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Plaintiffs have filed a motion for judgment on the administrative record asserting that requiring the use of express
race and gender conscious procedures by a military selection board designating individual officers for career
termination cannot satisfy the applicable standard of judicial review: strict scrutiny. The Air Force now concedes
the Memorandum of Instructions (“MOI”) to the Fiscal Year 1993 Reduction in Force Board (“FY93 RIF Board”)
were indeed race and gender conscious, but the defendant has filed an opposition to that motion. In further
compliance with the Court’s January 27, 2000 order, plaintiffs hereby reply to defendant’s opposition. Plaintiffs
primarily rely upon the discussion of the issues set forth in the brief accompanying our motion and, in the interest of
brevity, here only address those matters warranting additional comment.
The Judiciary Owes the Air Force No Deference in
the Interpretation of Constitutional Law
In their opposition the Air Force continues to assert that this Court’s review of compliance with
Constitutional standards in this case concerns “military decisions” to which judicial deference is applicable.
Defendant’s Reply to Plaintiffs’ Opposition to Defendant’s Motion for Judgment upon the Administrative
Record and Opposition to Plaintiffs’ Motion for Judgment upon the Administrative Record at page
1 footnote 1 (hereinafter “Defendant’s Opposition”).
Such a representation of the applicable case law, although not new, is unworthy of defendant.
As the United States Court of Appeals for the Federal Circuit has observed
The government again argues that this issue is not subject to review in the Court of Federal
Claims, now stressing the special deference that is given to decisions of military officials in managing the
armed forces. In Goldman v. Weinberger, 475 U.S. 503, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986),
the Supreme Court discussed the basis of deferential constitutional review of discretionary acts of military officials,
observing that "the military must insist upon a respect for duty and discipline without counterpart in
civilian life."
Id. at 507 (quoting Schlesinger v. Councilman, 420 U.S. 738, 757, 43 L. Ed. 2d 591, 95 S. Ct. 1300 (1975)).
Our concern, however, is not for the correctness of the Army's decision to separate
Mr. Holley based on his infractions; our concern is solely whether the decision to do
so without a full hearing before a board of inquiry violated any statute, regulation, or
the fundamental due process that the Constitution provides to all persons. The issue
of discharge procedure is not one of achieving legitimate military ends,
Goldman, 475 U.S. at 506,
but a matter of compliance with law.
Review of compliance with statute, regulation, and the Constitution is the judicial responsibility.
Cf. Padula v. Webster, 822 F.2d at 101
(discretionary act of agency in employment action is subject to constitutional review).
Indeed, when a constitutional challenge is raised to the implementation of statute or regulation,
denial of judicial review of the challenged provisions would itself raise a "serious constitutional question."
Salfi, 422 U.S. at 762.
Holly v. United States, 124 F.3d 1462, 1467-68 (Fed. Cir. 1997)(emphasis added).
Neither case cited by the Air Force supports judicial deference to this challenge:
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), dealt with a Navy policy
excluding homosexuals. The court concluded that status as a homosexual did not make an individual
a member of a class to which heightened scrutiny must be afforded. Accordingly, the judicial
standard for review of the challenged policy was whether it was rationally related to a permissible
governmental end. In the course of applying that standard, the Court appropriately gave serious
consideration to military judgments concerning the impact of the presence of homosexuals on good
order and discipline.
In Goldman v. Weinberger, 475 U.S. 503 (1986), the Supreme Court upheld a Court of
Appeals decision setting aside an injunction against a military policy precluding the wearing of any
headgear, including a yarmulke, indoors. The Court considered the military’s evaluation of its need
for uniform standards in the course of determining whether this incidental restriction on religiously
motivated conduct was appropriate.
In both these cases the courts confronted military policies that were arguably pursued to enhance
readiness but which incidently affected constitutional rights. In both these cases the courts had fully
developed records articulating military judgments. They are distinguishable from this case for at least
those two critical reasons: This case concerns the constitutionality of procedures terminating military
careers not military readiness policies
(see discussion of Holly v. United States, 124 F.3d 1462 (Fed. Cir. 1997), supra).
Second, even if some military readiness issue were relevant to this matter defendant has not provided
the Court with a record from which to consider it. The defendant forcefully and successfully argued
against any supplementation of the record in this case for the purpose of the pending motions.
All that is before this Court is simply directions to a military board encumbered with race and gender
conscious procedures. Defendant can hardly suggest it is appropriate for the Court to presume both
the nature of the judgments that lead to these procedures and the military needs requiring them and to
then defer to its speculation on those judgments. If this Court is to uphold defendant’s use of race and
gender conscious selection board proceedings strict scrutiny, not deference, would be the standard to
be applied.
The Air Force Misconstrues Racial Classifications
In our motion we set forth three express race and three express gender based measures
required by the instructions given the FY93 RIF Board. As to two of the express race
and two express gender based measures the Air Force now concedes the language of
the instructions is indeed “race and gender conscious.”
1
AR 2-3. Defendant concedes the
first two are indeed race conscious but clings to the argument the third is simply a
ministerial statistical tasking. Defendant’s Opposition at 3-5. Defendant’s Opposition at 3-4.
Nevertheless, defendant insists that these race and gender conscious instructions to a
selection board are no more than “the mere mention of minorities and women” and
not race or gender classifications for purposes of ascertaining the standard of judicial review.
Defendant’s Opposition at 2. Defendant appears to have reached this conclusion through
a narrow reading of the holding of
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). In particular, defendant
attempts to turn the word “classification” into a severe limitation on matters to which strict
scrutiny applies and rejects plaintiffs’ assertion that this term is not a term of art but the
equivalent of other terminology such as “race based measures.” In the course of this analysis
defendant questions plaintiffs’ use of the phrase “race-based measures” pointing out that the
Adarand decision only used the phrase in reference to
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Defendant’s opposition at 7-8.
Defendant, however, has ignored the Supreme Court’s own very recent (January 12, 2000)
use of that phrase to describe its Adarand holding:
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 Constructors, Inc. v. Slater, 120 S. Ct. 722, 724;
145 L. Ed 2d 650, 655 (2000)(per curiam)(emphasis added).
Defendant’s attempt to add narrow technical meaning to the word “classification” is unjustified.
2
Wessmann v. Gittens, 160 F.3d 790, 794 (1st Cir. 1998). There is no indication that the
Supreme Court used “classification” for other than its common meaning, “the act or process of classifying.”
3
Merriam-Webster’s Collegiate Dictionary. Moreover, “classification” is not the only word which
the court used to relate the circumstances which warrant strict scrutiny. Within the
Adarand majority decision, in addition to “race-based measure,” other phrasing such as
“based upon race” is also used and not just juxtaposed with “classification” but rather also in
conjunction with “action,” “treatment,” and “disposition.” For example:
When race-based action is necessary to further a compelling interest,
such action is within constitutional constraints if it satisfies the "narrow tailoring"
test this Court has set out in previous cases.
Adarand Constructors, Inc., 515 U.S., at 237 (emphasis added). Indeed, when the
Court summarized the strict scrutiny standard it clearly used the terms “classifications”
and “measures” interchangeably:
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 Constructors, Inc., 515 U.S., at 227 (emphasis added).
Defendant’s citation to Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487 (D.C. Cir. 1998)
for support of the assertion the MOI’s race and gender conscious procedures are not classifications
is unavailing. Defendant’s Opposition at 2-3. The opinions rendered in the course of the adjudication
of the Lutheran Church matter do not support defendant. The Lutheran Church decisions dealt with
Equal Protection challenges to Federal Communications Commission (“FCC”) race conscious
affirmative action regulations. The FCC pursued the Lutheran Church Missouri Synod for failing to
comply with those regulations. The United States Court of Appeals for the District of Columbia
Circuit held those regulations unconstitutional.
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998).
The FCC and Department of Justice sought rehearing of that decision which was denied and,
as we noted in our motion, in the course of denying that request the court of appeals held:
... 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.
Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 491-92 (D.C. Cir. 1998).
Race and gender are irrelevant to decision making. This is hardly a novel interpretation of Constitutional law.
In fact, that position was obviously accepted by the government in the initial Lutheran Church-Missouri
Synod proceeding. That decision states:
....Though the Supreme Court did not initially apply strict scrutiny to federal
"affirmative action" programs, see
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990),
it recently reversed itself to hold that strict scrutiny applies whether or not the government's
motivation to aid minorities can be thought "benign." Adarand, 515 U.S. at 227.
The Commission and DOJ, however, argue that Adarand does not go so far as it appears.
The Commission insists that Adarand reaches only race-conscious "hiring decisions."
Taking a slightly different approach, the Justice Department urges that it only
applies to race-conscious "decision-making." But both say that because the
EEO regulations stop short of establishing preferences, quotas, or set-a-sides, rational
basis is the appropriate standard.
We rather doubt that restricting Adarand to race-based "decision-making"
-- as DOJ would have us do -- would save these regulations from strict scrutiny.
They affect all kinds of employment decisions. For example, when deciding how to fill job
vacancies, the regulations require a station to choose minority-specific referral sources.
47 C.F.R. § 73.2080(c)(2). Likewise, an employer must conduct a formal analysis
of its success in recruiting women and minorities and make decisions about its selection
techniques and tests accordingly. 47 C.F.R. § 73.2080(c)(5). The Justice Department
surely cannot be taking the position that these are not decisions, but must be joining the
Commission in claiming that these sorts of decisions are just too insignificant to count.
Under Title VII, courts have distinguished between "preliminary" and "ultimate"
employment decisions.
See, e.g., Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en banc)
(holding that section 717, which forbids the government from discriminating in
"personnel actions," does not apply to decisions with no immediate effect on
employment.) Even if we thought that some of the requirements of §73.2080(c) --
those which could be described as outreach efforts -- had no real or immediate effect
on employment, we are not sure that we would accept the government's premise.
While there is a textual basis under Title VII for drawing such a line, the Equal Protection
Clause would not seem to admit a de minimis exception.
Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351 (D.C. Cir. 1998)
(emphasis added). The conduct of the FY93 RIF Board deals with immediate, up-close and
personal “decision-making,” not collateral “outreach efforts.” It concerns express race and
gender conscious procedures in the termination of careers. The Lutheran Church decisions
offer no support for the proposition that such express race and gender conscious procedures
escape strict scrutiny. Moreover, Lutheran Church is also very instructive in regard to
defendant’s misuse of statistical analysis:
If a non-discriminatory hiring policy would necessarily yield a workforce with
a racial composition that matches that of the Metropolitan Statistical Area,
then it might be argued that requiring employers to examine the racial composition
of their workforces is simply an anti-discrimination enforcement technique that
does not implicate racial preferences. However, not only has the Commission
provided no support for this proposition, but as we said in our opinion, the
Commission has in fact disavowed it, saying that “we do not believe that fair
employment practices will necessarily result in the employment of any minority
group in direct proportion to its numbers in the community.”
Lutheran Church-Missouri Synod, 141 F.3d at 352.
Lutheran Church-Missouri Synod v. FCC, 154 F.3d 487, 492 fn 7 (D.C. Cir. 1998).
As a Result of Adarand the Croson Analysis Applies to All Federal
Race Based Measures
Defendant disagrees with plaintiffs’ citation to Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
asserting “... the Supreme Court in Adarand did not adopt the
Croson ‘race-based measure’ standard.” Defendant’s Opposition at 8. Defendant is wrong.
In Adarand the Supreme Court made clear that the strict scrutiny standard applied in
Croson to a city was equally applicable to federal entities and reversed the contrary holding
of Metro Broadcasting, Inc. v. Federal Communications Comm’n, 497 U.S. 547 (1990).
It does violence to logic to suggest that Adarand was creating a new standard for Equal
Protection analysis of actions by federal entities when the major focus of that decision was the fundamental
requirement for a single judicial standard for such analysis regardless of the sovereign involved:
But in this case, as we have explained, we do not face a precedent of that kind
[one to which the principles behind stare decisis were important], because
Metro Broadcasting itself departed from our prior cases -- and did so quite
recently. By refusing to follow Metro Broadcasting, then, we do not depart
from the fabric of the law; we restore it.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 233-234 (1995).
Adarand did not create a new standard, it removed exceptions to the
application of an existing standard to the federal government.
The FY93 RIF Board MOI is Not Race and Gender Neutral
Plaintiffs reassert that the precedents cited by defendant actually support plaintiffs’ position that
the instructions to the FY93 RIF Board contain express race and gender classifications.
Among these cases are Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999)
and Allen v. Alabama State Board of Education, 164 F.3d 1347 (11th Cir. 1999)
in which employment examinations were at issue. Defendant notes “....plaintiffs appear to
suggest the examinations in Allen and Hayden were facially neutral because
they did not expressly refer to race or gender.” Defendant’s Opposition at 12-13.
Well, yes, that is what plaintiffs assert, and it is what Hayden, for example, determined:
To state a claim for an equal protection violation, appellants must allege
that a government actor intentionally discriminated against them on the
basis of race, national origin or gender. Such intentional discrimination
can be demonstrated in several ways.
First, a law or policy is discriminatory on its face if it expressly
classifies persons on the basis of race or gender.
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213,
227-29, 115 S. Ct. 2097, 2105, 2112-14, 132 L. Ed. 2d 158 (1995).
In addition, a law which is facially neutral violates equal protection if it is
applied in a discriminatory fashion.
See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064,
1072-73, 30 L. Ed. 220 (1886). Lastly, a facially neutral statute
violates equal protection if it was motivated by discriminatory animus and
its application results in a discriminatory effect.
See Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 264-65, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977).
The sole allegation set forth in appellants' complaint as to their Equal
Protection claim is that "by designing, administering and scoring the
Exam in a race-conscious way, with the intent of solely or primarily
benefitting one racial group to the detriment of other racial or ethnic
groups, Defendants have violated . . . the equal protection of the
law guaranteed by the Fourteenth Amendment . . . .
" In the briefs submitted to this Court, appellants further argue that
this allegation should be construed as a facial classification which
expressly distinguishes between applicants on the basis of race.
Appellants reason that since Nassau County designed the 1994
exam with racial factors in mind (i.e., with the intent to diminish
the adverse effects suffered by minority applicants), Nassau
County has expressly treated applicants differently because of
their race. Accordingly, they argue a strict scrutiny standard of
review should be applied.
We find this argument wholly without merit.
A statute or policy utilizes a "racial classification" when,
on its face, it explicitly distinguishes between people on
the basis of some protected category.
Hayden v. County of Nassau, 180 F.3d 42, 47 (2nd Cir. 1999) (emphasis added)
(heading omitted).
Allen, a case concerning a challenge to a consent decree, does not discuss facial challenges, however, it holds:
.... In Ensley Branch, we held that race-conscious hiring provisions
contained in certain consent decrees were not narrowly tailored to
a compelling state interest. We emphasized that instead of enforcing
these racial preferences, the district court should have required the
defendant to follow "the single most important race-neutral alternative"
in the decree: "the requirement that the Board develop and put in place
non-discriminatory selection procedures...."
Ensley Branch [v. Seibels], 31 F.3d [1548] at 1571. ...
***
Ensley Branch envisions a process whereby governmental employers
must be conscious of race in developing job selection procedures,
ensuring that neutral selection procedures do not in fact result in a
discriminatory impact on African-American candidates. Our holding
in Ensley Branch that the Equal Protection Clause does not forbid
consent decree provisions that require governmental entities to take
race into account in
formulating non-discriminatory selection procedures
applies equally here.
Allen v. Alabama State Board of Education, 164 F.3d 1347, 1353 (11th Cir. 1999)
(emphasis added). Defendant refuses to acknowledge the difference between the process of
creating neutral procedures and the application of such procedures. Neither
Allen nor Hayden in any way suggest that race-conscious
selection procedures avoid strict scrutiny. The proposition of such cases is simply
that the effectiveness of proposed purportedly neutral procedures can be tested through race
or gender conscious procedure evaluations. They do not support race and gender conscious
evaluations of individuals. Defendant argues Allen “is directly applicable to this case” and that the
“... Allen defendants were race conscious in developing their examination, just as the MOI’s
language demonstrates the Air Force was race and gender conscious in developing its MOI.”
Defendant’s Opposition at 13. Indeed this may be partially true. While the
Allen defendants produced race neutral procedures,
4
the Air Force produced an MOI with explicit race and gender based measures which ordered
race and gender based actions by selection board members. Allen is directly applicable to this
case in so much as it reveals why this MOI is subject to strict scrutiny and the neutral examination of
Allen was not.
5
Plaintiffs Are Entitled to Judgment on the Administrative Record
Based upon the Supreme Court’s analysis of the application of the strict scrutiny
standard to employment termination decisions affecting innocent third parties in
Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986),
plaintiffs moved for judgment on the administrative record. In opposition, defendant suggests that
Wygant is “... not relevant at this juncture.” Defendant’s Opposition at 21 footnote 9.
Wygant, however, is very relevant at this juncture and defendant’s attempt to distinguish
it is without merit.
6
In Wygant a school board and teachers’ union had negotiated a collective bargaining
agreement provision that was race conscious in identifying individuals for lay offs.
Non-minority teachers affected by this provision challenged it as a violation of the
Equal Protection Clause. The District Court rejected that challenge concluding that
the Equal Protection Clause did not preclude such action to provide role models
for children. The Supreme Court reversed rejecting the role model theory as a predicate
for allowing considerations of race in employment decision making. The Court noted
Evidentiary support for the conclusion that remedial action is warranted becomes
critical when the remedial program is challenged in court by nonminority employees.
In this case, for example, petitioners contended at trial that the remedial program --
Article XII -- had the purpose and effect of instituting a racial classification that was
not justified by a remedial purpose.
546 F.Supp., at 1199. In such a case, the trial court must make a factual
determination that the employer had a strong basis in evidence for its conclusion
that remedial action was necessary. ...
***
... no such determination ever has been made [in this case]. ...
The Board now contends that, given another opportunity, it could
establish the existence of prior discrimination. Although this argument
seems belated at this point in the proceedings, we need not consider
the question since we conclude below that the layoff provision was
not a legally appropriate means of achieving even a compelling purpose.”
***
We have recognized, however, that in order to remedy the effects of prior
discrimination, it may be necessary to take race into account. As part of
this Nation's dedication to eradicating racial discrimination, innocent
persons may be called upon to bear some of the burden of the remedy.
"When effectuating a limited and properly tailored remedy to cure the
effects of prior discrimination, such a 'sharing of the burden' by innocent
parties is not impermissible." Id., at 484, quoting
Franks v. Bowman Transportation Co., 424 U.S. 747, 777 (1976).
***
... Here... the means chosen to achieve the Board's asserted purposes
is that of laying off nonminority teachers with greater seniority in order to
retain minority teachers with less seniority. We have previously expressed
concern over the burden that a preferential-layoffs scheme imposes on
innocent parties. See
Firefighters v. Stotts, 467 U.S. 561, 574-576, 578-579 (1984); see also
Steelworkers v. Weber, 443 U.S. 193, 208 (1979)
("The plan does not require the discharge of white workers and their
replacement with new black hirees"). In cases involving valid hiring goals,
the burden to be borne by innocent individuals is diffused to a considerable
extent among society generally. Though hiring goals may burden some
innocent individuals, they simply do not impose the same kind of injury
that layoffs impose. Denial of a future employment opportunity is not
as intrusive as loss of an existing job.
***
...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, 476 U.S., at 277-284 (footnotes omitted). Thus, in
Wygant, on an incomplete record, judgment for a governmental entity defending
race conscious action was reversed even where that entity claimed to have participated
in prior discrimination based on race because, even if the record properly supported
that claim, layoffs of innocent persons could not meet Equal Protection standards.
Here, the record establishes no Air Force remedial purpose behind its use of race and
gender conscious instructions mandated for use by a reduction-in-force board which is,
for all practical purposes, the military officer equivalent of lay-off. Clearly
Wygant is relevant at this juncture.
The Air Force also asserts
“... Wygant is distinguishable from this case because the Air Force could not meet
strength reductions mandated by Congress without conducting an involuntary reduction-in-force.”
Defendant’s Opposition at 21 footnote 9. There is no merit to this assertion. Assuming,
arguendo, that a reduction-in-force was in fact required to meet strength reductions
required by Act of Congress, that fact does not implicate any requirement for the proceeding
to be conducted in a race or gender conscious fashion. What legitimate reduction in force
goals of the Air Force could not be accommodated by a neutral instruction? The Air Force
was free to conduct a neutral proceeding and has cited no provision of law to the contrary.
Conclusion
Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997) held
“We conclude that there is no de minimis exception to the Equal Protection Clause.
Race discrimination is never a ‘trifle.’”
7
When the United States Court of Appeals for
the Ninth Circuit declined to consider that case en banc, Circuit Judge Kleinfeld rendered
a concurring opinion that eloquently describes what cases like this and
Monterey concern:
A fundamental principle underlies the decision: Americans are
entitled to be treated equally by their government, regardless
of their race, their skin color, their nationality, their religion,
their sex. The seed of this principle was planted in the
Declaration of Independence: "We hold these truths to be
self-evident, that all men are created equal." The fruit is the
Fourteenth Amendment to the Constitution: "Nor shall any state . . .
deny to any person within its jurisdiction the equal protection
of the laws." The Fourteenth Amendment extends its guarantees
to "any person," in the singular, regardless of that person's ethnicity or sex.
Monterey Mechanical Co. v. Wilson, 138 F.3d 1270 (9th Cir. 1998).
The fruit of that principle is now also firmly embodied in the Fifth Amendment to
the Constitution by virtue of
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). But
individuals will actually reap the benefits of that fruit only as Courts enforce the principle:
Courts apply law, and do not act as
representative bodies. Judges adhering to their
oaths vote based on their view of the law,
not their view of their ethnic groups' interests.
Many of us have ethnic characteristics that make
past discrimination against our own groups quite
unforgettable, but that cannot be a basis for
deciding a case. The Constitution and precedent
are the same whatever our ethnicity. Thought
comes from the brain, not the blood.
Monterey Mechanical Co., 138 F.3d, at 1272. For the vindication of that Constitutional
principle as set forth above and in our motion, we respectfully request the Court grant judgment upon
the administrative record in favor of the plaintiffs, and deny defendant’s motion for judgment upon
the administrative record.
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