# Opposition Brief — Mackin v. City of Boston > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1427%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1993 - **Citation:** 506 U.S. 1078 ## Text © | 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 ... 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1427%3A2. Public record. Not legal advice.