Personnel Administrator of Massachusetts v. Feeney

PETITIONER:Personnel Administrator of Massachusetts
RESPONDENT:Feeney
LOCATION: Massachusetts General Assembly

DOCKET NO.: 78-233
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 442 US 256 (1979)
ARGUED: Feb 26, 1979
DECIDED: Jun 05, 1979

ADVOCATES:
Richard P. Ward – Argued the cause for the appellees
Thomas R. Kiley – Argued the cause for the appellants

Facts of the case

A Massachusetts law gave hiring preference to honorably discharged veterans applying for state civil service positions. Feeney, a woman who scored high on certain competitive civil service examinations, was ranked below male veterans who had lower scores.

Question

Did the law discriminate against women and violate the Equal Protection Clause of the Fourteenth Amendment?

Warren E. Burger:

We will hear arguments next in Personnel Administrator of Massachusetts against Feeney.

Mr. Kiley, I think you may proceed when you are ready.

Thomas R. Kiley:

Mr. Chief Justice and May it please the court.

My name is Thomas R. Kiley.

I’m the first Assistant Attorney General at the Commonwealth of Massachusetts.

With me at counsel table A is Attorney General Francis X. Bellotti.

We appear today in defense of the Commonwealth’s veterans preference statute.

The statute which was quantified when challenged is Massachusetts General Laws Chapter 31, Section 23 and which is set forth in the form which it existed at that time at page 3 of our brief.

In the essence, it is a positional veteran’s preference statute, which places veterans who qualify for civil service jobs by passing examinations.

At the top of civil service lists of those eligible for appointment to jobs.

This positional preference statute is challenged by Helen B. Feeney, a non-veteran female who alleges that the application of the statute denies her and people of gender, equal protection of the laws.

The thrust of her complaint is that few women are veterans and that application of the veteran’s preference naturally excludes women from civil service jobs.

The case comes to this court on appeal from a divided three judge panel in the United States District Court for the District of Massachusetts.

That court first decided this case in March of 1976 invalidating the state statute largely on the basis of its impact on women.

On our original appeal, you remanded the cause to the District Court for reconsideration in light of Washington and Davis.

The case which we submit repudiated the impact analysis used by the Court below.

Potter Stewart:

Is this exclusively an equal protection case?

Thomas R. Kiley:

It is exclusively an equal protection case Mr. Justice Stewart.

It could not be Title VII seven case, under Title VII veteran’s preference statutes are explicitly excluded.

Potter Stewart:

Right, and it’s not, no reliance is placed upon the due process clause.

Thomas R. Kiley:

Well, it is an Equal Protection Clause case as it is been decided I think.

Potter Stewart:

And it’s been argued and —

Thomas R. Kiley:

Yes.

Potter Stewart:

Reported.

Thomas R. Kiley:

Yes, Mr. Justice Stewart.

The three judge panel reconsidered this case on the original record and adhered to its original ruling, essentially agreeing with Mrs. Feeney’s basic contention that the veterans preference statute is applied in Massachusetts invidiously discriminates against women in violation of Equal Protection Clause.

We obliviously disagree with that conclusion, but we do not disagree with everything that the District Court had to say in this case.

In the areas of agreement are important to emphasis of the outset of the argument because they serve to narrow our focus.

First, nobody seems to contend that the concept of a civil service hiring preference for veterans is itself unconstitutional.

Each of the judges who considered this case, the parties before this court and amicus curii, all seem to staff from the premise the veteran’s hiring preferences are constitutional and that they are further important societal objectives.

Potter Stewart:

That is, there is no claim that — assumed there were an equal number of males and females or veterans and non-veterans, there’s no claim that the discrimination in favor of veterans and against non-veterans is itself.

Thomas R. Kiley:

Unconstitutional.

Potter Stewart:

Or violating the Equal Protection Laws.

Thomas R. Kiley:

And those who challenge the concept of veteran’s preference, or those who challenge this preference do not challenge it but because of the concept or because they believe this statute goes too far.

Potter Stewart:

Well and discriminates against females.

Thomas R. Kiley:

I think the argue — the essence of the District Court’s opinion is that there is nothing unconstitutional about the statute even though fewer women benefit, but that this particular statute goes too far.

William H. Rehnquist:

Do you refer to the District Court’s opinion, you really have to take Judge Campbell’s opinion, Judge Tauro’s opinion together, don’t you to —

Thomas R. Kiley:

I think, I frankly Mr. Justice Rehnquist, I think I have to take both of their opinions in both of the cases because of the way this particular case is, happens to come before the Court.

To the extent that the disagreement on the form of the particular statute maybe appropriately framed in the judicial as opposed to legislative form, its resolution before this court may well turn on the operation of the Massachusetts Civil Service System and the facts of this particular case.

If I accomplish nothing else today I hope to focus the court’s attention on the operation of the statute and on the facts in this case.

The second statement of the District Court’s opinions with which we wholeheartedly concur, is the conclusion of the Massachusetts Veterans Preference was not enacted for the purpose of disqualifying women from receiving civil service position and it’s concession that the State’s prime objective of aiding those who served our country in time of war is rational and legitimate.

The third point on which we agree with the lower court is that this case is not a vehicle for an evaluation of the constitutionality of Federal investment policies.

Policies which the plaintiff Mrs. Feeney’s presumes amount to a (Inaudible) this system of sex discrimination in Federal military service.

If the plaintiff or a class of women want to challenge the Federal investment policies, let them do so directly and not collaterally and let the Federal Government have the opportunity to defend its own statutes and regulations.

We consent to you today not with the Federal policies themselves, it’s solely with the question of the validity of the Massachusetts Veterans Preference.

And the application and the answer to the question turns lastly according to the plaintiffs on the application, operational effects of the statute.

Before any analysis of this case must begin with an understanding of the Massachusetts Civil Service System.

To begin with all State jobs are not covered by that system, 40% of the jobs many of them upper level, higher paying policy making positions, the kind of positions this Court discussed in Elrod v. Burns are not covered by the Civil Service System at all.

60% of the jobs are and they fall entirely into two categories of jobs.

They are classified labor service and classified official service and Mrs. Feeney’s challenge in this case close goes only to or at least her evidence in this case was only to the official classified service, one of the two components.

Potter Stewart:

That is the classified official service.

Thomas R. Kiley:

Classified official service, I tend to mix up my adjectives.

Potter Stewart:

But — does Massachusetts have the same veteran’s preference with respect to each?

Thomas R. Kiley:

Yes, we do — in the labor service there’s not the same examination procedures that we go for in the labor section.

In fact, the plaintiff in the court below seem to have narrowed the focus even further.

Conceding that women obtained a significant proportion of the jobs in the category of classified official service but arguing that they’re excluded from upper level higher paying jobs whatever they may be.

Anyone who applies for a —

Potter Stewart:

In that service?

Thomas R. Kiley:

In that service.

Anyone who applies for a permanent position in that or any service, in that service is required as a first step to pass an qualifying the examination.

Thomas R. Kiley:

On many of the lists that we’ve seen before us in the record, the qualifying examination reach out significant numbers of applicants.

Those who do pass the examination are placed on eligible lists but veterans who do not pass that qualifying examination get no form of veteran’s preference whatsoever.

Those who do pass are placed on eligible lists and the Personnel Administrator of the Commonwealth applying Massachusetts Law prepares those lists by listing first disabled veterans, then veterans, then surviving spouses or widows and finally all others who pass within each group in accordance with their respective examination scores.

Potter Stewart:

It’s now surviving spouses and widows are —

Thomas R. Kiley:

It is now surviving spouses or parents at the time of original —

Potter Stewart:

Surviving widows or mothers —

Thomas R. Kiley:

Widows or widowed parents, it was a sex specific term at that time.

Potter Stewart:

But no longer is?

Thomas R. Kiley:

No longer is, we have an equal rights amendment in Massachusetts, with its passage to many of the sex specific terms it typified a lot of legislations in the state.

Warren E. Burger:

Does the Massachusetts statute have a disproportionate effect on over men than on younger men?

Thomas R. Kiley:

The Massachusetts statute applies to the Massachusetts veterans’ preference statute.

It is not durational in its total.

It applies to people of all ages, veterans of all ages.

Warren E. Burger:

Well, people over 40 roughly at that cut off were less likely to be in the military in the World War II or somewhere in the World War I.

Thomas R. Kiley:

The statute does draw lines on the basis of the time of one’s service.

The statute is a war time preference statute.

Those who served not in World War II, not in Korea, not in Vietnam and are in the civil service system do not obtain a veteran’s preference.

Warren E. Burger:

I think I didn’t make my question very clear.

As it stands, the argument is that it has a disproportionate effect upon women because women generally weren’t in the military service, is that it?

Thomas R. Kiley:

In the time of war.

That’s correct Mr. Chief Justice.

Warren E. Burger:

Isn’t it also true that, let’s move it up to age 50; that men over age 50 generally were not in military servicing combat.

Thomas R. Kiley:

I think 50 is too young, perhaps 60 is the right age.

Warren E. Burger:

I’m probably talking in terms of numbers, how many men, what percentage of the armed forces in World War II, were over 50 years of age unless they were Colonels or Generals.

Thomas R. Kiley:

My reference, I think Mr. Chief Justice is to the age of individuals now and the preference as it operates now, the class of non-eligibles for the veterans preference includes approximately a million males.

The class of preference eligibles includes about 800,000 males and about 16,000 females.

After passing an examination, one waits for a requisition to come from a particular appointing authority and while there are various methods of certification that the personnel administrator uses, they all share one prime characteristic and that is — that he certifies more names than there are positions to be filled.

Moreover, at this stage of the process at least now in Massachusetts, the personnel administrator may certify a number of minority or women equal to the number of individuals who would be certified under the normal process if he first makes a determination that there has been discrimination against those people on the basis of race, sex, or national origin.

The final step in the appointment process is the actual hiring and is made by an appointing authority not by the personnel administrator.

It’s important to emphasize that the appointing authority need not appoint those who appear at the top of the list.

Thomas R. Kiley:

Certification guarantee is consideration, but not appointment, and an appointing authority is free to reach past the individual who appears at the top of the list and hire somebody who appears beneath him or her.

Thus a veteran, who is looking at the Civil Service System from the outside faces two significant barriers to appointment.

First, he has to pass the Civil Service Examination and then even if he gets to the top of the list he may not be hired by particular appointing authority.

It’s that system that Helen Feeney challenges.

As I stated earlier she is not a veteran and she never made application to serve in the military although in World War II she was in age when her peers — her contemporaries in terms of age were of an age when they were either volunteering a faced conscription.

In fact, Helen Feeney’s affidavit tells us the reason that she did not enter the service although she inquired as to admission practices is that her mother didn’t think that the reputation of women seek in the military at the time was good.

Helen Feeney turned 21 in 1943, she chose not to apply for the military thereafter.

Helen Feeney has an expansive employment record, spending 28 years from 1948 to 1975.

The early years of that service were all private sector jobs until 1963 she went exclusively in the private sector.

In 1962, she took and passed her first open competitive Civil Service Examination, it’s for a clerical position.

And in 1963, she was appointed to the clerical position in the Massachusetts Civil Defense Agency.

She held that clerical position for approximately four years at which time she took and passed an open promotional examination and became the agency’s Federal Funds and Personnel Coordinator.

She remained in that position for approximately eight years until a point within 53 days of the date she passed, she filed at this particular action, on that date the civil defense agency was effectively abolished in Massachusetts.

In addition to the two open competitive examinations, which she took regarding the Civil Defense Agency, Helen Feeney took and passed approximately seven open examinations in the civil service system in the ten years that preceded this compliant.

For one reason or another, she was never appointed to any of the positions for which she applied.

But she premises her case, she predicates the compliant largely on two particular positions which she applied for and did not obtain.

Those two positions are the Head Administrative Assistant at the Solomon Mental Health Centre, exhibit two of the appendix pertains to that slot and to the positions of Administrative Assistant in the mental health system generally, in exhibit 6 in the appendix pertains to that.

I will return to these two positions later in my argument and will demonstrate that in each instance, any injury that Helen Feeney suffered by virtue of the application of veterans preference was some — an inquiry that she shared in common with male non-veterans and that she would have suffered the same kind of injury whatever the form of veterans preference had been applied by that I mean it for 5 and 10 point preference model on the Federal system had been in effect.

But for this court the plaintiff has recast the issue if you will.

If you now ask the question whether a preference, which excludes women from competitive civil service positions by granting them an absolute preference violates the 14th amendment.

Her argument makes it clear that she uses the word competitive in this context an essence that is was used to apply to upper level, higher paying positions.

There are two other statements in this formulation of the issue which I want to bring to the attention of the court.

The first is the assertion that the preference afforded to veterans is absolute.

As the earlier discussion of the Massachusetts system shows the preference is not absolutely in any sense of the word, veterans’ first have to pass qualifying examinations in order to benefit from the preference, and then maybe passed over for people ranking overall examination on the eligible lists.

The second major statement which courses throughout the argument is that somehow Helen Feeney and women had been excluded; excluded from the Federal Military by the restrictive policies or excluded from the Massachusetts civil service system by application of veterans’ preference.

We submit the record in this case just as not support those broad conclusary statements, but the exclusory effects of this statute and of the restrictive Federal policies are more fiction than fact.

While veterans’ preference does benefit a class comprised more significantly of men than females, this adverse incidental impact is not enough to invalidate the statute in an equal protection challenge.

William H. Rehnquist:

Mr. Kiley, in reading the Massachusetts statute at least as it’s described in the district court opinion section 23 as I see, it just refers to other veterans in order there are composite scores after disabled veterans.

Is that a separate statutory provision that provides they must have the veterans in time of war?

Thomas R. Kiley:

Yes, the provision on defining what a veteran is, is chapter 4, section 7 of general laws.

Thomas R. Kiley:

It is a definitional section, which applies throughout Massachusetts law.

William H. Rehnquist:

And that’s set forth in the —

Thomas R. Kiley:

It is set forth in the briefs, the statute that cited — it’s chapter 4, section 7 and I believe it’s clause 43.

Any methodology of equal protection analysis begins with a focus on the classification’s facial neutrality or the nature of the particular classification.

I do not intend to spend much time on the nature of this particular classification.

The statute in question clearly draws lines but it draws lines not on the basis of one’s gender but on a basis of objectively identifiable standards shared by individuals of both sexes.

It restores competitive advantages on individuals regardless of their sex, who performed military service for the nation in time of war or who lost their husband and wife or son or daughter.

Those preferences eligible are objectively identifiable and they are objectively identifiable on the basis of characteristics which have nothing to do with gender.

The pool of eligibles and the pool of ineligibles are both comprised of significant numbers of people of both sexes.

Under any categorization, this statute is facially neutral in terms of gender.

Now however uneven the application of the statute maybe, you never that obviate that facial neutrality.

In Washington and Davis this Court articulated the principle that fits such facially neutral acts will not be invalidated solely on the basics of discriminatory impact.

In Arlington Heights you amplified on that holding and suggested a number of evidentiary factors which can illuminate the search for discriminatory intent.

One might have thought that the search in this particular case would have been very simple, after all the District Court, the first time around in this case stated that the Massachusetts Veterans’ Preference Statute was not enacted for the purpose of disqualifying women from receiving civil service appointments, but that the statute’s laudable purpose was not enough to insulate it from judicial invalidation.

This was because in the view of the District Court in the context of the Fourteenth Amendment it was the result and not the intent of the Act which mattered.

In spite of the obvious differences between that holding and this court’s holdings and Washington and Davis and Arlington Heights, in this case the District Court did make a finding on remand of discriminatory intent, and I submit that the methodology that the Court used in doing so, cannot be condoned by this Court.

William H. Rehnquist:

Well, I don’t read Judge Campbell’s opinion to find or make a finding of discriminatory intent.

I read Judge Toro’s opinion to find that.

Thomas R. Kiley:

I would suggest that Judge Toro’s opinion makes a specific finding of intents.

Judge Campbell articulates the premise that under Washington and Davis this is a very difficult case to deal with and to the extent that one must find discriminatory intent in order to invalidate the statute it’s there, he votes to invalidate.

William H. Rehnquist:

Well, let me read you from page 19 A of the jurisdictional statement, where he says about the middle of page to be sure the legislature did not wish to hire women, but the cutting off of women’s opportunity was an inevitable concomitant of the chosen scheme, as inevitable as the proposition that if tails is up heads must be down.

Where a law’s consequences are that inevitable can they meaningfully be described as unintended?

Doubtless the impact on women, if considered at all was regarded and acceptable “Cost” of aiding veterans.

I would read that simply as saying that the, where the foreseeable consequences are that obvious, they won’t save a statute even though the intent was not there to discriminate between men and women.

Thomas R. Kiley:

I think that if I might characterize Judge Campbell’s opinion he is saying that forcibility of the impact is the equivalent of finding an intent and if the results are inevitable; that, that in itself.

That predictably discriminatory impact is a substitute for intent.

I would submit that awareness of probable disparate effect could never be the constitutional equivalent of a finding of invidious intent to discriminate.

William H. Rehnquist:

You wouldn’t suggest that a Court reviewing a statute of this couldn’t find as a fact from inevitable consequences that there was in fact discriminatory intent.

Thomas R. Kiley:

I think that one can use forcibility of impact under limited circumstances as a factor in the evidentiary search, in the search for clear and convincing evidence or for substantial evidence that intent exists.

But I do not think that forcibility of impact in and of itself can ever satisfy an intent case unless the impact is so disparate as that yet may be welcome maybe another types of cases that this court discussed in Arlington Heights and in Washington and Davis.

Thomas R. Kiley:

A legislative awareness of a probable disparate effect is not the constitutional equivalent of purposeful discrimination.

The contention of the plaintiff echoed in the opinions of the lower court that the purpose, motive and intent, somehow all mean different things in a constitutional sense, I think it’s treated quite well in the solicitor General amicus brief, it makes the point that the purpose, intent and motive all have the same kind of, all mean the same thing in constitutional cases and that the court should be looking for convincing evidence of the motive or motives which influenced in a particular Governmental Act.

Now the Court in this case focused primarily on the impact of the statute, saying that the impact was predictable and that it was devastating, and it pointed essentially the four types of proof of that fact.

Mrs. Feeney’s own employment record, the employment record of other women in the official classified service.

Some unquantified general statements about the way Veterans Preference operates that appear in paragraph 20 of the aggrieved statement and then an analysis of 50 lists, which were appended to the complaint, as examples of thousands of lists, an example of lists on which women were harmed by the application of Veterans’ Preference, but not as typical lists.

Mrs. Feeney’s own employment record doesn’t demonstrate the propositions of women were absolutely excluded from upper level civil service jobs and by the application of Veterans’ Preference.

Potter Stewart:

But General Kiley you are not seriously contending are you that this Veterans’ Preference doesn’t have an extremely discriminatory impact on women, 98% or some such percentage of all of Veterans’ in Massachusetts are males, right.

Thomas R. Kiley:

I am contending that the impact of this particular statute has been consistently overstated; I’ll do it on this basis.

Helen Feeney herself held a significant civil service position.

The single largest group of individuals hired in the ten-year period, if they’re based on both sex and veterans status in non-veteran females.

They obtained 42.2% of all of the jobs in the ten-year year period.

Potter Stewart:

In this classification?

Thomas R. Kiley:

In this classification, (Inaudible) stripping male veterans (Inaudible) stripping male non-veterans.

Potter Stewart:

Why should that be with the Veteran’s preference?

Thomas R. Kiley:

Well, all I am saying Mr. Justice Stewart —

Potter Stewart:

Well why is it with the veteran’s preference?

Thomas R. Kiley:

My own personal view is that traditionally men and women do not always compete for the same jobs.

We submitted an affidavit of Wallace counts which pertains to a two-months period after the court originally invalidated this Veteran’s Preference Statute in 1976 and it demonstrated that on 61% of the lists compiled in that timeframe, Veterans Preference would have made no difference on the gender classification of those certified 61% of the times. Men and women simply do not always compete.

Thurgood Marshall:

That’s ancient history now isn’t it?

Remember we had case about a woman who wanted to be a prison Gordon Alabama.

Thomas R. Kiley:

I do, I remember the case.

Thurgood Marshall:

Remember that case?

Thomas R. Kiley:

I do.

Thurgood Marshall:

Well that’s kind of out of the ordinary wasn’t it?

Thomas R. Kiley:

I don’t know if that was out of the ordinary.

Thurgood Marshall:

Well, in all civil rights, individual rights.

Thomas R. Kiley:

Certainly, certainly.

Thurgood Marshall:

So that an ordinary right is just as important.

Thomas R. Kiley:

Yes, Mr. Justice Marshall, all I am suggesting is that in this record, in the timeframe that we have this evidence; women obtained significantly more jobs than men.

Thurgood Marshall:

And I think I remember is certain job.

Thomas R. Kiley:

The figures that we have —

Thurgood Marshall:

And that’s typical isn’t it?

Thomas R. Kiley:

The figures that we have–

Thurgood Marshall:

It hasn’t gone yet has it?

Thomas R. Kiley:

The figures which we have Mr. Justice Marshall are for the entire official classified service.

Now the Court would extrapolate from 50 lists which were appended as examples of lists on which women were harmed, the Court would extrapolate the conclusion that somehow women are excluded from upper level positions, but those positions are listed in the appendix of page 94 to 96, and those positions I think if the Court will look at them, do not demonstrate or not themselves upper level positions.

Their positions on there like school bus monitor, telephone operator, teacher’s aid; those aren’t the kinds of upper level positions that the Court can be talking about when they women are excluded from upper level, higher paying positions.

The broad general statements that common awareness tells us the truth, the women and men don’t always compete that in some instances Veterans’ Preference will hire more women than men, those are truisms, but they do not support–

Potter Stewart:

That also be a truism that a lot of women don’t even bother taking the test because they are not veterans and they know they can’t overcome the great big handicap.

Thomas R. Kiley:

It maybe, it maybe it’s somewhat speculative the only indication in this record that that’s the case is that Helen Feeney in her affidavit says in someone instances she herself was not — did not take examinations.

What I am suggesting is that after Washington and Davis and after Arlington Heights, a lower court has to look for clear evidence, hard evidence that there is an invidious intent to discriminate the impact in this case and this record does not demonstrate that kind of impact.

Byron R. White:

Do you take the position that the legislature must have specifically intended to harm women before —

Thomas R. Kiley:

I think that there has to be a motivating factor which if it’s not characterized as an intent to harm women is an intent to perpetuate, archaic and over broad stereotypical notions about the older women.

There has to be a motivating factor, which is in some way invidious.

Thurgood Marshall:

Is there any big medical trunk like one for Team B that you had brought up to legislature and have them all to go through it and find out what was on their minds.

Thomas R. Kiley:

No.

Thurgood Marshall:

Well what other way could we do it.

Thomas R. Kiley:

No I’m not saying–

Thurgood Marshall:

In what other way could we do it?

Thomas R. Kiley:

I think that the court has articulated the way in which the lower court looks for motivation and you look to every scintilla of subjective or objective evidence that one can find.

You have articulated evidentiary factors.

All I’m saying in this case is that those evidentiary factors do not support an influence of intent, and that minimum rationality applies.

Under traditional standards of the Equal Protection Analysis and minimum rationality, we are not concerned with the wisdom of a particular statute.

There is no requirement that the Massachusetts legislature serve every conceivable social value in formulating their civil service system in their Veterans Preference Statute.

There can be no better example of the need for (Inaudible) for state legislatures, that in the area of distributing Civil Service jobs to veterans, minorities, women and still balancing the interest of the State and effective Federal workforce.

Indeed the fact is that legislators throughout this country, grappling with these waiting problems have adopted a myriad of approaches to Veterans Preference Statutes, almost no two of them are alike.

By suggesting that minimum rationality applies however I don’t mean to imply that somehow affording benefits to veterans is a less worthy social goal than to other, than other remedial social policies.

We are not talking about — we are talking about a group of individuals who themselves have sacrificed in time of war and a deserving, who had borne the battle in time of war and are deserving of the nation’s approval.

Warren E. Burger:

Thank you Mr. Kiley.

Mr. Ward.

Richard P. Ward:

Mr. Chief Justice and May it please the court.

I’m Richard Ward and I represent the appellee Helen B. Feeney.

Before turning to the difficult legal questions presented by this case, whether the adverse and disastrous impact upon women is in fact a deliberate discrimination sufficient so that this court should pay perhaps somewhat less deference to legislative judgments and then applying that standard to the question of whether or not the profit objectives are in fact substantially well served by Massachusetts choice of an absolute and permanent form of preference.

In light of the Commonwealth argument, it is important to understand exactly how this absolute preference system works.

And to understand the significant systematic adverse impact on women and I don’t believe that the Commonwealth has carefully enough demonstrated or indeed admitted what that impact is.

Most of brother Kiley’s argument rests on the fact that 42% of the persons over a 10-year period who obtain jobs were female.

That entirely misses the thrust of this action, the thrust of Helen Feeney’s case and indeed the basis of the court’s decision below.

It also misses the admission of one of the prime defendants in the case the Director of Civil Service who in himself stating for the court exactly how the system worked especially in light of more recent changes in the Civil Service System whereby now they have what are called banded examinations for large numbers of positions, which large number of persons apply including large numbers of veterans who are principally male and large numbers of non-veterans for upper level or positions of significance who are principally female.

The Director of Civil Service in his testimony to the court below in the form of affidavit said that the system would work as follows.

Women will continue to be employed primarily in the relatively low paying entry level clerical positions for which men traditionally do not apply, because It goes on to say however for the relatively high paying civil service positions such as programmers, planners, physiologists, administrative assistants, head administrative assistants et cetera.

The continued use of the Veterans Preference Statute will result in few if any female eligibles being considered and appointed to such positions.

That it is not a true demonstration of the effect upon women simply to point to the fact that 42% of all the persons hired were female, they are principally being hired as secretaries in the stereotypic jobs for which Massachusetts for 75 years has allowed women to obtain and allowed women to obtain in a more rigorous explicit sex distinctions in terms of the practice for 75 years of recruiting on the basis of sex for female jobs and male jobs.

This is the thrust of the action and one must understand exactly how this veterans Preference system works.

Although referred to below is an absolute preference and indeed this court is faced with the most extreme form of preference.

What is generally known as absolute preference?

Commonwealth of course refers to adhere as a positional preference, it doesn’t sound so bad but it is an absolute preference in a following sense.

What it does?

It places ahead on an eligible list, an eligible list determines who will be certified and considered for jobs and the persons at the top of eligible list, those are the persons who get the job, because it stipulate —

Warren E. Burger:

Must they get the job?

Richard P. Ward:

Yes, Your Honor it is been stipulated by the Commonwealth in a agreed statement —

Warren E. Burger:

Must number one person get the job?

Richard P. Ward:

Not necessarily, three names are certified —

Warren E. Burger:

What if the number three is a non veteran, may he be picked?

Richard P. Ward:

Yes, Your Honor if he is certified.

The problem with this system is there are so many veterans applying for jobs of significance.

The veterans all go to the top of the list above all non-veterans regardless of scores.

So it’s absolute in that sense and that’s the sense in which it distinguishes this form of preference from a point preference which only gives veterans somehow but moves them up somewhat relatively, but doesn’t moves them as a group to the top of the list.

Essentially, the way it works and I think the one of the best list to look at is in Exhibit 7, which is the Administrative Assistants List and that’s one of the banded examinations for which 43 Administrative Assistant positions were available.

Pardon me?

Potter Stewart:

What page on exhibit 7, do you happen to know?

Richard P. Ward:

Not on the top of my head, Your Honor I believe —

Potter Stewart:

No go ahead.

Richard P. Ward:

It can be found.

Potter Stewart:

I see it, page 132 I guess.

Richard P. Ward:

Yes Your Honor.

There approximately 176 people who are found eligible, 23% of the eligible’s on that Administrative Assistant list that is Exhibit 7 were females.

As a result of application of the preference however in terms of the top 43 positions on that list to be certified — considered for these 43 jobs, no females were on the eligible list.

Potter Stewart:

Do you think the average of veteran non-disabled has the same argument to make as you are making now with respect to disabled veterans?

Richard P. Ward:

No Your Honor, I don’t believe so.

Some of them may if the court at some point articulate the standard for persons who are handicap.

Some male non-veterans through no fault of their own are also discriminated against.

But what sets apart the discrimination against women in this case from the discrimination against not non-veteran males is the very basis upon which we suggest that this should be considered a deliberate discrimination against females.

And that’s principally because of the fact that the veteran classification amounts to a condition preceding to being able to obtain a job and it necessarily incorporates by reference.

The decades of discrimination against women in terms by the military, in terms of entry into the military whole categories of women were not allowed into the service and whether that is right or wrong, or lawful or unlawful as far as the military is concerned, nonetheless it was a discrimination.

Whole categories of women, women who happened to be married were not allowed in the service, women who had minor children, the female parent not allowed in the service.

Women had to wait until age 21 otherwise they needed parental consent.

Males over the age of 18 did not need parental consent.

Warren E. Burger:

Is it also discriminatory to bar women in combat and then they combat service basis of the preference?

Richard P. Ward:

I believe it would be Your Honor in the following sense, if —

Warren E. Burger:

Are women permitted in combat service now under the existing law?

Richard P. Ward:

Generally not Your Honor, but the discrimination of course was far more severe than that resulting in really the systematic exclusion of women from the military and the decision that’s at stake is the judgment of the Commonwealth of Massachusetts, how will it run, it’s in public employment system and what it’s done, whether there is justification for that discrimination against the military has taken all those restrictions by making the veteran classification as the court found below, a replacement for testing as to determining factor as to who appears on the top of the list.

Massachusetts has incorporated wholesale all these entry level restrictions to the military into its public employment system and is that judgment for which Commonwealth of Massachusetts, we submit should be held responsible.

William H. Rehnquist:

Mr. Ward, is there anyway under your argument where Massachusetts could retain the preference for disabled veterans and nonetheless give it up for non-disabled veterans?

Richard P. Ward:

Your Honor in terms of the record presented to the court below, for example, Exhibit 12, one would see that the number of disabled veterans that apply are relatively minor in number as to the number of disabled veterans who apply and are eligible is relatively minor in comparison with the total number of veterans.

As a result, the impact indeed would be much less severe if they simply had a preference for veterans.

Whether or not an absolute preference for disabled veterans would indeed still have the inevitable systematic exclusionary effect on women which leads to as what the court found below, the near blanket exclusion of women from all upper level jobs of interest to male.

We don’t know on this record but we think there might well be a distinction that would be a lesser form of preference.

What the court is faced with here is one of the most extreme forms in terms of, as the court below set a broad brush approach.

William H. Rehnquist:

I was asking under your argument whether disabled veteran preference could survive, is your answer yes or no?

Richard P. Ward:

The answer is, disabled veteran would still constitute to the extent it produced a disproportion an impact on women because of the incorporation of the military’s discrimination.

Richard P. Ward:

There would be still be an intentional discrimination against women and that is deliberate, but it might well survive the heightened level of scrutiny accorded by this court, in terms of whether or not the means chosen being reasonably tailored to disabled veterans who perhaps are in the most need of rehabilitation or some readjustment assistance that might well pass the so called middle level scrutiny because it’s a more finely tailored means.

But I think it would still be a deliberate discrimination, Your Honor but perhaps might pass muster under the substantial relation test.

Potter Stewart:

Under Washington against Davis does the, intentional or deliberate or knowing discrimination against a particular group, in this case women have to be a discrimination against that group as women, an intention to discriminate against women or what if it simply as it appears on the face of this statute, an intention to discriminate against non-veterans with knowledge that many more women are non-veterans than men.

Richard P. Ward:

I believe Your Honor that under Washington versus Davis, in order to invoke this court to somewhat heightened level of scrutiny we have to show that the discrimination is a deliberate one against women and we believe the record adequately substantiates that fact.

Potter Stewart:

So that discrimination against non-veterans which is clearly is on its face.

Richard P. Ward:

Yes it is.

Potter Stewart:

With the knowledge that — there are many more non-veterans who are women than there are men who are non-veteran is not enough.

Richard P. Ward:

Well with the knowledge of the — that may well be enough Your Honor, because —

Potter Stewart:

I’m asking about your —

Richard P. Ward:

I believe that is enough given the history —

Potter Stewart:

Washington against Davis requires —

Richard P. Ward:

Yes, given the history of discrimination by the military against the entry level of — entry of women into the military and given the Commonwealth’s wholesale transfer of those entry level requirements by making the veteran classification, the condition perceiving to being able to obtain —

Potter Stewart:

Well that adds up just to knowledge.

Richard P. Ward:

It adds up we believe to knowledge that there will be to severe disproportionate impact on women.

Yes, Your Honor that is enough we believe to show a deliberate discrimination.

William H. Rehnquist:

Well that’s just foreseeable consequences.

Richard P. Ward:

Yes Your Honor and we believe that it’s not just foreseeable as the court below indicated it’s somewhat more than foreseeable, it’s inevitable given the chosen scheme.

Byron R. White:

Well, in any protection case then if you get in the court and you make a record and show that this supposedly and facially neutral statute has disproportionate impact, you are then telling a legislature that it has an impact and as the legislature at least didn’t effect, it’s automatically foreseeable impact and you would always get your injunction.

Richard P. Ward:

Well, we — Yes, Mr. Justice White and that’s the problem with just relying solely on the foreseeable consequences test.

Byron R. White:

What else do you rely on?

Richard P. Ward:

We rely on two other principal factors.

First of all the fact that we make a distinction between foreseeability and inevitability; we don’t believe those problems of the foreseeability test —

Byron R. White:

But in my example the judge say to the Attorney General of the State, now we’ve made these findings and if you want me to say this is inevitable, it is because that’s is what the fact show, you will always get your injunction.

Richard P. Ward:

Okay, that maybe in terms of looking after the fact, at the facts and looking back, but in additional —

Byron R. White:

We’re looking forward, he says —

Richard P. Ward:

Well looking for —

Byron R. White:

I’m looking for damages I want to get an injunction.

Richard P. Ward:

Well, that’s true too Your Honor.

We believe this case shows a deliberate discrimination against women, so it is a problem.

Byron R. White:

So it will always will be for foreseeable consequences, will always be enough then as you.

Richard P. Ward:

Well not necessarily every foreseeable consequence.

We believe that you have to analyze as the court has suggested, all the facts and circumstances.

And this is —

Byron R. White:

Mr. Ward, right on this point, 98% of the veterans are male I guess —

Richard P. Ward:

That is correct Your Honor.

Byron R. White:

2% are women.

Now there all sorts of veterans preferences.

GI Bill of rights for schooling and loans and all of the rest of them and every one of those preferences, the legislature must have known the 98% of the beneficiary of the preference would be male.

Richard P. Ward:

That is correct.

Byron R. White:

Your reasoning would apply equally to those I think.

Richard P. Ward:

We don’t think so Your Honor –

Byron R. White:

Why not?

Richard P. Ward:

In that merely the absence of a benefit not —

Byron R. White:

In discrimination, you’re drawing distinction between burdens and benefit.

Richard P. Ward:

Yes Your Honor and we think here —

Byron R. White:

It’s constitutional to discriminate by giving one class benefits and whereas it’s, that’s okay but it’s bad if you burden a clause, is that true?

Richard P. Ward:

Under some circumstances, we believe that is the law Your Honor.

In the following —

Byron R. White:

Any case that has suggested that?

Richard P. Ward:

Well the distinction in terms of the pregnancy case brought by the court in terms of Nashville Gas versus Satty — statutory but the court did suggest that you’re dealings are different type of problem and you in fact burden a group and here we have a group that is historically been burdened in the employment contract, in the employment context, we have women, women constitute two-thirds of the nonveterans’ and virtually all the women are in the nonveteran category and Massachusetts sets up a preference so absolute that systematically they are excluded from every job of interest for males and to get back to Mr. Justice’s White’s question we do have additional evidence, if foreseeability and inevitability is not enough to satisfy this court’s view of when is enough proof shown that we will hold the state responsible because of the deliberate and purposeful discrimination.

We must bear in mind that this particular classification on its face incorporates essentially by reference the military’s discrimination but more than that, we have our entire legislative history and examination of the legislative history or the Public Employment System in Massachusetts shows that for 85 years the Commonwealth intended to expressly — to treat males and females differently, right along with this reason for having, the policy of having an absolute preference the Commonwealth also had a policy of separately requisitioning and recruiting on the basis of male jobs and female jobs and there’s substantial evidence in the record that shows this Exhibit 64 through 79, if you want it to be in a —

Byron R. White:

If you pursue that argument, it seems to me you have an even stronger case against the Federal statute to discriminate because there is a history in the military of discriminating between men and women.

So this clearly would validate all the Federal veterans’ preferences I suppose.

Richard P. Ward:

We think not Your Honor, again one might find that all the veteran’s preferences constitute some deliberate discrimination against women but they might be tailored finely enough to their purposes that they would pass the appropriate level of scrutiny.

Byron R. White:

Well, yeah, this makes a pretty persuasive argument that they weren’t very finely tailored.

Richard P. Ward:

Not in this case Your Honor, this is–

Byron R. White:

No I am talking about the federal ones.

You discussed those in your brief, in the military and quite precisely show they were not finely tailored.

Richard P. Ward:

Well, with respect to the–

Byron R. White:

Male and female.

Richard P. Ward:

Oh, certainly in terms of the military restrictions are not very well tailored and that leads to the fact that this statue should essentially be treated as an explicit distinction between males and females in terms of its effect of excluding women from public service jobs.

Byron R. White:

You made two points that saying that why forcibility is one, you say difference between inevitability and forcibility and secondly you say if the governing body has a history of treating males and females differently, you look especially closely at it.

And I submit to you that both of those arguments would condemn all the Federal Veterans Preference Legislation.

Richard P. Ward:

They would then not necessarily condemn them Your Honor.

It would make us conclude that they can also constitute a deliberate discrimination against women, but as the amicus plea for the Department of Defense showed that this US Civil Service Commission study of the affect upon women of point system shows that it has a much less significant impact on women and in terms of whether or not this statue does particularly meets its goals, when you bear in mind this statute has originally was passed back in the days, in 19th century when the assumption was that women would not be looking for upper level jobs, and when you look at the specific statues and you see the requisitioning policy–

Thurgood Marshall:

Be careful with the 19th century, they weren’t looking for stenographic jobs either.

Richard P. Ward:

Well–

Thurgood Marshall:

Do you remember, only men could run those machines.

Richard P. Ward:

That’s right Your Honor.

Thurgood Marshall:

Women couldn’t run them.

Richard P. Ward:

Expect there is evidence in the record that shows that right about the time in the early, the end of the 19th century and the beginning of this century the Commonwealth was at least starting to realize that perhaps some women could run those stenographic machines and that’s why they carved out and didn’t apply the preference and they tried to so call protect women’s jobs.

The clear history of this Civil Service System is a history of expressed deliberate, distinctions between male jobs and female jobs and running along with that history was the decision to have an absolute preference.

Potter Stewart:

Well If history alone is enough to condemn any law that has any sort of a discriminatory impact against women and if history alone is enough to show intent, well then any law passed by any state would be constitutionally invalid because up until fairly, well along in this century no state allowed women to vote.

Richard P. Ward:

That is correct Mr. Justice Stewart and that’s why we don’t say that the fact that this statue was passed in the 19th century is in and off itself enough to condemn it.

We add that specific legislative history, the administrative history to the fact that the manner of using this preference, incorporating wholesale the military’s discrimination, renders the statute essentially one which explicitly distinguishes between males and females in terms of who in fact will receive jobs in the Commonwealth of Massachusetts and that’s the way the statute works.

It works as if you’d incorporated all the militaries discrimination in terms of entry level into the military right into your Public Employment System.

This runs with the history of explicit distinctions between the sexes for 75 years in terms of the hiring and requisitioning policy.

William H. Rehnquist:

Now you say it runs with the explicit distinction.

Do you think that the Massachusetts Legislature when passed its Veterans Preference Act thought this will be another good way to keep women in their place or do you think it thought we want to do some for the people who have been veterans.

Richard P. Ward:

Okay, Your Honor obviously the ultimate purpose was to drive some aid or help in some way to veterans, that was the ultimate purpose, okay, but this Court has recognized there are various factors that determined the decision and constitute motivating factors and if you express it in terms of a desire to get women or to hire women we all shrink back, that’s not discrimination.

Products of a male dominated society are not going to want to harm women, what in fact happened Mr. Justice Rehnquist back there in the 19th Century is that the legislature assumed that women either would not or should not be interested in upper level jobs.

William H. Rehnquist:

I was talking about the Veterans Preference Act, was that passed in 19th century?

Richard P. Ward:

It was passed in first one in 1884, and the one that parallels the one we have now was passed in 1896 and when they passed it Mr. Justice Rehnquist what they did was they basically said this preference will not apply to jobs especially calling for women.

The statute on their face throughout the years, shows expressly a desire to distinguish between men and women because women’s job could be predicted.

Again based on the stereotype that women should not or would not be looking for upper level jobs, that’s where if you going get into subjective motivation, this history literally leaps out at you and shows that Massachusetts intended and is continued to intend to deal differently with males and females under the stereotype that there are women’s jobs and there are males jobs.

Byron R. White:

Of course that isn’t the approach the District Court is it?

Richard P. Ward:

District Court relied basically Mr. Justice White on the objective evidence.

Byron R. White:

Well I know, but the answer is no, it was not the approach.

Richard P. Ward:

Well, they’ve certainly, we’re aware of it, it was argued and in a footnote in the last decision they show that at least suggested–

Byron R. White:

That isn’t the way they arrived at their intent.

Richard P. Ward:

No, it is not Your Honor.

Warren E. Burger:

Mr. Ward would it be foreseeable that this Act would exclude a great many handicapped disabled people?

Richard P. Ward:

Yes it would Your Honor, because they again through no fault of their own were not allowed into the military and it would —

Warren E. Burger:

And also as I suggested to your colleague it would certainly exclude foreseeably most of the people over age 45 or 50.

Richard P. Ward:

Again looking at the fact that’s mostly young persons that go in, in one sense it would in terms of the persons who obtain a preference in terms of what age they were when it was most likely that they would go into the service.

Warren E. Burger:

So the consequence of this in terms of the impact is not limited to women, it hits great many categories of people does it not?

Richard P. Ward:

That is correct Mr. Chief Justice, but women are the more severely affected because virtually all women are nonveterans, nonveteran the inferior classification–

Warren E. Burger:

Are all disabled, handicap people, all not most.

Richard P. Ward:

Well, that’s true but two-thirds of the nonveterans Your Honor are women and virtually all women are nonveterans.

Warren E. Burger:

Does it make any difference whether the category or group against whom discrimination is asserted is a small group or a large group?

Richard P. Ward:

No Your Honor, but the group is asserting, Mrs. Feeney happens to be member of a class of women and that’s the one that’s before the Court.

The handicap may well have an equally compelling argument under the Equal Protection Clause.

We deal here in fact with a case of a woman and we are looking at the standards applied by this court.

So to summarize basically we would feel that the wholesale incorporation of the military’s discrimination against women into the Public Employment System combined with the inevitability of the exclusionary effect virtually total.

Judge Campbell below said it constitutes a near blanket exclusion of women from the whole segment, a major segment of employment and it goes a long way towards making upper level Public Employment Massachusetts a male preserve, based on those two objective factors and the legislative history, we think clearly that this is at least a deliberate and purposeful discrimination against women and when we turn now to the question of what appropriate standard and we look to the standard that has been applied by this court in cases involving discrimination against women, we see that the court asked whether or not the classification serves an important governmental objective and whether or not the means chosen to substantially related to the achievement of those objectives.

And the one question that commonwealth could not answer when asked below and the one question that the commonwealth does not address itself to here is why have such an extreme form of preference and absolute and permanent one, one that lasts throughout a veteran’s lifetime and gives women virtually no chance, no matter how much ability is shown by an individual woman, does not give any of those women a chance for any of these upper level jobs.

And that’s the question that we have to ask ourselves.

This is not a case of any preference simply a head start, but we are challenging this form, this extreme form of preference in which only a handful of states have a similar type of preference.

Most states of course having the more modest point preference and when you look at the profit goals offered by the state, we see that this particular form of preference does not well serve those goals.

First, we hear from the Attorney General from the Commonwealth in their brief, a lot of solicitude about readjustment back to civilian life, a lot of solicitude for the recently discharged veteran.

When we look at absolute and permanent form of preference and we ask what does it do for the recently discharged veteran?

And again if we look at Exhibit seven the Administrative Assistance list, we see that it does very little for the discharged veterans.

In fact of the 96 veterans on the two major lists, Exhibits seven and nine, the Administrative Assistants list and the other longer list, the counsel list, we find that 40 of the veterans were discharged in the 1940s, 20 in the 1950s, and 15 in the 1960s.

Only three of the top 25 on the eligible list for administrative assistance had been discharged within five years of service because it’s such an extreme preference, so broad, a permanent preference, it tends in fact to reward or to give benefit to the persons who are longest out of the service.

It also gives them additional benefit in terms if their rank relatively higher within that preference category than their most recently discharged veteran, and that the scores are also a function of how much training and experience you have.

So the longer you’re out of the service the higher score you’ll have.

On the (Inaudible) list the average year of discharge was 1956, a full 19 years before the establishment of list.

So when we look at this extreme form of preference we see that it does not really well serve the veteran most in need of some readjustment assistance.

And as the Commonwealth has pointed out it’s also the fact that a lot of veterans can’t pass the test.

These are the persons logically are most in need of some readjustments.

Potter Stewart:

What was that definition of veteran administrators?

Richard P. Ward:

It is a very broad Your Honor, it includes anyone that served during the period between 1940 and 1975 for most of that period simply a minimum of 90 days and during about nine of those years a period of about 180 days.

So it’s extremely broad.

In terms of the other rationales–

Potter Stewart:

Including periods when weren’t even — when there were no —

Richard P. Ward:

That’s is right Your Honor —

Potter Stewart:

Military activity.

Richard P. Ward:

It sweeps broadly, again it’s an extreme form of preference not well tailored to any of the profit goals.

There is certainly no evidence whatsoever that the profit goal of encouraging enlistment if that’s particularly important interest to a state as served at all, no factual rationale.

And in terms of the broadly stated reward rationale we simply with regard to that, that’s a broad statement of a goal.

There has to be some limit when you say that your goal is simply to reward veterans.

For example the state couldn’t really say that only veterans could practice law in this Commonwealth of Massachusetts or only the children are veterans, there has to be some limit and we look —

Potter Stewart:

So you are not, as I understand it at least attacking the veteran’s preference as such.

You are not — your claim on behalf of your client isn’t that she is a non-veteran, but rather that she is woman.

Richard P. Ward:

That is correct Your Honor.

Potter Stewart:

Isn’t that right?

Richard P. Ward:

And the effect on women is invidious here.

It violates the basic concept of our system that burden should be imposed based on some wrong doing or individual responsibility or as this Court recognized in Frontiero, what the affect of this is by excluding women as a class.

It invidiously relegates the entire class of females.

Byron R. White:

The excluded class is not just women.

No.

Richard P. Ward:

That is correct Your Honor.

Byron R. White:

It’s uniquely invidious on the non-veteran male.

Richard P. Ward:

Not equally given the history of discrimination against women particularly on —

Byron R. White:

Well the economic impact is the same on the non-veteran male.

Richard P. Ward:

It works the same on other non-veterans.

Potter Stewart:

Which you are not claiming any such claim in this case.

Richard P. Ward:

I am making the claim for Helen Feeney and her class of females, who as this Court has recognized has suffered a long history of discrimination and that the job market has been particularly inhospitable to women seeking any but the lowest jobs.

That’s what distinguishes the women from the men, the men have not been invidiously discriminated against an employment and here Massachusetts perpetuates the very stereotypes that constituted the premise upon which the statute was passed.

Women should be in women jobs, men should be in men’s jobs.

Richard P. Ward:

And while they have removed some of the more expressed discrimination, the effect of this statute and its original design and premise produces the exact same result.

Women cannot obtain jobs of interest to men and they are necessarily perpetuating the stereotype as to what jobs males should obtain and what jobs females should obtain in the Commonwealth of Massachusetts.

We believe that it goes much too far and it constitutes invidious discrimination and we ask the Court to strike it down.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.