Opposition Brief — Mackin v. City of Boston

© | FILED |

No. 92-612 NOV 3 1892

In The

Supreme Court of the United States

October Term, 1992

.

LAWRENCE MACKIN, ET AL.,

Petitioners,

CITY OF BOSTON, ET AL.,

Respondents.

a

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

+

BRIEF OF RESPONDENT BOSTON CHAPTER OF

THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, INC.,

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

.

~ Ton: G. Wo LrmMan

Joun A. SHore

Foury, Hoac & Euor

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390

Avan J. Roa

Lawyers Committee for Civil

Rights Under Law of the Boston

Bar Association

294 Washington Street

Boston, Massachusetts 02108

(617) 482-1145

*Counsel of Record

COMER CALL COLLECT wi) M2

BEST AVAILABLE COPY!

CC CC

QUESTIONS PRESENTED

3

1. Whether the District Court and the Court of

Appeals for the First Circuit correctly found that the

Boston Fire Department has not yet satisfied the condi-

tions precedent to exemption from the affirmative action

provisions of a judicial decree.

2. Whether the District Court and the Court of

Appeals for the First Circuit correctly determined that the

decree was narrowly tailored to remedy concededly dis-

criminatory hiring practices.

il

TABLE OF CONTENTS

Page

Ouestiens Presemied . .. . «064 cseee tae eee ees i

Table of Amthoriiies .. 0.068080 eee iii

Statement of Ghe Cane ...<sak ick 2

Reasons for Denying the Writ ..................... 7

I. THE COURTS BELOW CORRECTLY FOUND AS

A FACTUAL MATTER THAT THE BFD HAS

NOT SATISFIED THE CONDITIONS FOR

EXEMPTION FROM THE DECREE ............ 8

A. The lower courts correctly held that compli-

ance with the decree is to be determined by

reference to contemporary population statis-

oe Ire 8

B. The lower courts correctly found that the

BFD has not attained parity on any theory

advanced by petitioners ..................: 10

Il. THE LOWER COURTS CORRECTLY CON-

CLUDED THAT THE DECREE WAS NAR-

ROWLY TAILORED TO ACHIEVE ITS

REMEDIAL PURPUGs os + cicntenswisesesste res 11

Comchusion ......s«csccaeesue te 15

iii

TABLE OF AUTHORITIES

Page

CAsEs:

Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp.

907 (D. Mass.), aff'd, 504 F.2d 1017 (1st Cir.

1974), cert. denied, 421 U.S. 910 (1975)...... 2, 3, 4, 10

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

eg ied kkk wthpnsee cde: 14

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

oe oe Ol ens eGo edt ake se bei e's 8

Mackin v. City of Boston, 969 F.2d 1273 (1st Cir.

Ns I eee ee er ee eee 3, 7

Rufo v. Inmates of Suffolk County Jail, 112 S.Ct. 748

ee ee eke ey dada dwik keen oe 9

United States v. City of Buffalo, 721 F. Supp. 463

I, WU nn 065505 s ub ub bse b ka se ude cess 10, 14

United States v. Johnston, 268 U.S. 220 (1925).......... 8

United States v. Paradise, 480 U.S. 149 (1987)......... 12

Wygant v. Jackson Board of Education, 476 U.S. 267

RG Ce ee en wa kc asiee cat cs 13, 14

STATUTES AND RULES:

Mass. Gen. Laws c. 31, §§ 26, 40, 58.............. 6, 13

EE IIE WI cg ns cv dance ssssccnvesnces 7

No. 92-612

¢

In The

Supreme Court of the United States

October Term, 1992

¢

LAWRENCE MACKIN, ET AL.,

Petitioners,

CITY OF BOSTON, ET AL.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

S

BRIEF OF RESPONDENT BOSTON CHAPTER OF

THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, INC.,

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

Respondent Boston Chapter of the National

Association for the Advancement of Colored

People, Inc. (“NAACP”), respectfully requests

that this Court deny the petition for writ of

certiorari. |

STATEMENT OF THE CASE

This case involves a collateral challenge to a judicial

decree intended to remedy the racially discriminatory

hiring practices of, inter alia, the Boston Fire Department

(“BFD”). In 1972 and 1973, respondents NAACP and the

United States broght separate actions challenging the

discriminatory practices of both state and local officials in

connection with the recruitment, examination and hiring

of firefighters throughout the Commonwealth of Massa-

chusetts. The actions were consolidated in the District

Court before Judge Frank H. Freedman who held, after

trial, that state civil service officials and numerous Mas-

sachusetts fire departments, including the BFD, had dis-

criminated against black and Spanish-surnamed

applicants in violation of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq., and the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitu-

tion. The District Court’s decision is reported in Boston

Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. 507 (D. Mass.

1974).

Judge Freedman’s conclusion was principally based

on two factual findings. First, statistics demonstrated a

gross disparity between the percentage of black and

Spanish-surnamed people in the cities and towns that

were subject to civil service laws and the percentage of

such persons employed in the fire departments of those

communities. For example, in the case of Boston, black

and Spanish-surnamed persons made up approximately

23% of the population of the city, but only 0.9% of the

firefighters in the Department. 371 F. Supp. at 514. Sec-

ond, the District Court found that the test that Massa-

chusetts civil service administrators had administered to

applicants for firefighter positions over the preceding

two decades or more had not been prepared by profes-

sionals in psychological measurement or testing, and that

only two of the numerous parts of the test were job-

related, and those only marginally so. Id. at 511, 517.

Petitioners in this case do not challenge the soundness of

these findings. See Mackin v. City of Boston, 969 F.2d 1273,

1275 (1st Cir. 1992).

In prescribing a remedy for the effects of this history

of racial discrimination, the District Court, among other

things, decreed that the respondent state civil service

administrators must certify, in response to requisitions by

the Boston and Springfield fire departments, lists of qual-

ified applicants of whom no less than half were to be

black or Spanish-surnamed.! 371 F. Supp. at 522-23. A

smaller proportion (twenty five percent) of black and

Spanish-surnamed candidates was required for other

cities and towns where the underrepresentation of minor-

ities was found to be less severe. Id. Importantly, the

decree never has required the BFD or any other depart-

ment to hire any number or percentage of black or Span-

ish-surnamed applicants, but rather requires merely that

the fire departments consider applicants from a pool in

which minorities comprise a certain proportion. Each fire

department, including the BFD, has retained the right to

1 To be considered “qualified,” all applicants must pass a

civil service examination that has been validated in accordance

with regulations promulgated by the Equal Employment

Opportunity Commission or otherwise has been shown to have

no discriminatory impact. Id. at 521.

reject, or “bypass,” any applicant as long as it provides a

job-related reason for doing so.

The decree also specifies that each municipality sub-

ject to its provisions may petition for exemption when it

“achieves a complement of minorities [in its fire depart-

ment] commensurate with the percentage of minorities

within the community.” Id. at 523. Thus the duration of

the affirmative action provisions of the decree is largely

within the control of the local officials responsible for the

recruitment and appointment of firefighters.

The defendants in Beecher appealed Judge Freed-

man’s ruling, but a unanimous Court of Appeals

affirmed, approving the decree in its entirety. See Boston

Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017 (ist Cir.

1974)(Campbell, J.). The Court of Appeals carefully evalu-

ated the decree and noted, among other things, that “[iJn

no case must any unqualified minority person be appoin-

ted; if no qualified applicants are available, none will be

appointed.” Id. at 1027. The Court of Appeals specifically

found that “[t]he relief goes no further than to eliminate

the lingering effects of previous practices that bore more

heavily than was warranted on minorities” and that the

decree was “carefully limited in extent and duration.” Id.

This Court denied review of the decision by the Court of

Appeals. 421 U.S. 910 (1975).

Since the decree was entered, over half of the Massa-

chusetts fire departments initially subject to the decree

have attained exemption from its provisions governing

composition of the eligibility pool by achieving minority

representation at or exceeding the minority population of

the relevant community. See Petition for Writ of Certiorari

(“Petition”) at 9. The BFD itself has not yet requested

exemption because the complement of minorities on its

force is not yet commensurate with the percentage of

minorities in Boston.? The BFD’s failure to achieve parity

is largely due to the fact that in actual hiring the BFD has

historically “bypassed” (that is, rejected) a disproportio-

nate number of minority candidates certified as eligible

by state civil service officials.

Petitioners, white candidates for employment as fire-

fighters, filed this action on September 14, 1989, challeng-

ing the continued application to the BFD of the

certification ratios set forth in Judge Freedman’s 1974

decree. As summarized in the opinions of the District

Court and Court of Appeals for the First Circuit

(reprinted at pages 1a through 30a of the Appendix),

petitioners contend that the conditions for exemption

from the affirmative action provisions of the decree have

been met by the BFD and that therefore any preferential

consideration of minority applicants unlawfully discrimi-

nates against petitioners on the basis of race in violation

of the Equal Protection Clause and 42 U.S.C. § 2000e.

Petitioners’ claims were resolved against them in rul-

ings on cross motions for summary judgment filed by all

of the parties. At the outset, petitioners based their claim

2 As of November 1, 1990, minorities comprised 23.6% of

the tenured members of the BFD. Appendi» to the Petition for

Writ of Certiorari (“Appendix”) 23a. According to the 1990 fed-

eral census, minorities comprised 29.72% of those who were

aged 18 and over at the time of that census. Appendix 19a.

that the BFD had attained parity, thus requiring exemp-

tion from the decree, on the contention that the percent-

age of black and Spanish-surnamed firefighters in the

BFD at the time they instituted suit exceeded the percent-

age of black and Spanish-surnamed persons in the popu-

lation of Boston at the time the decree was entered in

1974. The District Court rejected this anomalous inter-

pretation of the decree, finding that parity is a condition

to be assessed by reference to the present population of

Boston, not its population in 1974. Using 1980 census

statistics, the District Court held that as of June 1991

parity had not yet been achieved. Appendix 23a-24a.

Judge Skinner also rejected petitioners’ contention

that the decree iiself was invalid. Applying the most

recent Supreme Court precedents, he held that Judge

Freedman’s findings justified the remedial provisions of

the decree and rejected petitioners’ assertion that the

decree was not narrowly tailored to achieve its remedial

purpose. Appendix 25a-30a.

Petitioners immediately filed a motion for recon-

sideration, asserting for the first time that compliance

with the decree should be measured by reference to the

percentage of minorities in the more limited labor pool

rather than the percentage of minorities in the general

population.4 They also changed their position with

respect to the use of contemporary census figures,

3 The parties’ cross motions for summary judgment had

been filed in early 1991, before the results of the 1990 federal

census had been published. Appendix 19a.

4 Massachusetts law requires that firefighter candidates be

at least 19 years of age. See Mass. Gen. Laws c. 31, § 58.

although they advanced as determinative data from the

1980 census despite the recent publication of the 1990

census. Petitioners further asserted for the first time in

their motion papers (and without supporting argument

or citation) that the class of persons whose injuries were

remedied by the decree should be subdivided into sepa-

rate classes of blacks, on the one hand, and Spanish-

surnamed persons, on the other. The District Court

denied the motion for reconsideration, noting that even if

it considered the more limited labor pool of black and

Spanish-surnamed persons over age 18, the newly-avail-

able 1990 census data showed that the BFD had not yet

achieved the parity required for exemption from the

decree. Appendix 19a.

On appeal, the Court of Appeals for the First Circuit

unanimously affirmed the District Court in all respects.

Mackin v. City of Boston, 969 F.2d 1273 (1st Cir. 1992).

Petitioners now seek review in this Court.

REASONS FOR DENYING THE WRIT

The thorough analysis of the Court of Appeals, and

the careful decisions of the District Court it affirms, faith-

fully apply the opinions of this Court. The lower courts

neither faced nor resolved any novel issue of law. Indeed,

petitioners have not identified a single deviation between

the decisions below and those of any other court, state or

federal. In short, none of the considerations favoring a

grant of certiorari set forth in Supreme Court Rule 10 are

present here.

— i ia,

Furthermore, the essence of petitioners’ case, and of

their petition to this Court, is factual: has the BFD in fact

satisfied the conditions of a federal court decree? The

material facts of this case were resolved against peti-

tioners by the unanimous courts below-in decisions care-

fully grounded in the record. Petitioners’ dissatisfaction

with those decisions does not provide reason for review

by this Court. Graver Tank & Mfg. Co. v. Linde Air Products

Co., 336 U.S. 271, 275 (1949) (“A court of law, such as this

Court is . . . cannot undertake to review concurrent

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

very obvious and exceptional showing of error”); United

States v. Johnston, 268 U.S. 220, 227 (1925) (“We do not

grant a certiorari to review evidence and discuss specific

facts”).

Accordingly, the petition for a writ of certiorari

should be denied.

I. THE COURTS BELOW CORRECTLY FOUND AS A

FACTUAL MATTER THAT THE BFD HAS NOT

SATISFIED THE CONDITIONS FOR EXEMPTION

FROM THE DECREE.

A. The Lower Courts Correctly Held That Compli-

ance With The Decree Is To Be Determined By

Reference To Contemporary Population Statis-

tics.

In their motion for summary judgment, petitioners

initially contended that the BFD had achieved exemption

from the decree because the percentage of black and

Spanish-surnamed firefighters in the BFD in 1990

exceeded the percentage of black and Spanish-surnamed

persons in the population of Boston in 1974, when the

decree issued. Both the District Court and the Court of

Appeals properly rejected this theory and held that the

language of the decree, the longstanding practice of all

parties subject to its provisions, and common sense

clearly required the use of contemporary population fig-

ures in the assessment of parity. See 969 F.2d 1273,

1276-77; Appendix 24a.

Judge Selya’s analysis for the Court of Appeals is

equally dispositive of petitioners’ fall-back position,

asserted in their petition to this Court, that the relevant

measure of compliance under the decree is the black and

Spanish-surnamed population of Boston as of 1980, a year

having no special significance to the events at issue in

this. case. Petition at 6-7. Petitioners have advanced no

reason to disregard Judge Selya’s admonition that “[o]ne

implication of recent Supreme Court school desegrega-

tion decisions is that federal courts, at least in the mine-

run of civil rights and constitutional reform cases, have

no choice but to make decisions about the maintenance,

modification, or dissolution of structural remedial orders

by referring to the most current population statistics

available.” 969 F.2d at 1276-77. This lesson is underscored

by the recent decisions of this Court that emphasize the

importance of flexibility in assessing existing decrees

under changing conditions. See generally Rufo v. Inmates of

Suffolk County Jail, 112 S. Ct. 748, 758 (1992). In measuring

compliance by the most recently available statistics,

namely, the 1990 census data, the courts below followed

the lead not only of this Court but also of other federal

courts that have utilized contemporary census data to

|

10

measure satisfaction of the goals of judicial decrees affect-

ing the hiring of public safety officers. See, e.g., United

States v. City of Buffalo, 721 F. Supp. 463, 467 & n8

(W.D.N.Y. 1989).

B. The Lower Courts Correctly Found That The

BFD Has Not Attained Parity On Any Theory

Advanced By Petitioners.

Shifting gears from their original motion for sum-

mary judgment, petitioners asserted in their motion for

reconsideration by the District Court that parity should

be determined by reference to the percentage of minor-

ities in the Boston population who are aged 18 and over,

as opposed to the percentage of minorities in the entire

Boston population. Both courts below found, as a factual

matter, however, that this contention yielded no different

result for petitioners.

As the District Court held in ruling on petitioners’

motion for reconsideration, using data from the 1990

census, the percentage of black and Spanish-surnamed

persons in the labor pool identified by petitioners sub-

stantially exceeds the percentage of minorities employed

as firefighters in the BFD.> Further, even utilizing the

1980 census data (as urged by petitioners), the Court of

Appeals found that when properly measured, the per-

centage of minorities in the Boston labor pool still

> In a fire department the size of Boston’s, the difference of

only six percentage points may mean ninety or more firefigh-

ters. See Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. at

514.

11

exceeded the percentage of minority firefighters in the

BFD. As Judge Selya noted, the Boston labor poo! at the

time this suit was instituted in 1989 included all persons

who were ten years old or older in 1980 rather than only

those who were 19 at the time of the 1980 census. Evalu-

ated by reference to the correct data, “a continuing lack of

parity in the [BFD] is statistically evident.” 969 F.2d at

1279.6

Il. THE LOWER COURTS CORRECTLY CON-

CLUDED THAT THE DECREE WAS NARROWLY

TAILORED TO ACHIEVE ITS REMEDIAL PUR-

POSE.

The Court of Appeals correctly held that the decree

withstood petitioners’ constitutional challenge “with fly-

ing colors.” 969 F.2d at 1278. Following the decisions of

¢ In their motion for reconsideration petitioners asserted

yet another wholly new basis upon which thev urged that parity

be found. By subdividing the class of minorities intended to be

benefited by the decree into separate classes of blacks and Span-

ish-surnamed persons, petitioners argued that the remedial pro-

visions of the decree should be lifted for blacks, a position

adverted to in passing in their petition to this Court. Petition at

7. As the Court of Appeals correctly held, the District Court did

not abuse its discretion in refusing to consider this argument,

which could have been raised from the outset of suit. 969 F.2d at

1279. Moreover, in addition to the absence of factual support for

petitioners’ claim of “partial parity,” the Court of Appeals

found that their approach “clearly contradicts the format of the

original litigation, which constituted combined classes of black

and Spanish-surnamed persons, not separate classes [and] also

contradicts the clear intent of the decree and an unbroken skein

of preexisting practice under the decree’s terms.” Id.

aaa

12

this Court, it noted that, in evaluating the decree, a

significant measure of deference is owed to the District

Court. 969 F.2d at 1277. This is so because the District

Court “has first hand experience with the parties and is

best qualified to deal with the ‘flinty, intractable realities

of day-to-day implementation of constitutional com-

mands.’” United States v. Paradise, 480 U.S. 149, 184 (1987)

(quoting Swann v. Charlotte-Mecklenburg Bd. of Education,

402 U.S. 1, 6 (1971)).

The Court of Appeals properly proceeded to test the

decree along each of the various dimensions mandated by

this Court. It noted that the decree does not give undue

advantage to minority applicants. All applicants, includ-

ing minorities, must pass a qualifying examination. More-

over, the decree only affects the composition of the pool

of eligible candidates; it does not mandate who must be

hired. As the Court of Appeals correctly found, “the

decree gives only a limited advantage, not a guarantee of

employment, to minority applicants.” 969 F.2d at 1298,

citing Johnson v. Transportation Agency, 480 U.S. 616, 638

(1987).

Second, the Court of Appeals correctly held that any

“failure” on the part of the BFD to hire petitioners “dis-

turbs no legitimate, firmly-rooted expectations on the

part of those applicants.” 969 F.2d at 1278. Petitioners’

contention that the decree “trammels” their rights flies in

the face of the undisputed facts. As both lower courts

found, there were many other white applicants who had

perfect test scores and many other applicants with lower

scores but with statutory preferences that ranked them

ahead of even those with perfect scores, all competing for

13

relatively few available positions.” It is simply not true

that petitioners were “passed over” on account of race,

since “irrespective of the decree, [petitioners] could not

reasonably have felt assured that they would be appoin-

ted.” 969 F.2d at 1278. Cf. Wygant v. Jackson Board of

Education, 476 U.S. 267, 282-83 (1986) (“Denial of a future

employment opportunity is not as intrusive as loss of an

existing job”).

Further, as the Court of Appeals accurately observed,

the decree’s affirmative action provisions have only a

limited life, expiring by their own terms as the require-

ment of parity between the percentage of minorities in

the p&pulation and the percentage of minorities in the fire

department is met by each community that is subject to

those provisions. 969 F.2d at 1278. As Judge Skinner

found, “[o]f the fifty eight communities initially subject to

the court decree, thirty four have reached ‘parity’ and

have been exempted from the decree.” Appendix 23a. The

expiration of the decree under its own terms with respect

to the majority of other fire departments demonstrates

that it was, and remains, narrowly tailored. Cf. Paradise,

480 U.S. at 178-79 (noting that the effectiveness and flex-

ibility of a hiring order was demonstrated by its partial

suspension after decree first issued). The BFD’s own

inability — in contrast to the majority of Massachusetts

7 The statutory preferences include firefighters laid off

from other departments, veterans, and children of firefighters

and policemen who were killed or rendered disabled in the line

of duty. See Mass. Gen. Laws c. 31, §§ 26, 40. Despite the small

number of available positions, however, during the pendency of

this litigation about one third of the petitioners were in fact

appointed to the BFD.

14

fire departments - to achieve parity is the result of its

own recruitment and hiring practices, practices that are

largely unaffected by the decree.

In challenging the validity of the decree, petitioners

have never claimed that it was not sufficiently justified

by findings of discrimination or not sufficiently narrowly

tailored to achieve its remedial purpose when it was

entered. At most, they appear to be arguing that the

“great strides” made by the BFD and the use of a “vali-

dated” civil service entrance exam justify exemption or

indicate that there is no longer a basis for issuing the

decree in the first place. There is no reason, however, to

dissolve this remedial decree or excuse full compliance

with its terms simply because the BFD may have made

progress towards the goal of the decree. Moreover, com-

pliance with the decree does not retroactively nullify the

undisputed findings of discrimination that justified its

entry. See United States v. City of Buffalo, 721 F. Supp. at

467 (“No new finding of discrimination is necessary”

where terms of race-conscious remedial decree not yet

fully satisfied). Petitioners’ apparent reliance on City of

Richmond v. ].A. Croson Company, 488 U.S. 465 (1989), and

Wygant v. Jackson Board of Education, supra, is simply mis-

placed, for there is no dispute that the District Court

entered the remedial, race conscious decree on the basis

8 Contrary to petitioners’ assertions, it is not true that fire-

fighter candidates are now administered a validated exam. See

Appendix 27a-28a. In any event, the courts below did not

resolve this issue because they correctly concluded that it was

immaterial. 969 F.2d at 1277 & n.3; Appendix 28a.

15

of firm and specific evidence of the BFD’s history of

racially discriminatory practices.

¢

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari does not present any question warranting this

Court’s review, and the Court should deny the petition.

Respectfully submitted,

Boston Chapter, NAACP, Inc.

By its attorneys,

Ton! G. WoLFMAN

JoHN A. SHOPE

Fotey, Hoac & ELIoT

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390

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