Amicus Curiae Brief — Ricci v. DeStefano (No. 08-328)

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Supreme Cour, U.S

FILED

MAR 2 5 20N°

Nos. 07-1428 & 08-328 Lorrickor TH CLExk |

IN THE

Supreme Court of the United States

FRANK RICCI, et al.,

Petitioners,

Uv,

JOHN DESTEFANO, et al.,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF AMICI CURIAE ASIAN AMERICAN JUSTICE

CENTER, ASIAN AMERICAN INSTITUTE, ASIAN LAW

CAUCUS, ET AL., INSUPPORT OF RESPONDENTS

VINCENT A. ENG

(COUNSEL OF RECORD)

KAREN K. NARASAKI

AARATHI DESHMUKH

ASLAN AMERICAN JUSTICE CENTER

1140 CONNECTICUT AVE., NW

SUITE 1200

WASHINGTON, DC. 20036

(202) 296-2300

Counsel for Amici Curiae

[Additional Amici listed on inside cover]

Asian Law Alliance

Boat People SOS

The Japanese American Citizens League

The Fred T. Korematsu Center for Law and

Equality

The Minority Business Round Table

The National Council of Asiuan-American

Business Associations

Organization of Chinese Americans, Inc.

The Sikh American Legal Defense and

Education Fund

TABLE OF CONTENTS

PAGE

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Gar CT CP cicerrsesieninstscctcaceseriscnscssess ill

STATEMENT OF INTEREST OF AMICI

| ____SEr E EE 1

INTRODUCTION AND SUMMARY OF

TE ‘siitiepisenictctnsentanninbinidiihiainnniinsicananesinetiindaniediuin 2

EET secinscerituidininvtentsannciinieibpiiienindmbiniennns 4

I. The History and Persistence of

Discrimination Against Asian Americans

Supports Allowing a Government Actor's

Decision to Not Certify Test Results That

Have a Disparate [mpact. ..................ccceceeeeeees 4

A. Asian Americans have a history of

exclusion from public sector jobs,

including firefighter positions.................... 5

B. Asian Americans continue to face

discrimination, damaging stereotypes

and a glass ceiling on achievement. .......... 9

1. The stereotyping of Asian Americans

as perpetual foreigners has

contributed to structural racial

inequality in many areas, including

i eiiiciecinienkcitinininiesindiiniipeninesden 10

2. The perception of Asian Americans

as the model minority has had

damaging effects on the ability of

Asian Americans to obtain

I cicinertndecccenpincenineniccngninmiaaieiaita 15

3. The stereotypes have manifested

themselves into a “glass ceiling” on

Asian American progress in the

ESSER RCE n oe enon Ena Tae 18

II. Avoiding Employee Advancement

Procedures That Perpetuate Racial

Disparity is a Reasonable Method of

Preventing Workplace Discrimination. ........ 22

A. Respondents’ attempts to implement fair

and legal advancement methodologies

do not amount to racial classification

and do not trigger strict scrutiny............. 24

B. It is critical to the functioning of Title

VII that government actors not be liable

for reasonable efforts to address

promotion methodologies that would (1)

perpetuate racial disparity and (2) not

comply with federal guidelines. ............... 28

CREO stint cviessinsnvecscisosintmnansenmesnevecsunncsautiiin 33

Be EE tecvcieveepcesinnnegentnsctiannnimnnnenenpmciunincnubeinns 1A

TABLE OF AUTHORITIES

CASES PAGE(S)

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

SEER ae ee a ae en 14, 25, 26, 30

Dothard v. Rolinson, 433 U.S. 321 (1977)............0..5. 8

Fujii v. State, 242 P.2d 617 (Cal. 1952)..........0.00..... 13

Fullilove v. Klutznick, 448 U.S. 448 (1980) ............. 30

Griggs v. Duke Power Co., 401 U.S. 424 (1971)....... 24

Grutter v. Bollinger, 539 U.S. 306 (2008) ................ 29

Hayden v. County of Nassau, 180 F.3d 42 (2d Cir.

EEE EEE SS ASLEEP NAR Rs Bes ee Oe a 31

International Brotherhood of Teamsters v. United

Rh tn ME, ES CIT Oc... necesnnnnconsianiionenesesson 9

Johnson v. Transportation Agency, 480 U.S. 616

icici ide Neate inde eaieiedariceailcieat 9, 29, 30, 31

Kirkland v. New York State Department of

Correctional Services, 711 F.2d 1117 (2d Cir.

1983), cert. denied sub nom. Althiser v. New

York State Department of Correctional Services,

a euepenbebanie 31

Loving v. Virginia, 388 &). _, Feeeen 14, 27

ev ee By Sie Be Fo) en 14

Officers for Justice v. Civil Service Commission of

San Francisco, 688 F.2d 615 (9th Cir. 1982)....... 31

Parents Involved in Community Schools v. Seattle

School District No. 1, 551 U.S. 701 (2007)......... 29

Plessy v. Ferguson, 163 U.S. 537 (1896) .................. 14

Porterfield v. Webb, 263 U.S. 225 (1923)................. 13

Ricci v. DeStefano, 554 F. Supp. 2d 142 (D. Conn.

ERASERS EES tine A arene ny ma nar rc Oe 4,8

Terrace v. Thompson, 263 U.S. 197 (1923).............. 13

United States v. City & County of San Francisco,

696 F. Supp. 1287 (N.D. Cal. 1988), affd sub

nom. Davis v. City & County of San Francisco,

890 F.2d 1438 (9th Cir. 1989), cert. denied, sub

nom. San Francisco Fire Fighters Local 798 &

International Association of Fire Fighters, AFL-

CIO v. City & County of San Francisco, 498

Ss I CEE idclbsiccisnieisiiniscasecisintatisanddbiniinapebasnaitic 6, 7, 27

Wo v. Hopkins, 118 U.S. 356 (1886)......................22- 13

Wygant v. Jackson Board of Education, 476 U.S.

SIT Sa i cncdicisssediscsdsinspeinaianiaiiesiiaiideaiaiaseaaaianienaiiaiaaal 27, 32

STATUTES

ee i iikiciicitcicennisitinstaiitnitecininanlnainaiatas 23

Civil Liberties Act of 1988, Pub. L. No. 100-

I 15

Civil Rights Act of 1964, Pub. L. No. 88-352,

NS a ata 22

Civil Rights Act of 1991, Pub. L. No. 111-1,

I i a ce 23

Lilly Ledbetter Fair Pay Act of 2009, Pub. L.

SN, En PIII TD ac cnincthaciiictadsupianideniodbotadionn 23

OTHER AUTHORITIES

Angelo N. Ancheta, Race, Rights and the Asian

American Expertence (1998).............ccccceseeeeees 12, 14

Keith Aoki, “Foreignness” & Asian American

Identies: Yellowface, World War II Propoganda,

and Bifurcated Racial Stereotypes, 4 Asian Pac.

Rea: Sects: BG ticinetninistnnadiiniiticshahinacdapiaiiniione 12

Thomas Ambrosio, Ethnic Identity Groups and

U.S. Foreign Policy (BOOB) ......cscccocccsscccscsesssscseses a

Asian American Institute, Asian Americans and

Public Contracting: Equal Opportunities, Laws,

and Policies (2008), available at

http://www.advancingequality.org/attachments/

files/220/Equal_Opportunity_Laws.pdf (last

LEN A 19, 21

Asian American Justice Center, Equal Access:

Unlocking Government Doors for’ Asian

American Businesses (2008)..............ccccecceceececeeceees 6

Robert C. Berring, Review Essay, Jn Search of

Equality: The Chinese Struggle Against

Discrimination in Nineteenth-Century America

by Charles J. McClain (1995), 2 Asian Am. L.J.

I emsieuinuncnions 12

Gabriel J. Chin et al., Beyond Self Interest: Asian

Pacific Americans Toward a Community of

Justice, 4 Asian Pac. Am. L.J. 129 (1996)... 6, 8, 21

Pat K. Chow, Asian Americans: The “Reticent”

Minority and Their Paradoxes, 36 Wm. & Mary

i e salipilimsannues 16

City of New Haven, State & Local Gov't Info.

I acceso 8

Harvey Gee, Changing Landscapes: The Need for

Asian Americans to be Included in the

Affirmative Action Debate, 32 Gonz. L. Rev. 621

Ea 9

Neil Gotanda, Asian American Rights and the

“Miss Saigon Syndrome,” in Asian Americans

and the Supreme Court: A Documentary History

(Hyunh-Chan Kim ed., 1992).............ccccccc cece cee. 11

Hyunh-Chan Kim, A Legal History of Asian

Americans, 1790-1990 (1994)..........c0ccccc cc cccececeeee. 13

Charles J. McClain, In Search of Equality: The

Chinese Struggle Against Discrimination in

Nineteenth-Century America (1994) ..........00..0000 10

Dudley O. McGovney, The Anti-Japanese Land

Laws of California and Ten Other States, 35

SS. REECE Seaenreene mmr meer ror a 13

Miranda Oshige McGowan & James Lindgren,

Testing the “Model Minority Myth”, 100 Nw.

U.L. Rev. 311

ERT I Ee ne a Cee 11, 16, 17

Paul M. Ong, The Affirmative Action Divide, in

Transforming Race Relations 377 (Paul M. Ong

ed., 2000), reprinted in Don Nakanishi & James

S. Lai, Asian American Politics: Law,

Participation, and Policy 393 (2003)......... 5, 6, 7, 8

Angela Pang, Asian Americans Who Run the City,

es Se, Be Se cibititinisinnccinnnnnnitatecsesnnion 7

William Petersen, Success Story, Japanese-

American Style, N.Y. Times Mag., Jan. 9,

Vu H. Pham, Lauren Emiko Hokoyama, & J.D.

Hokoyama, Become Visible: Let Your Voice Be

Heard, AAPI Nexus, Vol. 4, No. 1,

I sriciciccinriasinnneatainnnentnonnedtentibedosios 20

Anthony Ramirez, America’s Super Minority,

BS Bi I i iciserincensicssnnnicemnicendeiieidenniiianeinniiinn 17

James Steingold, Accused Scientist Has Bail

Blocked at Last Minute, N.Y. Times, Sept. 2,

Natsu Taylor Saito, Alien and Non-Alien Alike:

Citizenship, “Foreignness,” and Racial

Hierarchy in American Law, 76 Or. L. Rev. 261

SSTIITTIISiaukaisssseiintchaiiuintaahionieneniahniaeelidipeandiiaananaeenniceianeanalial 10

Vill

Natsu Taylor Saito, Beyond Reparations:

Accommodating Wrongs or Honoring

Resistance?, 1 Hastings Race & Poverty L.J. 27

Natsu Taylor Saito, Model Minority, Yellow Peril:

Functions of “Foreignness” in the Construction

of Asian American Legal Identity, 4 Asian L.J.

ITI iiiitsinecaliditaslrhichiinae hliaalbieiddeincidihceiahhibaieiaiaienahtaadiness 12.

Shiwani Srivastava, Nobody’s Model Minority,

The Root (Mar. 16, 2009), available at

http://www.theroot.com/views/nobodys-model-

minority (last visited Mar. 24, 2009)................... 18

Ronald Takaki, A History of Asian Americans:

Strangers From A Different Shore (1998)............ 14

U.S. Census Bureau, State & County QuickFacts,

New Haven, Connecticut, available at

http://quickfacts.census.gov/qfd/states/09/09520

00.html (last visited Mar. 24, 2009).................. 7,8

City of New Haven, State & Local Gov't Info.

I 8

U.S. Commission on Civil Rights, Civil Rights

Issues Facing Asian Americans in the 1990's

STII icnsseliiecinb senissteitectatianaaediannideiebanitateadidinteitaaliciieniniaiee 19, 20

U.S. Department of Commerce, Bureau of the

Census, Race of the Population by County: 1970

Supplementary Report (1975), available at

http://www?2.census.gov/prod2/decennial/docum

ents/31679801n104-107.pdf (last visited Mar.

RECS eee me ew. RSE 5

U.S. Equal Employment Opportunity

Commission, Job Patterns For Minorities And

Women In Private Industry, State and Local

Government Information (EEQ-4), National

Employment Summary 39 (2005) available at

viii

http://www.eeoc.gov/stats/jobpat_eeo4/2005/jobs

.pdf (last visited Mar. 24, 2009)................... 7, 8, 20

Success Story of One Minority Group in the U.S.,

U.S. News & World Rep., Dec 26, 1966,

reprinted in Roots: An Asian American Reader 6

(Amy Tachiki et al. eds., 1971) ................cceceeeeeees 15

William Wei, The Asian American Movement 44

SEITE ininheiachibcceasipetioveguaitncemennengltlatamdadurahidninentebliiamneds 11

Deborah Woo, The Glass Ceiling and Asian

Americans: A Research Monograph (July,

1994) (unpublished manuscript), available at

http://digitalcommons.ilr.cornell.edu/cgi/viewco

ntent.cgi?article=1130&context=key_workplace

(last visited Mar. 24, 2009)...................c.ceeeees 18, 20

Frank Wu, Yellow: Race in America Beyond Black

I oi aissisinitiitemecnesinetcesepinmiiinlin 16, 18

Jeremy S. Wu & Carson K. Eoyang, Asian Pacific

American Senior Executives in the Federal

Government, AAPI Nexus, Vol. 4, No. 1,

a idacsictinictidncscenenscnenistecesiniitdibiin 20

STATEMENT OF INTEREST OF AMICI

CURIAE!

The Asian American Justice Center (AAJC) is a

national non-profit, non-partisan organization whose

mission is to advance the human and civil rights of

Asian Americans. Collectively, AAJC and its

Affiliates, the Asian American Institute, Asian Law

Caucus, and the Asian Pacific American Legal

Center of Southern California, have over 50 years of

experience in providing legal public policy, advocacy,

and community education. The Asian American

Justice Center is one of the nation’s leading experts

on issues of importance to the Asian American

community. AAJC and its Affiliates have a long-

standing interest in this case because government

actors should have the right to not certify

employment test results that have a disparate

impact on a racial minority, including Asian

Americans. This interest has resulted in AAJC’s

participation in a number of administrative

rulemaking comments and amicus briefs before the

courts. j

Joining AAJC as amici curiae in this brief are

other public interest legal and civil rights

organizations that are also dedicated to advancing

1 In accordance with Supreme Court Rule 37.3(a), Amici

Curiae have filed with the Clerk of the Court letters from

Petitioners and Respondents consenting to the filing of this

brief. No person or entity other than Amici Curiae, their

members, or their counsel made a monetary contribution to the

preparations or submission of the brief, and no counsel for

Petitioners or Respondents had any role in authoring this brief.

the interests and protecting the rights of all

Americans, including Asian Americans (collectively,

“Amict’). Amici represent a broad range of Asian

American ethnicities as well as non-Asian American

groups, including some of the largest and oldest

Asian American organizations in this country that

are involved in challenging racial discrimination,

safeguarding civil rights, and ensuring equal

opportunity for all. Amici thus have an important

and substantial interest in this case, which raises

crucial questions concerning freedom of government

actors to voluntarily comply with Title VII’s and this

Court’s prohibition against using employment tests

that have a disparate impact on a protected class.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Asian Americans bring a unique perspective to

this case. The history of pervasive discrimination

against this group supports Respondents’ decision to

not certify the test results. Amici submit this brief

to demonstrate that the forced certification of test

results that are non-compliant with federal

guidelines will severely undermine Asian Americans’

protection from discrimination and the ability of

employers to take fair, lawful and commonsense

measures to ensure equal opportunity for all

workers.

Asian Americans have been subject to a historical

pattern of discrimination that has led to structural

disparities in employment, including in firefighting.

This discrimination is often rooted in unfair and

inaccurate stereotypes, such as the view of Asian

Americans as perpetual foreigners that cannot be

trusted or assimilated, or as model minorities that

require no assistance in overcoming socictal

prejudice. These stereotypes have led to overt

expressions of state-sponsored discrimination, such

as laws against owning land, and the Japanese

American internment. But these stereotypes also

manifest themselves in more subtle, although no less

insidious, ways. Rooting out this less overt

discrimination lies at the heart of this case.

Today, there are far fewer Asian American

firefighters nationwide than their overall population

numbers would suggest. There is only one Asian

American in the entire City of New Haven Fire

Department, and, notably, not a single Asian

American took the promotional exams in question.

The near-total absence of Asian American

firefighters in the entire department supports an

effort by the city to ensure that its employment tests

are fair, lawful and promote equal opportunity. The

historical legacy of discrimination against Asian

Americans and other minorities makes it incumbent

on government actors to avoid employment practices

that will perpetuate racial disparities. If a test

proves to be discriminatory, the city has a

responsibility to seek better, lawful alternatives.

Petitioners’ position would undermine decades of

efforts by Congress and this Court to ameliorate

structural inequities. Respondents’ employment

tests yielded results that, under federal employment

guidelines, indicated an adverse racial impact. They

correctly chose not to certify these results.

For all of these reasons, Amici support

Respondents’ reasonable and well thought-out

decision not to certify the test results. Accordingly,

Amici respectfully request that this Court affirm the

judgment of the Second Circuit.

ARGUMENT

I. THE HISTORY AND PERSISTENCE OF

DISCRIMINATION AGAINST ASIAN

AMERICANS SUPPORTS ALLOWING A

GOVERNMENT ACTOR’S DECISION TO

NOT CERTIFY TEST RESULTS THAT HAVE

A DISPARATE IMPACT.

In the face of the historical legacy of

discrimination against Asian Americans, as well as

other racial minority groups, the Court should

encourage, not restrain, the ability of government

actors to comply with the letter and spirit of anti-

discrimination laws. For this reason, Amici support

Respondents’ decision to not certify the results of a

firefighters’ promotion exam and, in the process,

abandon an advancement process which perpetuates

entrenched discrimination.

For Title VII and Equal Protection jurisprudence

to fulfill their intended purpose of combating

discrimination, government actors must have the

freedom to take steps to address problems in job

sectors with structural racial inequality. The

firefighting forces, in particular, have a history of

segregation against minority ethnic’ groups,

including Asian Americans. In fact, the absence of

Asian Americans in Ricci v. DeStefano, 554 F. Supp.

2d 142 (D. Conn. 2006) (“Ricci”), highlights a broader

lack of Asian Americans in the firefighting forces

nationally that is rooted in a legacy of discrimination

against Asian Americans. Petitioners’ position

would undermine decades of programs meant to

ameliorate these structural problems and wouid

undercut the anti-discrimination statutory scheme.

A. Asian Americans have a history of

exclusion from public’ sector jobs,

including firefighter positions.

Historically, Asian Americans have _ suffered

discrimination and were denied jobs in firefighting

and other protective services. The case of the San

Francisco Fire Department is illustrative of the

discriminatory exclusion suffered by Asian

Americans. During the mid-1960s, there were only

six Asian Americans (and one African American)

among approximately 1,600 firefighters in the

department.? See Paul M. Ong, The Affirmative

Action Divide, in Transforming Race Relations 377

(Paul M. Ong ed., 2000), reprinted in Don Nakanishi

& James S. Lai, Asian American Politics: Law,

Participation, and Policy 393-94 (2003) (“During the

mid-1960s, when community leaders first raised the

issue of under representation, only six [Asian

2 During this time period, Asian Americans comprised about

13.3 percent of the population of San Francisco. See U.S. Dep't

of Commerce, Bureau of the Census, Race of the Population by

County: 1970 Supplementary Report (1975), available at

http://www2.census.gov/prod2/decennial/documents/31679801n

104-107. pdf (last visited Mar. 24, 2009).

Americans] (and one [African American]) were

among approximately 1,600 firefighters, and that

number remained essentially the same for a

decade.”). By 1974, there were only four Asian

Americans in the San Francisco Fire Department.

Gabriel J. Chin et al., Beyond Self-Interest: Asian

Pacific Americans Toward a Community of Justice, 4

Asian Pac. Am. L.J. 129, 155 (1996).

Under a 1974 court order, the department was

expected to increase the number of Asian American

firefighters. See Nakanishi & Lai, supra p.7, at 394;

see also Asian American Justice Center, Equal

Access: Unlocking Government Doors for Asian

American Businesses 20 (2008). Despite the order,

discrimination and disparity persisted. In 1978, a

written test for promotion to the Lieutenant position

in the San Francisco Fire Department had a pass

rate ratio of Asian American firefighters to non-

Hispanic white firefighters of only 13 percent.

United States v. City & County of San Francisco, 696

F. Supp. 1287, 1294 (N.D. Cal. 1988), aff'd sub nom.

Davis v. City & County of San Francisco, 890 F.2d

1438 (9th Cir. 1989), cert. denied, sub nom. San

Francisco Fire Fighters Local 798 & Intl Ass’n of

Fire Fighters, AFL-CIO v. City & County of San

Francisco, 498 U.S. 897 (1990).

The situation did not improve in the ensuing

years. In 1988, not one Asian American held any of

the 352 permanent supervisory positions in the San

Francisco Fire Department. Jd. At the same time,

only four positions (1%) were held by African

Americans and sixteen positions (5%) were held by

Hispanic Americans, and only one member of a

minority group held a rank above Captain. Id.

Moreover, the San Francisco Fire Department, by its

own admission, had not committed any resources to

investigate claims of racial harassment. Jd. The

department was, and is, emblematic of the gross

disparity that Asian Americans face in public sector

positions.* To this day, San Francisco has relatively

few Asian Americans in the firefighting forces,

including appointed positions. See Angela Pang,

Asian Americans Who Run the City, Asian Week,

Feb. 22, 2008 (discussing the low number of Asian

Americans in the city’s appointed positions,

including within the fire department).

The disparities in San Francisco are reflected

nationwide in firefighting and other protective

service positions. See Nakanishi & Lai, supra p.6, at

393. Asian Americans represent less than 1.5

percent of all firefighters nationwide, far lower than

their overall population numbers would suggest. 4

U.S. Equal Employment Opportunity Commission,

Job Patterns For Minorities And Women In Private

3 A 1992 study of city employment in San Francisco revealed

that fewer than half of the municipality’s departments met the

1990 census workforce parity figure of 2.9 percent. Chin, supra

p.6, at 154. The same study showed that parity rates for Asian

Americans in city hall and the police department were 50

percent or less. Id. Periodic studies indicated that parity rates

were declining during the 1990s. See id.

4 Asian Americans comprise about 4.4 percent of the

American population. U.S. Census Bureau, State & County

QuickFacts, USA, available at http://quickfacts.census.gov/

qfd/states/00000. html (last visited Mar. 24, 2009),

Industry, State and Local Government Information

(EEO-4), National Employment Summary 39 (2005),

available at

http://www.eeoc.gov/stats/jobpat_eeo4/2005/jobs. pdf

(last visited Mar. 24, 2009).§

Of the more than 118 test takers in Ricci, not one

was identified by the District Court as Asian

American. See Ricci, 554 F. Supp. 2d at 145

(discussing the ethnic breakdown of the test takers).

It is notable that not a single Asian American took

the written exam.® In fact, of the 366 firefighters in

the City of New Haven, there is only one Asian

American. 7 In light of the Asian American

experience with the firefighting and protective

service professions, this gap illustrates how “[t]he

application process itself might not adequately

reflect the actual potential applicant pool, since

otherwise qualified people might be discouraged from

applying because of a self-recognized inability to

meet the very standards challenged as being

5 Similarly, Asian Americans also represent less than 1.5

percent of those with protective service jobs. U.S. Equal

Employment Opportunity Commission, supra p.8, at 7.

6 This is despite the fact that Asian Americans constitute

approximately 4 percent of the City of New Haven, roughly

commensurate with its proportion of the overall U.S.

population. U.S. Census Bureau, State & County QuickFacts,

New Haven, Connecticut, available at

http://quickfacts.census.gov/qfd/states/09/0952000. html (last

visited Mar. 24, 2009).

7 See City of New Haven, State & Local Gov't Info. Report

EEO.-4 (2007).

discriminatory.” Dothard v. Rolinson, 433 U.S. 321,

330 (1977) (emphasis added) (holding that the

statutory height and weight standards had a

discriminatory impact on women applicants and

would discourage women from applying for the job).

In any event, these numbers are stark. The “glaring

absence” of Asian American firefighters is indicative

of what appears to be serious racial disparities

within the City of New Haven’s Fire Department.

See Int'l Brotherhood of Teamsters v. United States,

431 U.S. 324, 342 n.23 (1977). 8

B. Asian Americans continue to face

discrimination, damaging stereotypes

and a glass ceiling on achievement.

Discrimination against Asian Americans

continues to be reflected in many aspects of society

beyond firefighting and protective services. “Like

African Americans and Hispanic Americans, [Asian

Americans] are victims of both past and present

discrimination.” Harvey Gee, Changing Landscapes:

The Need for Asian Americans To Be Included in the

Affirmative Action Debate, 32 Gonz. L. Rev. 621, 625

(1996-97) (citation omitted). Asian Americans have

8 Justice O’Connor remarked in a concurring opinion that,

when large numbers are involved, the “inexorable zero” is all

the justification needed for some kind of response. Johnson v.

Transp. Agency, 480 U.S. 616, 656-67 (1987) (“[F]ine tuning of

the statistics could not have obscured the glaring absence of

minority line drivers. ... [T}he company’s inability to rebut the

inference of discrimination came not from a misuse of statistics

but from the inexorable zero.” (citation and internal quotation

marks omitted)).

faced anti-Asian sentiment that has prolonged

ethnic salience and contributed to a structural racial

disparity. Because of this history and persistent

discrimination, government actors must be able to

seek alternative methodologies for hiring and

promoting when current methodologies appear

flawed.

1. The stereotyping of Asian Americans as

perpetual foreigners has contributed to

structural racial inequality in many areas,

including employment.

The stereotype of Asian Americans as perpetual

foreigners contributes to deep-rooted discrimination

against this group, especially regarding workplace

advancement.'® Too often, Asian Americans are

complimented on their English-speaking abilities

and asked where they are “really” from, implying

that Asian Americans are not truly American,

® As with other racial minority groups, these disparities are

often rooted in broader social and cultural views that are

difficult to pinpoint and even more difficult to modify or

extinguish. See, g., Natsu Taylor Saito, Alien and Non-Alien

Alike: Citizenship, “Foreignness,” and Racial Hierarchy in

American Law, 76 Or. L. Rev. 261 (1997) (discussing the

identification of Asian Americans as intrinsically “foreign”).

10 See generally Charles J. McClain, In Search of Equality:

The Chinese Struggle Against Discrimination in Nineteenth-

Century America (1994) (cataloguing the history framework

and pattern of treatment of Asian Americans based upon a

“perpetual foreigner” stereotype); William Petersen, Success

Story, Japanese-American Style, N.Y. Times Mag., Jan. 9, 1966

(attributing success of Japanese Americans to their foreign

roots and non-American culture).

regardless of how long they or their ancestors have

been living in the United States. See William Wei,

The Asian American Movement 44 (1994). When

Asian Americans are indiscriminately painted with

the broad brush of “foreigner,” notwithstanding the

actual backgrounds of individual Asian Americans,

this implicates an array of possible negative

inferences such as disloyalty and lack of patriotism.

See Neil Gotanda, Asian American Rights and the

“Miss Saigon Syndrome,” in Asian Americans and

the Supreme Court: A Documentary History 1098-99

(Hyung-Chan Kim ed., 1992).'' It is not difficult to

imagine how prejudice rooted in the notion of the

perpetual foreigner could play a role in the hiring

and promoting of Asian Americans in the firefighting

forces, a public sector position, along with the police

1! Asian American studies scholars point to the Dr. Wen Ho

Lee case as perhaps the most prominent, modern-day example

of the perpetual foreigner stereotype. This case involved the

U.S. Justice Department’s harsh detention and investigation of

Dr. Wen Ho Lee, a Chinese American scientist with the U.S.

Energy Department, regarding the sharing of classified

government information about nuclear weapons with China.

Many Asian American activists believed that Dr. Lee’s

ethnicity was a significant, if not primary, impetus behind the

investigation. See Miranda Oshige McGowan & James

Lindgren, Testing the “Model Minority Myth”, 100 Nw. U.L.

Rev. 311, 344 (2006). Dr. Lee’s motion to grant bail was

blocked at the last minute and the U.S. Attorney argued that

keeping Dr. Lee in arguably inhumane confinement conditions

was fully justified. See James Steingold, Accused Scientist Has

Bail Blocked at Last Minute, N.Y. Times, Sept. 2, 2000, at Al.

force, that is strongly associated with patriotic

sentiment. !?

The prejudice behind the perpetual foreigner

stereotype has had negative manifestations

throughout the United States. A range of city

ordinances, state and federal legislation, and court

rulings have prevented Asian Americans from

employment with public agencies or corporations, '3

subjected Asian Americans to the special imposition

of taxes based on race,'* restricted Asian Americans

12 See generally Thomas Ambrosio, Ethnic Identity Groups

and U.S. Foreign Policy 133-36 (2002) (discussing the history of

how Asian Americans came to be viewed as “permanent

foreigners,” precluding Asian Americans from becoming “real

Americans”); Keith Aoki, “Foreignness” & Asian American

Identities: Yellowface, World War II Propaganda, and

Bifurcated Racial Stereotypes, 4 Asian Pac. Am. L.J. 1 (1996);

Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of

“Foreignness” in the Construction of Asian American Legal

Identity, 4 Asian L.J. 71 (1997).

13 Robert C. Berring, Review Essay, In Search of Equality:

The Chinese Struggle Against Discrimination in Nineteenth-

Century America by Charles J. McClain (1995), 2 Asian Am.

L.J. 87, 94 (describing how Article XIX of the California

Constitution banned Asian Americans from employment by

corporations and public agencies).

14 See Hyunh-Chan Kim, A Legal History of Asian Americans,

1790-1990 48-49 (1994) (listing a series of taxes passed from

1850 to 1862 that targeted Chinese Americans in California,

such as the Foreign Miners’ Tax (taxing miners ineligible for

citizenship), the Foreign Miners’ License Tax (requiring all

foreigners ineligible for citizenship to purchase a miner’s

license regardless of occupation), and the Chinese Police Tax

(imposing a head tax on all adult Chinese Americans)).

from entrepreneurial ventures, '* and prevented

Asian Americans from owning land,!* which in turn

led to restrictions in their agricultural endeavors.'’

These discriminatory laws permeated nearly all

aspects of Asian American life and were upheld by

the Supreme Court. 8 The last of these

discriminatory laws were not repealed or struck

down until the early 1950’s.'% Nonetheless, the

15 See Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (striking

down ordinances that restricted the economic growth and

advancement of Chinese laundries as a violation of equal

protection because of the discriminatory manner in which they

were enforced); see also Kim, supra n.14, at 94 (documenting

the harassment Chinese importers and laundrymen

experienced).

16 See Dudley O. McGovney, The Anti-Japanese Land Laws of

California and Ten Other States, 35 Cal. L. Rev. 7 (1947)

(detailing the history of preclusion of Japanese Americans from

land-ownership in eleven states).

17 See Angelo N. Ancheta, Race, Rights and the Asian

American Experience 29 (1998) (discussing how California’s

Alien Land Law of 1913 prevented Japanese from establishing

agricultural businesses by prohibiting Japanese persons

ineligible for citizenship from purchasing land in the state and

by limiting lease terms to three years or less).

18 See, eg., Porterfield v. Webb, 263 U.S. 225 (1923)

(upholding the Alien Land Act of California); Terrace v.

Thompson, 263 U.S. 197 (1923) (affirming similar Washington

state discriminatory land law).

19 See, e.g., Fujii v. State, 242 P.2d 617 (Cal. 1952) (holding

that the Alien Land Act of California violated the Fourteenth

Amendment of the Constitution).

discrimination continues to impact nearly all aspects

of Asian American life.?°

The Japanese American internment was perhaps

the most tragic, and insidious, manifestation of the

perpetual foreigner stereotype. Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 215 n.*

(1995); see also Pub. L. No. 100-383, § 2(a), 102 Stat.

903 (1988) (“The Congress recognizes that ...a

grave injustice was done to both citizens and

permanent resident aliens of Japanese ancestry by

the evacuation, relocation, and internment of

civilians during World War II.”). The internment

experience shows that the perpetual foreigner

stereotype contributes, in a real way, to active

discrimination and a structural racial disparity. ?!

20 See, e.g., Ancheta, supra n.17, at 30 (discussing Asian

American discrimination in their pursuit of marriage, noting

that laws prohibiting intermarriage with Asians were “common

in Western states, and many laws remained on the books until

the United States Supreme Court ruled them to be

unconstitutional in [Loving v. Virginia, 388 U.S. 1 (1967)]}”);

Ronald Takaki, A History of Asian Americans: Strangers From

A Different Shore 201 (1998) (discussing Asian American

discrimination in their pursuit of education, stating that “the

San Francisco Board of Education directed principals to send

all Chinese, Japanese and Korean children to the Oriental

School”) (citations and internal quotations omitted); see also

Lum v. Rice, 275 U.S. 78, 86-87 (1927) (applying separate-but-

equal doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to

Chinese citizens).

21 See Natsu Taylor Saito, Beyond Reparations:

Accommodating Wrongs or Honoring Resistance?, 1 Hastings

Race & Poverty LJ. 27, 35 (2003) (discussing the “well-

entrenched pattern of discrimination rooted in a racialized

identification of Asian Americans as perpetually ‘foreign™ and

(cont'd)

This xenophobic and inaccurate perception of Asian

Americans helps explain the long-standing history of

discrimination against Asian Americans and clarifies

why Asian Americans are underrepresented in

public sector jobs.

2. The perception of Asian Americans as the

model minority has had damaging effects

on the ability of Asian Americans to obtain

promotions.

At the same time Asian Americans have been

subject to the perpetual foreigner stereotype, they

have also had to deal with the burden of being

perceived as the “model minority.”. Commonly

referred to as the “model minority myth,” this

stereotype also plays a major role in suppressing

Asian American advancement in the workplace.2? It

assumes that all Asian Americans are extremely

hard working, intelligent, highly educated and

(cont'd from previous page)

providing a litany of laws exemplifying that much of what led

to “internment persists not just in popular culture, but in the

structures of law as well”).

22 The popular media created the model minority myth in

1966 through two articles in The New York Times Magazine

and U.S. News & World Report. Petersen, supra n.10, at 20;

Success Story of One Minority Group in the U.S., U.S. News &

World Rep., Dec 26, 1966, at 73, reprinted in Roots: An Asian

American Reader 6, 6 (Amy Tachiki et al. eds., 1971). Both

articles delivered Asian Americans the backhanded compliment

of working hard at any job, valuing education, insisting that

their children excel in school, combining resources to help each

other get ahead and moving to the suburbs as they amass more

wealth.

economically successful. See Miranda Oshige

McGowan & James Lindgren, Testing the “Model

Minority Myth,” 100 Nw. U.L. Rev. 311, 335 (2006).

While the stereotype may seem to implicate positive

attributes, most scholars agree that the stereotype

itself has negative effects. See generally Frank Wu,

Yellow: Race in America Beyond Black and White

(2003) (positing that widespread stereotyping of

Asian Americans is inherently damaging); see also

Pat K. Chow, Asian Americans: The “Reticent”

Minority and Their Paradoxes, 36 Wm. & Mary L.

Rev. 1, 24 (1994) (summarizing the model minority

myth that “Asian Americans, through their hard

work, intelligence, and emphasis on education and

achievement, have been successful in American

society”). Lumping this large, diverse community

into one stereotype ignores the poverty and low

levels of education that many Asian Americans face,

such as those from Cambodia, Vietnam and Laos.

In addition to overlooking significant Asian

American populations, the model minority myth

causes further damage by “persuad[ing] people that

Asians need no help in attaining economic and

educational success.” See, e.g., Chow, supra p.16; see

also McGowan & Lindgren, supra n.11, at 336. The

phrase “model minority” inherently pits one minority

group against others; after all, if one ethnic group is

the “model,” then other ethnic groups must be less

than ideal. Perhaps even more troubling, and

blatantly untrue, is the logical endpoint of the model

minority myth: that all Asian Americans are

“successful” so that therefore they must not be

subject to societal discrimination.”

This myth—and the false conclusions that are

derived from it—hinders an honest assessment of

the real obstacles that Asian Americans face in the

workplace. Critical analysis of the underlying

reasons for the severe disparities in public sector

employment that Asian Americans face cannot occur

when articles in the media glibly declare that “Asian

Americars are smarter than the rest of us.”

Anthony Ramirez, America’s Super Minority,

FWortune, Nov. 24, 1986, at 148, 149. These types of

inaccurate and misleading stories create the

impression that Asian Americans can independently

overcome any obstacles they encounter in reaching

the highest ranks of corporate America — they simply

need to adapt to American management culture. Zd.

This type of reasoning, itself rooted in stereotype,

casually ignores the real history of discrimination

and segregation suffered by the Asian American

community, which continues to grapple with the

after-effects to this day. It implies that Asian

23 Researchers at Northwestern University School of Law

used data from the General Social Survey to determine the

degree to which non-Hispanic whites, Hispanic Americans and

African Americans hold positive views of Asian Americans

while simultaneously believing Asian Americans to be

unpatriotic, foreign, or inassimilable. McGowan & Lindgren,

supra n.11, at 332. The results of their study showed that

“[t]hose who hold positive views of Asians as hard working or

intelligent are indeed more likely to believe that there is little

or no discrimination against Asian Americans in jobs and

housing.” Id. at 333.

Americans’ ability to adapt to corporate culture is

their problem alone and they alone can provide a

solution.*4

3. The stereotypes have manifested themselves

into a “glass ceiling” on Asian American

progress in the workplace.

Both the perpetual foreigner stereotype and the

model minority myth have played key roles in

erecting barriers to Asian American workplace

advancement. Asian Americans face a “glass

ceiling,” which refers to a set of often informal

barriers preventing many minorities and women

from moving into higher management positions. 2°

24 Today, the myth persists — earlier this year Forbes

magazine ran an article (authored by Jason Richwine of the

American Enterprise Institute) declaring that Indian

Americans are the new model minority. A critique of the

Forbes article echoed what academic critics have been arguing

for decades: that the term “model minority” is not a

compliment but “an attempt to fit a diverse community into an

oversimplified box” and that “being called a “model minority” is

an unwelcome characterization that is damaging and tough to

overcome. “[This is why] the ‘old’ model minorities — East

Asian Americans — have struggled to shed the label since they

were first saddled with it in the 1960s because of ‘their

advanced educations and high earnings.” Shiwani Srivastava,

Nobody's Model Minority, The Root (March 16, 2009), available

at http://www.theroot.com/views/nobodys-model-minority (last

visited Mar. 24, 2009).

25 See generally Wu, supra p.16, at 163 (discussing the glass

ceiling faced by Asian Americans in the workforce and for

government contracts); see also Deborah Woo, The Glass

Ceiling and Asian Americans: A Research Monograph 42 (July,

1994) (unpublished manuscript), available at

(cont'd)

Studies by various federal agencies including the

United States Commission on Civil Rights, the

Equal Employment Opportunity Commission, and

the Federal Glass Ceiling Commission, have all

found that despite achieving higher levels of

education than other groups, Asian Americans have

not experienced corresponding upward mobility—

either in terms of higher incomes or promotions. ”®

Asian American men born in the United States are

7-11 percent less likely to be in managerial

occupations than non-Hispanic white men with the

same education, work experience, marital status,

and English ability.2?7 The disparity is just as stark

for Asian American women.?® Similar patterns of

disparity are apparent in 2005 data for firms with at

least 100 employees, where only 8.6 percent of Asian

(cont'd from previous page)

http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi? article

=1130&context=key_workplace (last visited Mar. 24, 2009).

26For a summary of these findings, see Asian American

Institute, Asian Americans and Public Contracting: Equal

Opportunities, Laws, and Policies 19-20 (2008), available at

http://www.advancingequality.org/attachments/files/220/Equal_

Opportunity_Laws. pdf (last visited Mar. 24, 2009).

27 U.S. Commission on Civil Rights, Civil Rights Issues Facing

Asian Americans in the 1990's (1992); see also Asian American

Institute, supra n.26, at 19-20 (discussing research that

evidences an approximate 10% income disparity between Asian

Americans and Non-Hispanic white Americans (citing LEAP

Asian Pacific American Pub. Policy Inst. & UCLA Asian

Americans Studies Ctr., The State of Asian Pacific America:

Policy Issues to the Year (2000))).

28 Td.

Americans are in management positions compared to

13.2 percent of whites. See U.S. Equal Employment

Opportunity Commission, supra at 8. The same

holds true for promotion into the highest career

levels in the federal government, even after

controlling for a number of personal characteristics,

revealing an unexplained racial residual effect.29 In

1994, the United States Commission on Civil Rights

found that being of “Asian descent” had a “negative

effect” on an employee’s chance to move upward into

management. See Woo, supra n.25, at 42 (citing to

the U.S. Commission on Civil Rights, Economic

Status of Americans of Asian Descent: An

Exploratory Investigation (1988)). Employer biases

and stereotypes play a major role in crafting the

glass ceiling.*”

If the Court follows Petitioners’ position, it will

undermine decades of programs and laws meant to

combat historical and pervasive discrimination in

society. Subtle, institutionalized prejudice is often

29 See generally Jeremy S. Wu and Carson K. Eoyang, Asian

Pacific American Senior Executives in the Federal Government,

AAPI Nexus, Vol. 4, No. 1, Winter/Spring 2006, 39-50 (calling

attention to the lack of workforce diversity in promoting Asian

Americans to the highest career levels in the federal

government).

30 See Vu H. Pham, Lauren Emiko Hokoyama, & J.D.

Hokoyama, Become Visible: Let Your Voice Be Heard, AAPI

Nexus, Vol. 4, No. 1, Winter/Spring 2006 Essay, 1-11 (arguing

that under-representation is not due to a lack of skills or

interest but because Asian Americans lack role models and

mentors as they are not perceived as “leadership material”).

persistent, but difficult to expose.*! Stereotypes such

as the model minority myth and the perpetual

foreigner stereotype may very well explain why

Asian Americans continue to earn less money than

their less-educated non-Hispanic white

counterparts.*2 Asian Americans face a glass ceiling,

constructed by decades of damaging stereotypes,

that has been dented slowly over time, thanks in

part to the principle of equal protection and Title

VII.. In the face of this stark historical record, the

Court should not restrain the ability of government

actors to foster equal opportunity in the workplace.

31 For example, a San Francisco employment study revealed

that Asian Americans are over-parity on a city-wide basis, but

a breakdown of the numbers reveals that Asian Americans are

under-parity as police officers, firefighters, or attorneys even

though they are over-parity as engineers, accountants,

analysts, and technicians. See Chin, supra p.6, at 155-56.

(discussing how statistics “evidencing parity” are in fact

misleading and obscures discrimination against Asian

Americans by failing to take into account qualitative

differences in treatment afforded Asian Americans and

obscuring areas where Asian Americans are woefully under

represented).

32 Asian American Institute, supra n.26, at 19-20 (discussing

research that evidences an approximate 10% income disparity

between Asian Americans and Non-Hispanic whites Americans

(citing LEAP Asian Pacific American Pub. Policy Inst. & UCLA

Asian Americans Studies Ctr., The State of Asian Pacific

America: Policy Issues to the Year (2000))).

Il. AVOIDING EMPLOYEE ADVANCEMENT

PROCEDURES THAT PERPETUATE

RACIAL DISPARITY IS A REASONABLE

METHOD OF PREVENTING WORKPLACE

DISCRIMINATION.

Asian Americans are keenly aware of the need for

government actors to address structural racial

inequalities, often rooted in a historical legacy of

discrimination and prejudice, through voluntary

compliance with Title VII. Given the continuing

gross disparities in the numbers and advancement

potential of Asian Americans firefighters and other

protective service personnel, as discussed supra,

Title VII is as important as ever.

In light of a record of past discrimination that

continues to affect minorities today, government

actors are obligated to avoid employee advancement

methodologies that needlessly perpetuate racial

disparity. This history should inform the Court’s

examination of the City of New Haven’s efforts to

use non-biased selection procedures, and whether

this should trigger strict scrutiny review. Forcing a

government actor to use a test that is not compliant

with federal guidelines and evidences an adverse

racial impact is clearly contrary to the purpose of

Title VII itself: freedom from discrimination.*%

33 In broad terms, the desire to combat discrimination was

the reason Congress enacted the Civil Rights Act of 1964, of

which Title VII is a part, as the title of the Act makes clear.

See Pub. L. No. 88-352, 78 Stat. 241 (1964) (1964 Civil Rights

Act was to address “discrimination in public accommodations,”

(cont'd)

Petitioners put forth two principal arguments for

why strict scrutiny should apply: (1) race was the

“predominant factor” in Respondents’ decision to not

certify the test results, Pet’r Br. Ricci, at 24; and (2)

Respondents acted with a racial purpose. Jd. at 24-

25.

Both arguments fail because they wholly

mischaracterize Respondents’ actions. The City of

New Haven reacted in a race-neutral way to a test

that, under federal guidelines, had a disparate racial

impact.34 For the anti-discrimination framework to

succeed, government actors must be free to make

reasonable decisions to avoid a disparate impact on a

protected class, and ensure that all employees are

treated equally.25 Such compliance avoids uniawful

discrimination and furthers judicial economy.

(cont'd from previous page)

“prevent discrimination in federally assisted programs,” and

“for other purposes”). Congress has further clarified its view of

the anti-discriminatory purposes underlying Title VII through

various amendments. See, e.g., Pub. L. No. 111-2, § 2, 123 Stat.

5 (Lilly Ledbetter Fair Pay Act of 2009 expands time period in

which “victims of discrimination can challenge and recover for

discriminatory compensation decisions or other practices”);

Pub. L. No. 111-1, § 3, 105 Stat. 1071 (1991 Civil Rights Act

was designed “to respond to recent decisions of the Supreme

Court by expanding the scope of relevant civil rights statutes in

order to provide adequate protection to victims of

discrimination’).

34 See Part II.A., infra.

35 See 42 U.S.C. § 2000e-2(h) (Title VII permits employment

tests as long as they are “not designed, intended or used to

discriminate because of race, color, religion, sex or national

(cont'd)

Accordingly, Amici encourage the Court to find

that strict scrutiny does not apply because the City

of New Haven did not use a racial classification and

did not have a discriminatory purpose.*®

A. Respondents’ attempts to implement fair

and legal advancement methodologies do

not amount to racial classification and

do not trigger strict scrutiny.

Petitioners and their supporters argue that they

were subject to improper racial classification. Pet’r

Br. Ricci, at 23.357 They assert that Respondents

(cont'd from previous page)

origin”); see also Griggs v. Duke Power Co., 401 U.S. 424 (1971)

(holding that internal transfer and promotion methodologies

which relied on high school education requirements and

threshold scores on broad aptitude tests had a disparate impact

on minority ethnic groups).

36 Amici incorporate Respondents’ arguments that

Respondents had a compelling interest in complying with Title

VII's disparate impact provisions. Resp’t Br. Ricci, at 49-55.

Amici also incorporate by reference Respondents’ arguments

that the non-certification of the test results was, by definition,

narrowly tailored to achieve the compelling interest in avoiding

a potential violation of Title VII. Resp’t Br. Ricci, at 55.57.

37 See also Brief for Joe Oakley et al. as Amicus Curiae

Supporting Petitioner, Ricci, at 2 (“In canceling a content-valid

civil service promotions process solely because the test results

indicated that not enough minority applicants qualified for

promotions, the City of New Haven acted in a manner that the

Equal Protection Clause, and this Court, simply cannot

countenance.”); Brief for the Eagle Forum Education & Legal

Defense Fund as Amicus Curiae Supporting Petitioner, Ricci,

at 6 (“Respondents used individual racial classifications to

distribute burdens and cause each Petitioner to be

(cont'd)

disliked the racial breakdown of the test results and

acted accordingly. Jd. %8 Relying in part on

Adarand,*? Petitioners and their supporters argue

(cont'd from previous page)

disadvantaged because of his or her race.” (citation and

internal quotations omitted)); Brief for the Anti-Defamation

League as Amicus Curiae Supporting Petitioner, Ricci, at 5

(“New Haven’s conduct in rejecting the exam results because it

was dissatisfied with the racial makeup of the resulting

candidate pool undoubtedly constituted a race based

distinction.”); Brief for the National Association of Police

Organizations as Amicus Curiae Supporting Petitioner, Ricci,

at 6 (“Whether the Board engaged in_ race-based

decisionmaking is not in dispute here. The lower court found

as a matter of fact that it did... .”); Brief for the Concerned

American Firefighters Association as Amicus Curiae

Supporting Petitioner, Ricci, at 3 (“In this case, the District

Court and the United States Court of Appeals for the Second

Circuit declined to confront the fact that a racial classification

was used by the CSB, and therefore its failure to apply strict

scrutiny was manifestly in error.”).

38 “Using race-coded lists to determine whether to certify, the

city and its officials acted on raw racial labels and distributions

Petitioners were treated unequally because of their race:

they were refused promotions only because they were white.”

Pet’r Br. Ricci, at 23.

39 In Adarand, the Court concluded that strict scrutiny

applies to a federal set-aside program that on its face provides

financial incentives to hire minority subcontractors. Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). The law at

issue in that case gave general contractors on government

projects a financial incentive to hire subcontractors operated by

individuals historically subjected to racial or ethnic prejudice.

Id. at 206. This was not a facially neutral law. It treated

parties differently based on race; minority-owned businesses

were preferred over non-minority owned businesses. Jd.

(applying strict scrutiny where the contract at issue stated that

(cont'd)

that Respondents’ decision to not certify the test

results should be construed as a facial classification

which expressly distinguishes between applicants on

the basis of race.

Adarand is simply not applicable here. “

Respondents had no incentive to hire a minority

candidate over a non-minority one.*! Instead, this

case deals with a facially neutral decision where all

parties were treated exactly the same. Whereas the

law in question in Adarand conferred an explicit

advantage on minority-owned businesses,

Respondents’ attempts to ensure that the promotion

process was fair, unbiased and compliant with

relevant federal guidelines did not give minority

candidates an advantage over non-minority

candidates. By disregarding all of the test scores,

Respondents treated all applicants equally and

avoided a potential violation of Title VII. Id. This

case is therefore not one where the “racial

classification” was on the face of the statute or

(cont'd from previous page)

the contractor would receive additional compensation if it hired

subcontractors certified as small businesses controlled by

“socially and economically disadvantaged individuals’).

409 Amici incorporate by reference Respondents’ discussion of

how this is not a case of racial classification, unlike the law in

Adarand. Resp’t Br. Ricci, at 41-42.

41 Amici also incorporate by reference Respondents’

arguments that declining to certify the test results did not

entail racial classifications triggering strict scrutiny. Resp’t Br.

Ricci, at 41-44.

policy, and which distinguished between people on

the basis of race.*?

Petitioners’ position—that Respondents engaged

in racial classification—would turn the anti-

discrimination statutory scheme on its head.

Government actors, seeking to effect Title VII-

compliant remedies to potentially discriminatory

hiring and promotion methods, would instead have

their hands tied in the name of anti-discrimination.

Yet, often the clearest evidence of actual

discrimination is in the pass ratio of an employment

test. See, e.g., United States v. City & County of San

Francisco, 696 F. Supp. 1287, 1294 (N.D. Cal. 1988)

(finding a pass rate ratio of Asian American

firefighters to Non-Hispanic whites firefighters of

only 13 percent evidences discrimination), affd sub

nom. Davis v. City & County of San Francisco, 890

F.2d 1438 (9th Cir. 1989), cert. denied, sub nom. San

Francisco Fire Fighters Local 798 & Intl Ass’n of

Fire Fighters, AFL-CIO v. City & County of San

Francisco, 498 U.S. 897 (1990). Petitioners’

argument would only serve to undercut the ability of

Title VII to address structural racial inequality.

42 See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12 (1967)

(invalidating a miscegenation statute which, on its face,

prohibited interracial marriages); Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 282-84 (1986) (invalidating a school board

plan which expressly utilized race-based ;references in teacher

lay-offs).

B. It is critical to the functioning of Title

VII that government actors not be liable

for reasonable efforts to address

promotion methodologies that would (1)

perpetuate racial disparity and (2) not

comply with federal guidelines.

Petitioners’ brief contends that the City of New

Haven intended to treat candidates differently on

the basis of their race or ethnicity by not certifying

the promotion exams. Pet’r Br. Ricci, at 25.49 This

43 See also Brief for Joe Oakley et al. as Amicus Curiae

Supporting Petitioner, Ricci, at 5 (“{Petioners’ efforts] were

ultimately futile because a municipal government believed it

could make an intentional, race-based determination to cancel

a content-valid promotions process using the EEOC guidelines

as a shield.”); Brief for the National Association of Police

Organizations as Amicus Curiae Supporting Petitioner, Ricci,

at 11 (“Thus, when the Board acted from its concern that ‘too

many whites . . . would be promoted were the lists to be

certified’ it discriminated against those ‘whites’ that passed the

exam but were ordered returned to square one.” (citing Ricci v.

Destafano, 554 F. Supp. 2d 142, 152 (D. Conn 2006))); Brief for

the Center for Individual Rights, et al. as Amicus Curiae

Supporting Petitioner, Ricci, at 8 (“Here, defendants’

motivations were racial. Defendants were concerned that

hiring plaintiffs would undermine the goal of diversity in the

Fire Department; would fail to develop managerial role models

for aspiring firefighters; and would subject the City to public

criticism. Each of these concerns is directly related to most of

the plaintiffs’ race, and thus constitute racial considerations

that would support a finding of intentional race

discrimination.” (quotations omitted)); Brief for the Pacific

Legal Foundation et al. as Amicus Curiae Supporting

Petitioner, Ricci, at 15 (“Such a blatantly race-conscious

decision, made to lower the likelihood of a potential disparate

impact claim, constitutes the precise type of discrimination

that Title VII was designed to prohibit.”); Brief for the Cato

(cont'd)

decision, they argue, amounts to _ intentional

discrimination. Id.

In fact, rather than practicing intentional

discrimination, Respondents were actually

complying with their affirmative obligation to avoid

racial discrimination. See Johnson v. Transp.

Agency, 480 U.S. 616, 630 (1987). Government

actors are encouraged to devise measures to address

racial discrimination in a general way without

engaging in race-based treatment of individuals. See

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701 (2007) (Kennedy, J., concurring

in part and concurring in the judgment); see also

Grutter v. Bollinger, 539 U.S. 306, 334 (2003)

(affirming the “plus” treatment of diversity in the

(cont'd from previous page)

Institute as Amicus Curiae Supporting Petitioner, Ricci, at 12

(“Similarly, the more employers heed the incentive to throw out

test results based merely on race-based statistical disparity,

the more unintentional discrimination will be replaced by

intentional discrimination.”); Brief for the United States as

Amicus Curiae Supporting Petitioner, Ricci, at 32 (“The

{district} court did not, however, adequately consider whether, .

. . respondents’ claimed concern about Title VII liability was a

pretext for intentional racial discrimination.”); Brief for the

Claremont Institute as Amicus Curiae Supporting Petitioner,

Ricci, at 12 (“[T]he use of race to determine government

promotions on a preferential basis (or deny them to others) is

not remedial, but rank racial discrimination.”); Brief for the

Mountain States Legal Foundation as Amicus Curiae

Supporting Petitioner, Ricci, at 3 (“The decision to void the test

and make no promotions is blatant race-based decision making,

which is designed to achieve racial balance in the fire

department.”).

admissions process for post-graduate education as a

flexible and non-mechanical way of treating race).

Here, Respondents decided to not certify the test

results for anyone, regardless of their race. An

across-the-board non-certification does not amount

to race-conscious decision-making, and certainly not

race-based decision-making. See id. And, in any

event, Title VII does not mandate that Respondents

“act in a wholly ‘color blind’ fashion.”44 The Court

has held that voluntarily adopted race-conscious

remedies for past discrimination are justified by

public agencies under Title VII by a showing only of

the existence of a “manifest imbalance” of minorities

or women in “traditionally segregated job

categories.” * To determine whether such an

imbalance has occurred, the Court may compare the

percentage of minorities or women in the employer’s

work force with the percentage in the area labor

market or general population. 4“ Contrary to

Petitioners’ argument, the statutory standard under

Title VII doe: not require evidence of past

44 Fullilove v. Klutznick, 448 U.S. 448, 482 (1980); see also

Adarand, 515 U.S. at 200.

45 Johnson v. Transp. Agency, 480 U.S. at 631 (quoting United

Steelworkers of Am. v. Weber, 443 U.S. 193, 197 (1979)).

46 Id. at 637. In the case of Asian Americans, there is

generally a gross disparity between the percentage of Asian

Americans in the firefighting forces and the percentage of

Asian Americans in the general population. See Part I.A.,

supra. It is this type of disparity, rooted in a historical legacy

of discrimination, that government actors should be encouraged

to remedy through compliance with Title VII.

discrimination by a specific employer to justify that

employer’s voluntarily adopted practices to comply

with Title VII.47

Petitioners’ position binds the hands of cities

trying to voluntarily comply with the letter and

spirit of Title VII.4® There are several reasons why

employers should be encouraged to take action

before a Title VII violation. In addition to judicial

economy and the cost savings from obviated

litigation, voluntary action may produce more

favorable results because it is less likely than a court

order to engender opposition and resentment.

Kirkland v. N.Y. State Dep’t of Corr. Servs., 711 F.2d

at 1128 n.14. Further, “the value of voluntary

compliance is doubly important when it is a public

employer that acts, both because of the example its

voluntary assumption of responsibility sets and

47 See id. at 631; see also Hayden v. County of Nassay, 180

F.3d 42, 51 (2d Cir. 1999) (“[E]ven in the absence of specific and

identified discrimination, nothing in our jurisprudence

precludes the use of race-neutral means to improve racial and

gender representation.” (citing City of Richmond v. J.A. Croson

Co., 488 U.S. 469 (1989)).

48 There is an affirmative obligation to comply with Title VII,

as voluntary compliance is a preferred means of achieving Title

VII's goal of eliminating employment discrimination. See

Johnson v. Transp. Agency, 480 U.S. at 630; see also Officers for

Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615,

625 (9th Cir. 1982); Kirkland v. N.Y. State Dep't of Corr. Servs.,

711 F.2d 1117, 1128 (2d Cir. 1983) (“[Vjoluntary compromises

of Title VII actions enjoy a presumption of validity.”), cert.

denied sub nom. Althiser v. N.Y. State Dep’t of Corr. Servs., 465

U.S. 1005 (1984).

because the remediation of yovernmental

discrimination is of unique importance.” Wygant,

476 U.S. at 290 (O’Connor, J., concurring).

Respondents’ actions were grounded in the

jurisprudence of the Court and the principles behind

Title VII. Efforts to comply with EEOC Guidelines

and Title VII standards should be encouraged, not

used as a basis for legal liability. It is critical to the

function of Title VII that the Court not constrain the

hands of government actors to ensure that all people

have equal opportunity regardless of their race.

This is all the more important because structural

racial disparities, rooted in a historical legacy of

discrimination, continue to persist. The stereotypes

that Asian Americans are perpetual foreigners or a

model minority are key workplace issues for the

Asian American community. See Part 1.B. and C.

Studics have demonstrated that a glass ceiling

prevents Asian Americans from progressing as

quickly as their non-Hispanic white colleagues

progress. See Part I.C. In order to ensure that

Asian Americans, and other racial minorities, have

an equal opportunity in the workplace, cities should

be free to address workplace discrimination before a

Title VII violation occurs. Any attempts to limit the

reach of Title VII should be prevented.

CONCLUSION

For the foregoing reasons, as well as those

outlined by Respondents, Amici respectfully requests

that the Court affirm the judgment of the Second

Circuit.

Date: March 25, 2009

Respectfully submitted,

Vincent A. Eng

Counsel of Record

ASIAN AMERICAN JUSTICE

CENTER

1140 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 296-2300

Attorneys for AAJC as amicus curiae

APPENDIX

List of Amici Curiae

Asian Law Alliance (ALA)

ALA, founded in 1977, is a nonprofit public interest

legal organization with the mission of providing

equal access to the justice system to the Asian and

Pacific Islander communities in Santa Clara County,

California. In the area of fair employment practices,

ALA has advocated for affirmative action programs

for Asian and Pacific Islanders.

Asian American Institute (AAI)

AAI is a pan-Asian, non-partisan, not for profit

organization located in Chicago, Illinois, whose

mission is to empower the Asian American

community through advocacy, by utilizing coalition

building, education, and research. AAI’s programs

include community organizing, leadership

development, and legal advocacy. Asian Americans

are a diverse and often overlooked community, but

they are one of the fastest-growing populations in

the United States. Because AAI recognizes the

importance of including Asian Americans in public

sector jobs, and the importance of using fair and

legal methodologies to advance public sector

employees, AAI has a strong interest in the outcome

of this case.

Asian Law Caucus (ALC)

The ALC is a nonprofit, public interest legal

organization whose mission is to promote, advance,

and represent the civil rights of Asian Pacific

Islander communities. Founded in 1972, the ALC is

the nation’s oldest Asian Pacific Islander civil rights

legal organization. The ALC has provided legal

services and community education on

discrimination, represented individuals in

discrimination suits, and conducted local and

regional policy advocacy on the importance of

diversity programs. The ALC has an interest in this

case because governments should have the right to

not certify employment tests results that have a

disparate impact on a protected class. The ALC is

affiliated with AAJC.

Boat People SOS (BPSOS)

BPSOS is ae national immigrant _ services

organization serving primarily Vietnamese refugees

and immigrants with thirteen branch offices

nationwide. BPSOS’ domestic operation includes a

large array of human and immigration services for

Vietnamese refugees and immigrants. Harboring a

strong mistrust of governmental agencies and

personnel due to political persecution in Vietnam,

this population does not access services often. When

they do, they are often discouraged by the lack of

culturally and hnguistically competent service

providers. It is important that all ethnicities are

represented in government especially in the area of

first responders to provide this competency. It is

because of this interest BPSOS participates in the

brief.

The Japanese American Citizens League

(JACL)

JACL, founded in 1929, is the nation’s oldest and

largest Asian American non-profit, non-partisan civil

rights organization with 113 chapters throughout

the continental United States, Hawai'i, and Japan.

The mission of the JACL is to uphold the civil and

human rights of Americans of Japanese Ancestry

and of all people. The JACL played a prominent role

in obtaining redress for Japanese Americans who

were interned during World War II. The JACL has

also worked to educate against and combat

discrimination on the basis of race, national origin,

age, ethnicity, gender, or disability, and to protect

the right of all persons to equal participation in the

political process.

The Fred T. Korematsu Center for Law and

Equality (Korematsu Center)

Korematsu Center is a nonprofit organization based

at Seattle University School of Law and works to

advance justice through research, advocacy, and

education. The Korematsu Center is dedicated to

advancing the legacy of Fred Korematsu, who defied

the military orders during World War II that

ultimately led to the internment of 110,000 Japanese

Americans. He took his challenge of the military

orders to the United States Supreme Court, which

upheld his conviction in 1944 on the ground that the

removal of Japanese Americans was justified by

“military necessity.” Fred Korematsu went on to

successfully challenge his conviction and _ to

champion the cause of civil liberties and civil rights

for all people. The Korematsu Center, inspired by

his example, works to advance his legacy by

promoting social justice for all. It has a special

interest in safeguarding access to opportunities for

all groups in all walks of life. We note that the

Korematsu Center does not, in this brief or

otherwise, represent the official views of Seattle

University.

The Minority Business Round Table (MBRT)

MBRT is a national nonprofit 501(c)(3) membership

organization for chief executive officers (“CEOs”) of

the nation’s largest and leading minority-owned

Asian American, African American, Hispanic

American, Native American and Women owned

companies. It functions as the vehicle for its

members to analyze and help formulate effective

public policies that impact these minority-owned

businesses. Members hold positions equivalent to

CEO or chairperson in their respective businesses.

MBRT supports the Asian American community as

an amicus/friend to ensure equal opportunity and

access and inclusion for minorities and women. This

is an important national priority and policy of the

United States of America, its States, and its local

governments that must be preserved and

maintained.

The National Council of Asian-American

Business Associations (NCAABA)

NCAABA is a 501(c)-3 organization that serves as

the national voice for the Asian American business

community. We support the AAJC brief because we

believe Asian Americans are disproportionately

underrepresented in service areas such as

firefighting and other positions, in part due to a

history of exclusion from public sector positions, and

we sincerely believe that Asian Americans benefit

when local governments utilize promotion and

advancement methodologies that do not have a

disparate impact on minorities. Therefore, we are

supportive of AAJC’s initiatives that address these

disparities.

Organization of Chinese Americans, Inc. (OCA)

OCA is a 501(c)(3) national nonprofit, nonpartisan

organization dedicated to advancing the social,

political, and economic well-being of Asian Pacific

Americans in the United States. With over 80

chapters and affiliates across the nation, OCA’s aims

are to advocate for social justice, to promote civic

participation, to advance coalitions and community

building, and to foster cultural heritage. OCA

monitors issues and policies that affect the Asian

Pacific American community. Accordingly, OCA

supports AAJC’s positions in the current case and

has a strong vested interest in its outcome as Asian

Pacific Americans have faced a long history of

employment discrimination. In the current case, the

decisions of the District Court and Court of Appeals

would affect not only the program at issue and other

similar programs at fire departments throughout the

Second Circuit, but also similar programs across the

United States. The potentially very broad impact of

this case provides Amici a substantial interest in its

outcome.

The Sikh American Legal Defense and

Education Fund (SALDEF)

SALDEF is the oldest Sikh American civil rights and

advocacy organization in the United States.

Founded as the Sikh Mediawatch and Resource Task

Force (SMART) in 1996, SALDEF empowers Sikh

Americans through legal assistance, educational

outreach, legislative advocacy, and media relations.

SALDEF has over a decade of experience in working

with other Sikh and minority organizations in

providing public policy, advocacy, and community

education on discrimination issues. SALDEF has a

strong interest in this case as Asian Americans, like

all Americans, must not be treated unequally by

employers because of their race. As such, we support

AAJC’s position that it is reasonable for government

actors to decline certification of test results that

have a disparate impact on any minority group in

order to achieve employment equality for all. This

case raises crucial questions concerning the freedom

of government actors to voluntarily comply with

Title VII's prohibition against using employment

tests that have a disparate impact on a protected

class. Such compliance avoids unlawful

discrimination and helps to prevent litigation from

the protected class. Forcing a government actor to

use a test that potentially runs afoul of federal

employment guidelines is clearly contrary to the

very purpose for which Title VII was conceived:

freedom from discrimination.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.