Amicus Curiae Brief — Johnson v. Transportation Agency, Santa Clara Cty.

[¢ Q\ Suprame Court, U.S.

od FILED

Nos. 85-999 and 85-1129 SEP 20 1986

JOSEPH F. SPANIOL, JR,

IN THE CLERK

Supreme Court of the United

OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

Petitioner,

Vv.

PHILLIP PARADISE, et al.,

Respondents.

PAUL E. JOHNSON,

i Petitioner,

TRANSPORTATION AGENCY, SANTA CLARA

COUNTY, CALIFORNIA, et al.,

Respondents.

On Writs of Certiorari to the United States Courts

of Appeals for the Ninth and Eleventh Circuits

BRIEF OF CITY OF DETROIT, THE DISTRICT OF

COLUMBIA AND THE CITY OF LOS ANGELES AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

JAMES R. MURPHY DONALD PAILEN

Acting Corporation Counsel Corporation Counsel

CHARLES L. REISCHEL FRANK W. JACKSON

District Bldg., Rm. 305 1010 City-County Building

be orci age N.W. Detroit, Michigan 48226-3491

ashington, V.U. DANIEL B. EDELMAN *

Attorneys for Amicus Curiae YABLONSKI, BoTH & EDELMAN

District of Columbia 1140 Connecticut Avenue, N.W.

JAMES K. HAHN #800

City Attorney Washington, D.C. 20036

FREDERICK N. MERKIN (202) 833-9060

Senior Assistant Attorneys for Amicus Curiae

City Attorney City of Detroit

ROBERT CRAMER a

Assistant City Attorney CORSE ees

1800 City Hall East

200 North Main Street

Los Angeles, CA 90012

Attorneys for Amicus Curiae

City of Los Angeles

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ ES 00

Qs

TABLE OF CONTENTS

etl ai gm yt @ y! | yo | - Ae ace

NE IE I ric deiethiesstineicecisasteetheslebaiininealannntinbitsein

FO yp OI Stee RERT Es CREAT Mee DICED OE ONE Co

I. EXPERIENCE SHOWS THAT MINORITY

Il.

Ill.

PARTICIPATION AT ALL LEVELS, ESPE-

CIALLY SUPERVISORY LEVELS, IS VITAL

TO EFFECTIVE PERFORMANCE BY PUB-

LIC SAFETY AGENCIES

A. Crippling Effects of the Exclusion of Blacks

From Positions of Responsible Supervision...

B. Detroit’s Race-Conscious Efforts Beginning

ON a

C. The Fruits of Detroit’s Efforts .......2222222222200....

D. The Experience of Other Cities .......2..00..........

THE DESIRE TO CORRECT THE CRIP-

PLING EFFECTS OF DISCRIMINATION

ON PERFORMANCE OF PUBLIC SAFETY

FUNCTIONS WAS A LEADING CONCERN

OF CONGRESS IN EXTENDING TITLE VII

COVERAGE TO STATE AND LOCAL GOV-

or nt SEEMED AUS nt AISLE SARL ALO

THERE IS NO BARRIER UNDER TITLE VII

OR THE CONSTITUTION AGAINST USE OF

RACE-CONSCIOUS MEASURES IN CON-

NECTION WITH PROMOTIONS .......................

Pr philic cic cleceaa sine oes biesinittidinidialabncisattiniobaan

13

16

20

24

a are ee ear

ii

TABLE OF AUTHORITIES

Cases Page

Baker v. City of Detroit, 483 F.Supp. 930 (E.D.

Bs RII D orssiscccncecnvistsccssensesiastuinipsaceciata ie teptacadabldagncicaied passim

Blake v. City of Los Angeles, 595 F.2d 1367 (9th

Cir. 1979), cert. denied, 446 U.S. 928 (1980)... 3

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

1983), modified, 712 F.2d 222 (6th Cir. 1983),

cert. denied, —— U.S. ——, 104 S.Ct. 703

I ec eke ponenchsiniulebansenletaccupuaiicaniadndutuaia scdadaalaasistads 2,9, 23

Bridgeport Guardians, Inc. v. Members of the

Bridgeport Civil Service Comm’n, 482 F.2d 1333

(2d Cir. 1973), cert. denied, 421 U.S. 991 (1975) .. 14

Detroit Police Officers Association v. Young, 608

F.2d 671 (6th Cir. 1979), cert. denied, 452 U.S.

938 (1981), on remand, 36 FEP Cases 1019

(E.D. Mich. 1984), appeal pending (6th Cir. 85-

IEE Soecicctiteaamins pce eedesdhchoonciconbininea comet aeiecsnscacendaie tie 2,14, 15

Dougherty v. Barry, 607 F.Supp. 1271 (D.D.C.

1985), appeals pending (D.C. Cir. Nos. 85-5715/

EARL RM SE NO TS Re intr Se PTD Les eet NEARS 3

Hammon v. Barry, 606 F.Supp. 1082 (D.D.C.

1985), appeals pending, Nos. 85-5669/5670/

Ae Es MD sick ncncnncnininissosischal slain padcasbonnicamdbedsonichie 3

NAACP v. Detroit Police Officers Ass’n, 591 F.

Supp. 1194 (E.D. Mich. 1984) ........................... 8,12

Tablert v. City of Richmond, 648 F.2d 925 (4th

Cir. 1981), cert. denied, 454 U.S. 1145 (1982)... 14

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

eg ty St. : Ree ere eo 12, 20-23

United Steelworkers v. Weber, 443 U.S. 193

MRR IR ae Gee eae ann ae war ae eB Roe 16, 21-23

Constitutional Provisions, Statutes and Regulations

U.S. Constitution, 14th Amendment ..........-22-.222002002.. 4, 20

Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.

Title VII, 42 U.S.C. 8 2000-, et seq. ..................... 4,16

Justice System Improvement ..t of 1979, Pub. L.

No. 96-157, 93 Stat. 1167, 1206 (1979)

SD ecirseiviinnccisichonacasunancanbicaels aimonenananns 16

iii

TABLE OF AUTHORITIES—Continued

Omnibus Crime Control and Safe Streets Act of

1968, Pub. L. No. 90-351, 82 Stat. 197; Pub. L.

No. 91-644, 84 Stat. 1881; 42 U.S.C. § 37894 ......

23 CFR. § 42.2080) (1) (1966) ...............................

28 C.F.R. § 42.203 (i) (2) (1985)

Se ee eT Oe RD acs cecceneceeceee

Sa ee ee

Legislative History

Subcommittee on Labor of the Senate Committee

on Labor and Public Welfare, 92 Cong., 2d Sess.,

Legislative History of the Equal Employment

Opportunity Act of 1972 (Comm. Print 1972) -...

Other Authorities

National Advisory Commission on Civil Disorders,

I ais eleeiearnatinennaiess

National Advisory Commission on Criminal Justice

Standards and Goals, Police (1978) .....................

National Commission on the Causes and Preven-

tion of Violence, Final Report: To Establish Jus-

tice, To Insure Domestic Tranquility (1969) .......

National Commission on Law Observance and En-

forcement, Report on the Causes of Crime

io cpcamasabaaaaapniens

President’s Commission on Law Enforcement and

Administration of Justice, Task Force Report:

I acc sicahuasnennenadonnns

U.S. Commission on Civil Rights, Confronting

Racial Isolation in Miami (1982) ........................-

U.S. Commission on Civil Rights, For All the Peo-

ple... By All the People—A Report on Equal

Opportunity in State and Local Government Em-

Ns pcekaiamkowwenchen

U.S. Commission on Civil Rights, Mexican Ameri-

cans and the Administration of Justice in the

Nn a aldansueinakenoece

U.S. Commission or Civil Rights, Who Is Guarding

the Guardians: A Report on Police Practices

(1981)

Page

15

15

15

16

15

18, 19

13

13

13

13

13, 15

14

17

17

IN THE

Suprene Court of the United States

OCTOBER TERM, 1986

Nos. 85-999 and 85-1129

UNITED STATES OF AMERICA,

i Petitioner,

PHILLIP PARADISE, et al.,

Respondents.

PAUL E. JOHNSON,

. Petitioner,

TRANSPORTATION AGENCY, SANTA CLARA

CouNTY, CALIFORNIA, et al.,

Respondents.

On Writs of Certiorari to the United States Courts

‘of Appeals for the Ninth and Eleventh Circuits

BRIEF OF CITY OF DETROIT, THE DISTRICT OF

COLUMBIA AND THE CITY OF LOS ANGELES AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

CONSENT OF THE PARTIES

Consent to the filing of this Brief is excused by Rule

36.4 of the Rules of this Court.

INTEREST OF AMICI

The City of Detroit has suffered adverse consequences

because of prior discriminatory practices of its public

safety agencies, particularly its Department of Police,

2

and a failure to correct the effects of this discrimination.

For the past twelve years Detroit has implemented af-

firmative action plans which have gone far to eradicate

the effects of past discrimination against minorities and

to cure the crippling effects of that discrimination upon

its public safety agencies.’

Detroit’s affirmative action efforts have been focused

on promotions. The district court in Baker v. City of

Detroit, 483 F.Supp. 930 (E.D. Mich. 1979), found, after

a lengthy trial, that Detroit’s steps to increase black rep-

resentation at all levels of the Police Department had

played a vital role in reducing citizen distrust of the

police, developing community cooperation with the De-

partment, improving the Department’s ability to funétion,

and reducing crime. Baker, supra, 483 F.Supp. at 997-

1000. Detroit has pursued these programs unilaterally

and voluntarily. However, for Detroit and many other

public employers, the authority of the judiciary to decree

race-conscious measures in the event unlawful discrimina-

tion were established through litigation has provided a

vital catalyst for voluntary remedial action.

The District of Columbia has similarly suffered the

consequences of prior discriminatory practices by its pub-

lic safety agencies. Presently pending is a challenge to

voluntary race-conscious measures governing hiring in its

Fire Department which were sustained by the district

1 Detroit’s race-conscious program governing promotions in its

Police Department has thus far withstood two separate challenges

brought on behalf of white police officers under the Equal Protec-

tion clause and federal civil rights laws. Detroit Police Officers

Association v. Young, 608 F.2d 671 (6th Cir. 1979), cert. denied,

452 U.S. 938 (1981), on remand, 36 FEP Cases 1019 (E.D. Mich.

1984), appeal pending (6th Cir. No. 85-1120) (sustaining race-

conscious promotions to the rank of sergeant); Baker v. City of

Detroit, 483 F.Supp. 930 (E.D. Mich. 1979), aff'd sub nom. Bratton

v. City of Detroit, 704 F.2d 878 (6th Cir. 1983), modified, 712 F.2d

222 (6th Cir. 1983), cert. denied, U.S. ——, 104 S.Ct. 703

(1984) (sustaining race-conscious promotions to the rank of lieu-

tenant).

3

court as appropriately “designed to break down an old

pattern of racial segregation and hierarchy.” Hammon v.

Barry, 606 F.Supp. 1082, 1090 (D.D.C. 1985), appeals

pending, Nos. 85-5669/5670/5671 (D.C. Cir.). Also

pending is a challenge to race-conscious promotions under-

taken by the District to undo the consequences of past

racial segregation and exclusion of blacks at the highest

levels of the Department. Dougherty v. Barry, 607 F.

Supp. 1271 (D.D.C. 1985), appeals pending (D.C. Cir.

Nos. 85-5715/5716). .

The City of Los Angeles has addressed from a dif-

ferent perspective the historical underrepresentation of

racial minorities and women in its public safety agencies.

Without admitting any liability, the City of Los Angeles

joined the United States Justice Department and a cer-

tified class of women police applicants in recommending

entry of three consent decrees establishing goals and time-

tables for the hiring of racial minorities in the Los An-

geles City Fire Department (1974) and for the hiring of

racial minorities and women in the Los Angeles Police

Department (1980).

Faced with strong statistical showings of underrepre-

sentation in both departments, «and a Court of Appeals

ruling that police height and physical ability requirements

produced disparate impact against women applicants

without business necessity, Blake v. City of Los Angeles,

595 F.2d 1867, 1875-76 (9th Cir. 1979), cert. denied, 446

U.S. 928 (1980), the City elected to resolve this complex

litigation. Also without admitting past discrimination,

Los Angeles has unilaterally employed sex-conscious hir-

ing measures to correct historical underrepresentation of

women in the Fire Department and has otherwise pur-

sued affirmative action in various municipal employment

contexts.

The Los Angeles consent decrees were based largely

upon the affirmative action goals and timetables con-

tained within them. If the use of these goals and time-

tables cannot lawfully occur, costly litigation will re-

4

open, a decade of growth in racial understanding in the

two departments will be threatened, and the establishment

of sworn services representative of the communities they

serve will be delayed.

SUMMARY OF ARGUMENT

Numerous studies by prestigious, national commissions

have recognized the crippling effects of unlawful discrim-

ination upon state and local governments, particularly on

the operations of police and other public safety agencies.

In extending Title VII in 1972 to cover state and local

governments, Congress took note of the findings of such

studies. A major legislative objective was to free govern-

mental functions of the crippling effects of discrimination

in such vital areas as public safety, education, and the

administration of justice.

Last Term, the United States pressed a per se chal-

lenge to race-conscious affirmative action in any aspect of

employment whether public or private and whether im-

posed by a Court or voluntarily initiated. The United

States’ per se challenge was decisively rejected. The

United States now presses another, albeit narrower, per

se challenge to affirmative action. It contends that, re-

gardless of the inefficacy of other measures, affirmative,

race-conscious measures are impermissible whenever such

measures occur in the context of promotions. It is often

-the case that the crippling effects of past discrimination

are most severely felt in the supervisory ranks of munici-

pal employers. Further, it is often the case that use of

race-conscious measures is most necessary, and urgently

so, in the context of promotions to such positions. Ac-

ceptance of the United States’ position would strip the

federal courts and also public employers of an essential

tool for overcoming patterns of racial exclusion.

Neither Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, nor the Fourteenth Amendment of the

United States Constitution requires such a result.

5

ARGUMENT

I. EXPERIENCE SHOWS THAT MINORITY PARTIC-

IPATION AT ALL LEVELS, ESPECIALLY SUPER-

VISORY LEVELS, IS VITAL TO EFFECTIVE PER-

FORMANCE BY PUBLIC SAFETY AGENCIES.

A. Crippling Effects of the Exclusion of Blacks From

Positions of Responsible Supervision.

A per se rule that Title VII prohibits race-conscious

remedial measures in the context of promotions would

stifle efforts to end the mistrust and antagonisms that

have developed in our cities between law enforcement

agencies and minority citizens. Mutual alienation, with

crippling effects on law enforcement and other vital pub-

lic functions, has resulted in substantial part from long-

standing policies and practices of exclusion of minorities

from employment in law enforcement agencies. Such

crippling effects are often most severely felt in the

supervisory ranks of public safety agencies where, absent

race-conscious measures, a paucity of minority repre-

sentation may persist for many years after discrimina-

tion has ceased. An end to hiring discrimination and the

undertaking even of vigorous minority hiring efforts will

not by themselves begin to fulfill the urgent need for

more minorities in higher ranks. The experience of the

City of Detroit is particularly instructive in this regard.

Detroit has suffered, and federal court records docu-

ment, see Baker, supra, 483 F.Supp. at 996-97, racially-

based police-community tensions caused in substantial part

by years of neglect in the recruitment, hiring and advance-

ment of black public safety officers. Major riots in 1943

and 1967, as well as several other less noted civil dis-

turbances before and after 1967, were just some of the

many manifestations of the breakdown of police com-

munity relations. Prior to 1974, six to eight Detroit

police officers were killed in the line of duty each year.

Moreover, the widespread belief in Detroit’s black com-

munity that the police lacked interest in investigating

black-on-black crime—to a large extent, a function of the

absence of blacks at supervisory and policy levels of the

Department—resulted in a loss of essential citizen coop-

eration in the police department’s crime fighting efforts.

Id. As described by the District Court in Baker:

[T]he Police Department was regarded as an ‘oc-

cupation army’ in the black community and was

treated as such .. . . Officers were afraid to venture

into the [black] community for fear of being har-

assed or worse.

The primary cause was discriminatory practices.

Racial criteria entered into the everyday judgments

of police officers regarding who they stopped, searched

or detained and how they did it. Racial slurs were

common. Police brutality against black citizens was

less common but still severe. |

Chief Hart testified that ‘[i]t’s a matter of public

record that members of the black community. have

been beaten up by police unjustifiably and without

cause; it’s a matter of record.’

The black community’s response to Department prac-

tices was deep hatred and alienation. Not only did

the community hate the police, it had no confidence

in the police’s interest in investigating or solving

black on black crime. This lack of confidence was

justifiable. The result was that the police got no

cooperation from the black community in solving

crime.

This is significant because citizen cooperation is

essential to solve crime. Lack of support in the black

community was devastating to the Department’s

efforts to police the City. This was the view of

Police €hief Hart, and former Chiefs Tannian and

Murphy. So substantial was the community’s aliena-

7

tion that at times there was active interference with

officers performing their duty.

* * *

The police themselves—and ultimately the citizens

of Detroit—were the real victims of discriminatory

practices.

Id.

The persistence of police practices which poisoned rela-

tionships with the black community was attributable less

to the underepresentation of blacks at the officer rank,

substantial though it was, than to the virtual absence of

blacks in positions with the authority to curb such prac-

tices. Until substantial numbers of black personnel ap-

peared in supervisory and command positions, black resi-

dents of Detroit remained unpersuaded that the Depart-

ment had stopped regarding them as “second class citizens”

and black officers continued to feel they were regarded as

“second class employees”.

The willingness of Detroit to recognize and act on the

destructive consequences of failure to correct the extreme

underutilization of black officers, particularly at higher

levels of the Department, came painfully. The riots in

1967 jolted the City of Detroit into a realization that

something would have to be done to correct these imbal-

ances. See id. at 946. Between 1967 and 1973 some

efforts were not successful. Jd. at 947-52. In the interim

the City’s public safety agencies continued to be hampered

by effects of their discriminatory legacy. Id. at 996-99.

B. Detroit’s Race-Conscious Efforts Beginning in 1974.

Finally, in 1974, the City adopted a program of af-

firmative action employment measures. Jd. at 963-64.

The Department’s need for more blacks at the entry-level

rank of Officer was satisfied, without a race-conscious

goal and implementing ratio, by: (1) eliminating prac-

tices with an adverse impact on black applicants for hire;

8

(2) introducing a rule requiring residency in Detroit as

a condition for making application; and (3) minority-

focused recruiting.? For promotions, different steps were

needed. Candidates for promotion to sergeant and lieu-

tenant came from the existing ranks of officers and

sergeants which would for many years—regardless of the

afficacy of minority hiring efforts—continue to reflect the

effects of longstanding and persistent discrimination in

hiring to, and promotion from, the entry rank of officer.

Meanwhile, the Department faced an urgent need for

more black personnel as sergeants and lieutenants. A

orogram of race-conscious promotions was adopted by the

Jity’s Board of Police Commissioners consistent with the

Detroit City Charter and after public hearings at which

the Chief of Police and other concerned persons presented

views both for and against such a program. Baker,

supra, at 964.

Under the program adopted, the Department departs

‘rom making promotions in strict rank order from the

ligibility lists, and promotes instead at an approximate

2As of June 1974 when Detroit commenced those efforts, the

Jepartment was 17.2% black overall but only 5.15% of the ser-

reants and 4.78% of the lieutenants were black. Jd. at 963. At

hat time, the population of Detroit was approximately 59% black.

As a result of minority hiring efforts, the Department at the

nd of 1978 had attained black representation overall of 34.6%

ind at the officer rank, 39.1%.

In 1979 and 1980, a fiscal crisis necessitated layoffs of 1,100

fficers. Through application of inverse seniority, the layoffs re-

luced black representation to 26% overall and 28% at the officer

‘ank. NAACP v. Detroit Police Officers Ass’n, 591 F.Supp. 1194,

197 (E.D. Mich. 1984), appeals pending, Nos. 84-1836, 85-1026,

35-1027, and 85-1041 (6th Cir.). The bulk of those officers remained

m layoff until called back in 1984 and 1985 as a result of the

District Court’s July 25, 1984 Order, 591 F.Supp. at 1220-1221

is revised November 7, 1984, 36 FEP Cases 434, 439 (E.D. Mich.

1984). The recall of the laid off officers and extensive additional

iiring made possible by improved economic conditions have brought

lack representation at the officer rank to the present level of 48%.

9

50-50 black-white ratio. Operation of the Detroit plan

is not rigid but rather depends upon the availability of

qualified black applicants and consistent review by the

Chief of Police and the Board of Police Commissioners.

In order to be eligible for promotion, black officers have

had to demonstrate their qualifications by passing the

regular promotional examination. After a thorough re-

view of the evidence, the District Court in Baker found

that black officers promoted under the affirmative action

plan were “substantially equally qualified” as the white

officers who were promoted in rank order. Baker, supra,

at 970-79. The Sixth Circuit recognized that “only well-

qualified blacks were promoted.” Bratton, supra, 704

F.2d at 892 (Emphasis in original). Furthermore, in

public meetings the Board of Police Commissioners has

regularly reviewed the affirmative action promotions pro-

posed by the Chief of Police, Baker, supra, at 924-27.

Service ratings of Detroit’s police sergeants and lieu-

tenants indicate that those promoted pursuant to the plan

have performed as well as those promoted in rank order.

In 1979, at the direction of the District Court to estab-

lish a “terminating period”, Baker, supra, at 1003, the

Board of Police Commissioners determined that the pro-

gram of race-conscious promotions would continue until

black representation at the sergeant and lieutenant ranks

reached 50%. See Baker v. City of Detroit, 504 F.Supp.

841, 845-846 (E.D. Mich. 1980). Detroit has continued

to apply the promotional ratio since 1974 in pursuit of

the 50% end goal. Black representation has reached

32% at the rank of sergeant and 34% at the rank of

lieutenant.

C. The Fruits of Detroit’s Efforts.

Detroit’s affirmative action efforts have resulted in

dramatic improvements in the ability of the Detroit

Police Department to deliver effective police service. Per-

haps the most stark evidence of the effectiveness of

10

Detroit’s affirmative action plan was the reduction in

the number of officers killed in the line of duty. Prior

to 1974, six to eight police officers were killed each

_ year; from 1974 until 1982, no officers lost their lives

in the line of duty.* See id. at 1000. In Baker, the

district court detailed this and other improvements and

concluded :

There is clear evidence in the record that before

1974 there existed enormous tension between the De-

partment and the black community. There is clear

evidence in the record that after the institution of

the affirmative action program, police-community re-

lations improved substantially, crime went down,

complaints against the Department went down, and

no police officers were killed in the line of duty.

High ranking police officials attributed this change

to the affirmative action program and its general

aim of having the Department—at all levels—refiect

the City’s population.

Id.

Detroit’s experience specifically indicates that visible

representation of minorities at all levels of the police

department, not merely at the patrol levei, is of critical

importance in breaking the pattern of hostility and

alienation that results from prior exclusion of minorities.

As stated by the district court:

The testimony at trial demonstrates that it is im-

portant to have blacks at all levels. The importance

of black lieutenants in reducing discriminatory prac-

tices cannot be overstated. It is very difficult to mis-

treat blacks if one knows that the commanding officer

is black. Inspector Douglas emphasized that the pres-

ence of a black lieutenant at police raids ensured

that blacks on the scene would not be abused.

3 Although Detroit has since suffered the death of smaller num-

bers of police officers, the police department’s relationship with

the black community continues to improve.

11

Similarly, a black lieutenant affects the perceptions

of the black community. He is a commanding officer

whose very presence confirms that blacks are no

longer the second-class policemen which they used to

be. Chief Hart put it this way:

‘When [citizens] arrive at the precinct stations,

they see some black lieutenants sitting behind

the desk making decisions on their lives and they

feel better about that. They will cooperate with

us. They don’t feel that we are an army of

occupation.’

* * * *

Two other examples were mentioned at trial. In-

spector Mack Douglas commented upon the leader-

ship of black lieutenants in handling crowds and

demonstrators. He testified concerning an incident

where a white officer had gotten into an altercation

with a black woman whom he had stopped for a

traffic offense. A hostile crowd of 40-50 blacks had

gathered and a cry of ‘officer in trouble’ was put

out over the radio. Then-lieutenant Douglas, who is

black, rushed to the potentially-explosive scene. He

was able to calm the crowd, assure them he would

personally look into the incident, and persuade them

to disperse.

Chief Hart testified concerring a barricaded gun-

man situation. When dealing with this crisis situa-

tion, the police have to handle both the gunman and

the crowds which inevitably develop. In the past,

the crowds were often hostile to white officers. With

a black lieutenant in control, the crowds were not a

problem.

Id. at 998-99. In the experience of Detroit, the ability to

make race-conscious employment decisions has been the

critical ingredient in efforts to restore community trust

in Detroit’s law enforcement agencies and to facilitate

Detroit’s ability to protect the lives and property of its

people. See id. at 999.

12

The importance of race-conscious promotions was high-

lighted especially during the period from 1980 through

mid-1985 when large numbers of officers were laid off

and black representation at the officer rank was sharply

reduced. The District Court in NAACP v. DPOA, supra,

described unrebutted testimony by Detroit’s police officials

that “community relations with the police force had

dramatically improved since 1974” “as the result of the

increase in black representation on the police force... .”

591 F.Supp. at 1206. The Court credited testimony that,

notwithstanding the effect of the layoffs, there remained

“a residue of good will in the community resulting from

the increased black representation on the force.” Id.

While observing that this “good will” is “not inexhausti-

ble”, the District Court in NAACP credited its endur-

ance over a period of several years in part to “the pres-

ence of many black command officers, who were unaf-

fected by the layoffs... .” Id. (Emphasis added).

Use of race-conscious measures in promotions has been

the centerpiece of Detroit’s affirmative action efforts.

Consistent with the concerns stated in Weber and in Jus-

tice Powell’s opinion in Wygant v. Jackson Board of

Education, US. , 106 S.Ct. 1842, 1851-1852

(1986), Detroit has refrained from use of race-conscious

measures in layoffs.‘ In Detroit’s experience, the in-

creased presence of black personnel in positions of re-

sponsible supervision has proved to be of critical impor-

tance in carrying forward critical improvements in citi-

zen cooperation during a several-year period when black

representation at the officer level was severely reduced.

4In the NAACP case, the district court determined that Detroit’s

failure to preserve the 1978 level of black representation through

use of race-conscious measures was in violation of the Constitution.

Detroits’ appeal from that determination is pending in the Sixth

Circuit.

13

D. The Experience of Other Cities.

Overwhelming evidence of the experience in many other

cities demonstrates that the crisis experienced by Detroit

is only one example of a nationwide problem. The Sixth

Circuit has collected and summarized the many studies

that make the importance of having racially representa-

tive police forces in our cities judicially noticeable. The

operational need to have a minority presence in public

safety agencies that is representative of the minority

population of the community served

is based on law enforcement experience and a num-

ber of studies conducted at the highest levels. E..,

National Advisory Commission on Criminal Justice

Standards and Goals, Police (1973); National Com-

mission on the Causes and Prevention of Violence,

Final Report: To Establish Justice, To Insure Do-

mestic Tranquility (1969); Report of the National

Advisory Commission on Civil Disorders (1968) ;

President’s Commission on Law Enforcement and

Administration of Justice, Task Force Report: The

Police (1967). As these reports emphasize, the re-

lationship between government and citizens is seldom

more visible, personal and important than in police-

citizen contact. See To Establish Justice, supra at

145; Report on Civil Disorders, supra at 300 (New

York Times edition). It is critical to effective law

enforcement that police receive public cooperation

and support. Report on Civil Disorders, supra at

301; Task Force Report: The Police, supra at 144-

45, 167; Police, supra at 330.

These national commissions recommended the re-

cruitment of additional numbers of minority police

officers as a means of improving community support

and law enforcement effectiveness. In fact, the bene-

fits of Negro officers were recognized as early as

1931 by the ‘Wickersham Commission.’ Report on

the Causes of Crime 242, National Commission on

Law Observance and Enforcement (Vol. I, 1931).

14

In 1967, a presidential commission stated the proposi-

tion offered by the defendants in this case:

In order to gain the general confidence and ac-

ceptance of a community, personnel within a

police department should be representative of

the community as a whole.

Task Force Report: The Police, supra at 167.

_ Detroit Police Officers Ass’n v. Young, 608 F.2d at 695.°

More recently completed studies have reached the same

conclusion. In a report published in October 1981, the

United States Commission on Civil Rights found: “Seri-

ous underutilization of minorities and women in local law

enforcement agencies continues to hamper the ability of

police departments to function effectively in and earn the

respect of predominantly minority neighborhoods, thereby

increasing the probability of tension and violence.” U.S.

Commission on Civil Rights, Who Is Guarding the Guar-

dians: A Report on Police Practices, 5 (1981). Follow-

ing an investigation into the May 1980 racial disturbance

in Miami, Florida, the U.S. Civil Rights Commission ob-

served: “In Dade County, an essentially white system

administers justice to a defendant and victim population

that is largely black. The lack of minorities throughout

the criminal justice system maintains the perception of

a dual system of justice.” U.S. Commission on Civil

Rights, Confronting Racial Isolation In Miami, 290

(1982).

These studies confirm Detroit’s experience that minor-

ity representation at the higher levels of law enforce-

ment also is crucial. A 1967 Report of the President’s

5 Other courts of appeals have agreed with the Sixth Circuit

concerning the operational need for a racially representative police

force. See Talbert v. City of Richmond, 648 F.2d 925, 931 (4th

Cir. 1981), cert. denied, 454 U.S. 1145 (1982) ; Bridgeport Guard-

ians, Inc. v. Members of the Bridgeport Civil Service Comm’n,

482 F.2d 1333, 1341 (2d Cir. 1973), cert. denied, 421 U.S. 991

(1975).

15

Commission on Law Enforcement and Administration of

Justice, entitled Task Force Report: The Police, con-

cluded that: “[i]f minority groups are to feel that they

are not policed entirely by a white police force, they

must see that Negro or other minority officers partici-

pate in policymaking and other crucial decisions.” Id.

at 172. Relying on this and other studies, the Sixth

Circuit concluded that the need for a police department

representative of the community as a whole “extends to

the higher ranks in police departments.” Detroit Police

Officers Ass’n v. Young, 608 F.2d at 695.

The federal government also has recognized the public

safety crisis created by discrimination against minorities

by state and local law enforcement agencies and has called

for affirmative action to remedy this problem. The Law

Enforcement Assistance Administration (LEAA)* has

concluded “that the full and equal participation of women

and minority individuals in employment opportunities in

the criminal justice system is a necessary component to

the Safe Streets Act’s program to reduce crime and de-

linquency in the United States.” 28 C.F.R. § 42.301

(1985). LEAA regulations require that where a “recipi-

ent has previously discriminated against persons on the

ground of race... [or] color .. ., the recipient must

take affirmative action to overcome the effects of prior

discrimination.” 28 C.F.R. § 42.203 (i) (1) (1985).7

The LEAA is the arm of the Department of Justice which

administers federal financial assistance to state and local law

enforcement agencies and which enforces the anti-discrimination

provisions of the Omnibus Crime Control and Safe Streets Act of

1968, as amended, Pub. L. No. 90-351, 82 Stat. 197; Pub. L. No.

91-644, 84 Stat. 1881; 42 U.S.C. § 3789d.

™The regulations also provide that, “[e]ven in the absence of

such prior discrimination, a recipient in administering a program

may take affirmative action to overcome the effects of conditions

which resulted in limiting participation by persons of a particular

race... for] color... .” 28 C.F.R. § 42.203(i) (2) (1985). AI-

though there are statutory provisions stating that the LEAA may

16

This Court in United Steelworkers v. Weber, 443 U.S.

193 (1979), upheld the voluntary use of affirmative, race-

conscious measures under Title VIT as an appropriate

means of removing racial barriers and opening employ-

ment opportunity. Acceptance of Petitioners’ per se chal-

lenge to the decreeing of such measures would not only

strip the courts of an essential remedial tool but would

eliminate a vital catalyst to the voluntary affirmative

action held salutary in Weber. Such a result would go

far to defeat the purpose of Congress in 1972 of extend-

ing Title VII to state and local governments.

II. THE DESIRE TO CORRECT THE CRIPPLING

EFFECTS OF DISCRIMINATION ON PERFORM-

ANCE OF PUBLIC SAFETY FUNCTIONS WAS A

LEADING CONCERN OF CONGRESS IN EXTEND-

ING TITLE VII COVERAGE TO STATE AND

LOCAL GOVERNMENTS.

In extending Title VII to cover state and local govern-

ments, Congress recognized that governmental ability to

carry out vital functions in the areas of public safety,

education and administration of justice was crippled in

many instances by a legacy of discrimination. Congress

contemplated that: remedies would be devised which would

effectively overcome patterns of racial exclusion and

thereby remove iimpediments to government’s ability to

function. Affirmative remedies “mirror” Congress’ objec-

tive. United Steelworkers v. Weber, 443 U.S. 193, 208

(1979).

not require a recipient to adopt “a percentage ratio, quota system,

or other program to achieve racial balance,” 42 U.S.C. § 83789d(b),

the regulations prornulgated thereunder recognize that “[t]he use

of goals and timetables is not use of a quota prohibited by this sec-

tion.” 28 C.F.R. § 42.203(j) (1985). Notably, the statute in its

original form prohibited remedies intended “to achieve racial bal-

ance or to eliminatie racial imbalance.” 42 U.S.C. § 8766 (1976)

(emphasis added). This last restriction was deleted by Section

815(b) (1) of the Justice System Improvement Act of 1979, Pub. L.

No. 96-147, 93 Stat.. 1167, 1206 (1979).

17

Subsequent to the enactment of Title VII in 1964, wide-

spread community unrest including riots in numerous

cities and other localities provoked a heightened concern

regarding the quality of race relations in this country.

As set forth above, a succession of national commissions

drew attention to the low representation of minority

groups in policing and other public safety functions as a

cause of the disorders.

Congress in 1972 subscribed explicitly to the concerns

expressed in these reports. In extending Title VII cover-

age to state and local governments, Congress looked for

guidance specifically to two such reports by the U.S..

Commission on Civil Rights: (1) For All the People...

By All the People—A Report on Equal Opportunity in

State and Local Government Employment (1969), and

(2) Mexican Americans and the Administration of Jus-

tice in the Southwest (1970). These two Commission re-

ports were quoted in both the Senate and House Com-

mittee reports; referred to in debate by the sponsor of

the legislation; and set forth in full in the Congressional

Record.

Congress took notice of the crippling effects of racial

exclusions from public employment on the ability to gov-

ern. It identified the need to remedy this condition as

one of the central purposes of extending Title VII to

cover state and local governments. The Report of the

Senate Committee on Labor and Public Welfare, citing

the reports of the U.S. Commission on Civil Rights,

stated:

This failure of State and local governmental agen-

cies to accord equal employment opportunities is par-

ticularly distressing in light of the importance these

agencies play in the daily lives of the average citi-

zen. From local law enforcement to social services,

each citizen in a community is in constant contact

with many local agencies. . . . Discrimination by

government therefore serves a doubly destructive

18

purpose. The exclusion of minorities from effective

participation in the bureaucracy not only promotes

ignorance of minority problems in that particular

community, but also creates mistrust, alienation, and

all too often hostility towards the entire process of

government.” §.Rep. No. 92-415, 92d Cong., 1st

Sess. 10 (1971), reprinted in 1972 Leg. Hist. at 419

(emphasis added) .°

The Report of the House of Representatives Committee,

also citing the Civil Rights Commission reports, was to

the same effect: :

The problem of employment discrimination is par-

ticularly acute and has the most deleterious effect in

these governmental activities which are most visible

to the minority communities (notably education, law

enforcement, and the administration of justice) with

the result that the credibility of the government's

claim to represent all the people is negated. H.R.

Rep. No. 92-288, 92d Cong., Ist Sess 17 (1971),

1972 Leg. Hist. at 77 (emphasis added).

Senator Harrison Williams, chairman of the Labor

and Public Welfare Committee and sponsor of 8.2515,

emphasized strongly the Congressional concern for the

ability of units of state and local government to carry

out their assigned responsibilities. He stated that the

Committee had acted out of a belief that their work

was “essential to the viability of State and local govern-

mental units.” 1972 Leg. Hist. at 1116. He stated that

the Senate Committee’s concern with employment dis-

crimination was based, in large part, upon the unfavor-

able impact which it had on “the ability of . . . govern-

mental units to deal equitably in their contacts with those

groups against whom they discriminate in employment.”

Id. As Senator Williams succinctly phrased the matter,

8 References to 1972 Leg. Hist. are to Subcommittee on Labor

of the Senate Committee on Labor and Public Welfare, 92d Cong.,

2d Sess., Legislative History of the Equal Employment Opportunity

Act of 1972, (Comm. Print 1972).

19

“If they are to carry out their jobs with any success

whatever, public confidence in their impartiality is vital.”

Id, (emphasis added).

In the course of Senate debate, Senator Williams re-

ferred to and placed in the Congressional Record, both

Reports of the U.S. Commission on Civil Rights. 1972

Leg. Hist. at 1117, et seg. With respect to race-conscious

remedies, the 1969 Report stated:

[W]henever in public employment discriminatorily

created patterns persist, the Constitution requires

that they be remedied by measures aimed at giving

the work force the shape it presently would have

were it not for such past discrimination. It should

be recognized that such measures are not a ‘pref-

erence’ but rather a restoration of equality; one

can see inequity in such remedies only by being

blind to the past injustices which they cure.

1972 Leg. Hist. at 1120 (emphasis added). The Com-

mission’s 1969 Report called for state and local govern-

ments to adopt programs which will “bring about what-

ever changes in minority utilization are necessary to undo

the effects of past discrimination.” 1972 Leg. Hist. at

1120. “Where patterns of minority utilization are to be

changed, the program should include specific goals, or

estimates, to be achieved within a specified period of

time.” Id. (emphasis added).

Congressional solicitude for assuring the ability of local

governmental units to carry out their essential functions

is in harmony with court decisions such as Baker uphold-

ing Detroit’s use of race-conscious measures in its police

department. It matches precisely the experience of amici

in pursuing race-conscious affirmative measures to in-

crease minority representation in their public safety de

partments. To date, those measures have gone far to-

ward undoing the debilitating effects of discrimination

which influenced Congress *. °xtend Title VII to cover

state and local governments.

20

III. THERE IS NO BARRIER UNDER TITLE VII OR

THE CONSTITUTION AGAINST USE OF RACE-

CONSCIOUS MEASURES IN CONNECTION WITH

PKOMOTIONS.

This Court’s prior decisions involving affirmative action

have produced a considerable degree of consensus. All of

the Justices have determined that if there is a sound

basis for concluding that a public employer has engaged

in prior discrimination then the public employer may

take race-conscious remedial affirmative action. The

United States last Term contended that a governmental

employer may not, in any circumstance, implement a

race-conscious affirmative action plan which provides a

benefit to an individual without first proving that the

individual was a victim of racial discrimination. The

Supreme Court unequivocally rejected that position. Jus-

tice Powell, joined by Chief Justice Burger and Justice

Rehnquist, concluded in Wygant v. Jackson Board of Ed-

ucation, supra, 106 S.Ct. at 1850, “that in order to rem-

edy the effects of prior discrimination, it may be nec-

essary to take race into account. As part of this Na-

tion’s dedication to eradicating racial discrimination,

innocent persons may be called upon to bear some of the

burden of the remedy.” Justice O’Connor summarized:

The Court is in agreement that, whatever the formu-

lation employed, remedying past or present racial

discrimination by a state actor is a sufficiently

weighty state interest to warrant the remedial use

of a carefully constructed affirmative action program.

This remedial purpose need not be accompanied by

contemporaneous findings of actual discrimination to

be accepted as legitimate as long as the public actor

has a firm basis for believing that remedial action is

required.

Wygant, supra, 106 S.Ct. at 1853 (O’Connor, J.)

In the course of his Wygant plurality opinion, Justice

Powell spoke in broad terms regarding use of race

21

conscious measures, respectively, in hiring and in layoff.

Justice Powell observed that “[i]n cases involving valid

hiring goals” the burden on innocent individuals is largely

“diffused among society generally” and that denial of hire

is less “intrusive” than “loss of an existing job.” 106

S.Ct. at 1851. Justice Powell proceeded to focus on the

unique burden on innocent individuals arising from race-

conscious layoffs:

Even a temporary layoff may have adverse financial

as well as psychological effects. A worker may in-

vest many productive years in one job and one city

with the expectation of earning the stability and

security of seniority. . . . Layoffs disrupt these set-

tled expectations in a way that general hiring goals

do not.

While hiring goals impose a diffuse burden, often

foreclosing only one of several opportunities, layoffs

impose the entire burden of achieving racial equality

on particular individuals, often resulting in serious

disruption of their lives. That burden is too intru-

sive. Id. at 1851-1852.

Based on this discussion, the Petitioners present a sim-

plistic contention for a per se rule against race-conscious

measures for promotions: as in the case of layoffs, the

burden of a race-conscious promotion is said to be borne

by the particular individuals who are passed over for

promotion rather than diffused among society generally.

Brief of United States in Paradise, ; Brief of Peti-

tioners in Johnson, 32-42. This argument—lumping pro-

motions together with layoffs in supposed joint contrast

to hiring—is contrary to Weber. Weber itself involved,

not a hiring program whose burden was diffused among

society generally, but an in-plant training program. Se

lection to that program, which carried with it advance-

ment to craft status, was a matter of promotion, not

initial hire. The non-selection of Mr. Weber for that

program defeated his own individual seniority expecta-

tion every bit as much as a race-conscious layoff would

22

defeat the individual seniority expectation of employees

laid off thereby. Nevertheless, the Supreme Court con-

trasted the race-conscious promotion involved in Weber

with a measure causing loss of employment by an inno-

cent individual. It was on this basis that the Court in

Weber held that the plan at issue there did not trammel

the interests of nonminorities and accordingly was not

too intrusive. Criitcal to the Court in Weber was the

fact that the plan did not create an “absolute bar” to

advancement of white employees inasmuch as half ‘of

those trained in the program would be white. Thus, in

Weber itself, the Court’s concern with excessive burden

upon nonminority employees was focused upon (1) re-

moval of white workers from the work force, and (2)

absolute bars to advancement.

It is plain that race-conscious measures in promotions

' do not impose the same sorts of burdens as layoffs. They

do not remove any individual from the work force. Nor

would any properly-drawn promotional measure consti-

tute an “absolute bar’—or even an undue bar—on the

advancement of nonminorities.®

Promotions also present a far different case than lay-

offs from the standpoint of the existence of less intrusive

means. Justice Powell observed

Other, less intrusive means of accomplishing similar

purposes—such as the adoption of hiring goals—are

available. For these reasons, the Board’s selection of

layoffs as the means to accomplish even a valid pur-

pose cannot satisfy the demands of the Equal Pro-

tection Clause.

Wygant, supra, 106 S.Ct. at 1852., In Wygant, the “valid

purpose” was increasing the representation of minorities

® Since the inception of race-conscious promotional measures in

Detroit, several hundred white officers have been promoted to the

ranks of sergeant and lieutenant. Detroit’s program is hardly

a bar on advancement by nonminorities.

23

as teachers in a particular school system; in Justice

Powell’s view, that purpose could be satisfactorily ad-

vanced through race-conscious hiring without provision

for preferential layoffs. Cf. Opinion of Marshail, J.

dissenting, 106 S.Ct. at 1865-1866. The notion of race-

conscious hiring as a “less intrusive means” would obvi-

ously have had no application in a setting such as Weber

or in other cases where increasing minority representa-

tion in positions beyond the entry level is itself the “valid

purpose”. In Weber, the Court recognized the exclusion

of minorities from craft employment. Weber, supra, 443

U.S. at 198, n.1. Given the unavailability of minority

skilled craftsmen in the exterior labor market, merely

setting a goal for hiring minority craftsmen would obvi-

ously have been ineffectual as a means for increasing

minority representation in Kaiser’s craft workforce.

Use of a race-conscious promotional measure by Kaiser

and the United Steelworkers was the least intrusive means

just as it was in Detroit. A hiring goal would have

failed, for many years to come, to satisfy Detroit’s urgent

need for more blacks in positions of responsible super-

vision. As stated by the Sixth Circuit

(T]he use of racial classifications reflects the only

legitimate method for achieving [the] objectives [of

the plan] in light of the urgent need for a remedy

and the practical limitations placed on the effective

use of other means....

Bratton v. City of Detroit, 704 F.2d at 892. See also

Baker, supra, 483 F. Supp. at 994 (“the affirmative ac-

tion program was necessary to ensure the rapid eradica-

tion of past discriminatory effects . . . nothing less than

race-conscious promotions could do this.”) (emphasis

added).

24

CONCLUSION

This Court should decisively reject the contention that

race-conscious measures are prohibited when they involve

promotions either by the Constitution or by Title VII.

Respectfully submitted,

JAMES R. MURPHY DONALD PAILEN

Acting Corporation Counsel Corporation Counsel

CHARLES L. REISCHEL FRANK W. JACKSON

District Bldg., Rm. 305 1010 City-County Building

1350 Pennsylvania Avenue, N.W. Detroit, Michigan 48226-3491

Washington, D.C. 20004 ‘ .

Attorneys for Amicus Curiae DANIEL B. EDELMAN :

District of Columbia YABLONSKI, BOTH & EDELMAN

1140 Connecticut Avenue, N.W.

JAMES K. HAHN #800

City Attorney Washington, D.C. 20036

FREDERICK N. MERKIN (202) 833-9060

Senior Assistant Attorneys for Amicus Curiae

City Attorney City of Detroit

ROBERT CRAMER

Assistant City Attorney * Counsel of Record

1800 City Hall East

200 North Main Street

Los Angeles, CA 90012

Attorneys for Amicus Curiae

City of Los Angeles