brief for appellee — Personnel Administrator of Mass. v. Feeney

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

————————

————

In the

Supreme Court of the United States. —

Ocroser TERM, 1978.

No. 78-233.

PERSONNEL ADMINISTRA’’OR OF THE

COMMONWEALTH OF MASSACHUSETTS ert At.,

APPELLANTS,

HELEN B. FEENEY,

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS,

BRIEF FOR THE APPELLEE.

RicHARD P. Warp

STEPHEN B. PERLMAN

ELEANOR D. ACHESON

Joun 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

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Question presented

Statement of the case

I. Prior proceedings

II. Facts of this case

III]. The exclusion from and limitation of

women in the United States armed services

IV. The history of the Commonwealth's vet-

erans’ preference statute

Summary of argument

Argument

I. The district court correctly held that the legis-

lature’s choice of ‘an absolute and permanent

form of preference constituted an intentional

and purposeful discrimination against women

A. The veterans’ preference statute consti-

tutes intentional and purposeful discrimina-

tion against women because it is inherently

non-neutral with respect to sex

B. The inevitability of the exclusionary im-

pact demonstrates a deliberate and inten-

tional discrimination against women

Il. Discriminatory assumptions about the role of

women substantially affected the legislators’ de-

cision to adopt an absolute and permanent form

of veterans’ preference

A. The inference from the historical back-

ground of the legislation

B. The inference from the legislative and ad-

ministrative history

enw Ww

ii TABLE OF CONTENTS.

C. The inference from the fact that the Mas-

sachusetts General Court has consistently

been dominated by male legislators 47

III. The defendants failed to rebut the finding

that the Commonwealth’s choice of an absolute

and permanent form of preference constitutes

an intentional and purposeful discrimination

against women 49

A. The defendants misstate the nature of the

proof necessary to rebut a determination of

intentional discrimination 49

B. The defendants presented no persuasive

proof of any “affirmative action” that re-

butted the finding of an intentional and pur-

poseful discrimination 52

C. The defendants equate the ultimate goal of

the statute with intent 55

IV. The district court properly invoked and ap-

plied the standard of review for statutes that

discriminate against women 57

Conclusion 68

Table of Authorities Cited.

CASEs.

Agnew v. United States, 165 U.S. 36 (1897) 35n

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 64

Alexander v. Louisiana, 405 U.S. 625 (1972) 29, 38n, 55

Anderson v. Martin, 375 U.S. 399 (1964) 30

TABLE OF AUTHORITIES CITED. iii

Anthony v. Massachusetts, 415 F. Supp. 485 (D. Mass.

1976) 3, 10, 22, 23, 27, 30n, 31n et seq.

Arlington Heights v. Metropolitan Housing Corp., 429

U.S. 252 (1977) 37, 38, 39, 45, 50

Armstrong v. O’Connell, 451 F. Supp. 817 (E.D. Wis.

1978) 35

Arthur v. Nyquist, 573 F. 2d 134 (2d Cir.), cert. de-

nied sub nom. Manch v. Arthur, No. 78-30 (Oct. 2,

1978) 35

Bradwell v. State, 83 U.S. (16 Wall.) 130 (1872) 40

Brown v. Russell, 166 Mass. 14 (1896) 17, 40

Califano v. Goldfarb, 430 U.S. 199 (1977) 38n, 39, 40, 56,

59, 60, 63 et seq.

Califano v. Webster, 430 U.S. 313 (1977) 60

Castaneda v. Partida, 430 U.S. 482 (1977) lln, 24, 48

Craig v. Boren, 429 U.S. 190 (1976) 24, 36, 39, 59, 61, 64

Cramer v. United States, 325 U.S. 1 (1945) 35n

Dayton Board of Education v. Brinkman, 433 U.S. 406

(1977) 37n

Feeney v. Commonwealth, 366 N.E. 2d 1262 (1977) 4

Feeney v. Massachusetts, 451 F. Supp. 143 (D. Mass.

1978) 4, 8, 17n, 22, 23, 25, 26 et seq.

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) 25

Frontiero v. Richardson, 411 U.S. 677 (1973) 36, 38n,

40, 58, 60

Geduldig v. Aiello, 417 U.S. 484 (1974) 30n, 3ln

Gomillion v. Lightfoot, 364 U.S. 339 (1960) 30

Goss v. Board of Education, 373 U.S. 683 (1963) 30, 34

Griffin v. Illinois, 351 U.S. 12 (1956) 30

iv TABLE OF AUTHORITIES CITED.

Guardian Association of New York City Police Depart-

ment v. Civil Service Commission, 431 F. Supp. 526

(S.D. N.Y.), vacated and remanded, 562 F. 2d 38

(2d Cir. 1977) 36n

Guinn v. United States, 238 U.S. 347 (1915) 30

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) 60

Hazelwood School Dist. v. United States, 433 U.S. 299

(1977) 48, 66n

Hernandez v. Texas, 347 U.S. 475 (1954) 38n, 55

Hicklin v. Orbeck, ____ U.S. ___., 98 S. Ct. 2482

(1978) 62, 64

Hunter v. Erickson, 393 U.S. 385 (1969) 41

Johnson v. Robison, 415 U.S. 361 (1974) 63

Kahn v. Shevin, 416 U.S. 351 (1974) 48, 60

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

189 (1973) 45, 46, 51

Koelfgen v. Jackson, 355 F. Supp. 243 (D. Minn. 1972) 57n

Lane v. Wilson, 307 U.S. 268 (1939) 31

Mathews v. Lucas, 427 U.S. 495 (1976) 64

Monell v. Department of Social Services, ____ U.S.

__, 98S. Ct. 2018 (1978) 34

Monroe v. Board of Commissioners, 391 U.S. 450 (1968) 34

Monroe v. Pape, 365 U.S. 167 (1961) 34

N.A.A.C.P. v. Lansing Board of Education, 559 F. 2d

1042 (6th Cir. 1977), cert. denied, 434 U.S. 997

(1977) 35

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) 35n

NLRB v. Great Dane Trailers, 388 U.S. 26 (1967) 35n

Norwood v. Harrison, 413 U.S. 455 (1973) 57

Nyquist v. Mauclet, 432 U.S. 1 (1977) 63

TABLE OF AUTHORITIES CITED. Vv

Owens v. Brown, 455 F. Supp. 291 (D. D.C. 1978) 26n

Radio Officers’ Union v. NLRB, 347 U.S. 17 (1954) 35n

Reed v. Reed, 404 U.S. 71 (1971) 56, 61

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

___., 98 S. Ct. 2733 (1978) 28n, 60

Reitman v. Mulkey, 387 U.S. 369 (1967) 30

San Antonio School District v. Rodriguez, 411 U.S. 1

(1973) 38n, 48

Smith v. Allwright, 321 U.S. 649 (1944) 30

Stanton v. Stanton, 421 U.S. 7 (1975) 58, 59

Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1 (1971) 30

Trimble v. Gordon, 430 U.S. 762 (1977) 64

Turner v. Fouche, 396 U.S. 346 (1970) 3ln

United States v. City of Chicago, 549 F. 2d 415 (7th

Cir.), cert. denied, 434 U.S. 875 (1977) 36n

United States v. Murdock, 290 U.S. 389 (1933) 35n

United States v. Patten, 226 U.S. 525 (1913) 35n

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

127 (8th Cir. 1977), cert. denied, 434 U.S. 1064

(1978) 35

United States v. Texas Education Agency, 579 F. 2d

910 (5th Cir. 1978) 35

Washington v. Davis, 426 U.S. 229 (1976) 4, 20, 24, 25,

26, 28n, 29 et seq.

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

(1972) 56, 60, 67

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) 39n, 59,

60, 63

vi TABLE OF AUTHORITIES CITED.

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Article I, § 8 63

Fourteenth Amendment _1, 2, 21, 24, 34, 37, 54n et seq.

10 U.S.C.

§ 505 13

§ 505(d) 14

§ 1255 15n

§ 3071 15n

§ 3209 12

§ 3311 14

§ 5575 14n, 15n

§ 5576 14n, 15n

§ 5577 14n, 15n

§ 5581 l4n

§ 5582 15n

§ 5584 15n

§ 5586 15n

§ 5587 15n

§ 5590 15n

§ 6911 l4n

§ 6913 l4n

§ 8257 l4n

28 U.S.C. § 2284 2

29 U.S.C. § 158(a)(3) 35n

32 U.S.C. § 325 29n

42 U.S.C. § 1983 2, 3n, 34

P.L. 95-485, § 820, 92 Stat. 1627 (1978) 13n

Civil Rights Act of 1964, Title VII 64

32 C.F.R. § 580.4(b) (1975) 13n

Mass. Gen. Laws c. 4, § 7, cl. 43 7, 29n

TABLE OF AUTHORITIES CITED. vii

Mass. Gen. Lawsc. 31

§§ 47 et seq.

Mass. Gen. Laws c. 33

§ 2 ,

§ 11

Mass. Gen. Laws c. 59, §5

Mass. Gen. Laws c. 69, §§ 7, 7A, 7B, 7F

Mass. Gen. Laws c. 71

Mass. Gen. Laws c. 75, §§ 14, 24

Mass. Gen. Laws c. 75A, § 11

Mass. Gen. Laws c. 115

Mass. Gen. Lawsc. 115A

Mass. St. 1884, c. 320

Mass. St. 1895, c. 501

§1

§ 2

Mass. St. 1896, c. 517

§ 2

Mass. St. 1919, c. 150

§ 2

Mass. St. 1945, c. 725, § 2(e)

2n, 41n

5n, 47

10n

1, 2, 4, 6, 19, 29n

2n, 19

17, 42, 46

44n

18, 42

18, 44n, 46

viii TABLE OF AUTHORITIES CITED.

Mass. St. 1954, c. 627

§5 19, 42,

Mass. St. 1965, c. 53

Mass. St. 1971, c. 219

Mass. St. 1971, c. 221

Mass. St. 1973, c. 692

Mass. St. 1974, c. 835, § 109

Mass. St. 1976, c. 200

Mass. St. 1977, c. 815, § 2

Mass. St. 1978, c. 393

51 Pa. Cons. Stat. Ann. § 7104 (Purdon 1976)

S.D. Compiled Laws Ann. § 3-3-1 (1974)

Utah Code Ann. § 34-30-11 (1974)

Vt. Stat. Ann. Act 20 p. 1543 (1968)

OTHER AUTHORITIES.

American Law Institute, Restatement (Second) of

Torts (1965)

Annual Report from the Massachusetts Civil Service

Commission, 1973-1974

M. Binkin & S. Bach, Women and the Military (1977)

1 Bishop, Criminal Law (9th ed. 1939)

G. Blumberg, “De Facto and De Jure Sex Discrimina-

tion Under the Equal Protection Clause: A Recon-

sideration of The Veterans’ Preference in Public Em-

ployment,” 26 Buffalo L. Rev. 1 (1977)

19, 42

43, 46

44, 46

19, 43

59, 65

TABLE OF AUTHORITIES CITED. ix

Brest, “Palmer v. Thompson: An Approach to the

Problem of Unconstitutional Legislative Motive,”

1971 Sup. Ct. Rev. 95 38n

Civil Service Commission 2d Ann. Rep. (1886) 16n

Civil Service Commission 3d Ann. Rep. (1887) 16n

Civil Service Commission 13th Ann. Rep. (1896) 17n

Comment, “ Veterans’ Public Employment Preference

as Sex Discrimination,” 90 Harv. L. Rev. 805 (1977) 27

118 Cong. Rec. 54390 (Daily ed. March 21, 1973) 13n

Division of Civil Service, Civil Service Laws and

Rules, Form 345, 5M-1-73-075231 46n

Fed. R. Evid. 406 48

Fleming & Shanor, “ Veterans’ Preferences in Public

Employment: Unconstitutional Gender Discrimina-

tion?”, 26 Emory L.J. 13 (1977) 30n, 41n, 65n

Holmes, “Privilege, Malice and Intent,” 8 Harv. L.

Rev. 1 (1894) 33

[1940-1941] National Guard Bureau, Induction of the

National Guard of the United States 29n

[1946] National Guard Bureau, Ann. Rep. of Chief 29n

[1950-1956] National Guard Bureau, Induction and

Release of Army National Guard Units 29n

Note, “The Equal Rights Amendment and the Mil-

itary,” 82 Yale L.J. 1533 (1973) 12n

Note, “Intent to Segregate: The Omaha Presumption,”

44 Geo. Wash. L. Rev. 775 (1976) 36

Note, “Proof of Racially Discriminatory Purpose under

the Equal Protection Clause: Washington v. Davis,

Arlington Heights, Mt. Healthy, and Williams-

burgh,” 12 Harv. C.R. — C.L. L. Rev. 725 (1977) 35, 36

x TABLE OF AUTHORITIES CITED.

Note, “Reading the Mind of the School Board: Segrega-

tive Intent and the De Facto/De Jure Distinction,”

86 Yale L.J. 317 (1976) 46n

Perkins, “A Rationale of Mens Rea,” 52 Harv. L. Rev.

905 (1939) 4

“The Supreme Court, 1974 Term,” 89 Harv. L. Rev.

47 (1975) 58n

“The Supreme Court, 1976 Term,” 91 Harv. L. Rev.

70 (1977) 59, 61, 64

L. Tribe, American Constitutional Law (1978) 58n

U.S. Department of Labor, Employment Standards

Administration, Women’s Bureau, Women Workers

Today (1973) 13n

2 J. Wigmore, Evidence (3d ed. 1940) 46

In the

Supreme Court of the United States.

OcrosBer TERM, 1978.

No. 78-233.

PERSONNEL ADMINISTRATOR OF THE

COMMONWEALTH OF MASSACHUSETTS Er A.,

APPELLANTS,

vb.

HELEN B. FEENEY,

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS.

BRIEF FOR THE APPELLEE.

Question Presented.

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

from competitive civil service positions by granting a perma-

nent and absolute preference to veterans, violate the Four-

teenth Amendment to the Constitution of the United States?

Statement of the Case.

I. Prior PROCEEDINGS.

On May 20, 1975, Helen B. Feeney, the appellee here,

brought this action in the United States District Court for the

District of Massachusetts under 42 U.S.C. § 1983 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 complaint alleged

that the plaintiff, a non-veteran woman, had passed the civil

service examinations for two administrative positions in state

government with high scores, but that she was precluded from

consideration for those positions by Massachusetts’ absolute

veterans’ preference “‘rmula. She claimed that the statutory

scheme, Mass. Gen. Laws c. 31, § 23,* and the operative regu-

lations of the Division of Civil Service, violated the Fourteenth

Amendment to the United States Constitution and sought an

injunction against their enforcement.

With the consent of all parties, the district court entered a

temporary restraining order prohibiting the defendants from

filling any of the positions sought by the plaintiff. The action

was consolidated with a previously filed action challenging the

Same statutory scheme. A three-judge court was convened

pursuant to 28 U.S.C. § 2284 to hear the case. The parties

' The position of Director of Civil Service has since been eliminated and its

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

wealth of Massachusetts.

* The civil service laws were recodified by Mass. St. 1978, c. 393. Under

the recodification, Mass. Gen. Laws c. 31, § 23, has been replaced by the

first and last paragraphs of Mass. Gen. Laws c. 31, § 26. This recodification

does not effect any substantive changes in the relevant statutes. For the con-

venience of the Court, the veterans’ preference statute is referred to herein as

Mass. Gen. Laws c. 31, § 23. Other references to Mass. Gen. Laws c. 31 are

to the sections as they existed prior to recodification.

ee ee

submitted a lengthy statement of facts in each case describing

in detail the Massachusetts civil service system and the history

and operation of the veterans’ preference statute within that

system. The district court also considered the affidavit of the

plaintiff, describing her efforts over the years to obtain ap-

pointment to various civil service positions, and the affidavit

of Edward W. Powers, a former Director of Civil Service and

named defendant, in which he conceded that the veterans’

preference statute drastically restricts employment oppor-

tunities 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.* Anthony v. Massa-

chusetts, 415 F. Supp. 485 (D. Mass. 1976) (“Anthony”) (App.

195). The district court, after carefully reviewing the facts,

concluded that the veterans’ preference formula, given the vir-

tual 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 un-

constitutional.‘

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 certi-

fied to the Supreme Judicial Court of Massachusetts a question

relating to the authority of the Attorney General to prosecute

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

*?The Commonwealth of Massachusetts and the Division of Civil Service

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

the meaning of 42 U.S.C. § 1983.

‘Following the first decision of the district court, Massachusetts adopted

an interim veterans’ preference statute. Mass. St. 1976, c. 200, Mass. Gen.

Laws c. 31, § 23. (Supp. 1978-1979) (App. to Juris. Statement 51A-534A).

court’s response, Feeney v. Commonwealth, 366 N.E. 2d 1262

(1977), this Court remanded the case to the district court for

further consideration in light of Washington v. Davis, 426

U.S. 229 (1976).

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 second

opinion, Feeney v. Massachusetts, 451 F. Supp. 143 (D. Mass.

1978) (“Feeney”), the district court concluded that women

were intentionally disadvantaged by the Commonwealth’s

adoption and use of an absolute and permanent preference

formula.

Despite the factual finding of a purposeful discrimination

against women, the Attorney General again appealed to this

Court on behalf of the Personnel Administrator of the Com-

monwealth of Massachusetts and the members of the Civil

Service Commission.

II. Facts or THIS CASE.

As in most states, public employment in Massachusetts is a

major sector of the economy. Massachusetts, through its civil

service system, is the single largest employer in the state.> The

5 Massachusetts civil service law governs the selection and appointment of

municipal employees as well as state employees. See Mass. Gen. Lawsc. 31,

§§ 47 et seq.

civil service system covers appointment to approximately 60 %

of all public employment positions.® Civil service positions in

Massachusetts fall into either of two categories, the classified

official service or the classified labor service.’ In 1975, ap-

proximately 90,000 people held positions in the classified offi-

cial service alone (App. 72). During the ten-year period from

July 1, 1964, through June 30, 1974, nearly 200,000 appoint-

ments were made to civil service positions (Ex. 63, p. 23). In

the fiscal year ending June 30, 1974, over 11,000 appointments

were made to positions in the classified official service, and

over 6,000 appointments were made to labor service positions

(App. 72) (Ex. 63, p. 24).

To attain a permanent position in the classified official serv-

ice, an applicant must first pass an examination designed to

measure relative ability and fitness to perform the duties of the

position for which the examination is given.* On all examina-

tions, applicants receive appropriate credit for relevant experi-

ence obtained in the military service (App. 72-73, 184-185).

* The positions which are not covered by civil service include those in cities

and towns which have not accepted civil service, Mass. Gen. Laws c. 31,

§ 47, teachers, Mass. Gen. Laws c. 71, employees of the University of Massa-

chusetts, Mass. Gen. Laws c. 75, §§ 14, 24, and of the University of Lowell,

Mass. Gen. Laws c. 75A, § 11, seasonal employees and physicians and other

medical personnel, Mass. Gen. Laws c. 31, § 5.

7 The positions sought by the plaintiff are in the classified official service

(App. 72). The veterans’ preference statute, however, applies to all civil

service positions. The principal difference between the two is that there are

no examinations for appointments in the labor service. See Annual Report

from the Massachusetts Civil Service Commission, 1973-1974, p. 18 (Ex. 63)

(hereinafter “Annual Report”).

* For certain positions, the examination is an “unassembled” examination,

which consists merely of assigned scores based upon the applicant’s training

and experience. For all other positions, including those which are the sub-

ject of this action, the relative grades of the applicants are based on a formula

which gives weight both to the results of a written examination and to the ap-

plicant’s training and experience.

An applicant who passes an examination is placed on an

“eligible list.” An applicant’s position on the eligible list,

which is crucial to obtaining a civil service job, is not deter-

mined in the first instance by examination score. Rather, the

veterans’ preference statute, Mass. Gen. Laws c. 31, § 23, re-

quires that eligible candidates be listed in the following order:

(1) disabled veterans; (2) veterans; (3) widows and widowed

mothers of veterans; (4) all others. Candidates within each

category are ranked according to their examination scores

(App. 73). The eligible list contains the names of all persons

who passed the examination, but, as a practical matter, the

selection process limits consideration to those whose names ap-

pear at or near the top of the list.

Whenever a public agency has a vacancy in a civil service

position, it sends a requisition to the Division of Personnel Ad-

ministration, (the “Division”), stating the number of vacan-

cies. The Division then “certifies” as eligible those candidates

whose names appear at the head of the appropriate eligible

list. The number certified is fixed by a formula prescribed by

the rules of the Division (App. 73-74). The agency will always

receive at least two more names than there are vacancies.

For example, where there is one vacancy, the agency chooses

from among the top three candidates. The appointing author-

ity is required to make the appointment from among those

whose names were certified, but is not required to appoint the

person highest on the list (App. 73-75).

An eligible list remains in effect for a maximum of two

years. A new examination may be given for that position dur-

ing the life of the existing list. When this occurs, a new eligi-

ble list is established and eligibles on the existing list are inte-

grated into the appropriate preference category in the new list

(App. 75).

The preference accorded to veterans by Massachusetts law is

available to any person who received an honorable discharge

ee APS

and who served in the armed forces for at least 90 days of ac-

tive service, at least one day of which was “wartime” service

(the statutory definition of wartime service includes the entire

period from September 16, 1940, to May 7, 1975),® Mass. Gen.

Laws c. 4, § 7, cl. 43, was awarded one of a number of speci-

fied campaign badges or the Congressional Medal of Honor,

Mass. Gen. Laws c. 31, § 21, or served in certain other speci-

fied periods, Mass. Gen. Laws c. 31, § 21A.

In contrast to the five and ten point preferences accorded by

the federal veterans’ preference scheme, the preference ac-

corded by the Commonwealth to veterans who pass qualifying

examinations is absolute. Veterans who pass the examination

must be considered ahead of all other eligible persons regard-

less of score. Moreover, the Commonwealth’s veterans’ pref-

erence law has no time‘or use restrictions: the preference is

available to a veteran for his entire working life; and it may be

invoked by a veteran as many times as he wishes to seek em-

ployment or a different position in the classified service.'°

Approximately one year prior to the institution of this ac-

tion, Massachusetts instituted a new civil service policy to give

“banded” examinations. Under this policy, the Division gives

a single, state-wide examination for each entry-level job

classification rather than separate departmental examinations

for the same classification. Prior to banding, the eligible list

for a particular position within a department could be quite

short. Where the examination for that position is “banded”

with similar positions in other departments, the eligible list

*A veteran who served between February 1, 1955, and August 4, 1964,

must have completed 180 days of active service to be eligible for the prefer-

ence.

‘As a result, the principal beneficiaries of the preference are older

veterans. See, e.g., Ex. 8 (App. 150-151).

may include hundreds of candidates, many of whom will be

veterans (App. 183-184).

The district court found that Massachusetts’ absolute veter-

ans’ preference formula inescapably causes a “devastating im-

pact” on the employment opportunities of women in the Com-

monwealth’s service, 451 F. Supp. at 149 (App. 262). The

consequences described by the district court flow inexorably

from the facts that: (i) the selection process used by Massachu-

setts requires appointment of one of those few persons whose

names appear at the top of the eligible list (App. 74); (ii) the

veterans’ preference statute requires that eligible veterans be

placed on the list ahead of all others, regardless of score; and

(iii) veterans are almost invariably men, and nearly half of

Massachusetts’ men are veterans.'!

The record in the district court demonstrates the exclusion

of women by the absolute preference formula.

The plaintiff, Helen B. Feeney, is a 56-year-old female citi-

zen of the Commonwealth and is not a veteran. She worked

for the Commonwealth as a Senior Clerk Stenographer in its

Civil Defense Agency from 1963 to 1967 and as Federal Funds

and Personnel Coordinator from 1967 to 1975 (App. 83, 175-

177). Mrs. Feeney has taken and passed nine civil service ex-

aminations. Although over the last ten years she has reviewed

the civil service notices of examinations, she did not apply and

take examinations for many attractive positions because she

considered those steps futile in light of the veterans’ preference

statute (App. 177-181).

'! More than 98 per cent of all veterans in the Commonwealth are men and

nearly 47 per cent of Massachusetts men over 18 are veterans, whereas only

1.8 per cent of the Commonwealth’s veterans are women and only 8/10 of 1

per cent of the Commonwealth’s women over 18 are veterans (App. 83).

Thus, the preferred “veteran” characteristic appears 60 times more frequent-

ly among working-age men than among such women.

On February 6, 1971, Mrs. Feeney took an examination for

the single position of Assistant Secretary, Board of Dental Ex-

aminers. She scored 86.68 (the second highest), but the appli-

cation of the veterans’ preference statute advanced five male

veterans, four of them lower-scoring, ahead of her, causing

her to be ranked sixth on the eligible list (Ex. 61). Thus, Mrs.

Feeney was not even certified for appointment.'? A male

veteran with an examination grade of 78.08 was certified and

appointed (App. 82-83).

On February 24, 1973, Mrs. Feeney took an examination for

the single position of Head Administrative Assistant, Solomon

Mental Health Center. She received a score of 92.32 (the third

highest) but the application of the veterans’ preference ad-

vanced ahead of her 12 male veterans, 11 of whom were lower-

scoring, reducing her status to 14th on the eligible list (Ex. 2).

Again Mrs. Feeney was not certified as eligible because of the

preference and was not considered for the position (App. 107,

178). On or about May 18, 1974, Mrs. Feeney took an exami-

nation for Administrative Assistant positions. Although she

scored 87, which would have tied her for 17th place on the list,

the veterans’ preference statute caused her to be ranked 70th

behind 64 veterans, 63 of whom were men and 50 of whom

had lower scores (App. 132-149, 179). Although no appoint-

ments were made to any of the positions to be filled from this

list prior to the May 23, 1975, entry of a restraining order in

this case (App. 77-78), Mrs. Feeney’s opportunity to be certi-

fied and considered for appointment to these positions was vir-

tually eliminated because of the veterans’ preference (App.

179-180).

'? The Rules of the Civil Service require certification of three names where

there is a single vacancy (App. 73-75). Thus, with the second-highest score

and without the application of the veterans’ preference, Mrs. Feeney would

have been certified for consideration for this position.

Mrs. Feeney’s experience was typical of that of the women

on the list. Of the 135 men on the Administrative Assistant list

(App. 132-149), 63 (47 per cent) received the preference while

only one (2.5 per cent) of the 41 women so benefited. Without

the preference, 16 of the women (nearly 40 per cent) would

have ranked in one of the top 64 places now occupied by veter-

ans (the approximate top third of the list); with the preference,

the number of women among the top 64 places is one rather

than sixteen. Thirty-seven of the 41 women on the list were,

by virtue of the preference, ranked below male veterans who

received lower scores. This realignment of the Administrative

Assistant list pursuant to the absolute veterans’ preference for-

mula meant that virtually all of the women on the list, regard-

less of scores, would not be certified for appointment. At the

time that the list was established, there were 43 positions that

could have been filled from this list * (App. 77). As these posi-

tions would be filled from those whose names appear at the

head of the list, non-veterans could be considered only in the

event that virtually all the veterans declined appointment.

The Counsel I list at issue in Anthony shows the same pat-

tern. But for application of the preference, nearly half the

women (13 of 27) would have ranked in the top 76 places (the

approximate top third of the list) now occupied by veterans;

the application of the preference totally eliminated women

from these top 76 places. Ms. Anthony, whose examination

score of 94 was the highest received by any applicant and

would have placed her second on the list, was reduced to 77th

place behind 73 male veterans who received lower scores and

three who received the same score.

13 The 43 positions were those held by provisional appointees. Massachu-

setts law provides that a provisional appointment to fill a civil service posi-

tion shall be terminated within 30 days after the establishment of an eligible

list for such position. Mass. Gen. Laws c. 31, § 15.

feet Seba snastasee ete e wes

The exclusion of women demonstrated in the four lists dis-

cussed above is by no means an aberration, but is, rather, the

inevitable consequence of the preference. Exhibits 13-62 are

50 eligible lists that have been stipulated by the parties as “ex-

amples” (App. 80), and they strongly confirm the exclusion of

women worked by the preference. Every one of the lists in-

cludes one or more women who, by application of the veter-

ans’ preference, were ranked below male veterans with lower

scores and were thereby deprived of a certification for ap-

pointment which they would have had but for the application

of the preference'* (App. 80).

As appellants have noted, women have not been entirely ex-

cluded from the classified official service: 43 % of permanent

appointments over a recent 10-year period have been women

(App. 79). This statistic, however, must be considered to-

gether with the fact that 56 % of the qualifying candidates for

permanent appointment during the same period have been

women (App. 174), reflecting a disparity of 13 %.'5

The Commonwealth has conceded that, for the “many per-

manent positions for which males and females have competed,

the application of the Veterans’ Preference Statute has resulted

in a substantially greater proportion of female eligibles than

male eligibles not being certified to appointing authorities for

appointment to permanent positions” (App. 80). This ac-

knowledgment is echoed in the testimony of Edward W.

'4Indeed, in 47 of the 50 lists, one or more women whose examination

scores rank them among the top three places on their respective lists are

reduced in relative ranking by application of the absolute preference. In 32

of the 47, such women are totally eliminated from the top three places on

their respective lists.

'S Utilizing the method of analysis set forth in Castaneda v. Partida, 430

U.S. 482, 496 n.17 (1977), this disparity of 13 % is equivalent to more than

56 standard deviations, a figure far in excess of the “two or three” said by this

Court to raise an inference of discrimination.

Powers, former Director of Civil Service, who occupied that

position as one of the original defendants in this case:

“| Women will continue to be employed primarily in

the relatively low-paying entry-level clerical positions for

which men traditionally do not apply. However, for the

relatively high-paying Civil Service positions, such as

programmers, planners, psychologists, doctors, adminis-

trative assistants, head administrative assistants, etc., the

continued use of the Veterans’ Preference Statute will

result in few, if any, female eligibles being considered

and appointed to such positions.” Ex. 83 (App. 184).

II]. THe EXCLUSION FROM AND LIMITATION OF WOMEN IN THE

UNITED STATES ARMED SERVICES.

That more than 98 % of those who qualify for veterans’

preference are men is a direct result of the fact that during the

years from 1940 to 1975 — the period of wartime service quali-

fying Massachusetts veterans for the preference — a variety of

federal statutes and regulations severely restricted participa-

tion in the military by women, barring altogether service by

many women, erecting barriers to enlistment by others and

sharply restricting opportunities for those who were enlisted.'®

Entrance criteria. Until November 18, 1967, women could

not exceed 2 % of the total military personnel in the armed

forces, by statutory bar. The Army continued to maintain a

2 % limitation of the Women’s Army Corps (WAC) by regula-

1® App. 84-92. Exs. 90-168. See generally, M. Binkin & S. Bach, Women

and the Military (1977) pp. 6-13; Note, “The Equal Rights Amendment and

the Military,” 82 Yale L.J. 1533 (1973).

lation until 1978..!" These restrictions have operated despite

the fact that by 1973 85 % of all military jobs were non-

combatant in nature.'®

In addition to the absolute limitation of women personnel,

various enlistment and appointment criteria have been more

stringent for women than for men. Men could enlist at age 17

but, until 1974, women were prevented by statute from en-

listing until age 18 (10 U.S.C. § 505 (1975); Exs. 100-104,

108-110, 155) and, until recently, parental consent for enlist-

ment was required of women under 21 but of men only under

18 (App. 85). Women who sought to enlist were subjected to

higher mental aptitude, educational and physical require-

ments (Exs. 93, p. 14; 100-104, 107-110, 123, 154) and have

been subjected to more extensivé application and screening

procedures (Exs. 99, 10F, 108, 109, 123), including require-

ments of personal references and attractive appearance (Exs.

99, 101, 108, 109, 123) and that they not have minor

children.'®

Women have faced similar barriers in the special sources of

officer procurement. They were not admitted to the three

major military academies (App. 84-85), or permitted to partic-

ipate in the college-level Reserve Officer Training Corps

732 C.F.R. § 580.4(b) (1975). The Women’s Army Corps was abolished

in October, 1978. P.L. 95-485, § 820, 92 Stat. 1627 (1978). Other restric-

tive statutes cited herein may also have been modified or withdrawn since

1975 when the class of veterans eligible for the absolute preference was closed.

®118 Cong. Rec. 54390 (Daily ed. March 21, 1973).

'°Until the 1970's, the armed services prohibited the enlistment and ap-

pointment of married women and women with children younger than 18,

while similarly situated men were not so excluded (App. 85; Exs. 99, p. 2; 98,

103, 104). Since approximately 60 % of women in the workforce are mar-

ried (Ex. 93, p. C-1; U.S. Department of Labor, Employment Standards Ad-

ministration, Women’s Bureau, Women Workers Today (1973)), this exclu-

sionary rule alone has had the effect of rendering a majority of women ineli-

gible for veterans’ preference under state veterans’ preference statutes.

(ROTC). Women who sought direct appointment” were sub-

jected to more rigorous selection criteria than men with

respect to education, physical standards, educational attain-

ment, and special application procedures which have included

personal references and statements (Exs. 96-99).*!

Training and Job Opportunities. Women in the military

found far fewer opportunities than were accorded men.

Women in the Army were assigned to the Women’s Army

Corps, while men could express preference for and be assigned

to any of approximately 21 branches (10 U.S.C. §§ 505(d) and

3311; Exs. 96-98, 107-109, 117). Until the early 1970s, only

approximately 180 Army “Military Occupation Specialities”

(MOS) were open to women while some 500 were available to

men (of these 180, 43 were open only during periods of mobili-

zation, 77 were clerical or clerical/technical classifications,

and 18 were musical band classifications) (Exs. 111-115). Pre-

dictably, nearly 95 per cent of Army enlisted women in July

1972 were in medical and administrative classifications (Ex.

93, pp. 26-28). Women were not permitted, under Army

policy, to command men (Ex. 92, p. 2). The Navy, Marine

Corps and Air Force had similarly limited opportunities for

women.”2 Few women have risen to high-level military staff

positions (Ex. 94, 6-page untitled chart).

20 The opportunities for such appointment in the Navy and Marine Corps

were statutorily restricted. 10 U.S.C. §§ 5575-77, 5581, 6911, 6913, 8257.

*! For example, women but not men were held to requirements of “looks,

figure and personality” for assignment to “high level staff” positions in the

Washington, D.C., area (Ex. 168, pp. B-10, 11, 21; A-10; C-3).

22 See Ex. 93, pp. 25-28, and Ex. 94: “United States Air Force, Officer

Strength with Breakout of Women Nurses/Medical Service and Line

Offices,” and “United States Navy, Distribution of Personnel.”

*2U.S. Representative Otis Pike at a 1972 Congressional hearing on

military strength said of the then existing restrictions on women in the armed

forces: “ The notion seems to exist in the military that women are nothing but

defective men” (Ex. 90, p. 12485).

Advancement Opportunities. As members of the WAC,

women’s opportunities to advance in rank within the Army

were severely limited.** Until November 1967, the highest

position to which Army women could aspire was that of the

one full colonel who served as WAC Director.** Not until

1970 was the first woman appointed to the rank of general in

any of the military services, and there were only five such

women as of January 1974 (Ex. 92, p. 1). Promotional oppor-

tunities for women were limited by their ineligibility for many

career-advancing assignments. Women officers in the mili-

tary have been largely excluded from the senior service schools

(e.g., the Command and General Staff College, the Army War

College, the Naval War College) to which male officers were

sent for advanced training.**

Separation. Until 1967, the statute required women to

retire at an earlier age than men.*” Women were subjected to

a variety of stricter rules for termination within the military

than were men.*

**Women in the Navy and Marines were also appointed under separate

statutory sections, confined to the lowest ranks and limited in their

assignments, transfers and promotions. 10 U.S.C. §§ 5590, 5575, 5576,

5577, 5582, 5584, 5586, 5587 (1975).

* Ex. 92, p. 1; 10 U.S.C. § 3071 (1975).

* The significance of women’s exclusion is reflected in the fact that 95 % of

the Army’s generals as of August 1, 1973, had attended a war college. Ex. 92,

a 1; 94, “United States Army, Military Education Level of General

cers.”

710 U.S.C. § 1255 (1967).

* Military regulations required the discharge of women who became preg-

nant or who became the parents of children less than 18 years of age (Exs.

124-127, 133-138, 144-152). Women were also discharged for failure to

meet minority and parental consent requirements to which men were not

subject (Exs. 130-132). Female nurses and warrant officers were mandatori-

A ‘aon at younger ages than male officers and warrant officers (Exs. 128,

IV. Tue History oF THE COMMONWEALTH’S VETERANS

PREFERENCE STATUTE.

The first civil service statute in the Commonwealth, enacted

in 1884, Mass. St. 1884, c. 320, provided a form of veterans’

preference without specific reference to sex. However, the

Civil Service Commission rules implementing the statute indi-

cated that personnel requisitions could be made on the basis of

sex *; .

“In case the request for any such certification, or any law

or regulation, shall call for persons of one sex those of that

sex shall be certified; otherwise sex shall be disregarded in

certification.” (Civil Service Rule XIX(3).)

*° Contemporaneous legislative history makes clear that this rule was de-

signed to allow women to be requested expressly for clerical positions. In

1886, vetoing a bill to permit appointment of veterans without regard to civil

service rules, the governor characterized as jobs “for which the veterans

would not under any circumstances be available” those in “the clerical serv-

ice for which women were wanted.” Civ. Serv. Comm. 2d Ann. Rep. (1886)

at 108. In 1887, in its Third Annual Report, the Civil Service Commission

expressly addressed the subject of the appointment of women:

“APPOINTMENT OF WoMEN. The clerical service of Massachusetts

and her cities is open under the Civil Service Rules to both sexes. It has

long been proved that for many of the clerical positions in the public

service women are at least as well qualified as men. For these posi-

tions, during the year, 109 women were examined, of whom 83 passed

and 17 were appointed. In the same branch of the service 37 men were

appointed. The Commissioners make no distinction between the sexes

in certifying names for appointment. Unless the requisition calls for

persons of one sex, names of both sexes, or either sex, according to the

standing upon the eligible list, are certified. Any inequality in the

number of men, arises either from the necessities of the service or the

personal preference of appointing officers.” Civ. Serv. Comm. 3d

Ann. Rep. at 23 (1887).

In 1895, the Massachusetts legislature passed the first com-

plete veterans’ preference statute, Mass. St. 1895, c. 501. The

statute provided an absolute preference for veterans who had

been examined and found qualified for appointment and

stated “nothing herein contained shall be construed to prevent

the certification and employment of women.” Id., § 1. Sec-

tion 2 of the statute provided for an absolute preference for all

veteran applicants for employment over “all other applicants,

not veterans, except women. . ..”*° The absolute preference

provided by § 2 of the 1895 statute was challenged under the

Massachusetts Constitution in Brown v. Russell, 166 Mass. 14

(1896). The court held that an absolute preference for veter-

ans, without regard to their meeting at least minimum qualifi-

cations for appointment, was unconstitutional.

In 1896, the legislature first adopted the absolute veterans’

preference formula which without substantial changes in its

design has remained in effect until the present. Mass. St.

1896, c. 517. Pursuant to this preference statute, Civil Service

Rule XXVII(1) provided for single-sex requisitions*' :

* The district court noted that “[a]lthough the 1895 statute on its face ap-

pears to exempt women from the operation of the veterans’ preference with

respect to all available jobs, the prior and subsequent legislative history sug-

gest that the statutory language was merely consistent with the pre-existing

rule permitting single sex lists. See Civil Service Rule XIX(3) promulgated

pursuant to Stat. 1884, ch. 320.... Statistics show that the exemption

operated only to preserve stereotypically ‘female’ clerical jobs for women.”

451 F. Supp. at 148 n.9 (App. 260-61).

*! The 1896 statute may have increased the appointment of women, but

only with respect to “clerical service”: The Thirteenth Annual Report stated:

“There were 134 more women examined than during the previous

year, showing the still growing desire of women to seek employment

under the present civil service system, and the inclination of appoint-

ment officers to employ them in the clerical service. This inclination

may be partly due to the veteran preference provided by the present

legislation.” Civ. Serv. Comm. 13th Ann. Rep. at 6 (1896).

“Whenever any officer or board having the power of ap-

pointment to any office or employment under these rules

shall make requisition not expressly calling for women,

the commissioners shall certify the names of all veterans

who have passed the examination for the position sought,

in the order of the respective standing of such veterans

upon the list; in case such officer or board shall in the req-

uisition request the certification of women, then the com-

missioners shall certify the names of the three most eligi-

ble women upon the list.”

In 1919, a substantive reenactment and reaffirmation of the

policy of using an absolute and permanent form of preference

was passed to benefit World War I veterans. Mass. St. 1919,

c. 150. This statute, inter alia, adopted the language of Rule

XXVII(1) concerning “female” requisitions and applied the

veterans’ preference to all requisitions which did not especially

call for women. The relevant language of § 2 provided as

follows:

“The names of veterans who pass examinations for ap-

pointment to any position classified under the civil service

shall be placed upon the respective eligible lists in the

order of their respective standing, above the names of all

other applicants, and upon receipt of a requisition not

especially calling for women, names shall be certified

from such lists according to the method of certification

prescribed by the civil service rules applying to civilians.”

In 1921, the veterans’ preference provision was recodified in

chapter 31 of the General Laws, perpetuating the allowance

of single-sex requisitions. Rule 13 of the amended Civil Serv-

ice Rules authorized the Commissioner to respond to a requisi-

tion designating sex, stating in part that “[w]henever any ap-

pointing officer shall make requisition, the Commissioner shall

certify from such list as he shall deem suitable, and may recog-

nize the qualification of sex if so stated in the requisition.”

The final and most recent legislative reaffirmation of the

policy to utilize an absolute and permanent form of preference

occurred in 1954 when the legislature enacted substantial revi-

sions and extended the absolute preference to veterans of the

Korean war. Mass. St. 1954, c. 627. In addition to reenact-

ing an absolute form of preference which could be used re-

peatedly throughout the lifetime of a veteran, the statute con-

tinued to reflect the legislative authorization for sex-specific

requisitions by exempting the absolute preference in the case

of “receipt of a requisition not especially calling for women.”

Mass. St. 1954, c. 627, §5. The present form of the preference

is virtually identical to that enacted by the legislature in 1954.

In 1971, the legislature deleted the language in the statute

which made the preference inapplicable to requisitions

especially calling for women, Mass. St. 1971, c. 219. In 1978,

an overall recodification of the civil service laws was enacted

with no substantive changes with respect to the form of ab-

solute preference. Rather than appearing in Mass. Gen. Laws

c. 31, § 23, the absolute preference formula is now codified in

Mass. Gen. Laws c. 31, § 26.

Summary of Argument.

Massachusetts accords an absolute and permanent prefer-

ence to veterans seeking civil service employment. It is ab-

solute in that all veterans who pass the qualifying examination

must be considered ahead of all other eligible persons regard-

less of score. It is permanent in that it may be used any num-

ber of times for any number of jobs throughout a veteran’s life-

time. Because women were barred by law from the military

service, the result of this extreme form of preference is that

women, no matter how well qualified, are systematically

barred from civil service positions whenever they compete

with men. Women are thus relegated to those traditionally

“female” jobs which are shunned by men. The absolute and

permanent preference produces and perpetuates occupational

sex-segregation in the civil service system.

The effects upon women caused by the adoption of the ab-

solute and permanent form of preference were intentional and

- purposeful for two reasons that distinguish it from the neutral

writing test at issue in Washington v. Davis, 426 U.S. 229

(1976). First, the veterans’ preference statute is inherently

non-neutral with respect to women, because it incorporates

into the hiring process for public service jobs decades of de jure

discrimination against women by the military services. Sec-

ond, the discrimination against women was inevitable. When

the absolute and permanent form of preference was adopted,

it was known to a certainty that its use would exclude women

from every civil service position of interest to men. The pre-

ferred class is one that by law is closed to women.

While analysis of the objective factors conclusively demon-

strates that the exclusionary effects on women were inten-

tional and purposeful, the legislative history and background

also show that the choice of the extreme form of preference

was prompted by and premised upon the assumption that

women would not or should not compete with men for upper-

level positions. Rather, the legislators assumed that women

would only be interested in and suitable for the traditional

“female” jobs of a secretarial or clerical nature.

The defendants did not rebut the evidence of purposeful

and intentional discrimination. There was no clear and con-

vincing evidence that the choice of this form of preference was

free from the taint of discriminatory factors. Nor is it suffi-

cient merely to point to the legitimate purpose of aiding veter-

ans. The ultimate objective of the statutory scheme does not

absolve the Commonwealth of the intended consequences of

the specific means — an absolute and permanent preference

— which it chose to attain its objective. The Commonwealth

showed no actual affirmative action to mitigate the effects of

the extreme preference on women.

After finding that the preference intentionally discriminates

against women, the district court properly examined the stat-

ute to determine whether it is substantially related to the

achievement of an important governmental objective. This

correctly included an examination of the specific means

selected by the state. The Commonwealth failed to meet its

burden to demonstrate any convincing rationale for an ex-

treme form of preference as a means to aid veterans. In fact,

the preference does not closely serve the goals asserted in sup-

port of it by the Commonwealth, and more tailored methods

exist which would substantially better serve these goals with-

out systematically excluding women competing for upper-level

civil service positions.

Therefore, the absolute and permanent form of preference

which was premised upon and perpetuates overbroad assump-

tions about the “suitable” roles of women in the job market

denies to the plaintiff the equal protection of the laws in viola-

tion of the Fourteenth Amendment.

Argument.

I. THe Distraicr Court CorrectLty HELD THAT THE LEGISLA-

TURE’S CHOICE OF AN ABSOLUTE AND PERMANENT FORM OF

PREFERENCE CONSTITUTED AN INTENTIONAL AND PURPOSEFUL

DISCRIMINATION AGAINST WOMEN.

The Commonwealth of Massachusetts operates a civil serv-

ice system that is segregated by sex. Men occupy the upper- .

level, higher-paid positions of responsibility,** while women

are relegated to the less responsible, primarily clerical and

ministerial positions. “[A]s is conceded by all parties, . . .

female appointees are generally clerks and secretaries, lower-

grade and lower-paying positions for which men traditionally

have not applied. Few, if any, females have ever been con-

sidered for the higher positions in the state Civil Service.” 415

F. Supp. at 498 (App. 218); see also the stipulated testimony of

the Director of Civil Service (App. 184).

This “clear pattern of exclusion of women from competitive

civil service positions,” ** 451 F. Supp. at 149 (App. 263), re-

%The defendants offered no evidence whatsoever that any significant

number of women are, in fact, employed in upper-level jobs in the civil serv-

ice system.

3 While 56 per cent of the applicants eligible for appointment in a ten-year

period were women, only 43 per cent (20,211) of the actual appointees

(47,005) were women (App. 79, 174), and a significant percentage of these

women “served in lower grade positions for which men traditionally did not

apply.” 451 F. Supp. at 149 (App. 262). In relying on this 43 per cent

figure, see Brief for the Appellants, p. 43, defendants are not only oblivious

to applicant/appointee ratio but also ignore the crux of this case: that the

adoption of an absolute and permanent form of preference inevitably ex-

cludes women from positions for which they must compete with men, in-

cluding the upper-level positions which are the most desired in state service.

Indeed, their argument appears to be premised on the stereotypic assumption

that a woman should not be seeking an upper-level job, but should be

satisfied instead to obtain a lower-level, clerical position.

i 23

sults inexorably from the absolute and permanent form of vet-

erans’ preference. More than 98 per cent of all veterans in the

Commonwealth are men, and only 1.8 per cent of-such veter-

ans are women (App. 83). Moreover, 47 per cent of all men in

Massachusetts over the age of 18 are veterans (in contrast to

0.8 per cent of all such women) (App. 83), and male veterans

eligible for the absolute preference throughout their lifetimes

apply for virtually every upper-level civil service position.

See, e.g., Exhibits 13 through 62. Since, “[a]s a practical mat-

ter. . . the Veterans’ Preference replaces testing as the criteri-

on for determining which eligibles will be placed at the top of

the list,” 415 F. Supp. at 488-489 (App. 198); 451 F. Supp. at

145 (App. 254), male veterans hold virtually every significant

civil service appointment, in Massachusetts. Because women

were barred from becoming veterans, the absolute preference

benefits “an already established class,” 451 F. Supp. at 151

(App. 268) (Campbell, J., concurring), consisting almost en-

tirely of men,* and virtually every woman is barred from posi-

tions of interest to men.

As the district court found, the absolute preference formula

inescapably has a “devastating impact” on the employment

opportunities of women. 451 F. Supp. at 149 (App. 262). It

operates to make “upper-level state employment a male pre-

serve,” see 451 F. Supp. at 151 (App. 267) (Campbell, J., con-

curring), and effects a “near blanket, permanent exclusion of

all women from a major sector of employment.” See 415 F.

Supp. at 501 (App. 226) (Campbell, J., concurring).

The Commonwealth asserts that it may not be held to have

intended these drastic effects on women unless there is direct

evidence that at the time they enacted the veterans’ preference

statute, the Commonwealth’s legislators were subjectively

* When the preference was first enacted in 1896, the class entitled to the

preference consisted entirely of men.

motivated by an “anti-female animus”** or a “desire to harm

women.”** In essence, the Commonwealth is saying that a

state may consciously adopt a non-neutral selection classifica-

tion for public jobs which inevitably and inescapably operates

to exclude one sex, and then avoid heightened scrutiny of this

classification on the ground that no discrimination against the

group was intended. There is nothing in this Court’s opinion

in Washington v. Davis, 426 U.S. 229 (1976), or in any other

decision, that supports such an extreme view of what consti-

tutes proof of intentional and purposeful consequences. Proof

of subjective ill-will or malice toward a particular group is

simply not required by Davis. In fact, any requirement of

such proof would be particularly inappropriate in sex discrimi-

nation cases because, as this Court has repeatedly emphasized,

the nature of invidious sex discrimination is not so much a de-

_sire to disadvantage or harm women for its own sake, but

rather an overriding insensitivity or indifference to their legiti-

mate interests based on “outdated misconceptions concerning

the role of females in the home rather than in the ‘marketplace

and world of ideas.’” Craig v. Boren, 429 U.S. 190, 198-199

(1976).

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

confirmed the fundamental proposition that a statute which is

neutral on its face should not be held invalid under the Equal

Protection Clause of the Fourteenth Amendment solely be-

cause it has been shown to have a disproportionate impact on a

suspect group or class. Rather, there must be an additional

showing that the effects upon the class were intentional and

purposeful. The discrimination must be shown to be deliber-

ate and purposeful as opposed to incidental or accidental.

Castaneda v. Partida, 430 U.S. 482, 494 n.13 (1977).

Jurisdictional Statement, p. 16.

%* Brief for the Appellants, p. 41.

_Proof that consequences are intentional and deliberate has

never been limited solely to direct proof of subjective states of

mind to determine the “desires” of legislators. Such an in-

quiry is both difficult and limited in usefulness. See Fletcher

v. Peck, 10 U.S. (6 Cranch) 87, 130 (1810).

Rather, as this Court recognized in Davis, the pertinent in-

quiry is to examine all the facts and circumstances to deter-

mine whether the effects on the class are intentional and pur-

poseful. A first step is to examine, regardless of facial appear-

ances, whether the selection criterion — the veteran classifica-

tion — is inherently and substantively neutral with respect to

gender.*’ If it is not, then a finding of intentional discrimina-

tion should follow, just as if there were an explicit reference to

gender on the face of the statute. Second, the inquiry should

focus on whether the choice of an absolute and permanent

form of preference inevitably causes one particular class to be

excluded.** If it does, then the exclusion is deliberate and in-

tentional under any reasonable construction of those terms.

The district court examined and analyzed the “totality of

the relevant facts,” 451 F. Supp. at 147 (App. 259), and con-

cluded.that the Commonwealth of Massachusetts had“. . . in-

tentionally sacrific[ed] the career opportunities of its women

in order to benefit veterans. . ..” 451 F. Supp. at 150 (App.

265). Its conclusion was properly based on objectively veri-

fiable facts and circumstances that warrant a finding of inten-

tional and purposeful discrimination.

* For example, the writing test in Davis was inherently and substantively

“neutral” with respect to blacks because it was not “culturally slanted to

favor whites.” Id., 426 U.S. at 235.

** In Davis, the exclusionary effects of the test were not inevitably caused

by the test because both blacks and whites have equal opportunity to acquire

writing skills. See 451 F. Supp. at 151 (App. 267) (Campbell, J., con-

curring).

A. The Veterans’ Preference Statute Constitutes Inten-

tional and Purposeful Discrimination Against Women

Because It is Inherently Non-Neutral with Respect to Sex.

Unlike the personnel test in Davis, which established “a ra-

cially neutral qualification for employment,” 426 U.S. at 245,

because it was not “culturally slanted to favor whites,” id. at

235, the absolute veterans’ preference formula is “substantive-

ly non-neutral” with respect to sex, 451 F. Supp. at 152 (App.

269) (Campbell, J., concurring). The selection criterion —

veteran status — is structurally non-neutral with respect to sex

because it is inextricably intertwined with laws and regula-

tions that substantially barred or discouraged women from

military service.*® As the district court found, “(t]he selection

formula, geared as it is to veteran status, is necessarily con-

trolled by federal military proscriptions limiting the eligibility

Whether or not these regulations violated the constitutional rights of

either women or men is not at issue in this action. However, see Owens v.

Brown, 455 F. Supp. 291 (D. D.C. 1978), which found at least some restric-

tions on women by the military to be unconstitutional and which case was

not appealed by the federal government. What is relevant is that they indis-

putably discriminated against women as to initial enlistment and officer re-

cruitment and as to career and advancement opportunities within the serv-

ices.

The defendants ignore both the fact and the importance of this discrimina-

tion when they suggest that the “reasons for the lack of women in the military

were social in nature.” See Brief for the Appellants, p. 36. The persistent

and pervasive nature of these discriminatory regulations provides a compel-

ling basis upon which to conclude, as did the district court, that they were

largely the reason for the absence of significant numbers of women in the

military. Indeed, the plaintiff’s experience is illustrative. During World

War II, when she inquired as to military enlistment at the age of 18, she was

told that, as a woman, she needed parental consent (App. 180), which her

mother declined to give. She was told that there were more rigorous physical

requirements for women than for men (App. 180). Finally, because she mar-

ried and had children, she (unlike men) was absolutely barred from the mili-

tary for at least the 19 years from 1952 through 1971 when she had minor

children (App. 175).

of women for participation in the military.” 451 F. Supp. at

145 (App. 254). Until 1967, federal law established a 2 per

cent quota for women personnel in the armed forces, and the

Army — the largest of the armed services — continued to

adhere to such a quota. Furthermore, until the 1970's, the

armed services prohibited the enlistment of married women,

but not of married men. Federal regulations also prohibited

the enlistment of women with minor children, but not of men

with minor children. While women could not enlist until age

18, and parental consent was required until age 21, men could

enlist at 17, and parental consent was required only until age

18. Women were also subjected to more rigorous mental and

physical entrance requirements. At the same time, female

enlistment was discouraged further by the fact that women in

the military were accorded fewer training and advancement

opportunities. See 415 F. Supp. at 489-490 (App. 200). All of

this de jure discrimination against women is incorporated

wholesale by the veterans’ preference statute into the “entirely

different sphere of public employment where male preference

is not only not the rule but is constitutionally impermissible.”

451 F. Supp. at 151 (App. 267). See generally, Comment,

“Veterans’ Public Employment Preference as Sex Discrimina-

tion,” 90 Harv. L. Rev. 805, 811-812 (1977).

Since the Commonwealth’s selection criterion extends the de

jure discrimination of the military into the area of public em-

ployment, it is inherently non-neutral with respect to gender.

Rather, as the district court found, the Commonwealth’s ex-

treme form of preference is “anything but an impartial, neu-

tral policy of selection, with merely an incidental effect on the

opportunities for women.” 415 F. Supp. at 495 (App. 212).

This is because women were by law denied an equal opportu-

nity to become veterans. 415 F. Supp. at 489-490 (App. 199-

201). Thus, the statute prefers a class which by operation of

law is 98 per cent male. Moreover, the preferred group —

veterans — is a closed class because only veterans who have

served during wartime are eligible for the preference. For all

these reasons, as Judge Campbell concluded, the “neutrality”

of the statute

“is at best skin-deep. The law was sexually skewed from

the outset, since the exclusionary effect upon women was

not merely predictable but absolutely inescapable and

‘built-in’.” 451 F. Supp. at 151 (App. 268).*

The Commonwealth controls, and is responsible for, the

employment selection standards and procedures in its civil

service system. Its choices are intentional. When it deliber-

ately makes the sexually non-neutral status of veteran a neces-

sary condition of employment, it intentionally and purposeful-

ly bars women from upper-level civil service jobs. The de-

fendants’ argument that the Commonwealth is not responsible

‘© The district court also noted a second aspect of the statute’s inherent non-

neutrality that shows a purposeful discrimination. Unlike the selection

criterion in Davis, which was “designed to serve neutral ends,” Washington

v. Davis, supra, 426 U.S. at 248, the district court found that the absolute

and permanent form of veterans’ preference is:

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

clearly identifiable group of its citizens, those who qualify as veterans,

. at the absolute and permanent disadvantage of another clearly

identifiable group, Massachusetts women.”

451 F. Supp. at 146 (App. 256). An avowed and express objective to prefer a

particular group to the predominant exclusion of another group is the an-

tithesis of neutrality. The decision to prefer absolutely an established male

class is a priori a non-neutral decision with respect to women which raises the

“| , serious problems of justice connected with the idea of preference itself.”

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

2752-53 (1978) (opinion of Powell, J.).

for discrimination against women by the military services*!

misses the point. The Commonwealth is responsible for its

decision to incorporate veteran status as the non-neutral op-

erative criterion for selection in the civil service system. This

decision makes the resulting discrimination against women

purposeful and intentional. See Washington v. Davis, supra,

426 U.S. at 241; see also Alexander v. Louisiana, 405 U.S. 625,

630 (1972) (“. . . [T]he selection procedures themselves were

not racially neutral.”).

Defendants emphasize that the veterans’ preference statute

is “facially neutral.” See Brief for the Appellants, pp. 32-37.

However, the gender-based nature of the classification need

not “be express or appear on the face of the statute.” Wash-

ington v. Davis, supra, 426 U.S. at 241. The mere “facial”

neutrality of a statute is not determinative, if its structure

“' Brief for the Appellants, p. 35. Contrary to the defendants’ assertion, as

a matter of historical fact, the Commonwealth is partially responsible for dis-

crimination against women by the military services. The Commonwealth

directly controls membership in its militia and national guard units, veterans

of which may qualify for the civil service preference. Mass. Gen. Laws

c. 33, § 2 states that the “militia of the commonwealth shall consist of all

able-bodied male citizens . . .” but requires women wishing to serve to apply

for membership. More significantly, Mass. Gen. Laws c. 33, § 11, which

provides for the composition of the national guard of the Commonwealth,

adopts all pertinent federal laws and Department of Defense regulations, in-

cluding federal enlistment requirements. The Commonwealth has thus di-

rectly incorporated all the federal laws and regulations which intentionally

exclude women, for which it now denies responsibility, into its own admis-

sion practices for state units. In addition, by operation of law, 32 U.S.C.

§ 325, the state units become part of the federal military forces when such

units are mobilized during time of war, as they were during World War II

and the Korean War. See [1946] National Guard Bureau, Ann. Rep. of

Chief 163-165, 216, 222, 224, 239, 241-242, 259; [1940-1941] National

Guard Bureau, Induction of the National Guard of U.S. 3-6, 8, 11 (World

War II); [1950-1956] National Guard Bureau, Induction and Release of Ar-

my National Guard Units 59 (Korea). Veterans who served in the national

guard units on active duty during these periods are eligible for Massachusetts’

absolute preference. Mass. Gen. Laws c. 31, § 23; c. 4, § 7, cl. 43.

necessarily produces discrimination. See, e.g, Reitman v.

Mulkey, 387 U.S. 369 (1967); Gomillion v. Lightfoot, 364 U.S.

339 (1960); Griffin v. Illinois, 351 U.S. 12, 17 n.11 (1956)

(“But a law nondiscriminatory on its face may be grossly dis-

criminatory in its operation.”); Smith v. Allwright, 321 U.S.

649, 664 (1944) (“Constitutional rights would be of little value

if they could be thus indirectly denied.”); Guinn v. United

States, 238 U.S. 347 (1915). Deliberate and intentional legis-

lative classifications which cause invidious and unequal treat-

ment of a protected class are no less invidious because they are

superficially neutral. See, e.g., Swann v. Charlotte-Mecklen-

burg Board of Education, 402 U.S. 1, 28 (1971) (“[A]n assign-

ment plan is not acceptable simply because it appears to be

neutral.”); Anderson v. Martin, 375 U.S. 399, 404 (1964)

(Therefore, we view the alleged equality as superficial. Race

is the factor upon which the statute operates . . ..”); Goss v.

Board of Education, 373 U.S. 683, 688 (1963) (“The alleged

equality — which we view as only superficial — . . . does not

save the plans.”).*®

42 Nor does this Court’s decision in Geduldig v. Aiello, 417 U.S. 484 (1974),

hold that heightened judicial scrutiny may not be applied to any statute that

appears neutral with respect to gender. Aiello, which held that the failure of

California’s employee-funded sickness and disability plan to provide benefits

in cases of normal pregnancy did not discriminate on the basis of sex, differs

from this case in a number of crucial respects. See 415 F. Supp. at 495 n.8

(App. 212); Fleming & Shanor, “Veterans’ Preferences in Public Employ-

ment: Unconstitutional Gender-Discrimination?”, 26 Emory L.J. 13, 30-33

(1977). First, the insurance plan did not effectively exclude women from

benefit eligibility; women as well as men obtained significant benefits. See

Geduldig v. Aiello, supra, 417 U.S. at 496 n.20. Under the veterans’ prefer-

ence formula, by contrast, women are effectively excluded from upper-level

civil service positions. Second, the insurance plan did not discriminate

“against any definable group or class in terms of the aggregate risk protection

derived by that class from the program,” id. at 496; indeed, the insurance

plan in Aiello actually provided women with greater benefits than men. Id.

at 497 n.21. By contrast, the veterans’ preference statute clearly imposes a

disproportionate burden on women. See 451 F. Supp. at 148-149 (App. 262-

These decisions do not simply analyze statutory language in

a vacuum; rather, they review challenged statutes in light of

both historical facts and contemporary reality to determine if

the statutes, by their structure and design, discriminate

against an identifiable group. For example, this Court has

invalidated superficially neutral “grandfather” clauses in —

voting rights cases, recognizing that there exist “sophisticated

as well as simple-minded modes of discrimination.” Lane v.

Wilson, 307 U.S. 268, 275 (1939).

What appears neutral should not mask what by its inherent-

ly non-neutral structure and design constitutes a purposeful

and intentional exclusion of women. The veterans’ preference

statute incorporates the de jure discriminatory hiring policies

of the military services into the selection procedures for com-

petitive civil service positions. The resulting effects are not ac-

cidental; they could be no more purposeful and deliberate if

the statute on its face imposed a 2% quota for women on

upper-level positions.

B. The Inevitability of the Exclusionary Impact Demon-

strates a Deliberate and Intentional Discrimination

Against Women.

In addition to concluding that the preference constitutes a

non-neutral, discriminatory selection criterion, the district

264); 415 F. Supp. at 497-498 (App. 216-219). Third, Aiello involved a

necessary effort to set priorities in dispensing the limited resources of a social

insurance program. See 415 F. Supp. at 495 n.8 (App. 212). By contrast,

this case involves a program which aids veterans “at the absolute and perma-

nent disadvantage of” women, 415 F. Supp. at 496 (App. 213); 451 F. Supp.

at 146 (App. 256), despite the existence of less drastic alternatives which

would not deprive women of opportunities for public employment in Massa-

chusetts. Finally, Aiello essentially involved social welfare legislation, while

this case involves the interest of women in a fair opportunity for public em-

ployment. Cf. Turner v. Fouche, 396 U.S. 346, 362 (1970) (recognizing a

“federal constitutional right to be considered for public service without the

burden of invidious discriminatory disqualifications’).

court found that the Commonwealth’s use of an absolute and

permanent form of preference inevitably excludes women

from upper-level civil service positions and produces a sex-

segregated workforce. Thus, as the district court noted: “ The

course of action chosen by the Commonwealth had the in-

evitable consequence of discriminating against the women of

this state.” 451 F. Supp. at 150 (App. 264).

Without regard to the individual qualifications of female

applicants, Massachusetts has chosen “a preference so absolute

that all women, except the very few who are veterans, are ef-

fectively and permanently barred from all areas of civil service

employment not shunned by men.” 415 F. Supp. at 501 (App.

226) (Campbell, J., concurring). Since the Commonwealth

has adopted an absolute and permanent form of preference

which “replaces testing as the criterion for determining which

eligibles will be placed at the top of the list,” 415 F. Supp. at

489 (App. 198), the “veteran” criterion inevitably and inex-

orably excludes women whenever they compete with men.

Furthermore, the legislative history of the statute demon-

strates that the Massachusetts legislature knew that an ab-

solute preference would inevitably bar virtually all women

from any positions sought by men. This is why the legislature

felt it necessary to “protect” jobs “especially calling for

women” from the operation of the preference. See pp. 16 to

19, supra; 451 F. Supp. at 148 n.9 (App. 260).

The district court reasoned that since the result of excluding

women was inevitable at the time the veterans’ preference

statute was adopted, the legislature must have intended this

result as much as it intended the result of benefiting veterans.

As Judge Campbell explained:

“This same inevitability of exclusionary impact upon

women also undermines the argument of no discrimina-

tory intent. There is a difference between goals and in-

aan

tent. Conceding, as we all must, that the goal here was

to benefit the veteran, there is no reason to absolve the

legislature from awareness that the means chosen to

achieve this goal would freeze women out of all those

state jobs actively sought by men. To be sure, the legisla-

ture did not wish to harm women. But the cutting-off of

women’s opportunities was an inevitable concomitant of

the chosen scheme — as inevitable as the proposition that

if tails is up, heads must be down. Where a law’s conse-

quences are that inevitable, can they meaningfully be

described as unintended?”

451 F. Supp. at 151 (App. 268) (Campbell, J., concurring).

The rule that an actor intends all the inevitable conse-

quences of his actions is one of the most basic in all of the com-

mon law, both civil and criminal. See, e.g., Holmes, “Privi-

lege, Malice and Intent,” 8 Harv. L. Rev. 1 (1894); American

Law Institute, Restatement (Second) of Torts § 8A* (1965).

As one authority has succinctly explained:

“[s]tated in terms of a formula: Intended consequences

include those which (a) represent the very purpose for

which an act is done (regardless of likelihood of occur-

43 Comment B to this section states:

“All consequences which the actor desires to bring about are in-

tended, as the word is used in this Restatement. Intent is not, how-

ever, limited to consequences which are desired. If the actor knows

that the consequences are certain, or substantially certain, to result

from his act, and still goes ahead, he is treated by the law as if he had

in fact desired to produce the result. As the probability that the conse-

quences will follow decreases, and becomes less than substantial cer-

tainty, the actor’s conduct loses the character of intent, and becomes

mere recklessness, as defined in § 500.”

rence), or (b) are known to be substantially certain to

result (regardless of desire) .”

Perkins, “A Rationale of Mens Rea,” 52 Harv. L. Rev. 905,

911 (1939). This rule is based on a fundamental substantive

judgment that there is no substantial difference, for purposes

of assigning legal responsibility for the consequences of an act,

between a subjective desire to achieve a harm from one’s act,

and a complete disregard as to whether the harm results or

not. 1 Bishop, Criminal Law § 20 (9th ed. 1939).

The rule that decisionmakers intend, and consequently are

accountable for, the inevitable and necessary consequences of

their actions has been applied by this Court in numerous con-

texts where, as here, a showing of intent to achieve a par-

ticular consequence is required. Thus, the rule has been ap-

plied in school desegegration cases under the Fourteenth

Amendment ever since the Court announced the principle in

Goss v. Board of Education, 373 U.S. 683 (1963), that:

“(No official transfer plan or provision of which racial

segregation is the inevitable consequence may stand

under the Fourteenth Amendment.” Id. at 689.

The same rule was applied again in Monroe v. Board of

Commissioners, 391 U.S. 450 (1968), where the Court found

that a superficially neutral “free transfer” plan operated to

allow segregation and that such an “‘inevitable consequence, ’”

id. at 459, was sufficient to hold the state accountable for its

action. Similarly, in Monroe v. Pape, 365 U.S. 167, 187

(1961), overruled in other respects, Monell v. Department of

Social Services, ___ U.S. ___, 98 S. Ct. 2018 (1978), this

Court held that the civil rights statute, 42 U.S.C. § 1983,

“should be read against the background of tort liability that

makes a man responsible for the natural consequences of his

actions.”** See also Washington v. Davis, supra, 426 U.S. at

254-255 (Stevens, J., concurring).

Following Washington v. Davis, supra, the various courts of

appeals and district courts have also analyzed objective cir-

cumstances to determine whether discriminatory intent was

sufficiently demonstrated by showing that the unequal effects

were the inevitable, natural or substantially certain result of

governmental action. See United States v. School District of

Omaha, 565 F. 2d 127, 128 (8th Cir. 1977), cert. denied, 434

U.S. 1064 (1978); Arthur v. Nyquist, 573 F. 2d 134, 142-143

(2d Cir.), cert. denied sub nom. Manch v. Arthur, No. 78-30

(Oct. 2, 1978); N.A.A.C,P. v. Lansing Board of Education,

559 F. 2d 1042, 1046-1048 (6th Cir. 1977), cert. denied, 434

U.S. 997 (1977); United States v. Texas Education Agency,

579 F. 2d 910, 913-914 (5th Cir. 1978); Armstrong v. O’Con-

nell, 451 F. Supp. 817 (E.D. Wis. 1978); see also Note, “Proof

of Racially Discriminatory Purpose under the Equal Protec-

tion Clause: Washington v. Davis, Arlington Heights, Mt.

“In addition, the Court has applied the rule that an actor intends those

consequences that are inevitably or substantially certain to result from the

chosen action in all contexts in which an intent to cause discrimination or

some other result is a necessary part of the proof. Thus, in cases arising

under § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3),

which prohibits discrimination for the purpose or with the intent of

discouraging union activities, the Court has consistently held that the req-

uisite intent can be established by proof that the employer knew that his ac-

tions were virtually certain to cause the discriminatory result. See, e.g.,

NLRB v. Great Dane Trailers, 388 U.S. 26, 33-34 (1967); NLRB v. Erie

Resistor Corp., 373 U.S. 221, 231 (1963); Radio Officers’ Union v. NLRB,

347 U.S. 17, 44-47 (1954). Similarly, in the context of criminal law, this

Court has recognized the sufficiency of proving intent by showing that the

consequences necessarily stemmed from the actor's chosen conduct. See

Cramer v. United States, 325 U.S. 1, 31 (1945); United States v. Murdock,

290 U.S. 389, 394-395 (1933); United States v. Patten, 226 U.S. 525, 539

(1913); and Agnew v. United States, 165 U.S. 36, 50 (1897).

Healthy, and Williamsburgh,” 12 Harv. C.R. — C.L. L. Rev.

725 (1977); Note, “Intent to Segregate: The Omaha Presump-

tion,” 44 Geo. Wash. L. Rev. 775 (1976).**

Moreover, application of the rule that a decisionmaker in-

tends all the inevitable consequences of his act is particularly

appropriate in sex discrimination cases. This is because the

most pervasive form of invidious sex discrimination, as recog-

nized by this Court, is not a conscious desire or an ultimate ob-

jective to harm women, but rather overbroad generalizations

and misconceptions about the “suitable” roles for women in

society. See Frontiero v. Richardson, 411 U.S. 677, 684

(1973); Craig v. Boren, 429 U.S. 190, 198-199 (1976). While

such discrimination may at times lead to explicit sex classifica-

tions, it may also lead, as here, to statutory classifications

which, while not expressly referring to gender, were obviously

enacted in complete disregard of the legitimate interests of

women. It would simply make no sense to apply one level of

scrutiny to the former type of classification on the ground that

an intent to discriminate against women was present, and a

different level of scrutiny to the latter type of classification on

the ground that it was not.

Additionally, a rule that an actor intends all the inevitable

consequences of his act is sufficiently strict — dependent, as it

is, on proof that the result in question was substantially certain

to occur or was inevitable — that its application in cases aris-

‘S The decisions cited in the Brief for the Appellants, p. 46, i.e., United

States v. City of Chicago, 549 F. 2d 415 (7th Cir.), cert. denied, 434 U.S. 875

(1977), and Guardian Association of New York City Police Department v.

Civil Service Commission, 431 F. Supp. 526 (S.D. N.Y.), vacated and

remanded, 562 F. 2d 38 (2d Cir. 1977), are clearly not to the contrary. Those

cases were identical to Washington v. Davis, supra, in that they involved the

use of tests which were racially neutral and did not in any sense inevitably ex-

clude blacks or other minorities. Thus, there was no occasion for the courts

to consider the “inevitable consequences” rule as here discussed.

ing under the Equal Protection Clause will not lead to the

wholesale invalidation of statutes or other official acts, which

was the principal concern articulated by this Court in Wash-

ington v. Davis. See 426 U.S. at 248 n.14. Rather, the rule is

properly applied only where, as here, the legislature has

adopted a classification which, while not explicitly saying so

on its face, “inevitably” or “inescapably” excludes a particular

class of persons. Under these circumstances, the district court

properly concluded that the exclusion of women was an in-

tended and purposeful result of the chosen form of preference.

II. Discriminatory ASSUMPTIONS ABOUT THE ROLE oF Wom-

EN SUBSTANTIALLY AFFECTED THE LeEcIsLATors’ DECISION TO

ADOPT AN ABSOLUTE AND PERMANENT ForM OF VETERANS’

PREFERENCE.

‘

The district court’s analysis of all the “objective evidence” “

showed that the systematic exclusion of women when they

compete with men for upper-level positions inevitably resulted

from the operation of a non-neutral selection criterion that in-

corporates the de jure sex discrimination by the military serv-

ices. This was sufficient by itself to establish the requisite pur-

poseful and intentional nature of the state’s treatment of wom-

en. However, even if such objective evidence were lacking,

intentional discrimination could be established by evidence

that discriminatory perceptions of and assumptions concern-

ing women affected the subjective state of mind of legislators

during the decisionmaking process.‘7 Arlington Heights v.

“Dayton Board of Education v. Brinkman, 433 U.S. 406, 421 (1977)

(Stevens, J., concurring).

. The defendants erroneously argue that Arlington Heights requires the

plaintiff to prove “that the statute was motivated by an anti-female animus,”

Jurisdictional Statement, p. 16, or “by a desire to-harm women.” Brief for

Metropolitan Housing Corp., 429 U.S. 252, 265-267 (1977).

This Court’s approval in Arlington Heights of the use of such

an inquiry recognizes that “numerous competing considera-

tions” are involved in the deliberations of legislators but con-

firms that impermissible class-related distinctions are not a

proper influencing factor in legislative decisionmaking.* See

Arlington Heights v. Metropolitan Housing Corp., supra, at

965.*

Thus, it is relevant whether the legislators, in adopting and

maintaining an absolute and permanent form of preference,

were influenced by “ ‘archaic and overbroad’ generalizations,”

the Appellants, p. 41. It is simply not the law that proof of “purposeful” or

“intentional” discrimination against a particular class necessitates evidence

of a conscious subjective “malice” or “ill will.” The defendants have not

pointed to, and the plaintiff has not found, any decision by this Court

holding that proof of “purposeful” and “intentional” discrimination requires

proof of a malicious, odious or an “anti-female” state of mind. “It is, of

course, essential to equal protection analysis to have a firm grasp upon the

nature of the discrimination at issue.” See San Antonio School District v.

Rodriguez, 411 U.S. 1, 94 (1973) (Marshall, J., dissenting). Sex discrimina-

tion is decisionmaking that is premised upon and caused by impermissible

generalizations about the role of women in society that is often rationalized

in the form of “protecting” women. See Frontiero v. Richardson, 411 U.S.

677, 684 (1973); Califano v. Goldfarb, 430 U.S. 199, 211 (1977).

©The operation of class-related distinctions, such as stereotypes about

women or minorities, upon the decisionmakers does not even have to be a

conscious influence. In Hernandez v. Texas, 347 U.S. 475 (1954), for exam-

ple, this Court found an intent or purpose to discriminate from an analysis of

objective evidence of systematic exclusion of minorities from juries. Despite

the testimony of the defendant jury commissioners that “their only objective

had been to select those whom they thought were best qualified,” id. at 481,

the Court concluded that the “result bespeaks discrimination, whether or not

it was a conscious decision on the part of any individual jury commissioner.”

Id. at 482. See also Alexander v. Louisiana, supra, 405 U.S. at 632.

«° The Court’s decision in Arlington Heights in part reflected the analysis in

Professor Brest’s article on legislative motivation wherein he defines analysis

of “motivation” as “the inquiry to determine whether impermissible criteria

or objectives played a role in the decisionmaking process . . ..” Brest,

“Palmer v. Thompson: An Approach to the Problem of Unconstitutional

Legislative Motive,” 1971 Sup. Ct. Rev. 95, 115.

ACH.

Craig v. Boren, 429 U.S 190, 198 (1976), about the role of

women or “outdated misconceptions concerning the role of fe-

males in the home rather than in the ‘marketplace and world

of ideas.’” Jd. at 198-199. Proof that a legislature chose a

classification that is premised upon or serves the “purpose of

fostering ‘old notions’ of role typing,” id., 429 U.S. at 198. is

proof of purposeful sex discrimination.” See Califano ’

Goldfarb, 430 U.S. 199, 211 (1977). The available evidence

demons ‘rates that the legislators were substantially affected by

discriminatory stereotypes and traditional ways of thinking

about women. Asa result, the legislative choice of an extreme

and absolute preference was influenced and tainted by unlaw-

ful considerations in the form of discriminatory attitudes

about women.

A. The Inference from the Historical Background

of the Legislation.

“The historical background of the decision is one eviden-

tiary source . . .,” Arlington Heights, 429 U.S. at 267, from

which to infer that discriminatory attitudes affected the deci-

sionmaking process.

The absolute veterans’ preference was originally enacted in

1896 at a time when legislators, like other members of society

almost certainly presumed that women were inferior to males

and had a negligible or subordinate place in the job market

Thus, as this Court has noted:

“[T]hroughout much of the 19th century the position

of women in our society was, in many respects, com-

parable to that of blacks under the pre-Civil War slave

%° See, e.g, Weinberger v. Wiesenfeld, 420 U.S. 636 .

: : .S. 636, 644 (1975) (“[T]he

framers of the Act legislated on the ‘then generally accepted ted

that a man is responsible for the support of his wife and children.’”).

codes. Neither slaves nor women could hold office, serve

on juries, or bring suit in their own names, and married

women traditionally were denied the legal capacity to

hold or convey property or to serve as legal guardians of

their own children. . . . [A]lthough blacks were guaran-

teed the right to vote in 1870, women were denied even

that right — which is itself ‘preservative of other basic

civil and political rights’ — until adoption of the Nine-

teenth Amendment half a century later.”

Frontiero v. Richardson, supra, 411 U.S. at 685 (citations

omitted). See also Califano v. Goldfarb, supra, 430 U.S. at

2923 (Stevens, J., concurring) (recognizing “the 19th century

presumption that females are inferior to males”). An attitude

that females were inferior was “expressly recognized in the

literature of the 19th century,” Califano v. Goldfarb, 430 U.S.

at 223 n.10 (Stevens, J., concurring), and in its jurisprudence,

as reflected by the concurring opinion of Mr. Justice Bradley

in Bradwell v. State, 83 U.S. (16 Wall.) 130, 141 (1872):

“The natural and proper timidity and delicacy which be-

longs to the female sex evidently unfits it for many of the

occupations of civil life. . . .”

The view that women by virtue of their sex were suited only

for certain types of jobs was also clearly reflected in the Massa-

chusetts court decisions of the time. Indéed, in an 1896 opin-

ion, Brown v. Russell, 166 Mass. 14, 17 (1896), the Supreme

Judicial Court reviewed an early form of preference for veter-

ans and noted:

“When women are to be appointed, there is a satisfactory

reason in the nature of the office or employment why this

should be done.”

There can be no doubt that the decisions of the Common-

wealth’s 19th century legislators were also affected and influ-

enced by this prevailing attitude of female inferiority when

they first considered and adopted the absolute and permanent

form of veterans’ preference.*!

B. The Inference from the Legislative and

Administrative History.

An analysis of the legislative and administrative history of

the preference also demonstrates that the legislators who en-

acted and reenacted the absolute and permanent form of pref-

erence were strongly influenced by gender-based distinctions

and stereotypic assumptions about the role of women.

The first inference that the decisionmaking process was af-

fected by stereotypes about women is provided by examining

the specific legislative decisions — the statutes — to ascertain

whether gender-related distinctions are expressly set forth in

the legislation.** See, e.g., Hunter v. Erickson, 393 U.S. 385,

5! See also Fleming & Shanor, “Veterans’ Preference in Public Employ-

ment: Unconstitutional Gender Discrimination,” 26 Emory L.J. 13, 43

(1977) (“It seems probable that most legislators who drafted early extreme

veterans’ preference statutes, if asked why they could permit the employment

discrimination against women which would inevitably result from such a

statute, would respond that women belonged in the home and that, like

military jobs, upper echelon civil service jobs should be held by men.”).

In order to understand the factors that influenced the legislators, it is

necessary to examine the series of actual decisions in the form of specific

statutory enactments rather than merely to review the current codification of

the general law in Mass. Gen. Laws c. 31.

389 (1969). The present form of absolute preference was first

pee sf Chapter 517 of the Acts of 1896. Subsequently,

apart from simply expanding the definition of veteran or

general recodifications, there were two substantive legislative

acts reaffirming the choice of an absolute and permanent form

of preference: Chapter 150 of the Acts of 1919, and the most

recent decision set forth in Chapter 627 of the Acts of 1954.

An examination of these statutes reveals explicit distinctions on

the basis of gender, which were premised upon and fostered

the stereotype that women should occupy only lower-level

civil service jobs.

As conceded by the defendants,® the most recent reaffirm-

ance of the absolute and permanent form of preference, and

consequently the legislative act presently depriving the plain-

tiff and other women in the Commonwealth of access to

upper-level civil service positions, is § 5 of Chapter 627 of the

Acts of 1954. Mass. St. 1954, c. 627, § 5. This section on its

face makes it clear that the legislators intended that men and

women were to be treated differently and supports the in-

ference that the legislation was premised upon traditional

assumptions about the appropriate types of employment for

women. Thus, the section provides that:

“The names of persons who pass examinations for ap-

pointment to any position classified under the civil service

shall be placed upon the eligible lists in the following

order: —

“(1) Disabled veterans as defined in section twenty-

three A, in the order of their respective standing; (2) vet-

erans in the order of their respective standing; (3) persons

described in section twenty-three B in the order of their

respective standing; (4) other applicants in the order of

53 See Brief for the Appellants, p. 24.

their respective standing. Upon receipt of a requisition

not especially calling for women, names shall be certified

from such lists according to the method of certification

prescribed by the civil service rules applying to civilians.”

Mass. St. 1954, c. 627, § 5 (emphasis added).

The provision in the statute referring to “a requisition not

especially calling for women” is, as the defendants admit, a

reference “to special requisition lists classified along lines of

gender” which constituted “disparate treatment of similarly

situated males and females in the civil service system.” Brief

for the Appellants, p. 24, n.22. As the district court noted,

this policy “operated only to preserve stereotypically ‘female’

clerical jobs for women.? 451 F. Supp. at 148, n.9 (App.

260-261). The statute on its face shows that the legislators

knew and intended that the extreme form of preference would

freeze out women whenever they competed with men for jobs

unless an exception was made to shield them in particular jobs.

The fact that the legislators in the very statute that reaffirmed

a policy of absolute preference included the policy of seg-

regating certain “female” job classifications demonstrates that

they were influenced by the outdated assumption that women

would not, or should not, compete with men for most posi-

tions.

The 1971 amendment to the preference law accomplished

by Mass. St. 1971, c. 219, merely eliminated the mechanism

for separate requisitioning for “female” jobs and did not, in

any respect, constitute a retroactive nullification of the 1954

and earlier policy decisions** which were influenced by and

“The original statute in 1896 and the substantive reenactment in 1919 also

each contained a similar explicit distinction based on sex reflecting the

legislators’ view of the appropriate jobs for women. The 1896 legislative de-

cision stated: “But nothing herein contained shall be construed to prevent

premised upon the stereotypic assumptions about the ap-

propriate types of jobs for women. While the 1971 legislators

removed one obvious sex-discriminatory aspect of the statute

designed to “protect” certain jobs for women, they merely

struck the offending language without modifying the extreme

form of preference which, by its non-neutral structure, in-

evitably excludes women whenever they compete with men

for civil service jobs. Thus, as the district court recognized,

the 1971 amendment “did not remove the last vestiges of sex

discrimination from the statutory scheme; it only served to

make all positions in the civil service subject to the overriding

preference formula.” Jd. at 148 n.9 (App. 260).

The policy of separately recruiting and requisitioning on the

basis of gender was, in fact and practice, an integral part of

the employment practices of the Commonwealth for about 70

years. The legislature continued to authorize the practice in

1965 when it passed Mass. St. 1965, c. 53, which in part pro-

vided that examinations to establish a list for appointments

could “be restricted either to male persons or to female per-

sons,” and which cut back on the practice only on promotional

lists. See Mass. Gen. Laws c. 31, § 2A(e), prior to its amend-

ment by Mass. St. 1971, c. 221.

The administrative history also shows that the Common-

wealth consistently used the separate requisition system to dis-

criminate against female job seekers and to limit job openings

to male applicants. Exhibits 64-79, which are six notices for

counsel jobs and ten notices for administrative assistant jobs,

the certification and employment of women.” Mass. Acts and Resolves

(1896) c. 517, § 2. The 1919 legislative decision stated that the absolute

preference would apply “upon receipt of a requisition not especially calling

for women. . ..” Mass. Gen. Acts (1919) c. 150, § 2.

—EE

demonstrate this practice: each expressly invites only “male”

candidates to take the examination.

As this Court noted in Keyes v. School District No. 1,

Denver, Colo., 413 U.S. 189, 207-208 (1973), “a finding of il-

licit intent as to a meaningful portion of the item under con-

sideration has substantial probative value on the question of il-

licit intent as to the remainder.” Applying this principle to the

present case, the fact that the recruiting and requisitioning

policy and practice of the Commonwealth for approximately

70 years indisputably was based on intentional sex discrimina-

tion provides the strong inference that the extreme absolute

preference policy was based on similar impermissible gender-

related considerations.*

Furthermore, as this Court has also noted, a “series of of-

ficial actions,” see Arlington Heights, supra, 429 U.S. at 267,

based on gender-related distinctions can raise an inference of

ongoing discriminatory intent:

“This is merely an application of the well-settled eviden-

tiary principle that ‘the prior doing of other similar acts,

whether clearly a part of a scheme or not, is useful as re-

5SFor example, the 1961 notice of examination for an Administrative Assis-

tant position, Exhibit 67, stated: “Vacancies: From time to time, for males.”

The 1961 notice for a Head Administrative Assistant position, Exhibit 66,

stated: “Vacancies: At present there is one vacancy for a male....” A

1963 notice for a Tax Counsel and a 1962 notice for a position as Attorney,

Exhibits 64 and 65, each stated: “At present there is one vacancy for a male,

to be filled on a permanent basis.”

* As this Court explained in Keyes:

“. . . [T]here is high probability that where school authorities have ef-

fectuated an intentionally segregative policy in a meaningful portion

of the school system, similar impermissible considerations have

motivated their actions in other areas of the system.” 413 U.S. at 208.

ducing the possibility that the act in question was done

with innocent intent.””

Keyes v. School District No. 1, Denver, Colo., 413 U.S. at 207

(quoting 2 J. Wigmore, Evidence 200 (3d ed. 1940)).*”

In the present case, the evidence showed that legislature

after legislature continued to authorize the practice of sex-

specific recruiting and requisitioning. See, e.g., Mass.

St. 1896, c. 517; Mass. St. 1919, c. 150, § 2; Mass. St. 1945,

c. 725, § 2(e); Mass. St. 1954, c. 627, § 5; Mass. St. 1965,

c. 53. These distinctions by sex were also reflected in the rules

and reports of the Civil Service Commission which in early

years spoke only in terms of “clerical positions” for women.”

See supra, pp. 16-19. Year after year, for job after job, the

Division of Civil Service recruited and requisitioned based on

vacancies in “male” jobs and vacancies in “female” jobs. See,

e.g., Exhibits 64-79.

Moreover, when this action began in 1975, civil service law

reflected other express sex-related distinctions. For example,

Mass. Gen. Laws c. 31, § 23B, as amended by St. 1974, c. 835,

§ 109, provided for an absolute civil service preference to “the

57 Sometimes this principle is referred to as the “Keyes presumption of con-

tinuity of intent within an institution.” Note, “Reading the Mind of the

School Board: Segregative Intent and the De Facto/De Jure Distinction,” 86

Yale L. J. 317, n.19 (1976).

58 As recently as 1972, the Civil Service Rules contained gender discrimina-

tion. See, e.g., Rule 6, Rules of the Civil Service, which stated:

“A male applicant for all other positions of inspector in the Depart-

ment of Public Safety shall have reached his twenty-fifth birthday and

shall not have reached his fiftieth birthday on the date of examination

Division of Civil Service, Civil Service Laws and Rules, Form 345, 5

M-1-73-075231, at 84.

widow or widowed mother of a veteran,” which was premised

on the assumption that women are dependent on men. Mass.

Gen. Laws c. 31, § 24, amended in 1974 and in 1975, permit-

ted special requisitions for “young and vigorous men” to the la-

bor service until 1977 when “men” was changed to “persons”

by Mass. St. 1977, c. 815, § 2. Mass. Gen. Lawsc. 31, § 5, ex-

empted “male school traffic supervisors” from the provisions of

the civil service laws, while keeping female school traffic su-

pervisors under the civil service system.

Thus, the specific statutes enacting the extreme preference

policy, the interrelated and undisputed sex-discriminatory re-

cruiting and requisitioning policy and practices, and the con-

sistency of intent evinced by the long history of related gender-

based decisions, all provide the strong inference that the

legislative decisionmakers who adopted and reenacted the ex-

treme form of absolute and permanent preference were sub-

stantially affected by impermissible discriminatory assump-

tions and attitudes about the role of women in society.

C. The Inference from the Fact that the Massachusetts

General Court has Consistently been Dominated by Male

Legislators.

The simple fact that the decisionmaking bodies that

originally adopted and subsequently reenacted an absolute

and permanent form of preference have been overwhelmingly

dominated by males indicates that, insofar as the interests of

women were even considered, perceptions concerning their

appropriate employment status were based on archaic gener-

alizations about them. The Commonwealth’s legislature —

the General Court — from 1883 through 1974 has been vir-

tually an all-male group. Indeed, no woman was in the

*The General Court consisted of a House of Representatives with 240

members and a Senate with 40 members, during the period from 1883

legislature in 1896 when the absolute form of preference was

originally adopted or during the first major reenactment of

this policy in 1919. During the 1954 legislative session when

the absolute form of preference was most recently reenacted,

only seven women were among the 280 elected members.

When, as here, a particular group dominates the decision-

making process, an inference that that group will favor its own

interests is fairly raised. Indeed, the “classic situation in

which a ‘minority group’ may suffer discrimination in a com-

munity is where it is ‘relegated to . . . a position of political

powerlessness.’” Castaneda v. Partida, 430 U.S. 482, 515, n.6

(1977) (Powell, J., dissenting and quoting from San Antonio

School District v. Rodriguez, 411 U.S. 1, 28 (1973)). Male

legislators, like all males, have also been subjected to the

“socialization process of a male-dominated culture.” Kahn v.

Shevin, 416 U.S. 351, 353 (1974). Since the legislature has

undergone little change and has remained a predominantly

male club, the fair inference is that its members have con-

tinued to be influenced by outmoded stereotypic perceptions

of women. See Hazelwood School Dist. v. United States, 433

U.S. 299, 309, n.15 (1977), and cases cited therein; Fed. Rule

Evid. 406.

through 1974. The members were elected every two years. For each two

years, the Commonwealth has published a Manual for the Use of the General

Court (each odd numbered year), Boston, Massachusetts, which shows that

there were no women in the General Court until the 1923-1924 sessions and,

through 1974, there were never more than 10 female legislators among the

280 members.

III. THe DEFENDANTS FAILED TO REBUT THE FINDING THAT

THE COMMONWEALTH ’'S CHOICE OF AN ABSOLUTE AND PERMA-

NENT FORM OF PREFERENCE CONSTITUTES AN INTENTIONAL

AND PURPOSEFUL DISCRIMINATION AGAINST WOMEN.

Once the plaintiff demonstrated that the absolute and per-

manent form of veterans’ preference adopted by the Common-

wealth intentionally discriminated against women, the de-

fendants had the opportunity® to rebut this conclusion in

either of two ways. First, the defendants could have at-

tempted to show that discriminatory factors did not affect the

Commonwealth’s choice of this form of preference. Alter-

natively, they could have tried to show that the Common-

wealth had undertaken such significant efforts toward in-

creased employment opportunity for women that discrim-

ination may either be presumed not to have existed or, as-

suming the absolute preference did discriminate against wom-

en, that such efforts, as a practical matter, compensated for

and, thus, “cured” the exclusionary effects of the preference.

The defendants, however, misunderstood the first alternative

and, in any event, offered no substantial evidence as to either.

A. The Defendants Misstate the Nature of the Proof

Necessary to Rebut a Determination of

Intentional Discrimination.

As the district court concluded, the evidence offered by the

plaintiff proved an intentional discrimination against women

40-41, that the Commonwealth should be given another chance to rebut the

proof of intentional discrimination ignores the fact that, upon remand from

this Court, the district court provided defendants the opportunity to present

additional evidence. As the district court noted, the defendants represented

at oral argument that they did not desire to offer any such additional evi-

dence. 451 F. Supp. at 148 n.12 (App. 262).

which shifted the burden to the Commonwealth to show that

the same exclusionary preference formula would have been

adopted in any event. 451 F. Supp. at 148 n.11 (App. 262);

Arlington Heights v. Metropolitan Housing Corp., supra, 429

U.S. at 271 n.21. The defendants erroneously articulate this

burden, as did the dissenting district court judge,’ in terms of

whether the General Court would have enacted an absolute

and permanent form of preference if more women had been

allowed into the military services. Brief for the Appellants,

p. 49. However, this question is not the appropriate inquiry.

While, as the defendants point out, the Commonwealth is

largely not responsible for the discrimination against women

by the military,” Brief for the Appellants, p. 35, the Com-

monwealth’s choice of the form of preference that operates to

exclude women must be analyzed in light of the unalterable

fact that the military did discriminate and women were not

allowed to become veterans. Thus, the proper inquiry is

whether the Commonwealth would have chosen the absolute

and permanent form of preference and its inevitable exclu-

sionary consequences, if the legislators had not been affected

by the archaic stereotypic assumptions about women and their

appropriate role in the working world.

The defendants offered no proof that, absent the discrim-

inatory attitudes about women which tainted the decision-

making process, the legislature would have chosen a form of

preference which systematically and inevitably excludes

women from upper-level jobs. Instead, the defendants simply

offer the argument that the ultimate goal of the veterans’ pref-

*! Judge Murray framed the question as follows: “. . . Would the veterans’

preference statute have been enacted if women were represented in the

armed services in such numbers that the preference would have no

discriminatory effect?” 451 F. Supp. at 156 (App. 279).

®t But see, note 41, supra.

erence statute is to reward veterans. Especially where, as

here, there appears a long history of related and overt dis-

crimination (e.g., the use of separate requisitions for “female”

jobs), the defendants properly are held to a burden of pro-

ducing “‘clear and convincing evidence,” Keyes v. School

District No. 1, Denver, Colo., supra, 413 U.S. at 209, to rebut

the finding of discriminatory intent. This burden is no more

satisfied in this case by the defendants’ claims that the ultimate

purpose of the preference statute is legitimate, than it is in

school desegregation cases in which defendants often claim,

for example, that the ultimate purpose of certain student as-

signment policies (maintaining neighborhood schools) that re-

sult in segregated schools is legitimate. Indeed, the burden is

far more substantial:

“In discharging that burden, it is not enough, of

course, that the school authorities rely upon some al-

legedly logical, racially neutral explanation for their ac-

tions. Their burden is to adduce proof sufficient to sup-

port a finding that segregative intent was not among the

factors that motivated their actions.”

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

at 210.

In order to rebut the proof that the Commonwealth delib-

erately and intentionally sacrificed “the career opportunities

of its women in order to benefit veterans,” 451 F. Supp. at 150

(App. 265), the defendants would have had to show that the

members of the General Court in choosing the absolute and

permanent form of preference were unaffected by archaic

stereotypes about women and traditional perceptions of

women in the workforce, and, thus, that such inherently

discriminatory attitudes were not a determinative factor in

adopting an extreme form of preference. The defendants

made no such showing. Their failure to do so confirms the

well-supported conclusion that the legislature's choice of an

absolute and permanent form of preference was in substantial

part caused by a discriminatory view of women and that the

legislature’s decision, as the district court concluded, “resulted

from improper evaluation of competing considerations.” 451

F. Supp. at 150 (App. 265).

B. The Defendants Presented No Persuasive Proof of Any

“Affirmative Action” that Rebutted the Finding of an

Intentional and Purposeful Discrimination.

In Washington v. Davis, supra, this Court relied in part on

collateral circumstances — proof of effective affirmative steps

by the District of Columbia police force to recruit minorities

— to conclude that the writing test did not constitute an inten-

tional or purposeful discrimination against minorities. The

district court in this case looked for proof of such affirmative

efforts by the Commonwealth toward women and found

none:

“Unlike the defendants in Davis, the Commonwealth has

not made any showing of affirmative efforts to recruit

women, or of a recent rise in the percentage of women

appointed to competitive civil service positions.

“While the officials in Davis sought ‘systematically’ to

recruit minorities who had passed the preemployment

test, the defendants here have demonstrated no attempt

to mitigate the permanent and absolute impact on

women of a formula that systematically excludes them

from desirable public service positions even though they

have demonstrated their qualifications . . ..”

451 F. Supp. at 149 (App. 263-264).

In the face of the district court’s clear statement of the de-

fendants’ failure to prove efforts to recruit and hire women in-

to upper-level positions, the defendants nonetheless assert that

the “employment practices” of the state “demonstrate a pat-

tern and practice of affirmative state action designed

to guarantee equal employment opportunities for women.”

Brief for the Appellants, p. 50.

However, a review of the asserted “employment practices”

reveals no recruitment of or other meaningful affirmative ac-

tion as to women. Rathér, they are only cosmetic statutory

revisions that belatedly eliminated some of the more blatant

sex discrimination in the civil service system or statements of

general policy which, in and of themselves, do not prove that

any concrete steps have been taken to ameliorate the “near

blanket, permanent exclusion of all women from a major sec-

tor of employment,” 415 F. Supp. at 501 (App. 226) (Camp-

bell, J., concurring).

First, defendants implicitly admit that, for over 70 years,

the Commonwealth operated a civil service system based on

sex-specific requisitions for jobs, Brief for the Appellants,

p. 49, and that there were numerous “gender-based distinc-

tions in the civil service law,” Brief for the Appellants, p. 49

n.37. However, they argue that the repeal in 1971 of such bla-

tantly discriminatory aspects of the law constitutes proof of

“action designed to guarantee equal employment opportuni-

ties for women.” Brief for the Appellants, p. 50. The legis-

lature’s repeal of the statutory authorization for gender-

specific requisitioning does not prove that the related sex dis-

crimination embodied in the absolute form of preference is not

purposeful. Nor does it demonstrate that women are, in fact,

being provided any increased opportunity for upper-level posi-

tions. Indeed, the district court correctly noted the spe-

ciousness of defendants’ argument:

“Contrary to defendants’ assertion, elimination of this ex-

ception [which provided that the preference would not

apply to requisitions for ‘female’ jobs] did not remove the

last vestiges of sex discrimination from the statutory

scheme; it only served to make all positions in the civil

service subject to the overriding preference formula.”

451 F. Supp. at 148 n.9 (App. 260).

Second, the defendants assert that the Commonwealth’ rat-

ification of the federal Equal Rights Amendment, its adoption

of a similar amendment to its constitution, and a general state-

ment by the Governor encouraging affirmative action in pub-

lic employment indicate increased opportunity for women

and, thus, demonstrate a lack of discriminatory intent on the

part of the Commonwealth. Brief for the Appellants, pp.

49-50. However, broad statements of policy cannot nullify

deliberate acts of discrimination against women, particularly

when such declarations of good faith are made long after the

discriminatory decisions.** Nor do general policy statements

show that, in fact, any substantive affirmative action has been

undertaken. The defendants have not offered, nor can they

point to, any statistics or specific actions by the Com-

monwealth that demonstrate that any woman can now avoid

the inevitable exclusionary effects of the extreme statutory

® The defendants’ argument, taken to its logical conclusion, would mean

that no state statute could ever be held to violate the Equal Protection Clause

so long as the state had also adopted a broad statement of policy providing

that discrimination was unlawful.

C+ 2 aa’

preference. Deservedly, declarations of a general purpose or

policy not to discriminate have been given little probative

weight against specific actions and policies of purposeful and

intentional discrimination. See, e.g., Alexander v. Louisiana,

405 U.S. 625, 632 (1972); Hernandez v. Texas, 347 U.S. 475,

481 (1954). The defendants’ general assertions of affirmative

action, falling well within this category, are of no probative

value in rebutting the finding of purposeful sex discrimination.

C. The Defendants Equate the Ultimate Goal of the

Statute with Intent.

As in the district court, the defendants point to the ultimate

goal of the statute — an attempt to aid veterans — and argue

that its legitimacy necessarily is conclusive as to whether the

adoption of the absolute preference constitutes intentional and

purposeful discrimination against women. Brief for the Ap-

pellants, p. 40; see also Brief for the United States as Amicus

Curiae, pp. 31-32.

This argument is erroneous because it equates the “ulti-

mate” or “dominant” purpose of an act with all of its intended

consequences. Defendants blur the appropriate distinctions

by implying that this Court uses the words “intent,” “motive”

and “purpose” interchangeably regardless of the context.

Brief for the Appellants, p. 40; see also Brief for the United

States as Amicus Curiae, p. 27. This is simply not true, and in

any event, it cannot allow the defendants to avoid the conclu-

sion that those consequences to women that the legislature

deliberately accepted in the decisionmaking process were just

as “intended” as the principal purpose or ultimate goal of the

statute.

However, a legitimate untimate objective to aid veterans

does not absolve the legislature of responsibility for the in-

evitable consequences to women that stem from its choice of

the particular means — an absolute and permanent preference

— by which it seeks to accomplish its goal. Defendants mere-

ly ignore those cases in which this Court, while recognizing the

legitimacy of the ultimate governmental objective, neverthe-

less found that the choice of a particular means to achieve the

objective constituted an intentional discrimination against

women.

Thus, in Reed v. Reed, 404 U.S. 71, 76 (1971), the Court

found the ultimate objective to reduce the workload on pro-

bate courts legitimate but, nonetheless, determined that the

chosen means constituted a sufficiently intentional discrimina-

tion against women to be unconstitutional. Similarly, in

Califano v. Goldfarb, 430 U.S. 199 (1977), the Court

recognized that the primary purpose for the challenged statute

was the legitimate desire to provide for needy families. This

fact did not deter the Court from analyzing the classification

itself which on its face appeared only to discriminate against

men (widowers). On analysis, the Court found an intentional

and purposeful discrimination against women because the

classification inevitably penalized female workers and was

premised upon and fostered the stereotype that women are less

likely to be the primary source of support for a family. So too,

in other contexts, the principal “legitimate” objective or desire

of the legislature has not precluded analysis of the intended

consequences that flow from the chosen means of achieving

the ultimate objective. See, e.g., Weber v. Aetna Casualty &

Surety Co., 406 U.S. 164, 173 (1972), where the legitimate ob-

jective of protecting the family unit did not shield the state

from a review of the intentional consequences to illegitimate

children that stemmed from the adopted classification.

The ultimate purpose of the preference statute is to aid

veterans. The particular state action to achieve the purpose

— adoption of an absolute and permanent preference — in-

evitably excludes women from the classified official service.

The legitimate, indeed benign, nature of the Commonwealth’s

goal does not render the preference’s effects upon women

anything less than deliberate and purposeful. As this Court

has noted in a somewhat different context:

“The Equal Protection Clause would be a sterile promise

if state involvement . . . could be shielded altogether

from constitutional scrutiny simply because its ultimate

end was not discrimination but some higher goal.”

Norwood v. Harrison, 413 U.S. 455, 466-467 (1973).

IV. Tue District Court Property INVOKED AND APPLIED THE

STANDARD OF REVIEW FOR STATUTES THAT DISCRIMINATE

AGAINST WOMEN.

The foregoing analysis clearly establishes that the adoption

and use of the absolute veterans’ preference formula discrim-

inates against women,™ denying them meaningful employ-

ment opportunity in a major sector of the state’s economy by

“The defendants’ reliance on cases involving challenges by male non-

veterans to various types of veterans’ preferences therefore is misplaced. See

Brief for the Appellants, p. 52, and cases cited therein. In none of these cases

did the Court consider whether the veterans’ preference discriminated

against women. In Koelfgen v. Jackson, 355 F. Supp. 243 (D. Minn. 1972),

some of the plaintiffs were females who sought to represent a class of women

who were injured by the veterans’ preference. See id. at 247 n.3. However,

the court certified only a class of “non-veterans” and applied a rational basis

test without any discussion of claims unique to the female plaintiffs. Id. at

248, 251. The district court in this case properly distinguished these cases in

— a “rational basis” test. See 415 F. Supp. at 496-497 n.11 (App.

excluding them from all civil service positions for which they

must compete with a substantial number of men. This exclu-

sion perpetuates and reinforces the very type of outdated as-

sumptions about sexual roles that the Constitution proscribes

and that Massachusetts observed during the course of 70 years

of single-sex requisitions. Cf. Stanton v. Stanton, 421 U.S. 7,

15 (1975). Women are effectively barred from positions

which are traditionally “male jobs,” including the upper-level

positions which are the most desirable in state service. ~ Few,

if any, females have ever been considered for the higher posi-

tions in the state Civil Service.” 415 F. Supp. at 498 (App.

218). The jobs which are available to women are those

shunned by men: the lower-paying, lower-grade positions,

such as clerk and secretary, for which men traditionally have

not applied. The statute thus operates to maintain patterns of

occupational sex segregation based on traditional male and fe-

male rojes.*® Moreover, as discussed above, the discrimination

is rooted in legislative assumptions that such roles were entire-

ly a riate. See pp. 37-48, supra.

P naka ithe the effect of invidiously relegating 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, and are likely to burden

women to a greater extent than is necessary to achieve the stat-

utory purpose. In balancing the costs and benefits of various

*“Role-typing” is further reinforced by the statute because “[l}imited

employment opportunities, in turn, discourage long-term work force par-

ticipation and encourage dependency upon male relatives.” Blumberg, “De

Facto and De Jure Sex Discrimination Under the Equal Protection Clause: A

Reconsideration of Veterans’ Preference in Public Employment,” 26 Buffalo

L. Rev. 1, 54 (1977). Thus, by perpetuating these outdated stereotypes, the

veterans’ preference statute effects a self-fulfilling prophecy. See, e.g., L.

Tribe, American Constitutional Law 1065 (1978); “The Supreme Court,

1974 Term,” 89 Harv. L. Rev. 47, 100 (1975).

means of effecting the legislative objective, a legislature that

operates under these archaic assumptions about women is like-

ly to underestimate the harm to women which will result from

the statute. See G. Blumberg, “De Facto and De Jure Sex

Discrimination Under the Equal Protection Clause: A Recon-

sideration of the Veterans’ Preference in Public Employment,”

26 Buffalo L. Rev. 1, 38-39, 53 (1977).

Gender-based discrimination of this nature can withstand

the judicial scrutiny required by the Equal Protection Clause

only if it is found to “serve important governmental

objectives” and to be “substantially related to the achievement

of those objectives.” Craig v. Boren, 429 U.S. 190, 197 (1976);

Califano v. Goldfarb, 430 U.S. 199, 210 (1977); see “The Su-

preme Court, 1976 Term,” 91 Harv. L. Rev. 70, 177 (1977).

Although this standard of review was formulated in cases in-

volving explicit gender discrimination, its application here is

nonetheless appropriate. As noted above, see pp. 26-31,

supra, the veterans’ preference statute is only superficially

neutral with respect to women. Because the veterans’ pref-

erence formula effectively replaces testing as the criterion for

determining who will be hired, 415 F. Supp. at 488-489 (App.

198), the statute adopts for all practical purposes the military’s

de jure discrimination against women. Moreover, it reflects

and perpetuates the sex-role stereotypes and assumptions that

have been rejected in the previous decisions of this Court. See,

e.g., Califano v. Goldfarb, supra, 430 U.S. at 206-207,

210-211, 217; Craig v. Boren, supra, 429 U.S. at 198-199;

Stanton v. Stanton, supra, 421 U.S. at 14; Weinberger v.

Wiesenfeld, supra, 420 U.S. at 645. See generally pp. 37-48,

supra. Furthermore, the operation of the veterans’ preference

formula works a wholesale denial of public employment op-

portunities for women. Although the right to public employ-

ment is not a “fundamental interest,” this Court has specifical-

ly disapproved classifications which restrict the employment

opportunities “of an entire class of qualified individuals,

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), and has ex-

pressed particular concern for women, who have “historically

suffered discrimination in employment.” Frontiero v.

Richardson, 411 U.S. 677, 689 n.23 (1973); see Kahn v.

Shevin, supra, 416 U.S. at 353.

Finally, “heightened scrutiny” is appropriate for statutes

that impose a legal burden on an entire class of persons with-

out regard to individual merit or responsibility. See, e.g.,

Weber v. Aetna Casualty ¢ Surety Co., 406 U.S. 164 (1972).

Such a burden is particularly invidious because it departs from

the “deeply rooted” principle that individuals should be treat-

ed on the basis of “individual merit or achievement, or at the

least on factors within the control of an individual.” Board of

Regents of California v. Bakke, ____ U.S. P , 98S. Ct.

2733, 2785 (1978) (Brennan, J., concurring and dissenting);

accord, Weber v. Aetna Casualty & Surety Co., supra. The

devastating burden which the absolute veterans’ preference

statute imposes on women is, of course, completely unrelated

to individual merit or responsibility. As the district court

found, the veterans’ preference formula excludes women from

upper-level civil service positions “because of circumstances

totally beyond their control,” see 415 F. Supp. at 499 (App.

220), and despite their individual qualifications. Id. at

498-499 (App. 219).

The veterans’ preference statute can withstand constitu-

tional challenge only if it is substantially related to and in fact

closely serves important government objectives. See, e.g.,

Califano v. Webster, 430 U.S. 313, 317 (1977); Weinberger v.

Wiesenfeld, supra, 420 U.S. at 648 and n.16. Thus, a two

step analysis is required. First, it is necessary to examine the

objectives of the statute. Some objectives are constitutionally

insufficient to justify gender-based discrimination. See, e.g.,

Califano v. Goldfarb, supra, 430 U.S. at 211 n.9. It is then

necessary to determine whether the particular means chosen

MSR

by the state to achieve its objectives in fact “closely serves”

those objectives. Craig v. Boren, supra, 429 U.S. at 200; see

“The Supreme Court, 1976 Term,” supra, 91 Harv. L. Rev. at

184. The “crucial question” is whether the statute advances

the legislative objective “in a manner consistent with the com-

mand of the Equal Protection Clause,” see Reed v. Reed,

supra, 404 U.S. at 76, or whether it has “an unduly tenuous

‘fit’” with the legislative goal, see Craig v. Boren, supra, 429

U.S. at 202. As the district court properly observed:

“It is not enough that the prime objective of the

Veterans’ Preference statute . . . is legitimate and ra-

tional. The means chosen by the state to achieve this ob-

jective must also be legitimate and rational.”

415 F. Supp. at 497 (App. 216).

Massachusetts asserts three interests in its attempt to justify

the drastic employment preference that it has adopted: (1) as-

sisting veterans in their readjustment to civilian life; (2) en-

couraging enlistment; and (3) rewarding veterans for their

past service to the country. See Brief for the Appellants, p. 24.

While the legitimacy of some form of assistance to veterans has

long been recognized, the inquiry compelled by this Court's

decisions does not end there. Careful analysis of these inter-

ests reveals that the statute simply does not serve to achieve the

goals of assisting readjustment or encouraging enlistment, and

that there is no convincing reason for the adoption of the ab-

solute preference as a reward to veterans.

The state places primary emphasis on its interest in assisting

veterans in their readjustment to civilian life, stressing the

high unemployment rate for younger veterans, and particular-

ly for younger minority veterans. Brief for the Appellants,

p. 27. This solicitude has a hollow ring when measured

against the statute. The Massachusetts prefereuce is perma-

nent: an eligible veteran may use the preference repeatedly,

throughout his lifetime, without regard to the date of his dis-

charge from the armed services. The benefits of the statute

are therefore available to veterans who were discharged from

the military as long as 39 years ago and who clearly need no as-

sistance in readjusting to civilian life. But the Massachusetts

preference does little for the recently-discharged veteran,

especially in view of the limited number of civil service posi-

tions available. Because the statute creates a permanent

preference, its principal beneficiaries are not recently

discharged veterans but those who left the service ten or more

years ago and whose greater experience will earn them higher

examination scores than their younger counterparts.*

Moreover, the preference provides no benefits whatsoever to

veterans whose skills are unsuited to the civilian job market,

because it benefits only veterans who take and pass a qualify-

ing examination. Thus, the statute provides no benefits to

those veterans who wouid seem to be most in need of rehabil-

itation or readjustment assistance. Cf. Hicklin v. Orbeck,

pee SS , , 98 S. Ct. 2482, 2488-2489 (1978)

(preference for “qualified” state residents not substantially

related to goal of reducing unemployment).

The second asserted interest, that of encouraging enlistment

in the armed services, is simply not an adequate justification

for a state to exclude women from significant public employ-

For example, the eligibility lists for the positions which Helen Feeney

sought included 95 veterans for whom information concerning military

discharge is available. Of these 95 veterans, 43 were discharged in the 1940s

and 21 were discharged in the 1950s. (App. 106, 150-151, 169-170).

*? This is dramatically illustrated by the Administrative Assistant list. Sixty-

four veterans passed the examination, of whom 20 were discharged within

five years of the establishment of the list (App. 150-151). Of that number,

only four were ranked among the first 34 on the list.

ment opportunities. Responsibility for raising an army be-

longs to the federal government, U.S. Constitution, Art. &§

§ 8, see Johnson v. Robison, 415 U.S. 361 (1974), and not to

the state. Cf. Nyquist v. Mauclet, 432 U.S. 1 (1977). Second,

it is improbable that the goal of encouraging enlistment was in

fact one of the “actual purposes” of the statute, Califano v.

Goldfarb, supra, 430 U.S. at 212, Weinberger v. Wiesenfeld,

supra, 420 U.S. at 648, because the legislature has invariably

extended the preference to veterans of a particular war only

after that war has ended. The statute was first enacted in

1896 and extended a preference to Civil War veterans who had

served more than thirty years earlier. The statute has since

been amended a number of times but always to enlarge the

class of eligible veterans on a retroactive basis. It is therefore

wholly unlikely that the legislative objective was to encourage

individuals to enlist. Third, the veterans’ preference statute

has no rational nexus to the goal of encouraging enlistments.

There is no “convincing factual rationale” which suggests that

such retroactive grants serve as an inducement for individuals

to enlist. The defendants have adduced absolutely no evi-

dence to suggest that even one individual ever enlisted in the

armed forces because of the possibility that he might eventual-

ly be eligible for a civil service preference.

The final interest asserted by the state is that of rewarding

veterans for their past service. Although this is a legitimate

goal, it is unclear that it is an interest which can justify severe

and pervasive discrimination against women. See Califano v.

Goldfarb, supra, 430 U.S. at 211 n.9 (“justifications that suf-

fice for nongender-based classifications . . . do not necessarily

justify gender discriminations”). The district court concluded

that it was not.

In assessing whether the proffered objective of rewarding

veterans justified an absolute preference, the district court

quite appropriately considered whether there were less drastic

hed

alternatives which could effectively achieve that purpose.

The decisions of this Court establish that the heightened scru-

tiny appropriate in gender discrimination cases includes con-

sideration of the means chosen by the state to advance its

stated goals. Craig v. Boren, supra; Califano v. Goldfarb,

supra. The existence of less restrictive alternatives is relevant

to whether the chosen legislative means is “substantially re-

lated” to the governmental objective and to whether the gov-

ernmental objective is sufficiently important to justify the ad-

verse impact of the particular means adopted by the state. See

“The Supreme Court, 1976 Term,” supra, 91 Harv. L. Rev. at

187. Thus, the Court has rejected legislative classifications

under this heightened standard of review because of their “un-

duly tenuous ‘fit’” with legislative purposes, Craig v. Boren,

supra, 429 U.S. at 202, and has required that such clas-

sifications be “carefully tuned to alternative considerations.

Trimble v. Gordon, 430 U.S. 762, 772 (1977); Mathews v.

Lucas, 427 U.S. 495 (1976). See also, Hicklin v. Orbeck,

supra; cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425

(1975) (under Title VII of the Civil Rights Act of 1964, a

discriminatory selection criterion is unlawful, even if job-

related, if there are other, less discriminatory selection devices

that also serve an employer’s legitimate interests).

The required “fit” is lacking in this case. It is, in the words

of the district court, a “broad brush approach” of the grossest

sort to the end of rewarding veterans for their past service. It

accords a lifetime absolute employment preference to virtually

every veteran who has served 90 days in the armed services in

any capacity, at least one day of which was during the thirty-

five years between 1940 and 1975. Moreover, as a means of

rewarding veterans, the absolute preference is perhaps one of

* 180 days of service is required for veterans of one particular era. See

note, 9, supra.

the least efficient choices available. Only a small portion of

the nearly 900,000 veterans who reside in Massachusetts have

used or will use the preference.

As the district court found, “there are alternatives available

to the state to achieve its purpose of aiding veterans, without

doing so at the singular expense of another identifiable class,

its women.” 415 F. Supp. at 499 (App. 219); accord, 451 F.

Supp. at 150 (App. 265). In the area of public employment,

veterans can be rewarded by means of a “point preference”

such as the federal government and most states extend to veter-

ans, or by means of a preference for a limited period of time.®

Such limited preferences reward veterans but do not in-

escapably exclude the most highly qualified women from up-

per-level civil service positions. See 415 F. Supp. at 499 (App.

219-220); 451 F. Supp. at 151 (App. 268-269) (Campbell, i

concurring).’° Contrary to the suggestion of the defendants,

* In fact, while most states and the federal government give veterans some

limited preference in public employment, only four states employ a

preference comparable in scope to Massachusetts’ absolute and permanent

preference. See 51 Pa. Cons. Stat. Ann. § 7104 (Purdon 1976); $.D. Com-

piled Laws Ann. § 3-3-1 (1974); Utah Code Ann. § 34-30-11 (1974); Vt. Stat.

Ann. Act 20 p. 1543 (1968). See generally, Fleming & Shanor, “Veterans’

Preference in Public Employment: Unconstitutional Gender Discrimina-

tion?”, 26 Emory L.J. 13, 16-20 (1977).

”°The defendants observe that, in Massachusetts, women obtained approx-

imately 43 % of the appointments to official service positions during the

period from 1963-1973, whereas women held only 32.3 % of the positions in

the federal civil service. See Brief for the Appellants, pp. 54-55. However,

the objection to the absolute preference is not that it excludes women from all

positions, but rather that the statute excludes them from upper-level posi-

tions.

Moreover, the 43 % figure is misleading in a number of respects. First, it

ignores that 56 % of the persons certified as eligible for permanent employ-

ment during the period were women. The defendants urge that the 43 %

figure should be compared to the proportion of women in the workforce in

Massachusetts (said to be approximately 40 %). Obviously, however, a com-

parison of the appointment rate to the workforce at large is not as mean-

see Brief for the Appellants, pp. 54-56, women would have

fared considerably better on the 50 eligible lists in the record,

Exs. 13-62, under a “five/ten” point preference system similar

to the federal statute”! than they did under Massachusetts’ ab-

solute preference. On 22 lists on which women were totally

absent from the top three positions” under an absolute pref-

erence, they would have ranked in one or more of such places

under a five/ten point preference. On 10 additional lists,

women would have received higher rankings under a five/ten

point preference than under an absolute preference.” Id.

Wholly apart from public employment, there are numerous

ways in which the state can reward veterans without directly

and unduly burdening women. For example, Massachusetts

can and does extend monetary benefits to veterans: muster-

ing-out bonuses, see, e.g., Acts of 1973, c. 692; tax abate-

ingful as a comparison to the actual pool of qualified applicants available for

appointment. Hazelwood School District v. United States, 433 U.S. 299,

308 n.13 (1977). Second, the 43 % figure does not reveal the proportion of

civil service appointments which women would have obtained but for the

veterans’ preference.

"1 Under a “five/ten” point preference, five points are added to the civil

service examination scores of most veterans; ten points are added to the scores

of disabled veterans.

72 As noted above, attainment of one of the top three positions on an eligi-

ble list ensures an applicant that he or she will be among the first considered

for a vacancy.

73On seven of those 10 lists, the application of a five/ten point preference

also would have resulted in an increased number of women among the top

three positions. Moreover, on 20 lists, application of a five/ten point prefer-

ence would have resulted in the same ranking of the top three applicants as a

pure “merit” ranking. For example, in the list for a Day Care Development

Specialist, Ex. 28, the top three examination scores were received by three

female non-veterans: 86.02, 83.80 and 83.52. Under the absolute prefer-

ence, these women were displaced by three non-disabled male veterans with

scores of 76.34, 75.40 and 70.96. Under a five/ten point preference, by con-

trast, the three women would have continued to occupy the top three places

on the list.

ese ee

ments, see, e.g., Mass. G.L. c. 59, § 5; educational benefits,

see, e.g., Mass. G.L. c. 69, §§ 7, 7A, 7B, 7F; burial benefits,

see, e.g., Mass. G.L. c. 115; special programs for needy

veterans, see, e.g., Mass. G.L. c. 115, c. LI5A. See generally

Blumberg, “De Facto and De Jure Sex Discrimination,” supra

26 Buffalo L. Rev. at 67-68. )

Unlike these and similar statutes that distribute across the

public generally the cost of benefits for veterans, the perma-

nent, absolute preference in public employment exacts a dev-

astating toll from a particular group — women seeking public

employment — who have long been the victims of pervasive

discrimination in the job market and who, “because of circum-

stances totally beyond their control, have little if any chance of

becoming members of the preferred class.” 415 F. Supp. at

499 (App. 220-221). See Blumberg, “De Facto and De Jure

Sex Discrimination,” supra, 26 Buffalo L. Rev. at 9, 71-73. As

this Court has observed, it is particularly invidious to impose

on a discrete class of individuals a legal burden which has no

substantial relationship to their individual responsibility. See

ga v. Aetna Casualty & Surety Co., supra, 406 U.S. at

Thus, the district court properly concluded that the choice

of an extreme veterans’ preference, in light of the destructive

effect on women’s employment opportunities and the availa-

bility of less discriminatory means for rewarding veterans

violated the Equal Protection Clause.

Conclusion.

For the reasons stated above, the judgment and order of the

district court should be affirmed.

Respectfully submitted,

RICHARD P. WARD