Petition — Fitzpatrick v. Kirkland

Supreme Court, U.S.

FILED

X66 17 1980

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1980.

DENNIS FITZPATRICK, ez al.,

Petitioners,

Vv.

EDWARD L. KIRKLAND, et? al.,

Respondents.

PETITION FOR A Writ OF CERTIORARI TO THE UNITED STATES

Court or APPEALS FOR THE SECOND CIRcvIT.

PETITION FOR A WRIT OF CERTIORARI.

RicHarp R. Row.ey

Attorney for Petitioners

90 State Street

Albany, N. Y. 12207

(518) 434-6187

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980.

*

DENNIS FITZPATRICK, et ai.,

Petitioners,

v.

EDWARD L. KIRKLAND, et ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIR-

CUIT.

PETITION FOR A WRIT OF CERTIORARI.

Question Presented.

Whether in a case involving no Title VII claims and no

proof of either prior egregious racial discrimination or a

compelling state interest, a state may, on solely racial

grounds, add a bonus to the scores of minority candidates

on a criterion valid civil service promotion examination,

bump non-minority candidates who have passed the test

from their earned position on the promotion list, deny

them promotion and through use of the racial bonus, pro-

mote instead minority candidates who received lower

scores.

ii.

Parties.

Petitioners include, in addition to those named in the

caption the following: Frank McDonnell, Bruce Farrell,

Thomas Farron, Vincent DiGiorgio, Robert Vercile Rose,

Raymond E. Friss and Bruce Meservey.

Respondents include, in addition to those named in the

caption the following: Nathaniel Hayes individually and

on behalf of all others similarly situated; The New York

State Department of Correctional Services; Russell

Oswald, individually and in his capacity as Commissioner

of the New York State Department of Correctional Serv-

ices; The New York State Civil Service Commission; Ersa

Poston, individually and in her capacity as President of

the New York State Civil Service Commission and Civil

Service Commissioner; Michael N. Scelsi and Charles F.

Stockmeister, each individually and in his capacity as Civil

Service Commissioner.

The involvement of the original Intervenors, Albert M.

Ribiero and Henry L. Coons has been rendered moot.

iii.

Table of Contents.

Page

Question Presented ...............0000.0555..,. i.

Ee aia ce rae ss SOT eee a li.

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BE ee Vv

appara tana: meson dot PCE eae TTC eT ee ]

Jurisdictional Statement........................ 2

Constitutional Provisions, Statutes and Rules and

Regulations Involved .................... 2

Statement of the Case:

PE eye cote eee te a 2

II. History of the Litigation ................ 3

a _ SAREE ton Atel RRND enn 5

Reasons for Granting Certiorari:

EE TO ne Oe Tt a a 16

ee Ii it 94 tie 9 aha BS a Sie cks cave ois 23

DENG sd Kile ee cuban «ket ioe ec ee 25

iv.

Page

Appendix (under separate cover):

Appendix ‘A’? .....c secre ccerceerecccecceeers A-l

Appendix “B’?... 1... eee e cere eee e ener ceenere B-1

Appendix C's... cece eee cece eee ee ee ceeners C-1

Appendix SD”? ......cceeee rec eee eee eeeeneeees D-1

Appendix “EB”... ...cccccccccesccccccceccccces E-1

Appendix *F? ... ccc ccc cc cence cceneseseeenes F-1

Appendix ““G”’ ..... cc ccceesccccccccecereneces G-1

Appendix ‘SH’? 0... 0. eee eee creer eee eee eeenes H-1

Appendix 1” 0.0... ccc cecccccccecsenecesscees I-1

pte ae ee ee eee J-1

Appendix “KK... ccc ccc ccceecccncccenccsces K-1

Ch id ee eee L-1

Aen A”. wc c ccs cncevcevsveseunees M-1

Page

Table of Authorities.

CASES:

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

ie hee. cu. 15, 16, 17, 18, 20, 21

Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U. S. 252 (1977) ............... 26

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

i 16, 21

Kirkland, ef al/., v. New York State Department of

Correctional Services, et a/., 23 F.E.P. 1217

Se 1,5, 14, 15, 16, 24

Kirkland, et a/., v. New York State Department of

Correctional Services, ef a/., 482 F. Supp.

er Gas

Kirkland, ef a/., v. New York State Department of

Correctional Services, et a/., 429 U. S. 1124

ie ek ohn on wecmcce cc 2,4

Kirkland, et a/., v. New York State Department of

Correctional Services, ef a/., 429 U. S. 823

ES tr pe ee a a 2,4

Kirkland, ef al., v. New York State Department of

Correctional Services, et a/., 531 F. 2d § (2nd

ee 2,4

Kirkland, et al., v. New York State Department of

Correctional Services, et a/., 520 F. 2d 420

nan 6 hbk sx aeenve ace 1, 3, 4, 6,7

Kirkland, et a/., v. New York State Department of

Correctional Services, et al., 374 F. Supp.

8 | 1, 3

vi.

Page

Minnick, et a/., v. California Department of Correc-

tions, et al., 65 L. Ed. 2d 1139 (1980) ....... 24

Personnel Administration of Mass. v. Feeney, 422

RENTED cco vacsccrsccvccvesseness 23

Shelley v. Kraemer, 334 U.S. 1 (1948) ............ 23

United States v. Georgia Power Company, 474 F. 2d

0 eee 20

University of California Regents v. Bakke, 438 U. S.

ep ahns ens seca ces 13,23, 24,26

Vulcan Society of New York City Fire Dept., Inc. v.

Civil Service Commission, 490 F. 2d 387 (2nd

ee a oak 6a 6 ees esos eeess 20

Washington v. Davis, 426 U. S. 229 (1975) . 13, 14, 25, 26

Constitutional Provisions.

United States Constitution, Amendment V .. 2,3, 13,17

United States Constitution, Amendment XIV, §1 ... 2, 3,

S. 13, 17, 3,

New York State Constitution, Article V, §6........ 2,4

Statutes.

EE

MEME hoc acesccccssccsccccsccecs

EI, Sk Sk scence scseccescesccnecs

+p

Vii.

Page

DR on os Xen kek ode waved cat y a

My ME 6 25 654 ess Ge ghar gatas oe 2, 3,4

Title VII of the Civil Rights Act of 1964 (42 U.S.C.

PPPOE IBS, o.oo edocs necc..... 13, 20, 25

Rules and Regulations.

Equal Employment Opportunity Guidelines on Se-

lection Procedures:

29 C. F. R. §1607.01 et seq. (1974) ......... 17

29 C. F. R. §1607.14(8) (a) (1978) ....... 4, 10, 23

29 C. F. R. §1607.14(8) (d) (1978).......... 2,10

Uniform Guidelines on Employee Selection Pro-

cedures, 43 Fed. Reg. 38290 i eee 9, 20

Other Authorities.

APA Task Force on Employment Testing of Minor-

ity Groups, Job Testing and the Disadvan-

taged, 24 Am. Psych. 637 SWE. AG be cates os 19

Campbell, J. T., An Investigation of Sources of Bias

in the Prediction of Job Performance, A Six

Year Study, Educational Testing Service,

Princeton, New Jersey PR-73-37 (September,

Mas SRSA Cherie sas coke eae. 19

Employment Discrimination and Title VII of the

Civil Rights Act of 1964, 84 Har. L. Rev.

aot eh see a rea on 20

Vili.

Page

Ruch and Ash, Comments on Psychological Testing,

69 Colum. L. Rev. 608 (1969)

Schmidt and Hunter, The Future of Criterion-Re-

lated Validity, 33 Personnel Psychology 41

Te a eevee 19

Opinions Below.

The August 18, 1980 opinion of the Court of Appeals is

not yet officially reported but is reprinted at 23 F.E.P.

1217, and is appended to this Petition as Appendix ‘‘A.”’

The January 21, 1980 decision of the District Court is

reported at 482 F. Supp. 1179 and is appended to this Peti-

tion as Appendix ‘‘B.”’

The January 21, 1980 order and judgment of the

District Court is not officially reported. That order and

judgment is appended to this Petition as Appendix ‘‘C.”’

The August 22, 1979 order of the District Court is not

reported. The order is appended to this Petition as Appen-

dix ‘‘D.’’

The April 2, 1974 opinion of the District Court is

reported at 374 F. Supp. 1361 and is appended to this Peti-

tion as Appendix ‘‘E.”’

The July 31, 1974 decree of the District Court is not of-

ficially reported but is reprinted in 8 EPD 49675 and is

appended to this Petition as Appendix ‘‘F.”’

The September 18, 1974 supplemental order of the

District Court is not officially reported. The supplemental

order is appended to this Petition as Appendix ‘‘G.”’’

The August 6, 1975 opinion of the Court of Appeals is

reported at 520 F. 2d 420 and is appended to this Petition

as Appendix ‘‘H.”’

The August 3, 1975 order on remand is not officially

reported. The order is appended to this Petition as Appen-

dix ‘‘I.”’

2

The December 10, 1975 Court of Appeals order denying

a rehearing is reported at 531 F. 2d 5 and is appended to

this Petition as Appendix ‘‘J.”’

The denial of Respondents’ petition for a writ of cer-

tiorari from the first Court of Appeals decision is reported

at 429 U. S. 823 (1976).

The denial of Respondents’ motion for a rehearing on

that Petition is reported at 429 U. S. 1124 (1977).

Jurisdiction.

The Court of Appeals entered judgment August 18,

1980. October 31, 1980, Mr. Justice Marshall signed an

order extending time for filing this Petition until

December 17, 1980. This Court’s jurisdiction is invoked

under 28 U. S. C. §1254(1).

Constitutional Provisions, Statutes and Regulations In-

volved.

The relevant constitutional provisions, statutes and

rules and regulations are: United States Constitution Fifth

and Fourteenth Amendments; 42 U. S. C. §§ 1981 and

1983; Equal Employment Opportunity Commission on

Employee Selection Procedures; 29 C. F. R. 1607 §§ 14(8)

(a) and 14(8) (d); New York State Constitution Article V,

(6) which are set out seriatim in Appendix M.

Statement of the Case.

I. Introduction.

Petitioners are Correction Officers in the New York

State Department of Correctional Services and have all

3

successfully passed a criterion validated civil service ex-

amination for promotion to Correction Sergeant. They

have nevertheless been denied appointment because a

racial bonus of 250 points added to the examination scores

of all black and hispanic candidates moved some minority

candidates with lower test scores ahead of petitioners. The

petitioners have intervened and seek certiorari to review

and set aside the minority bonus.

II. History of the Litigation.

This action was originally commenced in 1973 under 42

U. S. C. §§ 1981 and 1983 by black and hispanic ap-

plicants for the position of Correction Sergeant in the New

York State Department of Correctional Services who

alleged that their rights to due process and equal protec-

tion guaranteed by the Fifth and Fourteenth Amendments

of the United States Constitution had been violated by the

1972 Civil Service Examination 34-944 which unlawfully

discriminated against their racial group.

The United States District Court for the Southern

District of New York found the examination to be un-

constitutional and ordered the New York State Civil Serv-

ice Commission to construct a non-discriminatory Correc-

tion Sergeant’s examination to be validated by means of

empirical criterion-related validation techniques using the

Equal Employment Opportunity Commission Guidelines

on Employment Selection Procedure 29 C. F. R. §1607.01

et seq. (1970) or as later revised (“‘EEOC Guidelines’’) as a

model. The court also imposed a racial hiring quota.

Kirkland, et al., v. New York State Department of Correc-

tional Services, et al., 374 F. Supp. 1361 (S.D.N.Y., 1974)

opinion (Appendix E), decree (Appendix F).

The United States Court of Appeals for the Second Cir-

cuit in Kirkland, et al., v. New York State Department of

4

Correctional Services, et al., 520 F. 2d 420 (2nd Cir.1975)

(Appendix H), affirmed that part of the District Court

decision holding the examination unconstitutional and im-

posing a racial hiring quota for interim hiring while a per-

manent selection procedure was being developed, id. at

page 431, Appendix H-20; but finding insufficient proof

of a clear-cut pattern of long continued egregious racial

discrimination and substantial evidence of reverse

discrimination, id. at page 427, Appendix H-13, the Court

reversed so much of the District Court’s order as provided

for a permanent racial hiring quota, id. at page 431, Ap-

pendix H-20.

Plaintiffs’ petition for a rehearing was denied by the

Court of Appeals. Kirkland, et al., v. New York State

- Department of Correctional Services, et al., 531 F. 2d §

(2nd Cir. 1975) (Appendix J). Plaintiffs then filed a peti-

tion for a writ of certiorari which was denied 429 U. S. 823

(1976), as was their motion for rehearing on that petition,

429 U. S. 1124 (1977).

Under the supervision of the District Court a new pro-

motion examination (No. 36-435) was constructed and ad-

ministered to all applicants for promotion to Correction

Serge .nt. It is this second examination, No. 36-435, which

is the subject of this petition.

After the new examination 36-435 was administered and

when it was announced that a racial bonus of 250 points

was to be added to the composite test scores of all black

and hispanic applicants, petitioners moved to intervene

under 42 U. S. C. §§ 1981 and 1983 and 28 U. S. C. §§

1343(3) and (4) alleging in their complaint that the pro-

cedure violated their rights under the Fourteenth Amend-

ment to the United States Constitution, 28 U. S. C. §1331;

New York State Constitution, Article V, Section 6, New

York Civil Service Law and the Rules and Regulations

5

puvsuant thereto. Petitioners alleged that the use of a

racial bonus constituted a distinction based upon race in

violation of their Equal Protection rights and their right to

a merit-based selection guaranteed by the New York State

Constitution, the New York State Civil Service Law and

the Rules and Regulations promulgated thereunder.

The District Court granted intervention (Appendix C-4)

but granted summary judgment against intervenors,

deciding that the 250 point racial bonus met EEOC

Guidelines and that New York State Law was not of-

fended by the process. The Court totally ignored the peti-

tioners’ allegations that their due process and equal pro-

tection rights had been violated, Kirkland, et al., v. New

York State Department of Correctional Services, et al.,

482 F. Supp. 1179 (S.D.N.Y. 1980) (Appendix B).

On appeal by the petitioners to the United States Court

of Appeals for the Second Circuit, the Court of Appeals

upheld the District Court’s summary disposition.

Kirkland, et al., v. New York State Department of Correc-

tional Services, et al., 23 F. E. P. 1217 (2nd Cir. 1980)

(Appendix A). In upholding the District Court’s deter-

mination the Court of Appeals reaffirmed its earlier deter-

mination that ‘‘no one should be ‘bumped’ from their

position on an eligibility list solely because of his race.’’

Id. at page 1219; Appendix A-7, but then proceeded to ap-

prove a 250 point racial bonus which does exactly that.

Il. Facts.

After the Court of Appeals affirmed that the original

examination (34-944) was unconstitutional as violative of

the due process and equal protection rights of the original

plaintiffs, and after this Court had denied the original

plaintiffs’ petitions for certiorari and rehearing, the duty |

6

of constructing a new and valid promotion examination

was undertaken ty the New York State Civil Service Com-

mission.

The work of the Civil Service Commission was under

the supervision of the District Court and was subject to the

mandates of the Court of Appeals decision. That Court

had affirmed the original District Court ruling that the

new examination should be constructed using empirical

criterion-related validation techniques in accordance with

the EEOC Guidelines and that such validation method

should be used only ‘‘insofar as possible’? having due

regard for the problems peculiar to civil service testing.

Kirkland, et al., v. New York State Department of Correc-

tional Services, et al., 520 F. 2d 420, 426 (2nd Cir. 1975);

Appendix H-11.

In the course of its opinion, the Court of Appeals suc-

cinctly and correctly stated the law as laid down by this

Court in the following language:

‘‘The replacement of individual rights and op-

portunities by a system of statistical classifications

based on race is repugnant to the basic concepts of

a democratic society.”’

Id. at page 427, Appendix H-12.

The Court went on to say, id. at page 428, Appendix

H-14-15:

‘Once defendants have prepared a court ap-

proved job related civil service examination, a

deliberate misuse of the resultant eligibility list on

racial grounds would seem to be violative of both

the New York and the Federal Constitutions.

Civil service laws, like civil rights laws, were

enacted to ameliorate a social evil. In the former

case It was the spoils system; in the latter,

7

discrimination. To the citizens of the State of New

York, civil service was sufficiently important that

they mandated its use by their constitution. In so

doing, they ‘declared in unmistakable terms that

merit, ascertained as therein provided, shall govern

appointments and promotions in the public service’

and that merit must be ascertained as far as prac-

ticable by competitive exatination.”’

Finally, the Court of Appeals said, id. at page 429, Ap-

pendix H-16:

“So long as civil service remains the constitu-

tionally mandated route to public employment in

the State of New York, no one should be ‘bumped’

from a preferred position on the eligibility list solely

because of his race. Unless the Fourteenth Amend-

ment is applicable only to Blacks, this is constitu-

tionally forbidden reverse discrimination.”’

In proceeding with the construction of a new examina-

tion, the New York Civil Service Commissicn conducted -

an extensive analysis of the job of Correction Sergeant and

Correction Officer identifying the five job dimensions for

Sergeant and developed from that analysis criterion

measures for the job of Correction Sergeant. A two part

test was developed consisting of a multiple choice written

examination and a combination oral test and performance

evaluation procedure. The multiple choice written test

aimed directly at the job dimensions identified by the job

analysis. Following this extensive and painstaking prep-

aration the entire package was submitted to the parties and

to the Court for review prior to the administration of the

examination. The examination was administered on Oc-

tober 5, 1978. In addition to administering the written test

and the supervisory evaluation to the candidates, incum-

bent Correction Sergeants were also required to take the

test and undergo an evaluation by their supervisors.

8

A copy of the notice of examination is attached to the

petitioners’ complaint, Exhibit A, Appendix K-49, and a

copy of the instructions and manual for the performance

raters is also attached to the petitioners’ complaint, Ex-

hibit B, Appendix K-55. As is shown by the last document,

there were only four areas considered in the performance

evaluation. The raters were ordered to assign scores divisi-

ble by the number 5 and in no event lower than 50 or

higher than 100 and in any event divisible by the number 5.

In addition they were emphatically cautioned that any can-

didate who scored less than 70 on any one of the four

dimensions of the performance evaluation would fail the

entire examination since it was required that the candidate

pass all four dimensions of the performance evaluation

with a grade of 70 or higher in order for the written test to

have any weight whatsoever. In addition, the raters were

advised that any rating of less than 70 or more than 90

must be supported with comments relating to the perfor-

mance of the ratee. There were two raters for each can-

didate and the raters were instructed that if they disagreed

on the rating for any individual in any of the four

categories their rating form would be returned to them for

discussion, comments and possible revision of their ratings

so that they would agree. If the final difference was more

than 5 points the difference would require justification

with supporting comments and discussion.

Since the raters were all current or previous supervisors

of the applicants being rated and in most cases would con-

tinue to work in close proximity to the individual ap-

plicants, it is difficult to imagine how, short of a direct

order, the employer could have more clearly mandated

that applicants be rated not lower than 70 nor higher than

90.

The written tests were scored and the results of that por-

tion and the performance evaluation incorporated into a

composite score. The data was analyzed. The resultant

9

report entitled ‘‘Correction Sergeants Selection System:

Validity and Ethnic Effect’’ was submitted to the Court

and as is stated by the State’s expert, Kenneth Siegal, the

“Correction Sergeant selection measures are criterion

valid in that significant correlations exist between the

selection composite scores (weighted sum of performance

dimension ratings and written test) and composite

criteria.’’ Appendix L-3. (Emphasis added, see also the

Siegel affidavit of October 16, 1979, 441, 8a and 8c, where

Siegal repeats his assertions of criterion validity.) The term

‘composite criteria’ as used by Siegal denotes the four

question performance evaluation. Siegal was the expert

primarily relied upon by the State, the original petitioners,

the District Court and the Court of Appeals in their deter-

mination.

Simply stated, comparison of the composite test score

(the combination of the performance evaluation and the

multiple choice test) with the results of the performance

evaluation only, for both the incumbent sergeants group

and the applicants as a whole, demonstrated that the ex-

amination validly tested comparative capacity of the in-

dividuals involved to perform the job of Correction

Sergeant. It was criterion valid.

However, despite this finding and according to the Civil

Service Commission, as a part of criterion validation, the

Commission applied a separate provision of the EEOC

Guidelines which calls for analysis of an examination for

what was formerly called ‘‘differential validity’’ but is

now called ‘‘unfairness’’ under the 1978 EEOC

Guidelines. For a definition see Appendix M-5. While the

EEOC Guidelines make an unexplained and unconvincing

claim that ‘‘differential validity’’ and ‘‘unfairness’’ are

not identical, Uniform Guidelines on Employee Selection

Procedures, 43 Fed. Reg. 38290, 38294 (1978), Siegal, ap-

pears to regard them as identical (Appendix L-3) as do the

courts below.

bad

ae

10

To determine whether the examination was ‘‘unfair’’

the ‘‘composite test scores’? for each applicant who re-

ceived the same performance evaluation rating, were

grouped by racial identity. For example, the composite

scores of those minority applicants who received 85 on the

performance evaluation were compared with the com-

posite scores of those non-minority applicants who receiv-

ed 85 on the performance evaluation. By this process it

was found that minority applicants scored on an average,

268 points less on the ‘‘composite test score’’ than non-

minorities who had the same performance evaluation

rating.

The four dimensions contained in the performance

evaluation, were no more and no less job related than the

questions on the written examination. However, the scor-

ing system on the performance evaluation contained

unlimited potential for racial and other bias, either con-

scious or subconscious. There was no valid reason to

discredit the written examination while according absolute

faith to the subjective performance evaluation.

When the same analysis was performed on the two

racial groups of incumbent sergeants who took the ex-

amination, no comparable variation was identified.

The Gridelines define ‘‘unfairness’’ in 29 C.F.R.

§1607.14 (8) (a) (1978):

‘*(a) Unfairness defined. When members of one

race, sex or ethnic group characteristically obtain

lower scores on a selection procedure than

members of another group, and the differences in

scores are not reflected in differences in a measure

of job performance, use of the selection procedure

may unfairly deny opportunities to members of the

group that obtains the lower scores.’’ (Emphasis

added.)

1]

Based on these findings, the Civil Service Commission

decided the examination was unfair and added a ‘‘fairness

bonus’’ of 250 points to the score of every minority appli-

cant. The ‘‘fairness bonus’’ was based upon an applica-

tion of EEOC Guidelines $1607.14 (8) (d), which pro-

vides:

‘*(3) When unfairness is shown. If unfairness is

demonstrated through a showing that members of a

particular group perform better or poorer on the

job than their scores on the selection procedure

would indicate through comparison with how

members of other groups perform, the user Ti.ay

either revise or replace the selection instrument in

accordance with these guidelines, or may continue

to use the selection instrument operationally with

appropriate revisions in its use to assure com-

patibility between the probability of successful job

performance and the probability of being

selected.’’ (Emphasis added.)

The adjustments were made despite the fact that it had

been found that the composite of the written test and the

performance evaluation measured significant Job related

criteria—the court mandated standard of criterion valid-

ity.

The Siegal affidavit (Appendix L) must be carefully

analyzed in order to evaluate his methodology. He points

out that Appendix L-9, Exhibit A in the column UROT V.

21214 at level .139, the non-minorities had an average

composite score of 7923 while the blacks and hispanics

had an average score of 7647. He neglects to point out that

while the non-minority group on the average scored con-

siderably higher than the minority group at most levels,

this was by no means universal. For example, in column

UROT V. 21214 at level -.415 the non-minority group

scored only 9 points higher than the minority group. While

12

in column 76 SGCMP V. 2-21214 at level -.138, the

minority group scored 179 points more than the white

group and at level -1.246 the minority group scored 56

points higher than the white group.

Siegal states in his affidavit that he did not consider any

group containing less than two individuals in his statistical

‘studies. As Exhibit A reveals, some of these exluded

groups were as large as 133. Therefore, it is obvious that

for at least some groups there were minority candidates

who finished ahead of some of the non-minority can-

didates to the end that Siegal’s methodology substitutes a

faceless statistical average for the individual rights and

merits of the applicants.

All of the petitioners being non-minority Correction Of-

ficers who passed Civil Service Examination No. 36-435

were ‘‘bumped”’ from their position on the eligible list by

the awarding of the 250 point bonus to minority can-

didates on strictly racial gounds. Petitioners earned their

numerical standing on the eligible list by competing on a

criterion validated test. None of the petitioners have been

promoted to sergeant. Some of the petitioners have been

deprived of promotion to the sergeant position which they

otherwise would have already received while for all of the

others, the racial bonus has greatly reduced or altogether

eliminated the possibility that they will be reached for

promotion at any time during the life of the eligible list.

After a diligent effort, the parties were unable to cite to

the court below any case authority that allowed the addi-

tion of a racial bonus to scores on a criterion valid ex-

amination. The ony authority cited to the District Court

approving of the use of a racial bonus was a letter from the

Equal Employment Opportunity Commission itself saying

that in their opinion the procedure was justified under the

EEOC Guidelines.

13

The District Court held that the addition of the 250

point racial bonus to the score of each minority test taker

was not a quota because the plan approving the adjust-

ment did not establish a fixed number of minority

members to be promoted. The Court never addressed the

fact that the racial bonus was a distinction based solely

upon race, it ignored the petitioners’ claim that the racial

bonus deprived them of their right to a merit-based test

guaranteed by the New York State Constitution and Civil

Service Law and that the racial bonus deprived them of

their due process and equal protection rights guaranteed

by the United States Constitution.

On appeal, petitioners argued that under University of

California Regents v. Bakke, 438 U. S. 265 (1978), any

line drawn on the basis of race or ethnic status must be ex-

amined with strict scrutiny and that when such a test is ap-

plied, before the distinction will be upheld there must be a

showing of a compelling state interest, a history of past

discrimination and a showing that a discrete group of in-

nocent persons are not bearing the burden of an otherwise

benign program. The petitioners pointed out that there

had been no showing of any compelling state interest, that

the Court of Appeals had specifically noted the paucity of

proof of any past history of discrimination and that inno-

cent Correction Officers who in no way discriminated

against the respondents were being forced to bear the

burden of the program.

The petitioners also asserted that despite the fact that

the EEOC Guidelines were applied, the case was brought

under the Due Process and Equal Protection clauses of the

United States Constitution and not under Title VII of the

1964 Civil Rights Act and that petitioners were asserting

their rights under the same constitutional provisions. The

Constitutional standard for measuring discriminatory im-

pact of examinations was set forth in Washington v.

14

Davis, 426 U. S. 229 (1976), which held that a criterion

validated examination, which the examination at bar was

found to be, is not invalid merely because it affects a

greater proportion of one race than another. A criterion

validated examination is all that is required. The Constitu-

tion does not guarantee equal results.

The Court dismissed the petitioners’ argument that

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

case by saying ‘‘it is settled law of this case that the

sergeant’s test which Test No. 36-435 replaced was

discriminatory.’’ Kirkland, et al., v. New York State

Department of Correctional Services, et al., 23 F. E. P.

1217, 1218, n. 2 (2nd Cir. 1980) Appendix A-6. The state-

ment begs the issue. There is no question regarding the

first examination. The question is whether the second ex-

amination violates the rights of the petitioners.

The petitioners argued that a racial bonus was a ‘‘de-

facto quota’’ based solely on race disguised by testing

jargon, and that it was added without any showing of a

compelling state interest, a prior history of past

discrimination or inquiry into the adverse impact on a

discrete group of innocent persons.

The Court of Appeals held that the racial bonus was not

a quota and did not constitute reverse discrimination even

though it stated, ‘‘[o]f course, the 250-point differential

does operate to favor minority test-takers, if one assumes

that the multiple-choice written portion of the exam is a

truly objective measure of qualities important to success as

a correction officer.’’ Jd. at page 1219, Appendix A-7. It

justified the racial bonus by referring to the State’s interest

in non-discriminatory hiring in correctional institutions.

Id. at page 1219, Appendix A-8. This reference to a State

interest in the Court of Appeals’ record opinion came

despite the fact that the first time any indication of a state

15

interest was ever discussed was in an appendix to the brief

submitted by the respondents in the record on appeal to

the Court of Appeals.

The Court also held that the petitioners’ arguments op-

posing the racial bonus were foreclosed by the Court’s

earlier decision. The Court based this on an incorrect find-

ing that an examination is not criterion valid until an ‘‘un-

fairness”’ test had been applied and scores were adjusted

on the basis of that unfairness test. /d. at page 1219, Ap-

pendix A-8. This came despite the agreement of both the

District Court and the parties that an ‘‘unfairness’’ test is

separate and distinct from a determiation of criteron

validity. There has never been any question that Civil

Service Test No. 36-435 was criterion valid before the

racial bonus was added. Ultimately, however, the simple

answer to this erroneous reasoning is that at the time of

the first Court of Appeals decision, petitioners, had they

then been in the case, had no conceivable way of knowing

how the EEOC Guidelines would be applied. At that time,

for all anyone knew, a test might be constructed without

any question of unfairness ever arising. It is the manner of

the application of the EEOC Guidelines in the particular

facts of this case as they have developed since the first

Court of Appeals decision to which petitioners object. In-

deed, the issue would have been premature and unripe if it

had been raised earlier.

The petitioners also argued that even if Title VII stand-

ards were applied, A/bemarle Paper Co. v. Moody, 422 U.

S. 405 (1975), requires only a criterion valid examination

absent a showing of past egregious racial discrimination.

The Court of Appeals did not discuss this argument.

The petitioners asserted that by using the subjective

evaluation ratings to measure ‘‘unfairness’’ and justify the

racial bonus the results of the objective written portion of

the examination were disregarded for minority applicants

in violation of the New York State Constitution.

16

In addressing the question of whether the racial bonus

deprived the petitioners of their right to an objective

merit-based examination the Court never reached the

question of New York Constitutional law or whether

the rights of petitioners could be preserved while enforcing

the rights of the minority applicants. The Court dismissed

the petitioners’ arguments holding that the racial bonus

was imposed to remedy a violation of the United States

Constitution which, therefore, was a matter of federal law

under the Supremacy Clause. The Court did say that:

‘*Indeed, since the effect of the 250-point dif-

ferential is to bring the average minority

applicant’s total raw score up to the level of non-

minority test-takers with equal job performance

ratings, it can be argued that—at least insofar as

deviations from the average are disregarded—the

results of the written portion of Test No, 36-435 are

entirely superfluous when minority applicants are

involved. Kirkland v. New York State Department

of Correctional Services, 23 F. E. P. 1217, 1219

(2nd Cir, 1980), Appendix A-9. (Emphasis added.)

Reasons For Granting Certiorari.

I

The Court granted certiorari in A/bemarle Paper Co. v.

Moody, 422 U. S. 405 (1975), to resolve the confusion

concerning ‘‘the showing required to establish the ‘job

relatedness’ of pre-employment tests.’’ In so doing, this

Court reaffirmed the ruling in Griggs v. Duke Power Co.,

401 U. S. 424, 436 (1971), that an employment test must be

‘‘(dJemonstrably a reasonable measure of job perform-

ance,’’

To resolve the confusion concerning what showing is re-

quired to establish job relatedness, this Court endorsed the

use of the EEOC Guidelines then in effect, stating:

17

‘The message of these Guidelines is the same as

that of the Griggs case—that discriminatory tests

are impermissible unless shown, by professionally

acceptable methods, to be ‘predictive of or

Significantly correlated with important elements of

work behavior which comprise or are relevant to

the job or jobs for which candidates are being

evaluated.’ 29 C. F. R, §1607.4(c).’’ Albemarle

Paper Co. v. Moody, 422 U. S. 405, 431 (1975),

_ The EEOC Guidelines in effect at the time of the Court

endorsement contained a provision for reporting data

separately for minority and non-minority groups. EEOC

Guidelines 29 C, F. R. §1607.5(a) (1974). The concept in-

volved ‘‘different validation.’’ This Court in endorsing the

EEOC Guidelines directed that the ‘‘differential valida-

tion’’ should be applied if technically feasible. Jd. at page

435. But there was no comment on what the results of the

‘‘differential validation’ study could be used for or how

they should be used.

Subsequent to the decision in A/bemarle Paper Co. v.

Moody, 422 U. S. 405 (1975), the EEOC Guidelines were

revised. 29 C. F. R. §1607.1 ef seq. (1978). The revisions

included provisions dealing with “‘unfairness,’’ which

replaced the earlier provisions for ‘differential

validation.”’

This court has never determined the extent to or the way

in which differential validation may be used and has never

had occasion to even consider the so called ‘‘unfairness’’

doctrine. Even more important, no case in this Court in-

volving enforcement of the Fifth and Fourteenth Amend-

ment rights of equal protection and due process has ever

even considered whether the Constitution guarantees the

application of the differential validity or unfairness doc-

trine. The courts below have held that these EEOC-created

concepts of ‘‘differential validity’’ and ‘‘unfairness’’ are

Constitutionally guaranteed by holding that even where a

test is carefully and painstakingly constructed under Court

18

supervision and is found to be ‘predictive of or

significantly correlated with important elements of work

behavior which comprise or are relevant to the job or jobs

for which candidates are being evaluated,’’ A/bemarle

Paper Co. v. Moody, 422 U. S. 405, 431 (1975), if com-

peting racial groups do not achieve identical rates of suc-

cess on the examination, a racial bonus will be awarded to

guarantee equality of results.

Examination of the basis for and reliability of ‘‘dif-

ferential validity’’ and ‘‘unfairness’’ reveal that the con-

cepts are not only controversial and uncertain (facts which

the experts relied on by the plaintiffs, the State and the

courts below concede) but have also been soundly rejected

by leading experts in the field of psychological testing.

The maximum possible score on 36-435 was 8830,

Siegal, Appendix L-7. Siegal’s affidavit, sworn to

December 3, 1979, states in paragraph 8 that ‘‘the average

difference between white [and] minority scores across all

levels of performance is 268.’’ His affidavit discusses how

the racial bonus of 250 points was arrived at and explains

that, ‘‘[t]he adjustment should be somewhat conservative to

allow for the statistical or psychometric uncertainties in

the data. . . and to avoid over-correcting for the observed

differences.’’ Stripped of the jargon, Siegal is admitting

that the racial bonus is based on uncertainties and is an ap-

proximation.

Richard S. Barrett, a testing expert who testified on the

trial for the plaintiffs also submitted an affidavit, sworn to

December 7, 1979, in support of the motion for summary

judgment. Barrett participated in the drafting of EEOC

Guidelines. His affidavit mentions and contains his

publication entitled, ‘‘Statistical Diagrams’’ produced

sometime since March, 1978. In discussing ‘‘unfairness”’

in that document he says:

19

‘The debate over the existence of unfairness has

been with the profession for at least 10 years, and

will probably continue for a long time. For exam-

ple, the Spring 1976 issue of Journal of Educa-

tional Measurement was devoted entirely to articles

on bias in selection, without resolving the problems

of the definition of selection bias, much less settling

issues about its nature and extent.’’

In summary his document says:

‘The variations in test scores, performance

measurements, and validities are endless. Further,

the effect of a given selection procedure depends on

how it is used, and how it relates to other selection

procedures used in conjunction with it. These com-

plexities, along with the difficulty in arriving at a

socially, politically, and statistically acceptable

definition of fairness will keep the debate alive for

a long time to come.”’ (See affidavit of Richard S.

Barrett, December 7, 1979.)

This is hardly a convincing endorsement of the validity

or accuracy of a concept being used to violate petitioners’

rights to equal protection.

Other experts in the field of psychological testing have re-

jected the concepts of unfairness and differential valida-

tion as ‘‘statistical artifacts’? with no sound basis in sup-

porting facts. Schmidt and Hunter, The Future of

Criterion-Related Validity, 33 Personnel Psychology 41,

53-54 (1980); Campbell, An Investigation of Sources of

Bias in the Prediction of Job Performance, a Six Year

Study, Educational Testing Service, Princeton, New

Jersey, P. R.-73-37 (September, 1973); APA Task Force

on Employment Testing of Minority Groups, Job Testing

and the Disadvantaged, 24 Am. Psych. 637, 641 (1969).

20

Legal commentators have voiced similar concerns that

the concept upon which differential validity and un-

fairness are based has no sound basis in proven fact.

Developments in the Law, Employment Discrimination

and Title VII of the Civil Rights Act of 1964, 84 Harv. L.

Rev. 1109, 1129 (1971); Ruch and Ash, Comments on

Psychological Testing, 69 Colum. L. Rev. 608, 611 (1969).

Even the drafters of the EEOC Guidelines themselves

recognize that the validity of the concept of ‘‘fairness’’ is

open to serious debate. An overview of the Uniform

Guidelines on Employment Procedures, 43 Fed. Reg.

38290, 38,294 (1978).

This criticism has been reflected in the decisions of the

courts when commenting on ‘‘differential validity.”’

Vulcan Society of New York City Fire Dept., Inc. v. Civil

Service Commission, 490 F. 2d 387, 395, n. 10 (2d Cir.

1973); United States v. Georgia Power Company, 474 F.

2d 906, 914 (1973). In fact, the court in Georgia Power

Company recognized the serious scientific problems in-

herent in a ‘‘differential validity’’ study. It directed that

the differential validity study be undertaken because ‘‘the

safest validation method is that which conforms with the

EEOC Guidelines.’’ Jd. at page 914.

Mr. Chief Justice Burger cautioned against a slavish en-

dorsement of the EEOC Guidelines:

‘‘Such comment would not be a mere formality

in light of the fact that many of the EEOC

Guidelines are not universally accepted. For exam-

ple, the Guideline relating to ‘differential valida-

tion,’ upon which the Court relies in this case, ante,

at 435, has been questioned by the American

Psychological Association.’’ Albemarle Paper Co.

v. Moody, 422 U. S. 405, 452, n. 3 (1975).

21

New York State Civil Service Examination No. 36-435

for promotion to Correction Sergeant was tested by the

New York State Civil Service Commission for criterion

validity and was found to be criterion valid as **signifi-

cantly correlated with important elements of work

behavior which comprise or are relevant to the job or jobs

for which candidates are being evaluated.’’ Appendix L-3.

Despite the finding of criterion validity the unfairness

provisions of the EEOC Guidelines were applied based

opon a procedure which gave primacy to an obviously sub-

jective performance evaluation carved out under rigid in-

structions heretofore discussed which virtually required

the raters to pass the applicants and to agree in their

ratings. The courts below have thus held that under the

United States Constitution no objective, written, job and

merit related civil service examination can ever be valid if

it disagrees with the ratings developed from a subjective

performance evaluation.

The Court of Appeals decision has thus dramatically ex-

panded the scope of the endorsement this court has given

to the use of the EEOC Guidelines. In A/bemarle Paper

Co. v. Moody, 422 U. S. 405, 417 (1975), this Court

reiterated its holding in Griggs regarding the purposes of

Title VII:

**As the Court observed in Griggs v. Duke Power

Co., 401 U. S., at 429-430, the , .imary objective

was a prophylactic one.

‘It was to achieve equality of employment op-

portunity and remove barriers that have operated

in the past to favor an identifiable group of white

employees over other employees.’ ”’

This Court has made it clear that their endorsement of

the EEOC Guidelines was meant to guarantee equality of

opportunity, by requiring a job-related examination. By

22

using the EEOC Guidelines to justify a 250-point racial

bonus added to the score earned on an already criterion

valid examination, the Court of Appeals has directed that

an employment test must guarantee ‘‘equality of results’’ a

step which ultimately denies equality of opportunity to

non-minorities.

The Court of Appeals has approved a slavish and un-

thinking application of the EEOC Guideline provisions

dealing with ‘‘differential validity’? or ‘‘unfairness’’

without meaningful inquiry into the constitutionality of

their application relative to applicants discriminated

against by the racial bonus.

This Court has never endorsed the concept of ‘‘unfair-

ness’’ which was added to the EEOC Guidelines after the

Albemarle decision nor has it even examined the question

of what may be done when ‘‘unfairness’’ is found without

violating the Equal Protection rights of all test takers.

The EEOC Guidelines are referred to by hundreds of

employees, both public and private, who are attempting to

design effective, non-discriminatory tests based on merit.

Those examinations impact millions of citizens including

over 2,000 people on the eligibility list in question.

The number of employers and employees who are af-

fected by the EEOC Guidelines establishes the need for a

clear and final determination of what an employer must

do to validate an examination without which employers

will continue to be flooded with lawsuits from both

minorities and non-minorities. Tens of thousands of in-

dividual employees will have the determination of their

employment status placed in doubt and delayed for pro-

longed periods to say nothing of the wage loss to

employees who are wrongfully denied employment or pro-

motion.

23

The fact that the concepts of ‘“‘unfairness’’ and ‘‘dif-

ferential validation’? have been soundly criticized adds

further urgency to this Court’s review.

This holding that to be valid a civil service promotion

test must not only be job related, but must also pass a test

of ‘‘unfairness’’ is a dramatic departure from this Court’s

decision. The Court of Appeals has imposed a require-

ment of equality of results in direct contravention to this

Court’s prior holdings. Personnel Administration of

Mass. v. Feeney, 422 U. S. 256, 273 (1979).

We submit that while use of the unfairness doctrine of

the EEOC Guidelines may be financially ‘‘safe’’ for

employers and competitively advantageous to the plain-

tiffs, the technique is not guaranteed by the United States

Constitution and as applied herein violates petitioners’

constitutionally guaranteed equal protection rights.

The constitutional guarantee of equal protection is the

pledge of America to each individual. It is well established

that this guaranty runs to each individual citizen and is not

limited in its application to broad faceless ethnic, religious

or racial groups. Shelley v. Kraemer, 334 U. S. 1 (1948).

The courts below in their zeal to dispose of an old and

troublesome case have failed to consider the precious

rights of the individual petitioners.

II,

This Court considered the legal limits of minority

preferences in University of California Regents v. Bakke,

438 U. S. 265 (1978). There, all five of the Justices who

reached the question of whether Alan Bakke’s Equal Pro-

tection rights were violated applied a standard of at least

**strict’’ and ‘‘searching’’ scrutiny of racial classifications.

A majority of the Court held that before a racial classifica-

tion will be upheld an important and articulated purpose

for its use must be shown.

24

Mr. Justice Powell wrote that, ‘‘[rJacial and ethnic

distinctions of any sort are inherently suspect and thus call

for the most exacting judicial examination.’’ Jd. at page

291. He continued saying, ‘‘[w]Je have held that in ‘order

to justify the use of a suspect classification, a state must

show that its purpose or interest is both constitutionally

permissible and substantial, and that its use of the

classification is necessary . . . to the accomplishment’ of

its purpose or the safeguarding of its interests.’’ /d. at

page 305.

Here, the Court of Appeals ignored petitioners’ claim of

an Equal Protection violation and held that a 250-point

bonus added solely on a racial basis to the scores of an

already criterion validated test was not a quota and was,

therefore, lawful. Kirkland, et al., v. New York State

Department of Correctional Services, et al., 23 F.E.P.

1217 (2nd Cir. 1980), Appendix A.

The Court of Appeals did not apply the ‘‘strict’’ or

‘*searching’”’ scrutiny test to the racial bonus but er-

roneously based its decision on a semantic but legally and

practically meaningless distinction between a quota and a

bonus in direct contravention of University of California

Regents v. Bakke, 438 U. S. 265 (1978). Indeed, the Court

of Appeals totally denied petitioners their right to an ad-

judication of their constitutional rights to equal protec-

tion.

Not without significance is the fact that in this highly

dangerous world of the Correction Officer and Correction

Sergeant, those black and hispanic individuals who have

been or will be appointed with the benefit of the 250 point

racial bonus will be stigmatized throughout their correc-

tion career as individuals who could not measure up and

make it on their own but required a bonus to qualify for

appointment.

25

A clear demonstration of the continuing concern re-

garding racial preference is found in the recent grant of

certiorari in Minnick, et al., v. California Department of

Corrections, et al., No. 79-1213, 65 L. Ed. 2d 1139 (1980),

which concerns the question of whether a public employer

may grant preferences in employment and promotion to

racial minorities and women absent any showing of past

invidious discrimination. In Minnick the employer

asserted a compelling state interest albeit an insufficient

one.

Here, there is an even stronger case to grant certiorari

since there has been no showing of past invidious

discrimination, no proof of a compelling state interest re-

quiring a preference and in this case the preference in the

form of a racial bonus is being superimposed on the results

of an otherwise criterion valid examination.

The Court of Appeals has held that as between races,

the Constitution of the United States guarantees equality

of results in employment tests without any inquiry into a

compelling state interest, history of past discrimination, or

adverse burdens on innocent parties or even the com-

parative performance in the examinations.

Ill.

Washington v. Davis, 426 U. S. 229, 247 (1976), held

that the standard applied for reviewing employment tests

in an Equal Protection case is separate and distinct from

the standard applied in a case based on Title VII of the

Civil Rights Act.

This Court said that in an Equal Protection case:

‘*We have not held that a law, neutral on its face

and serving ends otherwise within the power of

26

government to pursue, is invalid under the Equal

Protection Clause, simply because it may affect a

greater proportion of one race than of another.”’

Id. at page 242.

Neither respondents nor petitioners are asserting Title

VII claims herein. The first District Court and Court of

Appeals decision directed that a job related examination

based on merit be constructed. The direction to use the

EEOC Guidelines for validation ‘‘insofar as feasible’’ did

not transform this into a Title VII case. Yet, that is

precisely what the courts below have done by their ap-

proval of a racial bonus generated from a blind pursuit of

the EEOC Guidelines without the slightest showing of any

intent to discriminate or any past invidious discrimination

and in the face of the manifest injury to innocent ap-

plicants.

The Court of Appeals approved the racial bonus

without any inquiry into an intent or purpose to

discriminate as consistently required by this Court in any

Equal Protection case. University of California Regents v.

Bakke, 438 U. S. 265, 289, n. 27 (1978); Arlington Heights

v. Metropolitan Housing Dev. Corp., 429 U. S. 252,

264-265 (1977); Washington v. Davis, 426 U.S. 229, 242

(1976).

The Court of Appeals for the Second Circuit has dan-

gerously distorted this Court’s prior holdings requiring ex-

press congressional legislation before extending Title VII

standards into an Equal Protection inquiry.

The prominence of the Court of Appeals for the Second

Circuit precludes any reliance on the thought that its error

might go without influence. This Court should grant cer-

tiorari to once again reassert the distinction between a Ti-

tle VII case and one arising under the Equal Protection

Clause.

27

Conclusion.

In light of the continuing controversy surrounding the

‘‘unfairness’’ provisions of the EEOC Guidelines which

have never been passed upon or applied by this Court, the

importance of the individual rights involved, the large

number of parties whose rights are impacted by this issue

and the conflict of the decision of the United States Court

of Appeals for the Second Circuit with decisions of this

Court, it is urgent and important for this Court to grant

certiorari and decide whether the EEOC Guidelines on

‘“‘unfairness’’ are applicable in a case involving solely con-

Stitutional issues and whether, as part of the validation

process the unfairness concept can be utilized to add a

bonus awarded purely on a racial basis to the scores of

minority candidates even though the racial bonus will

‘“‘bump’’ qualified individuals from their merit-earned

position on a civil service promotion list.

Respectfully submitted,

RICHARD R. ROWLEY,

Attorney for Petitioners

90 State Street,

Albany, N. Y. 12207

(518) 434-6187.