Amicus Curiae Brief — Wygant v. Jackson Board of Education

| FILED ff

»3 AUG 26 1985

No. 84-1340 ~~ OSEPH F. SPANIOL, JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

WENDY WYGANT, et ai.,

Petitioners,

v.

JACKSON BOARD OF EDUCATION, et al.,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF CONGRESSIONAL

COALITION IN SUPPORT OF RESPONDENTS

MORGAN D. HopGson

(Counsel of Record)

RICHARD RUDA

LINDA C. KAUSKAY

ANITA G. RABY

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-3000

Attorneys for

Congressional Coalition,

Amicus Curiae

ee sessnnsnnsnssnnnnnnnnnnanenny

~ BEST AVAILABLE COPY |

QUESTION PRESENTED

Whether the fourteenth amend-

ment permits a school board and a

teachers’ association to agree to a pro-

vision in a collective bargaining agree-

ment, designed to combat’ substantial

underrepresentation of minority school-

teachers, which provides that in a layoff

the percentage of minority teachers among

teachers laid off shall not exceed the

percentage of minority teachers’ then

employed.

TABLE OF CONTENTS

Page

OCv6estion Presented. occccccseeseee i

Pable of Author i tieGs ccesseseesne Vv

Interest of the Amicus Curiae.... 1

Statement of the CaSe€...ccccccces 5

Summary Of Argument......ceceeees 5

ALGUMENC. cccccccccccccceseeeseses ll

Ze JACKSON'S RACE-CONSCIOUS

LAYOFF PROVISION IS

La Cisco co ceceeeessee ene 14

A. Congress Intended

That the Same Legal

Standards Should

Apply to Voluntary

Affirmative Action

Undertaken by Public

and Private Employers

and this Intent Is

in Accordance with

the Constitution....... 14

B. Article XII is a

Constitutionally

Permissible Racial

Classification......... 31

- ii

II.

IF THE COURT REVERSES

THE SIXTH CIRCUIT, THE

FOURTEENTH AMENDMENT

SHOULD NOT BE INTER-

PRETED IN A WAY THAT

WOULD CONSTRICT CON-

GRESS' POWER TO ENFORCE

THE EQUAL PROTECTION

CLAUSE. cece cecccccesccesees

A.

The Court Has Inter-

preted Section Five

of the Fourteenth

Amendment as a

Broad Grant of

Plenary POWer....ssee0-

Congress Has Repeat-

edly Enacted Race-

Conscious Remedies

Pursuant to Its

Powers Under Section

Five and the Court

Has Found These

Enactments to Be

Constitutional.........

Congress Is the

Branch Entrusted

with Enforcing the

Fourteenth Amend-

ment and Is Well

Equipped to Combat

Discrimination......e-.

- iii -

Page

39

41

43

54

Page

Congress‘ Authority

Under Section Five

Would Be Nullified

if the Fourteenth

Amendment Were Inter-

preted to Require

Individualized

Determinations of

Past Discrimination.... 56

Although Congress

Has Made Progress

Toward Achieving the

Goals of the Equal

Protection Clause,

Much Remains to Be

DONE. ccccccccccccccccecs 59

a a en 62

TABLE OF AUTHORITIES

Page

Cases

Albemarle Paper Co. v. Moody,

2a UcBe S65 (L973) ccoccceces 16

Arthur v. Nyquist, 712 F.2d

816 (2d Cir. 1983), cert.

denied, 104 S. Ct. 1907

TawOe coccseessocecesoscecese§) SAe 34

Bratton v. City of Detroit, 704

F.2d 878 (6th Cir. 1983),

cert. denied, 104 S. Ct.

FOS CAPSS) cocccceceocecececes 17

Brown v. Board of Education, 347

i - 483 (6)! ) eer 36, 37

Buckley v. Valeo, 424 U.S. 1

CEO IOs coccecseesceceseoseeoes 26

Bush v. Lucas, 462 U.S. 367

CLFSS) cocescecescessevceceece 55

Carson v. American Brands, Inc.,

450 U.S. 79 TAPeL copeocecece 29

Detroit Police Officers’ Associa-

tion v. Young, 608 F.2d

671 (6th Cir. 1979), cert.

denied, 452 U.S. 938

TRUSS) covcecescseoeevcestesces 39

Dothard v. Rawlinson, 433 U.S.

321 Oh yy) PPPPTTT IIIT 15

Page

Firefighters Local Union No.

1784 v. Stotts, 104

Be See SETS CoeeSd cccoeccccee B00 26e

29, 35

Fitzpatrick v. Bitzer, 427 U.S.

445 PRTes 66666666600 00606¢66e 50, 51

Ford Motor Co. v. Huffman, 345

Webbe 330 04.) ) Pree 36

Fullilove v. Klutznick, 448

U.S. 448 (1980)... eoeeee eevee passim

Griggs v. Duke Power Co., 401

U.S. 424 CAPT E) cocccoccccoes 16, 29

International Brotherhood of

Teamsters v. United States,

431 U.S. 324 CAD7 ed cocceocecs 20

Johnson v. Transportation Agency,

36 Fair Empl. Prac. Cas.

(BNA) 725 (9th Cir. 1984)... 17

Katzenbach v. Morgan, 384 U.S.

641 ER 6 6666666606066 6066 27, 29,

42, 43, 54

Kromnick v. School District, 739

F.2d 894 (3d Cir. 1984),

cert. denied, 105 S. Ct.

( Me | PPT T eT TTT ree 17

McCulloch v. Maryland, i7 U.S.

(4 Wheat.) TREO P coeccoervece 42

McDaniel v. Barresi, 402 U.S.

39 Clr) ) PPPPPPTTTITITTT TTT 38, 48

Mississippi University for

Women v. Hogan, 458 U.S.

718 LAPSES Coccceecsesocsdssbce 25

Page

Morgan v. O'Bryant, 671 F.2d 23

(lst Cir.), cert. denied,

459 U.S. 827 (1982) ~cccccees 32

NAACP v. Beecher, 679 F.2d 965

(lst Cir. 1982), vacated

on other grounds, 461 U.S.

477 (1983) -.cccccccceccveves 38

North Carolina State Board of

Education v. Swann, 402

U.S. 43 (1971) ecccccccccccce 25, 38,

48

Oregon v. Mitchell, 400 U.S.

112 (1970) ec ccc ccscccveveces 42

Regents of the University of

California v. Bakke, 438

U.S. 265 (1978) ~cccccccccces 26, 30,

38

Scott v. City of Anniston, 597

F.2d 897 (5th Cir.),

cert. denied, 446 U.S.

917 (1979) -ccccccccccccscces 15

South Carolina v. Katzenbach,

383 U.S. 301 (1966)......2-. 26

Swann v. Charlotte-Mecklenburg

Board of Education, 402

U.S. 1 (1971) cc cccccccccveces 25, 27

38, 54

Tangren v. Wackenhut Services,

Inc., 26 Fair Empl. Prac.

Cas. (BNA) 1647 (9th Cir.

1981), cert. denied,

456 U.S. 916 (1982) ....-ee0s 36

- vii -

Page

United Jewish Organizations v.

Carey, 430 U.S. 144

Pog) a ererrrrTTTrrrTeTrTTTTTe 26

United Steelworkers of America

v. Weber, 443 U.S. 193

Ol, PTY TITITTTTrTirrirTeTe passim

Valentine v. Smith, 654 F.2d

503 (8th Cir.), cert. °

denied, 454 U.S. 1124

TRUE Se ehbeeeeseseesrorcococcoe 17

Statutes

15 U.8.C. § 637 (d) TReOa) beocoedoce 49

42 U.S.C. §§ 2000e et seq.

ERG) 600606666656 SRS OCC EEE 14, 49,

50

42 U.S.C. §§ 6701 et seq.

(19B2) cccccccccccgccccoccces 46

42 U.S.C. § 6870 TAGGaP cceceseoose 49

47 U.S.C. §§ 521 et seq.

C2OBSS co cesceeseocesovceesece 52

47 U.S.C.A. § 554(c) (Supp.

BOGS) coccossssoccesseccocece 50, 53

Act of July 16, 1866, ch. 200,

14 Stat. o> wre, Ty TT TTT 44

Pub. L. No. 92-261 CAST Adcccccccs 14

Pub. L. No. 98-549 (1984)......-.. 50, 52

- viii -

Page

Legislative Materials

Cong. Globe, 38th Cong., lst

Sess. 2801 (1864) ~-ccccccccce

Cong. Globe, 39th Cong., lst

Sess. 3149 (1866) -ccccccceces

118 Cong. Rec. 4918 (1972).....-.

H.R. Rep. No. 238, 92d Cong., lst

Sess. (1971), reprinted

in 1972 U.S. Code Cong.

& AG. WEwWS BW3Peccccccccvsecce 5,

52

S. Rep. No. 415; 92 Cong., lst

Sess. (1971) eccccccccccccces 15,

51

Regulations

10 C.F.R. § 1040.7(a) (1985).....

10 C.F.R. § 1040.7(c) (3)

(1985) . cc ceccceevececccerees

13 C.F.R. §§ 124.11 to 124.3-1

(1985) ~. cece ccceeeveeeseseces

29 C.F.R. § 1607.11 (1984).......-

29 C.F.R. § 1607.13 (1984).......

29 C.F.R. § 1607.17 (1984).......

29 C.F.R. § 1608.1 (1984)......-. 16,

o is -

Page

Other Authorities

A. Bickel, The Least Dangerous

Branch ERD 6606606660 6006080

Cox, The Role of Congress

in Constitutional Deter-

minations, 40 U. Cin. L.

MOV. LOD (CA9TL) coccecccccecce

Ely, The Constitutionality of

Reverse Racial Discrimi-

nation, 41 U. Chi. L. Rev.

TSS CESTEd ccocceccoccesceoceee§ 25

The Potomac Institute, A Decade

of New Opportunity:

Affirmative Action in the

Bee CBee Esccccecececcosoces | 689

61

Schnapper, Affirmative Action

and the Legislative History

of the Fourteenth Amendment,

71 Va. L. Rev. 1 (1985).....

Statistical Abstract of the vwnited

States (105th ed. 1985).....

30

56

30

60

43

40

NO. 84-1340

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1985

WENDY WYGANT, et al.,

Petitioners,

Vv.

JACKSON BOARD OF EDUCATION, et al.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF CONGRESSIONAL

COALITION IN SUPPORT OF RESPONDENTS

*

INTEREST OF THE AMICUS CURIAE ~

Amicus curiae are a bipartisan

coalition comprised of the following

+, Consents of the parties to the

iling of this brief have been obtained,

and letters reflecting such consents are

on file in the Office of the Clerk.

Members of Congress: The Honorable Don

Edwards, Chairman of the Subcommittee on

Civil and Constitutional Rights of the

Committee on the Judiciary; The Honorable

Augustus F. Hawkins, Chairman of the Com-

mittee on Education and Labor; The Honor-

able James M. Jeffords, Ranking Minority

Member of the Committee on Education and

Labor; The Honorable John Conyers, Chair-

man of the Subcommittee on Criminal

Justice of the Committee on the Judici-

ary; The Honorable Patricia Schroeder,

Chair of the Subcommittee on Civil

Service of the Committee on Post Office

and Civil Service and Co-Chair of the

Congressional Caucus for Women's Issues;

The Honorable Pat Williams, Chairman of

the Subcommittee on Select Education of

the Committee on Education and Labor; The

Honorable Barney Frank, Chairman of the

Subcommittee on Employment and Housing of

the Committee on Government Operations;

The Honorable Cardiss Collins, Chair of

the Subcommittee on Government Activities

and Transportation of the Committee on

Government Operations; and The Honorable

Norman Y. Mineta, Committee on Public

Works and Transportation. The various

congressional committees and subcommit-

tees on which these Members serve are

concerned with protecting civil rights

and eliminating discrimination.

The issue in this case --

whether the fourteenth amendment permits

the race-conscious remedial action taken

by respondents -- is of vital interest to

Congress. The fourteenth amendment

expressly charges Congress with the duty

and power to enforce the amendment. For

more than a century Congress has sought

to enforce the amendment and eliminate

the tragic legacy of race discrimination

by enacting effective remedial leg-

islation. The use of appropriate

race-conscious legislation to combat race

discrimination has proved to be effective

and necessary.

Although this case does not

directly address Congress' authority to

remedy race discrimination, the manner in

which this Court decides it may impinge

upon Congress’ ability to enforce the

fourteenth amendment. We believe that to

eliminate race discrimination -- one of

the most serious social issues of our

time -- a full range of remedies, includ-

ing appropriate race-conscious actions,

must remain available. We further

believe that voluntary affirmative action

_by public, as well as private, employers

is both constitutional and essential. In

view of Congress' specific mandate to

enforce the fourteenth amendment, the

Coalition believes that its views will be

of assistance to the Court in this case.

STATEMENT OF THE CASE

Amicus curiae adopt the facts

as presented in the Brief for Jackson

Education Association as Amicus Curiae

Supporting Respondents at pages 4-23, and

Respondents’ Statement of the Case.

SUMMARY OF ARGUMENT

Public employers and _ unions,

like their private counterparts, may

engage voluntarily in race-conscious

affirmative action without violating the

Constitution. This Court should there-

fore affirm the Sixth Circuit's ruling

that Article XII, the race-conscious

layoff provision adopted by the Jackson

Board of Education and the Jackson Edu-

cation Association as part of a collec-

tive bargaining agreement, is permissible

under the fourteenth amendment. However,

if the Court reverses the judgment of the

Sixth Circuit, we urge it to frame its

instructions to the court below in a

manner that does not constrict Congress’

power to enforce the fourteenth amendment

through appropriate race-conscious

legislation.

In United Steelworkers of

America v. Weber, this Court held that a

voluntary, race-conscious affirmative

action plan entered into by a private

employer and the bargaining representa-

tive of the potentially affected employ-

ees did not violate Title VII. Although

the employer in this case is public and

thus subject to the fourteenth amendment

as well as to Title VII, the Court should

reach the same result here. Like the

plan in Weber, Article XII is the product

of collective bargaining, is a voluntary

departure from the ordinary workings of

seniority, is designed to remedy the

effects of the exclusion of blacks from a

desirable occupation, and is both tem-

porary and narrowly tailored.

To apply different standards to

voluntary affirmative action undertaken

by private and public employers would

frustrate the clearly expressed intent of

Congress. Congress extended the coverage

of Title VII to the public sector in

1972, in part as an exercise of its four-

teenth amendment powers. The legislative

history of these amendments firmly estab-

lishes both Congress' approval of the use

of race-conscious remedies subsequent to

the passage of Title VII and its intent

that the same principles and standards

apply to private and public employers

under Title VII. The Constitution does

not require a different outcome.

This Court has upheld under

the equal protection clause voluntary

race-conscious affirmative action plans

intended to remedy the present effects of

past discrimination. Although the Court

has not articulated an absolute constitu-

tional standard to be applied to affirma-

tive action efforts, Article XII passes

constitutional muster even under strict

scrutiny. Article XII was necessary to

preserve the results of the Jackson

school district's efforts to recruit and

retain minority teachers -- efforts

undertaken in response to the Board of

Education's determination that blacks had

been chronically underrepresented on the

school district's teaching force. As

part of a collective bargaining agreement

Subject to renegotiation, the provision

is necessarily temporary. Since it was

the result of the collective bargaining

process, it does not interfere with the

settled expectations of affected white

employees. Finally, its impact upon

whites has been relatively light. Thus,

Article XII is lawful under both Title

VII and the fourteenth amendment.

Should this Court conclude that

Article XII is not constitutionally per-

missible under the fourteenth amendment,

however, we urge it to frame its ruling

narrowly so as not to impair Congress'

ability to attack through legislation the

evils which the fourteenth amendment was

designed to eradicate. Because of the

number and diversity of its members, the

broad scope of its fact-finding proce-

dures and the relative absence of time

pressures, Congress is well suited to

engage in the complex social balancing

that is required in this area. Moreover,

because Congress is not bound to the

case-specific inquiries characteristic of

- 10 -

the courts, it may conduct general fact-

finding and enact remedies that reach

beyond those available to a court

adjudicating a particular controversy.

It is these very characteristics that

give rise to Congress' concern about the

scope of the Court's ruling. A decision

in this case that the fourteenth

amendment requires findings of inten-

tional discrimination or the identifica-

tion of specific victims as a

prerequisite to race-conscious remedial

action would cripple Congress’ ability to

combat race discrimination.

Congress must be permitted to

continue to draw appropriate inferences

from the results of its own fact-finding

process and to devise appropriate reme-

dies based on these inferences. This

Court has recognized that Congress’

enforcement pasece under section five of

the fourteenth amendment are broad. For

- ll -

more than a century Congress has enacted,

pursuant to those powers, race-conscious

remedies to redress race discrimination.

This Court has repeatedly upheld such

efforts, emphasizing that Congress' power

to enact race-specific remedies exceeds

that of the courts. Race-conscious legis-

lation has made a significant difference

in alleviating the consequences of race

discrimination. However, the task is far

from complete. We urge the Court to

decide this case in a manner that pre-

serves both tue federal programs now in

place and Congress’ constitutional

authority to resort to race-conscious

remedial legislation in the future.

One hundred twenty years after

the abolition of slavery race discrimi-

nation remains widespread. The cost of

- 12-

continued racial isolation, in terms of

lost talents, broken spirits and social

strife, is intolerably high. This case

presents the Court with the opportunity

to decide whether public employers, like

private employers, may adopt voluntary,

race-conscious, affirmative remedies for

past discrimination consistent with the

Constitution. Because the use of such

remedies is in accordance with

congressional intent and the consti-

tutional principles articulated in previ-

ous decisions of this Court, we believe

the Court should uphold the~ race-

conscious layoff provision jointly

adopted by the Jackson Board of Education

and the Jackson Education Association and

affirm the decision of the Sixth Circuit

in this case.

If the Court reverses the deci-

sion beiow, however, we urge the Court to

- 13 -

remain cognizant of the possible implica-

tions for Congress of any rulings con-

cerning the scope of affirmative action

permissible under the fourteenth amend-

ment. That amendment charges Congress

with the duty and power to enact appro-

priate legislation to combat race dis-

crimination, and the broad discretion the

amendment affords is essential to creat-

ing effective remedies for a problem

which requires such complex social bal-

ancing. Therefore, we urge the Court,

should it reverse, to narrowly tailor its

ruling so as not to impair Congress’

ability to enact race-conscious remedies

_pursuant tec its fourteenth amendment

powers.

Section One of this. brief

discusses the constitutionality of

affirmative action by public employers

and of the particular race-conscious

layoff provision at issue in this case.

- 14 -

Section Two addresses Congress' four-

teenth amendment powers, the charac-

teristics which make Congress well suited

to develop remedies in this area and

Congress' particular interest in the

scope of the Court's ruling in this case.

I. JACKSON'S RACE-CONSCIOUS LAYOFF

PROVISION IS LAWFUL

A. Congress Intended that the Same

Legal Standards Should Apply to

Voluntary Affirmative Action

Undertaken by Public and

Private Employers and this

Intent Is in Accordance with

the Constitution

This Court has recognized that

| V/

when Congress extended Title VI cover-

2

age to public employers in 1972,-/

it "expressly indicated the intent that

the same Title VII principles be applied

to governmental and private employers

1/42 U.S.C. §§ 2000e et seq. (1982).

2/. Pub. L. No. 92-261 (1972).

- 18 -

3/

were enacted, Congress expressed its

alike. At the time these amendments

approval of the race-conscious affirma-

tive action remedies devised by the

4/

courts. Congress also rejected

3/ Dothard v. Rawlinson, 433 U.S. 321,

331 n.14 (1977). See also Scott v. City

of Anniston, 597 F.2d 897, 900 (5th

Cir.), cert. denied, 446 U.S. 917 (1979).

4/ Both the House and Senate reports

cited with approval judicial decisions

upholding affirmative action. See S.

Rep. No. 415, 92d Cong., lst Sess. 8 n.4

(1971); H.R. Rep. No. 238, 92d Cong., lst

Sess. 5 n.l (1971), reprinted in 1972

U.S. Code Cong. & Ad. News 2137, 2141.

The House report explicitly stated that

"([a]Jffirmative action is relevant not

only to the enforcement of Executive

Order 11246 but is equally essential for

more effective enforcement of Title VII

in remedying employment discrimina-

tion." Id. at 16, 1972 U.S. Code Cong. &

Ad. News at 2151.

Affirmative action guidelines issued

by the Equal Employment Opportunity

Commission recognize "the clear

Congressional intent to encourage

voluntary affirmative action" and

reiterate the Commission's belief "that

by the enactment of Title VII Congress

did not intend to expose those who comply

(Continued)

- 16 -

amendments to Title VII which would have

precluded the use of race-conscious

measures under Executive Order 11246 or

the 1964 Civil Rights act This

clearly expressed intent of Congress in

favor of affirmative action by public as

well as private employers would be frus-

trated if the Court holds that more

Stringent standards apply to- public

employers under Title VII and_ the

fourteenth amendment than apply to

(Footnote 4 continued)

with the Act to charges that they are

violating the very statute they

are seeking to implement." 29 C.F.R.

§ 1608.1 (1984). This Court has noted

that the EEOC Guidelines, as the

administrative interpretation of Title

VII by the enforcing agency, are

"entitled to great deference." Albemarle

Paper Co. v. Moody, 422 U.S. 405, 431

(1975) (quoting Griggs v. Duke Power Co.,

401 U.S. 424, 433-34 (1971)).

5/ See 118 Cong. Rec. 4918 (1972).

“o> ual

- 17 -

private employers under Title VII

6/

alone.

In United Steelworkers of

7

America ov. Weber this Court upheld

under Title VII a voluntary, race-

conscious affirmative action plan

collectively bargained by a _ private

6/ Courts confronting the range of

race-conscious remedial action undertaken

by public employers have concluded,

expressly or impliedly, that a public

employer which adopts a voluntary

affirmative action plan valid under Weber

will be insulated from Title VII

liability. See, @.g., Johnson v.

Transportation Agency, 36 Fair Empl.

Prac. Cas. (BNA) 725, 729 (9th Cir.

1984); Kromnick v. School District, 739

F.2d 894, 911-12 (3d Cir. 1984), cert.

denied, 105 S. Ct. 782 (1985); Bratton v.

City of Detroit, 704 F.2d 878, 884 (6th

Cir. 1983), cert. denied, 104 S. Ct. 703

(1984).

Voluntary affirmative action by

public employers has also been upheld

against challenges based on the equal

protection clause of the fourteenih

amendment. See, e.g., Kromnick v. School

District, 739 F.2d at 908-09; Valentine

v. Smith, 654 F.2d 503, 511 (8th Cir.),

cert. denied, 454 U.S. 1124 (1981).

7/443 U.S. 193 (1979).

- 18 -

employer and the bargaining represen-

tative of the potentially affected

employees. The objective of the plan was

to increase the level of black represen-

tation in the employer's craft force

until it equalled the percentage of

blacks in the labor force. The method

used to achieve this objective was to

reserve for blacks one-half of the places

in a special training program. Although

seniority was a factor in the allocation

of places in the training program, sepa-

rate lists of black and white workers

were maintained. As a result, some white

workers denied admission to the program

had more seniority than some of the black

workers admitted. Recognizing that the

plan was adopted "to eliminate tradi-

8/

the Court concluded that Title VII

tional patterns of racial segregation,

8/ Id. at 201.

- 19 -

permits employers and unions to agree to

such temporary measures to eliminate

manifest racial imbalances in tradi-

tionally segregated job eeneeerten.”

Practical and equitable consid-

erations played a primary role in the

Court's decision in Weber. The result

was necessary to insure the effective

operation of Title VII, with its emphasis

on voluntary action without litigation.

It was also necessary to shield employers

from the dilemma of choosing between lia-

bility to blacks for past discrimination

on the one hand, and liability to whites

for any voluntary preferences adopted to

mitigate the effects of prior discrimina-

10/

tion against blacks on the other.

9/ Id. at 207.

10/ See id. at 209-10 (Blackmun, J.,

concurring).

The Court's recent decision in

Firefighters Local Union No. 1784 v.

(Continued)

- 20 -

Many of the characteristics and

purposes of the Kaiser-USWA plan upheld

in Weber are similar to those of Article

XII, the layoff provision challenged in

this case. The Kaiser-USWA plan, like

(Footnote 10 continued)

Stotts, 104 S. Ct. 2576 (1984), does not

overrule Weber. Stotts simply extended

the Court's holding in International

Brotherhood of Teamsters V. United

States, 431 U.S. 324 (1977) -- that a

court may award competitive seniority

only to individual victims of past

discrimination -- to judicial modi-

fication of a consent decree to require

race-conscious layoffs over the object-

ions of a union. Stotts has no applica-

tion to voluntary affirmative action

which is the product of a negotiated

agreement between an employer and a

union.

1l/ This layoff provision was first

adopted by the parties in Article XII of

their 1972 collective bargaining agree-

ment. For clarity, it is referred to

throughout this brief as Article XxII.

= 21 -

Article XII, was the product of collec-

12/ ;

tive bargaining. Both plans deviated

from the ordinary workings of senior-

13/

ity. Both plans were designed

to remedy the effects of the exclusion of

' ' 14/

blacks from desirable occupations.

Just as minority employees had no absol-

ute right to advancement under’ the

Kaiser-USWA plan, minority teachers have

no absolute right to protection from

15/

layoffs under Article XII. Finally,

12/ See Weber, 443 U.S. at 197-99;

Wygant v. Jackson Board of Education, 746

F.2d 1152, 1158 (6th Cir. 1984).

13/ See Weber, 443 U.S. at 199; Wygant,

746 F.2d at 1154.

14/ See Weber, 443 U.S. at 198 & n.1l;

Wygant, 746 F.2d at 1156-57.

The Jackson plan had the additional

purpose of retaining black teachers in

active service in order to. benefit

students in the Jackson public schools.

See 746 F.2d at 1157.

15/ See Weber, 443 U.S. at 208; Wygant,

746 F.2d at 1154.

- 22 -

both were narrowly tailored, temporary

measures. In Weber, the race-conscious

selection of black trainees for the craft

training program was to cease when the

level of blacks in skilled crafts was

comparable to black availability in the

labor force. ° In this case, Article

XII is a temporary response to the dislo-

cation caused by a period of fiscal

austerity. As the district court found,

Article XII is "part of a collectively-

bargained contract of limited duration"

which is “subject to change whenever the

11/

There is a significant differ-

contract is renegotiated.

ence between the plan at issue in Weber

and Article XII, however. Weber involved

a private employer and was decided solely

16/ See Weber, 443 U.S. at 208-09.

17/ Wygant, 546 F. Supp. 1195, 1202

(E.D. Mich. 1982).

- 23 «

under Title VI.. The Jackson Board of

Education is a public employer; conse-

quently, both the equal protection clause

of the Constitution and Title VII are

implicated in this case. Nonetheless,

Article XII, like the Kaiser-USWA plan,

is lawful.

As noted above, in amending

Title VII in 1972 to extend coverage to

public employers, Congress intended that

the same legal standards apply to affir-

mative action undertaken by public and

18/

private employers. At least in this

case, the Constitution requires no dif-

ferent result. Consistent with the prin-

ciples set forth in this Court's earlier

decisions, race-conscious remedial mea-

sures like Article XII are permissible

under the Constitution.

18/ See notes 1-3 supra and accompanying

text.

- 24 <-

In Fullilove Vv. Klutznick,

seven members of the Court recognized

that the equal protection clause permits

ie )

voluntary, race-conscious affirmative

19/ The argument advanced by the

Solicitor General that the equal

protection clause has always been

strictly color-blind, see Brief for the

United States as Amicus Curiae Supporting

Petitioners at 7-21, simply cannot be

squared with the history of the

fourteenth amendment. As Dean Ely has

explained:

[T]he express preoccupation of

the framers of the [four-

teenth] amendment was’ with

discrimination against Blacks,

that is, with making sure that

Whites would not, despite the

thirteenth amendment, continue

to confine Blacks to an

inferior position. MThat this

is the amendment's' history

surely cannot conclude_ the

Matter; given the historical

context, discrimination

against Blacks is all_ the

framers would have been con-

cerned about, and the equal

(Continued)

- 28 «

action to remedy present effects of past

ile iaann ae a ,

discrimination. Remedying the present

(Footnote 19 continued)

protection clause has rightly

been construed to protect

other minorities. But at the

same time, the amendment

cannot be applied without a

sense of its historical

meaning and function.

Ely, The cConstitutionality of Reverse

Racial Discrimination, 41 U. Chi. L. Rev.

723, 728 (1974) (footnotes omitted).

This Court has recognized, in the

public school setting, that "color-

blindness" can be exploited as a pretext

to justify continued discrimination. See

North Carolina State Board of Educa-

tion v. Swann, 402 U.S. 43, 45-46 (1971).

20/ 448 U.S. 448, 482 (1980) (Burger,

C.J.) (citing Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S.

1, 18-21 (1971)); Fullilove, 448 U.S. at

519-21 (Marshall, J., concurring’ in

judgment); id. at 548 (Stevens, J.,

dissenting). Cf. Mississippi University

for Women v. Hogan, 458 U.S. 718, 724

(1982) (O'Connor, J.) (gender classifica-

tions are permissible under fourteenth

amendment).

(Continued)

- 26 -

effects of past race discrimination, like

"making whole” identified victims of dis-

crimination, is a constitutionally per-

21

missible objective of state action =”

(Footnote 20 continued)

Although Fullilove considered the

validity of congressional action = and

therefore turned on the Court's analysis

of this action under the equal protection

component of the fifth amendment, 448

U.S. at 473, its constitutional analysis

is fully applicable to state action under

the fourteenth amendment. See Buckley v.

Valeo, 424 U.S. 1, 93 #£=~(1976) (per

Curiam); Regents of the University of

California v. Bakke, 438 U.S. 265, 367-69

(1978) (Brennan, White, Marshall,

Blackmun, JJ.) (same equal protection

standards should apply to states as apply

to Congress).

21/ Fullilove, 448 U.S. at 477 (Burger,

C.J.) (citing South Carolina V.

Katzenbach, 383 U.S. 301 (1966)); see

also United Jewish Organizations vy.

Carey, 430 U.S. 144 (1977); Stotts, 104

S. Ct. at 2606 (Blackmun, J., dissenting)

("Because the discrimination sought to be

alleviated by race-conscious relief is

the classwide effects of past discrimi-

nation, rather than discrimination

against identified members of the class,

such relief is provided to the class as a

whole rather than to its’ individual

members.").

- 27 «

Such relief is not limited to remedying

adjudicated constitutional violations.

It may impinge upon the settied expecta-

tions of “innocent parties" whether or

not the affected whites oppose’ the

23/ .

remedy. The whites affected need not

themselves have been guilty of discrimi-

_ 24/

nation. In fact, it may reasonably be

assumed that some or all of those

adversely affected by the remedial action

previously benefited from their non-

minority status.

22/ Fullilove, 448 U.S. at 477 (Burger,

C.J.) (citing Katzenbach v. Morgan, 384

U.S. 641, 648-49 (1966)); see also

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. at 16.

23/ See Fullilove, 448 U.S. at 484

(Burger, C.J.).

24/ See id. at 484-85.

25/ See id. at 485.

- 28 -

The Court has not articulated

absolute standards for assessing the

validity of racial classifications

utilized by public employers as part of

race-conscious affirmative action plans

intended to remedy past discrimina-

tion 2! However, whether the standard

to be applied is the “strict scrutiny"

applied to invidious racial classifica-

tions or something less, the constitu-

tionality of race-conscious state action

is to be determined by a two-step analy-

27/

sis. First, it must be decided

whether the objective of the action -- in

this case, remedying past discrimina-

28/

tion -- is constitutionally

26/ See id. at 498 (Powell, Jos

concurring).

27/ See id. at 473 (Burger, C.J.).

28/ A formal judicial or administrative

"finding" of discrimination is not

required before such a classification can

be employed. Id. at 477, 478 (Burger,

(Continued)

= 29 -

permissible. The second step is to

determine whether the means chosen to

(Footnote 28 continued)

C.J.) (citing Katzenbach v. Morgan, 384

U.S. at 652-53) (upholding benign racial

classification employed by Congress

because "the Court could perceive a basis

upon which Congress could reasonably pre-

dicate a judgment" that discrimination

had occurred)). Stotts does not alter

the application of that rule to this

case. In Stotts, the Court held that

under Title VII a district court

modifying a consent decree may not alter

a bona fide seniority system to require

race-conscious layoffs without a finding

or admission that each beneficiary has

been a victim of past discrimination.

104 S. Ct. at 2590. That holding does

not reach voluntary affirmative action

efforts jointly agreed upon by the same

employer and union which established the

seniority principles to be modified. Nor

is a specific finding required as to

intent. See Griggs v. Duke Power Co.,

401 U.S. 424 (1971).

The requirement that there be a

judicial or administrative finding of

discrimination before a public employer

can adopt a race-conscious remedy would,

as in the private setting, undermine the

administration of the anti-discrimination

laws, which are predicated on voluntary

settlement short of litigation. See,

e.g., Carson v. American Brands, Inc.,

450 U.S. 79, 88 n.14 (1981). See also 29

C.F.R. § 1608.1 (1984).

= 30 -

attain the objective -- here, a race-

conscious layoff provision -- are con-

Stitutional. There are, of course, con-

stitutional limitations on the power of a

public employer to engage in voluntary

affirmative action employing racial

classifications. Any such race-conscious

programs must, as in the private setting,

be hcory narrowly tailored, and

designed to eliminate racial imbalances

rather than to maintain racial bal-

30/

ance.

29/ See Fullilove, 448 U.S. at 463

(Burger, C.J.) (Affirmative action will

be needed until society delivers upon

"the century-old promise of equality of

economic opportunity."); see also Regents

v. Bakke, 438 U.S. at 405 (Blackmun, J.,

dissenting) (noting the tension between

the fourteenth amendment's “original

intended purposes" of aiding blacks and

"idealistic equality” for all, which will

remain "until complete equality is

achieved"); Ely, supra note 19, at 738-

‘39; cf. A. Bickel, The Least Dangerous

Branch 64-65 (1962).

30/ See Weber, 443 U.S. at 209.

o 3] «

B. Article xXII Is a

Constitutionally

Permissible Racial

Classification

Analyzed in light of these

principles, Article XII is constitu-

tional. First, the purpose of Article

XII was to preserve the results of recent

efforts to recruit and retain minority

teachers in the Jackson schools. These

efforts were undertaken in response to

the Board of Education's determination

that blacks had been chronically under-

represented on the school district's

31/

teaching force. In the face of

31 See 746 F.2d at 1156. The sta-

tistics relied upon by the Board of Edu-

cation led both lower courts in this case

to conclude that "minority teachers were

‘substantially’ and ‘'chronically' under-

represented on the Jackson School Dis-

trict faculty in the years preceding the

adoption of the affirmative action

plan.” Id.

- 32 -

layoffs which would otherwise be con-

ducted according to ordinary seniority

rules, there is no way to preserve the

results of affirmative action hiring

efforts without adopting a race-conscious

layoff plan;=~/ Article XII was therefore

necessary. A finding that Article XII is

unconstitutional would mean that fiscal

austerity would prevail over voluntary

affirmative action despite the willing-

ness of the teachers’ association and the

Board of Education temporarily to deviate

from normal seniority principles in order

32/ See generally Arthur v. Nyquist, 712

F.2d 816 (2d Cir. 1983) (approving race-

conscious layoff plans designed to pre-

serve gains made pursuant to court-

ordered affirmative action), cert.

denied, 104 S. Ct. 1907 (1984); accord

Morgan v. O'Bryant, 671 F.2d 23 (lst

Cir.), cert. denied, 459 U.S. 827 (1982).

- 33 «-

to preserve the essential gains derived

from affirmative action.

Second, the interests of non-

minority teachers have not been unreason-

ably trammelled by the workings of Arti-

cle XII. Although at least one white

teacher laid off because of the chal-

lenged provision would not have been laid

off in its smasnne;™ the impact of

Article XII on whites can fairly be char-

35

o33/ This

acterized as “relatively light.

33/ Despite the ambiguity of the opinion

of the district court on this point, see

546 F. Supp. at 1202, Article XII does

not seek to establish or maintain any

particular ratio between the number of

minority teachers and the number of

minority students.

34/ See Wygant, 746 F.2d at 1157.

35/ See Fullilove, 448 U.S. at 484

(Burger, C.J.).

Moreover, the layoff provision is

not an absolute shield against minority

layoffs. So long as minority represen-

tation among teachers laid off does not

exceed minority representation on the

(Continued)

- 34 -

Court has recognized that, "“[w]hen effec-

tuating a limited and properly tailored

remedy to cure the effects of prior dis-

crimination, such ‘a sharing of the bur-

den' by innocent parties is not

impermissible. "=~

Third, Article XII is an appro-

priately temporary measure. It does not

provide indefinite protection for minor-

ity teachers at the expense of non-

minority teachers; rather, it operates

solely to preserve the gains of recent

hiring of minority teachers in the face

of economically mandated layoffs. It is

part of a collective bargaining agreement

Subject to renegotiation. There is good

(Footnote 35 continued)

faculty, minorities and whites share the

impact of fiscal austerity. See

Arthur v. Nyguist, 712 F.2d at 823-24.

36/ Fullilove, 448 U.S. at 484 (Burger,

C.J.) (citations omitted).

= 36 «

reason to believe that neither’ the

teachers’ association nor the- school

board would propose to include Article

XII in future collective bargaining

agreements once the minority hiring gains

are substantial enough and extend far

enough back in time that they can no

longer be eroded easily by layoffs.

Additional factors weigh in

favor of affirmance. First, because

Article XII was collectively bargained by

the public employer and the bargaining

representative of all the potentially

affected employees, it does not interfere

with the settled expectations of non-

minority tances Moreover, the

seniority rights of teachers adversely

affected by the operation of Article XxII,

38/

while valuable and important, are not

37/ Cf. Stotts, 104 S. Ct. 2576 (1984).

38/ See id. at 2583 n.4.

- 36 -

sacrosanct. Like other assets and eco-

nomic interests they are subject to the

give and take of collective bargain-

ing. 2 The Ninth Circuit has heid that

Title VII is not violated when an

employer and a union voluntarily agree

to a layoff provision that favors

minority employees in order to preserve

recent gains made in minority hiring.

The same reasoning should apply in this

case.

Finally, it is significant that

the public employer in this case is a

public school board. As the Court noted

41/

in Brown vy. Board of Education,

"education is perhaps the most important

39/ See Ford Motor Co. v. Huffman, 345

U.S. 330, 342 (1953). :

40/ Tangren v. Wackenhut Services, Inc.,

26 Fair Empl. Prac. Cas. (BNA) 1647 (9th

Cir. 1981), cert. denied, 456 U.S. 916

(1982).

41/ 347 U.S. 483 (1954).

- 37 -

function of state and local govern-

~42/

public education has led the Court

ments. This special importance of

repeatedly to acknowledge the competence

42/ Id. at 493. Congress has_ also

recognized the critical place of public

education among local government

functions. The House report on the 1972

amendments to Title VII noted:

The problem of employment dis-

crimination is particularly

acute and has the most delete-

rious effect in these govern-

mental activities which are

most visible to the minority

communities (notably edu-

cation, law enforcement, and

the administration of justice)

with the result that’ the

credibility of the govern-

ment's claim to represent all

the people equally is negated.

H.R. Rep. No. 238, 92d Cong., Il1st Sess.

17 (1971) (emphasis added), reprinted in

1972 U.S. Code Cong. & Ad. News 2137,

2153. See also S. Rep. No. 415, 92d

Cong., lst Sess. 10 (1971) (declaring

that the exclusion of minorities from

effective participation in state and

local employment “not only promotes

ignorance of minority problems in the

particular community, but also creates

mistrust, alienation, and all too often

hostility towards the entire process of

government").

- 38 -

of public educational authorities to

engage in appropriate race-conscious

affirmative action in the furtherance of

43/

educational policy.

43/ See, e.g., Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S.

1 (1971); McDaniel v. Barresi, 402 U.S.

39, 41 (1971); North Carolina State Board

of Education v. Swann, 402 U.S. 43, 45

(1971). In Swann a unanimous Court,

through the Chief Justice, stated that

public school authorities may consider

race in the assignment of faculty and

students in the exercise of their “broad

power to formulate and implement

educational policy." 402 U.S. at 16.

The Court further noted that the "discre-

tionary” power of school boards to take

such race-conscious steps greatly exceeds

the authority of the courts to implement

Similar measures; courts can do so only

after the finding of a constitutional

violation. Id. Cf. Regents v. Bakke,

438 U.S. at 310-11 (Powell, J.) (the

governmental interest in providing health

care to disadvantaged communities may

justify race-conscious admissions program

at state medical school); NAACP vy.

Beecher, 679 F.2d 965, 977 (lst Cir.

1982), vacated on other grounds, 461 U.S.

477 (1983) (effective police protection

(Continued)

=/ 39 -

II. IF THE COURT REVERSES THE SIXTH

CIRCUIT, THE FOURTEENTH AMEND-

MENT SHOULD NOT BE INTERPRETED

IN A WAY THAT WOULD CONSTRICT

CONGRESS* POWER TO ENFORCE THE

EQUAL PROTECTION CLAUSE

Although this case does not

directly address Congress' authority, if

the Court reverses the Sixth Circuit's

ruling the decision may nonetheless

(Footnote 43 continued)

requires racially balanced police force);

accord Detroit Police Officers'

Association v. Young, 608 F.2d 671, 695-

96 (6th Cir. 1979), cert. denied, 452

U.S. 938 (1981).

Contrary to the argument of the

United States, Brief of the United States

as Amicus Curiae Supporting Petitioners

at 29-30, Fullilove does not hold that

Congress is the only governmental body

constitutionally competent to make a

finding that justifies the use of racial

Classifications for remedial purposes.

Not only does this argument disregard

decisions of this Court such as Swann v.

Charlotte-Mecklenburg, but, as a

practical matter, such a reading of

Fullilove would virtually extinguish

voluntary affirmative action by school

boards and the many other state and local

(Continued)

- 40 -

affect Congress’ ability to confront cre-

atively the evils that the fourteenth

amendment was designed to eradicate. For

example, a holding that the use of race-

conscious remedies under the fourteenth

amendment must be predicated on victim-

specific findings of discrimination would

severely curtail the power of Congress to

combat race discrimination, since the

legislative process is not well suited to

engage in such individualized determina-

tions.

(Footnote 43 continued)

government entities. For example, in

1982 there were nearly 15,000 school

districts in the United States.

Statistical Abstract of the United States

283 (105th ed. 1985). Congress cannot

alone undertake all of the race-conscious

actions which may be needed to remedy

past discrimination in these thousands of

school districts, thereby averting

litigation.

- 41 -

We, the legislators who write

here as amicus curiae, believe that Arti-

cle XII is a constitutionally permissible

use of a race-conscious remedy, consis-

tent with the goals of both the equal

protection clause and federal equal

Opportunity laws. If this Court con-

cludes, however, that Article xII is

impermissible under the fourteenth amend-

ment, we urge the Court to circumscribe

its ruling to the facts of this case so

as not to impair Congress’ enforcement

powers under section five of the

amendment.

A. The Court Has Interpreted

Section Five of the Fourteenth

Amendment as a Broad Grant of

Plenary Power

Section five of the fourteenth

amendment confers upon Congress the power

to enforce the provisions of the amend-

ment “by appropriate legislation." The

- 42 -

Court has held that this enabling clause

gives Congress the same broad powers

recognized under the necessary and proper

_ 44/

clause of the Constitution to enforce

the amendment's prohibitions against race

45/

discrimination. In Fullilove v.

J 46/

Klutznick, the Court upheld congres-

sional authority to enact a race-

conscious minority set-aside provision

and reaffirmed that section five is a

"positive grant of legislative power

suthortsine Congress to exercise its dis-

cretion in determining whether and what

legislation is needed to secure the

44/ See Katzenbach v. Morgan, 384 U.S.

at 650 (citing McCulloch yv. Maryland, 17

U.S. (4 Wheat.) 316, 421 (1819)).

45/ Oregon v. Mitchell, 400 U.S. 112,

127 (1970) ("To fulfill their goal of

ending racial discrimination . . . the

Framers gave Congress power to enforce

each of the Civil War Amendments. These

enforcement powers are broad.").

46/ 448 U.S. 448 (1980).

- 43 -

guarantees of the fourteenth amend-

47/

ment.

B. Congress Has Repeatedly Enacted

Race-Conscious Remedies Pur-

suant to Its Powers Under

Section Five and the Ccurt Has

Found These Enactments to Be

Constitutional

For more than a century Con-

gress has been committed to combatting

race discrimination through the use of

race-conscious legislation. The legis-

lative history of the fourteenth amend-

ment indicates that the ‘amendment's

framers envisioned just such a role for

48

Congress. Prior to consideration of

the fourteenth amendment, the same

Congress that proposed the amendment

47/ Id. at 476 (quoting Katzenbach v.

Morgan, 384 U.S. at 651).

48/ See generally Schnapper, Affirmative

Action and the Legislative History of the

Fourteenth Amendment, 71 Va. L. Rev. 1

(1985).

- 44 -

passed a series of race-specific social

welfare programs. Of even greater sig-

nificance, Congress passed the most com-

prehensive of these statutes, the Freed-

men's Bureau Act of 1866,2— just one

month after it approved the fourteenth

enandnene. =”

The 1866 Freedmen's Bureau Act

is a good example of race-conscious

remedial legislation. The Act provided

for educational programs expressly lim-

~52/

of the Freedmen's Bureau Acts, the 1864

ited to "“freedmen. In the earliest

Act, the House defined the beneficiaries

49/ Act of July 16, 1866, ch. 200, 14

Stat. 173, 174-76.

50 The House approved Senate changes to

the amendment on June 13, 1866 and voted

it into law. Cong. Globe, 39th Cong.,

lst Sess. 3149 (1866). The Conference

Report on the Freedmen's Bureau Act was

accepted on July 2 and 3, 1866. Id. at

3562.

51/ 14 Stat. 174-76.

- 45 -

of the bill as “persons of African

52

descent , "=! while the Senate referred to

"such persons as would have once been

~53/

were aimed at black farmers, the most

slaves. Many of the Act's provisions

important group of minority entrepreneurs

at the time. It is not likely that the

39th Congress intended the fourteenth

amendment, enacted in July 1866, to

invalidate race-conscious remedial action

when the same Congress passed the Freed-

men's Bureau Acts in February and July

1866.

In recent decades Congress has

continued to enact race-conscious legis-

lation aimed at eradicating race discrim-

ination and its consequences. In

52/ Cong. Globe, 38th Cong., lst Sess.

2801 (1864).

53/7 Id. at 2798.

- 46 -

, 2f/ ;

Fullilove v. Klutznick, this Court

recognized such legislation to be con-

sistent with the requirements of the

equal protection clause.

Plaintiffs in Fullilove chal-

lenged the constitutionality of the

Minority Business Enterprise (MBE) provi-

sions of the Public Works Employment Act

of 19772 which requires state and

local recipients of federal grants for

local public works projects to use at

least ten percent of these funds to pur-

chase supplies or services from minority-

owned businesses. Six members of the

Court held that the use of racial and

ethnic criteria constituted a valid means

56/

of enforcing the fourteenth amendment.

54/ 448 U.S. 448 (1980).

55/ 42 U.S.C. §§ 6701 et seq. (1982).

56/ Justices White and Powell joined in

the majority opinion authored by Chief

(Continued)

- 47 -

The Chief Justice, joined by Justices

White and Powell, expressly "“reject[ed]

the contention that in the remedial con-

text the Congress must act in a wholly

wall

The Chief

Justice further noted that the Court had

‘color-blind' fashion.

repeatedly refused to deny the lower

courts the power to employ race-conscious

factors in fashioning equitable remedies

for unconstitutional race discrimination

or violations of federal anti-discrimina-

58/

tion statutes.

(Footnote 56 continued)

Justice Burger. Justice Marshall, joined

by Justices Brennan and Blackmun, con-

curred in the judgment, concluding that

the challenged legislation was “plainly

constitutional." 448 U.S. at 519.

57/ Id. at 482.

58/ In the school desegregation area,

for example, the Court has observed that

because of the race-related nature of the

initial violation, race must be consider-

ed in devising any meaningful remedy.

See North Carolina State Board of

(Continued)

- 48 -

In Fullilove the Court upheld

the constitutionality of the use of race-

specific remedies by the judicial and

legislative branches. In this regard the

Chief Justice noted that Congress, as the

branch entrusted with enforcement of the

fourteenth amendment, has even more far-

reaching power than the courts to remedy

discrimination:

Here we deal, as we noted

earlier, not with the limited

remedial powers of a federal

court, for example, but with

the broad remedial powers of

Congress. It is fundamental

that in no organ of govern-

ment, state or federal, does

there repose a more comprehen-

Sive remedial power than in

(Footnote 58 continued)

Education v. Swann, 402 U.S. at 46

( -urger, C.J.) ("Just as the race of

students must be considered in deter-

mining whether a constitutional violation

has occurred, so also must race be con-

sidered in formulating a _ remedy.");

McDaniel v. Baressi, 402 U.S. 39, 41

(1971).

- 49 -

?

Congress, expressly charged by

the Constitution with

competence and authority to

enforce equal protection

guarantees.59/

In addition to the MBE provi-

sion upheld in Fullilove, Congress has

enacted a host of other legislation,

pursuant to its authority to enforce the

fourteenth amendment, that is either

expressly race-conscious or that is

applied through race-conscious admini-

60/

Strative regulations. Title VII of

59/ 448 U.S. at 483.

60/ See, e.g., Small Business Act, 15

U.S.C. § 637(d) (1982), and accompanying

regulations, 13 C.F.R. §§ 124.1-1 to .3-l

(1985) (setting eligibility requirements

for participation in program regarding

contracts for federal agencies); Title

VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e€ et seq. (1982), and

accompanying regulations, 29 C.F.R.

§§ 1607.11, 1607.13, 1607.17 (1984)

(employers may be required tc use race-

conscious affirmative measures to

eliminate discrimination); Energy

Conservation and Production Act of 1974,

42 U.S.C. § 6870 (1982), and accompanying

regulations, 10 C.F.R. § 1040.7(a),

(Continued)

- 50 -

61/

the Civil Rights Act of 1964 is a

vivid example. In 1972 Congress compre-

hensively revised Title vie! and

extended its coverage to state and local

governments in part as an exercise of its

63/

powers under section five. The

(Footnote 60 continued)

(c) (3) (1985) (grant recipients to take

remedial steps to eliminate effects of

discrimination arising from former

policies); Cable Communications Policy

Act of 1984, 47 U.S.C.A. § 554(c) (1985

Supp.) (imposing obligation to execute

positive, continuing program of

affirmative action).

61/ 42 U.S.C. §§ 2000e et seq. (1982).

62/ Pub. L. No. 98-549, 98 Stat. 2779

(1984).

§3/ Fitzpatrick v. Bitzer, 427 U.S. 445

(1976), recognized that Congress‘ power

to enact the race-conscious amendments to

Title VII in 1972 derived from section

five of the fourteenth a.uendment:

There is no dispute that in

enacting the 1972 Amendments

to Title VII to extend

coverage to the States as

employers, Congress exercised

(Continued)

@ 8] -

legislative history of these amendments

evidences congressional approval of

affirmative action programs and

(Footnote 63 continued)

its power under § 5 cf the

Fourteenth Amendment.

Id. at 453 n.9.

The legislative history also indi-

cates that Congress was invoking its

power under section five when it passed

the 1972 amendments. The Senate report

accompanying the bill that eventually

became the amendments states:

The last sentence of the Four-

teenth Amendment enabling

Congress to enforce the Amend-

ment's guarantees by appro-

priate legislation is fre-

quently overlooked, and _ the

plain meaning of the Constitu-

tion allowed to lapse. The

inclusion of State and local

government employees within

the jurisdiction of Title VII

guarantees and protections

will fulfill the Congressional

duty to enact the "appropriate

legislation” to insure that

all citizens are treated

equally in this country.

S. Rep. No. 415, 92d Cong., lst Sess. ll

(1971).

- 52 -

congressional intent that such programs

would be used to combat discrimina-

64/ ;

tion. Congress recently reaffirmed

its commitment to race-conscious affirma-

tive action when it passed the Cable

Communications Policy Act, which was

signed into law by President Reagan in

65/

October 1984. This Act contains

comprehensive equal employment opportun-

ity requirements and provides specific

Obligations that will be imposed on the

64/ The House report accompanying the

bill that became the 1972 amendments

states:

[A]ffirmative action is rele-

vant not only to the enforce-

ment of Executive Order 11246

but is equally essential for

more effective enforcement of

Title VII in remedying

employment discrimination.

H.R. Rep. No. 238, 92d Cong., lst Sess.

16 (1971), reprinted in 1972 U.S. Code

Cong. & Ad. News 2137, 2151.

65/ Pub. L. No. 98-549, 47 U.S.C. §§ 521

et seq. (1982).

- 53 -

cable industry to “execute a positive”

continuing program of specific practices"

to affirmatively recruit, hire and

promote women and sinaeteten

All the statutes discussed

above have in common- the race-based

nature of their remedies. Each reflects

the studied judgment of Congress as to

how to respond most effectively to the

particular problem addressed. Congress’

mission to rectify past discrimination

through such tailored remedies could be

severely hampered if the Court unduly

narrows the range of remedies permissible

under the fourteenth amendment.

66/ 47 U.S.C.A. § 554(c) (Supp. 1985).

- 54 -

C. Congress Is the Branch

Entrusted with Enforcing

the Fourteenth Amendment

and Is Well Equipped to

Combat Discrimination

The framers of the fourteenth

amendment “were primarily interested in

augmenting the power of Congress, rather

seed &7/

than the judiciary." Indeed, as the

Chief Justice observed in Fullilove, the

authority of Congress to employ race-

conscious remedies exceeds that of the

judicial branch 2

When Congress contemplates

enactment of a remedy, it is not subject

to the same time pressures that’ the

courts face. This is an extremely

important consideration where race

67/ Katzenbach v. Morgan, 384 U.S. 641,

648 n.7 (1966).

68/ 448 U.S. at 483. See also Swann vy.

Charlotte-Mecklenburg Board of Education,

402 U.S. at 16.

- 55 -

discrimination remedies are concerned

because of the intricate social balances

involved. Meaningful remedies for race

discrimination often create corresponding

burdens. Congress, as a representative

body, is ideally situated to make such

determinations. The Court has noted that

Congress can avail itself of certain

fact-finding procedures that are not

69/

available to the courts. As former

Solicitor General Archibald Cox has

observed:

[T]he legislature is, or at

least can be a better fact-

finding body than an appellate

court. The greater number of

members and their varied back-

grounds and experience make it

virtually certain that the

typical legislature will com-

mand wider knowledge and

keener appreciation of current

social and economic conditions

69/ See Bush v. Lucas, 462 U.S. 367, 389

(1983)

- 56 -

than will the typical

court.70/

In sum, not only does’ the

fourteenth amendment charge Congress with

enforcing the amendment, but, as a prac-

tical matter, Congress is particularly

well suited to undertake this task. It

is therefore critical that if the Court

reverses the decision below, it refrain.

from deciding this case in a way that

would impair Congress' power to implement

the equal protection clause.

D. Congress" Authority

Under Section Five Would

Be Nullified if the Four-

teenth Amendment Were

Interpreted to Require

Individualized Determina-

tions of Past Discrimination

In addition to the essential

differences between Congress and _ the

70/ Cox, The Role of Congress in

Constitutional Determinations, 40 U. Cin.

L. Rev. 199, 209 (1971).

- 57 -

judiciary discussed above, there is

another key distinction: Congress acts

on a level of generality, rather than on

the case-specific basis characteristic of

the judiciary. Consequently, Congress

May conduct general fact-finding and

enact legislation that reaches substan-

tially beyond what a court would do when

faced with a particular controversy.

These differences in the scope of con-

gressional and judicial remedies are

grounded in the constitutional defini-

tions of the roles of each branch.

In light of these inherent dif-

ferences, a decision by the Court that

the fourteenth amendment requires spe-

cific findings of discrimination and the

Singling out of identifiable "victims"

before race-conscious remedies can be

implemented would cripple the legisla-

ture's ability to combat race

- 58 -

21/

discrimination. Congress is not

equipped to make victim-specific findings

of discrimination. Rather, Congress can

take into account judicial principles,

and the results of its own fact-finding

processes, and draw inferences of its own

from such evidence as statistical dispar-

ity or racial imbalance. Congress should

be permitted ample latitude to confront

the evils of race discrimination in order

to fulfill its constitutional obligation

to enforce the equal protection clause.

71/ The United States in its brief as

amicus curiae suggests that the Court

should construe Fullilove to permit the

use of race-conscious remedies only to

provide specific relief to identified

victims of discrimination. See Brief for

United States as Amicus Curiae Supporting

Petitioners at 30. As the foregoing dis-

cussion demonstrates, that reading of

Fullilove misinterprets the Court's

decision. Such an interpretation would

effectively overrule that decision and

tie Congress’ hands in its attempts to

enforce the equal protection clause.

- 59 -

E. Although Congress Has Made

Progress Toward Achieving the

Goals of the Equal Protection

Clause, Much Remains to Be Done

Although the ultimate goal of

the fourteenth amendment is indeed a

color-blind Constitution, it has long

been recognized that race-conscious

remedial action is necessary to achieve

equal opportunity. Although significant

gains have been achieved in recent

decades, much more must be accomplished

before the 120 year-old promise of equal

protection is fulfilled. A report pub-

lished in 1984 by The Potomac Insti-

tute after an extensive study of the

patterns of minority and female employ-

ment in the 1970's, concluded that "both

72/ The Potomac Institute, A Decade of

New Opportunity: Affirmative Action in

the 1970s (1984). The report was written

by Herbert Hammerman, formerly Chief of

the Employment Surveys Division of the

Equal Employment Opportunity Commission.

- 60 -

minorities and women had greater employ-

ment in higher-paid jobs, where they

traditionally had been under-represented

eee e [T]he gains . .. for the first

time represent a good start in the direc-

tion of equal empioyment opportun-

-23/

mined that affirmative action was

ity. Significantly, the study deter-

instrumental in bringing about’ these

gains.”

The progress achieved thus far

in no way suggests that the time has come

to eliminate the use of race-conscious

remedial programs. As the Potomac Insti-

tute Report concluded, "the achievements

of equal employment opportunity have not

yet neared the levels that would justify

the dismantling of the governmental

73/ Id. at 5.

14/14.

- 6] -

wl3/

In every category of the study, including

machinery that made them possible.

income, unemployment rates and educa-

tional levels, members of minority groups

did not fare as well as whites. This is

of grave concern to Congress, which, as

representative of all the people, is

charged with ensuring the general

welfare.

We as members of Congress con-

sider race discrimination to be one of

the most serious social issues of our

time. Race-conscious legislation has

made a difference in alleviating the

consequences »f discrimination. Never-

theless, we cannot in good conscience

conclude that Congress' task has been

completed. We urge the Court to decide

this case in a way that preserves both

the statutory framework now in place and

75/ Id.

- 62 -

Congress' constitutional authority to

resort to race-conscious remedial

legislation in the future.

CONCLUSION

For the reasons discussed in

Section One of this brief, the Court

should uphold the constitutionality of

Article XII and affirm the decision of

the Sixth Circuit. However, if the Court

reverses the decision below, we as legis-

lators urge the Court to frame its

opinion and instructions to the court

below in a manner that does not impair

- 63 -

Congress' power to legislate race-

conscious remedies pursuant to section

five of the fourteenth amendment.

Respectfully submitted,

MORGAN D. HODGSON

(Counsel of Record)

RICHARD RUDA

LINDA C. KAUSKAY

ANITA G. RABY

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-3000

Attorneys for Congressional

Coalition, Amicus Curiae

August 23, 1985