Amicus Brief — County of Los Angeles v. Davis

—

Supreme Court, U.

Ix THE FILED

Supreme Court of the United States 1 1978

Octoper Term, 1977

MI@HAEL R@DAK, JR., CLERK

No. 77-1553

—

County or Los ANGELEs, et al.,

Petitioners,

—

Van Davis, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE

AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF SOUTHERN CALIFORNIA

AMICI CURIAE

Bruce J. Ennis

Burt NEUBORNE

FE RicHarp Larson

American Civil Liberties

Union Foundation

22 Fast 40th Street

New York, New York 10016

Frep OKRAND

ACLU of Southern California

632 South Shatto Place

Los Angeles, California 90005

Attorneys for Amici Curiae

PauL HorrMan

One Wilshire Building

Suite 1600

Los Angeles, California

90017

Of Counsel

TABLE OF CONTENTS

Beeeeese GC Gee Bega. 6 oo ts ewe ee eee eS

4

.

+ Introduction and Summary of Argument ..... 4

ARGUMENT >. > el > . . . . . . . . . . . . 7 . . 9

A. The 39th Congress, in Seeking to Remove

the Badges and Incidents ofSlavery from

Freedmen, Did Not Impose a Requirement

of Proof of Scienter upon Plaintiffs

Challenging Racially Discriminatory

Employment Practices Pursuant to 42

U.8.C. $a9GR. « se se voeevehoeenevevneeve ®

l. The Language of 42 U.S.C. §1981

1 Compels the Conclusion that Proof

of Scienter Is Not Required. ... .12

2. The Legislative History of the

Civil Rights Act of 1866 Rein-

forces the Absence of an Intent

to Discriminate Requirement in

42 U.B.C. S@L9GA. « «© eo © © © © © © obs

3. There Is No Contemporary Rationale

for Imposing aScienter Requirement

on 42 U.S.C. $1961 . «© «© © © © «© © oft

B. Assuming Arguendo that 42 U.S.C. §1981

Requires Proof of Scienter, Plaintiffs

Have Overwhelmingly Established

Scienter as a Matter of Law...... .24

l. Plaintiffs Established a Racially

Discriminatory Purpose as a

Matter of Law. ..+.+«++e+ee « 046

ole

a.

Plaintiffs Established a Suffi-

ciently Culpable Mental State to

Justify Liability and Prospective

The Racial Imbalance of

Defendants' Workforce, and

the Discriminatory Impact of

the 1972 Written Test Are

Unexplainable on Grounds

Other than Race ..

The Historical Background of

Defendants' Hiring Practices

Also Reveals Discriminatory

PUEPOGS . «+ © © oc

Defendants' Departure from

Normal Procedures Further

Proves Improper Discrimina-

tory Purpose. ...

2 ea ee ee e- e e

The District Court Erred in Allo-

cating the Burden of Proof on the

“Issue of Scienter. ...

a.

b.

The Nature of Plaintiffs'

Production Burden .

The Nature of Defendants'

Persuasion Burden .

Castaneda v. Partidais an

Example of the Proper Allo-

cation of Burdens of Proof.

Defendants Failed, as a

Matter of Law, To Satisfy a

Persuasion Burden on the

Issue of Scienter .

. 28

-31

. 33

. 36

41

-45

- 46

-47

49

a ee eee

C. The Affirmative Hiring Order Imposed To

Remedy Defendants' Past Discrimination

Is Constitutionally Permissible If Not

Constitutionally Required ....... .53

CONCLUS ION . . . . * . . . . . . >. . . . . . . 62

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S.

| ea a a ae a ee ee ae eT

Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) . .passim

Associated General Contractors of

Massachusetts, Inc. v. Altschuler, 490

F.2d 9 (lst Cir. 1973), cert. denied,

Gh6 G.8. OB7 ChOTE)« « 2 6 6 eo 8 he oe 6 08996 ,97

Boston Chapter, NAACP, Inc. v. Beecher,

504 F.2d 1017 (lst Cir. 1974), cert.

denied, 421 U.S. 910 (1975)... .. +... «54

Bradley v. Milliken, 484 F.2d 215 (6th

Cir. 1973), aff'd in relevant part, 418

Oe RR | ee ae ee ae ae a a a a a ee

Bridgeport Guardians, Inc. v. Bridgeport

Civil Service Commission, 482 F.2d 1333

96 Gis. ASTe) « « « © oe é 6 8 et 6 st ogee, OO

Carter v. Gallagher, 452 F.2d 327 (8th

Cir.) (en banc), cert. denied, 406 U.S.

Be. ee a ee a ae a ae ee

-iii-

Page

Castaneda v. Partida, 430 U.S. 482 (1977). passim

Contractors Association of Eastern Pa.

v. Secretary of Labor, 442 F.2d 159 (3d

Cir.), cert. denied, 404 U.S. 854 (1971).55,56,57

Crockett v. Green, 534 F.2d 715 (7th

Cir. 1976) _ eo 6 > . — >. . > * . . - ° . — _ > - 56

Davis v. United States, 160 U.S. 469 (1895).41,45

Dothard v. Rawlinson, 433 U.S. 321 (1977)...14,33

EEOC v. Detroit Edison Co.,

(6th Cir.

grounds,

515 F.2d 301

1975) vac'd and rem'd on other

433 U.8. BSS Ceeetbe «se @ 6 64 6 6

Erie Human Relations Commission v. Tullio,

493 P.2G 373 (38 Cie. Sree 6+ 6 64 6 6 6 Se Se eee

Ernst & Ernst v. Hochfelder, 425 U.S. 185

(1976). . . . . oe . . . . oe * >. . > . . -21,37,38

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). . .10

Franks v. Bowman Transportation Co., 424

U.S. 747 (1976) . . . . . . . . . . . . os . -53

Fullilove v. Kreps,

Sept. 22, 1978)

F.2d (2d Cir.,

(No. 78-6011) . . ° . . . . . -58

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

(A972). we eo ecco ee st eb oe eS eee 6 eee

United

299 (1977) ° . . . . . . . 7

Hazelwood School District v.

States, 433 U.S.

Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241. (1964). . . « «ee ee «

In re Winship,

opie sanation ati

Page

397 U.S. 358 (1969). . .. «42,44

International Brotherhood of Teamsters

v. United States, 431 U.S. 324 (1977) . 28,29,60

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) .. . 5,9,10

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

409 (1968). . . . . 7 . . >. . . . . . >

641 (1966) ..

-passim

Katzenbach v. Morgan, 384 U.S. 10

Local 53, Asbestos Workers v. Vogler,

407 F.2d 1047 (5th Cir. 1969) . ....+. +++ 55

Louisiana v. United States, 380 U.S. 145,

(1965). . . . 7 . . . . . . . . . . . . . .53,61

McDonald v. Santa Fe Trail Transportation

Co., 427 U.S. 273 (1976). . . «© © «© « «© ©5,12,13

Monroe v. Pape, 365 U.S. 167 (1961) . . . .38,46

Morgan v. Kerrigan, 509 F.2d 580 (lst

Cir. 1974), cert. denied, 421 U.S. 963

(1975). . . . . . . . . . . . . . . . . . . . 39

Morrow v. Crisler, 491 F.2d 1053 (5th

Cir. 1974) (en banc), cert. denied,

419 0.8. 895 (1974) .. «cece cececes ee ee 99

Morrow v. Dillard, F.2d , 47

U.S.L.W. 2233 (5th Cir., Sept. 29, 1978). .59,60

Mullaney v. Wilbur, 421 U.S. 624 (1975) .. . 42

NAACP v. Allen, 493 F.2d 614 (5th Cir.

1974) — >. >. _ > . . . . >. >. >. >. - . 7 >.

Page Page

Tillman v. Wheaton-Haven Recreational

Oliver v. Michigan State Board of Association, 410 U.S. 431 (1973). .... . 6,10

Education, 508 F.2d 178 (6th Cir. 1974),

cert. denied, 421 U.S. 963 (1975) ...... 39 United States v. Chicago, 549 F.2d 415

(7th Cir. 1977), cert. denied, 434 U.S.

Patterson v. New York, 432 U.S.197 (1977). .42,44 | 875 (1978). ‘igpusr ret a cians ay? oe ae

Regents of the University of California, : ;

United States v. Feinberg, 140 F.2d 592

to Ce, OF Cee ey er se ss + SOUR Ss SGP ac Gee eee a

Rios v. Enterprise Association Steam- ;

United States v. Ironworkers Local 86,

fitters Local 638, 501 F.2d 622 (2d 443 F.2d 544 (9th Cir.), cert. denied,

Cir. 1974). > - 5 - : , x 2 ? ‘ : ‘ . : : 33 404 U.S. 984 (1971) . >. * . . . >. * >. — * . . 56

Runyon v. McCrary, 427 U.S. 160 (1976). . 5,9,10

phe. me

United States v. Local 39, IBEW, 428

F.2d 144 (6th Cir.), cert. denied,

a chs ee See « “« » 6 «6 ¢ 6©6«ee¢es# 6 6

= SP yg tre Fw — Corp., 37 United States v. Local 212, IBEW,

; qpeeaiug pie ge 472 F.2d 634 (6th Cir. 1973). ........ 56

Screws v. United States, 325 U.S. 91 (1945) . 43

SEC v. World Radio Mission, Inc., 544

F.2d 535 (lst Cir. 1976)... ee Ga. oa United States v. Masonry Contractors

Association, 497 F.2d 871 (6th Cir. 1974) . . 55

Sherill v. J.P. Stevens & Co., 551 F.2d

ek GI Ee ee oe ae United States v. Melillo, 275 F.Supp.

314 (E.D.N.Y. 1967) . . . . 7 . . . . . . . . 45

Sims v. Local 65, Sheet Metal Workers,

489 F.2d 1023 (6th Cir. 1973) ........ 56 United States v. N.L. Industries, Inc.,

479 F.2d 354 (8th Cir. 1973). . ... +++ + 56

South Carolina v. Katzenbach, 383 U.S. |

a ii ae tee he rahe i. ve ge | United States v. Price, 383 U.S. 787 (1966) . 13

United States v. School District of Omaha,

521 F.2d 530 (8th Cir.), cert. denied,

co ee ee | a ee ee ee er ee ee

Southern Illinois Builders Association

v. Ogilvie, 471 F.2d 680 (7th Cir. 1972). .. 56

Sullivan v. Little Hunting Park, 396

Sit De Gn 6s 'é & «nee 6. 8 © 0: ee United States v. Taylor, 464 F.2d 240

og a ee ee ee oe ee ee

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971). .......-. 583 | United States v. Texas Educational

Agency, 564 F.2d 162 (5th Cir. 1977). . . .39,46

~~, -vii-

Page

United States v. United States Gypsum Co.,

333. U.8. 366 (20GB) w wc eo esc ves eanseese

United States v. Wood Lathers Local 46,

471 F.2d 408 (2d Cir.), cert. denied,

412 uU.8. 939 (1973) .«c«cececrceeeev eee OO

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

Wood v. Strickland, 420 U.S. 308 (1975).21,23,37

Constitutional Amendments:

a ee a a ee a

a ee a a ae ee a ee

Statutes:

Civil Rights Act of 1866. ....... . passim

62 @.8.6. SAOGR. « eo eo ee eee « « SRE

Civil Rights Act of 1871. ...... . . passim

62 @.8.C. SA9G3. « © oe we eo eo ow 0 « « PASSER

Title VII of the Civil Rights Act

— ae a ee ae oe a ee oe a ee

passim

STOS(R). « we wo we eoereoee ee eee

S7O3(3). «© we we eo eevee ee 8 8 © ee

S7ee Cts « «© « e 6 &@ © 64 6 je & 6 6 6 8

-viii-

|

?

-

:

:

3

.

4

;

a rn ee ee ee ay

Legislative History:

Cong. Globe, 39th Cong., lst Sess. ..

at 43.

at 45.

at i29

at 474

at 599

at 603

at 604...

at 606-607

at 1124. .

at 24352 «

at 1679. .

at 1809. .

at 1833. .

@G A20Ghe «¢ «.«

. . . . . . . . * . . . . -

. . . . . . . . + . . .

. . . . . 7 . . a . 7 . . .

. . . . . . . . . . oe . 7 .

. . . . . . . . . . . 7 . .

. . . . . . . . a . . . . .

. . . . . . . . .

Treatises and Articles:

Cleary, Presuming and Pleading: An Essay

on Juristic Immaturity, 12 Stan.L.Rev. 5

(1959). . . . . . o . . . o . . . . . .

James, Burdens of Proof, 49 Va.L.Rev. 5l

(1961) . . . 7 . 7 . . . . . + . + . .

McBain, Burden of Proof: Degrees of

McNaughten, Burden of Production of

Evidence: A Function of a Burden of

Persuasion, 68 Harv.L.Rev. 1382 (1955).

Morse, Evidentiary Lexicology, 59

pean bee. GE Caeeee « «© @ ew ee ee

Page

- passim

. . . 7 o re . . . 7 . . .

co

be

ie)

>

Nh

©

. . . 42

- «41,42

. . > 43

. . o 45

Michael and Wechsler, A Rationale of the

Law of Homicide, 37 Col.L.Rev. 701 (1937) . . 38

Perkins, The Criminal Law 61 (1957) ...+-s + 38

J. Thayer, A Preliminary Treatise on

Evidence at the Common Law, 355-59 (1898) 41

Underwood, The Thumb on the Scale of

Justice: Burdens of Persuasion in

Criminal Cases, 86 Yale L.J. 1299 (1977). -43,44

Wechsler, Codification of the Criminal

Law in the United States: The Model

Penal Code, 68 Col.L.Rev. 1425 (1968) ... - 38

ee ee

ee SS eae

—— a ons

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77-1553

COUNTY OF LOS ANGELES, et al.,

Petitioners,

-y-

VAN DAVIS, et al.,

Respondents,

On Writ of Certiorari to the

United States Court of Appeais

for the Ninth Circuit

BRIEF OF THE

AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF SOUTHERN CALIFORNIA

AMICI CURIAE

Interest of the Amici*

The American Civil Liberties Union is a

nationwide, nonpartisan organization of over

200,000 members dedicated to defending the

+ ee aod

* The parties have consented to the filing of this brief,

and their letters of consent have been filed with the Clerk

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

Court.

ole

fundamental civil rights and civil liberties of

the people of the United States. The ACLU of

Southern California is the ACLU's regional

affiliate for Southern California.

Central among the fundamental rights and

liberties guaranteed by our Constitution is the

right not to be discriminated against on grounds

of race or color. Because of the crucial impor-

tance of this long neglected and frequently

subverted right in a free society, the ACLU, in

a variety of cases before this Court and before

numerous other tribunals, has defended the rights

of those who have been discriminated against.

In such cases, the ACLU has consistently

argued that Congress is empowered to enact broad

legislation outlawing all forms of racial dis-

crimination, whether racially motivated or not;

that persons discriminated against should not

be required to bear onerous burdens in proving

scienter where it serves no justifiable purpose

and where such a requirement merely facilitates

and encourages retention of discriminatory

practices which have no countervailing benefit

whatsoever to an identified defendant or to

society at large; and that affirmative remedial

relief is constitutionally permissible if not

equitably necessary to remedy the continuing

-2-

—. —— —.

ttn ip hie

Cn + em te oe OER Sandie dee $0 ce eK Al ote.

effects of past and present racial discrimination

against minorities who continue to be denied the

benefits of equality in a free society.

The issues in this case encompass each of

these three conerns. Amici submit that Congress

not only was empowered to but actually did enact

legislation in the form of the Civil Rights Act

of 1866 to prohibit all enumerated forms of

racial discrimination regardless of whether that

discrimination was motivated by an intent to

discriminate. Amici also submit, in the event

that this Court engrafts a scienter requirement

which does not appear on the face of the statute

and which is contrary to the legislative history

of the 39th Congress, that plaintiffs in a §1981l

case could be required to bear no more than a

burden of producing evidence of deliberate dis-

regard, and that plaintiffs here not only have

met such a burden of production but also have

satisfied a burden of persuasion despite the

fact that such a burden is not theirs. Finally,

Amici submit that, on the extensive evidence in

the record before the trial court, the affirma-

tive numerical hiring relief ordered by that

court was constitutionally permissible as well

as equitably required in order to remedy the

pervasive effects of defendants’ past discrimi-

nation against racial minorities.

=3=

INTRODUCTION AND SUMMARY OF ARGUMENT

The facts in this case pertaining to defen-

dants' discriminatory employment practices for

the most part are undisputed. "Despite a minor-

ity population of approximately 29.1% in Los

Angeles County, only 3.3% of the firemen employed

by the defendants at time of trial were black or

Mexican-American."

Davis v. County of Los Angeles,

556 F.2d 1334, 1337 (9th Cir. 1977). This result

was accomplished through the use of unvalidated

written tests which not only had a severely

discriminatory impact, 556 F.2d at 1337, but

also were known by defendants to have a discrim-

inatory impact. (P1.Ex.7,8,9; R.T.48-49)* This

result also was accomplished, inter alia, through

the use of a non job related 5'7" minimum height

requirement which excluded 41% of the otherwise

eligible Mexican-American applicants, 556 F.2d

at 1341-1342, through the conduct of application

programs designed to assist whites but not

minorities to apply (R.T.91-113), through the

temporary loss of the names of 300 minorities

who wanted to apply (R.T.187-188),

and through

* The citations to the record below, which has been lodged

with this Court, are as follows: "Pl.Ex." refers to

plaintiffs' exhibits; "R.T." means the recorded transcript;

"R." refers to other portions of the record below.

~~

the maintenance of a discriminatory reputation

in the minority community (R.T.52,134,194).

Defendants for the most part do not contest

these facts. But they do argue that 42 U.S.C.

§1981 should not be interpreted, as the 39th

Congress intended, to prohibit all enumerated

forms of racial discrimination; they appear to

argue that §1981 should be engrafted with a

scienter requirement so onerous that their

knowing use of discriminatory practices could

not be proven unlawful under §1981; and they

contend that the trial court exceeded its broad

equitable authority by imposing affirmative

relief to remedy their extensive past discrimi-

nation against blacks and Mexican-Americans.

Amici believe that defendants are wrong on all

counts.

A. Defendants first misconstrue the

breadth and intent of 42 U.S.C. §1981, a statute

which never has been curtailed or given a

mechanical reading by this Court but which

instead has been accorded "a sweep as broad as

its language." Jones v. Alfred H. Mayer Co.,

392 U.S. 409, 437 (1968); See also, McDonald v.

Santa Fe Trail Transportation Co., 427 U.S. 273

(1976); Runyon v. McCrary, 427 U.S. 160 (1976);

Johnson v. Railway Express Agency, Inc., 421 U.S.

oS

454 (1975); Tillman v. Wheaton-Haven Recreational

Association, 410 U.S. 431 (1973); Sullivan v.

Little Hunting Park, 396 U.S. 229 (1969). Its

language, on its face, embodies no scienter

Engrafting one now would be

requirement.

entirely inconsistent with this Court's inter-

pretation of Title VII which on its face appears

to require proof of intent to discriminate but

which has been construed not to require proof

Griggs v. Duke Power Co., 401

Moreover, it would be directly

of such intent.

U.S. 424 (1971).

contrary to the intentions of the 39th Congress

which identified numerous badges and incidents

of slavery and thought that it had enacted

legislation prohibiting not just intentional

discrimination but all enumerated forms of

racial discrimination whatever their source or

motivation.

B. If this Court erroneously writes a

scienter Clause into 42 U.S.C. §1981 (thereby

relegating the considerable efforts of the 39th

Congress to the position of historical worthless-

ness in view of the subsequent ratification of

the Fourteenth Amendment and enactment of the

Civil Rights Act of 1871), this Court would have

to decide whether defendants nonetheless have

violated §1981 based on plaintiffs’ proof

"that a discriminatory purpose has been a moti-

-6-

a ee ee AWARE es eer un Te oe ot orig

vating factor" in defendants' challenged prac-

tices. Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 265

(1977).

sary mental culpability was not defined in

Although the precise degree of neces-

Arlington Heights or in Washington v. Davis,

426 U.S. 229 (1976), it does not follow that

any degree of mental culpability needs to be

proved to establish a violation of §1981 in the

circumstances of the instant case. The primary

purpose of a scienter requirement, to provide a

barrier against the unfair imposition of retro-

active legal sanctions, is not furthered where

plaintiffs seek prospective equitable relief and

especially where defendants were on clear notice

that their employment practices raised serious

issues of racial unfairness. A secondary

purpose of scienter, to protect individuals

from being over-deterred from performing legi-

timate functions by a fear of strict liability,

Similarly is not served where defendants engage

in employment practices which perpetuate racial

exclusion but which fail to improve the quality

of their workforce. Although no discernible

purpose thus could be found for imposing a

scienter requirement on §1981 here, plaintiffs

nevertheless have sustained any production

And, although a burden

burden on this issue.

i

of persuasion on this issue, or on the issue of

intent in general, could not logically be allo-

cated to plaintiffs, they also met any such

persuasion burden.

C. The record of identified past discrim-

ination practiced by defendants provides a more

than sufficient base for the affirmative hiring

order imposed by the district court to remedy

the pervasive effects of defendants’ racial

discrimination. As stated by Mr. Justice Powell

in Regents of the University of California v.

Bakke, 57 L.Ed.2d 750 (1978), once findings of

past discrimination have been judicially ren-

dered, “the governmental interest in preferring

members of the injured groups at the expense of

others is substantial." 57 L.Ed.2d at 782

(Powell, J.). See also, the opinion of Mr.

Justice Brennan writing for himself and for

Justices White, Marshall and Blackmun, 57 L.Ed.

2d at 792-827 (Brennan, J.). In view of the

positions taken by five members of this Court

in Bakke, the affirmative hiring order here is

constitutionally permissible and equitably

necessary.

ARGUMENT

A. The 39th Congress, in Seeking to Remove

the Badges and Incidents of Slavery from

Freedmen, Did Not Impose a Requirement

of Proof of Scienter upon Plaintiffs

Challenging Racially Discriminator

Fplorment Practices Pursuant to

U. > > me

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

and in Arlington Heights v. Metro Development

429 U.S. 252 (1977), this Court

ruled that some degree of scienter must be

Housing Corp.,

proven in equal protection actions brought

pursuant to §1 of the Fourteenth Amendment,

Whatever the wisdom of such a construction of

Section 1 of the Fourteenth Amendment, it is

undisputed that Congress possesses the power to

enact remedial legislation, aimed at discrimina-

tory practices, which dispenses with any need

to establish scienter. First, Congress may

found such a remedial statute on its obligation

to enforce the Thirteenth Amendment by eradicat-

ing all badges and incidents of slavery, includ-

Aecag practices which exclude minorities

without materially advancing legitimate employ-

ment concerns. Johnson v. Railway Express

Agency, 421 U.S. 454 (1975); see also, Runyon v.

McCrary, 427 U.S. 160 (1976); Jones v. Alfred H.

Mayer Co., 392 U.S. 409 (1968). Second, Congress

may found such a remedial statute on its power

to regulate interstate commerce. Griggs v. Duke

-9-

Power Co,, 401 U.S. 424 (1971) (Title VII of the

Civil Rights Act of 1964); Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241 (1964)

(Title II of the Civil Rights Act of 1964).

Finally, Congress may look to §5 of the Fourteenth

Amendment as a source of power to enact broad

prophylactic legislation extending beyond the

contours of strict §1 liability. Katzenbach v,.

Morgan, 384 U.S. 641 (1966); South Carolina v.

Katzenbach, 383 U.S. 301 (1966); see also,

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

Accordingly, whether one views 42 U.S.C. §1981

as a statute enacted to enforce the Thirteenth

Amendment, as a statute regulating interstate

commerce, or as a statute to enforce the Four-

teenth Amendment, Congress' power to concern

itself with the disproportionate racial impact

of a challenged practice is undisputed.

As this Court has repeatedly recognized,

however, the Civil Rights Act of 1866, of which

42 U.S.C. §1981 is a part, was premised almost

exclusively upon the Thirteenth Amendment,

McDonald v. Santa Fe Transportation Co., 427

U.S. 273 (1976); Runyon v. McCrary, 427 U.S.

160 (1976); Johnson v, Railway Express Agency,

Inc., 421 U.S. 454 (1975); Tillman v. Wheaton-

Haven Recreational Association, 410 U.S. 431

(1973); Sullivan v. Little Hunting Park, 396

-10-

U.S. 229 (1966); Jones v, Alfred H, Mayer Co,,

392 U.S. 409 (1968). Section 2 of the Thirteenth

Amendment, the Enabling Clause of that Amendment,

""clothed Congress with power to pass all laws

necessary and proper fer abolishing all badges

and incidents of slavery in the United States,'"

Jones v. Alfred H, Mayer Co,, 392 U.S. at 439

(emphasis in Jones) (citation omitted).

Moreover, Congress was given "the power under

the Thirteenth Amendment rationally to determine

what are the badges and incidents of slavery,

and the authority to translate that determination

into effective legislation,” Jones v. Alfred H,

Mayer Co,, 392 U.S. at 440. >

The 39th Congress did just that by enacting,

over President Andrew Johnson's veto, the Civil

Rights Act of 1866. In doing so, Congress

exercised its "special competence” by making

"findings with respect to the effects of identi-

fied past discrimination" and by exercising "its

discretionary authority to take appropriate

remedial measures." Regents of the University

of California v. Bakke, 47 L.Ed.2d 779 n,41

(1978) (Powell, J.). ‘he badges and incidents

of slavery found by the 39th Congress were

extensive, The legislation it enacted, the

Civil Rights Act of 1866, was all-encompassing

-ll-

with regard to racial discrimination.* Sweeping

with the broadest possible brush, the 39th

Congress focused not merely on the then-current

badges and incidents of slavery but instead

_ a — a es

sought to legislate equality by outlawing all

enumerated forms of racial discrimination,

l. The Language of 42 U.S.C. §1981 Compels

the Conclusion that Proof of Scienter ~

Is Not Required

Two aspects of the language chosen for

§1981 evidence the absence of any scienter

requirement. The first is the simple but

Significant fact that intent is nowhere mentioned

as a prerequisite for a violation of Section 1981.

The pertinent portion of Section 1981 provides:

"All persons...shall have the same right...to

make and enforce contracts...as is enjoyed by

white citizens...." This Court has consistently

declined to read qualifications or additional

requirements into the 1866 Act, and instead has

declared "'that if we are to give [the law] the

sweep that its origins dictate we must accord it

a sweep as broad as its language.'" Jones v.

Alfred H. Mayer Co., 392 U.S. 409, 437 (1968)

* 42 U.S.C. 81981 thus protects not only blacks but also

other minorities and even whites from discrimination.

McDonald v. Santa Fe Transportation Co., 427 U.S. 273

(1976).

@-12-

(brackets in original), quoting United States v.

Price, 383 U.S. 787, 801 (1966). Its broad

language does not permit the courts "to carve...

an exception" where there is none on its face.

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437

(1968). It is for this reason that this Court

has rejected attempts, such as those by defen-

dants here, to alter the plain meaning of its

broad language through "‘ingenious analytical'"

arguments, Jones v. Alfred H. Mayer Co., 392

u.S. 409, 437 (1968), or through a stilted and

"mechanical reading" of that language, McDonald

v. Santa Fe Trail Transportation Co., (27 U.S.

273, 287 (1976). And it is for this reason that

an intent requirement cannot be judicially

grafted onto this facially clear statute which

has no such requirement.

Second, the unqualified language of §1981

is less stringent than that of the comparable

language of Title VII of the Civil Rights Act

of 1964, which this Court has held not to

require proof of intentional discrimination.

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

In Title VII, §703(h), 42 U.S.C, §2000e-2(h),

appears to exempt from prohibited discrimination

the use of “any professionally developed ability

test" that is not "designed, intended or used to

" Additionally,

discriminate because of race....

-13-

§706(g), 42 U.S.C. §2000e-5(g), appears to

require as a prerequisite to any court ordered

remedies that the employer "has intentionally

engaged or is intentionally engaging in an

unlawful employment practice." This language,

however, does not require a Title VII plaintiff,

in order to prove a violation of the statute and

to obtain relief, to prove that a challenged

test or other practice has been used with an

intent to discriminate. For “good intent or

absence of discriminatory intent does not redeem

employment procedures or testing mechanisms that

operate as ‘built-in headwinds' for minority

groups and are unrelated to measuring job capa-

bility." Griggs v. Duke Power Co., 401 U.S.

424, 432 (1971). See also, Dothard v, Rawlinson,

433 U.S. 321 (1977); Albemarle Paper Co. v.

Moody, 422 U.S. 407 (1975).

Section 1981 could not be more clear on its

face: there is no intent requirement. And when

compared with a statute such as Title VII which

employs the words “intended” and "intentionally,"

but which does not trigger an intent requirement,

the totally neutral language of §1981, which

simply provides that "[a]1l persons...shall have

the same right...to make and enforce contracts

-.-as is enjoyed by white citizens," cannot be

construed to require such a showing,

-14-

YP The Legislative History of the Civil

Rights Act of 1866 Reinforces the

Absence of an Intent to Discriminate

Requirement in 42 U.S.C. §1981

The lack of ambiguity in the sweeping lan-

guage of §1981 obviates an examination of its

legislative history. Any such examination,

however, reveals that the radical 39th Congress

intended its language to be as broad as possible.

Nowhere in the congressional debates leading

to the enactment of the Civil Rights Act of 1866

is it hinted that a civil plaintiff seeking to

enforce his rights under the Act must prove that

the deprivation of his rights resulted from acts

of intentional discrimination. Rather, the

legislative history conclusively demonstrates

that Congress intended to provide practical

freedom by outlawing all forms of discrimination

against blacks.

As is reviewed in some detail in Jones v.

Alfred H. Mayer Co., 392 U.S. 409, 426-444 (1968),

nullification of the Black Codes was an important

but hardly the only objective of the 1866 Act.

The Black Codes of course had to be outlawed.

But Congress "also had before it an imposing

body of evidence pointing to the mistreatment

of Negroes." Jones v. Alfred H. Mayer Co., 392

U.S. at 427 (emphasis in original). This mis-

-15-

treatment too had to be outlawed.* Thus,

rather than enacting any of the legislative

proposals directed solely at the Black Codes,

Congress waited for ratification of the Thir-

teenth Amendment and for Senator Trumbull's

broader bill "to protect the freedman in his

rights." Cong. Globe, 39th Cong., lst Sess. at

43. Jones v. Alfred H. Mayer Co., 392 U.S. at

429-431.

Two weeks after ratification of the Thir-

teenth Amendment, Senator Trumbull, author of

the bill which became the Civil Rights Act of

1866, introduced his bill. Cong. Globe, 39th

Cong., lst Sess. at 129. He described its

objectives in sweeping terms. It was "intended"

to give effect to the Thirteenth Amendment and

to "secure for all persons within the United

States-practical freedom." Cong. Globe, 39th

Cong., lst Sess. at 474 (emphasis added). More

expansively, Senator Trumbull sought to insure

that practical freedom through a bill which

* As is recounted in Jones v. Alfred H. Mayer Co., 392

u.S. 409 (1968), "one of the most comprehensive studies

then before Congress...concluded that, even if anti-Negro

legislation were ‘repealed in all the States lately in

rebellion,' equal treatment for the Negro would not yet

be secured." 392 U.S. at 428 (footnote omitted), citing

Report of Carl Schurz, S. Exec. Doc. No. 2, 39th Cong.,

lst Sess. at 45,

-16-

would "break down all discrimination between

black men and white men." Cong. Globe, 39th

Cong., lst Sess. at 599 (emphasis added).

The opponents of Senator Trumbull's bill

did not quibble with its language. Rather, they

attacked it frontally as providing too much

equality. For example, Senator Cowan bitterly

opposed the bill because it would eliminate

differential treatment “which in any way creates

distinctions between black men and white men in

so far as their civil rights and immunities

extend." Cong. Globe, 39th Cong., lst Sess. at

603. A bill simply outlawing the Black Codes

he might have supported. "But this is not a

bill simply for the abolition of slave codes.

This is a bill for the abolition of all laws

which create distinctions between black men and

white ones." Cong. Globe, 39th Cong., lst Sess.

at 603 (emphasis added). In fact, objected

Senator Cowan, the bill sought to place blacks

and whites "upon precisely the same footing."

Cong. Globe, 39th Cong., lst Sess. at 604

(emphasis added).

Less than a month after Senator Trumbull

had introduced his bill, the Senate passed it,

Cong. Globe, 39th Cong., lst Sess. at 606-607,

The Senate did so "fully aware of the breadth

of the measure it had approved." Jones v. Alfred

olFeq

H. Mayer Co., 392 U.S. at 433.

The House was no less aware of the intended

breadth of this bill. Representative Thayer, a

proponent of the bill, spoke of the necessity of

effectuating the Thirteenth Amendment's promise

of freedom. "It is to give to it practical

effect and force.... The practical question now

to be decided is whether they shall be in fact

freemen." Cong. Globe, 39th Cong., lst Sess. at

1151 (emphasis added). Representative Cook was

equally emphatic. Being free meant the elimina-

tion of all barriers and headwinds. This bill

thus was necessary, for otherwise any "combination

of men in his neighborhood can prevent [a black

person] from having any chance to support himself

by his labor." Cong. Globe, 39th Cong., lst

Sess. at 1124.

Representatives Cook and Thayer, among other

supporters of the bill, were acutely aware that

not all forms of discrimination are direct or

readily apparent. Some forms of discrimination

may have only a discriminatory effect but are

equally objectionable. As Representative

Lawrence stated, "there are two ways in which a

State may undertake to deprive citizens of these

absolute, inherent, and inalienable rights;

either by prohibitory laws, or by a failure to

protect any one of them." Cong. Globe, 39th

-18-

Cong., lst Sess. at 1833. Representative Cook

expressed his concern about a similar but more

onerous distinction. After making his observa-

tion that a number of whites could join together

to deny a black person the opportunity to support

himself, he commented on the probable further

plight of the black person: "They can pass a

law [neutral on its face) that a man not support-

ing himself by labor shall be deemed a vagrant

and shall be sold.... Now, are these men free?

If a man can be sold as a vagrant because he

does not labor, without any inquiry as to

whether he can or cannot procure labor, is he a

freeman?" Cong. Globe, 39th Cong., lst Sess. at

1124. Echoing the same concern, Representative

Thayer asked rhetorically: "[I]f it is compe-

tent for the new-formed Legislatures of the

rebel States to enact,..laws which impair their

ability to make contracts for labor in such a

manner as virtually to deprive them of the power

of making such contracts...then I demand to know

of what practical value is the amendment abolish-

ing slavery in the United States?" Cong. Globe,

39th Cong., lst Sess. at 1151 (emphasis added),

The answer, of course, was in the bill

pending before the House. That bill, according

to Representative Cook, would require quite

simply that there "be no discrimination" on

-19-

grounds of race or color. Cong, Globe, 39th

Cong., lst Sess. at 1124 (emphasis added). When

the House passed the bill, it, like the Senate

before it, "too believed that it was approving

a comprehensive statute forbidding all racial

discrimination affecting the basic civil rights

enumerated in the Act." Jones v. Alfred H.

Mayer Co., 392 U.S. at 435 (emphasis in original).

President Andrew Johnson, believing the bill

to be as broad as its language, vetoed the legis-

lation. In his words, the bill attempted to

legislate "a perfect equality of the white and

black races." Cong. Globe, 39th Cong., lst Sess.

at 1679. Within two weeks, and with virtually

no debate, Congress overrode his veto. Cong.

Globe, 39th Cong., lst Sess. at 1809, 1861.

The legislative history of the Civil Rights

Act of 1866 is entirely unambiguous. The 39th

Congress, which was empowered to prohibit all

forms of racial discrimination, whether racially

motivated or not, sought to enact antidiscrimina-

tion legislation as broad as its §2 powers would

allow. It undisputedly thought that it had

accomplished that objective in its Civil Rights

Act of 1866.

-20-

3. There Is No Contemporary Rationale for

Imposing a Scienter Requirement on 42

Fs + § 1

Even if it were proper for this Court to

amend §1981 by engrafting a scienter requirement,

there is no contemporary rationale for imposing

such a requirement here.

The primary purpose of a scienter concept

has been to provide a barrier against the unfair

imposition of retrospective legal sanctions upon

an unsuspecting defendant. E.g., Ernst & Ernst

v. Hochfelder, 425 U.S. 185 (1976). Since the

plaintiffs herein seek solely prospective equi-

table relief and since the defendants were on

clear notice that their employment practices

raised serious issues of racial fairness, no

necessity for a scienter requirement as a barrier

to unfair retrospective legal sanctions exists

in this case.

A secondary purpose of a scienter concept

is to insure that governmental officials will

not be over-deterred from performing legitimate

functions by a fear of strict liability. E.g.,

Wood v. Strickland, 420 U.S. 308 (1975). Since

the defendants herein are engaged in employment

practices which perpetuate racial exclusion while

failing to improve the quality of the workforce,

no necessity for a scienter requirement as a

-2l-

brake on over-deterrence of legitimate activity

exists.

Given (a) the prospective equitable nature

of the relief sought; (b) the defendants’ know-

ledge of probable illegality; (c) the racially

exclusionary nature of the practices at issue;

and (d) the failure of the practices at issue

to improve job performance, no substantial

social policies would be served by imposing a

scienter obligation on plaintiffs challenging

racially exclusionary public employment practices

under 42 U.S.C. §1981.

Moreover, viewed from the perspective of a

minority applicant for employment, it matters

not at all whether the irrational* hurdle which

bars his path was constructed maliciously,

recklessly, negligently or inadvertently, since

the net result is identical--the exclusion of

racial minorities from employment by means of

tests or devices which screen out minorities

without materially aiding in the establishment

or main*enance of an effective civil service.

* The employment practices which are the subject of this

litigation are irrational because they screen out racial

minorities without improving the quality of the work force.

If the practices were rational, i.e., predictive of employ-

ment performance, no violation of §1981 can occur despite

the practices’ disproportionate racial impact.

o22e

Of course, where the issue is not the grant of

prospective relief but rather the imposition of

retrospective sanctions, the mental culpability

of a defendant may assume greater importance.

E.g., Wood v. Strickland, supra. However, where,

as here, minority plaintiffs seek prospective

relief against defendants who were on notice of

the possible illegality of their actions and who

cannot demonstrate that the practices at issue

are predictive of job performance, the case for

a scienter requirement is at its lowest ebb.

See generally, SEC v. World Radio Mission, Inc.,

544 F.2d 536 (lst Cir. 1976) [scienter not

required for 10(b) (5) prospective injunction].

@23-

B. Assuming Arguendo that 42 U.S.C. §1981

Requires Proof of Scienter, Plaintifts

Have Overwhelmingly Established Scienter

as a Matter of Law.

Even if the Court engrafts a scienter

requirement onto 42 U.S.C. §1981, any requisite

showing of scienter has been conclusively

established by plaintiffs in this case. It

must be emphasized that plaintiffs were "not

requir [ed]...to prove that the challenged

action rested solely on racially discriminatory

purposes," but only “that a discriminatory

purpose has been a motivating factor in the

decision." Arlington Heights v. Metro. Housing

Development Corp., 429 U.S. 252, 265-266 (1977)

(emphasis added); see also, Washington v. Davis,

426 U.S. 229 (1976).

The trial court, however, believing the

issue of scienter to be irrelevant under Section

1981, nevertheless made a gratuitous finding

that defendants did not act with the "willful or

conscious prupose”" of excluding blacks and

Chicanos from public employment. Finding of

Fact Number 7 in 8 FEP Cases 239, 241 (1973).

In making this finding, the trial court erred as

a matter of law by not defining the culpable

mental state applicable to defendants. The

trial court also erred in placing the burden of

-24-

persuasion on the scienter issue on plaintiffs.

This Court's decisions establish that once a

plaintiff produces evidence which indicates

that it is more probable than not that a de-

fendant has acted with improper racially discrim-

inatory purpose, the burden of producing evidence

to rebut that prima facie showing as well as the

burden of persuasion on the issue of scienter

shifts to the defendant. To the extent that

scienter is added by this Court to §1381, the

trial court's errors on culpable mental state

and burdens of proof, discussed hereafter in

sections B.2. and B.3., must be reversed as a

matter of law.

However, even assuming arguendo that plain-

tiffs were legally required to prove the highest

state of mental culpability and that plaintiffs

had not only the production burden but also the

persuasion burden, plaintiffs' proof was suffi-

ciently overwhelming for this Court to find the

trial court's Finding of Fact Number 7 "clearly

erroneous." United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948). As is set

forth hereafter, plaintiffs unquestionably

proved that a discriminatory purpose was a

motivating factor in defendants' employment

practices.

-25-

l. Plaintiffs Established a Racially

Discriminatory Purpose as a Matter

of Law.

As noted above, plaintiffs only were

required to prove that a racially discrimina-

tory purpose had been a motivating factor in

defendants' hiring practices. As Justice Powell

stated for the Court in Arlington Heights:

"Determining whether invidious discriminatory

purpose was a motivating factor demands a

sensitive inguiry into such circumstantial and

direct evidence of intent as may be available."

429 U.S. at 266. Fruitful subjects for such

circumstantial and direct evidence are not a

matter of speculation, as Justice Powell,

“without purporting to be exhaustive," specific-

ally described a number of "subjects of proper

inquiry in determining whether racially discrim-

inatory intent existed." 429 U.S. at 266-268.

Three of the "subjects of proper inquiry"

set forth in Arlington Heights are particularly

relevant to defendants' conduct in this case:

(a) The discriminatory intent of defendants’

hiring practices is “unexplainable on grounds

other than race," 429 U.S. at 266;

(b) The “historical background" of defendants'

hiring practices evidences defendants' discrimina-

tory purpose, 429 U.S. at 267; and

-26-

(c) The defendants' “departures from the

normal procedural sequence" further reveals

defendants' “improper purposes." 429 U.S. at

267.

The evidence in the record is more than

sufficient to resolve this inquiry in plain-

tiffs‘ favor as a matter of law.

@2Jo

a. The Racial Imbalance of Defen-

dants' Workforce, and the Discrim-

inatory Impact of the 1972 Written

Test Are Unexplainable on Grounds

Other than Race

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

this Court made clear that although statistics in

some instances may not be enough to prove discrim-

inatory purpose, the use of statistics showing

racial imbalance or racial impact is “not irrele-

vant." 426 U.S. at 241. Rather, a "discrimina-

tory purpose may often be inferred from the

totality of the relevant facts, including the

fact, if it is true, that the law bears more

heavily on one race than another." 426 U.S. at

242. Far from irrelevant, racial statistics

sometimes illuminate a "clear pattern" of

discrimination, “unexplainable on grounds other

than race." Arlington Heights v. Metro. Housing

Development Corp., 429 U.S. 252, 266 (1977).

In the area of employment discrimination,

workforce statistics are of primary importance

in revealing improper discriminatory purpose.

As this Court explained in International Brother-

hood of Teamsters v. United States, 431 U.S. 324

(1977):

"Statistics showing racial or ethnic

imbalance are probative in a case such

as this one only because such imbalance

is often a telltale sign of purposeful

= 2§-

discrimination; absent explanation,

it is ordinarily to be expected that

nondiscriminatory hiring practices

will in time result in a work force

more or less representative of the

racial and ethnic composition of the

population in the community from which

employees are hired." 431 U.S. at

339-340 n.20 (emphasis added).

In this case, the racial and ethnic composi-

tion of defendants' workforce is wholly unrepre-

sentative of the racial and ethnic population of

the community.* As the court of appeals below

summarized:

* Defendants have argued that population statistics are

not the best statistics for comparative purposes. Defen-

dants' argument is flawed for two reasons. First, the

“argument fails in this case" even more resoundingly than

it did in International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 339-340 n.20 (1977), because 81981,

unlike Title VII, does not contain a statutory clause mili-

tating against workforce-population comparisons. Yet, even

in Teamsters, this Court stated:

"Evidence of long standing and gross disparity

between the composition of a work force and that

of the general population thus may be significant

even though 8703(j) makes clear that Title VII

imposes no requirement that a work force mirror

the general population." 431 U.S. 324, 339-340

n.20 (1977).

Second, use of population statistics for workforce compara-

bility is as proper here as it was in Teamsters where the

jobs at issue were entry-level jobs requiring no special

qualifications. Cf., Hazelwood School District v. United

States, 433 U.S. 299 (1977).

-29-

"Despite a minority population of

approximately 29.1% in Los Angeles

County, only 3.3% of the firemen

employed by the defendants at the

time of trial were black or Mexican-

American." 566 F.2d at 1337.

Stated otherwise, although approximately 10.8%

of the general population of Los Angeles County

is black, only 9 persons in defendants' workforce

of 1,762, or .5%, were blacks. (R.136) And

although 18.3% of the general population of Los

Angeles County is Mexican-American, only 50

persons in defendants' workforce, or 2.8%, were

Mexican-Americans. (R.136) In a county with a

very sizeable and growing minority population,

96.7% of the defendants' jobs had been given to

whites. This considerable racial imbalance is

not merely a telltale sign of purposeful discrim-

ination. It is entirely unexplainable on grounds

other than race.

The second set of statistics of particular

relevance is the racial impact of the challenged

practice. "It is also not infrequently true that

the discriminatory impact...may for all practical

purposes demonstrate unconstitutionality because

in various circumstances the discrimination is

very difficult to explain on nonracial grounds."

Washington v. Davis, 426 U.S. 229, 242 (1976).

The discriminatory impact of the defendants‘

@ 30=

1972 and 1969 written tests was considerable.

As summarized by the court of appeals, in 1972,

"while 25.8% of the white applicants were among

the top 544 scorers on the test, only 5.1% of

the black applicants were included in that group."

556 F.2d at 1337. The 1969 test results were

equally startling. "Of the 244 blacks who took

the 1969 examination, 5 were hired; of the 100

Mexican-Americans, 7 were hired, while of the

1080 whites taking the test, 175 were hired.

Thus, while approximately 25% of the 1969 appli-

cants were black or Mexican-American, based on

the results of this test, only 6.4% of the hires

were minorities." 556 F.2d at 1337. Coupled

with the defendants' severely unbalanced work-

force, defendants’ use of written tests with

such a racially disparate impact is difficult

to explain on nonracial grounds.

b. The Historical Background of

Defendants' Hiring Practices Also

Reveals Discriminatory Purpose

Plaintiffs below did not rely solely on the

foregoing statistics. They also provided evi-

dence of the “historical background" of defen-

dants' practices which "reveal[ed}] a series of

official actions taken for invidious purposes."

Arlington Heights v. Metropolitan Housing Devel-

opment Corp., 429 U.S. at 267.

@3le

Not only did defendants' written tests have

a severe racially discriminatory impact, defen-

dants knew that the tests were discriminatory and

could not be shown to be job related. (P1.Ex.8)

As the evidence at trial revealed, high officials

in defendants' personnel department knew that the

written tests operated with a discriminatory

impact to exclude blacks and Mexican-Americans

from firefighter positions. (P1.Exs.7,8,9; T.R.

48-49) Moreover, defendants "conceded that no

studies establishing the validity of the written

employment tests have been conducted in accordance

with ‘professionally acceptable methods.'" 566

F.2d at 1337 n.5. But despite these admissions,

defendants knowingly and willfully continued to

use their discriminatory tests until they learned

that plaintiffs' lawsuit was about to be filed.

Defendants' use of this discriminatory

written test was not the only selection criterion

used to discriminate. Defendants also required

applicants to meet a 5'7" height requirement.

aware that this requirement had a severely dis-

criminatory impact, defendants "stipulated that

41% of the otherwise eligible Mexican-American

applicants are excluded by the requirement."

556 F.2d at 1341 (footnote omitted). Again,

defendants offered no validity studies. Instead,

Fire Chief Stanley E. Barlow, who stood only

-32-

5'8" tall, "conceded that in the past firemen

under 5'7" have been able to function without

impairment dur to their height." 556 F.2d at

1342. Despite these admissions, and despite the

clear illegality of their use of this discrimina-

tory height requirement, Dothard v. Rawlinson,

433 U.S. 321 (1977), defendants knowingly and

willfully continued their discriminatory practice.

Given this historical background, it is not

Surprising that the Los Angeles County Fire

Department was known in the minority community

as a racially discriminatory employer. (T.R.

52,134) Defendants, however, took no steps to

dispel their apparently well-earned discrimina-

tory reputation. (T.R. 194)

C. Defendants' Departure from Normal

rt rs Further Proves Improper

iminatory Purpose

Also probative of improper motives are

"(djepartures from the normal procedural sequence."

Arlington Heights v. Metropolitan Housing Develop-

ment Corp., 429 U.S. at 267. Proof here is not

limited only to procedural departures. "Substan-

tive departures too may be relevant." 429 U.S.

at 267. Although evidence of procedural or

substantive departures ordinarily is difficult

to discover, three significant departures by

defendants were proven here by plaintiffs.

-33-

Loss of 300 applications--Normally, an em-

ployer's discriminatory practices, especially a

practice such as a discriminatory height require-

ment, will have an adverse impact on minority

applicant flow "since otherwise qualified people

might be discouraged from applying because of a

self-recognized inability to meet the very

standards challenged as being discriminatory."

Cf., Dothard v. Rawlinson, 433 U.S. 321, 330

(1977). This undoubtedly was the situation here.

Yet, minorities continued to apply. Apparently

defendants were concerned that too many minorities

had applied or sought to apply. At one stage,

defendants inexplicably "lost" the names of 300

(T.R.122-

minorities who sought applications.

145, 188)

Discrimination in applicant assistance

programs--In the normal course of events, defen-

dants conducted programs designed to assist

applicants to compete for employment. However,

according to the testimony of Harold McCann, a

captain in the Los Angeles County Fire Department,

these programs were conducted exclusively for

whites, while similar programs for minority

participants were prohibited by the Fire Depart-

ment. (T.R.91-113)

Sudden hiring of numerous minority

applicants--The third and most telling departure

-34-

from past practices occurred after defendants

learned that they were about to be sued by

plaintiffs. Defendants' normal hiring practices

had virtually excluded blacks and Mexican-

Americans from employment. But, upon learning

about the instant lawsuit, defendants backpedaled

furiously. After this lawsuit was filed, defen-

dants demonstrated the depth of their past

discrimination by easily hiring minorities above

their representation in the population. (R.140-

141; T.R.48-49) Although defendants' efforts to

vedress the effects of their past discrimination

are commendable, they underscore the discrimina-

tory purposes which infected defendants' prior

hiring practices.

Even if plaintiffs bear the burden of

persuasion on the issue of scienter, the above-

described facts conclusively establish that

improper racially discriminatory purposes infected

defendants' hiring practices. Although defendants

testified that the exclusion of minorities from

the Fire Department was not purposeful, the

undisputed facts in the record make it impossible

for a fact finder to determine that defendants’

hiring practices were not in part motivated by

racially discriminatory purposes. Arlington

Heights v. Metropolitan Housing Development Corp.,

429 U.S. at 265-266.

@3$<

2. Plaintiffs Established a Sufficiently

-_

Cunpese Mental State bo Justify

Liability and Prospective Relief.

Although Amici submit that plaintiffs here

proved as a matter of law "that a discriminatory

purpose has been a motivating factor" in defen-

dants' use of discriminatory employment practices,

Arlington Heights v. Metro. Housing Development

Corp., 429 U.S. 252, 265-266 (1977) (emphasis

added), plaintiffs need not have proved as much

as they did.

In Arlington Heights and in Washington v.

Davis, 426 U.S. 229 (1976), this Court ruled

that some degree of mental culpability must be

found to establish a violation of the Equal

Protection Clause. However, in identifying a

subjective mental condition as an element of a

Fourteenth Amendment violation, this Court took

merely the first step in the process of defining

precisely the nature of the mental state which

will trigger such a violation. The Court in

Washington discussed only two possible mental

states: malicious guilt and complete innocence.

While such a bi-polar analysis may be helpful in

deciding whether scienter is required at all to

establish a constitutional violation, iit is too

simplistic to serve as a guide for determining

= 36=-

the precise mental state necessary to give rise

to such a violation. Additionally, as we have

pointed out in section A.3, supra, whatever the

proper guide may be for constitutional liability,

that guide is not necessarily appropriate for

employment defendants under 42 U.S.C. §1981.

Since §1981 has never had a scienter requirement

imposed upon it, the nature of such a require-

ment remains an open question if in fact

scienter is engrafted.

Since mental states do not neatly divide

into the extremes of the bi-polar model, it is

necessary to identify intermediate or equivalent

mental states which encompass neither malicious

guilt or complete innocence. Thus, in mapping

the contours of the good faith defense available

to government officials sued for retrospective

damages, this Court has been careful to identify

a mental state consistent with recklessness or

negligence, and to predicate liability upon it.

E.g., Wood v. Strickland, 420 U.S. 308 (1975).

Similarly, courts in the wake of Ernst & Ernst

v. Hochfelder, 425 U.S. 185 (1976), have explored

whether a mental state consistent with negligence

may form the basis for prospective equitable

relief even when negligence alone has been found

insufficient for an award of retrospective damages.

E.g., SEC v. Universal Major Industries Corp.,

o37~

546 F.2d 1044 (2d Cir. 1976); SEC v. World Radio

Mission, 544 F.2d 535 (lst Cir. 1976). Indeed,

Ernst & Ernst v. Hochfelder, supra, itself

reserved the question of whether a state of mind

consistent with recklessness would give rise to

a 10(b) (5) action for retrospective damages.

425 U.S. at 194 n.12. Similarly, the extent to

which mental states consistent with recklessness

and negligence provide sufficient culpability to

warrant a conviction of varying degrees of

homicide have been the subject of intense study.

E.g., Perkins, The Criminal Law 61 (1957); Michael

and Wechsler, A Rationale of the Law of Homicide,

37 Col.L.Rev. 701 (1937); Wechsler, Codification

of the Criminal Law in the United States: The

Model Penal Code, 68 Col.L.Rev. 1425 (1968).

Finally, the law of torts has systematically

explored mental states lying on a continuum from

willful intent to total inadvertence in an

attempt to determine the requisite mental condi-

tion upon which to predicate liability. In

fact, the negligence standards of tort liability

in some instances have been adopted in whole as

applicable to determining liability under 42

U.S.C. §1983. Thus, in Monroe v. Pape, 365

U.S. 167 (1961), the Court rejected a standard

under 42 U.S.C. §1983 requiring proof of "the

doing of an act with ‘a specific intent to

-38-

deprive a person of a federal right,'" because

the word "'willfully' does not appear in [§1983]"

and because §1983 is not a "criminal law" but

rather only “provides a civil remedy." 365 U.S.

at 187. Accordingly, §1983 “should be read

against the background of tort liability that

makes a man responsible for the natural conse-

quences of his actions." 365 U.S. at 187.*

Just as courts have been compelled to iden-

tify and determine the legal consequences of

intermediate or equivalent mental states in areas

of the law as divergent as tort liability,

securities regulation, and homicide, so must this

Court confront the forseeable consequences test

and the intermediate or equivalent mental states

such as recklessness, negligence, gross disregard

* This forseeable consequences test has been widely applied

in school desegregation cases. Most recently, Judge Wisdom,

writing for the court in United States v. Texas Educational

Agency, 564 F.2d 162 (5th Cir. 1977), held that “discrimina-

tory intent may be inferred from...acts that had forseeable

discriminatory consequences." 564 F.2d at 168; see generally,

564 F.2d at 165-170. For other applications of the forsee-

able consequences test, see, United States v. Schcol District

of Omaha, 521 F.2d 530, 535-536 (8th Cir.), cert. denied, 423

U.S. 946 (1975); Morgan v. Kerrigan, 509 F.2d 580, 588 (lst

Cir. 1974), cert. denied, 421 U.S. 963 (1975); Oliver v.

Michigan State Board of Education, 508 F.2d 178, 181-182 (6th

Cir. 1974), cert. denied, 421 U.S. 963 (1975); Bradley v.

Milliken, 484 F.2d 215, 222 (6th Cir. 1973), aff'd in relevant

part, 418 U.S. 717, 738 n.18 (1974).

-39-

and deliberate indifference in the context of

§1981, assuming this Court imposes a scienter

requirement on §1981. Given the facts of this

case, no reasonable finder of fact could fail to

find that defendants, at best, not only foresaw

the consequences of their acts but also acted

with recklessness, deliberate indifference of,

and gross disregard for the discriminatory

effects of their non job related practices on

racial minorities. Such a culpable mental

state is more than sufficient to found prospect-

ive relief.

Amici submit that defendants' negligence

in gratuitously inflicting harm on minority

applicants should constitute a sufficiently

culpable mental state to found prospective

liability under §1981. Where, as here, de fen-

dants'* culpability far exceeds negligence,

constituting instead reckless disregard and

deliberate indifference, the district court was

authorized and, indeed, obligated to enter

effective prospective relief disestablishing

racially exclusionary hiring practices.

-40-

3. The District Court Erred in Allocating

the Burden of Proof on the Issue of

Scienter.

Amici have argued in Point A, Supra, that

the legislative history and Thirteenth Amendment

ancestry of 42 U.S.C. §1981 render it extremely

unlikely that Congress intended to burden freed-

men seeking prospective relief against racially

exclusionary employment practices with a scienter

requirement. However, if this Court determines

that the district court lacked power to issue

prospective relief in the absence of some degree

of mental culpability, this Court must begin the

task of defining and allocating the burdens of

proof* on the issue of scienter.** In criminal ©

cases, the Due Process Clause governs the allo-

cation and size of the persuasion burden,

leaving to the courts substantial latitude in

allocating the production burden. E.g., Davis

v. United States, 160 U.S. 469 (1895) (production

burden on insanity on defendant; persuasion

* amici use the term “burdens of proof" to include the

burden of production and the burden of persuasion. See

generally, J. Thayer, A Preliminary Treatise on Evidence

at the Common Law, 355-59 (1898); James, Burdens of Proof,

49 Va.L.Rev. 51 (1961).

** Amici have discussed the precise nature of the culpable

mental states necessary to establish a §1981 violation in

sections B.1l. and B.2., supra.

-4l-

burden on prosecution). See generally, In re

Winship, 397 U.S. 358 (1969); Mullaney v.

Wilbur, 421 U.S. 624 (1975); Patterson v. New

York, 432 U.S. 197 (1977). In many civil con-

texts, the legislature has directed a given

allocation of the production and persuasion

burdens. In most cases, however, the courts

retain substantial latitude in choosing the

size and allocation of both production and

persuasion burdens. E.g., James, Burdens of

Proof, 47 Va.L.Rev. 51 (1961); Cleary, Presuming

and Pleading: An Essay on Juristic Immaturity,

12 Stan.L.Rev. 5 (1959). Although the court

below did not explicitly allocate burdens of

proof, it appeared to assume that both the pro-

duction and persuasion burdens on the scienter

issue rested with the plaintiffs. Such an

assumption was erroneous.*

Modern analysis reveals that the allocation

and size of the burdens of proof in a civil case

are governed by two factors: (1) relative ease

of access to the evidence; and (2) the degree of

error displacement which the legal system wishes

to impose on a given fact-finding process. See,

* As Amici have shown in section B.1l, Supra, even under

such an erroneous view of the burdens of proof, plaintiffs

established discriminatory purpose as a matter of law.

@42e

e.g., Underwood, The Thumb on the Scale of

Justice: Burdens of Persuasion in Criminal Cases,

86 Yale L.J. 1299 (1977); McBaine, Burden of

Proof: Degrees of Belief, 32 Cal.L.Rev. 242

(1944). Whether one approaches the issue of

proof of scienter in an employment discrimination

case from the perspective of relative ease of

access to the evidence or from the perspective

of displacement of error, the burdens of proof

should, in large part, be borne by the defendant.

First, as this Court noted in Arlington

Heights v. Metro. Housing Development Corp.,

Supra, proof of purposeful racial animus is a

difficult task. The subjective motivation of

actors in our legal system has consistently

proven an elusive and baffling quarry. Cf.,

Screws v. United States, 325 U.S. 91 (1945).

Moreover, the difficulty of establishing a state

of mind is exacerbated when the particular

mental state is morally repugnant. Put bluntly,

subjective bigotry is uniquely difficult to

prove precisely because bigots are not encouraged

to advertise their true feelings and, indeed,

may not even consciously recognize the racially

tinged roots of their behavior. If, however,

this Court directs the lower courts to embark

upon a search for such an elusive subjective

phenomenon, no doubt exists that defendants

-43-

enjoy far greater access to the relevant proof

than do plaintiffs. Proof concerning the

existence of neutral justifications for racially

exclusionary employment practices will rarely,

if ever, be available to a plaintiff, but will be

routinely available to a defendant.

Second, it is, of course, a truism to note

that to the extent our legal system errs in the

area of racially unfair hiring practices, it

should err on the side of their prospective

disestablishment of unfair practices. Thus, if

error is to be displaced, it should be displaced

in favor of ending racially exclusionary hiring

practices which do not materially contribute to

the effeciency of the work force. Traditionally,

our legal system has effected such a displacement

of error by carefully allocating and defining the

burden of persuasion. See generally, Underwood,

The Thumb on the Scale of Justice, supra; Morse,

Evidentiary Lexicology, 59 Dick.L.Rev. 86 (1954);

cf., Patterson v. New York, 432 U.S. 197 (1977);

Castaneda v. Partida, 430 U.S. 482 (1977); In re

Winship, 397 U.S. 358 (1969).

Given the powerful arguments in favor of

imposing both burdens of proof on the scienter

issue on a §1981 defendant, it would be reason-

able to require a §1981 defendant to bear both

the production and persuasion burdens. However,

-44-

Amici believe that the purposes of §1981 may be

served by the less dramatic alldcation suggested

by this Court in Castaneda v. Partida, 430 U.S.

482 (1977). Under such an allocation, §1981

plaintiffs would bear the production burden on

the issue of scienter. Once such a production

burden were satisfied, however, the persuasion

burden would be borne by the defendant. *

a. The Nature of Plaintiffs'

Production Burden

Orthodox evidentiary analysis defines a

production burden as the obligation to produce

evidence from which a reasonable finder of fact

may determine that the contested fact (scienter)

is more likely than not to exist.** Where, as

* A similar judge-made bifurcation of the production and

persuasion burdens exists in most jurisdictions with respect

to the insanity defense. Criminal defendants bear a produc-

tion burden on the issue of sanity. However, once such a

production burden is met, the state bears the persuasion

burden. E.g., Davis v. United States, 160 U.S. 469 (1895).

** Recent analysis has argued that the production burden is

not a fixed quantum of evidence, but rather varies as a func-

tion of the persuasion burden. McNaughten, Burden of Produc-

tion of Evidence: A Function of a Burden of Persuasion, 68

Harv.L.Rev. 1382 (1955). See United States v. Taylor, 464

F.2d 240 (2d Cir. 1972); United States v. Melillo, 275 F.Supp.

314 (E.D.N.Y. 1967). However correct such an approach may be

as a matter of pure logic, Amici have described the production

burden as a fixed concept, first, because substantial persua-

sion burden consequences turn on its satisfaction. Since the

allocation of the persuasion burden to the defendant is trig-

gered by satisfaction. of the production burden, Amici deem it

appropriate to adopt the concept of a fixed production burden.

United States v. Feinberg, 140 F.2d 592 (2d Cir. 1944) (per

Learned Nand).

-45-

here, plaintiffs have demonstrated, first, that

defendants' employment practices acted to exclude

blacks and Chicanos from the work force and,

second, that the practices were not materially

effective in establishing or maintaining an

efficient work force, an inference of scienter

may be drawn by a reasonable finder-of-fact.

Washington v. Davis, 426 U.S. at 253 (Stevens,

J., concurring opinion). See, United States v.

Texas Educ. Agency, 564 F.2d 162, 165-170 (5th

Cir. 1977) (defendants in a school desegregation

case are presumed to intend the natural conse-

quences of their acts@ citing Monroe v. Pape,

supra. Accordingly, plaintiffs have clearly

satisfied their production burden.* Castaneda

v. Partida, 430 U.S. 482 (1977).

b. The Nature of the Defendants'

Persuasion Burden

The persuasion burden instructs the finder

of fact as to the proper disposition of doubtful

cases. Where, as here, a plaintiff seeking

prospective relief has come forward with evidence

from which a reasonable finder of fact may infer

purposeful racial discrimination, doubts should

be resolved in favor of the plaintiff. Such a

* Not only have plainti fs satisfied a production burden,

they have produced sufficient evidence of racially discrim-

inatory purpose to satisfy a persuasion burden as well.

See, section B.1l., supra.

-46-

resolution maximizes the prospective disestab-

lishment of racially unfair practices, without

saddling a defendant with retrospective liability.

Thus, Amici suggest, a finder-of-fact should be

instructed to find for a plaintiff in a §1981

action seeking prospective relief unless the

defendants persuade the finder of fact that it

is more likely than not that scienter did not

exist.*

c. Castaneda.v. Partida is an Example

of the Proper Allocation of

Burdens of Proof

In Castaneda v. Partida, supra, a habeas

corpus petitioner challenged the constitutional-

ity of the Grand Jury selection process in

Hildago County, Texas, alleging that Mexican-

Americans were substantially underrepresented

on the panels. As the decisions of this Court

made clear, in order to prevail, the petitioner

was obliged to demonstrate the intentional exclu-

sion of racial minorities from the Grand Jury

process. Thus, the issue of scienter was squarely

posed.

* As noted in section B.1l., infra, defendants' evidence

is inadequate to meet the slightest of burdens of persua-

sion and, in fact, is wholly insufficient to rebut plain-

tiffs' showing of purposeful discrimination, even if

plaintiffs are found to have the burden of persuasion on

the issue of scienter.

=4 Fo

In support of his contention, the petitioner

in Castaneda produced statistical evidence

demonstrating that while Hidalgo County was 79

percent Mexican-American, minority representation

on Grand Jury panels approximated only 40 percent.

This Court found that such evidence of dispropor-

tionate racial impact satisfied petitioners’

production burden on the issue of scienter.

Respondents in Castaneda produced virtually

no evidence tending to rebut the inference of

scienter which flowed from petitioner's statis-

tics. Under such circumstances, this Court

reversed a finding of fact by the trial court

that scienter did not exist. Although this Court

did not explicitly describe its allocation of

the persuasion burden in Castaneda, its action

in reversing the district court's finding of

fact reveals thatthe persuasion burden was allo-

cated to the respondent. If the persuasion

burden were deemed to rest with petitioner in

Castaneda, this court's reversal could be explained

only by a finding that, based on petitioner's

statistics, no reasonable finder of fact could

fail to find that it was more probable than not

that scienter existed. While such a reading of

Castaneda is possible, it is a highly strained

one. If, however, the persuasion burden is

deemed to rest with the respondents in Castaneda,

-48-

this Court's reversal is explained by a finding

that, given respondents' total failure to

present rebuttal evidence, no reasonable finder

of fact could find that it was more probable

than not that scienter did not exist.

d. Defendants Failed, as a Matter of

Law, To Satisfy a Persuasion

Burden on the Issue of Scienter

Under an appropriately allocated persuasion

burden, defendants must establish that it is

more likely than not that no culpable mental

state existed. Unlike the defendants in

Washington v. Davis, supra, the defendants here-

in have come forward with no evidence tending to

negate the existence of a culpable mental state.

426 U.S. at 235, 246.

In Washington, the defendants first coun-

tered the discriminatory effect of their test by

proving that it was "directly related to the

requirement of the police traini =.g program and

that [there was] a positive relationship

between the test and training course perform-

ance." 426 U.S. at 250. More importantly,

however, the Washington defendants had for years

"systematically and affirmatively sought to

enroll black officers." 426 U.S. at 235. These

efforts had produced a 44% black work force, a

workforce representation which was "roughly

-49-

equivalent" to black population in defendants’

recruitment area. 426 U.S. at 235. These

efforts also produced years of new recruit

classes which also were 44% black. 426 U.S. at

235.

The record in the instant case could not be

more dissimilar from that in Washington. First,

defendants here "conceded that no studies

establishing the validity of the written employ-

ment tests have been conducted in accordance

with 'professionally acceptable methods.'" 566

F.2d at 1337 n.5. Since there were no studies

correlating the test's relationship with job

performance or with training performance, the

court of appeals below quite properly noted

that "defendants' proof not only is insufficient

under Griggs, but also falls far short of the

quality and quantity of proof offered in Washing-

ton." 566 F.2d at 1341 n.13. Moreover, defen-

dants here had not undertaken systematic affirma-

tive efforts to enroll minority firefighters,

as was the case in Washington, 426 U.S. at 235.

Instead, their discriminatory practices resulted

in only a trickle of black and Mexican-American

employees, and produced a workforce of only 3.3%

black and Mexican-American firefighters at the

time of trial. 566 F.2d at 1337.

-50-

The absence of any good faith efforts by

defendants here is further illustrated by the

historical background of defendants' practices

(including their knowing use of their discrimi-

atory and unvalidated written test, and their

knowing use of their discriminatory and unvalid-

ated 5'7" height requirement), as well as by

their departures from normal procedures (includ-

ing their loss of the names of 300 minority

applicants and their prohibition against conduct-

ing application programs which included minority

applicants while conducting such programs for

whites). While a smoking gun, of course, is

unnecessary, plaintiffs' evidence at trial was

so strong that Fire Chief Barlow himself admitted

that defendants had engaged in intentional

discrimination. (R.T.187-188)

The evidence of purposeful discrimination

is so strong in this case that plaintiffs' proof

is sufficient to carry a burden of persuasion

on the issue of scienter. Given the allocation

of the burden of persuasion suggested by Amici

and by this Court's decision in Castanea, how-

ever, it seems beyond question that no reasonable

finder of fact on this record could find that

the requisite scienter did not exist.

Accordingly, Amici urge this Court to follow

its practice in Castaneda and to reverse the

-5l-

district court's Finding of Fact on the scienter

issue. At a minimum, however, the issue should

be remanded for fresh findings of fact under an

appropriately allocated burden of persuasion

and with guidance as to the mental states under

which prospective relief can be granted under

§1981.

A

-52-

CG. The Affirmative Hiring Order Imposed To

Remedy Defendants’ Past Discrimination

Is Constitutionally Permissible If Not

Constitutionally Required

More than a decade ago, speaking of the

remedial powers of the federal courts, this

Court stated that a “court has not merely the

power but the duty to render a decree which

will so far as possible eliminate the discrimi-

natory effects of the past as well as bar like

discrimination in the future." Louisiana v.

United States, 380 U.S. 145, 154 (1965) (empha-

Sis added). Where past discrimination is found,

a district court's "task is to correct, by a

balancing of the individual and collective

interests, the condition that offends" the law.

Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1, 16 (1971) (emphasis added).

Nowhere have these maxims, requiring

affirmative relief to overcome the effects of

past discrimination, been more applicable and

more widely applied than in employment discrim-

ination litigation. See, e.g., Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976). In

innumerable instances, the affirmative relief

required or approved by the federal courts has

encompassed numerical hiring ratios and goals

to overcome the effects of past discrimination.

See, e.g., Bridgeport Guardians v. Bridgeport

Civil Service Commission, 482 F.2d 1333 (2d Cir.

@§3-

1973) (where the affirmative relief imposed

under 42 U.S.C. §1981 and §1983 established an

ultimate goal, required future minority appli-

cants to be placed in a separate minority pool,

required 50% of the next ten vacancies to be

filled from the minority pool, required 75% of

the next twenty vacancies to be filled from the

minority pool, and required 50% of the vacancies

thereafter to be filled from the minority pool

until the goal was reached), and Carter v.

Gallagher, 452 F.2d 327 (8th Cir.) (en banc),

cert. denied, 406 U.S. 950 (1972) (where the

affirmative relief imposed under §1981 estab-

lished a goal and required 33% of the future

hires to be minority until the goal was attained),

both of which were cited with approval by Mr.

Justice Powell in his separate opinion in

Regents of the University of California v.

Bakke, 57 L.Ed.2d 750, 778 (1978) (Powell, J.).

See also, the cases cited by Mr. Justice

Brennan, writing for himself and for Justices

White, Marshall, and Blackmun, 57 L.Ed.2d at

811 n.28 (Brennan, J.).*

* The courts of appeals in nine circuits have ordered

or approved race conscious numerical measures to remedy

past discrimination or minority underutilization in

employment.

FIRST CIRCUIT: Associated General Contractors of Mass.,

Inc. v. Altschuler, 490 F.2d 9 (lst Cir. 1973), cert.

denied, 416 U.S. 957 (1974); Boston Chapter, NAACP, Inc.

v. Beecher, 504 F.2d 1017 (lst Cir. 1974), cert. denied,

-54-

The judicial imposition of ratios and goals

in order to remedy past discrimination was spe-

cifically approved by five members of this Court

in Regents of the University of California v.

Bakke, supra. In Bakke, Mr. Justice Powell

unequivocally affirmed that after findings of

discrimination have been made, "the governmei.cal

interest in preferring members of the injured

groups at the expense of others is substantial."

57 L.Ed.2d at 782 (Powell, J.). He continued:

"In such a case, the extent of the

injury and the consequent remedy will

have been judicially...defined. Also,

the remedial action usually remains

subject to continuing oversight to

assure that it will work the least

421 U.S. 910 (1975);

SECOND CIRCUIT: Rios v. Enterprise Association Steam-

fitters Local 638, 501 F.2d 622 (2d Cir. 1974); Bridge-

port Guardians, Inc. v. Bridgeport Civil Service

Commission, 482 F.2d 1333 (2d Cir. 1973); United States

v. Wood Lathers Local 46, 471 F.2d 408 (2d Cir.), cert.

denied, 412 U.S. 939 (1973);

THIRD CIRCUIT: Erie Human Relations Commission v. Tullio,

493 F.2d 371 (3d Cir. 1974); Contractors Association v.

Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied,

404 U.S. 854 (1971);

FOURTH CIRCUIT: Sherrill v. J.P. Stevens & Co., 551 F.2d

308 (4th Cir. 1977);

FIFTH CIRCUIT: NAACP v. Allen, 493 F.2d 614 (5th Cir.

1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974)

(en banc), cert. denied, 419 U.S. 895 (1974); Local 53,

Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969);

SIXTH CIRCUIT: EEOC v. Detrdéit Edison Co., 515 F.2d 301,

317 (6th Cir. 1975), vac'd and rem'd on other grounds,

431 U.S. 951 (1977); United States v. Masonry Contractors

Association, 497 F.2d 871, 877 (6th Cir. 1974); United

-55-

possible harm to other innocent

persons competing for the benefit."

57 L.Ed.2d at 782 (Powell, J.).

Mr. Justice Powell also, of course, cited with

approval not only Bridgeport and Carter, where

judicially imposed numerical ratios and goals

had been premised upon findings of past discrim-

ination, but also cases such as Contractors

Association of Eastern Pa. v. Secretary of Labor,

442 F.2d 159 (3d Cir.), cert. denied, 404 U.S.

854 (1971), and Associated General Contractors

of Massachusetts, Inc. v. Altschuler, 490 F.2d

9 (lst Cir. 1973), cert. denied, 416 U.S. 957

(1974), where administratively imposed numerical

ratios and goals had been premised not upon

findinas of past discrimination but only upon

States v. Local 212, IBEW, 472 F.2d 634, 636 (6th Cir. 1973) ;

Sims v. Local 65, Sheet Metal Workers, 489 F.2d 1023,

1037 (6th Cir. 1973); United States v. Local 38, IBEW,

428 F.2d 144, 149 (6th Cir.), cert. denied, 400 U.S. 943

(1970);

SEVENTH CIRCUIT: United States v. Chicago, 549 F.2d 415

(7th Cir. 1977), cert. denied, 434 U.S. 875 (1978);

Crockett v. Green, 534 F.2d 715 (7th Cir. 1976); Southern

Illinois Builders Association v. Ogilvie, 471 F.2d 680

(7th Cir. 1972);

EIGHTH CIRCUIT: United States v. N.L. Industries, Inc.,

479 F.2d 354 (8th Cir. 1973); Carter v. Gallagher, 452

F.2d 327 (8th Cir.) (en banc), cert. denied, 406 U.S.

950 (1972);

NINTH CIRCUIT: United States v. Ironworkers Local 86,

443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984

(1971).

-56-

determinations of minority underutilization.

57 L.Ed.2d at 778 (Powell, J.).*

* To be sure, there has been extensive past discrimina-

tion in the building trades. But the constitutionality

of executive order affirmative action requirements has

been premised not upon findings of past discrimination

but rather upon determinations of minority underrepre-

sentation. In Contractors Association of Eastern Pa. v.

Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied,

404 U.S. 854 (1971), the court held that statistical

evidence “revealing the percentages of utilization of

minority group tradesmen in the six trades compared with

the availability of such tradesmen in the five-county

area, justified the issuance of the order without regard

to a finding as to the cause of the situation.... A

finding as to the historical reason for the exclusion of

available tradesmen from the labor pool is not essential

for federal contractual remedial action." 442 F.2d at

177. A similar decision was reached in Associated General

Contractors of Massachusetts, Inc. v. Altschuler, 490 F.2d

9 (lst Cir. 1973), cert. denied, 416 U.S. 957 (1974),

where the court upheld the constitutionality of a numerical

hiring order which had been imposed under a state executive

order designed not to remedy past discrimination but only

to redress minority underrepresentation. 490 F.2d at

13, 14, & 19. Gratuitously, if not as an afterthought,

the court of appeals observed "that past racial discrimi-

nation in Boston's contruction trades is in large part

responsible for the present racial imbalance." 490 F.2d

at 21.

Similar decisions have upheld the constitutionality

of the 10% set aside for minority business enterprises

in 8103(f£) (2) of the Public Works Employment Act of 1977,

42 U.S.C, 86705(f) (2), despite the fact that the 10% set

aside was premised not on findings of past discrimination

but only upon statistical evidence of minority enterprise

underrepresentation. For example, in the first post-Bakke

decision on the 10% set aside, the Court of Appeals for

the Second Circuit upheld the 10% set aside as constitu-

tional while observing that "the absence of such a finding

@§7-

Mr. Justice Brennan, writing for himself

and for Justices White, Marshall and Blackmun,

presented an even more expansive view of the

constitutional appropriateness of race conscious

preferential remedies. In his view, not only

may such remedies be imposed on government

employers by the courts but governments volun-

tarily “may adopt race conscious programs

designed to overcome substantial, chronic

minority underrepresentation where there is

reason to believe that the evil addressed is a

product of past racial discrimination." 57

L.Ed.2d at 819 (footnote omitted) (Brennan, J.).

The past discrimination being remedied need not

be that of a specifically identified employer;

rather, the past discrimination may be "its own

or that of society's at large." 57 L.Ed.2d at

820-821 (Brennan, J.).

Where the past discrimination being remedied

is not that of society at large but rather that

of a specific employer judicially determined to

have engaged in discriminatory practices, judi-

cially imposed numerical relief is not only

constitutionally permissible but also equitably

necessary. As the Fifth Circuit recently observed,

in a post-Bakke decision approving its pre-Bakke

lof past discrimination] in the [legislative history] is

not determinative. Fullilove v. Kreps, F.2d ,

(2d Cir., Sept. 22, 1978) (No. 78-6011, Slip Op. at 4830).

= ;=

imposition of numerical hiring relief: "The

Bakke decision should not be viewed as a con-

trary decision of law applicable to the issue

of the constitutionality of affirmative hiring

relief, but as a decision reaffirming the

equitable power of federal courts to remedy the

effects of unconstitutional acts through race-

conscious means." Morrow v. Dillard, F.2d

P , 47 U.S.L.W. 2233, 2234 (5th Cir.,

Sept. 29, 1978) (approving affirmative relief

which required the employer to offer appointment

first to every black applicant who met the

minimal qualifications necessary for employment).

The judicially imposed numerical relief

at issue in the instant case, of course, was not

intended to remedy the past discrimination of

society at large. Rather, the community-repre-

sentation goal and the 1:1:3 hiring ratio (l

black and 1 Mexican-American to be hired for

every three whites hired)* were imposed to

remedy the government employer's own longstanding

* There of course is no issue in this case about whether

affirmative relief should extend to unqualified members

of the victimized group. The court of appeals below

emphasized that “while it should be obvious to all, we

nevertheless repeat the admonition that nothing said

by this Court is to be taken as a requirement that the

defendants hire any unqualified applicant for the

performance of these essential jobs." 566 F.2d at

1344. 59

discrimination. In view of defendants' past

practices, this affirmative relief may be

inadequate. It certainly is less far reaching

than the hiring relief approved in Morrow v.

Dillard, supra; in Bridgeport Guardians, Inc,

v. Bridgeport Civil Service Commission, supra;

and even in International Brotherhood of Team-

sters v. United States, 431 U.S. 324, 330 n.4

(1977) .*

Regardless, the less far reaching affirma-

tive relief imposed here is fully consistent

with the forms of affirmative relief approved

by a majority of this Court in Bakke. Given

defendants’ past practices resulting in the

employment of a workforce which was only 3.3%

minority in a community which was 29.1% minority

several years before trial and which shortly

will be 40% minority, "there is a sound basis

for concluding that minority underrepresentation

is substantial and chronic," 57 L.Ed.2d at 816

(Brennan, J.), and "there are no practical

* In Teamsters, this Court addressed the difficult issue

of applying remedies to current employees bound by

seniority agreements, Not disturbed was the relatively

simple 1:1 hiring formula for new employees. Under that

formula, "the company obligated itself to hire one Negro

or Spanish-surnamed person for every white person hired

at any terminal until the percentage of minority workers

at that terminal equaled the percentage of minority group

members in the population of the metropolitan area sur-

rounding the terminal.” International Brotherhood of

Teamsters v. United States, 431 U.S. 324, 330 n.4 (1977).

-60-

means by which [defendants] could [overcome the

effects of their past practices] in the forsee-

able future without the use of race-conscious

measures," 57 L.Ed.2d at 825 (Brennan, J.).*

And, given the judicial findings of past discrim-

ination, the numerical remedy "preferring members

of the injured groups at the expense of others”

is entirely appropriate "since the legal rights

of the victims must be vindicated." 57 L.Ed.2d

at 782 (Powell, J.).

The fact that the 1:1:3 hiring ratio was

imposed only after due consideration by a

federal court gives even greater constitutional

credence to the appropriateness of the remedy.

The federal courts, in the cases before them,

unquestionably have "the authority and capability

to establish, in the record, that the classifica-

tion is responsive to identified discrimination."

57 L.Ed.2d at 783 (Powell, J.). Especially given

their duty to remedy past discrimination, Louisi-

ana v. United States, supra, they are unparalleled

as jurisdictionally "competent to make those

decisions." 57 L.Ed.2d at 783 (Powell, J.).

* The near total exclusion of minorities from the

defendants' workforce compels this conclusion. As the

court of appeals below observed, "an accelerated hiring

-order is the only way ‘to overcome the presently existing

effects of past discrimination within a reasonable period

of time.'" 566 F.2d at 1344 (emphasis added).

@6j<

"Also, the remedial action...remains subject to

continuing oversight to assure that it will work

the least harm possible to other innocent per-

sons competing for the benefit." 57 L.Ed.2d at

782 (Powell, J.). As Mr. Justice Brennan

observed, "claims of rival groups, although

they may create thorny political problems,

create relatively simple problems for the

courts." 57 L.Ed.2d at 815, n.35 (Brennan, J.).

In view of defendants’ historically

exclusionary practices, the court-imposed

affirmative remedy not only is constitutionally

permissible but is equitably necessary.

CONCLUSION

For the foregoing reasons, the judgment of

the Court of Appeals for the Ninth Circuit should

be affirmed.

Dated: New York, New York

November 1, 1978

Respectfully submitted,

BRUCE J. ENNIS

BURT NEUBORNE

E. RICHARD LARSON

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

FRED OKRAND

PAUL HOFFMAN

ACLU of Southern California

633 South Shatto Place

Los Angeles, California 90005

Attorneys for Amici Curiae

-62-