City of Norfolk School Board v. Alston Memorandum Brief in Opposition to Petition for Certiorari

    82-3435
3n tijc

lEntteii States CEourt of Appeals
FOR TH E FIFT H  CIRCUIT

NO. 82-3435

LARRY WILLIAMS, ET AL

Plaintiffs-Appellants

versus

CITY OF NEW ORLEANS, ET AL

Defendants-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF ON REHEARING EN BANC

GILBERT R. BURAS, JR.
DEPUTY CITY ATTORNEY 
ROOM 2W23, CITY HALL 
1300 PERDIDO STREET 
NEW ORLEANS, LOUISIANA 70112 
TELEPHONE: (504) 586-4651
.A
SALVADOR ANZELMO 
CITY ATTORNEY

Of Counsel:
NORMAN J. CHACHKIN 
BEATRICE ROSENBERG 
733 15th Street N.W. 
WASHINGTON D. C. 20005



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 82-3435

LARRY WILLIAMS, ET AL
PLAINTIFFS-APPELLANTS

VERSUS
CITY OF NEW ORLEANS, ET AL

DEFENDANTS-APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF ON REHEARING EN BANC

GILBERT R. BURAS, JR.
DEPUTY CITY ATTORNEY
ROOM 2W23, CITY HALL
1300 PERDIDO STREET
NEW ORLEANS, LOUISIANA 70112
TELEPHONE: (504) 586-4651
SALVADOR ANZELMO 
CITY ATTORNEY

Of Counsel:
NORMAN J. CHACHKIN 
BEATRICE ROSENBERG 
733 15th Street N.W. 
WASHINGTON D. C. 20005



The undersigned, counsel of record tor the City 
Orleans, certifies that the following li—  —  have an 
interest in the outcome of this case. Th.s. representation

possible disqualification or refusal.
x tarry William. Gustave Thomas, Willi. Carter, or.,

TaPnh R. Johnson,Tr Ronald Bechet, Sr., Jacob Edgar Morgan, Jr., tr,vPS• i a pav HI, Sterling Hayes, Timothy McGruder, Nathaniel A. Y,
Teanne McGlory Wallace and Samuel Reive, Patricia LeBeaux, Jeanne

Arzelia Jones. ,
2. The class of all blach applicants for employment

and former black police officers police Officers and present and former
in the New Orleans Polrce Department. ^

3. The City of New Orleans, Loursrana
Orleans Civil Service Commission.

Of the City of New Orleans, the Superrn- 4 The Mayor of the eiuy
t e n d ^  of Police, and the me.ers of the City Civil
Commission, all acting in their orficial capa ^

are Ernest N. Morial, Mayor, a- these positions areoccupants of these P hel. nu police, Anthony M. Rachel,Henry M. Morris, Superrntenaent of
a jr Dr Barbara G. Thompson, Thomas . Jr., Leon J. Reymond, Jr., Dr.

Til City Civil Service Horace A. Thompson, m ,  '“-LLD Sponsler, and Horace
Commissioners.

5 captain Horace Perez, Lt. Stephen Rodrrguez, •
.„ and Ptn Michael Hones on behalf of themselves 

Lul2 Kuril o, Officers employed by
and all other Hispanic-Amencan Police

1



the New Orleans Police Department.
6. Cindy Duke, Majorie Ellerbusch, and Carolyn Weigand.
7. The class of all female police officers presently

employed by the New Orleans Police Department.
8. The class of all female applicants for employment as

DEPUTY CITY ATTORNEY
ROOM 2V723 , CITY HALL
1300 PERDIDO STREET
NEW ORLEANS, LOUISIANA 70112
TELEPHONE: (504) 586-4651
SALVADOR ANZELMO 
CITY ATTORNEY

*

li



TABLE OF CONTENTS

g- Page

• Certificate of Interested Persons ......................  i
• Table of Contents.......................................  iii

Table of Authorities.....................................  iv
Summary of Argument......................................  ix
Argument................................................  1
I. The Consent Decree is a Fair and Appropriate

Settlement of The Claims Raised in this Case......  2
II. The Reasons Given by the District Court For

Refusing to Enter the Consent Decree are 
Inadequate.......................................  16

III. The Contentions raised by the United States
Are Without Merit................................  27

• Conclusion.............................................  50
Certificate of Service.................................  51

\

in



TABLE OF AUTHORITIES

'V

%

Afro-American Patrolmen League v. Duck,
503 F.2d 294 (6th Cir. 1974)
Airline Stewards and Stewardesses 
Association v. American Airlines, Inc.,
573 F.2d 960 (7th Cir.), cert, denied,
439 U.S. 876 (1978)
Albermarle Paper Co. v. Moody,
422 U.S. 405, (1975);
Armstrong v. Board of School Directors,
616 F.2d 305 (7th Cir. 1980)
Baker v. City of Detroit,
483 F. Supp. 930, (E.D. Mich. 1979) 6, 15
Bridgeport Guardians, Inc, v. Members of 
Bridgeport Civil Service Commission,
482 F.2d 1333 (2d Cir. 1973), cert, denied,
421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 
(1975)
Boston Chapter, NAACP v. Beecher,
679 F.2d 965, (1st Cir. 1982), cert, granted,
51 U.S.L.W. 3339 (U.S. Nov. 2, 1982)
Chisholm v. United States Postal Service,
665 F.2d 482 (4th Cir. 1981)
Coleman v. Sanderson Farms, Inc.,
629 F.2d 1077 (5th Cir. 1980)
Connor v. Johnson,
402 U.S. 690 (1971)
Consumer Product Safety Comm'n v.
GTE Sylvania, Inc.,
447 U.S. 102, (1980)
Curtis v. Loether,
415 U.S. 189 (1974)
Detroit Police Officers' Ass'n v. Young,
608 F.2d 671, (6th Cir. 1979), cert, denied,
452 U.S. 938 (1981)
EEOC v. American Telephone & Telegraph Company, 
556 F.2d 167 (3d Cir. 1977), cert, denied,
438 U.S. 915 (1978)
EEOC v. Safeway Stores, Inc.,
611 F.2d 795 (10th Cir. 1979), cert, denied,
446 U.S. 952 (1980)
Erie Human Relations Commission v. Tuillio,
493 F.2d 371 (3d Cir. 1974)
Ford Motor Co. v. EEOC,
50 U.S.L.W. 4937 (U.S. June 28, 1982)
Franks v. Bowman Transportation Company,
424 U.S. 747, (1976)
27, 28, 39, 40, 48 
Fullilove v. Klutznick,
448 U.S. 448 (1980)
General Euilding Contractors Association v. 
Pennsylvania, 50 U.S.L.W. 4975 
(U.S. June 29, 1982)

6

32, 33 
17 27 
32 34 5.

15, 36 
35 
37 
16

37
17

15, 20 

32, 36 37

32
6
40
9, 10, 12, 24, 25,

42, 45, 47, 49

46

xv



TABLE OF AUTHORITIES, cont1d

*

»

General Electric Company v. Gilbert,
429 U.S. 125, 142-43 (1976) 35
International Brotherhood of Teamsters v.
United States, 431 U.S. 324, (1977) 10, 11

28, 30 
48

James v. Stockham Valves & Fittings Co.,
559 F.2d 310, 356 (5th Cir. 1977) 36
League of Latin American Citizens v.
City of Santa Ana, 410 F. Supp. 873
(C.D. Cal. 1976) 6
Louisiana v. United States,
380 U.S. 145, 154-55 (1965) 44
Luevano v. Campbell, 93 F.R.D. 68
(D.D.C. 1981) 33
Marshall v. Eastern Airlines, Inc.,
474 F. Supp. 364, 368 (S.D. Fla. 1979) 37
Metropolitan Housing Development Corporation v.
Village of Arlington Heights,
616 F.2d 1006 (7th Cir. 1980) 30
Mims v. Wilson,
514 F.2d 106 (5th Cir. 1975) 6
Moore v. City of San Jose,
615 F.2d 1265 (9th Cir. 1980) 32
Morrow v. Crisler,
491 F. 2d 1053, (5th Cir. 1974) 6, 36
NAACP v. Allen, 493 F.2d 1053 (5th Cir.)
(en banc), cert, denied,
419 U.S. 895, 95 S.Ct. 173,
42 L.Ed.2d 139 (1974) 6, 15,
NLRB v. Ccho Fertilizer Corporation,
368 U.S. 318 (1961) 30
North Carolina State Board of Education v. Swann,
402 U.S. 43 (1971) 44
Now, Inc. v. United States,
425 U.S. 944 (1976) 11
Officers for Justice v. Civil Services Commission,
371 F. Supp. 1328 (N.D. Cal. 1973) 6
Otero v. New York City Housing Authority,
484 F.2d 1122 (2d Cir. 1973) 43
Pasadena City Board of Education, v.
Spengler, 427 U.S. 424, (1976) 34
Piedmont & Northern Ry. v. ICC,
286 U.S. 299, (1932) 37
Porcelli v. Titus,
431 F.2d 1254 (3d Cir. 1970) 43
Regents of the University of California v. Bakke;
438 U.S. 265 (1978) 39, 42

48 , 49
Reiter v. Sonotone Corp.,
442 U.S. 330, (1979) 37

12,
39,

36

44,

25,
40,

45,

v



TABLE OF AUTHORITIES, cont1d

S.

Rodriguez v. City Civil Service Commission,
337 So. 2d 308 (La. App. 4th Cir. 1976) 25
Sexon v. Beatrice Foods Co.,
630 F.2d 478, 486 (7th Cir. 1980) 37
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971), 26, 34, 43,
Swift & Company v. United States,
276 U.S. 311, (1928) 30
System Federation No. 91 v. Wright,
364 U.S. 642 (1961) 30, 31
Talbert v. City of Richmond,
648 F.2d 925, (4th Cir. 1981) 15
Thompson v. Sawyer,
678 F.2d 257 (D.C. Cir. 1982) 35
United Jewish Organizations v. Carey,
430 U.S. 144 (1976) 43
United States v. City of Alexandria,
614 F.2d 1358 (5th Cir. 1980) 29, 46
United States v. Alleghenv-Ludlum Industries, Inc., 
517 F.21 826 (5th Cir. 1975)
cert, denied sub nom. 11
United States v. City of Buffalo,
457 F. Supp. 612 (W.D.N.Y. 1978) 6
United States v. Burr,
25 F. Cas. 30, 35 (C.C. Va. 1807) 17
United States v. City of Chicago,
549 F.2d 415 (7th Cir.), cert, denied,
434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2a 155 (1977) 6
United States v. City of Chicago,
663 F. 2d 1354 (7th Cir. 1981) 22, 35
United States v. International Union of
Elevator Constructors,
538 F.2d 1012 (3d Cir. 1975) 36United States v. Ironworkers Local 86,
443 F.2d 544, (9th Cir.), cert. denied,
404 U.S. 984 (1971) 39
United States v. City of Jackson,
519 F. 2d 1147, (5th Cir. 1975) 32
United States v. IBEW,
428 f. 2d 144 (6th Cir, 1969) cert, den
400 U.S. 943 (1970) 36
United States v. J.E. Marniye & Sons, Inc.,
665 F.2d 336, 340 (C.C.P.A. 1981) 3/
United States v. Jefferson County,
28 FEP Cases 1834, (N. D. Ala. 1981) 34
United States v. Lee Way Motor Freight, Inc.,
625 F.2d 918 (10th Cir. 1979) 36
United States v. City of Miami, 614 F. 2d 1322,
(5th Cir. 1981) vacated 664 F.2d 435 31,45
United States v. City of Miami,
664 F. 2d 435 (5th Cir. 1981) 40

49

vi



TABLE OF AUTHORITIES, cent1d

S. Rep. No. 92-415, 92d Cong.
1st Sess. 10 (1971) (legislative history
of 1972 Title VII amendments); 15
H.R. Rep. No. 92-238 , 92d Cong.,
1st Sess. 17 (1971) ; 15
H.R. Rep. No. 92-238, 92d Cong., 1st Sess.
5 (1971), Subcomm. on Labor of the Senate
Comm, on Labor and Public Welfare, Legislative 
History of the Equal Employment Opportunity 
Act of 1972 68 (Comm. Print 1972) [hereinafter
"1972 Legislative History"]; 38
S. Rep. 92-415, 92d Cong., 1st Sess. 5 (1971),
1972 Legislative History at 414. 38
Nat11 Comm'n on the Causes and
Prevention of Violence, Final Report: To
Establish Justice, To Ensure Domestic
Tranquility (1969); 15
Report of the Nat11 Advisory Comm'n
on Civil Disorders 300-01 (1968); 15
National Advisory Comm'n on Law Enforcement 
and Administration of Justice, Task Force 
Report: The Police 144-45, 167, 171-73 (1967). 15

*

*1

- viii -



SUMMARY OF ARGUMENT

1. The consent decree is a fair and appropriate 
settlement of the claims raised in this case. The district 
court explicitly found that plaintiffs' evidence established a 
prima facie case of unlawful discrimination. Had the case 
been litigated rather than settled, judicially awarded relief 
might well have blocked the promotion of any white officers 
for three to five years, and exposed the City to back pay lia­
bility greatly exceeding the $300,000.00 figure in the consent 
decree. The settlement avoids these drastic consequences 
while preserving 50% of all promotions for white officers 
during the life of the consent decree and requiring the 
development of fair and validated hiring and promotion 
criteria. It is thus a fully proper resolution of this Title 
VII case.

2. The district court's reasons for failing to approve 
the decree are insubstantial. The relevant labor market area 
must be limited to Orleans Parish since residents of the 
Parish have had, since 1951,a Louisiana constitutional and 
statutory priority for hiring, and since no substantial hiring 
from outside the Parish has ever taken place. Because the 
population of the Parish is more than 50% black, and applicant 
flow since 1977 has been more than 65% black, the 50% goal em­
bodied in the consent decree is not distorted by any affirma­
tive action efforts which the City may recently have under­
taken. Moreover, the decree is self-correcting with respect 
to the relevant labor market. It does not require promotion



of black policemen if that would make the racial composition 
of any supervisory rank within the Department more heavily 
black than the "police officer" rank. Since the decree 
mandates hiring of police officers based upon nondiscrimin- 
atory selection criteria, the promotion requirements will, in 
effect, automatically incorporate an accurate measure of the 
labor market.

Finally, the district court erred in measuring the accep­
tability of the decree according to its judgment whether the 
particular relief embodied in the decree is "necessary." If 
that were the test, no case could ever be settled; only after 
a full liability trial can the extent of "necessary" relief be 
known. Moreover, the district court misapplied the test in 
any event by failing to consider the plaintiffs' interest in 
"make-whole" relief.

3. The arguments of the United States are also without 
merit. First, a court may approve a settlement without making 
all of the findings necessary to support a litigated decree. 
Second, the government's interpretation of §706 (g) of Title 
VII is contrary to the statutory language, the legislative 
history, the holdings of all the Courts of Appeals which have 
considered the issue, and the position taken by the United 
States for sixteen years. Finally, the government's constitu­
tional argument simply reads far more into the Supreme Court's 
Bakke and Fullilove opinions than was decided by the Court,

x



and ignores other Supreme Court and Courts 
precedent in this and other Circuits which 
litigants' action in settling this case.

of Appeals 
supports the

xi



In accordance with the direction of the Court, the City of
1 2 New Orleans submits this brief on rehearing. The issue

presented on this appeal is whether the district court correctly
refused to enter the consent decree negotiated by the plaintiffs-
appellants and defendants following several years of vigorous
discovery and pre-trial litigation. Reversal of the panel's
determination (that the consent decree should have been approved)
would not merely require the City to assume the burden and

A R G U M E N T

This action was brought on behalf of a class of applicants 
and both incumbent and former officers of the New Orleans 
Police Department, who alleged unlawful discriminatory employ­
ment practices in violation of, inter alia, Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. 
§ 1981; and the Fourteenth Amendment. See R. 2109 (Vol. VIII) 
(Pre-Trial Order). Responsibility for the policies and prac­
tices attacked by the plaintiffs is divided between City of New 
Orleans and an independent commission; hence, there are two 
groups of defendants separately represented in the suit. They 
are, first the City of New Orleans, its Mayor and Super­
intendent of Police (on whose behalf this brief is submitted); 
and, second, the New Orleans Civil Service Commission and its 
members.
The City of New Orleans did not file a brief when this 
matter was initially before the panel. As counsel for 
plaintiffs-appellants represented to the panel at the earlier 
oral argument, the City joined in plaintiffs' arguments in 
support of the consent decree negotiated by the parties. The 
new contentions which have been injected into this case by 
the intervenor United States, however, are of such concern to 
the City that it has determined the submission of a separate 
brief to this Court is necessary and appropriate.

1



As weexpense of additional protracted judicial proceedings, 
show below, it would also expose the City to the risk that it 
will be required by a litigated decree in this case to undertake 
obligations (both financial and managerial) which are much 
greater than those imposed under the consent decree. The consent 
decree avoids this risk. It is an equitable, judicious, entirely 
lawful resolution of this controversy. It does not "unfairly 
trammel" the interests of non-black incumbents in the New Orleans 
Police Department, but in fact it affords them greater promotion­
al opportunities than would likely be available under a litigated 
decree. For these reasons, the panel's decision should be 
affirmed.

I
The Consent Decree Is A Fair 
And Appropriate Settlement Of 
The Claims Raised In This Case

The issues which have been raised by the limited intervenors 
and the United States must be assessed in the context of the 
circumstances with which the City of New Orleans was confronted

3

The provisions of the consent decree were developed through 
intensive negotiations among the parties, undertaken at the 
suggestion of the trial court, see 543 F. Supp. at 667; the 
decree incorporates a series of compromises by all parties on 
the various issues involved in this complex lawsuit. The City 
is not in a position to assume, on the basis of its experience 
in negotiating the decree, that the parties will be able to 
reach agreement on a modification of paragraph VI.C. of the 
decree (R. 3554 (Vol. XI), Record Excerpts [hereinafter R. Ex.] 
E-60) which will be acceptable to the district court, see 543 
F. Supp. at 684-86. Furthermore, if the United States as a 
party litigant in this case and the positions expressed in its 
"Suggestion of Rehearing En Banc" make it unlikely that the 
government would agree to entry of even those portions of the 
consent decree which are not involved in this appeal.

2



in this case. At the time that this lawsuit was initially 
filed in 1973, blacks constituted 5.4% of the 1325 non-civilian

4employees of the New Orleans Police Department. There were 72 
black "police officers" (6.7% of the total of 1,073); 8 sergeants 
(7.2% of the total of 111); and no blacks among 51 desk ser­
geants, 60 lieutenants, 16 captains, or 11 police majors on the 
force (R. Ex. E-138).^ The current city administration recog­
nized that certain aspects of the entrance qualification proce­
dures, operated by the Department, were open to claims of racial

g
bias. Accordingly, it has made efforts to increase minority 
representation of the police force, although it does not have 
authority over the written examinations for hiring or promotion.

The population of Orleans Parish between the ages of 20 and 
30 was 45% black in 1970. See Plaintiffs' First Request to 
Admit or State Facts (R. 1975 (Vol. VIII) ) . (Factual as­
sertions contained in this document are uncontested; see 
Pre-Trial Order, 3IVIII.1. (R. 2110 (Vol. III).) Plaintiffs'1'
expert witness Dr. Marc Bendick, a labor economist, adjusted 
the census data for age ranges which more closely approximated 
the entry-level hiring age limits established by the New 
Orleans Civil Service Commission (see R. Vol. XIV at 100-01) 
and estimated that in 1970 blacks constituted 43.4% of the 
labor market pool for entry into the New Orleans Police 
Department. R. Ex. E-106 (affidavit submitted by plaintiffs at 
March 8 , 1982 hearing on consent decree; see R. Vol. XIX at
8-9, 12).
These figures are based upon computer analysis of the 1972 
year-end master payroll computer tapes of the City and are 
contained in an exhibit to an affidavit submitted by plaintiffs 
at the March 8, 1982 hearing on the consent decree (see R. Vol. 
XIX at 10, 12). The figures are consistent with the uncontest- 
ed fact that between 1963 and 1973, the Police Department hired 
1,190 white officers and 65 blacks (R. 3542-43 (Vol. XI), R.
Ex. 48-49 (consent decree)).
Plaintiffs' First Request to Admit or State Facts (R.
1958-59).

3



For example, a black officer now heads the recruitment and
7applicant investigation unit. Personnel assigned to the 

Police Academy were changed. Efforts were undertaken to make 
certain that black and white officers received the same treatment

Oand consideration in assignments, etc. within the Department.
By 1980 the number of black officers had increased to 213 (21.2%
of 1005 officers) and there were 16 black police recruits (35.6%
of a class of 45). However, there were only 7 black sergeants
(3.5% of a total of 198) and 2 black lieutenants (3.0% of a total
of 66) on the force; no blacks had received promotions to

9positions as captains (total, 25) or majors (total, 6).
Plaintiffs alleged a pattern of intentional discrimination 

in hiring and promotions which violated the Fourteenth Amendment, 
as well as conduct after 1972 which was prohibited by Title VII 
of the 1964 Civil Rights Act, as amended. Extensive statistical 
analysis was performed on data gathered during the discovery

See R. Vol. XIV at 86 and R. 3260 (Vol. XI).

While various members of the plaintiff class continued to 
complain of unequal treatment up to the time of trial. R. 
689-90, 695-96, 697-98, 705, 720, 722, 726 (Vol. Ill) (affi­
davits submitted in support of Motion to Recertify Class 
Action); R. Ex. E-165, E-169, E-171-73, E-I79, E-198-99 (affi­
davits submitted in support of consent decree, see R. Vol. XIX 
at 11-12), the City believes that the number of such complaints 
has been substantially reduced.
R. Ex. 145. In 1980, the population of Orleans Parish 
between the ages of 20 and 30 was 55% black. R. 1975 (Vol. 
VIII). 67.9% of all applicants for entry-level hiring meeting 
the minimum qualifications to take the written examination were 
black. R. 3542 (Vol. XI), R. Ex. E-48 (consent decree).

4



process, and plaintiffs also submitted to the district court some
anecdotal evidence of pre-1972 actions which they claimed were

. . . 10 discriminatory.
This Court should note, at the outset, the legal distinct­

ions between, and obligations of, the City of New Orleans and the 
City Civil Service Commission. The City of New Orleans controls 
all aspects of the New Orleans Police Department except for the 
formulation and administration of the written hiring and pro­
motional examinations, pay plan administration and certain 
qualifications of employment and promotion. Formulation of the 
entrance level and promotional examinations, is the sole respon­
sibility of the Civil Service Commission.

While the City of New Orleans vigorously defended this 
lawsuit up until the time that the consent decree was agreed 
upon, it had to assess its possible liability for conduct by 
either the Police Department or the Civil Service Commission 
which might be found to have been discriminatory in light of the 
evidence which plaintiffs would tender, the strength of its own 
defense, and the record of urban police departments in defending 
discrimination lawsuits in federal courts.^ It also had to 
weigh the likelihood of a successful defense against the extent

10 This evidence consisted of affidavits from class members.
See e.g., R. 689 , 701 , 722 , 726; R. Ex. E-156, E-168-69 ,
E-171-72, E-18 0-81 , E-183-86 , E-187-92 , E-196, E-200-03. See
also R. 2145-47 (Vol. VIII) (Pre-Trial Order: plaintiffs'
proposed witnesses).

11 One court has said:
There have been many court cases finding 

[footnote continued on next page]

5



of its exposure to financial and other forms of judicial relief
if the case were litigated and the plaintiffs prevailed on all of
their claims. Plaintiffs claimed to represent more than 325
present and former police officers of New Orleans who were

12potentially entitled to back pay relief, as well as other 
individuals with similar back pay entitlements who had been 
rejected for employment with the New Orleans Police

[footnote continued from previous page]
discrimination by police departments against 
blacks. See United States v. City of 
Chicago, 549 F.2d 415 (7th Cir.), cert. 
denied, 434 U.S. 875, 98 S.Ct. 225, 54
L.Ed.2d 155 (1977); Mims v. Wilson, 514 F.2d
106 (5th Cir. 1975); Afro-American Patrolmen 
League v. Duck, 503 F.2d 294 (6th Cir. 1974);
Erie Human Relations Commission v. Tuillio,
493 F.2d 371 (3d Cir. 1974): Morrow v.
Crisler, 491 F. 2d 1053, (5th Cir. 1974);
NAACP v. Allen, 493 F.2d 1053 (5th Cir.) (en 
banc), cert, denied, 419 U.S. 895, 95 S.Ct.
173, 42 L.Ed.2a 139 (1974), Bridgeport
Guardians, Inc. v. Members of Bridgeport 
Civil Service Commission, 482 F.2d 1333 (2d
Cir. 1973), cert, denied, 421 U.S. 991, 95
S.Ct. 1997, 44 L.Ed.2d 481 (1975); United
States v. City of Buffalo, 457 F. Supp. 612 
(W.D.N.Y. 1978); League of Latin American
Citizens v. City of Santa Ana, 410 F. Supp.
873 (C.D. Cal. 1976): Officers for Justice v.
Civil Services Commission, 371 FT Supp. 1328
(N.D. Cal. 1973).
In Weber, 99 S.Ct. at 2725 n.l, the Supreme
Court took judicial notice of exclusion of 
blacks from crafts on racial grounds. This 
Court takes judicial notice of similar 
exclusion of blacks from police departments.

Baker v. City of Detroit, 483 F. Supp. 930 , 983-84 n.99 (E.D.
Mich. 1979).

12 This figure represents an unduplicated count of the names 
listed on backpay schedules submitted to the district 
court, R. 3255-64 (Vol. XI).

6



Department.^
The City concluded that the risk of an adverse liability

finding in this case was not insubstantial, a judgment which
coincides with the district court's evaluation of the strength of
the plaintiffs' claims. See 543 F. Supp. at 671-74 (".
plaintiffs need only demonstrate a reasonable factual and legal
basis for the proposed decree, a burden I find they have carried
by demonstrating a likelihood that they could establish a prima
facie case of unlawful racial discrimination sufficient to

14warrant a judicial remedy"). Accordingly, the City entered
into negotiations with the Civil Service Commission and the 
plaintiffs that resulted in submission to the trial court of a 
consent decree resolving all of the claims and limiting back pay 
liability to $300,000.00. After extensive hearings on objections 
to the consent decree by the limited intervenors, the trial court 
approved the entire decree, which "governs virtually every phase 
of an officer's employment by the New Orleans Police Depart­
ment, except for 5 VI.C.^

The only challenged portion of the consent decree relates to

See R. 3540 (Vol. XI), R. Ex. E-46 (class definition).
See id. at 672 (evidentiary standards for proving 
intentional employment discrimination); id. at 673 n.12
(continuing violation in case of failure to promote.)
543 F. Supp. at 668.
The district court approved 4[ IX.C. 2 of the consent decree,

R. 3557 (Vol. XI), R. Ex. E-61, subject to the condition that 
the parties obtain leave of court prior to utilizing the 
authority to calculate separate frequency distributions for 
black and white applicants for promotion. 543 F. Supp. at 683

7



the promotional "quota" system calling for the promotion of one 
white and one black, alternately, from eligibility rosters of 
qualified applicants for promotion until black officers consti-
tute 50% of each supervisory rank within the police depart-
ment.17 There is no entrance level "quota" or goal set, the
City of New Orleans and the Civil Service Commission having
agreed only to use good faith efforts to ensure that the percent­
age of blacks hired is reasonably close to the percentage of 
blacks applying for employment. Further, the decree provides that 
the percentage of blacks in the upper ranks of the New Orleans 
Police Department cannot exceed the percentage of blacks at the 
Police Officer level. The "quota", then, is self-limiting and was
included after much negotiation and estimation of the relief that

18might be imposed after an unsuccessful trial on the merits.
The eligibility rosters will be prepared based upon new, content- 
valid selection procedures incorporating (a) written qualifying

M  VI.A. and VI.B of the decree provide limited relief by 
requiring the immediate promotion of a specified number of 
white and black officers to newly created and funded super­
visory positions. The district court approved this relief, 
543 F. Supp. at 683-84. But this step alone would not 
substantially alter the racial composition of the supervisory 
ranks of the New Orleans Police Department. See Brief for 
Plaintiffs-Appellants, at 16, n.18.
The consent decree dees not contain any admission of 
liability. Since the decree permitted members of the plaintiff 
class to "opt out," R. 3576 (Vol. XI), R. Ex. E-82, any such 
admission could have had collateral consequences increasing the 
City's financial and other obligations. Cf, R. 3546-47 (Vol. 
XI) , R. Ex. E-52-53 ("Nor may this Decree or any action taken 
in the implementation thereof be admissible as evidence of 
discrimination . . .  in any other judicial or administrative 
proceeding . . .") .

8



examinations which, insofar as possible, have no adverse racial 
impact, and (b) the use of oral assessment center techniques to 
select candidates for promotion from among qualified
applicants.  ̂9

The City of New Orleans believes that the consent decree 
which it negotiated, including <J[ VI. C. , is a fair and appropriate 
resolution of this case which "accommodate[s] the competing 
interests of the" plaintiff class and incumbent non-black offi­
cers in the police department, Franks v. Bowman Transportation 
Company, 424 U.S. 747, 773 (1976). The district court refused to 
approve f VI.C. because of lingering doubts about the 50% goal, 
and because the court felt that the decree unnecessarily restrict­
ed the promotional opportunities of non-black incumbents over too 
long a period of time, 543 F. Supp. at 684-86.

Before turning to these concerns -- which parallel the 
arguments advanced in this Court by the limited intervenors -- 
the City wishes to emphasize what the district court apparently 
ignored: the consequences which would have resulted from a
litigated judicial finding of past discrimination in promotions. 
Such a finding, and the remedy which it would have triggered, 
would far more drastically have affected the future promotional 
opportunities of white officers than does the consent decree. We 
submit that when the decree is viewed in this context, it cannot 
properly be characterized as so "harsh," 543 F. Supp. at 685, as 19

19 Consent Decree, n  VII, IX (R. 3555-56, 3557-58 (Vol. XI),
R. Ex. E-61-62, E-63-64).

9



to justify its disapproval.
Had this case been litigated rather than settled and the

district court made a finding of liability for past racial
2 0 •discrimination in promotions, under Franks and International
21Brotherhood of Teamsters v. United States each black member

22of the police force who applied for a promotion and each
black officer who would have sought promotion if not discouraged

2 3by the existence of the discrimination is presumptively 
entitled to "make-whole" relief.* 21 * 23 24 It would have been the

424 U.S. at 763-64.
21 431 U.S. 324, 357-67 (1977).
p 9 The consent decree contains figures for three rounds of 
promotions to the rank of sergeant, which we use for illus­
trative purposes. In 1973, 44 blacks applied, of whom one was
promoted. In 1977, 44 blacks applied, of whom seven were
promoted. In 1980, 76 blacks applied, and none was promoted.
R. 3544-45 (Vol. XI), R. Ex. E-50-51.

23 See, e.g., R. 688, 718 (Vol. Ill); R. Ex. E-172, E-182.
24 Had the matter been litigated, we would also anticipate that

plaintiffs would argue for the award of similar relief at 
least to (a) those black officers whose tenure with the force 
is long enough that they could have sought promotion to a 
higher supervisory rank (e.g., lieutenant, captain or major) 
than the rank to which they had unsuccessfully applied for 
promotion (e.g., sergeant) (see, e.g., R. Ex. E-180-81, 
E-190-92, E-203-04); (b) those black officers who left the
department because of discouragement about promotional oppor­
tunities (see, e.g., R. Ex. E-192) and who desired current
reinstatement and promotion; (c) those black officers who were 
initially rejected for employment or promotion and who thereby 
were unable to apply for promotion due to time-in-rank require­
ments (see, e.g. , R~. Ex. E-178-79, E-203); and (d) those class 
members who were rejected in the past for initial employment 
with the department, who could have applied for promotion had 
they been on the force, and who desired current reinstatement 
and promotion. While we do net concede that any of these 
individuals would be entitled to court-ordered promotion, any 
[footnote continued on next page]

10



burden of the City of New Orleans and the Civil Service Com­
mission to establish that any of these individuals was not the 
victim of discrimination. Teamsters, 431 U.S. at 362 & n.50.
Enormous time and expense would have been required to try this

25portion of the lawsuit. Plaintiffs had already identified
325 past and present black officers, all of whom might either 
have applied for promotions or claimed to have foregone the 
opportunity to do so because they expected to be barred from 
consideration as a result of discrimination. Every individual 
whom defendants could not show to have been unqualified for, or 
uninterested in, promotion during the period when discrimination 
occurred, would have been entitled to promotion to the "next

[footnote continued from previous page]
decision to the contrary (in whole or in part) by the trial 
court would have expanded the scope of relief against the City 
enormously.

2 5* In 1973, the Civil Service Commission indicated that
compilation of racial statistics for entry-level applicants in 
the years 1967-70 "would be a monumental task involving the 
pulling and checking of thousands of folders," and that "[t]o 
tabulate the applicants who were certified in the last six 
years would require reconstruction of all certifications of 
approximately five to six hundred persons . . . perhaps
several months' work on a continual basis . . . . " R. 119,
124-25 (Vol. II). Moreover, "no records exist in the [Civil 
Service] Department for the period 1950 through 1967," id. at 
315, making the City's defense significantly more difficult. 
The crucial consideration is that, had the district court 
rendered a finding of liability against the City for past 
discrimination in Police Department promotions, further court 
proceedings, no matter how lengthy, would be likely only to 
narrow rather than to eliminate the City's remedial obliga­
tions to individual black officers, while consuming sub­
stantial time and resources in litigation. Cf. United States 
v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 851 n.28 (5th

\ Cir. 1975) (after finding of liability, back pay determina­
tions in steel industry cases would take 28 years of trial 
time), cert, denied sub nom. NOW, Inc. v. United States, 425 
U.S. 944 (1976).

11



vacancy" as it occurred, as well as to receive back pay from the 
time of their initial application. Most significantly, under
Franks and Teamsters these promotions for the purpose of "making 
whole" the victims of discrimination would take precedence over 
the expectations of others —  including the non—black incumbents 
within the Department.

The record in this case permits some estimate of the extent 
of relief which would have been ordered upon a finding of liabi­
lity. For example, between 1973 and 1980, 156 black officers sat
for the examination for police sergeant but were not

2 6promoted. Although some of the 1977 and 1980 examinees may
well have been repeat applicants, the number of black patrolmen
meeting the three-years-of-service requirement to take the test
increased by 20 between 1973 and 1977, and by 68 between 1977 and 

271980. A total of 221 white officers were promoted to ser-
2 8geant during the same years. It hardly seems unreasonable,

therefore, to predict that, had the promotional process within 
the Department during these years been held to violate Title VII, 
more than a hundred black officers could be found entitled to 
"rightful place" promotions to sergeant as vacancies occurred.In 
measuring the impact of the consent decree, the district * 28

See supra, note 22.
2 7 Compare R. Ex. E-146, E-147 and E-148 (Exhibits "I,", "j," 

and "K" to affidavit of James Cogley submitted by plaintiffs 
at March 8, 1982 hearing on consent decree, see R. Vol. XIX 
at 10, 12). ---

28 R. 3544-45 (Vol. XI), R. Ex. E-50-51.

12



court's expert assumed that there would be 30 vacancies for
29sergeant per year. At that rate, it would have taken more

than three years to fill vacancies for sergeant from the list of
those black officers entitled to "rightful place" promotions.
And, since promotions had been frozen during the litigation, a
total of nearly five years would have elapsed since the last
white promotion before another white police officer could be

30promoted to sergeant. Similar results could be anticipated
31at the higher ranks.

Moreover, these figures represent a conservative estimate. 
They do not, for example, take into account the claims, recog­
nized in Teamsters, of individuals who decided it would be futile 
to seek promotion, those who may assert that they would have been 
eligible for promotion if they had not been discriminatorily
rejected for initial employment with the force, or those who

3 2would claim an earlier entitlement to promotion. Similarly,

R. Ex. E-220 (report of Dr. Melville Wolfson, p. 5).
On January 5, 1981, the plaintiffs in this case sought a 
temporary restraining order and preliminary injunction to 
block future promotions pending disposition of the action. R. 
1090-95 (Vol. VI). A stipulated order covering promotions to 
sergeant and lieutenant was entered January 12, 1981, R. 1488
(Vol. VI) and a separate stipulation covering the ranks of 
captain and major on August 25, 1981, R. 2083 (Vol. VIII). in 
the absence of the agreement on the consent decree, trial of 
the liability phase of the case would have begun in the fall 
of 1981. It is doubtful that trial and decision of the remedy 
phase could have been completed before the end of 1982.
Cf. R. Ex. 119-21 (affidavit of Dr. Elbert Lee Hoffman 
submitted by plaintiffs at March 8, 1982, hearing on 
consent decree, see R. Vol. XIX at 9, 12)
See supra, notes 27, 28 and accompanying text.

13



the projected time frame is dependent upon an assumption about
the rate of vacancies which did not consider a shift in the
City's retirement policies which could slow the turnover in

33supervisory ranks.
It is obvious that the promotion of only black officers for 

periods in excess of five years would result in a significant 
morale problem for the New Orleans Police Department and would 
tend to exacerbate racial tensions. It was thus a reasonable and 
desirable compromise for the parties to agree upon the relief 
specified in the consent decree, including specifically VI. C. , 
which preserves 50% of promotions to fill supervisory vacancies 
for white officers during its entire effective life while creat­
ing a dependable mechanism to redress the previous severe under­
representation of black officers in the higher ranks of the 
Department.

In the interest of avoiding further litigation and obtaining 
certainty of remedy, the plaintiff class has postponed effect­
uation of relief for some of its members. The City, for its 
part, has been able to limit its financial obligation to a known 
sum and has retained control over the selection of supervisory 
officers (from eligibility lists to be constructed on a nondis- 
criminatory basis) . The citizens of New Orleans are the true 
beneficiaries of the consent decree. A better integrated police 
force, more reflective of the Orleans Parish population and labor 
market, will result from complete implementation of the decree --

R. Vol. XIV at 142-45 (Dr. Wolfson).

14



one better able to perform its public safety functions and to 
secure vital community cooperation."^

Yet the decree also seeks to avoid racial divisiveness by

34 The City of New Orleans recognizes that a fully integrated 
police force reflective of the racial diversity of its pop­
ulation is legally desirable, morally correct, and advant­
ageous to performance of the policing function, and as the 
consent decree itself recites (R. 3546 (Vol. XI), R. Ex.
E-52) :

will foster the ability of NOPD to gain 
the respect, trust and willing coop­
eration of the citizens of the City of 
New Orleans and thereby improve the 
effectiveness of the NOPD in providing 
police services.

The connection between minority representation and effective 
public safety in areas having a substantial minority popu­
lation has been recognized by this and many other courts. 
E.g., Boston Chapter, NAACP v. Beecher, 679 F.2a 965, 977 (1st 
Cir. 1982), cert, granted, 51 U.S.L.W. 3339 (U.S. Nov. 2,
1982): Talbert v. City of Richmond, 648 F.2d 925, 931 (4th
Cir. 1981); Detroit Police Officers' Ass'n v. Young, 608 F.2d 
671, 695-96 (6th Cir. 1979), cert. denied, 452 U.S. 938
(1981); NAACP v. Allen, 493 F.2d 614, 621 (5th Cir. 1974)
(quoting with approval Bridgeport Guardians, Inc, v. Bridge­
port Civil Serv. Comm'n, 482 F. 2d 1333, 1341 (2d Cir. 1973)
[appeal on remand, 497 F.2d 1113 (2d Cir. 1974), cert, denied, 
421 U.S. 991 (1975)]); Baker v. City of Detroit, 483 F. Supp.
930, 995-1000 (E.D. Mich. 1979). It has also been the subject 
of numerous official reports. E.g., U.S. Comm'n on Civil 
Rights, Confronting Racial Isolation in Miami 290 (1982); U.S. 
Comm'n on Civil Rights, Who is Guarding the Guardians: A
Report on Police Practices 5 (1981); U.S. Comm'n on CiviT
Rights, Police Practices and the Preservation of Civil 
Rights 42 (1978); Nat'1 Advisory Comm'n on Criminal Justice
Standards and Gcals, Police (1973); EEOC Legislative History 
of the Equal Employment Opportunity Act of 1972 1116 (1972);
S. Rep. No. 92-415, 92d Cong., 1st Sess. 10 (1971) (legisl­
ative history of 1972 Title VII amendments); H.R. Rep. No. 
92-238, 92d Cong., 1st Sess. 17 (1971) (same); Nat'1 Comm'n on 
the Causes and Prevention of Violence, Final Report: To 
Establish Justice, To Ensure Domestic Tranquility (1969); 
Report of the Nat'l Advisory Comm'n on Civil Disorders 300-01 
(1968); National Advisory Comm'n on Law Enforcement and 
Administration of Justice, Task Force Report: The Police
144-45, 167, 171-73 (1967).

15



protecting promotional opportunities for non-black incumbents 
rather than definitely suspending them as might be done under a 
litigated Order.

As we show in the next section, the district court's reasons
for rejecting <J[ VI. C. of the decree are unconvincing. The
underlying rationale of that provision is, as demonstrated above,
"making whole" the victims of discrimination. Since the consent
decree represents a reasonable and equitable compromise of a
lawsuit which —  if allowed to continue to an award of judicially
fashioned relief -- could well have imposed much higher social

3 5and financial costs upon the citizens of New Orleans, the 
panel acted properly in reversing the trial court.

II
The Reasons Given By The District Court For Refusing 

To Enter The Consent Decree Are Inadequate
The panel majority correctly reversed the judgment below and 

instructed the trial court to enter the Consent Decree. As we 
have shown above, the decree embodies a fair and reasonable 
compromise of the claims raised in this lawsuit and is responsive 
to the interests of all parties and of the citizens of New 
Orleans. In this section we deal briefly with each of the 
grounds given by the district court for refusing to approve 
®[VI.C., which the panel majority correctly held are inadequate

Cf. Connor v. Johnson, 402 U.S. 690 (1971) (preference for 
single-member districts in judicially fashioned reapportionment 
plans.)

16



bases for the lower Court's action.
A. The 50% goal. The district court's first reason for 

disapproving f VI.C. was that "the target of fifty percent black 
representation in all ranks is unsupported by evidence in the

3 6

record." 543 F. Supp. at 6 84. There are two possible inter-
pretations of the court's discussion on this point, id. at
684-685. The first is that the court considered Dr. Bendick's
estimation of the proportion of blacks in the relevant labor
market, upon which plaintiffs heavily relied in seeking to
justify the target percentage, to be fundamentally flawed because 
"Dr. Bendick confined the relevant labor market to Orleans 
Parish." Id. at 684. Thus, the district judge observed that "in 
the past the defendants have regularly solicited applications

We note the disagreement between plaintiffs-appellants 
the panel majority about the appropriate standard of review —  
as well as the contention of the limited intervenors that the 
panel majority actually exercised "de novo" review in the 
guise of determining whether there was an "abuse of 
discretion." The City does not perceive the need for "de 
novo" review, for assuming arguendo that the proper standard 
is "abuse of discretion," the Supreme Court's admonition in 
Albermarle Paper Co. v. Moody, 422 U.S. 405, 416-17 (1975) is
equally applicable to this case:

[S]uch discretionary choices are not left to 
a court's inclination, but to its judgment; 
and its judgment is to be guided by sound 
legal principles." United States v. Burr, 25 
F. Cas. 30, 35 (C.C. Va. 1807) (Marshall,
C.J.). . . . That the court's discretion is
equitable in nature, see Curtis v. Loether,
415 U.S. 189 , 197 (1974), hardly means that
it is unfettered by meaningful standards or 
shielded from thorough appellate review. . .
The District Court's decision must therefore 
be measured against the purposes which inform 
Title VII.

17



from outside the parish to meet their personnel demands. . . . 
Evidence adduced at the hearing indicated that the City does not 
require applicants to be residents of Orleans Parish, but only 
requires that officers move inside the parish within one year of 
hiring. In some cases, this requirement is waived by the City." 
Id.

If this was intended to be a finding that the relevant labor 
market for New Orleans Police Department officers includes 
substantial areas outside Orleans Parish, it is clearly erron­
eous. As the panel majority noted, state statute requires that 
preference in hiring be given to city residents. 694 F.2d at 
994.j6a The statute has been implemented by ordinance of the

36a L. S. A. - R. S. 33:2411, R. 2022 (Vol. VIII), provides, 
in relevant part:

Tests of fitness for original entrance 
and for promotion shall be competitive, 
and open to all citizens who, if over 
twenty-one years of age, are qualified 
voters of the City and who meet the 
prerequisite established for admission 
to the tests as specified in the rules 
or in the public notices of the tests. .
. . Whenever, after diligent effort, it
has been found impracticable to obtain a 
sufficient number of eligibles who are 
citizens and, if over twenty-one years 
of age, are qualified voters of the 
City, for positions of any class, 
persons otherwise qualified who are not 
citizens may be admitted and may become 
eligible for appointment. . . .

The statute has accorded preference in hiring to City resid­
ents "[a]t least since August 1951," R. 1960 § 9 (Vcl. VIII).

18



New Orleans City Council and by official policy memo- 
3 8randum. Hiring outside Orleans Parish is permitted only when

the supply of qualified applicants from within the City is
inadequate. Although there has been some employment of police

39officers residing outside New Orleans in the recent past, 
non-residents have not made up a significant proportion of new 
hires. ̂  Since the city is bound as a matter of law to seek

3 7

R. 2025 (Vol. VIII).
R. 2024 (Vol. VIII). See also R. Vol. 19 at 195-96 
testimony of Assistant Chief Administrative Officer Leroy 
Auccin).
John Belsom, the Director of Personnel for the Department 
of Civil Service, City of New Orleans, testified at the 
hearings on the consent decree as follows:

At various times in the past there had 
been a residency waiver for the purpose 
of qualifying for the test. In the 
early '70's, we concentrated our efforts 
within Orleans Parish, but by 1980, 
because of the difficulties in re­
cruiting, we amended that announcement, 
or we put out a new announcement at that 
time which broadened the recruitment 
effort to outside Orleans Parish.
Q. So the cause of the waiver, then, is 
because you couldn't find enough people 
who you believed to be qualified?
A. That was the problem at that time.

R. Vol. 18 at 82.
^  Mr. Belsom also stated (R. Vol. 18 at 83):

THE COURT: Can you tell me the approximate
percentage of officers that have 
come since 1980 out of parishes 
other than Orleans? Do you have 
any statistics?

[footnote continued on next page]

19



out and hire qualified residents of Orleans Parish, limiting the
definition of the relevant labor market to that area is not

41merely supported, it is compelled by the record evidence.
The second reading of the district court's discussion on 

this point is that the court thought Dr. Bendick's figures were 
distorted by the use of applicant flow statistics since "the 
defendants have engaged in a special effort to recruit blacks 
[and] . . . applicant data therefore may not convey an accurate 
picture of the actual labor market for the NOPD." 543 F. Supp. 
at 684. We think, however, that the district court's concern is 
exaggerated. Orleans Parish was 45% black in 1970 and prelim­
inary figures estimate is 1980 population to be 55% black. R.

THE WITNESSES: I don't have any with me. My
impression would be that it 
would be rather low, but I don't 
have anything with me.

A review of all Police Department logs of applicants referred 
for background investigation from 1979-82 indicated that more 
than 90% were residents of Orleans Parish. R. 3452-53 (Vol. 
XI), R. Ex. E-239-40. Since such referrals are made only 
after an applicant has passed the written examination (R. Vol. 
T9 at 77-81) and since during the period 1979-80 black appli­
cants failed the test at rates more than twice as high as 
those for whites (R. 3542 (Vol. XI) , R. Ex. E-48) , it is 
reasonable to anticipate that in the future -- using valid 
tests developed under the consent decree that "will measurably 
improve the predictive ability of [the] selection procedures 
for police officers," id. at 3546 (Vol. XI), R. Ex. at E-52 -- 
non-residents of the City will constitute only a minute 
portion of the labor pool for police officers.
The Sixth Circuit has observed, in upholding a voluntary 
affirmative action program, that a residency requirement and 
the fact that the police department "served a city-only 
population" makes a racial percentage comparison with the city 
population and labor market "eminently proper". Detroit Police 
Officers Association v. Young, 608 F. 2d 671 , 688 (6th Cr.
1979) .

20



1975 (Vol. VIII).
Since the City must by statute give preference to its own

residents, recruiting efforts directed toward blacks inevitably
reach a substantial portion of the same population as would

42recruiting directed toward city residents. Since 1977 blacks
have submitted more than 65% of all applicantions for hire into
the Police Department and have made up more than 64% of

43applicants taking the written examination. The consent
decree reduces the goal to correspond more closely with pop­
ulation statistics, thus correcting for any distortion in ap­
plicant flow data. The target percentage is thus eminently
defensible.

The district court's view of the 50% target percentage 
overlooks the self-correcting nature of the consent decree. 
Other provisions of the decree (to which the trial court had no 
objection) require nondiscriminatory testing, selection and
hiring procedures to be instituted. If these nondiscriminatory 
methods -- as applied to the actual labor market for New Orleans 
police officers in the future -- do not, in fact, produce a pool 
of individuals potentially eligible to seek promotion which is 
50% black (if the ranks of police officers do not increase to 50%
black), then under the explicit language of SI VI. C. , the 1:1

See 543 F. Supp. at 684 ("Most of the areas outside
Orleans Parish from which recruits are drawn evidently lack
substantial black populations").
R. 3541-42 (Vol. XI), R. Ex. E-47-48.

21



promotion requirements of the decree will be inoperative.
In addition to this "self-correcting" feature of the consent

decree, modification of the decree in order to lower the percent-
45age promotional goals is continuously available pursuant to

46 • ■the District Court's retained jurisdiction. Later revision
of the decree under appropriate circumstances is a far better
course of action than withholding approval of the decree,
especially since the district court's reservations about the
figure were expressed no more strongly than in the comment "that
the percentage of blacks expected in each rank is somewhat lower

47than Dr. Bendick's generally helpful projection."
B. The "harsh" impact on non-black incumbents. The dist­

rict court's second basis for disapproving SI VI.C. was its view 
that the 1:1 promotion quota is a "harsh" measure making "a * 46

§ VI. C. or the decree states (R. 3554 (Vol. XI), R. Ex.
E-60) :

At no time must blacks be promoted on this 
basis [1:1] if to do so will result in a 
proportion of black officers in the rank of 
sergeant, lieutenant, captain or major, 
separately considered, that exceeds the 
proportion of blacks then occupying the rank 
of police officer.

Consent decree, § XVII, R. 3569 (Vol. XI) , R. Ex. E-75.
46 Quota lowering was done in United States v, City of Chicago, 

663 F. 2d 1354 (7th Cir. 1981). The percentage requirement for 
blacks in rank positions was lowered in light of the lower 
hiring achieved under non-discriminatory entrance standards. 
The Court noted, however, that "the long run aspiration and 
objective that the racial composition of the police force as a 
whole should match that of the City's work force" was one from 
which it "would not retreat." Ici at 1361.

4  ̂ 543 F. Supp. at 685.

22



nonblack officer's chances for promotion under the decree 
slim," a "disabling impact . . . seriously aggravated by the 
decree's duration," estimated by Dr. Wolfson to be twelve years. 
543 F. Supp. at 685. As we have discussed above, the consent
decree's 1:1 promotion formula expressly seeks to preserve

. . . 48opportunities for the elevation of white (and Hispanic )
officers to the supervisory ranks of the police department

4 9throughout its effective life. It is a far less "harsh"
remedy than might well be expected to follow upon a judicial 
ruling on liability and the formulation of "rightful place" 
relief for individual black officers found to be the victims of 
discriminatory practices. See discussion at pp. 9-14 supra.

The District Court observed that "nonblacks predominate at 
every echelon on the NOPD," 543 F. Supp. at 685. The allegation 
of the plaintiffs in this action is that this condition results 
from intentional racial discrimination against blacks in hiring 
and promotion. The district court recognized that plaintiffs' 
evidence established at least a prima facie case in support of 
their allegations, id. at 674. It is unrealistic to believe that 
such a lawsuit can be settled without granting to the plaintiff

Almost all Hispanic officers of the New Orleans police
force identified themselves as "white/Caucasian" on their
employment applications. R. Ex. E-152-55.
Significantly, § VI.B.2 of the consent decree (R. 3553 
Vol. XI) , R. Ex. E-59) and the amendment thereto call for the 
immediate promotion of nine white officers to sergeant, three 
white officers to lieutenant, and two white officers to 
captain. These promotions have already been effected by 
amendment to the decree with the approval of the District 
Court. R. 3574-75 (Vol XI), Dec. 23, 1982.

23



class some relief which "conflict[s] with the economic interest
of other [police department] employees." Franks, 424 U.S. at
773. "[T]he burden of the [alleged] discrimination in hiring is
. . . divided among [putative] discriminatee and nondiscrim- 
inatee employees under the form of relief" embodied in the
consent decree. Id. at 777. "At least in the early years of the
decree," 543 F. Supp. at 685 , those promoted under SI VI.C. are 
most likely to be the same individuals who would have the strong­
est claims to "rightful place" relief after a finding of liabil- 

50ity, while those nonblack officers whose promotional expect­
ations may be delayed are most likely to be persons holding 
"positions they would not have obtained but for the [alleged]
illegal discrimination . . . ," Franks, 424 U.S. at 776. In
later years, should the proportion of blacks in the pool of 
entry-level police officers increase to 50%, then the proportion 
of blacks receiving promotions will approximate the results to be 
expected from the unbiased application of valid selection instru­
ments and procedures to be developed and implemented under the 
consent decree. (If the proportion of blacks in the "police 
officer" pool does not increase, then the 1:1 promotion require­
ment will be inoperative.)

This Court should also take note that no New Orleans police 
officer has a "vested right" in a promotional opportunity in the 
New Orleans Police Department outside of his or her right to have

50 The decree (<J[ VII) retains experience requirements as 
qualifications for promotion. R. 3555-56 (Vol. XI), R. Ex. 
E-61-62



the eligibility list remain in existence for its mandatory six- 
month life. Rodriguez v. City Civil Service Commission, 337 So. 
2d 308 (La. App. 4th Cir. 1976).51 This lack of a "vested 
right" standing in opposition to the promotional goal relief of 
the consent decree makes arguments for the "promotional expect­
ations" of the non-black intervenors much less compelling and 
significantly different from the vested seniority rights at issue 
in Franks and Teamsters, supra.

As for the duration of the decree, we think it evident from 
what has earlier been said that the decree's reservation of half 
the promotions for white officers represents a better bargain for 
them than they could anticipate in the case of judicially crafted 
"rightful place" relief in this case. Cf. United Steelworkers of 
America v. Weber, 443 U.S. 193 , 208 ( 1 9 7 9 ) . If the district

The mechanics of a promotion within the New Orleans Police 
Department begin with the formulation and administering of the 
promotional exam by the Civil Service Commission. The pro­
motional list generated is required to remain in existence for 
not less than six months and not longer than three years. This 
list is presented to the appointing authority, in this case 
the Superintendent of the New Orleans Police Department, who 
must choose an appointee from the first three names on the 
list and may, at his discretion, "pass-over" the other two 
names. Any candidate "passed-over" three times is auto­
matically eliminated from the list. City Civil Service Rule 
VI.
In Weber the Supreme Court upheld a race-conscious vol- 
untary affirmative action plan, stating that it

does not unnecessarily trammel the interests 
of the white employees. The plan does not 
require the discharge of white workers and 
their replacement with new black hires.
[citation omitted.] Nor does the plan create 
an absolute bar to the advancement of 
[footnote continued on next page]

25



court had rendered a liability finding and were fashioning a
judicial remedy, the suggestion of the plaintiffs that it simply

53accelerate the rate of promotions for blacks might be appro­
priate. Since the court was passing upon a proposed settlement 
of the litigation, once it concluded that the decree was within 
the range of remedies which a court might have ordered had 
plaintiffs prevailed on their case, the court should not have 
substituted its own judgment for the bargain struck among the 
parties.

C. The "necessity" for quota relief. The district court's 
final justification for rejecting <[[ VI.C. was that it was "un­
necessary" to afford relief to the plaintiffs. We agree with the 
panel majority that the court erred as a matter of law in 
measuring the consent decree by this yardstick. Such a standard, 
if faithfully applied, would require a full trial on liability in 
order to establish the precise nature and extent of the violat­
ion, for only then can the "necessary" contours of the remedy be 
delineated. Cf. Swann v. Charlotte-Mecklenburg Board of Educa- 
tion, 402 U.S. 1, 16 (1971). The correct standards have been
announced by this Court and are described infra at p. 43 n.76.

Even were the district court right about the standard, it 
failed to ground its judgment about what relief was "necessary"

[footnote continued from previous page]
white employees; half of those trained in 
the program will be white.

Brief for Plaintiffs-Appellants at 35.

26



upon a careful comparison of remedy and violation. In so doing, 
it overlooked what the cases teach is one of the primary purposes 
of Title VII: to make whole those parties who were victimized by 
discriminatory practices. Albermarle Paper' Company v. Moody, 422 
U.S. at 418-22; Franks, 424 U.S. at 763-71. See note 20 supra. 
The lower court's entire discussion of the adequacy of the 
"remainder of the settlement," 543 F. Supp. at 685, focuses upon 
prospective relief, except for the limited backpay fund and the 
initial promotion of 44 black officers to supervisory rank. Id., 
n. 33 & accompanying text. As is apparent from the discussion in 
the preceding section of this brief, in the negotiations which 
resulted in formulation of the consent decree, the plaintiffs 
pressed for a significant measure of "make whole" relief in 
addition to prospective remedies. To say that such relief is 
"unnecessary" is either to make a finding of limited liability 
without a trial or to substitute the court's own judgment for the 
bargain struck among the parties. Both courses are equally 
subject to reversal.

For the reasons stated, we submit that the panel correctly 
rejected the district court's bases for refusing to approve the 
consent decree in this case.

III.
The Contentions 

Raised By The United 
States Are Without Merit

We turn, finally, to the arguments raised, for the first 
time in this litigation, by the United States in its Suggestion

27



5 4for Rehearing En Banc. The government suggests that, were
the district court to require the implementation of S[ VI. C. 
(either by approving the consent decree or by adjudicating 
liability and mandating similar quota relief), the lower court 
would violate § 706(g) of Title VII, 42 U.S.C.
§2000e-5(g) and the equal protection component of the Fifth 
Amendment's Due Process Clause. These broad arguments are 
contrary to the consistent interpretation of the statute and the 
Constitution by all of the Courts of Appeals, the City of New

One argument briefly touched on by the government (Sug­
gestion of Rehearing En Banc, at 17-20) is that § VI. C. of 
the consent decree is "inequitable" and unfairly affects the 
interests of non-black incumbents. This is essentially a 
restatement of the district court's view that the 1:1 
promotion quota was too "harsh," and has been addressed in 
earlier portions of this brief.
The only novel feature of the government's presentation on 
this point is its reliance upon Ford Motor Co. v. EEOC, 50 
U.S.L.W. 4937 (U.S. June 28, 1982). That case, of course, did 
not concern the final settlement of an employment discrimi­
nation suit. Rather, it involved the issue of what unilateral 
action a defendant employer in such a case should be required 
to take in order to toll the accrual of back pay liability to 
rejected job applicants. Because the employer would continue 
to contest liability and might ultimately prevail, the Supreme 
Court held that it would be inappropriate to insist that the 
employer offer retroactive seniority to the date of applica­
tion, as well as reinstatement, pendente lite, in order to 
toll back pay accrual. The Court expressly noted that such a 
rule might result in the layoff of another worker in favor of 
the job claimant while the case was pending, although 
ultimately the employer may be determined to be free of
liability for any discriminatory practices. Id. at 4942. We 
understand the Court's statement that "'"the large object­
ives" ' of Title VII . . . [do not] require innocent employees
to carry such a heavy burden" to refer to the burden imposed
on third parties pendente lite by a requirement that 
retroactive seniority be offered. In contrast, Franks and 
Teamsters make clear that the final judgment in an""imployment 
discrimination action action under Title VII may include
relief which affects the interests of third parties.

28



Orleans' understanding of its obligation to assure equal employ­
ment opportunity, and previous directives of the United States

55Department of Justice. Their application to this case will
require the demotion of black and white police officers from
supervisory rank^ ̂ and will thrust the City back into major
contested litigation which will consume time and resources which
the City could better expend on other problems. Indeed, the

5 7approach now pressed by the United States would make it 
unlikely that any Title VII suit against a public employer can be 
settled. Surely Congress intended to do more, in enacting Title 
VII in 1964 and extending it to public agencies in 1972, than

The Court's attention is called to the letters appended 
to this brief dated June 27, 1974 and March 15, 1977, from the 
United States Department of Justice, Law Enforcement Assist­
ance Administration, to the then-Superintendant of the New 
Orleans Police Department, and particularly to page 8, Section 
5 of the letter of June 27, requesting the submission of an 
affirmative action plan as a remedy for the underrepresent­
ation of blacks on the New Orleans Police Department.
Although the government does "not address" portions of the 
consent decree other than § VI.C. (Suggestion of Rehearing En 
Banc, at 7 n. 3), if the Court accepts its interpretation of § 
706(g) or the Constitution its holding would clearly apply to 
the immediate promotions mandated by SI VI. A. and B. of the 
decree as well. That portion of the decree has already been 
partially implemented after the decree was entered by the 
district court on remand from the panel's initial decision in 
this matter, on December 21, 1982. R. 3539-71 (Vol. XI). 9
white and 13 black officers have been promoted to the rank of 
sergeant; and 2 white officers and 1 black officer to the rank 
of captain. These promotions must be voided if the govern­
ments' interpretation prevails.
It is worthy of some notice that the position urged bv the 
United States is contrary to the government's consistent 
interpretation of Title VII and the Fourteenth Amendment prior 
to 1981; the government now seeks to have this Court overrule 
holdings which it sought and defended in cases it initiated, 
e.g. United States v. City of Alexandria, 614 F.2d 1358 (5th 
Cir. 1980). See Suggestion of Rehearing En Banc, at 21 n.ll.

29



5 8merely to encourage protracted litigation. Yet the govern­
ment's approach insures this result by insisting upon an ad­
judicated "rightful place" determination before any affirmative, 
race-conscious relief may be undertaken.

A. Extent of the district court's authority to approve a
consent decree. Relying upon System Federation No. 91 v.

59Wright, the government suggests that a court may not approve 
a consent decree unless it contains all of the elements which 
would be required had the court itself decided to order into 
effect the remedial portions of the decree after contested 
litigation.®® We think, with all due respect, that the govern­
ment confuses the power of the court to adjudicate within a 
specific subject matter area and the formal prerequisites which 
may be necessary, as a matter of substantive law, to support a 
particular form of relief in a contested suit. So long as the 
court has subject matter jurisdiction, it may approve a consent 
decree without reciting liability findings or making specific 
factual determinations that might be necessary in litigated 
cases. Swift & Company v. United States, 276 U.S. 311, 325-27,
329-30 (1928). See also NLRB v. Ocho Fertilizer Corporation, 368 
U.S. 318, 323 (1961) (" . . . consent makes a significant differ­
ence; it relieves the Board of the very necessity of making a * 59

See Teamsters, 431 U.S. at 364-67 and cases cited.
59 364 U.S. 642 (1961).
6 0 Suggestion of Rehearing En Banc, at 7 n.2.

30



supporting record")
This Court itself has held that specific findings of past 

illegal conduct are not constitutionally required before race­
conscious decisions can be made in a consent decree in a Title 
VII action, and that a race-conscious remedy therein need only 
prove itself reasonable to be constitutional. United States v. 
City of Miami, 614 F. 2d 1322, (5th Cir. 1981)

This is not to say that the statute which forms the basis of 
the court's subject matter jurisdiction is lacking in signific­
ance. For example, an employer and union could not use a pending 
Title VII action to fashion a consent decree dealing with their 
bargaining relationship under the National Labor Relations Act, 
absent some demonstrated connection to an alleged discriminatory 
action by either which was litigable under Title VII. Cf. United 
States v. Motor Vehicle Manufactures Association, 643 F. 2d 644, 
651 (9th Cir. 1981) (district court which denied motion to extend 
life of consent decree erred "in basing its decision upon such a 
broadly construed view of the public interest" rather than the 
original purpose of the parties insofar as consistent with the 
Sherman Act).

These principles have been given frequent application in 
discrimination cases -- including Title VII cases. E.g., Metro­
politan Housing Development Corporation v. Village of Arlington

The System Federation decision is not to the contrary. That 
case holds only that a consent decree in a Railway Labor Act 
suit is subject to future modification consistent with changes 
in the statute which gives the federal court the subject 
matter jurisdiction to approve the decree in the first place.

31



Heights, 616 F.2d 1006, 1014-15 (7th Cir. 1980) (housing); 
Armstrong v. Board of School Directors, 616 F.2d 305 (7th Cir. 
1980) (school desegregation; Moore v. City of San Jose, 615 F.2a 
1265, 1271-72 (9th Cir. 1980) (employment discrimination case; 
court rejects argument that consent decree should be judged by 
same standards as litigated judgment and be disapproved because 
findings were "inadequate to support a conclusion that the 
Assistant Policewomen [who would receive retroactive seniority] 
were the victims of discrimination"); EEOC v. Safeway Stores, 
Inc., 611 F.2d 795, 799 (10th Cir. 1979), cert, denied, 446 U.S. 
952 (1980) ("... to argue that the terms of a consent decree may 
not vary from the statutory limits of Title VII is to misconceive 
the nature of consent decrees and to ignore the strong policy 
embodied in Title VII in favor of voluntary settlements . . . . 
of course, the statute may provide the bread outlines of the 
objectives to be reached and the mechanisms to be used. This 
court would not countenance governmental coercion in directions 
wholly outside the purview of Congressional pronouncements under 
the aegis of consent decree negotiations"); Airline Stewards and 
Stewardesses Association v, American Airlines, Inc., 573 F.2d 
960 , 963 (7th Cir.), cert, denied, 439 U.S. 876 (1978) ("We 
believe that the issues raised by the intervenor should not be 
decided on the basis of Title VII law, but rather must be decided 
on the basis of legal principles regulating judicial review of 
settlement agreements"); EEOC v. American Telephone & Telegraph 
Company, 556 F.2d 167, 173-74, 178 (3d Cir. 1977), cert, denied, 
438 U.S. 915 (1978); United States y. City of Jackson, 519 F. 2d

32



1147, 1151-52 (5th Cir. 1975).
Were the law as the government suggests, no case would ever 

6 2be settled. The United States itself, even since 1980, has
entered into consent decrees calling for race-conscious affirm­
ative relief without admissions of liability or rightful place 
determinations. For example, in Luevano v. Campbell, 93 F.R.D. 
68, 81 (D.D.C. 1981), the government signed a consent decree
which committed the federal Office of Personnel Management to 
refer two named plaintiffs, who had not passed the written PACE 
examination, "to agencies for specific PACE occupations in which 
they have indicated an interest and for which they are quali­
fied." There was no finding that use of the PACE was unlawful, 
see id. at 82, nor a determination of how high the two would have 
been on the rank-order list of applicants eligible for referral,

See Airline Stewards and Stewardesses, 573 F.2d at 
963-64:

It seems to us beyond any serious 
dispute that no reasonable parties are 
going to settle any case if an inter- 
venor can force them to litigate separ­
ately the merits of each claim. The 
rule urged by the intervenor would most 
seriously discourage efforts to settle 
Title VII cases, and we refuse to 
sanction such a result.
The only argument that intervenor offers 
to support a contrary result is that the 
district court had a duty to consider 
the interests of the incumbent employees 
before approving the settlement, 
[citations omitted] We have no quarrel 
with that general proposition, but it 
certainly does not lead to the con­
clusion that the court had a duty to 
litigate the merits of that plaintiffs' 
claims prior to approving the settle­
ment .

33



see id. at 73. Neither the absence of an admission of liability,
see id. at 92, nor the lack of specific identification of the 
"victims of discrimination" prevented the government from agree­
ing to, or the court from approving, a consent decree calling for 
substantial race-conscious affirmative action: "to use 'all 
practicable efforts' to eliminate any adverse impact against 
class members" from continued use of the PACE exam, Id. at 79. 
Later that year the United States agreed to a consent decree 
providing affirmative relief without an admission of liability or 
individual determinations of discrimination in United States v. 
Jefferson County, 28 FEP Cases 1834, 1836-39 (N. D. Ala. 1981).

Similarly, it is well settled that "[ajbsent a constitu­
tional violation there would be no basis for judicially ordering 
assignment of students on a racial basis," Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. at 28; Pasadena City 
Board of Education, 427 U.S. 424, 434 (1976). Yet the government 
has continued to negotiate consent decrees in school desegreg­
ation actions which incorporate attendance area alterations and 
other steps to change the racial composition of schools, despite 
the absence of a finding cr admission of any underlying constitu­
tional violation. E.g., United States v. South Bend Community 
School Corporation, 511 F. Supp. 1352 (N.D. Ind. 1981), aff'd, 
692 F.2d 623 (7th Cir. 1982).

Thus, even apart from the validity vel non of the govern­
ment's interpretation of Title VII, the district court could have 
approved the entire consent decree utilizing the established 
framework provided for judging a consent decree's compliance with

34



law.
B. The meaning of § 706(g). The United States suggests

that the last sentence of § 706 (g) operates as a limitation on 
the remedial authority of federal courts in Title VII cases and 
bars the quota promotion relief embodied in $ VI. C. of the con­
sent decree. This can hardly be considered a contemporaneous 
interpretation of the statutory language by an administrative 
agency charged with its enforcement which is due any significant 
measure of deference, see General Electric Company v. Gilbert, 
429 U.S. 125, 142-43 (1976). Until very recently the govern­
ment's position was precisely to the contrary. See, e.g., United 
States v. Ironworkers Local 86, 443 F.2d 544, 552-53 (9th Cir.), 
cert, denied, 404 U.S. 984 (1971) (joint apprenticeships and
training committees ordered "to select and indenture sufficient

6 3black applicants to overcome past discrimination")' 42 Op.
Att'y Gen. No. 37 (Sept. 22, 1969).

The federal courts have not construed § 706 (g) to limit
their authority to impose temporary quota relief, e.g., Thompson
v. Sawyer, 678 F.2d 257, 293-94 (D.C. Cir. 1982) (sustaining

64quota relief under §706 (g) ) , and cases cited , but have con-

In Ironworkers the government defended the affirmative re­
lief under the decree on appeal against an attack based on 
§703 (j) and apparently made no suggestion to the Court of 
Appeals that its reading of § 706(g) was too broad.
The Thompson court stated that it would "join our sister 
circuits in recognizing the acceptability of interim quotas 
in Title VII relief," 678 F.2d at 294 and cited the following 
cases, id. n. 39: Chisholm v. United States Postal Serv., 665
F. 2d 482, 498-99 (4th Cir. 1981); United States v. City of 
Chicago, 663 F.2d 1354 (7th Cir. 1981); Association Against 

[footnote continued to next page]

35



sistently ordered such relief where necessary to eliminate the 
continuing effects of past discrimination. The precise constr­
uction of § 706(g) here urged has been rejected, EEOC v. American 
Telephone & Telegraph Company, 556 F.2d at 174-77, and this Court 
has itself ordered or approved quota relief against public 
agencies, e.g., Morrow v. Crisler, 419 U.S. 895 (1974); NAACP v.
Allen, 493 F.2d 614 (5th Cir. 1974). Indeed, were the avail­
ability of such relief in Title VII suits open to serious quest­
ion by defendants in discrimination cases, this party might not 
have been willing to include it in the consent decree. But it is 
the City's clear impression that the district court would have 
full power to impose quota hiring or promotion remedies had this 
matter been litigated and resulted in a finding of liability.

Class relief is a legal and appropriate remedy in cases 
where illegal discrimination against a class is demonstrated. 
The research we have conducted into the meaning and history of 
§706(g), since the issue was raised by the government, confirms

[footnote continued from previous page]
Discrimination in Employment, Inc. v. City of Bridgeport, 647 
F. 2d 256 (2d Cir.), cert, denied, 454 U.S. 897 (1981); United
States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 
1979); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 
356 (5th Cir. 1977); cert, denied, 434 U.S. 1034 (1978);
United States v. International Union of Elevator Constructors, 
538 F.2d 1012 (3d Cir. 1975); Boston Chapter, NAACP v. 
Beecher, 504 F. 2d 1017 (1st Cir. 1974); cert, denied. , 421
U.S. 910 (1975); United States v. N.L. Industries, Inc., 479 
F. 2d 354 (8th Cir. 1973); United States v. Ironworkers Local 
86; United States v. IBEW, 428 F.2d 144 (6th Cir.), cert. 
denied, 400 U.S. 943 (1970).

36



our understanding of the law. In EEOC v. AT&T, the Third Circuit 
concluded that the last sentence of the section simply bars a 
Title VII court from ordering the hiring, reinstatement or 
promotion of an individual who was previously, inter alia, 
"refused employment or advancement or was suspended or discharged 
for any reason other than discrimination . . . . " 42 U.S.C. 
§2000e-5(g). "The sentence merely preserves the employer's 
defense that the non-hire, discharge, or non-promotion was for a 
cause other than discrimination." 556 F.2d at 176.

This reading is supported by a literal reading of the words 
of the statute.65 The last sentence of § 706(g) is a limit­
ation on the broad authority to award "any other equitable relief 
as the court deems appropriate" which is conferred by the first 
sentence; such limitations in remedial statutes are to be narrow­
ly construed, as this Court has recognized. See, e.g., Coleman 
v, Sanderson Farms, Inc., 629 F.2d 1077, 1081 (5th Cir. 1980), 
and cases cited.66 It is simply not appropriate to read into 
the last sentence a limitation on the authority of a Title VII 
court to fashion affirmative quota relief running to the benefit 
of a class, because the words of the statute do not themselves

See, e.g., Consumer Product Safety Comm'n v, GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980); Reiter v. Sonotone
Corp., 442 U.S. 330, 337-38 (1979).

66 See also, e.g,
299, 311-13 (1932) 
665 F.2d 336, 340 
Beatrice Foods Co.

Piedmont & Northern Ry. v. ICC, 286 U.S,
Kamive & SonsUnited States v. J.E. Inc.

1981), and cases cited; Sexon v

v. Eastern 
1979) .

(C.C.P.A.
630 F.2d 478, 

Airlines, Inc., 474 F
486 (7th Cir. 1980); Marshall 
, Supp. 364, 368 (S.D. Fla.•  t



convey such a limitation. Moreover, the relief embodied in 
g[VI.C. of the consent decree here preserves the City's right to 
reject candidates who are unqualified for promotion, so long 
as it selects qualified candidates in sufficient numbers to 
comply with the quota; thus, the purpose of the Congress in 
enacting the last sentence of the section is preserved.

Our perception of the statute is not altered by our review 
of the legislative history; we are not convinced by the govern­
ment's argument that the Third Circuit erred in its reading, 556 
F.2d at 176-77. See Suggestion of Rehearing En Banc, at 11-12 
n.6. The remarks of Senators Humphrey and Kuchel quoted by the 
United States (id. at 10 n.4) are consistent with our understand­
ing that the last sentence of § 706(g) is a limitation on individ­
ual relief which may be ordered; they do not imply limitations on 
class-based remedies. Moreover, by the time the Congress amended 
Title VII in 1972 to apply to public employers, it had become
aware of the systemic nature of discrimination and the need for

6 7class-based relief, and the Senate rejected an amendment
which would have prevented the Attorney General from seeking

6 8race-conscious hiring or other remedies in Title VII suits.

See, e.g., H.R. Rep. No. 92-238, 92d Cong., 1st Sess.
5 (1971) , Subcomm. on Labor of the Senate Comm, on Labor ana
Public Welfare, Legislative History of the Equal Employment 
Opportunity Act of 1972 68 (Comm. Print 1972) [hereinafter
"1972 Legislative History"]; S. Rep. 92-415, 92d Cong., 1st
Sess. 5 (1971), 1972 Legislative History at 414.
The government argues, Suggestion of Rehearing En Banc, at 
11-12 n.6, that Senator Ervin's amendment was not concerned
with what relief was available from a court. It is true 

[footnote continued to next page]

38



We will not dwell further on the legislative history. We 
anticipate that the plaintiffs will treat it exhaustively. 
Suffice it to be said that the legislative history of the Civil 
Rights Act has always been read in light of the Act's remedial 
purpose and with the understanding that the very breadth of the 
statutory language is an important indication of the range of 
remedies which a Court may apply under it. Regents of the 
University of California v. Bakke; 438 U.S. 265 (1978), United 
Steelworkers of America v. Weber, 443 U.S. 193 (1979).

Finally, we submit that just as it has read words into the 
last sentence of § 706(g) which do not appear in the statute, the 
government overreaches in its interpretation of Franks and 
Teamsters. The Supreme Court's allocation of the evidentiary and 
proof burdens upon class members seeking retroactive seniority or 
transfer relief identifying them individually is exactly what is

[footnote continued from previous page]
that Senator Ervin did not mention court orders in his remarks 
when the amendment was called up for consideration. See 1972 
Legislative History, at 1042-45. However, Senator Javits 
immediately pointed out that the amendment would restrict the 
Attorney General from seeking court orders granting such 
relief, id. at 1046, and made specific reference to -- and had 
reprinted In the Congressional Record -- the Ironworkers case 
brought by the United States. Id. at 1048, 1063-70. Senator
Ervin did not disavow the reach of his amendment prior to the 
vote, see id. at 1070-73, and the amendment was defeated, id. 
at 1075”!! Obviously, for Senator Javits' interpretation of the 
amendment to have been correct, § 706(g) must be read to
authorize the federal courts to grant affirmative relief, 
including quotas. Additionally, both Senator Javits and 
Senator Williams described the amendment as removing judicial 
authority to order affirmative relief, in calling for its 
defeat. Id. at 1048, 1072.

39



required by the last sentence of § 706 (g). See Teamsters, 431
U.S. at 361 ("When the government seeks individual relief for the 
victims of the discriminatory practice, . . .") (emphasis added);
Franks, 424 U.S. at 772 (" . . . at such time as individual class 
members seek positions as OTR drivers . . . evidence that parti­
cular individuals were not in fact victims of racial discrimi­
nation will be material") (emphasis added). Nothing in the 
Court's opinions purports to address the issue presented by 5 
VI.C. of the consent decree in this case. In fact, the Court in
Franks specifically declined to express views on other possible

69forms of relief m  Title VII cases. 424 U.S. at 777 n.38.
Moreover, in both Franks and Teamsters the Supreme Court was 

concerned that the relief awarded be limited to avoid unnecessary 
interference with the collectively bargained-for, vested senior­
ity rights of non-discriminatees. Similarly, this Court has 
recognized that collectively bargained-for rights to promotion 
should be considered by the District Court in judging the reason­
ableness of quota relief when those bargained-for rights are at 
stake. United States v. City of Miami, 664 F. 2d 435 (5th Cir. 
1981) .

In this case, there are no vested rights and no collectively 
bargained-for contract to which the quota promotional relief must 
defer. Because it conflicts with no pre-existing contractual 
rights and still affords non-black police officers an opportunity 
for promotion, the class-based quota relief is eminently reason-

As to Ford Motor Co. v. EEOC, see note 57 supra.

40



able.
The interpretation of § 706(g) now urged by the government 

contravenes more than a decade of litigation. If this Court 
were to disregard the weight of precedent and accept the govern­
ment's arguments, it will not only virtually rule out future 
settlements of Title VII cases; but it will also create unparal­
leled confusion about the requirements of the law, for both 
public and private employers. It will destroy whatever incentive 
now exists for public officials of good will, such as the current 
administrative officers of the City of New Orleans, to seek 
through voluntary means to eliminate any lingering effects of 
prior racial or other invidious discrimination. To suggest, as 
the government does, that this result is in harmony with Con­
gressional intent, is both implausible and shocking. We urge the 
Court to reject the United States's construction of § 706(g).

C. The Equal Protection issue. The government's last
supposition is that even if § 706(g) does not bar approval of
(RVI.C. of the consent decree, nevertheless the City of New 
Orleans is constitutionally prohibited from implementing it and 
the district court is constitutionally prohibited from incorp­
orating it in a judicial order.

The Equal Protection clause, alone, requires a "compelling 
state interest" for the justification of classification along 
racial lines. The Justice Department does not disagree that 
curing the effects of past racial discrimination is a "compelling 
state interest", and that racial classifications must be permit­
ted in remedying the effects of past racial discrimination

41



because " .,.[T]hat the class of victims is defined by race is 
but a concomitant of the fact that the defendant's unlawful 
behavior was defined by race." Suggestion of Rehearing En Banc 
for the United States as Intervenor, at 23.

Where the parties to this consent decree and the Justice 
Department part ways is at the Justice Department's "constit­
utional" argument that the only permissible relief is the "make- 
whole" relief only for the actual victims of racial discrimi­
nation; a remedy which mandates a specific finding of discrimi­
nation against the individuals affected.

This proposition is far from self-evident. The government 
supports it not by citing to any decisions of the Supreme Court 
or the Courts of Appeals announcing these or closely similar 
principles, but by relying upon statements or phrases isolated 
from, principally, the Supreme Court's rulings in Fullilove v. 
Klutznick, 448 U.S. 448 (1980) and Regents of the University of 
California v. Bakke, 438 U.S. 265 (1978) . In so doing, we 
suggest that the United States has lost sight of the results in 
those cases and in United Steelworkers of America v. Weber, 443 
U.S. 193 (1979).

Were the City of New Orleans and Civil Service Commission 
required to abide by this constitutional construction, they would 
be forced to accept the logical result of having either to 
judicially admit prior discriminatory practices or to litigate 
the entire pattern and practice case, and risk the possibility of 
losing. In either event, it would be necessary to litigate each 
individual discriminatee's claim for relief.

42



The Equal Protection Clause does not prohibit all race­
conscious action by public entities, nor require that every 
race-conscious measure be undertaken only after an admission or 
adjudication of prior discriminatory conduct if the action is 
remedial in nature. For example, school boards may assign pupils
on a racial basis, Swann v, Charlotte-Mecklenburg Board of Educa-

7 0tion, 402 U.S. at 16; see Washington v. Seattle School 
District No. 1, 50 U.S.L.W. 4998, 5005 n.26 (U.S. June 30, 1982), 
or take race into account in hiring teachers, Porcelli v. Titus, 
431 F.2d 1254 (3d Cir. 1970). State authorities may reduce 
majority voting strength in order to facilitate the election of 
minority representatives, even in the absence of findings of past 
discrimination against minority voters, United Jewish Organ­
izations v. Carey, 430 U.S. 144 , 161 , 165-66 (1976) (opinion of
White, J.). Housing authorities may, even in the absence of a 
finding of past discrimination on their part, be required to make 
tenant assignments on the basis of race in order to promote 
neighborhood residential integration, Otero v. New York City 
Housing Authority, 484 F.2d 1122 (2d Cir. 1973); state universi­
ties may affirmatively consider race in deciding who shall be 
admitted to their programs, in order to maintain student body

"School authorities are traditionally charged with broad 
to formulate and implement educational policy and might well 
conclude, for example, that in order to prepare students to 
live in a pluralistic society each school should have a 
prescribed ratio of Negro to white students reflecting the 
proportion for the district as a whole. To do this as an 
educational policy is within the broad discretionary powers of 
school authorities;..."

43



diversity, Bakke, 438 U.S. at 315-20 (opinion of Powell, J.).
Nor dees the Constitution cabin a federal court's equitable 

authority to devise appropriate remedies for past discrimination, 
as the United States now suggests. For example, in Louisiana v. 
United States, 380 U.S. 145, 154-55 (1965), the Supreme Court 
upheld a lower court decree enjoining voting registrars from 
applying a newly adopted voter qualification measure in parishes 
in which the court had found black registration to have been 
minimized by long-continued racially discriminatory use of a 
prior "interpretation test." The decree barred use of the new 
measure with respect to all "persons who met age and residence 
requirements during the years in which the interpretation test 
was used," id. at 155, not just persons who had discriminatorily 
been denied registration because of inability to pass the "inter­
pretation test." In Swann, the Court rejected the contention 
"that the Constitution prohibits district courts from using their 
equity powers to order assignment of teachers to achieve a 
particular degree of faculty desegregation." 402 U.S. at 19-20. 
There was no suggestion that mandatory teacher transfers be 
limited to those individuals shown to have been initially 
assigned on a discriminatory basis; rather, transfers were merely 
an instrumental mechanism for eliminating the effects of past 
discrimination —  racially identifiable faculties. See also 
United States v. Montgomery County Board of Education, 395 U.S. 
225 (1969) (same); North Carolina State Board of Education v.
Swann, 402 U.S. 43, 45-46 (1971) (statute forbidding consider­
ation of race in assigning students may not be applied to limit

44



discretion of school authorities in devising effective plan to 
eliminate dual school system under federal court direction).

Considering these decisions together with the various
opinions in Bakke and Fullilove, it is clear that there is no
insurmountable constitutional obstacle to the affirmative use of
race conscious devices where the use of such devices is remedial.
Nor is it by any means clear that in order to show the remedial
nature of the race-conscious device there must be either a
judicial admission or judicial finding of prior discriminatory
conduct, especially in the case of a consent decree in a Title 

71VII action. This Court has expressly found otherwise. United 
States v. City of Miami, 614 F. 2d 1322, 1337 (1980).

Nothing in the decisions cited by the government suggests 
that the Equal Protection clause displaces the substantive 
principles which are discussed at pps. 30-34. Applying those 
principles to the issue raised by the government in this case, 
the City submits that the role and responsibility of the district 
court in approving all but one provision of the decree satisfies 
constitutional requirements.

The role of the district court in scrutinizing a consent

The issue is clearly an open one. Justice Powell, who has 
frequently articulated a view on the matter has said that 
race-conscious actions by public agencies must be justified by 
"...judicial, legislative or administrative findings of 
constitutional or statutory violations". He has also opined 
that "[T]he State certainly has a legitimate and substantial 
interest in ameliorating, or eliminating where feasible, the 
disabling effects of identified discrimination." (emphasis 
supplied) Bakke 438 U.S. 265 at 307. Writing for the Court in 
Fullilove, Chief Justice Burger explicitly declined to apply 
the Bakke framework. 448 U.S. at 492.

45



decree, as defined by this Circuit, requires it to find that the 
plaintiffs have made out a prima facie case of discrimin­
ation.72 We see no reason why this level of judicial involve­
ment should be given any less deference than an administrative 
finding. This suit was vigorously litigated by all parties up to 
the time of settlement and a consent decree was forged which en­
compassed some, but not nearly all, of the relief to which the 
plaintiff class claimed it was entitled. The situation presented 
simply cannot be analogized to the judicial relief against a 
non-consenting party without a finding even that there is a prima 
facie case of discrimination by that party, as in General 
Building Contractors Association v. Pennsylvania, 50 U.S.L.W. 
4975 (U.S. June 29, 1982), on which the government relies.

The legitimacy of the relief presented in a case of this 
type cannot be decided in a constitutional vacuum. The govern­
ment's argument for limited "make-whole" relief would be more 
persuasive had Congress never exercised its legislative per- 
ogative under §5 of the Fourteenth Amendment. The government

See United States v. City of Miami, 664 F.2d 435, 441 
5th Cir. 1981) (opinion of Rubin, J.) (court should examine
proposed consent decree "carefully to ascertain not only that 
it is a fair settlement but also that it does not put the 
court's sanction on and power behind a decree that violates 
Constitution, statute, or jurisprudence. This requires a 
determination that the proposal represents a reasonable 
factual and legal determination based on the facts of record, 
whether established by evidence, affidavit, or stipulation"); 
id. at 460 (opinion of Frank Johnson, J.) ("the standard of 
review for challenges to a consent decree involving third 
parties is whether the decree is unlawful, unreasonable or 
inequitable"); United States v. City of Alexandria, 614 F.2d 
1358, 1362-63 (5th Cir. 1980) (consicering constitutionality of 
relief in proposed consent decree).

46



recognizes that the Court will reach the constitutional question
only if it concludes that § 706 (g) of Title VII authorizes the
quota relief contained in SI VI. of the consent decree73 74 75 but
fails to grasp the substantive implication of such a holding.
The government recognizes the "broad remedial powers" of Congress

7 4in selecting remedies for discrimination, Fullilove__ v^
Klutznick, 448 U.S. at 483. Thus, if Congress authorized the
sort of race-conscious affirmative remedies involved in this case 
in § 706(g) of Title VII, as we have argued, then the Equal Pro­
tection question is to be decided with reference to the broad
remedial powers" of Congress, and the consent decree must be 

. 75sustained.
The nexus between Title VII and the Equal Protection clause 

lends force to the proposition that relief valid under Title VII 
will pass constitutional muster. 76 We submit that the result 
in Weber, although confined to the four corners of §703 (a) and 
(d) Title VII, is nevertheless indicative of the constitutional

73 Suggestion of Rehearing En Banc, at 20-21.

74 Id. at 21.
75 In Fullilove, the Supreme Court upheld a minority sub­

contractor set-aside program which did not require federal 
procurement officers or prime contractors to make a finding 
that a minority firm had suffered from discrimination in the 
past before awarding it a contract. Instead, the program 
merely contemplated the availability of a complaint mechanism. 
448 U.S. at 471-72, 481-82 (opinion of Burger, C.J.); see id. 
at 530 "n.12 (Stewart, J. , dissenting), 540-41 (Stevens, J. ,
dissenting).

76 "Thus, our cases under Title VII of the Civil Rights Act 
have held that, in order to achieve minority participation in

[footnote continued on next page]

47



validity of class-based relief for prior discriminatory prac­
tices. We perceive no logical or legal reason why the City of New 
Orleans should be held to the onerous burden of going forward 
with this litigation when a private employer can, without judi­
cial scrutiny, preclude similar litigation by the use of a race- 
based promotion plan on no greater showing than having a "trad­
itionally segregated job category". Weber, 443 U.S. at 209.

In sum, the circumstances under which the consent decree was 
evaluated in this case -- including, under the law of this 
Circuit, the determination by the trial court that there was at 
least a prima facie case of discrimination -- are adequate to 
establish for Equal Protection purposes that the goal of the 
race-conscious provisions is the remedying of prior discrimi­
nation .

[footnote continued from previous page]
previously segregated areas of public life, congress may 
require or authorize preferential treatment for those likely 
disadvantaged by societal racial discrimination. Such legis­
lation has been sustained even without a requirement of 
findings of intentional racial discrimination by those re­
quired to, or authorized to accord preferential treatment, on 
a case-by-case determination that those to be benefitted 
suffered from racial discrimination. These decisions compel 
the conclusion that States also may adopt race-conscious 
programs designed to overcome substantial, chronic minority 
underrepresentation where there is reason to believe that the 
evil addressed is a product of past racial discrimination...- 
[T]o the extent that Title VII rests on the Commerce Clause 
power, our decisions such as Franks and Teamsters v. United 
States, 431 U.S. 324, 97 S.Ct. 1843 , 52 L.Ed. 396 (1977),
implicitly recognize that the affirmative use of race is 
consistent with the equal protection component of the Fifth 
Amendment and therefore with the Fourteenth Amendment." 
Regents of the University of California v. Bakke, 4 38 U. S.
328 , 368 , 98 S. Ct. 2733 , 2787 , ( Opinion of Brennan, White,
Marshall, Blackmun, JJ )

48



That prima facie showing, especially in light of the strong
policy considerations in favor of voluntary settlements of Title
VII actions, is sufficient to bring the quota relief submitted
here well within the broad equitable remedial discretion of the
federal courts in discrimination cases, Swann, 402 U.S. at 15,
25, 30, which has led to endorsement of quota relief by the

7 7federal Courts of Appeals, including this Circuit.
The test of the acceptability of quota relief, therefore,

must be whether it is "substantially related" to remedying the
effects of prior discrimination, Bakke, 438 U.S. at 359 (opinion
of Brennan, White, Marshall, and Blackmun, JJ.); see Fullilove,
448 U.S. at 489 (opinion of Burger, C.J.) (" . reasonable
assurance that application of the MBE program will be limited to
accomplishing the remedial objectives contemplated by Congress");
id. at 510 (opinion of Powell, J.) ("Congress' choice of a remedy
should be upheld, however if the means selected are equitable and
reasonably necessary to the redress of identified discrimi-

7 8nation"). That is the standard applied in this Circuit and 
by the panel in this case. See 694 F.2d at 993.

The entire consent decree, including SI VI., is clearly 
constitutional under this standard.

See note 64 supra and accompanying text.
United States v. City of Miami, 664 F.2d at 446 
opinion of Rubin, J.) ("necessary or appropriate"); id. at 461 
(opinion of Frank Johnson, J.) ("reasonable means to correct 
past discrimination"); United States v. City of Alexandria, 
614 F.2d at 1363 ("reasonably related to the legitimate goal 
of achieving equality of employment opportunity").

49



It is a temporary measure which may reasonably be expected 
to benefit significant numbers of plaintiff class members who are 
alleged to have suffered from unlawfully discriminatory 
practices, see discussion at p. 25 supra, as well as to alter the 
virtual absence of black supervisory officers in the police force 
which is alleged to have resulted from those practices. The 
district court would commit no error in entering the decree.

CONCLUSION
All provisions of the consent decree submitted to the 

District Court were fair and appropriate responses to the claims 
of the plaintiffs, which even the District Court found to be of 
substantial merit. The District Court's refusal to enter the 
decree as submitted was manifestly erroneous.

The panel majority correctly held that the decree presented 
a reasonable and legal resolution of the litigation. Its finding 
should be upheld by the entire Court.

Respectfully Submitted,

GILBERT R. BURAS, 
Deputy City Attorn 
SALVADOR ANZELMO 
City Attorney
NORMAN J. CHACHKIN 
BEATRICE ROSENBERG 
Of Counsel

It must be kept constantly in mind, in evaluating the 
government's arguments, that they would invalidate not merely 
the promotion quota in SI VI.C. but also the affirmative relief 
in <j[ VI.A. and B., which even the district court thought was a 
necessary remedy. See supra note 17.

50



CERTIFICATE OF SERVICE

I, the undersigned attorney for the City of New Orleans, hereby 
certify that a copy of this brief has been mailed to all counsel 
of record by placing a copy of same in the U. S. Mail, postage 
prepaid, this 15th day of April, 1983.

51



f

A P P E N D I X

4



RULE VI
VACANCIES, CERTIFICATION & APPOINTMENT (amended June 13, 1956, April 1, 1966,

April 14, 1966, July 6, 1972, June 13, 1974 and July 22, 1975, August 9, I979j November 12, 1981, October 26, 1982 )

Section 1.
1.1

C
1.2

<^tiSection 2.
2.1

2 . 2

4

FILLING OF VACANCIES
Vacancies in positions in the classified service may be 
filled by demotion, transfer, reinstatement, re-employment, 
promotion, original appointment, or temporary appointment.
Preference shall be given to the methods named in the order 
in which they are named above, under the conditions and 
subject to the restrictions and limitations set forth in 
the rules.
A vacancy shall be considered filled under any of the methods specified, and employment thereunder effective, 
as of the date on which the employee enters on the duties 
of the position, in accordance with the Law and the rules.
Transfer. An employee may be transferred from any position 
in the classified service to any other position of the same 
class, or of any other class for which no additional or 
different qualifications are prescribed for original en­
trance, on recommendation of the appointing authority and 
approval of such transfer by the Director, but no employee shall be transferred from a position in one organization 
unit to a position in another organization unit without the 
consent of the appointing authorities of both units con­
cerned. No employee shall be transferred from a position 
in one class to a position in another class having a higher 
maximum salary. Any change of an employee from a position in one class to a position in a class having a lower maxi­
mum salary shall be considered a demotion.
REQUEST FOR CERTIFICATION
Whenever an appointing authority proposes to fill a vacancy 
in the classified service, he shall submit to the Director 
a statement showing the position to be filled and the class 
and duties thereof, and he may also specify the necessary 
and desirable qualifications of the person to be appointed 
thereto.
Anticipation of need: Insofar as practicable, each vacancy
shall be anticipated sufficiently in advance to permit the 
pj_^gQ£or to determine who may be available for appointment, ( necessary, to prepare a class specification, and to 
establish a list of eligibles.

R 11/82
(32)



2.3

C

Section 3.
3.1

•#

C

3.2

fc

Request for selective certification: When an appointing
authority in his request for certification of eligibles

a position has specified necessary or desirable quali­
fications of candidates for appointment to the position, 
the Director shall certify from a list of eligibles having 
such qualifications, if the Director deems that the request 
has offered satisfactory evidence that the nature of the 
position to be filled warrants such certification. If it -- 
is necessary to hold a new examination to establish a list of a sufficient number of persons eligible for such se- 
lective certification, the Director may authorize provi­
sional appointment, pending establishment of the eligible 
list, of one of the top three eligibles on an existing list for the class, or of any person who demonstrates to the 
satisfaction of the Director that he possesses, in suffi­
cient degree to have a good chance of passing the examina­
tion, the special qualifications on the basis of which the selective certification procedure is to be used.
The Director shall consider each request for selective 
certification on the basis of the facts in that particular 
instance. The burden of proof shall be on the appointing 
authority to prove to the satisfaction of the Director 
that selective certification is warranted. The Director 
may consider the cost of giving a special examination as a 
factor in determining whether selective certification is warranted.
CERTIFICATION OF ELIGIBLES.
Upon a request from an appointing authority to fill a po­
sition other than by demotion, transfer or reinstatement, 
the Director shall certify to the appointing authority the 
names of three eligibles for such position of the class of the vacant position, and if more than one vacancy is to be filled, the name of one additional eligible for each addi­
tional vacancy. In cases of demotion, transfer or rein­statement, the Director shall approve or disapprove the 
name of the person submitted by the appointing authority.
The eligibles certified shall be the highest ranking eli­
gibles willing to accept employment, ranked in the follow­
ing order: (1) all the eligibles on the appropriate re­
employment list, if any; (2) those on a promotion lis t, 
if any; (3) those on an entrance employment list. All the names on any one of such lists shall be exhausted be­fore any names are certified from another list, but the 
names certified may be taken from two or more lists if 
necessary to make a certification of three eligibles.
Names shall be certified from each list in the order of 
their rank on that list.

(RULE VI)

(33)



(RULE VI)

Within ten days after such names are certified, the appoint­
ing authority shall appoint one of those whose names are certified to each vacancy which he is to fill. In each case 
of acceptance of an appointment, such appointment shall be­
come effective as of the date on which the appointee enters 
upon duty in accordance with the Law and rules.
If the appropriate lists do not contain the names of a suf'fi- \T. 
cient number of eligibles willing to accept appointment to \ 
make possible the certification of three eligible persons, ' 1. 
the names of all persons on such lists who are willing to 
accept appointment shall be certified.

3.3 Where fewer than three names are certified to fill a vacancy, 
the appointing authority may make his appointment from the 
names certified. If he does not wish to make an appointment 
from the names certified, the Director may authorize him to 
make a provisional appointment.

3.4 If the appointing authority passes over the name of an eli­
gible on a register in connection with three separate appoint­
ments .he has made from the register, written request may be 
made of the Director that the name of such eligible be omit­ted from any subsequent certification to the same appoint­
ing authority from the same register. The name of such 
eligible shall thereafter not be certified to him from that 
register for future vacancies in that class of positions.

3.5 When a vacancy is to be filled in a position of a classfor which there are no eligibles available for certification, 
the Director, whenever practicable, may certify for appoint­
ment eligibles from an appropriate eligible register. Such 
appointment shall be probationary and the vacancy shall be deemed to be filled in accordance with the provisions of 
the Law and rules.

3.6 Whenever a vacancy exists in the classified service and 
there exists a promotion list and a re-employment list, both resulting from the identical examination, names shall be 
certified to fill this vacancy in the order of the grades
on the original examination for this position.

3.7 Subject to the provisions of Rule V, Section 7, the names 
of persons who have been appointed from lists to fill con­
ditional or temporary vacancies shall be continuously cer­tified to all permanent vacancies in the class or classes 
of positions for which they are eligible until such time as:
(1) They are appointed to fill permanent vacancies, or
(2) Their eligibility on the register or registers expires, or
(3) The factors affecting the conditional or temporary nature 

of their appointments are removed.

(34)



(RULE VI)

Section 4.
4.1

C

4.2

C 4.3

4.4

REINSTATEMENT AND RE-EMFLO$MENT
Re-employment lists shall consist of the names of persons who 
were separated from their positions for reasons other than 
fault or delinquency on their part, except as provided in 
Rule IX, and who, at the time of their separations, had at­tained permanent status in accordance with the Law and rules . 
in that class of positions. The order in which these names ^  y- 
shall be ranked on the re-employment list shall be in ac­
cordance with their number of years of continuous city em­ployment in that class of positions. In case two or more 
employees have equal service in that position, the person 
who has the greatest number of years of continuous service in 
city employment shall be ranked highest. No person may be certified from a re-employment list or be reinstated if he 
has reached a mandatory retirement age, or who has voluntari­
ly retired; provided, however, a person who has voluntarily retired may be reinstated, with the approval of the Director, 
only to the position he last held, and provided further, 
that he has not reached his seventieth . (70th) birthday; and, 
in the event of his reinstatement, said employee waives all 
pension rights while so employed.(amended April 1, 1966 and June 13, 1974)
The name of a regular employee who has been laid off shall be 
placed automatically on the appropriate preferred re-employ­
ment list for the class of positions which .he occupied. His 
name shall remain on this list for a period of two years 
from the date of separation unless removed earlier by any of 
the provisions of the Law or Rule V, Section 7.1. Until his 
reinstatement or re-employment is effected within the depart­
ment or organization unit from which he was separated, or 
until his period of eligibility has lapsed, his name shall be certified on a service-wide basis to vacancies in that class 
of positions.
Preferred re-employment lists shall precede general re-employ­
ment lists in certification, provided that persons on such lists meet the requirements and qualifications, to be deter-- mined by the Director, to perform the duties of the position 
involved.
A regular employee who has resigned from his position shall, 
upon his written request made within one year from the date 
of resignation, have his name placed on the appropriate re­
employment list. Such name shall remain on that_list until 
a date two years from the employee's date of resignation unless removed sooner under any of the provisions of the Law 
or Rule V, Section 7.1.

I 3/79 (35)



(RULE VI)
4.5 The name of a regular employee returning from military leave and 

placed on a re-employment register in accordance with Rule VIII, 
Section 8.3 shall remain thereon for a period of two years unless 
removed sooner under any of the provisions of the Law or Rule V, 
Section 7.1.

_ -r
4.6 A permanent employee who is separated for inefficiency, delinquency-- 

or misconduct may, within one year from separation, be reinstated with- 
probaticnary status to a position for which he is qualified having the 
same or lower maximum salary as the current maximum for the class of 
position in which he had permanent status if recorrmended by the 
appointing authority and approved by the Commission.
(adopted June 13, 1956)

4.7 (a) Whenever a regular employee has been promoted to a higher
classification, the employee shall be granted a promotional leave 
of absence from the position the employee formerly occupied until 
the individual acquires full Civil Service status in the higher 
class. Until the employee acquires permanent status in the 
higher classification, an appointing - authority may fill the 
vacant position only through a conditional appointment.

Should the employee be removed by the appointing authority during 
the probationary period from the position to which the employee 
had been promoted, the employee shall be reinstated to the former 
position, unless the removal is for disciplinary reasons of a 
nature to justify dismissal of a regular employee. When rein­
stated as herein authorized, the employee shall not be required 
to serve a new working test period.

(b) Any regular or probationary employee who has resigned from a 
position and has requested reinstatement to both the department 
and classification vhich the employee previously occupied, may, 
upon the request of the appointing authority and with the prior 
approval of the Director of Personnel, based upon the record of 
the employee for satisfactory service, be reinstated to the 
position, other than in an emergency, transient or provisional 
appointment, within a period of two years from the date of sepa­
ration if a vacancy exists therein.

(c) Any regular employee who has resigned frcm the classified service 
to enter public service in another jurisdiction may, upon the 
reauest of the appointing authority and with the prior approval 
of the Director of Personnel, based upon the record of the 
employee for satisfactory service, be reinstated to the position 
from which the employee was separated, if a vacancy exists 
therein.

Such reinstatement must be made within ninety (90) days of the 
individual's separation from the original position in the new 
jurisdiction which the individual entered after leaving the 
classified service.

(Section 4.7 (a)-(c) amended November 12, 1981, effective December 1, 1981)

R 11/82 (36)



Any regular or probationary employee who has resigned from a 
competitive position, and has requested reinstatement to the 
position formerly occupied by him, may, upon the request of 
the appointing authority and with the prior approval of the 
Director, based upon the record of the employee for satis­
factory service, be reinstated to the position within a 
period of two years from the date of separation if a vacancy exists therein.
Any regular employee who has resigned from the classified ser- 
vice to enter public service in another jurisdiction may upon 
the request of the Appointing Authority and with prior appro­
val of the Director of Personnel, based upon the record of the 
employee for satisfactory service, be reinstated to the posi­
tion from which he was separated, if a vacancy exists therein. 
Such reinstatement must be made within ninety (90) days of 
his separation from the original position in the new juris­
diction which he entered after leaving the classified service, (amended July 6, 1972)

ion 5. CONDITIONAL AND TEMPORARY APPOINTMENT •
5.1 When a position is temporarily vacated because the incumbent 

is on authorized leave of absence without pay for more than 
three (3) months, and the appointing authority desires to fill 
the position for the duration of the leave, he must do so by making a conditional appointment. Such appointment shall be 
in accordance with the provisions of Section 3 of this rule.
If an employee is appointed to fill the position of a classi­
fied employee on leave of absence, he shall vacate the posi­tion when the employee on leave of absence returns. If the 
employee was appointed on a conditional basis by demotion or 
transfer he shall be reinstated in his former position when 
the employee on leave of absence returns. If the employee 
was appointed on a conditional basis through certification 
from an employment list he shall retain all rights he may 
have acquired by virtue of his service under the conditional 
appointment including, if he has completed his working test 
period, the right to have his name placed on a re-employment 
list, or if he has not completed his working test period, the 
right to have his name replaced on the employment list from which his name was certified for conditional appointment if the list exists. He shall also be subject to all other pro­
visions of these Rules not inconsistent with this paragraph.

5.2 Limited terms. Whenever the services of an extra employee are needed in any position in the classified service for a 
limited period of time, in the discretion of the Director, 
the names of eligibles on the appropriate list who are will­
ing to accept appointment may be certified. In each case of 
acceptance of appointment, such appointment shall become 
effective as of approved date and the vacancy shall be con­sidered filled.

(RULE VI)

(37)



(RULE VI)

5.3 Temporary appointments to positions in the classified service
may be made for short periods without compliance with the
provisions of this Part requiring certification, as follows:
(1) Provisional appointments. When a vacancy is to be filled

in a position of a class for which there are no eligibles 
available for certification, the appointing authority,'' 
with the prior approval of the Director, may make a proji visional appointment. Appointment of such provisional-^'T 
shall be made only after submission of the name and ~-
qualifications of the intended appointee to the Director 
and such individual is approved for appointment. Such 
provisional appointment shall terminate upon the regular 
filling of the vacancy in any manner authorized under 
these Rules and, in any event, within fifteen workingdays after a certification from which appointment can be 
required. A provisional appointment shall never .continue 
for a period in excess of one year unless it is extended 
by the Commission upon the Director's certification that 
eligibles are not available and that it is not possible 
or practicable to provide such eligibles.

(2) Transient appointments. Whenever the services of an ex­
tra or substitute employee are needed in any position in 
the classified service for a period of less than three 
months, the appointing authority, with the prior appro­val of the Director, may make a transient appointment of 
any person he deems qualified to serve for the period required.
This appointment, with the prior approval of the Director, may be extended for a further period if required, but no person shall serve under a transient appointment from the 
same or different appointing authority for an aggregate 
period of more than three months in any continuous twelve month period.

(3) Emergency appointments. Where an emergency exists re­
quiring that a position be filled before appointment can 
be made under any other provision of these Rules, an 
emergency appointment may be made for any available per­son to serve until the position involved can otherwise 
be filled under the provisions of these Rules. No 
emergency appointment shall continue for more than ten 
days in any case, or be renewed for any further period 
beyond that limit. The authority for any emergency 
appointment is conditioned on a prompt report thereof
to the Director, at the time the appointment is made.

- -V»- •»*
>■ * ~ V

(38)



t " . UNITED STATF̂  DEPARTMENT OF JUSTICE 
LAV/ ENFORCEMENT ASSISTANCE ADMINISTRATION

W A S H IN G T O N . D .C . 20530

June. 27, 1974

Nr. Clarence B. Giarrusso 
Superintendent of Police 
New Orleans Police Department 
715 South Broad Street 
New Orleans, Louisiana 70119
Dear Superintendent Giarrusso:

.***-?-; * - /J

We have completed the routine civil, rights compliances.-5' 
survey of your Department pursuant to our responsibiLi— ! 
ties under Title VI of the Civil Rights Act of 1964 .
(28 C.F.R. 42.101 e_t. s e a S u b p a r t  C) (Attachment 1), 
LEAA's Equal Employment Opportunity Regulations, (28 
C.F.R. 42.201 et. seq., Subpart D) (Attachment 2), and 
Section 518(c) of the Crime Control Act of 1973 (P.L.. 
93-83). We appreciate the full cooperation which you 
and the members of your Department accorded the survey. .. J 
team. On the basis of facts, available to us, we have-, 
made the following findings and recommendations. -. . .

1. Entrance Level Testing
----------------------  .. - , ' . . -

The New Orleans Police Department as of February? 1974 
employed 99 black police officers representing 7.5% of 
the total officers employed by the Department. Census 
Bureau statistics for the 20-34 age group population of 
New Orleans shows it to be 44.67, black.

— V- .

7* ~ ~  s -



White males
Black males 
White females 
Black females

Total Officers

- 2  - • * 

Police Officers
t

Total Numbers/
i,2iy- * »

95

________ 4
1,325

7> of'Total

The recruiting effort to attract minority group appli­
cants has been both a diligent and productive effort on the 
part of Police Department, Civil Service Department,, and the 
Mayor’s Biracial Citizens Committee. --i: -

While the above figures show a dramatic increase in 
minority applicants after 1971 (when black police applicants 
represented only 15.47. of the total applicants), the written- 
entrance examination eliminates these minority candidates in 
disproportionate numbers as indicated below:

Police Officer Entry Level Test ■ ‘ * * i ~ JSr.

Race # Tested # Passed Test ^Passing -

2/19/72 * Black 120 45 . • 37151 S :
White 70 - * 63 90

3/30/73 Black 102 -: 41 40.27.
White 120 ' 96 • 80

7/13/73 Black 221 73 ■ 33.47.
to White 191 157 82.27.

2/6/74 >

“ - V- *

■ . r  •/ a '  ' r ' r t y v .  1 ^ 4 i n ^  - f  .y T ^ - w i c f - r  r-t*- • ■: ,  • - 2 u s ->• v*- — - i



I

-  3 -  * ‘

• . •• /i .
Daring the above time period an average of 37.37® 

of black applicants passed the test while 84.77» of the 
whites passed.

* '*• * - 'The Dapartment is presently using the McCann Te3t 
as an entry level testing instrument. Since the written 
examination apparently has, statistically, an adverse 
impact on minority candidates,, federal law requires that 
the test be professionally validated, ri.e., shown to be 
an accurate predictor of job performance. The Equal 
Employment Opportunity Commission Guidelines on Employee 
Selection Procedures, 29 C.F.R. 1607, (Attachment 3) set 
out appropriate standards for the validation of test 
instruments.

The validation studies on the McCann Test which were 
reported in Test Validation Study for the City of New Orleans 
performed by Dr. Jefferson L. Sulzer fail to show the required 
relationship to job performance as required by the Guidelines. 
Dr. Sulzer advised the survey team that his study showed a 
positive correlation between test results and academy performa­
nce, a negative correlation between academy and job performance, 
and a negative correlation of test results to performance on the 
job.

It is our understanding that the Department presently 
allows minorities who fail the written examination to re-take 
the test after 3 months. Further, minority persons who fail 
the written examinations within 15 points of a passing score 
are invited to participate in a free review course of 4-weeks 
duration for a purpose of preparing an individual for retaking . 
a further written exam.

;



4 -

We understand that the Department is desirous of 
adopting as a goal the hiring of minority and majority • 
race applicants on a one to one basis, and the Department 
intended to utilize-"Selective Certification1' to accomplish 
this goal. However, you determined that this procedure is 
prohibited by state s t a t u e ' • -- >.

The attention the Department has given to increase 
minority employment is praiseworthy; However, it appears 
that these partial remedies will fall short of your de­
sired goal to significantly increase the number of mino­
rity police officers within the. Department if the use of 
the McCann Test or some similarly unvalidated test instru­
ment is continued. •
Recommendation _. • ' .

The LEAA Equal Employment Opportunity Guidelines recommend 
conformity to the EEOC1s Guidelines (Including validation). 
See 28 C.F.R. 42.304(g)(1) (Attachment 4).
Accordingly, we ask the Department either to provide addi­
tional information showing that the-entrance examination is 
a valid predictor of job success or suspend the use of the 
test until such validation is demonstrated. Additionally, 
we expect the Department to send us.the results of any 
future test administered, setting forth the pass/fail rate 
of applicants by race.

* -•
2. Promotions

Twelve (4.97,) of the 255 police in the command structure 
are black. No women have attained supervisory rank.

The Civil Service Department administers, the written 
promotional examinations, provides for oral interviews, 
allocates points for seniority, and prepares the final 

' eligibility list for submission to the Police Department, 
where the "Rule of Three" is observed in making appointments.

t

f*  '



Sergeant and lieutenant promotional examinations 
consist of a written test,, and those passing are assigned 
a numerical position on the eligibility list determined 
by total points earned for experience as a police _officer, 
plus points for time in last'grade. Promotional examin­
ation for the rank of captain and major are conducted in 
the same manner as above but with two exceptions: An oral
interview is administered by.3 persons who are appointed by - ~ 
the Civil Service Department. '-These examiners are selected 
from business or professional ranks, and consist of one 
woman, one black, and one white interviewer. Secondly, the 
Superintendent of Police may "pass over” any candidate on 
the list and he is not required to follow the numerical 
order, but it is reported that he -usually follows the order 
of the list for appointments. A structured oral interview 
is not conducted, meaning that interviewers are not pro­
vided with a set of questions to be asked of all interviewees.

Because of the absence of past test data, the survey 
team was able to analyze the results of only the most recent 
promotional written examination; that one being administered 
on September 29, 1972 for advancement to the rank of police 
sergeant.

The following statistics emerged from the particular 
written examination: -

Tested - Passed ’ Appointed
Black * White Black White Black . White

44 636 .9 162 0 App. 51
20.5% of the black officers taking the written test passed and 
25.5% of the white officers passed. None of the black officers 
who passed the written examination were promoted.



f

- 6  -

Recommendation
It is the responsibility of the Department to ensure that 
irrelevant factors are not used in excluding minority and 
female applicants from promotional opportunities. See 
28 C.F.R. 42.303 (Attachment..4) . '*.•
In addition to the requirement for validation of any written 
testin'* instrument, validation is Nalso appropriate to other 
rating^measure such as experience -evaluation, proficiency 
reports and oral interviews, where the final scoring appears 
to have a racially discriminatory impact. The EE(X Guidelines 
(Attachment 3) also require that these methods be validated to 
show a demonstrable relationship to job performance.

3. Height Requirement
The Department maintains a 5* 8" minimum height require­

ment for police officers. Available studies have indicated 
that the average height of military age black and white males 
is 5'8.6", Spanish descent males average 5 6 1/2 , and females
average 5'3.7n.

LEAA's Equal Rights Guidelines (Attachment 5) prohibit 
the use of minimum height requirements which disproportionately 
disqualify women and persons of certain national origins unless 
it can be convincingly demonstrated through, supportive factual 
data that the minimum height' requirement is an operational
necessity. ' • ' ' ' : ,
Recommendation
We recommend that the Department eliminate the present mini 
m^m height requirement or, alternatively, prove the operational 
necessity of the.requirement. -



4 . Females

- 7; -

Four of the 13 female police officers in the Department 
are black. Women officers are assigned to Detective Bureau, ■ 
Urban Squad (a patrol unit) ,^Yice Squad, Narcotics Bureau, 
Juvenile Bureau, Traffic Division (!' female motorcycle 
gff£cer) and Community Relations (black female serves as
director) . . •

Assignments of females are "at the discretion of the . 
Superintendent on a case by case basis. . ,

The Department maintains a single police officer classi­
fication for both males and females with identical require­
ments. Females accounted for 7% of the applicants for the 
position of police officer during the period 7/3/73 to 2/6/74. 
(41 female and 604 male applicants) . 18 female applicants
(44X) passed the written-examination but only 1 was ultimately 
appointed. • • . . '
Recommendation
Where the percentage of police officers is overwhelmingly

as here, the need for- inclusion of females in the recruit­
ment program is evident. It will be necessary for the Depart­
ment to adequately inform the public that the Police Department 
Y72.ll accept qualified women as police officers. See 28 C.F.R. 
42.303. (Attachment 4).
Discrimination in employment based on sex is prohibited by 
LEAA’s Equal Employment Opportunity Regulations, except where 
£]2e sex of an employee is essential to job perrormance. See 
28 C.F.R. 42.203 (Attachment 5).

We request the Department to demonstrate the operational 
necessity for any limitations on the assignment and numbers of
women hired as officers or promptly eliminate such limitations.

i*



Please advise me within two weeks of the date of this 
letter of your plans for implementing our recommendations-, 
any factual errors you believe the survey team may have 
relied on, and any recommendations you believe should be . 
modified. Upon receiving yonp.response, we shall arrange 
a meeting to resolve any outstanding^ issues, should that 
be necessary. ; : -
Members of the compliance review tpam are available for.- 
consultation and-review of matters^ set forth in this 
letter at any time. For that purpose, your representative 
may wish to contact Mr. William Derbonne (202)739-4755 or 
Mr. Andrew Strojny (202)739-4746 or Mr. Steven Glassman 
(202)739-4751.. I am, of course, also available to discuss 
this matter with you. • . ri--

SincereLy,

7RBERT C. RICE, Director
Office of Civil Rights Compliance

Enclosures
as stated: ' - \

cc: Robert Grimes, Acting Administrator
Dallas Regional Office
Wingate M. White, Executive Director ' 
Louisiana Commission on Law Enforcement 

and Administration of Criminal Justice

.A.

’ r . ? ; __
m m m f A



UNITED STATES DEPARTMENT OF JUSTICE 
LAW ENFORCEMENT ASSISTANCE ADMINISTRATIONWASHINGTON, D. C. 20531

Superintendent Clarence B. Giarrusso 
Superintendent of Police 
Department of Police 
P.0. Box 51480
New Orleans, Louisiana 70151

Dear Superintendent Giarrusso:

Our Office is currently trying to properly resolve a 
number of backlog cases. The above referenced com­
plaints all involve charges of sex discrimination 
filed with this Office against your Department. All 
four complainants applied for Police Officer positions, 
passed the Written Examination, and were disqualified 
during the Physical Examination due to the minimum 
height requirement (which has since been abolished due 
to your personal recommendation to the Civil Service 
Commission pursuant to negotiations with our Office).

As you know, our Office has dealt with you directly 
since 1973 concerning this problem as well as your over­
all equal employment opportunity program efforts. Our 
interaction has been complicated because of the Federal 
Court action brought against you and other City officials 
concerning charges of employment discrimination. As you 
know, all four of the complainants Jeanne McGlory, Linda 
Buczek, Joel Schumacher and Linda Ann Jacob-Dubret are 
parties to the court action brought against the City of 
New Orleans.

Re: 73-C-027 i\32;JRis
74- C-066
75- C-069 
75-C-071



Under our new legislation and new Regulations for 
administering and enforcing the anti-discrimination 
provisions of the new law (see enclosed copies of 
legislation and regulations), we are bound by the 
following Section concerning the above referenced 
complaints and court suit:

(5) If the complainant or another party other 
than the Attorney General has filed suit in 
Federal or State court alleging the same dis­
crimination alleged in a complaint to LEAA 
and during L E A A 's investigation the trial 
of that suit would be in progress, LEAA will 
suspend its investigation and monitor the 
litigation through the court docket and con­
tacts with the complainant. Upon receipt of 
notice that the court has made a finding of 
discrimination within the meaning of Sec. 42.210, 
the Administration will institute administra­
tive proceedings pursuant to Section 42.210, 
et seq.

In attempting to resolve this specific issue, since the 
court action is pending, and no trial is presently under 
way, we wish to make the following offer of resolution 
to you:

We will consider the above referenced complaints satis­
factorily resolved if you take the following action: 
Formally offer each of the four complainants the oppor­
tunity to re-apply for Police Officer positions. Allow 
them to take all required examinations which they have 
not yet passed and to undergo background checks, etc.. 
Those that qualify should be immediately instated as 
Police Officers with back pay from the time they would 
have been hired with a set off for wages earned during 
the interim.
Please note, however, that should the court action ever 
come to trial and a finding of discrimination be made, 
then we will be bound to act in accordance with our new 
legislation and regulations (as cited earlier).



3

This may seem to be an extraordinary step, but because 
of the complex developments in this case we have no 
alternative. We fully realize that the four above 
mentioned complainants may not accept such an offer 
from you, should you decide to go forward with it, 
but instead may want to pursue their litigation.

We sincerely hope that you accept this communication in 
the nature it is offered, as a good faith attempt to reach 
a fair resolution of a very sensitive and complex dispute.

We appreciate your past cooperation and your giving this 
correspondence your careful consideration.

We look forward to hearing from you in the near future.

Sincerely,

E. William Rine, Acting Director 
Office of Civil Rights Compliance

Enclosures

cc: John C. Maclvor, Regional Administrator
Region VI - Dallas

Colonel Wingate M. White, Director 
Louisiana Commission on Law Enforcement & 
Administration of Criminal Justice