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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0221%3A37

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0221%3A37. Public record. Not legal advice.