United States v. Board of Education

581 F.2d 791, 1978 U.S. App. LEXIS 9756, 18 Empl. Prac. Dec. (CCH) 8706, 19 Fair Empl. Prac. Cas. (BNA) 406

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 7, 1978
• Docket: No. 77-3012
• Status: Published

Opinions

ORDER

The issue presented by this appeal is whether the Attorney General has the authority to bring pattern or practice equal employment suits under Title VII of the 1964 Civil Rights Act against public employers in the absence of a referral of the case by the Equal Employment Opportunity Commission to the Attorney General for the institution of suit.

Prior to the 1972 Civil Rights Act amendment, the Attorney General had independent authority to bring equal employment cases against private employers under Title VII of the 1964 Civil Rights Act without a referral from the EEOC. Prior to the 1972 amendments, neither the Attorney General nor the EEOC had authority over public employers. The 1972 Civil Rights Amendment transferred much of the Attorney General's authority under Title VII to the EEOC and conditioned the institution of pattern or practice cases against private employers on a referral from the EEOC. At the same time the 1972 amendments gave the EEOC investigatory and conciliation authority in connection with Title VII equal employment cases involving public or governmental employers.

The 1972 amendments are unclear and ambiguous with respect to the question whether the Attorney General obtained independent pattern or practice authority under Title VII against public employers while losing such authority in the case of private employers.

We conclude that this question of statutory interpretation should be resolved against the position of the Attorney General that he has independent pattern or practice authority against public employers in the absence of a referral from the EEOC for the reasons set out by District Judge Thomas in his Memorandum Opinion filed October 4, 1976, 435 F.Supp. 949 (1976) and for the reasons set out in the Opinion of the three judge District Court in the case of United States v. State of South Carolina, 445 F.Supp. 1094, 1110-11 (D.So.Car.1977). This conclusion is buttressed by the action of the Supreme Court in summarily affirming on appeal the decision of the three judge District Court in South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978). While the question is not entirely free from doubt, we believe that the Supreme Court necessarily affirmed the conclusion of the three judge District Court in South Carolina that the Attorney General’s former independent pattern or practice authority under Title VII of the 1964 Civil Rights Act, including his new authority to bring such suits against public employers granted by the 1972 amendments thereto, did not survive the 1972 amendments and that referral by the EEOC to the Attorney General is necessary prior to the institution of such suits.

Accordingly, the judgment of the District Court is hereby affirmed.