# Amicus Curiae Brief — Wygant v. Jackson Board of Education

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 267

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0192%3A25. Public record. Not legal advice.