The Burger Court OpinionWriting Database

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

2.1.tirrtutt C aurt of tilt Ittrittb 1.2ttteratillutgtan, (q. alpig

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,

Atinvutt Qjourt of tilt lInitttr Matte

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

Suprrmr oi.trt of flit Tiniirb „q5fatrif

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

uvrrntt *art of fir Pnitrb ,itatrs

Paskinghnt, p. (C. 21:1g4g

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

$itprtutt (Coati of kr Pita Otero2111.0(0m:3ton, P. Q. zoplg

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

111111111111111111.REPRODMPff) FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION,' 7BRARY'OF"CONGRESS-

gSitprtutt lr,fottrt of tilt Anita $tatto7filagitingfalt. 20Pig

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';

,;$1tprrittt qtrurt of thr Atittb .tzttrix(r.f. 2ng0

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-

.§ivirrente (Puri of tilt Ptitetr Abides

Paskingion, P. 0-1. zug4g

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

,Itprtittt qintrt of flit linitttt e;$tattogagltingtan, . 2optg

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

.ittlratte $21ancrt of tl/t Anita ,Stuttoaoltingtan, p. gr. zog4g

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

$uprente qvurt of tittlinita StemAteritinotint, • Q. 2L1g4g

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?