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

es Supreme Coun, US

FILED

FES 2 5 2009

Nos. 07-1428/08-328 | orrice ne tur crerx

In the

Supreme Court of the Gnited States

—

FRANK RICCI, et al.,

Petitioners,

v.

JOHN DESTEFANO, et al.,

Respondents.

A.

—_

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

Ss

—

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

AND THE CENTER FOR COLLEGE

AFFORDABILITY AND PRODUCTIVITY

IN SUPPORT OF PETITIONERS

e

STEVEN G. GIESELER SHARON L. BROWNE

Of Counsel ALAN W. FOUTZ

Pacific Legal Foundation Counsel of Record

1002 SE Monterey Pacific Legal Foundation

Commons Boulevard, 3900 Lennane Drive,

Suite 102 Suite 200

Stuart, Florida 34996 Sacramento, California 95834

Telephone: (772) 781-7787 Telephone: (916) 419-7111

Facsimile: (772) 781-7785 Facsimile: (916) 419-7747

Counsel for Amici Curiae Pacific Legal Foundation

and the Center for College Affordability and Productivity

oot 4evTte

alt. aAt, >

i

QUESTIONS PRESENTED

This case presents an important issue regardi.g

the proper interplay between Title VII and state or

municipal laws that prohibit local government from

using race, sex, color, or ethnicity when making public

employment decisions. Here, Article XXX, Section 172,

of the New Haven City charter expressly prohibits

preferences or discrimination in hiring or promotions

based on race or national origin. Nevertheless, New

Haven discarded its race-neutral, job-related test

results based upon the racial composition of those who

passed compared to those who failed, on grounds that

it faced potential liability under Title VII if it used the

test results. This gives rise to the following question:

When it passed Title VII, did Congress intend to

leave undisturbed state and local anti-discrimination

laws that operate to eliminate public employers’ use of

race, sex, or ethnicity in public employment decisions?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED .............

TABLE OF AUTHORITIES .............

IDENTITY AND INTEREST

GP GRE PEE oc cc tc cccc cones

SUMMARY OF ARGUMENT ............

ee

TITLE VII DOES NOT PREEMPT

STATE OR LOCAL LAWS

REQUIRING RACE-NEUTRAL

EMPLOYMENT DECISIONS .......

A. Congress Did Not Intend Title VII

to Preempt Laws Prohibiting

Race-Based Employment Decisions

B. Title VII Does Not Require

Race-Based Employment

Decisions and Therefore Does Not

Conflict With State Prohibitions

on Race-Based Decisions ........

SANS eV nla 0 6 eee wee 6 4x 08 oe

ill

TABLE OF AUTHORITIES

Page

Cases

Adams v. Florida Power Corp.,

535 U.S. 228 (2002) ...............00.eeeeee 1

Alexander v. Sandoval, 532 U.S. 275 (2001) ...... 1

Barnett Bank of Marion County, N.A. v. Nelson,

es es abe oe eee 8

Bd. of Trustees of the Univ. of Ala. v. Garrett,

ccc est weeeeesess 1-2

Bratton v. City of Detroit,

704 F.2d 878 (6th Cir. 1983)................ 13

Bread Political Action Comm. v. Fed.

Election Comm'n, 455 U.S. 577 (1982) ......... 8

Cal. Fed. Sav. & Loan Ass'n v. Guerra,

I I ci ee ecw ee cccvscce 7-9

City of Cuyahoga Falls, Ohio v.

Buckeye Community Hope Found.,

EE re l

Coal. for Econ. Equity v. Wilson,

122 F.3d 692 (9th Cir. 1997)....... 2, 4-5, 12-14

Coal. to Defend Affirmative Action v.

Regents of the Univ. of Mich..,

539 F. Supp. 2d 924 (D. Mich. 2008) ....... 2,14

Crawford v. Marion County Election Bd..,

RR 1

Furnco Constr. Corp. v. Waters,

438 U.S. 567 (1978) ..............-.--e ce. 13

lv

TABLE OF AUTHORITIES—Continued

Page

Griggs v. Duke Power Co.,

401 U.S. 424 (1971)...............-00-- 10, 14

Hi-Voltage Wire Works, Inc. v. City of San Jose,

24 Cal. 4th 537, 12 P.3d 1068 (2000) ....... 2,14

Johnson v. Transp. Agency, Santa Clara

County, Cal., 480 U.S. 616 (1987) ........... 12

Keams v. Tempe Technical Inst., Inc.,

OD F.36 Bae te Car. 1904)... 2. ccc ce cc eees 8

Kelly v. City of New Haven,

275 Conn. 580, 881 A.2d 978 (2005) ........... 6

Kimel v. Fla. Bd. of Regents,

Sr 2

Liao v. Tenn. Valley Auth.,

867 F.2d 1366 (11th Cir. 1989)........... 12-13

Local 28 of the Sheet Metal Workers’ Int'l Ass’n

v. Equal Employment Opportunity Comm'n,

ce ee ree 9,11

Local Number 93, Intl Ass'n of Firefighters

AFL-CIO C.L.C. v. City of Cleveland,

eee 10-11

Nev. Dep't of Human Res. v. Hibbs,

a ere 1

Pervel Indus., Inc. v. State of Conn. Comm'n

on Human Rignis & Opportunities,

468 F. Supp. 490 (D. Conn. 1978) ........... 10

Rice v. Santa Fe Elevator Corp.,

ls cc ceeecsaetosewebewe 8

Vv

TABLE OF AUTHORITIES—Continued

Page

Shaw v. Delta Air Lines, Inc.,

ae as gee cle eel 4,10

Smith v. City of Jackson, Miss.,

Ne i ee 2 a a a a ee eee 1

Texas Dep’t of Cmty. Affairs v. Burdine,

Se 6 i on Ke oe bb ee ee ean 12

United Steelworkers of America, AFL-CIO-CLC

v. Weber, 443 U.S. 193 (1979) ............ 10, 12

Watson v. Fort Worth Bank & Trust,

6 ' € .) = reer = 12

Yatvin v. Madison Metro. Sch. Dist.,

840 F.2d 412 (7th Cir. 1988)................ 13

State Constitutions

+ Re ee eS er eee 2,4,7

Be 8, eee 4

Dae. Cae. ee. Ee « ow ao bose saceneeeee 4

Federal Statutes

fie bee ere 8, 11-12, 14

— £8 fo |, Serre ee wer reece 13

State Statute

Wash. Rev. Code § 49.60.0330 ..........ccccceee 4

City Statutes

City of New Haven, Conn.,

City Charter, art. XXX, § 172 ............ 3-4, 6

vl

TABLE OF AUTHORITIES—Continued

Page

Rules of Court

ccc ccc ec ssweenes l

EE EEE re ]

Miscellaneous

cesses ces encececen 9

I, ROOD oo cc ccc cc cee scesee 9

ND)” 4

110 Coma. Rec. 16693 (1964) .................. 10

Volokh, Eugene, 7'he California Civil

Rights Initiative: An Interpretive Guide,

oe 6.) 14

1

IDENTITY AND INTEREST

OF AMICI CURIAE

Pacific Legal Foundation (PLF), and the Center

for College Affordability and Productivity (CCAP)

respectfully submit this brief amicus curiae in support

of Petitioners Frank Ricci, et al.’

PLF is a nonprofit, tax-exempt corporation

organized under the laws of the State of California for

the purpose of engaging in litigation in matters

affecting the public interest. PLF has participated as

amicus curiae in this Court in numerous cases relevant

to this case. PLF has addressed the inequities of the

disparate impact theory in Crawford v. Marion County

Election Bd., 128 S. Ct. 1610 (2008), Smith v. City of

Jackson, Miss., 544 U.S. 228 (2005), City of Cuyahoga

Falls, Ohio v. Buckeye Community Hope Found.,

538 U.S. 188 (2003), Adams v. Florida Power Corp..,

535 U.S. 228 (2002), and Alexander v. Sandoval,

532 U.S. 275 (2001). PLF has also participated as

amicus curiae in cases before this Court involving the

scope and intent of Title VII of the Civil Rights Act of

1964, such as Nev. Deptt of Human Res. v. Hibbs,

538 U.S. 721 (2003), Bd. of Trustees of the Univ. of Ala.

' Pursuant to this Court's Rule 37.3(a), all parties have consented

to the filing of this brief. Counsel of record for all parties received

notice at least 10 days prior to the due date of the Amici Curiae’s

intention to file this brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amici Curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

v. Garrett, 531 U.S. 356 (2001), and Kimel v. Fla. Bd.

of Regents, 528 U.S. 62 (2000).

PLF has also been at the forefront of the legal

battles waged over state laws that _ prohibit

government’s use of race, sex, or ethnicity in public

employment. In Coal. for Econ. Equity v. Wilson,

122 F.3d 692 (9th Cir. 1997), as amicus, PLF

successfully defended California’s Proposition 209

which amended the California Constitution to prohibit

government from:

discriminat[ing] against, or grant[ing]

preferential treatment to, any individual or

group ort the basis of race, sex, color,

ethnicity, or national origin in the operation

of public employment, public education, or

public contracting.

Cal. Const. art. I, § 31(a). PLF attorneys were counsei

of record in Hi-Voltage Wire Works, Inc. v. City of

San Jose, 24 Cal. 4th 537, 12 P.3d 1068 (2000)

(invalidating a race-conscious city contracting program

under Proposition 209). PLF attorneys, representing

the drafters and sponsors of Michigan’s Proposal 2, the

sister initiative of Proposition 209, participated as

amicus curiae in_ successfully defending’ the

constitutionality of this newly adopted state law in

Coal. to Defend Affirmative Action v. Regents of the

Univ. of Mich., 539 F. Supp. 2d 924 (D. Mich. 2008).

CCAP is a nonprofit organization dedicated to

research on the issues of rising costs and stagnant

efficiency in higher education in the United States,

with an emphasis on how market forces can be used to

make higher education more affordable while

increasing quality.

3

This case raises important issues of constitutional

law, public policy, and statutory interpretation

regarding the extent to which race-conscious decisions

may be used to avoid “disparate impact” lability under

Title VII. Amici argue that Title VII does not preempt

state and municipal laws that limit state and local

government’s discretion to use race, sex, or ethnicity 1 in

the employment context.

SUMMARY OF ARGUMENT

The City of New Haven decided to set aside the

results of a promotion test for firefighters when too few

minority candidates would be promoted if the test

results were allowed to stand. The City feared that

certifying the test results would expose it to liability

under a “disparate impact” theory of discrimination.

New Haven’s decision brings into sharp focus how

allowing racial disparities alone to provide the basis

for a claim of unlawful discrimination leads to the type

of race-based decisionmaking that Title VII was

originally intended to eradicate.

New Haven made this decision notwithstanding

Article XXX, Section 172, of its city charter

(Section 172), which prohibits preferences or

discrimination based on race or sex in civil service

hiring decisions.* Section 172 is but one example of

state or local laws that prohibit government from using

race, sex, or ethnicity in official decisionmaking. The

states of California, Michigan, Washington, and

Nebraska have enacted statewide laws that hkewise

* Article XXX, Section 172, provides in part: “No person ... shall

be appointed, promoted, reduced, removed, or in any way favored

or discriminated against because of race, sex, age, national origin,

or political or religious opinion or affiliation.”

4

prohibit preferences or discrimination based on race or

sex. With language similar in form and identical in

effect to New Haven’s City charter, California adopted

Proposition 209 in 1996. The operative provision of

Proposition 209 provides:

The state shall not discriminate against, or

grant preferential treatment to, any

individual or group on the basis of race, sex,

color, ethnicity, or national origin in the

operation of public employment, public

education, or public contracting.

Cal. Const. art. I, § 31(a). Identical language appears

in the constitutions of Michigan (art. I, § 26(2)) and

Nebraska (art. I, § 30(1)) as weil as the Revised Codes

of Washington (Section 49.60.030). The intent and

effect of such state anti-discrimination laws is to

eliminate government’s authority to redistribute

opportunities based on these immutable

characteristics.

Although Plaintiffs did not challenge the decision

to discard the test results as being a violation of

Section 172, a decision by this Court that condones

such race-based decisionmaking under the auspices of

Title VII will weaken such laws considerably. Such a

decision would be contrary to Title VII's clearly

expressed legislative intent and plain language. See,

e.g., Coal. for Econ. Equity, 122 F.3d at 710 (finding

Title VII does not preempt Proposition 209); Shaw uv.

Delta Air Lines, Inc., 463 U.S. 85, 103 n.24 (1983)

(finding state fair employment laws were not

preempted by Title VII).

Nevertheless, groups opposed to such laws have

attacked them on grounds that they are preempted by

5

/

Title VII of the Civil Rights Act of 1964. For example,

plaintiffs challenging California’s Proposition 209

unsuccessfully argued that Title VII preserves public

employers’ discretion to use race and sex preferences.

Coal. for Econ. Equity, 122 F.3d at 709. The Ninth

Circuit Court of Appeals rejected plaintiffs’ argument

that because Proposition 209 eliminates such

preferences, Proposition 209 is preempted by Title VII.

Id. The Ninth Circuit stated that Title VII will

preempt state laws only where there is an actual

conflict, and that “Proposition 209 does not remotely

purport to require the doing of any act which would be

an unlawful employment practice under Title VII.” Jd.

at 710.

Amici contend that Title VII's legislative history

and an unbroken chain of court decisions examining

Title VII’s intent show that it does not preempt state

and local laws that prohibit preferences and

discrimination based on race, sex, or ethnicity.

Here, the City of New Haven’s actions were an

unadorned attempt to redistribute employment

opportunities based upon race or sex. A decision from

this Court that permits such actions by a public

employer will open the door to identical actions

throughout the nation. State and local governments

will have their anti-discrimination laws weakened by

a decision that permits public employers to reject

race-neutral and job-related test results in order to

achieve racial balancing under the auspices of

Title VII.

This Court should clarify that state and local

anti-discrimination laws do not conflict with, and in

fact support, the policy objectives of Title VII and are

therefore not preempted by Title VII.

6

SRGUMENT

TITLE VII DOES NOT

PREEMPT STATE OR LOCAL

LAWS REQUIRING RACE-NEUTRAL

EMPLOYMENT DECISIONS

Many states and municipalities have laws that

prohibit discriminatory race-based employment

practices. Title VII, by its plain language, does not

preempt these laws. Thus, federal courts may not rely

upon Title VII to relieve municipalities of the duty to

comply with such laws. Amici urge this Court to

recognize that a decision condoning the use of

race-based criteria for decisions in public employment

will undermine the validity and effect of such laws.

In this case, the City of New Haven’s charter,

Article XXX, Section 172, provides in relevant part:

“No person .. . shall be appointed, promoted, reduced,

removed, or in any way favored or discriminated

against because of race, sex, age, national origin, or

political or religious opinion or affiliation.” In Kelly v.

City of New Haven, 275 Conn. 580, 881 A.2d 978

(2005), the Connecticut Supreme Court rejected the

City of New Haven’s efforts to extend its discretion in

civil service hiring beyond the bounds set by its

charter. Jd. at 623 (“This court will not endorse an

effort to interpret out of existence the legislative check

on discretion that the legislators have chosen to keep

in place.”).

This prohibitory language in the New Haven City

charter is similar in form and identical in function to

statutes or constitutional provisions adopted by several

states that operate to prohibit state and local

governments’ use of race, sex, or ethnicity in public

7

employment. The states of California, Washington,

Michigan, and Nebraska have adopted statewide laws

containing identical operative language:*

The state shall not discriminate against, or

grant preferential treatment to, any

individual or group on the basis of race, sex,

color, ethnicity, or national origin in the

operation of public employment, public

education, or public contracting.

Cal. Const. art. I, § 31(a).4 Groups opposing such state

anti-discrimination laws have unsuccessfully argued

that Title VII preempts such laws because they

interfere with public entities’ voluntary compliance

with Title VII’s objectives. This Court should clarify

that such laws are not preempted by Title VII.

A. Congress Did Not Intend Title VII

to Preempt Laws Prohibiting

Race-Based Employment Decisions

In determining whether a state law is preempted

by federal law and therefore invalid under the

Supremacy Clause, a reviewing court’s “sole task is to

ascertain the intent of Congress.” Cal. Fed. Sav. &

Loan Ass'n v. Guerra, 479 U.S. 272, 280 (1987)

(Marshall, J., plurality opinion). Preemption will be

found only if that was the clear and manifest purpose

* California adopted Proposition 209 in November 1996. Michigan

adopted identical language in November 2006. Nebraska followed

suit in November 2008. The State of Washington adopted this

language as a statutory rather than constitutional amendment

with the passage of Initiative 200 in November 1998.

* These laws will be referred to herein collectively as “state

anti-discrimination laws,” with the understanding that they refer

only to preferences or discrimination based on race or sex.

8

of Congress. Jd. at 288; Barnett Bank of Marion

County, N.A. v. Nelson, 517 U.S. 25, 31 (1996) (federal

law does not preempt certain banks from selling

insurance); Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947) (stating “the historic police powers of

the States were not to be superseded by the Federal

[Warehouse] Act unless that was the clear and

manifest purpose of Congress”); Keams v. Tempe

Technical Inst., Inc., 39 F.3d 222, 227 (9th Cir. 1994)

(state tort action against trade school accreditors is not

preempted by Higher Education Act).

When ascertaining congressional intent, the plain

language of the statute controls absent clear evidence

of a contrary intent. Bread Political Action Comm. v.

Fed. Election Comm'n, 455 U.S. 577, 580 (1982). The

plain language of Title VII itself prohibits expressly

such preferential treatment at 42 U.S.C. § 2000e-2()),

which states in part:

Nothing contained [in Title VII] shall be

interpreted to require any employer .. . to

grant preferential treatment to any

individual . . . or group on account of an

imbalance which may exist with respect to

the total number or percentage of persons of

any race, color, religion, sex, or national

origin employed by any employer ... in

comparison with the total number or

percentage of persons of such race, color,

religion, sex, or national origin in. . . the

available work fofce in any community,

State, section, or other area.

This Court also noted Title VII’s hmited effect on

state laws in Guerra, stating: “Congress has indicated

that state laws will be pre-empted only if they actually

9

conflict with federal law.” Guerra, 479 U.S. at 281

(Marshall, J., plurality opinion). Title VII does not

preempt state anti-discrimination laws for the simple

reason that Title VII does not require employers to use

race and sex preferences.

The lead proponents of Title VII in the Senate,

Senators Case and Clark, submitted an interpretive

memorandum in support of Title VII, stating: “‘[t]here

is no requirement in Title VII that an employer

maintain a racial balance in his work force.’” Local 28

of the Sheet Metal Workers’ Intl Ass'n v. Equal

Employment Opportunity Comm'n, 478 U.S. 421, 459

(1986) (quoting 110 Cong. Rec. 7213 (1964)). Senator

Humphrey, another proponent of Title VII, stated:

“The proponents of this bill have carefully

stated on numerous occasions that Title VII

does not require an employer to achieve any

sort of racial balance in his work force by

giving preferential treatment to any

individual or group.”

Id. at 461 (quoting 110 Cong. Rec. 12723 (1964)).

Senator Humphrey explained further:

“Contrary to the allegations of some

opponents of this title, there is nothing in it

that will give any power to the Commission

or to any court to reyuire hiring, firing, or

promotion of employees in order to meet a

racial ‘quota’ or to achieve a certain racial

balance.”

Id. at 492 (quoting 110 Cong. Rec. 6549). Thus, the

plain language and legislative history of Title VII

confirm that the statute does not operate to invalidate

state and local anti-discrimination laws.

10

Nor can it be said that the anti-discrimination

laws noted above interfere with discretion Title VII

bestows upon public employers to implement

race-based affirmative action programs—because the

original intent of Title VII does not bestow any such

discretion. When Title VII was passed, Congress was

particularly concerned with any undue interference on

managerial discretion. Local Number 93, Int'l Ass'n of

Firefighters AFL-CIO C.L.C. v. City of Cleveland,

478 U.S. 501, 519 (1986). Title VII passed on the

assurance that “management prerogatives ... are to be

left undisturbed to the greatest extent possible.” Id.

at 520. Lastead of preempting state anti-discrimination

laws, Section 708 of Title VII “‘simply left them where

they were before the enactment of Title VII.’” Shaw,

463 U.S. at 103 n.24 (quoting Pervel Indus., Inc. v.

State of Conn. Comm’n on Human Rights &

Opportunities, 468 F. Supp. 490, 493 (D. Conn. 1978)).

In enacting Title VII, Congress was not legislating

about preferential treatment or quotas in employment

because it believed that “the problems raised by these

controversial questions are more properly handled at

a governmental level closer to the American people and

by communities and individuals themselves.” United

Steelworkers of America, AFL-CIO-CLC vu. Weber,

443 U.S. 193, 207 n.7 (1979) (quoting remarks of

Rep. MacGregor, 110 Cong. Rec. 15893 (1964)).

Likewise, in Griggs v. Duke Power Co., 401 U.S.

424, 430-31 (1971), this Court stated:

Congress did not intend by Title VII,

however, to guarantee a job to every person

regardless of qualifications. In short, the Act

does not command that any person be hired

11

simply because he was formerly the subject

of discrimination, or because he is a member

of a minority group. Discriminatory

preference for any group, minority or

majority, is precisely and only what

Congress has proscribed.

Congress’ intent to enshrine equality as the standard

of conduct under Title VII is wholly consistent with the

intent behind state and local anti-discrimination laws.

As a result of the harmony between both the intent

and the effect of Title VII and anti-discrimination laws,

Title VII does not operate to preempt such laws.

B. Title VII Does Not Require

Race-Based Employment

Decisions and Therefore

Does Not Conflict With State

Prohibitions on Race-Based Decisions

Whether Title VII should prohibit or require the

use of racial preferences was the subject of much

debate prior to its enactment. Many representatives

were concerned that Title VII would unduly interfere

with private business management decisions.

Local Number 93, Intl Ass'n of Firefighters, AFL-CIO

C.L.C., 478 U.S. at 519. To avoid this unwanted

result, Congress neither mandated nor prohibited the

use of racial preferences in employment. Local 28 of

the Sheet Metal Workers’ Int'l Ass’n, 478 U.S. at 463

(observing that Title VII, Section 703(j) [codified at

42 U.S.C. § 2000e-2(j)] “stated expressly that the

statute did not require an employer or labor union to

adopt quotas or preferences simply because of a racial

imbalance’).

12

In United Steelworkers, this Court made clear its

view that after Section 2000e-2(j) was adopted,

“congressional comments were all to the effect that

employers would not be required to institute

preferential quotas to avoid Title VII liability.” United

Steelworkers of America, AFL-CIO-CLC, 443 U.S.

at 207 n.7.

Numerous decisions have concluded Title VII does

not mandate race- and sex-preferential treatment for

minorities or women. Watson v. Fort Worth Bank &

Trust, 487 U.S. 977, 993 (1988) (“Preferential

treatment and the use of quotas by public employers

subject to Title VII can violate the Constitution.”);

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,

259 (1981) (“Title VII, however, does not demand that

an employer give preferential treatment to minorities

or women.”); United Steelworkers of America, 443 U.S.

at 205 (rejecting the argument that Title VII prohibits

voluntary affirmative action efforts); Coal. for Econ.

Equity, 122 F.3d at 709-10 (finding Title VII does not

preempt California’s Proposition 209); Liao v. Tenn.

Valley Auth., 867 F.2d 1366, 1369 (11th Cir. 1989)

(absent a showing of discrimination, there is no

Title VII cause of action for failure to implement or

utilize an affirmative action program).

This Court has repeatedly found that Title VII

allows but does not require affirmative action programs

that target minorities and women. Johnson v. Transp.

Agency, Santa Clara County, Cal., 480 U.S. 616, 644

(1987) (Stevens, J., concurring) (stating that Title VII

“does not require any employer to grant preferential

treatment on the basis of race or gender”); United

Steelworkers of America, 443 U.S. at 208 (holding that

litle VII’s prohibition against racial discrimination

13

does not condemn all private, voluntary affirmative

action plans).

In Furnco Constr. Corp. v. Waters, 438 U.S. 567,

577-78 (1978), this Court stated that “Title VII... does

not impose a duty to adopt a hiring procedure that

maximizes hiring of minority employees.” As part of

its analysis of the burden-shifting framework for cases

arising under Title VII, the Furnco Court stated: “[ijt

is clear beyond cavil that the obligation imposed by

Title VII is to provide an equal opportunity for each

applicant regardless of race, without regard to whether

members of the applicant’s race are already

proportionately represented in the work force.” Id.

at 579.

Federal circuits have likewise held that the Civil

Rights Act permits voluntary adoption of special

programs, but does not require any employer to grant

preferential treatment on the basis of race or sex. In

Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412, 415

(7th Cir. 1988); the Seventh Circuit held: “[t]he

Constitution and Title VII have been held, with

exceptions irrelevant here, to permit affirmative

action; they do not require it.” See also Liao, 867 F.2d

at 1369; Bratton v. City of Detroit, 704 F.2d 878, 883-84

(6th Cir. 1983).

Consistent with these decisions regarding

Title VII, the constitutionality of state anti-

discrimination laws has been upheld against all

manner of attack. In Coal. for Econ. Equity, the Ninth

Circuit rejected the argument that California’s

anti-discrimination amendment, Proposition 209, was

preempted by Title VII. Referring to Section 2000e-7’s

prohibition on state laws that “require or permit the

doing of any act which would be an unlawful

14

employment practice,” the Ninth Circuit said,

“Proposition 209 does not remotely purport to require

the doing of any act which would be an unlawful

employment practice under Title VII. Quite the

contrary, ‘[djiscriminatory preference for any group,

minority or majority, is precisely and only what

Congress has proscribed.” Coal. for Econ. Equity,

122 F.3d at 710 (quoting Griggs, 401 U.S. at 431). In

Coal. to Defend Affirmative Action, 539 F. Supp. 2d

at 930, the district court found that “Proposal 2 does

not violate the United States Constitution.”

The California Supreme Court relied upon

Proposition 209 to invalidate a race-conscious public

contracting program in Hi-Voltage. There, the court

recognized that Proposition 209 was consistent with

the original intent of Title VII, stating that “in

approving Proposition 209, the voters intended

section 31, like the Civil Rights Act as originally

construed, ‘to achieve equality of [public employment,

education, and contracting] opportunities.” Hi-Voltage,

24 Cal. 4th at 561-62 (quoting Griggs, 401 U.S. at 429).

See Eugene Volokh, The California Civil Rights

Initiative: An Interpretive Guide, 44 UCLA L. Rev.

1335, 1345 (1997) (noting that like Title VII itself,

Proposition 209 “bars -discrimination against or

preferential! treatment in favor of ‘any individual or [to

any] group’” (quoting 42 U.S.C. § 2000e-2()))).

Race-conscious employment decisions should not

be allowed to stand by resorting to an imaginary

conflict between state anti-discrimination laws and

Title VII. So it is with New Haven’s race-conscious

decision to abandon its promotional test results.

Although the district court’s decision did not address

this issue, New Haven’s race-based decision to abandon

15

its test results violates it’s city charter and is therefore

unlawful. Title VII cannot be used to shield race-

conscious decisions that violate state and local anti-

discrimination laws. A decision from this Court that

Title VII preempts local and state prohibitions on

preferences based on race, sex, or ethnicity would

significantly undermine the validity of such

anti-discrimination laws and the lower court decisions

that have upheld them.

oa

CONCLUSION

The discrimination that took place in this case

was not in the City of New Haven’s promotional] testing

process—regardless of the racial composition of those

who passed compared to those who failed. Rather, it

was when New Haven decided to treat those who

passed the exam as if they had failed in order to

manipulate the racial composition of the list from

which promotions would be made. 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. The City of New Haven should

not be allowed to offer up those who passed the

race-neutral and job-related promotional exam as a

sacrifice to achieve racial! balance.

16

In the course of reversing the Second Circuit

Court of Appeals’ decision, this Court should clarify

that state and local anti-discrimination laws are not

preempted by Title VII.

DATED: February, 2009.

Respectfully submitted,

STEVEN G. GIESELER SHARON L. BROWNE

Of Counsel ALAN W. FouTz

Pacific Legal Foundation Counsel of Record

1002 SE Monterey Pacific Legal Foundation

Commons Boulevard, 3900 Lennane Drive,

Suite 102 Suite 200

Stuart, Florida 34996 Sacramento, California 95834

Telephone: (772) 781-7787 Telephone: (916) 419-7111

Facsimile: (772) 781-7785 Facsimile: (916) 419-7747

Counsel for Amici Curiae Pacific Legal Foundation

and the Center for College Affordability and Productivity