Hammon v. Barry

¶1concurring:

¶2I concur in Judge Starr’s statement but write separately because I admit I am uncertain as to the meaning of “manifest imbalance,” the imprecise term used by the Supreme Court interpreting Title VII of the Civil Rights Act in Johnson v. Transportation Agency, — U.S. -, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987).1 Certainly we should ordinarily avoid constitutional issues if we can resolve a case on statutory grounds, but our first obligation as judges, I suppose, is to be as confident as we can that we are correct in our reasoning, and I believe the constitutional limits on the use of racial preferences by government employers are — in the aftermath of Johnson—more easily applied than is Title VII. Moreover, the dissent correctly observes that our initial opinion treated the constitutional and statutory cases interchangeably, see Hammon v. Barry, 813 F.2d 412, 420 (D.C.Cir.1987), and squarely relied on the Constitution to hold illegal the District’s *10purpose (compliance with a D.C. proportional representation law) in adopting its affirmative action plan. See id., at 430-31. I think then, our proper course is to continue to rely, as I do, on both Title VII and the Constitution.

¶3I.

¶4First, however, I need confront the issue that we raised sua sponte at oral argument on petitioner’s request for rehearing and to which supplemental briefs were directed: Does the United States have standing to challenge the constitutionality of the District of Columbia’s affirmative action plan? 2 The Attorney General’s lawsuit alleged that the District of Columbia Fire Department’s affirmative action plan (the “plan”) violates both the substantive provisions of Title VII and, at the same time, violates the equal protection component of the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The government’s theory — that the plan is designed to achieve an impermissible goal and excessively infringes upon the rights of innocent whites — arguably makes out both a Title VII violation and a constitutional violation. Indeed, when the Attorney General brought his suit, it might have been thought that Title VII and the Constitution imposed identical tests for evaluating the legality of race-conscious hiring plans; it was not until Johnsonthat this view was called into question.

¶5As authority for this suit, the Attorney General relied on 42 U.S.C. § 2000e-6 (1982), a section of the Civil Rights Act of 1964 (“1964 Act”) granting the Attorney General authority to bring “pattern or practice” discrimination suits. Section 2000e-6 provides:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII], and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action ... requesting such relief ... as he deems necessary to insure the full enjoyment of the rights herein described.

¶642 U.S.C. § 2000e-6(a) (1982) (emphasis added). The rights the Attorney General may “insure” by bringing suit include an individual's right to be free from discrimination by employers “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2 (1982).

¶7An early draft of the 1964 Act would have authorized the Attorney General to institute civil actions to redress the denial of any right, privilege, or immunity secured by the Constitution or laws of the United States. See H.R. Rep. No. 914, 88th Cong., 1st Sess. 81 (1963); see also id. at 41 (additional views of Rep. Kastenmeier). But at a Judiciary Committee hearing in 1963, Attorney General Robert Kennedy testified against this broad grant of litigating authority:

[The proposal] would extend to claimed violations of constitutional rights in State criminal proceedings or in book or movie censorship; disputes involving church-state relations; economic questions such as allegedly confiscatory ratemaking or the constitutional requirement of just compensation in land acquisition cases; the propriety of incarceration in a mental hospital; searches and seizures; and controversies involving freedom of worship, or speech, or of the press.

Obviously, the proposal injects Federal executive authority into some areas which are not its legitimate concern____

¶8Id. at 82 (Minority Report). In an effort to narrow the Attorney General’s litigating authority to those matters specifically ad*11dressed by the 1964 Act, this expansive proposal was dropped from the bill. The Attorney General was instead given a more limited authority; specific sections of the Act now permit him to bring suits to protect only those rights specifically guaranteed by the Act. One of these provisions, section 2000e-6, allows the Attorney General to bring suit to protect those employment rights ensured by Title VII.

¶9The question, then, is whether this authority permits the Attorney General to challenge a discrete employment practice of the District of Columbia on both Title VII and constitutional grounds. The answer turns on congressional intent — what kind of rights did Congress intend section 2000e-6 to protect? Between 1964 and 1972, the answer to this question was fairly clear. The 1964 version of Title VII “was enacted pursuant to the commerce power to regulate purely private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments.” United Steel Workers of America v. Weber, 443 U.S. 193, 206 n. 6, 99 S.Ct. 2721, 2729 n. 6, 61 L.Ed.2d 480 (1979). But when Congress passed the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261 (“1972 Act”), it amended Title VII to protect, for the first time, employees of state and local governments. In so doing, Congress emphasized its intent to ensure to these employees their constitutional right to equal protection. The Senate, for its part, declared:

The Constitution is imperative in its prohibition of discrimination by State and local governments. The Fourteenth Amendment guarantees equal treatment of all citizens by States and their political subdivisions____ It is clear that the guarantee of equal protection must also extend to such direct action as discriminatory employment practices.

The Committee believes that it is an injustice to provide employees in the private sector with the assistance of an agency of the Federal Government in redressing their grievances while at the same time denying [similar assistance] to State and local government employees. The last sentence of the Fourteenth Amendment, enabling Congress to enforce the Amendment’s guarantees by appropriate legislation is frequently overlooked, and the plain meaning of the Constitution allowed to lapse. The inclusion of State and local government employees within the jurisdiction of Title VII guarantees and protections will fulfill the Congressional duty to enact the “appropriate legislation ” to insure that all citizens are treated equally in this country.

¶10S. Rep. No. 415, 92d Cong., 1st Sess. 10-11 (1971) (emphasis added). The House of Representatives expressed the same view in similar language:

The expansion of Title VII coverage to State and local government employment is firmly embodied in the principles of the Constitution of the United States.

Legislation to implement this aspect of the Fourteenth Amendment is long overdue, and the committee believes that an appropriate remedy has been fashioned in the bill.

¶11H.R. Rep. No. 238, 92d Cong., 1st Sess. 19 (1971) (emphasis added). Whatever the purpose of Title VII in 1964, the legislative history of the 1972 Act makes plain that Congress intended Title VII as a vehicle to attack employment discrimination allegedly violating either Title VII alone or both Title VII and the Constitution. I think it follows that Congress intended the Attorney General to use his section 2000e-6 litigating authority to assert that the same governmental conduct arguably violating Title VII also violates the Constitution.

¶12The Supreme Court had little difficulty recognizing the Attorney General’s standing on three occasions in the early 1960s when he invoked statutory authority under the Civil Rights Act of 1957, 42 U.S.C. § 1971(a) (1982), to support a suit challenging a state’s voting practices as violating both section 1971(a) and the Constitution. Section 1971(a), like section 2000e-2 of Title VII, is broadly written, providing that “[a]ll citizens of the United States who are otherwise qualified by law to vote ... shall be entitled and allowed to vote ... without *12distinction of race, color, or previous condition of servitude.” In United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965), the Attorney General challenged as discriminatory that state’s voting practices under both section 1971(a) and the Fourteenth and Fifteenth Amendments and Article I of the United States Constitution. He rested his authority to bring these claims on section 1971(c) of the 1957 Act, which provides:

Whenever any person has engaged ... in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute ... in the name of the United States, a civil action____

¶1342 U.S.C. § 1971(c) (1982). Although, like section 2000e-6, this provision does not explicitly allow the Attorney General to employ a constitutional theory to challenge the practices forbidden by the statute, the Supreme Court held that section 1971(c) provides “express congressional authorization for the United States to file a suit precisely of this kind.” 380 U.S. at 136, 85 S.Ct. at 812; accord Louisiana v. United States, 380 U.S. 145, 151, 85 S.Ct. 817, 821, 13 L.Ed.2d 709 (1965) (section 1971(c) allows the Attorney General to bring suit to protect the voting rights of blacks guaranteed by section 1971(a) and the Fourteenth and Fifteenth Amendments); United States v. Alabama, 362 U.S. 602, 604, 80 S.Ct. 924, 926 4 L.Ed.2d 982 (1960) (allowing suit under section 1971(c) for violation of section 1971(a) and Fifteenth Amendment).

¶14The Supreme Court has recently warned us, to be sure, not to equate for all purposes the statutory prohibitions of Title VII with the constitutional prohibitions against racial discrimination. See Johnson, 107 S.Ct. at 1449-50 n. 6. Indeed, the Court suggested, as I discuss below, that Title VII may permit certain affirmative action practices that the Constitution forbids. Id.But although the standards for determining if an employment practice violates Title VII of the Constitution seem now to differ, nothing the Court has said suggests that the Attorney General’s section 2000e-6 litigating authority may not be used to challenge an employment practice that arguably violates both standards.

¶15Thus, although it is doubtful whether the Attorney General would have standing, absent statutory authority, to bring a naked constitutional action against the District of Columbia, see United States v. City of Philadelphia, 644 F.2d 187, 199-201 (3d Cir.1980), reh’g denied, 644 F.2d 206 (3d Cir.1981); United States v. Solomon, 563 F.2d 1121, 1126-29 (4th Cir.1977),3 1 think it clear the Attorney General's authority under section 2000e-6 to bring Title VII “pattern or practice” claims permits him to argue in the same suit that the District of Columbia’s hiring practices also violate related constitutional provisions.

¶16II.

¶17The constitutional issue — presented, in my view, quite starkly in this case — is whether the District of Columbia may insist on proportional representation of blacks in government employment without violating the equal protection component of the Fifth Amendment’s due process clause.4 The answer, if drawn from recent Supreme Court constitutional decisions, seems clearly “no.” Race-conscious employment policies on the part of government are permissible to remedy discrimination, see United States v. Paradise, — U.S. -, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (Brennan, J.); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986) (Powell, J.), or, at least, the existing direct effects *13of past discrimination. Cf. Fullilove v. Klutznick, 448 U.S. 448, 477-78, 100 S.Ct. 2758, 2774-75, 65 L.Ed.2d 902 (1980). But Judge Starr’s opinion seems to me to demolish the notion that black firefighters in the District have faced discrimination for any period of time relevant to a present remedial policy. See supra at 76-77. Indeed, if anything, it might be said that it is white firefighters, rather than black, who have faced recent racial discrimination. See Bishopp v. District of Columbia, 788 F.2d 781, 786-89 (D.C.Cir.1986); Dougherty v. Barry, 607 F.Supp. 1271 (D.D.C. 1983);5cf. Dougherty v. Barry, 604 F.Supp. 1424, 1428-30 (D.D.C.1985). In truth, the only evidence the District advances to support its claim that the District discriminates against blacks is a test which, if used as an applicant ra device, apparently has a disparate negative impact on blacks. Putting aside the point that the very test in question passed constitutional scrutiny in the Supreme Court, see Washington v. Davis, 426 U.S. 229, 245-46, 96 S.Ct. 2040, 2050-51, 48 L.Ed.2d 597 (1976),6 the District does not so use its test. Rather, its only purpose today apparently is to provide the District with a legal justification for hiring in accordance with a quota. The Fire Department administers the exam, but since it believes that rank order hiring based on the exam’s results would be discriminatory, it does not do so.7 Instead it hires pursuant to a quota to “remedy” the discriminatory effect of that which, as best I can determine, it does not do. This seems to me quite artificial, if not Orwellian.

¶18Nor can the District’s affirmative action plan be constitutionally defended as seeking racial diversity among firefighters for its own sake. Although the Court has recognized a legitimate, compelling governmental concern in state universities’ seeking racial diversity in their student bodies for educational purposes, see Regents of the University of California v. Bakke, 438 U.S. 265, 311-15, 98 S.Ct. 2733, 2759-61, 57 L.Ed.2d 750 (1978) (Powell, J.), it has never extended this approach beyond the academic setting. Pursuing racial balance or proportional representation simpliciter is not a permissible goal of racial classifications under the equal protection clause. See Wygant, 106 S.Ct. at 1847-48 (Powell, J.); Bakke, 438 U.S. at 307, 98 S.Ct. at 2757 (Powell, J.).

¶19The question remaining, as I perceive it, is whether the Supreme Court’s reasoning in Johnsonundermines its previous interpretations of the equal protection clause. How, it might be asked, does one square the JohnsonCourt’s approval of a government affirmative action plan and corollary employment practices designed to alter a “manifest imbalance” of women in certain job categories with the Court’s prior constitutional precedent authorizing racial or sexual preferences only to remedy discrimination? Does the Supreme Court’s opinion, although ostensibly limited to an interpretation of Title VII, necessarily suggest a change in the Court's interpretation of the equal protection clause? To be sure, as Judge Starr’s opinion rightly notes, there is a world of practical difference between the very low number of women in the relevant jobs in Johnsonand, for example, the number of blacks in the D.C. Fire Department. But unless one accepts Justice O’Connor’s reasoning — which the Court did not — that the small number of women in the particular job categories in Santa Clara County was itself evidence of employer discrimination, see Johnson, 107 S.Ct. at 1465 (O’Con-nor, J., concurring in the judgment), there is an undeniable tension between Johnson’s rationale and prior constitutional analysis. That is so because it is difficult to reconcile the Court’s prior prohibition in Wygantagainst government employers’ seeking racial balance with the Court’s approval in *14Weberand Johnsonof governmental efforts to alter a manifest racial (or gender) imbalance. Judge Mikva, whose opinion, perforce, determines that the District’s plan passes both statutory and constitutional muster, apparently sees no tension between the two lines of cases.8 He seems to conclude that having thirty-seven percent blacks in the Fire Department as compared to seventy percent in the D.C. workforce “clearly” constitutes a manifest imbalance. But since he does not suggest at what level a “manifest imbalance” becomes merely an “imbalance,” he does not appear to give any quantitative meaning to the word “manifest.”9 So I take Judge Mikva to believe that, in effect, the Supreme Court’s Johnsonopinion did exactly ,that which the Court denied doing — overruled its prior constitutional ban on racial balancing for its own sake.

¶20I think it did not. That the Court in Johnsonso carefully limited its opinion to an interpretation of Title VII, see Johnson, 107 S.Ct. at 1446 n. 2, suggests to me that the majority was unwilling to disturb its recently expressed equal protection limitations on racial or gender preferences for government employment — in particular its disapproval of proportional representation as a governmental goal. Justice Stevens quite clearly would proceed separately from the rest of the Court. By quoting at length in his concurring opinion from an article that justifies seeking racial diversity in employment based on a broad range of grounds, Justice Stevens seems to have abandoned constitutional objections to racial proportional representation. See Johnson, 107 S.Ct. at 1460 (Stevens, J., concurring). The majority of the Court, however — indeed by vivid contrast with Justice Stevens’ opinion — has not accepted that position. Although I readily concede that interpreting Title VII to permit personnel practices that the Constitution prohibits seems anomalous, the Court has nevertheless concluded that Congress intended just that state of affairs. See Johnson, 107 S.Ct. at 1449-50 n. 6.

¶21It is certainly true that granting hiring preferences to blacks or other minorities as a technique to foster employment integration — as opposed to merely remedying discrimination — has been employed by policymakers in federal and state governments in recent decades. The Court’s Johnsonopinion determines only that Congress, when it extended Title VII to public employers in 1972, did not mean to preclude totally this practice for government any more than it meant to do so in 1964 with respect to private employers. See Weber, 443 U.S. at 202-08, 99 S.Ct. at 2726-29. “Manifest imbalance,” as used by the Supreme Court, is thus a synonym for segregation — whether intentionally maintained or not. So viewed, it is possible to categorize the female employees in the Johnsoncase as found in segregated jobs. The Court emphasized that women working for the Santa Clara County Transportation Agency were concentrated largely in EEOC job categories traditionally held by women. See Johnson, 107 S.Ct. at 1446. I therefore interpret Johnsonand Weberas holding that Title VII permits temporary race-conscious employment practices by public or private employers to combat job segregation — and in that respect it seems incongruous to me to describe the District’s Fire Department as segregated. But, in any *15event, it is one thing to interpret Title VII broadly to permit private and public employers’ efforts to integrate their workforce or job classifications. It is another thing entirely to read the Constitution’s equal protection provisions in such a fashion. Congress can, of course, control by further legislation how much and for how long racial preferences will be permitted, but the Constitution’s equal protection clauses are not so flexible. The federal judiciary cannot, as if we were policymakers in the executive branch, interpret the Constitution so as to calibrate the granting of racial preferences until we conclude that a desirable degree of employment integration has been achieved. The Constitution is not an executive order.

¶22The dissent seems to assume that the Constitution (as well as Title VII) permits local, state, and federal governments to provide employment preferences to blacks, and perhaps other minorities, until proportional representation is reached — presumably in all job categories. That cannot be so. It is manifestly inappropriate for us to take judicial notice of the unlikely proposition that all ethnic or racial groups in our society have the same relative interests in or capability for performing the various jobs in our economy. Cf. Local 28, Sheet Metal Workers, Int’l Ass’n v. EEOC, — U.S. -, 106 S.Ct. 3019, 3060, 92 L.Ed.2d 344 (1986) (O’Connor, J., concurring in part and dissenting in part). But see Hammon, 813 F.2d at 442 (Mikva, J., dissenting).10 Furthermore, the dissent’s position would make the legality — and even the constitutionality — of the District’s plan turn on whether it was designed to obtain or maintain racial balance. That distinction, it seems to me, cannot hold. It is bizarre to suggest that the District legitimately could provide preferences for blacks until the Fire Department mirrors exactly, or to some arbitrary point short of exactly, the proportion óf blacks in whatever is the relevant population, but thereafter no preference would be permitted even if the preference were necessary to maintain that proportion. In any case, the District’s objectives are not so transitory; the city ordinance pursuant to which the affirmative action plan is adopted, although phrased in terms of a “goal,” appears to call for permanent proportional representation. See D.C. Law 1-63, D.C. Code §§ 1-507 to 1-514 (1981).

¶23The dissent further argues strenuously that, if on no other grounds, the many years of the District’s (as well as the country’s) application of a “separate but equal” discriminatory policy justifies the District’s affirmative action plan. See at 92-93 (Mikva, J., dissenting); Hammon, 813 F.2d at 435-36, 446-47 (Mikva, J., dissenting). That sounds like a general theory of reparations. As Justice Powell has cautioned, however, racial preferences for blacks cannot constitutionally be predicated on the general societal discrimination that blacks suffered for much of the nation’s history. See, e.g., Wygant, 106 S.Ct. at 1847-48; Bakke, 438 U.S. at 307, 98 S.Ct. at 2757. If they were to be, that rationale would lead ineluctably to approval of proportional representation. Ironically, the District’s policy can itself be described as embracing the notion of separate but equal — separate treatment of different races to achieve equal (proportionate) results. In the infamous case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), Justice Harlan exposed the majority’s claim that separate but equal was not a “badge of inferiority,” see 163 U.S. at 551, 16 S.Ct. at 1143, by asserting that the separate accommodation laws at issue in that case were predicated on a governmentally sanctioned belief in white superiority. Id. at 560, 16 S.Ct. at 1147 (Harlan, J., dissenting). The District, of course, wishes to help its black citizens — not to degrade them with a badge of inferiority. But does not its hiring plan — which does not really attack discrimination or barriers to equal op*16portunity — suggest the very evil that infected the Plessydoctrine? And might it ultimately be even more harmful as an affront to black self-esteem because it was done with their interests paramount? 11

¶24I think this case has very little, if anything, to do with remedies for past discrimination — whether general or proximate, recent or long ago. Instead, it has a great deal to do with old-fashioned American politics, which has always had a strong ethnic flavor. As is well known, government employment in American cities was, for many years, parceled out to various ethnic groups in accordance with their political clout. Blacks, as the political majority in the District, are understandably claiming that which their predecessor groups in American cities once enjoyed. However, those very constitutional protections that may frustrate the political majority in the District also serve to protect nationwide minorities.