Petition — Detroit Police Officers' Assn. v. Young

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i JAN su Wwov

MICHAEL RODAK, 12., CU

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

DETROIT POLICE OFFICERS ASSOCIATION,

A Voluntary Mutual Benefit Association, Labor Organization,

Petitioner,

COLEMAN A. YOUNG,

Mayor of the City of Detroit, et al.,

Respondents,

WILLIAM MORGAN, BRIAN BRUNETT

and DONALD PRINCE,

Individually and as Representatives of a Class,

Petitioners,

Vv.

COLEMAN A. YOUNG,

Mayor of the City of Detroit, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Counsel on Inside Front Cover )

SSS

TIS RT eS TNT

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

WALTER S. NUSSBAUM

AVRAMA P. LITES

20833 Southfield Road, Ste. 100

Southfield, Michigan 48075

(313) 569-2666

SHELDON H. ADLER

21700 Northwestern Highway

Southfield, Michigan 48075

(313) 559-9100

Counsel for Petitioner

The Detroit Police

Officers Association.

JOHN F. BRADY

THOMAS M. J. HATHAWAY

RILEY & ROUMELL

720 Ferd Building

Detroit, Michigan 48226

(313) 962-8255

Counsel for Petitioners

William Morgan, Brian Brunnett,

Donald Prince and the

Class they Represent

DONALD J. MOONEY, JR.

PAXTON & SEASONGOOD

1700 Central Trust Tower

Cincinnati, Ohio 45202

(513) 352-6760

Of Counsel for All

Petitioners

TABLE OF CONTENTS

Page

OPINIONS AND ORDERS BELOW ................ 2

thas boc bac kalekiee cub cx Re Recs 3

QUESTIONS PRESENTED ......................:.. 4

paemmepenee SP BOE GABE ........ 2... ci cc eec ese 5

I. HISTORY OF THE LITIGATION ............. 5

Il. FACTUAL BACKGROUND .................. 7

A. The City’s Recruiting Practices Prior To

ss Bae eh 7

B. The City’s Hiring Practices Prior To July,

ON ta re ee a i 11

C. The City’s Promotional Practices Prior To

I that Cock oi so 5 6 as ok ess 12

(1) The Evidence Of “Job Assignment”

Discrimination Is Inconclusive ........ 12

(2) Components Of The Promotional

RS ne ce eee ee. fn 14

(3) Creation Of A Job Related Promo-

i Oe a 15

(4) Cumulative Effect Of The Promo-

MP rece Se 2, 17

D. The Creation Of The Promotional Quota ... 19

(1) The Appointment Of Philip G.

Tannian As Commissioner Of Police

By Mayor Coleman A. Young ........ 19

(2) Hearings Before The Board Of Police

re ene 20

ll.

PO ie ia Ca Vo ak a Wid ERS ak Sone o>

F. Promotions From Personnel Order No.

Tease des Pa. TOES. «0 os k vk ic cvveu nek

G. The City’s Defense Of Operational Needs ..

REASONS FOR GRANTING TRE WRIT .............

THE COURT OF APPEALS ERRED IN

FINDING THAT THE CITY’S UNILATERAL

IMPOSITION OF A STRICT RACIAL QUOTA

IN PLACE OF A BONA FIDE MERIT

SYSTEM OF PROMOTION DID NOT VIO-

NE SEU PU ks ees Seas eae ee been

A. The Sixth Circuit Erred In Finding Post-

Me PN in oo Ors de hens tie.

B. The Sixth Circuit Erred In Applying

Weber To The Public Sector .............

C. The Sixth Circuit Erred In Declining To

Find The City’s Quota To Be An Unrea-

sonable Remedy For Past Discrimination .. .

(1) The Non-Negotiated Abolition Of A

Bona Fide Merit Promotional System

Renders The Quota, Per Se, Unrea-

NI So Her er ee ea seek

(2) The City’s Racial Quota Unneces-

sarily Trammels The Rights Of White

Officers Seeking Promotion ...........

(3) The City’s Racial Quota Unreason-

ably Foisted The Economic And

Social Burdens Of Its Wrongdoing

Wm Tie PORN ono so coven cae

II.

III.

THE COURT OF APPEALS ERRED IN DIS-

MISSING PLAINTIFFS CLAIM UNDER

TITLE VI OF THE CIVIL RIGHTS ACT OF

1964

The Sixth Circuit’s View Of The Title VI

Claim Is Contrary To The Majority View

Ne eG a ne pres ee ee

The Sixth Circuit’s Interpretation Of Title

VI Is Contrary To The Fourth Circuit’s

Opinion In Uzzell v. Friday ..............

THE COURT OF APPEALS ERRED IN

REVERSING THE DISTRICT COURT'S

FINDING THAT THE RACIAL QUOTA

VIOLATED THE FOURTEENTH AMEND-

MENT

A Majority Of The Court Has Not Ruled

Upon The Constitutionality Of Racial

Quotas In The Public Sector ............

The Constitutional Standard Adopted By

yo ee ee

Classifications Based Upon Race Are

Constitutionally Suspect And Must Be Sub-

ject To The Most Rigid Judicial Scrutiny .

The City Has Not Justified Its Racial

Classification By Showing A Compelling

I SS EE rd

(1) There Was No Evidence Or Finding

Of Prior Promotional Discrimination ..

(2) The Scope Of The Remedy Allowed

By The Sixth Circuit Improperly

Exceeds The Extent Of Any Unlawful

| el da i eR

he A ae oP a A ee a a a Os ee a me eh i a es er a oe a he a oe ae

Page

(3) The Court Of Appeals Improperly

Disregarded The District Court’s

Finding As To The Relevant Labor

I a ee PRONE ce

(4) The Court of Appeals Has Identified

No Unconstitutional Discrimination

Against Blacks In The Hiring Prac-

tices Of The Department ..........

(5) The Goal Of A Department-Wide

Racial Balance Does Not Provide A

Compelling State Interest For A

I oe, cas Coax Soe oe

(6) The City Failed To Establish That

No Other Alternatives Available

Would Have Achieved The State’s

Goal With Less Racial Impact .....

GE a

APPENDIX

OPINION OF THE U.S. COURT OF APPEALS FOR

THE SIXTH CIRCUIT OF OCTOBER 12, 1979 ....

MEMORANDUM OPINION OF THE U.S. DISTRICT

COURT FOR THE EASTERN DISTRICT OF

MICHIGAN OF FEBRUARY 27, 1978 ............

JUDGMENT OF THE U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT OF OCTOBER 12,

Ee ord, Wien ve ce kv ws c's ch cawnt

CONSTITUTIONAL AND STATUTORY PROVI-

ENE Ce ia Gow bc ens wie des cuaucn

Page

TABLE OF AUTHORITIES

FEDERAL CASES: Page

Afro-American Patrolmen’s League v. Duck, 503 F.2d

I ih a cc neu beeches og ou nur 73

Albermarle Paper Co. v. Moody, 422 U.S. 405

ES CEES SS a ase 41, 48, 69

Alexander vy. Aero Lodge No. 735, 565 F.2d 1364 (6th

ke) Ee a ae PEECLS ae 74

Ashwander v. TVA, 297 U.S. 288 (1936) .............. 59

Austin Independent School District v. United States,

ge) Ee 78

Baker v. City of St. Petersburg, 400 F.2d 294

Ny ghee va sc leu a% oc ck 84, 85, 86

Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959).. 3

Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d

1017 (1st Cir. 1974), cert. den., 421 U.S. 910 (1975).. 73

Bridgeport Guardians, Inc. v. Members of the Bridge-

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

Ng I 31, 44, 46

Board of Regents v. Roth, 408 U.S. 564 (1972) ......... 44

Brown v. Board of Education, 349 U.S. 294 (1954) ....85, 86

Califano v. Goldfarb, 430 U.S. 189 (1977) ............ 64

Califano v. Webster, 430 U.S. 313 (1977) ............ 63

Cassell v. Texas, 339 U.S. 282 (1950) ................. 83

Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.

1976), cert. den., 431 U.S. 965 (1977)

Civil Rights Cases, 109 U.S. 3 (1883) ................. 37

Columbus Board of Education v. Penick, 99 S.Ct. 2941

Ca eee See SCN he 79, 80

Page

Cooper v. Aaron, 358 U.S. 1 (1956) .................: 85

Craig v. Boren, 429 U.S. 190 (1976) ................. 63, 64

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

Pens en re eT a a ee ls 70

Defunis v. Odegaard, 416 U.S. 312 (1974) .......... 60, 83

Detroit Police Officer's Association v. Young, 446 F.

ou. Dre (E.D. Misem. TPB) we ee cc eee ba! passim

Dunn v. Blumstein, 405 U.S. 330 (1972) ............... 67

EEOC vy. Local 14, International Union of Operating

Engineers, 553 F.2d 251 (2d Cir. 1977) ............ 74

EEOC vy. Navajo Refining Co., 593 F.2d 988 (10th Cir.

NT Ae. ae i asie souls Sate task eS ca we So icky 31, 35

Erie Human Relations Committee v. Tullio, 493 F.2d

Oe CR. ey ee ee ene 73

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .............. 38

Ford Motor Company v. Huffman, 345 U.S. 330 (1953).. 41

Franks v. Bowman Transportation Co., Inc., 424 U.S.

«ERE RPE emer beige rae gab mois re SINS SO DREN eg cee 41, 48, 49

Fullilove v. Kreps, 584 F.2d 600 (2nd Cir. 1978), cert.

granted, 99 S.Ct. 2403 (May 21, 1979) .............. 61

Grigsby v. North Mississippi Medical Center, 586 F.2d

ee hE ev cn stants aed coun ates 78

Hazelwood School District v. United States, 433 U.S.

EU ey sak Nino bx kek ocho Poe ak 33, 36, 74, 75

Hirabayashi v. United States, 320 U.S. 81 (1943) ........ 66

ow om Cortes, 415 U.S. TET (10TB). «05k oo ce ce cece 67

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ............... 49, 72, 73, 74

vo.

Page

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

Se. errr ny en eer 78, 79

Kinsey v. First Regional Securities, Inc., 557 F.2d 830

(TAGS. Cie: BORE) cc ison inuce ieee eee 75

Kirkland v. New York Stute Department of Correctional

Services, 520 F.2d 420 (2d Cir. 1975), cert. den., 429

US GES CIGD ncccnece [ieee 45, 46, 74

Korematsu v. United States, 323 U.S. 214 (1944) ........ 66

Kramer v. Union School District, 395 U.S. 621 (1969) .... 86

Land v. Dollar, 330 U.S. 731 (1947) . 2.2.02... 0 cc ceee 3

Loving v. Virginia, 388 U.S. 1 (1967) ................. 67

Massachusetts v. Westcott, 431 U.S. 322 (1976) ........ 59

McLaughlin v. Florida, 379 U.S. 184 (1964) ........ 65, 67

Milliken v. Bradley, 418 U.S. 717 (1974) ......... 70, 79, 83

Monroe v. Board of Commissioners, 391 U.S. 450

tera rrr eee 85, 86

National League of Cities v. Usery, 426 U.S. 833 (1976) . 38

New York City Board of Education v. Harris, —— U.S.

——, 48 U.S.L.W. 4035 (Nov. 28, 1979) .............. 52

New York City Transit Authority v. Beazer, 440 U.S.

Soe (RRO) .. ca seid eee 59, 72

Patterson v. American Tobacco Co., 8 FEP Cases 778

(EEX Wan | DOPE) oe sci cls ins dengan Gee 50

Patterson v. American Tobacco Co., 535 F.2d 257 (4th

Cir. 1976), cert. den., 429 U.S. 920 ...............05. 50

Perry v. Sinderman, 408 U.S. 593 (1972) ............... 44

Personal Adin. of Massachusetts v. Feeney, 99 S.Ct.

Seen CERO) osc cucu eee eee 62, 64, 77, 78

Page

Regents of the University of California v. Bakke, 438

MN NE Soars Sa as been bus bee dee eens passim

Rizzo v. Goode, 423 U.S. 362 (1976) ................. 79

San Antonio Independent School Dist. v. Rodriguez, 411

CLC hs 5 «Pan's a ak aelt'x boda ecu. 67

Schaefer v. Tannian, 394 F.Supp. 112 (E.D. Mich. 1974). 23

School District of Omaha v. United States, 433 U.S. 667

Se cae ioe nt ow eee ee eta mom 78

Sipuel v. Board of Regents, 332 U.S. 631 (1948) ...... 65

Smith v. Board of Education of Morrillton School Dis-

trict No. 32, 365 F.2d 770 (8th Cir. 1966) ........ 85, 86

Snowden v. Hughes, 321 U.S. 1 (1944) ............... 78

Soni v. Trustees, 513 F.2d 347 (6th Cir. 1975) ......... 44

Spector Motor Co. v. McLaughlin, 323 U.S. 101 (1944) .. 59

Swann v. Charlotte-Mecklenburg Board of Education,

NR Mt Eo ye ecb cee bes 70, 79, 83, 86

Sweatt v. Painter, 339 U.S. 629 (1950) ................. 65

Tatum v. Mathews, 541 F.2d 161 (6th Cir. 1976) ...... 44

Thompson v. McDonnell Douglas Corp., 416 F.Supp.

972 (E.D. Mo. 1976), affd, 522 F.2d 220 (8th Cir.

tel sk os Ving df aoa DEAs neces 74, 75

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

RE oe ane ih tht, ow tga: inde uhh eee 31

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

Cir. 1977), cert. den., sub nom., Arado v. United

ey GU WI OW COUT ik ovis wales va cuiowasueeus 78

Uniied States vy. General Motors Corp., 323 U.S. 372

en ss Se eel oi ie eee Coke ae 3

Ix.

Page

United States v. Scotland Neck City Board of Education,

ee Ee a oe ee ule ek 85

United States v. State of New Hampshire, 539 F.2d 227

CE Vir cale ge cr er amr ar esa. 38

United Steelworkers of America v. Weber, —— U.S. —,

ee I SG evi auike seth cueucsees passim

Usery v. Allegheny County Institution District, 544 F.2d

148 (3rd Cir. 1976) .......... ah as eR ole a 38

Usery v. Charleston County School District, 558 F.2d

A Ce ns Ns iss si Gein Sas ks ocde cwesawds 38

Uzzell v. Friday, 401 F.Supp. 775 (M.D.N.C. 1975)

Rev.d, 547 F.2d 801 (4th Cir. 1977), affd en bane,

558 F.2d 727 (1977), vac. and rem., 438 U.S. 912

(1978), opinion on remand, 591 F.2d 997

4 Eee ee ee 31, 55, 57, 58, 59, 65, 66, 71

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ......... 77, 78

Vulcan Society of N.Y.C. Fire Dept. v. Civil Service

Commission, 490 F.2d 387 (2nd Cir. 1973) .......... 73

Washington v. Davis, 426 U.S. 229 (1976) ...... 77, 78, 80

Weber v. Kaiser Aluminum Co., 563 F.2d 216 (5th Cir.

1977) reversed, sub. nom., United Steelworkers of

America v. Weber, 99 S.Ct. 2721 (1979) ............ 42

White v. Carolina Paper Board Corp., 564 F.2d 1073

I I I a oP at REE ei aan BI gs aa 46

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............. 83

STATE CASES: Page

DPOA v. City of Detroit, 61 Mich. App. 487, 233 N.W.

2d (1975), appeal denied, 395 Mich. 756 (1975), reh.

denied, 396 Mich 989 (1976) .................. 15, 42

In re City of Detroit Police Dept., and Detroit Police

Officer's Association, 9 Mich. Empl. Rel. Comm’n.

i NN ie roan usdnatias wopecca beens s 42

CONSTITUTIONS:

ee A SL OM ie OA Oe oe ie es 52, 54, 60

Rie Me GI OE kinins Vek awdvencnanaan passim

Michigan Const. of 1963, Art. I, §2 .............. 5, 6, 29

Michigan Const. of 1963, Art. XI, §6 ............ 4, 29, 43

STATUTES:

Federal Statutes:

Emergency School Act of 1972, Pub.L. 92-318, 20 U.S.C.

I is a ho ag is WUC h Lc Ot crde sae 52

oth tele ce canes 3

ee I 0s ana 34's we Wain Gtk Malena ok eaie 3

ae WN er os cu eam sé oe ry eee eee 3

Fair Labor Standards Act 29 U.S.C. § 201 et seq. ........ 38

ee OE hiv ov iacasivsnsoes 3, 4, 5, 6, 7, 29, 30, 59

SY SEE ec eacs aa dcaaces aeeucsen ead an 4, 5, 6, 29

I I I as cS ge a 4 cen Cou a weeSatecaue 5, 6, 29

Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d

EE a Vscika kan aut talc idact se cwrvK rete passim

Page

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e

i SA Sg ey cer ae ae passim

oe va chieams PEC EMU Cau chile Sil oe vie eee

Public Works Employment Act of 1976, Pub. L. No. 95-

28, 91 Stat. 116, 42 U.S.C. § 6701 et seq. ............ 61

Michigan Statutes:

Pe ee ee

oe SS! rere 5, 6

Municipal! Ordinances:

Charter of the City of Detroit, art. VII, ch. 11,

Ea OMI SRST § UF TS geo ae ene 4, 18, 42

Federal Regulations:

tia, fon ce a, Or ins ae 58

PE, Ens win och tha uns dhndwa nae bau de ones 69

MISCELLANEOUS:

Legislative History:

H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963) ........ 41

H.R. Rep. No. 238, 92d Cong., Ist Sess. (1971) ........ 38

S. Rep. No. 415, 92d Cong., Ist Sess. (1971) .......... 38

1964 U.S. Code Cong. & Ad. News 2391 ............... 41

1972 U.S. Code Cong. & Ad. News 2154 .....0 000000... 38

Page

Books:

A. Bickel, The Morality of Consent (1975) ............ 88

Periodicals:

Burke and Chase, Resolving the Seniority-Minority Lay-

offs Conflict: An Employer-Targeted Approach, 13

Harv. Civ. Rts. - Civ. Lib. L. Rev. 81 (1978) ........ 51

Rostow, The Japanese-American Cases - A Disaster,

bo Fee FS | eee ere 66

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

DETROIT POLICE OFFICERS ASSOCIATION,

A Voluntary Mutual Benefit Association, Labor Organization,

Petitioner,

COLEMAN A. YOUNG,

Mayor of the City of Detroit, et al.,

Respondents,

WILLIAM MORGAN, BRIAN BRUNETT

and DONALD PRINCE,

Individually and as Representatives of a Class,

Petitioners,

COLEMAN A. YOUNG,

Mayor of the City of Detroit, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, Detroit Police Officers Association,’ and Wil-

liam Morgan, Brian Brunett and Donald Prince, individually

and as representatives of a class, respectfully pray that a writ

of Certiorari issue to review the decision rendered in this

cause on October 12, 1979 by the United States Court of

Appeals for the Sixth Circuit.

OPINIONS AND ORDERS BELOW

The decision of the United States Court of Appeals for

the Sixth Circuit, decided and entered on October 12, 1979,

is as yet unreported and appears in the appendix to this Peti-

tion at page la, et seq.? That decision reversed and re-

manded the Memorandum Opinion and Order of February

27, 1978 of the U.S. District Court for the Eastern District

of Michigan, Southern Division, which is reported at 446

F.Supp. 979 (E.D. Mich. 1978), and appears in the appendix

at page 4la, et seq.? The District Court had ruled for the

Plaintiffs on issues of liability, and permanently enjoined the

promotional practices of the City of Detroit’s Police Depart-

ment which are at issue in this litigation.

Previous orders include the order of the District Court

on November 18, 1976 certifying the individual Plaintiffs’ Re-

quest for Class Action, and the Order of the District Court

of May 27, 1977 allowing Plaintiffs a Preliminary Injunction

to restrain promotions, authorized pursuant to the City’s

promotional quota, based upon race.

On May 28, 1977, the U.S. Court of Appeals for the Sixth

Circuit, per Judge George C. Edwards, ordered a stay of

the District Court’s Preliminary Injunction, pending appeal.

' The certified collective bargaining representative of all Detroit Police

Department sworn personnel below the rank of sergeant.

2 References to the Sixth Circuit’s opinion, as reprinted in the appendix

to this petition, are made as follows: (CA la, et seq.).

3 References to the District Court. opinion are made as follows:

(DC 4la, et seq.).

The U.S. Court of Appeals for the Sixth Circuit, after oral

argument, vacated the Preliminary Injunction on June 23,

1977, and directed that an immediate trial be held on the

merits. The District Court’s order of February 27, 1978 was

issued after a trial in excess of 60 days.

JURISDICTION

The District Court’s jurisdiction in this action arose, inter

alia, through 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C.

§ 2000e-5.

The order of the United States Court of Appeals for the

Sixth Circuit was entered on October 12, 1979. This Petition

for Writ of Certiorari was timely filed within ninety days

thereafter.

This Court’s jurisdiction arises under 28 U.S.C. § 1254(1).

The Sixth Circuit’s order in this action reverses the District

Court’s findings of liability against Defendants with respect

to claims brought under Title VI and Title VII of the Civil

Rights Act of 1964 and 42 U.S.C. § 1981. The case was

remanded for further consideration of the plaintiffs’ claim

under the Fourteenth Amendment under standards set forth

by the Sixth Circuit. The permanent injunction was vacated.

While the order of the Sixth Circuit does not finally termi-

nate the litigation, the opinion is dispositive of the significant

claims brought by the plaintiffs under Title VII, Title VI and

§ 1981. Further, and as will be described in subsequent por-

tions of this Petition, this case presents significant and clear

cut issues of law fundamental to the further conduct of the

case on the Fourteenth Amendment claims. Where such

issues are presented that are “fundamental to the further con-

duct of the case”, this Court may exercise jurisdiction under

28 U.S.C. § 1254(1), whether or not the Court of Appeals’

order finally terminates the litigation. United States v. Gen-

eral Motors Corporation, 323 U.S. 372, 377 (1945); See also

Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959); Land

v. Dollar, 330 U.S. 731, 734 n.2 (1947).

The Sixth Circuit’s disposition of the Title VII, Title VI and

§ 1981 issues, and its standards for resolution of the Fourteenth

Amendment issues, present the type of fundamental and

significant questions which can best be resolved by this Court,

before further proceedings below. Additional proceedings

in the District Court, prior to review by this Court, would

simply not be in the interest of judicial economy or serve the

public interest.

QUESTIONS PRESENTED

1. Did the Court of Appeals Err In Finding that the City’s

Unilateral Imposition of a 50/50 Racial Quota In Place of a

Bona Fide Merit System of Promotion Did Not Violate

Title VII of the Civil Rights Act of 1964, as Amended

in 1972?

2. Did the Court of Appeals Err in Finding that the City’s

Racial Quota for Promotions Did Not Violate Title VI

of the Civil Rights Act of 1964?

3. Did the Court of Appeals Err in Reversing the District

Court’s Finding that the City’s Racial Quota for Promotions

Violated the Fourteenth Amendment of the United States

Constitution?

4. Did the Court of Appeals Improperly Disregard and/or

Set Aside Essential And Uncontradicted Findings of Fact

in Reversing and Vacating the Order and Permanent In-

junction of the District Court?

CONSTITUTIONAL PROVISIONS AND STATUTES

The relevant Constitutional provisions and statutes are:

U.S. Const. Amend. XIV; 42 U.S.C. §§ 1981, 1983, 2000d-1,

2000d-3, 2000e-1 and 2000e-2, et seq., Article XI, §6 of the

Michigan Constitution of 1963; Charter of the City of Detroit,

Art. VII, Ch. 11, § 7-1114, all of which are set forth seriatim

in the Appendix to this Petition beginning at page 107a.

STATEMENT OF THE CASE

I. HISTORY OF THE LITIGATION.

On June 10, 1974, Petitioners Detroit Police Officers Asso-

ciation (hereinafter referred to as the “Plaintiff? and the

“DPOA”) brought this action in the United States District

Court for the Eastern District of Michigan. Named as De-

fendants were the Respondents City of Detroit, Mayor Cole-

man A. Young, The Board of Police Commissioners, its indi-

vidual members, and the Chief of Police (hereinafter referred

to as the “Defendants” and the “City”). The Complaint

alleged that the Detroit Police Department’s non-negotiated

program of racial preference in promotions, adopted in July

of 1974, passed over white officers seeking promotion to the

rank of sergeant solely because of race. The DPOA alleged

violations of 42 U.S.C. §§ 1981, 1983, 1985, 2000e and the

Fourteenth Amendment.

On July 22, 1975, the individual Petitioners, William Mor-

gan, Brian Brunett, and Donald Prince filed a class action

against the Mayor, the Chief of Police, the members of the

Detroit Board of Police Commissioners and the City of De-

troit. This suit incorporated the DPOA’s federal claims and

further claimed violations of the Michigan Fair Employment

Practices Act, M.C.L.A. 423.301 et seq., and Article I, Section

2 of the Michigan Constitution. The action was assigned

to the late Judge Fred W. Kaess. Judge Kaess denied Motions

to Dismiss and for Summary Judgment (except as to the

individual Plaintiffs’ claim under 42 U.S.C. § 1985).

On November 18, 1976, Judge Kaess certified the indi-

vidual Plaintiffs’ Request for a Class Action and defined the

class as follows:

“All past, present and future qualified white Detroit

Police Officers below the rank of Sergeant who, since

April of 1974, have been or will be denied, because they

are white, their timely promotions to the rank of Ser-

geant.”

On March 23, 1977, the DPOA action was reassigned to

Judge Kaess, and both actions were subsequently consolidated

for trial. Thereafter, on May 4, 1977, the Plaintiffs sought a

Preliminary Injunction to restrain promotions authorized

pursuant to the City’s voluntary racial preference program.

Testimony on the motion was taken from May 25th through

May 27th, 1977, when Judge Kaess entered an Order and.

Preliminary Injunction restraining further promotions under

the racial preference program.

The City appealed the Preliminary Injunction to the Sixth

Circuit and a Stay was issued by Judge Edwards on May 28,

1977. After oral argument, the Sixth Circuit vacated the In-

junction on June 23, 1977, and directed that an immediate

trial be held on the merits.

Trial commenced on August 8, 1977, before Judge Kaess

and concluded with oral arguments on December 22, 1977.

On October 21, 1977, Judge Kaess reinstated the claims of the

individual Plaintiffs under § 1985(3) and the claims of the

DPOA under Title VII of the Civil Rights Act of 1964. Judge

Kaess further allowed Plaintiffs to amend their Complaintz to

include a claim under Title VI of the Civil Rights Act of 1964.

By Memorandum Opinion of February 27, 1978, Judge

Kaess found that the City had violated the Plaintiffs’ rights

under 42 U.S.C. §§ 1981, 1983; 2000d et seq., (Title VI);

2000e et seq., (Title VII); the Fourteenth Amendment, Article

I, $2 of the Michigan Constitution of 1963; the Michigan

Civil Rights Act of 1977, M.C.L.A. § 7.2101 et seq.; and the

Michigan Fair Employment Practices Act, M.C.L.A. § 423.301

et seq. Judge Kaess entered an Order and Permanent In-

junction which required Defendants to cease their discrimi-

nation on the basis of race and directed that future promotions

be made in rank order as determined by the then current

Sergeant’s eligibility register. The issues of attorneys’ fees,

back pay, and other remedies were deferred to a future date.

On March 16, 1978, the City filed a Notice of Appeal.

The U.S. Court of Appeals for the Sixth Circuit, on October

12, 1979, dismissed the plaintiffs’ claims under Title VI,

Title VII and § 1981. The case was remanded for further

consideration of the Fourteenth Amendment issues, under

standards set forth by the Court. (Slip Op. p. 39).

This Petition for Writ of Certiorari requests review of the

judgment and order of the Court of Appeals of October 12,

1979.

II. FACTUAL BACKGROUND

The City’s racial quota for promotions to the rank of ser-

geant was devised and implemented in 1974, pursuant to a

policy unilaterally adopted by the City. The program was

not negotiated by the City and the DPOA. The program was

not ordered by any court. The program was not the subject

of a consent judgment. No court gave the program its prior

approval. Prior to the program’s initiation, the City had made

substantial and successful efforts to eliminate any potential for

racial bias inherent in its recruiting, hiring or promotional

practices. The catalyst of these concerted and extensive efforts

was the tragic civil disturbance in Detroit in 1967, which

generated great concern over the apparent hostility of seg-

ments of the Detroit populace toward the police force.

The unprecedented use in 1974 of a strict 50-50 racial quota

by the City for promotions to the rank of sergeant must be ex-

amined in the context of the City’s efforts since 1968 to

eliminate all sources of discrimination in the Department’s

hiring and promotional processes.

A. The City’s Recruiting Practices Prior to July, 1974,

At trial, the City introduced no proof regarding recruiting

policies or practices for the years 1940-1968. No evidence

was introduced regarding the number or percentage of black

applicants during that time. Furthermore, no evidence was

introduced by the City to show what the relevant labor market

was during that time or the percentage of qualified blacks in

that market. Although the statistics introduced showed that

from 1944 to 1968 the number of whites appointed far out-

distanced the number of blacks appointed, the absence of

reliable explanatory statistics precluded the District Court

from drawing any inference of discrimination from those early

statistics. (DC 66a-67a). The District Court declined to specu-

late regarding the City’s hiring statistics, pointing out that the

City, as the employer and alleged discriminator, was in the

best position to gain access to any statistical evidence of

discrimination. (DC 8la-82a).

The District Court was also unable to draw any conclusion

of discrimination from hiring statistics for the years 1968-

1975. Testimony revealed that the data base upon which the

figures were derived was replete with errors in the reporting

process, “seriously impairing any responsible analysis”. (DC

67a). The District Court found the applicant flow records

to be confusing and, “in many areas, incomprehensible”. (DC

67a). The District Court’s findings regarding post-1968 sta-

tistics were unrelated to its findings as to the appropriate labor

market.

In contrast, the Sixth Circuit found that, “even standing

alone, the statistical data was evidence of discrimination”.

(CA 19). The Sixth Circuit’s description of the facts found by

the District Court, however, is inaccurate. For example, the

District Court did not reject the 1944 through 1968 data be-

cause of an insistence upon the Detroit standard metropolitan

statistical area (SMSA) as the relevant labor market. (CA

18; DC 25). In other words, the Sixth Circuit overstated the

District Court’s evidentiary standards with respect to statistical

evidence.

In contrast to the lack of evidence introduced with respect

to recruiting practices from 1944-1968, there was a wealth

of evidence as to post-1968 recruiting practices. In 1968, two

groups, a mayor’s task force and a police advisory committee

(commonly known as the Vickery Committee) were formed.

The Vickery Committee was comprised of prominent industrial

psychologists and personnel administrators. Commander

Richard Caretti, whose qualifications as an expert in testing

and personnel selection have never been disputed, was ap-

pointed as the Department's liaison to the Committee. One

of the Committee’s primary objectives was to develop methods

of attracting qualified black candidates to the Department.

(837a; 902a; 1217a-1218a; CA 4).4

In 1968 the City also launched a comprehensive campaign

for black recruitment. (DC 65a). The stated policy of Com-

missioner Spreen, upon taking office on July 22, 1968, was to

attract blacks as police officers. (697a). As Caretti testified

at trial, the Department did everything possible to recruit

blacks. (1142a.1-1143a). An advertising firm was hired to

develop themes, design billboards, and create programs aimed

at blacks. (705a, 728a). Recruiting vans were set up in black

neighborhoods. Posters depicting black officers were circu-

lated. (DC 24). A media campaign was undertaken. (766a ).

Churches, schools and public gatherings were visited. (705a,

762a, 763a). Inner-city recruiting offices were set up to create

a more relaxed atmosphere than that of the “intimidating”

police headquarters. (704a-705a, 1139-1142a). Black appli-

cants were sought at colleges and universities throughout the

state. (DC 24).

By January, 1970, black representation on the police force

had doubled from 1967, without the erection of barriers pre-

venting the appointment of white officers. ( 703a-706a ).

The appointment of Commissioner John Nichols in 1970

heralded additional Departmental efforts to recruit blacks.

(A29a). Those efforts included the appointment of a black

recruiting director, Thomas Ferrebee, (796a-797a); an ex-

“ References to testimony or documentary evidence are to pages in

the Appendix filed in the Sixth Cicuit, and forwarded to this Court

as part of the record on appeal. The designation (837a) indicates page

837 of the testimony appendix. The designation (150b) indicates page

150 of the document appendix.

pansion of the recruiting budget, (796a); the formation of a

steering committee whose ranks included the Urban League

and the NAACP, (797a-798a, 904a); and the employment of

a management-consultant firm to determine how to better

attract black applicants. (1139a). The shortage of qualified

black candidates in the City led to substantial recruiting

efforts throughout the state. (763a, 764a, 787a, 788a, 789a,

789a.7, 1128a-1129a, 2144a, 2155a). Recruiting efforts also

reached beyond the state to minority colleges and other police

departments. (113la). Many blacks were hired from outside

the City. (2184a-2185a).

The progress made through these herculean recruiting ef-

forts was significant. The Department deservedly considered

itself “the nation’s forerunner in this area”. (Equal Employ-

ment Opportunity Plan, 616b, DC 66a). Accordingly, the

Trial Court stated,

“These efforts demonstrate, and this Court finds as fact,

that from 1968 to the present date, the Department had

made every possible effort to attract qualified black appli-

cants.” (DC 66a)

The Sixth Circuit failed to recognize the success of these

recruiting efforts or the findings of the District Court with

respect to the City’s “affirmative” recruiting and hiring efforts.

The Sixth Circuit did, however, dispute the District Court’s

findings as to the relevant labor market for determining

whether or not discriminatory hiring practices existed. The

District Court found the relevant labor market to be the De-

troit SMSA. (DC 6la-62a). The Sixth Circuit rejected that

finding, relying in part, upon the City residency requirement

in August 1974. In fact, the City’s pre-application residency

requirement was not adopted nor in effect prior to adoption

of the racial quota challenged by the Plaintiffs. The residency

requirement cannot be the basis for a “relevant labor market”

comparison used to justify the quota.

B. The City’s Hiring Practices Prior to July, 1974.

As society changed in the late 1960's, the standards and

expectations of the Department also changed. (1290a). Prior

to 1968, the City followed the “Chairman of the Board” theory,

expecting every applicant hired by the Department to be

qualified for advancement to the highest ranks. (1291a;

910a). In the 1960's, hiring standards focused on college edu-

cation as a result of the President’s Task Force Reports. This

focus had an adverse impact on the less educated. (129la).

Between 1968 and 1971, a collective judgment was made by

the City to abandon the “Chairman of the Board” approach.

(1291a; 1536a). New hiring standards sought applicants cap-

able of becoming good police officers without regard to pro-

motional potential. (9lla; 1293a: 1295a-1296a). These

changes in expectation, as intended, opened the doors for new

and differently qualified applicants. (1292a-1294a). As the

record shows, the primary goal of these and other changes in

hiring policies was intended to substantially increase minority

presence in the department.

Beginning in 1968, the Vickery Committee and Caretti made

a concerted effort to increase the success rate of black appli-

cants at the entry level. (837a, 902a, 1217a-1218a, CA 4a).

The hiring procedures were evaluated on an on-going basis,

and significant adjustments were made to assist black appli-

cants. The City endeavored to formulate selection procedures

reflective of relevant job skills, which were free of cultural

bias and disparate impact upon black applicants. ( 889a-890a;

84la).

Early in this process a twelve minute test was substituted for

a one and one-half hour written segment of the entry level

examination. (899a.3-899a.5, 1125a-1126a). The substitution

resulted in an increase in black applicant success.

In 1971, John Furcon and the University of Chicago were

retained to develop a new entry level testing battery to meet

the City’s affirmative action objectives. (797a; 1472a-1473a;

DC 68a). In 1973, the Board’s test (hereinafter referred to

as the “Furcon Test”) was completed. Black and white

applicants passed the Furcon Test at approximately the same

rate. The Furcon Test eliminates any disparate impact upon

black applicants, (CA 22a), through a race consicious differen-

tial regression equation scoring process, which applied two

cut-off scores for the same test, based upon the candidate’s

race. (DC 69a; 907a; 1136a-1137a; 1235a; 2041a).

The City represented to the LEAA, in its Equal Employment

Opportunity Plan, and claimed at trial, that the Furcon Test

is criterion validated and is a valid predictor of a candidate’s

ability to do the job. (915a; 1136a; 1535a). At trial, however,

a validation report was not produced, and Mr. Furcon was not

called to testify. (DC 69a). In fact, experts Wollack and Ebel,

psychometricians, testified that the race conscious scoring

techniques invalidated the accuracy of the test. (1959a-1970a;

2036a-2043a ).

C. The City’s Promotional Practices Prior to July,

1974.

(1) The Evidence of “Job Assignment” Dis-

crimination Is Inconclusive.

The City claimed that its past promotional practices dis-

criminated against blacks. Yet the District Court found that

prior promotional models and their application did not dis-

criminate against blacks or any other class of individuals. This

finding was based, in large part, upon the fact that the City

introduced no evidence whatsoever regarding promotional

models used prior to 1973. (DC 70a). Without specifically

distinguishing these findings of the District Court, the Sixth

Circuit inferred discrimination in past promotional practices

by relying upon “uncontradicted evidence” of discriminatory

practices in job assignments over the years. (CA 3la).

The record does not support the Sixth Circuit’s characteriza-

tion of that evidence as “uncontradicted.” In fact, little or

no evidence of discrimination in job assignments after the mid-

1960's was presented. Certainly, the record is barren of evi-

dence of discrimination in job assignments subsequent to the

application of Title VII to local government, in March of 1972.

Deputy Chief Bannon, who has been on the police force

over thirty years and holds a Ph.D. in sociology, did testify

that in 1949, there were black beats and white beats. (235la).

Bannon testified, however, that he could not state whether

this was the result of policy, tradition, a lack of black person-

nel, or a desire to avoid mixing races. (235la). Bannon re-

called the hostitity between black and white officers in the

mid-1960’s, caused by the Department’s integration of scout

cars. (235la-2352a). He attributed this hostility to wide-

spread fears by blacks that white partners inhibited their

actions in the black community. (235la-2352a; 2355a).

On the other hand, Commissioner Nichols testified that

there were many blacks over the years in specialized units, in-

cluding robbery, vice, narcotics, and intelligence. (834a).

This testimony was corroborated by the current Police Chief,

William Hart, who is black. He testified that he was assigned

to the Racket and Conspiracy Bureau from 1958 to 1970.

(22692 ).

Although Bannon could not state why blacks were not

assigned white partners for many years, he explained that an

unwritten policy existed which allowed officers to choose their

own partners. Bannon denied this policy was the result of an

intent to discriminate. (2355a; 2370a-2371a).

Robert Bullock, appointed to the department in 1949, testi-

fied that the same beats were, on occasion, walked by black

and white officers. (2572a-2573a; 2585a). He denied that

assignments were based on race. (2585a). Likewise, Bannon

admitted that no job in a precinct was closed to black person-

nel by the mid 1960’s, and that he knew of no institutional de-

cision that had been made to discriminate based on race.

(2369a). Bannon testified that there had always been oppor-

tunities for upward mobility in certain areas for black officers.

As an example, blacks were detective captains as early as 1890.

(2354a). Commissioner Nichols confirmed that he never ob-

served any incidents that prohibited upward mobility for

blacks. (829a). Nichols further stated that seniority had al-

ways been a factor in the promotional process and that he had

never seen documentation indicating that seniority discrimi-

nated on the basis of race. (859a).

The record does reflect that black officers, many of whom

were Chief Hart’s contemporaries at the patrolman level, and

on cleanup squads and undercover beats, were promoted to

higher ranks. (2330a-233la, 2363a-2364a). In fact, since the

mid-1960’s, the Department has systematically attempted to

promote minorities. (2365a). Jessie Stewart, a black male,

testified that he became a detective on September 5, 1946

based upon a competitive examination and promotional model

administered without regard to race. (2507a-2508a). He

testified that the department never assigned him in ways

that were different from those of his white counterparts while

he was a sergeant. (2503a).

(2) Components of the Promotional Model.

In contrast to the ambiguous and contradicted evidence

of past discrimination in job assignments, the record clearly

demonstrates that from the years 1969 through 1976, the

City, as it had done for hiring, made a substantial and suc-

cessful effort to remove the impact of culture and race from

the criteria used in promoting patrolmen to the rank of ser-

geant.

Promotions to the rank of sergeant have traditionally been

based upon a weighted promotional model. In 1965 the model

consisted of a written examination, service rating, seniority

and veterans preference. In 1970, adjustments were made to

the weight of the various factors and college education was

added at a weight of two percent. (1233b).5

5In 1971, both Commissioner Nichols and Commissioner Tannian

refused the DPOA’s request to bargain over the criteria for promotion

Just prior to the institution of a new written exam on De-

cember 16, 1973, the requirements for application for promo-

tion to the rank of sergeant were dramatically altered. (30b-

38b). In-grade service requirements were reduced with the

intention of giving greater opportunity to those who had re-

cently been hired, particularly blacks, many of whom had

been hired since 1968. (795a; 855a-856a; 893a; 1055a; DC

49a). Other revisions designed to give greater opportunity to

black officers were made. (42b; 1153a; 613b-615b; DC 8-9).

In particular, the seniority component was reduced to mini-

mize adverse impact upon recently hired blacks. (1267a;

620b-621b). The Oral Board was added in 1974 to measure

factors not measured in other facets of the promotional model,

and was designed to benefit those applicants who were not

good test writers. (1107a; 1045a-1046a; 39b). These adjust-

ments to the components of the promotional model were made

in an attempt to devise a system that would be free of racial

bias. (CA 4a),

(3) Creation of a Job Related Promotional

Exam.

Beginning in 1969, Richard Caretti was given a charter by

his superiors to develop a new promotional examination in

compliance with existing federal testing guidelines, which

would eliminate any barriers to the upward mobility of mi-

norities in the Department. (DC 50a; 699a-702a).

to the rank of sergeant. (1912a; 878a-879a; 1318a; 1548a-1549a). The

DPOA filed an unfair labor practice charge with the Michigan Employ-

ment Relations Commission in December, 1972, regarding the City’s

refusal to bargain. (526b). On September 28, 1973, the administrative

law judge ruled that the City had engaged in an unfair labor practice

and required the City to bargain with the Union over promotional

criteria. (538b-539b). In 1975, the Michigan Court of Appeals af-

firmed the administrative law judge’s order. See DPOA vy. City of

Detroit, 61 Mich. App. 487, 233 N.W.2d 49 (1975), leave to appeal

denied, 395 Mich. 756 (1975), reh. denied, 396 Mich. 989 (1976).

Thereafter, in November of 1975, the City began to negotiate promo-

tional criteria.

The Sixth Circuit suggests that the written examination,

in its various forms prior to 1973, had an adverse impact on

black candidates. The District Court, however, was unable to

draw that conclusion in the absence of supporting evidence:

“There was, however, no evidence presented showing

what impact, if any, these examinations had upon either

black or white candidates for promotion. As Commander

Caretti related, pass/fail rates by race were not recorded

prior to 1973.” (DC 50a). (Emphasis added).

Caretti’s objective in preparing the 1973, 1974, and 1976

written examinations was to eliminate any existing racial bias,

by making the examination as “content valid as possible”.

(DC 50a). In addition, Caretti was intent upon complying

with existing federal testing guidelines. (DC 50a). The first

step towards accomplishing Caretti’s charter was to isolate

and define the knowledge, skills and behavior required for

satisfactory performance in the position of sergeant. (616b).

A job analysis was prepared by Caretti and two outside ex-

perts, John Furcon in 1973 and Dr. Andres Inn in 1975.

(1286b; 1010a-1011la; 1148a-1149a). Experts, inside and out-

side the Department, were used in preparing specific exam-

ination questions. In addition, the scoring of the 1973-1976

examinations were controlled and standardized; and new safe-

guards were instituted to protect the security of the process.

Also, Caretti attempted to achieve a racially balanced staff

in an effort to achieve input from both racial groups. (1050a;

DC 5la).

The Sixth Circuit’s discussion of the written examination

component of the promotional model is confused. The promo-

tional examination is referred to as the “‘Furcon exam which,

like the 1973 entry exam, was developed at the University of

Chicago.” (CA 5a). As was explained by the District Court,

Furcon had nothing to do with the writing of the promotional

examination. Furcon’s only contribution was his collabora-

* As noted earlier, the “Furcon Exam” was an entry level exam, not

a promotional exam. (797a; 1472a-1473a; DC at 68a).

tion with Caretti in 1973, in conducting a job analysis and

in preparing an entry level exam. (616b; 1136a-1138a).

Caretti testified at trial that, in his opinion, the December

16, 1973, November 17, 1974, and May 16, 1976 written pro-

motional exams had been designed and constructed to achieve

content validity and that they were job related. (107a; 1061a-

1076a; 1121a). Phillip Tannian, who later instituted the pro-

motional quota, asserted that the promotional examination was

content valid (14592) and among the best in the country.

(1322a). Caretti testified that he was unaware of any alterna-

tive procedures for promotion which would remain job related

and have less racial impact. (1047a).

The City represented the content validity of the exam in

its EEO Program filed with the federal government, and

asserted that it conformed with “standards mandated under

Title VII of the Civil Rights Act of 1964, the Equal Oppor-

tunity Act of 1972, and the policy guidelines of LEAA and

EEOC.” (616b; 1324a-1325a; 1378a-1379a).

The expert testimony presented at trial by Dr. Stephen

Wollack, a psychometrician, and Dr. Robert Ebel, con-

firmed that the 1973, 1974 and 1976 exams were fully job

related and content valid. (1948a; 1957a; 1984a; 1986a; 2015a-

2022a; 2024a; 2074a; 2075a). In addition, Dr. Wollack stated

that he found nothing in the exams which would have dis-

criminatory impact upon any racial group. (2026a.1). His

opinion was that any apparent racial impact of the promo-

tional examination was due to the low standards for acceptance

at the entry level. (2074a).

(4) Cumulative Effect of the Promotional

Model.

Before implementation of a racial quota for promotions in

July, 1974, the City’s practice was to place the names of

eligible officers on a promotional register ranked in descending

order, based upon composite scores determined from all com-

ponents of the model. The first name was that of the officer

attaining the highest composite score. Positions on the

a Department Personnel Order, promotions were made in the

order of position on the eligibility register, starting at the top

of the list.

Dr. Ebel testified that, based upon the various components

of the promotional model, the higher ranking officers had

better demonstrated a recognized and measurable probability

of job success than lower ranked officers. (1956a; 1957a).

Dr. Wollack agreed. (2027a-2030a; 3021la; 2072a; 2073a:

2077a). Commissioner Spreen testified that rank order mea-

sured the individual capabilities of each officer, and that the

number one officer was better qualified to perform the duties

of sergeant than a lower ranking officer. (700a; 717a; 741a-

743a; 758a). Commissioner Nichols and Commander Caretti

corroborated Spreen’s testimony. (799a-800a; 809a; 820a:;

844a; 862a; 863a; 1184a; 1299a).

The long standing practice of promoting in rank order was

carried over into the administration of Police Commissioner

Phillip Tannian.” (35b). (DC 58a). The 1973 exam resulted in

an eligibility register for sergeant which was designated as

Personnel Order No. 74-108 and listed 298 names. (1b). (DC

at 43a-44a). On April 17, 1974, Commissioner Tannian issued

Personnel Order No. 74-121 which indicated that promotional

candidates from Order No. 74-108 would be selected in the

order of their position on their roster. (420b; 133la). On May

9, 1974, the first 30 promotions were made from Order No. 74-

7 The practice of promotion by rank order was confirmed in the new

City Charter, effective on July 1, 1974. Section 7-1114 of the Charter

provided that:

“No person who has taken an examination and has been placed

on a register of employees eligible for promotion may be passed

over in favor of an employee with a lower examination score

unless the Chief of Police files with the Board and Division of

Police Personnel written reasons acceptable to the Board. Any

person having been passed over may appeal to the Board.” Char-

ter of the City of Detroit, art. 7, ch. 11, § 7-1114.

108 in rank order. (DC 44a). (5b; 133la-1332a). These 30

promotions had consisted of 29 white officers and one black

officer.

Thereafter, Commissioner Tannian departed from the rank

order system by issuing Personnel Order No. 74-191 on June

7, 1974, which deleted the reference to rank order promotions

in Personnel Order No. 74-121. (421b; 1333a-1334a). (DC

44a-45a). The issuance of this order signalled the commence-

ment of the Defendants’ 50-50 promotional quota.

D. The Creation Of The Promotional Quota.

(1) The Appointment of Philip G. Tannian as

Commissioner of Police by Mayor Coleman

A. Young.

Philip Tannian was first appointed to the position of Police

Commissioner in September, 1973, by then-Mayor Roman

Gribbs, (1302a) in the midst of a mayoral election campaign.

(1302a). Defendant Coleman A. Young campaigned in that

race on a pledge that the racial composition of the City’s work

force would reflect that of the City’s population. (2377a-

2378a; 1439a-1440a). Mr. Tannian was fully aware of the

mayor's political commitment to reflect in the Police Depart-

ment the racial composition of the community. (1440a).

After Mr. Young’s victory, Tannian had a series of discussions

with the Mayor from November, 1973 through the Spring of

1974. One topic discussed was the racial complexion of the

Department. (144la). Tannian was reappointed as Commis-

sioner of Police by the new Mayor in January, 1974. (1314a).

Simultaneously, Tannian adopted as a priority the implementa-

tion of a 50/50 racial hiring policy, as well as a 50/50 pro-

motional policy for personnel above the rank of lieutenant.

(1315a-1316a).

In fact, Tannian testified that, as of January 1, 1974 (the

commencement of Mr. Young’s tenure as Mayor), his objective

was that the racial composition of the Police Department re-

flect that of the city. This remained his position until his

termination in September of 1976. (1315a-1317a). The 50/50

quota was based upon the prevailing racial balance in the

City’s general population. (1388a; 1418a).

Although the Circuit Court credits the Board of Police

Commissioners (BPC) with the creation of the affirmative

action policy, the evidence is to the contrary. For example,

the Department's policy decisions of June 7, 1974, predate

even the formation of the BPC. It was in the course of their

meetings from November 1973 through the Spring of 1974

that Young and Tannian committed themselves to the adoption

of an affirmative action plan designed to satisfy the Mayor's

campaign promises. (DC 58a-59a).

A major obstacle to the fulfillment of Mayor Young’s politi-

cal obligation was the City’s own racially neutral promotional

model, which placed considerations of ability ahead of race

in selecting new sergeants for the Department.

After the initial thirty officers were promoted by Personnel

Order 74-160, Mayor Young expressed his displeasure with the

racial makeup of the new sergeant class. (1333a; 1439a).

This resulted in discussions between Tannian and the Mayor

regarding a 50/50 promotional policy for the rank of sergeant.

(2053a). (DC 58a).

(2) Hearings Before The Board of Police

Commissioners.

The new Charter for the City of Detroit, effective July 1,

1974, vested final authority for police promotions with the

newly appointed Board of Police Commissioners (BPC).

(1243b).

The first major item of business for the new Board was the

Mayor's proposal for “affirmative action”. (DC at 59a). The

Board met to discuss the proposal on July 22, 26 and 31, 1974.

8 Commissioner Littlejohn also shared this objective. (2428a).

(2399a; 2400a-2402a). In his presentation, Tannian identified

certain “mandates for affirmative action” and referred to cer-

tain graphs and charts purporting to show the historical hiring

patterns by race of the Detroit Police Department, comparing

them to city population demographics.? (DC at 59a-60a).

A second meeting was held on July 26, 1974 before an

audience of approximately 50 to 100 people. (1339a-1342a).

At this hearing, “witnesses” attempted to relate past experi-

ences of Departmental discrimination. Yet, neither Tannian

nor the Board attempted to verify the incidents described by

members of the audience. (1343a-1345a; 2401a-2404a). The

statements were not taken under oath. (1243b). Commis-

sioner Littlejohn admitted that the BPC did not sit as a body

and evaluate the testimony. (2401la-2404a; 1343a-1345a). In

fact, this public hearing was no more than window dressing,

orchestrated to support a decision already made.

There was no effort by Tannian or the Board to determine

whether the black officers who would be preferentially pro-

moted had ever been discriminated against by the Depart-

ment. (1352a; 116la-1163a; 2440a-2441a). Further, there

were no findings by the Michigan Civil Rights Commission,

the EEOC, or the LEAA, let alone a court, that the City had

ever discriminated against minorities.’ (1546a.1; 2469a.1).

On July 31, 1974, the BPC passed its first affirmative action

resolution declaring the existence of “de facto discrimination”

in the hiring and promotional practices of the Department.

(186b; 2399a-2400a). It called for promotions on « 50/50

racial basis, creating separate black and white lists where once

there had been a single eligibility register. (1389a; 2406a;

2441a; 2320a; 2469a). The resolution had no numerical or time

% Tannian later admitted that the Michigan Civil Rights Commission

Guidelines, which he presented to the BPC, referred to relevant labor

market rather than general population data. (2048a-2049a).

10 The only written legal opinion obtained by the Board was the

memorandum of Mr. James Andary, counsel for the City at trial. (2426a-

2427a; 2438a-2439a; 897b; 2469a.1, 2476a).

limitation. (1458a). Nor, did it mention the operational needs

of the Department. (1463a-1465a)."'

The District Court found there was no evidence before the

Board tc jnstify the conclusion that the City had engaged in

employment discrimination against minority applicants and

personnel. Instead, the Board had before it a politically

charged program sponsored by the Mayor and supported only

by the unsubstantiated “mandates” offered by Mr. Tannian.

(DC 64a).

The District Court examined in detail the factual basis upon

which the affirmative action resolution was adopted by the

BPC, determining that the Board relied heavily upon the

statistics presented by Tannian to show “de facto discrimina-

tion”. The District Court was troubled by this presentation

because no labor market statistics or analyses were presented

to the BPC. (DC 61a). Other factors relied upon by Tannian

and accepted by the BPC as indications of adverse impact

were the performance evaluation and seniority components of

the promotional model. The District Court analyzed those

factors and found that “neither of these component parts of

the promotional process curtailed the promotional opportunity

of blacks or in any way discriminated against them.” (DC

62a). |

What Tannian did not present to the BPC was also pointed

out by the District Court. Specifically, the BPC was not aware

of Richard Caretti’s studies for the City showing that service

ratings had no adverse racial impact. (146la; 696b). Fur-

ther, no information was provided to the BPC concerning

seniority provisions in the collective bargaining agreement.

(DC 63a). Tannian also failed to mention to the BPC at sub-

sequent meetings that the Equal Employment Opportunity

Plan which the Department submitted to the LEAA repre-

sented that neither the service ratings nor the seniority com-

ponent adversely affected minorities. (DC 64a).

11 Subsequent resolutions made no reference to operational needs

justifying a racial quota (2284a).

In discrediting the BPC’s Findings, the District Court com-

mented on Tannian’s presentation of the facts of Schaefer v.

Tannian, 394 F.Supp. 112 (Ed. Mich. 1974), a suit involving

sex discrimination in the Detroit Police Department and estab-

lishing limited preferential hiring. The District Court found

that Tannian, “a lawyer and party to the Schaefer action, in-

tentionally misrepresented the significance of the decision to

the BPC.” (DC 64-65a).

Based upon its assessment of the testimony and exhibits

before it, the District Court found that:

‘.. . Tannian neglected to paint the full picture in his

presentations to the board regarding these factors and

that the BPC failed to fulfill their duty to investigate the

factual matters as presented by Tannian.” (DC 64a).

E. Promotions From Personnel Order No. 74-108.

A total of 150 promotions were made from Personnel Order

No. 74-108, which ranked 298 candidates after the December

16, 1973 promotional examination. (20452) Following the

initial 30 promotions made in rank order, (10/14/77, Vol. II,

p. 28), on August 1, 1974 (one day after passage of the

affirmative action resolution), the Department promoted 27

blacks and 3 white females, supposedly to counter-balance the

rank order promotions made in April. (2405a-2406a; lb & 6b).

(DC 44a). The 25 black males promoted ranked from #436

to #264 on the eligibity register. (DC 45a). Thereafter,

Personnel Order No. 74-108 was extended by Personnel Order

Nos. 74-193 and 75-6, (5b-6b), because there were no more

black officers on the original eligibility register. (1268a; 1391

a-1393a). Only black officers were promoted from the extend-

ed group of rankings. (1268a).

The District Court found that:

“The true reason why the eligibility register was ex-

tended was to have more black male officers available for

tig

promotion since the prior promotions had exhausted all

eligible black male candidates. (DC at 46a).

Promotions made after August 1, 1974 were made pursuant

to a 50/50 racial quota — with the top ranking blacks and the

top ranking whites taken in equal numbers. The District

Court found that: “There were, in actuality, two lists, one

for white males and one for black males.” (DC at 45a).

The last white officer promoted on Personnel Order No.

74-108 and its extensions was ranked No. 81 and the last black

male officer promoted was ranked No. 494. (1179a). As

a result, 58 identifiable white officers, ranked from 81 to 150,

were passed over for promotion because of their race.

Each member of the Plaintiff Class who was passed over for

promotion received a letter by Departmental mail, which

stated that:

“In an effort to create racial balance among supervisory

personnel ... the DPD .. . adopted an affirmative action

plan on July 31, 1974. Implementation of the affirmative

action plan caused your name to be ‘passed over’ on the

promotional list for sergeants.” (Personnel Order No. 74-

221). (427b; 1397a-1398a, 1424a). (Emphasis added).

Under Order No. 74-108, 150 officers were promoted to the

rank of sergeant. Tannian admitted that, after these promo-

tions, he could no longer continue his racial preference pro-

gram since only 500 officers had passed the December 16, 1973

examination and all blacks on the resulting register had been

promoted. Further promotions from the current register would

have necessarily been of white males already passed over.

(2047a). As an alternative to promoting these eligible white

officers, the existing register was abandoned by the City and

a new test was administered on November 17, 1974. (DC 47a).

—_

F. Promotions from Personnel Order No. 75-352

and No. 76-441.

To provide the Department with more black candidates for

Sergeant, a new promotional exam was noticed on September

10, 1974. (39b-45b). The notice deleted previous language

stating that promotions would occur in rank order. (39b-45b;

DC at 47a).

The new eligibility register for promotions to sergeant was

designated as Personnel Order No. 75-352, and was predicated

on the November 17, 1974 promotional exam. (14b-20b; DC

at 48a). A total of 127 promotions were made from that regis-

ter. (21b-23b; 1185a-1187a).

As found by the District Court:

“As with the 1974-1975 promotions, the process of select-

ing officers to be promoted was not by true or strict

numerical rank but was in fact done by coding the eligi-

bility register by race a d sex and then, in a descending

order, selecting an equal number of black males and white

males from each group.” (DC at 47a). (1188a-1190a).

The last white male to be promoted on the 1974 register

was ranked as No. 70, but the last black promoted under the

preferential quota was ranked as No. 342. (1189a; 119]a;

1193a-1195a). Under Order No. 75-352, 49 white police offi-

cers were passed over for promotion because of their race.

(1189a-1192a; 1420a-1423a).

On December 28, 1976, Chief William Hart issued a new

eligibility register for sergeant, designated as Personnel Order

No. 76-441, which arose from the May 23, 1976 exam. ( 24b-

29b). A total of 70 promotions were later made from that

white males, 30 black males, 5 black females, 5 white females.

(742b; 2074a.1). The last black promoted was No. 116, and

the last white promoted was No. 42. (1199a). From this

Order, 19 white officers were passed over solely because of

their race. (2320a, 2324a: 1466a; 2464a; 2359a). (DC 48a).

G. The City’s Defense Of Operational Needs.

At trial and on appeal, the City claimed that its affirmative

action plan was justified by the operational needs of the Police

Department for the employment and promotion of greater

numbers of blacks. The District Court found the operational

needs justification to be unsupported by any competent evi-

dence. (DC 74-75a). The Sixth Circuit cited several reports

and studies on the relationship between government and citi-

zens in finding that the District Court gave too little consid-

eration to the testimony of certain officers that increased black

representation on the police force was required. Neither that

testimony, however, nor the non-record reports and studies

cited by the Sixth Circuit relate to an operational need for

black sergeants. Assuming arguendo, that the City did show

an operational need for black representation on the police

force, there was simply no showing that this need was relevant

to sergeants as well as patrolmen.

Tannian did testify at trial that blacks were needed for

surveillance of black gambling and narcotics operations.

(153la). Tannian, however, did not deny that white officers

had done surveillance in black neighborhoods, often with the

same results as black officers. (2059a). Deputy Chief Ban-

non also admitted that, in some cases, white officers could

work effectively with black informants. (2342a-2343a). Chief

Hart testified that, prior to July 1974, black officers below the

rank of sergeant had been used as plain clothes investigators,

and that the Department could conduct plain clothes in-

vestigations with personnel other than sergeants by transferring

officers from precincts to investigative units. (2302a-2303a).

This testimony was confirmed by Robert Bullock, who stated

that black officers could be transferred to investigative units,

regardless of rank. He also testified that he never had prob-

lems getting sufficient black officers for special tasks. (2588a-

2589a ).

Chief Hart and Deputy Chief Bannon testified that pro-

fessional standards complaints by citizens had decreased after

implementation of the quota. (2277a, 2328a, 2367a-2368a).

Contrary to the City’s argument, a study revealed that citizen

complaints actually rose in 1975. (2436a-2347a). Further-

more, a study entitled, “Citizen’s Complaints of Police Mis-

conduct from January, 1975 to June, 1976” (1241b-1242b) in-

dicated that a number of reasons could account for any reduc-

tion in complaints, since during that time period: (1) officers

violating Department rules were charged and disciplined ap-

propriately; (2) Department members were made more aware

of their duties and responsibilities relative to citizen inquiries;

and (3) each member of the Department was notified that

violations of the law or regulations would not be tolerated.

(1241b-1241b.1; 2437a.1).

The City has also claimed that increased black representa-

tion on the police force was necessary for more effective crime

prevention and solution. (CA 36a). No evidence presented at

trial, however, related this laudable goal to a fixed quota for

the promotion of black sergeants. In fact, the record indicated

that many factors could cause a reduction in crime, including,

but not limited to: (1) population size and density; (2)

demographics relative to age, sex and race; (3) economic

conditions; (4) relative stability of population; (5) seasonal

weather conditions; (6) educational, recreational and religious

characteristics of the community; (7) effective strength of the

police department; (8) standards governing appointment to

the police department; (9) public attitudes; and, (10) ad-

ministrative and investigative efficiency. (2310a-2311a).

It is important to note that in June of 1974, when use of

the quota began, there was an increase in all major crime

in Detroit (1506a); and there were more major crimes in

1976 than in 1974. (2309a).

Chief Hart admitted that a major reason for the reduction

in crime claimed by the City for 1977 and 1978, was an

increase in the overall manpower strength of the Department.

(2314a). According to Chief Hart, previous escalations in

the crime rate had been caused by the declining strength of

the Department from 1973 through 1976 due to budget con-

straints.'2 (2314a; 2318a; 2313a; 2332a). In addition, Chief

Hart admitted that when economic conditions improve, crime

goes down. (2319a). Finally, Chief Hart admitted that the

population in Detroit had decreased since 1970. (2307a-

2308a). The record, therefore, established several potential

causes for the decrease in crime, and, the City offered no

proof to tie the claimed reduction in crime to racial quotas.

In discussing the City’s “operational needs”, the Sixth Cir-

cuit stated that “etiective crime prevention and solution de-

pend heavily on the public support and cooperation which

result only from public respect and confidence in the police”

(CA 36a). Certainly, the District Court did not deny the

truth of that statement in its opinion. The District Court did

find that the City had introduced no evidence which related

the City’s purported operational need for increasing the num-

ber of black sergeants to a strict racial quota which denied pro-

motions to better qualified white police officers.

12 As crime was escalating in 1974 and 1975, the Department's

strength was declining. (2318a). In 1975, budget constraints pre-

vented the Department from filling vacancies. (2313a). On or about

June 30, 1976, budget constraints required the Department to lay off

972 police officers. (2313a; 2332a). These officers were recalled in

September of 1976 and crime statistics began to decrease in October

of 1976 or immediately thereafter. (2314a; 2332a). The effective

strength of the Department changed, in the following manner, from the

years 1973 through 1977:

1973 - 5,541 1976 - 5,052

1974 - 5,383 1977 - 5,643

1975 - 5,458

(2317a-2318a; 1234b, 1235b).

REASONS FOR GRANTING THE WRIT

This Petition arises from the use of a 50-50 racial quota

by a government body, the City of Detroit, for promotions to

the rank of Sergeant by the Detroit Police Department. That

quota was grafted onto a bona fide, job-related and non-

discriminatory promotional model which ranked candidates

based upon relative qualifications for the position of sergeant.

As a result of the racial quota, better qualified white of-

ficers were passed over for promotion solely because of their

race.

On June 10, 1974 Plaintiffs instituted this suit, alleging

that the City of Detroit’s unilaterally imposed racial quota,

adopted in July of 1974, improperly abrogated a merit system

of promotion mandated by City Charter and the Michigan

Constitution, and denied certain white officers promotions sole-

ly because of race. Plaintiffs have alleged violations of 42

U.S.C. §§ 1981, 1983, 1985, 2000e, 2000d and the Fourteenth

Amendment.

After 66 days of trial, the District Court, on February 27,

1978, entered its Order and Permanent Injunction restraining

the Respondents’ use of a racial quota instead of a merit sys-

tem of promotion. The District Court found that the promo-

tional examinations given on December 16, 1973. November

17, 1974 and May 16, 1976 and the other components of the

promotional model were job related, non-discriminatory and

content valid. (DC 52a). The District Court further found

that the unrebutted testimony established that “the higher a

candidate stood on the eligibility register, the better qualified

and equipped he was to assume the position of Sergeant.”

(DC 58a).

The District Court also rejected the City’s defense that al-

leged past discrimination against minorities justified placing

the burden of its “remedy” upon individual white candidates

for promotion. (DC 91-94a). Finally, the District Court con-

cluded that Respondents had failed, as a matter of proof,

to establish that the racial quota had somehow improved the

effectiveness of the Detroit Police Department. (DC 73-75a).

By decision of October 12, 1979, the Sixth Circuit vacated

the Injunction; dismissed Plaintiffs’ claims under 42 U.S.C.

§§ 1981, 2000d and 2000e; and remanded the Fourteenth

Amendment claim to the District Court for consideration un-

der standards of constitutional review set forth by four jus-

tices in Regents of the University of California v. Bakke, 438

U.S. 265, 324 (1978) (Opinion of Brennan, White, Marshall

and Blackmun). The Sixth Circuit found as one justification

for the racial quota “the public’s perception of law enforce-

ment officials and institutions.” (CA 36a).

However, in reaching its conclusion, the Sixth Circuit never

reversed or modified the factual findings of the District Court

that: (1) the promotional examination, since at least 1973,

was job related and non-discriminatory; or (2) that “the high-

er a candidate stood on the eligibility register the better quali-

fied and equipped he was to assume the position of Sergeant”.

(CA 7a).

Indeed, the Sixth Circuit indicated “that job related, non-

discriminatory examinations for Sergeant were instituted in

1973 .. .”. (CA 38a).

Therefore, in upholding the City’s racial quota for promo-

tions, the Sixth Circuit was able to identify discrimination

against minorities only in hiring and job assignment, but not

in past promotional practices.

Considering the record evidence, and the findings of the

District Court, the Sixth Circuit has committed significant

errors of constitutional dimensions. And its decision will have

ramifications far beyond those that affect the parties to this

litigation. The Sixth Circuit’s ruling came shortly after this

Court's decisions in Board of Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), and United Steel-

workers of America v. Weber, 99 S.Ct. 2721 (1979). The mis-

construction of those decisions by the Sixth Circuit will influ-

ence the review of affirmative action plans under Title VII,

Title VI, and the Fourteenth Amendment by the federal

courts, affecting millions of workers in both the public and

the private sector.

The Sixth Circuit’s ruling has also created conflicts of sig-

nificant dimensions with opinions of other Circuits on these

issues, including that of the Tenth Circuit in EEOC v. Navajo

Refining Co., 593 F.2d 988 (10th Cir. 1979); that of the Second

Circuit in Bridgeport Cuardians, Inc. v. Bridgeport Civil Ser-

vice Commission, 482 F.2d 1333 (2nd Cir. 1973), cert. den.,

421 U.S. 991 (1975), and cases following that opinion; and

that of the Fourth Circuit in Uzzell v. Friday, 591 F.2d 997

(4th Cir. 1979).

For these reasons, and the reasons that follow, Petitioners

respectfully request that this Honorable Court grant its Pe-

tition for Writ of Certiorari and reverse the October 12,

1979 decision of the Sixth Circuit.

I. THE COURT OF APPEALS ERRED IN FINDING

THAT THE CITYS UNILATERAL IMPOSITION

OF A STRICT RACIAL QUOTA IN PLACE OF A

BONA FIDE MERIT SYSTEM OF PROMOTION

DID NOT VIOLATE TITLE VII.

In seeking to justify its dismissal of the Title VII claim,"

the Sixth Circuit apparently found that there “was evidence

of post-Act discrimination” since an unvalidated entry-level

examination was not abandoned until 1973 (CA at 22a) and

“changes in other aspects of the entry-level hiring processes

which had racially disparate effects or afforded opportunities

for discrimination continued until 1973.” (CA at 22a).

13 Section 703(a) of The Equal Employment Opportunity Act of 1972

(the 1972 Act) bars discrimination against an individual in employment

“because of such individual’s race. . . .” 42 U.S.C. § 2000e-2(a) (1).

The prohibition of §703(a) applies “[R]egardless of whether the

discrimination is directed against majorities or minorities.” See Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

The Sixth Circuit further justified its dismissal of Petitioners’

Title VII claim, by relying upon this Court’s decision in

Weber, supra, finding that the Court’s interpretation of Title

VII in Weber applied equally to public and private employ-

ment. (CA at 23a, n.7).

The Sixth Circuit’s dismissal of the Title VII claim was

error in at least three respects. First, unrebutted evidence,

when properly applied to the applicable law, leads to the

inevitable conclusion that no post-Title VII discrimination oc-

curred in the Detroit Police Department. Moreover, the Sixth

Circuit improperly applied this Court’s decision in Weber

to public employment. Third, the Sixth Circuit improperly

found the City’s racial quota to be a “reasonable” remedy

under Title VII despite overwhelming evidence that the

quota unnecessarily violated the rights of white police officers.

A. The Sixth Circuit Erred In Finding Post-Act

Discrimination.

It is significant that the Sixth Circuit has referred only

to past discrimination in hiring and has found no past dis-

crimination in promotions from the rank of police officer to the

rank of sergeant. Indeed, the Sixth Circuit did not disturb

the findings of the District Court that the promotional exam-

inations of 1974, 1975 and 1976 were job related, content valid

and non-discriminatory. (CA 38a). Moreover, the City offered

no evidence to show the effect on minorities of promotional ex-

aminations or other promotional criteria prior to 1973."

14 Admittedly, the Sixth Circuit found that “in 1968 the written pro-

motional exam, like the entry-level test, was essentially an intelligence

test which principally gauged verbal ability.” (CA at 5). This finding

of the Sixth Circuit finds no support in the record. Commander Richard

Caretti testified that he did not know how the promotional examination

was developed prior to 1969. (1238a). Caretti further affirmed that

he never conducted a study to determine whether or not the promo-

tional examinations, prior to 1969, were discriminatory. He never

In finding post-Act hiring discrimination, the Sixth Circuit

disregarded the Court’s statement in Hazelwood School Dis-

trict v. United States, 433 U.S. 299, 309-310, n.15 (1977):

“An employer engaged in racial discrimination prior to

the effective date of Title VII might in some circum-

stances support the inference that such discrimination

continued, particularly where relevant aspects of a de-

cision making process had undergone little change.” (Em-

phasis supplied )

Indeed, the Sixth Circuit ignored its own findings that,

since July of 1967, the Detroit Police Department had adopted

radical and continued changes in its hiring procedures in or-

der to eliminate all requirements irrelevant to police work

and to improve minority representation on the force. (CA

3-4a ).15

Further, the Sixth Circuit never identified what it described

as the “other aspects of the entry-level hiring process which

had racially disparate effects” (CA 22a). The “other as-

pects” actually considered in the entry-level hiring process

were preliminary screening, criminal record check, background

investigation, medical examination, and oral boards. Clearly,

the preliminary screening process, which included age, height,

weight, education, vision, residence and traffic record had no

discriminatory impact on black applicants since 1968. (2186a-

2193a). Further, the criminal record requirement, which ap-

plied equally to all candidates, was not shown to have had

a disparate impact. Moreover, the background investigation

was required to be racially neutral as far back as the 1960's;

examined or studied any of the prior examinations. (1239a-1240a).

Caretti stated that his only knowledge of such prior procedures was

obtained from the single promotional examination that he took in ap-

proximately 1960. (1242a).

'5 The extensive revisions in entry-level hiring requirements, including

the written examination, are fully set forth infra at pp. 7-12.

and credit ratings and undocumented rejections were de-

emphasized prior to 1973. (559b; 770a; 1225a; 1226a-1228a).

The City did not claim in the lower courts that the oral

board, which was last changed in 1971, had a racially dis-

criminatory impact. (2140a-214la).

The unrebutted evidence refutes the Sixth Circuit’s reli-

ance upon unidentified “aspects of the entry-level hiring pro-

cess which had racially disparate effects,” as justification for

the promotional quota. (CA 22a). In addition to refuting

any finding of post-Act discrimination in hiring, the rec-

ord establishes that the “relevant aspects of the decision mak-

ing process” for both entry and promotion had undergone

radical change since 1968.

The Sixth Circuit’s only specific finding of post-Act hiring

discrimination related to the entry level exam. “[I]t was not

until 1973 that the unvalidated entry level exam which failed

greater numbers of black than white applicants was finally

abandoned.” (CA 22a). Yet the Court disregards the ef-

forts of the City to alter that impact, both by changes in

the test, and by the use of a racial preference for black ap-

plicants that eliminated any adverse impact from the test.

The development of a non-discriminatory entry-level ex-

amination was a process that began in 1968, with the goal of

eliminating any disparate impact on minorities. Infra pp. 7-9.

(CA 3-5a). Any adverse impact of the entry-level exam after

1968 was counteracted by the use of an entry-level racial

quota under which all eligible black applicants were routinely

hired. Only surplus police academy spaces were filled with

white applicants. (218la-2183a; 2237a-2249a).

The elimination of discrimination at the entry level after

adoption of Title VII is confirmed by an examination of the

percentage hiring rates of black applicants as compared to

the SMSA and the Detroit Labor Markets:'6

16 A discussion of the Sixth Circuit’s errors in reversing the District

Court’s determination of the “relevant labor market” is addressed at

Percentage of Percentage of Percentage of

Blacks Hired'” Blacks in SMSA'® Blacks in Detroit"?

1972 — 30% 16.4 35.1

1973 — 30% 16.67° 36.0

1974 — 48% 36.0

1975 — 64% 37.0

1976247 — 38.9

1977 — 80%

Whether the Court considers Detroit or Metropolitan sta-

tistics, for purposes of comparison since 1972, black appli-

cants have been hired by the Department at rates far in

excess of their representation in the labor market since 1972.

The Sixth Circuit’s refusal to consider these post-Act hiring

statistics to refute claims of Title VII discrimination against

minorities conflicts with the standard previously enunciated

by the Tenth Circuit Court of Appeals in Equal Employment

Opportunity Commission v. Navajo Refining Company, 593

F.2d 988 (10th Cir. 1979). In that case, a high school edu-

cation requirement and an aptitude test had a discriminatory

impact upon Spanish surnamed Americans. The evidence

further established that Spanish surnamed Americans received

38% of the new entry-level hiring positions. Their represen-

pp. 72-75, infra. However, for the above mentioned analysis, the use

of either labor market establishes beyond question that there was no

post-Act hiring discrimination.

17 Exhibit 269 (1236b).

18 Exhibit 242, Table 2 (1349b); % of blacks in relevant SMSA labor

market.

19 Exhibit 242, Table 1 (1348b); % of blacks in relevant Detroit labor

market.

20 1778a. Limited to the City of Detroit as of 1974 due to the

introduction of the pre-residency requirement.

21 The Detroit Police Department did not hire any officers in 1976

because of a shortage of funds.

tation in the relevant labor market was 23.2%. In finding no

unlawful discrimination, the Tenth Circuit stated:

“The high school education requirement and the tests

are racially neutral on their face, although they have

not been shown to be job related. ‘But Congress directed

the thrust of the Act to the consequences, of employ-

ment practices, . . . Griggs v. Duke Power Co., 401 U.S.

424, 432, 91 S.Ct. 849, 854, 28 L.Ed. 2d 158 (1971). The

statute [Title VII] prohibits discrimination on ‘race, color,

religion, sex, or national origin’ grounds only. 42 U.S.C.

§ 2000e-2(a). Thus, the Company is free to use its tests

and high school education requirements if the result

is not discrimination in fact. When 30% of the applicants

for jobs are SSA’s, from a workforce in the community

of 23.2% SSA’s, and 38% of the persons hired by Navajo

(all of whom start at the same job level) are SSA’s, the

requirement of proof of discrimination is not met.” (em-

phasis supplied) 593 F.2d at 992.

The Sixth Circuit found post-Act entry level discrimination,

despite the statstical evidence that blacks were not under-

represented in hiring since 1972. This finding was clearly er-

roneous. See Hazelwood, supra.

B. The Sixth Circuit Erred in Applying Weber To

The Public Sector.

In Weber, “the question for decision [was] whether . . .

Title VII of the Civil Rights Act of 1964... left employers

and unions in the private sector free to take such race-

conscious steps necessary to eliminate manifest racial imbal-

ance in traditionally segregated job categories”. 99 S.Ct. at

2724-2725. (Emphasis added). The Court expressly noted

that: “since the Kaiser-USWA plan does not involve state

action, [the] case does not present an alleged violation of the

Equal Protection Clause of the Constitution.” 99 S.Ct. at 2726.

Thus, in Weber, this court specifically limited its holding to

the area of private, rether than public employment.

In holding that the collectively bargained affirmative action

plan was permissive voluntary affirmative action, the court

relied, in part, on the express language of 703(j) of Title VII,

43 U.S.C. § 2000e-2(j). According to a majority of the Court

in Weber, “the section does not state that ‘nothing in Title

VII shall be interpreted to permit’ voluntary affirmative ef-

forts to correct racial imbalances. The natural inference is

that Congress chose not to forbid all voluntary race-conscious

affirmative action”. 99 S.Ct. at 2726.

The same result should not arise when the Court rules on the

constitutionality of promotional quotas in the public sector.

Real and substantial differences of constitutional significance

exist between public and private sector employment. Differ-

ent standards of review for public sector employment under

Title VII are required.

Almost a century ago, this Court held that private citizens

ordinarily are free to discriminate on the basis of race. See

Civil Rights Cases, 109 U.S. 3 ( 1883). In 1964, Congress ac-

knowledged the need to regulate discrimination by private

employers, pursuant to the Commerce clause, and enacted

Title VII of the Civil Rights Act of 1964. Absent the limita-

tion contained in § 703(a) of Title VII, a private employer was

still left free to discriminate based on race. Thus, a majority

of this Court in Weber read § 703(j) as not prohibiting the

use of race-conscious affirmative relief.

Distinguishing Title VII's private sector mandate from Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (inter-

preted by the Court in Bakke, supra) the Court found in

Weber that:

“Title VII, by contrast, was enacted pursuant to the Com-

merce power to regulate purely private decisionmaking

and was not intended to incorporate and particularize the

commands of the Fifth and Fourteenth Amendments.

Title VII and Title VI, therefore, cannot be read in pari

materia.” 99 S.Ct. at 2729, n.6. (Emphasis added ).

The application of Title VII to state and local government

derives from a totally different constitutional basis. In 1972,

Title VII was amended to include the public employers ex-

pressly exempted in 1964. See Equal Employment Opportuni-

ty Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e(a)(f) (1970e

(d), Supp. IV). The congressional debates unequivocally in-

dicate that the 1972 amendments, unlike the original Act, were

enacted under the authority of the Fourteenth Amendment.??

Recent decisions of this Court confirm this view. See Fitz-

patrick v. Bitzer, 427 U.S. 445, 453 (1976).

The appellate courts have consistently upheld the 1972

amendments, as well as similar legislation directed to gov-

ernmental units, upon the authority of the Fourteenth Amend-

ment.?% Reliance on the comerce power would clearly be

inappropriate in light of this Court’s holding in National

League of Cities v. Usery, 426 U.S. 833, 851 (1976). There,

the extension of the Fair Labor Standards Act, 29 U.S.C.

§ 201, et seq., to local governments was held invalid under the

Commerce clause.

The 1972 amendments to Title VII were premised solely

on the Fourteenth Amendment. Title VII, therefore, should

be construed, at the least, to incorporate and particularize

the commands of the Fourteenth Amendment. The Statute

and Constitution must be construed consistently with one

22 § 5 of the Fourteenth Amendment provides as follows: “The Con-

gress shall have the power to enforce, by appropriate legislation, the

provisions of this Article.” See Legislative History, 1972 U.S. Code

Cong. & Ad. News 2154; H.R.Rep. No. 238, 92d Cong., Ist Sess., 19

(1971); S. Rep. No. 415, 92d Cong., Ist Sess., 24 n.11 (1971).

23 See United States v. State of New Hampshire, 539 F.2d 227 (lst

Cir. 1976), cert. den., 429 U.S. 1023 (1976). Cf. Usery v. Charleston

County School District, 558 F.2d 1169 (4th Cir. 1977) (Equal Pay

Act. 29 U.S.C, § 206(d)); Usery v. Allegheny County Institution Dis-

trict, 544 F.2d 148 (3rd Cir. 1976) (Equal Pay Act); Marshall v.

Owensboro-Davies County Hospital, 581 F.2d 116 (6th Cir. 1978)

(Equal Pay Act); Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) (Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seq.).

another; further, Title VII’s prohibitions extend not only to

conduct prohibited by the Fourteenth Amendment but also

to conduct included within the natural meaning of the statute.

Title VII's public sector provisions should also be read in

pari materia with Title VI, also grounded in the Fourteenth

Amendment, and under whose absolute prohibition “it is

not ‘permissible to say “yes” to one person but to say “no”

to another person, only because of the color of his skin.’”

Regents of the University of California v. Bakke, 438 U.S. 265,

418 (1978) (Opinion of Stevens, | §7

Clearly, the relationship of Title VII to the Fourteenth

Amendment derands that Title VII be read, at a minimum,

to prohibit all employment discrimination by public em-

ployers prohibited by the Fourteenth Amendment. Since this

Court’s decision in Weber, supra, was specifically limited to

private sector employment, the Sixth Circuit’s unquestioning

application of the Weber doctrine to public employment was

clearly erroneous.

C. The Sixth Circuit Erred In Declining To Find

The City’s Quota To Be An Unreasonable

Remedy For Past Discrimination.

Conceding, arguendo, the existence of past discrimination

in hiring and the applicability of Weber, the Court of Appeals

erred in failing to find the City’s absolute racial quota un-

reasonable.

In Weber, the Court did not “define in detail the line of de-

marcation between permissible and impermissible affirmative

action plans.” 99 S.Ct. at 2730. The Weber opinion, however,

did note that the Kaiser-USWA plan was reasonable since “the

plan [did] not necessarily trammel the interest of the white

employees” and was “not intended to maintain racial bal-

ance ...”. 99 S.Ct. at 2730.

Throughout the Weber opinion, the Court noted that the

plan was collectively bargained between the Union and the

employer. This case does not arise from a voluntarily negoti-

ated, affirmative action program.

At a minimum, any affirmative action program must be

measured by the following standards of reasonableness. First,

the plan should be negotiated between employer and any

recognized union. Such negotiations would ensure that the

plan’s benefits and burdens, to the extent possible, are shared

equally by all parties. Second, any racial preference, which

abrogates a bona fide merit promotional system must be con-

sidered per se unreasonable when it damages a group of iden-

tifiable, existing employees.?4 Third, the plan may not merely

shift the burden of the remedy from the employer-wrongdoer

to innocent employees.

(1) The Non-Negotiated Abolition Of A Bona

Fide Merit Promotional System Renders

The Quota, Per Se, Unreasonable.

Weber involved “the legality of an affirmative action plan

— collectively bargained by an employer and the union. . . .”

99 S.Ct. 2724. (Emphasis added). In reviewing the legisla-

tive history of Title VII, the Court found that the statute

must be read in light of “Congress’ desire to avoid undue fed-

eral regulation of private business,” 99 S.Ct. at 2729, and

thereby preserving the traditional give-and-take afforded to the

collective bargaining process.

This Court recognized in Weber that legislators who tradi-

tionally resisted federal regulation of private business de-

manded as a price for their support of the 1964 Civil Rights

Act that ‘management prerogatives and union freedoms... .

24 Section 701(h) of Title VII extends a measure of protection to

“merit systems” since it provides in part that “it shall not be an unlawful

employment practice for an employer to apply different standards of

compensation, or different terms, conditions, or privileges of employment

pursuant to a bona fide . . . merit system . . . provided that such

differences are not the result of an intention to discriminate because of

race... .” 42 U.S.C. § 2000e-2(h).

» at

be left undisturbed to the greatest extent possible.” H.R.Rep.

No. 914, 88th Cong., Ist Sess., Pt. 2 (1963), at 29, 1964,

U.S. Code Cong. & Admin. News, p. 2391. 99 S.Ct. at 2729.

As a consequence, Title VII was designed to “create an at-

mosphere conducive to voluntary or local resolution” of prob-

lems caused by discrimination, H.R. Rep. No. 914, supra,

at 18, and to act as a:

“spur or catalyst to cause ‘employers and unions to self-

examine and to self-evaluate their employment practices

and to endeavor to eliminate, so far as possible, the last

vestiges of an unfortunate and ignominious page in this

country’s history’. Albemarle v. Moody, 422 U.S. 405, 418

(1975).” 99 S.Ct. at 2728.

The racial preference program upheld in Weber, was volun-

tarily established pursuant to a collective bargaining agree-

ment between Kaiser and The United Steelworkers of Ameri-

ca. The program affected seniority rights, themselves a pro-

duct of collective bargaining.25 The Court has consistently

held that union and management could modify the existing

seniority rights of employees through collective bargaining

agreements. See Ford Motor Company v. Huffman, 345 U.S.

330 (1953); Franks v. Bowman Transportation Company, 424

U.S. 747, 778-779 (1976).

In contrast, the City’s program was not the product of

collective bargaining but was designed by the City and peri-

odically changed, unilaterally, throughout the course of the

litigation. Plaintiffs were systematically denied a voice in the

formulation of the discriminatory program that affected them

25 Justice Blackmun, in his concurring opinion, disagreed and noted

that: “Seniority is not an issue because the craft training is new and

does not involve an abrogation of pre-existing seniority rights.” 99 S.Ct.

at 2734. In the instant case, there can be no question that the city’s

racial quota was enacted by virtue of a unilateral abrogation of a

bona fide merit system.

so adversely. The City absolutely refused to bargain with the

DPOA regarding standards and criteria for promotions. UI-

timately the DPOA filed an unfair labor practice charge

against the City before the Michigan Employment Relations

Commission. The Commission unanimously ordered the City

to cease and desist from engaging in this unfair labor prac-

tice.26 The Michigan Court of Appeals unanimously affirmed

the Commission’s finding of an unfair labor practice, Detroit

Police Officers Association v. City of Detroit, 61 Mich. App.

487, 233 N.W.2d 49 (1975), appeal denied, 395 Mich. 756

(1975).

Unlike Weber, therefore, the City’s racial quota was not

the result of arms-length, good-faith collective bargaining.

The DPOA did not have the opportunity, as did the USWA,

to protect the interests of its members and to obtain negotiated

benefits in return for certain contractual modifications.

In Weber, the union obtained a new benefit for all em-

ployees in the form of a craft apprenticeship program. Prior

to the negotiation of that provision, all untrained employees,

both black and white, had been unable to obtain skilled craft

positions. Through the collective bargaining process, the union

required the employer to grant a benefit to all employees in re-

turn for the modification of the seniority provision.?7

26 See In re City of Detroit, Police Dept., and Detroit Police Officers

Association, 9 Mich. Empl. Rel. Comm’n., Dec. 470 (1974). (526b).

27 Judge Wisdom, in his dissent in Weber v. Kaiser Aluminum and

Chemical Corp., 563 F.2d 216 (5th Cir. 1977), explained the sig-

nificance of the bargaining process and the new benefit obtained for

all employees:

“In the instant case entirely new rights were created by the plan.

None of the white or black employees affected by this proposal

had any chance to receive craft training from Kaiser before the

1974 Agreement. Only those workers with prior experience had

been eligible for training, and that pool had been exhausted. No

white workers lost their jobs, none had expectations disappointed.

Instead, the defendants created an entirely new expectations for

all the employees, without harming the chances of any Kaiser em-

ployer for such training.” 563 F.2d at 234.

In this case, the racial quota did nc. \: sate new expecta-

tions or new opportunities for all employees. Rather, the ex-

pectation of promotion was rooted in the City Charter and in

the established past practice of the Department of rank order

promotions.

The City’s willful obstructive and systematic exclusion of

the DPOA from the process of altering an established promo-

tional system distinguishes Weber and mandates a finding that

the City’s quota is per se unreasonable.

(2) The City’s Racial Quota Unnecessarily

Trammels The Rights Of White Officers

Seeking Promotion.

Although the Court, in Weber, ruled that Title VII did not

preclude voluntarily negotiated affirmative action programs in

the private sector, the Court did not leave employers and

unions with unlimited discretion. In assessing the validity of

the plan challenged in Weber, the Court noted: “At the same

time the plan does not unnecesarily trammel the interests of

the white employees.” 99 S.Ct. at 2730.

In Weber the right of all employees to an apprenticeship

program was created and governed by the collective bargain-

ing agreement. The right to promotion in the Detroit Police

Department, is regulated by the Michigan Constitution and

the Charter of the City of Detroit. Pursuant to Article XI,

§ 6 of the Michigan Constitution of 1963,28 the Charter, ef-

fective July 1, 1974, provides that promotions within the De-

partment, through rank of lieutenant, shall be made on the

basis of competitive examinations and that:

28 “By ordinance or resolution of its governing body which shall not

take affect until approved by a majority of the electors voting thereon,

unless otherwise provided by Charter, each county, township, city,

village, school district and other governmental unit or authority may

establish, modify or discontinue a merit system for its employees other

than teachers under contract or tenure.” Mich, Const. Art. II, § 6.

“No person who has taken an examination and has been

placed on a register of employees eligible for promotion

may be passed over in favor of an employee with a lower

examination score unless the Chief of Police files with the

Board and the Division of Police Personnel written rea-

sons acceptable to the Board. Any person having been

passed over may appeal to the Board.”?9

This provision created a vested entitlement to promotion,

based upon the rank order of candidates on the promotional

Under virtually identical circumstances, numerous appel-

late courts have refused to allow the denial of promotions

due to readily identifiable employees solely because of a racial

preference for other candidates. The Sixth Circuit’s opinion is

clearly in conflict with those authorities.

In Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Commission, 482 F.2d 1333 (2d Cir. 1973), cert. den., 421

U.S. 991 (1975), black patrolmen sought to restrain the

29 The Sixth Circuit also affirmed the finding of the District Court

that “prior to July, 1974 all promotions to Sergeant were made in strict

numerical order from the eligibility list.” (CA 6a)

30 In Board of Regents v. Roth, the Supreme Court held that:

Property interests . . . are created and their dimensions are defined

by existing rules or understandings that stem from an independent

source such as state law — rules or understandings that secure

certain benefits and that support claims of entitlement to those

benefits. . . . 408 U.S. 564, 577 (1972).

In a companion case, the court held that although “subjective ex-

pectancies” do not create property rights, those rights do attach when

expectations are predicated upon objective evidence of de facto policies,

rules or other understandings, officially promulgated and fostered. Perry

v. Sindermann, 408 U.S. 593 (1972). The Sixth Circuit has repeatedly

applied Roth and Sindermann in employment cases requiring due process

protection of property rights which flow from objectively reasonable ex-

pectations. See, e.g., Tatum v. Mathews, 541 F.2d 161 (6th Cir.

1976); Soni v. Trustees, 513 F.2d 347 (6th Cir. 1975).

City’s discriminatory employment practices. The District

Court imposed hiring and promotional quotas. The Second

Circuit, in reversing the promotional quota, first noted that, as

in this case, there was no finding “that the promotional ex-

amination is not job-related.” 482 F.2d at 1341.3"

In reversing the promotional quota, the Second Circuit

noted the effect on innocent white employees:

“[T]he imposition of quotas will obviously discriminate

against those Whites who have embarked upon a police

career with the expectation of advancement only to be

now thwarted because of their color alone. The impact

of the quota upon these men would be harsh and can

only exacerbate rather than diminish racial attitudes.

(Citations omitted). We see no purpose in curing a past

mischief by imposing a new one which is deliberately

tainted.” 482 F.2d at 1341.

In Kirkland v. New York State Department of Correctional

Services, 520 F.2d 420 (2d Cir. 1975), cert. den., 429 U.S.

823 (1976), the Second Circuit again refused to affirm a

promotional quota which denied promotions to law enforce-

ment officers solely because of their race:

“A hiring quota deals with the public at large, none of

whose members can be identified individually in advance.

A quota placed upon a small number of readily identi-

fiable candidates for promotion is an entirely different

matter. Both these men and the Court know in ad-

vance that regardless of their qualifications and standing

in a competitive examination, some of them may be by-

passed for advancement solely because they are white.”

520 F.2d at 429.

31In this case, the District Court expressly found that the promo-

tional model was job-related. (DC 52a). The Sixth Circuit further

found that “job-related, non-discriminatory examinations for sergeant

were instituted in 1973 .. .” (CA 38a).

The Second Circuit reaffirmed its prior decisions in Kirkland

and Bridgeport Guardians in Chance v. Board of Examiners,

534 F.2d 993 (2d Cir. 1976), cert. den., 431 U.S. 965 (1977).

In Chance, the “excessing” rules under the New York Educa-

tion Law and the collective bargaining agreement, provided

that when a position in a school system was eliminated, the

least senior employee in the job classification would be trans-

ferred, demoted, or terminated. Despite an undisturbed find-

ing that the promotional examination involved was not job-

related, the Second Circuit set aside a racial quota for “ex-

cessing” due to its effect on a readily identifiable group of

employees in a promotional context:

“Moreover, the concern which we expressed in Kirkland

v. New York State Department of Correctional Services,

520 F.2d 420 (2d Cir. 1975), about the ‘bumping’ effect

of a quota ‘upon a small number of readily identifiable’

individuals finds equal cause for expression in the situa-

tion which now confronts us. We are advised that in

some of the school districts employees will be excessed

from groups containing as few as two or three persons.

To require a senior, experienced white member of such

a group to stand aside and forego the seniority benefits

guaranteed him by the New York Education Law and

his union contracts, solely because a younger, less ex-

perienced member is Black or Puerto Rican is consti-

tutionally forbidden reverse discrimination.” 534 F.2d at

998-999. |

That promotional quotas should be judged under standards

different than entry level quotas, was recognized in White

v. Carolina Paper Board Corp., 564 F.2d 1073 (4th Cir. 1977),

where the Fourth Circuit unanimously invalidated a promo-

tional quota. The District Court, after a specific finding

of promotional discrimination, had ordered that 25% of future

promotions be awarded to minorities. The Fourth Circuit re-

versed, recognized the effect of a quota on existing employees,

and specifically relying on Bridgeport Guardians, supra.

In its October 12, 1979 decision, the Sixth Circuit virtually

ignored these decisions of the Second and Fourth Circuits,

which exhibited a judicial sensitivity towards those denied

merit promotions under a racial quota. As matters presently

stand, the Sixth Circuit, without supporting rationale, has de-

parted from settled appellate precedent established by the

Second and Fourth Circuits. This conflict among the Circuits

must be resolved by the Court.

In Weber a new benefit was created through collective

bargaining and no previous expectation was destroyed. In

this case, both the City Charter and past practice established

an absolute expectation that individual employees would be

promoted according to rank order as determined by job re-

lated, racially neutral criteria. This legitimate expectation

has been denied to certain identified white employees for the

sole purpose of accomodating a political promise of racial bal-

ance. Such a result in inherently unreasonable and violative

of the Plaintiffs’ Title VII rights.

(3) The City’s Racial Quota Unreasonably

Foisted The Economic And Social Burdens

Of Its Own Wrongdoing Upon The Plain-

tiffs.

The City has attempted to “confess” past discrimination

against blacks. In attempting te provide a remedy, however,

the entire burden of its alleged wrongdoing has been unreason-

ably foisted upon individual white officers.32_ The Sixth Cir-

cuit failed to recognize the City’s failure to fairly allocate

32 Indeed, some Plaintiffs have been so burdened on more than one

occasion. Officers Gerald B. Barba, William C. Gratopp, Michael C.

Saad, Carter A. Hicks, Robert C. Morris, Wayne M. Parlowe, William F.

Birdseye, Robert S. Rachas, Bruce B. Balmas and Leonard Stano have

been passed over on two occasions. Kenneth F. Schill has been passed

over on three occasions.

the benefits and burdens of its alleged wrongdoing. (CA 26a,

39a).

A plan is inherently unreasonable when the white candi-

dates passed over bear the entire burden of the employer's

alleged wrongful conduct. The Plaintiffs themselves are en-

titled to a remedy, to include promotion, retroactive seniority,

and back-pay. See Franks v. Bowman Transportation Co.,

Inc., 424 U.S. 747 (1976), and Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975). At the least, the white officers would

be entitled to a monetary remedy if promotion is impossible

due to the City’s alleged past mischief.

In Franks v. Bowman Transportation Co., Inc., supra, a

majority of the Court held that minority employees who

had personally suffered post-Act discrimination could be

awarded retroactive seniority even if this tended to disad-

vantage white employees with higher seniority.

Chief Justice Burger, in his concurring and dissenting opin-

ion in Franks, confirmed that innocent employees may not be

required to carry the burden of the employer’s past wrong-

doing:

“[Al]lthough retroactive benefit-type seniority relief may

sometimes be appropriate and equitable, competitive type

seniority relief at the expense of wholly innocent em-

ployees can rarely, if ever, be equitable if that term re-

tains traditional meaning. More equitable would be a

monetary award to the persons suffering the discrimina-

tion. An award such as ‘front pay’ could replace the need

for competitive type seniority relief. Such monetary re-

lief would serve the dual purpose of deterring wrong-

doing by the employer or union — or both — as well as

protecting the rights of the innocent employees. In every

respect an innocent employee is comparable to a ‘holder-

in-due-course’ of negotiable paper or a bona fide pur-

chaser of property without notice of any defect in the

seller's title. In this setting, I cannot join in judicial

approval of ‘robbing Peter to pay Paul.’

“I would stress that the Court today does not foreclose

claims of employees who might be injured by this holding

from securing equitable relief on their own behalf.” 424

U.S. at 780-81. (Emphasis added).

Justice Powell, also rendered a dissenting opinion in Franks,

joined by Chief Justice Burger and Justice Rehnquist, noting:

“[C]ompetitive seniority benefits, as the term implies,

directly implicate the rights and expectations of per-

fectly innocent employees. The economic benefits award-

ed discrimination victims would be derived not at the

expense of the employer but at the expense of other

workers . . . (who) are not the wrongdoers, who have

no claim to the Chancelor’s conscience, but rather are

innocent third parties.” 424 U.S. at 788-89.

Whether one reads the majority opinion by Justice Brennan,

the concuring and dissenting opinion of Chief Justice Burger,

or the dissenting opinion of Justice Powell, the inescapable

conclusion is that it is patently unreasonable to require inno-

cent white employees to bear the entire burden of an em-

ployer’s alleged past discrimination.**

The rationale of Franks is even more compelling, in this

case, since the findings of both lower courts establish that the

passed-over white officers: (1) were better qualified to per-

form the duties of sergeant as shown by a merit system; (2)

had expended a minimum of two years service before being

allowed to sit for promotion; (3) had attained their rank order

based under a nondiscriminatory, job-related promotional

33 The same concerns expressed in Franks were embraced by a strong

majority of the Court in International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 372 (1977). The Court, in remanding

the formulation of a remedy to the district court, stated:

Moreover, after the victims have been identified and their rightful

place determined, the district court will again be faced with the

delicate task of adjusting the remedial interests of discriminatees

and the legitimate expectations of other employees innocent of any

wrongdoing. 431 U.S. at 372,

model; and (4) would have been promoted pursuant to City

Charter and state constitution but for race. Given these facts,

the City may not be allowed to “rob Peter to pay Paul” by

paying for its alleged wrongdoing to minorities at the sole

expense of the careers of the individual white officers. These

considerations render the City’s plan unreasonable, even under

Weber.

In other instances, courts have burdened the employer,

rather than either group of employees, by establishing one

worker's right to a particular position and requiring the cor-

poration to pay the other worker the wage that would have

been received had he or she been placed in that position. In

Patterson v. American Tobacco Co., 8 FEP Cases 778 (E.D.

Va. 1974), the District Court required the displacement of

incumbents in favor of discriminatees, but ordered that both

groups receive the higher rate of pay. The Fourth Circuit

reversed, but merely reversed the positions, ordering that the

incumbents be retained in the higher positions and that “the

discriminatee receive a higher level of pay.” See Patterson v.

American Tobacco Co., 535 F.2d 257 (4th Cir. 1976), cert.

den., 429 U.S. 920 (1976).

A plan that requires innocent employees to bear the burden

of the employer's alleged past wrongdoing violates essential

principles of justice and equity, and fosters racial hostility

among the employer’s work force. These social consequences

were recently described as follows:

“Such a result creates anger and resentment that is likely

to be directed at those whom whites perceive to be the

beneficiaries to their misfortune — the minority workers

retained on the job. The displacement remedy, then,

exacerbates minority-majority tensions which are already

explosive, especially in the blue collar neighborhoods that

experience industrial slow downs accutely. Put different-

ly, displacements of whites lend credence to the idea that

majority-minority interests are inherently opposed . . .

while insulating the employer, it pits majority against

minority labor interests, stoking the fires of anti-union

sentiment as well as sexism and racism. That the courts

have adopted this as the most viable alternative is in-

excusable; that civil rights and union advocates have per-

mitted themselves to be placed in this alignment is inex-

plicable.”*4

Thus, even if Weber is to be applied on the same terms to

public employers, the City’s racial quota is, per se, unreason-

able since: (1) it was unilaterally implemented by the em-

ployer without negotiations and with no safeguards for the

rights of innocent employees; (2) it replaced a job related

merit system, passing over higher ranked and better qualified

candidates for promotion, solely on grounds of race; (3) it

placed the entire burden of past alleged discrimination upon

innocent employees rather than upon the wrongdoing em-

ployer; and (4) it was adopted without time limit or goal

other than the maintenance of a strict 50-50 racial balance.

Il. THE COURT OF APPEALS ERRED IN DIS-

MISSING PLAINTIFFS’ CLAIM UNDER TITLE

VI OF THE CIVIL RIGHTS ACT OF 1964

The District Court found, prior to this Court’s decision in

Bakke, supra, that the City’s promotional quota violated the

flat prohibition against racial discrimination contained in Title

VI, 42 U.S.C. § 2000d et seq.:

“No person in the United States shall, on the ground of

race, color or national origin, be excluded from participa-

tion in, be denied the benefits of or be subjected to

discrimination under any program or activity receiving

federal financial assistance.”33

34 See Burke and Chase, “Resolving The Seniority-Minority Lay-offs

Conflict: An Employer-Targeted Approach,” 13 Harv. Civ. Rts. - Civ.

Lib. L.Rev. 81, 94, 116 (1978).

35 The record evidence reveals, and the District Court found, that:

(1) the Detroit Police Department, since at least 1973, received sub-

The Sixth Circuit reversed the District Court's finding of

a Title VI violation and dismissed Plaintiffs’ claim under that

statute. (CA 39a). The basis for the Court’s dismissal, was

that: “the validity of the affirmative action plan under Title

VI thus turns on whether it was effected to comply with the

constitutional duty to remedy prior discrimination.” (CA

27a) .%*

The Sixth Circuit's opinion, in this regard, is incongruous:

the Court dismissed the Title VI claim but remanded the claim

under the Fourteenth Amendment. If the Sixth Circuit be-

lieved that Title VI and the Fourteenth Amendment were co-

stantial federal funds from the Law Enforcement Assistance Administra-

tion, the Comprehensive Employment Training Act, and the Equal Em-

ployment Act; (982b-1113b; 2319a.1-2319a.2) and that (2) these funds

were used for the salaries of officers at all levels, including sergeant.

(2319a1-2319a2). These findings were not reversed by the Sixth

Circuit in its October 12, 1979 opinion.

%6 The Sixth Circuit, in its opinion, apparently reads Title VI in pari

materia with the Fourteenth Amendment. Admittedly, in Bakke, it

appeared that at least five justices entertained the belief that Title VI

was co-extensive with the racial discrimination prohibition contained in

the Equal Protection Clause of the Fourteenth Amendment. Regents of

the University of California v. Bakke, 438 U.S. 265 at 289 (1978)

(Opinion of Powell, J.); 438 U.S. at 325 (Opinion of Brennan, White,

Marshall and Blackmun). In Weber, the majority opinion also appeared

to indicate that Title VI was “intended to incorporate and particularize

the commands of the Fifth and Fourteenth Amendments.” 99 S.Ct.

at 2729, n. 6. However, in New York City Board of Education v.

Harris, -— U.S. ——; 48 U.S.L.W. 4035 (Nov. 28, 1979), the Court, in

interpretating the Emergency School Act of 1972, Pub. L. 92-318, 20

U.S.C. § 1601-1619, indicated that: “Thus there is no need here for

the Court to be concerned with the issue of whether Title VI of the

Civil Rights Act of 1964 incorporates the constitutional standard.” 48

U.S.L.W. at 4040. However, the dissenting opinion, written by Justice

Stewart, and signed by Mr. Justice Powell and Mr. Justice Rehnquist, in-

dicated that “Title VI, which prohibits discrimination in federally

funded programs, prohibits only discrimination violative of the Fifth

Amendment and the Equal Protection Clause of the Fourteenth.” 48

U.S.L.W. at 4043. Therefore, there seems to exist at least some doubt

as to whether or not Title VI totally incorporates the standards of the

Equal Protection Clause of the Fourteenth Amendment.

extensive, both the Title VI and the Fourteenth Amendment

claims should have been remanded together. In fact, the

Sixth Circuit failed to properly analyze the City’s racial quota

in light of the express non-discrimination provision contained

in 42 U.S.C. § 2000d et seq.

A. The Sixth Circuit’s View Of The Title VI Claim

Is Contrary To The Majority View in Bakke.

The application of Title VI to a racial quota denying whites

equal opportunity was considered by this Court in Regents of

the University of California v. Bakke, 438 U.S. 265 (1978).

In that case, the University of California Medical School had

a regular admissions program and a special admissions pro-

gram. Under the regular admissions program, candidates

were given a composite score which included college grade

point, grade point in science courses, scores on the MCAT

test, letters of recommendation, activities and biographical

data. 438 U.S. at 274. A grade cut-off score of 2.5% was also

applied. Id. The special admissions program considered

special candidates who could not meet the 2.5 cut-off score.

The preferential admissions program admitted eight minority

applicants out of the 50 student class in 1973 and 1974. 438

U.S. at 275. The minority applicants were admitted with

grade point averages, MCAT scores and benchmark scores

significanctly lower than Bakke’s. 438 U.S. at 277.

An opinion authored by Justice Stevens and signed by

Justices Rehnquist and Stewart, and Chief Justice Burger,

specifically held that the preferential admissions policy de-

prived Bakke of his rights under Title VI. After reviewing the

legislative history of Title VI, Justice Stevens concluded that

Congress’ “answer to the problem of federal funding of segre-

gated facilities stands as a broad prohibition against the ex-

clusion of any individual from a federally funded program

‘on the ground of race’.” 438 U.S. at 413.

Justice Stevens then indicated that Title VI emphasizes in-

dividual rights rather than class-based rights:

“[T]itle VI . . . express[es] Congress’ belief that, in the

long struggle to eliminate social prejudice and the effects

of prejudice, the principle of individual equality, without

regard to race or religion, was one on which there could

be a ‘meeting of the minds’ among all races and a com-

mon national purpose . . . . this same principal of in-

dividual fairness is embodied in Title VI.” 438 U‘S. at

416-17, n.19 (citations omitted).

Justice Stevens concluded that the preferential admissions

policy violated the racial prohibition contained in 42 U.S.C.

§ 2000d:

“In short, nothing in the legislative history justifies the

conclusion that the broad language of § 601 should not

be given its natural meaning.

oO ° oO

“In unmistakable terms the Act prohibits the exclusion

of individuals from federally funded programs because

of their race. As succinctly phrased during the Senate

Debate under Title VI it is not ‘permissible to say “yes”

to one person, but to say “no” to another person, only

because of the color of his skin.” 438 U.S. at 418.

In a separate opinion, Justice Powell stated that “Title VI

must be held to proscribe only those racial classifications that

would violate the Equal Protection Clause of the Fifth

Amendment.” 438 U.S. at 287. Justice Powell then pro-

ceeded to hold that the preferential admissions program, as

presently constituted, violated the Equal Protection Clause

and, thereby, Title VI. 438 U.S. at 319-20.

Contrary to the decision of the Sixth Circuit on October

12, 1979, five members of this Court have specifically held that

Title VI prohibits the denial of an equal opportunity to a

white person by a federally funded enterprise solely because

of race.

The City’s racial quota, which reserved 50% of all promo-

tions to black officers, solely because of their race, is far more

’

invidious than the quota struck down in Bakke. F irst, Bakke

dealt with one applicant seeking entry to a medical school.

In this case, the City’s racial quota has deprived 112 readily

identified white officers of timely promotions to the rank of

sergeant.

The District Court found that these higher ranking officers

were better qualified to perform at the rank of sergeant.

(CA 7-8a). The Sixth Circuit did not disturb that finding.

The years in service, the competition of a job-related promo-

tional examination and the justified expectation of an equal

promotional opportunity pursuant to a merit system mandated

by City Charter establishes a deprivation of rights far greater

than that involved in Bakke. Yet as in Bakke, the racial

quota was not designed, intended or enacted to redress in-

dividual acts of discrimination against any specific minority

candidates. As in Bakke, the effect of the racial quota is to

isolate white police officers from competition with their fellow

black officers for at least 50% of the promotional vacancies.

Bakke stands as clear precedent for the district court's

ruling that the City’s racial quota violates Title VI: the Sixth

Circuit’s decision stands in flat contravention of Bakke.37

B. The Sixth Circuit Interpretation Of Title VI Is

Contrary To The Fourth Circuit’s Opinion In

Uzzell v. Friday.

The Fourth Circuit recently had an occasion to interpret

Bakke in Uzzell v. Friday, 401 F.Supp. 775 (M.D.N.C. 1975),

Rev'd, 547 F.2d 801 (4th Cir. 1977), affd en banc, 558 F.2d

727 (4th Cir. 1977), vac. and rem., 438 U.S. 912 (1978),

opinion on remand, 591 F.2d 997 (4th Cir. 1979). Uzzell

involved the legality under Title VI and the Fourteenth

Amendment of regulations of the University of North Carolina

37 That conclusion finds extensive support in the legislative history

surrounding the congressional debates in enacting Title VI. See Bakke,

438 U.S. at 414-18.

which required that (1) two representatives of minority race

be on the student senate; and (2) that four of the seven

judges of a University Honor Court be of the same race

as the accused. The District Court dismissed the case under

Title VI and the Fourteenth Amendment, for failure to state

a claim. 410 F.Supp. at 779-782.

The Fourth Circuit not only reversed the dismissal but

granted summary judgment in favor of the Plaintiff. 547 F.2d

at 805. The ruling of the Fourth Circuit was affirmed, en

banc, 558 F.2d at 727. In light of this Court’s decision in

Bakke, supra, this Court remanded the case to the Fourth

Circuit. 438 U.S. 912 (1978).

Upon remand, the Fourth Circuit affirmed its prior finding

that the University’s regulations, based solely on race, violated

Title VI:

“Bakke, we recognize, unequivocally announces that in

State educational institutions race may be a consideration

in fixing the rights of students but at no stage did the

Court affirm that race could be the sole determinant

in any such adjustment. 438 U.S. 265, 98 S. Ct. 2733.

As Mr. Justice Powell put it for the majority:

‘When a classification denies an individual oppor-

tunities or benefits enjoyed by others solely because

of his race or ethnic background, it must be regarded

as suspect. (Emphasis added).’” 591 F.2d at 998.

The Fourth Circuit held that the University’s reliance solely

on racial criteria violated Title VI, as well as the Fourteenth

Amendment:

“The permeating defect in the organization of CGC, the

governing council, is the imposition of an artificial racial

structure upon this selective body that bars nonminority

students from eligibility for appointment to the Council.

This resort to race affronts Bakke. Although the regula-

tion in question seeks to provide ‘protective representa-

tion’, its effect is to establish a racial classification, as

it relates exclusively on race to preclude non-minority

students from enjoying opportunities and benefits avail-

able to others.” 591 F.2d at 998.

The Fourth Circuit reasoned that, even under Bakke, evi-

dence of past discrimination would not justify the university’s

policy of racial preference:

“There is no justification for appellees’ insistence that the

cause be remanded to the District Court to take addi-

tional evidence that, they assert, reflects prior discrimina-

iton at the University, or depicts the regulations as an

effort by the University to develop a ‘diverse student

body’ or to achieve other related aims. Bakke suggests

that racial preferences may be approved upon the finding

of a continuing Constitutional or statutory violation, as

long as others are not prejudiced by the remedial course

adopted. 438 U.S. 265, 98 S.Ct. 2733. The method here

chosen for eradicating possible earlier discrimination

could not be accepted, even if history revealed such

conduct, because, as we have seen, the supposedly reme-

dial measures presently enforced impinge upon the rights

of others.” 591 F.2d at 999-1000. (Emphasis added ).

As in Uzzell, the City’s racial quota makes race the sole

determinant factor for at least 50% of promotions to the rank

of sergeant. The quota precludes white officers from com-

peting for 50% of any promotions to the position of sergeant.

On the other hand, no limitation has been placed upon black

candidates.2® The City’s quota creates an artificial racial

structure which reserves a precise number of promotional posi-

tions to black officers. As in Uzzell, race is the determining

38 Indeed, Commissioner Avern Cohn, when asked what would have

occurred if the first 100 officers for promotion had been black, stated

that: “the likelihood of dipping down under those circumstances prob-

ably would not have been necessary because the objects of the Af-

firmative Action Program was to increase the number of black police

officers to a reasonable percentage. There would have been no need

to dip.” (2472a; 2473a).

factor. The result is an obvious violation of Title VI, as well

as the Fourteenth Amendment.

Even if the City had established past discrimination

against blacks, as in Uzzell the “remedial measures presently

enforced impinge upon the rights of others”, 591 F.2d at 1000,

specifically 112 white employees who have been denied timely

promotion to the rank of sergeant since July 1974.

Plaintiffs’ view of Title VI is further reinforced by other

limitations on the use of federal funds provided by the

LEAA.*® 42 U.S.C. § 3766(b) and (c) provide:

“(b) Notwithstanding any other provisions of law noth-

ing contained in this Chapter shall be construed to au-

thorize the Administration (1) to require, or condition

the availability or amount of a grant upon, the adoption

by an applicant or a grantee under this Chapter of a

percentage ratio, quota system, or other program to

achieve racial balance or to eliminate racial imbalance

in any law enforcement agency, or (2) to deny or dis-

continue a grant because of the refusal of an applicant

or grantee under this Title to adopt such a ratio, system,

or other program.

“(c) (1) No person in any State shall on the ground

of race, color, national origin or sex be excluded from

participation in, be denied the benefits of, or be sub-

jected to discrimination under any program or activity

funded in whole or in part with funds made available

under this Chapter.” (Emphasis added). 42 U.S.C.

§ 3766(b) and (c)(1)#

39 That agency is authorized to distribute funds under the Omnibus

Crime Control and Safe Street Acts, P.L. 90-351, Title I, §519 (June

19, 1968), 42 U.S.C. § 3766, 82 Stat. 208; as amended P.L. 94-503,

90 Stat. 2422 (October 15, 1976).

40 The prohibitions in 42 U.S.C. § 3766(b) and (c)(1) have been

incorporated in federal regulations, adopted on February 16, 1977,

regarding the distribution of LEAA funds. See 42 Fed. Reg. 9492, 28

CFR § 42.203.

The LEAA regulations, as well as its enabling statutory

provisions, re-enforce the finding in Bakke that Title VI was

intended to prohibit discrimination against all individuals, re-

gardless of race or color. In upholding the quota, the Sixth

Circuit clearly ignored the mandates of the LEAA and Bakke.

A comparison of the Sixth Circuit’s October 12, 1979 de-

cision and the February 2, 1979 decision of the Fourth Cir-

cuit in Uzzell reveals a clear conflict among the circuits as to

the interpretation of Bakke. The Sixth Circuit’s improper

interpretation of Bakke and its conflict with the Fourth Cir-

cuit mandates review by this Court.

It, THE COURT OF APPEALS ERRED IN REVERS-

ING THE DISTRICT COURT'S FINDING

THAT THE RACIAL QUOTA VIOLATED THE

FOURTEENTH AMENDMENT

A. A Majority Of The Court Has Not Ruled Upon

The Constitutionality of Racial Quotas In The

Public Sector.

At issue in this case is the constitutionality of a continuing

racial quota, unilaterally enacted by a governmental body,

which operates against a readily identified group of white em-

ployees solely because of race.4"

“1 Obviously, in the event that the Court decides that Plaintiffs’

statutory rights under either 42 U.S.C. § 1981, 2000d or 2000e have

been violated, it would not be necessary to address the equal protection

issue since: “The Court will not pass upon a constitutional question

. . . if there is also present some other ground upon which the case

may be disposed of.” See Ashwander v. TVA, 297 U.S. 288, 347

(1936) (Concurring opinion of Brandies, J.); New York City Transit

Authority v. Beazer, 440 U.S. 568 ( 1979); Spector Motor Co. v.

McLaughlin, 323 U.S. 101, 105 (1944); Massachusetts v. Westcott,

431 U.S. 322, 323 (1976); Regents of the University of California v.

Bakke, 438 U.S. 265, 411 (1978) (Opinion of Stevens, J.).

The Fourteenth Amendment provides, in pertinent part,

that: “No state shall . . . deny to any person within its juris-

diction the equal protection of the laws.” U.S. Const. Amend.

XIV § 2.

The constitutionality of racial quotas adopted in the name

of “affirmative action”, is an issue that has so far evaded

a majority decision of the Court, despite several opportuni-

ties. The issue was first presented to this Court in Defunis

v. Odegaard, 416 U.S. 312 (1974), which involved a racial

quota employed by the University of Washington’s law school.

The quota operated to exclude a white applicant solely be-

cause of his race. Although a majority of the Court dismissed

the matter as moot, 416 U.S. at 319-320, Justice Brennan, in

an opinion signed by Justices Douglas, White and Marshall,

noted that: “few constitutional questions in recent history

have stirred as much debate, and they will not disappear.

They must inevitably return to the federal courts and ulti-

mately again to this Court.” 416 U.S. at 350.

The constitutionality of a racial quota next confronted the

Court in Regents of the University of California v. Bakke,

supra. Four justices, in an opinion authored by Justice Bren-

nan, and signed by Justices White, Marshall and Blackmun,

found that the racial quota, which denied the plaintiff ad-

mission to medical school based upon his race, complied with

the Equal Protection Clause. 438 U.S. at 325-26. Justice Pow-

ell, on the other hand, reached the constitutional issue but

applied a different standard than that enunciated by Jus-

tice Brennan, noting that he “disagreed with much that is

said in their opinion.” 438 U.S. at 296, n.36. The remaining

four Justices, in an opinion authored by Justice Stevens, found

that since the racial quota violated Title VI of the Civil Rights

Act of 1964, there was no need to address the Equal Protec-

tion claim. See 438 U.S. at 411-12. Bakke, therefore, produced

two separate constitutional standards: one standard endorsed

by four Justices and one standard endorsed by Justice Powell.

The constitutionality, under the Fifth Amendment, of the

10% minority set aside provision of the Local Public Works

Capital Development and Investment Act of 1976, P. L. No.

94-369, 90 Stat. 999-1012, 42 U.S.C. § 6701-6735, is presently

before this Court in Fullilove v. Kreps, 584 F.2d 600 (2d Cir.

1978), cert. granted, 99 S.Ct. 2403 (May 21, 1979).

The absence of any definitive ruling upon the constitution-

ality of race-conscious quotas led the Sixth Circuit to commit

significant errors in reviewing Plaintiffs’ Fourteenth Amend-

ment claims.

B. The Constitutional Standard Adopted By The

Sixth Circuit.

The Sixth Circuit initially noted that it had “no clear

authority in dealing with the constitutional issues,” (CA

32a), but subsequently concluded “that the opinion of Jus-

tices Brennan, White, Marshall and Blackmun in. . . Bakke,

supra, 438 U.S. at 324, offers the most reasonable guidance.”

(CA 32a). Based upon the plurality opinion, the Sixth Circuit

“conclude[d] that the District Court committed a number of

errors of law.” (CA 32a).

According to the Sixth Circuit, it was “error to require

proof that the persons receiving the preferential treatment had

been individually subjected to discrimination, for ‘it is enough

that each recipient is within a general class of persons likely

to have been the victims of discrimination.” (CA 32a). The

Sixth Circuit further found that “the District Court should

have determined first whether appropriate findings were made

by a public body ‘with competence to act in this area’” and

“it was ... error to require that there be a judicial deter-

mination of past discrimination for a state to undertake a race-

conscious remedy. . . .” (CA 33a). Finally, the Sixth Circuit

noted that: “As the Four Justices wrote in Bakke . . . a more

precise meaning of ‘strict scrutiny’ is required when consid-

ering state action taken for the purpose of remedying past

discrimination. 438 U.S. at 357.” (CA 33a).

These interpretations by the Sixth Circuit led that Court

to enunciate the following “constitutional standard” in judg-

ing so-called “benign” racial quotas:

“When claims are brought by members of a group former-

ly subjected to discrimination the case moves with the

grain of the constitution and national policy. A suit which

seeks to prevent public action designed to alleviate the

effects of past discrimination moves against the grain, and

the official actions complained of must be subjected to

the analysis prescribed in Weber and the plurality opin-

ion in Bakke which we find controlling.” (CA 39a).

The Sixth Circuit has effectively abandoned the standard

of “strict scrutiny” for the constitutional review of racial

classifications. In reaching this conclusion, the Sixth Cir-

cuit adopted an unprecedented constitutional standard, never

embraced by a majority of this Court. Moreover, whether the

“strict scrutiny” standard of Justice Powell or the “strict and

searching” standard of Justice Brennan is applied, the City

failed to provide either a “compelling state interest” or to

show that the racial quota “serve[s] important governmental

objectives” and is “substantially related to achievement of

both objectives.”

The strict scrutiny that this Court has applied to racial

classifications, regardless of motivation, was recently reaffirmed

in Personnel Adm’n of Massachusetts v. Feeney, 99 S.Ct. 2282,

2292 (1979):

“Certain classifications, however, in themselves supply a

reason to infer antipathy. Race is the paradigm. A racial

classification, regardless of purported motivation, is pre-

sumptively invalid and can be upheld only upon an ex-

traordinary justification. Brown v. Board of Education,

347 U.S. 483; McLaughlin v. Florida, 379 U.S. 184.”

The claim of government officials of a benign, compensa-

tory purpose does not excuse a racial classification from the

most exacting judicial examination. Regents of the University

of California v. Bakke, supra, 438 U.S. at 290-91; (Op. of

Powell, J.); 438 U.S. at 355-62; (Op. of Brennan, Blackmun,

White, Marshall, J.); Id., 438 U.S. at 405, (Op. of Blackmun,

J.); see also, Califano v. Webster, 430 U.S. 313, 317 (1977).

In Bakke, Justice Powell found that a classification based

upon race, whether invidious or benign, still was rendered

suspect:

“Because of that foreclosure, some individuals are ex-

cluded from enjoyment of state-provided benefit — ad-

mission to the medical school — they otherwise would

receive. When a classification denies an individual oppor-

tunities or benefits enjoyed by others solely because of

his race or ethnic background, it must be regarded as

suspect.” 438 U.S. at 305.

Justice Brennan noted that “racial classifications designed

to further remedial purposes ‘must serve important govern-

mental objectives and must be substantially related to achieve-

ment of these objectives.’” 438 U.S. at 359. Justice Brennan

also set forth the following “middle tier of scrutiny” standard

that was accepted y the Sixth Circuit:

“Instead, to justify such a classification important and

articulated purposes for its use must be shown. In ad-

dition, any statute must be stricken that stigmatizes any

group or that singles out those least well represented

in the political process to bear the brunt of a benign

program. Thus our review under the Fourteenth Amend-

ment should be strict — not ‘strict in theory and fatal in

fact,’ because it is stigma that causes fatality — but

strict and searching nonetheless.” 438 U.S. at 361-62.42

(Emphasis added).

42 The middle tier of scrutiny for purportedly benign racial classifica-

tions has not been endorsed by a majority of the Court. It has not

even been endorsed for the constitutional review of gender-based class-

ifications, where it first appeared. The middle tier of scrutiny was

articulated by Justice Brennan in his Opinion for the Court in Craig v.

Boren, 429 U.S. 190 (1976), but at least five Justices wrote concurring

The traditional “strict scrutiny standard” is clearly applicable

in this case, but even under the standards of Justice Brennan,

the City’s racial quota fails to comply with the Fourteenth

Amendment. The City has simply failed to establish “an

important and articulated purpose” for the use of its racial

quota.

Further, the white Plaintiffs stand among “those least well

represented in the political process to bear the brunt of a be-

nign program.” 438 U.S. at 361. In Detroit, the policies of

the Police Department are dictated, in large part, by the

incumbent black Mayor, Coleman A. Young, and the in-

cumbent black Police Chief, William Hart. Appointments to

the Board of Police Commissioners, have been made at the

sole discretion of Mayor Young. The Plaintiffs’ union was

totally excluded from participating in the decision to imple-

ment the quota. The individual Plaintiffs, locked out of the

decision-making process, were required “to bear the brunt of

[the] benign program.”43 Unlike Bakke, this case does not

involve the majority imposing a benign program to the detri-

ment of the majority.

The opinions of Justices Powell and Brennan in Bakke

and dissenting opinions either questioning or opposing a “middle tier”

of scruntiny for the Equal Protection Clause, Craig v. Boren, supra, at

210 (Op. of Powell, J.); Id., at 211-212 (Op. of Stevens, J.); Id., at

220 (Op. of Rehnquist, J.); Id., at 215, 217 (Op. of Burger, J.); and

Id., at 215 (Op. of Stewart, J.). Justice Blackmun did not join the

plurality opinion with regard to the conclusion that the statute was

a gender-based denial of equal protection. Craig, supra, at 214.

Justice Blackmun also joined in the dissent of Justice Rehnquist in

Califano v. Goldfarb, 430 U.S. 189 (1977), which held, inter alia,

that the gender-based classification was rationally justifiable. The

Court’s recent decision in Personnel Adm’r of Massachusetts v. Feeney,

99 S.Ct. 2282 (1979), appears to reject the “middle tier” theory of

constitutional scrutiny since it approved the “national basis standard”

to a claim of gender based discrimination.

43 Justice Blackmun, in his concurring opinion in Bakke, noted that:

“I, of course, accept the proposition that . . . racial and ethnic dis-

tinctions where they are stereotypes are inherently suspect and call for

exacting judicial scrutiny.” 438 U.S. at 404-05.

offer two separate standards for reviewing alleged “benign”

racial quotas. The Sixth Circuit, in the instant case, opted

in favor of Justice Brennan’s less exacting standard of judicial

review.

On the other hand, the Fourth Circuit, en banc, in Uzzell

v. Friday, 591 F.2d 997 (4th Cir. 1979), recently adopted the

“strict scrutiny standard” of Justice Powell.

Given the absence of adequate standards governing con-

stitutional review of racial quotas, and, given the conflict

among the circuits, it is imperative that this Court finally de-

cide the constitutionality of racial quotas which deprive a

readily identifiable class of white workers employment op-

portunities because of race.

C. Classifications Based Upon Race Are Constitu-

tionally Suspect And Must Be Subject To The

Most Rigid Judicial Scrutiny.

The decisions of this Court concerning racial classifications

from Sipuel v. Board of Regents, 332 U.S. 631 (1948), and

Sweatt v. Painter, 339 U.S. 629 (1950), reh. den., 340 USS.

846 (1950), through Bakke, supra, have one common predi-

cate: a purposeful racial classification is inherently suspect

and violative of the Fourteenth Amendment unless necessary

to promote a substantial or compelling state interest.

A majority has never deviated from the rule set forth in

McLaughlin v. Florida, 379 U.S. 184 (1964):

“But we deal here with a classification based upon the

race of the participants, which must be viewed in light

of the historical fact that the central purpose of the

Fourteenth Amendment was to eliminate the racial dis-

crimination eminating from official sources in the States.

This strong policy renders racial classifications ‘constitu-

tionally suspect’. Bowling v. Sharpe, 347 U.S. 497, 499, 98

L.Ed. 884, 886, 74 S.Ct. 693, and subject to the ‘most

rigid scrutiny.’ Korematsu v. United States, 323 U.S. 214,

216, 89 L.Ed. 194, 198, 65 S.Ct. 193.” 379 U.S. at 191-

192.44

In Uzzell v. Friday, supra, the Fourth Circuit agreed that

racial classifications, which operate to the detriment of white

students, “‘must be regarded as suspect.’” 591 F.2d at 998.

The Fourth Circuit, in adopting the standards set forth by

Justice Powell in Bakke, indicated that:

“In order to justify the use of a suspect classification, a

State must show that its purpose or interest is both con-

stitutionally permissible and substantial, and that its use of

the classification is “necessary . . . . to the accomplish-

ment” of its purpose or the safeguarding of its interest.’ ”

591 F.2d at 999.

Uzzell demonstrates a clear and complete conflict between

the Fourth Circuit and the Sixth Circuit on the constitutional

standards to be employed in determining whether or not

a racial quota violates the Equal Protection Clause.

The Sixth Circuit, without precedent, has deviated from

well-established law that racial classifications must bear the

strictest scrutiny. This Court must review and reverse that

error.

44 It has been more than three decades since any decision of this

Court has upheld under the constitution a racial classification which

resulted in a detriment solely on the basis of race: Korematsu v.

United States, 323 U.S. 214 (1944), and Hirabayashi v. United States,

320 U.S. 81 (1943), both of which were war-time cases involving

curfew and relocations imposed upon Japanese-Americans. These

cases have suffered severe criticism subsequent to their decision. E.G.,

(ies The Japanese-American Cases — A Disaster, 54 Yale L.J. 489

(1945).

D. The City Has Not Justified Its Racial Classifica-

tion By Showing A Compelling State Interest.

To justify an inherently suspect racial classification, the

State must establish that its purpose or interest is both con-

stitutionally permissible and substantial, and that its use of

the classification is “necessary ... to the accomplishment

of its purpose or the safeguarding of its interest.” In re

Griffiths, 413 U.S. 717, 722-723 (1973); Loving v. Virginia,

388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184,

196 (1964); Bakke, supra, 438 U.S. at 305. (Op. of Powell, J.).

Additionally, the State must show that no less restrictive

alternative is available to accomplish the alleged compelling

State interest. See San Antonio Independent School Dist. v.

Rodriguez, 411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405

U.S. 330 (1972).

The City has attempted to satisfy these rigid constitu-

tional standards on primarily two grounds: (1) the need

for a general remedy for past discrimination against blacks

in the Detroit Police Department; (2) the goal of achieving

a racial balance of supervisory personnel roughly reflective

of the general population of Detroit, in order to satisfy cer-

tain “operational needs”.

The District Court found that these grounds did not

justify the type of “remedy” used and were not supported

by the record. The Sixth Circuit in accepting both argu-

ments, misapplied the law by (1) failing to identify any

prior discrimination in promotion; (2) usurping the District

Court’s role of determining the appropriate labor market;

and (3) considering in a promotional case, isolated instances

of alleged racial discrimination in job assignments and the

purported adverse impact of an entry level examination.

(1) There Was No Evidence Or Finding Of Prior

Promotional Discrimination.

The Sixth Circuit found that the “District Court erred in

treating evidence of disparate impact of hiring and promotion

practices as having no probative value.” (CA 30a). The only

reference in the Sixth Circuit Opinion, to any disparate im-

pact, relates to the promotional examinations given in 1973,

1974 and 1976 (a legal irrelevancy).

The record is devoid of any evidence relative to promo-

tions to the rank of sergeant prior to 1973. The City failed

to offer any evidence to show: (1) the number of blacks pro-

moted to sergeant during that period; (2) that any black of-

ficer was ever denied a promotion; (3) the number of black

sergeants through the years 1940 to 1963; (4) the number

of blacks applying for promotion for the years 1940 to 1973;

(5) the racial composition of promotions made from 1940

to 1973; (6) the number of qualified blacks who applied for

promotion prior to 1973; (7) the effect upon any racial group

of promotional models used for the period from 1940 to

1973. The failure of the City to offer the exam results or

any other statistics relative to promotions prior to 1973, pre-

cluded a finding of discrimination in promotions prior to

that date. Further, there is no legal support for a finding of

promotional discrimination from 1973 to the present.

Regarding promotions after 1973, the Sixth Circuit noted

that: “Considering the other elements of the ‘promotional

model’ the District Court found that none was shown to have

any disparate impact. . . .” (CA 6a). The Sixth Circuit fur-

ther noted that “the Court found that all of these written

examinations for promotion to sergeant were job-related and

content valid” (CA 8a) and that “past promotional practices

were also found not to be discriminatory either in the compo-

sition of the promotional models or their application.” (CA

8a). (Emphasis added). The Sixth Circuit specifically af-

firmed these findings by stating that “job related non-dis-

criminatory exams for sergeant were instituted in 1973... .”

(CA 38a).

The only reference to evidence of discrimination in the

area of promotions by the Sixth Circuit was in the form of

statistics purporting to show an adverse impact:

“The witness [Commander Caretti] stated that despite all

efforts to eliminate bias the written promotional exams

retained an adverse impact on black candidates. The ex-

amination for promotion to sergeant which was given in

December, 1973, produced a 72% failure rate among black

candidates and a 57% failure rate among white candi-

dates. For the November, 1974, examination the black

failure rate was 61%; that of the white candidates was

47%. The May, 1976, failure rate was 58% for black and

47% for white candidates.” (CA 5a).45

In light of the unreversed District Court finding that the

promotional process was job related, content valid and non-

discriminatory and the unreversed finding that “there was

no suitable alternative to the written examination which would

have less adverse racial impact,” (DC 99la), any disparate

impact would be legally irrelevant. A finding of disparate

impact on the 1973 or 1974 examination would not justify a

finding of promotional discrimination. It would merely trigger

the standard of proof set forth by this Court in Albemarle

Paper Corp. v. Moody, 422 U.S. 405 ( 1975), for cases where

a plaintiff proves a prima facie case through the use of sta-

tistics.

45 The Uniform Guidelines on Employee Selection Procedures, 29

CFR §60-3.4(b) provide that a disparate impact will generally not

exist if the rate of the minority candidates is at least 80% of the rate

of the majority candidate. In the instant case, it is clear that, for the

May, 1976, examination, black candidates for promotion had in excess

of 80% of the rate of passage for white candidates. Therefore, the

Sixth Circuit exhibited an obvious misunderstanding of the applicable

law in finding any disparate impact on the May, 1976, examination.

“If an employer does then meet the burden of proving

that its tests are “job-related,” it remains open to the com-

plaining party to show that other tests or selection de-

vices without a similarly undesirable racial effect, would

also serve the employer’s legitimate interests in ‘efficient

and trustworthy workmanship.’ Id., at 801.” (Emphasis

added). 422 U.S. at 425.

(2) The Scope Of The Remedy Allowed By The

Sixth Circuit Improperly Exceeds The Ex-

tent Of Any Unlawful Violations.

Since the alleged specific discrimination identified by the

Sixth Circuit occurred at the entry level and in job assign-

ments, there is no justification for the Sixth Circuit’s sanction

of a remedy related to promotions. Such an approach violates

the settled rule that the nature of the violation determines

the scope of the remedy. See Dayton Board of Education v.

Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 418 U.S.

717 (1974); Swann v. Charlotte-Mecklenburg Board of Edu-

cation, 402 U.S. 1, 16 (1971).

As Justice Powell noted in Bakke, this Court has “never

approved preferential classifications in the absence of proven

constitutional or statutory violations” and “the scope of the

remedies was not permitted to exceed the extent of the viola-

tions.” 438 U.S. at 300-302. (Op. of Powell, J.). Conceding,

arguendo, discrimination at the entry level or in job assign-

ments, there can be no lawful racial quota for promotions

absent proof of promotional discrimination.

The Sixth Circuit also found that “it was error to require

proof that the persons receiving the preferential treatment

had been invidiously subjected to discrimination.” (Slip op.

at p. 32). In Bakke, Justice Powell noted that the Court

has “never approved a classification that aids persons per-

ceived as members of relatively victimized groups at the

expense of other innocent individuals in the absence of ju-

dicial, legislative, or administrative findings of constitutional

or statutory violations.” 438 U.S. at 307. (Op. of Powell, J.).

The state’s failure in Bakke to recognize the personal and

individual nature of the right guaranteed by the Fourteenth

Amendment was fatal to its affirmative action program:

“The fatal flaw in petitioners’ preferential program is its

disregard of individual rights as guaranteed by the Four-

teenth Amendment. Shelly v. Kraemer, 334 U.S. 1, 22, 68

S.Ct. 836, 846, 92 L.Ed. 2d 1161 (1948).” 438 U.S. at 320.

(Op. of Powell, J.).

See also Uzzell v. Friday, supra, 591 F.2d at 1000.

One fatal flaw in the City’s plan is its total disregard for

the individual rights of the Plaintiffs in favor of the rights of

an amorphous class never shown to be the victims of dis-

crimination in promotion, hiring or job assignment. The

deprivation of individual rights is even more severe in light

of the District Court’s unreversed finding that “the higher

a candidate stood on the eligibility register the better qualified

and equipped he was to assume the position of Sergeant.”

(CA 7a). While “the Davis program [did] not simply advance

less qualified applicants . . .”, 438 U.S. at 375, (Op. of Bren-

nan, White, Blackmun, Marshall, J.J.), the City’s racial quota

did result in the promotion of less qualified applicants to the

rank of sergeant.

No past constitutional violation with regard to the pro-

motion of blacks has been proven. Evidence of past dis-

crimination in hiring or job assignment, therefore cannot ex-

cuse a promotional quota.

(3) The Court Of Appeals Improperly Disre-

garded The District Court’s Finding As To

The Relevant Labor Market.

At trial, the City attempted to make a prima facie case of

unconstitutional discrimination against blacks through a statis-

tical comparison of the entry level work force to the general

population of the City of Detroit. The Plaintiffs, deprived

of any applicant data,** presented unrefuted evidence that up

until August 1, 1974, the City recruited and hired applicants

throughout the Detroit Standard Metropolitan Statistical Area

(SMSA). The City never offered any labor force data relative

to the City of Detroit. Further, the City introduced no

evidence to establish what, in their opinion, constituted the

relevant labor market.

The Sixth Court first noted that “Statistical evidence of

racially disparate impact of employment practices alone may

establish a statutory violation” and “may also demonstrate a

constitutional violation.” (CA 17a).47 The Sixth Circuit

46 On May 19, 1977, prior to trial, the District Court entered an

order compelling the City to provide Plaintiffs with all information and

statistics relative to the number of applications received from residents

within and without the City of Detroit during the past ten years. On

August 15, 1977, after the commencement of trial, counsel for the City

denied that information because “the relevancy is so tenuous”. (100la.-

7-100la.8). Given the City’s refusal to provide the Plaintiffs with

applicant flow data, it would seem that the City has “little to complain

about insofar as the make up of the applicant pool is concerned since

they refused on grounds of irrelevancy to allow discovery ....” New

York City Transit Authority v. Beazer, 99 S.Ct. 1355, 1373 (1979) (Op.

of White and Marshall, J.J.).

47 In Teamsters, supra, 431 U.S. at 340, n.20, the Court noted that,

in the context of a Plaintiffs case, statistical evidence was allowed

to make a prima facie case of discrimination since: “In many cases the

only available avenue of proof is the use of racial statistics to uncover

a covert discrimination by the employer union involved.” This rationale

should not justify the City’s reliance on statistics to prove past dis-

crimination since the City, and not the Plaintiffs, was in full control

of any relevant evidence of past discrimination against minorities. In

Teamsters, the Court further accepted the settled principle that “pre-

noted that “[t]he selection of the SMSA labor market as the

sole benchmark was not warranted . . . in view of the adop-

tion of a City-residency requirement during the ‘period in

question’” (CA 20a). But the City’s own Exhibits estab-

lished that for the period from (at the latest) 1954 to August

1, 1974, the only pre-employment residence requirement was

that the applicant be a resident of the State of Michi-

gan for one year preceding application. ( 1239a). Only af-

ter August 1, 1974, did an applicant have to be a resident

of Detroit for sixty days prior to the date of application.

(1239b). Since the Sixth Circuit found that discrimination

at the entry level ended in 1973, and since the racial quota

was adopted in July of 1974, during the relevant “period

in question” there was no pre-employment residence require-

ment for the City of Detroit. This is one more significant

factual error by the Sixth Circuit.

The Sixth Circuit also committed a significant legal error

on the same issue. In reversing the finding of the District

Court that the Detroit SMSA was the “relevant labor market”,

the Sixth Circuit relied upon prior decisions that had ap-

proved “the use of City population . . . in cases involving

public agencies which provide services city-wide.” (CA 20a).

The decisions cited by the Sixth Circuit,4* however, were

decided prior to the Court’s decision in International Brother-

sumptions shifting the burden of proof are often created to reflect

judicial evaluations of probabilities and to conform with the party’s

Superior access to the proof” and represents a judicial acknowledgment

that “the employer was in the best position to show why any individual

employee was denied an employment opportunity.” 431 U.S. at 359,

n.45. In this case, the City clearly had better access to the type of

proof that could prove or disprove its claim of past discrimination.

48 Afro-American Patrolmen’s League v. Duck, 503 F.2d 294 (6th

Cir. 1974); Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017,

1021 n.6 (1st Cir. 1974), cert. den., 421 U.S. 910 (1975); Vulcan

Society of N.Y.C. Fire Dept. v. Civil Service Commission, 490 F.2d

387 (2d Cir. 1973); Erie Human Relations Commission v. Tullio, 493

F.2d 371 (3rd Cir. 1974).

hood of Teamsters v. United States, 431 U.S. 324 (1977), and

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

(1977). In Teamsters, this Court “caution[ed] only that statis-

tics are not irrefutable; they come in infinite variety and,

like any other kind of evidence, they may be refuted.” 431

U.S. at 340. The Court further indicated that “evidence

showing that th

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