# Opposition Brief — Devereaux v. Geary

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1021

## Text

|, 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 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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eee soil wes

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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

+30 «

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0779%3A2. Public record. Not legal advice.