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Attachment 30 Fullilove v Beame 48 NY2d 376 1979

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 1 of 7<br />

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

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

Original Image of 398 N.E.2d 765 (PDF)<br />

<strong>48</strong> N.Y.2d <strong>376</strong><br />

Court of Appeals of New York.<br />

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

v.<br />

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

Nov. 20, <strong>1979</strong>.<br />

Synopsis<br />

Plaintiffs brought Article 78 proceeding challenging certain city affirmative action regulations promulgated pursuant to<br />

executive orders of the mayor. The Supreme Court, Special Term, New York County, Abraham J. Gellinoff, J., declared<br />

regulation unconstitutional, and appeal was taken. The Supreme Court, Appellate Division, First Department, 64 A.D.2d 961,<br />

409 N.Y.S.2d 121, affirmed, and permission to appeal was granted. The Court of Appeals held that mayor was without authority<br />

to initiate affirmative action regulation which provided that no contract could be awarded in a city or city-assisted construction<br />

project until contractor selected submitted a written program of affirmative action to insure the opportunity for equitable<br />

participation of minority group persons and women, in absence of legislative authorization for such regulation.<br />

Affirmed.<br />

Fuchsberg, J., dissented and filed opinion in which Meyer, J., joined.<br />

West Headnotes (1)<br />

[1] Municipal Corporations Validity and Sufficiency in General<br />

Public Contracts<br />

Determinative Factors in Making Award<br />

Mayor was without authority to initiate affirmative action regulation which provided that no contract could be awarded<br />

in a city or city-assisted construction project until contractor selected submitted a written program of affirmative action<br />

to insure the opportunity for equitable participation of minority group persons and women, in absence of legislative<br />

authorization for such regulation.<br />

19 Cases that cite this headnote<br />

Attorneys and Law Firms<br />

*377 ***144 **765 Allen G. Schwartz, Corp. Counsel, New York City (L. Kevin Sheridan, Esmeralda Simmons, Brooklyn,<br />

and Michael A. Vaccari, New York City, of counsel), for appellants.<br />

Robert G. Benisch, New York City, for respondents.<br />

*378 OPINION OF THE COURT<br />

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 2 of 7<br />

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

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

PER CURIAM.<br />

In this case as well as in Matter of <strong>Fullilove</strong> v. Carey, <strong>48</strong> N.Y.2d —-, —-N.Y.S.2d ——, —- N.E.2d —— (decided herewith), the<br />

fundamental question presented is not whether affirmative action is permissible or desirable. The question, simply and narrowly,<br />

is whether, under our governmental system, the central feature of which is distribution of powers, the executive has the authority<br />

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

Although the rule elsewhere may differ, the law of 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 and 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 of a State-approved affirmative action plan by private<br />

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

But as this court stated in Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 644, 646-647, 385 N.Y.S.2d 265, 267-268, 350 N.E.2d<br />

595, 598: “Nowhere in the law has the city council prescribed affirmative action to redress the effects of discrimination. There<br />

is a dramatic distinction between the expressed legislative policy of prohibiting employment discrimination and the mayoral<br />

***145 policy of mandating employment ‘percentages'.” Similarly there is a vast difference between permitting employers to<br />

voluntarily adopt an affirmative action program and mandating that this be done involuntarily under threat of legal sanctions.<br />

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

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

out nondiscrimination as the policy of the State, an order mandating that employers take certain actions cannot be viewed as<br />

merely one step further along a continuum.<br />

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

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

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

eligible for employment based on discrimination-free merit selection” (Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 649, 385<br />

N.Y.S.2d 265, 269, 350 N.E.2d 595, 599, Supra).<br />

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

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

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

FUCHSBERG, Judge (dissenting).<br />

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

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

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

Broidrick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595, to strike down each of these measures impermissibly<br />

narrows the meaning of that decision, and because the net effect of the court's determination today is to prevent the heads of<br />

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 3 of 7<br />

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

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

State and local governments from taking lawful steps toward the realistic enforcement of our strong legal and societal policies<br />

against race and sex discrimination, I must vote to reverse in both cases.<br />

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

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

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

a concept representative of the conviction *380 that full equality of 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 of the stubborn vestiges of discrimination, this<br />

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

“Affirmative action”, therefore, contemplates measures such as the reinstatement ***146 or upgrading of those who have been<br />

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

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

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

(cf. Alevy v. Downstate Med. Center, 39 N.Y.2d 326, 336-337, 384 N.Y.S.2d 82, 90-91, 3<strong>48</strong> N.E.2d 537, 545-546), it is not to be<br />

assumed that a program of affirmative action necessarily encompasses preferential **767 treatment (see Matter of Broidrick<br />

v. Lindsay, 39 N.Y.2d 641, 646-6<strong>48</strong>, 385 N.Y.S.2d 265, 267-268, 350 N.E.2d 595, 597-598, Supra ). The rules and regulations<br />

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

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 />

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

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

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

Rights v. Farrell, 43 Misc.2d 958, 960, 252 N.Y.S.2d 649, 652; see <strong>Fullilove</strong> v. Kreps, 584 F.2d 600, 606, cert. granted —-<br />

U.S. ——, 99 S.Ct. 2403, 60 L.Ed.2d 1064; Equal Employment Opportunity Comm. v. Local 638, 532 F.2d 821, 2nd Cir.,<br />

affd. as mod. 565 F.2d 31, 2nd Cir.; Rios v. Enterprise Assn. Steamfitters, Local No. 638, 501 F.2d 622, 2nd Cir.). Both had<br />

as their aim simply to make the industry more responsive to its obligations as regards the employment rights of minority and<br />

female workers.<br />

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

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

45 *381 Executive Order No. 45 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 and timetables designed to<br />

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

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

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

the order (9 NYCRR 3.45).<br />

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

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

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

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

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

quota formula would be imposed.<br />

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 4 of 7<br />

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

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

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

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

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

be free from discrimination on account of race, creed, color ***147 or national origin (and, by later amendment, of sex and<br />

age). The rules at issue replaced an earlier set that had been struck down by Broidrick as an unconstitutional application of<br />

Order No. 71 because they had required contractors to commit themselves to employ specified percentages of minority workers<br />

by specified dates on all their construction projects, whether public or private and 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 and actions which, *382 if diligently applied, could be expected to result in employment<br />

opportunities substantially equivalent to minority **768 representation in the available work force, they were made applicable<br />

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

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

On such review, lack of 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 />

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 and community referral agencies and<br />

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

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

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

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

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

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

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

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

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

quota system” ( University of Cal. Regents v. Bakke, 438 U.S. 265, 318, 98 S.Ct. 2733, 2763, 57 L.Ed.2d 750; United<br />

Steelworkers of Amer. v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d <strong>48</strong>0) or otherwise violate sound principles against<br />

illegal reverse discrimination.<br />

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

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

as 1945, the then State Commission Against Discrimination was already empowered to direct the taking of “such Affirmative<br />

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

By ***1<strong>48</strong> 1962 and 1963, when the commission had been renamed the State Commission for Human Rights (L.1962, ch.<br />

165), the Governor was able to announce that $400 million appropriated by the Legislature for State-sponsored contracts would<br />

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

State and towards which there were to be “Positive action to promote equality of opportunity” in the construction industry in<br />

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

The same year a new contract form for State contracting agencies, still in use today, require contractors to “take Affirmative<br />

action * * * (against discrimination because of race, creed, color or national origin) by way of recruitment, employment, job<br />

assignment, promotion, upgrading, demotion, transfer, layoff or termination, rates of pay or other forms of compensation, and<br />

Selection for training or retraining, including apprenticeship **769 and on-the-job training ”. (Id., at pp. 935-936 (emphasis<br />

mine).)<br />

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 5 of 7<br />

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

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

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

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

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

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

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

exhibiting a disproportionately high unemployment rate (L.1969, ch. 458, now codified as *384 Executive Law, s 296,<br />

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

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

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

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

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

State participation in affirmative action programs”. 4 (Cf. Labor Law, ss 220-e, 815, subd. 5; Civil Rights Law, ss 40-c, 43).<br />

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

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

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

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

engaged in ***149 * * * 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 of the race, color or creed of such person.” (Local Laws, 1942, No. 44 of<br />

City of 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 and repair<br />

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

Buildings Law, s 8). These statutes indicate a *385 legislative policy favoring the setting of standards through which persons<br />

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

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

mandating that particular standard provisions and clauses appear in State contracts comes well within the scope of executive<br />

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

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

pursuant to the constitutionally protected contract-making power that inheres in all “member(s) of this state” **770<br />

(N.Y.Const., art. I, s 1). Against the constitutional and statutory backdrop for the exercise of the State's contracting powers, the<br />

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

the Governor as its chief executive officer, to “expedite all such measures as may be resolved upon by the legislature” and, as<br />

already indicated, to “take care that the laws are faithfully executed” ( N.Y.Const., art. IV, s 3).<br />

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

is supreme (see Matter of La Guardia v. Smith, 288 N.Y. 1, 5-6, 10, 41 N.E.2d 153, 154-155, 157;<br />

Matter of Village of<br />

Saratoga Springs v. Saratoga Gas, Elec. Light & Power Co., 191 N.Y. 123, 132-138, 83 N.E. 693, 695-697), and indeed, on<br />

the broader plane of American political experience, the actual delineation of power between the executive and the Legislature<br />

has never been at all clear-cut, either in theory or in practice. Pertinently, the framers of the Federal Constitution rejected a<br />

proposal that would have limited the function of the executive to enforcement of the laws enacted by Congress and instead<br />

assigned that office a much more independent role (De Chambrun, The Executive Power in the United States: A Study of<br />

Constitutional Law, 111 (1874)).<br />

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 6 of 7<br />

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

398 N.E.2d 765, 423 N.Y.S.2d 144, 22 Empl. Prac. Dec. P <strong>30</strong>,572<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 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed.<br />

1153 (Jackson, J., concurring); Hall, Constitutional Law, p. 21). Moreover, as long as it does not contravene a statute, the<br />

executive branch may freely enter into contracts on whatever conditions and provisions it deems will best promote the interests<br />

of the government *386 (cf. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546; Locke, Second<br />

Treatise on Government, s 159), a power that certainly should not be construed in a more limited fashion when its purpose is<br />

to eradicate the manifestations of racial discrimination.<br />

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

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

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

attendant increases in costs. (See Associated Gen. Contrs. of Mass. v. Altshuler, 490 F.2d 9, 1st Cir., cert. den. ***150 416<br />

U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d <strong>30</strong>7; Farmer v. Philadelphia Elec. Co., 329 F.2d 3, 8, 3rd Cir.; Brunsfeld & Sons<br />

v. Board of Educ., 54 Ill.App.3d 119, 11 Ill.Dec. 829, 369 N.E.2d 283; Weiner v. Cuyahoga Community Coll. Dist., 19<br />

Ohio St.2d 35, 249 N.E.2d 907; Note, Gubernatorial Executive Orders as Devices for Administrative Direction and Control,<br />

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

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

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

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

practices are appropriate areas for “a broad declaration of 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 mandated quotas, were unrelated to cost considerations and attempted to impose these<br />

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

including previously excluded minority workers” might well call for an opposite result (39 N.Y.2d, pp. 646-647, 385 N.Y.S.2d,<br />

pp. 267-268, 350 N.E.2d, pp. 597-598).<br />

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

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

and city and city-assisted ones in the other. They do not even mandate 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 />

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

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

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

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

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

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

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

COOKE, C. J., and JASEN, GABRIELLI, JONES and WACHTLER, JJ., concur in Per Curiam opinion.<br />

FUCHSBERG, J., dissents and votes to reverse in a separate opinion in which MEYER, J., concurs.<br />

Order affirmed, without costs.<br />

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Case MDL No. <strong>30</strong>11 Document 25-<strong>30</strong> Filed 06/24/21 Page 7 of 7<br />

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

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

All Citations<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 <strong>30</strong>,572<br />

Footnotes<br />

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

(49 U.S.Stat. 449; U.S.Code, tit. 29, s 151; Labor Law, s 700.) Interpretations of those statutes were relied upon in<br />

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

Discrimination, N.Y.Legis.Doc., 1945, No. 6, pp. 19, 33.)<br />

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

of Employment and Unemployment, 1977 (Washington, D.C., U.S. Bureau of Labor Statistics, 1978); Foner, Organized<br />

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

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

apprenticeship so as to allow full utilization of the work potential of minorities and 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.1974, ch. 50; L.1975, ch. 50; L.1976, ch. 50; L.1977, ch. 50; L.1978, ch. 50.)<br />

End of Document<br />

© 2021 Thomson Reuters. No claim to original U.S. Government Works.<br />

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 7

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