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Foley v. Connelie435 U.S. 291 (1978)
Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington University in St. LouisForrest Maltzman, George Washington University
OF THE MANUSCRIPT DIVISION. LIBRARY OF "CONGRESS
To: Mr.Mr.Mr.Mr.Mr.Mr.Mr.Mr.
Justice 13::onnan
Justice Ste artJustice White
Justice Mers-callJustice Black:nunJustice PowellJustice FohnquistJustice Stevens
From: The Chief Justice
Circulated . JAN 16 1978
1st DRAFT
SUPREME COURT OF THE UNITED STATES
No. 76-839
Edmund Foley, Appellant,
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[January —, 1978]
MR. CHIEF JUSTICE BURGER delivered the opinion of theCourt.
We noted probable jurisdiction in this case to considerwhether a State may constitutionally limit the appointment ofmembers of its police force to citizens of the United States.
The appellant, Edmund Foley, is an alien eligible in duecourse to become a naturalized citizen, who is lawfully in thiscountry as a permanent resident. He applied for appointmentas a New York State Trooper, a position which is filled on thebasis of competitive examinations. Pursuant to a New Yorkstatute, Executive Law § 215 (3), state authorities refused toallow Foley to take the examination. The statute provides:
"No person shall be appointed to the New York Statepolice force unless he shall be a citizen of the UnitedStates."
Appellant then brought this action in the United StatesDistrict Court for the Southern District of New York, seeking
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION;-LIBRARY-OF"CONGRESS
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CHAMBERS OF
THE CHIEF JUSTICE
January 24, 1978
Re: 76-839 - Foley v. Connelie
MEMORANDUM TO THE CONFERENCE
At page 3, line 11, between the words "to" and"exclude", insert the following, which wasinadvertently omitted in the circulated draft.
limit financial assistance forhigher education to citizens,Nyquist v. Mauclet, 432 U.S. 1(1977) , to . . .
Regards,
1111111111111111R111=aPMR0 FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION`,' LIBRARY'OF'CONGRESS
To: Mr. Ju,-,tic.,Mr. Juot:,,Mr. Juh1-.,.,Mr. JuL:IJ :-Mr. Just-L.-Mr.Mr. Ju,t , --
Mr. JustjcJ
SUBSTANTIAL CHANGES THROUGHOUT
From: The Chic. ,2'
Circulates; :
Redirculated: JAN 2 5 1978
2nd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 76-839,
Edmund Foley, Appellant,v.
William G. Connelie,and in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[January —, 1978]
MR, CHIEF JUSTICE BURGER delivered the opinion of theCourt.
We noted probable jurisdiction in this case to considerwhether a State may constitutionally limit the appointment ofmembers of its police force to citizens of the United States.
The appellant, Edmund Foley, is an alien eligible in duecourse to become a naturalized citizen, who is lawfully in thiscountry as a permanent resident. He applied for appointmentas a New York State Trooper, a position which is filled on thebasis of competitive examinations. Pursuant to a New Yorkstatute, Executive Law § 215 (3), state authorities refused toallow Foley to take the examination. The statute provides:
"No person shall be appointed to the New York Statepolice force unless he shall be a citizen of the UnitedStates."
Appellant then brought this action in the United StatesDistrict Court for the Southern District of New York, seeking
.1■■•■■■• 6 ) 7) STYLISTIC CHP:NCES ONLY/
REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIBRARY-OFTONGRESS
3rd DRAFTMAR 9 " in
SUPREME COURT OF THE UNITED STATES,
No. 76-839
Edmund Foley, Appellant,v.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States District;Court for the SouthernDistrict of New York.
[January —, 1978]
MR. CHIEF JUSTICE BURGER delivered the opinion of theCourt.
We noted probable jurisdiction in this case to considerwhether a State may constitutionally limit the appointment ofmembers of its police force to citizens of the United States.
The appellant, Edmund Foley, is an alien eligible in duecourse to become a naturalized citizen, who is lawfully in thiscountry as a permanent resident. He applied for appointmentas a New York State Trooper, a position which is filled on thebasis of competitive examinations. Pursuant to a New Yorkstatute, Executive Law § 215 (3), state authorities refused toallow Foley to take the examination. The statute provides:
"No person shall be appointed to the New York Statepolice force unless he shall be a citizen of the UnitedStates."
Appellant then brought this action in the United StatesDistrict Court for the Southern District of New York, seekin g
C HAM seRs orTHECHIEFJUSTICE,
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Naokington, p Q. 2og4g
April 27, 1978
Re: Cases heretofore held for No. 76-839 - Foley v. Connelie
MEMORANDUM TO THE CONFERENCE:
I. No. 76-1616 - County of Los Angeles v. Chavez-Salido
(Vacate &Remand forreconsiderationunder Foley)
Appellees in this case are resident aliens who have beenlawfully admitted to this country on a permanent basis. Eachapplied for a position as a De ut Probation Officer with theCounty of Los Angeles. Two of these individuals were deniedsuch positions solely on the basis of California GovernmentCode § 1031(a), which limits employment as "peace officers"to citizens of the United States; under this statutoryprovision a Deputy Probation Officer is considered a "peaceofficer". Another appellee failed the examination requiredfor the position; he was informed that it would be futile toappeal the test results since his alienage would disqualifyhim in any event.
Appellees brought this action in the District Courtagainst Los Angeles County, its Acting Chief ProbationOfficer, Acting Director of Personnel and Personnel Officerfor the County's Probation Department. The complaint allegedthat the statutory exclusion of aliens from positions as"peace officers" violated the Equal Protection Clause and 42U.S.C. SS 1981 & 1983. All three appellees soughtdeclaratory and injunctive relief and attorneys fees; inaddition, the two appellants who were denied positions solelybecause of alienage demanded money damages from the County(not from the individual defendants).
A three-judge court was convened to hear the case. Thecourt first held that it had jurisdiction over the Countypursuant to 28 U.S.C. S 1331(a), in that the complaint stateda cause of action under the Fourteenth Amendment and S 1981,
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION :, LIBRARY'" OF'REPRODU
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astrttu3ton, 19. (4. 2v54gCHAMBERS OF
JUSTICE WM.J. BRENNAN, JR. -November 14, 1977
RE: No. 76-839 Foley v. Connelie
Dear Potter:
In the above you, Thurgood, John and I are in dissent.
If a dissent is to be written would you care to undertake it?
Sincerely,
Mr. Justice Stewart
cc: Mr. Justice MarshallMr. Justice Stevens
REPRODUs FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY —OF 'CONGRESS
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CHAMBERS OF
JUSTICE WM.J. BRENNAN,JR. November 15, 1977
RE: No. 76-839 Foley v. Connellie
MEMORANDUM TO: Mr. Justice StewartMr. Justice MarshallMr. Justice Stevens
Thurgood has agreed to prepare the dissent in
the above.
W.J.B. Jr.
REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT LIBRARY"'OF"CONGRESS';1
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CHAMBERS OF
JUSTICE Wm. J. BRENNAN, JR.
February 13, 1978
RE: No. 76-839 Foley v. Connelie
Dear Thurgood:
Please join me in the dissenting opinion you have
prepared in the above.
Mr. Justice Marshall
cc: The Conference
REPRODUOD FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION'. LIBRARY -0F CONGgESS
RE: No. 76-839 Foley v. Connelie
Dear John:
prepared in the above.
Please join me in the dissenting opinion you have
Aiitra-rnit onri fitt Atiter ,,tzttroTtfaokiltritan, Ai. c. 2riglig
CHAMBERS OF
JUSTICE W.. J. BRENNAN, JR. March 15, 1978
Sincerely,
Mr. Justice Stevens
cc: The Conference
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CHAMBERS OF
JUSTICE POTTER STEWART
March 15, 1978
Re: No. 76-839, Foley v. Connelie
Dear Chief,
Enclosed is a copy of a very short concurrencethat I have sent to the printer this morning.
Sincerely yours,
IThe Chief Justice
Copies to the Conference
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISIONS LIBRARY-OF"CONGRESS
March 15, 1978
No. 76-839, FOLEY v. CONNELIE
MR. JUSTICE STEWART, concurring.
The dissenting opinions convincingly demonstrate
that it is difficult if not impossible to reconcile the Court's
judgment in this case with the reasoning and authority
of some of our past decisions. It is only because I have
become increasingly doubtful about the validity of those
decisions (in at least some of which I concurred) that I
join the opinion of the Court in this case.
THE MANUSCRIPT DIVISION; TIBRARY-OFTON_
To: The Chief Jus.Mr. Justice J31,c[,Mr. Justice Whit,-
-tiffi". . Justice
Mr. Justice Bl.„,Mr. justice 1)()
Mr. Justice R •
Mr. Justice St:•
let DRAFTFrom: Mr. Justice Sr.
SUPREME COURT OF THE UNITED STiggiated:
No. 76-839 Recirculated.
Edmund Foley, Appellant,v.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[March —, 1978]
MR. JUSTICE STEWART, concurring.The dissenting opinions convincingly demonstrate that it is
difficult if not impossible to reconcile the Court's judgment inthis case with the full sweep of the reasoning and authorityof some of our past decisions. It is only because l havebecome increasingly doubtful about the validity of those deci-sions (in at least some of which I concurred) that I join theopinion of the Court in this case,
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION ` LIBRARY OF'CONGRESSREPRODU
JUSTICE BYRON R.WHITECHAMBERS OF January 19, 1978
51tp-rrute (4trurt of tilt Pliteb. 25tattoAttsitirr4fort, (T. 2cf)t1
Re: 76-839 Foley v. Connelie
Dear Chief,
Please join me.
Sincerely,
The Chief Justice
Copies to the Conference
REPRODU 4i FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, -LIBRARY-OFTONGRESS';
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CHAMBERS OF
JUSTICE THURGOOD MARSHALL January 17, 1978
Re: No. 76-839, Foley v. Connelie
Dear Chief:
In due course I shall circulate a dissent in this one.
Sincerely,
The Chief Justice
cc: The Conference
REPRODU xi FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIBRARY-OFTONGRESS'
1 0 FEB 1978
1st DRAFT
SUPREME COURT OF THE UNITED STATES
No. 76-839
Edmund Foley, Appellant.,V.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[February —, 1978]
MR. JUSTICE MARSHALL, dissenting.Almost a. century ago, in the landmark case of lick fro v.
Hopkins, 118 U. S. 356, 369 (1886), this Court recognized thataliens are "persons" within the meaning of the FourteenthAmendment.. Eighty-five years later, in Graham v. Richard-son, 403 U. S. 365 (1971). the Court concluded that aliensconstitute a " 'discrete and insular' minority." and that lawssingling them out for unfavorable treatment. "are thereforesubject to strict judicial scrutiny." Id., at 372, 37(i. Duringthe ensuing six Terms, we have invalidated state laws dis-criminating against. aliens on four separate occasions, findingthat such discrimination could not survive strict scrutiny.Sugarman v. Dougall, 413 F. S. 634 (1973) (competitive civilservice) ; In. re Griffiths, 413 U. S. 717 (1973) (attorneys) ;Examining Board v. Flores de Otero, 426 1. S. 572 (1976)(civil engineers) ; A'yguist: v. Mauclet, 432 CT. S. 1 (1977)(financial assistance for higher education).
Today the. Court upholds a law excluding aliens from publicemployment as state troopers. It bases its decision largely ondictum from Sugarman v. Dougall, supra, to the effect that
REPRODUt ai FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY OF "CONGRESS
-
14 FEB 1978
2nd DRAFT
SWIM COURT OF THE UNITED STATES
No. 76-839
Edmund Foley, Appellant,v.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[February —, 1978]
MR. JUSTICE MARSHALL, whom MR. JUSTICE BREN-
NAN joins, dissenting.Almost a century ago, in the landmark case of Yick Wo v.
Hopkins, 118 U. S. 356, 369 (1886), this Court recognized thataliens are "persons" within the meaning of the FourteenthAmendment. Eighty-five years later. in Graham v. Richard-son, 403 U. S. 365 (1971), the Court concluded that aliensconstitute a " 'discrete and insular' minority." and that lawssingling them out for unfavorable treatment "are thereforesubject to strict judicial scrutiny." Id., at 372, 376. Duringthe ensuing six Terms, we have invalidated state laws dis-criminating against aliens on four separate occasions, findingthat such discrimination could not survive strict scrutiny.Sugarman v. Dougall, 413 U. S. 634 (1973) (competitive civilservice) ; In, re Griffiths, 413 U. S. 717 (1973) (attorneys) ;Examining Board v. Flores de Otero, 426 IT. S. 572 (1976)(civil engineers) ; Nyquist v. Mauclet, 432 U. S. 1 (1977)(financial assistance for higher education).
Today the Court upholds a law excluding aliens from publicemployment as state troopers. It bases its decision largely ondictum from Sugarman v. Dougall, supra, to the effect that
REPRODUt FROM THE COLLECTIONS OF THE MANUSCRIPT DIVTSION,LIBRARY-OF'CONGRESS;
11 MAR 1978
3rd DRAFT
SUPREME COURT OF THE UNITED STATE
No. 76-839
Edmund Foley, Appellant,v.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[March —, 1978]
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BREN-NAN and MR. JUSTICE STEVENS join, dissenting.
Almost a century ago, in the landmark case of Yick Wo v.Hopkins, 118 U. S. 356, 369 (1886), this Court recognized thataliens are "persons" within the meaning of the FourteenthAmendment. Eighty-five years later, in Graham v. Richard-son, 403 U. S. 365 (1971), the Court concluded that aliensconstitute a " 'discrete and insular' minority," and that lawssingling them out for unfavorable treatment "are thereforesubject to strict judicial scrutiny." Id., at 372, 376. Duringthe ensuing six Terms, we have invalidated state laws dis-criminating against aliens on four separate occasions, findingthat such discrimination could not survive strict scrutiny.Sugarman y. Dougall, 413 U. S. 634 (1973) (competitive civilservice) ; In re Griffiths, 413 U. S. 717 (1973) (attorneys) ;Examining Board v. Flores de Otero, 426 U. S. 572 (1976)(civil engineers) ; Nyquist v. Mauclet, 432 U. S. 1 (1977)(financial assistance for higher education).
Today the Court upholds a law excluding aliens from publicemployment as state troopers. It bases its decision largely ondictum from Sugarman y. Dougall, supra, to the effect that
REPRODIII 4 FROM THE COLLECTIONS OF
To: ThaMr. .11
THE MANUSCRIPT DIVISION; 'LIBRARY -OF "CONGRESS
11? :Tiun
Circa I/275/74i
1st DRAFT
SUPREME COURT OF THE UNITED STATES
No. 76-839.
Edmund Foley, Appellant,
William G. Cowielie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith. Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York,
[February —, 1978]
Ma. JUSTICE BLACKMUN, concurring in the result.Once again the Court is called upon to adjudicate the con-
stitutionality of one of New York's many statutes that imposea requirement of citizenship for occupational activity.*Although I have joined the Court in striking down citizenshiprequirements of this kind, see Graham v. Richardson, 403 U. S.365 (1971) ; I u re Griffiths, 413 U. S. 717 (1973) ; ExaminingBoard v. Flores de Otero, 426 U. S. 572 (1976), including,specifically, some imposed by the State. of New York, seeSugarman v. Dougall, 413 U. S. 634 (1973) ; and Nyquist v.Mauclet, 432 U. S. 1 (1977), I have no difficulty in agreeingwith the result the Court reaches here.
The Court's prior cases clearly establish the standards to
*One of the appellees in Nyquist v. Mauclet listed a succession of NewYork statutes requiring citizenship, or a declaration of intent to become acitizen, for no fewer than 3S occupations, Brief for Appellee Mauclet19-22. nn. 8-14, inclusive. Some of the statutes have been legislativelyrepealed or modified, or judicially invalidated. Others, apparently, arestill in effect: among them are those relating to the occupations of inspec-tor, certified shorthand reporter, funeral director, masseur, physical thera-pist, and animal health technician.
To:- TheMr .Mr .Mr .Mr .
Mr .
Chief Justice
Justice BrennanJustice Stewartjusti_se
CO Marshall,;usttea PowellJut R. hnquistJust L:_:e
REPRODTh FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY-OF"CONGRESS
From: Mr. Justice Blac-mun
Circulated:
Recirculated: JI2nd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 76-839
Edmund Foley, Appellant,v.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[February —, 1978]
MR. JUSTICE BLACKMUN, concurring in the result.Once again the Court is called upon to adjudicate the con-
stitutionality of one of New York's many statutes that imposea requirement of citizenship for occupational activity.*Although I have joined the Court in striking down citizenshiprequirements of this kind, see Graham v. Richardson, 403 U. S.365 (1971); In re Griffiths, 413 U. S. 717 (1973) ; ExaminingBoard v. Flores de Otero, 426 U. S. 572 (1976), including,specifically, some imposed by the State of New York, seeSugarman v. Dougall, 413 U. S. 634 (1973) ; and Xyquist v.Mauclet, 432 U. S. 1 (1977), I have no difficulty in agreeingwith the result the Court reaches here.
The Court's prior cases clearly establish the standards to.
*One of the appellees in Nyquist v. illauclet. 432 1'. S. l (1977), listeda succession of New York statutes requiring citizenship, or a declarationof intent to become a citizen, for no fewer than 3S occupations. Brief forAppellee Mauclet 19-22 nn. 8-44, inclusive. Some of the statutes havebeen legislatively repealed or modified, or judicially invalidated. Others,aptiarently, are still in effect: among them are those relating to the occu-pations of inspector, certified shorthand reporter, funeraldirector, masseur,physical therapist, and animal health technician.
REPRODUt FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY —OFTONGRESS-
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C HAM BERS OF
JUSTICE LEWIS F POWELL,JR.
January 26, 1978
No. 76-839 Foley v. Connelie
Dear Chief:
Please join me.
Sincerely,
The Chief Justice
lfp/ss
cc: The Conference
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, LIBRARY-OFTONGRESS
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CHAMBERS OF
JUSTICE WILLIAM H. REHNQUIST
January 24, 1978
Re: No. 76-839 - Foley v. Connelie
Dear Chief:
Please join me.
Sincerely,
The Chief Justice
Copies to the Conference
REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION', LIBRARY-OF'CONGRESS
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CHAMBERS OF
JUSTICE JOHN PAUL STEVENS
January 18, 1978
Re: 76-839 - Foley v. Connelie
Dear Chief:
I shall await Thurgood's dissent.
Respectfully,
The Chief Justice
Copies to 'the Conference
REPRODUt FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIBRARY'OFTT:::::1111
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CHAMBERS OF
JUSTICE JOHN PAUL STEVENS
March 14, 1978
Re: 76-839 - Foley v. Connelie
Dear Thurgood:
Although I have just sent an additionaldissenting opinion to the printer, I would alsolike to be joined in your dissent.
Respectfully,
Mr. Justice Marshall
Copies to the Conference
Mr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist
76-839 - Foley v. Connelie
From: Mr. Justice Stevens
im 15 '76Circulated.
MR. JUSTICE STEVENS, dissenting. Recirculated:
A State should, of course, scrutinize closely the
qualifications of those who perform professional services
within its borders. Police officers, like lawyers, must be
qualified in their field of expertise and must be trustworthy.
Detailed review of each individual's application for employment
is therefore appropriate. Conversely, a rule which
disqualifies an entire class of persons from professional
employment is doubly objectionable. It denies the State access
to unique individual talent; it also denies opportunity to
individuals on the basis of characteristics that the group is
thought to possess.
The first objection poses a question of policy rather than
constitutional law. The wisdom of a rule den y ing a law
enforcement agency the services of Hercule Poirot or Sherlock
Holmes is thus for New York, not this Court, to decide. But
the second objection raises a question of a different kind and
a satisfactory answer to this question is essential to the
validity of the rule: What is the group characteristic that
justifies the unfavorable treatment of an otherwise qualified
individual simply because he is an alien?
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIERARY-OFTONGRESSREPRODUI
To: The Chief JustMr. Justice Bren=lnMr. Justice StewartMr. Justice WhiteMr. Justice MarshallMr. Justice Mani:nunMr. Justice PowellMr. Justice Rehnquist
Prom: Just ice St evens
Circulated:
SUPREME COURT OF THE UNITEDRAraruEslated: MAR 1 6 '78
No. 76-839
Edmund Foley, Appellant,V.
William G. Connelie, Individuallyand in. His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt, for the SouthernDistrict of New York,
[March —, 1978]
MR. JUSTICE STEVENS, with Whom MR. JUSTICE BRENNANjoins, dissenting.
A State should, of course, scrutinize closely the qualifies,tions of those who perform professional services within itsborders. Police officers, like lawyers, must be qualified intheir field of expertise and must be trustworthy. Detailedreview of each individual's application for employment istherefore appropriate. Conversely, a rule which disqualifiesan entire class of persons from professional employment isdoubly objectionable. It denies the State access to uniqueindividual talent; it also denies opportunity to individuals onthe basis of characteristics that the group is thought to possess.
The first objection poses a question of policy rather thanconstitutional law. The wisdom of a rule denying a lawenforcement agency the services of Hercule Poirot or Sher-lock Holmes is thus for New York, not this Court, to decide.But the second objection raises a question of a different kindand a satisfactory answer to this question is essential to thevalidity of the rule: What is the group characteristic that jus-tifies the unfavorable treatment of an otherwise qualifiedindividual simply because he is an alien?
1st DRAFT
REP tRODUFROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIBRARY-OF"CONGRESSill
To: TheMr.Mr.Mr.Mr.Mr.Mr.
Mr.
Chief JusticeJUstioe BrennanJustice StewartJustice WhiteJustice MarshallJustice BlackmunJustice Pow311Justice Rehnquist
From: Mr. Justice Stevens
2nd DRAFT Circulated:
SUPREME COURT OF THE UNITED Sfkikrfated: fulftR 1 7 '78
No. 76-839
Edmund Foley, Appellant,v.
William G. Connelie, Individuallyand in His Capacity as Superin-tendent of the New York StatePolice, and S. A. Smith, Individ-ually, and in His Capacity asDirector of Personnel of the NewYork State Police.
On Appeal from theUnited States DistrictCourt for the SouthernDistrict of New York.
[March —, 1978]
MR. JUSTICE STEVENS, with whom Mit $11JST/CE BRENNAN
joins, dissenting.A State should, of course, scrutinize closely the qualifica-
tions of those who perform professional services within itsborders. Police officers, like lawyers, must be qualified intheir field of expertise and must be trustworthy. Detailedreview of each individual's application for employment istherefore appropriate. Conversely, a rule which disqualifiesan entire class of persons from professional employment isdoubly objectionable. It denies the State access to uniqueindividual talent; it also denies opportunity to individuals onthe basis of characteristics that the group is thought to possess.
The first objection poses a question of policy rather thanconstitutional law. The wisdom of a rule denying a lawenforcement agency the services of Hercule Poirot or Sher-lock Holmes is thus for New York, not this Court, to decide.But the second objection raises a question of a different kindand a satisfactory answer to this question is essential to thevalidity of the rule: What is the group characteristic that jus-tifies the unfavorable treatment of an otherwise qualifiedindividual simply because he is an alien?