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Matter of Fullilove v Beame 48 NY2d 376 regarding Executive Order 45 unenforceable and unconstitutional

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<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

<strong>48</strong> N.Y.2d <strong>376</strong>, 398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

In the <strong>Matter</strong> <strong>of</strong> H. Earl <strong>Fullilove</strong> et al., Respondents,<br />

v.<br />

Abraham <strong>Beame</strong>, as Mayor <strong>of</strong> the City <strong>of</strong> New York, et al., Appellants.<br />

Court <strong>of</strong> Appeals <strong>of</strong> New York<br />

Argued September 5, 1979;<br />

decided November 20, 1979<br />

CITE TITLE AS: <strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong><br />

SUMMARY<br />

Appeal, by permission <strong>of</strong> the Court <strong>of</strong> Appeals, from an order <strong>of</strong> the Appellate Division <strong>of</strong> the Supreme Court in the First<br />

Judicial Department, entered September 28, 1978, which unanimously affirmed an order <strong>and</strong> judgment <strong>of</strong> the Supreme Court<br />

at Special Term (Abraham J. Gellin<strong>of</strong>f, J.), entered in New York County in a proceeding pursuant to CPLR article 78, (1)<br />

converting the proceeding into an action for declaratory judgment, (2) granting summary judgment to plaintiffs, (3) declaring<br />

<strong>unconstitutional</strong>, illegal <strong>and</strong> <strong>unenforceable</strong> certain rules <strong>and</strong> regulations promulgated pursuant to executive orders <strong>of</strong> the Mayor<br />

<strong>of</strong> the City <strong>of</strong> New York relating to equal employment contract compliance for construction contractors, <strong>and</strong> (4) permanently<br />

enjoining enforcement <strong>of</strong> said rules <strong>and</strong> regulations.<br />

Certain rules <strong>and</strong> regulations, effective January 15, 1977, were promulgated under the authority <strong>of</strong> executive orders <strong>of</strong> the Mayor<br />

<strong>of</strong> the City <strong>of</strong> New York, which provided that no contract may be awarded in a city or city-assisted construction contract until the<br />

contractor selected shall submit a written program <strong>of</strong> affirmative action to ensure the opportunity for equitable participation <strong>of</strong><br />

minority group persons <strong>and</strong> women. Failure to comply with the regulations could result in sanctions, imposed at the discretion<br />

<strong>of</strong> the Deputy Mayor <strong>of</strong> the City <strong>of</strong> New York, including cancellation <strong>of</strong> the contract <strong>and</strong> exclusion from further contracts. The<br />

regulations provided that the effect <strong>of</strong> the program shall be measured by the progress made toward employment <strong>of</strong> minority<br />

group persons in a number ”substantially equivalent“ to their percentage <strong>of</strong> the work force. Special Term invalidated said<br />

rules <strong>and</strong> regulations, finding that they impermissibly required actual employment <strong>of</strong> persons solely by virtue <strong>of</strong> their status as<br />

minority group members <strong>and</strong> compelled a quota, however vaguely defined, rather than merely increasing the pool <strong>of</strong> eligibles<br />

for employment.<br />

The Court <strong>of</strong> Appeals affirmed, holding, in a Per Curiam opinion, that the executive does not have the authority to *377<br />

initiate such affirmative action without legislative authorization.<br />

<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, 64 AD2d 961, affirmed.<br />

Civil Rights<br />

Discrimination in Employment<br />

Affirmative Action<br />

HEADNOTES<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1


<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

(1) Although the executive clearly has the power <strong>and</strong> obligation to implement programs designed to prohibit discriminatory<br />

hiring practices, <strong>and</strong>, indeed, the State Legislature has stated that voluntary use <strong>of</strong> a State-approved affirmative action plan by<br />

private employers shall not be an unlawful discriminatory practice (<strong>Executive</strong> Law, § 296, subd 2), there is a vast difference<br />

between permitting employers to voluntarily adopt an affirmative action program <strong>and</strong> m<strong>and</strong>ating by executive order that this<br />

be done involuntarily under threat <strong>of</strong> legal sanctions, <strong>and</strong> there is also a distinction between executive affirmative action which<br />

would merely enlarge the pool <strong>of</strong> persons eligible for employment based on discrimination-free selection <strong>and</strong> affirmative action<br />

in hiring practices; under our governmental system, the central feature <strong>of</strong> which is distribution <strong>of</strong> powers, the executive does<br />

not have the authority to initiate such affirmative action without legislative authorization.<br />

9 NY Jur, Constitutional Law § 114<br />

TOTAL CLIENT SERVICE LIBRARY REFERENCES<br />

<strong>Executive</strong> Law §296 subd 2<br />

16 Am Jur 2d, Constitutional Law § 218<br />

POINTS OF COUNSEL<br />

Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan, Esmeralda Simmons <strong>and</strong> Michael Vaccari <strong>of</strong> counsel), for<br />

appellants.<br />

The 1977 regulations validly implement existing legislation prohibiting discrimination <strong>and</strong> satisfy the guidelines set down in<br />

<strong>Matter</strong> <strong>of</strong> Broidrick v Lindsay. (<strong>Matter</strong> <strong>of</strong> Broidrick v Lindsay, 39 <strong>NY2d</strong> 641;<br />

Local Union No. 35 <strong>of</strong> Int. Nat. Brotherhood<br />

<strong>of</strong> Elec. Workers v City <strong>of</strong> Hartford, 462 F Supp 1271; <strong>Fullilove</strong> v Kreps, 584 F2d 600; University <strong>of</strong> Cal. Regents<br />

v Bakke, 438 US 265.)<br />

Robert G. Benisch for respondents.<br />

I. The city charter gives neither the Mayor nor the Deputy Mayor the power to promulgate the rules at issue herein. (<strong>Matter</strong> <strong>of</strong><br />

Picone v Commissioner <strong>of</strong> Licenses, 241 NY 157; Rapp v Carey, 58 AD2d 918, 44 <strong>NY2d</strong> 157; University <strong>of</strong> Cal. Regents<br />

v Bakke, 438 US 265.) II. The rules at bar are in contravention <strong>of</strong> existing law *378 <strong>and</strong>, therefore, invalid. (<strong>Matter</strong> <strong>of</strong> Broidrick<br />

v Lindsay, 39 <strong>NY2d</strong> 641; Contractors Assn. <strong>of</strong> Eastern Pa. v Secretary <strong>of</strong> Labor, 442 F2d 159.)<br />

Per Curiam.<br />

OPINION OF THE COURT<br />

In this case as well as in <strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v Carey (<strong>48</strong> <strong>NY2d</strong> 826), the fundamental question presented is not whether<br />

affirmative action is permissible or desirable. The question, simply <strong>and</strong> narrowly, is whether, under our governmental system,<br />

the central feature <strong>of</strong> which is distribution <strong>of</strong> powers, the executive has the authority to initiate affirmative action without<br />

legislative authorization.<br />

Although the rule elsewhere may differ, the law in New York is clear.<br />

The State Legislature, as well as the New York City Council, has unequivocally condemned discriminatory hiring practices.<br />

The executive clearly has the power <strong>and</strong> obligation to implement programs designed to prohibit discriminatory hiring practices.<br />

Indeed, the State Legislature has gone so far as to state that voluntary use <strong>of</strong> a State-approved affirmative action plan by private<br />

employers ”shall not be an unlawful discriminatory practice“ (Human Rights Law, [<strong>Executive</strong> Law], § 296, subd 12).<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2


<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

But as this court stated in <strong>Matter</strong> <strong>of</strong> Broidrick v Lindsay (39 <strong>NY2d</strong> 641, 644, 646-647): ”Nowhere in the law has the city council<br />

prescribed affirmative action to redress the effects <strong>of</strong> discrimination. There is a dramatic distinction between the expressed<br />

legislative policy <strong>of</strong> prohibiting employment discrimination <strong>and</strong> the mayoral policy <strong>of</strong> m<strong>and</strong>ating employment 'percentages'.<br />

“ Similarly there is a vast difference between permitting employers to voluntarily adopt an affirmative action program <strong>and</strong><br />

m<strong>and</strong>ating that this be done involuntarily under threat <strong>of</strong> legal sanctions.<br />

The difference between obligations that require the taking <strong>of</strong> certain steps, <strong>and</strong> those that merely require one to refrain from<br />

others, is, in this sensitive area <strong>of</strong> racial relations, not merely one <strong>of</strong> degree, but <strong>of</strong> kind. Where the Legislature has set out<br />

nondiscrimination as the policy <strong>of</strong> the State, an order m<strong>and</strong>ating that employers take certain actions cannot be viewed as merely<br />

one step further along a continuum.<br />

In <strong>Matter</strong> <strong>of</strong> Broidrick (supra), because only specific administrative *379 regulations were in issue, only those regulations, <strong>and</strong><br />

not the mayoral order in which they were grounded, were struck by this court as being in excess <strong>of</strong> the legislative authorization.<br />

This led some (although not the courts below) to conclude, mistakenly, that the defect could be cured by different regulations<br />

which did not prescribe specific percentage quotas.<br />

The difficulty in Broidrick, as here, is not the means employed by the executive to impose affirmative action in hiring practices,<br />

but rather that the executive attempted it at all. At the same time we note the distinction, carefully preserved in Broidrick, between<br />

affirmative action in hiring practices, <strong>and</strong> executive affirmative action which ”only would enlarge the pool <strong>of</strong> persons eligible<br />

for employment based on discrimination-free merit selection “ (<strong>Matter</strong> <strong>of</strong> Broidrick v Lindsay, 39 <strong>NY2d</strong> 641, 649, supra.;).<br />

In sum, we would emphasize that the desirability <strong>of</strong> adopting a policy <strong>of</strong> affirmative action in hiring practices, <strong>and</strong> m<strong>and</strong>ating<br />

the same, is not a prerogative <strong>of</strong> the executive, but rather <strong>of</strong> the legislative branch <strong>and</strong> it is to those bodies that persons seeking<br />

to impose affirmative action should direct their attention.<br />

Fuchsberg, J.<br />

(Dissenting).<br />

Because I believe that neither the Governor's <strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong><strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong> nor the 1977 Rules <strong>and</strong> Regulations<br />

promulgated on behalf <strong>of</strong> the Mayor <strong>of</strong> the City <strong>of</strong> New York in implementation <strong>of</strong> the latter's <strong>Executive</strong> <strong>Order</strong> No. 71<strong>Executive</strong><br />

<strong>Order</strong> No. 71 constitutes an excessive exercise <strong>of</strong> executive power, because in my opinion the majority's reading <strong>of</strong> <strong>Matter</strong> <strong>of</strong><br />

Broidrick v Lindsay (39 <strong>NY2d</strong> 641) to strike down each <strong>of</strong> these measures impermissibly narrows the meaning <strong>of</strong> that decision,<br />

<strong>and</strong> because the net effect <strong>of</strong> the court's determination today is to prevent the heads <strong>of</strong> State <strong>and</strong> local governments from taking<br />

lawful steps toward the realistic enforcement <strong>of</strong> our strong legal <strong>and</strong> societal policies against race <strong>and</strong> sex discrimination, I<br />

must vote to reverse in both cases.<br />

By way <strong>of</strong> preface, since the majority's nullification <strong>of</strong> the two executive actions stems from their inclusion <strong>of</strong> a requirement<br />

for ”affirmative action “, in articulating my views I think it best to take the scare factor out <strong>of</strong> that phrase. Though subsuming<br />

a broad range <strong>of</strong> policies <strong>and</strong> programs that have been introduced at State <strong>and</strong> Federal levels, ”affirmative action“ is basically<br />

a concept representative <strong>of</strong> the conviction *380 that full equality <strong>of</strong> employment opportunity cannot be achieved simply by<br />

decrying discrimination or even by decreeing that discrimination cease; rather, it proceeds on the assumption that, unless these<br />

are accompanied by positive or ”affirmative “ steps to speed the elimination <strong>of</strong> the stubborn vestiges <strong>of</strong> discrimination, this<br />

noxious condition will continue to feed on itself, <strong>and</strong> the goal <strong>of</strong> equal opportunity will remain beyond reach.<br />

“Affirmative action”, therefore, contemplates measures such as the reinstatement or upgrading <strong>of</strong> those who have been<br />

discriminated against, the recruitment <strong>of</strong> members <strong>of</strong> disadvantaged groups <strong>and</strong> the opening up <strong>of</strong> opportunities for attaining<br />

vocational skills that will enable them to compete in the labor market. While, at times, impatience with the pace <strong>of</strong> acceptable<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3


<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

methods has led some to resort to quotas <strong>and</strong> programs <strong>of</strong> reverse discrimination, concepts quite different from equal opportunity<br />

(cf. Alevy v Downstate Med. Center, 39 <strong>NY2d</strong> 326, 336-337), it is not to be assumed that a program <strong>of</strong> affirmative action<br />

necessarily encompasses preferential treatment (see <strong>Matter</strong> <strong>of</strong> Broidrick v Lindsay, 39 <strong>NY2d</strong> 641, 646-6<strong>48</strong>, supra.;). The rules<br />

<strong>and</strong> regulations in Broidrick were properly struck down because they did. The executive actions here do not <strong>and</strong>, thus, are not<br />

vulnerable to such attack.<br />

On analysis, in their own way, the executive actions before us today were but modest attempts to deal with existing inequalities<br />

<strong>of</strong> opportunity. Each recognized that discrimination in employment on the part <strong>of</strong> public contractors adversely affects the costs<br />

<strong>of</strong> public works by, among other things, decreasing the pool <strong>of</strong> available labor. Both were directed against what had been<br />

found to be a “specific” pattern <strong>of</strong> discrimination infesting the building <strong>and</strong> construction industry (<strong>Matter</strong> <strong>of</strong> State Comm. for<br />

Human Rights v Farrell, 43 Misc 2d 958, 960; see <strong>Fullilove</strong> v Kreps, 584 F2d 600, 606, cert granted 441 US 960; Equal<br />

Employment Opportunity Comm. v Local 638, 532 F2d 821, affd as mod 565 F2d 31; Rios v Enterprise Assn. Steamfitters,<br />

Local No. 638, 501 F2d 622). Both had as their aim simply to make the industry more responsive to its obligations as regards<br />

the employment rights <strong>of</strong> minority <strong>and</strong> female workers.<br />

For his part, the Governor acted pursuant to his constitutional authority ( NY Const, art IV, §3) to see to the faithful execution<br />

<strong>of</strong> our laws <strong>and</strong> to specify terms <strong>and</strong> conditions <strong>of</strong> contracts entered into by the State. In this tenor, <strong>Executive</strong> *381 <strong>Order</strong> No.<br />

<strong>45</strong> *381 <strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong> required that all State contracts include a provision incorporating a program that would insure<br />

that employees or applicants “are afforded equal employment opportunities.” To allow the contractors flexibility, the order did<br />

not spell out precise requirements, except to indicate the program was to be one “to achieve goals <strong>and</strong> timetables designed to<br />

reflect adequate utilization <strong>of</strong> minority group persons <strong>and</strong> women”. Instead, it set up an Office <strong>of</strong> State Contract Compliance<br />

(OSCC) within the State Division <strong>of</strong> Human Rights, the agency already charged by the Legislature with the implementation <strong>of</strong><br />

antidiscrimination laws. The OSCC was commissioned to develop <strong>and</strong> enforce appropriate contract terms designed to effectuate<br />

the order (9 NYCRR 3.<strong>45</strong>).<br />

No terms had been issued by the OSCC by the time the petitioners, as representatives <strong>of</strong> employers <strong>and</strong> unions in the construction<br />

industry, commenced this article 78 proceeding. There was, therefore, no reason to assume that, when issued, the “goals”<br />

<strong>and</strong> “timetables” would not be ones directed at the undisputably permissible goal <strong>of</strong> attracting qualified minority applicants,<br />

rather than granting some form <strong>of</strong> blunderbuss preferential treatment to minorities <strong>and</strong> women in the potential labor market.<br />

In particular, especially in the light <strong>of</strong> the Broidrick guidelines, nothing compelled the conclusion that a fixed percentage or<br />

quota formula would be imposed.<br />

As for the city, the rules <strong>and</strong> regulations here challenged were promulgated for the Mayor by his city administrator. Their<br />

issuance was authorized by Mayoral <strong>Executive</strong> <strong>Order</strong> No. 71<strong>Executive</strong> <strong>Order</strong> No. 71, which, undisturbed by Broidrick <strong>and</strong> with<br />

seeming uncontestability, declared it the policy <strong>of</strong> the city to insure that employment <strong>of</strong> qualified persons on municipal contracts<br />

be free from discrimination on account <strong>of</strong> race, creed, color or national origin (<strong>and</strong>, by later amendment, <strong>of</strong> sex <strong>and</strong> age). The<br />

rules at issue replaced an earlier set that had been struck down by Broidrick as an <strong>unconstitutional</strong> application <strong>of</strong> <strong>Order</strong> No. 71<br />

because they had required contractors to commit themselves to employ specified percentages <strong>of</strong> minority workers by specified<br />

dates on all their construction projects, whether public or private <strong>and</strong> whether funded by the city or not.<br />

The new regulations carefully avoided these pitfalls. While they called upon each construction contractor to submit a proposed<br />

program containing specific steps <strong>and</strong> actions which, *382 if diligently applied, could be expected to result in employment<br />

opportunities substantially equivalent to minority representation in the available work force, they were made applicable only<br />

to city <strong>and</strong> city-assisted construction contracts. Moreover, failure to achieve an anticipated goal was to bring no automatic<br />

imposition <strong>of</strong> sanctions, but instead would occasion review, opportunity for explanation <strong>and</strong>, where necessary, modification.<br />

On such review, lack <strong>of</strong> progress was to be but a factor in determining whether the efforts to apply the employer's program<br />

had been carried out in good faith.<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4


<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

Furthermore, neither the contractor nor the city were left to flounder in structuring a proposed plan, for the rules indicated that<br />

the employer's program could include provision for notifying relevant labor, minority <strong>and</strong> community referral agencies <strong>and</strong><br />

city <strong>and</strong> State employment agencies <strong>of</strong> job openings on its city projects; maintaining files containing information on female<br />

<strong>and</strong> minority persons referred to the contractor for employment together with the action that had been taken with respect to<br />

their applications; disseminating its Equal Employment Opportunity (EEO) policy within its own organization as well as to<br />

subcontractors <strong>and</strong> suppliers; enlisting the help <strong>of</strong> minority <strong>and</strong> other recruitment <strong>and</strong> training organizations, news media,<br />

trade schools <strong>and</strong> secondary schools within the City <strong>of</strong> New York; evaluating women <strong>and</strong> minority personnel for promotion<br />

opportunities <strong>and</strong> encouraging them to seek such opportunities.<br />

As the rules make clear, the idea was to roll back <strong>and</strong> not to countenance the perpetuation <strong>of</strong> discrimination. Though raceconscious<br />

<strong>and</strong> sex-conscious, as well they might be if the attitudes <strong>and</strong> effects engendered by past discrimination were to be<br />

addressed in any meaningful way, they did not impose hiring or training quotas or otherwise depart from the principle <strong>of</strong> merit<br />

selection. Indeed, as in the case against the State, the article 78 proceeding mounted against the city pointed to no application<br />

<strong>of</strong> the city's rules <strong>and</strong> regulations that would in any guise constitute “a cover for the functional equivalent <strong>of</strong> a quota system”<br />

(University <strong>of</strong> Cal. Regents v Bakke, 438 US 265, 318;<br />

violate sound principles against illegal reverse discrimination.<br />

United Steelworkers <strong>of</strong> Amer. v Weber, 443 US 193) or otherwise<br />

Far from exceeding the bounds <strong>of</strong> gubernatorial <strong>and</strong> mayoral power, as an examination <strong>of</strong> legislative history emphasizes, *383<br />

these executive actions did no more than give effect to the policies, expressed <strong>and</strong> implied, <strong>of</strong> the laws <strong>of</strong> this State. As early as<br />

19<strong>45</strong>, the then State Commission Against Discrimination was already empowered to direct the taking <strong>of</strong> “such affirmative action<br />

including (but not limited to) hiring, reinstatement or upgrading <strong>of</strong> employees” (<strong>Executive</strong> Law, § 132; emphasis mine). 1 By<br />

1962 <strong>and</strong> 1963, when the commission had been renamed the State Commission for Human Rights (L 1962, ch 165), the Governor<br />

was able to announce that $400 million appropriated by the Legislature for State-sponsored contracts would be awarded in<br />

conjunction with a program to increase jobs to help assure realization <strong>of</strong> equality <strong>of</strong> job opportunities in New York State <strong>and</strong><br />

towards which there were to be “positive action to promote equality <strong>of</strong> opportunity” in the construction industry in recruitment,<br />

training <strong>and</strong> employment (Public Papers <strong>of</strong> Governor Nelson A. Rockefeller [1963], pp 865-866 [emphasis mine]). The same<br />

year a new contract form for State contracting agencies, still in use today, required contractors to “take affirmative action ***<br />

[against discrimination because <strong>of</strong> race, creed, color or national origin] by way <strong>of</strong> recruitment, employment, job assignment,<br />

promotion, upgrading, demotion, transfer, lay<strong>of</strong>f or termination, rates <strong>of</strong> pay or other forms <strong>of</strong> compensation, <strong>and</strong> selection for<br />

training or retraining, including apprenticeship <strong>and</strong> on- the-job training”. (Id;, at pp 935-936 [emphasis mine].)<br />

Five years later, in 1968, the legislative revision <strong>of</strong> the Human Rights Law, in declaring that the purpose <strong>of</strong> the law was, inter<br />

alia, to afford to all citizens “an equal opportunity to enjoy a full <strong>and</strong> productive life”, spoke in terms <strong>of</strong> “encourag[ing] programs<br />

designed to insure that every individual shall have an equal opportunity to participate fully in the economic *** life <strong>of</strong> the<br />

state” free from discrimination in employment ( <strong>Executive</strong> Law, § 290, subd 3; § 297, subd 4, par c). The following year<br />

an amendment authorized the Human Rights Division to work to increase the employment <strong>of</strong> members <strong>of</strong> any minority group<br />

exhibiting a disproportionately high unemployment rate (L 1969, ch <strong>45</strong>8, now codified as *384 <strong>Executive</strong> Law, § 296,<br />

subd 12). 2 And, in 1972, echoing this legislative sentiment, the State Department <strong>of</strong> Labor issued new regulations pursuant to<br />

article 23 <strong>of</strong> the Labor Law described as intended to prohibit “discrimination based on race, creed, color, national origin [<strong>and</strong>]<br />

sex *** in apprenticeship programs, by requiring affirmative action” (12 NYCRR 600.1 [emphasis mine]). 3<br />

<strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong><strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong> followed, along what had thus become a well-blazed trail, on the heels <strong>of</strong><br />

these <strong>and</strong> other even more practical expressions <strong>of</strong> support for such policies, including regular legislative appropriations “for<br />

State participation in affirmative action programs”. 4 (Cf. Labor Law, §§ 220-e, 815, subd 5; Civil Rights Law, §§ 40-c,<br />

43). Obviously, it embodies an effort to deal with the matters identified by the Legislature as the focus <strong>of</strong> public concern, <strong>and</strong><br />

to do so in a manner consistent with State law <strong>and</strong> public policy. And, certainly no less consonant with the thrust <strong>of</strong> relevant<br />

legislation was the Mayor's <strong>Executive</strong> <strong>Order</strong> No. 71<strong>Executive</strong> <strong>Order</strong> No. 71, for it carries forward the unequivocal expression<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5


<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

<strong>of</strong> policy in section 343-8.0 <strong>of</strong> the Administrative Code <strong>of</strong> the City <strong>of</strong> New York, which provides that: “It shall be unlawful<br />

for any person engaged in *** construction *** pursuant to a contract with the city *** to refuse to employ or to refuse to<br />

continue in any employment any person on account <strong>of</strong> the race, color or creed <strong>of</strong> such person.” (Local Laws, 1942, No. 44 <strong>of</strong><br />

City <strong>of</strong> New York, eff Sept. 9, 1942.)<br />

On the State level, the executive branch is also authorized by statute to make contracts for the construction, alteration <strong>and</strong> repair<br />

<strong>of</strong> public buildings <strong>and</strong> for the procurement <strong>of</strong> materials, equipment <strong>and</strong> supplies ( State Finance Law, § 163; see Public<br />

Buildings Law, § 8). These statutes indicate a *385 legislative policy favoring the setting <strong>of</strong> st<strong>and</strong>ards through which persons<br />

dealing or seeking to deal with the State may be furnished with notice <strong>of</strong> the terms <strong>and</strong> conditions that attend such relationships<br />

as well as some assurance against institutional caprice. It should be apparent, then, that the issuance <strong>of</strong> an executive order<br />

m<strong>and</strong>ating that particular st<strong>and</strong>ard provisions <strong>and</strong> clauses appear in State contracts comes well within the scope <strong>of</strong> executive<br />

authority conferred <strong>and</strong> contemplated by the statutes.<br />

Apart from this, however, <strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong><strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong> may be viewed, more fundamentally, as issued<br />

pursuant to the constitutionally protected contract-making power that inheres in all “member[s] <strong>of</strong> this state” (NY Const, art<br />

I, §1). Against the constitutional <strong>and</strong> statutory backdrop for the exercise <strong>of</strong> the State's contracting powers, the executive order<br />

would fall well within the range <strong>of</strong> authority reserved to the executive branch <strong>of</strong> our State government, <strong>and</strong> <strong>of</strong> the Governor as<br />

its chief executive <strong>of</strong>ficer, to “expedite all such measures as may be resolved upon by the legislature” <strong>and</strong>, as already indicated,<br />

to “take care that the laws are faithfully executed” ( NY Const, art IV, §3).<br />

In addition, I note that the Constitution <strong>of</strong> the State <strong>of</strong> New York does not establish a form <strong>of</strong> government in which the Legislature<br />

is supreme (see <strong>Matter</strong> <strong>of</strong> La Guardia v Smith, 288 NY 1, 5-6, 10; <strong>Matter</strong> <strong>of</strong> Village <strong>of</strong> Saratoga Springs v Saratoga Gas,<br />

Elec. Light & Power Co., 191 NY 123, 132-138), <strong>and</strong>, indeed, on the broader plane <strong>of</strong> American political experience, the actual<br />

delineation <strong>of</strong> power between the executive <strong>and</strong> the Legislature has never been at all clear-cut, either in theory or in practice.<br />

Pertinently, the framers <strong>of</strong> the Federal Constitution rejected a proposal that would have limited the function <strong>of</strong> the executive to<br />

enforcement <strong>of</strong> the laws enacted by Congress <strong>and</strong> instead assigned that <strong>of</strong>fice a much more independent role (De Chambrun,<br />

The <strong>Executive</strong> Power in the United States: A Study <strong>of</strong> Constitutional Law, 111 [1874]).<br />

So, it is recognized that each branch, to protect its own independence, to some extent may exercise inherent powers that, strictly<br />

speaking, may be thought to belong to another (see Youngstown Co. v Sawyer, 343 US 579, 637 [Jackson, J., concurring];<br />

Hall, Constitutional Law, p 21). Moreover, as long as it does not contravene a statute, the executive branch may freely enter into<br />

contracts on whatever conditions <strong>and</strong> provisions it deems will best promote the interests <strong>of</strong> the government *386 (cf. Kern-<br />

Limerick, Inc. v Scurlock, 347 US 110; Locke, Second Treatise on Government, § 159), a power that certainly should not be<br />

construed in a more limited fashion when its purpose is to eradicate the manifestations <strong>of</strong> racial discrimination.<br />

The public interest is, in fact, even more directly involved in such a case when, aside from the incalculable importance <strong>of</strong><br />

social justice to the welfare <strong>of</strong> the State <strong>and</strong> Nation, the perpetuation <strong>of</strong> the problem raises spectres <strong>of</strong> labor unrest, <strong>and</strong> <strong>of</strong><br />

an economy burdened by an economically disenfranchised <strong>and</strong> unproductive class yet tolerating a restricted labor pool with<br />

attendant increases in costs. (See Associated Gen. Contrs. <strong>of</strong> Mass. v Altshuler, 490 F2d 9, cert den 416 US 957;<br />

Farmer<br />

v Philadelphia Elec. Co., 329 F2d 3, 8; Brunsfeld & Sons v Board <strong>of</strong> Educ., 54 Ill App 3d 119; Weiner v Cuyahoga<br />

Community Coll. Dist., 19 Ohio St 2d 35; Note, Gubernatorial <strong>Executive</strong> <strong>Order</strong>s as Devices for Administrative Direction <strong>and</strong><br />

Control, 50 Iowa L Rev 78.)<br />

These irresistible bases for <strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong><strong>Executive</strong> <strong>Order</strong> No. <strong>45</strong> <strong>and</strong> the rules <strong>and</strong> regulations before us, we now<br />

turn to examine <strong>Matter</strong> <strong>of</strong> Broidrick. Carefully read, it supports the State <strong>and</strong> city in the cases before us on all counts. As though<br />

possessed <strong>of</strong> the prescience that the present litigation would arise in due course, it took care to make clear that discriminatory<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6


<strong>Matter</strong> <strong>of</strong> <strong>Fullilove</strong> v <strong>Beame</strong>, <strong>48</strong> N.Y.2d <strong>376</strong> (1979)<br />

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P 30,572<br />

practices are appropriate areas for “a broad declaration <strong>of</strong> policy, leaving to the executive discretion to determine the particular<br />

otherwise valid means necessary to enforce antidiscriminatory prohibitions”. And, even while it was holding the old city<br />

regulations objectionable because they m<strong>and</strong>ated quotas, were unrelated to cost considerations <strong>and</strong> attempted to impose these<br />

dictates beyond city contracts, it recognized that “a policy limited to increasing the pool <strong>of</strong> eligibles for employment, by<br />

including previously excluded minority workers” might well call for an opposite result (39 <strong>NY2d</strong>, pp 646-647).<br />

<strong>Order</strong> No. <strong>45</strong> <strong>and</strong> the 1977 regulations do call for such a result. They do not impose “quotas”. They seek to increase the pool<br />

<strong>of</strong> previously excluded eligible minority applicants. They apply only to State <strong>and</strong> State-assisted projects in the one case <strong>and</strong><br />

city <strong>and</strong> city-assisted ones in the other. They do not even m<strong>and</strong>ate a rate for accepting minority apprentices. And, though a<br />

contractor must make diligent good faith efforts to implement a program, there is no requirement that it hire a specific number<br />

<strong>of</strong> minorities or that parity be reached between *387 its work force <strong>and</strong> the minority work force at large. Finally, an expressed<br />

governmental concern in each case is cost minimization <strong>and</strong> other economic factors related directly to governmental contracts<br />

<strong>and</strong> not to an unrelated extrinsic policy.<br />

For all these reasons, deference to a most compelling State policy <strong>and</strong> the permissible practices undertaken by those charged<br />

with its enforcement require that, in each case, the order <strong>of</strong> the Appellate Division be reversed <strong>and</strong> the petition dismissed, or,<br />

in the alternative, on conversion <strong>of</strong> the proceedings to actions for declaratory judgment, that there be declarations that <strong>Order</strong><br />

No. <strong>45</strong> <strong>and</strong> the 1977 rules <strong>and</strong> regulations are constitutional.<br />

Chief Judge Cooke <strong>and</strong> Judges Jasen, Gabrielli, Jones <strong>and</strong> Wachtler concur in Per Curiam opinion; Judge Fuchsberg dissents<br />

<strong>and</strong> votes to reverse in a separate opinion in which Judge Meyer concurs.<br />

<strong>Order</strong> affirmed, without costs. *388<br />

Copr. (C) 2020, Secretary <strong>of</strong> State, State <strong>of</strong> New York<br />

Footnotes<br />

1 The term “affirmative action” was already part <strong>of</strong> the remedial provisions in Federal <strong>and</strong> State labor relations laws. (49<br />

US Stat 449; US Code, tit 29, § 151; Labor Law, § 700.) Interpretations <strong>of</strong> those statutes were relied upon in the drafting<br />

<strong>of</strong> the Law Against Discrimination. (See Report <strong>of</strong> the New York State Temporary Commission Against Discrimination,<br />

NY Legis Doc, 19<strong>45</strong>, No. 6, pp 19, 33.)<br />

2 Some conception <strong>of</strong> the serious extent <strong>of</strong> the disproportionality, both then <strong>and</strong> now, may be garnered from State Pr<strong>of</strong>ile<br />

<strong>of</strong> Employment <strong>and</strong> Unemployment, 1977 (Washington DC, US Bureau <strong>of</strong> Labor Statistics, 1978); Foner, Organized<br />

Labor <strong>and</strong> the Black Worker, 1619-1973.<br />

3 The regulations go on to state: “Affirmative action is not mere passive nondiscrimination. It includes procedures,<br />

methods <strong>and</strong> programs for the identification, positive recruitment, training <strong>and</strong> motivation <strong>of</strong> present <strong>and</strong> potential<br />

minority <strong>and</strong> female (minority <strong>and</strong> nonminority) apprentices. It is action which will equalize opportunity in<br />

apprenticeship so as to allow full utilization <strong>of</strong> the work potential <strong>of</strong> minorities <strong>and</strong> women. The overall result to be<br />

sought is equal opportunity in apprenticeship for all individuals participating in or seeking entrance to the State's labor<br />

force” (12 NYCRR 600.5[b]).<br />

4 (L 1973, ch 50; L ch 50; L 1975, ch 50; L 1976, ch 50; L 1977, ch 50; L 1978, ch 50.)<br />

End <strong>of</strong> Document<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works.<br />

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7

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