Opposition Brief — Chicago Fire Fighters Union Local 2 v. City of Chicago

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¥ No. 01-365 SEP 28 200)

In the Supreme Court of the Unités-States

CHICAGO FIRE FIGHTERS UNION LOCAL NO. 2. et al,

Petitioners,

V.

CITY OF CHICAGO,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

MARA S. GEORGES

Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

MARDELL NEREIM

Assistant Corporation Counsel

City Hall, Room 600

121 North LaSalle Street

Chicago, Illinois 60602

(312) 744-5337

* Counsel of Record Attorneys for Respondent

ASAT CEES I ATI, ees

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

® «<> 60

QUESTION PRESENTED

Whether the district court’s findings that the affirmative

action plans implemented by the Chicago Fire Department

during the late 1980s and early 1990s were narrowly tailored

to redress prior discrimination were clearly erroneous.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED.......0cccccccccccccccoscossccsessseeseses

TABLE OF AUTHORITIES .....cccccccccccccoccsssccccssesscsesese

STATEMENT..

ARGUMENT...

CONCLUSION

PPUUTTETOCCOCCCL Lee

(iii)

Page

iV

TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena, 515 U.S.

eins biisLaetcsiediathcessaiptiniaccisiatiiaiaiadiibal

Adarand Constructors, Inc. v. Slater, 228 F.3d

1147 (10th Cir. 2000), cert. granted sub nom.

Adarand Constructors, Inc. v. Mineta, 121 S.

Ct. 1401 (2001) (No. 00-730) ......... ee eeeeeeeeeee

Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir.

re iicicichiasiecnsncnanissbiininenieenintananienhs

Anderson v. City of Bessemer City, 470 U.S. 564

Boston Police Superior Officers Federation v.

City of Boston, 147 F.3d 13 (1st Cir. 1998).......

City of Pleasant Grove v. United States, 479 U.S.

a iiitinitcisciecnininsctinsaieinetanantintineniiaeacionniaes

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

Fe icnsniensiicietincsin sihiniiinabneaanbiaidenibialintiaiaieedaina

Contractors Association of Eastern Pennsyl-

vania, Inc. v. City of Philadelphia, 91 F.3d 586

(3d Cir. 1996), cert. denied, 519 U.S. 1113

Dallas Firefighters Association v. City of Dallas,

150 F.3d 438 (Sth Cir. 1998), cert. denied, 528

ChE Fe Fo ricatiensnsnenensstactnniasiavinia

Davis v. City and County of San Francisco, 890

F.2d 1438 (9th Cir. 1989), cert. denied, 498

DB Re Ce i sntisknicinsipinsnteitinintnnhaneaintiintea

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

(8th Cir. 1991), cert. denied, 508 U.S. 1059

CRIP sdicnsinibscnsinnscniiniadasasindaipindisliliuinetnasmmsaniiibalpiiliane

Edwards v. City of Houston, 37 F.3d 1097 (Sth

Cir. 1994), vacated on other grounds en banc,

Fe ee ee iiiickathicinpinnianenmncitnndiiils

21

Vv

TABLE OF AUTHORITIES—Continued

Engineering Contractors Association of South

Florida, Inc. v. Metropolitan Dade County,

122 F.3d 895 (11th Cir. 1997), cert. denied,

523 U.S. 1004 (1998)............ shsinindereamstaieeanpuocastil

Ensley Branch, NAACP v. Seibels, 31 F.3d 1548

CES GR Fe iinircssnctseninnusenncinebnianien

Exxon Co., U.S.A. v. Safee, Inc., 517 U.S. 830

CPN sisi csasessnckiccondcsiinsioniienanipsilhiaaniaianaacaats

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

Goodman v. Lukens Steel Co., 482 U.S. 656

CDI T Piscchcenininisientsiaicieeniineacuneaieiaiiah pesussiaapaiienn

Howard v. McLucas, 871 F.2d 1000 (11th Cir.),

cert. denied, 493 U.S. 1002 (1989)............ cee

In re Birmingham Reverse _ Discrimination

Employment Litigation, 20 F.3d 1525 (11th

Cir. 1994), cert. denied, 514 U.S. 1065

(RDG) scncisnnsnaoninasecaisebciiallasapiintipnisimniemiamiaeas

Jansen v. City of Cincinnati, 977 F.2d 238 (6th

Cir. 1992), cert. denied, 508 U.S. 911 (1993) ...

Local No. 28 of the Sheet Metal Workers’

International Association v. EEOC, 478 U.S.

BBE (RDI) i incsssiiiinsnssscsniseaihaonniamiansbininaae

Louisiana v. United States, 380 U.S. 145 (1965)...

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

1992), cert. denied, 506 U.S. 1078 (1993).........

Majeske v. City of Chicago, 218 F.3d 816 (7th

Cir. 2000), cert. denied, 531 U.S. 1079

McNamara v. City of Chicago, 138 F.3d 1219

(7th Cir.), cert. denied, 525 U.S. 981 (1998).....

Middleton v. City of Flint, 92 F.3d 396 (6th Cir.),

cert. denied, 520 U.S. 1196 (1996)....................

Miller v. Johnson, 515 U.S. 900 (1995)...

Page

16-17

16

17

vi

TABLE OF AUTHORITIES—Continued

Page

Peightal v. Metropolitan Dade County, 26 F.3d

BSS CO BG Gy File icccttenectcenrnsrentsusncannieintatingiina 17

Scott Construction Co. v. City of Jackson, 199

F.36 BOG Co Ce, EGO e ccctetincessintitietciasiaindeens 21

Shaw v. Hunt, 517 U.S. 899 (1996) ............c cess 16

Shaw v. Reno, 509 U.S. 630 (1993) .......ccccceeeeeeeee 16

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

cert. denied, 504 U.S. 913 (1992).................. 14,17, 18

United States v. Doe, 465 U.S. 605 (1984)............ 21

United States v. Paradise, 480 U.S. 149 (1987).... 14, 18

United States v. Virginia, 518 U.S. 515 (1996)... 16

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

BOT CI DOOD cntitndcstntseinictnomteinadeaiasaaans 16

RULE

FOG, Ti. CAV. Fo SUMED ccantiscctintssesiimmuasaamnalieaidamiais 21

In the Supreme Court of the United States

No. 01-365

CHICAGO FIRE FIGHTERS UNION LOCAL NO. 2, et ai.,

Petitioners,

Vv.

CITY OF CHICAGO,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT

These five consolidated cases, filed by the Chicago

Firefighters Union Local No. 2 and 93 individual plaintiffs,

challenge promotions made in the Chicago Fire Department

(“CFD”) between 1987 and 1997 to the ranks of fire engineer,

lieutenant, captain and battalion chief as part of an affirmative

action program. See Pet. App. 17a. The plaintiffs—peti-

tioners in this Court—concede that the CFD engaged in

intentional discrimination against African-Americans and

Hispanics until the 1980s, and question only whether the

affirmative action plans at issue for four promotional ranks in

the CFD were narrowly tailored remedies for that conceded

discrimination. See Pet. App. 2a. The cases were consoli-

dated for a bench trial held intermittently for nearly two

years, which concluded with a finding against petitioners.

See Pet. App. 18a. The court of appeals affirmed. See Pet.

App. 13a.

2

The Affirmative Action Plans: In a June 16, 1987 letter,

Chicago’s Commissioner of Personnel Jesse Hoskins

recommended adopting an affirmative action plan for making

promotions based on the results of the 1985 fire engineer

promotional examination with a goal of 20% African-

American and 5% Hispanic promotions, noting that no race-

neutral method was available to redress the continuing effects

of the CFD’s prior discrimination, which had produced-

gross minority underrepresentation in that rank. Def. Ex.

1-3. Promotions were then made consistent with the

recommendation. Joyce Tr. 91.' The test scores of the

firefighters promoted through affirmative action were within

the same statistical range as the scores of nonminorities who

would otherwise have been promoted, and as a result there

was no meaningful difference between the qualifications of

the candidates. Joyce Tr. 99.2 Under the affirmative action

plan, the vast majority (76%) of those promoted from the

1985 engineer list were nonminorities, and all who were

promoted were qualified. Joyce Tr. 100; R. 116, Schedule A

at 20.

In a July 9, 1987 letter, Commissioner Hoskins also

recommended affirmative action promotions based on the

results of the 1987 fire captain examination with a goal of

20% African-American and 5% Hispanic promotions, in

order to remedy the continuing effects of prior discrimination

in that rank. Def. Ex. 2-1. Again, all of those receiving

affirmative action promotions had scores that were

' Deputy Commissioner of Personnel Robert Joyce presented his direct

examination through written testimony, which we cite as “Joyce Tr.”

? This conclusion is based on the concept of a statistical “band,” a

generally accepted method for determining whether scores on an

employment examination are statistically distinguishable. Scores falling

within a single band, defined as scores within two times the standard error ~

of difference on an examination, are considered statistically equivalent

within a 95% degree of confidence. Joyce Tr. 98-99, Tr. 3372-73.

er RENIN

3

Statistically indistinguishable from the nonminorities who

would otherwise have been promoted. Joyce Tr. 122. The

vast majority of those promoted were white, and all who were

promoted were qualified. Joyce Tr. 123.

In a July 26, 1989 letter, Chicago’s new Commissioner of

Personnel Glenn Carr recommended that five affirmative

action promotions be made to the rank of battalion chief to

supplement the rank-order promotions made pursuant to the

1989 battalion chief examination and that the CFD utilize a

goal of awarding 20% of all promotions to African-

Americans and 5% to Hispanics. Def. Ex. 3-1. Commissioner

Carr noted that as a consequence of prior discrimination,

there was then only one African-American battalion chief

and one Hispanic battalion chief, and that the goals

he recommended would help to redress minority

underrepresentation caused by that discrimination. J/bid.

Until July 1992, the City followed this recommendation.

Joyce Tr. 140-41. In July 1992, the City adopted a new

affirmative action policy for battalion chief, utilizing a goal of

promoting African-Americans and Hispanics at 120% of their

representation at the rank of captain (the rank from which

promotions are made), in order to more closely tailor the goal

to actual minority representation at the rank of captain, while

recognizing that minority representation in that rank was

growing and that the disparity between minority

representation at the ranks of captain and battalion chief

would diminish only if minority promotions were made in

some modest increment above current minority representation

at the rank of captain. Joyce Tr. 142. All captains promoted

through affirmative action to the rank of battalion chief were

qualified and had scores statistically indistinguishable from

those they passed over. Joyce Tr. 146-47.

In a July 14, 1992 letter, Commissioner Carr recommended

affirmative action promotions based on the results of the 1991

fire captain promotional examination, based on his finding

4

that minorities were underrepresented at that rank as a result

of prior discrimination. Def. Ex. 4-1. Affirmative action

promotions were limited to a goal of 120% of- the

representation of minorities in the rank of lieutenant, the rank

from which promotions to captain are made. /bid.; Joyce Tr.

160-61. All persons receiving affirmative action promotions

had scores statistically indistinguishable from those they

passed over. Joyce Tr. 162. All candidates promoted were

qualified, and the vast majority of those promoted were

nonminorities. Joyce Tr. 163.

By letter dated December 6, 1993, Commissioner Carr

proposed use of affirmative action for promotions based on

the results of the 1993 fire lieutenant examination in order to

redress the continuing effects of prior discrimination, with a

goal of promoting minorities at a rate of 120% of the minority

composition of the ranks eligible for promotion (firefighter

and engineer), provided that those receiving out-of-rank

promotions had statistically indistinguishable scores from

those they passed over. Def. Ex. 5-2. All of those who

received affirmative action promotions had scores on the

examination statistically indistinguishable from those they

passed over. Joyce Tr. 176-77. All those promoted were

qualified, and the vast majority of those promoted were

nonminorities. Joyce Tr. 177-78.

_ By letter dated December 1, 1994, Commissioner Carr

recommended the use of affirmative action for promotions

based on the results of the 1994 fire engineer examination in

order to redress the continuing effects of prior discrimination

in that rank, with a goal of promoting minorities at a rate of

120% of their representation in the rank from which

promotions are made (firefighter), provided that the

firefighters promoted to engineer on the basis of affirmative

action had scores that were statistically indistinguishable

from those they passed over. Def. Ex. 6-2. And all such

firefighters had scores within the range of statistical

PERE renunernnnnenomemanneereamee

5

insignificance. Joyce Tr. 188. The vast majority of those

promoted were nonminorities. R. 116, Schedule A at 113.

Throughout its implementation of the affirmative action

policies adopted for use in connection with the seven

promotional examinations at issue in this litigation, the City

continued to review the affirmative action plan each time it

made promotions to ensure that those promotions remained a

narrowly tailored remedy for the continuing effects of prior

discrimination in the ranks to which promotions were made.

Joyce Tr. 123, 148, 163, 178, 189-90.

Historical Evidence of Discrimination: The district court

found that until the 1980s, the CFD had engaged in a

pervasive pattern of intentional discrimination against

African-Americans and Hispanics. Minority representation in

the CFD was artificially reduced by discriminatory hiring and

promotional practices and the existence of a hostile working

environment that deterred minorities from even seeking

employment with the CFD. The district court’s findings on

this point document the extent to which minorities were

discriminatorily excluded from hiring and promotion by the

CFD, and for that reason deserve to be set out at some length:

The evidence established that “purposeful

discrimination” was \the policy of the City’s Fire

Commissioner Robert J. Quinn during his tenure from

1957 to 1977. Commissioner Quinn, who only

grudgingly began integrating the CFD in 1965 after

complaints and public riots against the CFD’s racist

policies, made clear his racial and ethnic animus in

several ways. Commissioner Quinn referred to the

CFD’s integrated snorkel squads derogatorily as

“freedom wagons.” In the early 1970s, Commissioner

Quinn was explicit in his ethnically biased belief that

Hispanics as an ethnic group were not tall enough to

fight fires in Chicago. Commissioner Quinn also

expressed his resistance to racial integration to James

eka

6

Winbush, an African-American in the CFD and one of

the founders of the African-American Firefighters

League, who was known to Commissioner Quinn to be

concerned about the CFD’s racial discrimination and the

hiring and promotion of blacks:

“What are you worrying about them niggers for?

They’re only going to come in and screw up our job.”

During the 20 years of Commissioner Quinn’s term as

the head of the CFD, as the racial and ethnic population

of Chicago increased dramatically, the percentage of

minority CFD personnel remained stagnant at less than

5%. Consistent with Commissioner Quinn’s expressed

prejudices, the pattern of intentional past discrimination

by other City officials dealing with CFD applicants

continued through that same time period when City

officials used the pretext of physical deficiencies such as

“heart murmurs,” and “flat feet,” or pretextual job

requirements such as a minimal height requirement to

exclude minority applicants to the CFD. Alderman Leon

Depres testified at trial how from the mid-1960s to the

mid-1970s he continually complained to City officials,

including Commissioner Quinn, in writing and in person

about the racially discriminatory hiring, promotional and

other practices of the CFD to no avail. His complaints

were ignored as part of the City’s intentional pattern of

racial and ethnic discrimination. When the City in 1974

agreed to the entry of a consent decree in a lawsuit

brought by the Department of Justice, which established

an interim 50 percent minority (black and Hispanic)

hiring ratio and a long-range hiring goal to increase the

minority composition of the CFD, a hiring freeze was

put in effect at the CFD to preclude the consent decree’s

implementation. To avoid hiring minority firefighters,

the CFD hired no firefighters during 1974, 1975, and

1976, even though vacancies existed and funding was

7

available. Likewise, no promotions were made to any of

the CFD promotional ranks during this same period.

In the 1970s, the racial, and ethnic prejudices in the

CFD were known in Chicago’s minority communities,

and deterred potential minority applicants who believed

job opportunities at the CFD were not available to them.

Potential minority applicants also believed that minority

firefighters were not appreciated by the CFD because

minorities were given more unpleasant assignments than

whites. Potential minority applicants viewed firefighting

in the CFD as a “white man’s job” because of the CFD’s

intentional discrimination against minorities.

Even after the CFD hiring freeze was lifted in 1977

and the CFD started to hire minorities in greater

numbers than before, certain CFD officials still harbored

racial and ethnic bias. For example, at a CFD meeting

prior to the start of the 1977 training class, the CFD

Director of Personnel, who was white, said of minorities,

“they can make us hire them but they can’t make us keep

them.” At that meeting, another CFD official, who was

white, also said of minorities: “We’re not going to allow

them to take over this Department.”

It is undisputed that those African-Americans and

Hispanics who applied and were hired by the CFD

performed just as well as whites. In the late 1970s to the

early 1980s, those minority members of the CFD found

advancement to be slow compared to whites, and found

it difficult to obtain good assignments compared to their

white counterparts. There appeared to be a sequencing

of minorities in the CFD’s upper ranks. A minority

candidate for promotion would not be promoted to the

upper ranks unless another minority vacated the position.

Minorities were not given the same opportunity as

whites to take the responsibilities of a higher position,

and thereby gain experience that would help minorities

advance to the CFD’s upper ranks.

A way minorities were intentionally kept from

advancing in the CFD was that they received lower

promotional scores than whites through the use of

subjective efficiency ratings by CFD officials. These

subjective efficiency ratings were initially placed in the

promotional applicant’s scorecard in pencil by the

promotional applicant’s line supervisor. Efficiency

ratings were then altered as consideration of minority

applicants moved the CFD command structure. During

Commissioner Quinn’s term, he had the final say on

what efficiency mark a promotional applicant would

receive. Minorities historically received lower marks

than whites due to Commissioner Quinn’s intentional

discrimination against minorities. After Richard

Albrecht became fire commissioner in 1978, blacks

seeking promotion continued to receive subjective

performance efficiency ratings substantially lower than

whites ....

Because of the hiring and promotional freeze from

1974 to 1977, as well as normal attrition from the CFD,

by the late 1970s, the CFD was understaffed at all levels

of uniformed fire personnel. In the absence of fire

officers in certain of the upper ranks of the CFD during

this period, lower ranking fire personnel had to “act up”

or assume an officer duties above their assigned

rankings. These fire officers were not financially

compensated for the time when they acted up. Many

members of the CFD became dissatisfied with the

situation because the lack of manpower increased

injuries and fire related deaths and decreased the morale

of CFD firefighters. On February 14, 1980, most of the

CFD personnel went on strike.

9

In attempting to remedy the strike, during meetings

among City officials, Local 2 officials, African-

American firefighters, and others in 1980, Mayor Jane

Byrne had admitted that there had been discrimination in

the CFD against minorities and that she was going to

change things.

Pet. App. 129a-33a (citations omitted). The 1980 strike

produced a new collective bargaining agreement that called

for the use of affirmative action to remedy prior

discrimination. See Pet. App. 133a-35a.

Also in 1980, the United States filed its second lawsuit

attacking employment discrimination in the CFD, this time

challenging all of the promotional examinations then in use as

violative of Title VII of the Civil Rights Act of 1964, as

amended. Joyce Tr. 59-60. City officials concluded that they

would be unable to defend the lawfulness of the

examinations, and agreed to the entry of a consent decree

requiring the City to establish a long-range goal of promoting

minorities in sufficient numbers to make each promotional

rank more representative of the racial composition of the rank

from which promotions are made. Joyce Tr. 60-62, Tr. 3667-

69, 3672; Jt. Ex. H-11. The 1985 fire engineer, 1986

lieutenant, 1987 captain, and 1989 battalion chief

examinations were the first promotional examinations given

subsequent to this decree and, accordingly, the first

promotional examinations in which the City employed

affirmative action. Joyce Tr. 68, 101, 124, 164.

Statistical Evidence of the Continuing Effects of

Discrimination: At trial, Dr. Gerry Suchanek testified in

defense of the affirmative action plans as an expert in

economics, econometrics, and labor economics. Tr. 917-18;

Def. Ex. 17-8. Dr. Suchanek examined the composition of

the CFD workforce during the periods in which the

affirmative action plans at issue were in use in order to

determine whether minority representation in the CFD’s

10

_ upper ranks was artificially depressed as a result of prior

discrimination. Tr. 920-21, 982-85.

Dr. Suchanek opined that during the period of time that the

CFD engaged in discrimination against minorities, but for

discrimination, minorities would have applied to the

department in numbers at least equal to their representation in

the outside labor pool because the job required no special

qualifications and would have been economically desirable to

minorities. Tr. 1058-59, 1062. Moreover, applicant flow

data from the 1974, 1978, and 1985 entry-level examinations

demonstrated that minorities were qualified for employment

since the racial composition of applicants found qualified by

these examinations corresponded to the racial composition of

the outside labor pool. Tr. 1040-41, 1053; Def. Ex. 17-11.

To determine the rate at which minorities would have been

hired prior to 1974 absent discrimination, Dr. Suchanek first

identified the racial composition of the qualified and

interested outside labor pool during the period of time that the

CFD engaged in discrimination. Tr. 987, 989, 1005; Def. Ex.

17-1 at 8. Then, Dr. Suchanek examined the hiring rate

between 1985 and 1994, because during this period prior

discriminatory barriers had been significantly reduced, if not

eliminated. Tr. 1150. He used this analysis in order to

account for minority interest in and qualifications for

employment and then, finding that the minority hiring rate

under this analysis was somewhat lower than minority

representation in the outside labor pool, calculated a

discounted minority hiring rate to account for the fact that

even during a nondiscriminatory period, minorities were

somewhat less likely than nonminorities to have been hired

by the CFD. Tr. 1156-59. He referred to this discounted

minority hiring rate as the “sustainable hire rate,” which

reflected a minimum estimate of the minority representation

in the qualified and interested labor pool. Tr. 1151-52. He

considered the rate sustainable because CFD data showed no

ee

significant differences in attrition rates based on race. Tr.

1153-54. Using this sustainable hire rate, Dr. Suchanek then

determined that African-Americans and Hispanics were

grossly underrepresented in the CFD as a whole and in each

promotional rank from 1950 through 1997. Tr. 981, 1094,

4613-14, 4626-36; Def. Exs. 17-1, 17-3, 17-4, 17-27, 17-28.

He could identify no nondiscriminatory explanation for this

pattern of under-representation. Tr. 982, 2782-83. These

disparities persisted through 1993 in the CFD in the ranks of

engineer, lieutenant, captain, and battalion chief. Tr. 4629-

30, 4635-36.

Dr. Suchanek also identified two reasons for the continued

underrepresentation of minorities in the upper ranks of the

CFD into the 1990s. First, because most individuals who had

been eligible to take the promotional examinations had been

hired by the CFD at a time at which it engaged in entry-level

discrimination, the pool of promotional candidates was

artificially white. Tr. 2028-42. Second, his statistical

analysis demonstrated that, until 1985, on average, even those

minorities who had been hired were not promoted as quickly

as nonminorities. Tr. 3045-46, 4650-51, 4670; Def. Ex. 17-

26. Dr. Suchanek could find no _ nondiscriminatory

explanation for this disparity. Tr. 2892-93; Def. Ex. 17-13,

17-27.

The District Court’s Decision: In its findings of fact and

conclusions of law following trial, the district court credited

Dr. Suchanek’s analysis, finding that even when the minority

hiring rate was discounted to reflect minorities’ interest in

and qualifications for employment, the evidence

demonstrated. gross statistical underrepresentation of

minorities within the ranks of the CFD “that constitute[s}

proof of a pattern of past intentional discrimination within the

CFD.” Pet. App. 143a. The district court also found that the

effects of this prior discrimination continued to be felt when

the promotions at issue were made, because most of the pool

12

of incumbents eligible to take the promotional examinations

at issue had been hired during a period of time in which the

CFD engaged in intentional hiring discrimination against

minorities (Pet. App. 143a-46a), and because the statistical

evidence reflected that minority representation at all ranks of

the CFD was lower than it would have been had there been no

prior discrimination (Pet. App. 146a-52a).

The district court further found that the affirmative action

plans at issue were a narrowly tailored remedy. It found that

the CFD had no race-neutral alternative available to it to

redress the continuing effects of prior discrimination in its

upper ranks, since rank-order use of the promotional

examinations at issue would not have permitted the CFD to

take meaningful remedial action. Pet. App. 153a. The court

also found that each of the affirmative action plans were

based on a “credible assessment of the need for the

affirmative action plan recommended after the results of each

examination were analyzed ....” Jbid. The district court

separately analyzed each group of promotions at issue and

concluded that they were within the bounds of a narrowly

tailored remedy for prior discrimination by redressing the

shortfall in minority representation in the upper ranks due to

prior discrimination, even when measured by a lowest-

plausible bound estimate of the shortfall, while ensuring that

ample promotional opportunities remained for nonminorities

and that no meaningful difference existed between the

qualifications of affirmative action promotees and the

nonminorities they passed over. Pet. App. 152a-76a.

The Decision of the Court of Appeals: Affirming the

judgment of the district court, the court of appeals first

rejected petitioners’ argument that the district court’s analysis

of the rates at which minorities would have been hired and

promoted absent prior discrimination was flawed, concluding

that there was no evidentiary support for their claim that the

CFD required special qualifications for hiring and promoting

13

firefighters that minorities lacked. Pet. App. 3a-5a. The

court also rejected petitioners’ argument that narrow tailoring

requires nonminorities to be protected against any adverse

effects of affirmative action either by being offered financial

compensation or additional promotions. Pet. App. 10a-12a.

While the court of appeals acknowledged that an affirmative

action plan may not unduly burden nonminorities, an undue

burden is not present when “the only complaint is about a

modest delay in promotion.” Pet. App. 12a.

ARGUMENT

It is well settled that the Equal Protection Clause permits

state and local governments to use narrowly tailored

affirmative action to eradicate the continuing effects of their

own prior discrimination. And the district court’s detailed

findings make clear that this settled principle was correctly

applied here. The district court identified not only prior

intentional discrimination in the CFD but also the effects of

that prior discrimination that continued up to the time the

promotions at issue in this case were made. Based on those

findings, the court of appeals’ conclusion that Chicago may

undertake affirmative action until those effects have been

eradicated was wholly unremarkable. That holding represents

the application of settled principles of equal protection

jurisprudence to the particular facts of this case. It is also

consistent with the rulings of all other circuits to examine this

question. Moreover, the highly fact-bound question whether

the district court’s findings enjoy sufficient evidentiary

support is one of little general significance. While there may

well be considerable uncertainty about the extent to which the

Equal Protection Clause permits the government to use

affirmative action in order to remediate discrimination against

minorities in the private sector, a question this Court faces

this Term in Adarand Constructors, Inc. v. Mineta (No. 00-

730), this case does not present that problem. This case

involves only settled principles concerning a_ public

14

employer's ability to remediate its own prior discrimination

through affirmative action. Accordingly, it does not merit

plenary review.

1. The district court found that the CFD had engaged in

decades of discrimination against African-Americans and

Hispanics. This discriminatory course of conduct produced

underrepresentation of minorities in the upper ranks of the

CFD that continued to the time of the promotions at issue in

this case.

The district court identified two causes of the minority

underrepresentation in the upper ranks. First, minority hiring

was depressed through the use of pretextual hiring practices

and the existence of a racially hostile workplace that deterred

minority applicants. See Pet. App. 129a-3la, 140a-43a.

This, in turn, resulted in underrepresentation of minorities in

the promotional ranks as well, since “[d]iscrimination at the

entry level necessarily precluded [minorities] from competing

for promotions .. . .” United States v. Paradise, 480 U.S.

149, 168 (1987) (plurality opinion). Accord, e.g., Boston

Police Superior Officers Federation v. City of Boston, 147

F.3d 13, 20-21 (Ist Cir. 1998); Ensley Branch, NAACP v.

Seibels, 31 F.3d 1548, 1567 (11th Cir. 1994); Stuart v.

Roache, 951 F.2d 446, 450-52 (Ist Cir. 1991), cert. denied,

504 U.S. 913 (1992). See also Pet. App. 143a-49a. Second,

discriminatory promotional practices further reduced minority

representation in the upper ranks. See Pet. App. 131a-32a,

142a-43a. Accordingly, when the affirmative action plans at

issue were adopted, minority underrepresentation in the upper

ranks of the CFD was not the result of merit-based procedures

that accurately assessed the qualifications and interests of

minorities for advancement in the CFD, but instead was the

product of a pervasive and decades-long effort to exclude

minorities from joining and advancing in the CFD. —

The district court also found that affirmative action

provided the only means available to prevent the CFD’s

15

hierarchy from remaining artificially white for another

generation—until all the incumbents hired and promoted

under the prior, discriminatory regime had retired. See Pet.

App. 152a-54a. By departing from strict rank-order use of

promotional examination results, the plans made meaningful

progress toward making racial representation of the upper

ranks more reflective of what it would have been absent prior

discrimination, but without taking measures so aggressive as

to unduly trammel the interests of nonminorities.

Petitioners attack the ability of a public employer to redress

the continuing effects of its own prior discrimination by

claiming that the Equal Protection Clause forbids public

employers from undertaking any form of remedial action, no

matter how narrowly tailored and no matter how pervasive

and extreme the prior discrimination was, once discrimination

has ceased. Thus, they argue that affirmative action may

“endure only until a validated examination process was in

place... .” Pet. 13. According to petitioners, the CFD,

having finally designed and administered nondiscriminatory

examinations in the mid-1980s pursuant to court order, could

take no further steps to ameliorate the continuing effects of

prior discrimination within its upper ranks. This position is

wholly unsupported by the decisions of this Court, and has

been rejected by every circuit to consider it.

This Court has consistently taken the view that the Equal

Protection Clause permits the government to take affirmative

action to redress the continuing effects of prior discrimination

even after it has ceased. As the Court wrote in Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995): “The

unhappy persistence of both the practice and the lingering

effects of racial discrimination against minority groups is an

unfortunate reaiity, and the government is not disqualified

from acting in response to it.” /d. at 237 (emphasis supplied).

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

518 (1989) (Kennedy, J., concurring in part and concurring in

16

the judgment) (“the State has the power to eradicate racial

discrimination and its effects in both the public and private

sectors and the absolute duty to do so where those wrongs

were caused intentionally by the State itself’). Indeed, the

Equal Protection Clause recognizes that the government has a

compelling interest “in eradicating the effects of past racial

discrimination.” Shaw v. Reno, 509 U.S. 630, 656 (1993).

Cf. United States v. Virginia, 518 U.S. 515, 547 (1996) (“A

proper remedy for constitutional exclusion . . . aims to

‘eliminate [so far as possible] the discriminatory effects of the

past’ and ‘to bar discrimination in the future.’” (quoting

Louisiana v. United States, 380 U.S. 145, 154 (1965)

(brackets in original)).

Precisely because a public employer has this compelling

remedial interest, it follows that “[a] state’s interest in

remedying the effects of past or present racial discrimination

may in the proper case justify the use of racial distinctions.”

Shaw v. Hunt, 517 U.S. 899, 909 (1996). Accord, e.g., Miller

v. Johnson, 515 U.S. 900, 922 (1995); Shaw v. Reno, 509

U.S. at 656; Croson, 488 U.S. at 509 (plurality opinion);

Wygant v. Jackson Board of Education, 476 U.S. 267, 277

(1986) (plurality opinion).’ That principle is fully applicable

* Petitioners correctly observe that Justice Scalia has endorsed their

view that the government may never use affirmative action to redress the

continuing effects of prior discrimination. See Adarand, 515 U.S. at 239

(Scalia, J., concurring in part and concurring in the judgment); Croson,

488 U.S. at 520-21 (Scalia, J., concurring in the judgment). But Justice

Scalia is the only member of the Court ever to have taken this position. In

Adarand, for example, seven members of the Court rejected Justice

Scalia’s view. See 515 U.S. 237; id at 259-64 (Stevens, J., dissenting);

id. at 269-71 (Souter, J., dissenting); id at 273-74 (Ginsburg, J..

dissenting). And in Croson, eight justices rejected this view. See 488

U.S. at 509 (plurality opinion); id. at 511 (Stevens, J., concurring in part

and concurring in the judgment in part); id at 518-19 (Kennedy, J.,

concurring in part and concurring in the judgment in part); id at 555-61

(Marshall, J., dissenting). Petitioners are also correct that the affirmative

action measures that the Court upheld in Paradise and Local No. 28 of the

17

here, since rank order use of the promotional lists at issue

would have failed to redress continuing minority

underrepresentation in the CFD’s upper ranks, and hence, as

the district court found, no remedy was possible without

affording minorities some promotional preference. See Pet.

App. 152a-54a. |

Nor has petitioners’ view enjoyed favor in the lower courts.

In fact, no fewer than seven circuits have upheld affirmative

action measures under strict scrutiny that continued to

provide relief even after nondiscriminatory hiring or

promotional practices had been implemented. See, e¢.g., Pet.

App. 10a-12a; Majeske v. City of Chicago, 218 F.3d 816,

823-24 (7th Cir. 2000), cert. denied, 531 U.S. 1079 (2001);

Boston Police, 147 F.3d at 23-25; McNamara v. City of

Chicago, 138 F.3d 1219, 1224 (7th Cir.), cert. denied, 525

U.S. 981 (1998); Edwards v. City of Houston, 37 F.3d 1097,

1112-15 (Sth Cir. 1994), vacated on other grounds en banc,

78 F.3d 983 (1996); Peightal v. Metropolitan Dade County,

26 F.3d 1545, 1557-62 (11th Cir. 1994); Jansen v. City of

Cincinnati, 977 F.2d 238, 242-44 (6th Cir. 1992), cert.

denied, 508 U.S. 911 (1993); Mackin v. City of Boston, 969

F.2d 1273, 1278 (1st Cir. 1992), cert. denied, 506 U.S. 1078

(1993); Stuart, 951 F.2d at 453-55; Donaghy v. City of

Omaha, 933 F.2d 1448, 1460-61 (8th Cir. 1991), cert.

denied, 508 U.S. 1059 (1992); Davis v. City and County of

San Francisco, 890 F.2d 1438, 1446-47 (9th Cir. 1989),

Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421

(1986), envisioned affirmative action only as an interim measure until

nondiscriminatory hiring or promotional procedures had been devised, but

even petitioners do not claim that those decisions held that the

Constitution prohibits remedial action subsequent to the implementation

of such nondiscriminatory measures. Indeed, in Paradise the dissenters

argued that the affirmative action plan at issue was not a narrowly tailored

remedy precisely because it would not remain in effect once

nondiscriminatory promotional procedures were adopted. See 480 U.S. at

198 (O’Connor, J., dissenting).

18

cert. denied, 498 U.S. 897 (1990); Howard v. McLucas,

871 F.2d 1000, 1008-11 (11th Cir.), cert. denied, 493

U.S. 1002 (1989).

To be sure, the CFD’s efforts to remediate prior

discrimination lasted for a significant period of time after

discrimination in the CFD ceased. Nevertheless, petitioners

make no effort to put this fact in context. The CFD had

discriminated against minorities for decades, creating massive

minority underrepresentation in its upper ranks. Because

appropriately tailored affirmative action must work modestly

in order to avoid unduly trammeling the interest of

nonminorities, remedial affirmative action necessarily

operates slowly. Accordingly, the effects of prior

discrimination continue to be felt for many decades in an

institution such as the CFD.* Precisely because the careers of

firefighters (especially those who are promoted into the upper

ranks) last for decades, prior discrimination will have

continuing effects for decades as well—as long as those hired

and promoted under the prior discriminatory regime remain

on the force. See, e.g., Paradise, 480 U.S. at 168 (plurality

opinion); Boston Police, 147 F.3d at 20-21; McNamara, 138

F.3d at 1224; Ensley Branch, 31 F.3d at 1567; Stuart, 951

F.2d at 450-52.

In short, there is nothing remarkable about the affirmative

action plans at issue here, even in terms of their duration.

* In an effort to expedite relief to some extent, the CFD utilized goals

slightly above minority representation in the ranks eligible for

promotion—first a goal of 20% African-American and 5% Hispanic

promotions, and later goals representing 120% of minority composition

in the rank below. In Paradise, a majority of the Court agreed that

strict scrutiny can permit a goal somewhat higher than minority

representation in the rank below in order to expedite relief. See 480

U.S. at 179-80 (plurality opinion); id at 199-200 (O’Connor J.,

dissenting). In this litigation, petitioners have never attacked the num-

erical goals as excessive.

19

The Constitution does not require affirmative action to cease

as soon as discrimination ceases; it would scarcely be

affirmative action if it did. Instead, narrowly tailored

affirmative action is permissible as long as the effects of prior

discrimination continue. And contrary to petitioners’ claim

(Pet. 13-14), the decision below does not endorse unlimited

affirmative action; it requires that affirmative action “cease at

the point at which the consequences of the past discrimination

have substantially dissipated.” Pet. App. 6a. The district

court’s detailed findings demonstrate that the affirmative

action plans at issue here were consistent with this rule,

which is, in turn, consistent with the decisions of this Court

and at least six other circuits. Plenary review is not warranted

on this ground.

2. Petitioners also claim that the affirmative action plans

at issue were not narrowly tailored because they contain no

provision “for ‘the planned duration of the remedy.’” Pet. 15

(emphasis in original) (quoting Fullilove v. Klutznick, 448

U.S. 448, 510 (1980) (Powell, J., concurring)). Petitioners

acknowledge that the affirmative action plans expired by their

terms at the conclusion of “the ‘anticipated three year life’ of

an eligibility list” (Pet. 16), but disparage this as meaningless

“boiler-plate language.” Jbid. What we have said above,

however, largely answers this claim as well.

As we explain above, when minority underrepresentation

resulting from prior discrimination is pervasive and

longstanding, it may take many years to eliminate the

continuing effects of that discrimination. In this case, the

district court found that all of the affirmative action

promotions at issue were made when minority under-

representation stemming from prior discrimination persisted

in the CFD. See Pet. App. 152a-76a. The court of appeals

subsequently concluded that the record supported the district

court’s findings on this point. See Pet. App. 6a-7a. And the

test employed by the court of appeals to assess narrow

tailoring was correct-precisely because the Equal Protection

20

Clause permits public employers to redress the continuing |

effect of prior discrimination, the “logical stopping point” for |

remedial action (Pet. 16) is “when the consequences of the

past discrimination have substantially dissipated.” Pet. App. -

6a. Indeed, the court of appeals added that the requirement

of narrow tailoring “means that as few white firefighters

should have their promotions delayed to make way for blacks

and Hispanics as is consistent with remedying the lingering

effects of the fire department’s long history of racial

discrimination.” Pet. App. lla. As we explain above, this

approach is consistent with this Court’s decisions and the law |

in all other circuits that address this point. Thus, while the |

CFD continued to engage in affirmative action even after the

initial non-rank-order promotions had been made as

envisioned by Commissioner Hoskins’ 1987 affirmative |

action plans for engineer and captain, and by Commissioner

Carr’s 1989 affirmative action plan for battalion chief, and his |

1992 affirmative action plan for lieutenant, this occurred not |

because affirmative action in the CFD is interminable, but |

because the effects of prior discrimination continued to

be felt.”

la any event, petitioners’ claim that affirmative action in

the CFD has exceeded proper remedial bounds accordingly

raises, at best, an entirely fact-bound dispute that is subject to

only limited review at this stage of the litigation. While

petitioners accuse the CFD of “continuous overreaching”

(Pet. 17), the district court found that the affirmative action

plans served a proper remedial purpose, and that finding was

sustained on appeal. See Pet. App. 6a. Findings of fact

should be respected on appeal unless they are clearly

* Petitioners’ claim that Dr. Suchanek testified that affirmative action

would be necessary until 2010 or 2015 (Pet. 8) is inaccurate. He testified

that as of 1985, “closure” would take 15 to 20 years, predicated on a

number of assumptions. Tr. 2290.

Ne A ER ee: ee

21

erroneous. See Fed. R. Civ. P. 52(a).° And this Court is

especially reluctant to review factual findings that have

already been sustained by a reviewing court. See, e.g., Exxon

Co., U.S.A. v. Safee, Inc., 517 U.S. 830, 840-41 (1996);

Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987);

United States v. Doe, 465 U.S. 605, 614 (1984). Accord-

ingly, petitioners’ complaints about the duration of affirm-

ative action are particularly inappropriate for plenary review.

The fact-bound question whether the district court’s findings

on the duration of affirmative action in the CFD are supported

by the record is of no general significance either.’ For these

reasons, petitioners’ claim does not merit this Court’s review.

® The question whether a public employer has engaged in

discrimination is an issue of fact that should be reviewed deferentially

on appeal. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564,

573-76 (1985). Cf. City of Pleasant Grove v. United States, 479 U.S. 462,

469-70 (1987) (findings that municipality’s proposed annexation were

racially motivated are reviewed deferentially on appeal). Indeed, the

circuits to consider the question have unanimously held that even under

strict scrutiny, a district court’s factual findings should be overturned only

if clearly erroneous. See, e.g., Scott Construction Co. v. City of Jackson,

199 F.3d 206, 211 (Sth Cir. 1999); Engineering Contractors Association

of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895, 903

(11th Cir. 1997), cert. denied, 523 U.S. 1004 (1998); Contractors

Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d

586, 596 (3d Cir. 1996), cert. denied, 519 U.S. 1113 (1997).

” The fact-bound nature of this inquiry is illustrated by contrasting this

case with those cited by petitioners. In Middleton v. City of Flint, 92 F.3d

396 (6th Cir.), cert. denied, 520 U.S. 1196 (1996), the affirmative action

promotional plans at issue had lasted even after minority composition at

the promotional rank had exceeded minority composition in the rank

below. See id. at 411. Here, the district court found that in all the ranks at

issue, minorities remained underrepresented at the higher rank as a result

of prior discrimination when compared to minority representation in the

ranks below. See Pet App. 146a-52a, 154a-76a. In Dallas Firefighters

Association v. City of Dallas, 150 F.3d 438 (Sth Cir. 1998), cert. denied,

528 U.S. 1038 & 1046 (1999), the court concluded that affirmative action

was unjustified when “(t]he record is devoid of proof of a history of

22

3. Petitioners make an even narrower and even more

fact-bound argument when they attack the district court’s

reliance on Dr. Suchanek’s testimony, accusing him of

improperly presenting a “proportional hiring model” that

assumes minorities should be hired and promoted in direct

proportion to their representation in the outside workforce.

See Pet. 20. But as we explain above, Dr. Suchanek did not

advocate a “proportional hiring model,” nor did the district

court embrace such an approach. Instead, Dr. Suchanek’s

analysis accounted for the somewhat reduced minority

interest in and qualification for employment with the CFD

that he found. Accordingly, his model acknowledged that

even in a nondiscriminatory system, minorities would have

been hired and promoted by the CFD at somewhat lower rates

than nonminorities. See Pet. App. 136a-43a.°

Petitioners also endeavor to impeach Dr. Suchanek’s

analysis by claiming that the results of a 1995 entry-level

examination demonstrate that absent prior discrimination only

egregious and pervasive discrimination or resistence to affirmative action

that has warranted more serious measures in other cases.” /d. at 411

(footnote omitted). Here, however, the district court found a pervasive

history of discrimination that had produced enormous minority

underrepresentation in the upper ranks of the CFD. See Pet. App. 129a-

52a. Finally, in both Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir.

1994) (en banc), and /n re Birmingham Reverse Discrimination

Employment Litigation, 20 F.3d 1525 (11th Cir. 1994), cert. denied, 514

U.S. 1065 (1995), the employer could have developed race-neutral

mechanisms in order to ameliorate, if not eliminate, minority

underrepresentation. See Aiken, 37 F.3d at 1164; Birmingham, 20 F.3d at

1546-47. Here, the district court found that no race-neutral alternative

was available that could have redressed the continuing effects of prior

discrimination. See Pet. App. 152a-54a.

® Petitioners are equally wrong to claim that the district court rejected

Dr. Suchanek’s testimony by utilizing a downward adjustment for_the

expected minority representation in each promotional rank. See Pet. 19.

In fact, this was precisely the approach that Dr. Suchanek had taken in his

testimony. See Pet. App. 137a-38a, 142a-43a.

23

| 20% of those hired by the CFD would have been minorities.

See Pet. 20-21. But as the court of appeals correctly

observed, petitioners produced no evidence that this

examination adequately reflected what the rate of minority

hiring would have been in earlier decades absent

discrimination. See Pet. App. S5a-6a. Indeed, the evidence

showed that the 1995 examination was of a different

character from those used in prior years. In 1995, for the

first time, the CFD created separate pools of “well qualified”

and “qualified” candidates based on the examination results.

E.g., Tr. 2290. Moreover, petitioners’ 20% figure is quite

misleading in and of itself. That figure represents minority

representation in the pool of those deemed “highly qualified”

by that examination, but all those who received a score of

“qualified” were eligible for employment. Indeed, we are

informed that since the trial of this case was completed, the

CFD nearly exhausted the “well qualified” pool, and

accordingly will commence hiring from the “qualified” pool.

And when the qualified pool is examined, it is consistent with

Dr. Suchanek’s analysis: minorities constituted 47% of the

candidates found qualified under the 1995 examination (Def.

Ex. 17-11), and the sustainable minority hiring rate identified

by Dr. Suchanek and embraced by the district court was only

41-42%. See Tr. 1151-53; Def. Ex. 17-4 at 22. See also Pet.

App. 137a-38a, 142a-43a. Thus, the rate at which minorities

were found qualified by the 1995 entry-level examination did

nothing to impeach Dr. Suchanek’s analysis, which if

anything is more conservative than warranted in light of the

1995 examination results.

In any event, petitioners make no effort to explain why

their attacks on Dr. Suchanek’s analysis merit plenary review.

The soundness of the district court’s reliance on

Dr. Suchanek’s testimony surely presents no question of

general significance. And as we explain above, this Court is

especially reluctant to review the findings of a district court

24

that have already been sustained on appeal, as the findings

here have seen.

4. Petitioners briefly allude to the pendency of Adarand

before this Court, suggesting that the decision in that case

may somehow bear on this one. See Pet. 16 n.10. In fact, the

issues raised here are wholly distinct from those raised in

Adarand.

At issue in Adarand is whether the federal government

may utilize contracting preferences for minority-owned

businesses as a remedy for discrimination against such

businesses in the private sector. See Adarand Constructors,

Inc. v. Slater, 228 F.3d 1147, 1167-76 (10th Cir. 2000), cert.

granted sub nom. Adarand Constructors, Inc. v. Mineta, 121

S. Ct. 1401 (2001) (No. 00-730). Whatever uncertainties may

exist about the power of the government to remediate

discrimination in the private sector through affirmative

action, it is well settled that the Equal Protection Clause

permits the use of affirmative action to remediate the

government’s own discrimination, as we explain above. And

in any event, Adarand does not provide the Court with

occasion to reexamine its precedents on that point.

For their part, petitioners suggest only that Adarand may

bear on the arguments they advance relating to “the

durational limits [of affirmative action] under strict scrutiny.”

Pet. 16 n.10. In fact, in Adarand the only argument made

along those lines is a claim that the federal program at issue is

of effectively unlimited duration because it lacks provisions

for removing minority groups from contracting preferences

once the effects of prior discrimination have dissipated. See

Petitioners’ Brief on the Merits at 47-49 (No. 00-730). Here,

however, not only do the affirmative action plans expire by

their own terms, but the district court’s detailed findings

demonstrate that all of the promotions at issue served a proper

remedial purpose. There may well be many difficulties in

reconciling a nationwide contracting program that does not

25

require an individualized finding that each preference it

awards serves a remedial purpose with the dictates of strict

scrutiny, but the application of strict scrutiny to employment

cases such as this one is clear. When discrete promotions are

at issue, the Constitution is satisfied where the promotions

have been found to serve a proper remedial purpose, and

affirmative action will “cease at the point at which the

consequences of the past discrimination have substantially

dissipated.” Pet. App. 6a.

Petitioners appear to recognize that Adarand does not bear

in any direct way on this case; even they do not ask that their

petition be held until the decision in that case is announced.

Nor is there any reason to do so. This massive litigation has

remained pending long enough, generating enormous

uncertainty in the careers of hundreds of CFD officials who

might gain or-lose promotions based on its outcome, and

exposing Chicago’s taxpayers to huge potential backpay

liabilities. There is no basis for prolonging this litigation

merely to await resolution of the wholly distinct issues before

the Court in Adarand. :

26

CONCLUSION

For the preceding reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

MARA S. GEORGES

Corporation Counsel

of the City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation

Counsel

MARDELL NEREIM

Assistant Corporation Counsel

City Hall, Room 600

121 North LaSalle Street

Chicago, Illinois 60602

(312) 744-5337

* Counsel of Record Attorneys for Respondent

September 28, 2001