motion to affirm — Personnel Administrator of Mass. v. Feeney

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Supreme Court of the United States.

OcroBer TERM, 1978.

No. 78-233.

PERSONNEL ADMINISTRATOR OF THE

COMMONWEALTH OF MASSACHUSETTS Er At.,

APPELLANTS,

HELEN B. FEENEY,

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS.

MOTION TO AFFIRM.

RicHARD P. WarRD

STEPHEN B. PERLMAN

ELEANOR D. ACHESON

JoHN H. Mason

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

JOHN REINSTEIN

MASSACHUSETTS CiviL LIBERTIES

UNION FOUNDATION

68 Devonshire Street

Boston, Massachusetts 02109

(617) 742-8040

Attorneys for the Appellee

Supreme Court; U.

FILED

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

LF |

Table of Contents.

Question presented 2

Statement 2

Argument 5

I. The district court correctly found that the ex-

clusion of women from civil service positions

was intentional and purposeful 5

A. The devastating impact on women’s em-

ployment opportunities 6

B. The non-neutral selection procedure

C. The inevitability of the exclusionary im-

pact on women 9

II. The district court correctly applied the

standard of judicial scrutiny appropriate for re-

view of a statute that discriminates against

women ll

Conclusion 15

Table of Authorities Cited.

CASES.

Akins v. Texas, 325 U.S. 398 (1945) 7

Anthony v. Commonwealth of Massachusetts, 415 F.

Supp. 485 (D. Mass. 1976) 3, 6, 8, 9, 12, 13, 14

Arthur v. Nyquist, 573 F. 2d 134 (2d Cir. 1978) 10

Califano v. Goldfarb, 430 U.S. 199 (1977) 5n, 12, 13

Califano v. Webster, 430 U.S. 313 (1977) 12

Castaneda v. Partida, 430 U.S. 482 (1977) 5n, 7

ii TABLE OF AUTHORITIES CITED.

Craig v. Boren, 429 U.S. 190 (1976) 12

Eubanks v. Louisiana, 356 U.S. 584 (1958)

Feeney v. Commonwealth of Massachusetts, 451 F.

Supp. 143 (D. Mass. 1978) 4,5, 6, 7, 8, 9, 10 et seq.

Frontiero v. Richardson, 411 U.S. 677 (1973) 6, 12

Kahn v. Shevin, 416 U.S. 351 (1974) 5n

Keyes v. School District No. 1, Denver, Colo., 413

U.S. 189 (1973) 9,10

Monroe v. Pape, 365 U.S. 167 (1961) 10

NLBB v. Great Dane Trailers, 388 U.S. 26 (1967) 7

Reed v. Reed, 404 U.S. 71 (1971) 12

Regents of University of California v. Bakke, ____ U.S.

__, 98 S. Ct. 2733 (1978) 5n, 13

Sangmeister v. Woodard, 565 F. 2d 460 (7th Cir.

1977), appeal dismissed and cert. denied sub nom.

Illinois State Board of Elections v. Sangmeister, ___

U.S.___, 98 S. Ct. 1516 (1978) 7

Schlesinger v. Ballard, 419 U.S. 498 (1975) 12

Snowden v. Hughes, 321 U.S. 1 (1944) 7

Stanton v. Stanton, 421 U.S. 7 (1975) 12

United States v. Board of School Commissioners of

the City of Indianapolis, 573 F. 2d 400 (7th Cir.

1978) lln

United States v. School District of Omaha, 565 F. 2d

127 (8th Cir. 1977), cert. denied, ___ U.S. __., 98

S. Ct. 1240 (1978) 10

United States v. Texas Education AGency, 564 F. 2d

162 (5th Cir. 1977) 10

Washington v. Davis, 426 U.S. 229 (1976) 4, 5, 6, 7,

8, 9, 10 et seq.

TABLE OF AUTHORITIES CITED.

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164

(1972)

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourteenth Amendment

28 U.S.C. § 1253

42 U.S.C. § 1983

Mass. Gen. Laws c. 31, § 23 (1971)

MISCELLANEOUS.

Rules of the Supreme dour of the United States,

Rule 16

iii

In the

Supreme Court of the United States.

OcrosBer TERM, 1978.

No. 78-233.

PERSONNEL ADMINISTRATOR OF THE

COMMONWEALTH OF MASSACHUSETTS e€r At.,

APPELLANTS,

HELEN B. FEENEY,

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS.

MOTION TO AFFIRM.

Pursuant to Rule 16 of the Rules of this Court, Helen B.

Feeney moves that the judgment of the United States District

Court for the District of Massachusetts be affirmed.

Question Presented.

Does Mass. Gen. Laws c. 31, § 23, which bars women from

civil service positions by granting a permanent and absolute

preference to veterans, violate the Fourteenth Amendment to

the Constitution of the United States?

Statement.

This is a direct appeal under 28 U.S.C. § 1253 from the final

judgment and order of a three-judge district court in the

United States District Court for the District of Massachusetts

holding that Massachusetts’ absolute preference of veterans for

civil service employment violates the Equal Protection Clause

of the Fourteenth Amendment and enjoining the enforcement

of Mass. Gen. Laws c. 31, § 23 (1971).

The action in the district court was brought under 42 U.S.C.

§ 1983 by Helen B. Feeney, the appellee here, against the

Commonwealth of Massachusetts, its Division of Civil Service,

the Director of Civil Service and the members of the Massa-

chusetts Civil Service Commission.'! The plaintiff, who had

been excluded from consideration for numerous civil service

positions as a result of the use of the absolute veterans’ prefer-

ence formula, alleged that the statutory scheme by granting an

absolute preference to a class which was almost exclusively

male discriminated against women.

' The state position of Director of Civil Service has been eliminated and the

duties transferred to the position of Personnel Administrator of the Com-

monwealth of Massachusetts, which position is presently held by Wallace

Kountze. The current members of the Civil Service Commission are Amelia

W. Miclette, Wayne A. Budd, John F. Donegan, Ruth M. MacRobert and

Richard H. Linden.

The plaintiff's action was consolidated with a previously

filed action challenging the same statutory scheme. The par-

ties submitted a lengthy statement of facts in each case des-

cribing in detail the Massachusetts civil service system and the

operation of the veterans’ preference statute within that

system, the number of men and women employed in civil serv-

ice positions in Massachusetts and the restrictions on service in

the armed forces by women. The district court also con-

sidered the affidavit of the plaintiff, describing her efforts over

the years to obtain appointment to various civil service posi-

tions, and the affidavit of Edward W. Powers, a former Direc-

tor of Civil Service and a named defendant, in which he con-

ceded that the veterans’ preference statute drastically restricts

employment opportunities for women in Massachusetts’ civil

service.

On March 29, 1976, the district court entered an order and

opinion awarding judgment in favor of plaintiff Feeney against

the named individual defendants.* The opinion is reported as

Anthony v. Commonwealth of Massachusetts, 415 F. Supp.

485 (D. Mass. 1976) (“Anthony”). The district court, after

carefully reviewing the facts, concluded that the veterans’

preference formula, given the virtual exclusion of women from

the armed forces, “inescapably” leads to the denial to women

of any meaningful opportunity to compete for civil service jobs

and held that the statute was unconstitutional.

On August 23, 1976, the Attorney General docketed an ap-

peal (No. 76-265) in this Court on behalf of the Personnel Ad-

ministrator of the Commonwealth of Massachusetts and the

members of the Civil Service Commission. This Court cer-

tified to the Supreme Judicial Court of Massachusetts a ques-

tion relating to the authority of the Attorney General to pros-

*The Commonwealth of Massachusetts and the Division of Civil Service

were dismissed as parties on the grounds that they were not “persons” within

the meaning of 42 U.S.C. § 1983.

ecute the appeal. 429 U.S. 66 (1976). After receipt of the

state court’s response, dated September 16, 1977, and unof-

ficially reported at 366 N.E.2d 1262 (1977), this Court

remanded the cause to the district court for further considera-

tion in light of Washington v. Davis, 426 U.S. 229 (1976).

The order of remand is reported at 434 U.S. 884 (1977).

On remand, the district court ordered the parties to file sup-

plementary briefs addressed to the specific question raised by

this Court’s order of remand and heard oral argument ad-

dressed to that question. Upon reconsideration of the entire

record, including the legislative and administrative history of

the veterans’ preference statute and the Commonwealth’s past

restriction of employment opportunities for women, the dis-

trict court, on May 3, 1978, reaffirmed its original judgment

in favor of Helen B. Feeney and again permanently enjoined

the individual defendants from utilizing Mass. Gen. Laws

c. 31, § 23 (1971), in filling civil service positions. In its sec-

ond opinion, reported as Feeney v. Commonwealth of Massa-

chusetts, 451 F. Supp. 143 (D. Mass. 1978) (“Feeney”), the

district court, following the remand order of this Court, re-

viewed and analyzed the totality of relevant facts and con-

cluded that there was a discriminatory intent to disadvantage

women by the adoption and use of an absolute and permanent

preference formula.

Despite the factual finding of a purposeful discrimination

against women, the Attorney General again docketed an ap-

peal in this Court on August 10, 1978, on behalf of the Person-

nel Administrator of the Commonwealth of Massachusetts and

the members of the Civil Service Commission.

Argument.

THE JUDGMENT OF THE District Court SHOULD BE AFFIRMED.

I. The District Court Correctly Found that the Exclusion

of Women from Civil Service Positions was Intentional

and Purposeful.

Consistent with the remand order of this Court and the de-

cision in Washington v. Davis, 426 U.S. 229 (1976), the

district court fully analyzed the “totality of the relevant facts,”

451 F. Supp. at 147, to determine whether the discrimination

against women caused by adoption and use of an absolute and

permanent preference formula was intentional and _pur-

poseful. The district court’s conclusion was that the Com-

monwealth of Massachusetts had “... intentionally

sacrific[ed] the career opportunities of its women in order to

benefit veterans ....” Feeney, 451 F. Supp. at 150. In

reaching this conclusion, the district court correctly and prop-

erly considered the presence of several factors upon which a

finding of a purposeful discrimination appropriately may be

based.*

* The appellants erroneously suggest that there must be a finding “that the

statute was motivated by an anti-female animus.” Jurisdictional Statement,

p. 16. Subjective ill-will toward a particular class is not required by Davis.

Rather, all that is required is a showing that the discrimination is deliberate

and purposeful as opposed to incidental or accidental. See Castaneda v. Par-

tida, 430 U.S. 482, 494 n. 13 (1977). A requirement of subjective ill-will

toward women is particularly inappropriate in cases involving sex discrimi-

nation which is more often the product of “paternalistic stereotyping,”

Regents of University of California v. Bakke, US. , 98 S. Ct. 2733,

2784 (1978) (opinion of Brennan, J.), or a “traditional way of thinking about

females,” Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (Stevens, J., con-

curring), or “the socialization process of a male-dominated culture.” Kahn v.

Shevin, 416 U.S. 351, 353 (1974).

A. The Devastating Impact on Women’s Employment

Opportunities.

Although the district court did not base its finding of inten-

tional discrimination solely on the disproportionate impact on

the employment opportunities of women, it did consider the

disproportionate impact on women to be “highly relevant” to

the issue of intentional discrimination. Feeney, 451 F. Supp.

at 146. This was clearly consistent with this Court’s opinion

in Washington v. Davis, supra, 426 U.S. at 242 (““Necessarily,

an invidious discriminatory 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 then an-

other.”’).

The district court found that the use of the absolute prefer-

ence formula inescapably caused a “devastating impact” on

the employment opportunities of women. Feeney, 451 F.

Supp. at 149. Without regard to demonstrable individual

qualifications, women as a class are effectively barred from all

but low-paying jobs shunned by men. “Few, if any, females

have ever been considered for the higher positions in the state

Civil Service.” Anthony, 415 F. Supp. at 498.

Thus, the use of an absolute preference guarantees the

perpetuation in Massachusetts of decades of discrimination

against women. See Frontiero v. Richardson, 411 U.S. 677,

684-685 (1973). It operates to make “upper level state em-

ployment a male preserve,” Feeney, 451 F. Supp. at 151

(Campbell, J., concurring), while “female appointees are

generally clerks and secretaries, lower-grade and lower-paying

positions for which men traditionally have not applied.” An-

thony, 415 F. Supp. at 498.

The absolute preference formula causes a “near blanket,

permanent exclusion of all women from a major sector of em-

ployment.” Anthony, 415 F. Supp. at 501 (Campbell, J.,

concurring). Such a devastating and destructive impact on

women’s employment opportunities in itself provides a proper

inference of purposeful discrimination. See Castaneda v. Par-

tida, 430 U.S. 482, 494 n. 13 (1977) (“If a disparity is suffi-

ciently large, then it is unlikely that it is due solely to chance or

accident, and, in the absence of evidence to the contrary, one

must conclude that racial or other class-related factors entered

into the selection process.”); cf. NLRB v. Great Dane Trailers,

388 U.S. 26, 33-34 (1967).

The district court also found “a clear pattern of exclusion of

women from competitive civil service positions.” Feeney, 451

F. Supp. at 149. This type of systematic adverse exclusion of

an identifiable class is expressly recognized by this Court as an

appropriate basis from which to infer intentional discrimina-

tion. Washington v. Davis, supra, 426 U.S. at 241 (“It is also

clear. . . that the systematic exclusion of Negroes is itself such

an ‘unequal application of the law . . . as to show intentional

discrimination.’”); Akins v. Texas, 325 U.S. 398, 403-404

(1945) (“A purpose to discriminate must be present which may

be proven by systematic exclusion . . ..”); see also Snowden v.

Hughes, 321 U.S. 1, 9 (1944); Eubanks v. Louisiana, 356 U.S.

584, 587 (1958); Sangmeister v. Woodard, 565 F. 2d 460, 467

(7th Cir. 1977), appeal dismissed and cert. denied sub nom. II-

linois State Board of Elections v. Sangmeister, ____ U.S. __,

98 S. Ct. 1516 (1978).

Thus, the overwhelming and unrebutted evidence of a “dev-

astating” impact on the employment opportunities of women,

as well as the “clear pattern of exclusion of women,” provided

a strong inference of purposeful and intentional discrimina-

tion. However, the district court did not base its conclusion of

intentional discrimination solely on these disastrous effects on

women. Rather, it appropriately considered other relevant

factors that evidenced intent.

B. The Non-Neutral Selection Procedure.

Again, following this Court’s direction, the district court

analyzed whether the selection procedures embodied in the

absolute preference formula were neutral with respect to

gender. Washington v. Davis, supra, 426 U.S. at 241 (exclu-

sion of a class plus the use of “non-neutral selection pro-

cedures” is sufficient to establish a prima facie case of

discriminatory purpose).

The district court found that the “selection formula, geared

as it is to veteran status, is necessarily controlled by federal

military proscriptions limiting the eligibility of women for

participation in the military.” Feeney, 451 F. Supp. at 145.

This lack of neutrality with respect to gender that is inherent

in the absolute preference formula appropriately reinforces

the conclusion that the discrimination is purposeful. As Judge

Campbell observed with respect to the veterans’ preference

law: ;

“Thus its ‘neutrality’ is at best skin-deep. The law was

sexually skewed from the outset, since the exclusionary

effect upon women was not merely predictable but ab-

solutely inescapable and ‘built-in’.”

Feeney, 451 F. Supp. at 151 (Campbell, J., concurring).

In stark contrast to the racially neutral selection procedures

in Davis, which were found not to be “culturally slanted to

favor whites,” 426 U.S. at 235, the district court found that

the absolute nature of the preference rendered qualifications

secondary and produced “anything but an impartial, neutral

policy of selection, with merely an incidental effect on the op-

portunities for women.” Anthony, 415 F. Supp. at 495. Un-

like the test in Davis, which was “designed to serve neutral

ends,” 426 U.S. at 248, the absolute veterans’ preference is “a

deliberate, conscious attempt on the part of the state to aid one

clearly identifiable group . . . at the absolute and permanent

disadvantage of another clearly identifiable group, Massachu-

setts’ women.” Anthony, 415 F. Supp. at 496.4

Since the selection criterion is premised on veteran status, a

status which women have been intentionally denied through

no fault of their own, it is not neutral with respect to gender.

The legislature’s deliberate choice of an inherent!y non-neutral

selection criterion for civil service positions provides the fair

inference that the legislature intended the discriminatory con-

sequences upon the employment opportunities of women.

C. The Inevitability of the Exclusionary Impact on Women.

In addition to the lack of neutrality with respect to gender

that is built into the system of absolute preference, the district

court also analyzed whether the “official acts or policies” of

the defendants “had the natural, foreseeable and inevitable ef-

fect of producing a discriminatory impact.” Feeney, 451 F.

Supp. at 147.

Davis makes clear that state officials are not to be held re-

sponsible for every incidental and unintended effect of a stat-

ute. However, state officials must still be held responsible for

the foreseeable and inevitable consequences of their deliberate

choices. The basic and familiar principle that an actor in-

tends, and must be held responsible for, consequences which

he knew, or should have known, were substantially certain to

occur as a result of his actions has long been recognized as an

appropriate basis upon which to find an intentional or pur-

poseful discrimination. See Washington v. Davis, supra, 426

U.S. at 253 (Stevens, J., concurring); cf. Keyes v. School Dis-

‘It is this built-in lack of neutrality which occasioned Judge Tauro’s note

that the statute is not even facially neutral. Feeney, 451 F. Supp. at 147 n. 7.

trict No. 1, Denver, Colo., 413 U.S. 189 (1973); Monroe v.

Pape, 365 U.S. 167, 187 (1961). Following Washington v.

Davis, supra, the various courts of appeal have reaffirmed the

basic principle that intent may be inferred from proof of the

foreseeable effects of wilful actions. For example, in United

States v. School District of Omaha, 565 F. 2d 127 (8th Cir.

1977), cert. denied, ___ U.S. ___., 98 S. Ct. 1240 (1978), the

court, after remand by this Court, reaffirmed its holding of in-

tentional segregation “because the natural and foreseeable

consequence of the acts of the School District was to create and

maintain segregation. . ..” Id. at 128. See also Arthur v. Ny-

quist, 573 F. 2d 134, 142-143 (2d Cir. 1978), and United States

v. Texas Education Agency, 564 F. 2d 162, 168 (5th Cir.

1977).

In this case, the district court had before it and fully ana-

lyzed the legislative and administrative history relating to the

absolute preference and civil service selection procedures.

Feeney, 451 F. Supp. at 148 n. 9. The district court found

that the legislative history suggested an awareness of the pre-

dictable and inevitable impact on women. Ibid. It found also

that for 85 years Massachusetts had engaged in deliberate de

jure discrimination by separately requisitioning for “female”

jobs which were “exempt” from application of the preference

and that this “exemption operated only to preserve stereotypi-

cally ‘female’ clerical jobs for women.” Feeney, 451 F. Supp.

at 148 n. 9. This long history of de jure discriminatory hiring

policies, coupled with the legislature’s awareness of the in-

evitable exclusionary impact on women that resulted from ap-

plying the absolute preference to all positions, was enough for

the district court properly to infer that the consequent exclu-

sion of women was purposeful and intentional. Cf. Keyes v.

School District No. 1, Denver, Colo., supra, 413 U.S. at

207-208.

Thus, in addition to considering the devastating exclusion-

ary impact of the absolute preference formula upon women,

the district court analyzed the legislative and administrative

history of the adoption and use of the absolute preference.

The district court found that, with awareness of its discrimi-

natory consequences to women, the legislature deliberately

chose to adopt a non-neutral selection criterion which was so

absolute that it would, not just foreseeably but inevitably, ex-

clude women from consideration for upper-level civil service

positions. It found that the state had for 85 years engaged in a

clear pattern of exclusion of women and, by use of separate re-

quisitions for women, engaged in de jure gender-based

discrimination which kept women in stereotypically “female”

jobs. Based on these factors and others,® the district court

properly concluded that the state’s adoption and use of an ab-

solute preference formula constituted an intentional and

deliberate discrimination against women.

II. The District Court Correctly Applied the Standard of

Judicial Scrutiny Appropriate for Review of a Statute that

Discriminates Against Women.

Having concluded that the adoption and use of the absolute

veterans’ preference formula constituted an intentional and

purposeful discrimination against women, the district court

properly employed the standard of judicial scrutiny originally

*The principal grounds upon which the district court based its finding of

purposeful discrimination are set forth above. The court also found proba-

tive the fact that the legislature enacted a civil service selection process that

“bears no relationship to job performance.” Feeney, 451 F. Supp. at 148.

In addition, it noted that the legislature ignored less drastic alternatives to

achieve its purposes, which alternatives would not have caused the system-

atic exclusion of women from upper-level civil service positions. Feeney, 451

F. Supp. at 150. See United States v. Board of School Commissioners of the

City of Indianapolis, 573 F. 2d 400, 413 (7th Cir. 1978).

formulated in Reed v. Reed, 404 U.S. 71 (1971), and con-

sistently applied by this Court in cases involving gender-based

discrimination. Anthony, 415 F. Supp. at 495. See Frontiero

v. Richardson, 411 U.S. 677 (1973); Weinberger v. Wiesen-

feld, 420 U.S. 636 (1975); Stanton v. Stanton, 421 U.S. 7

(1975); Craig v. Boren, 429 U.S. 190 (1976); Califano v.

Goldfarb, 430 U.S. 199 (1977); Califano v. Webster, 430 U.S.

313 (1977).

This heightened level of scrutiny requires that classifications

by gender, in order to withstand constitutional challenge,

“must serve important governmental objectives and must be

substantially related to achieveme:t of those objectives.”

Craig v. Boren, supra, 429 U.S. at 197. This standard of

review is triggered by (1) the finding of a gender-based classifi-

cation® that adversely affects women and (2) a determination

that the classification is premised upon or fosters “‘old notions’

of role typing,” Craig v. Boren, supra, 429 U.S. at 198, or “ar-

chaic and overbroad generalizations,” Schlesinger v. Ballard,

419 U.S. 498, 508 (1975), about the role of women or “out-

dated misconceptions concerning the role of females in the

-home rather than in the ‘marketplace and world of ideas’.”

Craig v. Boren, supra, 429 U.S. at 198-199.

The reason that the Court looks more closely at gender-

based classifications which result from a “traditional way of

thinking about females,” Califano v. Webster, supra, 430 U.S.

at 320, is because they “have the effect of invidiously rele-

gating the entire class of females to inferior legal status

without regard to the actual capabilities of its individual

members.” Frontiero v. Richardson, supra, 411 U.S. at 687.

The old generalizations about women are simply no longer

* The gender-based nature of the classification need not “be express or ap-

pear on the face of the statute.” Washington v. Davis, supra, 426 U.S. at

241.

consistent “with contemporary reality.” Califano v. Gold-

farb, supra, 430 U.S. at 207.

The absolute veterans’ preference formula, originally

enacted in the 19th century,’ continues to foster “old notions”

that women should be in the home rather than applying for re-

sponsible upper-level positions in state government and that

those women who do work should be relegated to lower-level,

less responsible positions. The “paternalistic stereotyping”

upon which the absolute veterans’ preference formula is

premised has the effect of “stigmatizing all women with a

badge of inferiority.” Regents of University of California v.

Bakke, ____ U.S. ___, 98 S. Ct. 2733, 2784 (1978) (separate

opinion of Brennan, J.).

In addition, the absolute preference formula excludes

women from significant civil service positions “because of cir-

cumstances totally beyond their control,” Anthony, 415 F.

Supp. at 499, and without regard to the individual qualifica-

tions of female applicants. Anthony, 415 F. Supp. at 498-499.

The system of absolute preference “makes it virtually impossi-

ble for a woman, no matter how talented, to obtain a state job

that is also of interest to males.” Feeney, 451 F. Supp. at 151

(Campbell, J., cor urring). Asa result, the district court’s use

of a heightened level of scrutiny was appropriate. Cf. Weber

v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972).

In applying the heightened scrutiny appropriate for gender-

based classifications, the district court necessarily examined

the particular means chosen by the state to achieve its objec-

tive. It found the choice of an absolute and permanent pref-

erence to be a “broad-brush approach” based on “mere ad-

ministrative convenience.” Feeney, 451 F. Supp. at 145. The

™“(A] discrimination of that vintage cannot reasonably be supposed to

have been motivated by a decision to repudiate the 19th century presumption

that females are inferior to males.” Califano v. Goldfarb, supra, 430 U.S. at

223 (Stevens, J., concurring).

district court found a total absence of any attempt to tailor the

statute carefully to the purposes sought to be achieved.*®

Noting that “Massachusetts has considerable flexibility in the

manner in which it can aid its veterans,” Anthony, 415 F.

Supp. at 499, the district court found that the state had

numerous effective alternatives by which it could achieve the

very same purpose of aiding veterans but “without doing so at

the absolute and permanent expense of its women.” Ibid.

Finding no rational or legitimate reason for the adoption of an

absolute and permanent preference, the district court properly

concluded that the statute was unconstitutional.°

* For example, the district court found “[n]o time limit was imposed or at-

tempt made ‘to tailor its use to those who have shortly returned to civilian

life."” Feeney, 451 F. Supp. at 145, quoting Anthony, 415 F. Supp. at 499.

®“We determined that the means chosen by the Massachusetts Legislature

to reward veterans were not grounded ‘on a convincing factual rationale.’”

Feeney, 451 F. Supp. at 145.

Conclusion.

For the reasons stated herein and by the district court, the

judgment of the district court should be affirmed.

Respectfully submitted,

RICHARD P. WARD