AFSCME v. County of Nassau Brief of Plaintiffs-Appellants

    P oo MerpC 3 /  / f j
--------------------------  3

I n  t h e

G I m t r t  n f  %  I m f r f c  S t a t e s
October Term, 1972 

No. 72 -J3.1L...

W il l ie  A l l e n , el al.,

v.
Petitioners,

T h e  C i t t  o f  M o b il e , et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J a c k  G r e e n b e r g  
J a m e s  M. N a b r ii , III 
W il l ia m  L. R o b in s o n  
J e f f r y  A. M in t z

10 Columbus Circle 
Suite 2030
New York, New York 10019

J .  U . B l a c k s h e r

Crawford & Blacksher 
1407 David Avenue 
Mobile, Alabama 36603

A l b e r t  J .  R o s e n t h a l  
435 W. 116th Street 
New York, New York 10027

of Counsel



I N D E X

PAGE

Opinion Below ............ ........... ............. ............... .........  1

Jurisdiction ____ ___________ ______________ __ __ 2

Question Presented.... ............. ............. ......................... 2

Constitutional and Statutory Provisions Involved___  3

Statement of the Case......................................... .... ..... 3
A. Proceedings Below.......... .................................. 3
B. Statement of Facts ............................... .............  4

Reasons for Granting the Writ .......................... ......... 8

I. The Decision Below Is in Conflict With This 
Court’s Decision in Griggs v. Duke Power Co.,
401 U.S. 424 (1971) _______ __________ __ ___  8

II. The Decision Below Is in Conflict With Those of 
Other Circuits Which Have Ruled on the Same 
or Related Issues .......................... .... ........... ....... 11

III. The Issues Herein Are of Exceptional Impor­
tance, Requiring Resolution by This Court ......... 15

C o n c l u s io n  ...............................................................................................  16

T a b le  o f  A u t h o r it ie s

C a s e s  :

Arrington v. Massachusetts Bay Transportation Au­
thority, 306 F. Supp. 1355 (D. Mass. 1969) ............. 13

Baker v. City of St. Petersburg, 400 F.2d 294 (5th 
Cir. 1968) 4



11

PAGE

Bridgeport Guardians, Inc. v. Members of the Bridge­
port Civil Service Commission, -----  F. Supp. -----
(D. Conn. Jan. 29, 1973) .... ................................... . 13

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) ___ 9,13
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ....... ...9,12
Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 

1972), 330 F. Supp. 203 (S.D, N.Y. 1971) .......... .......9,11

Fowler v. Schwarzwalder,-----F. Supp.------(D. Minn.
Dec. 6, 1972) ........................ ............... ....... ................. p>

Griggs v. Duke Power Co., 401 U.S. 424 .......2, 7, 8, 9,10,11

Moody v. Albemarle Paper Co., -----  F,2d ----- , 5
E.P.D. 118470 (4th Cir. 1973) ............ ................. .’....  13

Shield Club v. City of Cleveland, -----  F. Supp. ------
(N.D. Ohio, Dec. 21, 1972) ____________________  13

United States v. Georgia Power Co., -----  F.2d ----- ,
5 E.P.D. H8460 (5th Cir. 1973) ..... .................................................................’ 14

United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971) __________ _____________ _____ 14

Western Addition Community Organization v. Alioto,
340 F. Supp. 1351 (N.D. Cal. 1972), 330 F. Supp.
536 (N.D. Cal. 1971) ..................................... ............  13

S t a t u t e s :

Equal Employment Opportunity Act of 1972, 86 Stat.
103, March 24, 1972 .............. .......................... ......... 10,15

42 U.S.C. §1983 .........................................................___ 15

42 U.S.C. §2000e-2(h) .............. .....................................  g



O t h e r  A u t h o r i t ie s :
pa g e

United States Commission on Civil Rights, For ALL 
the People . . . By ALL the People, A Report on 
Equal Opportunity in State and Local Government 
Employment (1969) .......................... ............... .......... ig

Harrison, Public Employment and Urban Poverty (Ur­
ban Institute, 1971) at 1-2 ............... .......................  15



I n  t h e

d m i r t  o f  t l i r  lm fr i&
October Term, 1972 

No. 72 ..............

W il l ie  A l l e n , et al.,

v.
Petitioners,

T h e , C it y  o f  M o b il e , et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The petitioners respectfully pray that a writ of certiorari 
issue to review the judgment and opinion of the United 
States Court of Appeals for the Fifth Circuit entered in 
this proceeding on September 7, 1972.

Opinion Below

The decision of the United States Court of Appeals for 
the Fifth Circuit and the order denying the petition for 
rehearing, reported at 466 F.2d 122, are printed infra at 
la-lOa. The opinion of the United States District Court 
for the Southern District of Alabama is reported at 371 
F. Supp. 1134, and reprinted infra at lla-30a.



2

Jurisdiction

The judgment and opinion of the Court of Appeals was 
entered on September 7, 1972. A petition for rehearing 
was timely filed and was denied on November 17, 1972. On 
February 2, 1973, Mr. Justice Powell signed an order ex­
tending the time in which to file the petition for certiorari 
to and including March 17, 1973, and on March 7, 1973, 
signed an order further extending the time to and including 
March 31, 1973. (No. A-807) Jurisdiction of this court is 
invoked pursuant to 28 U.S.C. §1254(1).

Question Presented

The defendants administer promotional examinations 
which have excluded all but one of the thirty-five black 
officers in the Mobile, Alabama Police Department from the 
ranks above patrolman. Conceding the tests’ discrimina­
tory effect, the defendants and the Courts below have con­
cluded that the tests were job related solely on the basis 
of the ipse dixerunt of several persons closely connected 
with the selection and use of the tests. There was no evi­
dence of correlation between performance on the job with 
performance on the test. In Griggs v. Duke Power Co., 401 
U.S. 424, 431 this Court held: “If an employment practice 
which operates to exclude Negroes cannot be shown to be 
related to job performance, the practice is prohibited.”

Did the Court of Appeals erroneously apply Griggs by 
approving this test as a means of selecting officers not­
withstanding the test’s racially discriminatory impact and 
the lack of any showing of “a demonstrable relationship 
to successful performance of the jobs for which it was 
used”? Ibid.



3

Constitutional and Statutory Provisions Involved

This matter involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States which pro­
vides in pertinent p a rt:

No State shall make or enforce any law which shall 
abridge the privileges and immunities of citizens of 
the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdiction 
the equal protection of the laws.

Statement of the Case 

A. Proceedings Below

This action was originally filed on March 24, 1969. The 
plaintiffs are black members of the Police Department of 
the City of Mobile, Alabama, suing on their own behalf and 
as a class action, for all present and prospective black 
Mobile police officers. Defendants are the City, the mem­
bers of the Board of Commissioners of Mobile, the Chief 
of Police, and the Members and Executive Director of the 
Personnel Board of Mobile County.

As originally formulated, the action challenged various 
discriminatory practices of the Police Department, includ­
ing the failure to assign black officers to serve in several 
divisions of the Department; the exclusive assignment of 
black officers to zones with a predominantly Negro popula­
tion; the segregation by race of patrol cars; and the use 
of discriminatory written and other pre-employment and 
promotional tests which were unrelated to the ability of 
the candidate to perform the job sought.



4

The District Court issued its order and decree oil Sep­
tember 9, 1971. The court sustained the plaintiffs’ allega­
tions regarding the assignment of officers and the dis­
criminatory effects of the use of seniority and service rat­
ings on promotion, and granted substantial relief. De­
fendants did not appeal from these aspects of the order. 
However, the court found the written promotional ex­
amination for sergeant, the one focused on in the evidence, 
to he job related, and thus upheld its use despite the sub­
stantial racial impact which it had. Plaintiffs appealed 
to the United States Court of Appeals for the Fifth Cir­
cuit, which affirmed on the basis of the District Court’s 
opinion on September 7, 1972, Judge Goldberg dissenting. 
Rehearing was denied on November 17, 1972, Judge Gold­
berg again noting his dissent.

B. Statem ent of Facts

Prior to 1954, Negroes were totally excluded by law 
from employment as police officers in Mobile. (A. 18a, 
331 F. Supp. at 1142). Blacks were gradually hired after 
that time, and as of the date of the trial in this case, 35 
of the 282 sworn officers in the Department, or 12.4%, 
were black, in a city where blacks constitute approximately 
35% of the population. However a pattern of assigning 
officers on the basis of race continued, in violation of the 
Fifth Circuit’s decision in Baker v. City of St. Petersburg, 
400 F. 2d 294 (5th Cir. 1968) and the district court ordered 
the Department to implement a program of assigning offi­
cers to patrol beats, patrol cars, divisions of the Depart­
ment, and to investigate individual cases on a non-racial 
basis as expeditiously as possible (A. 25a-26a; 331 F. 
Supp. 1149-1150).

Although the civil service rules governing the Depart­
ment make officers eligible to compete for promotions after



5

three years of service, until 1962 no blacks were promoted 
above the rank of patrolman, and as of the time of trial, 
and indeed the present date, only one has been so promoted 
(A. 13a; 331 F. Supp. 1137). As all of the black officers but 
the one sergeant (now a lieutenant) were or would shortly 
be eligible for promotion to sergeant, and as many of them 
took the examination for that position when it was given 
in January, 1968, the evidence at trial focused on promo­
tion to that rank in general and on the last examination in 
particular.1 The undisputed evidence showed that the ex­
amination was taken by a total of 108 patrolmen of whom 
94 were white and 14 were black. Passing scores were 
achieved by 57 of the white officers, or 60.6%, while only 
two blacks, 14.3% of those taking it, passed. Neither of 
the successful blacks was promoted.2

The test was designed and written by the staff of the 
Public Personnel Association (PPA), a cooperative or­
ganization of local and state civil service bodies, based 
in Chicago, by persons wTho had no direct knowledge of 
the job of a police sergeant in Mobile. I t had been used 
in Mobile without any attempt whatever to “customize” 
it to fit the local situation. In addition to their statistical

1 The examination constitutes sixty percent of the final grade 
on the promotional list, and passage of the test is a prerequisite to 
consideration for promotion. The District Court found that senior­
ity a.nd service rating factors making up another thirty percent of 
the final grade were discriminatory, a.nd ordered appropriate revi­
sions of them. (A. 18a-19a, 331 F. Supp. at 1142-3.)

2 Examinations scheduled to be given on May 18, 1971, one week 
before the trial was to start, were enjoined by the District Court. 
Examinations were again scheduled by the defendant Personnel 
Board to be held on February 2, 1972. On February 1, the Fifth 
Circuit granted appellants’ motion for an injunction barring the 
sergeant’s examination pending the determination of the appeal. 
An examination for sergeant was held in February, 1973, follow­
ing the affirmance by the Court of Appeals. None of the black 
officers placed high enough on the resulting eligibility list to be 
promoted.



6

evidence, plaintiffs offered expert testimony that the ex­
amination was of a nature such that it was likely to he 
discriminatory, and that the recognized professional stan­
dards of testing psychologists had not been followed by 
those who formulated it or in its selection for use in Mo­
bile. To substantiate their position that the test would not 
adequately predict the job performance of the officers who 
took it, plaintiffs also offered evidence regarding black 
patrolmen who had demonstrated a high level of per­
formance on the job, as indicated by service ratings and 
other commendations, but who had scored poorly on the 
exam.

To counter this evidence, the defendants offered the testi­
mony primarily of two witnesses, the Associate Director of 
the Public Personnel Association, the organization which 
provided the test, and the Executive Director of the de­
fendant Personnel Board which administered it.3 While 
both offered the opinion that the test was job related, no 
evidence of a correlation between test scores and job per­
formance was presented. The PPA representative asserted 
that the test had “content validity,” in the sense that the 
questions asked accurately related to police work, but 
acknowledged that his organization neither had nor could 
determine the value of the test in predicting successful 
performance of sergeants in any particular locality, and 
that they had done nothing to determine whether this 
examination had a racially discriminatory impact which 
could be eliminated without reducing validity.

The Director of the Personnel Board testified that he had 
discussed the test with some police officials, and evaluated

3 The Chief of Police, a lieutenant in the Department’s Planning 
Division (A. 17a-18a; 331 P. Supp. at 1141-42) and Sergeant 
Richburg, one of the plaintiffs, also gave their opinion that the 
test was job-related. None of these men had any experience in test 
construction or evaluation.



7

it on. the basis of his own knowledge of the police depart­
ment, gained over the years he has been with the Person­
nel Board. On that basis alone, he determined it to be 
job related in its content. He likewise could, not, however, 
produce evidence of any documentation which wmuld demon­
strate whether the persons who scored highly on the 
examination had in fact performed well on the job, nor 
was any effort made to determine whether those who had 
been screened out by the examination could perform 
equally well or better in the higher rank than those pro­
moted. Indeed, no effort was even made to compare the 
service ratings regularly given by the Department with 
test scores to determine whether those who had been 
judged outstanding by their superiors had borne out this 
judgment in their test performance, a correlation spe­
cifically lacking in the case of several of the black officers.4

On this showing, and in purported reliance on this 
Court’s ruling in Griggs v. Duke Power Co., supra, the 
trial court found the test to be job-related and thus legally 
permissible, despite its effect of almost totally excluding 
blacks. Further, on the basis of this finding, which legit­
imized the major factor affecting promotion, the District 
Court refused to grant the plaintiffs’ request for affirma­
tive relief, which sought the appointment of an appro­
priate number of qualified blacks to the rank of sergeant, 
in order to correct the continuing effects of the alleged 
past discrimination. (A. 21a-23a, 331 F. Supp. 1145-1147.)

The plaintiffs appealed from those portions of the Dis­
trict Court’s order upholding the promotional tests and 
denying affirmative relief. The majority of the Court of 
Appeals panel affirmed on the opinion of the District Court. 
(A. la ; 466 F.2d at 122)

4 The decree ordered that such records be kept in the future 
(A. 27a-28a; 331 F. Supp. 1151-1152).



8

In dissent, Judge G-oldberg stated that the issue was “one 
of establishing a standard of review to be applied to a test 
when the issue of racial discrimination is adequately and 
substantively raised,” (A. 4a, 466 F.2d at 125) and con­
cluded “that the district court and the majority applied a 
standard of ‘justification’ that required much too little of 
the police department” and in so doing, “misconstrued the 
thrust of” the decision in Griggs. (A. 5a, 466 F.2d at 126) 
He would have held the use of the test unlawful, and 
further would have awarded promotions to the Black offi­
cers in such manner as to correct the effects of the dis­
criminatory practices.

A petition for rehearing with suggestion for rehearing 
en banc was filed, urging the points made in the dissent, 
and noting the conflict between this decision and other de­
cisions of the Fifth Circuit and other circuits in similar 
cases. On vote of the full court, rehearing was denied, 
Judge Goldberg again dissenting (A. 10a, 466 F.2d 131).

Reasons for Granting the Writ

I .

The Decision Relow is in Conflict With This Court’s 
Decision in Griggs v. Duke Poiver Co., 401 U.S. 424 
(1971).

In Griggs, the Court dealt with the legality under the 
provisions of Title VII of the 1964 Civil Rights Act of the 
use of written tests and diploma requirements which had 
the effect of excluding substantially greater numbers of 
black persons than whites. It held, despite the section of 
the statute appearing to approve the use of professionally 
developed tests for employee selection (42 IT.S.C. §2000e- 
2(h)) that unless the test can “be shown to be related to job 
performance [its use] is prohibited.” 401 U.S. at 431. The



9

clear meaning of Griggs, accepted by other circuits which 
have considered the question, is that the showing mentioned 
must be a substantive one, indicating a “business necessity,” 
for the use of the test, and a “demonstrable relationship 
to successful performance of the jobs for which it was 
used.” Ibid.

Although the present ease was brought under the Equal 
Protection clause of the Fourteenth Amendment, the courts 
below, in concurrence with other courts hearing cases of 
public employment discrimination5 held that Griggs gov­
erned the issues here. Nonetheless, it upheld this mani­
festly discriminatory test on the basis of the most minimal 
showing—the unsubstantiated opinions of a few clearly 
interested persons that the test was related to the job of 
police sergeant. As stated by Judge Goldberg:

I am of the opinion that the district court and the 
majority applied a standard of ‘justification’ that re­
quired much too little of the police department. The 
district court required only that the sergeants’ test be 
rationally ‘job related,’ citing Griggs v. Duke Power 
Co., supra. Alien v. City of Mobile, 331 F. Supp. at 
1146. I too am of the opinion that the rationale of 
Griggs should apply to a discrimination case brought 
under section 1983 with force at least equal to its ap­
plication to Title YII cases, but I believe that the 
district court and the majority have misconstrued the 
thrust of that seminal decision and, by analogy, the 
constitutional requirements regarding promotional 
practices. . . .

Like the district court and the majority, I entertain 
no doubt that the sergeants’ test was ‘rationally re­
lated’ to the job of being a sergeant. In fact, I would

5 See, e.g. Castro v. Beecher, 459 F.2d 725, 732-3 (1st Cir. 1972) ; 
Chance v. Board of Examiners, 458 F.2d 1167, 1176-7 (2d Cir. 
1972); Carter v. Gallagher, 452 F.2d 315, 329 (8th Cir. 1972).



10

find it difficult to envision a test that was not somehow 
‘rationally related’ to the task of being a police ser­
geant. But to stop at this low denominator seems to me 
to ignore both any sort of purposive analysis of testing 
and the thrust of Griggs. Because the recially dis­
criminatory context and effect of the instant test have 
been established, I am of the opinion that the state 
must demonstrate a substantial interest in maintaining 
the use of such a test. (A. 5a, 466 F.2d at 126)

Further, the decision below ignores the Court’s instruc­
tion in Griggs that the Guidelines on Employee Selection 
issued by the Equal Employment Opportunity Commission 
are to be followed by the courts in determining the issues 
arising under them, as they express “the will of Congress.” 
401 XJ.S. at 434. The standard followed by the court below 
in upholding the tests can in no way be authorized under 
the Guidelines, which require a demonstration of a pro­
fessionally acceptable nature by statistics or otherwise to 
establish that a selection device is in fact suited for the 
purpose for which it is used.

If this decision is permitted to stand, and is followed by 
other courts, it will result in a reduction to virtual insig­
nificance of the protections against discriminatory employ­
ment practices afforded by the Constitution and statutes6 
and vitalized by this Court in Griggs. The mere statement 
by any person with a patina of expertise, including an agent 
of the employer, that a test or other device is in his opinion 
“job-related” will serve to legitimate that device, no matter 
how discriminatory it has been shown to be in effect or even 
intent.

6 By recent amendment, Congress has placed employees of state 
and local governments, such as the plaintiffs here, directly under 
the protections of Title VII. Equal Employment Opportunity Act 
of 1972, 86 Stat. 103, March 24, 1972.



11

II.
The Decision Below is in Conflict With Those of 

Other Circuits Which Have Ruled on the Same or 
Related Issues.

The district court, as affirmed by the majority of the 
panel, did agree that the plaintiffs had made a prima facie 
showing that the test had a discriminatory impact. Under 
such circumstances, in the wake of Griggs, the other cir­
cuits, and indeed other panels of the Fifth Circuit, have 
required that the use of the device be enjoined in the 
absence of a positive demonstrable relationship between 
test results and job performance. The conflict between 
those decisions and the instant case as to the appropriate 
legal standard to be applied is one which this Court must of 
necessity resolve.

In Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 
1972), the court had under consideration an appeal from 
the granting of a preliminary injunction barring the use 
of all promotional examinations in the New York City 
school system on the ground that they were unconstitu­
tional. Significantly, on even the most discriminatory of 
the several tests at issue, whites passed at only twice the 
rate of blacks, id. at.1171, not four times as here. The court 
held that “once such prima facie case [of discriminatory 
impact] was made, it was appropriate for the district court 
to shift to the Board a heavy burden of justifying its con­
tested examinations by at least demonstrating that they 
were job related.” Id. at 1176 (emphasis added). The court 
of appeals approved the district court’s requirement that 
such justification be shown empirically, and not simply by 
the opinions of those who designed and administered the 
tests. See Chance v. Board of Examiners, 330 F. Supp. 203, 
216-224 (S.D. N.Y. 1971).



12

In a ease involving the testing of applicants for the posi­
tion of police officer, the First Circuit has gone further, 
holding that more than a cursory showing of job-related­
ness is required.

As to classifications which have been shown to have 
a racially discriminatory impact, more is required by 
way of justification. The public employer must, we 
think, in order to justify the use of a means of selec­
tion shown to have a racially disproportionate impact, 
demonstrate that the means is in fact substantially re­
lated to job performance. It may not, to state the mat­
ter another way, rely on any reasonable version of the 
facts, but must come forward with convincing facts 
establishing a fit between the qualification and the job. 
In so concluding, we rely in part on the Supreme 
Court’s opinion in Griggs v. Duke Power Co., supra. 
Faced with a showing of racially discriminatory im­
pact without intent, the Court invalidated a require­
ment in the alternative which it found to be a barrier 
to transfer among the company’s departments, stating 
that

‘On the record before us, neither the high school 
completion requirement nor the general intelligence 
test is shown to bear a demonstrable relationship to 
successful performance of the jobs for which it was 
used. Both were adopted . . . without meaningful 
study of their relationship to job-performance 
ability.’ 401 U.S. at 431, 91 S.Ct. at 853.

Castro v. Beecher, 459 F.2d 725, 732-33 (1st Cir. 1972).
Similarly, the Eighth Circuit en banc approved a district 

court’s requirement that written tests for entrance to a 
fire department which had a discriminatory impact be re­
placed with tests which had been validated in accordance



13

with the guidelines of the Equal Employment Opportunity 
Commission which require empirical validation, Garter v. 
Gallagher, 452 F.2d 315, 320, 331 (8th Cir. 1972), the 
method sug*gested by Judge Goldberg, A. 9a, 466 F.2d at 
130, but rejected by the majority below.7

Quite recently, the Court of Appeals for the Fourth
Circuit, in Moody v. Albemarle Paper Co.,----- F .2d------ ,
5 EPD U8470 (February 20, 1973, No. 72-1267) had under 
review a testing battery used for pre-employment evalua­
tion by a private employer in a suit brought under Title 
VII of the Civil Rights Act of 1964. Although the company 
had established a correlation between test scores and some 
measures of job performance in several of the positions 
for which the tests were used, a substantially greater show­
ing than was made by the employer herein, the court held 
this to be an insufficient demonstration under Griggs, for 
failure to adequately meet the professionally accepted 
standards of the EEOC Guidelines.

We agree that some form of job analyses resulting 
in specific and objective criteria for supervisory rat­
ings is critical to a proper concurrent validation study. 
See, Western Addition Community Organization v. 
Alioto, 340 F. Supp. 1351,1354-55 (N.D. Cal. 1972). To 
require less is to leave the job relatedness requirement 
largely to the good faith of the employer and his super­
visors. The complaining class is entitled to more under 
the Act.

7 Decisions of district courts have been of the same import. See 
Arrington v. Massachusetts Bay Transportation Authority, 306 
F. Supp. 1355, 1358 (D. Mass. 1969) • Western Addition Com­
munity Organization v. Alioto, 340 F. Supp. 1351 (N.D. Cal. 1972) 
and 330 F. Supp. 536 (N.D. Cal. 1971) ; Fowler v. Schwarzwalder,
-----  F. Supp. -----  (D. Minn. Dec. 6, 1972) ; Shield Club v. City
of Cleveland, -----  F. Supp. -----  (N.D. Ohio, Dec. 21, 1972) ;
Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil 
Service Commission, ------ F. Supp. ------  (D. Conn. Jan. 29, 1973),



14

5 E.P.D. H8470 at 7275, slip op. at 9.
The Fifth Circuit itself, in Title VII cases, has de­

manded a like standard, greater than that approved here. 
In United States v. Jacksonville Terminal Co., 451 F.2d 
418, 456 (1971) the court found insufficient the employer’s 
proof that whites wTho scored well on the challenged tests 
did wTell on the job.

Griggs demand more substantial proof, most often 
positive empirical evidence, of the relationship be­
tween test scores and job performance, [citing 401 
U.S. at 431] Certainly the safest validation method is 
that which conforms with the EEOC Guidelines ‘ex­
pressing the will of Congress.’ See id. at 434.

See also United States v. Georgia Power Co., -----  F.2d
----- , 5 E.P.D. H846G (5th Cir. February 14, 1973, Nos.
71-3447 and 71-3293).

Thus it seems evident that the decision below conflicts 
with those of other circuits in both public and private 
employment cases, and that the Fifth Circuit applies a 
different standard to judge the employment practices of 
government employers from that applied to private com­
panies. The resolution of that conflict and the evaluation 
of the appropriateness of that distinction are solely within 
the province of this Court.



15

III.
The Issues Herein Are of Exceptional Importance, 

Requiring Resolution by This Court.

Federal, state and local governments now employ about 
one-fifth, of all wage and salary employees in America, 
and the number of jobs in the public sector has grown and 
is expected to continue to expand rapidly.8 Last year, Con­
gress amended the equal rights laws to place government 
employees under the protections of Title VII. Equal Em­
ployment Opportunity Act of 1972, 80 Stat. 103, March 24, 
1972. Additionally, the Equal Protection Clause, as en­
forced through 42 TJ.S.C. § 1983, remains as an independent 
right and remedy for persons who are denied equal oppor­
tunity in public employment. A recent federal study has 
shown that those of minority races or ethnic groups are 
often grossly underrepresented in such employment.9 Be­
cause of the prevalence of civil service “merit” systems, 
the use of pre-employment and promotional tests is even 
more widespread in government than in private industry. 
Thus the determination of what standards govern the 
validation of tests, and whether those standards should be 
different in the two spheres, is of major importance.10

Moreover, as the citations above suggest, there are a large 
number of cases dealing with the validation of employment

8 Harrison, Public Employment and Urban Poverty (Urban In­
stitute, 1971) at 1-2; see, United States Commission on Civil 
Rights, For ALL the People . . .  By ALL the People, A Report on 
Equal Opportunity in State and Local Government Employment 
(1969).

9 United States Commission on Civil Rights, op. cit. supra n. 8.
10 We submit further that an incidental but important benefit of 

requiring civil service systems to use only tests which in fact 
measure potential job performance will be an improvement in the 
general caliber of the public service.



16

tests which, in the wake of the Civil Eights Act of 1964 
and the Griggs decision, has become a major area of litiga­
tion in the lower federal courts. It is of great importance 
that this Court provide guidance and clarification of the 
legal standards to be applied, and that it reconcile the 
conflicts in the lower courts.

CONCLUSION

For these reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Court of Appeals 
for the Fifth Circuit.

Respectfully submitted,

J a c k  G r e e n b e r g  
J a m e s  M. N a b r it , III 
W il l ia m  L. R o b in s o n  
J e f f r y  A. M in t z

10 Columbus Circle 
Suite 2030
New York, New York 10019

J .  U . B l a c k s h e r

Crawford & Blacksher 
1407 David Avenue 
Mobile, Alabama 36603

A l b e r t  J .  R o s e n t h a l  
435 W. 116th Street 
New York, New York 10027

of Counsel



APPENDIX



Appendix A
(O pin ions of the C ourt of Appeals)

Willie ALLEN et al., Plainttffs- 
Appellante,

v.
The CITY OF MOBILE et aL, Defendants- 

Appellees.
No. 72-1009.

United States Court of Appeals, 
Fifth Circuit.
Sept 7, 1972.

Rehearing and Rehearing En Banc 
Denied Nov. 17, 1972.

A. J. Cooper, Jr., Mobile, Ala., Jack 
Greenberg, Jeffry Mintz, William L. 
Robinson, New York City, for plain- 
tiffs-appellants.

Mylan R. Engel, Fred G. Collins, Mo­
bile, Ala., for defendants-appellees.

Before BELL, GOLDBERG and RO­
NEY, Circuit Judges.

PER CURIAM:
Plaintiffs, black officers of the Mobile 

Police Department, sued the defendants 
claiming that various practices of the 
Police Department discriminated against 
Negro officers on account of their race.

[1] We agree with the plaintiffs’ 
statement contained in their brief that 
the district court, in granting substan­
tially all relief sought on the subject of 
racial assignment of officers, in order­
ing changes to reduce or eliminate the 
discriminatory impact of seniority and 
service ratings, and in requiring that in­
struction in intergroup relations be giv­
en to all officers and that the defend­
ants undertake affirmative efforts to re­

cruit black officers, has made possible 
substantial progress toward the achieve­
ment of the elimination of unlawful ra­
cial discrimination and the elimination 
of the vestiges of past discrimination.

[2] Plaintiffs’ sole issue on this ap­
peal, however, is that the district court, 
in fashioning a remedy, did not enjoin 
the use of a written test, which they 
contend is discriminatory as to blacks, 
given to promote officers to the rank of 
sergeant. The district court found that 
the test is job-related. We affirm the 
judgment of Chief Judge Pittman on the 
basis of his order and decree reported 
at 331 F.Supp. 1134 (S.D.Ala.1971).

Affirmed.
GOLDBERG, Circuit Judge (dissent­

ing) :
It is with great reluctance that I dis­

sent in this case, for I am conscious of 
the synoptic analysis of the problems 
surrounding testing procedures and of 
the enlightened decree entered by the 
distinguished trial judge. Allen v. City 
of Mobile, S.D.Ala.1971, 331 F.Supp.

la



2a
Appendix A

1134. Despite the innovations and cour­
age implicit in the trial judge’s reforma­
tion of the hiring practices of the police 
force of Mobile, however, I am convinced 
that he stopped just short of this case’s 
Rubicon by failing to wade into the 
deeper waters and to seine for a more 
optimal test for police promotions. In 
addition, I am compelled to conclude 
from the findings of fact of the able 
district judge that the traditional re­
quirements of equity mandate more im­
mediate relief than that afforded in the 
decree affirmed by the majority.

The area of occupational and promo­
tional testing is both new and confusing 
to the courts. So-called “objective” tests 
were once hailed as the definitive an­
swer to “subjective,” often discrimina­
tory, hiring or promotion procedures. 
But it has become increasingly clear as 
analysis becomes more sophisticated that 
there can be other, much more subtle, 
forms of discrimination lurking in 
“objective” testing. It is now recog­
nized that a test can be impeccably 
"objective” in the manner in which the 
questions are asked, the test adminis­
tered, and the answers graded, and still 
be grossly “subjective” in the education­
al or social milieu in which the test is 
set. See generally U. S. Comm, on Civil 
Rights, For ALL the People . . .  By 
ALL the People (1969); Comment, “Le­
gal Implications of the Use of Standard­
ized Ability Tests in Employment and 
Education,” 68 Colum.L.Rev. 691 (1968).

I am persuaded that neither the able 
district judge nor the majority of this 
panel has applied an appropriate stand­
ard of review when a court is confronted 
with the admittedly difficult problem of 
reviewing tests. I do not know that I 
can provide here a more appropriate 
standard, but I can suggest some guide­
lines in the context of this case that 
seem to me to confront the deeper issues 
regarding testing.

A test alone is not talismanic; it 
should, in my opinion, be placed in its 
own context of valid predicative force 
for the appropriate position of skill and,

in some circumstances, of its discrimina­
tory effect. This Court has already con­
cluded that promotional tests, as well as 
hiring tests, are subject to judicial scru­
tiny. See United States v. Jacksonville 
Terminal Co., 5 Cir. 1971, 451 F.2d 418. 
It is beyond question at this point in the 
nation’s history that discriminatory 
state employment practices are constitu­
tionally invalid, save for those rare cases 
in which the state can show a substantial 
interest in maintaining a practice shown 
to be discriminatory. Appellants have, 
to paraphrase Mr. Justice Holmes’ now 
diluted dictum, no constitutional right to 
be policemen. But they do have a consti­
tutional right to “be free from unreason­
able discriminatory practices with re­
spect to such employment.” Whitner v. 
Davis, 9 Cir. 1969, 410 F.2d 24, 30. See 
also Griggs v. Duke Power Co., 1971, 401 
U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; 
Castro v. Beecher, 1 Cir. 1972, 459 F.2d 
725; Chance v. Board of Examiners, 2 
Cir. 1972, 458 F.2d 1167; Carter v. Gal­
lagher, 8 Cir. 1971, 452 F.2d 315; Rolfe 
v. County Board of Education of Lincoln 
County, Tennessee, 6 Cir. 1968, 391 F.2d 
77; Wall v. Stanly County Board of Ed­
ucation, 4 Cir. 1967, 378 F.2d 275; cf. 
Wieman v. Updegraff, 1952, 344 U.S. 
183, 73 S.Ct. 215, 97 L.Ed. 216; Nor­
walk CORE v. Norwalk Redevelopment 
Agency, 2 Cir. 1968, 395 F.2d 920. And 
of course even though police work is un­
questionably sensitive, that sensitivity 
cannot ipso facto justify an unconstitu­
tional procedure. See Washington v. 
Lee, M.D.Ala.1966, 263 F.Supp. 327 
(three-judge court); aff’d per curiam, 
1968, 390 U.S. 333, 88 S.Ct. 994, 19 L. 
Ed.2d 1212; Morrow v. Crisler, S.D. 
Miss.1971, No. 4716 [Feb. 12, 1971, Oct. 
4, 1971], appeal pending, No. 72-1139 
(written test for highway patrol en­
joined as unvalidated); Baker v. City of 
St. Petersburg, 5 Cir. 1968, 400 F.2d 
294; Castro v. Beecher, supra.

The patrolman in the instant case 
demonstrated beyond question that the 
Mobile police department was rife with 
discriminatory procedures, discrimina­
tion that the trial judge specifically



8a
Appendix A

found and that the majority accepts.1 
Since the Mobile police department was 
wrenched from its “whites only” status 
in 1954, only one black patrolman has 
been promoted to sergeant (in 1962) in 
a force in which 12.4% of the officers 
are black and in a city approximately 
one-third black. It appears from the rec­
ord that this one sergeant was placed in 
positions within the department that pre­
cluded him from ever supervising any 
white officers. In addition, the one 
black sergeant twice took and passed the 
test for lieutenant, but had not been 
promoted at the time of the trial.

It is in the context of these findings 
that this Court must, in my opinion, 
view the testing issue.2 The record 
demonstrates that a significantly larger 
percentage of black applicants failed the 
test than did white applicants. Of 94 
white applicants, over 60% passed; of 
14 black applicants, about 14% passed. 
It is acknowledged by all parties that 
the test has a critical impact upon pro­
motion and that failure to achieve a 
passing grade of TO precludes promotion 
altogether. Statistics, of course, are 
usually not conclusive of a proposition of 
fact, but “ [i]n the problem of racial dis­
crimination, statistics tell much, and 
Courts listen.” State of Alabama v. 
United States, 5 Cir. 1962, 304 F.2d 583, 
aff’d per curiam, 371 U.S. 37, 83 S.Ct. 
145, 9 L.Ed.2d 112; see also Turner v. 
Fouche, 1970, 396 U.S. 346, 90 S.Ct. 532, 
24 L.Ed.2d 567; Hawkins v. Town of 
Shaw, 5 Cir. 1971, 437 F.2d 1286, modi­
fied en banc, 5 Cir. 1972, 461 F,2d 1171 
[1972]. Although it is not noted in
t . As a particularly sad example, the trial 

judge found it necessary from the evidence 
presented to him to enjoin the use of the 
epithet “nigger” in the police force; in 
addition, he found that there was assign­
ment of police beats by race in open de­
fiance of this Court’s decision in Baker 
v. St. Petersburg, supra, and various 
other overtly racial acts by the police 
department, all of which are delineated in 
the district court’s opinion. We acknowl­
edge also the district court’s observation 
that a new administration appears to have 
decreased somewhat the more blatant dis­
crimination in the department.

2. The test in question is described by the 
district court. Allen v. City of Mobile,

the district court's opinion, the record 
also shows that the police department’s 
promotion sheets record the race of the 
applicant alongside the test scores.3 
The district court and this panel are in 
agreement that the appellants produced 
during the trial a prima facie case that 
there was clear racial discrimination in 
the Mobile police department.

The other circuits have found racial 
discrimination in testing situations 
where there is not the history and exist­
ing milieu of racial discrimination that 
there is in the instant case. These cir­
cuits place more emphasis upon the bare 
statistics regarding substantial racial 
difference in rates of passing and pro­
motion than I would find necessary in 
this case. See Castro v. Beecher, supra; 
Chance v. Board of Examiners, supra; 
Carter v. Gallagher, supra. Given the 
pronounced racial effect in the ser­
geants’ test, accompanied by the findings 
of the district court that the majority 
now upholds regarding the long and deep 
history of racial practices in the police 
department, I would conclude that appel­
lants have made a prima facie case that 
the sergeants’ test is a part of the de­
partment’s unconstitutional action. And 
if a prima facie constitutional violation 
is demonstrated, it is unnecessary, as a 
general proposition, that the plaintiff 
also establish a discriminatory intent on 
the part of the offending persons. See 
Whirl v. Kern, 5 Cir. 1969, 407 F.2d 781, 
cert, denied, 396 U.S. 901, 90 S.Ct. 210, 
24 L.Ed.2d 177; Hawkins v. Town of 
Shaw, supra; Daniels v. Van de Venter, 
10 Cir. 1967, 382 F.2d 29; Pierson v.

331 F.Supp. at 1141. I t  is prepared by 
the National Publie Personnel Association 
of Chicago, a cooperative organization of 
local and state civil service officers. 
However, 1 have examined the record, 
and I must conclude that the district 
judge was incorrect when he stated that 
Dean O. W. Wilson of the University of 
California, a renowned expert in tile field, 
aided in the preparation of the test in 
question. The record demonstrates only 
that Dean Wilson’s materials were read 
by those preparing the test.

3. The last scores available for use at trial 
were those recorded in 1968.



125
4a

Appendix A
Ray, 5 Cir. 1965, 352 F.2d 213, rev’d on 
other grounds, 386 U.S. 547, 87 S.Ct. 
1213, 18 L.Ed.2d 288; cf. Burton v. 
Wilmington Parking Authority, 1961, 
365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. 
I would also argue, however, that the 
record and the district court’s opinion 
and decree evince some conviction that 
the police department’s procedures were, 
at least in part, discriminatory by in­
tent. See, e. g., Allen v. City of Mobile, 
331 F.Supp. at 1138. I do not, however, 
base my dissent upon a specific finding 
of so-called “intentional” discrimination 
by the department.4

4. I realize that the "compelling state in- 
terest” test in all of its ramifications has 
not yet been applied to situations involv­
ing so-called “unintentional” discrimina­
tion, and I  do not analytically approach 
this dissent with the idea that this is a 
so-called “intent” case. Nevertheless, I 
do not fully agree with distinctions often 
drawn in similar cases between “inten­
tional” and “unintentional” racial dis­
crimination. See, e. g., Chance v. Board 
of Examiners, supra; Castro v. Beecher, 
supra. I t appears to me that “motive” 
is often simply another way of stating 
that the statistical evidence and the con­
text in which the statistics are set are 
sufficient to allow, if not compel, a prima 
facie inference of “intent.” See Swain 
v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 
824, 13 L.Ed.2d 759. Similarly, one who 
employs a test that unerringly produces 
greatly divergent results among appli­
cants of different races and who makes 
no attempt whatsoever to study or to 
justify the reasons for that divergence 
can reasonably be said to employ a dis­
criminatory tost with “intent.” His “in­
tent” need not necessarily be the less for 
purposes of enforcing the Constitution 
simply because he continues to use a de­
vice with known discriminatory effect 
rather than choosing to announce openly 
his discriminatory employment devices or 
to couch such devices in methods less sub­
tle than testing:

“ [W ]e now firmly recognize that the 
arbitrary quality of thoughtlessness can 
be as disastrous and unfair to private 
rights and the public interest as the 
perversity of a willful scheme.”

Hobson v. Hansen, D.D.C. 1967, 269 F. 
Supp. 401, 497.
The degree of “justification” by the state 
to maintain a process or device discrimi­
natory in fact cannot turn simply upon 
the fact that one practice might have 
been transcribed into statute and another

The real issue of this case with re­
gard to testing becomes one of establish­
ing a standard of review to be applied to 
a test when the issue of racial discrimi­
nation is adequately and substantively 
raised. I am guided in my analysis by 
cases decided under Title VII of the Civ­
il Rights Act of 1964, 42 U.S.C.A. § 
2000a et seq., although Title VII is not 
specifically applicable to a local police 
department, 42 U.S.C.A. § 2000e. It ap­
pears to me, however, that the rationale 
of Title VII, as elucidated in Griggs v. 
Duke Power, supra, provides a strong 
analogy to similar issues that are raised

practice followed unerringly in fact. See 
Johnson v. State of Virginia, 1963, 373 
U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 185; 
Lombard v. State of Louisiana, 1963, 373 
U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; 
Cisneros v. Corpus Christi Independent 
School Dist., 5 Cir. 1972, 459 F.2d 13 
[1972] (en banc) ; United States v. 
Texas Education Agency, 5 Cir. 1972,
467 F.2d 848 [1972] (en banc); cf. 
Hawkins v. North Carolina Dental Soci­
ety, 4 Cir. 1965, 355 F.2d 718; Cypress 
v. Newport News Gen. and Nonsectarian 
Hosp. Ass’n, 4 Cir. 1967, 375 F.2d 648. 
Enforcement of the Fourteenth Amend­
ment’s prohibitions against racial dis­
crimination is not a matter of “punish­
ing” those “guilty” of discrimination, and 
accordingly the degree of justification re­
quired in discrimination cases should not 
turn upon the relative degree of “offen­
siveness” among perpetrators of racially 
discriminatory acts. I f  the prohibition 
of racially discriminatory acts is far 
from “punishment” but is rather 
the enforcement of constitutional rights 
and responsibilities under the Fourteenth 
Amendment, then perhaps “intent” should 
mean nothing more than the knowing per­
petration of a racially discriminatory act 
or practice. To attempt to differentiate 
the burden of proof that is required to 
justify a discriminatory act upon the 
existence or degree of bad motive on the 
part of the perpetrator of the act seems 
to me to focus upon an unworkable issue 
and to ignore the entire thrust and pur­
pose of the Fourteenth Amendment. 
However, I note again that the lack of a 
specific finding of so-called “intent” 
either by the trial judge or by this panel 
does not reflect in any way the substance 
of my dissent. I have approached the de­
partment’s action as “unintentional,” in 
the previously discussed meaning of that 
term.



5a
Appendix A

under the aegis of the Constitution and 
42 U.S.C.A. § 1983 with regard to ac­
tions by state or local employees. Ac­
cord, Allen v. City of Mobile, supra; 
Chance v. Board of Examiners, supra; 
Carter v. Gallagher, supra; Castro v. 
Beecher, supra. I cannot conclude that 
constitutional rights litigable under sec­
tion 1983 would be entitled to signifi­
cantly less thorough examination than 
rights founded upon congressional stat­
ute. In addition, I note that the Equal 
Employment Opportunity Act of 1972 
has amended Title VII to include, among 
others, precisely the employees in ques­
tion in the instant case.

The district judge should first exam­
ine the passing spread of the test, as the 
able district judge in this case did. If 
there is a substantial difference between 
black and white applicants in the rates 
of passing in the context of other evi­
dence of racial discrimination, then the 
offending person or persons should be 
required to establish reasons for utiliz­
ing the tests. Put another way, when a 
prima facie case for unconstitutional ac­
tion on the basis of race has been made, 
the burden should be upon the police de­
partment to justify its reasons for con­
tinuing actions that have been adequate­
ly called into constitutional question. 
See, e. g., Chance v. Board of Examin­
ers, supra; Castro v. Beecher, supra; 
Carter v. Gallagher, supra. A peculiar 
result would ensue if a private defend­
ant in a case alleging racial discrimina­
tion in employment or promotional prac­
tices were required to assume the bur­
den of demonstrating the validity of sus­
pect practices, and a public defendant al­
legedly engaging in precisely the same 
practices were not. See Title VII of the 
Civil Rights Act of 1964, 42 U.S.C.A. § 
2000a et seq., and amendments to Title 
VII by the Equal Employment Opportu­
nity Act of 1972. In addition, it is the 
police department that, presumably, 
readily has the necessary information to 
justify its own procedures.

It is at this point in the review of a 
test that my divergence with the majori­
ty is greatest. I am of the opinion that 
the district court and the majority ap­
plied a standard of “justification” that

required much too little of the police de­
partment. The district court required 
only that the sergeants’ test be rational­
ly “job related,” citing Griggs v. Duke 
Power Co., supra. Allen v. City of Mo­
bile, 331 F.Supp. at 1146. I too am of 
the opinion that the rationale of Griggs 
should apply to a discrimination case 
brought under section 1983 with force 
at least equal to its application to Title 
VII cases, but I believe that the district 
court and the majority have miscon­
strued the thrust of that seminal deci­
sion and, by analogy, the constitutional 
requirements regarding promotional 
practices. If “ . , . the jobs in
question formerly had been filled only by 
white employees as part of a long-stand­
ing practice of giving preference to 
whites . . . ” and the test operates
“ • • • to disqualify Negroes at a
substantially higher rate than white ap­
plicants,” Griggs v. Duke Power, 401 
U.S. at 426, 91 S.Ct. at 850, 28 L. 
Ed.2d at 161, then the police depart­
ment should have to prove that the 
test bears “ . . . a manifest rela­
tionship . . . ” to the position of
police sergeant. Griggs v. Duke Power, 
401 U.S. at 432, 91 S.Ct. at 849, 28 L.Ed. 
2d at 165 [emphasis added].

Like the district court and the majori­
ty, I entertain no doubt that the ser­
geants’ test was “rationally related” to 
the job of being a sergeant. In fact, I 
would find it difficult to envision a test 
that was not somehow “rationally relat­
ed” to the task of being a police ser­
geant. But to stop at this low denomina­
tor seems to me to ignore both any sort 
of purposive analysis of testing and the 
thrust of Griggs. Because the racially 
discriminatory context and effect of the 
instant test have been established, I am 
of the opinion that the state must dem­
onstrate a substantial interest in main­
taining the use of such a test. The 
First and Second Circuits have recently 
adopted standards very similar to those 
I propose here. See Castro v. Beecher, 
supra, (also a police department case); 
Chance v. Board of Examiners, supra 
(supervisory positions in a school sys­
tem) ; see also Carter v. Gallagher, su­
pra, (firemen). While the standard I



6a
Appendix A

propose approaches the “compelling state 
interest” test often appropriate in cases 
of racial discrimination, compare Mc­
Gowan v. Maryland, 1960, 366 U.S. 420, 
81 S.Ct. 1101, 6 L.Ed.2d 393, with Lov­
ing v. Virginia, 1967, 388 U.S, 1, 87 S. 
Ct. 1817, 18 L.Ed.2d 1010 (intentional 
discrimination ease), in terms of the de­
gree of proof required to justify con­
tinuing the discriminatory impact of a 
test, I am in agreement with the First 
Circuit that the test is inappropriate 
"[t]o the extent . . . that
[“compelling state interest”] connote[s] 
a lack of alternative means” under the 
facts of this case. Castro v. Beecher, 
459 F.2d at 733; see also Carter v. Gal­
lagher, supra; Chance v. Board of Ex­
aminers, supra; Penn v. Stumpf, N.D. 
Cal.1970, 308 F.Supp. 1238; supra note
4. The police department should not be 
required to select an “optimal” test so as 
to erect some form of racial balance in 
its sergeants’ staff. See 42 U.S.C.A. § 
2000e-2(j). However, the department 
should be required to make a substantial 
showing of job-relatedness, which it was 
clearly not required to do by the district 
judge or by the majority.

It appears that there are a number of 
methods available by which to evaluate 
substantial job-relatedness, see general­
ly, Cooper & Sobol, “Seniority and Test­
ing Under Fair Employment Laws: A 
General Approach to Objective Criteria 
of Hiring and Promotion,” 82 Harv.L. 
Rev. 1598 (1969); Chance v. Board of 
Examiners, supra, but there appear to 
be two major methods:

“One is ‘content validation,’ which re­
quires the examiners to demonstrate 
that they have formulated examina­
tion questions and procedures based 
on an analysis of the job’s require­
ments, usually determined through 
empirical studies conducted by ex­
perts. . The other method
of evaluating job-relatedness is ‘pre­
dictive validation,’ which requires a 
showing that there is a correlation be-

5. The state also presented the testimony 
of the executive director of the personnel 
board that administered the test, but it 
appears from the record that the execu­
tive director was not conversant with

tween a candidate’s performance on 
the test and his actual performance on 
the job.”

Chance v. Board of Examiners, 458 F.2d 
at 1174. It appears that the district 
court attempted to utilize a “content va­
lidity” examination, for the opinion 
looks only to the questions themselves. 
The court below was faced with con­
trasting expert testimony, as is becom­
ing usual in cases requiring any sort of 
expert opinion. Neither expert witness 
had any actual knowledge of the Mobile 
police department itself.5 The state’s 
expert witness, however, was also the 
originator of the test. Allen v. City of 
Mobile, 331 F.Supp. at 1141. Under 
cross-examination he testified that no 
studies whatsoever had been made by 
his firm with regard to the possible ra­
cially discriminatory effect of the ser­
geants’ test. In the context of demon­
strated racial prejudice in other facets 
of the department’s procedures and a 
prima facie case that the test itself is 
racially discriminatory, I would require 
that the authority offering the test at 
least conduct studies regarding racial 
impact before that authority could con­
vincingly insist that the test has “con­
tent validity.” In addition, it appears 
that the test was based entirely upon a 
so-called "job description” prepared in 
1959 by an outside consulting agency 
that was not called to testify at the trial 
below. I fail to understand how a test 
that is based upon a “description” of 
thirteen years ago, which description the 
testing agency itself neither prepared 
nor updated, can have “content validity” 
sufficient to pass muster under the facts 
of this case in the absence of much more 
substantial “content” analysis than ap­
pears in the transcript. Moreover, ap­
pellants dispute whether the “job de­
scription” itself was adequate, even in­
dependent of the fact that it was made 
quite some time ago. There is no find­
ing with regard to the adequacy of that 
description upon which the questioned

testing analysis and had himself made no 
personnel studies or analysis regarding 
the predictive or content validity of the 
test in question.



7a
Appendix A

test was based, nor does it appear that 
any examination of the “job description” 
ever took place at the trial below. Fi­
nally, the testing agency that prepared 
the tests has not itself made any studies 
regarding the comparative performance 
of officers with high and low test scores 
so as to examine the efficacy of their 
own test. In sum, I contend that the 
analysis of “content” in the instant case 
was completely superficial and wholly 
insufficient as a matter of law to consti­
tute “content validity.”

I do not intimate in any way that val­
idation must be particularized to the lo­
cal community by an expert organiza­
tion. Such a requirement would be a 
great financial and time burden, impos­
sible to fulfill in some smaller communi­
ties. But see NAACP v. Allen, M.D. 
Ala.1972, 340 F.Supp. 703 [1972], where
6. I  should note in passing a few of the 

questions in the test.
“31. The most important rule to re­

member when questioning children 
and low-intelligence adults is to
(1) speak clearly.
(2) treat them as any other sus­
pect.
(3) allow such suspects wide free­
dom of narration.
(4) avoid suggestions.

“32. The success of a patient, well- 
planned interrogation of a pre­
sumed guilty party pleading inno­
cent is based on the assumption 
that it is
(1) impossible to commit the per­
fect crime.
(2) possible to detect the veracity 
of the suspect by observing him.
(3) difficult to lie consecutively 
and logically.
(4) impossible for the suspect to 
live with his guilt very long.

“33. Boys aged 10 to 15 can provide 
reliable testimony and are espe­
cially keen observers in areas re­
lating to
(1) phenomena of nature.
(2) intimate occurrences.
(3) girls of the same age.
(4) moral matters.

“39. As a general rule, the first ap­
proach to questioning a suspect 
should be
(1) emotionally confusing.
(2) direct and friendly.
(3) Stern and authoritarian.

(4) indifferent.

the district judge himself “localized” a 
challenged test to some extent by remov­
ing some questions and altering others. 
I do urge, however, that, in addition to 
those factors that I have just outlined, 
any so-called “content validation” should 
be demonstrated by some organization 
other than that which drew up the test. 
Without disparaging the expertise or the 
opinions of test originators in any way 
whatsoever, the originators do have an 
interest in maintaining the public integ­
rity of their own inventions. After all, 
if a reputable organization proffers a 
test, it is obviously convinced in its 
own mind that the test is sufficiently 
valid as to content. That opinion, 
however well-intentioned, should not pro­
vide the sole evidence of validity to a 
court, for the question presented is sim­
ply too important and subtle for such an 
examination.6 See Castro v. Beecher,

“40. To inspire full confidence on the 
part of his subject it is vital that 
the interrogator establish that his 
attitude is one of
(1) dignity and objectivity.
(2) belligerence and intimidation.
(3) efficiency and aloofness.
(4) sympathy and understanding.

“46. Experience has shown that several
types of motives predominate in 
arson cases. That one of the fol­
lowing occurs more frequently 
than all of the others is
(1) revenge.
(2) pyromania.
(3) economic gain.
(4) intimidation.

“67. In deciding whether a case in­
volving a juvenile delinquent 
should be referred to a casework 
agency or to juvenile court, which 
of the following factors would 
likely be the last to be considered?
(1) the parents’ desire for help.
(2) the juvenile’s school record.
(3) the emotional needs of the 
juvenile.
(4) the number of offenses com­
mitted by the juvenile.

“73. The use of narcotic drugs by 
juveniles seems to progress ac­
cording to three definite steps. 
Generally, the first step ultimately 
to addiction is the use of
(1) alcohol.
(2) marijuana.
(3) opium.
(4) codeine.



8a
Appendix A

supra-, Chance v. Board of Education, 
supra.

Moreover, in the context of a showing 
of substantial racial bias in the police 
department and in the absence of suffi­
cient “content validation” to explain ob­
vious racial effect, I am of the opinion 
that any test used to exclude patrolmen 
from becoming sergeants must be vali­
dated by a comparison of performances 
under a “predictive validation” scheme. 
The testimony of police officials in the 
transcript reveals clearly that the de­
partment is seeking a predictive effect 
when it administers tests and other pro­
cedures for promotion. The department 
does not seek only or even primarily to 
reward past performance or seniority. 
The district judge, in fact, agreed with 
this general approach to testing. With 
regard to written tests the district 
court’s decree ordered that

“ [n]ot less than once each year here­
after from the date of this decree the 
defendants are to submit a written re­
port to the court which consists of a 
statistical study of promoted officers 
which will show a comparison between 
their examination grade and their 
regular service or performance rat­
ings.”

Thus the district court concluded that 
there should be some empirical relation- 
Note 6—Continued

“74. The largest number of juvenile 
delinquents appearing before the 
juvenile court fall into which one 
of the following age groups?
(1) 12-14 year age group.
(2) 16-18 year age group.
(3) 14-16 year age group.
(4) 18-20 year age group.

“76. Authorities in the field of crimi­
nal behavior know that nearly all 
confirmed adult criminals
(1) are sooner or later appre­
hended and punished for their 
crimes.
(2) start their careers as juvenile 
offenders.
(3) are substandard in intelli­
gence.
(4) develop as a result of no 
religious training.

“77. The more effective the police are 
in reducing the frequency of con-

ship between test scores and perform­
ance actually demonstrated, and the ma­
jority agrees with that conclusion. 
While I disagree with the district judge 
and the majority with regard to the 
quantum of “relationship” that should 
be required under the facts of this case, 
I am in agreement with the thrust of 
this approach. However, once again I 
am convinced that the district court and 
the majority have overlooked the nature 
of a cut-off test. The decree entered 
below and affirmed here acknowledges 
that there may be substantial inverse 
differences in performance between, for 
example, a sergeant promoted with a 
test score of 71 and a sergeant promoted 
with a test score of 90. By the same 
reasoning, I am compelled to conclude 
on the basis of this record that there 
might also be substantial inverse dif­
ferences in performance between appli­
cants who had test scores of 69 and 
71, or for that matter between appli­
cants with test scores of 50 and 90. 
Without some such empirical study of 
racial effect and/or performance, I am 
wholly unable to conclude that the test is 
“valid” under any validation theory and 
under the Fourteenth Amendment and 
the rationale of Griggs v. Duke Power, 
supra. See United States v. Jacksonville 
Terminal Co., 5 Cir. 1971, 451 F.2d 
418, cert, denied, 406 U.S. 906, 92 S.

tact, the more effective they are in 
reducing exposure to venereal 
disease. Therefore, health author­
ities are in agreement that the 
most effective way to combat the 
spread of venereal disease is
(1) to suppress prostitution.
(2) to legalize prostitution.
(3) to require regular medical in­
spection of all prostitutes.
(4) to encourage and sponsor sex 
education classes in the secondary 
schools.”

These are just a few of the questions, of
course. But one could argue convincing­
ly, I believe, that the above questions are
(1) only very tangentially relevant.
(2) subject to considerable disagreement 

among experts.
(3) calling for very subjective judgments 

among close alternatives.
(4) based on very specific knowledge not 

generally available or read.
(5) all or any combination of the above.



9a
Appendix A

Ct. 1607, 31 L.Ed.2d 815 [1972], There 
is a set of guidelines already iij exist­
ence prepared by the Equal Employment 
Opportunity Commission. See 29 C.F.R. 
§§ 1607.1-1607.9. In addition, that
same organization apparently evaluates 
large numbers of specific employment 
and promotion tests. This Court con­
cluded in another employment context 
that “ . . . the safest validation
method is that which conforms with the 
EEOC Guidelines.” United States v. 
Jacksonville Terminal Co., 451 F.2d at 
456; see also Griggs v. Duke Power Co., 
401 U.S. at 433, 91 S.Ct. 849, 28 L.Ed.2d 
at 165.

In addition to my great doubts re­
garding the legal standard applied by 
the district court and the majority to 
determine a lack of unconstitutional dis­
crimination in the test in question, I am 
also convinced that the district judge 
should have employed immediately effec­
tive injunctive relief. It is reasonably 
well settled at this point that so called 
“affirmative" hiring measures are some­
times required to offset the effects of 
past discrimination. See, e. g., United 
States v. Jacksonville Terminal Co., su­
pra; Carter v. Gallagher, supra; United 
States v. Ironworkers Local 86, 9 Cir. 
1971, 443 F.2d 544, cert, denied, 404 U.
7. The state argues that United States v. 

Jacksonville Terminal, supra, is inappo­
site to the instant case because the Jack­
sonville Terminal case involved an apti­
tude test for unskilled workers, while 
the instant case deals with admittedly 
very skilled work. I agree that police 
work is, of course, substantially more 
sensitive and skilled than unskilled bag­
gage carrying, but I do not agree that this 
factor decreases the force of the excellent 
opinion in Jacksonville Terminal regard­
ing immediate relief. The “labor pool” 
from which the Mobile police department 
draws for its sergeants consists of its own 
patrolmen, whose qualifications as police 
officers have never been questioned during 
the course of this case. I agree that the 
rationale of Jacksonville Terminal might 
be inapposite to the instant case if the 
potential “labor pool” from which police 
sergeants were to be promoted for pur­
poses of immediate relief were only the 
general pool of available labor. However, 
the pool consists of men already very 
skilled in the task of being police officers,

S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367; 
Local 53 of Int. Ass’n of Heat and Frost 
Insulators and Asbestos Workers v. Vog- 
ler, 5 Cir. 1969, 407 F.2d 1047; United 
States v. Central Motor Lines, Inc., W. 
D.N.C.1970, 325 F.Supp. 478; Contrac­
tors Ass’n of Eastern Pa. v. Secretary of 
Labor, 3 Cir. 1971, 442 F.2d 159, cert, 
denied, 404 U.S. 854, 92 S.Ct. 98, 30 L. 
Ed.2d 95.7 There are a number of ways 
to accomplish immediate relief. See, e. 
g., Cooper & Sobol, 82 Harv.L.Rev. at 
1132. I would leave the precise formula­
tion of any methodology of promoting a 
reasonably flexible number of black pa­
trolmen to the rank of sergeant to the 
district judge, who has demonstrated 
clearly both his ability and his objectivi­
ty in his determinations of this case, de­
spite my disagreements on these two 
points of law.8 I would propose, how­
ever, that the immediate promotions 
that would take place during the interim 
period (prior to the time that a validat­
ed test and other corrective procedures 
ordered by the district judge could be 
established) should be made roughly in 
approximation to the percentage of black 
patrolmen on the force. I emphasize, 
however, that this would be only interim 
hiring and that my proposed rough per­
centages for promotion should be flexi-

presumably very much the same skills 
required of a police sergeant. The ration­
ale of Jacksonville Terminal is correct for 
the potential baggage-carriers of that case 
and for the potential police sergeants of 
this case.

8. For example, the department could be 
required to promote one black patrolman 
for every eight white patrolmen promoted 
(approximately the ratio of black to white 
patrolmen). See, e. g., NAACP v. Allen, 
supra; Carter v. Gallagher, supra ; 
United States v. Ironworkers Local 86, 
supra; Contractors Ass’n of Eastern Pa. 
v'. Secretary of Labor, supra. Or the dis­
trict court could adjust any test employed 
by the department so as to equalize more 
appropriately the racial effect of the test.
See Cooper & Sobol. 82 Harv.L.Rev. su­
pra. Such an adjustment would not 
amount to unequal treatment to the white 
applicants ; rather, it would be a recog­
nition of the effects of unsubstantiated 
racial or cultural orientation, and a cor­
rective.



10a
Appendix A

ble to meet the circumstances and would 
be utilized only for purposes of interim 
reference. See Swann v. Charlotte- 
Mecklenburg Board of Education, 1971, 
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 
554. My conclusion that more immedi­
ate equitable relief is compelled in the 
instant case is based upon the district 
court’s own findings regarding the Mo­
bile police department, which has been 
generally immobile in matters of dis­
crimination. Simply stated, no black 
man has ever been allowed to be placed 
in a supervisory position over white pa­
trolmen, even the one black patrolman 
who managed to pass the sergeants’ test.

I would propose, finally, that this in­
terim promotion scheme also be em­
ployed to test empirically the predictive 
validity of the test in question. . The 
performance of officers promoted par­
tially by means of the test could be com­
pared with the performance of officers 
promoted on other factors and without 
reference to the questioned test. Noth­
ing I have stated in dissent should be 
construed to forbid the department’s em­
ployment of another test, one more ap­
propriately and thoroughly validated as 
to predictive force and to content (in­
cluding racial/cultural analysis). And, 
of course, any performance testing by 
the department is subject to review by 
the district court.

An attempt is now under way to 
equalize substantially educational oppor­
tunities for all the nation’s children. If 
and until that effort reaches some rea­
sonable degree of fruition, the Constitu­

tion cannot stand immobile while a gen­
eration of working police officers suf­
fers from the continuing operations and 
effects of racially discriminatory proce­
dures, however subtle. While the major­
ity would require no immediate pruning 
of the foliated discrimination, and while 
I would not require immediate scything 
of every “root and branch,” I would 
commit to the judicious husbandry of 
the able trial judge some immediate de­
foliation of the poisonous trees of dis­

crimination so deeply rooted in the Mo­
bile police department. I would reverse 
and remand to the district court on the 
two points of law that I have raised.

ON PETITION FOR REHEARING 
AND PETITION FOR REHEAR­

ING EN BANC
PER CURIAM:
The Petition for Rehearing is denied 

and the Court having been polled at the 
request of one of the members of the 
Court and a majority of the Circuit 
Judges who are in regular active service 
not having voted in favor of it, (Rule 
35 Federal Rules of Appellate Procedure; 
Local Fifth Circuit Rule 12) the Peti­
tion for Rehearing En Banc is also de­
nied.

GOLDBERG, Circuit Judge, dissents 
from the denial of the Petition for Re­
hearing and the Petition for Rehearing 
En Banc.



Appendix B
(O pin ion  of the D istrict C ourt)

Willie ALLEN et aL, Plaintltfs,
v.

T he CITY O F MOBILE, a  m unicipal eor- 
po ra tton , e t  al., D efendants.

Civ. A. No. 54O0--69-P-

United States District Court, 
S. D. Alabama, S. D. 

Sept. 9, 1971.

A. J. Cooper and Vernon Z. Crawford, 
Mobile, Ala., Jack Greenberg and Jeffery 
Mintz, New York City, for plaintiffs.

Mylan R. Engel, Fred G. Collins, Wil­
liam H. Brigham, City Atty., Mobile, 
Ala., for defendants.

ORDER AND DECREE

PITTMAN, Chief Judge.

Plaintiffs, black police officers of the 
City of Mobile, brought this class action 
on behalf of all Negro officers on the 
police force. Jurisdiction is alleged un­
der 28 U.S.C.A. §§ 1331 (Federal Ques­
tion; Amount in Controversy; Cost), 
1343(3), 1343(4),1 (Civil Rights and

I. "The district courts shall have original 
jurisdiction of any civil action authorized 
by law to be commenced by any person:

(3) To redress the deprivation, under 
color of any State law, statute, ordi­

nance, regulation, custom or usage, 
of any right, privilege or immunity 
secured by the Constitution of the 
United States or by any Act of Con­
gress providing for equal rights of 
citizens or of all persons within the 
jurisdiction of the United S tates;

11a



12a
Appendix B

Elective Franchise), 2201,2 (Creainm of 
Remedy), 2202 (Further Relief), and 42 
U.S.C.A., §§ 1981 (Equal Rights Under 
the Law), and 1983 (Civil Action for 
Deprivation of Rights). They seek a 
declaration of their rights and appro­
priate injunctive relief against practices, 
policies, and customs of the several de­
fendants which have the purpose and ef­
fect of denying to them, as a result of 
race, the equal protection of the laws as 
guaranteed by the Fourteenth Amend­
ment of the United States Constitution 
and implementing statutes.3

Plaintiffs allege they are assigned to 
patrol duties and to other work in the 
City of Mobile Police Department on the 
basis of race rather than ability. This 
pattern and practice of assignment re­
sults in Negro officers being excluded 
from patrol duties in predominantly 
white areas of the city4 and from as­
signment to many divisions of the City of 
Mobile Police Department, hereinafter re­
ferred to as Department, particularly 
those concerned with administration. 
Negroes, it is alleged, are not assigned 
to ride in cars with white policemen as 
partners.5

The County Personnel Board, herein­
after referred to as Board, allegedly dis­
criminates by administering promotion­
al examinations which are not job re­
lated and by allowing racial bias to enter 
into the rating of individual patrolmen.6 
Plaintiffs further allege they are denied 
a fair opportunity for promotion in the

(4) To recover damages or to secure 
equitable or other relief under any 
Act of Congress providing for the 
protection of civil rights * *
(Emphasis added.)

2. " * * * any court of the United States,
* * * may declare the rights * * *
of any interested party seeking such 
declaration, * *

3. See court file this case, response filed 
September 10, 1970, of plaintiff to the 
court’s preliminary pretrial order, defin­
ing the issues.

4. Plaintiffs' original complaint alleged that 
the boundaries of the patrol zones were 
gerrymandered so that any one particular

Department as a result of these tests and 
promotional requirements which have the 
purpose and effect of discriminating 
against them on the basis of race.’

The defendant City of Mobile contends 
that the hiring and promotion of police 
officers by the Department is made sole­
ly from eligibility lists established pur­
suant to State law by the Personnel 
Board, is not based on race, and does not 
deny the plaintiffs their rights under 
the Fourteenth Amendment. They fur­
ther contend the assignment of officers 
to various divisions, including the Patrol 
Division, is based solely on need and the 
ability of the various personnel of the 
Department; and, that the customs and 
practices of the Department do not vio­
late denial of equal protection under the 
Fourteenth Amendment.8

The defendants, Personnel Board and 
Director, act under a state law which 
puts the governing and control of per­
sonnel for Mobile County under the Civil 
Service Rules, Regulations and Practices. 
The Personnel Board consists of three 
members who serve staggered terms. 
The Director is elected by the Board and 
serves at its pleasure. The Director is 
executive head of the Personnel Depart­
ment and is charged with the direction 
and supervision of its administrative and 
technical activities such as the adminis­
tration and execution of the classifica­
tion plan for the classified service. He 
also computes employee service ratings, 
conducts tests, formulates employment

zone could easily be identified white or 
black. At the pretrial conference this 
allegation was dropped and plaintiffs 
stated it would not be an issue.

5. See Footnote 3, supra.
6. Members of the plaintiffs’ class have ex­

pressed the fear that overt discrimination 
entered into the processing of promotional 
examinations, that is, they fear that 
graders cheat and give blacks lower scores 
than actually earned. The attorneys for 
plaintiffs have stipulated that this is not 
an issue in the case.

7. See Footnote 3, supra.

8. See Footnote 3, supra.



13a
Appendix B

registers, and certifies persons qualified 
for appointment, promotion and pay 
plans.

These defendants contend the Civil 
Service System has been administered 
fairly and impartially in accordance with 
the laws and rules governing the system. 
They assert they have neither enforced 
nor maintained any regulations, policy, 
custom or usage which discriminates 
against Negro police officers, nor have 
they deprived or attempted to deprive 
them of the full use and enjoyment of 
their rights as Civil Service employees, 
nor have they denied them equal oppor­
tunity to compete for positions in the 
public service.

FINDINGS OF FACT
As of the date of trial the Mobile Po­

lice Department consisted of 282 sworn 
officers of which 35 were Negro. There 
were 43 sergeants of whom one was a 
Negro. There were 22 officers above 
the rank of sergeant, none of whom were 
black. This leaves a total of 217 sworn 
officers below the rank of sergeant of 
which 34 are Negro.

There are 107 whites and 23 Negroes 
assigned to the Patrol Division. This is 
approximately a five to one ratio of 
whites to blacks.

The City is divided into 18 zones or 
beats. Eight zones are predominantly 
black, one zone is 50% white-50 % 
black, and nine zones are predominantly 
white.9 ,

The Patrol Division covers these zones 
with 24 to 27 cars per shift. There is a 
general policy of the City to have one- 
man patrol cars; however, at any given 
time there are approximately ten patrol 
cars carrying two persons. Two or three 
cars will usually carry two officers be­
cause one of them is recovering from an 
illness or has a permanent health impair-

9. See Defendant, City of Mobile, Exhibit 
No. 12.

!0. See Plaintiffs* Exiiibit No. 10. There 
were nine vacancies to be filled. The 
1962 National Chief of Police Association 
report on Mobile recommended the passing

ment. The other two-man patrol cars 
will carry recruits in a training program. 
The cars have been segregated; whites 
paired with whites and biacks paired with 
blacks. Prior to the filing of this law­
suit Negroes were assigned exclusively to 
the predominantly black zones. Since 
then, there have been some transfers of 
Negroes to predominantly white zones.

Prior to the filing of this lawsuit 
Negro officers had never been assigned 
to the Docket Room Division, Traffic Di­
vision, Records Division, Municipal 
Court, Training Division, nor Planning 
Division. Recently, however, black pa­
trolmen have been assigned to the Docket 
Room and the Traffic Division.

Usually officers have been assigned to 
the Municipal Court because of some 
physical impairment. At the present 
time the court is staffed by civilians with 
the exceptions of two bailiffs who are 
sworn officers. One has a history of 
heart attacks, and the other is recovering 
from a serious operation. When vacan­
cies occur in the future these vacancies 
will be filled by civilians and not sworn 
police officers.

The Records Division consists of one 
officer who is required to have the rank 
of lieutenant. The Planning Division 
consists of a captain and a lieutenant. 
The Training Division consists of a cap­
tain, a lieutenant, and a sergeant. The 
Planning and Training Divisions require 
officers with special expertise.

[1] One of the plaintiffs, w*ho also 
appeared as a witness, has requested, and 
was refused, an assignment to the Train­
ing Division. He attended junior college 
for two years and has had experience as 
a teacher. He took the sergeants exam­
ination in 1968 and scored 64.60%. The 
passing mark was 70%. Out of 108 tak­
ing this examination, 59 passed.10 Con-

score be raised and the test be made more 
difficult. See Defendants’ Exhibit No. 17.
The State Civil Service statute requires 
that all who make 70% be passed. A 
flexible passing point below 70 is used. 
Two factors ore considered: (1) the
number of vacancies to be filled and (21



14a
Appendix B

sidering his grade and rank on the ser­
geant’s examination, and the court’s ob­
servation of him as a witness, it appears 
to the court that his abilities are not com­
mensurate with the qualifications of the 
position, and concludes the refusal of his 
request for assignment to the Training 
Division was non-diseriminatory.

[2] No other evidence was offered to 
substantiate a claim of discrimination 
against Negro members of the Police 
Department in these three divisions. The 
men serving in these positions are com­
petent and obviously have expertise be­
yond the scope of any of plaintiffs’ wit­
nesses. The thrust of plaintiffs’ evidence 
becomes statistical. The plaintiffs have 
failed to demonstrate that the City’s re­
quirement that officers with these ranks 
and their respective skills to fill these 
positions is arbitrary or done to prevent 
blacks from serving in these jobs. The 
court concludes that there has been no 
racial discrimination by the Department’s 
assignment to these divisions.

The Traffic Division and the Docket 
Room are different matters. In the 
former there is one Negro compared with 
31 white patrolmen; in the latter, there 
is on Negro compared with 11 white 
patrolmen. It is noted that as of May 
1971.11 there were 161 white patrolmen 
and 34 Negro patrolmen; or 82.6% of

the motivation and incentive factor to en­
courage large numbers to take the exam­
ination, but the passing point is kept high 
enough for the examination to have some 
validity as a measuring device.

me patrolmen were white while 17.4% 
are black. Though 17.4% of the patrol- 
men are Negro, only 3.1% of the patrol­
men assigned to the Traffic Division and 
only 8.3% assigned to the Docket Room 
are black.1® The Traffic Division is 
made up of volunteers who know how to 
ride a motorcycle. The Department does 
not give instruction or training in the 
operation of this vehicle. Only one Ne­
gro has applied for assignment to this 
division who could operate a motorcycle. 
He was assigned to the division.

There has been a consistent pattern of 
assigning black officers only to cases in 
which either the victims or the suspects 
were black. This constitutes assignment 
of cases on a racial basis. Prior to the 
filing of this lawsuit no efforts were 
made to determine whether or not black 
officers could effectively handle case as­
signments where the victims and sus­
pects were white nor if they could effec­
tively patrol predominantly white zones, 
nor conversely, whether or not white of­
ficers could effectively patrol predom­
inantly Negro areas and investigate cases 
involving black victims and suspects.

The court notes that there were no 
black police officers prior to 1954, and 
the crime rate in all areas of the city is 
higher now than then. This indicates 
that in general white officers can effec-

11. See City of Mobile Exhibit No. 12. The 
variance of this figure with the figures 
at trial time is explained by the constantly 
changing number of sworn officers due to 
deaths, resignations, and recruitment.

12. There is approximately a 5 to 1 ratio of whites to blacks.
Division or Section White 

Number —
Negro

- % Number —- %
Patrol Div. 110 81.5 25 18.5
CID* 4 44.5 5 55.6
Traffic Div. 31 96.9 1 3.1
Juvenile Div. 5 71.4 2 28.6
Docket Room 11 91.7 1 8.3

* CID generally operates with “Detectives." This is a rank which 
for pay purposes is considered equal to sergeant. These figures reflect 
only the number of patrolmen assigned to CID. These patrolmen per­
form the duties of detectives but are paid as patrolmen and their duties 
may be considered temporary. There are no Negroes who bold the rank 
of detective.



15a
Appendix B

tively patrol predominantly Negro areas 
and investigate cases which have Negro 
victims and Negro suspects. The evi­
dence fails to convince the court the 
converse would not be true.

Defendants Mobile County Personnel 
Board and Director Pierce.

The Mobile County Personnel Board is 
charged by law with providing qualified 
personnel for the county and City of 
Mobile. This includes the City of Mo­
bile Police Department. The Board ad­
ministers the promotional program and 
furnishes the Police Department an eligi­
bility list from which to select its person­
nel. The eligibility list contains more 
names than the Department anticipates it 
will need. The list is good for only one 
year unless extended by the Personnel 
Board. The last sergeants eligibility list 
has been used since 1968.13 The names 
on the eligibility list are ranked accord­
ing to the total scores of the applicants, 
the first name on the list being the high­
est scorer. As a matter of policy, in re-

13. A sergeants examination scheduled to 
take place just before the trial was en­
joined pending the decision in this case.

14. An applicant can make up to 100 on 
each of the four factors. His score on 
each is multiplied by the percentage as­
signed to that factor and added to his 
other three adjusted scores to get his 
total. Thus, if an officer makes the fol­
lowing scores:
1. W ritten test SO
2. Seniority 90
3. Regular Service Rating 80
4. Special Service Rating 70
his total score would be computed :
1. Written 80 x .GO — 48
2. Seniority 90 x .20 — 18
3. Regular 80 x .10 — 8
4. S ocia l 70 x .10 — 7

Total Score 81
This method of computation is referred to 
as the straight percentage method. I t has 
been demonstrated, however, that the 
straight percentage method does not ad­
just the score for “Standard Deviation” 
and thus yields different weights than that 
assigned. By computing the standard 
deviation, (a statistical standard deviation 
is a measure of how wide the scores are 
spread) to the 1968 sergeants examina­
tion and adjusting the scores on that basis,

cent years the Police Department has tak­
en the first name on the list although 
under the rules the selection may be 
made from the three top ranking persons. 
This policy in theory and practice has 
been without racial overtones.

The applicant’s scores and hence the 
eligibility list, is arrived at by taking 
the officer’s scores on four factors, mul­
tiplying each by a percentage and adding 
the four scores together to get the of­
ficer’s total score. The factors and the 
weights given to each are: (1) written 
examination—60% ; (2) seniority—
20%; (3) regular service ratings—
10%; and, (4) special service ratings— 
10%,**

The facts as developed concerning these 
factors are as follows:

(1) Written examination. This test 
purportedly examines the individual on 
those areas of police science or duties 
which will be needed in the higher rank. 
It allegedly measures the knowledge he 
has gained in those areas by study and

the weights actually given to the factors
were:
1. Written test 54%
2. Seniority 29.7%
3. Regular Service Rating 5.9%
4. Special Service Rating 9.5%
To compute a standard deviation on each 
test would require the work of an expert 
statistician. To be theoretically sound 
the standard deviation would have to be 
computed on each new examination. To 
take the standard deviation of a past 
examination and assign weights to be ap­
plied to a future examination would dis­
tort the result.
Large numbers of applicants take these 
examinations for relatively fewr vacancies. 
Most of the men have the equivalent of a 
high school education. The computing of 
a standard deviation is difficult to explain. 
An application of the standard deviation 
by the plaintiffs' expert to the 1968 tests 
did not significantly change the relative 
position of the black applicants. The 
present straight line computation is ra­
cially neutral. I t was not intended, nor 
does it have the effect of preferring one 
race over the other. Because the use of 
standard deviations and adjustment of 
places on the eligibility list would be 
complicated and difficult to explain, the 
court does not consider its use desirable.



16a
Appendix B

experience so it is an achievement rather 
than an aptitude test.

The plaintiffs rely primarily on an ex­
pert witness, Dr. Richard S. Barrett, an 
industrial and educational psychologist 
now employed by the City University of 
New York, New York City. He received 
his Doctor of Philosophy in Industrial 
Psychology in 1956 and has been active 
in that field since that time as a teacher 
and consultant for the government and 
industry. He is knowledgeable, intelli­
gent, and active in a newly developing 
field relating to the evaluation of tests 
for culturally and socially deprived mi­
norities, principally Negroes. His par­
ticular expertise is in testing techniques 
and recommendations after a study of 
job needs. It includes the selection and 
use, developments, design, validation of 
selection tests, and other procedures. It 
also includes rating of individuals on the 
basis of their performance. To evaluate 
a particular examination testing proce­
dure, he testified he should get a job 
description of the job covered. He should 
learn about the labor market, the organ­
izational structure, and other things that 
are peculiar to that particular institution 
based on an in-depth study. He bases 
his evaluation of the test at issue in this 
case on only a job description for ser­
geants.15 He criticized the job descrip­
tion as being inadequate. He had not 
familiarized himself with the size nor 
structure of the Mobile Police Depart­
ment.15 His familiarity with Police De­
partments and their work is limited to a

15. This job description was prepared in 
1959 by Griffin, Hagen & Associates, a 
nationally recognized public personnel 
consultant and authority.

!6. He was under a general impression that 
the defendant Police Department had be­
tween 3,500 and 4,000 and 250 Police 
sergeants, whereas the total force is 282 
with 43 sergeants.

J7. “ * * * in a society where racial
prejudice is endemic, an enormous policing 
effort would be required to insure that 
subjective standards do not harm minority 
workers.” Developments in the Law, 
Employment Discrimination and Title V II 
of the Civil Rights Act of 1964, 84 Harv. 
L.Rev. 1165.

study oi a report on the Chicago Police 
Department and an examination of police 
examinations of the Boston Police De­
partment plus what he has read in the 
newspapers and general lay knowledge. 
He further testified that for a proper 
evaluation of a test and the construction 
of a new test, it would require an in- 
depth study by professionals costing not 
less than $30,000 and probably consider­
ably more.

He has examined the 1968 sergeants 
examination, the service ratings, the re­
sults of the examinations, and a deposi­
tion of the defendant Personnel Director 
Pierce. It was his judgment that the 
test had facial validity but was biased 
on such things as verbal skills, memory, 
language, reading ability and comprehen­
sion. He criticized the test for empha­
sizing only one small segment of those 
things which go into making a successful 
policeman. The witness urges that job 
performance and job behavior are the 
most important things. This would be 
reflected in service ratings and depend 
on the evaluation of supervisors.17

He testified other means of testing 
socially and culturally disadvantaged mi­
nority ethnic groups are in their infancy. 
His suggestions are innovative and the 
possibilities tend to excite the imagina­
tion, but are untested and unproven. The 
court finds there is insufficient evidence 
at the present time backed up by valida­
tion procedures to evaluate alternative 
testing procedures.

This court, in a school desegregation case, 
lias observed tile same difficulty with sub­
jective tests. Where patterns of racial 
discrimination developed in the class­
rooms, the court proiiibiteil the use of 
teacher evaluations for classroom assign­
ment. U.S.A., Danita Hampton v. Choc­
taw Co. Bd. of Ed. et ah, S.D.Ala., No. 
4240-66 (9/21/70).
“The examination [journeyman’s] shall 
be an ohjectire one designed to determine 
whether the applicants are reasonably 
qualified.” United States v. Sheet Metal 
Wkrs. Int. Assn., Local U. No. 36, 416 
F.2d 123, 133 (Sth C.A.1969) (Emphasis 
added.)



17a
Appendix B

His principal criticisms of the Mobile 
sergeants tests are (1) they are likely 
to have an adverse racial impact due to 
poor test taking ability and the low 
threshold of test fear for blacks; (2) 
the test has only one facet—book learn­
ing; (3) the test was not validated; (4) 
they give insufficient consideration to 
past job performance and the promotion 
is coupled to a senority factor which is 
tied to past discrimination. He particu­
larly criticizes the test as discriminatory 
because of the “ability to read” and “to 
understand words” aspect which has 
an adverse impact against the socially 
and culturally disadvantaged minority 
groups.

The sergeants examination was pre­
pared by the National Public Personnel 
Association of Chicago.18 The defend­
ants’ witness, Dr. Donovan, has been 
with that organization since 1939. He 
had previous experience with the Arkan­
sas state personnel organization and the 
Chicago Civil Service Commission.

The Association’s membership is com­
posed of public personnel associations 
from cities, counties, states, and federal, 
as distinguished from private industry. 
The association has a staff of 35. In­
cluded in its membership is the United 
States Civil Service and other U. S. per­
sonnel bodies, the Public Service Com­
mission of Canada and Canadian Provinc­
es, the Republic of the Philippines, Japan, 
and all the states’ personnel bodies ex­
cept one or two. The association and wit­
ness began work in the testing field in 
1953. He has a staff of eight in this 
field. Preparation of the sergeants ex­
amination was accomplished by Dr. Don­
ovan and his staff with the aid of a na­
tionally known former Chief of Police 
of Chicago and University official who 
is a recognized authority in the field of 
criminology.18 He testified the test had 
content validity, was job related made

18. Dr. Barrett testified he had no knowl­
edge of any other standardized police test
except those prepared by this organiza­
tion.

use of multi-choice answers which mini­
mizes arbitrary scoring and is the most 
widely used type in the public domain. 
He testified that job description alone 
is insufficient basis on which to prepare 
a test. He recognized the validity of 
service ratings but pointed out the diffi­
culty of its subjective aspect with a 
weakness inviting bias and discrimina­
tion. A passing point should be flexible 
and points to consider are department 
needs and likely vacancies. However, 
if everyone, or substantially all, passed 
a test, it would raise the question of why 
give a test at all. Validation would have 
to be established by the users of the test 
or an in-depth study by professionals of 
the test users and takers.

A large percentage of the Negro police 
applicants failed the test as compared 
with the white policemen. One-hundred 
and eight took the test. Ninety-four 
were white and fourteen were black. 
Fifty-seven white, or 60.6% of the whites 
passed, and two, or 14.3% of the blacks 
passed.20

The defendant, Personnel Director 
Pierce, a native of Nebraska, has been 
with the County Personnel Board since 
1947. His department has under its su­
pervision 446 classifications and has de­
veloped the tests for most of these. He 
is a college graduate. It is his judgment 
the test is job related. Before using it 
he consulted the Mobile Chief of Police. 
Passing grade was 70, and it is his judg­
ment by observation and study the tests 
have been validated as to job perform­
ance.

The Mobile Police Chief has been in 
that position since January 1971, and 
was Assistant Chief for four or five 
years prior thereto. He has been with 
the Department since 1938. During the 
time as Assistant Chief he served on oc­
casion as Acting Chief. He has shown

19. Dean O. W. Wilson, University of Cali­
fornia.

20. Plaintiffs’ Exhibit No. 10.



18a
Appendix B

considerable affirmative leadership de­
monstratively attempting to reduce the 
effects of discrimination in the Depart­
ment.

Lt. Winstanley is in charge of the 
Planning Division. His work is related 
to assisting the Board with reference to 
examinations, drafting rules, regulations 
and procedures, short and long time 
plans, crime analysis reports, etc. He 
impressed the court as being knowledge­
able and most competent. He has been 
on the police force since 1940 and has 
three years of college training. Both 
of these witnesses testified the sergeant 
examination is job related.

The defendant Personnel Board Direc­
tor asserts it is his judgment, based on 
observation, experience and several stud­
ies aimed at measuring job performance 
against those promoted, the promotional 
tests of the past, including the sergeants 
tests, have established satisfactorily the 
predictive validity of the tests. The 
studies apparently were not comprehen­
sive statistical studies.

Since 1954, the defendants, Board and 
Director, have made a good faith effort 
by intent and practice to give and grade 
the Mobile Police Department examina­
tion in a non-discriminatory manner.21

21. The plaintiffs have had extensive dis­
covery including receiving examination pa­
pers and examinations of blacks and 
whites. Although some of the plaintiffs’ 
witnesses expressed the opinion, without 
supportive evidence, that the giving and 
grading of the examinations was prejudi­
cial, their attorneys in open court and at 
pretrial stated that this was not an issue 
of the case and tacitly admitted they had 
discovered no evitlenee to this effect 
through their discovery.

22. Plaintiffs’ Exhibit No. 5.

23. Tlte method of computing seniority at 
the present time is to allow an officer 70 
out of a possible 100 points when he has 
three years experience. He gets the maxi­
mum 100 points after he has been on the 
force 18 years. The seniority grade is 
actually curved, referred to as a “learning

The court has examined the sergeants 
test.22 The court finds the examination 
is job related.

The defendants, Board and Director, 
prior to 1953 formulated and used an ap­
plication for the Police Department 
which included “White Males Only.” 
They accepted only white male applica­
tions for the entrance examinations to 
the Police Department. This was pat­
ently discriminatory.

(2) Seniority. The total years in 
grade rather than years of service in 
the department is awarded points. The 
earliest years in grade count more than 
the later years, that is, fewer points per 
year are given. The seniority scores 
thus are curved. Senority is based on an 
eighteen year maximum. During the 
first 10 years credit for seniority rises 
rapidly but then levels off. After 10 
years there is a maximum 10% increase 
in credit for seniority. This has been 
called a “learning curve.” 23'

The first Negro officers were hired in 
1954—17 years ago—so there are no 
black officers who have been on the force 
long enough to earn the maximum num­
ber of points. Additionally, blacks for 
the first years were not hired in large 
numbers and the program at best was a 
token one. Therefore, many of the Ne­
gro officers on the force now could not

curve,” so that greater weight is given to
early years of service than to the later.
The increment of increases are :
Years of Service Points
3 to 3.5 70
3.5 to 4.5 75
4.5 to 5.5 77.5
5.5 to 6.5 80
0.5 to 7.5 82.5
7.5 to 8.5 85
8.5 to 9.5 87.5
9.5 to 10.5 90
10.5 to 11.5 92
11.5 to 12.5 94
12.5 to 13.5 95
13.5 to 14.5 96
14.5 to 15.5 97
15.5 to 16.5 98
16.5 to 18 99
18 and over 100



Appendix B
join earlier and have not had the oppor- eludes the use of these ratings has not 
tunity to earn seniority points.24 -been racially discriminatory.

[3] The court finds that the present 
seniority system constitutes racial dis­
crimination against blacks.

(3) Regular Service Rating. Each of­
ficer is rated monthly by his supervisor 
on the basis of his performance in his 
present job. Every six months the rat­
ings are averaged to arrive at the appli­
cant’s regular service rating. Before 
promotions, the six months service rat­
ings are used to determine the service 
rating to be used for promotional pur­
poses.

[4] The officer’s superior rates each 
man as (1) unacceptable, (2) needs to im­
prove, (3) good, (4) better than average,
(5) outstanding. The ten areas rated 
are: (1) care of equipment, (2) quality 
of work, (3) initiative and ingenuity, (4) 
work habits, (5) personal appearance,
(6) attiude, (7) judgment, (8) reliabil­
ity, (9) quantity of work, and (10) in­
tegrity and loyalty. The regular service 
rating, though criticized by plaintiffs or 
having less than perfect weights, does 
not appear to have had an adverse racial 
effect. A comparison of the regular rat­
ings given to those who passed the last 
sergeants written examination reveals 25 
the average of the 57 whites regular 
service rating was 90.08 points, while the 
average of the two blacks who passed 
was 91 points. The principal criticism 
the plaintiffs have is directed toward im­
proving the form and improving the 
raters’ ability to rate. The court con-

74. In nil but two of the seventeen years the 
median age of entering blacks was higher 
than the median age of entering whites.

Median Age Median Age
Year White Black

1954 29.62 29.33
1955 32.16 33.50
1956 26.86 No appointments
1957 28.43 31.00
1958 No appointments No appointments
1959 28.83 37.00
1960 26.00 27.00
1961 29.62 25.20

[5] (4) Special Service Ratings. 
When a promotional examination is 
scheduled, special service ratings are pre­
pared on the applicants. The form used 
is the same as that for a regular serv­
ice rating. The applicant’s supervisors 
are to indicate their opinion of the ap­
plicant’s ability to perform the job to 
which he aspires. Plaintiffs have two 
basic objections to this promotional fac­
tor, First, because the rating supervisor 
is not required to justify the rating he 
gives, it is possible for prejudice to seep 
into the rating. Second, often the rating 
is not given until after it is known which 
officers have passed the written test. 
This, it is argued, allows superiors to 
deliberately rate black officers low if they 
seem likely to be promoted.

There is evidence that the special serv­
ice rating has had a racially discrimina­
tory effect. Although some whites had 
as large a drop as the blacks, it is sig­
nificant that the only two black officers 
who passed the 1968 sergeants examina­
tion had drops in the special rating of 
20 and 15 points from their regular rat­
ing, or an average of 17.5. The white 
officers had a drop average of 12.5 
points. Since only two black officers 
passed the written tests as opposed to 57 
white officers, an average of the drop 
loses some significance.

CONCLUSIONS OF LAW
[6] It is well established that dis­

crimination in employment on the basis 
of race by a state or local government is

Year
Median Age 

White
Median Age 

Black
1962 27.00 28.40
1963 29.28 No appointments
1964 28.04 No appointments
1965 Not furnished Not furnished
1966 24.20 30.33
1967 25.40 32.00
1968 25.60 29.00
1969 25.60 24.66
1970 26.75 27.00

25. Ratings of those who failed the examina­
tion are not available.



20a
Appendix B

a violation of the equal protection clause 
of the Fourteenth Amendment.2*

A. CITY OF MOBILE POLICE 
DEPARTMENT

[7, 8] The Police Department has not 
demonstrated a sufficient justification 
for assigning officers to patrol areas of 
the city predominantly occupied by mem­
bers of their own race. Similarly, th® de­
fendant has not satisfactorily justified 
assignment of “black” cases to Negro of­
ficers and non-assignment of blacks to 
“white” cases. The reason advanced— 
that black officers are more effective 
when dealing with blacks—has not been 
satisfactorily tested and is insufficient 
in the general assignment of cases. It is 
common knowledge, and counsel for the 
plaintiffs recognize, that there are in­
stances where the race of the officer is 
relevant in the assignment of an officer 
to a task. Baker v. City of St. Peters­
burg, 400 F.2d 294, 300-301 (5th Cir. 
1968). Likewise, insufficient justifica­
tion has been demonstrated for assigning 
only black officers as partners of other 
Negroes and white officers as partners of 
whites to ride patrol cars. In the absence 
of such a showing the practice of mak­
ing these segregated assignments consti­
tutes unconstitutional racial discrimina­
tion. Baker v. St. Petersburg, supra.

The movement of black officers into 
the various divisions of the Department 
is extremely complicated. There is pres­
ently some movement in this direction 
which is attributable to two factors: (1) 
the enlightened leadership of the present 
Chief; in 1970 when the present Chief 
for a period of time served as Acting 
Chief, a large number of blacks were 
assigned to different divisions. On the

26. For possible exceptions and limitations 
see Employment Discrimination, supra, 
note 17, a t 1115: “Equal protection and 
due process require at least that any gov­
ernment action which is predicated upon 
color must be necessary to the attainment 
of an overriding governmental purpose.” 
Citing Loving v. Va., 388 TJ.S. 1, 11, 87 
S.Ct. 1817, 18 L.Ed.2d 1010 (1967).
See also, Baker v. City of St. Petersburg, 
400 F,2d 294, 300-301 (5th Cir. 1968),

return of the then Chief, there were re­
assignments out of these divisions. In 
recent months, after the installation of 
the present Chief, there has been move­
ment of blacks to other divisions. (2) 
The pendency of this lawsuit; since the 
filing of this ease there have been some 
blacks transferred to previously all white 
divisions.

This court’s decree formulates a com­
prehensive plan for removing all prac­
tices of racial discrimination in the De­
partment. This plan includes a report 
from the Department on the movement 
of blacks into the various divisions. The 
court recognizes the technical skills re­
quired in many of these divisions and the 
lack of evidence that the plaintiffs have 
these skills. Also, there are many com­
plications in the movement of personnel 
which must necessarily follow in the 
wake of the comprehensive plan of the 
court concerning the clear cut areas of 
discrimination. Therefore, the court is 
not outlining a plan for the movement of 
blacks into the various divisions, but in­
stead, the court suggests that the Depart­
ment continue this movement already 
under way. If the reports do not show 
statistical improvement in this move­
ment, the court holds that the lack of im­
provement will place the Department in 
the position of being “suspect of racial 
discrimination” and they will have the 
burden of justifying the lack of move­
ment in this area.

In years past, particularly on the ra­
dio, when referring to blacks the word 
“nigger” has been used. Two or three 
years ago complaints were made by the 
blacks of this and the Department made 
a policy announcement and took steps to 
remedy this. The use of this term has

which stated: “We do not hold that the 
assignment of a Negro officer to a par­
ticular task because lie is a Negro can 
never be justified. [For example tile 
undercover infiltration of an all-Negro 
criminal organization or plain-clothes 
work in an area where a white man could 
not pass without notice. Special assign­
ments might also be justified during brief 
periods of unusually high racial ten­
sion.]”



21a
Appendix B

noticeably decreased. The court recog­
nizes that the use of this word origi­
nates in two senses: (1) often times it 
is corrupted and poor English in the pro­
nunciation of the word “Negro” and, (2) 
an explicit derogatory term insulting and 
demeaning to blacks. Because of the his­
tory of servitude and discrimination 
against the blacks, the rightfully emerg­
ing recognition of their individual dig­
nity, and their pride of race, many blacks 
are extremely sensitive when whites use 
this term in any sense. Therefore, the 
plan hereinafter set out provides for 
means which should speed the eradication 
of the use of this word.

B. PERSONNEL BOARD AND 
DIRECTOR

1. Written Examination. The ser­
geants test used by the Board meets the 
test of job relatedness of Griggs v. Duke 
Power Co., 401 U.S. 424, 91 S.Ct. 849, 
28 L,Ed.2d 158 (1971). The test has 
155 multiple choice questions. It is not 
an aptitude test. Fifteen of the ques­
tions obviously have to do with super­
visory duties a sergeant would be charg­
ed with. An additional 28 questions re­
late to knowledge desired of a qualified 
sergeant. One hundred twelve of the 
questions should be known to a good, ex­
perienced patrolman.

The principal attack of the plaintiffs 
on the test is that it discriminates

27. See the Anti-preferential provision, 42 
U.S.C.A. 2000o-2(j). See also Employ­
ment Discrimination, supra, note 17, at 
1114-16. “But Title V II was not simply 
an employment measure for blacks and 
other minorities. The Act’s effectiveness 
in promoting minority employment was 
limited by the principle of color blindness. 
Just as the employer was not to discrimi­
nate against minority groups, he was also 
proscribed from showing preference to 
them. Employers could continue to set 
rigorous qualifications for their job open­
ings and test for worker productivity, as 
long as they did so fairly. The Act thus 
includes an nntipreferential provision, af­
firms the legality of professionally devel­
oped ability tests, and protects bona fide 
seniority systems. Help was to come to 
the black community, Congress reasoned,

against a socially and culturally disad­
vantaged minority, Negroes, because it 
is highly loaded with verbal skills, mem­
ory, language, reading and comprehen­
sion ability, and against poor test-takers, 
i. e„ the level of threat is greater against 
the socially and culturally disadvantaged 
Negroes.

The attorneys for the plaintiffs urge 
in their brief several alternatives. One is 
that because of past discrimination, the 
defendant should enable the plaintiffs to 
attain parity with the white officers by 
requiring that the presently existing va­
cancies for sergeants be filled exclusively 
by black officers until the ratio of black 
sergeants to all sergeants is equal to the 
ratio of black patrolmen and sergeants to 
all patrolmen and sergeants. This would 
result in the promotion of approximately 
five black patrolmen. While recognising 
government employees, as here, are not 
covered, (42 U.S.C.A. § 2000e(b)) plain­
tiffs urge the court to look to the fair 
employment laws, Title VII of the Civil 
Rights Act of 1964, 42 U.S.C.A. §§ 2000e, 
2000e-15, for guidance. The cases and 
law review articles on this Act provide 
rich provocative source material. As 
source material, it is significant this Act 
requires no preferential treatment be 
given minorities.27

[9, 10] “Equal protection” demands 
that the shackles of racial discrimination 
be removed and equal opportunity to eom-

by a new-found opportunity to be judged 
by objective standards.

*  *  *  *  *

“Moreover, color blindness may be con­
stitutionally required. Equal protection 
and due process require at least that any 
government action which is predicated 
upon color must be necessary to the a t­
tainment of an overriding governmental 
purpose. I t may mean even more than 
th is ; there may be no governmental pur­
pose which can justify state action impos­
ing burdens on the basis of race. * * * 
When the government requires that a 
black man be given a job in preference to 
a more qualified white, harm predicated 
on race is clear.

*  *  *  *  *

“The central objective of Title V II was 
to improve minority employment by re-



22a
Appendix B

pete in the market place for jobs be effec­
tively afforded. This court has attempt­
ed to formulate such a decree. Equal 
protection does not entitle superior or 
preferential rights to a minority or a ma­
jority.28

This court will not in the name of con­
stitutional law render a judgment initiat­
ing a new paternalism under the guise of 
compensatory rectification or preferen­
tial treatment. Neither w’ill this court 
insult the Negro plaintiffs' intelligence, 
disparage their initiative, their sense of 
responsibility, or their ability to render 
quality service as qualified and valued 
workmen by a decision which gives pref­
erential treatment.

This decree does not attempt to formu­
late “instant” qualifications for any job 
for any person. Its purpose is to provide 
that all persons, white and black, be 
brought up to the starting line in the race 
for jobs and compete under equal rules. 
Let those who by ability, or those who 
are willing to pay the price by dent of 
dedicated hard work, or those who are 
willing to scratch and scramble, or those 
who by reason of motivation, inspiration 
or ambition be given the opportunity, 
unshackled, to outdistance—and they will 
—the more talented but less motivated, 
and move up into places of leadership 
and responsibility.

The plaintiffs also suggest such other 
schemes as an extremely low passing 
point and a lottery system. A flexible 
passing point is presently used and many 
more take the examination than there 
are vacancies. To reduce the passing 
point further than has been the practice 
would, in the court’s opinion, render the 
test useless as a measure for promotion.
A lottery system such as was used for 
bus drivers and collectors in Massachu­
setts,29 is factually inapplicable.

[11] All police officers, including the 
lowest patrolman, and certainly ser-

quiring employers to use colorblind stand- 
ards in their hiring and promoting deci­
sions.” (Footnotes omitted.)

28. Baker v. City of St. Petersburg, supra,
400 F.2d at 301. “Nothing we say is 
intended to suggest that the Negro of-

geants, are frequently faced with consti­
tutional questions of advising defendants 
of their rights under the Miranda deci­
sion, faced with questions of probable 
cause in making arrests and conducting 
searches and seizures, swearing out war­
rants, legal questions concerning lineups, 
and identification by photographs, etc. 
A rudimentary knowledge of the essen­
tials of these legal problems is necessary 
if the citizens are to be protected in their 
rights, and when violations of the law 
occur, successful prosecution and convic­
tion had of the guilty parties. This takes 
on added significance in a day and time 
of rising lawlessness and criminal vio­
lence. We, the courts, have placed re­
strictive burdens on the law enforcement 
officials. We should encourage every 
effort to maintain and upgrade the qual­
ity of their work so that individuals may 
be secure in their constitutional rights 
and the public protected.

Reading and comprehension, memory, 
note taking, and reasonable use of verba! 
skills are essential. This sergeants test 
is job related. It bears a rational rela­
tionship to the ability to perform the 
work required.

Plaintiffs also suggest promotion by 
selection of the Chief of Police and other 
high ranking officers on the basis of a 
reasonable combination of regular service 
ratings, seniority, and an improved spe­
cial rating of promotability. With the 
exception of the seniority factor, all other 
considerations are subjective which, as 
previously noted, is almost impossible to 
police. In the name of a “good cause” 
the door would again be opened to the 
spoils system which has been abolished 
because the result was “bad,” It is the 
sad history of mankind that about as 
many evils have come about from pur­
portedly “good” causes as from “bad” 
causes. Our protection from the subjec­
tive determination of good and bad is

fieors on the police force of St. Peters­
burg should be given preferential treat­
ment. They deserve only what they 
seek—equality.”

29. Arrington v. Massachusetts Bay Transp. 
Auth., 306 F.Supp. 1355 (D.Mass.1969).



23a
Appendix B

principles to govern our conduct. In this 
instance it is the principle of Civil Serv­
ice including promotion on merit with ob­
jective testing as an integral part.

[12] Test validation and validation 
of test predictability is difficult.30 The 
attorneys in their brief recognize this 
problem. To require a small Police De­
partment, suffering from inadequate 
funding and faced with a rising crime 
rate, as is Mobile, to expend probably 
more than $30,000 to conduct a test 
study for examinations in an effort to 
produce tests to mitigate the problems 
of socially and culturally disadvantaged 
Negroes is not practical or constitution­
ally required. This is especially true 
when the studies in this field, according 
to the plaintiffs’ expert, are inconclusive 
and without a clear pattern. His ideas 
are innovative and stimulating, but not 
“validated.” The end result would be 
substitution of the unknown for the 
known.

30. Employment Discrimination, supra, note 
17, fit 1122: “ * * * predictive valida­
tion, or anything approaching it, is ex­
tremely difficult for the average em­
ployer. lie usually finds it impossible 
to get a random sampling and to give 
similar work experience, * * * ”
With reference to the interpretation of the 
Guidelines adopted by the Commission for 
Employee Selection Procedures, “ * *
if applied literally they would raise the 
cost of testing for many employers be­
yond tolerable limits. * * * ” Id. at
1127.
“ * * * [ I j t  is possible to read the
Guidelines so strictly as to make testing 
virtually impossible. Indeed, they may 
have been intended to serve a scarecrow 
function, since the Commission itself has 
not applied them literally in a variety of 
situations/’ Id. at 1128.
'* * * * [D ifferential validity is a
’hypothesis for which, at the present time, 
there is insufficient factual, evidence to 
affirm or deny with confidence’ * * *
One prominent psychologist has suggested 
that only one of twenty corporations could 
adequately validate a test for different 
races.” Citintr Barrett. Gray Areas in 
Black and White Testing, 46 Harv.Bus. 
liev. 92, 94 (1968). Id. a t 1129. This 
is the same Barrett who is the plaintiffs' 
principal witness in this rase.

The defendants are entitled to quali­
fied personnel to serve as sergeants and 
in other grades. An employer hiring a 
stenographer has the right to employ 
only a stenographer who can take dicta­
tion, transcribe it, and type. The person 
hiring a plumber or electrician has the 
right to have qualified personnel repair 
his faucets and install his electrical 
equipment. Aircraft companies and pas­
sengers have a right to have qualified 
and trained pilots fly aircraft.31

Although some inequities might exist 
in the testing system by which most of 
our society measures degrees of compe­
tence, it is the best proven method that 
our society has been able to formulate at 
the present time.32

Prior to the institution of the Civil 
Service Commission for the Police De­
partment of the City of Mobile, approx­
imately 90% of the Police force was in­
dicted, or under Grand Jury investiga­
tion, for corruption. Some reasonable.

For discussion of validation and other 
aspects of hiring practices, see Id. at 
1120-06.

31. Cooper & Sobol, Seniority and Testing
Under Fair Employment Laws: A Gen­
eral Approach to Objective Criteria of 
Hiring and Promotion, 82 Harv.L.Rev. 
1598, 1673 (1969): “ * * * [Pjrac-
tices having adverse racial impact should 
be permitted when they serve a significant 
business purpose that cannot be adequate­
ly served by a less prejudicial practice.” 
Hereinafter cited as Seniority and Test­
ing.
“Some tests have an obvious relevance to 
business needs and can clearly be justified 
for reasonable use as a criterion for em­
ployment decisions.” Id. at 1642.

32. Seniority and Testing, supra, at 1637: 
“Standardized employment tests play a 
major role in American industry. Em­
ployers rely on tests to determine who 
will be hired, who will be promoted.
* * * ” (Footnote omitted.)
Employment Discrimination, supra, note 
17, at 1121: “One survey showed that 
eighty-four percent of firms used per­
sonnel tests in 1963, as opposed to only 
sixty-four percent in 1958.”



24a
Appendix B

practical means of employment and pro­
motion must be used. The Civil Service 
Commission with its flaws is far supe­
rior to the spoils or a lottery system. An 
attempt to remedy the areas of discrim­
ination which exist in the Police Depart­
ment by hiring and promoting on subjec­
tive standards would be an open invita­
tion to a new spoils system and discrim­
ination which would be almost impossible 
to police. A lottery or subjective sys­
tem of promotion would be disastrous to 
any effort to maintain a quality police 
force and have promotion based on 
merit.

2. Regular Service Rating. To date, 
it has met constitutional standards. 
There has been no evidence that it has 
been used as a device to discriminate.

3. Special Service Rating. The large 
drop in points on the black officers’ spe­
cial service rating compared with their 
regular rating has shown the special 
rating to be a vehicle of discrimina­
tion.33 Plaintiffs and defendants urge 
the continued use of the special service 
ratings. The court concludes, however, 
some objective controls must be placed 
on these subjective reports.

4. Seniority. Promotional and hir­
ing tests and standards must not only be

33. Seniority and Testing, supra, note 31, 
at 1662: "Supervisory ratings, for exam­
ple, which are possibly the single most 
common performance measure used in 
validity studies, are subject to personal 
prejudice.”

34. "The ability of * * * black employ­
ees to improve their position by promo­
tion or transfer was frequently handicap­
ped by longstanding seniority * * *
which restricted entry into a department 
to the lowest ranking job and based pro­
motion on a seniority measure that re­
ferred to time spent in formerly white 
jobs.” Id. at 1616-36.
“ (i) [In] Quarles v. Phillip [Philip] 
Morris, Inc. [279 F.Supp. 505 (E.D.Va. 
1968)] * * * Quarles, a black em­
ployee in the prefabrication department, 
was prevented by this system from obtain­
ing transfer directly to the position of 
truck driver, a higher-rung position in a 
formerly all-white department, and sought 
injunctive relief. * * *

free of discriminatory intent, they must 
be free of discriminatory effect to be 
permissible. Seniority as a tool for pro­
motion, demotion, and lay-offs is an es­
tablished part of the American employ­
ment scene. However, the seniority fac­
tor as used is racially discriminatory. 
Because of past discrimination, Negroes 
entered the service later than whites, to 
wit, the first time in 1954, and since 
that time have entered at an older age, 
therefore, they have less seniority poten­
tial. While seniority is a common and 
reasonable factor to consider, some ad­
justment must be made to eliminate the 
discriminatory effect of the factor as 
used.34

It is ordered, adjudged, and decreed 
that the preliminary injunction restrain­
ing the defendants “until further orders 
of this court, from holding any examina­
tions for promotion in the police depart­
ment of the City of Mobile” dated the 
18th day of May, 1971, is hereby dis­
solved and the defendants may give the 
promotional examination after this date 
subject only to the further injunctive 
provisions of this decree.

It is further ordered, adjudged, and 
decreed that the respondents, their suc­
cessors in office, and their agents, serv-

“The district court found that the senior­
ity and promotional system discriminated 
on grounds of race, * * *.” Id. at
1617. (Footnotes and italics omitted.) 
“ (ii) [In] United States v. Papermakers 
Local 189, [282 F.Supp. 39 (E.D.La.
1968) aff’d. 416 F.2d 980 (5th Cir.
1969) ] * * *
“The defendants were ordered to abolish 
job seniority for promotion, demotion, 
and selection for training in all cases 
affecting blacks employed before the 
abolition of discrimination, and instead 
to institute a system of seniority based 
on total length of employment in the 
mill.” Id. a t 1619, 1621. (Footnote 
omitted.)
“The Quarles and Local 189 opinions 
seem to establish a set of principles for 
applying the Act to seniority systems; 
if a system, though stated in nonracial 
terms and adopted without discriminatory 
intent, incorporates racial differences in 
status and systematically prefers whites 
to blacks without business justification, 
it is racially discriminatory.” Id. at 1629.



25a
Appendix B

ants or employees, are enjoined from fail­
ing to put into effect the following 
plan for the elimination of racial dis­
crimination :

I. Patrol Zone Assignments
(a) No later than the first Monday 

of the third month following the issuance 
of this decree, and continuing on the 
first Monday of each two months there­
after, until the plan is fully implement­
ed, not less than eight patrol officers, 
which shall include an equal number of 
each race, shall be transferred from a 
patrol zone now manned by officers of 
their own race to a zone now manned by 
officers of the other race.

(b) The transferred officers referred 
to in (a) are to be assigned on a pro 
rata basis to the predominantly white 
or black zones of the opposite race. The 
present ratio is five whites to one black 
officer. This means four black officers 
may be assigned to the predominantly 
black zones at all times. However, under
(a) supra, all black officers are to be 
assigned to predominantly white zones 
at one time or another under a rotation 
plan.

(c) No black officer shall be trans­
ferred back to a predominantly black 
zone to which he was previously assigned 
before the date of this decree within less 
than one year of (a) supra, except on 
written report to the court that such of­
ficer was so transferred for good, non- 
discriminatory reasons.

Under the above plan, ail black officers 
will have an opportunity to serve in pre­
dominantly white zones. The court ex­
pressly allows the defendant to assign 
four black officers at one time or an­
other to predominantly black zones to 
maintain the pro rata ratio otherwise 
herein set out.

II. Two-Man Patrol Cars
(a) Trainees: In all cases where an 

officer and a trainee are assigned to a 
single patrol car, the defendant shall as­
sign not less than one out of every five 
white trainees, or a portion thereof, to

a black officer, but in no event less than 
two white trainees to two black officers 
and no black trainees to black officers.

(b) In all cases except trainees where 
two officers are assigned to a single pa­
trol car for any reason, including physi­
cal impairment, the occupants of the pa­
trol car shall be one white and one black.

The court does not require the De­
partment to use two-man ears in any 
particular number or in any specific 
area. However, should defendants plan 
to markedly increase the number of two- 
man cars now in use, a statement of the 
reasons for such change shall be sub­
mitted to the court prior to its imple­
mentation.

III. Assignment of Cases—Non- 
Uniformed Divisions

(a) The Chief of Police shall issue a 
directive to all supervisors responsible 
for the assignment of cases, stating the 
policy of the Police Department to be 
that all cases shall be assigned for in­
vestigation solely on the basis of the 
availability and ability of the assigned 
officer, without regard to his race, ex­
cept in particular situations in which the 
race of the officer is believed to be of 
unique significance. In all cases in 
which assignments are made on the basis 
of, or with consideration to, the race 
of the officer, the assigning supervisor 
shall prepare a brief written statement 
indicating his reasons therefore, which 
shall be retained until permission is re­
ceived from the court to destroy.

(b) It shall be the policy of the Police 
Department, in all cases in which detec­
tives or other investigating officers 
work in teams of two or more officers, 
to have at least one officer of each race 
assigned to such teams, insofar as the 
number of available men may permit, 
except in particular situations in which 
the race of the officer is believed to be 
of unique significance in which event 
applicable provisions of III. (a), supra, 
shall apply.



26a
Appendix B

IV. Rotation Among Divisions
It shall be the policy of the Police De­

partment to permit officers to serve in 
as many of the divisions of the Depart­
ment as is feasible and, in particular, to 
permit black officers the opportunity to 
serve in divisions other than patrol. 
Each six months hereafter the Chief of 
Police shall submit a written report to 
this court reflecting the movement of 
black officers among the different divi­
sions for the preceding six months. In 
the event there has been no improvement 
in the movement of black officers among 
the different divisions during that six 
months, the court shall consider the fail­
ure to improve the movement from pa­
trol as prima facie evidence of discrim­
ination and the burden shall be placed on 
the defendants to overcome this pre­
sumption.

V. Policy on Racial Discrimination
The Chief of Police shall instruct all 

personnel of the Department, both sworn 
officers and civilians, that expressions of 
racial prejudice in word, especially the 
use of the word “nigger,” or deed, will 
not be tolerated. Any reported viola­
tions of this policy shall be investigated, 
and if substantiated, the offender shall 
be appropriately disciplined.

VI. Instruction in Intergroup 
Relations

Within five months from the date of 
this order the Personnel Board for the 
County of Mobile, Alabama, and the Di­
rector of Personnel, George H. Pierce, 
individually and as Director of the Per­
sonnel Board of Mobile County, and their 
successors in office, shall prepare, in 
consultation with the Mobile City Police 
Department, a course of study for Po­
lice officers in intergroup relations of 
not less than ten classroom hours. The 
course shall be prepared in consultation 
with national and local experts in the 
field and a plan, including a detailed 
course outline and effective provisions 
for attendance, shall be submitted to the 
court. No later than one year from the

date of this order the course shall be 
given to all sworn officers of the Depart­
ment of all ranks. Thereafter, the 
course shall be given to all new recruits 
and a short version shall be included in 
the regular course of in-service training 
for incumbent officers.

VII. Recruitment Program

The Police Department and the Per­
sonnel Board shall institute an affirma­
tive recruitment program to obtain new 
recruits to fill the existing vacancies. 
The program shall be prepared in consul­
tation with black leaders in the City of 
Mobile, and shall include a large measure 
of advertising and promotions directed 
toward the black community. All adver­
tising shall include the statement “Equal 
Opportunity Employer.” All pictorial 
advertisements shall depict officers of 
both races. The plaintiffs are directed 
to participate in the development and 
implementation of such program. A 
plan for such recruitment program shall 
be submitted to the court within three 
months of the date of this order.

VIII. Seniority
(a) In the promotional system senior­

ity will be calculated on a maximum ba­
sis of 10 years. The defendants Person­
nel Board and Director, Mr. Pierce, or 
their successors in office, shall calculate 
a “curve of learning” on the same basis 
as under the present maximum of 18 
years, that is, it is to be adjusted to a 
10 year period.

(b) In calculating seniority to promo­
tion to ranks above sergeant the score 
should be based on seniority in total 
service, hereinafter referred to as De­
partment seniority, rather than in rank, 
when Negroes, an “affected class” as 
hereinafter defined, compete against 
whites.

(c) (1) Seniority in the Police De­
partment will be the test for advance­
ment above the rank of sergeant or for 
lay-offs whenever the “affected class” 
employees compete with other employees.



27a
Appendix B

(2) Rank seniority will be retained 
whenever whites compete against each 
other in any of the above situations.

(3) Rank seniority will be retained 
whenever any of the “affected class” 
compete against each other in any of 
the above situations.

(4) "Affected class” as used in VIII. 
(b) and (c) (1) (3), shall mean Negroes 
employed prior to September 9, 1971. 
It is provided, however, that although 
the “affected class” will compete against 
whites on Police Department seniority 
regardless of time in rank, members of 
the “affected class” and whites are not 
eligible to take the promotional examina­
tion above sergeant until after compli­
ance with the existing rule of a one year 
probationary term in rank.

(5) The above ordered Police Depart­
ment seniority provisions governing the 
competition between Negroes and whites 
shall be terminated in ten years from 
September 9, 1971.35

IX. Service Ratings 
(a) Special service rating.36
(1) The special service rating should 

be given on a regular six monthly basis 
by the Police Department and retained 
in the Department regardless of whether 
those officers being rated are then seek­
ing promotion or whether any promo­
tions are contemplated in the near fu­
ture. The person giving the rating 
should be required to state not only 
whether he believes the officer would 
serve well in the next rank but why he 
holds such belief. He is also required 
to explain any marked discrepancy be­
tween his evaluation of the individual’s

35. Til.' court has used as a guideline a 
negotiated industry agreement on seniority 
where there had been discrimination 
against blacks, The agreement was en­
tered into after the Office of Federal 
Contract Compliance had advised industry 
and labor unions with whom they had a 
labor agreement that they were in non- 
compliance with Executive Order #240. 
The approved agreement between the in­
dustry and the labor unions were accept­
able to the Office of Federal Contract 
Compliance. Their agreement is Plain-

performance or regular service rating 
and his special service rating.

(2) After an announced examination 
for promotion and after the termination 
of the application date, a special service 
rating will be made based on the previous 
special service ratings previously given 
plus a special rating for the interval 
since the last special rating and the date 
of this rating. The rating is to be com­
pleted and given to the Personnel Board 
and Director before the examination is 
given. These ratings will be given by 
five persons who shall include the Chief 
of the Police Department, the two most 
immediate current supervisors, and two 
others requested by the applicant from 
among the other supervisors he has had.

(3) It is important that the raters 
support their evaluations, in addition to 
the form used, with narrative reasons 
for their judgment of what sort of ser­
geant or superior officer the man would 
be. A form for the preparation of the 
ratings, including evaluation, is to be 
submitted to the court for approval 
before it is used. Instruction in rating 
should be given to all supervisory offi­
cers and the ratings they prepare regu­
larly reviewed and initialed by the re­
viewer.

(4) In the semi-annual reports to the 
court the defendants will include a copy 
of the ratings given by all supervisors 
for the period covered, under seal to be 
opened only on the orders of the court.

X. Written Tests
(1) Not less than once each year here­

after from the date of this decree the 
defendants aie to submit a written re­

tiffs’ Exhibit Xo. 3 in a pending ease 
before this court, to wit. Fluker, et al. 
v. Locals #265 anil #940, Fnited Paper- 
makers. Civil Action Xo. 5839—70, and 
Herron, et al. v. Fnited Pnpermakers and 
Pnperworkers, Civil Action Xo. 5065-69, 
a copy of which is attached to this decree 
as Appendix A. excepting tile signatures 
of all the particular mills.

36. Sometimes called a potential promota- 
bility service rating.



28a
Appendix B

port to the court which consists of a 
statistical study of promoted officers 
which will show a comparison between 
their examination grade and their regu­
lar service or performance ratings.

(2) No less than seven days prior to 
a promotional examination the Personnel 
Board and Director, or their successors 
in office, will have prepared and give a 
remedial course for blacks and whites in 
non-segregated classes, with a “dummy” 
examination given. The “dummy” ex­
amination will be graded and an oppor­
tunity given to the test taker to see the 
grade, the test paper, and discuss all 
areas of the examination with a compe­
tent member of the Police Academy, 
Planning or Training staffs, and a mem­
ber of the Personnel Board staff. The 
defendants are to maintain a register of 
those who attend the remedial course 
and take the “dummy” test together with 
the grade.

XI. Reports to the Court
Six months after the date of this order 

and at six month intervals thereafter 
until further orders of the court, de­
fendants shall submit detailed reports to 
the court regarding the implementation 
of this order.

Costs will be taxed at a later date.

APPENDIX A

MEMORANDUM OF UNDERSTAND­
ING

THIS MEMORANDUM OF UNDER­
STANDING, made by and between the 
Southern Kraft Division of International 
Paper Company and The United Paper- 
makers and Paperworkers, The Interna­
tional Brotherhood of Pulp, Sulphite 
and Paper Mill Workers, and The Inter­
national Brotherhood of Electrical Work­
ers,

WITNESSETH THAT:
WHEREAS, the Office of Federal 

Contract Compliance has advised the par­
ties that certain practices under the ex­
isting Labor Agreement are considered

to be in non-compliance with Executive 
Order 11246; and

WHEREAS, the parties have duly met 
to discuss and negotiate changes to the 
practices under the existing Labor 
Agreement; and

WHEREAS, the parties have been in­
formed that the agreed upon changes are 
acceptable to the Office of Federal Con­
tract Compliance; and 

WHEREAS, there is now in existence 
between the parties hereto a Labor 
Agreement effective from June 1, 1967 
to May 31, 1970, recognizing the Unions 
as the exclusive representative for collec­
tive bargaining of all the Production and 
Maintenance employees in the Bastrop 
Mill, Camden Mill, Georgetown Mill, 
Louisiana Mill, Mobile Mill, (Mobile Bag 
Factory), Moss Point Mill, Natchez Mill, 
Panama City Mill, Pine Bluff Mill, and 
Springhill Mill of the Southern Kraft 
Division of the Company, with certain 
specified exclusions:

IT IS AGREED between the parties 
hereto as follows:

THE FOLLOWING PROVISIONS 
ARE APPLICABLE TO PRODUCTION 
LINES OF PROGRESSION ONLY.
I. A. Acceptance of mill seniority as 

the test for advancement or demotion 
within progression lines or recall to 
progression lines or transfer from one 
progression line to another, or layoff, 
whenever Negro employees compete 
with other employees.

B. (1) Retention of contract sen­
iority whenever Whites compete 
against each other in any of the 
above situations.

(2) Retention of contract sen­
iority whenever Negroes compete 
against each other in any of the 
above situations.

C. The acceptance of mill senior­
ity, as outlined above, as the guiding 
principle when Whites and Negroes 
compete shall be subject to agreement 
with the Company as follows:

(1) All employees in the affect­
ed class as identified in Item C (4)



29a
Appendix B

below will be contacted for the pur­
pose of discussing with them their 
desires for transfer to some other 
line of progression or advancement 
into a line of progression. Written 
applications will be prepared for 
those expressing an interest in such 
transfer or advancement. When va­
cancies occur all employees in or out 
of the affected class having applied 
for transfer or advancement will be 
considered on the basis of seniority 
and qualifications as otherwise pro­
vided for herein. Permanent vacan­
cies in the beginning job of lines 
of progression will be posted on bul­
letin boards in all departments for 
at least one week with the under­
standing that a copy of the notice 
will be given to each local union.

(2) All current employees will 
be allowed to transfer to or advance 
into any line of progression if his 
qualifications are as high as the 
minimally qualified employee cur­
rently working in the line.

(3) Red circling of rates to be 
provided for first transfer of any 
current employee under the follow­
ing conditions:

(a) The employee must have a per­
manent rate of less than $3.00 per 
hour.

(b) The employee must have made 
application for the transfer involved 
as provided in Paragraph I. C (1) 
above within 6 months of the date 
of this Memorandum.
(c) (1) Red circling shall end for 
an employee who is transferred to 
or advanced into a line of progres­
sion if such employee fails to qualify 
after a reasonable trial period.

(2) Red circling shall end for 
an employee who waives a promo­
tion in the line of progression to 
which he transfers or if the em­
ployee is disqualified for promotion,

temporary or permanent, to a higher 
job to which he would otherwise 
move.

(4) The “affected class” for 
purposes of determining mill sen­
iority competition shall be limited 
to:
(a) Negroes employed prior to Sep­
tember 1, 1962, and

(b) Negroes employed since Sep­
tember 1, 1962 but initially placed 
in a job or line of progression for­
merly considered as an all Negro 
job or line of progression.

(5) Mill seniority provisions gov­
erning the competition between 
Negroes and Whites shall be termi­
nated in five (5) years subject to 
the approval of the apropriate gov­
ernment agency, if any.

II. Revisions in progression lines shall 
be referred to negotiations at the 
mill level between local management 
and local unions, such negotiations to 
involve the following items in the or­
der of their priority:

A. Merging progression lines. 
Agreement to be reached within 90 
days following ratification of this 
Memorandum.

B. Within 30 days after the lines 
of progression have been merged, the 
appropriate representatives of the lo­
cal unions and the Company shall meet 
to examine the shortening of lines of 
progression and determine those jobs, 
if any, which may be skipped in ad­
vancing within or transferring be­
tween lines of progression.

III. If any Federal Court of Appeals or 
the Supreme Court of the United 
States shall hereafter determine that 
the government may not lawfully im­
pose seniority standards upon the par­
ties to a collective bargaining agree­
ment, this Memorandum of Under­
standing shall immediately revert to



30a
Appendix B

the terms of the June 1, 1967 Labor 
Agreement.
SIGNED this 2nd day of August, 

1968.
International Paper Company 
Southern Kraft Division

By (s) E. E. Ellis, Jr., 
Vice President

The United Paper-makers and 
Paperworkers

By (s) W. L. Franks 
By (s) David W. Gordon

The International Brotherhood of 
Pulp, Sulphite and Paper Mill 
Workers

By (s) Jesse W. Whiddon, Sr. 
By (s) Hagen E. Glenn
The International Brotherhood 

of Electrical Workers



PRESS INC. —  N. Y,