Opposition Brief — Stuart v. Roache

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No. 91-1516

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, i991

ANNE G. STUART, ET AL.,

PETITIONERS,

Vv.

FRANCIS M. ROACHE, AS HE IS POLICE

COMMISSIONER OF

THE CITY OF BOSTON, ET AL.,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF OF RESPONDENT

MASSACHUSETTS ASSOCIATION OF MINORITY LAW

ENFORCEMENT

OFFICERS IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Francis H. Fox*

Jonathan M. Albano

Marianne Meacham

BINGHAM, DANA & GOULD

150 Federal Street

Boston, Massachusetts 02110

(617) 951-8000

Alan J. Rom

Lawyers Committee For Civil

Rights Under Law of the

Boston Bar Association

294 Washington Street

Boston, Massachusetts 02108

(617) 482-1145

*Counsel of Record

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QUESTIONS PRESENTED

l. Whether certiorari should be granted to decide

whether a disclaimer of liability contained in a consent decree

precluded the lower courts from relying upon statistical and

anecdotal evidence also contained in the decree in upholding the

decree's affirmative action provisions, which since have expired.

2. Whether certiorari should be granted to decide

whether the lower courts properly upheld a consent decree's

affirmative action provisions, based upon findings that: (a) a

historical racial imbalance between the eligible applicant pool

and the public employer's work force provided a firm basis in

evidence for believing that remedial action was needed; and (b)

the affirmative action provisions, which since have expired, were

narrowly tailored to serve their remedial purpose.

3. Whether as an altemative basis for affirming the

judgment below, the affirmative action provisions formerly

contained in the consent decree and authorized by Title VII

should be scrutinized under a deferential standard which inquires

only whether the objectives of the decree are within the powers

of Congress and whether the limited use of racial criteria to

achieve the decree's goals is permissible.

4. Whether, as an alternative basis for affirming

the judgment below, the Thirteenth Amendment to the United

States Constitution provided independent, constitutional

authority for the consent decree's former use of affirmative

action to remedy manifest racial imbalances in a_ public

employer's workforce and to eliminate the adverse impact of the

public employer's prior promotional practices.

- ili -

The petitioner failed to include in its list of the parties

Respondent-Intervenor Massachusetts Association of Minority

Law Enforcement Officers ("“MAMLEO"). MAMLEO is a

corporation organized under the laws of Massachusetts. It has

no parent companies, subsidiaries or affiliates.

TABLE OF CONTENTS

EEE AT En ee OT oY

| RSET TEE Ra Ae Le SAR ka eee

i i i a

A. Petitioners Seek Certiorari to

Review Their Unique

Interpretation of the Particular

Language of the Consent

Decree's Disclaimer of Liability.............

B. The Court of Appeals Properly

Applied the Principles of this

Court's Decision in Richmond v.

id Sem i aiacceitiahiachesenatintiavcetnmnninn

al Altemative Grounds Exist on Which

the Court of Appeals’ Judgement

Upholding the Consent Decree Can

OD FD caticiindimthtiahesndaaicinsnibniinincennins

a The Consent Decree is a Valid

Exercise of Power Granted

Pursuant to Title VII and

Section 5 of the Fourteenth

y I Race-Conscious Remedies Are

Valid Under the Thirteenth

Pi arceitanenineentninisatnitninss

i ra

iii

vii

-V-

TABLE OF AUTHORITIES

CASES

Castro v. Beecher, 459 F.2d 725 (Ist Cir. 1972 .o.cccccccecsccceees 6, 21

Firefighters v. Cleveland. 478 U.S. 501 (1986)........0..c0ccc0000- 4,18

Firefighters v. Stotts, 467 U.S. 561 (1984) ......cceccceccseeeseees 8

Fullilove v. Klutznick, 448 U.S. 483 (1980) ........cccccccceeees 17, 19

Graver Mfg. Co. v. Linde Co,. 336 U.S. 271 (1949) ....00...... 2

Hazelwood School District v. United States, 443 U.S. 299

[UNG FP siatinccarnastamaitaeammniaina aiaaianiasaammambedon 11, 18

Johnson v. Transportation Agency, 480 U.S. 616 ................. 4,11, 15

Jones v. Alfred Mayer, Co,, 392 U.S. 409 (1968 000.0... 20

Massachusetts Association of Afro-American Police v.

The Boston Police Department. 780 F.2d 5 (ist

Cir. 1985), cern. denied, Burke v. Massachusetts

Association of Afro-American Police, 478 U.S.

FC Cee vscstnictinvantintizmiaaiersnaciededatenaaniole wats es

Massachusetts Mutual Life Ins. Co. v. Ludwig, 426

OD, SFP Cli ei ccevininsiensniknnshtdmakndacibaieantaenineea 17

Richmond v. LA, Croson Co., 488 U.S. 469 (1989) .0000...... 9, 10, 11, 13, 16, 17, 18

Ross v. Moffitt, 417 U.S. 600 (1974) .0......ccccssssssereeeeeeee 9

Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986)............ 18

Stuart v. Roache, 951 F. 2d 466 (Ist Cir. 1991)... 4&7, 12.35

The Civil Rights Cases, 109, U.S. 3 (1883)... 20, 21

United States v. Amour, 402 U.S. 673 (1981) ......ececceeseeeee. 4

United States v. Johnson, 268 U.S. 220 (1925)... 2

- Vi -

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

CTO ssosnssuccisanhenithccabnieesniateted eae i 3, 15, 18

Wards Cove Packing Co. v. San Antonio, 490 U.S.

Ly Rn IN Re 10

Williams v. City of New Orleans. 729 F.2d 1554 (Sth Cir.

| CASE AMOI C1 Ait eetloen 19, 21

Wygant v. Jackson Board of Education, 470 U.S. 267.......... 3, 10, 11, 13, 15

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, Thirteenth Amendment.............. 19, 20, 21, 22

United States Consttution, Founeenth Amendment ............. 17, 18, 19

MISCELLANEOUS

L. Tribe, American Constitutional Law, (1978) .........0.0000000 21

- Vil -

CONSTITUTIONAL PROVISIONS

In addition to the constitutional provisions listed in the

petition, this case involves the Thirteenth Amendment to the

United States Constitution, which provides:

Section 1. Neither slavery nor involuntary

servitude, except as punishment for a crime

whereof the party shall have been duly

convicted, shall exist within the United States,

or any place subject to their jurisdiction.

Section 2. Congress shall have the power to

enforce this article by appropriate legislation.

STATEMENT OF THE CASE

MAMLEO incorporates by reference the statement of

facts contained in the decision of the First Circuit of Appeals,

reported at Stuart v. Roache, 951 F.2d 446 (ist Cir. 1991) and

reprinted at pages | - 47 of the Appendix to the Petition.

Since the Court of Appeals decision was rendered, 16

additional promotions of black sergeants have been made by the

respondent Boston Police Department. As a result, the

affirmative action provisions of the decree have expired. Absent

any further order of the District Court, therefore, the decree no

longer provides for race conscious relief.

A. Petitioners Seek Certiorari to Review Their

Unique Interpretation of the Particular Language

of the Consent Decree's Disclaimer of Liability, —

Reduced to essentials, petitioners seek review of what

they contend is an erroneous interpretation of the particular

language contained in the disclaimer of liability found in the

consent decree at issue. No important legal questions of general

applicability are raised. No conflict between decisions of other

Circuit Courts of Appeals is implicated. No decision of this

Court is contrary to the First Circuit's construction of the

language employed in the disclaimer. Because the petition

centers upon an analysis of the particular facts involved and

upon the construction of the specific language of the decree,

certiorari is not warranted. See generally United States v.

Johnson, 268 U.S. 220, 227 (1925) ("We do not grant a

certiorari to review evidence and discuss specific facts.”).

Graver Mfg, Co, v. Linde Co,, 336 U.S. 271, 275 (1949) ("a

court of law, such as this Court is, rather than a court for

correction of errors in fact finding, cannot undertake to review

concurrent findings of fact by two courts below in the absence of

a very obvious and exceptional show of error.").

In addition to its narrow and isolated focus, petitioners’

argument based upon the disclaimer of liability contained in the

decree is, on its merits, fatally flawed. The consent decree in this

case, as is typical, contained a disclaimer of liability.

Petitioners Appendix ("App.") at 77-78. The salutory purpose

of such disclaimers is well known. "The imposition of a

requirement that public employers make findings that they have

engaged in illegal discrimination before they engage in

affirmative action programs would severely undermine public

employers’ incentives to meet voluntarily their civil nghts

obligations." Wygant v. Jackson Board of Education, 470 U.S.

267, 290 (1986) (O'Connor, J., concurring). See also United

Steelworkers of America v. Weber, 443 U.S. 193, 209 (1979);

| id. at 210 (Blackmun, J., concurring) (upholding voluntary

affirmative action plan under Title VII despite employer's denial

of wrongdoing); Firefighters v. Cleveland, 478 U.S. 501, 523-24

n.13 (1986) ("A consent decree has several other advantages as

a means of settling litigation. It is easier to obtain enforcement

of a consent decree because it will be unnecessary to prove many

facts that would otherwise have to be shown in order to establish

the validity of an ordinary contract."') (citations omitted); id, at

515 ("Congress intended voluntary compliance to be the

preferred means of achieving the objectives of Title VII.");

Johnson v. Transportation Agency, 480 U.S. 616, 652 (1987)

(O'Connor, J., concurring) (Thus, I concluded in Wygant that a

contemporaneous finding of discrimination should hot be

required because it would discourage voluntary efforts to remedy

apparent discrimination. A requirement that an employer

actuaily prove that it had discriminated in the past would also

unduly discourage voluntary efforts to remedy apparent

discrimination."); United States v. Ammour, 402 U.S. 673,

681-82 (1981) ("In a consent decree the parties waive their night

to litigate the issues involved in the case and thus save

themselves the time, expense, and inevitable work of

litigation.").

Thus, the disclaimer permitted the defendants to settle

the case and undertake voluntary efforts to remedy the effects of

their prior conduct without exposing themselves to

indeterminable liability to third parties. That is not to Say,

however, that the disclaimer somehow invalidated all of the

remaining, carefully negotiated terms of the decree that provided

the basis for the settlement itself. Nor, for that matter, did the

disclaimer rebut the allegations of the MAAAP plaintiffs

verified complaint or dissolve the admissions to particular facts

established by the MAAAP defendants’ answers (admissions

wholly ignored by the petitioners’ citation to the affirmative

defenses alleged in the MAAAP defendants’ answers. Petition at

13 & n.4).

In that regard, as the Court of Appeals found, the

consent decree "recites figures that would appear to make out a

‘prima facie’ case of unlawful discrimination in the promotion of

black officers by the Boston Police Department.” Stuart, 951

F.2d at 450. Petitioners made no effort to rebut these statistics,

despite their opportunity to do so. 951 F.2d at 453.

As the Court of Appeals noted, the decree also refers to

a previously litigated case in which the same public employer

was found to have discriminated against black applicants in its

entry level hiring practices, a finding that has an obvious and

direct effect on the promotional ranks at issue in this case. Id,

See also Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972). The

petitioners’ contention that the Court of Appeals went beyond

the four comers of the decree to rely on the Castro case therefore

is erroneous, as is their claim that the entry level discrimination

found in Castro is unrelated to the discrimination in the

promotional ranks addressed by the decree. Similarly,

petitioners ignore that the MAAAP plaintiffs’ verified complaint

demonstrated the discriminatory effects of the defendants’ pnor

promotional tests on black officers who in fact took those

exams. Stuart, 951 F.2d at 451.

Rather than attempting to rebut the facts and inferences

naturally drawn from the decree and the MAAAP pleadings, the

petitioners chose to rest their evidentiary case on the tortured

proposition that the disclaimer of liability rendered the factual

data contained in the decree meaningless surplusage and, further,

forever precluded judicial inquiry into whether the decree's

affirmative action provisions had a sufficient evidentiary basis.

Apart from twisting the purpose of the disclaimer beyond

recognition, the short answer to petitioners’ argument is that, in

the words of the Court of Appeals, "that is not what the

disclaimer says." 951 F.2d at 453.

The disclaimer simply precludes the decree’s use

an "admission" of liability, or as an "admission"

of the facts and violations mentioned in the

complaint... It does not say that it applies to

facts agreed to in the decree itself. Nor does it

say that the Department may not subsequently

admit to the same facts for other purposes

(which they have done in the case before us).

951 F.2d at 453 (emphasis in original).

At bottom, petitioners argue that the Court of Appeals

somehow modified the decree by considering the facts recited in

the decree as support for the relief entered therein. It is a

perverse rule of construction, however, that postulates that

enforcing explicit language found in a written instrument

constitutes a modification of its terms. Firefighters v. Stotts, 467

U.S. 561 (1984), cited by petitioners, offers no support for such

a position. Indeed, to the extent that Stotts requires the scope of

4 consent decree to be discemed within its four comers, id, at

$74, the decision squarely supports the Court of Appeals’

construction of the explicit language of the decree.

In sum, the petitioners’ reliance upon the disclaimer in

the decree renders the issue raised herein exceedingly narrow

and of little, if any, significance to other litigants. For that

reason, and because the construction given to the disclaimer by

the District Court and the Court of Appeals clearly is correct,

certiorari should be denied.

B. The Court of Appeals Properly Applied the

Principles of this Court's Decision in Richmond

vy. J.A. Croson Co,

The Court of Appeals properly applied the principles set

forth in this Court's decision in Richmond v. LA, Croson Co.,

488 U.S. 469 (1989) and found that the decree's affirmative

action provisions survived strict scrutiny.

An examination of the petition herein reveals that

petitioners’ true complaint is not that the Court of Appeals failed

to apply the principles established in Croson but that, in their

view, an erroneous decision was reached. A perceived error in

the judgment reached below, however, is not sufficient by itself

to warrant certiorari review. Ross v. Moffitt, 417 U.S. 600,

- 10-

616-17 (1974). Moreover, the errors perceived by petitioners in

the outcome below reflect their own misunderstanding of Croson

and other decisions of this Court, and therefore do not warrant

certiorari review.

Petitioners mistakenly assert that statistical evidence of a

racial disparity in an employer's work force, even when properly

marshalled, is insufficient to state a prime facie case of

discrimination. Petition at 20. The Court recently, and

repeatedly, has held to the contrary. See Wards Cove Packing

Co, v. San Antonio, 490 U.S. 642, 650 (1989) ("statistical proof

can alone make out a prima facie case"); Croson, 448 US. at

§(0)1 ("There is no doubt that '[wJhere gross statistical disparities

can be shown, they alone in a proper case may constitute prima

facie proof of a pattem or practice of discrimination’ under Title

VII.") (emphasis added) (citation omitted); Wygant, 476 US. at

292 (O'Connor, J., concurring) ("For example, demonstrable

evidence of a disparity between the percentage of qualified

blacks on a school's teaching staff and the percentage of

qualified minorities in the relevant labor pool sufficient to

support a prima facie Title VII pattem or practice claim by

minority teachers would lend a compelling basis for a competent

authority such as the school board to conclude that

implementation of a voluntary affirmative action plan is

appropriate to remedy apparent pror employment

discrimination.” See also Johnson, 480 U.S. 631-37; Hazelwood

School District v. United States, 433 U.S. 299, 307-09 (1977).

Nor, contrary to the views advanced by the petitioners,

is it necessary for a court to make findings of discrimination in

order to justify an affirmative action plan. Petition at 21.

Croson, 448 U.S. at 500 (test is whether a "strong basis in

evidence’’ exists for conclusion that remedial action is

necessary) (citations omitted ); Wygant, 476 U.S. at 289

(O'Connor, J., concurring) ("[{I] agree with the plurality that a

contemporaneous or antecedent finding of past discrimination by

a court or other competent body is not a constitutional

prerequisite to a public employers voluntary agreement to an

cae

affirmative action plan."). The Court of Appeal's conclusion that

findings of discrimination were not required was consistent with

decisions of this Court and with a prior Court of Appeals

decision involving a similar challenge to the consent decree at

issue here and in which certiorari also was denied. See

Massachusetts Association of Afro-American Police v. The

Boston Police Department, 780 F.2d 5 (Ist Cir. 1985), cert

denied, Burke v. Massachusetts Association of Afro-Amencan

Police, 478 U.S. 1020 (1986). |

Petitioners also mischaracterize the Court of Appeals’

decision as being based merely upon a finding that the statistical

evidence "cas[ts}] doubt on the faimess of the promotion

process." Petition at 20, 22. To the contrary, the Court of

Appeals found that the evidence -- unrebutted by petitioners --

seemed to make out a prima facie disparate impact case. Stuart,

951 F.2d at 450. In addition to such statistical evidence, the

Court found a firm basis for remedial relief in the discriminatory

results of prior promotional tests employed by the Police

Department and the prior findings of entry level discrimination

by the Department. 951 F.2d at 450-52.

Moreover, the Court of Appeals was careful to ensure

that the consent decree did not suffer from the defects identified

in cases such as Croson and Wygant where the Statistical

evidence did not compare the racial composition of the job

population to that of the relevant qualified applicant pool. 951

F.2d at 450-51. The Court painstakingly reviewed the statistics

to determine that the decree "compares the number of black

sergeants, not with the Boston population in general, but with

those police officers with the minimal qualifications needed to

become sergeants." 951 F.2d at 451.

In sum, the Court of Appeals strictly adhered to the

holding in Croson in finding that a firm basis in evidence existed

for the conclusion that the affirmative action provisions of the

decree were necessary. 951 F.2d at 449-452.

The Court of Appeals also adhered to the teachings of

Croson in concluding that the decree was narrowly tailored to

accomplish its goals. As noted above, after the Court of

Appeals’ decision was rendered and, indeed, after the petition

was filed, the affirmative action provisions of the decree expired

as a result of promotions made by the Boston Police Department

in April of 1992. The decree thus is anything but

"self-perpetuat[ing] and self-modifying” as alleged by the

petitioners. Petition at 23.

Several other features of the decree also justified the

Court of Appeals’ conclusion that it was sufficiently narrowly

tailored. For example, the decree never provided for mandatory

quotas. To the contrary, the Police Department's obligation was

"to make a good faith effort" to reach its goals. The goals were

set in anticipation of having a sufficient number of Black

officers eligible to be promoted as a result of validated tests.

Only those Black officers who passed a validated exam were

eligible for promotion. No Black officer received an absolute

entitlement to promotion under the decree. No white officer

automatically was excluded from promotion as a result of its

terms. App. 95-96. The decree thus did not unsettle any

legitimate, firmly rooted expectation on the part of white

officers. Stuart, 951 F.2d at 454. See generally Johnson, 480

US. at 638.

No officer ever was discharged, demoted, or suffered

any loss of salary or benefits as a result of the decree. Weber,

443 at 208. Compare Wygant, 476 U.S. at 282-83. ("Denial of a

future employment opportunity is not as intrusive as loss of any

existing job.") The goals and timetables were designed to

eliminate a manifest racial imbalance, not to maintain a racially

balanced work force. Weber, 443 U.S. at 208. Johnson, 480

U.S. at 616. The updating of the goals and timetables in 1990 to

reflect the current racial composition of the Department's work

force further prevented the maintenance of any rigid quota

system. Stuart, 951 F.2d at 454-55.

As the Court of Appeals found, the petitioners’ further

claim that the Police Department did not consider alternatives to

affirmative action also is misplaced. The decree described the

-16-

inadequacies of previous efforts to reform the promotional

system, expressly took into account the "need for prompt

elimination of adverse impact or disparate treatment,” and

concluded that affirmative measures to promote more Blacks to

supervisory positions were needed "in order to prevent the

disparity between the percentage of Black supervisors and the

percentage of Blacks eligible for promotion to supervisor from

growing, and in order to reduce that disparity...." App. at 93-96.

In sum, the Court of Appeals properly adhered to

Croson's strict scrutiny standard in reviewing the affirmative

action components of the decree. Moreover, even if certiorari

properly could be granted to correct erroneous conclusions

reached in applying proper standards of review to the facts of a

particular case, there was no error here and certiorari therefore

should be denied.

be Alternative Grounds Exist on which the Court of

Appeals' Judgment Upholding the Consent

Decree Can Be Affirmed.

Although not relied upon by the Court of Appeals, there

exist altemative grounds asserted below by MAMLEO on which

the judgment of the Court of Appeals can be affirmed. See

generally Massachusetts Mutual Life Ins. Co. v. Ludwig, 426

U.S. 479, 481 (1976) (court can find another ground for

affirmance not relied upon by lower court).

l. The Consent Decree Is a Valid Exercise of

Power Granted Pursuant to Title VII and Section

of the Fourteenth Amendment,

Congress possesses broad remedial powers under 5 of

the Fourteenth Amendment to eradicate the effects of prior

discrimination, Fullilove v. Klutznik, 448 U.S. 483 (1980);

Croson, 488 U.S. at 487-89. In Fullilove, for example, this

Court upheld a minority set aside program adopted by Congress

and, in so doing, employed a deferential standard of review

which inquired only whether the objectives of the legislation

were within the power of Congress and whether the limited use

of racial and ethnic criterion was a permissible means to achieve

Congress’ objectives. 448 U.S. at 473. See also Croson, 488

U.S. at 487.

A similarly deferential standard of review should be

applied in this case, where the power of a public employer and

the District Court to implement the Congressional objectives of

Title VII through the entry of a consent decree is at issue. See

generally Sheet Metal Workers v. EEQC, 478 U.S. 421, 428

(1986) ("In order to foster equal employment opportunities,

Congress gave the lower courts broad power under 706(g) to

fashion ‘the most complete relief possible’ to remedy past

discrimination.") (citation omitted). There is no question that

Title VII permits voluntary affirmative action efforts undertaken

without prior findings or admissions of discrimination in order

to eliminate traditionally segregated job categories and delegates

to the courts the power to enter such relief in the form of a

consent decree. Weber, 443 U.S. at 197, 209; Hazelwood, 433

U.S. at 299; Firefighters, 478 U.S. 501. Congressional

-19-

authonzation of such efforts through Title VII arises out of

Congress’ broad remedial powers under 5 of the Fourteenth

Amendment. Just as eradicating the effects of prior

discrimination clearly falls within the powers of Congress,

Fullilove, 448 U.S. at 473, so too, the limited use of racial

cnterion contained in the decree is a permissible means for the

Court to implement the objectives of Congress. Id. Should

certiorari be granted, no more need be shown to uphold the

validity of the consent decree under the Fullilove standard.

2. Race-Conscious Remedies Are Valid Under the

Thineenth Amendment,

"Wholly aside from the fourteenth amendment, the

thirteenth amendment is an affirmative grant of power to

eliminate slavery along with its badges and incidents and to

establish universal civil freedom." Williams v. City of New

Orleans, 729 F.2d 1554, 1557 (Sth Cir. 1984) (Wisdom, J.,

concurring in part, dissenting in part). Thus, when a present

discriminatory effect upon Blacks as a class is linked to a

- 20-

discriminatory practice against Blacks as a race under the slavery

system, the present effect may be eradicated under the auspices

of the Thirteenth Amendment. Id. See generally The Civil

Rights Cases, 109 U.S. 3, 35 (1883) (Harlan, J., dissenting).

In Jones v. Alfred Mayer Co., 392 U.S. 409 (1968), this

Court affirmed the power of Congress, based on the Thirteenth

Amendment, to prohibit all racial discrimination in the Sale and

rental of property. Id. at 437-44. The Court held that "Congress

has the power under the Thirteenth Amendment rationally to

determine what are the badges and incidents of slavery, and the

authority to translate that determination into effective

legislation." Id. at 440. Under the Jones v. Mayer rationale,

current forms of racial discrimination and its effects are badges

of slavery that may be proscribed under the Thirteenth

Amendment if they are historically linked with slavery or

involuntary servitude. In granting Congress the power to Carry

out its mandate, the Thirteenth Amendment thus grants the

_ o

power to eliminate practices that continue to burden Blacks with

badges of inferiority.

Congress is free, within the broad limits of

reason, to recognize whatever nights it wishes,

define the infringement of those rights as a form

of domination and thus an aspect of slavery, and

proscribe such infringement as a violation of the

thirteenth amendment.

L. Tribe, American Constitutional Law, 5-13 at 259 (1978).

Because the Thirteenth Amendment seeks to attain

“universal civil freedom for Blacks as a race,” The Civil Rights

Cases, 109 U.S. at 20, remedial action must address the needs of

Blacks as a race, and not be confined to identifiable victims.

See generally Williams, 729 F.2d at 1580 (Wisdom, J.,

concurring in part, dissenting in part). The promotional goals

established by the consent decree are an attempt to eliminate the

badges and incidents of slavery reflected in the Police

Department's past hiring practices and condemned by the Castro

v. Beecher decision. The Thirteenth Amendment authorized

Congress to delegate to the courts the power to enter such

affirmative action in the form of a consent decree regardless of

whether prior findings or admissions of discrimination are made.

The Thirteenth Amendment therefore provides an altemative

basis to affirm the judgment of the Court of Appeals.

~ $4

CONCLUSION

For each and all of the foregoing reasons, the petition for

a wnit of certiorari should be denied.

Respectfully submitted,

Francis H. Fox

Counsel of Record