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					Johnson v. Transportation Agency,
  Santa Clara County, California
    Genevieve Mackay, Brent Movitz, Kaitin Powell
Legal and Social Development of
Affirmative Action
• Foundation of Affirmative Action
1896    Plessy v. Ferguson
• Facts: Plessy refused to sit in a rail carriage designated for African
  Americans. He was convicted of violating a Louisiana statute
  which segregated trains.
• Rule: Segregation was did not violate the 14th amendment as long
  as the facilities were substantially equal.
• Rationale: Legislation and law could not change discriminative
  attitudes in society
Legal and Social Development of
Affirmative Action
• Foundation of Affirmative Action
1954 Brown v. Board of Education
• Facts: African Americans wanted to attend a white public school.
• Rule: The 14th Amendment prohibits public schools from
  segregating based on race.
• Rationale: Separate but equal is a fallacy. However, because
  Justice Warren conformed his holding to the facts of the case, he
  provided little insight as to what protections should be afforded to
  African Americans or others who face discrimination.
Legal and Social Development of
Affirmative Action
• Foundation of Affirmative Action
1961 Equal Employment Opportunity Commission (EEOC)
• President Kennedy signed an Executive Order which formed the
  EEOC. The order promoted “affirmative action” to prohibit
  discrimination based on “race, creed, color, or national origin.”
1963 Equal Pay Act
• Passed by Congress before Kennedy’s assassination, the Equal Pay
  Act stated that private companies had to pay women the same
  compensation as men for performing the same work.
• Lilly Ledbetter Act: http://vimeo.com/3097801
Legal and Social Development of
Affirmative Action
• Foundation of Affirmative Action
1964 The Civil Rights Act of 1964
•   “All persons within the jurisdiction of the United States shall have the same
    right[s] . . . and equal benefit of all laws . . . as [are] enjoyed by white citizens.”
    42 U.S.C.A § 1981(a) (West 2009). After Kennedy’s assassination, during
    Johnson’s presidency, in spite of the protests of Southern Democrats, the U.S.
    Congress passed the Civil Rights Act.

•   Johnson Audio

•   What “ideal of freedom” is our generation forging, expanding, and renewing?

•   Domestically?    Internationally?

•   Does our generation work to widen opportunities for race/sex-based minorities?
Legal and Social Development of
Affirmative Action
• Foundation of Affirmative Action
• 1964-1967 Johnson and Affirmative Action
    You do not take a person who for years has been hobbled by chains, and
    liberate him, bring him up to the starting line of a race, and then say, “You are
    free to compete with all the others,” and still justly believe that you have been
    completely fair. Thus, it is not enough just to open the gates of opportunity,
    all of our citizens must have the ability to walk through those gates.

•   President Johnson speaking at Howard University after Congress passed the Civil Rights Act of

    1964. Urofsky, Affirmative Action on Trial: Sex Discrimination in Johnson v. Santa Clara at 17.

•   From 1965-1967 Johnson signed three Executive Orders which required
    federal contractors to recruit, hire and promote minorities and women.
Legal and Social Development of
Affirmative Action
• Affirmative Action Challenged in Court
• 1971         Griggs v. Duke Power Co.,
• Facts: Duke Power Company required employees to have a high
  school diploma and pass a standardized general intelligence test in
  order to be promoted.
• Rules: Title VII of the Civil Rights Act of 1964 expressly prohibits
  employment discrimination. Barriers that favor white employees in
  employment decisions must be removed.
• Employment actions that appear race neutral, but have a disparate
  impact are discriminatory.
Legal and Social Development of
Affirmative Action
• Affirmative Action Challenged in Court
• 1971         Griggs v. Duke Power Co.,
• Rationale: Justice Burger reasoned that a high school diploma and
  the standardized tests were not related to job performance. Burger
  explained that because African Americans received inferior schooling
  they were unlikely to perform as well on tests as the white workers
  who received superior schooling. Burger stated that “Congress has
  now required that the posture and condition of the job seeker be
  taken into account.”
Legal and Social Development of
Affirmative Action
• Affirmative Action Challenged in Court
• 1978 Regents of U. of Cal. v. Bakke
• Facts: Allan Bakke, a white male, sued the University of California
  when it denied him admission to medical school while it reserved
  sixteen out of one hundred spots for minority students.
• Rule: An affirmative action plan which includes the use of quotas
  unconstitutionally discriminates against non-minorities under the 14th
  Amendment and Title VI of the Civil Rights Act of 1964 (prohibits
  recipients of federal funds to discriminate based on race).
Legal and Social Development of
Affirmative Action
• Affirmative Action Challenged in Court
• 1978 Regents of U. of Cal. v. Bakke
•   Rationale: Foreshadowing difficult affirmative action decisions, the Court had a
    plurality decision. However, Powell’s opinion has been relied on in proceeding
    cases.

•   Powell stated that affirmative action plans are allowed under the Equal
    Protection Clause because the state has a substantial interest in promoting
    educational diversity. However, the university’s plan was flawed because it
    used quotas. Justice Powell explained that “diversity that furthers a compelling
    state interest encompasses a far broader array of qualifications” than race. By
    reserving sixteen spots for candidates based solely on race, the plan would not
    necessarily provide “genuine diversity.”
Legal and Social Development of
Affirmative Action
• The Affirmative Action Plan Balance reflected in Bakke
• Meg Greenfield, a writer at Newsweek, predicted the Court’s decision.
  She suggested that although it seemed to be indecisive, the decision
  emphasized the balance needed for a productive affirmative action
  plan.
      1)      allowed employers to strive for equality in the workplace
  caused by past discrimination and
       2)       tightened the connection between the steps taken and
  the discrimination remedied so as to        prevent unnecessary
  barriers for non-minorities
Legal and Social Development of
Affirmative Action
• 1979 United Steelworkers of Am. v. Weber
• Facts: A white workers sued his employer after the company
  accepted an African American into a training program instead of
  Weber, even though Weber had more seniority.
• Rule: Title VII permitted voluntarily adopted affirmative action
  plans in the private sector.
Legal and Social Development of
Affirmative Action
• 1979 United Steelworkers of Am. v. Weber
• Rationale: Brennan explained that the company’s plan was within
  the “spirit . . . and intention” of the legislature when it enacted the
  Civil Rights Act because the plan would open employment
  opportunities for African Americans.
• Justice Blackmun, in a concurrence, explained that Brennan ignored
  the plain meaning of Title VII. However, Blackmun explained that
  companies which have committed “arguable violations” of Title VII by
  discriminating in the past should be able to correct their misdeeds
  through affirmative action plans.
Legal and Social Development of
Affirmative Action
• 1979 United Steelworkers of Am. v. Weber
• Dissent: Justice Rehnquist dissented and relied on the plain
  meaning and precedent in which the Supreme Court had written,
  “Title VII is to provide an equal opportunity for each applicant
  regardless of race, without regard to whether members of the
  applicant’s race are proportionately represented in the work force.”
Legal and Social Development of
Affirmative Action
• The Meaning of Discrimination
• The split in United Steelworkers mirrored the split in Bakke. On
  one side, the liberal Justices aligned with the premise that race-
  conscious policies could remedy past discrimination. On the other
  side, the conservative Justices clung to the value that in order to
  have a society free from discrimination, the laws of society must
  mandate that no type of discrimination is acceptable.
Legal and Social Development of
Affirmative Action
• 1980 Fullilove v. Klutznick
• Facts: The Public Works Employment Act provided that in order to
  receive federal funds for public works, the recipient, for example a
  city or state, must award 10% of the funds to minority business
  enterprises (MBEs).
• Rule: Congress can pass legislation with the goal of correcting
  past economic disparities among minorities without violating the
  14th Amendment.
• Rationale: The Court, once again in a plurality decision, reasoned
  that remedial programs allowed minorities to be lifted to a level in
  which they could effectively participate.
Johnson v. Santa Clara
  Mr. Devlin Schoop, Partner at Laner Muchin
  •   Graduate of the University of Illinois at Chicago and the University of
      Illinois Law Review.
  •   Previous Experience:
       – Worked as a judicial clerk to Judge Manning of the United States
         District Court for the Northern District of Illinois.
       – Lawyer at large Chicago-based firm where he specialized in complex
         commercial litigation and employment and civil rights litigation.
  •   Mr. Schoop became a partner at Laner Muchin in 2008 and represents
      employers in employment discrimination, wrongful discharge, employment,
      civil rights litigation.
  •   Mr. Schoop is a member of the American Bar Association, the Seventh
      Circuit Bar and the Federal Bar Association. He is an Associate Articles
      Editor for the Federal Civil Practice Section Council of the Illinois State Bar
      Association and has authored several articles regarding civil practice in the
      various federal courts within Illinois. Mr. Schoop authored the chapter on
      age discrimination in the 2007 edition of the Illinois Institute of Continuing
      Legal Education’s Employment Discrimination Handbook.
Johnson v. Santa Clara
  Nature of the Controversy
  • Diane Joyce and Paul Johnson both were contending for road
    dispatcher at Santa Clara Transportation Agency.
     – Diane Joyce: “rebel rousing, skirt-wearing person”
         • Learned to stand up for her rights.
     – Paul Johnson: “good ol’ boy”
         • Felt he deserved the job and she just got it for her gender.
  • On the road crew: different standards
     – Joyce never fit in
     – Fought to get the same opportunities as men.
Johnson v. Santa Clara
  Affirmative Action - Santa Clara Plan
  • Santa Clara was only 3.4% Black, although the Hispanic population
    was 17.7% and the Asian population 7.7%.
  • While women were 36.4% of the Santa Clara labor force, only
    22.4% of Santa Clara county employees were women.
     – Most held low level positions conventionally held by women
Johnson v. Santa Clara
  Affirmative Action - Santa Clara Plan
  • Santa Clara had many women in politics
     – May explain support of Affirmative Action plan
  • “hiring, training, and promotion of minorities and women…in all
    major job classifications where they are underrepresented” with a
    long-term goal of having a work-force with the same Agency labor
    force composition of minorities and women as in the area labor
    force.
     – Idealistic long-term goals, but realistic short-term objectives.
     – Achievable goals v. implementing quotas
Johnson v. Santa Clara
  Trial Court
  • Diane Joyce very apprehensive. Everyone else confident.
  • Johnson and Attorney thought clear-cut discrimination case
  • County Attorney equally certain acted in discretion; Difficult to
    explain why need affirmative action plan without recognizing past
    injustices.
  • Judge Ignam―county affirmative action plan did not meet Weber
    standards.
     – Narrow ruling; Affirmative Action plan remains in tact with
       minor changes.
Johnson v. Santa Clara
  Appellate Court
  • Placed on short calendar at first, then given more time to argue.
  • Handed down decision that Judge Ignam construed Title VII and
    Weber too narrowly and the Santa Clara County’s affirmative
    action plan met the Weber requirements.
     • Paul Johnson already had Diane Joyce’s position; Joyce in
       South Yard
  • Johnson felt frustrated
     • Inquires at public interest law firms
Affirmative Action since Johnson
• The Supreme Court Decision
• Justice Brennan delivered the opinion of the court in which justices
  Marshall, Blackmun, Powell, and Stevens joined. The court held…
       “The Agency appropriately took into account Joyce’s sex as
  one factor in determining that she should be promoted. The
  Agengy’s Plan represents a moderate, flexible, case-by-case
  approach to effecting a gradual improvement in the representation
  of minorities and women in the Agency’s work force, and is fully
  consistent with Title VII.”
Affirmative Action since Johnson
• Who Bears the Burden of Proof that the Agency’s plan violates Title
  VII?
• Once Johnson established a prima facie case that race or sex had
  been taken into account in the Agency’s employment decision, the
  burden shifts to the Agency to articulate a nondiscriminatory
  rationale for that decision (ie: an affirmative action plan). Once
  the Agency had done so the burden shifted back to Johnson to
  prove that the plan was invalid and that the Agency’s justification
  was pretextual.
Affirmative Action since Johnson
• This burden shifting means that the Court had to determine two
  things:
       1. Was the Agency’s affirmative action plan legal or did it
  violate Title VII?
       2. Part 1 - Was the employment decision made pursuant to a
  plan prompted by concerns similar to those in the Weber case?
          Part 2 - Was the effect of the plan on males and
  nonminorities comparable to the effect of the plan in that case?
Affirmative Action since Johnson
The Rule from Weber . . .
• In determining the legality of the Agency’s plan under Title VII the
  Court used the standard set forth in the Weber case. This rule
  stated that the plan must be designed to “eliminate manifest racial
  imbalances in traditionally segregated job categories.”
• The Court further determined that to meet this standard the
  employer must only point to a conspicuous imbalance in
  traditionally segregated job categories and not meet a prima facie
  case standard.
• Taken together this decision was grounded in the understanding
  that voluntary action on the part of the employer is crucial to
  furthering the purpose of Title VII and the idea that Title VII
  should not be read to thwart such efforts.
Affirmative Action since Johnson
• Question 2, Part 1 . . . .
• Was the employment decision made pursuant to a plan prompted
  by concerns similar to those in the Weber case?
• Here the Court determined that the plan was developed to correct
  a manifold imbalance based on the fact that women did not hold a
  single position in this employment category at the time the
  decision was made to hire Joyce. Additionally the court considered
  the facts that the Agency’s plan was temporary and flexible with a
  long term goal supported by short term goals aimed at eliminating
  rather than maintaining imbalances in the work force.
Affirmative Action since Johnson
• Question 2, Part 2 . . . .
• Was the effect of the plan on males and nonminorities comparable
  to the effect of the plan in the Weber case?
• Here,as in Weber, the Court asked whether the Agency’s plan
  unnecessarily trammeled the rights of male employees or created
  an absolute bar to their advancement. It determined that the plan
  did NOT do so because it did NOT . . .
    – Set aside positions for women. The plan instead specifically
      stated that the goals established should not be construed as
      quotas that must be met. Instead the plan merely authorized
      consideration of affirmative action concerns when evaluating
      qualified applicants.
Affirmative Action since Johnson
• The Last Consideration of the Court . . . .
•        At the end of the decision the Court noted that it should be
    mindful of the Court and Congress’ consistent emphasis on the
    value of voluntary efforts to further the objectives of the law. This
    was brought up earlier in the decision to support not using the
    prima facie standard for the employer to develop an affirmative
    action plan as well. It is laid out in the final decision statement of
    the Court as well for emphasis.
Affirmative Action since Johnson
• Proposition 209
  California passed which prohibits racial, ethnic, and gender
  preferences in public education, employment, and contracting.
  Allows economic status to be considered. Michigan has a similar
  law.
• California Regents revoke affirmative action plan
Affirmative Action since Johnson
• 2003         Grutter v. Bollinger
• Facts:       A non-minority student sued the University of
  Michigan’s law school after she was rejected.
• Rule: Diversity in education is a compelling state interest and a
  school’s affirmative action plan that does not use quotas is not
  unconstitutional under the 14th Amendment, nor does it violate
  Title VI.
• Rationale: O’Connor relied heavily on Powell’s opinion in Bakke.
  She explained that the law school’s affirmative action plan
  “narrowly tailor[s] [the] use of race in admissions decisions to
  further a compelling state interest in obtaining the educational
  benefits that flow from a diverse student body.”
Affirmative Action since Johnson
• 2003         Grutter v. Bollinger
• Dissent: Chief Justice Rehnquist dissented and claimed that the
  law school’s system was a thinly veiled quota system. He claimed
  that the admissions process was not narrowly tailored to the goal
  of complete diversity, not just racial diversity. Rehnquist used
  actual application and admission data from the law school to show
  a direct correlation between the amount of a minority that applied
  and the amount that was accepted. For example, in 1995, 9.7%
  of the applicant pool was African American and 9.4% of the
  admitted class was African American.
Affirmative Action since Johnson
• 2003           Grutter v. Bollinger
•    Justice Thomas, an African American, states that the U.S.
    Constitution “abhors classifications based on race, not only
    because those classifications can harm favored races or are based
    on illegitimate motives, but also because every time the
    government places citizens on racial registers and makes race
    relevant to the provision of burdens or benefits, it demeans us all.”
    Thomas quoted Frederick Douglass who said, “And if the negro
    cannot stand on his own legs, let him fall. Your interference is
    doing him positive injury. What I ask for the negro is not
    benevolence . . . but simply justice.” Id. at 350.
Affirmative Action since Johnson
• 2003 (same day as Grutter) Gratz v. Bollinger
• Facts: Jennifer Gratz, a Caucasian, applied to the University of
  Michigan undergraduate school and was rejected. The University
  of Michigan’s undergraduate admissions department used a
  selection index. Applicants could aggregate up to 150 points
  depending on factors including, GPA, in-state residency, alumni
  relationship, personal essay, academic performance, etc. A
  minority applicant would receive twenty points automatically,
  whereas other diverse qualities, such as geographic diversity or
  leadership and service were capped at five points. If a student
  received one hundred points he would be admitted.
Affirmative Action since Johnson
• 2003 (same day as Grutter) Gratz v. Bollinger
• Rule: An affirmative action plan for a university must be narrowly
  tailored to the legitimate end of educational diversity.
• Quotas are not narrowly tailored to the legitimate end of
  educational diversity.
Affirmative Action since Johnson
• 2003 (same day as Grutter) Gratz v. Bollinger
• Rationale: Chief Justice Rehnquist wrote the opinion of the Court
  and relied heavily on Powell’s rationale in Bakke. Rehnquist
  explained that “no single characteristic automatically ensured a
  specific and identifiable contribution to a university’s diversity.”
  Rehnquist emphasized “the importance of considering each . . .
  individual, assessing all of [his] qualities . . . and . . . evaluating
  that individual’s ability to contribute to the unique setting of higher
  education.” Rehnquist found that the University had created a
  situation in which “virtually every minimally qualified . . . minority
  applicant” would be accepted regardless of his individual
  characteristics.
Affirmative Action since Johnson
• 2009 Ricci v. DeStefano
• Facts: The city of New Haven, Connecticut, used a job-related test
  to decide who would be considered for promotions among its
  firefighters. The results of the test revealed that whites
  outperformed their Hispanic and African American counterparts.
  Hence, if the city certified the results, it would promote a
  disproportionate amount of white firefighters. The city feared that
  the test had created a disparate impact on African Americans by
  discriminating against them and thusly violated Title VII.
  Therefore, the city did not certify the results.
Affirmative Action since Johnson
• 2009 Ricci v. DeStefano
• Rules:
   – Disparate Treatment: An employer cannot discriminate based
     on race.
   – Disparate Impact: Employment actions that appear race
     neutral, but have a disparate impact are discriminatory.
• An employer has a defense to a disparate impact claim if it can
  show that the practice is “job related for the position in question
  and consistent with business necessity.” Nonetheless, the plaintiff
  can prevail if he shows that there is an alternative practice that
  meets the employer’s needs and has less of a disparate impact.
Affirmative Action since Johnson
• 2009 Ricci v. DeStefano
• Strong Basis in Evidence Standard
• An employer has to show that it conduct which creates a disparate
  impact is based on more than a fear of litigation.


• Rationale: Not certifying the test was discrimination because it
  was a decision based on race. The city did not offer any
  reasonable alternatives to the test. The firefighters took the test
  at an expense to themselves.
Affirmative Action since Johnson
• Dissent: Justice Ginsburg disagreed with the majority’s premise
  that the test violated Title VII’s disparate treatment provision.
  Ginsburg recognized that the Court historically has held that the
  “because of race” language in Title VII, when interpreted with the
  spirit of the Civil Rights Acts, will not necessarily be used to
  protect non-minorities from discrimination.


• Ricci video


• Obama speaks on affirmative action
Johnson v. Santa Clara
  Resume Activity
Further Questions
• Does the presence of the recession cause governments to
  unnecessarily trammel the rights of private contractors bidding for
  construction jobs?
• Should it be unconstitutional to apply affirmative action plans to
  women applying to law school?

				
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