Personnel Administrator of Mass. v. Feeney
Personnel Administrator of Mass. v. Feeney
Opinion of the Court
delivered the opinion of the Court.
This case presents a challenge to the constitutionality of the Massachusetts veterans’ preference statute, Mass. Gen. Laws Ann., ch. 31, § 23, on the ground that it discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment. Under ch. 31, § 23,
The appellee Helen B. Feeney is not a veteran. She brought this action pursuant to 42 U. S. C. § 1983, alleging that the absolute-preference formula established in ch. 31, § 23, inevitably operates to exclude women from consideration for the best Massachusetts civil service jobs and thus unconstitutionally denies them the equal protection of the laws.
Upon an appeal taken by the Attorney General of Massachusetts,
Upon remand, the District Court, one judge concurring and one judge again dissenting, concluded that a veterans’ hiring preference is inherently nonneutral because it favors a class from which women have traditionally been excluded, and that
I
A
The Federal Government and virtually all of the States grant some sort of hiring preference to veterans.
Rank on the eligible list and availability for employment are the sole factors that determine which candidates are considered for appointment to an official civil service position. When a public agency has a vacancy, it requisitions a list of “certified eligibles” from the state personnel division. Under formulas prescribed by civil service rules, a small number of candidates from the top of an appropriate list, three if there is only one vacancy, are certified. The appointing agency
B
The appellee has lived in Dracut, Mass., most of her life. She entered the work force in 1948, and for the next 14 years worked at a variety of jobs in the private sector. She first entered the state civil service system in 1963, having competed successfully for a position as Senior Clerk Stenographer in the Massachusetts Civil Defense Agency. There she worked for four years. In 1967, she was promoted to the position of Federal Funds and Personnel Coordinator in the same agency. The agency, and with it her job, was eliminated in 1975.
During her 12-year tenure as a public employee, Ms. Feeney took and passed a number of open competitive civil service examinations. On several she did quite well, receiving in 1971 the second highest score on an examination for a job with the Board of Dental Examiners, and in 1973 the third highest on a test for an Administrative Assistant position with a mental health center. Her high scores, however, did not win her a place on the certified eligible list. Because of the veterans’ preference, she was ranked sixth behind five male veterans on the Dental Examiner list. She was not certified, and a lower scoring veteran was eventually appointed. On the 1973 examination, she was placed in a position on the list behind 12 male veterans, 11 of whom had lower scores. Following the other examinations that she took, her name was similarly ranked below those of veterans who had achieved passing grades.
C
The veterans’ hiring preference in Massachusetts, as in other jurisdictions, has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations.
The current veterans’ preference law has its origins in an 1896 statute, enacted to meet the state constitutional standards enunciated in Brown v. Russell. That statute limited the absolute preference to veterans who were otherwise qualified.
Since 1919, the preference has been repeatedly amended to cover persons who served in subsequent wars, declared or
D
The first Massachusetts veterans’ preference statute defined the term “veterans” in gender-neutral language. See
When the first general veterans’ preference statute was adopted in 1896, there were no women veterans.
Notwithstanding the apparent attempts by Massachusetts to include as many military women as possible within the scope of the preference, the statute today benefits an overwhelmingly male class. This is attributable in some measure to the variety of federal statutes, regulations, and policies that have restricted the number of women who could enlist in the United States Armed Forces,
When this litigation was commenced, then, over 98% of the veterans in Massachusetts were male; only 1.8% were female. And over one-quarter of the Massachusetts population were veterans. During the decade between 1963 and 1973 when the appellee was actively participating in the State’s merit selection system, 47,005 new permanent appointments were made in the classified official service. Forty-three percent of those hired were women, and 57% were men. Of the women appointed, 1.8% were veterans, while 54% of the men had veteran status. A large unspecified percentage of the female appointees were serving in lower paying positions for which males traditionally had not applied.-
At the outset of this litigation appellants conceded that for “many of the permanent positions for which males and females have competed” the veterans’ preference has “resulted in a substantially greater proportion of female eligibles than male eligibles” not being certified for consideration. The impact of the veterans’ preference law upon the public employment opportunities of women has thus been severe. This impact lies at the heart of the appellee’s federal constitutional claim.
II
The sole question for decision on this appeal is whether Massachusetts, in granting an absolute lifetime preference to veterans, has discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment.
A
The equal protection guarantee of the Fourteenth Amendment does not take from the States all power of classification. Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314. Most laws classify, and many affect certain groups
Certain classifications, however, in themselves supply a reason to infer antipathy. Race is the paradigm. A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Brown v. Board of Education, 347 U. S. 483; McLaughlin v. Florida, 379 U. S. 184. This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U. S. 356; Guinn v. United States, 238 U. S. 347; cf. Lane v. Wilson, 307 U. S. 268; Gomillion v. Lightfoot, 364 U. S. 339. But, as was made clear in Washington v. Davis, 426 U. S. 229, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.
B
The cases of Washington v. Davis, supra, and Arlington Heights v. Metropolitan Housing Dev. Corp., supra, recognize that when a neutral law has a disparate impact upon a group that has historically been the victim of discrimination, an unconstitutional purpose may still be at work. But those cases signaled no departure from the settled rule • that the Fourteenth Amendment guarantees equal laws, not equal results. Davis upheld a job-related employment test that white people passed in proportionately greater numbers than Negroes, for there had been no showing that racial discrimination entered into the establishment or formulation of the test. Arlington Heights upheld a zoning board decision that tended to perpetuate racially segregated housing patterns,
When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus appropriate. The first question is whether the statutory classification is indeed neutral in the sense that it is not gender based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination. See Arlington Heights v. Metropolitan Housing Dev. Corp., supra. In this second inquiry, impact provides an “important starting point,” 429 U. S., at 266, but purposeful discrimination is “the condition that offends the Constitution.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16.
It is against this background of precedent that we consider the merits of the case before us.
Ill
A
The question whether ch. 31, § 23, establishes a classification that is overtly or covertly based upon gender must first be considered. The appellee has conceded that ch. 31, § 23, is neutral on its face. She has also acknowledged that state hiring preferences for veterans are not per se invalid, for she has limited her challenge to the absolute lifetime preference that Massachusetts provides to veterans. The District Court made two central findings that are relevant here: first, that ch. 31, § 23, serves legitimate and worthy purposes; second, that the absolute preference was not established for the purpose of discriminating against women. The appellee has thus acknowledged and the District Court has thus found
If the impact of this statute could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made by the law was in fact not neutral. See Washington v. Davis, 426 U. S., at 242; Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 266. But there can be but one answer to the question whether this veteran preference excludes significant numbers of women from preferred state jobs because they are women or because they are nonveterans. Apart from the facts that the definition of “veterans” in the statute has always been neutral as to gender and that Massachusetts has consistently defined veteran status in a way that has been inclusive of women who have served in the military, this is not a law that can plausibly be explained only as a gender-based classification. Indeed, it is not a law that can rationally be explained on that ground. Veteran status is not uniquely male. Although few women benefit from the preference, the nonveteran class is not substantially all female. To the contrary, significant numbers of nonveterans are men, and all nonveterans — male as well as female — are placed at a disadvantage. Too many men are affected by ch. 31, § 23, to permit the inference that the statute is but a pretext for preferring men over women.
Moreover, as the District Court implicitly found, the purposes of the statute provide the surest explanation for its impact. Just as there are cases in which impact alone can unmask an invidious classification, cf. Yick Wo v. Hopkins, 118 U. S. 356, there are others, in which — notwithstanding impact — the legitimate noninvidious purposes of a law cannot be missed. This is one. The distinction made by ch. 31, § 23, is, as it seems to be, quite simply between veterans and nonveterans, not between men and women.
The dispositive question, then, is whether the appellee has shown that a gender-based discriminatory purpose has, at least in some measure, shaped the Massachusetts veterans' preference legislation. As did the District Court, she points to two basic factors which in her view distinguish ch. 31, § 23, from the neutral rules at issue in the Washington v. Davis and Arlington Heights cases. The first is the nature of the preference, which is said to be demonstrably gender-biased in the sense that it favors a status reserved under federal military policy primarily to men. The second concerns the impact of the absolute lifetime preference upon the employment opportunities of women, an impact claimed to be too inevitable to have been unintended. The appellee contends that these factors, coupled with the fact that the preference itself has little if any relevance to actual job performance, more than suffice to prove the discriminatory intent required to establish a constitutional violation.
1
The contention that this veterans’ preference is “inherently nonneutral” or “gender-biased” presumes that the State, by favoring veterans, intentionally incorporated into its public employment policies the panoply of sex-based and assertedly discriminatory federal laws that have prevented all but a handful of women from becoming veterans. There are two serious difficulties with this argument. First, it is wholly at odds with the District Court’s central finding that Massachusetts has not offered a preference to veterans for the purpose of discriminating against women. Second, it cannot be reconciled with the assumption made by both the appellee and the District Court that a more limited hiring •preference for veterans could be sustained. Taken together, these difficulties are fatal.
To the extent that the status of veteran is one that few
To be sure, this case is unusual in that it involves a law that by design is not neutral. The law overtly prefers veterans as such. As opposed to the written test at issue in Davis, it does not purport to define a job-related characteristic. To the contrary, it confers upon a specifically described group — perceived to be particularly deserving — a competitive headstart. But the District Court found, and the appellee has not disputed, that this legislative choice was legitimate. The basic distinction between veterans and nonveterans, having been found not gender-based, and the goals of the
2
The appellee’s ultimate argument rests upon the presumption, common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary actions. Her position was well stated in the concurring opinion in the District Court:
“Conceding . . . that the goal here was to benefit the veteran, there is no reason to absolve the legislature from awareness that the means chosen to achieve this goal would freeze women out of all those state jobs actively sought by men. To be sure, the legislature did not wish to harm women. But the cutting-off of women’s opportunities 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?” 451 F. Supp., at 151.
This rhetorical question implies that a negative answer is obvious, but it is not. The decision to grant a preference to veterans was of course “intentional.” So, necessarily, did an adverse impact upon nonveterans follow from that decision. And it cannot seriously be argued that the Legislature of Massachusetts could have been unaware that most veterans are men. It would thus be disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense that they were not volitional or in the sense that they were not foreseeable.
To the contrary, the statutory history shows that the benefit of the preference was consistently offered to “any person” who was a veteran. That benefit has been extended to women under a very broad statutory definition of the term veteran.
IV
Veterans’ hiring preferences represent an awkward — and, many argue, unfair — exception to the widely shared view that merit and merit alone should prevail in the employment policies of government. After a war, such laws have been enacted virtually without opposition. During peacetime, they inevitably have come to be viewed in many quarters as undemocratic and unwise.
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
For the text of ch. 31, § 23, see n. 10, infra. The general Massachusetts Civil Service law, Mass. Gen. Laws Ann., ch. 31, was recodified on January 1, 1979, 1978 Mass. Acts, eh. 393, and the veterans’ preference is now found at Mass. Gen. Laws Ann., eh. 31, §26 (West 1979). Citations in this opinion, unless otherwise indicated, are to the ch. 31 codification in effect when this litigation was commenced.
No statutory claim was brought under Title VII of the Civil Rights Act of 1964, 42 U S. C. § 2000e et seq. Section 712 of the Act, 42 U. S. C. § 2000e-ll, provides that “[njothing contained in this subchapter shall be construed to repeal or modify any Federal, State, territorial or local law creating special rights or preference for veterans.” The parties have evidently assumed that this provision precludes a Title VII challenge.
The appellee’s case had been consolidated with a similar action brought by Carol A. Anthony, a lawyer whose efforts to obtain a civil service Counsel I position had been frustrated by ch. 31, § 23. In 1975, Massachusetts exempted all attorney positions from the preference, 1975 Mass. Acts, ch. 134, and Anthony’s claims were accordingly found moot by the District Court. Anthony v. Massachusetts, 415 F. Supp., at 495.
The District Court entered a stay pending appeal, but the stay was rendered moot by the passage of an interim statute suspending ch. 31, § 23, pending final judgment and replacing it with an interim provision granting a modified point preference to veterans. 1976 Mass. Acts, ch. 200, now codified at Mass. Gen. Laws Ann., ch. 31, §26 (West 1979).
The Attorney General appealed the judgment over the objection of other state officers named as defendants. In response to our certification of the question whether Massachusetts law permits this, see Massachusetts v. Feeney, 429 U. S. 66, the Supreme Judicial Court answered in the affirmative. Feeney v. Commonwealth, 373 Mass. 359, 366 N. E. 2d 1262 (1977).
The first comprehensive federal veterans’ statute was enacted in 1944. Veterans’ Preference Act of 1944, 58 Stat. 387. The Federal Government has, however, engaged in preferential hiring of veterans, through official policies and various special laws, since the Civil War. See, e. g., Res. of Mar. 3, 1865, No. 27, 13 Stat. 571 (hiring preference for disabled veterans). See generally House Committee on Veterans’ Affairs, The Provision of Federal Benefits for Veterans, An Historical Analysis of Major Veterans’ Legislation, 1862-1954, 84th Cong., 1st Sess., 258-265 (Comm. Print 1955). For surveys of state veterans’ preference laws, many of which also date back to the late 19th century) see State Veterans’ Laws, Digests of State Laws Regarding Rights, Benefits, and Privileges of Vet-erns and Their Dependents, House Committee on Veterans’ Affairs, 91st Cong., 1st Sess. (1969); Fleming & Shanor, Veterans Preferences in Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L. J. 13 (1977).
The forms of veterans’ hiring preferences vary widely. The Federal Government and approximately 41 States grant veterans a point advantage on civil service examinations, usually 10 points for a disabled veteran and 5 for one who is not disabled. See Fleming & Shanor, supra n. 6, at 17, and n. 12 (citing statutes). A few offer only tie-breaking preferences. Id., at n. 14 (citing statutes). A very few States, like Massachusetts, extend absolute hiring or positional preferences to qualified veterans. Id., at n. 13. See, e. g., N. J. Stat. Ann. § 11: 27-4 (West 1976); S. D. Comp. Laws Ann. §3-3-1 (1974); Utah Code Ann. §34^30-11 (1953); Wash. Rev. Code §§41.04.010, 73.16.010 (1976).
Massachusetts Gen. Laws Ann., ch. 4, §7, Forty-third (West 1976), which supplies the general definition of the term “veteran,” reads in pertinent part:
“ ‘Veteran’ shall mean any person, male or female, including a nurse, (a) whose last discharge or release from his wartime service, as defined herein, was under honorable conditions and who (6) served in the army, navy, marine corps, coast guard, or air force of the United States for not less than ninety days active service, at least one day of which was for wartime service . . . .”
Persons awarded the Purple Heart, ch. 4, § 7, Forty-third, or one of a number of specified campaign badges or the Congressional Medal of Honor are also deemed veterans. Mass. Gen. Laws Ann., ch. 31, §26 (West 1979).
“Wartime service” is defined as service performed by a “Spanish War veteran,” a “World War I veteran,” a “World War II veteran,” a “Korean veteran,” a “Vietnam veteran,” or a member of the “WAAC.” Mass. Gen. Laws Ann., ch. 4, §7, Forty-third (West 1976). Each of these terms is further defined to specify a period of service. The statutory definitions, taken together, cover the entire period from September 16, 1940, to May 7, 1975. See ibid.
“WAAC” is defined as follows: “any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with, or as auxiliary to, the armed forces of the United States and'such woman shall be deemed to be a veteran.” Ibid.
The Massachusetts preference law formerly imposed' a residency requirement, see 1954 Mass. Acts, ch. 627, § 3 (eligibility conditioned upon Massachusetts domicile prior to induction or five years’ residency in State). The distinction was invalidated as violative of the Equal Protection Clause in Stevens v. Campbell, 332 F. Supp. 102, 105 (Mass. 1971). Cf. August v. Bronstein, 369 F. Supp. 190 (SDNY 1974) (up
Chapter 31, §23, provides in full:
“The names of persons who pass examinations for appointment to any position • classified under the civil service shall be placed upon the eligible lists in the following order:—
“(1) Disabled veterans ... in the order of their respective standing; (2) veterans in the order of their respective standing; (3) persons described in section twenty-three B [the widow or widowed mother of a veteran killed in action or who died from a service-connected disability incurred in wartime service and who has not remarried] in the order of their respective standing; (4) other applicants in the order of their respective standing. Upon receipt of a requisition, names shall be certified from such lists according to the method of certification prescribed by the civil service rules. A disabled veteran shall be retained in employment in preference to all other persons, including veterans.”
A 1977 amendment extended the dependents’ preference to “surviving spouses,” and “surviving parents.” 1977 Mass. Acts, ch. 815.
A 1978 amendment requires the appointing authority to file a written statement of reasons if the person whose name was not highest is selected. 1978 Mass. Acts, ch. 393, § 11, currently codified at Mass. Gen. Laws Ann., ch. 31, §27 (West 1979).
Veterans’ preference laws have been challenged so often that the rationale in their support has become essentially standardized. See, e. g., Koelfgen v. Jackson, 355 F. Supp. 243 (Minn. 1972), summarily aff’d, 410 U. S. 976; August v. Bronstein, supra; Rios v. Dillman, 499 F. 2d 329 (CA5 1974); cf. Mitchell v. Cohen, 333 U. S. 411, 419 n. 12. See generally Blumberg, De Facto and De Jure Sex Discrimination Under the Equal Protection Clause: A Reconsideration of the Veterans’ Preference in Public Employment, 26 Buffalo L. Rev. 3 (1977). For a collection of early cases, see Annot., Veterans’ Preference Laws, 161 A. L. R. 494 (1946).
1896 Mass. Acts, ch. 517, § 2. The statute provided that veterans who passed examinations should “be preferred in appointment to ah persons not veterans . . . .” A proviso stated: “But nothing herein contained shall be construed to prevent the certification and employment of women.”
1919 Mass. Acts, ch. 150, § 2. The amended statute provided that “the names of veterans who pass examinations . . . shall be placed upon the . . . eligible lists in the order of their respective standing, above the names of all other applicants,” and further provided that “upon receipt of a requisition not especially calling for women, names shall be certified from such lists . . . .” The exemption for “women’s requisitions” was retained in substantially this form in subsequent revisions, see, e. g., 1954 Mass. Acts, ch. 627, § 5. It was eliminated in 1971, 1971 Mass. Acts, ch. 219, when the State made all single-sex examinations subject to the prior approval of the Massachusetts Commission Against Discrimination, 1971 Mass. Acts, ch. 221.
A provision requiring public agencies to hire disabled veterans certified as eligible was added in 1922. 1922 Mass. Acts, ch. 463. It was invalidated as applied in Hutcheson v. Director of Civil Service, 361 Mass. 480, 281 N. E. 2d 53 (1972) (suit by veteran arguing that absolute preference for disabled veterans was arbitrary on facts). It has since been eliminated and replaced with a provision giving disabled veterans an absolute preference in retention. See Mass. Gen. Laws Ann., ch. 31, §26 (West 1979). See n. 10, supra.
For eases presenting similar challenges to the veterans’ preference laws of other States, see Ballou v. State Department of Civil Service, 75 N. J. 365, 382 A. 2d 1118 (1978) (sustaining New Jersey absolute preference); Feinerman v. Jones, 356 F. Supp. 252 (MD Pa. 1973) (sustaining Pennsylvania point preference); Branch v. Du Bois, 418 F. Supp. 1128 (ND Ill. 1976) (sustaining Illinois modified point preference); Wisconsin Nat. Organization for Women v. Wisconsin, 417 F. Supp. 978 (WD Wis. 1976) (sustaining Wisconsin point preference).
The provision, passed shortly after the creation of the Women’s Army Auxiliary Corps (WAAC), see n. 21, infra, is currently found at Mass. Gen. Laws Ann., ch. 4, § 7, cl. 43 (West 1976), see n. 8, swpra. “Wartime service” is defined as service performed by a member of the “WAAC.” A “WAAC” is “any woman who was discharged and so served in any corps or unit of the United States established for the purpose of enabling women to serve with, or as auxiliary to, the armed forces of the United States and such woman shall be deemed to be a veteran.” Ibid.
Small numbers of women served in combat roles in every war before the 20th century in which the United States was involved, but usually unofficially or disguised as men. See M. Binkin & S. Bach, Women and the Military 5 (1977) (hereinafter Binkin and Bach). Among the better known are Molly Pitcher (Revolutionary War), Deborah Sampson (Revolutionary War), and Lucy Brewer (War of 1812). Passing as one “George Baker,” Brewer served for three years as a gunner on the U. S. S. Constitution (“Old Ironsides”) and distinguished herself in several major naval battles in the War of 1812. See J. Laffin, Women in Battle 116-122 (1967).
By 1887, the average age of Civil War veterans in Massachusetts was already over 60. Massachusetts Civil Service Commissioners, Third Annual Report 22 (1887). The tie-breaking preference which had been established under the 1884 statute had apparently been difficult to enforce, since many appointing officers “prefer younger men.” Ibid. The 1896
In 1896, for example, 2,804 persons applied for civil service positions: 2,031 were men, of whom only 32 were veterans; 773 were women. Of the 647 persons appointed, 525 were men, of whom only 9 were veterans; 122 were women. Massachusetts Civil Service Commissioners, Thirteenth Annual Report 5, 6 (1896). The average age of the applicants was 38. Ibid.
The Army Nurse Corps, created by Congress in 1901, was the first official military unit for women, but its members were not granted full military rank until 1944. See Binkin and Bach 4r-21; M. Treadwell, The Women's Army Corps 6 (Dept, of Army 1954) (hereinafter Treadwell). During World War I, a variety of proposals were made to enlist women for work as doctors, telephone operators, and clerks, but all were rejected by the War Department. See ibid. The Navy, however, interpreted its own authority broadly to include a power to enlist women as Yeoman F’s and Marine F's. About 13,000 women served in this rank, working primarily at clerical jobs. These women were the first in the United States to be admitted to full military rank and status. See id., at 10.
Official military corps for women were established in response to the massive personnel needs of World War II. See generally Binkin and Bach; Treadwell. The Women’s Army Auxiliary Corps (WAAC)— the unofficial predecessor of the Women’s Army Corps (WAC) — was created on May 14, 1942, followed two months later by the WAVES (Women Accepted for Voluntary Emergency Service). See Binkin and Bach 7. Not long after, the United States Marine Corps Women’s Reserve and the Coast Guard Women’s Reserve (SPAR) were established. See ibid. Some 350,000 women served in the four services; some 800 women also served as Women’s Airforce Service Pilots (WASPS). Ibid. Most worked in health care, administration, and communications; they were also em
The authorizations for the women’s units during World War II were temporary. The Women’s Armed Services Integration Act of 1948, 62 Stat. 356, established the women’s services on a permanent basis. Under the Act, women were given regular military status. However, quotas were placed on the numbers who could enlist, 62 Stat. 357, 360-361 (no more than 2% of total enlisted strength), eligibility requirements were more stringent than those for men, and career opportunities were limited. Bin-kin and Bach 11-12. During the 1950’s and 1960’s, enlisted women constituted little more than 1% of the total force. In 1967, the 2% quota was lifted, §1 (9)(E), 81 Stat. 375, 10 U. S. C. § 3209 (b), and in the 1970’s many restrictive policies concerning women’s participation in the military have been eliminated or modified. See generally Binkin and Bach. In 1972, women still constituted less than 2% of the enlisted strength. Id., at 14. By 1975, when this litigation was commenced, the percentage had risen to 4.6%. Ibid.
The former exemption for “women’s requisitions,” see nn. 13, 14, supra, may have operated in the 20th century to protect these types of jobs from the impact of the preference. However, the statutory history indicates that this was not its purpose. The provision dates back to the 1896 veterans’ preference law and was retained in the law substantially unchanged until it was eliminated in 1971. See n. 14, supra. Since veterans in 1896 were a small but an exclusively male class, such a pro
This is not to say that the degree of impact is irrelevant to the question of intent. But it is to say that a more modest preference, while it might well lessen impact and, as the State argues, might lessen the effectiveness of the statute in helping veterans, would not be any more or less “neutral” in the constitutional sense.
Proof of discriminatory intent must necessarily usually rely on objective factors, several of which were outlined in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 266. The inquiry is practical. What a legislature or any official entity is “up to” may be plain from the results its actions achieve, or the results they avoid. Often it is made clear from what has been called, in a different context, “the give and take of the situation.” Cramer v. United States, 325 U. S. 1, 32-33 (Jackson, J.).
This is not to say that the inevitability or foreseeability of consequences of a neutral rule has no bearing upon the existence of discriminatory intent. Certainly, when the adverse consequences of a law upon an identifiable group are as inevitable as the gender-based consequences of ch. 31, § 23, a strong inference' that the adverse effects were desired can reasonably be drawn. But in this inquiry — made as it is under the Constitution — an inference is a working tool, not a synonym for proof. When, as here, the impact is essentially an unavoidable consequence of a legislative policy that has in itself always been deemed to be legitimate, and when, as here, the statutory history and all of the available evidence affirmatively demonstrate the opposite, the inference simply fails to ripen into proof.
See nn. 8, 17, supra.
The appellee has suggested that the former statutory exception for “women’s requisitions,” see nn. 13, 14, supra, supplies 'evidence that Massachusetts, when it established and subsequently reaffirmed the absolute-preference legislation, assumed that women would not or should not compete with men. She has further suggested that the former provision extending the preference to certain female dependents of veterans, see n. 10, supra, demonstrates that ch. 31, §23, is laced with “old notions” about the proper roles and needs of the sexes. See Califano v. Goldfarb, 430 U. S. 199; Weinberger v. Wiesenfeld, 420 U. S. 636. But the first suggestion is totally belied by the statutory history, see supra, at 267-271, and nn. 19, 20, and the second fails to account for the consistent statutory recognition of the contribution of women to this Nation’s military efforts.
See generally Hearings on Veterans’ Preference Oversight before the Subcommittee on Civil Service of the House Post Office and Civil Service Committee, 95th Cong., 1st Sess. (1977); Report of Comptroller General, Conflicting Congressional Policies: Veterans’ Preference and Apportionment vs. Equal Employment Opportunity (Sept. 29, 1977).
Concurring Opinion
concurring.
While I concur in the Court’s opinion, I confess that I am not at all sure that there is any difference between the two questions posed ante, at 274. If a classification is not overtly based on gender, I am inclined to believe the question whether it is covertly gender based is the same as the question whether its adverse effects reflect invidious gender-based discrimination. However the question is phrased, for me the answer is largely provided by the fact that the number of males disadvantaged by Massachusetts’ veterans’ preference (1,867,000) is sufficiently large — and sufficiently close to the number of disadvantaged females (2,954,000) — to refute the claim that the rule was intended to benefit males as a class over females as a class.
Dissenting Opinion
dissenting.
Although acknowledging that in some circumstances, discriminatory intent may be inferred from the inevitable or foreseeable impact of a statute, ante, at 279 n. 25, the Court concludes that no such intent has been established here. I cannot agree. In my judgment, Massachusetts’ choice of an absolute veterans’ preference system evinces purposeful
I
The District Court found that the “prime objective” of the Massachusetts veterans’ preference statute, Mass. Gen. Laws Ann., ch. 31, § 23, was to benefit individuals with prior military service. Anthony v. Commonweath, 415 F. Supp. 485, 497 (Mass. 1976). See Feeney v. Massachusetts, 451 F. Supp. 143, 145 (Mass. 1978). Under the Court’s analysis, this factual determination “necessarily compels the conclusion that the State intended nothing more than to prefer 'veterans.’ Given this finding, simple logic suggests than an intent to exclude women from significant public jobs was not at work in this law.” Ante, at 277. I find the Court’s logic neither simple nor compelling.
That a legislature seeks to advantage one group does not, as a matter of logic or of common sense, exclude the possibility that it also intends to disadvantage another. Individuals in general and lawmakers in particular frequently act for a variety of reasons. As this Court recognized in Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265 (1977), “[rjarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern.” Absent an omniscience not commonly attributed to the judiciary, it will often be impossible to ascertain the sole or even dominant purpose of a given statute. See McGinnis v. Royster, 410 U. S. 263, 276-277 (1973); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1214 (1970). Thus, the critical constitutional inquiry is not whether an illicit consideration was the primary or but-for cause of a decision, but rather whether it had an appreciable role in shaping a given legislative enactment. Where there is
Moreover, since reliable evidence of subjective intentions is seldom obtainable, resort to inference based on objective factors is generally unavoidable. See Beer v. United States, 425 U. S. 130, 148-149, n. 4 (1976) (Marshall, J., dissenting) ; cf. Palmer v. Thompson, 403 U. S. 217, 224-225 (1971); United States v. O’Brien, 391 U. S. 367, 383-384 (1968). To discern the purposes underlying facially neutral policies, this Court has therefore considered the degree, inevitability, and foreseeability of any disproportionate impact as well as the alternatives reasonably available. See Monroe v. Board of Commissioners, 391 U. S. 450, 459 (1968); Goss v. Board of Education, 373 U. S. 683, 688-689 (1963); Gomillion v. Lightfoot, 364 U. S. 339 (1960); Griffin v. Illinois, 351 U. S. 12, 17 n. 11 (1956). Cf. Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975).
In the instant case, the impact'of the Massachusetts statute on women is undisputed. Any veteran with a passing grade on the civil service exam must be placed ahead of a non-veteran, regardless of their respective scores. The District Court found that, as a practical matter, this preference supplants test results as the determinant of upper level civil service appointments. 415 F. Supp., at 488-489. Because less than 2% of the women in Massachusetts are veterans, the absolute-preference formula has rendered desirable state civil service employment an almost exclusively male prerogative. 451 F. Supp., at 151 (Campbell, J., concurring).
As the District Court recognized, this consequence follows foreseeably, indeed inexorably, from the long history of policies severely limiting women’s participation in the military.
Clearly, that burden was not sustained here. The legislative history of the statute reflects the Commonwealth’s patent appreciation of the impact the preference system would have on women, and an equally evident desire to mitigate that impact only with respect to certain traditionally female occupations. Until 1971, the statute and implementing civil serv
Thus, for over 70 years, the Commonwealth has maintained, as an integral part of its veterans’ preference system, an exemption relegating female civil service applicants to occupations traditionally filled by women. Such a statutory scheme both reflects and perpetuates precisely the kind of archaic assumptions about women’s roles which we have previously held invalid. See Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199, 210-211 (1977); Stanton v. Stanton, 421 U. S. 7, 14 (1975); Weinberger v. Wiesenfeld, 420 U. S. 636, 645 (1975). Particularly when viewed against the range of less discriminatory alternatives available to assist veterans,
II
To survive challenge under the Equal Protection Clause, statutes reflecting gender-based discrimination must be substantially related to the achievement of important governmental objectives. See Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190, 197 (1976); Reed v. Reed, 404 U. S. 71, 76 (1971). Appellants here advance three interests in support of the absolute-preference system: (1) assisting veterans in their readjustment to civilian life; (2) encouraging military enlistment; and (3) rewarding those who have served their country. Brief for Appellants 24. Although each of those goals is unquestionably legitimate, the “mere recitation of a benign, compensatory purpose” cannot of itself insulate legislative classifications from constitutional scrutiny. Weinberger v. Wiesenfeld, supra, at 648. And in this case, the Commonwealth has failed to establish a sufficient relationship between its objectives and the means chosen to effectuate them.
With respect to the first interest, facilitating veterans’ transition to civilian status, the statute is plainly overinclusive. Cf. Trimble v. Gordon, 430 U. S. 762, 770-772 (1977); Jimenez v. Weinberger, 417 U. S. 628, 637 (1974). By conferring a permanent preference, the legislation allows veterans to invoke their advantage repeatedly, without regard to their date of discharge. As the record demonstrates, a substantial
Nor is the Commonwealth’s second asserted interest, encouraging military service, a plausible justification for this legislative scheme. In its original and subsequent re-enactments, the statute extended benefits retroactively to veterans who had served during a prior specified period. See ante, at 265-267. If the Commonwealth’s “actual purpose” is to induce enlistment, this legislative design is hardly well suited to that end. See Califano v. Webster, supra, at 317; Weinberger v. Wiesenfeld, supra, at 648. For I am unwilling to assume what appellants made no effort to prove, that the possibility of obtaining an ex post facto civil service preference significantly influenced the enlistment decisions of Massachusetts residents. Moreover, even if such influence could be presumed, the statute is still grossly overinclusive in that it bestows benefits on men drafted as well as those who volunteered.
Finally, the Commonwealth’s third interest, rewarding veterans, does not “adequately justify the salient features” of this preference system. Craig v. Boren, supra, at 202-203. See Orr v. Orr, supra, at 281. Where a particular statutory scheme visits substantial hardship on a class long subject to discrimination, the legislation cannot be sustained unless “ ‘carefully tuned to alternative considerations.’ ” Trimble v. Gordon, supra, at 772. See Caban v. Mohammed, 441 U. S. 380, 392-393, n. 13 (1979); Mathews v. Lucas, 427 U. S. 495 (1976). Here, there are a wide variety of less discriminatory means by which Massachusetts could effect its compensatory purposes. For example, a point preference system, such as that maintained by many States and the Federal Government,
In its present unqualified form, the veterans’ preference statute precludes all but a small fraction of Massachusetts women from obtaining any civil service position also of interest to men. See 451 F. Supp., at 151 (Campbell, J., concurring). Given the range of alternatives available, this degree of preference is not constitutionally permissible.
I would affirm the judgment of the court below.
See Anthony v. Massachusetts, 415 F. Supp. 485, 490, 495-499 (Mass. 1976); Feeney v. Massachusetts, 451 F. Supp. 143, 145, 148 (Mass.
Thus, unlike the employment examination in Washington v. Davis, 426 U. S. 229 (1976), which the Court found to be demonstrably job related, the Massachusetts preference statute incorporates the results of sex-based military policies irrelevant to women’s current fitness for civilian public employment. See 415 F. Supp., at 498-499.
Only four States afford a preference comparable in scope to that of Massachusetts. See Fleming & Shanor, Veterans’ Preferences and Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L. J. 13, 17 n. 13 (1977) (citing statutes). Other States and the Federal Government grant point or tie-breaking preferences that do not foreclose opportunities for women. See id., at 13, and nn. 12, 14; ante,-at 261 n. 7; Hearings on Veterans’ Preference Oversight before the Subcommittee on Civil Service of the House Committee on Post Office and Civil Service, 95th Cong., 1st Sess., 4 (1977) (statement of Alan Campbell, Chairman, United States Civil Service Commission).
Although it is relevant that the preference statute also disadvantages a substantial group of men, see ante, at 281 (SteveNS, J., concurring), it is equally pertinent that 47% of Massachusetts men over 18 are veterans, as compared to 0.8% of Massachusetts women. App. 83. Given this disparity, and the indicia of intent noted supra, at 284r-285, the absolute number of men denied preference cannot be dispositive, especially since they have not faced the barriers to achieving veteran status confronted by women. See n. 1, supra.
The eligibility lists for the positions Ms. Feeney sought included 95 veterans for whom discharge information was available. Of those 95 males, 64 (67%) were discharged prior to 1960. App. 106, 150-151, 169-170.
See Frontiero v. Richardson, 411 U. S. 677, 689 n. 23 (1973); Kahn v. Shevin, 416 U. S. 361, 353-354 (1974); United States Bureau of the Census, Current Population Reports, No. 107, Money Income and Poverty Status of Families and Persons in the United States: 1976 (Advance Report) (Table 7) (Sept. 1977).
Reference
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