Amicus Brief — Firefighters v. Stotts

£20206__05 389

IN THE

Supreme Court of the United Mates 1s)

)

9R3 ,

OctToper Term, 198: OCT 21 1963

FIREFIGHTERS LOCAL UNION No, 1784 Nex rEVAS,

Petitioner, asian

V

Cart W. STorTs, et al.,

Respondents,

MEMPHIS Firnt DEPARTMENT, et al.,

Petitioners,

\

Cart W. SToOTTS, et al.,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE OFFICERS FOR JUSTICE; INTERNA-

TIONAL ASSOCIATION OF BLACK FIREFIGHTERS—

SAN FRANCISCO CHAPTER; THE BLACK AGENDA

COUNCIL; THE ASSOCIATION OF NORTHERN CALIF.

ORNIA BLACK WOMEN LAWYERS; THE WILLIAM

HASTIE LAWYERS ASSOCIATION; THE CHARLES

HOUSTON BAR ASSOCIATION; THE KAPPA ALPHA

PSI FRATERNITY; BLACK WOMEN ORGANIZED FOR

POLITICAL ACTION; THE WILEY MANUEL LAW

FOUNDATION; THE NATIONAL BAR ASSOCIATION;

AND THE CALIFORNIA ASSOCIATION OF BLACK

LAWYERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

*Ropert L. Harris ANGELA GLOVER BLACKWELL

77 Beale Street 1535 Mission Street

San Francisco, CA 94106 San Francisco, CA 94103

(415) 781-4211 (415) 431-7430

* Attorney of Record

EVA JEFFERSON PATERSON BRENDA HARBIN

625 Market Street 364-1 4th Street

San Francisco, CA 94105 Oakland, CA 94612

(415) 543-9444 (415) 836-3630

SUBJECT INDEX

IIIT ss ccestsrnaset cileniapingsscdaiaanteunsnaieidbaiiiaiinimaanaatts

ERE Ne: Oe a oe EN vO

STE ITE TTI ose cthnonsnnnnchnnescadeenapecaptunomnnniioetiaanpennitian

SIE III TL IID. occ cos scsoccssopnaninscdsecionsassbeenaneneeseta

Statement of the Case ........... lsd anscatendpnnadetnadabibidiiiimaninniiin

ES ee oe Se RCE ee ee

SIIIIIIIIIIIID cicnsnasesbesecsnessensecesstenneencdessencssosnbeceseubnentesseceseoneenboesen

i « ~ JE aIIIETIED CUI a cnsnenscndnseeniconnennnnpesennedeenrenseneseentie

li. Court Enforcement of Affirmative Action In Times

of Shrinking Economic Resources Encourages

Employers To Provide Jobs For Minorities And

EES SEEDERS TET

Il. The District Court Had Inherent Authority To Mod-

ify The Original Consent Decrees ..............6.66666

A. The “Four Corners” Test Is pengeenns A -{*

Case Such As This Where The pereg

The Lower Court Was One To Modify

8 ECS eee

B. Failure To Modify The Decrees Would Have

Permitted The Petitioners To Repudiate The

Obligations Imposed Upon Them By The

SINE IIIT con ssccnsccensnepetbebucinishdesdinticaliicnmns

C. An Adjudication Of A Violation Of Law Was

Not A Prerequisite To The District Court's

Modification Of The Original Consent De-

UIE ssscoteschtsihlincheinineesineceadidinshibanncsiianepnbidlitiiameationton

D. The District Court's Modification Of The Origi-

nal Consent Decree Was Not Barred

Section 703( hh) OF Tithe VID occ

IV. Having An Integrated Fire Department Serves An

Important Government Interest Which Outweighs

The Rigid Maintenance Of A Seniority System......

A. Integrated Protective Services Serve An Impor-

tant Governmental Interest ............660c

B. Protective Service Employers Expectations Of

Seniority Do Not Outweigh Need For

An Integrated Fire Department.....................

TIDE... ciiiccndtiedecrnsnotieesvecerrnenevenntenennneenemetendatianan

13

TABLE OF AUTHORITIES

Cases Pages

Baker v. City of Detroit, 483 F. Supp. 930 (E.D. Mich.

RE rE te APE RTS Se 19, 20

Bolden v. Pennsylvania State Police, 73 F.R.D. 370

FEIITy WPUth WTP WDD ccccsccscceucnnestuscndecsninnceiesutaiadetieidaiinaneenne 14

Boston Firefighters Union, Local 718 v. Boston Chapter,

NAACP, US. .SLUS.L.W. 4566 (5/16/83)... 8

Bridgeport Guardians, Inc. vy. Members of Bridgeport Civil

Service Commission, 482 F.2d 1333 (2d Cir. 1973), cert.

GENE, ae Was See 6 FETS Penna 17

Brown v. Neeb, 644 F.2d 551 (6th Cir, 1981)...... 11, 13, 14, 16

Chrysler Corporation vy, United States, 316 U.S. 856

PePUE P cenusnusennsvetenvicowtseenepninsinidinnistninimeisitiin 11, 12

Defunis v, Odegaard, 416 U.S. 312 (1974) oc ccccccccceens 7

Detroit Police Officers’ Association v, Young, 608 F.2d 671

(6th Cir, 1979), cert. denied, 452 U.S, 938 C19B1) ....... 18

Fox v. United States Dept. of Housing, 680 F.2d 315 (3rd

SARE, FURIE D caccencocessnntnscoscccninnssishhosnensensthctndtonntbehataaaneennaas 1

Franks v. Bowman Transportation Company, 424 U.S. 747

CFE UED vinaccsapntesnnrabatinnacernesttiinanmaaiasiabina 16, 17, 18, 20

Hughes v. United States, 342 U.S, 383 (1982)........... 12, 13, 15

Murphy v. Hunt, 455 U.S, 478 (1982) oo.cccccceccccceeeeeeeeseenees 6

Powell v. McCormack, 395 U.S. 486 (1969) occccccreen 6

Sarabia v. Toledo Police Patrolman’'s Assn., 60\ F.2d 914

EGEE GE GIP 0W Pececneenccvcescvssccccnssesmnsenseeteechessiinnennieneniaaaaiae \4

BOING V. FawR, GID UB. FHS ( UGTS ? secsesercsccoscrncnsecccsvncscossiinens s

Stouts v. Memphis Fire Department, 679 F.2d S41

SL , RR a OTR ae ES >. 10, 11, 12, 19, 21

System Federation v. Wright, 364 U.S. 642 (1961) ou 11

Teamsters v. United States, 431 U.S. 324. (1977) ..06 16

United States vy. Armour & Co., 402 U.S. 673 (1971)... 12,13

United States v. Atlantic Refining Co., 360 U.S, 19

© GEIS P ccrncricetsevbbinnetinnniemeviotemnbenamiidiaimenndidl 12, 13, 15

United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d

GSE. FFG D cncccsccsvncoceccnscscoscesnnesustuoncscocennseennnpennenniineniaaaiainl 20

United States vy. 1TT Continental Baking Co., 420 U.S, 223

PPS P cacceesesezescocnccssseccesecenstanensuniassenionstuniialaanaanaananen 12,13

/

TT

Cases Pages

United States v. Swift & Co., 286 U.S. 106 (1932).... 11, 12. 15

United States v. United Shoe Machinery, 39\| U.S. 244

Y

a a a 11, 15

United States Parole Commission v. Geraghty, 445 US. 388

a sindaumeunscoononevecee 6

United Steelworkers v. Weber, 433 U.S. 193 (1979). ....... 9. 10

Weinstein v. Bradford, 423 U.S. 147 (1975)... 7

Zipes v. Transworld Airlines, 455 U.S. 385 (1982) 000000000000... 16

STATUTES

SEE ae eT 2

EE 5

42USC.

I ee 5

EE EES ee 5

Nee iene 5

EE ee 5. 9. 10,

16, 18, 20

CONSTITUTION

United States Constitution, Fourteenth Amendment...................... 5

OTHER AUTHORITIES

EEE 9.10

IN THE

Supreme Court of the United States

OctToper Term, 1983

FIREFIGHTERS Locat LNION No. 1784

Petitioner.

Vv

Carat W. Storrs, et al..

Respondents.

Mempuis Fire DEPARTMENT. et al..

Petitioners,

Vv.

Cart W. Storrs. et al..

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE OFFICERS FOR JUSTICE; INTERNA-

TIONAL ASSOCIATION OF BLACK FIREFIGHTERS—

SAN FRANCISCO CHAPTER; THE BLACK AGENDA

COUNCIL; THE ASSOCIATION OF NORTHERN CALIF-

ORNIA BLACK WOMEN LAWYERS; THE WILLIAM

HASTIE LAWYERS ASSOCIATION; THE CHARLES

HOUSTON BAR ASSOCIATION; THE KAPPA ALPHA

PSI FRATERNITY; BLACK WOMEN ORGANIZED FOR

POLITICAL ACTION; THE WILEY MANUEL LAW

FOUNDATION; THE NATIONAL BAR ASSOCIATION;

AND THE CALIFORNIA ASSOCIATION OF BLACK

LAWYERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

OPINION BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit is reported at 679 F.2d 541 (1982).

2

JURISDICTION

The jurisdiction of this Court is pursuant to 28 U.S.C.

§ 1254 (1). The Court of Appeal’s judgment was entered on

May 7. 1982. A petition for a Writ of Certiorari was filed on

August 4, 1982 and was granted on June 6, 1983.

CONSENT FOR FILING

This amici curiae brief is being filed with the consent of the

parties. Their letters of consent have been filed with the Clerk

of the Court pursuant to Rule 36.2 of the Rules of this Court.

INTEREST OF AMICI CURIAE

The common factor linking all amici in this brief ts their

strong commitment to the protection and advancement of the

civil rights of minorities. The instant case involves a District

Court's exercise of discretion to prevent institutionalization of

past discriminatory employment practices. Amici believe that

this appeal is moot, but in the event thac the Court reaches the

merits, it is imperative that it affirm the District Court's

authority to modify the consent decrees in the way it did to

prevent the seniority system from eradicating an affirmative

action plan. In this time of deep recession and decreasing

economic resources, black Americans, as well as other minority

groups, are already experiencing a disproportionately high level

of unemployment and economic dispair. These groups cannot

afford to undergo, and indeed they should not be required to

undergo, layoffs which would not only eliminate recently

acquired civil rights gains, but also would reinstate the dis-

criminatory status quo ante. Hence, amici’s interest in the

outcome of this case ts substantial.

Officers for Justice is an organization comprised of minor-

ity members of the San Francisco Police Department. It was

formed to address the issue of minority underrepresentation in

the San Francisco Police Department and to combat dis-

crimination aimed at those minorities who are members of the

3

police force. The organization has been involved in landmark

litigation aimed at desegregating the San Francisco Police

Department. Specifically, it has itself obtained a consent decree

providing for affirmative action in the hiring and promotion of

police officers in San Francisco. The preservation of the reme-

dial impact of consent decrees designed to eliminate the present

effects of past discrimination is of continuing and vital concern

to this organization.

The International Association of Black Firefighters—San

Francisco Chapter—is an organization of black professional

firefighters which recruits blacks into the fire department, assists

them in achieving promotions within the department, and

makes fire services more relevant to the needs and aspiration of

blacks and other minority citizens within San Francisco.

The Black Agenda Council, established in 1982, is a San

Francisco network of elected and appointed officials represent-

ing more than 30 different black organizations. The Council is

concerned with all issues affecting blacks in San Francisco and

across the country. It regards the issue of black employment to

be of paramount concern.

The Association of Northern California Black Women

Lawyers represents the interests of black women lawyers. The

Association is vitally concerned with the advancement of all

minority Americans.

The William Hastie Lawyers Association, an organization

of San Francisco-based black attorneys, includes equal employ-

ment opportunities for black Americans as one of its primary

goals. Named after the late Judge William Hastie, the bar

association is actively involved in protecting the civil nghts of

minorities.

The Charles Houston Bar Association, the oldest associ-

ation of black attorneys in Northern California, was founded in

1955. The Association has filed a number of amici briefs before

this Court on a variety of issues affecting the legal rights of the

black community. Named after one of the most distinguished

deans of the Howard University School of Law, the Association

4

strives to use the talents of black attorneys to advance the

general interests of black Americans and to ensure that equal

justice is a reality for them rather than an unfulfilled dream.

Kappa Aipha Psi Fraternity is an organization of some

80,000 black Americans concerned with all aspects of minority

affairs in this country. Founded in 1911 it has more than 500

Chapters throughout the nation and it has been long active in

struggles aimed at enhancing the lot (economic and otherwise )

of black Americans. Kappa Alpha Psi fervently believes that

the future of consent decrees. designed to alleviate the effects of

past discrimination, is of critical importance to its membership

and to all black Americans.

Black Women Organized for Political Action is a group of

800 women who advocate for progressive change for the

betterment of black people in this society. Since 1970. it has

been actively involved in issues of vital interest to the black

community including employment discrimination.

The Wiley Manuel Law Foundation was founded in 1982

for the purpose of ad ‘ressing legal issues of concern to th.

black community. The elimination of employment dis-

crimination is an issue which the Foundation views as critical to

black Americans.

The National Bar Association, founded in 1925, is a

professional membership organization which represents more

than 10,000 black attorneys, judges and law students in the

United States. Its purposes include achieving equal opportu-

nities for minorities in the legal profession and protecting the

civil and political rights of all citizens. The Association has a

particular interest in this case because of its belief in the

importance of affirmative action as a means of solving Amer-

ica’s racial problems.

The California Association of Black Lawyers consists of

seven affiliates throughout California and represents the major-

ity of black lawyers in the State. Among the purposes of the

Association is the vigorous defense of voiceless black people.

The Association is also acutely interested in ensuring that the

laws of this nation are enforced so as to guarantee that all

remnants of past discrimination are eradicated.

[-.

5

Amici’s -ollective involvement in efforts to ensure equal

employment opportunity for minority Americans and their

belief that the District Court’s modification of the consent

decrees herein was an essential step in the process of realizing

this goal has prompted this brief in support of Respondents.

STATEMENT OF THE CASE

In 1974, the United Sta°es Department of Justice com-

menced an action against the City of Memphis (City) under

Title VII, 42 U.S.C. § 2000e et. seq., 42 U.S.C. § 1981, the

Fourteenth Amendment and the State and Local Fiscal Assis-

tance Act of 1972, 31 U.S.C § 1221 et. seq. alleging that the

Memphis Fire Department (Fire Department) and various

other City agencies discriminated in their hirings and promo-

tions. Although it originally denied the allegations, the City

later agreed in 1974 to settle the litigation by a consent decree.

Carl W. Stotts, a black male employee of the Fire Depart-

ment, on February 16, 1977, filed a class action lawsuit alleging

that the Fire Department's hiring and promotion policies

violated Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000a, et. seq. and 42 U.S.C. § 1981 and § 1983.

The complaint accused the Fire Department of maintaining

racially discriminatory hiring and promotional practices. Fred

Jones, a black person, in 1979 also filed an action against the

City alleging that the Fire Department had denied him a

promotion solely because of his race. The Jones and Stotts cases

were consolidated and set for trial.

In 1980 the parties entered into a consent decree which

was approved by the District Court. [The expressed purpose of

the decree was to remedy the effects of past discriminatory

hiring and promotional practices of the Fire Department as

they impacted blacks. Jurisdiction was expressly retained by the

District Court to effectuate the purpose of the decree.

An unanticipated economic crisis was experienced by the

City in April 1981, which required layoffs and demotions in

various City departments. The layoffs and demotions were to be

6

based on strict seniority. Layoffs under the seniority system, as

applied to the Fire Department, would have virtually elimi-

nated the affirmative action gains under the 1974 and 1980

decrees.

On May 4, 1981, Respondents applied for and were

granted a temporary order restraining the City from laying off

or reducing in rank any minority employee in the Fire Depart-

ment. An evidentiary hearing was held by the District Court,

and the City was ordered not to implement any layoff policy

based upon seniority if such policy would decrease the per-

centage of blacks in several job classifications in the Fire

Department. The City later proposed and the District Court

approved layoffs and demotions that included a proportionate

number of blacks and whites. Both the City and the Union

appealed: however, the United States Court of Appeals for the

Sixth Circuit affirmed the District Court’s modification of the

consent decree to enforce the stated purpose of maintaining

black representation in the Fire Department. By November

1981. all laid off employees were reemployed by the Fire

Department.

QUESTION PRESENTED

Whether a District Court abuses its discretion by modi-

fying a consent decree to prevent proposed layoffs and demo-

tions of minority firemen in order to preserve the purpose of an

original consent decree designed to eliminate the effects of past

discrimination?

ARGUMENT

I

THIS APPEAL 'S MOOT

A case is moot if “the issues presented are no longer ‘live’

or the parties lack a legally cognizable interest in the outcome.”

United States Parole Commission v. Geraghty, 445 U.S. 388

(1980), quoting Powell v. McCormack, 395 US. 486, 496

(1969). See also, Murphy v. Hunt, 455 U.S. 478 (1982). In

7

Weinstein v. Bradford, 423 U.S. 147, 149 (1975), the Court

recognized that if a case is “capable of repetition, yet evading

review" it may not be moot. But, according to the Court, there

must be a reasonable expectation or a demonstrated probability

that the same controversy will recur involving the same com-

plaining parties. Weinstein, supra, at 149. That level of

probability is not present in this case.

On this appeal, Petitioners argue that the District Court's

modification of its original consent decree infringed upon their

rights under the seniority system by causing layoffs in 1981 ina

manner inconsistent with the established seniority system.

Subsequently, all laid off employees were reemployed by the

Fire Department. Therefore, the issues presented by this

appeal are no longer alive; and there is no evidence in the

record to show that these employees are again likely to be laid

off because of modifications of the consent decrees.

Petitioners’ position is that the District Court's modi-

fication of the city-wide seniority policy not only required the

City to layoff and reduce in rank white senior incumbent

employees in order to maintain a racially balanced Fire Depart-

ment, but also that this alteration of the seniority system was

illegal and that they were entitled to have their jobs restored.

This is precisely what has occurred. See Defunis v. Odegaard,

416 U.S. 312, 316-317 (1974). Since the District Court's order

has been completely fulfilled, no party is currently suffering any

adverse consequences from that order which was totally con-

sistent with a trial court's role in managing consent decrees.

Petitioners are now in essence requesting this Court to rule on a

matter that is no longer of controversy.

A consent decree is a unique instrument that represents

numerous hours of negotiations and concessions from all parties

in an atmosphere of compromise. The District Court is in the

unique position of evaluating the good faith of the parties, the

incentives necessary to make parties comply with the terms of

the consent decree and the most effective methods to modify a

consent decree in light of changed circumstances, The District

Court in the instant case exercised its discretion in light of all

the evidence in a manner designed to best achieve the goals of

S

the consent decree. In effect. the District Court's modification

ordered the City to maintain black representation in the Fire

Department. The City, responding to the court's order, did just

that. But in so doing, the City was able to find funds necessary

to keep the black firefighters as well as the white firefighters,

and therefore alleviate the necessity of laying off any fire-

fighters. Consequently, the court's order has been carried out,

the City has maintained its minority hiring and promotional

levels and the City managed to do this without laying off any

firetighters.

Given the important public interest in maintaining the

integrity of consent decrees and encouraging settlement of Title

VII lawsuits, there is no reason to overreach the facts of this

case and decide an issue which is not squarely presented to this

Court. Cf, Sosna v. lowa, 419 US, 393 (1975)

COURT ENFORCEMENT OF AFFIRMATIVE ACTION IN

TIMES OF SHRINKING FCONOMIC RESOURCES EN-

COURAGES EMPLOYERS TO PROVIDE JOBS FOR

MINORITIES AND NON-MINORITIES ALIKE,

It is important to note that after courts in Boston and

Memphis preserved the integrity of affirmative action orders,

through modifications that prevented the percentages of minor-

ities from being reduced as the result of layoffs, members of

both minority and non-minority groups were laid off. But, in

both cities all minority and non-minority alike who had been

laid off due to budgetary problems were rehired. This fact

rendered the appeal in the Boston Firefighters case moot

( Boston Firefighters Union, Local 7/8 v. Boston Chapter,

NAACP, —. US. ——— $1 U.S.L.W. 4566 (5/16/83)) and

should as previously argued render the appeal in this action

likewise Moot.

An important lesson is taught by the experiences in Boston

and Memphis. That lesson is that when municipalities are

forced to take seriously the notion that affirmative action goals

cannot be abrogated by adverse economic circumstances, they

9

tend to find ways of employing everyone. When the judicial

system, the ultimate protector of the nghts of minority citizens,

makes it clear that Title VII will be enforced to fully integrate

the work force and will not be ignored in times of shrinking

economic resources, society seemingly takes that instruction

seriously and somehow is able to find enough money to hire

everyone as demonstrated in Boston and now in Memphis.

Thus, by rigorously enforcing Title VII, the courts help to

ensure that the Congressional intent of opening up the work

force for minority workers is carned out.

In United Steelworkers v. Weber, 443 U.S. 193 (1979), this

Court eloquently stated the rationale for Title VII—a rationale

which remains valid today:

Congress’ primary concern in enacting the prohibition

against racial discrimination in Title VII of the Civil Rights

Act of 1964 was with “the plight of the Negro in our

economy.” 110 Cong. Rec. 6548 (remarks of Sen.

Humphrey ). Before 1964, blacks were largely relegated to

“unskilled and semi-skilled jobs.” /d., at 6548 ( remarks of

Sen. Humphrey ); éd., at 7204 ( remarks of Sen. Clark ); id.,

at 7279-7280 (remarks of Sen. Kennedy). Because of

automation the number of such jobs was rapidly decreas-

ing. See 110 Cong. Rec., at 6548 (remarks of Sen.

Humphrey); id., at 7204 (remarks of Sen. Clark). As a

consequence “the relative position of the Negro worker

(was) steadily worsening. In 1947 the non-white

unemployment rate was only 64 percent higher than the

white rate; in 1962 it was 124 percent higher.” /d., at 6547

(remarks of Sen. Humphrey). See also id, at 7204 (re-

marks of Sen. Clark). Congress considered this a serious

social problem. /d. at 202.

Municipalities such as Boston and Memphis who enter into

consent decrees to remedy the effects of past discrimination

should not be given the opportunity to negate their obligations

in the event of layoffs by employing seniority systems which

destroy the effects of the consent decrees. If such practices are

permitted then Title VII's relief is illusory at best. For, as the

Weber Court pointed out, “unless blacks (are) able to secure

jobs which have a future” (Id. at 203) the integration of blacks

into the mainstream of society will not be achieved:

Accordingly, it was clear to Congress that “(t)he crux of

the problem (was) to open employment opportunities for

Negroes in occupations which have been traditionally

closed to them,” 110 Cong. Rec. 6848 (1964) ( remarks of

Sen. Humphrey). and it was to this problem that Title

VII's prohibition against racial discrimination in employ-

ment was primarily addresset. /d@., at 203.

Strong, firm, and unyielding adherence to the concept of

full integration of the workforce and the workplace requires

that courts be permitted to modify consent decrees in ways

which do not result in the decimation of the advances made by

minority people. To be sure, society ts currently experiencing

economic contraction. But, if this Court continues its strong

support of the concepts embodied in Title VII and other ant-

discrimination statutes by giving a clear signal to employers and

the public at large, that members of minority groups will not

bear a disproportionate burden in these mes of economic

hardship, cities like Memphis as well as other employers will

find ways to incorporate minorities into the job market even in

times of shrinking economic resources.

Finally, it should be noted that, in unilaterally selecting the

job classifications in the Fire Department which would be

affected by the layoffs, the City chose those classifications where

minorities had recently made the most gains under the affirma-

tive action provisions of the 1974 and 1980 decrees. Srorts v.

Memphis Fire Department, 679 F.2d $41, 563 (1982). But,

after the District Court held that the decrees could not be

negated in this manner and that minorities would remain in the

Fire Department, a means was found by the City to reemploy

all the laid off workers. Without the modified consent decrees, it

is highly unlikely the City would have been motivated to

reemploy all of the laid off employees. Black firefighters

undoubtedly would have remained laid off.

THE DISTRICT COURT HAD INHERENT AUTHORITY

TO MODIFY THE ORIGINAL CONSENT DECREES.

A. The “Four Corners” Test Is Inapplicable In A Case Such

As This Where The Proceeding In The Lower Court Was

One To Modify The Consent Decree.

A trial court's authority to modify a consent decree upon a

showing of changed circumstances has been repeatedly af-

firmed by this Court. United States v. United Shoe Machinery,

391 U.S. 244 (1968); System Federation v. Wright, 364 US.

642 (1961); Chrysler Corporation v. United States, 316 US.

§56 (1942); United States v. Swift & Co., 286 U.S. 106 (1932).

This Court very early recognized that a court may modify a

consent decree whenever changed circumstances have turned

the decree into “an instrument of wrong.” Jd. at 115.

A consent decree is not to be read as “an abandonment of

the might to exact revision in the future, if revision should

become necessary in adaptation to events to be.” /d. at 115.

Thus, a court may exercise discretion to modify the terms of a

consent decree whenever a change of circumstances, “whether

of law or fact” so warrants. System Federation v. Wright, supra,

at 64.

Particularly where, as here, the District Court has expressly

reserved the right to modify a consent decree, a showing that

circumstances have risen that threaten to undermine the objec-

tives of the consent decree is sufficient to withstand a challenge

to the trial court's authority to modify the decree. U.S. v. Swift,

supra, at 115. See also Chrysler Corp., supra, at 562; Brown v.

Neeb, 644 F.2d 551, 557 (6th Cir. 1981).

The 1980 consent decree in the instant case had the stated

purpose of remedying the adverse effects of past hiring and

promotional practices. The decree expressly retained jurisdic-

tion in the District Court “for such further orders as may be

necessary or appropriate to effectuate the purposes of this

decree.” Srtotts v. Memphis Fire Department, supra, at 548.

12

After a full evidentiary hearing, the District Court found that

“the proposed layoffs would have a devastating and retro-

gressive effect on the affirmative action mandated in the 1974

and 1980 Decrees.” Sorts, supra, at 563. These findings have

not been challenged.

Under other similar circumstances, where a modification

has been made after a full evidentiary hearing, this Court has

stated “that the test to be applied in answering this question

| whether trial court’s modification was proper] is whether the

change served to effectuate or to thwart the basic purpose of the

original consent decree.’ Chnsler Corporation, supra, at 562

(citing Swift ). In light of the express purposes of the 1974 and

1980 decrees, and the adverse impact the layoffs would have

had on progress thereunder, modification clearly promoted the

objectives of the original decrees. In other words, modification

was required to prevent those decrees from being rendered

meaningless.

In spite of authority requiring a determination of whether

the purposes of a decree are affected by a modification,

Petitioners assert that the District Court’s modification con-

setuted clear error because the court went outside the “four

corners” of the consent decrees and improperly looked to the

purposes of the decrees. Petitioners rely on United States vy.

Armour & Co., 402 U.S. 673 (1971): United States v. Atlantic

Refining Co., 360 U.S. 19 (1989); and Hughes v. United States,

342 U.S, 353 (1982), for the proposition that a decree itself

“cannot be said to have a purpose.” Such reliance, however, is

badly misplaced because neither Armour, Atlantic Refining, nor

Hughes involved, as this case does, a proceeding to modify a

consent decree. Insicad, those cases involved actions based on a

claim that the ferms of the decree had been violated. And, in

those cases, this Court merely held that the construction of the

decree urged by the Government in its attempt to prove a

violation was inconsistent with the express terms of the consent

decree.

Moreover, Petitioners’ reliance on Armour, Atlantic Refin-

ing, and Hughes has already been foreclosed by this Court. In

United States v. ITT Continental Baking Co., 420 US. 223

(1975), this Court explained that resort to the “four corners”

13

language occurred in Armour, Atlantic Refining, and Hughes

only after the Government had urged a construction not

supported by the language of the decree. US. v. ITT

Continental Baking Co., supra at 235-36, Here, however, the

question is not whether a construction of the original decrees

supports a violation, but whether modification was proper.

Furthermore, it is significant to note that all of the above

cases, including /7T Continental, either expressly or implicitly

stated that the Government might have been able to obtain the

construction it sought if it had done precisely what the Re-

spondents here did—sought modification of the consent de-

crees. Specifically, in Armour, in the paragraph immediately

preceding the oft-quoted one, this Court stated that the Govern-

ment’s argument “might be a persuasive argument for modi-

fying the original decree, after full litigation, on a claim that

unforeseen circumstances now made additional relief desirable

to prevent the evils aimed at by the original complaint.” U.S. v.

Armour & Co., supra at 682 (footnote omitted). Accord, 1TT

Continental, supra at 233-34 0.8; U.S. v. Atlantic Refining Co.,

supra, at 23; Hughes v. U.S., supra at 357. Respondents in the

present case followed the procedure approved by the Court in

ITT Continental, Armour, Atlantic Refining, and Hughes. They

properly alleged that changed circumstances required a modi-

fication. Accordingly, the District Court properly modified the

decrees after an evidentiary hearing.

B. Failure To Modify The Decrees Would Have Permitted

The Petitioners To Repudiate The Obligations Imposed

Upon Them By The Consent Decrees.

When a city has undertaken, pursuant to a consent decree,

to institute necessary steps to remedy disadvantages suffered by

minorities as a result of past hiring and promotional practices,

as the City of Memphis did, courts have held them to that

obligation even in the face of asserted fiscal problems making

compliance with the agreements difficult. Thus, in Brown vy.

Neeb, supra, the court rejected the City of Toledo's argument

that it should be permitted to go through with proposed layoffs

that would have significantly depleted the ranks of black and

Hispanic firefighters in direct contravention of a consent decree

14

which imposed a duty on Toledo's Fire Department to attain

certain ratios within five years. The Brown court reasoned that

the object of the decree was to desegregate the fire department,

and that the District Court had authority to prevent actions

violative of Toledo's expressed commitment to that goal. Brown

v. Neeb, supra, at 557. Similarly. in Bolden v. Pennsylvania

State Police, 73 F.R.D. 370 (E.D. Pa. 1976), the court also

rejected the argument that personnel reductions caused by a

fiscal crisis would excuse the State Police from complying with

affirmative action requirements agreed to in a consent decree.

See also Sarabia v. Toledo Police Patrolman’s Association, 601

F.2d 914 (6th Cir. 1979).

In the instant case. the City agreed to remedy the past

hiring and promotion practices of its Fire Department. The

original decrees embodied agreements between the parties that

certain steps would be taken to improve minority representation

in the Fire Department, including accelerated minority hiring.

The decrees established a goal in this regard—i.e.. minority

representation in the department was to be increased until it

approximated the level of minority representation in the City.

The consent decrees were arrived at only after extensive

negotiations, during which the City at no time demanded that

the decrees include a provision that might excuse it from

compliance in the event it experienced economic hardship. Nor

did the City insist on a clause respecting layoffs. Rather, the

City specifically promised that it would reach certain goals and

would engage in certain hiring and promotion practices. There-

fore, the District Court did not err in merely holding the City to

its promise.

Strangely. the City now argues that the modification

should not have been made because the Respondents failed to

spell out what would happen in the event of layoffs. Petitioners’

Brief on the Merits, at pp. 15-16. Even more strangely, the City

asserts that the Respondents should have foreseen the layoffs,

and should have insisted on a clause protecting the rights of the

minorities hired under the consent decrees. Thus, Petitioners

are contending that Respondents should have had foresight

that the City itself did not have. This argument is without merit.

For it is undisputed that the layoffs were unprecedented.

15

The real question here is whether the City should be held

to fulfill the promises it made in the consent decrees. The City’s

commitment was made to increase minority representation in

the Fire Department; and, just as it had begun to fulfill that

commitment, it attempted to renege on it by asserting that a

fiscal crisis existed. Nothing in the original consent decrees

allowed repudiation of the City’s obligations because of an

asserted fiscal crisis. Furthermore, no provision limited the

decrees to situations where the City is motivated by an intent to

discriminate, or where there has been a finding of a violation of

the decrees. Petitioners are in virtually the same position as the

defendants were in Swift. And, in United Shoe, this Court

steted that “Swift teaches that a decree may be changed upon

an appropriate showing and it holds that it may nor be changed

in the interests of defendants if the purposes of the litigation as

incorporated into the decree .. . have not been fully achieved.”

U.S. v. United Shoe Machinery, supra, at 248 (emphasis in

original). Consistent with the teachings of Swift, this Court

should not permit Petitioners to escape the obligations imposed

by the consent decrees.

C. An Adjudication Of A Violation Of Law Was Not A

Prerequisite To The District Court's Modification Of The

Original Consent Decrees.

In no case where this Court has discussed the parameters

of a District Court's authority to modify a consent decree on the

grounds of changed circumstances has it imposed a requirement

that an adjudication of a violation of law precede modification

of the consent decree. The Petitioners do not, and cannot, point

to such a case. In support of their argument that an adjudica-

uon of a violation of law ts a prerequisite to a modification, the

Petitioners rely on Atlantic Refining and Hughes. But, as

demonstrated above, neither of those cases dealt with a District

Court's authority to modify a consent decree.

Petitioners also cite Fox v. United States Dept. of Housing,

680 F.2d 315 (3d Cir. 1982), which did involve the propriety of

a modification of a decree. In Fox, however, the parties sought

modification in an area that was only collateral and peripheral

to the primary obligation undertaken by the consent decree.

16

However. in the instant case the City agreed specifically to hire

and promote minorities. Thus, the maintenance of black fire-

fighters in the Fire Department goes to the very heart of this

case. and the consent decrees could properly be modified to

carry out those primary purposes. See Brown v Neeb, supra,

(Brown J.. concurring) (court can modify a consent decree in

light of changed circumstances if done to carry out the express

purpose of a decree. even in absence of a determination of

liability ).

D. The District Court's Modification Of The Original Con-

sent Decree Was Not Barred By Section 703(h) Of Title

Vil.

Contrary to Petitioners’ arguments, this Court has not

faced the issue of whether a bona fide seniority system can be

modified to prevent erosion of affirmative action gains under a

consent decree. However. the Court has unequivocally held that

Section 703(h) of Title VII does not insulate seniority systems

for all purposes. See Franks v. Bowman Transportation Com-

pany, 424 U.S. 747 (1976). In Franks, for example. the Court

held that Section 703(h) was merely a definitional provision

setting forth which employment practices are violations of Title

VII and should not be read as a bar to relief otherwise

appropriate under the Act. Franks, supra, at 758. 761-762.

Following the principles set forward in Franks. this Court has

repeatedly approved remedial modification of bona fide senior-

ity systems. See Teamsters v. United States. 431 US 324

(1977). and Zipes v. Transworld Airlines, 485 U.S. 3&5 ( 1982).

Consistent with the principles of Franks, the District

Court's action below merely maintained affirmative action gains

made under the consent decree—a goal which already had

been agreed to by all parties. Additwnally. the District Court

had specifically retained jurisdiction of the case for further

orders w effectuate the purposes of the decree. Rather than

being in conflict with Tithe VIL. the Court's action was consistent

with the public interest of encouraging settlements and fulfilling

the goals of settlement agreements

17

IV

HAVING AN INTEGRATED FIRE DEPARTMENT

SERVES AN IMPORTANT GOVERNMENT INTEREST

WHICH OLUTWEIGHS THE RIGID MAINTENANCE OF A

SENIORITY SYSTEM.

A. Integrated Protective Services Serve An Important Gov-

ernmental Interest.

Any reasonable comparison of the benefit to be derived

from the creation of a racially balanced Fire Department in the

City of Memphis with the enforcement of seniority mghts results

in the conclusion that the public benefit is by far the most

overriding consideration. Desegregation of this country’s major

iNstitutions is a national policy of the highest priority. Franks v.

Bowman Transportation Co.. supra. Public entities such as

protective service agencies and departments are especially

important arenas for desegregation because of the nature and

necessity of the services they provide. For exampie. the

Memphis Fire Department is responsible for protecting the

property and lives of the public. If it is to be effective in that

endeavor. it must be representative of all segments of the

population which it serves. The level of respect and cooperation

that the public affords any protective service agency is usually a

function of the public's perception of that agency. This “truism”

has been judicially recognized in previous cases and by analogy

may be applied to the instant case. This point was also made in

relation to police officers by the court in Bridgeport Guardians,

Inc. ¥. Members of Bridgeport Civil Service Commission, 482

F.2d 1333. 1341 (2nd Cir. 1973). cert. denied. 421 US. 991

(1975) when it stated that:

|Pjerhaps. the most critical consideration in our view ts

that this ts not a private employer and not simply an

exercise in providing minorities with equal employment

opportunities. This ts a police department and the visibility

of the black patrolmen is a devided advantage for all

segments of the public at a time when racial divisiveness is

plaguing law enforcement (emphasis added )

A few years later the court again in Detroit Police Officers’

Association v. Young, 608 F.2d 671, 696 (6th Cir. 1979) cert.

denied, 452 U.S. 938 (1981) explained the nature of the

benefits to be derived from racially balanced protective service

departments:

The argument that police need more minority officers is not

simply that blacks communicate better with blacks or that

a police department should cater to the public’s desires.

Rather, it is that effective crime prevention and solution

depends heavih upon public support and cooperation which

result only from public respect and confidence in the police.

In short the focus is not on the superior performance of

minority officers, but on the public’s perception of law

enforcement officials and institutions (emphasis added ).

It should be reiterated that the original consent decrees

were designed to alleviate the massive racial imbalance in the

Fire Department which was the result of discriminatory hiring

practices. The layoffs threatened the objective of the original

decrees —i.e., racial balance —and were not based upon criteria

which considered the imbalance existing prior to the decrees.

B. Protective Service Employers Expectations Of Seniority

Do Not Outweigh The Need For An Integrated Fire

Department.

The fact that senior employees may have formed ex-

pectations concerning their seniority rights which went unful-

filled because of the District Court's action adds nothing to

Petitioners’ position. A similar argument was made and re-

jected in Franks vy Bowman Transportation Co., Inc., supra.

There. an employer sought to avoid giving retroactive seniority

to a class of discriminatees on the grounds that such relief

would conflict with the economic interests of other employees.

Franks, supra, at 773. This Court. rejected that argument:

It ts apparent that denial of seniority rehef to identifiable

vicums of racial discrimination on the sole ground that

such relief diminishes the expectations of other, arguably

innocent. employees would. if apphed generally. frustrate

the central “make whole” objective of Title VIL... We

19

find untenable the conclusion that this form of relef may

be denied merely because the interests of other employees

may thereby be affected. /d. at 774-75.

Here. Petitioners’ vigorous argument that the District

Court's modification of the consent decrees unduly interfered

with the expectations of protective service employees ts particu-

larly unpersuasive given the fact that those expectations arose

out of the discriminatory state of affairs which existed prior to

1974.' The court in Baker v. City of Detroit, 483 F Supp. 930

(E.D. Mich. 1979). reached the same conclusion regarding an

identical argument. There, white police officers challenged a

voluntary affirmative action plan calling for realignment of

seniority rights between white and minority officers. In rejecting

the plaintiffs’ claim that Detroit's action unduly interfered with

their legitimate expectations, the court observed: “It is true that

affirmative action upsets the expectations of white workers, bur

such expectations are indeed tainted when they are based upon a

legacy of discrimination.” Id. at 1002 (emphasis added). The

court went on to point out that white officers had received an

unexpected “bonus” when the police department gave them

unearned promotions in 1970 as part of the discriminatory

conduct and it held that “| white officers cannot reasonably

complain when the Department. on a finding of past dis-

crimination and operational need. decided to confer a “bonus’

on blacks in 1974 and subsequent years.” /d.

Similarly. in the present case the Court of Appeals rejected

the proposition that a consent decree which accelerated minor-

ity eligibility for promotions unduly interfered with the ex-

pectations of non-minorities. The Court of Appeals observed

that “{a] simple reduction in the ‘expectations’ of non-

minorities does not. . . necessarily make a consent decree

unreasonable.” Storrs, supra, at 556 and it went on to hold that

the harm suffered by incumbent non-minority employees be-

cause of the promotional goal was deminimus:

‘Even five years after the 1974 decree. the employment situation in the

Fire Department for blacks was sull deplorable. For example: “In 1979.

blacks constiuted between 33 and 37 percent of the Memphis population.

However. the Fire Department was only |) percent black.” Srotts, supra, 679

Fld at $%0)) The past hiring and promotiwnal polices of the City caused this

tremendous imbalance in the hiring -ad promouon of blacks Id.

20

Non-minorities allege that the 1980 Decree’s 20% promo-

tion goal unduly interferes with their expectation of pro-

motion. It appears, however, that the expectation of non-

minorities is based upon a pre-decree minority promotion

ratio which presumptively would have been significantly

higher had the City’s employment practices been

nondiscriminatory. The 1980 Decree eliminated only a

portion of the promotional expectations of non-minorities

which were presumptively based on the City’s dis-

criminatory promotional practices. /d. (emphasis in the

original ).

Here. just as the white Police Officers in Baker, the

expectations of white Fire Department employees are based

upon a pre-decree situation caused by discriminatory conduct

and the lingering effects of that situation. To the extent that the

District Court’s limitation on layoffs interfered with those

expectations, it did not adversely affect any legally protected

interest of white employees. As the Court of Appeals for the

Second Circuit observed in discussing Title VII, “[i]f relief. . .

can be denied merely because the majority group of employees.

who have not suffered discrimination, will be unhappy about it,

there will be little hope of correcting the wrongs to which the

Act is directed.” United States v. Bethlehem Steel Corp., 446

F.2d 652. 663 (2nd Cir. 1971). Accord. Franks, supra, 424 US.

at 775.

There is an important national policy served by not

allowing seniority rights to overrule affirmative action efforts

instituted to rid society of the historical evils of racial dis-

crimination. Petitioners argue as if the seniority rights of white

protective service employees in Memphis accrued in a vacuum.

They assume, and invite this Court also to assume, that their

seniority rights were accumulated in a racially-neutral fashion.

From this false premise, they conclude that the purportedly

“neutral” seniority rights of white protective service employees

outweigh the public interest in desegregating the Memphis Fire

Department.

This argument overlooks the fact that, bur for the dis-

criminatory hiring practices which triggered this litigation and

hut for the continuing effects of that past discrimination, the

distribution of seniority mghts between white and minority Fire

Department employees would be far different from that in

existence in 1981. For as the Court of Appeals observed in its

opinion below:

It is unfortunate that the City engaged in the employment

Practices which precipitated the decree. However,

honaminorities benefitted from, practiced, and acquiesced in

those practices. The 1980 Decree is a reasonable means to

correct the adverse effects which minorities shouldered as a

result of those employment practices. Srorts, supra, at $39.

One of the most significant advantages conferred upon

Petitioners as a group was their preferential position on the

seniority lists which they would not have attained but for

discrimination against minorities. The minority firefighters cur-

rently employed by the City of Memphis were the “last hired”

for the sole reason that because of discriminatory hiring

Practices no appreciable numbers of minorities were hired prior

wo 1974. Thus, the disparity in starting dates between white and

minority Fire Department employees is nothing more than the

mirror image of the discriminatory conditions which existed in

1974

In view of the foregoing, any comparison of the benefits to

be derived by white employees from enforcement of their

seniority rights on the one hand and the public benefit in having

racially balanced fire departments on the other must result in

the conclusion that the public benefit is by far the overriding

consideration.

Measured against these factors, the interests of protective

service employees in enforcement of their seniority rights do not

support the relief they seek. A program of layoffs based upon

strict seniority would benefit only white firefighters because it

would fulfill their expectations which are based upon the

discriminatory conditions existing prior to the consent decrees.

and it would frustrate the City’s need for a racially balanced

Fire Department.

CONCLUSION

Amici curiae respectfully urge this Court to uphold the

fundamental principle that seniority rights may not be used to

bar the modification of 4 consent decree to alleviate the effects

of past discrimination that it was originally designed to accom-

plish.

Dated: October 14, 1983

Respectfully submitted.

Ropert L. Harr\is

Atrorney of Record

EVA JEFFERSON PATERSON

ANGELA GLOVER BLACKWELL

BRENDA HarBIN

Attorneys for Amici

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