Washington v. Davis Primary Source eText

Primary Source

Supreme Court decision

By: Byron White and William Brennan Jr.

Date: June 7, 1976

Source: White, Byron and William Brennan Jr. Washington v. Davis. 426 U.S. 229 (1976). Available online at http://laws.findlaw.com/us/426/229.html; website home page: http://www.findlaw.com (accessed April 16, 2003).

About the Authors: Byron White (1917–2002) was a Rhodes Scholar and a talented athlete in college. He received his law degree from Yale University and served in World War II (1939–1945), winning two Bronze Stars. Appointed to the Supreme Court in 1962, he served until 1993. William Brennan Jr. (1906–1997) went to Harvard University for his law degree. In 1952, he was appointed to the New Jersey Supreme Court. He served in the army during World War II, holding the rank of colonel. In 1956, he was nominated by President Dwight Eisenhower (served 1953–1961) for the U.S. Supreme Court.

Introduction

In the colonial and early national period, few tests were administered for college admission or for job placement. To get into college, there were two crucial factors: who one's parents were and who one knew. Jobs, especially at the state and federal levels, were given as political rewards, in what was called the "spoils system." People were rewarded for getting their friends, living, dead, fictional, or otherwise, out to vote. In the late 1800s, a merit-based civil service system was put into effect for much of the federal government, and one could not get dismissed except for "gross neglect of duty." One qualified for appointment, or at least for entering the appointment process, by taking a civil service exam, which asked supposedly general knowledge questions.

In the twentieth century, intelligence quotient tests and other exams abounded. One of the first was the Army General Knowledge Test, which was applied to recruits during World War I (1914–1918). Even though it was supposedly testing general knowledge, it was administered in English, despite the high number of nonnative English speakers, and was based on a classical education. Throughout the rest of the century, testing companies and a wide variety of tests were developed. These included the American College Test and the Scholastic Assessment Test for college-bound students, the Armed Services Vocational Aptitude Battery for those militarybound, and the Medical College Admission Test for those medical school–bound.

Many of the tests given in the 1950s and 1960s, however, were written by white men for white men, and discriminated, either intentionally or unintentionally, against women as well as against other races. In 1971, the Supreme Court ruled that a general education test with a discriminatory effect was invalid and required that tests must be job related. That same question of what types of tests could be required returned to the Court in Washington v. Davis (1976).

Significance

In this case, the Supreme Court held that a qualifying test is legal, even if it has a discriminatory impact, if it is racially neutral on its face and has a rational purpose. The Court also took into account the Washington, D.C., Police Department's efforts to recruit blacks. In doing so, it held that affirmative action programs, aimed to create diversity and perhaps remedy some of the discriminatory impact of these tests, are valid in some instances.

Quota programs, with a certain number of seats set aside for one race, have generally been held to be invalid, while the use of race as a factor in admissions has generally been upheld. Companies that discriminated in the past or that have racially unbalanced workforces and have voluntarily adopted affirmative action programs as a remedy are generally met with approval by the Court. However, affirmative action programs mandated by the state and federal governments, unless those programs are narrowly tailored to remedy past discrimination, have been struck down.

How the Supreme Court will rule on the question of affirmative action in education is unknown. Furthermore, President George W. Bush's administration has announced its opposition to affirmative action. Without affirmative action programs, tests will increase in importance, particularly in education. Some tests, it is argued, are more of a reflection of one's sex, race, or family income than one's chance of success in college or graduate school, never mind one's chances of success after college or graduate school, however that might be measured. These tests are more of an administrative convenience than a true predictor of success. How society will deal with the potentially discriminatory impact of these tests, if affirmative action is banned, remains to be seen.

Primary Source: Washington v. Davis [excerpt]

SYNOPSIS: Justice Byron White first points out that laws are not condemned simply because they have a discriminatory impact, provided they have a racially neutral purpose. He then points out that Congress did not intend that such laws be struck down. He also holds that the test in question is job related, which supports the test's validity. In dissent, Justice William Brennan Jr. suggests that the test had not yet been proven job related and that a high standard was imposed by Congress.

Mr. Justice White delivered the opinion of the Court.

This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the judgment of the Court of Appeals.…

According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on "Test 21," which is "an examination that is used generally throughout the federal service," which "was developed by the Civil Service Commission, not the Police Department," and which was "designed to test verbal ability, vocabulary, reading and comprehension." …

The validity of Test 21 was the sole issue before the court on the motions for summary judgment.… The District Court ultimately concluded that "[t]he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability" and that the Department "should not be required on this showing to lower standards or to abandon efforts to achieve excellence." …

Having lost on both constitutional and statutory issues in the District Court, respondents brought the case to the Court of Appeals claiming that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The tendered constitutional issue was whether the use of Test 21 invidiously discriminated against Negroes and hence denied them due process of law contrary to the commands of the Fifth Amendment.…

Because the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it, we reverse its judgment in respondents' favor.…

The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.… But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.…

This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law's disproportionate impact is irrelevant in cases involving Constitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race.… It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an "unequal application of the law … as to show intentional discrimination." … A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community.… With a prima facie case made out, "the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result." …

… Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, … that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.…

As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies "any person … equal protection of the laws" simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.

Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue.…

Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this.

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.…

We also hold that the Court of Appeals should have affirmed the judgment of the District Court granting the motions for summary judgment filed by petitioners and the federal parties. Respondents were entitled to relief on neither constitutional nor statutory grounds.…

We agree with petitioners and the federal parties that this was error. The advisability of the police recruit training course informing the recruit about his upcoming job, acquainting him with its demands, and attempting to impart a modicum of required skills seems conceded. It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen. Based on the evidence before him, the District Judge concluded that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer. This conclusion of the District Judge that training-program validation may itself be sufficient is supported by regulations of the Civil Service Commission, by the opinion evidence placed before the District Judge, and by the current views of the Civil Service Commissioners who were parties to the case.…

The District Court's accompanying conclusion that Test 21 was in fact directly related to the requirements of the police training program was supported by a validation study, as well as by other evidence of record; and we are not convinced that this conclusion was erroneous.…

The judgment of the Court of Appeals accordingly is reversed.

So ordered.…

Mr. Justice Brennan with whom Mr. Justice Marshall joins, dissenting.…

Nevertheless, although it appears unnecessary to reach the statutory questions, I will accept the Court's conclusion that respondents were entitled to summary judgment if they were correct in their statutory arguments, and I would affirm the Court of Appeals because petitioners have failed to prove that Test 21 satisfies the applicable statutory standards.…

The EEOC regulations require that the validity of a job qualification test be proved by "empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." … This construction of Title VII was approved in Albemarle, where we quoted this provision and remarked that "[t]he message of these Guidelines is the same as that of the Griggs case." …

If we measure the validity of Test 21 by this standard, which I submit we are bound to do, petitioners' proof is deficient in a number of ways similar to those noted above.…

Accordingly, EEOC regulations that have previously been approved by the Court set forth a construction of Title VII that is distinctly opposed to today's statutory result. The Court also says that its conclusion is not foreclosed by Griggs and Albemarle, but today's result plainly conflicts with those cases. Griggsheld that "[i]f an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." … Once a discriminatory impact is shown, the employer carries the burden of proving that the challenged practice "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used." …

It may well be that in some circumstances, proof of a relationship between a discriminatory qualification test and training performance is an acceptable substitute for establishing a relationship to job performance. But this question is not settled, and it should not be resolved by the minimal analysis in the Court's opinion. Moreover, it is particularly inappropriate to decide the question on this record.… But no authority, whether professional, administrative, or judicial, has accepted the sufficiency of a correlation with training performance in the absence of such proof. For reasons that I have stated above, the record does not adequately establish either factor. As a result, the Court's conclusion cannot be squared with the focus on job performance in Griggs and Albemarle, even if this substitute showing is reconcilable with the holdings in those cases.

Today's reduced emphasis on a relationship to job performance is also inconsistent with clearly expressed congressional intent.…

Finally, it should be observed that every federal court, except the District Court in this case, presented with proof identical to that offered to validate Test 21 has reached a conclusion directly opposite to that of the Court today. Sound policy considerations support the view that, at a minimum, petitioners should have been required to prove that the police training examinations either measure jobrelated skills or predict job performance. Where employers try to validate written qualification tests by proving a correlation with written examinations in a training course, there is a substantial danger that people who have good verbal skills will achieve high scores on both tests due to verbal ability, rather than "job-specific ability." As a result, employers could validate any entrance examination that measures only verbal ability by giving another written test that measures verbal ability at the end of a training course. Any contention that the resulting correlation between examination scores would be evidence that the initial test is "job related" is plainly erroneous. It seems to me, however, that the Court's holding in this case can be read as endorsing this dubious proposition. Today's result will prove particularly unfortunate if it is extended to govern Title VII cases.

Accordingly, accepting the Court's assertion that it is necessary to reach the statutory issue, I would hold that petitioners have not met their burden of proof and affirm the judgment of the Court of Appeals.

Further Resources

BOOKS

Hutchinson, Dennis J. The Man Who Once Was Whizzer White: A Portrait of Justice Byron R. White. New York: The Free Press, 1998.

Picott, J. Rupert. Walter Washington, the District of Columbia's First Elected Mayor Since Reconstruction. Washington, D.C.: Associated Publishers, 1975.

Schwartz, Bernard. The Ascent of Pragmatism: The Burger Court in Action. Reading, Mass.: Addison-Wesley, 1990.

U.S. Senate Committee on the District of Columbia. Hearing on the Nomination of Walter E. Washington to be Mayor-Commissioner of the District of Columbia for a Term Expiring February 1, 1977 (reappointment) January 30, 1973, 93rd Cong., 1st sess., 1973.

PERIODICALS

Miller, Christopher S. "The End Justifies the Means: Affirmative Action, Standards of Review, and Justice White." University of Miami Law Review 46, no. 5, May 1992, 1305–1324.

WEBSITES

The Affirmative Action and Diversity Project: A Web Page for Research. Available online at (accessed April 16, 2003).