State of Texas v. EEOC et al

Filing 32

RESPONSE filed by State of Texas re: 29 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit(s) Exhibits Table of Contents, # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C, # 5 Proposed Amendment Exhibit D) (Oldham, Andrew)

EXHIBIT B

BOARD OF ED ~CATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF NEW YORK, PETITIONER
V.
ELSA GULINO, ET AL.

ON PE~ ’ITION FOR A WRIT OF CERTIORARI
TO THE VNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR TI UNITED STATES AS AMICUS CURIAE
[E

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GRACE CHUNG BECKER
Acting Assistant Attorney
General
GREGORY G. KATSAS
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
DARYL JOSEFFER
Assistant to the Solicitor
General
DENNIS J. DIMSEY
MARLEIGH D. DOVER
MELISSA PATTERSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[phone]

QUESTION PRESENTED
Whether an employer’s compliance with a facially
neutral state licensing requirement for teachers that
allegedly has a disparate impact on members of a protected class may subject it to liability under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

(I)

Blank Page

TABLE OF CONTENTS
Page
Statement ............................................
Discussion ............................................
A. Title VII does not prohibit employers from
complying with facially neutral state licensing
requirements ...................................
B. The petition for a writ of certiorari should be
denied ........................................
Conclusion ..........................................

1
6

7
15
19

TABLE OF AUTHORITIES
Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ......

2

Association of Mexican-Am. Educators v. Cali~brnia,
231 F.3d 572 (9th Cir. 2000) ....................... 16
Boston Chapter, N.A.A.C.P., Inc. v. Beecher,
504 F.2d 1017 (1st Cir. 1974), cert. denied,
421 U.S. 910 (1975) .............................. 15
California Fed. Sav. & Loan Ass’n v. Guerra,
479 U.S. 272 (1987) ..............................
Camacho v. Puerto Rico Ports Auth., 369 F.3d 570
(lst Cir. 2004) ....................................

14
7

Connecticut v. Teal, 457 U.S. 440 (1982) ............... 15
Department of Transp. v. Public Citizen, 541 U.S. 752
10
(2004) ..........................................
Fields v. Hallsville Indep. Sch. Dist., 906 F.2d
1017 (5th Cir. 1990), cert. denied, 498 U.S. 1026
16, 17
(1991) .......................................
George v. New Jersey Bd. of Veterinary Med.
Exam’rs, 794 F.2d 113 (3d Cir. 1986) ............... 16
Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) ... 10
(III)

IV
Cases Continued:

Page

Grego~T v. Ashcrofl, 501 U.S. 452 (1991) ............... 8
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .......... 2
Haddock v. Board of Dental Exam’rs, 777 F.2d 462
(9th Cir. 1985) ..................................16
Holmes v. Securities Investor Prot. Corp., 503 U.S.
258 (1992) ......................................
10
Johnson v. Zerbst, 304 U.S. 458 (1938) ................ 17
Personnel Adm’r v. Feeney, 442 U.S. 256 (1979) ........ 11
Smith v. City of Jackson, 544 U.S. 228 (2005) ........... 2
Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert.
denied, 426 U.S. 940 (1976) ....................... 16
United States v. Bass, 404 U.S. 336, 349 (1971) .......... 8
United States v. Olano, 507 U.S. 725 (1993) ............ 17
United States v. Williams, 504 U.S. 36 (1992) .......... 17
VMI v. United States, 508 U.S. 946 (1993) ............. 18
Washington v. Davis, 426 U.S. 229 (1976) ........... 8, 11
Woodward v. VirginiaBd. of Bar Exam’rs, 598 F.2d
1345 (4th Cir. 1979) ..............................16
Constitution and statutes:
U.S. Const. Art. VI, C1. 2 (Supremacy Clause) .........
15
Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:
Tit. VII, 42 U.S.C. 2000e et seq. .............. passim
42 U.S.C. 2000e(a) ............................. 2
42 U.S.C. 2000e(b) ............................. 2
42 U.S.C. 2000e(f) .............................. 2
42 U.S.C. 2000e-2(a) ............................ 7
42 U.S.C. 2000e-2(a)(1) ......................... 1

V
Statutes Continued:

Page

42 U.S.C. 2000e-2(a)(2) ...................... 2, 10
42 U.S.C. 2000e-2(k)(1)(A)(i) .................. 2, 12
42 U.S.C. 2000e-2(k)(1)(A)(ii) .................2, 10
42 U.S.C. 2000e-6(a) ........................... 15
42 U.S.C. 2000e-7 ........................ 3, 13, 14
Tit. IX, 42 U.S.C. 2000h et seq.:
42 U.S.C. 2000h-4 ........................ 3, 14, 15
42 U.S.C. 1983 ................................... 8, 13
3
N.Y. Educ. Law § 1604.8 (McKinney 2007) .............
Miscellaneous:
H. R. Rep. No. 644, 101st Cong., 2d Sess. Pt. 2 (1990) ... 13

Page

Sn tl3e upreme aurt o[ tl3e i lnite tate
No. 0%270
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF NEW YORK, PETITIONER
V.
ELSA GULINO, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to this Court’s order
inviting the Solicitor General to express the views of the
United States. In the view of the United States, the petition for a writ of certiorari should be denied.
STATEMENT

1. Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., prohibits an "employer" from intentionally
discriminating "against any individual with respect to his
compensation, terms, conditions or privileges of employment because of such individual’s race, color, religion, sex
or national origin." 42 U.S.C. 2000e-2(a)(1). Under Title
VII, it is also unlawful for an employer "to limit, segregate,
or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any indiVidual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individ(1)

2
ual’s race, color, re][igion, sex, or national origin." 42 U.S.C.
2000e-2(a)(2). This Court has construed the latter provision
to prohibit not only intentional discrimination, but also
some facially neutral practices that have an unintentional
disparate impact on members of a protected class. E.g.,
Smith v. City of Jackson, 544 U.S. 228, 234-235 (2005);
Griggs v. Duke Power Co., 401 U.S. 424 (1971).
In 1991, Congress amended Title VII to specify that
"[a]n unlawful employment practice based on disparate
impact is established under [Title VII] only if * * * a
complaining party demonstrates that a respondent uses a
particular employment practice that causes a disparate
impact on the basis of race, color, religion, sex, or national
origin and the respondent fails to demonstrate that the
challenged practice is job related for the position in question and consistent with business necessity." 42 U.S.C.
2000e-2(k)(1)(A)(i). If the employer demonstrates that the
practice is job related and consistent with business necessity, the plaintiff may still prevail by showing that an alternative employment practice would serve the employer’s
legitimate interest without causing a disparate impact, and
that the employer "refuses to adopt such alternative employment practice." 42 U.S.C. 2000e-2(k)(1)(A)(ii); see also
Albema’rle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
Title VII defines an "employer" to be "a person engaged
in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more
calendar weeks * * * and any agent of such a person."
42 U.S.C. 2000e(b).. An "employee," in turn, is "an individual employed by an employer," 42 U.S.C. 2000e(f), and
"[t]he term ’person’ includes one or more individuals, governments, governmental agencies, [or] political subdivisions," 42 U.S.C. 2000e(a).
Title VII does not "exempt or relieve any person from
any liability, duty, ]penalty, or punishment provided by any

present or future law of any State or political subdivision of
a State, other than any such law which purports to require
or permit the doing of any act which would be an unlawful
employment practice under" Title VII. 42 U.S.C. 2000e-7.
A separate provision specifies that the entire Civil Rights
Act of 1964, including Title VII, should not be "construed as
invalidating any provision of State law unless such provision
is inconsistent with any of the purposes of this Act, or any
provision thereof." 42 U.S.C. 2000h-4.
2. Under NewYork law, petitioner Board of Education
of the City School District of the City of New York "employ[s] * * * as many legally qualified teachers as the
schools of the district require." N.Y. Educ. Law § 1604.8
(McKinney 2007). Until 1991, petitioner generally had discretion to establish minimum standards for its teachers.
Pet. App. 8a. In 1991, however, the state legislature---exercising its state constitutional authority over the maintenance of public schools, id. at 4a--required that teachers in
all New York public schools, though not private schools, be
licensed under uniform statewide standards. Id. at lla-12a.
At that time, the New York State Education Depm~ment
(SED) used a test called the National Teachers Examination Core Battery (NTE). Id. at 3a, 9a, 12a. Beginning in
1993, SED replaced that test with a set of tests including
the Liberal Arts and Sciences Test (LAST). Id. at 3a, 12a.
Petitioner played no role in the development or administration of the LAST or in the move from the NTE to the
LAST. See Pet. App. 3a, 12a-13a; Pet. 6-7.
SED continued to permit petitioner to employ persons
who had not passed the LAST as full-time substitute (as
opposed to permanent) teachers. Pet. 5; Br. in Opp. 4-5; see
Pet. App. 81a. Substitutes could work the same hours as
permanent teachers, but were paid less. Ibid.
3. In 1996, respondents filed this suit against both petitioner and SE D on behalf of a class of African-American

4
and Latino educators who, among other things, did not pass
either the NTE or l~he LAST. Pet. App. 58a. They alleged
that the tests had a disparate impact on African-American
and Latino teachers in violation of Title VII. Ibid.
SED argued that it was not liable as an "employer" because only petitioner, and not SED, employed respondents.
The district cour~ held, however, that "an entity that is not
a direct employer of a Title VII plaintiff nevertheless may
be liable if it interferes with or ’significantly affects access
of.. [plaintiffs] to employment opportunities.’" Gulino
v. Board of Educ. of the City Sch. Dist., 236 F. Supp. 2d
314, 332 (S.D.N.Y. 2002), modified, No. 96 Civ. 8414, 2002
WL 31887733 (S.D.N.Y. Dec. 26, 2002) (citation omitted).
The court then found "evidence that the State has sufficient
control over the operation of local schools to bring it within
Title VII’s definition of an employer." Id. at 333.
The district court also rejected petitioner’s argument
that it could not be held liable because it ’%vas merely following the mandates of state law." 236 F. Supp. 2d at 333.
In the court’s view, "the decision to de-cert~v those teachers who had applied for or received City licenses before
1991 because they did not pass the NTE or the LAST was
the Board’s," not the State’s. Id. at 334. The court also
held that, even if petitioner "had been acting only under
state pressure, that would not suffice to shield it from liability under Title VII," because "Title VII preempts any state
laws in conflict witl~ it." Id. at 334, 335.
Following a lengthy trial, the district court found that
neither the NTE nor the LAST had an impermissible disparate impact under Title VII. Pet. App. 57a-122a. The
court determined that respondents had established a prima
facie case of discrin~[nation because the NTE and the LAST
had a statistically significant adverse effect on AfricanAmerican and Latino teachers. Id. at 79a-82a. The cour~
also found, however, that the NTE and the LAST were job

5
related and consistent with business necessity, id. at 118a121a, and that respondents "failed to offer a cost effective,
practical alternative to the tests used by defendants in certifying teachers," id. at 121a.
4. Respondents appealed the dismissal of their claims
concerning the LAST, which was first used in 1993 pursuant to the 1991 law requiring all permanent public-school
teachers to be licensed under statewide standards. See Pet.
App. lla-12a. Respondents did not, however, challenge the
dismissal of their claims concerning the NTE (which was
the predecessor of the LAST). Id. at 12a n.7. The court of
appeals vacated the district court’s judgment and remanded for further proceedings. Id. at 3a.
The court of appeals first determined that SED cannot
be held liable under Title VII for any disparate impact created by its tests. Pet. App. 17a-38a. Looking to the common law of agency, the court held that SED "is plainly not
[respondents’] employer for the purposes of Title VII liability" because respondents "fail to meet the threshold showing that SED hired and compensated them," and in any
event SED "does not exercise the workaday supervision
necessary to an employment relationship." Id. at 36a, 37a.
Because SED is not respondent’s employer, the court
found, Title VII provides no cause of action against SED.
In contrast, the court of appeals held that petitioner -which undeniably meets the definition of employerdcould be held liable under Title VII if the LAST
had a disparate impact. Pet. App. 39a-41a. The court explained that, while petitioner had "argued in the district
court that it should not be held liable for an employment
practice required by state law," the district court had rejected that contention, and petitioner "does not appear to
challenge this finding of the district court." Id. at 39a. The
court of appeals briefly "note[d]," however, that "the dis-

trict court was correct in holding that the mandates of state
law are no defense to Title VII liability." Ibid.
As to the argument that petitioner had advanced on
appeal, the court of appeals stated that, "[o]n appeal, [petitioner] appears to change its tack. Instead of arguing ]~ack
of discretion, [petitioner] asserts that Title VII does not
apply because [petitioner’s] use of certification tests for
licensing ’is a capacity separate and distinct from tl~at of
employer under Title VII.’" Pet. App. 39a (citation omitted). After expressing uncertainty as to whether petitioner
had raised that contention in the district court, id. at 40a
n.22, the court of appeals rejected it on the ground that
petitioner is "not merely a licensing agency," but instead
"acts as [respondents’] ’employer’ in the word’s ordinary
meaning." Id. at 40a, 41a. The court "acknowledge[d] the
difficult situation that" its holding "creates for" petitioner--by requiring it to defend the results of a test that
it did not design and does not administer--but concluded
that "Title VII requires this result." Id. at 41a.
As to whether the LAST has an impermissible disparate
impact under Title VII, the court of appeals concluded that
the district court had applied the wrong legal standard and
made factual errors. Pet. App. 42a-56a. Accordingly, the
court vacated and remanded for further proceedings. Id. at
56a. In so doing, the court noted that it did not reach respondents’ contention that petitioner had misused the
LAST by, among other things, demoting teachers from
permanent to substitute status and then paying them less.
See id. at 16a n.9; Br. in Opp. 4-5. Instead, the court explained that, "[i]f appropriate, the district court may need
to address this argument on remand." Pet. App. 16a no9.
DISCUSSION

The court of appeals held that petitioner is an employer
as opposed to a licensor, and that petitioner’s compliance

with a facially neutral public education state licensing requirement can give rise to Title VII disparate-impact liability. Pet. App. 39ao41a. The court of appeals was correct on
the first of those points and wrong on the second. Petitioner, however, abandoned the latter argument in the
court of appeals. Although the court of appeals nevertheless passed on the issue, its discussion of that issue was
limited to two conclusory sentences. Id. at 39a. The decision of the court of appeals does not conflict with any decisions of this Court or another court of appeals. And this
case provides a poor vehicle for considering the question
presented at this time, in part because the case is in an interlocutory posture and the lower courts have not yet resolved respondents’ contention that petitioner misused the
LAST in ways not required by state law. Accordingly, the
petition for a writ of certiorari should be denied.
A. Title VII Does Not Prohibit Employers From Complying
With Facially Neutral State Licensing Requirements

Because petitioner is an employer, not a state licensing
agency, it is subject to Title VII’s prohibitions. Title VII
does not, however, prohibit petitioner from complying with
the state licensing requirement at issue.
1. Petitioner primarily argues (Pet. 11) that "licensing
activity conducted outside of an employment context does
not give rise to a cause of action under Title VII" (emphasis
added). That is correct as a general matter. Title VII prohibits an "employer" from engaging in specified "unlawful
employment practice[s]." 42 U.S.C. 2000e-2(a). Title VII
thereby restricts employers’ employment practices. As the
lower courts have recognized, Title VII does not restrict a
sovereign’s exercise of its traditional police powers, including the promulgating and enforcement of licensing requiremerits, in a non-employment capacity. See, e.g., Camacho
v. Puerto Rico Ports Auth., 369 F.3d 570, 578 (1st Cir. 2004)

(noting "long line of cases" holding that licensing authorities are not subject to Title VII); Pet. 12-13.
That result draws support from this Court’s cases sugo
gesting that an intent to rework the federal-state balance
should not be lightly inferred. See, e.g., United States v.
Bass, 404 U.S. 336, 349 (1971); see also Pet. App. 28a. As
the cour~ of appeals recognized, "New York acts pursuant
to its traditional police powers in performing a core state
function--regulating the quality of public school teachers."
Id. at 29a. The States have traditionally licensed or certifled professionals in numerous fields, including education,
law, and medicine. See SED Bro 12-13.
The Constitution, of course, constrains the exercise of
that traditional police power by prohibiting intentional discrimination on the basis of race (and 42 U.S.C. 1983 furnishes a cause of action to address such discrimination),
but, as this Court has held, the Constitution does not proscribe disparate impacts. Washington v. Davis, 426 U.So
229, 241-242 (1976). Indeed, this Court in Davis relied in
part on concerns about how such liability would affect state
"licensing statutes" and other traditional state functions.
Id. at 248. Because nothing in Title VII manifests a clear
intent to impose fm~her restrictions on the States’ exercise
of their sovereign police power to license professionals including public school teachers, Title VII should not be read
to intrude on such matters of core state authority. See
Bass, 404 U.S. at 349; cf. Gregory v. Ashcrofl, 501 U.S. 452,
460-461 (1991) (holding that Congress’s intent "to alter the
usual constitutional balance between the States and the
Federal Government" must be "unmistakably clear in the
language of the statute") (citation omitted).
2. But while the inapplicability of Title VII to a State
acting as a licensor, rather than an employer, supports the
dismissal of the State from the action, it is not sufficient to
protect petitioner from liability. Petitioner did not devise

and does not administer the LAST and, therefore, is not a
licensing body. See Pet. App. 3a, 12a-13a; Pet. i, 13, 14.
Instead, petitioner is an employer that must comply with a
state law that requires it to hh’e and retain as full-time permanent teachers only persons who are certified by the
State. See p. 3, supra. Petitioner thus acts only as respondents’ employer, not as a licensing body. Nonetheless, petitioner is not liable under Title VII for complying with a
facially neutral state licensing regime that limits the universe of potential employees to those who have complied
with the State’s requirement. Several considerations support that result.1
a. First, any other conclusion would effectively result
in the same reworking of the federal-state balance as a regime making the States liable directly for their facially neutral licensing schemes. As discussed above, States are not
forbidden by the Constitution from enacting or enforcing
licensing requirements that have unintentional disparate
impacts, and Title VII does not intrude on that traditional
state authority. See pp. 7-8, supra. That state authority
would be vitiated if employers could be held liable under
1 Respondents argue (Br. in Opp. 5-6, 15) that the LAST is not a
licensing test because it applies only to public-school teachers, and
because a former state employee testified to that effect at trial. The
court of appeals properly rejected respondents’ contention and found
that "New York’s decision to regulate public and private school teachers differently is reflective of the State’s differing obligations with
respect to public and private education." Pet. App. 38a-39a n.21. In any
event, for purposes of assessing petitioner’s liability under Title VII,
the key point is that the State precludes petitioner from employing
permanent teachers who have not passed the LAST. Whether a state
law is labeled a "licensing" test. as opposed to some analogous exercise
of the State’s traditional police powers, is not necessarily dispositive.
And to the extent that there is uncertainty as to whether the LAST
qualifies as a licensing test~ that uncertainty cuts against plenary review.

10
Title VII for complying with facially neutral state licensing
laws, because the threat of such liability would frustrate
compliance with such state laws.
Second, holding employers liable for the consequences
of a state law that narrows the universe of prospective employees would conflict with basic notions of fairness and
causation. It is a general principle of law that, "where [a
defendant] has no ability to prevent a certain effect due to
its limited [legal] authority over the relevant actions, the
[defendant] cannot be considered a relevant ’cause’ of the
effect," and thus is not ordinarily liable. Department of
Transp. v. Public Citizen, 541 U.S. 752, 770 (2004). Congress legislated against the backdrop of that practice when
it enacted Title VII. Cf. Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 184-185 (1988). And there is no evidence that
Congress intended to depart from that principle in Title
VII, with the indirect consequence of interfering with a
State’s ability to operate facially neutral licensing exams.2
Third, such a result is reinforced by the business-necessity defense. That defense provides an employer with a
defense to a disparate impact claim if it shows that the challenged business practice is job related and consistent with
business necessity. 42 U.S.C. 2000e-2(k)(1)(A)(ii). If the
mandatory state licensing requirement is taken as a given,
then that defense would be satisfied as a matter of course,
because compliance with a valid facially neutral state mandate is a business necessity to which there is no reasonable
2 This requirement of causation could also be read into the prohibitions that give rise to disparate-impact liability. Cf. Holmes v. Securities Investor Prot. Corp., 503 U.S. 258,265-266 (1992) (reading proximate causation into civil RICO action). For example, the basic liability
provisions from which disparate-impact liability have been derived
address an employer’s effort "to limit, segregate, or classify his employees or applicants," 42 U.S.C. 2000e-2(a)(2), but it is the State’s mandate, not the employer, that limits the pool of qualiiied applicants.

11
alternative. If, instead, the defense requires an inquiry into
whether the test itself is justified, then the employer--who
is not the one who came up with the test--would be placed
in an untenable position.
An employer will seldom be in a position to determine
whether a state-mandated licensing test has an impermissible disparate impact, or whether the other criteria for
disparate-impact liability, such as business necessity, are
satisfied. An employer that did not design or administer a
state-mandated licensing test, and therefore was not privy
to the data and testing methodologies underlying that test,
would not realistically be in a position to know whether the
test had an impermissible disparate impact under the validation methodology adopted by the court of appeals, much
less to defend the test in court. Indeed, the court of appeals
itself recognized the "difficulty of test validation" under its
five-part inquiry. Pet. App. 45a, 48a.3
Fourth, under the cour~ of appeals’ holding, employers
could therefore face great legal uncertainty. An employer
that decided to comply with a state licensing requirement
could be liable for back pay and other monetary relief under Title VII if the courts later determined that the state
law created an impermissible disparate impact; but if the
employer chose not to comply with the state licensing requirement, it could be liable under state law, unless the
courts later agreed that the state law had an impermissible
impact.
The resulting uncertainty could jeopardize not only the
employer, but also the State’s interest in enforcing its li~ This case does not present the hypothetical situation where
classification that is ostensibly neutral * * * is an obvious pretext for
discrimination." Personnel Adm’r v. Feeney, 442 U.S. 256. 272 (1979):
see Davis, 426 U.S. at 241-242. There is no argument that the LAST is
such a classification.

12
censing requirements. States have a vital interest in regulating numerous professions for a variety of reasons, including the health and safety of medical patients and others.
States also have a vital interest in regulating their professionals, including public school teachers. That traditional
police power would be ill-served by the court of appeals’
decision, as some employers might choose not to follow important licensing requirements, and thereby prompt state
enforcement actions, with the public health and safety potentially suffering during the ensuing litigation.
Similar results could occur in any number of regulated
professions. Under the rationale adopted by the court of
appeals’ decision in this case, law firms and government
legal offices could be subjected to Title VII litigation alleging that bar examinations created disparate results. Health
care providers could likewise be subjected to litigation alleging disparate impact liability on the basis of medical,
dental, or veterinary licensing requirements. And so on.
The potentially sweeping implications of holding employers
liable under Title VII for any disparate impact stemming
from a state-created and administered licensing regime is
another indication that Congress did not intend that result,
because there is no evidence in the text or history of Title
VII that Congress intended such effects.
Fifth, even attempting to try such a case would pose
serious practical problems. Defendants bear the burden of proof on the business-necessity defense, 42 U.S.C.
2000e-2(k)(1)(A)(i), but an employer would be ill equipped
to shoulder that burden with respect to a state-mandated
licensing test for the reasons discussed above.4 As a practi4 Congress imposed the burden on employers to establish the business-necessity defense in large part because it contemplated that the
employer would have been responsible for designing or selecting the
practice at issue, and thus would be in a position to shoulder the burden

13
cal matter, an employer would need the State’s aid to
fend such a test. A State might feel compelled to intervene
to defend its own licensing test, but a State would not be
required to come to the employer’s defense and it might
just as well choose to resist discovery into the process for
designing and administering a test to protect itself against
a direct damages action under Section 1983. That further
underscores the extent to which imposing Title VII liability
in this context would be an improper end-run around state
authority and would punish employers without regard to
their own culpability. See SED Br. 9-10, 13. Even the
court of appeals "acknowledge[d] the difficult situation
that" its holding "creates for" petitioner. Pet. App. 41a.5
3. The court of appeals based its contrary conclusion on
Section 2000e-7, which states that Title VII does not "exempt or relieve any person from any liability, duty, penalty,
of proof in defending that practice. See H.R. Rep. No. 644, 101st Cong.,
2d Sess. Pt. 2, at 14 (1990) (stating that the employer should bear the
burden of proof because it "has control over the employment process,
selects the practices used to make an employment decision, and is more
likely to be aware of the relative costs and benefits of the practices used
and of the alternative practices that were not used in making the employment decision(s)"). There is no evidence that Congress contemplated requiring an employer to bear the burden in defending a licensing test that it did not design and does not administer.
5 The foregoing considerations lead co the conclusion that the court
of appeals erred in holding that petitioner may be held liable under
Title VII for complying with the mandatory state licensing test at issue.
It may be possible, however, to reach that conclusion in different ways,
for example, with greater or lesser emphasis on causation principles or
the business-necessity defense. Any tentativeness on that score is
largely a product of the manner in which this case was litigated below.
Because petitioner abandoned this argument on appeal, the question
was not fully aired below. See p. 17. infra. The fact that this issue was
not fully briefed or considered below provides an independent basis for
denying certiorari.

14
or punishment provided by any present or future law of any
State or political subdivision of a State, other than any such
law which purports to require or permit the doing of any
act which would be an unlawful employment practice under" Title VII. 42 U.S.C. 2000e-7; see Pet. App. 39a. That
provision, however, does not expose to liability an employer
who gives effect to a state licensing requirement.
Section 2000e-7 addresses a fundamentally different
question from that posed in this case--namely, ~t addresses
when a person can be held liable under state law, and it
limits the circumstances in which Title VII provides a defense. It does not address the very different question whether a person can be held liable under Title VII for compliance with a state law. Section 2000e-7 therefore has little
or nothing to do with the question presented here. Cf. California Fed. Sav.& Loan Ass’n v. Guerra, 479 UoS. 272, 280282 (1987) (holding that Title VII did not exempt employer
from liability under state anti-discrimination law). In any
event, as already noted, facially neutral state licensing requirements such as the one at issue are not displaced by
Title VII, because there is no indication, much less a clear
statement, that Congress intended Title VII to intrude on
such core state prerogatives as licensing regimes. See pp.
7-8, supra. 6
Nor does respondents’ reliance ~Br. in Opp. 11) on Section 2000h-4 alter that conclusion. That section, which governs the Civil Rights Act of 1964 generally, including Title
VII, states that the Act should not be "construed as invalidating any provision of State law unless such provision is
~ This case does not require the Court co determine the outer reaches of Title VII’s preemptive scope. It is settled, however~ that federal
law preempts state laws that facially discriminate on the basis 0fan employee’s membership in a protected class, including, for example, a fadally discriminatory licensing law.

15
inconsistent with any of the purposes of this Act, or any
provision thereof." 42 U.S.C. 2000h-4. It is not immediately obvious what role that section plays other than to reinforce the preemptive force of the Supremacy Clause and
presumably to make clear that the Act does not preempt
the entire field of anti-discrimination laws. Section 2000h-4
is inapplicable because, as discussed above, the state law at
issue here a licensing requirement for public school
teachers--is not inconsistent with Title VII.7
B. The Petition For A Writ Of Certiorari Should Be Denied
Although the court of appeals erred in concluding that
petitioner may be held liable under Title VII for any disparate impact created by the LAST, this Court’s review of the
question presented is neither warranted nor proper at this
time.
1. The court of appeals’ decision does not conflict with
any decisions of this Court or another court of appeals.
Petitioner asserts (Pet. 12-13) a conflict with cases holding
that state licensing agencies were not liable under Title VII
7 Because petitioner does not challenge the dismissal of SED as a
defendant, this case does not concern Title VII’s application to a State’s
own employment practices. Title VII’s prohibitions against intentional
discrimination and disparate impacts govern a State’s employment
practices concerning its own employees. See Connecticut v. Teal. 457
U.S. 440. 449 (1982). As discussed, however, Title VII does not regulate
the States’ exercise of their traditional sovereign powers where, as
here. their own employees are not concerned. Nor does this case concern the applicability of Title VII Go civil service exams or other employee selection or ranking devices for federal, state, or local government
employers. For example, to the extent that the unit of government that
imposes the test is also the employer, Title VII would apply. Moreover,
an action by the Attorney General for injunctive relief would lie even if
the government that imposes the test is not the employer. See 42
U.S.C. 2000e-6(a); Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d
1017 (lst Cir. 1974) (written test for fire fighters), cert. denied, 421 U.S.
910 (1975).

16
for alleged discriminatory effects of the professional licensing exams they administered. In all but one of those cases,
however, the defendants were not the plaintiffs’ employers,
but instead acted solely as licensing agencies. See George
v. New Jersey Bd. of Veterinary Med. Exam’rs, 794 F.2d
113, 114 (3d Cir. 1986) (veterinary exam); Haddock v.
Board of Dental Exam’rs, 777 F.2d 462, 463 (9th Cir. 1985)
(dental exam); Woodard v. Virginia Bd. of Bar Exam’rs,
598 F.2d 1345, 1346 (4th Cir. 1979) (bar exam); Tyler v.
Vickery, 517 F.2d 1089, 1096 (5th Cir. 1975) (bar exam),
cert. denied, 426 U.S. 940 (1976). As discussed above, that
is not the case here, where the only remaining defendant is
the employer, nol: the licensing entity (i.e., SED). See Pet.
App. 40a, 41a.8
In the remaining case relied on by petitioner (Pet. 1213), Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017
(5th Cir. 1990), cert. denied, 498 U.S. 1026 (1991), the plaintiffs sued both tlhe state licensing agency and the local
school district. Id. at 1018. The only claims against the
8 InAssociationofMexican-AmericanEducatorsv.California,231
F.3d 572 (9th Cir. 2000) (en banc) (AMAE). the plaintiffs likewise sued
only the State and the State’s credentialing agency, not the local school
districts that (like petitioner) directly employed teachers. Id. at 577,
580. The Ninth Circuit held that the State could be held liable under
Title VII because "the State of California is in a theoretical and practic~l position to ’interfere’ with the emplo.~aent decisions of school districts." Id. at 582. In l~Lolding that the State of NewYork (i.e.~ SED) was
no~ a proper par~y to, this Title VII action, the court of appeals questioned the "interference" theory of coverage applied by the Ninth Circuit, see Pet. App. 25a-30a. but ultimately concluded that, "even if this
Circuit were to follow the legal framework of AMAE~ the factual differences between the cases preclude reliance on that decision." id. at 30a31a. In particular, the court of appeals explained that "[t]he relationship between the State of New York and individual local school districts
is very different than the state/local relationship outlined by the Ninth
Circuit in AMAE." Id. at 30a.

17
school district, however, related to plaintiffs’ alleged applications for jobs that did not require state certification, and
the court upheld the dismissal of those claims on the factbound ground that the plaintiffs had not actually applied for
such jobs. See id. at 1021-1022. Thus, Fields did not implicare the question presented here.
2. Moreover, on appeal petitioner appears to have
abandoned the argument that an employer’s compliance
with state licensing requh’ements does not violate Title VII.
As the court of appeals explained, petitioner advanced that
contention in the district court. Pet. App. 39a. In the cour~
of appeals, however, petitioner "appear[ed] to change its
tack," and "[i]nstead of arguing lack of discretion," petitioner argued that it did not act as an employer in using the
licensing tests. Ibid. As explained above, the latter argument--the only one that petitioner advanced in the court of
appealsis not persuasive. See pp. 8-9, supra.
The court of appeals nonetheless passed upon the question whether compliance with state law can give rise to Title
VII liability, Pet. App. 39a, and this Court’s "traditional
rule" is that it may consider a contention that was either
pressed or passed upon below. United States v. Williams,
504 U.S. 36, 41 (1992). For two reasons, however, this case
is not an appropriate occasion in which to invoke such authority. First, petitioner did not merely fail to raise the
argument in the lower courts. Instead, petitioner appears
to have abandoned the contention by advancing it in the
district court and then choosing not to renew it in the court
of appeals. Cf. United States v. Olano, 507 U.S. 725, 733
(1993) (distinguishing between the failure to assert a right
in a timely fashion and the "intentional * * * abandonment of a known right") (quoting Johnson v. Zerbst, 304
U.S. 458, 464 (1938)). Second, although the court of appeals
did address the point, its discussion was conclusory and
limited to two sentences. Pet. App. 39a.

18
3. In the circumstances, the interlocutory posture of
the case also cuts against plenary review at this time. See
VMI v. United States, 508 U.S. 946 (1993) (opinion of Scalia,
J., respecting the denial of the petition for a writ of certiorari). The court of appeals remanded for further proceedings on the business-necessity question. See Pet. App. 56a.
In doing so, the court declined to reach respondents’ contention that petitioner had misused the LAST, and the
court stated instead that, "[i]f appropriate, the district
court may need to address this argument on remand." Id.
at 16a n.9. That observation underscores tl~e interlocutory
posture of this case.
The question whether employers are liable for the disparate impacts of facially neutral state licensing requirements is the type of threshold issue this Court sometimes
considers in an interlocutory posture. But here, a favorable
answer to that question would not absolve petitioner of Title VII liability or resolve the case. Rather, that threshold
question is related to the question whether petitioner misused the test by imposing adverse consequences on respondents that were not required by state law--a question that
the court of appeals left for remand. See Pet. App. 16a n.9.
The fact that petitioner is required by state law to give effect to a state licensing requirement such as the LAST
would not provide any defense to petitioner’s own misuse of
the test. If respondents prevailed on the latter question,
the broader question concerning an employer’s compliance
with mandatory state licensing requirements might not be
squarely presented in this case. For that reason as well,
this Court’s plenary review is not warranted at this juncture.

19
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
GRACE CHUNG BECKER
Acting Assistant Attorney
General
GREGORY G. KATSAS
Acting Assistant Attorney
General
GREGORY G. GARRE

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor
General

DENNIS J. DIMSEY
MARLEIGH D. DOVER
MELISSA PATTERSON
Attorneys
MAY 2008

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