|
Pursuant to the Court's Order the parties have submitted a joint
statement of facts and issues and a limited administrative record
for purposes of addressing as a threshold matter judicial review
of the express race and gender based measures included in the
instructions issued the Air Force's Fiscal Year 1993 Reduction in
Force Board ("FY93 RIF Board"). The Order also provided for the
filing of appropriate corresponding motions. Consistent with that
Order and pursuant to Rule 56.1 of the Rules of the United States
Court of Federal Claims ("RCFC") plaintiffs respectfully request
that the Court grant judgment in their favor on the administrative
record because there are no disputed issues of fact and the plaintiffs
are entitled to judgment as a matter of law. The judgment requested
is that the strict and heightened judicial scrutiny standards must be
applied respectively to the review of the race and gender based measures
the Secretary of the Air Force required of the FY93 RIF Board and under
those standards no governmental interest could justify instructions
imposing race or gender based actions on this career ending board.
Additionally, plaintiffs hereby oppose defendant's motion for judgment
upon the administrative record.
PLAINTIFFS' BRIEF
STATEMENT OF THE ISSUE
Whether the Secretary of the Air Force's imposition of mandatory written instructions expressly establishing specific criteria applicable only to the evaluation of the records of minority and female officers for the conduct of a Reduction-in-Force Board constitutes a racial or gender classification for purposes of determining the standard of judicial review applicable to a complaint alleging violation of the equal protection guarantees of the Fifth Amendment to the United States Constitution.
STATEMENT OF THE FACTS
The parties have filed a joint stipulation of issues and facts. Of those agreed upon facts only a few are essential to the determination of the pending motions. These are:
In July 1992 the Air Force conducted a reduction-in-force board to select commissioned officers for involuntary separation in fiscal year 1993 (the "FY93 RIF Board"), which was convened by the Secretary of the Air Force pursuant
to 10 U.S.C. §§ 266 and 681a.
1
Plaintiffs are members of a certified "opt-in" class consisting of former United States Air Force Reserve Officers involuntary released from active commissioned service as a result of the FY93 RIF Board.
The MOI is the Secretary of the Air Force's direction to the Board members, and it provides mandatory guidance for the reduction-in-force board process. The MOI for the FY93 RIF board directed the Board members that:
Your evaluation of minority and women officers must clearly afford them fair and equitable consideration.
***
...In your evaluation of the records of minority and women officers, you should be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed these officers at a disadvantage from a total career perspective.
...The board shall prepare for review by the Secretary and the chief of staff, a report or minority and female officer selections as compared to the selection rates for all officers considered by the board.
AR 1-5.
The report of the proceedings of FY 93 RIF Board (the "Board Report") states, inter alia:
With your guidance concerning minority and female officers specifically in mind, the board thoroughly reviewed the records of all minority and female officers eligible for separation. The separation rates for blacks and hispanics were higher than the overall board average. The separation rate for female officers was slightly lower than the overall board average. It is the judgment of the board president and the members of the board that those officers not recommended for separation are the best qualified officers.
AR 8-9.
ARGUMENT
I. SUMMARY
Arguably the most significant advances of American society have occurred through the gradual incorporation of the moral concepts of the Declaration of Independence into legal mandates embodied in the United States Constitution. In the context of equal protection guarantees, that process culminated in the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (hereafter "Adarand"). That decision established one standard for equal protection analysis whether founded upon the Fifth or the Fourteenth Amendment and confirmed that equal protection rights are individual, not group rights. It is now beyond cavil that the Fifth Amendment protects all United States citizens in the same manner without regard to their race or gender. Accordingly, Federal agencies have no authority to adopt personnel practices favoring groups of individuals based upon racial characteristics unless such practices are narrowly tailored measures that further a compelling governmental interest. Federal agencies also have no authority to adopt personnel practices favoring groups of individuals based upon gender unless such classification serves important governmental objectives and the consideration of gender is substantially related to achieving those objectives. Plaintiffs' contend that a formal instruction by a Service Secretary to a military selection board that:
- Required the board to clearly afford female and minority officers fair and equitable consideration but did not require the board to clearly afford male non-minority officers fair and equitable consideration; and,
- Required the members to be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed female and minority officers at a disadvantage from a total career perspective, but contained no provision for any such sensitivity to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed non-minority male officers at a disadvantage from a total career perspective; and,
- Further required the board members to render a written report for review by the Secretary and the Chief of Staff of the Air Force comparing the selection rates for all officers considered by the board with the selection rates for minority and female officers, but did not require the written report to compare the selection rates for all officers considered by the board with the selection rates for male non-minority officers;
represents racial and gender classifications for purposes of determining the standards of judicial review.
ARGUMENT
II. ANY RACE OR GENDER BASED MEASURES USED IN THE COURSE OF DISTRIBUTING A GOVERNMENT BENEFIT OR BURDEN CONSTITUTE A CLASSIFICATION SUBJECT TO JUDICIAL SCRUTINY
Through the Adarand decision the Supreme Court eliminated any caveats on the applicability of strict scrutiny to the use of racial classifications in governmental decision making concerning the distribution of governmental burdens or benefits and established the frame of reference applicable to evaluating governmental use of racial classifications. In the course of setting forth the reasons for reversing Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547 (1990), the Adarand decision summarized three general propositions established by the Court with respect to any government action based upon race as follows:
Despite lingering uncertainty in the details, however, the Court's cases through Croson [City of Richmond v. J. A. Croson, 488 U.S. 469 (1989)] had established three general propositions with respect to governmental racial classifications. First, skepticism: "'any preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant, 476 U.S. at 273 (plurality opinion of Powell, J.); Fullilove, 448 U.S. at 491 (opinion of Burger, C. J.); see also id., at 523 (Stewart, J., dissenting) ("Any official action that treats a person differently on account of his race or ethnic origin is inherently suspect"); McLaughlin, 379 U.S. at 192 ("Racial classifications [are] 'constitutionally suspect'"); Hirabayashi, 320 U.S. at 100 ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people"). Second, consistency: "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification," Croson, 488 U.S. at 494 (plurality opinion); id., at 520 (SCALIA, J., concurring in judgment); see also Bakke, 438 U.S. at 289-290 (opinion of Powell, J.), I. e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: "equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S. at 93; see also Weinberger v. Wiesenfeld, 420 U.S. at 638, n. 2; Bolling v. Sharpe, 347 U.S. at 500. Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Justice Powell's defense of this conclusion bears repeating here:
"If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, [Korematsu], but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U.S. [1, 22 (1948)]." Bakke, 438 U.S. at 299 (opinion of Powell, J.) (footnote omitted).
Adarand, 515 U.S. at 225-26.
After describing how Metro Broadcasting deviated from these propositions, the Court emphatically reasserted their application to all Equal Protection analysis:
The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.
It follows from that principle that all governmental action based on race -- a group classification long recognized as "in most circumstances irrelevant and therefore prohibited," Hirabayashi, supra, at 100 --
should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection, and holding "benign" state and federal racial classifications to different standards does not square with them. "[A] free people whose institutions are founded upon the doctrine of equality," ibid., should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold today that all racial classifications, imposed by whatever federal, state or local government actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.
Adarand, 515 U.S. at 227 (emphasis added).
Thus strict scrutiny applies to "... all governmental action based on race...." Subsequent proceedings in Adarand were recently before the Supreme Court which characterized the nature of its holding in Adarand as follows:
Because DOT's [the Department of Transportation's] use of
race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237-239, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995) (Adarand I).
Adarand Constructors, Inc. v. Slater, 120 S. Ct. 722, 724; 145 L. Ed 2d 650, 655 (2000)(per curiam)(emphasis added). Accordingly, as to race, the only question now before the Court is whether the Secretary of the Air Force's instructions required any
race based measures
2
by the Reduction in Force Board.
A similar equal protection analysis produced the Supreme Court's determination of what keys heightened judicial scrutiny regarding gender classifications:
We note, once again, the core instruction of this Court's pathmarking decisions in J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 136-137, 128 L. Ed. 2d 89, 114 S. Ct. 1419, and n. 6 (1994), and Mississippi Univ. for Women, 458 U.S. at 724 (internal quotation marks omitted):
Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.
United States v. Virginia, 518 U.S. 515, 531 (1996) (emphasis added). Therefore, as to gender, the question now before the Court is whether the Secretary of the Air Force's instruction required any gender based measures by the Reduction in Force Board.
Thus, while the ultimate standards of judicial scrutiny differ depending upon whether a race or gender classification is at issue, the threshold determination of whether either such classification is present is essentially the same, i.e., Does the Secretary of the Air Force's instructions to the reduction in force board require any race or gender based measures by that board.
ARGUMENT
III. THE SECRETARY OF THE AIR FORCE'S INSTRUCTIONS REQUIRED AT LEAST THREE RACE AND THREE GENDER BASED MEASURES BY THE REDUCTION IN FORCE BOARD.
The Joint Stipulation and administrative record establish that the formal instructions to the Reduction-in-Force Board provided, inter alia:
- "Your evaluation of minority and women officers must clearly afford them fair and equitable consideration."
- "In your evaluation of the records of minority and women officers, you should be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed these officers at a disadvantage from a total career perspective." and
- "The board shall prepare for review by the Secretary and the Chief of Staff, a report of minority and female officer selections as compared to the selection rate for all officers considered by the board."
AR 2-3.
Each of these three sentences establishes a measure to be executed by a board of military officers selecting individuals to lose their active commissioned status. Each of those measures is race and gender based. These three measures are: "clearly afford", "... be particular sensitive to the possibility...." and "....prepare for review by the Secretary and the Chief of Staff a report of minority and female officer selections ...." There is no doubt the board members understood the requirement for race and gender based actions: They confirmed compliance with those directives in their mandatory report to the Secretary and Chief of Staff:
With your
guidance concerning minority and female officers specifically in mind, the board thoroughly reviewed the records of all minority and female officers eligible for separation.
AR 8-9 (emphasis added). The report goes on to provide minority and female group analyses of the results of the process of selecting individuals for termination of active duty commissioned status.
The Secretary neither imposed nor authorized corresponding measures in regard to the evaluation of those officers the board members considered belonging to non-minority male groups. The Air Force no doubt will point to the sentence in the report reading: "It is the judgment of the board president and the members of the board that those officers not recommended for separation are the best qualified officers" as evidence that the race and gender measures were meaningless. No such inference, however, is proper. The meaning of the phrase "best qualified officers" is derived from the board's understanding of the Secretary's instructions, instructions which mandated specific measures on the basis of race and gender and there is no de minimis exception to equal protection guarantees. Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997). In Walker v. Mesquite, 169 F.3d 973 (5th Cir.1999) the United States Court of Appeals for the Fifth Circuit responded to a challenge to certain aspects of a district court remedial order regarding housing discrimination in Dallas, Texas. The Court of Appeals described the issue on appeal as:
... the constitutionality of the provision of the district court's most recent remedial order that directs newly constructed units of public housing to be located in "predominantly white" Dallas neighborhoods.
Walker, 169 F.3d, at 975. The district court held that a facial challenge to the express requirement for newly constructed units to be in "predominantly white" neighborhoods did not allege an equal protection violation. Walker, 169 F.3d, at 981. Circuit Judge Edith Jones' description of the district court's errors is compelling:
The district court, citing Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991), found that the Homeowners failed to show an equal protection violation because they did not identify a similarly situated set of black persons who have been treated better. See id. at 941 n.31 This requirement, however, applies only to equal protection claims involving facially neutral government actions, where it is necessary to establish that the government is distinguishing or classifying persons on the basis of race. See id. at 941. Explicit racial classifications, in contrast, establish unequal treatment by their very nature. See Shaw, 509 U.S. at 642, 113 S. Ct. at 2824 ("Laws that explicitly distinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause's] prohibition."). Because the Homeowners challenge an explicit racial classification within the district court's remedial order, they have properly alleged an equal protection violation.
The district court also suggested that the Homeowners failed to demonstrate an equal protection violation because "the impact [of the new construction], if any, on the Homeowners will be considerably less than [the] impact of the existing DHA public housing projects on the property owners in the black neighborhoods with existing projects."
The district court's reasoning is incorrect: racial classifications are not acceptable simply because they are perceived to have little impact. Any explicit racial classification, regardless of the burdens or benefits it imposes, is suspect and subject to strict scrutiny. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 2113, 132 L. Ed. 2d 158 (1995) ("All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny."); Powers v. Ohio, 499 U.S. 400, 410, 111 S. Ct. 1364, 1370, 113 L. Ed. 2d 411 (1991) ("It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree.").
The district court held that the Homeowners failed to prove an equal protection violation because there is no intent to treat whites worse than similarly situated blacks. Once again, the district court is incorrect.
An explicit racial classification does not require any inquiry into "intent" in order to allege an equal protection violation. See Shaw, 509 U.S. at 642, 113 S. Ct. at 2824 ("No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute."). "Express racial classifications are immediately suspect because, 'absent searching judicial inquiry . . ., there is simply no way of determining whether classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.'" Id. at 642-43, 113 S. Ct. at 2824 (quoting Croson, 488 U.S. at 493, 109 S. Ct. at 721).
The district court's skepticism of the Homeowners' right to pursue an equal protection claim was unfounded, so we proceed to address the merits of their claim.
Walker, 169 F.3d, at 981 (emphasis added)(headings omitted). Even assuming arguendo that the Air Force's express introduction of race and gender based measures might theoretically not have had an impact on the conduct of the FY93RIF Board does not change the essential analysis : "...racial classifications are not acceptable simply because they are perceived to have little impact. Any explicit racial classification, regardless of the burdens or benefits it imposes, is suspect and subject to strict scrutiny."
The Air Force argues that plaintiffs have failed to identify a racial classification. Defendant's brief at 9. Contrary to that assertion, the plaintiffs refer the Court to the three explicit race and three explicit gender classifications expressly set forth in the MOI. The Air Force also states that plaintiffs "bear the burden of proving that the MOI language constituted an
impermissible racial classification." Defendant's brief at 9 (emphasis added). This is certainly incorrect in regard to the Air Force's pending motion for judgment on the administrative record. That motion asserts that the issue now before the Court is whether the FY93 RIF Board contained "... a racial or gender classification." For purposes of that motion, which essentially addresses establishing the standards of judicial review, the only burden upon the plaintiffs is to establish that the FY93 RIF Board instructions included any race or gender based measures. Whether these
measures3
were impermissible only comes into question when the Court applies the applicable
standards.4
The Secretary could have established race and gender neutral action requirements but, for reasons not now before this Court, elected instead to expressly incorporate race and gender measures. The consequence of that decision is strict and heightened judicial scrutiny.
ARGUMENT
IV. DEFERENCE TO MILITARY AUTHORITIES HAS NO RELEVANCE TO THE MATTERS NOW BEFORE THIS COURT
The Air Force asserts that this Court owes it deference concerning "...cases such as the one now before the Court." Defendant's Brief at 9. This Court carefully established a precise process for the resolution of a narrow question of Constitutional law. The Air Force clearly misunderstands the context in which the judiciary may appropriately defer to military expertise to suggest that deference is presently in any way relevant in this case. In the United States, the judiciary never owes deference to military authorities on questions of law. Rather, only in certain limited areas of military expertise is some deference ever warranted. For example, even in matters of the interpretation of statute or regulation, as opposed to Constitutional protections, no special deference is due the military:
Further, in general, this court is cognizant of the deference to which the military is normally entitled in the governance of its affairs. See Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) ("Judges are not given the task of running the Army. . . . The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.") Voge v. United States, 844 F.2d 776, 782 (Fed. Cir.), cert. denied, 488 U.S. 941 (1988) ("Strong policies compel courts 'to allow the widest possible latitude to the armed services in their administration of personnel matters." Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979)."). However, while in this case this court does not undertake to interfere in military affairs nor to unduly intervene in a military personnel matter, it does presume to correct an error of law.
Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir.1992).
Moreover, even when Congress has granted powers to a federal agency pursuant to the fifth section of the 14th Amendment, no deference is accorded that agency on questions of Constitutional law:
For the same reasons, we think it inappropriate for a court engaged in constitutional scrutiny to accord deference to the Justice Department's interpretation of the Act. Although we have deferred to the Department's interpretation in certain statutory cases, see, e.g., Presley v. Etowah County Comm'n, 502 U.S. 491, 508-509, 117 L. Ed. 2d 51, 112 S. Ct. 820 (1992) and cases cited therein, we have rejected agency interpretations to which we would otherwise defer where they raise serious constitutional questions. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 574-575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988). When the Justice Department's interpretation of the Act compels race-based districting, it by definition raises a serious constitutional question, see, e.g., Bakke, 438 U.S. at 291 (opinion of Powell, J.) ("Racial and ethnic distinctions of any sort are inherently suspect" under the Equal Protection Clause), and should not receive deference.
Miller v. Johnson, 515 U.S. 900, 923 (1995) (emphasis added). Certainly the Secretary of the Air Force's incorporation of race and gender based measures into the instructions to a reduction in force board is entitled to no more deference than the Attorney General's interpretation of the Voting Rights Act. In any event, the expertise or motivations of the Secretary in this undertaking are not now before this Court. Accordingly, no deference can legitimately be accorded the decision to introduce race or gender into the instruction.
ARGUMENT
V. NO PRECEDENT SUPPORTS DEFENDANT'S POSITION.
None of the cases cited by the Air Force supports the argument that express race and gender based measures to be used by a military board selecting officers for career termination is not a
classification.5 As noted earlier Adarand requires scrutiny for "... all governmental action based on race...." Logically, cases applying Adarand have not considered the evaluation of testing instruments, as opposed to the actual use of such instruments, as constituting governmental measures for purposes of the Adarand analysis.
The Air Force asserts "...the scheme challenged in this case is akin to those at issue in Allen v. Alabama State Board of Education, 164 F.3d 1347(11th Cir. 1999), and Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999)." Defendant's Brief at 12. Hayden and Allen do not involve express race or gender based measures used in the course of the allocation of government benefits or burdens. Both cases concern the viability of consent decree provisions which required professional, technical evaluation of the adequacy of testing instruments. The tests themselves and their grading were conducted without any regard to race, i.e., the concerned governmental entities applied no express race or gender based measures in the course of selecting persons for benefits or burdens. These cases endorse race and gender neutral evaluations not evaluations incorporating race and gender based measures.
In particular, the Allen court determined:
In this case, under the consent decree, the Board may develop a new test to be used in making teacher certification decisions for African-American and white candidates alike. The decree does not require the Board to impose a different passing grade for African-American candidates or otherwise classify teachers based on race in grading the examinations. In this respect, the decree does not require the Board to act according to racial classifications, which takes this case out of Adarand. Instead, the Board must be conscious of race in developing the examination, choosing test items to minimize any racially disparate impact within the framework of designing a valid and comprehensive teaching examination. Nothing in Adarand requires the application of strict scrutiny to this sort of race-consciousness.
Allen, 164 F.3d, at 1352-53. Thus, in Allen the Board allowed race consciousness only for the process of validating a test instrument to be used in selecting new
teachers.6
No race or gender measures were incorporated into the testing process itself which was expressly neutral. Similarly in Hayden:
In fact, the only manner in which race was implicated is that Nassau County set out to design an entrance exam which would diminish the adverse impact on black applicants. This desire, in and of itself, however, does not constitute a "racial classification." Since the exam was administered in a race-neutral fashion which did not expressly distinguish between applicants on the basis of race, Nassau County's intent, without anything more, does not implicate an express, racial classification. Rather,
the plaintiffs are mistaken in treating 'racial motive' as a synonym for a constitutional violation. Every antidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under such a statute, reflect a concern with race. That does not make such enactments or actions unlawful or automatically 'suspect' under the Equal Protection Clause . . . . The term [racial classification] normally refers to a governmental standard, preferentially favorable to one race or another, for the distribution of benefits.
Raso v. Lago, 135 F.3d 11, 16 (1st Cir.), cert. denied, U.S., 119 S. Ct. 44, 142 L. Ed. 2d 34 (1998)
Hayden, 180 F.3d, at 49. Again, in Hayden the government entity allowed race consciousness only in the process of validating a test instrument. No race or gender based measures were incorporated into the testing or grading process itself which was expressly neutral. The FY93 RIF Board, however, contains three express race and three express gender processes applicable only to the evaluation of minority and female officers and they are undertaken by the very same board members identifying those officers who will involuntarily have their active commissioned service terminated, i.e., those distributing the relevant government benefit are here also charged with simultaneous execution of race and gender based actions. Allen and Hayden offer no support to defendant's contention that strict scrutiny would not apply to these circumstances.
Raso v. Lago, 135 F.3d 11 (1st Cir. 1998), a case cited in Hayden is also referenced by the Air Force as supporting its contentions. Raso did not involve an express race or gender based governmental measure. On the contrary, it concerned federal Department of Housing and Urban Development policies requiring unbiased access to housing. It too, clearly supports plaintiffs' contention that any express race or gender measures in the allocation of government benefits or burdens mandates particular judicial scrutiny:
It is one thing for HUD to insist that the apartments it subsidizes must effectively be open to all races; it would be quite another if HUD planned to impose this requirement
only where the beneficiaries of the statutory preference were white. That, we think, would be government action based on a "racial classification" and would need to be narrowly tailored to serve a compelling government interest.
Raso v. Lago, 135 F.3d 11, 17 (1st Cir. 1998). The Air Force's MOI is precisely and explicitly structured to impose race and gender measures only in regard to minority and female officer evaluations in the course of selecting officers for career termination. These measures are classifications.
The Air Force cites Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711 (9th Cir. 1997) as supporting its propositions. In Monterey Mechanical, however, the Court of Appeals found a state affirmative action contracting program, somewhat similar to the federal program addressed in Adarand, unconstitutional and, in the course of so doing, provided a compelling description why that program was a classification:
... the question we are considering in this section of our opinion is whether the statute classifies, that is, whether it treats people differently by ethnicity or sex, not whether the purpose of the classification is attractive. The statute treats contractors differently according to their ethnicity and sex....
***
We are not faced with a non-discriminatory outreach program, requiring that advertisements for bids be distributed in such a manner as to assure that all persons, including women-owned and minority-owned firms, have a fair opportunity to bid. The Equal Protection Clause as construed in Adarand applies only when the government subjects a "person to unequal treatment." There might be a non-discriminatory outreach program which did not subject anyone to unequal treatment. But this statute is not of that type.
***
More important, we can find no authority, and appellees have cited none, for a de minimis exception to the Equal Protection Clause. The Supreme Court has held that, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny." Adarand, 115 S. Ct. at 2111 (emphasis added). We conclude that there is no de minimis exception to the Equal Protection Clause. Race discrimination is never a "trifle."
Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 711-12 (9th Cir. 1997).
Monterey Mechanical offers the suggestion that "it is heuristically useful" when considering whether government measures constitute classifications "to hypothesize" the same provisions in favor of non minority males to ascertain whether discrimination is present. Monterey Mechanical Co., 125 F.3d, at 711. Applying that suggestion to this case results in the following hypothetical:
Would an equal opportunity instruction that imposed the following three requirements:
- "Your evaluation of white male officers must clearly afford them fair and equitable consideration."
- "In your evaluation of the records of white male officers, you should be particularly sensitive to the possibility that past individual and societal attitudes, and in some instances utilization policies or practices, may have placed these officers at a disadvantage from a total career perspective." and
- "The board shall prepare for review by the Secretary and the Chief of Staff, a report of white male officer selections as compared to the selection rate for all officers considered by the board."
and neither directed or authorized corresponding action in regard to minority or female officers be considered nondiscriminatory?
Plaintiffs submit [that] the answer is obvious.
The only precedent that might have provided some support for the Air Force position in this matter was the vacated decision in Baker v. United States, 34 Fed. Cl. 645 (1995), vacated, 127 F.3d 1081 (Fed. Cir. 1997). The Air Force's attempt to rely upon Judge Miller's summary judgment decision in Baker requires plaintiffs to fully describe the context of that decision and why that case, in fact, ultimately serves to support plaintiffs'
position.7
As will be shown below, in Baker, the government was briefly successful at saving a facially defective instruction from the appropriate standard of judicial review through the filing of supplementary material which later had to be withdrawn for unexplained reasons.
The Federal Circuit decision in
Baker8
discusses at some length what the express words of that instruction mean and how the Court of Federal Claims was directed away from those words through a questionable declaration:
On November 9, 1995, the Court of Federal Claims conducted a hearing on the parties' cross-motions for summary judgment. At the hearing, the government sharpened General Boles's explanation of the reason for the charge and how voting members of the SERB were to apply it to women and minority officers. Citing the same examples of the lack of opportunity for women and minority officers because of past discrimination against them, the government's counsel explained that the purpose of the charge was "to give people a level playing field." When, for example, women have been denied commands or combat service, the playing field is tilted against them when they are compared to men who have experienced commands and combat service. Likewise, the playing field is not level for minority colonels, when their preservice educational backgrounds are compared to those of nonminority colonels, who may have attended the likes of Yale University, to cite the example chosen by the government. To level the playing field, one needs to "discount" the records, to use the words of government counsel, in order to afford women and minority colonels the equitable consideration required by the charge. Discounting thus amounts to the actions that were expected from the voting members of the board. Indeed, government counsel explained that the level playing field is achieved "by sensitizing the board members to the fact that they should discount this." To achieve the required equity, either the record of the woman or minority colonel would be artificially enhanced, or the record of the male, nonminority colonel, with whom the comparison was being made, would be downgraded. Thus, "discounting" would involve informal rewriting of records in order to level the imbalance existing in the actual records of the competitive population. When presented with a woman or minority officer's record that revealed an "unlevel" playing field, the voting SERB member was expected, according to government counsel, "to call it an even cut rather than weight it one way or the other. The government reiterated this explanation of the reason for the charge and how it should work at the oral argument in this court.
Although the Court of Federal Claims expressed concern about the charge, on its face and as applied, it concluded that the charge was not a "classification" that prompted favoritism on account of race or gender: "ultimately, the questionable provision of the Charge was nothing more than a hortative comment, advice, or reminder. It does not constitute a racial [or gender] classification subject to strict scrutiny." Baker, 34 Fed. Cl. at 656. The court reached its conclusion because the charge did not, on its face, compel a particular quota that would ensure retention of women and minority officers or actually require particular consideration of women or minority officers.
Apparently minimizing the significance of the stated purpose and effect of the charge, as explained by General Boles and government counsel, the Court of Federal Claims stated at the hearing that "I thought race could be considered among other factors as long as there were no quotas." Transcript of summary judgment hearing, at 12-13 (Nov. 9, 1995). Furthermore, the Court of Federal Claims stated in its opinion that the outcome of the case "may well have been different" if the government had not provided the two declarations which assured the court that the facially troubling charge had not been applied to achieve preferential treatment of women or minority officers on account of their classification as such.
Uncomfortable, but reassured by the declarations, the Court of Federal Claims granted the government's motion for summary judgment. Notwithstanding the charge's clear urging to review the records of women and minority officers with the utmost care and to consider the disadvantages they had suffered on account of past discrimination, the court found that the charge did not rise to the level of a distinction based on race or gender for which a legal complaint could lie. The Court of Federal Claims thus did not consider whether the conduct of the SERB could be justified under the appropriate level of judicial scrutiny required to test the legality of racial or gender classifications.
Colonel Baker and his colleagues appealed to this court, arguing that it was error for the declarations to have been admitted, and, that with or without the declarations, a sufficient record had been made to show that the charge,
on its face and as applied, worked an illegal, unjustifiable classification based on race and/or gender.
As we have noted above, at oral argument, the government reiterated its explanation, first by General Boles and then by the government itself at the summary judgment hearing, of what the charge was intended to accomplish and how it was to be implemented. We were also reminded by the government of the presumption of regularity, pursuant to which courts may assume that the voting SERB members faithfully performed all the tasks assigned to them. In addition, however, it was noted that the record, at this stage, does not contain any hard evidence that any of the women or minority officers that the SERB considered had records that were in need of "leveling" through the "discounting" process.
In short,
although the charge on its face permitted, and even encouraged, if not actually commanded, such leveling through discounting, the government assured this court that such did not happen, because the declaration of General Jaquish states that he did not believe such actions were taken by the individual voting SERB members.
Baker, 127 F.3d, at 1086-87 (emphasis added)(heading omitted).
The Federal Circuit opinion in Baker goes on to note that after oral argument in the case, the Air Force mysteriously undermined its own case by taking the extraordinary step of withdrawing for unstated reasons the declaration that had provided the predicate for Judge Miller's decision. Baker, 127 F.3d, at 1088. The Federal Circuit was accordingly denied reason to specifically address the classifications established by the Secretary's instruction. The United States District Court for the District of Columbia concluded as follows when the Baker position was offered as such a precedent in a case involving the Army's version of the "equal opportunity" instruction:
At the hearing on plaintiffs' motion, the government also argued that discovery is unnecessary in this case because, as a matter of law, the selection procedures challenged by the plaintiffs are not racial and gender classifications that implicate the equal protection component of the Fifth Amendment. Based on the current record, and in light of the skeptical attitude traditionally taken by the courts when considering classifications of this nature, the government's argument is unpersuasive. Cf. Baker v. United States, 127 F.3d 1081 (Fed. Cir. 1997) (vacating summary judgment for the government in case involving similar procedures by Air Force retirement board). The promotion procedure utilizes race and gender classifications that must be subjected to strict and intermediate scrutiny, respectively, and discovery is necessary to facilitate a full and careful review under those exacting standards.
Sirmans v. Caldera, 27 F. Supp. 2d 248, 251footnote 2 (D. D.C. 1998).
Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 492 (D.C. Cir. 1998) despite defendant's attempts to distinguish it, provides further support for the conclusion that the instruction includes race and gender based actions requiring judicial scrutiny. The only example which that court noted might not trigger strict scrutiny is outreach to, as opposed to the actual hiring of, individuals based upon race. Moreover, that court's discussion on classifications is more relevant to this proceeding:
... the degree to which the regulations require, oblige, pressure, induce, or even encourage the hiring of particular races is not the logical determinant of whether the regulation calls for a racial classification. In Adarand, the challenged regulations did not require or obligate would-be contractors to grant a preference to minority subcontractors. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995). Rather, the regulations provided a financial incentive to bidding contractors to grant such a preference -- an incentive that contractors were free (at their economic peril) to disregard. Id. at 205-08. Nonetheless, the Supreme Court treated the regulations as a racial classification, and did not even pause to consider the suggestion that the absence of a compelled racial preference makes strict scrutiny inapposite. Because the FCC's regulations at issue here indisputably pressure -- even if they do not explicitly direct or require -- stations to make race-based hiring decisions, under the logic of Adarand, they too must be subjected to strict scrutiny. See also Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 710 (9th Cir. 1997). Judge Tatel contends that the regulations do not provide "incentives" to stations to engage in race-based personnel decisions, but as we explained in our initial decision, Lutheran Church-Missouri Synod, 141 F.3d at 351-52, we think that assertion blinks reality.
By insisting on an "obligation or requirement" test, Judge Edwards would make the analytical definition of a classification depend on the degree of government pressure. Yet if the regulations "suggested" an 80% white male workforce, would there be any doubt as to the applicable standard of review? See Monterey Mechanical Co., 125 F.3d at 711. Although an analysis of the degree of government pressure to grant a racial preference would no doubt be significant in evaluating whether a regulation survives strict scrutiny, it is the fact of encouragement -- a fact that no one denies -- that makes this regulation a racial classification.
Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 491-92 (D.C. Cir. 1998) (footnotes omitted).
The Supreme Court has required application of strict scrutiny to classifications far less exclusive than that introduced in the instruction to the FY93 RIF Board. For example, although the Small Business Administration program addressed in Adarand automatically defined minority-owned enterprises as economically disadvantaged and thus subject to certain inferences, the program also included provision for non-minority-owned enterprises to establish themselves as disadvantaged and to enjoy the benefits of the program. Adarand, 515 U.S. at 206-208. Before the FY93 RIF Board, however, non-minority male officers had absolutely no opportunity to become eligible for the favorable, subjective speculative evaluation and revision of their records to address perceived circumstances of past discrimination or to have reports rendered to the Secretary of the Air Force about how their "group" selection rate was in comparison to others.
Finally, in the course of evaluating the nature of the race and gender based measures in this matter it is important to note the roles of the respective participants. The Air Force cites Sussman v. Tanoue, 39 F. Supp. 2d 13 (D.D.C. 1999) for the proposition that collection of statistical data does not necessarily invoke strict
scrutiny.9
Defendant's Brief at 16. Sussman, however, carefully caveats the circumstances in which such data collection might not invoke that scrutiny. That case dealt with the collection of such data by the Federal Deposit Insurance Corporation's Affirmative Employment and Counseling Section, not by anyone having the authority to either affect those making personnel decisions or to directly make personnel decisions:
...The FDIC's Affirmative Employment and Counseling Section has no authority comparable to the threat of extended government audit, license denial, and forfeiture which the Court of Appeals [in Lutheran Church] found would inevitably convert a potential concern about under-representation on the part of the FCC and the licensee into a hiring preference. The FDIC's Affirmative Employment and Counseling Section has absolutely no authority over hiring -- its role is only to identify potential problems. Thus, the inference that the affirmative action program leads to racial preferences in hiring decisions simply is not present in this action.
Sussman, 39 F. Supp. 2d, at 27.
The instructions here came from the Secretary of the Air Force directly to subordinate military officers. The Secretary of the Air Force unquestionably has disciplinary authority over these officers. And these officers unquestionably were making personnel evaluations leading to the termination of careers. Charging these officers in this situation with race and gender based statistic gathering is a classification which must be subjected to judicial scrutiny. Put more precisely, these officers were not simply gathering statistics they were creating and reporting on their action. The statistical report to the Secretary and Chief of Staff was not a report on the actions of others.
The instruction presumes only minorities and females are the victims of discrimination placing them at a disadvantage and does not advance truly generic equal opportunity protection. Moreover, the instructions create a process whereby subjective evaluations of imaginary instances of discrimination become the basis for displacing merit based selections. The instruction charges those making career ending recommendations with the generation of race and gender selective statistics and report rendering. Whatever the value of the instruction, its benefits cannot constitutionally be denied to those belonging to unfavored groups.
ARGUMENT
VI. THE PLAINTIFFS ARE ENTITLED TO JUDGMENT ON THE
ADMINISTRATIVE RECORD.
In most settings, the determination that governmental distribution or denial of a benefit was based in whole or part on consideration of race or gender would immediately lead to detailed judicial review of the governmental actions in question to determine compliance with the applicable standard. There is, however, a class of governmental undertakings for which such further review is unnecessary because no compelling governmental interest can justify the action taken.
The FY93RIF Board was not conducting evaluations for scholarships or other career initiating actions. It was ending careers. Because the FY93RIF Board was a process used to involuntarily terminate officer careers, no compelling governmental interest could support the use of racial considerations in its selection process. In Wygant v. Jackson Board of Education the Supreme Court addressed ". . . the question whether a school board, consistent with the Equal Protection Clause, may extend preferential protection against layoffs to some of its employees because of their race or national origin." Wygant v. Jackson Board of Education, 476 U.S. 267, 269 (1986). The Wygant plurality stated
This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.
Wygant, 467 U.S. at 274. Thus, prior discrimination by the governmental unit involved is a compelling governmental interest that may support the limited use of racial classifications. In Wygant, the case reached the Supreme Court without there ever having been a determination that the school board had discriminated against minority teachers. The Wygant plurality, however, curtailed its effort to define compelling interests in the context of race based preferential protection against layoffs because no compelling interest, including prior governmental discrimination, could justify that remedy:
Many of our cases involve union seniority plans with employees who are typically heavily dependent on wages for their day-to-day living. Even a temporary layoff may have adverse financial as well as psychological effects. A worker may invest many productive years in one job and one city with the expectation of earning the stability and security of seniority. "At that point, the rights and expectations surrounding seniority make up what is probably the most valuable capital asset that the worker 'owns,' worth even more than the current equity in his home." Fallon & Weiler, Conflicting Models of Racial Justice, 1984 S. Ct. Rev. 1, 58. Layoffs disrupt these settled expectations in a way that general hiring goals do not. While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. We therefore hold that, as a means of accomplishing purposes that otherwise may be legitimate, the Board's layoff plan is not sufficiently narrowly tailored. Other, less intrusive means of accomplishing similar purposes -- such as the adoption of hiring goals -- are available. For these reasons, the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause.
Wygant, 467 U.S., at 283-84. The career interests of Air Force officers are no less subject to protection than the teachers victimized by racial preferences in Wygant. Even assuming prior organizational racial discrimination, the classification undertaken here, race based preferential treatment in reduction-in-force selection boards, cannot be supported. Accordingly, plaintiffs are entitled to judgment on the administrative record.
ARGUMENT
CONCLUSION
In this case the Air Force seeks the judicial creation of an unprecedented exception to equal protection guarantees: basically that giving blatant, specific race and gender based orders to subordinate military officers conducting selection boards does not constitute classifications subject to judicial scrutiny. That proposition mocks the role of the judiciary in preserving Constitutional rights.
Rarely does a Service Secretary issue an order that is directly received by a service member. Here, the Air Force Secretary issued personal, direct orders requiring race and gender based measures to officers who rarely had any direct relationship with the Secretary. That, coupled with the cumulative effect of the overall scheme that the Secretary crafted, leaves no question that, whatever the intent, the Secretary's instructions created racial and gender classifications and denied the plaintiffs their right to equal protection. This was not a racially neutral test. Rather, it was a mandate to board members to treat women and minority officers under consideration differently than white male officers. That distinction in treatment, based solely upon race and gender, is by definition, a racial and gender classification. As such, it is suspect and richly deserving of strict and heightened scrutiny. Having crossed the constitutional threshhold by introducing race and gender into a career ending board selection process, the defendant's efforts to avoid legal responsibility for that course of conduct are infirm and unsupportable by its own referenced case law.
Moreover, even assuming the Air Force could theoretically present a compelling governmental interest as the basis for its introduction of these measures, use of such measures in the course of terminating individual careers cannot as a matter of law satisfy the narrow tailoring requirement of strict scrutiny. Accordingly, plaintiffs respectfully request that the Court grant their motion for judgment on the administrative record and deny the defendant's motion for judgment on the administrative record.
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