80 Op. Att'y Gen. 264 (1992)

80 Op. Att'y Gen. 264, 277 (1992)
  This is the sense in which the Seventh Circuit recently used the term "cutoff" in analyzing an equal protection challenge to an affirmative action program in Billish:

80 Op. Att'y Gen. 264, 277 (1992)
The eighteen promotions were made in rank order from the 1979 eligibility list, and each of the promotees was white. Soon thereafter, Commissioner Galante inquired of the City Personnel Department whether there were any black or Hispanic lieutenants remaining on the 1979 list. He was told there were two minority lieutenants on the list but, because both had scored below the cut-off score of 70, that cut-off score would have to be lowered before they could be eligible for promotion to captain. Commissioner Galante asked the Personnel Department to lower the passing score.

80 Op. Att'y Gen. 264, 277 (1992)
Billish, 962 F.2d at 1275 (emphasis added).

80 Op. Att'y Gen. 264, 277 (1992)
  The certification process, by contrast, is subject to variations in the number and types of names certified and--potentially--to using up the entire list of qualified candidates. Wisconsin Personnel Manual--Staffing, Vol. 2, pp. 232-12 and 232-13, ch. 232, "Certification," 232.053 (Rev. 11/84). Expanded certification does not, therefore, establish a different "cutoff" score than was established through the initial examination. Certification is normally a process of determining who will be initially interviewed and frequently results in several names being added as candidates from the pool of qualified candidates on one or more occasions because some candidates initially certified either cannot be contacted or decline invitations to interview. Id.

80 Op. Att'y Gen. 264, 277-278 (1992)
  It cannot be said that Congress unambiguously intended to prohibit expanded certification by prohibiting the use of different cutoff scores in section 106 of the CRA. Legislative history may, therefore, be consulted. The legislative history analyzed in the prior section suggests that expanded certification was not among the evils section 106 of the CRA sought to prohibit by proscribing the use of different cutoff scores. Indeed, Sen. Kennedy observed that "the substitute also provides that a test cutoff score, the minimum passing score necessary to be eligible to be considered for selection or referral should not vary with the race, color, religion, sex or national origin." 137 Cong. Rec. S15235 (daily ed. October 25, 1991) (emphasis added).

80 Op. Att'y Gen. 264, 278 (1992)
d. What does it mean to otherwise "alter" the "results" of a test?

80 Op. Att'y Gen. 264, 278 (1992)
  The most applicable dictionary definition of "alter" is "1 : to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else... <preserve it as it is or... [alter] it out of all recognition--Aldous Huxley>." Webster's at 63. To "alter" has been defined by the federal courts in different contexts to essentially mean taking action which actually makes a substantive change. See, e.g., United States v. Sacks, 257 U.S. 37, 41-42 (1921); Porter v. Commissioner of Int. Rev., 288 U.S. 436, 443 (1933); Hutt v. Gibson Fiber Glass Products, Inc., 914 F.2d 790, 794 (6th Cir. 1990); West Texas Utilities Co. v. N.L.R.B., 206 F.2d 442, 446 (D.C. Cir. 1953), cert. denied, 346 U.S. 855 (1953).

80 Op. Att'y Gen. 264, 278-279 (1992)
  The most applicable dictionary definitions of "result" or "results" used as a noun appear to be: "3 : something obtained, achieved, or brought about by calculation, investigation, or similar activity... 4 results pl : a synoptic publication of the outcome of related competitive events <the race [results] are on the back page> <have you seen the football [results]>." Webster's at 1937. It is likely that, what Congress meant by altering test results is something similar to what the Seventh Circuit meant in U.S. v. City of Chicago, 870 F.2d 1256 (7th Cir. 1989) by "altering the test scores" (id. at 1261), i.e., "assigning the same mean score to each group of exams graded by a different reader" to "standardiz[e] for 'rater bias'" and "by raising the mean score of the black and Hispanic sergeants who had taken the test to that of the white sergeants" (id. at 1258).

80 Op. Att'y Gen. 264, 279 (1992)
  Three state court decisions defining "results" in the context of "tests" are also of assistance. Reynolds v. State, 424 A.2d 6, 7 (Del. 1980) (a pretrial agreement that "results" of a truth serum test would be admissible did not include a tape recording of the entire interview and related procedure but simply some confirmation or negation of defendant's version of the facts); People v. Rhodes, 102 Misc. 2d 377, 423 N.Y.S.2d 437, 438 (1980) (conclusion as to whether a defendant was truthful is a "result" of a polygraph test while statements made during pretest interview and during examination itself are not); State v. Blosser, 558 P.2d 105, 107 (Kan. 1976) (the "results" of a polygraph test are "the examiner's opinion based upon his interpretation of the data shown by the machine").

80 Op. Att'y Gen. 264, 279 (1992)
  In the context of these definitions, it does not appear that expanded certification alters or changes the results of the initial examination process. The "scores" received remain the same. Indeed, the list which reports the "results" of the initial qualifying test remains the same. All that happens is that candidates with scores further down the list are interviewed rather than candidates with scores higher on the list. Once again, section 106 of the CRA does not so unambiguously prohibit expanded certification that legislative history cannot be examined. To the extent there is any ambiguity, that legislative history, analyzed previously, suggests that Congress did not intend, by barring employers from altering the results of employment-related tests, to prohibit expanded certification.

80 Op. Att'y Gen. 264, 279 (1992)
3. The plain and ordinary meaning of the terms in section 107 of the CRA does not prohibit Wisconsin's expanded certification procedures and, to the extent there may be any ambiguity, legislative history indicates expanded certification is not prohibited.

80 Op. Att'y Gen. 264, 280 (1992)
  The plain and ordinary meaning of the terms of section 107 do not so unambiguously prohibit expanded certification that legislative history cannot be examined. 42 U.S.C.A. 2000e-2(m)--section 107 of the CRA--states:

80 Op. Att'y Gen. 264, 280 (1992)
  (m)   Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color,... sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

80 Op. Att'y Gen. 264, 280 (1992)
(Emphasis added). Only if it is unambiguously clear that the phrase "any employment practice" was intended both to include expanded certification and to prohibit expanded certification would consultation with legislative history be unavailing. In determining the plain meaning of this provision, however, the terms used cannot be interpreted in a vacuum and must instead be interpreted in the context of the statute as a whole. See, e.g., Crandon v. United States, 494 U.S. 152 (1990).

80 Op. Att'y Gen. 264, 280 (1992)
  Section 116 of the CRA states, in relevant part, that: "Nothing in the amendments made by this title shall be construed to affect... affirmative action... that [is] in accordance with the law." The EEOC guidelines explicitly allow race, color, sex or national origin to be a "motivating factor" in "employment practices" which are within the scope of affirmative action. It is not unambiguously clear, therefore, both that expanded certification is an "employment practice" within the meaning of section 107 of the CRA and that Congress intended, by section 107 of the CRA, to prohibit that practice. Legislative history may be consulted.

80 Op. Att'y Gen. 264, 280-281 (1992)
  The interpretive memorandum of Rep. Edwards, the chair of the subcommittee which examined H.R. 1, interprets section 107 of the CRA in a way which excludes expanded certification from its coverage. That memorandum explicitly stated that the purpose of section 107 of the CRA was to overrule "one aspect of the Supreme Court's decision in Price-Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989)" namely, to eliminate the "mixed motive" defense and to make it a violation of Title VII if a discriminatory reason was a factor in the employment action even if other reasons justified the employment action. 137 Cong. Rec. H9529. That memorandum went on to note that:

80 Op. Att'y Gen. 264, 281 (1992)
  It is our clear understanding that this section is not intended to provide an additional method to challenge affirmative action. As Section 116 of the legislation makes plain, nothing in this legislation is to be construed to affect... affirmative action... that [is] otherwise in accordance with the law. This understanding has been clear from the time this legislation was first proposed in 1990, and any suggestion to the contrary is flatly wrong.

80 Op. Att'y Gen. 264, 281 (1992)
Id. (emphasis added).

80 Op. Att'y Gen. 264, 281 (1992)
  Representative Hyde, in an interpretive memorandum, agreed that section 107 of the CRA addressed the Price-Waterhouse case and, although he took the view that section 107 of the CRA could be applied in cases challenging "affirmative action plans," he limited that potential application to "challenges to unlawful affirmative action plans." 137 Cong. Rec. H9542-49 (emphasis added).

80 Op. Att'y Gen. 264, 281 (1992)
  This legislative history confirms that section 107 of the CRA was not intended to prohibit voluntary affirmative action otherwise allowable under Title VII. Indeed, it appears that the purpose of section 107 of the CRA was not to create any new prohibitions at all but simply to clarify, in light of the Price-Waterhouse decision that, if illegal discrimination was a motivating factor, it is no defense that the action would have been taken anyway. See Officers for Justice, 1992 U.S. Dist. LEXIS 3098, at *3, n.2 (N.D. Cal. March 3, 1992) appeal pending (construing " 'in accordance with the law' " in section 116 of the CRA as referring to the prohibitions of section 107 of the CRA "would render section 116 meaningless and empty.")

80 Op. Att'y Gen. 264, 282 (1992)
  In deciding whether to interpret sections 106 or 107 of the CRA as prohibiting what has been, until now, a valid and accepted method of combatting discrimination through voluntary affirmative action, Justice Blackmun's remarks in his concurring opinion in Weber are instructive:

80 Op. Att'y Gen. 264, 282 (1992)
Absent compelling evidence of legislative intent, I would not interpret Title VII itself as a means of "locking in" the effects of discrimination for which Title VII provides no remedy.

80 Op. Att'y Gen. 264, 282 (1992)
Weber, 443 U.S. at 215 (Blackmun, J., concurring).

80 Op. Att'y Gen. 264, 282 (1992)
  It is recognized that the question you pose implicates an area of federal law which remains unclear and which is still developing. It is also recognized that, regardless of which way your question is answered, litigation may well result. Although, as noted earlier, judicial and administrative interpretations should be monitored as these new provisions are implemented, it does not appear that section 106 or 107 of the CRA were intended to prohibit expanded certification authorized by section 230.25.

80 Op. Att'y Gen. 264, 282 (1992)
JED:RBM

80 Op. Att'y Gen. 264, 264 (1992) - Footnote

Destination-288   1 Title VII and Wisconsin's affirmative action statutes overlap as to race, sex, color and national origin/ethnicity. 42 U.S.C.A. 2000e et seq.; secs. 230.18, 230.25, Stats.; Wis. Admin. Code ER 43.01 (1988).

80 Op. Att'y Gen. 264, 264 (1992) - Footnote

Destination-289   2 Frequently, particularly with older registers, appointing authorities are informed by persons so certified that they are no longer interested in or available for employment. In the event this would leave the appointing authority with less than five candidates, the appointing authority may request DER to provide an additional name as to each person reported to no longer be interested or available. Wisconsin Personnel Manual--Staffing, Vol. 2, pp. 232-12 and 232-13, ch. 232, "Certification," 232.053 (Rev. 11/84). In response to each such request, to the extent names remain on the register of eligibles, DER certifies the name of the person with the next highest score on the register of eligibles. Id. If the register of eligibles from which the original names were certified is exhausted, further certifications can be made from related registers of eligibles. Id.

80 Op. Att'y Gen. 264, 264 (1992) - Footnote

Destination-290   3 As the Seventh Circuit recently reiterated, state or local affirmative action plans and programs challenged under the equal protection clause of the Fourteenth Amendment are subjected to strict scrutiny. Billish v. City of Chicago and Chicago Fire Fighters Union, Local No. 2 v. Daley, 962 F.2d 1269, 1276-77, 58 FEP Cases 1269, 58 EPD 41,454 (7th Cir. 1992), citing to City of Richmond v. Croson Co., 488 U.S. 469, 493-94, 520 (1989) and Wygant v. Jackson Board of Education, 476 U.S. 267, 279-80, 285-86 (1986). To pass muster under this strict scrutiny standard, state or local affirmative action plans and programs must be justified by a compelling governmental interest and narrowly tailored to serve that interest. See, e.g., Billish, 962 F.2d at 1276-77, citing to City of Richmond, 488 U.S. at 505-08 and Wygant, 476 U.S. at 274.

80 Op. Att'y Gen. 264, 264 (1992) - Footnote
  You have not asked that I evaluate the extent to which any of the numerous affirmative action plans or programs maintained by State of Wisconsin appointing authorities which might underlie requests for expanded certification are potentially violative of the equal protection clause. I have made no attempt to do so in this opinion and am simply assuming, for purposes of this opinion, that those plans would not be violative of the equal protection clause.

80 Op. Att'y Gen. 264, 264 (1992) - Footnote

Destination-291   4 Congress may have been using these words in the sense in which the Seventh Circuit analyzed the alteration of test scores as an affirmative action method in an equal protection case, namely by actually raising scores. United States v. City of Chicago, 870 F.2d 1256, 1261 (7th Cir. 1989).

80 Op. Att'y Gen. 264, 264 (1992) - Footnote

Destination-292   5 Even if the language unambiguously prohibited expanded certification, it might still be appropriate to consult legislative history to determine whether this was Congress' intent. Several courts have held that persuasive contrary legislative history can and should be consulted even where the meaning of a federal legislative provision is plain on its face. See, e.g., Belland v. Pension Benefit Guaranty Corp., 726 F.2d 839, 844 (D.C.Cir. 1984), cert. denied, 469 U.S. 880; Monterey Coal Co. v. Federal Mine Safety and Health Review Comm'n, 743 F.2d 589, 595 (7th Cir. 1984); Peare v. McFarland, 577 F. Supp. 791, 794-95 (N.D. Ind. 1984), aff'd 778 F.2d 354 (7th Cir. 1985). The plainer the language of the statute, the more convincing the contrary legislative history must be (see, e.g., Monterey Coal, 743 F.2d at 595; Peare, 577 F. Supp. at 794-95) but a court is not precluded from examining legislative history simply because a federal statute is plain on its face.

80 Op. Att'y Gen. 264, 264 (1992) - Footnote

Destination-293   6 The few courts which have referred to section 106 of the CRA have noted that its purpose was to ban "race-norming." See, e.g., Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 229 (7th Cir. 1992), Judge Posner, in analyzing retroactivity issues and noting that the CRA made more than mere technical changes, observed: "True, it does not prohibit any conduct not already prohibited by Title VII, except the practice of 'race norming' (raising mean test scores of minority applicants to the mean of the majority). 42 U.S.C. 2000e-2(l)." (emphasis added); Billish, 962 F.2d at 1303 (Posner, J, dissenting) (noting that the pre-CRA affirmative action as to which an equal protection challenge was being rejected involved "race-norming," Judge Posner stated "[r]ace norming has since been outlawed by the Civil Rights Act of 1991" and defined race norming in Billish as "meaning that the scores of the blacks and Hispanics were raised in order to reduce the disparity in the pass rate between them and the whites"); Dixon v. Margolis, No. 89 C 5019, 1992 U.S. Dist. LEXIS 5477, at *6 (N.D.Ill. April 14, 1992) (noting that "race norming is prohibited by the Civil Rights Act of 1991"); Officers for Justice v. Civil Service Comm'n of the City and County of San Francisco, No. C-73-0657 RFP, No. C-77-2884 RFP, 1992 U.S. Dist. LEXIS 3098, at *4-5 (N.D.Cal. March 3, 1992), appeal pending (rejecting a challenge, based on section 106 of the CRA, to "race banding" as part of an affirmative action plan by holding that "on its face Section 106 addresses 'race-norming' which is a practice distinct from 'banding.' The former involves recomputation of test scores by reference to race; the latter provides a means of interpreting test scores to determine what constitutes an 'equivalent performance on a particular test'").
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