Opposition Brief — Vogel v. City of Cincinnati

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No. 91-2001 JUL 17 1992

UOFFioa UF THE CichK |

In The

Supreme Court of the United States

October Term, 1992

¢

RICHARD VOGEL

Petitioner,

vs.

THE CITY OF CINCINNATI

and

SCOTT JOHNSON, CITY MANAGER

and

CIVIL SERVICE COMMISSION OF THE

CITY OF CINCINNATI

and

THE SENTINEL POLICE ASSOCIATION

Respondents.

.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

é

BRIEF OF RESPONDENT

THE SENTINEL POLICE ASSOCIATION

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

¢

ALPHONSE A. GERHARDSTEIN

LAUFMAN, RAUH & GERHARDSTEIN

1409 Enquirer Building

617 Vine Street

Cincinnati, Ohio 45202

(513) 621-9100

COCKLE LAW BRIEF PRINTING CO,, (800) 225.6964

OR'CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Proposed by Petitioner:

1. When no hiring or promotional quota is

authorized by a voluntary consent decree

entered into by a political subdivision, does

the Fourteenth Amendment to the United

States Constitution permit that political sub-

division to create a quota, which imposes a

societal burden on innocent individuals, in

order to meet certain goals for hiring and

promoting blacks and females.

Proposed by Respondent the Sentinel Police Asso-

ciation:

2. Whether a nonparty to a decree has standing

to impose his interpretation of the decree on

the parties.

3. Whether the delay of several months in the

hiring of petitioner because of his race pur-

Suant to a consent decree, is justified by a

compelling state interest to remedy discrimi-

nation under a program that is narrowly

tailored to achieve that remedial purpose.

il

TABLE OF CONTENTS

Page :

QUESTION PRESENTEO i.i2 0535 se eee ee i |

TABLE OF AUTHORITIES... .:0001- ects se eee - iv

OPINIONS BELOW .......3 25222 eee 1

JURISDICTION |. 5 «000550 «ane ee ee eee 1

STATUTES INVOLVED . .isc2365005s eee 1

I. STATEMENT OF THE (Abe 3505s aeee casas 1

A. iIntsoduction...iscccceceeentaee ee 1

B. Statement of Pactiiciicis.cicee een os 2

1. History of the Consent Decree ........ 2

2. Operation Of The Hiring Provisions Of

The DCI .0iccaen conan deer ee eens +

3. Operation Of The Decree With Respect

TO VOQU .i.<.5 saecnd bees eee eee aa 5

C. Decistons ewe ...:55c2cee nee 6

II. REASONS FOR DENYING THE WRIT........ 7

A. Twelve Recent Decisions From This Court

Have Sufficiently Defined The Law On

Affirmative Agim. 054526555 eee es 7

B. Vogel Fails to Raise an Issue Concerning the

Rights of JoD AGOUCAIND so. i655 syns cl ks 9

C. Vogel Fails to Raise an Issue Based Upon

thee FACES . oo is ota cde neuen enter ees ae 10

D. The Writ Should Not be Granted Based

Upon Vogel’s Claim of Standing to Enforce

His Own Interpretation of the Decree..... 12

ili

TABLE OF CONTENTS - Continued

Page

E. The Writ Should Not be Granted Based

Upon Vogel’s Individual Claim of Discrimi-

Sa en ge a ge 13

PIE iy vances ausesessensesesusees ee

iV

TABLE OF AUTHORITIES

Page

CASES

Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723

"2... Ween ID inte pabaetectsn rene tent Sanna Nalpertauln Wass LiotNnags 12

Billish v. City of Chicago, No. 90-1650, No. 90-2182,

1992 U.S. App. Lexis 9262 (7th Cir. May 4, 1992)..... 9

Castaneda v. Partida, 430 U.S. 482 (1977)............. 11

City of Richmond v. J.A. Croson Co., 488 U.S. 469

ic PEP PRP EE ERE ERE EE Oe Perr ry ree pO re 8, 11

Donaghy v. City of Omaha, 933 F.2d 1448 (8th Cir.

A cig fe nee eee ee eee eee 9

Firefighters Local Union No. 1784 v. Stotts, 467 U.S.

| Re ates SOE iy Pe 7

Fullilove v. Klutznick, 448 U.S. 448 (1980) ............. 7

Hazelwood School District v. United States, 433 U.S.

er re i a 050 a a ee es Oa ee 11

Johnson v. Transportation Agency, Santa Clara

Commty, Cal., G00... GIG CIMEE) oi ese a see aswnse 8

Local Number 93, Int'l Assn. of Firefighters v. City of

a | ere 8

Local 28 of the Sheet Metal Workers’ Int'l Ass’n v.

26 we a | ere ree rr err 8

Long v City of Saginaw, 911 F.2d 1192 (6th Cir.

PE RANA sean PER EA SR MOS eae e EER suse oeeed 9

Martin v. Wilks, 490 U.S. 755 (1989) ............... 8, 12

Metro Broadcasting v. Federal Communications Com-

SRN, Sie Si eT CAMO cobs Seen cece enacvandas 8

TABLE OF AUTHORITIES - Continued

Page

Peightal v. Metropolitan Dade County, 940 F.2d 1394

ao) 8o Se.) | Saree ree rey ere ahr eter 9

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

‘bts | etry Fe Fe uk 7

Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986)....15

United States v. City of Cincinnati, 771 F.2d 161 (6th

ee Perrererrr rr rrr re er err co) 5 12

United States of America v. City of Cincinnati, No.

C-1-80-369 (S.D. Oh., August 13, 1981)........... 1, 6

United States v. Paradise, 480 U.S. 149 (1987).......... 8

United States v. Johnston, 268 U.S. 220 (1925)......... 12

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

S93 (RRP P) cok erccdact coy s chee 7

Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.

St er re es ee Ne 6, 7, 0, 11, 14

Vogel v City of Cincinnati, No. C-1-89-683 (S.D. Oh.,

April 36, F508). i053 vexed 5c aeecasesa eee ees 1,6

Wards Cove Packing Co. v. Antonio, 490 U.S. 642

(1989)..... ScsbahsvpanenewetS4eeqsyee ents eRewaNS 11

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ..8, 14

OTHER AUTHORITIES

Civili Ste Act O8. TOGF eee iisncc eae ceca ks eee 6

Estreicher & Sexton, A Managerial Theory of the

Supreme Court’s Responsibilities: An Empirical

Study, 59 N.Y.U. L. Rev. 681 (1984) ............... 13

Fourteenth Amendment to the U.S. Constitution...... i)

vi

TABLE OF AUTHORITIES — Continued

Page

Section 108 of the Civil Rights Act of 1991.......... i2

supreme Court Rule Wi... seins ven seneeaee eee 15

Title VII of the Civil Rights Act of 1965........ i

OPINIONS BELOW

Respondent adopts the statement of the petitioner,

subject to a correction on the citation of the district court

opinion. The correct cite is Vogel v. City of Cincinnati, No.

C-1-89-683 (S.D. Oh. April 16, 1991).

a

JURISDICTION

Respondent adopts the statement of the petitioner.

+

STATUTES INVOLVED

Respondent adopts the statement of the petitioner.

«

I. STATEMENT OF THE CASE

A. Introduction

Richard Vogel, an individual white police officer, was

delayed for several months in his original appointment as

a police recruit. He claims that this short delay was a

violation of his constitutional rights because it was

caused by the operation of the affirmative action provi-

sions of the consent decree in United States v. City of

Cincinnati, No. C-1-80-369 ($.D. Oh., August 13, 1981)

Consent Decree, Petitioner Appendix 31A. This case does

not deserve Supreme Court review. Vogel is wrong when

he suggests that there is a split among the Circuits about

the rights of applicants for public empioyment and

inertia

wrong when he suggests that review is justified by the

determination of the factual findings in this case.

B. Statement of Facts

1. History of the Consent Decree

The City of Cincinnati entered into a consent decree

as a settlement of a Title VII pattern and practice suit

brought by the Department of Justice on behalf of the

United States in 1980. Consent Decree, Petitioner Appen-

dix 31A. The decree was first presented to the court for

approval based upon the agreement of the City of Cincin-

nati and the United States of America. Afterwards, the

Fraternal Order of Police intervened in the case and the

parties pursued further negotiations. A new decree was

presented to and approved by the court effective August

13, 1981, based upon the agreement of all three parties. /d.

Under the decree, the City has practiced affirmative

aciion in hiring and promotions within the Police Divi-

sion. The long term goal of the decree is to:

insure that blacks and women are not disadvan-

taged by the hiring, promotion, assignment and

other employment policies and practices of the

CPD [Cincinnati Police Division] and that any

disadvantage to blacks and women which may

have resulted from past discrimination is

remedied so that equal employment opportunity

is provided to all.

Id. at para. 2, Petitioner Appendix 33A.

The goal of the decree will be deemed to have been

accomplished when, “subject to the availability of quali-

fied applicants,” the proportion “of blacks and women in

all the sworn ranks of the CPD” approximates “the pro-

portion of qualified blacks and women in the labor force

for the City of Cincinnati.” Id. Stipulations were filed

with the decree that established a prima facie case of both

adverse impact and intentional discrimination against

blacks and women. Joint Stipulations filed June 25, 1981

(JSI), Petitioner Appendix 21A-27A; Affidavit of Govern-

ment Expert Vivian B. Toler, Petitioner Appendix

28A-30A; and Joint Stipulations filed July 31, 1981 (JSII)

Respondent Appendix 8A-10A.

For example, 33.7% of the applicants for entry level

police officer positions were black between the years 1972

- and 1979. Only 20% of the appointments, however, were

black. The disparity between the expected rate of black

appointments and the actual hire rate during this time

was 4.7 standard deviations. JSI, para. 16-17, Petitioner

Appendix 23A; Toler Affidavit, para. 7, Petitioner Appen-

dix 29A; JSII, para. 37, Respondent Appendix 8A. More-

over, in 1980, only 9.9% of the sworn officers in the Police

Division were black while the labor force in the City of

Cincinnati was 24% black, JSI, para. 7 and 12, Petitioner

Appendix 23A.

The stipulated facts clearly established disparate

treatment against women based upon their sex:

Prior to September of 1974, the CPD limited the

opportunities of women in the sworn ranks of

the CPD to 10 policewomen positions; required

more education of female than male applicants

for entry level positions with the CPD; did not

provide promotional opportunities for women

beyond the police specialist rank; and assigned

women exclusively to the juvenile division of

the CPD.

JSI, para. 18, Petitioner Appendix 23A.

In his petition, the petitioner concedes that this stipu-

lation amounts to an admission of sex discrimination by

the City. Petition for Writ of Certiorari, p.19. He then

argues that no proof was introduced regarding the pre-

sent effects of such discrimination in 1989. Petitioner was

the party with the burden of proof, so petitioner must

live with his own record.

Statistical proof also demonstrates discrimination

based upon sex. The disparity between the expected

number of female hires from the applicants (which were

22.8% female) and those actually employed from the

1974-75 eligibility list was 3.9 standard deviations. Toler

Affidavit, para. 8, Petitioner Appendix 29A; JSII, para. 37,

Respondent Appendix 8A. Only 3.4% of the sworn police

force was female while the labor force of the City was

42.6% female. JSI, para. 7 and 12, Petitioner Appendix

23A.

2. Operation Of The Hiring Provisions Of The

Decree

The decree establishes an interim goal of hiring 34%

black and 23% women for the Police Division. That goal

was set by matching the percentage of blacks and women

to that present on the 1980 recruit list. Consent Decree,

para. 2A, Petitioner Appendix 34A. The parties have fol-

lowed a practice of granting preferences to otherwise

qualified blacks and women in order to achieve these

interim goals with each recruit class. If there are insuffi-

cient qualified blacks and women, the recruit class pro-

ceeds without achieving the goal for that class. Carol

Callahan deposition, Respondent Appendix 1A.

If preferences were not extended to qualified blacks

and women in the hiring process, all of the candidates

would be selected from a single recruit list on which they

would be ranked in the order of their written test score,

as adjusted for veterans points. City’s response to inter-

rogatory 19, Respondent Appendix 6A; Callahan deposi-

tion, Respondent Appendix 4A. The City conceded that

the validation study done on the selection process for

police recruits “doesn’t include any analysis of this rank-

ing process.” Callahan deposition, Respondent Appendix

4A. Respondent Sentinel Police Association has long con-

tended that the practice of ranking recruits by test score

is not job related and has an adverse impact on blacks

and women. See United States v. City of Cincinnati, 771 F.2d

161 (6th Cir. 1985).

3. Operation Of The Decree With Respect To Vogel

Petitioner Richard Vogel satisfied the requirements of

the six parts of the selection process and was ranked no.

41 on the “majority” police recruit list with a score of 88

for exam 89-01. A score of 60 had to be achieved to pass

the exam. That passing score applied to whites, blacks

and women. Interrogatory Response 15, 16, 17, First Inter-

rogatories to Defendants, Respondent Appendix 5A-65.

The first class formed from the group taking exam 89-01

was sworn in on October 9, 1989 and did not include Mr.

Vogel. Defendant’s Response to Request for Admission

No. 1, Respondent Appendix 7A. The first class did

include several blacks and women who scored lower than

Mr. Vogel on the written exam. As Vogel states in his

petition at page 4, n.1, he did get selected for a subse-

quent recruit class. Thus, as a result of the operation of

the decree, Vogel’s hiring was simply delayed; he was not

denied employment. Vogel v. City of Cincinnati, 959 F.2d

594 (6th Cir. 1992).

C. Decisions Below

Richard Vogel brought this action under the Equal

Protection Clause and 42 U.S.C. § 1981, not under Title

VII. The District Court held that the goals set in the

underlying decree in United States of America v. City of

Cincinnati, No. C-1-80-369 (S.D. Oh., August 13, 1981) had

not been achieved and that its application to delay the

hiring of Vogel was a valid reason to supersede Ohio civil

service law. Summary judgment was denied to Vogel and

granted for the respondents. Vogel v. City of Cincinnati,

No. C-1-89-683 (S.D. Oh., April 16, 1991).

The Sixth Circuit Court of Appeals affirmed. It first

held that the Civil Rights Act of 1991 was not retroactive

to this case which was argued before the effective date of

the act. That issue was not briefed by the parties; was

referenced only casually during argument; and is not

raised by any of the parties with respect to this petition

for certiorari. Therefore, the retroactivity of the 1991 Civil

Rights Act should not be reviewed by this Court in this

case. The Sixth Circuit also held that Vogel lacked stand-

ing to impose his interpretation of the decree on the

parties but had standing to challenge the constitutionality

of the decree as applied to him.

On the merits of the case, the Sixth Circuit reviewed

many of the facts set out above and concluded that the

affirmative action hiring program adopted by the City

through the decree was supported by “a strong basis in

evidence” and that it was narrowly tailored to achieve the

purpose of remedying the “present effects of the City’s

prior discriminatory hiring practices.” Vogel v. City of

Cincinnati, 959 F.2d 594, 601 (6th Cir. 1992). Vogel did not

petition for rehearing en banc but filed his petition for

certiorari in this court.

¢

II. REASONS FOR DENYING THE WRIT

A. Twelve Recent Decisions From This Court Have

Sufficiently Defined The Law On Affirmative

Action

Not including school desegregation cases — this court

has issued 12 major decisions, in the last fourteen years,

which have affected the practice of affirmative action in

employment and related areas: No new caselaw is needed

in this area: See (1} Regents of the Univ. of Cal. v. Bakke, 438

U.S. 265 (1978) (setting standard under Equal Protection

Clause for affirmative action enrollment programs); (2)

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

(affirming training program by private employer against

Title VII reverse discrimination challenge); (3) Fullilove v.

Klutznick, 448 U.S. 448 (1980) (affirming federal statute

authorizing minority set-asides); (4) Firefighters Local

Union No. 1784 v. Stotts, 467 U.S. 561 (1984) (holding,

under Title VII, that affirmative action plan in consent

decree could not be interpreted to give blacks preferences

in layoffs over incumbent whites holding greater

seniority rights); (5) Wygant v. Jackson Bd. of Educ., 476

U.S. 267 (1986) (holding that incumbent whites with

greater seniority could challenge a collective bargaining

agreement under the Equal Protection Clause that

extended layoff preference to blacks); (6) Local Number 93,

Int'l Assn. of Firefighters v. City of Cleveland, 478 U.S. 501

(1986) (rejecting reverse discrimination challenge under

Title VII to decree with race conscious promotion provi-

sions); (7) Local 28 of the Sheet Metal Workers’ Int'l Ass‘n v.

EEOC, 478 U.S. 421 (1986) (rejecting reverse discrimina-

tion challenge by union to 29% membership goal imposed

by court under Title VII); (8) United States v. Paradise, 480

U.S. 149 (1987) (rejecting reverse discrimination challenge

under Equal Protection Clause to race conscious promo-

tion plan imposed as relief for race discrimination); (9)

Johnson v. Transportation Agency, Santa Clara County, Cal.,

480 U.S. 616 (1987) (rejecting Title VII challenge by male -

to voluntary affirmative action plan that permitted gen-

der to be considered as a factor in promotions); (10) City

of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (holding

city minority aside program to be invalid under Equal

Protection Clause); (11) Martin v. Wilks, 490 U.S. 755

(1989) (permitting white nonparties to consent decrees to

challenge race conscious decisions under decrees); (12)

Metro Broadcasting v. Federal Communications Commission,

497 U.S. 547 (1990) (rejecting equal protection challenge

to federal statutes extending preference to minorities

under radio and television licensing statutes).

B. Vogel Fails to Raise an Issue Concerning the Rights

of Job Appiicants

Vogel claims at pp.10-11 of his petition that there is a

split in the Circuits with respect to the rights of applicants

for public employment who are subject to the provisions

of affirmative action plans. He is not correct. He claims

that the decision in Peightal v. Metropolitan Dade County,

940 F.2d 1394 (11th Cir. 1991) is somehow inconsistent on

this point with the decisions of the Eighth, Seventh and

Sixth Circuits in Donaghy v City of Omaha, 933 F.2d 1448

(8th Cir. 1991); Billish v. City of Chicago, No. 90-1650, No.

90-2182, 1992 U.S. App. Lexis 9262 (7th Cir. May 4, 1992);

Long v. City of Saginaw, 911 F.2d 1192 (6th Cir. 1990)

respectively. However, the constitutional test for measur-

ing the affirmative action program in Peightal was no

different than that applied by the other Circuits and quite

consistent with the decisions of this Court set out above.

In fact, Peightal did not focus on the burden on white

applicants. Rather, a divided court debated the adequacy

of the statistical proof in that case. In general, the only

time courts discuss the impact of affirmative action poli-

cies on white applicants is after the court has established

that there is an adequate factual record of discrimination

to permit affirmative action as a remedy. In Peightal, the

affirmative action hiring plan was affirmed under Title

VII but was remanded for further factual development

under the Equal Protection theory. Vogel sued only under

the Fourteenth Amendment. He did not bring his action

under Title VII. Thus, the split Vogel alleges, simply does

not exist.

10

C. Vogel Fails to Raise an Issue Based Upon the Facts

The second reason Vogel cites in support of granting

the writ is that, “[T]he Sixth Circuit employed an

improper methodology to determine whether there exis-

ted statistical proof of discrimination to justify race-based

relief.” Petition for Writ of Certiorari, p.11. This fact

oriented issue does not merit review.

The Sixth Circuit carefully reviewed the relevant

cases from this Court in evaluating the statistical dis-

parities relied upon the by the City to justify affirmative

action:

Here the proper statistical comparison is

between the race and gender of the Cincinnati

Police Division and the race and gender of the

relevant qualified labor market. Croson, supra,

488 U.S. at 501-02; Wygant, supra, 476 U.S. at 275;

Hazelwood, supra, 433 U.S. at 308.

Vogel 959 F.2d at 600.

Then the Sixth Circuit applied the law to this case.

With respect to women, the court noted the direct evi-

dence as well as the statistical evidence of discrimination:

In the instant case, the City’s affirmative action

policy with respect to women is clearly justified.

In the past the City had limited women to ten

positions with the CPD; required more educa-

tion of female than male applicants for entry

level positions with the CPD; prevented women

from achieving a rank above that of police spe-

cialists; and assigned women exclusively to the

juvenile division of the CPD. As of July 1980,

only 3.4% of the sworn force of the Cincinnati

Police Department were women while women

11

constituted 22.8% of the applicants for the force

during the period 1974 to February 1980.

Vogel, 959 F.2d at 600. The Sixth Circuit also carefully

reviewed the race discrimination facts noting in particu-

lar the affidavit of the statistical expert, Vivian Toler,

which was filed with the joint stipulations. The Court

specifically held that Toler analyzed the statistics accord-

ing to the “binomial approximation model adopted by the

Supreme Court in Castaneda v. Partida, 430 U.S. 482,

496-97 n.17 (1977) and Hazelwood [School District v. United

States, 433 U.S. 299, 307-08 (1977)]”. Vogel, 959 F.2d at 600.

Note that this Court recently affirmed the Hazelwood sta-

tistical test in Croson, 488 U.S. at 501.

Petitioner argues that labor force data, such as that

which was utilized in Hazelwood, may not always provide

a precise mirror of those in the community who are

qualified for the job. However, this Court has recognized

this problem and approved of supplemental studies that

focus on applicant flow. See Wards Cove Packing Co. v.

Antonio, 490 U.S. 642, 650 (1989). Therefore, to the extent

that the Toler affidavit relied upon applicant flow, it was

completely consistent with the rulings of this Court.

The Sixth Circuit criticized Vogel for his attack on the

statistical analysis: “Vogel points to no statistics that

would cast doubt on the validity of the statistics relied

upon by the City.” Vogel, 959 F.2d at 600. Vogel seeks to

continue his attack in this court, but he was the plaintiff

and he previously failed to meet the burden of proof.

12

Vogel offered no proof to challenge the extensive statisti-

cal evidence and direct evidence of discrimination

embraced in the stipulations.

Finally, and most important, findings of fact simply

have no place on the docket of this Court. Supreme Court

Rule 10; United States v. Johnston, 268 U.S. 220, 227 (1925).

D. The Writ Should Not be Granted Based Upon

Vogel’s Claim of Standing to Enforce His Own

Interpretation of the Decree

Vogel, a nonparty to the decree, argues that the

decree does not authorize the affirmative action program

that the parties have used for more than a decade. The

Sixth Circuit, relying on Blue Chip Stamps v. Manor Drug

Stores, 421 U.S. 723 (1975) held that Vogel, who was not a

party to the consent decree, had no standing to enforce

“his own interpretation” of the decree. Vogel, 959 F.2d at

598. The Court did recognize Vogel’s right to challenge

the constitutionality of the decree under Martin v. Wilks,

490 U.S. 755 (1989).

The Sixth Circuit ruling follows this court’s prece-

dent and needs no review. Moreover, this court’s decision

in Martin, supra, has been overridden by Section 108 of

the Civil Rights Act of 1991 so future decisions affecting

the rights of nonparties to decrees will be made in light of

the legislative history of the Act. This Court should not

accept a case now on an issue that is unlikely to recur.

Regardless of the Civil Rights Act, the issue of

Vogel’s right as a nonparty to the decree to impose his

interpretation of the decree on the parties should be

13

permitted to “percolate” within the federal and state

courts to allow a consensus to emerge. Vogel cites no

caselaw that discusses this issue and apparently it has not

been the subject of other rulings. See Estreicher & Sexton,

A Managerial Theory of the Supreme Court’s Responsibilities:

An Empirical Study, 59 N.Y.U. L. Rev. 681 (1984).

Finally, Vogel’s interpretation of the decree is simply

in error. He claims that there is no basis in the decree for

establishing separate lists for white males, females and

blacks. But the parties stipulated to the practice in 1981

and have used it since. JSII, para. 43, Respondent Appen-

dix 9A. In litigation over the years, the Sixth Circuit has

given appropriate weight to the intent of the parties,

noting that the decree, including its “preferences to black

and female applicants for entry level appointments to the

police force” was the result of “extensive negotiations”

among the Fraternal Order of Police, the United States

Department of Justice and the City of Cincinnati. United

States v. City of Cincinnati, 771 F.2d 161, 163 (1985). This

Court should not enter the debate about the meaning of

the terms of this particular decree at this late date in its

history.

E. The Writ Should Not be Granted Based Upon

Vogel’s Individual Claim of Discrimination

The Sixth Circuit correctly described the standard to

be applied when an affirmative action plan is challenged

under the Equal Protection Clause:

Any racial classification must be justified by a

compelling state interest [citations omitted], and

14

the means chosen by the state must be narrowly

tailored to achieve that goal. [citations omitted].

Vogel, 959 at F.2d at 599. The court correctly applied that

standard. The court established the compelling state

interest by reviewing the evidence of discrimination, infra

at pp. 3-4. Then the court held that this affirmative action

plan was narrowly tailored to remedy the discrimination

— a conclusion that cannot be seriously challenged by

Vogel, whose sole injury is a delay of six months in his

hire date to the police department.

Particularly in a complex decree that addresses both

hiring and promotion issues, the use of hiring goals has

been seen by some members of this Court to be preferable

to techniques that burden the rights of incumbent

employees. In Wygant, for example, the affirmative relief

was applied during a layoff in derogation of seniority

rights. The Court noted that the burden on innocent

white workers was greater in that context than it is in the

context of hiring. The Court in Wygant expressly

approved of hiring goals:

In cases involving valid hiring goals, the burden

to be borne by innocent individuals is diffused

to a considerable extent among society gener-

ally. Though hiring goals may burden some

innocent individuals, they simply do not impose

the same kind of injury that layoffs impose.

Denial of a future employment opportunity is

not as intrusive as loss of an existing job...

While hiring goals impose a diffuse burden,

often foreclosing only one of several oppor-

tunities, layoffs impose the entire burden of

15

achieving racial equality on particuiar individ-

uals . . . [T]he Board’s layoff plan is not suffi-

ciently narrowly tailored. Other, less intrusive

means of accomplishing similar purposes — such

as the adoption of hiring goals - are available.

476 U.S. at 282 (plurality opinion) (emphasis added). See

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

(approving a 29% membership goal). The affirmative

action plan contained in the decree negotiated by the

federal government, the City of Cincinnati and the Frater-

nal Order of Police in this case is narrowly tailored to

appropriately remedy the discrimination in this case.

In summary, none of the issues which petitioner

asserts is appropriate for review by this Court. Moreover,

none of the alleged divisions among the circuits actually

exist. This case merely represents the application of set-

tled principles of law to an individual claim of discrimi-

nation. There are no “special” or “important” reasons for

granting certiorari in this case. See Supreme Court Rule

10.

16

Ill. CONCLUSION

The Petition for. Writ of Certiorari should be denied.

The decision of the Sixth Circuit Court of Appeals affirm-

ing the District Court was correct. Summary Judgment

was properly granted by the District Court to Respon-

dents, City of Cincinnati and Intervenor, and properly

denied to Petitioner Richard Vogel.

Respectfully submitted,

ALPHONSE A. GERHARDSTEIN

Attorney for Respondent

Sentinel Police Association

1409 Enquirer Building

617 Vine Street

Cincinnati, Ohio 45202

(513) 621-9100

1A

APPENDIX

CAROL CALLAHAN DEPOSITION

[p. 21] biack and 23 percent were female?

A Correct.

Q Would that be true - how many classes have

there been since this class? Any? This is the last class?

A There’s a class right now.

Q Right. And the class that is going right now, are

the percentages the same?

A No.

Q Why not?

A Because this is a goal for us. We could not meet

our goal for the second class, so we went with the

remaining individuals on the list.

Q Now, the class before that in 19___ whatever class

came immediately before 89-01. Do you know the propor-

tions in that?

A No, I really don’t. I could look that up for you,

but I’d hate to say it from memory.

Q Would it be correct to state that on the present

class that the percentages are different because you sim-

ply ran out of the list?

A Right.

2A

Q Of which? Females or black males, or white

males?

A Of blacks.

+ + *

[p. 28] sworn ranks of the CPD to 10 policewomen posi-

tions, required more education of female than male appli-

cants for entry level positions with the CPD, did not

provide promotional opportunities for women beyond

the police specialist sank, and assigned women exclu-

sively to the juvenile division of the CPD.

For the purpose of this deposition, we will concede

that that would be a clear set of discriminatory criteria.

Do you know of any criteria like that that applies to black

individuals from that period or any time subsequent to

that?

A No, I didn’t know that either, it was before my

time.

Q Are you familiar with something called the stan-

dard deviation test, the binomial approximation? Does

that mean anything to you?

A No. Are you asking if | know what a stand [sic]

deviation is, or you’re talking about a specific test?

Q What I am doing is | am reading from an Affi-

davit of Vivian B. Toler. And she begins describing what

she calls the binomial approximation (standard deviation

test), which is calculated by taking the square root of the

product, so forth. If you are familiar with that, | wanted

to ask you some

3A

[p. 30] created?

A Unless superseded by a consent decree, yes.

Q_ Okay, thank you.

MR. WYLER: Thank you. I have nothing fur-

ther.

MR. GERHARDSTEIN: I have a couple of ques-

tions.

BY MR. GERHARDSTEIN:

Q Ms. Callahan, in respect to one of Mr. Wyler’s

questions, you said that exam number 89-01 was vali-

dated under the uniform guidelines; is that correct?

A Right.

Q Now, when you talk about validated, would you

agree that your validation study applies to the exam and

the questions that constitute the exam; is that correct?

A The whole selection process, the exam as well,

yes.

Q When you get the results of the written exam,

and you add your veteran’s preference scores, do you

rank people in the order of their exam result plus vet-

eran’s preference; right?

A Right.

[p. 31] Q And that ranking goes on to these eligi-

ble lists; isn’t that correct?

A Correct.

Q Your validation study doesn’t include any anal-

ysis of this ranking process, does it?

4A

A No.

Q_ So that the test is valid as a pass-fail test, but not

as a ranked test, is it?

MR. WYLER: Objection. Relevancy. Go ahead.

THE WITNESS: We believe that anyone who

passes this test meets the minimum qualifications to go

on with the process. It’s just a very small part of a very

large process.

BY MR. GERHARDSTEIN:

Q But for the purposes of the validation study one

does under the uniform guideline, the person ranked

number one is not more qualified than the person ranked

number three, as per the uniform guidelines.

A | agree.

MR. GERHARDSTEIN: I have no further ques-

tions.

MR. WYLER: Nothing further.

* * *

5A

CITY’S RESPONSES TO INTERROGATORIES

* + *

Civil Service law of the State of Ohio would be used in

order to determine who would be placed in a recruit

class.

RESPONSE: The City of Cincinnati did not notify its

potential police recruit candidates in writ-

ing concerning any system it would use to

determine who would be certified to the

Police Chief for hiring. Defendant believes

that Plaintiff knew the Consent Decree

would be used as he participated in the

selection process previously and his father

is a Cincinnati Police Officer.

15. For white males, what score on examination

89-01 constituted a passing score showing minimal profi-

ciency.

RESPONSE: A score of 60% constituted a passing score

for all individuals including white maies.

16. For black males, what score on examination

89-01 constituted a passing score showing minimal profi-

ciency.

RESPONSE: A score of 60% constituted a passing score

for all individuals including black males.

17. For females, what score on examination 89-01

constituted a passing score showing minimal proficiency.

RESPONSE: A score of 60% constituted a passing score

for all individuals including females.

6A

18. Has examination 89-01 been validated pursuant

to guidelines of The Equal Employment Opportunity

Commission, the Ohio Civil Rights Commission, or any

other federal or state governmental agency?

RESPONSE: Yes.

19. Are the scores shown on eligible lists, for Civil

Service examinations, intended to show the level of profi-

ciency in the job tested for, without race-based or sex-

based bias.

RESPONSE: Written test scores are based upon the

number of exam questions answered cor-

rectly plus additional credits such as for

veteran status. Such examinations are dic-

tated by Ohio Civil Service law, scores are

generated as a result of State law and

intent must be derived from that law.

Scores are one factor in the selection proces

[sic] for police recruits.

7A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RICHARD VOGEL, : CASE NO.

ns . C-1-89-683

Plaintiff, (RUBIN, J.)

ii ; DEFENDANTS’

CITY OF CINCINNATI, —° RESPONSE TO

et al., REQUEST FOR

Defendants. ADMISSIONS

Plaintiff hereby propounds pursuant to Ohio Rule

36(A) the following Requests for Admission. Each Defen-

dant shall separately state to each Request whether it is

“admitted” or “denied” or otherwise indicate his Answer

in compliance with Ohio Civil Rule 36.

Each Admission shall be made in the space provided

herein, in writing and under oath, within 28 days from

the date of service hereof.

These Requests for Admissions are to be considered

as continuing in nature so that if any information is

discovered after the initial response, you are obligated to

furnish to the Plaintiff. .

REQUEST FOR ADMISSIONS

1. On October 9, 1989, the City of Cincinnati swore

in a new police recruit class.

RESPONSE: ~Admitted.

Incest eiaea einai

8A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF : CIVIL NO. C-1-80-369

AMERICA

Plaintiff,

V.

CITY OF CINCINNATI,

OHIO et al.

Defendant.

JOINT STIPULATIONS AMONG THE UNITED STATES,

THE CITY OF CINCINNATI, MEMBERS OF THE

CINCINNATI CIVIL SERVICE COMMISSION, AND

QUEEN CITY LODGE NO. 69,

FRATERNAL ORDER OF POLICE

(Filed July 31, 1981)

All parties to the above styled action agree to the

following stipulations for the purposes of this action

only:

The parties, and all of them, stipulate to the facts

contained in the Joint Stipulations of Fact Between the

United States and the City of Cincinnati, filed June 25,

1981 (copy attached and incorporated by reference

herein), with the exception of stipulation number 36,

which is hereby modified as follows and agreed to among

all parties:

36. Following the lay-off of sworn police personnel

in 1976, and until early 1980, the City of Cincinnati filled

well

9A

entry-level vacancies in the sworn ranks of the Cincinnati

Police Division only by recalling officers from lay-off.

37. The parties, and all of them, hereby stipulate to

the facts contained in the affidavit of Vivian B. Toler,

served and filed on June 26, 1981. A copy of the affidavit

is attached and incorporated by reference herein.

38. The parties, and all?of them, hereby stipulate

that all documents listed as exhibits by plaintiff United

States and Exhibits F-A, F-B, F-C, F-D, F-E, F-G, and F-I of

defendant Queen City Lodge No. 69, Fraternal Order of

Police (hereinafter FOP), are admissible except as to rele-

vancy and agree that copies may be rendered in place of

the originals.

39. On March 3, 1980, the City Manager of Cincin-

nati Mr. Sylvester Murray, sent a written memorandum to

the Mayor and members of City Counsel, setting forth the

background of the then current labor negotiations with

the FOP, the proposed settlement, items which were not

to be included in the written contract, and some personal

comments (FOP Exhibit F-E).

40. On March 3, 1980, the City Manager of the City

of Cincinnati, Mr. Sylvester Murray, sent a directive to the

Safety Director of the City of Cincinnati indicating that

the Chief of Police was to maintain a civil service promo-

table position or positions at Police Specialist rate of pay

_ and at the level existing on January 1, 1980, which level

was 152. (FOP Exhibit F-G).

41. Subsequent to March 3, 1980, but prior to

November of 1980, the membership of the FOP, meeting

in special session, ratified the contract between the FOP

10A

and the City, consisting of the provisions contained in the

memorandum from the City Manager to City Council

dated March 3, 1980, including provisions a-c under

“Other Items Not Part of the Written Contract” on page 3

of the memorandum, (FOP Exhibit F-E).

42. Subsequent to March 3, 1980, but prior to

November of 1980, the members of the Cincinnati City

Council approved the actions of the City Manager which

are set forth in the memorandum from the City Manager

to City Council dated March 3, 1980, including provisions

a-c under “Other Items Not Part of the Written Contract” |

on page 3 of the memorandum, (FOP Exhibit F-E).

43. Although prior to the enactment in 1979 of the

Bowen Amendment, Section 124.90 of the Ohio Revised

Code, the City filled vacancies pursuant to Sections

124.27 and 124.44, it invoked the Bowen Amendment for

entry-level hiring in 1981 and filled positions in the Cin-

cinnati Police Division out of rank order of score from

three separate eligibility lists; one for white males, one

for black males and one for females.

ll

11A

44. No vacancies have been filled in the ranks of

Police Specialist or Police Sergeant on the Cincinnati

Police Division since the enactment in 1979 of the Bowen

Amendment, Section 124.90 of the Ohio Revised Code.

/s/

/s/

/s/

/s/

Nicholas J. Pantel

NICHOLAS J. PANTEL

Assistant U.S. Attorney

Donald E. Hardin

DONALD E. HARDIN

Counsel for Defendant FOP

Katherine P. Ransel

KATHERINE P. RANSEL

Department of Justice

Washington, D.C. 20530

Paul R. Berninger

PAUL R. BERNINGER

Asst. City Solicitor