) Applying these principles to tactual findings

amply supported in the revord, the trial court said, ‘It is

pertectly clear thai there are substantial numbers of

present or past methadone maintained persons who

would be capable of performing many of the jobs at the

TA. Individual consideration, or narrower rules

rationally related to certain classifications of jobs, are

constitutionally required. The /ack ofa reasonable basis

for the present policy of the TA is particularly evident

trom the markedly different treatment given to problem

drinkers— persons presenting greater risks than those

members of the plaintiff class for whom employment is

sought.’ 399 F. Supp. at 1058. (Emphasis added )

In Sugarman v. Dougall, 413 U.S. 634 (1973), the

Court held that a similar blanket policy banning aliens

from a class of public employment was a4 violation of the

equal protection clause. While carefully pointing out

that “on the basis of an individual! determination’ an

alien may be denied public employment if the retusa! to

hire, or the discharge is based on ‘legitimate state

interests that relate to the qualifications tor a particular

position or to the characteristics of the employee.’ 413

U.S. at 647. Only the “flat ban... in positions that have

little, if any relation to a State's legitimate interest,’ was

unconstitutional. 413 U.S. at647. Even where a specific

occupation is the subject of legitimate State interest, the

Fourteenth Amendment requires that ‘any

qualification must have a rational connection with the

applicant's fitness or capacity’ for the activity. Schware

v. Board of Bar Examiners, 353 U.S. 232 at 239 (1957).

10

The due process clause of the Fourteenth

Amendment also requires tnat blanket policies or rules

based on conclusive presumptions of physical

inadequacy be held unconstitutional. In Cleveland

Board of Education v. LaFleur, 414 U.S. 632 (1974), the

Court considered rules requiring all pregnant teachers

to take extended leaves of absence beginning in the

fourth of fifth month of pregnancy, and held, at page

651, that ...the mandatory termination provisions of

the... maternity regulations violate the Due Process

Clause of the Fourteenth Amendment, because of their

use of unwarranted conclusive presumptions that

seriously burden the exercise of protected

constitutional liberty.’

As tound by the trial court (399 F. Supp. at 1049)

the Transit Authority has no blanket prohibition against

employment of persons with criminal records, persons

taking drugs such as tranquilizers, persons formerly

contined to mental! institutions, persons being treated

by a psychiatrist, or persons with medical problems

such as diabetes, epilepsy, or heart disease. In each of

these conditions individual consideration is given to the

applicant or employee. Only in the case of former

heroin addicts, particularly those participating, or who

have completed participation, in methadone

maintenance treatment programs does the TA deem it

necessary to exclude all such persons.

The Transit Authority seeks to justify the

relationship between its policy and a legitimate

concern tor public safety by three major assertions:

(1)a methadone maintenance patient embodies the

underlying character detects which caused him to turn

to heroin in the first place, so there is a substantial risk

that such person will revert to heroin or turn to other

drugs or alcchol abuse; (2) there are significant adverse

physiological effects from methadone which would

impair the performance of a methadone maintenance

patient as an employee; and (3) there is no satisfactory

way of screening the reliable methadone patient from

the unreliable, so a blanket exclusionary policy is

administratively necessary. 399 F. Supp. at 1036. The

trial court found that these assertions were contrary to

the overwhelming weight of the evidence presented

and summarized its factual findings,

"...the crucial point made so strongly by

plaintiffs witnesses was never convincingly

challenged—that methadone as administered

in the maintenance programs can successfully

erase the physical effects of heroin addiction

and permit a former heroin addict to function

normally both mentally and physically... It is

further clear that the employable can be

identified by a prospective employer by

essentially the same type of procedures used

to identify other persons who would make

good and reliable employees.” 399 F. Supp. at

1037.

The defendants - petitioners now seek to apply the

standard of equal protection adopted by the Court in

Lindsley v. National Carbonic Gas Co, 220 US. 61

(1911), emphasizing, “A classification having some

reasonable basis does not offend against (the equal

protection) clause merely because it is not made with

12

mathematica! nicety or because in practice it results in

some inequality. But even if this standard is used, this

case does not present a question of mathematical

nicety,’ but rather an assumption that all present or

tormer methadone maintenance patients are alike, and

that their characteristics differ significantly from

persons with mental illness, diabetes, epilepsy, heart

disease, or alcoholism. Such an assumption is

unsupported and unsupportable.

II Former heroin addicts, including those

participating in methadone maintenance

programs are employable in a variety of

occupations.

Studies ot work performance, psychomotor ability,

intelligence’ skill retention, and attitudes have

concluded that tormer heroin addicts, including

persons being maintained on stable doses of

methadone, have characteristics similar to persons of

similar background in the population at large. Indeed, a

substantia! number of drug addicts or abusers are

employed while using illicit drugs. Reports to the

Nationa! Institute on Drug Abuse, Department of Health,

Education and Weltare, of 24,500 heroin users

admitted to Federally assisted treatment programs in

January to March, 1978 show that 27% were employed

at the time of admission. Division of Scientific and

Program Information, N/DA Statistical Series, Quarterly

Report Provisional Data, January-March 1978, Series

D, No. 6: Rockville, Md., 1978.

13

Leading studies by Dr. Norman B. Gordon have

demonstrated psychomotor performance, intellectual

functioning, and reaction time of methadone

maintenance program participants to be equivalent to

that of the general population. Gordon, Warner, and

Henderson, Psychomotor and Intellectua/ Performance

Under Methadone Maintenance Reported to the

Committee on Drug Dependence, National Academy of

Sciences, Nationa! Research Council, 1967. Gordon

and Appel, “Performance Effectiveness in Relation to

Methadone Maintenance’ in Proceedings, Fourth

National Conference on Methadone Treatment; New

York, N.Y. 1972. Driving ability of methadone

maintenance patients showed no significant deficiency

in a study initiated by the National Highway Tratfic

Safety Administration. Dunlap and Associates, Inc.,

Drug Abuse and Driving Performance, Final Report;

National Highway Tratfic Safety Administration,

Washington, D.C., 1972.

Testimony in the present case by physicians with

extensive experience in methadone programs was

summarized in the opinion of the trial court. Dr. Paul

Cushman, Jr., Director of the Methadone Maintenance

Clinic of St. Luke’s Hospital, testified that methadone

maintenance patients are basically indistinguishable

from comparable non-drug users. Dr. Joyce Lowinson,

Director of the Methadone Maintenance Program at

Bronx State Hospital, testified that patients stabilized on

methadone function normally and cannot be

distinguished from persons not taking methadone,

except by urine or blood tests. 399 F. Supp. at 1043-44.

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Rehabilitation will undertake to ensure that drug

abusers will not be denied access to existina Federal

manpower or rehabilitation programs. Specific

activities will be directed at reviewing guidelines,

regulations and plans tor vocational! rehabilitation and

employment programs at both Federal! and State levels:

developing cooperative activities and projects in these

areas; and developing a_ strategy for greater

involvement of the private sector in employment

programs. Strategy Council] on Drug Abuse, Federa/

Strategy for Drug Abuse and Drug Traffic Prevention

1976 44-45: Washington, DC. 1976: GPO. No.

052-003-00251-5.

‘To improve the quality of Federal drug treatment, |

am recommending these steps:

e To help drug abusers return to productive

lives, | am directing the Secretary of Labor to

identify all Federal employment assistance

programs which can help tormer drug abusers

and to give me within 120 days, his

recommendations tor increasing the access of

drug abusers to them. President Jimmy

Carter, Special Message to the Congress,

August 2, 1977, Office of Drug Abuse Policy.

1978 Annual! Report, 84: Washington, D.C.

1978.

In addition to these statements, the Federal

government has incorporated in treatment program

requirements recognition of the importance of

-

19

employment as an objective of treatment and

rehabilitation. Of particular relevance the regulations

adopted by the Food and Drug Administration and the

National Institute on Drug Abuse establishing Program

Standards for Methadone Maintenance and

Detoxification, 21 C.F.R. Part 291, include, inter alia,

"§ 291.505 (6) (v) Vocational rehabilitation,

education, andemployment.(a) Each program

shall provide opportunities directly, or through

referral to community resources, for those

patients who either desire or who have been

deemed by the program staff ready to

participate in educational job-training

programs or to obtain gaintul employment as

soon as possible. Each program shal! maintain

a list of references that may be used for referral!

purposes if rehabilitative activities are not

provided directly. The references shall include

the opportunities for vocational training,

education, and employment as wel! as the

community resources that may be available to

provide assistance for such activities.”

It is not suggested by this public policy or in this

brief that there is any duty of employers to assist in the

rehabilitation of former heroin addicts. The Federal! and

State governments and treatment programs have

undertaken that responsibility. All that is sought is

removal of artificial barriers to employment of gualitied

persons so that the goals of treatment and rehabilitation

may be realized.

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