Feeney v. Com. of Mass.

Decision Date03 May 1978
Docket NumberCiv. A. No. 75-1991-T.
Citation451 F. Supp. 143
CourtU.S. District Court — District of Massachusetts

Richard P. Ward, Ropes & Gray, John Reinstein, Boston, Mass., for plaintiff.

Thomas Kiley, First Asst. Atty. Gen., Boston, Mass., for defendants.

John J. Curtin, Jr., John F. Adkins, Bingham, Dana & Gould, for amicus curiae, the American Legion.

Before CAMPBELL, Circuit Judge, MURRAY, Senior District Judge, and TAURO, District Judge.


TAURO, District Judge.

By order of remand from the Supreme Court, we have been instructed to reconsider our decision in Anthony v. Commonwealth,1 415 F.Supp. 485 (D.Mass.1976), in light of the Court's subsequent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).2 After further briefing and oral argument, we conclude that Davis does not require us to alter our original holding. To the contrary, we have determined that both Davis and the Court's later opinion in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), support our conclusion that the challenged Massachusetts Veterans' Preference statute3 deprives women of equal protection of the laws and, therefore, is unconstitutional.4


The broad issues in this case are treated extensively in our prior opinion. 415 F.Supp. 485. In order to put in context our reconsideration of Anthony, however, it is useful to outline briefly some of its major points.

The statutory scheme challenged in Anthony established a formula that permanently prevents a non-veteran from achieving a place on the civil service appointment list ahead of a veteran, regardless of comparative test scores.5 We pointed out that "(a)s a practical matter . . . the Veterans' Preference replaces testing as the criterion for determining which eligibles will be placed at the top of the list." 415 F.Supp. at 489.

The selection formula, geared as it is to veteran status, is necessarily controlled by federal military proscriptions limiting the eligibility of women for participation in the military. Long-standing federal policy limited to 2% the number of women who could participate in the armed forces. Anthony v. Commonwealth, supra, at 489. Traditionally, enlistment and appointment criteria have been more restrictive for women than for men.6 An inevitable consequence of this federal policy limiting women's participation in the military is that only 2% of Massachusetts veterans are women. Id.

(T)he practical consequence of the operation of these federal military proscriptions, in combination with the Veterans' Preference formula is inescapable. Few women will ever become veterans so as to qualify for the preference; and so, few, if any, women will ever achieve a top position on a civil service eligibility list, for other than positions traditionally held by women.

Id. at 490.

We recognized that the prime legislative motive of the challenged statute, that of rewarding public service in the military, was worthy. Id. at 496. But we also observed that

(i)t is not enough that the prime objective of the Veterans' Preference statute . . is legitimate and rational. The means chosen by the state to achieve this objective must also be legitimate and rational.

Id. at 497.

We determined that the means chosen by the Massachusetts Legislature to reward veterans were not grounded "on a convincing factual rationale." Id. at 495. We pointed out that the challenged statutory formula was not an effort by the state to set priorities for finite resources; that there were less drastic alternatives available to the state, such as a point system; and that any argument attempting to relate the challenged formula to job performance or qualification was "specious." Id. at 495-499. We concluded that the formula relegated job-related criteria and professional qualifications to a secondary position. Id. at 497.

Moreover, we emphasized that the challenged preference was absolute and permanent. No time limit was imposed or attempt made "to tailor its use to those who have shortly returned to civilian life." Id. at 499. Such a broad-brush approach may be administratively convenient, but mere administrative convenience is not a legitimate basis for benefiting one identifiable class at the expense of another. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Although the Veterans' Preference statute was not designed for the sole purpose of subordinating women, Anthony v. Commonwealth, supra, at 495, its clear intent was to benefit veterans even at the expense of women. As we stated,

(T)he formula's impact, triggered by decades of restrictive federal enlistment regulations, makes the operation of the Veterans' Preference in Massachusetts anything but an impartial, neutral policy of selection, with merely an incidental effect on the opportunities for women.

Id. at 495.

Rather, we found the preference formula to be

a deliberate, conscious attempt on the part of the state to aid one clearly identifiable group of its citizens, those who qualify as veterans, . . . at the absolute and permanent disadvantage of another clearly identifiable group, Massachusetts women.

Id. at 496.

The consequences of adopting a permanent absolute preference formula tied to federal enlistment restrictions were more than predictable, they were inevitable.


At issue in Davis was a pre-employment literacy test used by the District of Columbia police department. The district court rejected plaintiffs' allegation that the test was "culturally slanted" to favor whites. It determined further that the test was "reasonably and directly" related to the requirements of the police recruit training program, although unrelated to actual job performance. 426 U.S. at 235, 96 S.Ct. 2040. The D.C. Circuit reversed, holding irrelevant the failure of plaintiffs to allege and prove discriminatory intent in the exam's design and administration. It determined that the disproportionate percentage of blacks who had failed the exam sufficed to establish a constitutional violation. Id. at 236-37, 96 S.Ct. 2040.

In reversing the court of appeals, the Supreme Court stated that claims of invidious discrimination under the fifth or fourteenth amendments require proof of a discriminatory purpose. A facially neutral statute may not be deemed vulnerable to equal protection challenge solely because it has a disproportionate impact. The Court emphasized that discriminatory intent need not be "express or appear on the face of the statute," 426 U.S. at 241, 96 S.Ct. at 2048, but that consideration must be given to the totality of the circumstances. Disproportionate impact is one such highly relevant circumstance we must consider.

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. 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.

426 U.S. at 242, 96 S.Ct. at 2048. See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). This point was amplified by Justice Stevens in his concurring opinion.

Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation.
Id. at 252, 96 S.Ct. at 2054 (Stevens, J., concurring). See also Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977) (Stevens, J., concurring).

A major factor distinguishing Davis from the case at hand is the nature of the selection procedure challenged in each case. Although the plaintiffs in Davis originally challenged the entire District of Columbia police recruitment scheme, the sole issue before the Supreme Court was the validity of the written civil service test. Washington v. Davis, supra 426 U.S. at 233-35, 96 S.Ct. 2040.

The district court in Davis determined that the challenged test was neutral on its face. Id. at 235, 96 S.Ct. 2040. This determination apparently provided a basis for the Court's statement that,

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.

Id. at 248, 96 S.Ct. at 2051. (Footnotes omitted.)

The factual underpinning in this case is entirely different. As we have already emphasized, the Veterans' Preference statute is "anything but an impartial, neutral policy of selection with merely an incidental effect on the opportunities for women." 415 F.Supp. at 495. Here, plaintiff does not challenge the civil service written examination but, rather,...

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5 cases
  • Personnel Administrator of Massachusetts v. Feeney
    • United States
    • U.S. Supreme Court
    • June 5, 1979
    ...of women were too inevitable to have been "unintended." Accordingly, the court reaffirmed its original judgment. Feeney v. Massachusetts, 451 F.Supp. 143. The Attorney General again appealed to this Court pursuant to 28 U.S.C. § 1253, and probable jurisdiction of the appeal was noted. 439 U......
  • Harris v. White
    • United States
    • U.S. District Court — District of Massachusetts
    • November 2, 1979
    ...of Education, 6 Cir. 1974, 508 F.2d 178, 182, cert. denied, 1975, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449; Feeney v. Comm. of Mass., D. Mass.1978, 451 F.Supp. 143, 146, 147, rev'd, ___ U.S. ___, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), or whether proof must meet the higher standard of demo......
  • Larry P. v. Riles
    • United States
    • U.S. District Court — Northern District of California
    • October 16, 1979
    ...Administrator of Massachusetts v. Feeney, supra, a 7-2 majority of the Supreme Court reversed a three-judge court's holding, 451 F.Supp. 143 (D.Mass. 1978), that the Massachusetts veterans' preference law for civil service employment was unconstitutional. The veterans' preference resulted i......
  • School Committee of Braintree v. Massachusetts Commission Against Discrimination
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 6, 1979
    ...386 N.E.2d 1251 ... 377 Mass. 424, 21 Fair Empl.Prac.Cas. (BNA) 923, ... 19 Empl. Prac. Dec. P 9110 ... SCHOOL COMMITTEE OF ... that this effect could not reasonably have escaped Braintree's and Needham's attention, see Feeney v. Commonwealth, 451 F.Supp. 143, ... 148 (D.Mass.) (three-judge court), probable juris. noted, ... ...
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1 books & journal articles
    • United States
    • Case Western Reserve Law Review Vol. 72 No. 4, June 2022
    • June 22, 2022
    ...1967) (three-judge court); see also Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272, 275 (1979) (veterans hiring preference), rev'g 451 F. Supp. 143, 149-50 (D. Mass. 1978) (three-judge (243.) E.g., McGowan v. Maryland, 366 U.S. 420, 424-26 (1961) (appeal from state courts); City of New O......

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