Opposition Brief — Devereaux v. Geary

|, Supreme Gourt, U.S.

tt FILED

9 | a

No. 85-492 ia OCT 18 863

) | JOSEPH F. SPANIOL, JR. |

IN THE CLER

SUPREME COURT OF THE UNITED STATES —_

ROBERT T. DEVEREAUX, et al.

Petitioners-Appellants,

Ve

WILLIAM J. GEARY, et al.

Respondents-Appellees.

and

PLAINTIFF-CLASS IN CULBREATH v. DUKAKIS

Intervenors, Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

OPPOSITION OF THE INTERVENORS - APPELLEES

TO THE PETITION FOR CERTIORARI

James H. Wexler Herman J. Smith, Jr.

Lahive & Cockfield Boston University

60 State Street School of Law

Boston, MA 02109 765 Commonwealth Ave

(617) 227-7400 Boston, MA 02111

COUNSEL OF RECORD (617) 353-3148

ATTORNEYS FOR THE INTERVENORS-APPELLEES,

PLAINTIFF-CLASS IN CULBREATH v. DUKAKIS

"BEST AVAILABLE COPY §

No. 85-492

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT T. DEVEREAUX, et al.

Petitioners-Appellants,

ve

WILLIAM J. GEARY, et al.

Respondents -Appellees.

and

PLAINTIFF-CLASS IN CULBREATH v. DUKAKIS

Intervenors, Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

OPPOSITION OF THE INTERVENORS - APPELLEES

TO THE PETITION FOR CERTIORARI

James H. Wexler Herman J. Smith, Jr.

Lahive & Cockfield Boston University

60 State Street School of Law

Boston, MA 02109 765 Commonwealth Ave

(617) 227-7400 Boston, MA 02111

COUNSEL OF RECORD (617) 353-3148

ATTORNEYS FOR THE INTERVENORS-APPELLEES,

PLAINTIFF-CLASS IN CULBREATH v. DUKAKIS

QUESTIONS PRESENTED FOR REVIEW

I.

II.

It!I.

CAN THE PETITIONERS CHALLENGE

THE VALIDITY OF THE COLLATERAL

ATTACK DOCTRINE WHEN THEIR

COMPLAINT WAS TREATED AS A

MOTION TO INTERVENE AND THEY

WERE GIVEN THE OPPORTUNITY TO

BE HEARD ON THE MERITS OF THEIR

CLAIMS?

DOES THE FOURTEENTH AMENDMENT

PERMIT AN EMPLOYER WHO HAS

ADMITTED PAST PRACTICES OF

DISCRIMINATION TO ENTER INTO A

CONSENT DECREE WHICH PROVIDES

FOR RACE-CONSCIOUS PROSPECTIVE

RELIEF?

DOES TITLE VII PERMIT AN

EMPLOYER WHO HAS ADMITTED PAST

PRACTICES OF DISCRIMINATION TO

VOLUNTARILY ENTER INTO A

CONSENT DECREE WHICH PROVID!).S

FOR RACE-CONSCIOUS PROSPECT:VE

RELIEF?

TABLE OF CONTENTS

STATE MENT OF THE CA SE eeeeoeeeeeeeee2e8 l

SU MMA RY OF ARGUMENT eeeeseeeeteeneeeeeeee @ 7

PN 8, eee ee ee eee Pe Pe Tee ee ll

I. THE DUE PROCESS RIGHTS OF THE

PETITIONERS' WERE NOT VIOLATED

WHEN THE DISTRICT COURT AND

THE COURT OF APPEALS TREATED

THEIR COMPLAINT AS A MOTION TO

INTERVENE IN THE UNDERLYING

ACTION. ccccccccccccscscccccce Ll

II. THE CONSENT DECREE IS VALID

SINCE THE FOURTEENTH AMENDMENT

ALLOWS FOR RACE CONSCIOUS

RELIEF ABSENT ‘i SHOWING OF

IDENTIFIABLE VICTIMS......... 14

III. FIREFIGHTERS LOCAL UNION

NO. 1784 v. STOTTS DOES NOT

AFFECT THE VALIDITY OF THE

CULBREATH CONSENT DECREE..... 20

aera RIPE GN 0 e066 64 660-068-406 be Oe 29

TABLE OF AUTHORITIES

CASES PAGE

Boston Chapter, NAACP v. Beecher,

679 F.2d 965 (lst Cir. 1982)........ 19

Bratton v. City of Detroit,

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

cert. denied, 104 S. CT. 703

( Gpccccccccccceececcereececeecace 19

Bushey v. New York State

Civil Service Commission,

733 F.2d 220 (2nd Cir. 1984),

cert. denied, U.S.

Bh) PP rrererTTriTTTTy. ts 28

Culbreath v. Dukakis,

Civil Action No. 74-2463-MA

(D. MOASBepccccececseeeeeseeseceess passim

Culbreath v. Dukakis,

630 F.2G 1S (Let Cif. 1980). .ccccerB, 24

Diaz v. American Telephone

Telegraph, 752 F.2d

56 (9t = TA EGOS ccocecceces e*eeee##e 28

Dennison v. City of Los Angeles

pepartment of Water and Power,

65 F. et Cen vach« nutets «sone te 12

Firefighters Local Union No. 1784

v. Stotts, U.S.

104 s.Ct. 2576 Eee ePccecsecécece passim

Fullilove v. Klutznick,

448 U.S. 448 Tepe Pee eeccoaeceeses 16, 17

eoeeeeneeeneneeeeneneeneeneneeneeeeneeeeeee@¢ 18, 19

cite

CASES PAGE

Grann v. City of Madison,

738 F.2d 786 (7th Cir. 1984),

cert. denied U.S. >

105 S.Ct. 296 (1984). .cccccccccceese 13

Januwiak v. Corporate City of

South Bend, 750 F.2d 557

Te BR ca bekineeand<cecacscces 4%

Kromnick v. School District of

Philadelphia, 739 F.2d 894

Oo 88 op 7 aa

O'Burn v. Shapp, 70 F.R.D. 549

(E.D.Pa. 1976), aff'd without

published opinion, 546 F.2d 418

(3rd Cir. 1976), cert. denied,

COO Dis. GOR CRP e esa atesacencaccecs 22

Smith v. Missouri Pacific

Railroad road Company, 615 F.2d 683

(5th Cir oy FP Pee hee eh ees eesesecceses 13

Thaggard v. City of Jackson,

687 F.2d 66 (5th Cir. 1982), ©

cert. denied sub. nom. Ashley v.

City of Jackson, U.S. P

S.Ct; 255 FRU 66664 666 bC Ce 68 8

eoeeeseeeeensteeeneeeeeeeeeeneneneeneeeneeee @ Ll. 13

Turner v. Orr 759 F.2d 817

(lith + TP Bw) 6 66466.0666400006060668 29

~iii-

CASES PAGE

United Steelworkers of America v.

Weber, 443 U.S. 193 (1979)...... 4

FPP Ee TTT TTT UTTTUriIrerrreiriryiTs Ss 25-28

University of California v. Bakke,

438 Uebe D. SEOUOs 666 663000650860 n0> 3

eeeeseeveeeeeeeeeeeeeeeeeeeeeeneeeeeee 18, 19

Valentine v. Smith, 654 F.2d 503

(8th Cir. 1981), cert. denied,

454 U.S. 1124 ON eG owe oo a a yao as 19

Van Aken v. Young, 750 F.2d

43 (6th Cir. Det ééewneeeteeeeeebes 27

Vanguards of Cleveland v.

Cleveland, 753 F.2a 479

(6th Cir. 1985) cert. granted

U.S. ( Pad) 066606 28

-iv-

STATUTES PAGE

United States Constitution,

Te TTT ee ee eee 16

United States Constitution,

Amendment ee en 8 ww passim

Title VI of the Civil

Rights Act *eeweeeeeeeeeeeeee 14, 15

Civil Rights Act of 1964,

Title VII, 42 U.S.C. 2000e

et. seq. *eereerieemeeeeser#enee#ensee#ee? passim

Public Works Employment Act of

ESS SO Lie 18

Voting Rights Act of

OS AS 8 15

42 om §l198sl. e*eeeeee#2ee#e#e#e#es¢: he 4

42 Gee eo §1983.. e*eeeseeeee#see#es: 1

-Vr-

=

J x res hy

ime

STATEMENT OF THE CASE

On July 1, 1971, the

plaintiffs, intervenors ("the Class"),

asserting claims pursuant to the

fourteenth amendment of the United

States Constitution, 42 U.S.C. §1981 and

42 U.S.C. §1983, filed a class action

Jackson et al. v. Sargent, et al. [now

Culbreath v. Dukakis] on behalf of

minority residents of the City of Boston

alleging that the then Governor, the

Civil Service Commission and various

state agencies had engaged in racial

discrimination in their employment and

promotional practices.

On December 18, 1978, after two

years of negotiations, the Class and the

defendants submitted a proposed Consent

Decree and a Stipulation of Facts to the

Court. In that stipulation the parties

stated:

"The parties believe that

the stipulation of facts

set forth below and

acknowledged by the Court

constitute findings of

such past practices of

discrimination of both a

judicial and

administrative nature,

sufficient to sustain

under Title VII of the

Civil Rights Act of 1964,

thereby providing

sufficient grounds for the

remedies set forth in the

Decree.

The Stipulation which was signed by the

Governor, the Attorney-General and the

heads of each of the defendant agencies,

further stated + at the statistics

demonstrated a racially disproportionate

underemployment of minorities in most

job classifications and that the

defendants have in the past and continue

to have engaged in numerous non job

related employment practices which have

caused the racially disproportionate

underemployment of minorities. The

Consent Decree which lasts for eight

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years, requires the defendants to cease

the use of discriminatory employment

practices, undertake increased

recruitment of minorities and to employ

an increasing number of minorities over

the term of the decree.

On August 27, 1979, the trial

court denied motions to intervene

brought by a number of unions

representing employees holding positions

covered by the Consent Decree on the

basis that they were untimely. On

August 30, 1979, the trial court signed

and entered the Stipulation of Facts,

signec and entered the Consent Decree,

and retained jurisdiction of the

Matter. The parties who sought to

intervene filed timely notices of

appeal.

The denials of intervention

were upheld by the United States Court

of Appeal for the First Circuit,

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Culbreath v. Dukakis, 630 F.2d. 15 (lst

Cir. 1980). In reviewing the Consent

Decree, the First Circuit determined

that the Consent Decree was fair,

adequate, reasonable and lawful, and

that racial preference schemes were

accepted means of remedying past

discrimination relying on United

Steelworkers of America v. Weber, 443

U.S. 193 (1979); University of

California v. Bakke, 438 U.S. 265 (1978).

On July 12, 1984, the

petitioners, five white males, employed

by the Metropolitan District Commission

("MDC"), filed the present action

pursuant to the fourteenth amendment and

42 U.S.C. §1981 seeking to undo the

appointment under the terms of the

Consent Decree, of a black male, Donald

Callender, to a provisional position as

a Captain with the MDC. In their

Complaint the petitioners simply alleged

that they had "been denied the

opportunity to be ccnsidered for the

position,” and that because of their

race, one of them had been denied the

position. The petitioners did not

allege that Callender was not qualified

or eligible to fill the position.

Further, the petitioners did not allege

that the appointment of Callender

violated the existing seniority system

or that it contravened any existing

collective bargaining agreement between

the petitioners and the defendants.

Both the First Circuit and

district Court treated the petitioners'

complaint as a motion tc intervene in

Culbreath v. Dukakis. In addressing the

issues of the timeliness of this attempt

to intervene, the First Circuit found

that but for the decision of the United

States Supreme Co:.rt in Firefighters

Local Union No. 1784 vy. Stotts

«$<

a a ae

U.S. , 104 S. Ct. 2576 (1984), the

facts before the district court were

virtually identical to those before the

First Circuit in 1980. The First

Circuit and the district court rejected

the peticioners' argument that there was

an unusual circumstance created by a

change of Title VII law based on

Stotts. Both the First Circuit and the

district court found that Stotts was

inapplicable in that Stotts dealt with a

court's power to modify a consent decree

over the objection of one of the parties

and with a court's power to enjoin the

operation of a bona fide seniority

system during a time of layoffs.

Neither of these issues were before the

district court. A further distinction

that the First Circuit made was that the

parties had stipulated that

discriminating patterns and practices

existed that were sufficient to support

a Title VII action and that the

petitioners challenged provisions to

which the original parties had agreed.

The First Circuit and district court

rejected the petitioners’ contention

that the Court meant to rewrite Title

VII law to make affirmative action

programs improper absent a finding of

actual past discrimination. The First

Cicuit concluded that absent an express

announcement to the contrary, Weber

remains good law.

SUMMARY OF ARGUMENT

The present action is a direct

attack upon the goals of the Consent

Decree and the mechanisms agreed upon to

achieve those goals. Because the

present action directly attacks and

attempts to undo the remedial aspects in

Culbreatn, the action is an

impermissible collateral attack on the

Consent Decree and the district court

correctly dismissed the Complaint.

Thaggard v. City of Jackson, 687 F.2d

66, 68 (5th Cir. 1982), cert. denied

sub. nom. Ashley v. City of

Jackson, v.8. » 266 8.Ct. 255

(1983); Deunison v. City of Los Angeles

Department of Water and Power, 658 F.2d

694 (1981).

As the Complaint is an

impermissible collateral attack, the

district court and First Circuit

correctly chose to treat it not as a

separate complaint but as an attempt to

intervene in that action. Treated as a

motion to intervene, intervention was

untimely since the factual issues raised

by such an effort to intervene have

already been determined. Dukakis v.

Culbreath, 630 F.2d 15 (lst Cir. 1980).

Since the district Court and the First

Circuit heard petitioners' claims in the

context of a motion to intervene, the

petitioners did not suffer eny due

process violation, were not harmed and

have no basis to raise the validity of

the collateral attack doctrine.

The petitioners' contention

that the decision of the United States

Supreme Court in Firefighters Local

Union No. 1784 v. Stotts, BsBe

, 104 S.Ct. 2576 (1984) makes

invalid the Consent Decree is

incorrect. At issue in Stotts was the

legality of an order which modified an

existing consent decree where there had

been no admission or finding of racial

discrimination and which resulted in the

termination of the employment of

non-minorities in a manner which

violated an existing seniority system.

In setting aside the modification to the

consent decree, the Court did not set

aside the underlying Consent Decree

which provided for race-conscious

selection and provided prospective

relief for unproven victims of

discrimination. Nor dia the Stotts

decision directly or inplicity overrule

a long line of cases under the

fourteenth amendment and Title VII in

which it and numerous Circuit Courts of

Appeal have upheld remedial

race-conscious plans implemented either

through agreement or consent decree.

The present case is

dramatically different than Stotts. Not

Only have there been conclusive

admission of facts of discrimination,

the terms of the Consent Decree mandate

that an alternate list be used only when

the defendants have failed to meet

hiring goals contained in the Consent

Decree. The use of the alternate list

did not require the termination of the

employment of a non-minority, did not

“10-

interfere with an existing seniority

system, and simply resulted in the

employment of a qualified minority in an

voluntary effort (albeit entered under

the threat of litigation) by the

defendants to undo the effects of years

of racial discrimination.

A RGU MENT

I. THE DUE PROCESS RIGHTS OF THE

PETITIONERS WERE NOT VIOLATED

WHEN THE DISTRICT COURT AND THE

COURT OF APPEALS TREATED THEIR

COMPLAINT AS A MOTION TO

INTERVENE IN THE UNDERLYING

ACTION.

There is good reason for the

collateral attack doctrine and that is

to protect the parties to a consent

decree from inconsistent or

contradictory proceedings. See e.g.,

Thaggard v. City of Jackson 687 F.2d 66

(Sth Cir. 1982), cert. denied sub. nom.

Ashley v. City of Jackson,

U.S. , 104 S.Ct. 255 (1983);

ste

Dennison v. City of Los Angeles

Department of Water and Power, 658 F.2d

694 (9th Cir. 1981); O'Burn v. Shapp, 70

F.R.D. 549 (E.D.Pa. 1976), aff'd.

without published opinion, 546 F.2d 418

(3rd Cir. 1976}, cert. denied, 430 U.S.

968 (1977). In seeking a review of the

collateral attack doctrine the

petitioners contend that the doctrine

violates their due process rights. In

making such an argument, the petitioners

ignore the fact, that by treating their

complaint as a motion to intervene the

district court specifically allowed them

to be heard on the merits of their

Claims that their constitutional rights

had been violated by the operation of

the Consent Decree.

If the petitioners’ position

were adopted, then each time a minority

was advanced, a different non-minority

would have the opportunity to initiate

el 2<

an attack on the Consent Decree by a |

separate lawsuit. To permit repeated

attacks "would severely undercut

important notions of judicial

efficiency," Thaggard v. City of

Jackson, 687 F.2d at 69, and would

undermine the finality and integrity of

the settlement process. Grann v. City

of Madison, 738 F.2d 786, 794 (7th Cir.

1984) cert. denied, oe » 105

S.Ct. 296 (1984); Smith v. Missouri

Pacific Railroad Company, 615 F.2d 683

(5th Cir. 1980). Even if the

petitioners had been permitted to file a

separate action the only issue they

could have raised was the effect of the

Stotts case. Therefore, as long as a

party has the right to attempt to

intervene, there is simply no harm to

the constitutional right of these

parties or any other party to be heard.

«i 9

II. The Consen ecree is Valid Since

the Fourte -% Amendment Allows

for Race Conscious Relief Absent

a Showing of Identifiable Victims.

The petitioners’ position

ignores the rulings in University of

California v. Bakke, 438 U.S. 265

(1978). In Bakke, the Supreme Court

invalidated the University of

California's race-conscious preferential

admissions program as violating Title VI

of the Civil Rights Act of 1964, which

the Court considered to be coextensive

with che fourteenth amendment. 438 U.S.

at 287. However, the Court in Bakke

clearly establishes the principal that

under the fourteenth amendment the state

has a legitimate and substantial

interest in ameliorating or eliminating

the effects of identified

discrimination. 438 U.S. at 307. These

preferences may be imposed where a

legislative or administrative body has

=“l4-

made findings of constitutional or

statutory violations. 438 U.S. at 30l.

Even absent a determination of

discrimination a public agency may,

without violating the fourteenth

amendment, take into consideration

racial classifications which are

designed to further remedial purposes as

long as they serve important

governmental objectives and are related

to those objectives. 438 U.S. at

316-319. In his plurality opinion,

Justice Powell noted that "this case

does not call into question

congressionally authorized

administrative actions, such as consent

decrees under Title VII or approval of

reapportionment plans under §5 of the

Voting Rights Act of 1965...." Id. at

302 n.41. Moreover he agreed with

Justices Brennan, White, Marshall and

Blackman that neither Title VI nor the

1 S-

fourteenth amendment raised an absolute

bar to the use of race in university

admissions. Id. at 325-326 (Brennan J.,

concurring in part and dissenting in

part). Finally, Justice Brennan argued,

based on his analysis of several school

desegregation cases, that prospective

race-conscious "relief does not require

as a predicate proof that recipients of

preferential advancement have been

individually discriminated against, it

is enough that each recipient is within

a general class of persons likely to

have been the victims of

discrimination. Id. at 363.

In Fullilove v. Klutznick, 448

U.S. 448 (1980), this court reaffirmed

that governmental remedial programs

which are race-conscious do not

necessarily violate the equal protection

component of the Due Process Clause of

the Fifth Amendment. At issue was a

“16-

"minority business enterprise" (MBE)

provision of the Public Works Employment

Act of 1977 which recuired that at least

ten percent of federal funds granted for

local public works projects be used by

the state or liocal grantee to procure

goods and services from businesses owned

by minority — members. The Court

held that where Congress had the

authority to act to remedy the effects

of past discrimination, equal protection

does not require it to "act ir a wholly

color-blind fashion." Id. at 482.

Additionally, the Court stated that the

fact that some non-minority business

enterprises may be innocent of any past

discriminatory conduct was not

controlling because the purpose of the

MBE program is to remedy the present

effects of the virtual exclusion of

Minority firms from contracting

opportunities because of which

1 P<

non-minority firms may have in the past

reaped competitive benefit. Id. at

485. Finally, the MBE program was

constitutional even though it might

disappoint the expectations of

non-minority firms because "“"([w]hen

effectuating a limited and properly

tailored remedy to cure the effects of

prior discrimination, such a ‘sharing of

the burden’ by innocent parties is not

impermissible." Id. at 484.

Significantly, the Fullilove court did

not require that Congress first find

that the individual recipients of the

MBE program had individually been

discriminated against as a predicate for

race-conscious relief. Remedying the

effects of past discrimination is

sufficient reason for the race-conscious

program. Id. at 496 (Powell, J.,

concurring). Thus Bakke and Fullilove

make clear that governmental

-18-

pt Raw Talli ile

;

‘

i

:

i

race-conscious remedial action, even in

the absence of a showing of actual

individual victims, is permissible under

the fourteenth amendment. The

petitioners point *o no case which has

expressly either overruled or limited

the scope cf Bakke and Fullilove. The

Circuit Courts have also affirmed the

constitutionality of race-conscious

remedies on a number of cccasions. See

Boston Chapter, NAACP v. Beecher, 679

F.2d 965 (lst Cir. 1982); Janowiak v.

Corporate City of South Bend, 750 F.2d

557, 563-4 (7th Cir. 1984); Bratton v.

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

1983); cert. denied, U.8« P

104 S. Ct. 763 (1984); Valentine v.

Smith, 654 F.2d 503 (8th Cir. 1981),

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

Bushey v. New York State Civil Service

-19-

tia ‘ Ait not ABA DALARAN A AE: ——_

Commission, 733 F.2d. 220 (2nd Cir.,

1984) cert. denied, v.88. ‘

105 S. Ct. 803 (1985).

III. Firefighters Local Union No. 1784

v. Stotts Does Not Affect the

Validity of the Culbreath Consent

Decree.

As the circuit court stated,

what is at the heart of this case is the

‘petitioners’ claim that the United

States Supreme Court's decision in

Firefighters Local Union No. 1784 v.

Stotts, U.S. , 104 S.Ct. 2576

(1984) is applicable to the present

case. There is, however, nothing in

Stotts which is relevant or applicable

to the case at bar.

In Stotts, the United States

District Court for the District of

Tennessee had previously approved a

consent decree which provided for

remedial race-conscious hiring relief

and did not modify or overturn the

-20-

existing seniority system. At the

request of the plaintiffs the court

entered a preliminary injunction

modifying the consent decree and

enjoining the Memphis Fire Department

from following its seniority system in

determining who would be laid off as a

result of a budgetary shortfall. When

layoffs were carried out pursuant to

this order, it resulted in white

employees with more seniority than black

employees being laid off. The seniority

system in its original state would have

resulted in the layoff of black

employees with less seniority. On

appeal, the Sixth Circuit affirmed,

holding that the district court's

preliminary injunction was proper and

that it had acted correctly in modifying

the consent decree.

The central issue before this

Court was whether the preliminary

injunction was justified either as an

mo

effort to enforce the consent decree or

as a valid modification of the consent

decree. The Court reversed and held

that the district court's preliminary

injunction was not justified either as

an effort to enforce the consent decree

Or as a valid modification of the

consent decree. Central to the Court's

holdings were the following arguments:

(a) because the consent decree contained

no provision regarding layoffs or any

provision suggesting any interest to

depart from the existing seniority

system, the injunction could not he |

justified as an attempt to enforce the

decree; and (b) the attempted

modification was — valid because it

was an unlawful attempt to abrogate the

terms of a bona fide seniority system

protected by Section 703(h) of Title VII

without a prior finding of

discriminatory intent and to the

«22

detriment of non-minority workers. It

is important to emphasize that Stotts

dealt only with terminations in light of

a bona fide seniority plan and not with

prospective race-conscious affirmative

relief.

The distinctions in this case

are critical. First, the action which

is challenged is mandated by the Consent

Decree, was contemplated by the parties

and is neither a result of a

modification of the Decree nor the

result of an injunction seeking to

enforce a provision of the Decree.

Second, there has been a clear admission

by the defendants to the Consent Decree

of the intentional use of discriminatory

employment practices resulting in

Significant underrepresentation of

minorities in the defendant state

agencies. Third, the promotion of

Callender does not impinge or violate

«33

the rights of the petitioners or for

that matter of any individual under the

existing seniority system. Fourth,

neither the petitioners nor any other

individual are losing a position which

they presumably have nor are they facing

a reduction in salary. Fifth, the

actions complained of were mandated, in

part, by the collective bargaining

agreements in place at the time that the

Decree was implemented. Culbreath v.

Dukakis, 630 F.2d at 24. Sixth, the

Consent Decree does not bar the

promotions of non-minorities. Seventh,

the terms of the Consent Decree are

limited in duration and no one has

questioned the reasonableness of those

terms. Lastly, none of the parties to

the Consent Decree have objected to the

operation of any of its terms.

The petitioners insist that

Stotts creates a significant and

34+

dramatic change in the Title VII law,

namely that Section 706(g) of Title VII

proscribes all race-conscious remedies

except for those which are limited to

actual victims of past discrimination.

However, the Stotts Court neither

addressed nor ruled upon such a broad

issue. Rather, as noted above, the

Stotts Court faced the more limited

issue of the lawfulness of the

abrogation of a bona fide seniority

system by a court imposed race-conscious

remedy. In deciding this issue the

Stotts Court did not condemn

race-conscious remedies imposed in any

context other than Section 706(g) of

Title VII and did not forbid voluntary

race-conscious plans such as the one it

approved of in United Steelworkers of

America v. Weber, 443 U.S. 193 (1979).

In short, Stotts stands for the narrow

proposition that a Court may not,

=25~

against the wishes of any party, modify

a consent decree by adding a provision

never agreed to by the parties which

abrogated the layoff provisions of a

bona fide seniority system at the

expense of non-minorities. It is

significant that the Stotts Court did

not even hint that the 50% hiring goal

and the 20% promotion goal, contained in

the Stotts consent decree, were in any

way impermissible under Title VII.

The petitioners have tenored

the import of those lines of cases which

permit an employer, both public and

private, to take into consideration

race-conscious decisions under Title

VII.

In United Steelworkers of

America v. Weber, the Supreme Court

sustained a voluntarily adopted

affirmative action plan. The court

Stated that the question was not what

-26-

Title VII requires or what a court might

order to remedy a Title VII violation,

but rather what voluntary actions might

be lawfully be taken under Title VII.

Weber at 200. In its decision, the

Court held that voluntary efforts to

undo racial imbalances was permissible

under Title VII, notwithstanding the

absence of any finding of intentional

discrimination or identification of

actual victims. It was sufficient that

there be "conspicuous racial imbalance

in traditionally segregated job

categories” Weber at 209. The court

articulated the standard to be used in

determining the reasonableness of a

racial preference plan to be whether the

plan is of limited duration, whether it

unnecessarily tramelled the interests of

non-minorities and whether it is

substantially related to the purpose of

remedying the effects of

o2F-

discrimination. Id. at 208. Since

Weber, all of the Circuit Courts have

upheld voluntarily adopted affirmative

action plans of private parties and of

state and local governments and agencies

in cases similar to Weber as well as in

cases involving consent decrees. See

e.g., Van Aken v. Young, 750 F.2d 43

(6th Cir., 1984): Diaz v. American

Telephone & Telegraph, 752 F.2d 1356

(9th Cir., 1985); Kromnick v. School

District of Philadelphia, 739 F.2d 894

(3d Cir., 1984), cert. denied, 105 S.

Ct. 782 (1985); Bushey v. New York Civil

Service Commission, 733 F.2d 220 (2d

Cir., 1984), cert. denied,

U.S. , 105 S. Ct. 803 (1985).

Similarly, in the cases which have been

decided subsequent to Stotts a number of

courts have agreed with the district

court and circuit court and rejected the

argument that Stotts barred vrospective

-28-

race-conscious relief in Title VII

cases. See e.g., Turner v. Orr, 759

F.2d 817, 823-826 (llth Cir. 1985);

Vanguards of Cleveland v. City of

Cleveland, 753 F. 2d 479 (6th, 1985)

cert. granted U.S.

(1985).

CONCLUSION

For all of the above reasons,

the petitioners’ petition for certiorari

does not present matters which warrant

review by this Court and the petition

should be denied.

29

PLAINTIFF-CLASS IN CULBREATH

v. DUKAKIS

i ‘Al attorneys,

| A Wi

: hive & Cockfield

60 State Street

Boston, Massachusetts 02109

(617) 227-7400

[COUNSEL OF RECORD]

\t ELAvion f Gat uF (Q ha)

Herman J. Smith, Jr. \\

Boston University School

of Law

765 Commonwealth Avenue

Boston, Massachusetts 02111

(617) 353-3148

Dated: October 18, 1985

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