Amicus Brief — Personnel Administrator of Mass. v. Feeney

No. 78-233

Gu the Supreme Court of the United States

OCTOBER TERM, 1978

PERSONNEL ADMINISTRATOR OF MASSACHUSETTS,

ET AL., APPELLANTS

Vv.

HELEN B. FEENEY

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WADE H. MCCREE, JR.

Solicitor General

FRANK H. EASTERBROOK

Deputy Solicitor General

WILLIAM C. BRYSON

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

Page

I i sscstiisatiantienbimniaiiesiins 1

Interest of the United States -........................... 1

RE ER NEA 8

Summary of argument ................ 18

PR intranets titninvainctbio i ticisdcnienpibaseniasisces 21

I. The veterans’ preference statute does

not purposefully discriminate against

bn Ose ne oN ne ee 21

A. Only purposeful discrimination vio-

lates the Equal Protection Clause.... 21

B. Awareness of probable disparate

effect is not the same as purpose-

SURE CITI acnccsserncinncecscesicnce 25

C. Governments have legitimate rea-

sons for adopting veterans’ prefer-

IE I shicrs aestitetinpctctlnseacncts 32

D. Federal restrictions on women’s

participation in the military do not

bring the Massachusetts veterans’

preference into conflict with the

Equal Protection Clause ................ 37

II. Massachusetts should have been allowed

to prove that its veterans’ preference

would have been adopted whether or not

it had an effect on the employment op-

portunities of women ........................--.-.- 40

ge SL Be Rha A ais a, IEE 42

I iit

CITATIONS Cases—Continued Pa

Cases: Page ge

Maher v. Roe, 482 U.S. 464 0... 23

Alexander v. Holmes County Board of Massachusetts Board of Retirement v

en se ae 38 Murgia, 427 U.S. 807 cco _ 86

Alexander v. Louisiana, 405 U.S. 625 ..... 29 Mt. Healthy City School District Board of

Bannerman v. Department of Youth Au- Education v. Doyle, 429 U.S. 274 .. 40

thority, 436 F. Supp. 1278 .........-.--------- 33 Oliver v. Michigan State Board of Educa-

Branch v. Du Bois, 418 F. Supp. 1128 -..... 31, 33

Brown v. Board of Education, 349 U.S.

Tisai svce kpnnaralanniincteiteamesinnaibaiontiicceieseeeemnn 38

Carey v. Piphus, 435 U.S. 247 ......------------ Al

Castaneda v. Partida, 430 U.S. 482 -........- 29

City of Richmond v. United States, 422

if. | Seen sere 24-25

Dayton Board of Education v. Brinkman,

BBB TB, GG anna cass centnnceseccncctecncsevwesntes 27, 40-41

Elrod v. Burns, 427 U.S. 347 .......------------- 33

Feeney v. Commonwealth, 366 N.E.2d

|| IRNRSe seNIIe e re RINN 14

Feinerman v. Jones, 356 F. Supp. 252 -..... 33

Ford Motor Co. v. Huffman, 345 U.S. 330.. 33

Fredrick v. United States, 507 F.2d 1264.. 3, 33

Gomillion v. Lightfoot, 364 U.S. 339 -....... 29

Green v. County School Board, 391 U.S.

I wvicaicinintntbibchcrsenemedantercciidedientuipiediaommnnes 38

Guinn v. United States, 238 U.S. 347 -......- 29

Hilton v. Sullivan, 334 U.S. 328 ...........----- 33

Jefferson v. Hackney, 406 U.S. 535 -.......---- 23, 36

Johnson v. Robison, 415 U.S. 361 .......----.-- 33, 35

Kahn v. Shevin, 416 U.S. 351 ...........-.--.--- 39

Keyes v. School District No. 1,~Denver,

Colowadld, 418 UB. TBD .nccnccecnenscecincicoceee 22, 27

Koelfgen v. Jackson, 355 F. Supp. 248,

¢ fe BP S| Smee 33

tion, 508 F.2d 178, cert. denied, 421

i 29-30

Orloff v. Willoughby, 345 U.S. 83 ........... 39

Regents of the University of California

v. Bakke, No. 76-811 (June 28, 1978) _... 25

Rozecki v. Gaughan, 459 F.2d 6 _............. 11

Russell v. Hodges, 470 F.2d 212 _.......... 33

Schlesinger v. Ballard, 419 U.S. 498 ........ 38, 39

Swann v. Charlotte-Mecklenburg Board of ;

Education, 402 U.S. 1 —...................... 38

Toth v. Quarles, 350 U.S. 11 ...................... 39

United Jewish Organiaztions of Williams-

burgh, Inc. v. Carey, 430 U.S. 144

wer States v. City of Chicago, 549 F.2d

United States v. School District of Omaha, "

521 F.2d 530, cert. denied, 423 U.S.

PN anicktrolennmaninnsdiieeecicactiaes nan ats 29

United States v. Texas Education Agency,

5382 F.2d 380, vacated and remanded,

ck See nee yo 30

Village of Arlington Heights v. Metro-

politan Housing Development Corp., 429

EMT Siuissiabcmiscscionkanciecauhecebtaits 15, 22, 27, 28, 40

Washington v. Davis, 426 U.S. 229, va-

cated and remanded, 434 U.S. 884 _...14, 15, 18,

22, 27, 29, 31, 35-36

Cases—Continued

Wright v. Rockefeller, 376 U.S. 52 ......------

Yick Wo v. Hopkins, 118 U.S. 356 -....-.--.

Constitution, statutes and regulations:

United States Constitution, Fourteenth

Amendment .......--------- 1 ee

Civil Rights Act of 1964, 42 U.S.C. 2000e-

a rE a sad iltacalanineeiennifeanaebost

Civil Service Reform Act of 1978, Pub. L.

No. 95-454, 92 Stat. 1111 et seq.:

92 Stat. 1247-1248 _-.---enann-aennn-—--

es psenoneeshcin

secu

Se eae

} | re

Veterans’ Preference Act of 1944, ch. 287,

i ialinsinnmienbweninennalonevense

5 U.S.C. 2108(1) -..--.---- ALE Ne eee

Bir o>) | Saran

SUS Bees) (Y) ..-—......................--

SUS fees te)...

56 USS. Sieeis)(F) —-—--_.-...-......._

6USi. sete te) -.......-..............---.

ccc nicreeseceninisaalinnininsinioninn

5 |) | ane enen En

tk 5 an

aa taccewerinaintonnlcintes

Se GLa Re SEN

I ovo cecirsevcqnensennjarentactane

scopes ntncesinaenedienmonbinsiygioes

SIR ene ee

I caheniccernadasicnenemienabeheamenice

mm OF OT

wwwwww w

w

rf

TP CLOTH DW} ON

ed Bbdendbs

Constitution, statutes and

regulations—Continued

5 U.S.C. 7512

ee ere

BSUseceiewe |

88 U.S.C. 501-562

88 U.S.C. 601-654

$8 U.S.C. 701-788

Svs...

38 U.S.C. 1601-1799

38 U.S.C. 1801-1827

38 U.S.C. 2001-2008

38 U.S.C. 2012

a2)

09

©

NANA AIAIAN AAAS

, § 24

Miscellaneous:

Brest, Palmer v. Thompson: An Approach

to the Problem of Untonstitutsonnt Lap-

islative Motive, 1971 Sup. Ct. Rev. 95... 23. 28

Brest, The Supreme Court, 1975 Term—

Foreword: In Defense of the Antidis-

crimination Principle, 90 Harv. L. Rev.

1 (1976)

VI

Miscellaneous—Continued

Eisenberg, Disproportionate Impact and

Illicit Motive: Theories of Constitu-

tional Adjudication, 52 N.Y.U.L. Rev.

BB (1977) .-.n~----------------o-ns-eseinennnonnneecense=

C. Fried, Right and Wrong (1978) -.....----

H.R. 11280, 95th Cong., 2d Sess. (1978)...

Note, Reading the Mind of the School

Board: Segregative Intent and the De

Facto/De Jure Distinction, 86 Yale L.J.

B17 (1976) -....-------------------neceeec

Note, Veterans’ Preference in Public Em-

ployment: The History, Constitutional-

ity, and Effect, on Federal Personnel

Practices of Veterans’ Preference Leg-

islation, 44 Geo. Wash. L. Rev. 623

1%)

Perry, The Disproportionate Impact The-

ory of Racial Discrimination, 125 U. Pa.

L. Bev. $06 Q9TT) ....._

Restatement (Second) of Torts (1965)...

W. Prosser, Law of Torts (4th ed. 1971)...

Page

30

30

31

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-233

PERSONNEL ADMINISTRATOR OF MASSACHUSETTS,

ET AL., APPELLANTS

v.

HELEN B. FEENEY

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DIS?PRICT OF MASSACHUSETTS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

Whether a Massachusetts statute that provides a

preference for veterans over non-veterans in the se-

lection of state civil service employees discriminates

against women in violation of the Equal Protection

Clause.

INTEREST OF THE UNITED STATES

Veterans’ preferences have long been a feature of

public employment. They need not, however, take a

single form. The Massachusetts preference at issue

here is an “absolute” preference. The federal pref-

(1)

2

erence has never applied in such an absolute way

to such a large proportion of public employees as

does that of Massachusetts. Moreover, President Car-

ter has asked Congress to alter the federal veterans’

employment preference because, among other things,

it unduly interferes with employment opportunities

for women and with management flexibility. The

President’s proposed changes would reduce the dura-

tion of the federal preference and the amount of

the preference in several ways.’

But the existing federal laws still provide a sig-

nificant preference to veterans, and federal law

would continue to do so under the President’s proposed

changes. The Court’s constitutional analysis of the

Massachusetts program may affect the federal pro-

gram—as it exists or as it may be modified—in

spite of the differences between the two. The Court’s

analysis could affect other veterans’ programs as

well.

1The President’s original proposal would have made the

preference available to veterans for only 10 years after their

separation from the military (three years in the case of

retired members of the armed forces) or until appointment

to a permanent civil service position, whichever came first.

Veterans’ retention rights in the case of a reduction in force

would have been limited to a period of three years following

the veteran’s appointment to a civil service position, although

veterans would have received a permanent five years’ senior-

ity credit. The proposal would have eliminated veterans’ pref-

erence for retired military officers with the rank of major or

above, and limited its availability for other retired military

personnel. See H.R. 11280, 95th Cong., 2d Sess. §§ 304, 305

(1978). Congress incorporated the President’s proposals only

to the extent they improved benefits for disabled veterans.

See notes 5-7, infra.

3

1. The framework of the federal veterans’ pref-

erence was established in the Veterans’ Preference Act

of 1944, ch. 287, 58 Stat. 387.7, Under the provisions

of that Act, preferences are extended to veterans,°

to disabled veterans, and to certain relatives of vet-

erans.* These three groups are called “preference

eligibles.” 5 U.S.C. 2108(3).

For most jobs in the competitive civil service, vet-

erans who served during a war and who receive a

passing grade on an entrance examination are en-

titled to have five additional points added to their

scores. 5 U.S.C. 3309(2). Ten points are added to

the test scores of diSabled veterans. 5 U.S.C. 3309

* Veterans’ preference programs had been enacted by Con-

gress and established by the Executive Branch since the Civil

War. Although the 1944 Act was the first comprehensive

legislation on the subject, it was designed to codify existing

policies with respect to veterans’ preferences. See Note, Vet-

erans’ Preference in Public Employment: The History, Con-

stitutionality, and Effect on Federal Personnel Practices of

Veterans’ Preference Legislation, 44 Geo. Wash. L. Rev. 623,

624-626 (1976) ; see also Fredrick v. United States, 507 F.2d

1264, 1266-1267 (Ct. Cl. 1974).

’“Veterans” include those who received honorable dis-

charges from the armed forces after serving on active duty

during a war or on active duty for more than 180 consecutive

days between 1955 and 1976. Service in the National Guard

or military reserves is not credited. 5 U.S.C. 2108(1).

‘The qualifying relatives include the unmarried widow or

widower of a veteran, 5 U.S.C. 2108(3)(D), the wife or

husband of a disabled veteran, 5 U.S.C. 2108(3)(E), and,

under certain circumstances, the mother of a disabled veteran

or a veteran who lost his life while serving in the armed

forces, 5 U.S.C. 2108(3) (F), (G).

4

(1). In addition, for jobs other than scientific and

professional positions in grades GS-9 or higher, quali-

fying disabled veterans must be considered, in order of

their ratings, ahead of any other applicants. 5

U.S.C. 3313. Similarly, certain civil service jobs—

guards, elevator operators, messengers, and custo-

dians—are open only to “preference eligibles” as long

as there are any applying for those positions. 5

U.S.C. 3310.

A preference eligible also is entitled to “experi-

ence credit” for the time he spent in the armed

forces if, when his career was interrupted by mili-

tary service, he held a job similar to the federal

job for which he is competing. 5 U.S.C. 3111(1).

Various physical and age requirements for selec-

tion and promotion can be waived for a preference

eligible if it is determined that he is qualified to

perform the job. 5 U.S.C. 3312, 3363. When a pref-

erence eligible is passed over for employment in favor

of a person who is not a preference eligible, the ap-

pointing authority must provide reasons for the de-

cision; the Office of Personnel Management must

then determine whether the reasons for passing over

the preference eligible are insufficient. The Office

° The Civil Service Reform Act of 1978 added a provision to

the federal veterans’ preference program under which agen-

cies may, under certain circumstances, appoint disabled veter-

ans to career positions on a non-competitive basis. Pub. L. No.

95-454, 92 Stat. 1147-1148 (adding 5 U.S.C. 3112).

5

may require that the preference eligible be hired. 5

U.S.C. 3318(b).°

Preference eligibles also enjoy various benefits

with respect to job retention and reinstatement.

When a preference eligible resigns or is separated

or furloughed from his civil service job, he is en-

titled to have his name placed on eligibility lists for

every position for which he is qualified, in accordance

with the preference scheme established in Sections

3309 and 3313. See 5 U.S.C. 3314-3316. Preference

eligibles enjoy special procedural protections against

dismissal for cause, 5 U.S.C. 7512, 7701, and they

enjoy a variety of rights to preferential retention

when a federal agency undergoes a reduction in

force or transfers its functions to another agency.

5 U.S.C. 3501-3504."

2. As is apparent from even this cursory review,

the federal veterans’ preference program is in many

respects quite different from the Massachusetts pref-

erence. The Massachusetts scheme embodies an “ab-

solute preference,” under which all qualifying vet-

erans must be considered for civil service positions

ahead of any qualifying non-veterans. By contrast,

the federal preference is based, in the main, on a

*The Civil Service Reform Act of 1978 provided new

retention rights for certain disabled veterans, among a variety

of new benefits for that group. Pub. L. No. 95-454, 92 Stat.

1149.

* This provision was amended slightly by the Civil Service

Reform Act of 1978, to provide that the preference eligible

shall be sent a copy of the Office’s findings and, under cer-

tain circumstances, will be afforded an opportunity to contest

those findings. Pub. L. No. 95-454, 92 Stat. 1148.

6

“point system,” under which the preference merely

augments each veteran’s score and thus permits high-

scoring non-veterans to be considered ahead of low-

scoring veterans. The federal veterans’ preference

also provides a variety of more particular benefits to

veterans, including experience credits, waivers of

certain job requirements, and special retention and

reinstatement rights.

In spite of these substantial differences, the fed-

eral preference is similar to the Massachusetts pref-

erence in certain limited respects. First, the re-

quirement that the list of qualifying disabled vet-

erans be exhausted before other qualifying candidates

can be considered for certain jobs (5 U.S.C. 3313)

parallels the operation of the Massachusetts scheme,

although it is limited to certain jobs and to dis-

abled veterans. Second, the restriction of the jobs of

elevator operators, guards, messengers, and custo-

dians to veterans as long as any are available (5

U.S.C. 3310) creates an even greater theoretical

preference for those positions than the Massachusetts

scheme, since minimum qualifications are not speci-

fied for those jobs under the federal statute. Fin-

ally, the federal veterans’ preference benefits pre-

cisely the same class as does the Massachusetts pref-

erence. Thus, the same constitutional challenges

based on the sexual composition of the beneficiary

class that are made in this case might apply as well

with respect to the federal veterans’ preference.

Because of the similarities between the Massa-

chusetts veterans’ preference and the federal pref-

7

erence, the United States has an interest in par-

ticipating in this case in order to defend those por-

tions of the federal veterans’ preference—as it exists

or as modified by the President’s proposals—that

might be affected by the Court’s ruling in this case.

Moreover, the United States has an interest in artic-

ulating the considerations that, in our view, would

support the constitutionality of both the federal vet-

erans’ preference scheme and federal veterans’ bene-

fits in general against equal protection claims of the

sort raised here.‘ Finally, the United States has a

more general interest as well: to defend the preroga-

tives of Congress and the Executive Branch to adopt

5 Veterans’ benefits, other than the veterans’ preference

in public employment, include a wide range of programs.

Among them are educational benefits, both for veterans and

for their survivors and dependents, 38 U.S.C. 1601-1799;

hospital and medical care, 38 U.S.C. 601-654; special home,

farm, and business loan programs, 38 U.S.C. 1801-1827 ; com-

pensation for veterans who die or are disabled as the result

of a service-connected injury or disease, 38 U.S.C. 301-362:

pensions for those suffering from non-service-connected dis-

abilities, 38 U.S.C. 501-562; a special life insurance program,

38 U.S.C. 701-788; and various rehabilitation and job train-

ing and counseling services, 38 U.S.C. 1501-1511, 2001-2008.

In addition, federal law provides that a person who leaves

a position with either a public or private employer for a

period in the military service must be reinstated, after his

period in the service, to a position similar in seniority, status,

and pay to the one he left, unless the employer’s circum-

stances have so changed as to make it impossible or unrea-

sonable to do so. 38 U.S.C. 2021-2026. Moreover, private em-

ployers contracting with the United States must agree to take

affirmative action to employ disabled veterans and veterans

of the Vietnam era. 38 U.S.C. 2012.

8

employment preferences for veterans and other

groups without being subject to constitutional in-

validation because of the incidental consequences of

such preferences on other classes of employees or ap-

plicants.

STATEMENT

1. Massachusetts law provides that persons who

pass examinations for appointment to state civil

service positions’ are placed on eligibility lists in

the following order: first, all disabled veterans in

order of their scores; second, all other veterans in

order of their scores; next, widows and widowed

mothers of veterans who were killed in action or

who died as a result of service-connected disabilities, in

order of their scores and finally, all other applicants in

order of their scores. Mass. Gen. Laws ch. 31, § 23

(1973). The law further provides that a disabled vet-

eran shall be retained in employment in preference to

all other persons, including other veterans. bid.”

° The “examinations” may be in part written and in part a

measure of the applicants’ training and experience, or they

may be solely a measure of training and experience. In either

event, relevant experience in military service is credited (A.

73).

10 The Massachusetts system provides certain additional

benefits for veterans, including eligibility for employment

without examination for certain highly decorated veterans,

Mass. Gen. Laws ch. 31, § 22 (1973) ; waiver of minimum age

requirements for veterans applying to police and fire depart-

ments, id., § 22A; and preferences in selection to provisional

appointments and to public labor services in the state, id. at

§§ 24, 25.

9

When a state agency needs to fill a position desig-

nated as a civil service job, it notifies the Civil Serv-

ice Division. The Division then certifies a number

of candidates for appointment from the top of the

appropriate eligibility list and forwards those names

to the agency. The agency may appoint an employee

from among the names forwarded (A. 198).

2. In March 1975 appellee filed this action in the

United States District Court for the District of

Massachusetts. She sought declaratory and injunc-

tive relief against the operation of the Massachusetts

veterans’ preference statute, alleging that it violates

the Equal Protection Clause of the Fourteenth

Amendment by discriminating against women.”

Appellee, a female non-veteran, took the Massa-

chusetts civil service examinations for two adminis-

trative positions with the state Department of Men-

tal Health. Although she received high scores on

both examinations, the application of the veterans’

preference caused her to be ranked behind a num-

ber of veterans, including many who received lower

scores on the examinations than she did (A. 205).

Shortly after filing her complaint in this action, ap-

pellee sought and obtained an order barring the

As of 1976 approximately 60% of the state jobs in

Massachusetts were subject to the state civil service selection

system (A. 196).

2 No statutory claim was brought under Title VII of the

Civil Rights Act of 1964, because Congress has provided that

veterans’ preference statutes are not subject to Title VII

challenge. 42 U.S.C. 2000e-11.

10

state defendants from making permanent appoint-

ments to the two positions at issue, pending the out-

come of the litigation (A. 195-196). The court then

consolidated appellee’s case with a similar action

that had been brought by a female non-veteran seek-

ing employment as an attorney with the Common-

wealth, a position that at that time was subject to

the state civil service selection provisions, includ-

ing the veterans’ preference.

A three-judge court was convened to consider the

consolidated challenges to the veterans’ preference

statute. Prior to the court’s decision, Massachusetts

removed attorneys from the competitive civil service

system. Accordingly, the action brought by the fe-

male attorney became moot (A. 206-211). The court

reached the merits of appellee’s claim, however, and

held that the veterans’ preference scheme unlaw-

fully discriminates against women, in violation of

the Equal Protection Clause of the Fourteenth

Amendment (A. 221).

The court acknowledged at the outset that the Mas-

sachusetts veterans’ preference, which is facially

neutral with respect to sex, “was not enacted for

the purpose of disqualifying women from receiving

civil service appointments” (A. 212). The court

further acknowledged that the State has a legitimate

interest in assisting veterans by providing special

treatment to them in the selection of public em-

ployees (A. 213). This interest, according to the

court, is founded in the State’s legitimate desire “to

encourage service in the armed services, reward those

11

whose lives have been disrupted because they have

served, and provide some assistance during the some-

times uneasy transition from military to civilian

life’ (A. 214-215).

In spite of these considerations, the court held that,

because the Massachusetts veterans’ preference sub-

stantially diminishes women’s employment opportuni-

ties, it violates the Equal Protection Clause. The

“worthy purpose” of the legislative program is not

enough to shield it from judicial scrutiny, the court

wrote. Instead, “[i]n the context of the Fourteenth

Amendment, ‘[t]he result, not the specific intent, is

what matters’ ” (A: 215, quoting from Rozecki v.

Gaughan, 459 F.2d 6, 8 (1st Cir. 1972)). Although

the court noted that women had been appointed to

approximately 43% of the permanent civil service

positions in a sample 10-year period, it found that

because of the veterans’ preference few women had

been considered for high-ranking positions in the

state civil service (A. 218).” Because, as a practical

matter, “status as a veteran [is a] sine qua non for

** The court observed that the percentage of female civil

service appointees is “inescapably tied to circumstances

totally beyond their control, or choice—the federal govern-

ment’s policy of limiting the number of women who may

serve in the armed forces” (A. 218). Although the court ex-

pressed no opinion on the constitutionality of the statutes and

regulations relating to women’s participation in the military

(A. 219 n.12), it concluded that the “combination of federal

military enrollment regulations with the Veterans’ Preference

is a one-two punch that absolutely and permanently fore-

closes, on average, 98% of this state’s women from obtaining

significant civil service appointments” (A. 218-219).

12

obtaining the most attractive positions in the state

civil service,” the court held that “Massachusetts has

effectively and unquestioningly incorporated into its

public employment policy a set of criteria having no

demonstrable relation to an individual’s fitness for

civilian public service” (A. 219).

The court stated that, in spite of its effect on

women’s employment opportunities, the Massachu-

setts veterans’ preference system “might escape con-

stitutional rejection if it were the only means by

which the state could implement a program of vet-

erans assistance in the area of public employment”

(A. 219). But because in the court’s view the State

could have selected methods of benefitting veterans

“without doing so at the singular expense of * * *

its women” (ibid.),* the court concluded that the

method chosen had too severe an effect on job oppor-

tunities for women to be sustained under the Equal

Protection Clause.

Judge Murray dissented. He first observed that the

veterans’ preference statute is neutral on its face with

respect to sex: female veterans are accorded the same

preference as male veterans (A. 231). If there exists

an almost insuperable barrier to women attaining

higher civil service jobs, Judge Murray observed, “it

is a circumstance that non-veteran women share with

a large number of non-veteran men” (A. 232). Be-

14The court suggested that a point system that offered

some reward for time spent in the military or a time limit for

exercising the preference might be adopted. Nevertheless,

the court declined to say that either of these provisions would

be constitutional.

13

cause, as the majority had acknowledged, the statute

was not enacted with the intent of disqualifying

women from civil service positions, J udge Murray

considered the statutory distinction between veterans

and non-veterans to be neither a gender-based classifi-

cation nor a pretextual device by which to discrimi-

nate against women. Accordingly, J udge Murray

would have assessed the veterans’ preference under

traditional equal protection standards, justifying the

employment preference to veterans on three grounds:

as a reward to veterans for their service to their

country ; as a device to take account of the valuable

experience veterans gain in military service; and as

an aid in the rehabilitation of veterans whose lives

have been disrupted by a period of military service

(A. 235). On the basis of the court’s finding that

this case involves only “non-intentional adverse dis-

criminatory impact on women,” Judge Murray ob-

fees . the court’s use of the more exacting test

employed in cases involvin I i

rng g classifications by gender

Judge Murray disagreed with the court’s conclusion

that the veterans’ preference statute “suspends the

application of * * * job-related criteria and substi-

tutes a formula that relegates demonstrable profes-

sional qualifications to a secondary position, absolutely

and permanently” (A. 239). This conclusion, he

wrote, “assumes the unacceptable premise that only

* The statute defines veterans to include both men and

a Mass. Gen. Laws ch. 4, § 7 (1973) ; id. at ch. 31, §§ 21,

14

selection criteria adhering exclusively and strictly to

raw test score meet the standard of ‘demonstrable

professional qualifications’ ” (ibid.). Even apart from

the veterans’ preference, Judge Murray pointed out,

the Commonwealth does not insist that candidates for

civil service jobs be selected solely on the basis of

their raw scores on the civil service examinations.

Finally, he characterized the court’s assertion that

the veterans’ preference is absolute and permanent

as “but another way of declaring that ‘the preference

accorded to veterans is simply too great’ * * * not

that there is no rational basis for the classification”

(ibid.). |

3. The State’s Attorney General appealed the dis-

trict court’s judgment to this Court. After first cer-

tifying a procedural question to the Supreme Judicial

Court of Massachusetts,” this Court vacated the judg-

ment of the district court and remanded the case for

further consideration in light of the intervening deci-

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

434 U.S. 884 (1977)."

6 The Court certified the question whether Massachusetts

law authorizes the Attorney General of the Commonwealth

to prosecute an appeal to the Supreme Court from the judg-

ment of the district court without the consent (and over

the objections) of the state officers against whom the judg-

ment of the district court was entered. 429 U.S. 66 (1976).

The Supreme Judicial Court of Massachusetts answered the

question in the affirmative. Feeney v. Commonwealth, 366

N.E.2d 1262 (1977).

17 While the case was pending on appeal, Massachusetts en-

acted a temporary veterans’ preference statute providing a

15

The district court adhered to its determination that

the Massachusetts veterans’ preference statute is un-

constitutional. The court concluded that Washington

v. Davis, supra, and the subsequent decision in Vil-

lage of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977), support its

holding that the veterans’ preference deprives women

of the equal protection of the laws (A. 252).

The court acknowledged that Washington v. Davis

held “that claims of invidious discrimination under

the fifth or fourteenth amendments require proof of

a discriminatory purpose” (A. 257). Although it had

previously found that the Massachusetts veterans’

preference “was not enacted for the purpose of dis-

qualifying women from receiving civil service ap-

pointments” (A. 212), on remand the district court

found that the required showing of discriminatory

purpose had been made.

. The veterans’ preference, according to the court

‘had the natural, foreseeable and inevitable effect of

producing a discriminatory impact” (A. 259), and

the legislature therefore was at least “chargeable

with knowledge of the long-standing federal regula-

tions limiting opportunities for women in the mili-

tary, and the inevitable discriminatory consequences

produced by their application to the challenged for-

mula” (A. 260). Although the Commonwealth’s mo-

tive was to benefit its veterans, the court concluded,

modified point preference for veterans. Th

fied ; at statute will

remain in effect only until a final judgment is entered in this

case. Mass. Gen. Laws ch. 31, § 23 (Supp. 1978-1979).

16

its intent was “to achieve that purpose by subordinat-

ing employment opportunities of its women” (A.

264). The intent to discriminate was established, ac-

cording to the court, because “[t]he course of action

chosen by the Commonwealth had the inevitable con-

sequence of discriminating against the women of this

te” (ibid.).

as a es opinion, Judge Campbell acknowl-

edged that a statutory classification that is neutral

with respect to sex or race would not be unconstitu-

tional simply because it has an incidental unequal

effect on one or another sexual or racial group (A.

266-267). But in his view the apparent neutrality of

the veterans’ preference law and the apparent absence

of intentional discrimination “are both open to seri-

ous question” (A. 267). The veterans’ preference may

be facially neutral in a limited sense, Judge Camp-

bell wrote, because “it is not based overtly on selec-

tion by sex, but since the preferred class is 98 70 male

the effect is virtually the same as if it were” (ibid.).

Judge Campbell also concluded that the effect of the

veterans’ preference on women is “inevitable,” and

that the “inevitability of exclusionary impact * * *

undermines the argument of no discriminatory in-

tent” (A. 268). Accordingly, Judge Campbell con-

cluded that the “destruction of normal female oppor-

tunities in the state employment system is too evident a

consequence of the super-imposition of veterans as an

absolutely preferred class upon that system” to with-

stand constitutional challenge (A. 269).

Again, Judge Murray dissented. Although he ac-

knowledged that in operation the statute “favors

17

males in greater proportion than females for the

higher civil service positions,” Judge Murray con-

cluded that “the statutory classification has not been

shown to be a mere pretext to accomplish the purpose

of invidiously discriminating against women” (A.

271). To the contrary, as the majority itself had

acknowledged, the legislature had apparently selected

the veterans’ preference for the sole purpose of aiding

veterans. Because the record “does not show the

operation of the statute and its effect to be a clear

pattern, unexplainable on grounds other than an in-

tent to limit the employment opportunities of women”

(A. 272-278), J udge Murray concluded that the show-

ing of discriminatory purpose required by Washington

v. Davis was not made in this case and that the veter-

ans’ preference statute therefore should have been

sustained.

The fact that the legislature could have chosen a

more limited form of preference “provides no ground

for indictment of the legislature’s motive,” Judge

Murray stated (A. 277). It indicates that the legis-

lature chose to provide veterans with a more substan-

tial benefit, but not that it chose to do so in order to

disadvantage women. Finally, Judge Murray ob-

served that there is no reason to suppose that the

veterans’ preference statute would not have been en-

acted “if women were represented in the armed serv-

ices in such numbers that the preference would have

no discriminatory effect” (A. 279). Thus, it can-

not be said that the enactment of the veterans’ pref-

erence was caused by any legislative intent to discrim-

18

inate against women. For that reason as well, Judge

Murray concluded that the Massachusetts veterans’

preference should not be struck down.

SUMMARY OF ARGUMENT

Official action will not be held unconstitutional

solely because it results in a disproportionate effect

on a protected class. Washington v. Davis, 426 U.S.

229 (1976), held that proof of a discriminatory pur-

pose also is necessary to establish a violation of the

Equal Protection Clause. Evidence that a challenged

decision or statute has a disproportionate effect may

often be relevant to the issue of discriminatory pur-

pose. But even though evidence of effect may well

enlighten the inquiry into purpose, it cannot displace

it.

The district court found that the Massachusetts

legislature had adopted the veterans’ preference stat-

ute for the laudable purpose of aiding veterans. But,

the court also found, the legislature must have known

that because the class of veterans is overwhelmingly

male, the veterans’ preference would achieve its pur-

pose at the expense of employment opportunities for

women. Applying the principle that a person is

deemed to intend the natural and foreseeable conse-

quences of his actions, the district court found that

the Massachusetts legislature “intended” to injure

the employment interests of women when it enacted

its veterans’ preference statute, even though that leg-

islation was not enacted for that “purpose.”

19

That was error. This Court’s discussions of the in-

tent or purpose that is required to establish an equal

protection violation make it clear that “intent,” “pur-

pose,” and “motive” are the same. The natural and

foreseeable consequences of governmental actions may

constitute probative evidence of discriminatory intent

and may therefore require the production of convinc-

ing evidence of legitimate purposes. But here it is

clear that the Massachusetts veterans’ preference was

intended to achieve legitimate objectives and not to

discriminate against women.

The district court based its ruling in part on its

view that the Massachusetts veterans’ preference

statute served no purpose whatever as a predicter of

job performance in state civil service jobs. In so do-

ing, the court appears not to have taken fully into

account the legitimate purposes that a veteran’s pref-

erence may serve, independent of any use it may have

as an employment selection device. Veterans’ prefer-

ence schemes in general, and the federal program in

particular, have traditionally been regarded as pri-

marily serving several related purposes: to reward

veterans for having served the country, usually at

some personal sacrifice; to induce others to serve;

and to facilitate the veterans’ return to civilian life.

The Massachusetts veterans’ preference does not per-

petuate any unlawful discrimination against women

in the military. The basic distinctions by gender in

the military are rational and serve important inter-

ests. We believe that particularly in light of Con-

20

gress’ broad discretion in the realm of military af-

fairs, those distinctions are not unlawful.

Finally, proof that a particular statute was moti-

vated in part by an improper purpose does not neces-

sarily require that the challenged statute be invali-

dated. It merely shifts the burden to the defendant

to show that the same action would have been taken

even if the impermissible purpose had not been con-

sidered. Accordingly, in this case even if the district

court was correct that the Massachusetts veterans’

preference statute constituted intentional discrimina-

tion against women, the State should have an oppor-

tunity to show that the legislature would have enacted

the veterans’ preference even if it had no effect on

women.

In saying this, the United States does not endorse

the Massachusetts veterans’ preference or any par-

ticular form of veterans’ preference. We have noted

above that the President wishes to modify the existing

federal preference system. The federal system—as it

exists or as the President has proposed to change it

—is different from the Massachusetts system in many

respects. We do not address policy issues here except

to note the reasons why, in our view, the federal vet-

erans’ preference is a rational and constitutionally

permissible response to legitimate governmental con-

cerns. Our argument is that the district court erro-

neously analyzed the constitutional issue in this case,

and for that reason the judgment of the district court

should be reversed.

21

ARGUMENT

I

THE VETERANS’ PREFERENCE STATUTE DOES

NOT PURPOSEFULLY DISCRIMINATE AGAINST

WOMEN

A. Only Purposeful Discrimination Violates the Equal

Protection Clause

Governments enact thousands of statutes. It is in-

evitable that some of these statutes will affect some

groups more and in different ways than they affect

others. The disparity in effect is apparent from

even a cursory examination of significant govern-

mental programs. For example, federal programs

for the assistance of farmers aid a group that is

overwhelmingly white and male. Federal and state

social welfare programs assist many groups that are

quite unlike the population at large: welfare pro-

grams assist poor persons who, because of social

discrimination, are proportionately more black or

Hispanic than is the general population; old age

programs assist persons who, because of the mor-

tality rates of men, are unusually likely to be female.

The National Endowment for the Arts supports or-

chestras and ballet companies that are patronized

predominantly by the well-to-do. In light of the

preference of some religious groups for parochial

education, public support of the public schools as-

sists a population that is more Protestant than the

population as a whole. The list could be extended

almost indefinitely.

22

Few would argue, however, that the effects of

these and other programs make them vulnerable to

constitutional challenge. This is so because, as the

Court has held, the mere fact that a public program

affects members of one group more than it affects

members of some other group does not mean that it

is unconstitutional. To establish a violation of the

Equal Protection Clause, a plaintiff usually must

show both that the challenged action has a dispro-

portionate effect on a particular class and that it was

undertaken with the intent to affect that disfavored

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

Keyes v. School District No. 1, Denver Colorado,

413 U.S. 189, 205, 208 (1973). In other words, the

plaintiff must establish that “discriminatory pur-

pose has been a motivating factor” in the decision to

take the challenged action. Village of Arlington

Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252, 265-266, 270-271 n.21 (1977).

The “intent” requirement plays an important role

in constitutional adjudication. Ordinary adjudica-

tion assesses the validity of a statute on its face.

If the statute or rule refers to a particular class of

persons, then the legislature must support its deci-

sion by whatever standard of justification is ap-

propriate given the nature of the class sought to

be affected. If the legislation on its face is neutral

with respect to the classes particularly protected by

the Equal Protection Clause, then the judicial in-

quiry usually is not searching; the Clause guar-

antees equal treatment by the law itself, but it does

not guarantee that the law will yield equal results. If

23

groups of persons are unequally affected by the even-

handed application of an evenhanded statute, they

suffer no constitutional injury. Washington v. Davis,

supra. In many cases the disproportionate effects

of a neutral statute may simply be evidence of pri-

vate inequality that predated the law; because the

Fourteenth Amendment reaches only inequalities

caused by state action, the failure of a law to over-

come such private inequalities provides no basis for

constitutional objection. Jefferson v. Hackney, 406

U.S. 535, 548 (1972); Maher v. Roe, 432 U.S. 464,

470-477 (1977).

But it is not always sufficient to assess the con-

stitutionality of a statute, rule, or practice on its

face. Facial neutrality may be but a mask for the

legislature’s goals. A statute may use a facially

neutral standard only because that standard is a

close proxy for some other, forbidden, characteristic.

The fact that a school board always offers a non-

racial reason for its decisions is not enough to shield

those decisions from scrutiny if they routinely favor

maximum separation of the races; a court will look

behind the facial criteria of decision to find some

" unexpressed criterion that accounts more accurately

for the decisions.

Unless courts look behind the face of a statute or

policy, they permit sophisticated discrimination to

proceed unimpeded.* When a single facially neutral

1% See Brest, Palmer v. Thompson: An Approach to the

Problem of Unconstitutional Legislative Motive, 1971 Sup.

Ct. Rev. 95, 116-118.

policy happens to have an effect more harsh on women

than on men there is usually no reason to be con-

cerned; ordinarily it would be expected that some

other policy would cut the other way. When the

decisionmaker harbors an intent to make decisions

on the ground of sex, however, the long-run neu-

trality that. is the product of a series of adven-

titious effects will vanish; a legislature that resorts

to unstated gender-based grounds for decision can

be expected to limit the extent to which some poli-

cies adventitiously would favor women, and to aug-

ment the extent to which others favor men. In other

words, an intent on the part of legislators to take

gender into account in making decisions increases

the likelihood that the incidental effects of all of its

actions will be in the same direction. That sort of

cumulative effect.is at the core of the prohibition of

the antidiscrimination principle.”

More than that, an intent to use an unstated

characteristic as a rule of decision adds insult to

injury. Racial segregation in the schools is unlaw-

ful not simply because it produces one-race classes

but also because the very fact of purposeful separa-

tion imposes a stigma on those cast out. The pur-

pose to use a particular ground of decision may make

the result invidious, even though the same result,

for a different reason, would be inoffensive. See

Keyes, supra; City of Richmond v. United States, 422

19 See Brest, The Supreme Court, 1975 Term—Foreword:

In Defense of the Antidiscrimination Principle, 90 Harv. L.

Rev. 1, 8-12, 26-31 (1976).

25

U.S. 358, 378-379 (1975); Regents of the University

of California v. Bakke, No. 76-811 (June 28, 1978),

slip op. 37-38 (opinion of Brennan, White, Marshall

and Blackmun, JJ.).

As this discussion indicates, the Court has referred

to the intent of the decisionmaker in order to identify

those cases in which an unstated reason or ground of

decision makes the statute or rule as offensive as if

the reason had been stated expressly. The Court in-

quires into the “real” reasons for a decision in order

to determine whether the statute or rule depends in

part on an unstated, but forbidden or suspect, charac-

teristic for its force and purpose. This role for “in-

tent” in constitutional adjudication suggests the rea-

son that intent is not found solely because a statute

has a disproportionate effect on certain groups. The

inquiry into intent is an inquiry into the “real”

grounds of decision, into whether the decision is part

of a pattern of decisions, into whether the decision

adds insult to injury. If the simple fact of dispropor-

tionate consequences -were enough to show “intent to

discriminate,” and consequently unconstitutionality,

the intent inquiry would not serve these purposes. In-

deed, it would not serve any independent purpose at

all.

B. Awareness of Probable Disparate Effect Is Not the

Same as Purposeful Discrimination

Like the federal veterans’ preference, the Massa-

chusetts veterans’ preference statute is neutral on its

face with respect to gender. Veterans—male and

26

female—are given certain advantages in selection for

civil service jobs over non-veterans—male and female.

The district court found that the veterans’ preference

statute was not designed as a pretexual device by

which to discriminate against women (A. 212). To

the contrary, the court found that the legislature’s

purpose, motive, and design in enacting the veterans’

preference were just what they appeared to be: to

benefit veterans (A. 213-216, 219, 254, 264). The

court concluded, moveover, that this purpose is legiti-

mate and that it is served by the veterans’ preference

(A. 215). Yet the court found that although the

legislature did not have the “purpose” of limiting

women’s employment opportunities, it nonetheless had

the “intention” to do so.

In distinguishing between purpose and intent—and

giving conclusive significance to intent—the court re-

lied on the principle that an actor ordinarily is

deemed to intend the natural and foreseeable conse-

quences of his acts. Because the veterans’ preference

has the “natural, foreseeable and inevitable effect of

producing a discriminatory impact” (A. 259), the

court held that the Massachusetts legislature intended

to achieve its purpose of aiding veterans by “subor-

dinating employment opportunities of its women” (A.

264). “The fact that the Commonwealth had a salu-

tary motive,” the court concluded, “does not justify

its intention to realize that end by disadvantaging its

women” (ibid.).”°

20 Judge Campbell’s concurring opinion provides a concise

statement of the court’s rationale (A. 268):

27

The district court’s distinction between purpose

and intent in illusory. This Court has used the terms

interchangeably to refer to the factor or factors that

motivated the persons who took the challenged ac-

tion. See Dayton Board of Education v. Brinkman,

433 U.S. 406, 414 (1977); Village of Arlington

Heights v. Metropolitan Housing Development Corp.,

supra, 429 U.S. at 265-266; Washington v. Davis,

supra, 426 U.S. at 240-242; Keyes v. School District

No. 1, Denver, Colorado, supra, 413 U.S. at 208, 210-

211; cf. Jefferson v. Hackney, supra; Wright v. Rock-

efeller, 376 U.S 52, 56, 58 ( 1964). Because the dis-

trict court found that injuring women was not among

the considerations motivating the legislature to enact

the veterans’ preference, it could not properly con-

clude that the statute’s effect on women was “in-

tended” by the legislature. Intent, in the constitu-

tional sense, refers to the factor or factors that

motivated or contributed to the decision. An effect

This same inevitability of exclusionary impact upon

women * * * undermines the argument of no discrimina-

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

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

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

lature 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 legislature did

not wish to harm women. But the cutting-off of women’s

[employment] opportunities was an inevitable concom-

mitant of the chosen scheme—as inevitable as the propo-

sition that if tails is up, heads must be down. Where a

law’s consequences are that inevitable, can they meaning-

fully be described as unintended?

28

of a statute is “intended” only if that effect is weg

sired consequence.” By using the word “intent” to

refer to the incidental, albeit inevitable, consequences

of a statute designed to serve legitimate ends, the

district court adopted an approach not materially dif-

ferent from the “effect” theory of equal protection

that this Court has rejected.

To be sure, proof that a challenged statute has a

disparate effect on a particular group may be im-

portant in ascertaining the intent of the decision-

maker. As the Court stated in Village of Arlington

Heights, supra, 429 U.S. at 266:

21 ourt’s use of the term “intent” accords with the

PPM cedigr ace recently by Charles Fried: x [O] ne intends

a result if that result is chosen either as one’s ultimate end

or as one’s means to that end. One intends a result just in

case one can say that one acted (or failed to act) in order

to produce that result, just in case one would have to —

that result in answer to the question ‘Why did you do that?

or ‘Why did you fail to do that?’ Moreover, there are conse-

quences of one’s acting which, though foreseen with ever so

much likelihood, are not intended at all. These results are

mere side effects, [and they are so treated if one would act

as one did even if the side effects vanished].” C. Fried, Right

22 (1978).

ges pr iadrs penis also accords with that suggested by

Paul Brest in his thoughtful article, Palmer Vv. Thompson:

An Approach to the Problem of Unconstitutional Legislative

Motive, 1971 Sup. Ct. Rev. 95. According to Professor Brest,

the objectives or purposes of a rule can be defined as “the

state of affairs or effects that the decisionmaker seeks to

establish or retain by promulgation of the rule. Id. at 104.

“This means that for purposes of judicial review of motiva-

tion a decisionmaker does not necessarily have as his objective

all of the foreseen consequences of his decision.” Jd. at 105

n.59.

29

Determining whether invidious discriminatory

purpose was a motivating factor demands a sen-

sitive inquiry into such circumstantial and direct

evidence of intent as may be available. The im-

pact of the official action—whether it “bears more

heavily on one race than another,” Washington

v. Davis, supra, at 242—may provide an im-

portant starting point.

Where disparate effect is very difficult to explain ex-

cept as the product of purposeful discrimination, the

evidence of effect may for all practical purposes es-

tablish the violation. Gomillion v. Lightfoot, 364 U.S.

339 (1960); Guinn v. United States, 238 U.S. 347

(1915).* Indeed, in some circumstances, evidence of

a grossly disproportionate effect on a protected class

justifies shifting the burden to the state to produce

evidence that this effect was not the product of pur-

poseful discrimination. See Castaneda v. Partida,

430 U.S. 482, 494 & n.13 (1977); Washington v.

Davis, supra, 426 U.S. at 241; Alexander v. Louisi-

ana, 405 U.S. 625, 682 (1972).** But even in such

*2 Nothing shows intent as well as a demonstration that a

series of decisions all have a disparate effect. See Yick Wo v.

Hopkins, 118 U.S. 356 (1886). Such a demonstration shows

a cumulation of disadvantage inexplicable on grounds other

than the forbidden but unstated characteristic.

*8 We have argued, and several courts of appeals have held,

that once plaintiffs demonstrate that particular official action

foreseeably resulted in segregation in the schools, that evi-

dence creates a presumption that the action was taken with

a discriminatory purpose. See United States v. School District

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

423 U.S. 946 (1975) ; Oliver v. Michigan State Board of Edu-

80

cases, if the state official establishes that the pro-

hibited factor was not part of the motivation for the

decision, the equal protection claim must fail.

Thus, no matter how compelling it may be, proof

regarding the effect of a facially neutral statute is

relevant only insofar as it sheds light on the ultimate

question of discriminatory purpose. Evidence of dis-

parate effect may make a finding of discriminatory

purpose inevitable, but it can never make it unneces-

sary. Accordingly, the principle that one is deemed

to intend the foreseeable and natural consequences of

one’s acts is applicable in equal protection analysis

cation, 508 F.2d 178, 182 (6th Cir. 1974), cert. denied, 421

U.S. 963 (1975) ; United States v. Texas Education Agency,

532 F.2d 380, 387-389 (5th Cir.), vacated and remanded, 429

U.S. 990 (1976). See generally Note, Reading the Mind of

the School Board: Segregative Intent and the De Facto/De

Jure Distinction, 86 Yale L.J. 317 (1976). Some commenta-

tors have suggested a burden-shifting approach whenever a

showing is made that the state’s action had an uneven impact

on a protected class. See Eisenberg, Disproportionate Impact

and Illicit Motive: Theories of Constitutional Adjudication,

52 N.Y.U.L. Rev. 36, 56 (1977) ; Perry, The Disproportionate

Impact Theory of Racial Discrimination, 125 U. Pa. L. Rev.

9-560 (1977).

yer et: a district court found that the purpose of the

veterans’ preference statute was to aid veterans, not to in-

jure women, it is not necessary to consider whether the evi-

dence of disparate effect in this case was sufficient to shift

the burden to the State to produce evidence that intent to

discriminate was not a motivating factor in its decision.

24It should be clear, of course, that there may be more

than one motive for a given decision. Village of Arlington

Heights demonstrates that a plaintiff makes out a violation

by showing that any one of the motives is improper.

31

only insofar as it suggests that evidence of foresee-

able effects may be relevant to the issue of discrimi-

natory purpose. See United Jewish Organizations of

Williamsburgh, Ine. v. Carey, 430 U.S. 144, 179-180

(1977) (Stewart, J., concurring); United States v.

City of Chicago, 549 F.2d 415, 435 (7th Cir. 1977) ;

Branch v. Du Bois, 418 F. Supp. 1128, 1133 (N.D. Ill.

1976) (three-judge court).* In this case, then, when

the district court found that the purpose of the vet-

erans’ preference statute was to aid veterans and not

** The principle that one is deemed to intend the natural

and foreseeable consequences of one’s acts has a somewhat

different application in tort law. Its principal use is to define

the scope of damages liability. A person who acts negligently

is liable only for the consequences that a reasonable man

should have foreseen, whether or not he adverts to the risk.

But if the person desires to cause the injury complained of,

he is subject to the broader liability imposed for the so-called

“intentional torts.” Moreover, if he is substantially certain

that injury will result from his acts, the person is still subject

to the broader rules of liability, because the definition of intent

incorporates not only those consequences that the actor desires

to bring about, but also those consequences that he knows

are certain or substantially certain to follow from his acts.

Restatement (Second) of Torts §§ 8A, 20 ( 1965). W. Prosser,

Law of Torts 32 (4th ed. 1971).

Because the intentional torts are presumed to be unjusti-

fied intrusions on\the rights of others, the law does not dis-

tinguish between those intrusions that the actor desires to

bring about and those that he knows will occur but simply

does not bother to avoid. In the case of official action ‘that

is subject to equal protection scrutiny, no such presumption

of impropriety obtains. Therefore, the Court has held that

state action designed to serve neutral ends should be upheld

if there is a rational basis for the action. See Washington v.

Davis, supra, 426 U.S. at 247-248. This analytical difference

indicates that tort principles cannot be applied uncritically

in equal protection cases.

82

to injure women, that should have been the end of the

matter.

C. Governments Have Legitimate Reasons for Adopting

Veterans’ Preference Statutes

In its first opinion, the district court recognized

that a veterans’ preference serves “the legitimate

state purpose of assisting veterans” (A. 213). It “is

designed to encourage service in the armed services,

reward those whose lives have been disrupted because

they have served, and provide some assistance dur-

ing the sometimes uneasy transition from military to

civilian life” (A. 214-215). The veterans’ preference,

the court concluded, “recognizes both the special prob-

lems of veterans and the need to promote an impor-

tant aspect of the nation’s welfare” (A. 215).

In its second opinion, the district court did not

focus on any of these justifications for the veterans’

preference. Instead, the court rested its finding of

discriminatory intent in part on its view that the

veterans’ preference is of no value in predicting an

individual’s performance in a civil service job (A.

261). In so doing, the court ignored the justifications

for veterans’ preference statutes that it had acknowl-

edged in its first opinion. Those justifications—en-

couraging enlistment, rewarding service, and assist-

ing reintegration into civilian life—have been relied

on repeatedly by the courts in sustaining both state

and federal veterans’ preferences against constitu-

33

tional attack. As Judge Friendly noted with respect

to a New York veterans’ preference statute:

The desire to compensate in some measure for

the disruption of a way of life and often of pre-

vious employment occasioned by service in the

armed forces and to express gratitude for such

Service is a rational basis for giving veterans a

larger measure of job security.

Russell v. Hodges, 470 F.2d 212, 218 (2d Cir. 1972).

See also Fredrick v. United States, 507 F.2d 1264,

1266-1267 (Ct. Cl. 1974) ; Bannerman v. Department

of Youth Authority, 436 F. Supp. 1273 (N.D. Cal.

1977) ; Branch v. Du Bois, 418 F. Supp. 1128 (N.D.

Ill. 1976) ; Feinerman v. Jones, 356 F. Supp. 252

(M.D. Pa. 1973) (three-judge court); Koelfgen v.

Jackson, 355 F. Supp. 243, 251-252 (D. Minn. 1972)

(three-judge court), aff’d mem., 410 U.S. 976 (1973) ;

cf. Johnson v. Robison, 415 U.S. 361, 378-383

(1974) .*

Nothing in the Constitution requires a state or the

federal government to adhere strictly to the results

of its competitive examinations in appointing persons

to civil service positions. Indeed, a state would be

free to abandon merit selection procedures altogether

in choosing its public employees.” Accordingly, there

is no constitutional infirmity in the state’s decision

26 See also Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)

(sustaining veterans’ preference by private employer) ; Hilton

Vv. Sullivan, 334 U.S. 323 (1948) (sustaining veterans’ re-

tention preference in federal employment).

*7 See Elrod v. Burns, 427 U.S. 347 (1976) (semble).

34

to give substantial weight to other social policies—

such as those promoted by the veterans’ preference—

in selecting civil service employees.

An example may help to illustrate this point. A

state might well determine that in the interest of re-

habilitating prior offenders, it should reserve a large

number of state jobs for former convicts. For the

jobs set aside for the project, the selection of convicts

would displace “merit” selection devices such as civil

service examinations. Moreover, in light of the pre-

dominantly male character of prison populations, the

project would doubtless provide jobs to more men than

women. But we doubt.that a serious constitutional

challenge could be mounted against the project unless

it could be shown that the desire to deprive women

of job opportunities in the state civil service played

some role in persuading the decisionmaker to adopt

the policy.

Although Massachusetts has a legitimate interest

in the related goals of encouraging and rewarding

service in the armed forces and assisting persons who

have served in the military to make the transition

back to a civilian economy, the federal government’s

interest in these goals is even stronger. These inter-

ests would support the federal program regardless of

the Court’s decision in the present case.

The federal government is responsible for raising

armies. It therefore has a direct and substantial in-

terest in encouraging enlistment in the armed serv-

ices. The benefits that accrue to veterans following

their period of active duty may serve as an induce-

. 35

ment to enlistment, and Congress legitimately may

seek to offer a variety of inducements—salaries, pen-

sions, educational benefits, hospitalization, employ-

ment preferences—that are apt to be attractive to dif-

ferent degrees to different persons. The Court held

in Johnson v. Robison, supra, 415 U.S. at 382-383,

that this rationale justifies veterans’ educational bene-

fits, even though those benefits are unavailable to per-

sons whose beliefs lead them to be conscientious ob-

jectors. Moreover, the federal government, as em-

ployer of its soldiers, has an interest in compensating

them adequately for the service they provide. The

veterans’ employment preference, like military pen-

sions, educational benefits, low-interest loan guaran-

tees and veterans’ administration services and privi-

leges, may serve as deferred compensation for a pe-

riod of service during which a veteran is generally

substantially undercompensated.

Like other forms of deferred compensation to vet-

erans, the federal veterans’ preference doubtless bene-

fits men as a class more than it benefits women. So,

for that matter, does the payment of salaries to per-

sons now in the service benefit a class that is over-

whelmingly male. In spite of this, however, it is in-

conceivable that salaries, veterans’ hospital privileges,

veterans’ educational benefits, and veterans’ loan pro-

grams would be subject to serious constitutional chal-

lenge as violating the rights of women.” Cf. Wash-

28 This Court has held that for purposes of constitutional

analysis, employment opportunities must be treated just like

36

ington v. Davis, supra, 426 U.S. at 248; Jefferson v.

Hackney, supra, 406 U.S. at 548.

Although the present federal system operates in a

different fashion, the veterans’ employment preference

—as changed by the President’s proposal or otherwise

—is justified in principle by considerations similar to

those pertaining to these other kinds of benefits con-

ferred on veterans, and the constitutional arguments

are also related.” Whether Congress extends a bene-

fit to veterans in the form of a direct money payment,

an exclusive right to certain federal services, or a

competitive advantage in some area of the economy

under federal control, the benefit provides federal re-

sources to veterans at the relative expense of non-

veterans.” Determining how great those benefits

other economic benefits. Massachusetts Board of Retirement

v. Murgia, 427 U.S. 307 (1976).

2° Veterans’ pensions, for example, are paid out of general

revenues.

3° As Judge Murray pointed out, the district court’s sugges-

tion that Massachusetts could have chosen an “effective, but

less drastic, alternative[]” (A. 239) in its effort to aid vet-

erans is simply a suggestion that the State reduce the size of

the preference given to veterans (A. 220). It misses the

point of veterans’ preferences to suppose that the preference

would serve its purpose just as well if it were reduced in

magnitude. Because the purpose of a veterans’ preference

is to give veterans a relative advantage in the competition for

certain public jobs, the size of the advantage conferred is the

essence of the legislation. Unlike cases in which the leg‘slative

goal could be achieved equally well by means less destructive

of other important interests, in the case of the veterans’ pref-

erence the “effectiveness” of the statute in serving the legis-

lative aims is reduced, pro tanto, as the preference is re-

37

should be, and what form they should take, is a mat-

ter for Congress, the Executive Branch, and the state

legislatures.

D. Federal Restrictions on Women’s Participation in

the Military Do Not Bring the Massachusetts Vet-

erans’ Preference into Conflict with the Equal Pro-

tection Clause

In finding that the veterans’ preference discrimi-

nates against women, the district court relied in part

on the fact that the federal government traditionally

has restricted the role of women in the military. In

the past, and to some extent in the present, the fed-

eral government has limited the number of women

who could enlist and has barred women from certain

kinds of military activities, such as combat duty. The

district court did not suggest that the federal re-

strictions on the role of women in the military are

unconstitutional or otherwise unlawful (A. 219 n.18).

Instead, the court relied on these restrictions to sup-

port its conclusion that the Massachusetts legislature

must have realized that the veterans’ preference

would substantially limit employment opportunities

for women in the State.

Facially neutral action may, of course, violate the

Equal Protection Clause if it perpetuates the effects

of prior unconstitutional discrimination. This Court’s

duced from the level selected by the legislature. Thus, a “less

drastic” preference level will of necessity be less “effective,”

unless “effectiveness” is defined as what the court, rather than

the legislature, deems to be the appropriate relative employ-

ment advantage for veterans.

38

decisions dealing with the obligation of school officials

to dismantle dual school systems establish that much.

See, e.g., Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 15 (1971); Alexander v.

Holmes County Board of Education, 396 U.S. 19

(1969) ; Green v. County School Board, 391 U.S. 430,

437-438 (1968); Brown v. Board of Education, 349

U.S. 294, 301 (1955). But this case does not present

the problem of the perpetuation of prior unconstitu-

tional discrimination.

It is by no means clear that the restrictions on

women’s participation in the military are unconsti-

tutional. The Court has sustained at least one of the

gender-based distinctions. See Schlesinger v. Ballard,

419 U.S. 498 (1975). If it were necessary to do so

here, we would argue that the distinctions are con-

sistent with the Constitution. As to Massachusetts,

then, the military’s use of gender is relevant to the

case only to the extent that it supports the inference

that the Massachusetts legislature realized that the

primary beneficiaries of the veterans’ preference

would be men. Nor is there any reason to suppose

that Massachusetts intended to discriminate against

women by importing a discriminatory device into its

employment selection procedures under the pretext

of using a neutral selection method. Absent some

showing of an intent to discriminate on that ground,

there is no basis for holding that the gender distinc-

tions in the military, even if impermissible, should

be sufficient to strike down a classification based on

status as a veteran.”

Second, the veterans’ preference is not a benefit

conferred on a class that has been the clear benefi-

ciary of prior official discrimination. In many re-

spects, military gender distinctions operate to the dis-

advantage of men, not in their favor. Conscription

extends only to men, and only men are sent into com-

bat. Thus, all women in the military have entered the

service voluntarily, while many men have not. We

recognize, of course, that seemingly preferential treat-

ment is not always benign, and that women as well

as men may suffer because of gender distinctions in

the military. Nonetheless, in significant respects, men

have plainly been disadvantaged by the gender dis-

tinctions established by the military. The district

court’s assumption that the veteran’s preference per-

petuates a form of discrimination against women is

therefore not altogether accurate.

** The question whether restrictions on women’s partici-

pation in the military violate the Constitution is, of course,

not presented in this case. Although the Court has never

directly passed on that question (cf. Kahn v. Shevin, 416

U.S. 351, 356 n.10 (1974)) the Court has noted that in

the realm of military affairs, congressional determinations

are entitled to particularly great deference by the courts,

see Schlesinger Vv. Ballard, 419 U.S. 498, 510 (1975) ; Toth v.

Quarles, 350 U.S. 11, 17 (1955); Orloff v. Willoughby, 345

U.S. 83, 95 (1953). We believe that in light of that principle

and in light of the reasons for which most gender distinc-

tions in the military have been devised, those distinctions

would survive constitutional challenge.

40

I

MASSACHUSETTS SHOULD HAVE BEEN ALLOWED

TO PROVE THAT ITS VETERANS’ PREFERENCE

WOULD HAVE BEEN ADOPTED WHETHER OR NOT

IT HAD A FFEUCT ON THE EMPLOYMENT OP-

PORTUNITIES OF WOMEN

Even if this Court should conclude that the Massa-

chusetts veterans’ preference statute amounted to in-

tentional discrimination against women, it should not

strike down the statute. The State should have an op-

portunity to show that the legislature would have

enacted the veterans’ preference even if it had no

effect on women.

As this Court has pointed out on several recent oc-

casions, proof that a particular statute or official ac-

tion was motivated in part by an improper purpose

does not necessarily require that the challenged action

be invalidated. It merely shifts to the defendant the

burden of establishing that the same action would

have been taken even if the impermissible purpose

had not been considered. Village of Arlington

Heights v. Metropolitan Housing Development Corp.,

supra, 429 U.S. at 270-271 n.21. If the defend-

ant meets the burden, the plaintiff is not en-

titled to relief, since he “no longer fairly could

attribute the injury complained of to improper con-

sideration of a discriminatory purpose” (ibid.). See

also Mt. Healthy City School District Board of Edu-

cation v. Doyle, 429 U.S. 274, 285-287 (1977); Day-

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

41

420 (1977); Carey v. Piphus, 435 U.S. 247, 260

(1978). Therefore, even if appellee is correct in her

assertion that the veterans’ preference constitutes in-

tentional discrimination against women, she is en-

titled to a remedy only if the veterans’ preference

would not have been enacted if the purpose of dis-

criminating against women had not been considered.

As Judge Murray noted, the district court did

not find, and nothing in the record suggests, that the

legislature would have refrained from adopting the

veterans’ preference if it knew that the effect on

women could play no role in its decision. Indeed,

in light of the court’s suggestion that the Massa-

chusetts legislature was simply indifferent to women’s

employment opportunities when it enacted the vet-

erans’ preference, it appears quite likely that the

absence of injury to women would have made the

veterans’ preference at least as acceptable to the legis-

lature, if not more so. Accordingly, even if the dis-

. trict court’s finding of intent to discriminate against

women is accepted, that finding would not necessar-

ily justify the remedy ordered by the district court.

The State should have an opportunity to show that

the improper intent did not affect the decision, and

only if the court finds against the State on that issue

can it hold the statute unconstitutional.

42

CONCLUSION

The judgment of the district court should be re-

versed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

FRANK H. EASTERBROOK

Deputy Solicitor General

WILLIAM C. BRYSON

Assistant to the Solicitor General

DECEMBER 1978

W ov. S. GOVERNMENT PRINTING orrice; 1978 279336 222