United States v. Hayes International Corporation Opinion

    Ix  THE

Bnpum* (Burnt nf %  B xuUb
October T eem, 1976 

No. 76-225

H azelwood School District, et al,,

Y.
Petitioners,

U nited States of A merica.

ox writ of certiorari to the united states 
court of appeals for the eighth circuit

BRIEF AMICUS CURIAE 
FOR THE N.A.A.C.P. LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

J ack Greenberg 
J ames C. Gray, J r.
P atrick 0 . P atterson 
T yree I rving 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Louis Gilden

722 Chestnut Street 
St. Louis, Missouri 63101

Counsel for Amicus



I N D E X
PAGE

Interest of Amicus Curiae .......................................  X

I. Introduction ........................................................... 2

II. The Findings of Discrimination Below...............  9

III. Title YII’s Prohibition Against Unnecessary
Practices With Discriminatory Effects Is Con­
stitutional .............................................................

IV. The Remedy Afforded the 16 Victims of Dis­
crimination .......................   24

V. Affirmative Action Is Required to Disestablish
the Pattern of Racially Identifiable School Dis­
tricts ...................................................................   25

Conclusion ...................................................................   29

T able op A uthorities
Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)
16,17,18

Brown v. Board of Education, 347 U.S. 483 (1954)
2, 3, 5, 25, 27

Euclid v. Ambler Realty, 272 U.S. 365 (1926) .............. 21
Gaston County v. United States, 395 U.S. 285 (1969) .... 21 
General Electric Co. v. Gilbert, 97 S.Ct, 401 (1976) .... 16 
Green v. School Board of New Kent County, 391 U.S.

430 (1968) ...........................................................25,27,28
Griggs v. Duke Power Co., 401 U.S. 424 (1971)

16,17,18,19, 21
Jefferson v. Hackney, 406 U.S. 535 (1972)



11

Jones v. Lee Way Motor Freight Lines, 431 F.2d 245 
(10th Cir. 1970), cert, denied, 410 U.S. 954 (1971) , 10

Katzenbach v. Morgan, 384 U.S. 641 (1966) ........ 19,20,22
Lassiter v. Northampton Election Board, 360 U.S. 45 

(1959) ....................................................................... 20,22
National League of Cities v. Usery, 426 U.S. 833 

(1976) ........................................................................22,23
Oregon v. Mitchell, 400 U.S. 112 (1970) .....................20, 22
Palmer v. Thompson, 403 U.S. 217 (1971) ...................  20
Pierre v. Louisiana, 306 U.S. 354 (1939) ...... ..............  12
Bowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) 10
Senter v. General Motors Corp., 532 F.2d 511 (6th

Cir.), cert, denied, 50 L.Ed. 2d 150 (1976) ......... . 10
Stewart v. General Motors Corp., 542 F.2d 445 (7th

Cir. 1976) ..........................................................    10
Swan v. Charlotte-Mecklenburg, 402 U.S. 1 (1971) .... 25,

26, 27
United Jewish Organization of Williamsburg v. Carey,

45 U.S.L.W. 4221 (1977) ...........      18
United States v. Carpenters Local 169, 457 F.2d 210

(7th Cir.), cert, denied, 409 U.S. 851 (1972) ............ 10
United States v. Chesapeake & Ohio By. Co., 471 F.2d

582 (4th Cir. 1972) ......................    10
United States v. City of Black Jack, 508 F.2d 1179 (8th

Cir. 1974), cert, denied, 422 U.S. 1042 (1975) ..........  6
United States v. Hayes Int’l Corp., 456 F.2d 112 (5th

Cir. 1972) ....................................................................  10
United States v. Hazelwood School District, 392 F.

Supp. 1276 (E.D.Mo. 1975) ......... ..........................5, 7,12
United States v. Hazelwood School District, 534 F.2d 

805 (8th Cir. 1976)

PAGE

6,7



Ill

United States v. Ironworkers Local 86, 443 F.2d 544
(9th Cir.), cert, denied, 404 U.S. 984 (1971) ..........

United States v. Montgomery County Board of Educa­
tion, 395 U.S. 225 (1969) ..... .........

United States v. School District of City of Jennings,
399 F.Supp. 322 (E.D. Mo.), rev’d 539 F.2d 655 (8th
Cir. 1976) ........ .................... ..... ............ ........... .........

United States v. State of Missouri, 363 F.Supp. 739 
(E.D. Mo. 1973), aff’d 515 F.2d 1365 (8th Cir. 1975)

Village of Arlington Heights v. Metropolitan Housing

PAGE

Development Corp., 45 U.S.L.W. 4073 (1977) ......  21

Washington v. Davis, 426 U.S. 229 (1976) .............16,20

Constitutional Provisions:
Article I, Section 8 ....
Thirteenth Amendment 
Fourteenth Amendment 
Fifteenth Amendment

Statutory Provisions:
Civil Rights Act of 1866 ..... ............................ ...........  19
Civil Rights Act of 1871 ..............................................  19
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§2000-e, as amended ...............................................passim

State Constitutions and Laws:
Missouri Constitution, Art. IX, §1 .............................. 2, 3

........ ...18, 22, 23
................18,19
17,18,19, 20, 22
........ ......... 19

10

25

5

2



Miscellaneous:

Bickel, The Original Understanding and the Segrega­
tion Decision, 69 Harv. L. Rev. 1 (1955) ...................  19

Cohen, Congressional Power to Interpret Due Process 
and Equal Protection, 27 Stan. L. Rev. 603 (1975) .... 20

“Directory of Public Elementary and Secondary
Schools in Selected Districts, Fall 1970” published 
by the Department of Health, Education and Wel­
fare (1970) ........................ ............... ........................ 4

“Directory of Public Elementary and Secondary
Schools in Selected Districts, Fall 1972” published 
by the Department of Health, Education and Wel­
fare (1972) ....... ..... .......... .................... ...... ..............  4

H. Rep. No. 92-238, 92d Cong. ............................ ......... 17
“Legislative History of the Equal Employment Op­

portunity Act of 1972”, published by the Senate
Committee on Labor and Public Welfare (1972)...... 18,

23, 24
Orloski, The Enforcement Clauses of the Civil War 

Amendments: A Repository of Legislative Power,
49 St. John’s L. Rev. 493 (1975) ........ ..... ..............  20

S. Rep. No. 92-415 92d Cong.........................................  17

tenBroek, “Equal Under Law” (1951) .................. . 19
Yackle, The Burger Court, “State Action,” and Con­

gressional Enforcement of the Civil War Amend­
ments, 27 Ala. L. Rev. 479 (1975) ........ .................  20

Note, Federal Power to Regulate Private Discrimina­
tion: The Revival of the Enforcement Clauses of the 
Reconstruction Era Amendments, 74 Colum. L. Rev.
449 (1974) ..................................................................  20

iv
PAGE



I n  th e

(Emtrt nf %  Imtefc Stairs
October Term, 1976 

No. 76-225

H azelwood School District, et al,,

v.
Petitioners,

U nited S tates of A merica.

on writ of certiorari to the united states 
court of appeals for the eighth circuit

BRIEF AMICUS CURIAE 
FOR THE N.A.A.C.P. LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

Interest o f Amicus

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation established under the laws 
of the State of New York. It was formed to assist Negroes 
to secure their constitutional rights by the prosecution of 
lawsuits. Its charter declares that its purposes include 
rendering legal services gratuitously to Negroes suffering 
injustice by reason of racial discrimination. For many 
years attorneys of the Legal Defense Fund have repre-



2

sentecL parties in employment discrimination litigation 
before this Court and the lower courts. The Legal Defense 
Fund believes that its experience in employment discrimi­
nation litigation may be of assistance to the Court.1

I.
Introduction

This action presents a classic case in which de jure 
segregation of public school faculties has been perpetuated 
in operation by purposeful discrimination in hiring. Prior 
to 1954 the Missouri Constitution required that separate 
schools be maintained for black and white children. Mo. 
Constn. Art. IX, § l(a). In Missouri, as elsewhere, this 
requirement meant both that black students could only 
attend schools with other black students, and that black 
teachers and other faculty could only teach at all black 
schools.

St. Louis County, with a population of about 1.5 million, 
and covering an area approximately the size of Montgom­
ery County, Maryland, is divided into 25 school districts.2 
Prior to this Court’s decision in Brown v. Board of Edu­
cation, 347 U.S. 483 (1954), only two of the school districts 
operated black schools—St. Louis City and Kinloch. Black 
children in other districts were obligated to travel to one 
of these districts if they wished to attend school.3 Under 
the state constitution black teachers, no matter how quali-

1 Letters of consent to the filing of this brief have been filed with 
the Clerk.

2 The exact number of districts has varied over the last 20 years 
as districts have merged or divided.

3 See United States v. State of Missouri, 363 F.Supp. 739, 743 
(E.D. Mo. 1973), aff’d 515 F.2d 1365 (8th Cir. 1975).



3

fiecl, could only teach in these 2 districts. For a black 
teacher seeking employment in St. Louis County the Mis­
souri constitution operated as a state mandated faculty 
assignment rule.

Although Broivn was decided in 1954, the provision of 
the Missouri Constitution prohibiting the hiring of black 
faculty at white schools, and thus at 23 of the 25 districts 
in St. Louis County, was not repealed until 1976. Mo. 
Constn. Art. IX, §1 (Cumulative Pocket Part, 1977). As 
late as 1968-69 10 of these 23 districts, with a combined 
faculty of over 4,000, still employed no black teachers.4 * 
As of 1972-73 there were still 5 districts with no black 
teachers, another 6 districts with less than 1% black teach­
ers, and another 4 with under 2% blacks. Outside of St. 
Louis City about half of all black teachers were concen­
trated in 3 districts with only 5% of the total county teach­
ers, Kinloch, Wellston and University City, with a com­
bined faculty 45.3% black, while the remaining districts 
were 3.0% black. If St. Louis City is included the dis­
parity is even greater.

The proportion of blacks on the faculty of each school 
district corresponded with the district’s black student en­
rollment with almost mathematical precision.

4 The districts were Afton, Bayless, Brentwood, Hazelwood, Han­
cock, Jennings, LaDue, Mehville, Parkway and Riverview Gar­
dens. See p. 4-5 infra. The total faculty of each district is set out 
in Plaintiff’s Exhibit No. 54.



4

Students and Faculty; St. Louis County 
1972-735

District

Percent of 
Faculty 

Non-White

Percent of 
Students 

Non-White
Kinloch 88.2% 100.0%
Wellston6 79.8% 96.8%
St. Louis City 54.4% 68.8%
University City6 26.6% 54.9%
Normandy6 13.3% 45.9%
Webster 11.7% 16.0%
Maplewood6 10.4% 16.9%
Berkeley 8.0% 25.7%
Special School District of 

St. Louis County 7.7% 18.9%
Kiekwood 7.2% 12.4%
Ritenour 5.6% 6.9%
Valley Park 1.6% 1.7%
Ferguson 1.4% 2.2%
Brentwood7 1.1% 10.1%
Hazelwood6 1.0% 2.3%
Jennings6’7 0.6% 3.6%
Parkway7 0.09% 0.2%
LaDue7 0.05% 1.3%
Pattonville 0.05% 0.9%
Lindbergh 0.04% 0.3%
Rockwood 0.02% 1.0%
Riverview Gardens6 0 1.6%

5 Plaintiff’s Exhibit 54; Department of Health, Education and 
Welfare, Directory of Public Elementary and Secondary Schools 
in Selected Districts, Fall 1972, pp. 746-785 (1972).

6 These districts are contiguous with St. Louis City.
7 These districts had no black faculty in the fall of 1970. Depart­

ment of Health, Education and Welfare, Directory of Public Ele­
mentary and Secondary Schools in Selected Districts, Fall 1970, 
pp. 779-818 (1970).



5

Percent of Percent of
Faculty Students

District Non-White N on-White
Hancock6 0 0.1%
Afton6 0 0
Bayless6 0 0
Melville 0 0

The racially identifiable school faculties established by law 
prior to 1954 have thus continued, although now in a more 
elaborate version indicating not only the presence of black 
students but also their proportion of the school population. 
In addition to the two districts with black schools and 
teachers prior to Brown, blacks have been hired in districts 
to which substantial numbers of blacks moved since 1954, 
but only in those districts and only in proportion to the 
number of black students. The notion that black teachers 
should only be hired to the extent that there are black 
students seems such an accepted local practice that the Dis­
trict Judge in this case explained away the “undeniably 
meager” number of black teachers in Hazelwood by noting 
that “it has kept pace with the small but steadily increasing 
black enrollment in the district.” United States v. Hazel­
wood School District, 392 P.Supp. 1276, 1787-8 (E.D. Mo. 
1975).8

It should be noted that the distribution of black faculty 
is not a result of distance from the heavily black city of 
St. Louis. Pour of the five districts with no black faculty 
in 1972 are adjacent to St. Louis; in 1969, of the 9 adjacent 
districts, 6 had no black teachers at all.9 Similarly, 4

8 Another judge in the same district took the same erroneous 
position in United States v. School District of Citif of Jennings, 
399 P.Supp. 322, 328 (E.D. Mo. 1975), rev’d 539 F.2d 655 (8th 
Cir. 1976).

9 Hazelwood, Jennings, Riverview Gardens, Hancock, Afton, 
Bayless, and Mehville.



6

districts10 with faculties from 0.09% to 8.0% black adjoin 
88.2% black Kinloch. None of the districts, with the excep­
tion of St. Louis, appear to hire a substantial portion of 
their teachers from among their own residents.11

Hazelwood is the second largest school district in St. 
Louis County, after St. Louis City. Between the formation 
of the district in 1950 and the 1968-69 school year the 
Hazelwood faculty rose from 27 teachers to over 900 teach­
ers ; every one of the teachers hired in these years was 
white. In 1972 Hazelwood had only 12 black teachers out 
of a faculty of 1,230, or less than 1%.12 Hazelwood has a 
common boundary with St. Louis City, and the bulk of the 
district is adjacent to the St. Louis municipal airport, 
Lambert Field. The northern area of St. Louis which is 
closest to Hazelwood is the portion of the city with the 
greatest concentration of blacks. The Hazelwood School 
District includes the city of Black Jack, which was held to 
have deliberately engaged in practices to prevent blacks 
from moving into the area in United States v. City of Black 
Jack, 508 F.2d 1179 (8th Cir. 1974) cert, denied, 422 U.S. 
1042 (1975).

The government commenced this action on August 10, 
1973, alleging purposeful racial discrimination in the hiring 
of teachers, including application of different standards to 
black and white applicants.13 The action was tried as a 
case of alleged deliberate discrimination. Counsel for the

10 Patonville, Ritenour, Ferguson, Berkeley.
“ Hazelwood, the largest of the districts outside of St. Louis 

City, hires about 7% of its faculty from among applicants residing 
in the district. United States v. Hazelwood School District, 534 
F.2d 805, 811-12, n.7 (8th Cir. 1976).

12 Plaintiff’s Exhibit 54; 534 F.2d 805, 809.
13 App. 4.



7

United States, in his opening statement, detailed the claim 
which the plaintiffs would seek to prove.

The defendants’ present racially discriminatory 
policy have their origin in Hazelwood’s deliberate re­
fusal to hire qualified blacks from the district’s incep­
tion in 1951. . . .W e will present testimony, largely 
by depositions, and answers to interrogatories which 
will show that the absence of black professional em­
ployees does not result from chance but is the result 
of purpose. Further, we will show that the Hazelwood 
District has deliberately continued employment prac­
tices which limit the number of black applicants.14

In its post-trial memorandum the government also urged 
that Hazelwood had deliberately discriminated against 
blacks.15

The district court rejected the government’s contention 
that Hazelwood had engaged in racial discrimination, 
United States v. Hazelwood School District, 392 F.Supp. 
1276, 1286-89 (E.D. Mo. 1975); the court of appeals re­
versed. 534 F.2d 805 (8th Cir. 1976). The Eighth Circuit 
concluded that the United States had established that 
Hazelwood engaged in deliberate discrimination, and rest­
ed its conclusion, inter alia, on evidence indicating that the 
white principals and supervisors, permitted to choose 
among applicants with a standardless discretion, had inten­
tionally rejected blacks because of their race, 534 F.2d at 
813, and that at least 16 fully qualified black applicants 
had been rejected in favor of less or no better qualified 
whites. 534 F.2d at 814-819. The court of appeals’ opinion

14 Transcript of March 25, 1974, pp. 7-8.
15 Memorandum In Support of Plaintiff’s Proposed Findings of 

Fact and Conclusions of Law and Proposed Order, pp. 2-5; Plain­
tiff’s Proposed Findings of Fact and Conclusions of Law, pp. 100- 
101, 114, 118.



8

leaves no serious doubt that its finding was one of pur­
poseful discrimination. With regard to the practice of 
according interviewers standardless discretion, the court 
stressed “[i]n our view, it is more than mere coincidence 
that the use of such procedures produced only a few black 
teachers,” 534 F.2d at 812, and that these practices were 
“susceptible to discrimination.” 534 F.2d at 813. The court 
went out of its way to explain how the defendants could 
have known the race of black victims who were not inter­
viewed, such knowledge being an essential element to a 
showing of intent. See Jefferson v. Hackney, 406 U.S. 535 
(1972). Finally the court explained that the small number 
of blacks hired, together with the use of subjective stan­
dards allowing a substantial opportunity for discrimina­
tion and other evidence, established a “prima facie case 
of discrimination,” 534 F.2d at 813. This is a phrase which, 
in the context of this case, can only be understood as mean­
ing a prima facie case of intentional discrimination.

Although all of this seems to have been understood be­
low, petitioners in this Court urge that the Eighth Circuit 
decision was founded entirely on a finding of discrimina­
tory effect. Proceeding from this misunderstanding, peti­
tioners understandably find incomprehensible the Title VII 
effect rule as here applied,16 the court of appeals’ analysis 
of the evidence,17 and the remedy ordered by the Eighth 
Circuit.18 We believe that the decision below, properly 
understood as an intent case, presents neither the legal and 
factual difficulties pressed by petitioners nor the question 
regarding the constitutionality of Title VII which peti­
tioners urge this Court to decide.

16 Brief for Petitioners, pp. 18-43.
17 Id., pp. 44-60.
18 Id., pp. 18-25.



9

The Findings o f Discrimination Below

When this case was tried in the district court in 1974, 
and when it was heard in the court of appeals in 1975, 
the defendants presented a single, consistent, though ulti­
mately unpersuasive defense—that few blacks were hired 
by Hazelwood because the principals and other inter­
viewers picked the best qualified applicants, and the vast 
majority of the best qualified applicants were white.19 
In this Court defendants have retained new counsel who, 
on examining a cold record, have advanced several en­
tirely new assertions of fact as to what happened in 
Hazelwood, and to some extent St. Louis, in the years 
prior to trial. None of the numerous school board em­
ployees who testified, either at trial or by deposition, ever 
presented the explanation now urged by counsel for Peti­
tioners in Part II of their brief. This theory was never 
presented to either court below. Under the circumstances 
we doubt that such new theories of fact can be asserted at 
this late date; we find unfair petitioners’ complaint that the 
court of appeals “ignored” arguments and theories never 
there presented, and we believe the United States cannot 
reasonably be required to have rebutted at trial in 1974 
a hypothetical defense first asserted by counsel for defen­
dants in this Court in 1977.

Defendants’ primary factual explanation in this Court 
is that very few blacks were hired in 1972-74 because very

19 We have lodged with the court copies of the defendants’ open­
ing statement at trial, the Defendants’ Proposed Findings of Fact 
and Conclusions of Law, the Defendants’ Brief and Memorandum 
In Support of Its Proposed Findings of Fact and Conclusions of 
Law, the Brief for Appellants in the Eighth Circuit, and the Pe­
tition for Behearing the Court of Appeals.

II.



10

few applied for positions at Hazelwood; assuming that 
no more than 60 applied during this period they urge that 
the proportion of black applicants hired was thus several 
times higher than that of white applicants. Brief for Peti­
tioners, pp. 8, 10, 44-48. While the court of appeals below 
correctly held that the government made out a prima facie 
case of discrimination by showing the great disparity be­
tween the number of black teachers in Hazelwood and those 
in the surrounding county from which it drew over 70% 
of its new employees, 534 F.2d at 811-12, n. 7, defendants’ 
evidence in no way rebutted that prima facie case. Defen­
dants might have attempted to do so, for example, by estab­
lishing by direct and credible evidence both that (a) the 
proportion of blacks among applicants was substantially 
lower than the proportion of blacks in the labor market, 
and comparable to or lower than Hazelwood’s hire rate, 
and (b) the small number of black applicants was not due 
to past recruiting practices, employment discrimination, 
or other non-neutral factors.20

With regard to the number of black applicants, counsel 
for defendants rely exclusively on the assumption that the

20 See Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th 
Cir. 1976) ; Senter v. General Motors Corp., 532 F.2d 511, 526-28 
(6th Cir.), cert, denied, 50 L.Ed. 2d 150 (1976) ; United States V. 
Chesapeake & Ohio By. Co., 471 F.2d 582, 586 (4th Cir. 1972) ; 
Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972) • 
United States v. Carpenters Local 169, 457 F.2d 210, 214 (7th 
Cir.), cert, denied, 409 U.S. 851 (1972); United States v. Hayes 
In t’l Corp., 456 F.2d 112, 120 (5th Cir. 1972) ; United States V. 
Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), cert, denied, 
404 U.S. 984 (1971) ; Jones v. Lee Way Motor Freight Lines, 431 
F.2d 245, 247 (10th Cir. 1970), cert, denied, 410 U.S. 954 (1971).

We believe that the taint need not be intentional. A policy 
against active recruiting, if it leads to a disproportionately white 
applicant flow, must, like a particular recruiting policy with that 
effect, or a test, be justified by business necessity. No such showing 
was made here, e.g., as to why defendants had never recruited at 
the predominantly black Harris Teachers College less than 10 
miles from Hazelwood.



11

approximately 54 black applicants identified by the gov­
ernment for the years 1971-73 were the entire pool of such 
applicants, or close to it. In prefacing the government’s 
case at trial, however, counsel for the United States ex­
pressly warned that the black applicants whom it would 
discuss were at best a fraction of the total:

In view of the district’s actions severely restricting 
the pool of available qualified black applicants and its 
practice of destroying application files after one year, 
it has not been possible to obtain facts on all or prob­
ably most black applicants to the district.

However, we have been able to locate and identify 
at least fifty or sixty black applicants for 1972 and 
1973 and 1973 and 1974 who, the evidence will show, 
applied for positions for which there were vacancies 
and that Hazelwood consistently hired white appli­
cants either less or no better qualified for the vacan­
cies.21

The government was able to identify only a small number 
of the black applicants because it was able to locate them 
only by sending FBI agents to interview applicants 
thought to be black. Defendants never suggested below that 
this group of 54 constituted all or most of the black appli­
cants, never made below the calculations from this figure 
which lead them to assert a high proportion of black 
applicants were hired,22 and cannot reasonably complain 
that the court of appeals “ignored” this “fact”.23 Even if 
this issue had been raised below, the government data did 
not purport to be a substantial portion of the total black 
applicants, and could not be so considered. Defendants,

21 Transcript of March 25, 1974, p. 9.
22 Brief for Petitioners, pp. 47-48.
23 Id., pp. 44.



12

on the other hand, had ready access to far more direct 
and probative evidence as to the number of black ajDpli- 
cants; the principals and supervisors who did the inter­
viewing could by their testimony, based on personal knowl­
edge, have offered significant proof as to what portion of 
the persons interviewed were black. Such testimony would 
have been of particular importance since the government 
contended that a significant portion of the discriminatory 
screening out of blacks occurred at the interview stage. 
Had there been such valuable evidence in the possession 
of the defendants, it would certainly have been introduced 
at trial.24 25

Defendants also offered no evidence to establish that a 
low level of black applicants, if it existed, was not tainted 
by present or past discriminatory practices. Defendants’ 
counsel urges in this Court that there were only 54 black 
applicants in 1971-73, compared to a total of 7,800 appli­
cants those three years.26 If this were indeed the case, 
blacks would have accounted for less than 0.7% of all ap­
plicants for positions at Hazelwood, even though blacks 
were 15% of the teachers in St. Louis County, from which 
most of Hazelwood’s new employees came. One third of 
Hazelwood’s new employees come from St. Louis City, 
whose teachers are over 54% black and whose population 
is over 40% black.26 The applicant flow asserted by de­
fendant would mean, inter alia, that despite the thousands 
of black teachers in St. Louis virtually all the teachers in

24 See Pierre v. Louisiana, 306 U.S. 354, 361-62 (1939).
25 Brief for Petitioners, pp. 47-48. The total applicant number 

doubtless includes some duplications of whites who submitted or 
renewed their applications. There is no explanation as to how they 
were determined. Petitioners, also, do not in their calculations 
discount black teachers who were only hired after this suit was 
brought or include those black applicants who applied in more than 
one year. See 392 P. Supp. 1285. (Vina Jones).

26 Statistical Abstract of the United States, 1973, p. 891.



13

the city seeking jobs in Hazelwood were white. Such a 
peculiar pattern of behavior would call for an eviden­
tiary explanation, particularly in view of the fact that 
Hazelwood’s past failure to hire blacks must have been 
common knowledge and is likely to have deterred black 
applicants. While a variety of other possible theories, most 
involving continuing effects of past discrimination, could 
be hypothesized to explain the alleged paucity of black ap­
plicants, the burden was on defendants to provide evidence 
to establish a neutral explanation, and that burden was 
neither met nor shouldered below. Certainly the United 
States cannot be faulted, as defendants seek to do in this 
Court, for having “failed” to show in the District Court 
in 1974 that there was some discriminatory origin of a 
small number of black applicants first asserted to exist in 
this Court several years later.

Defendants offer a related assertion of fact with regard 
to its failure to hire any blacks prior to 1969—that vir­
tually no blacks applied during this period.27 No employee 
of the defendant school board who testified, most of whose 
experience at Hazelwood began prior to 1969, stated there 
was any shortage of black applicants then. This era, more­
over, was one in which Hazelwood was engaged in active 
recruiting, and thus the racial composition of the applicant 
group was directly under its control.28 If there were a 
shortage of black applicants in this period it was certainly 
due to the fact that Hazelwood’s recruiting was almost 
entirely limited to all-white or virtually all-white colleges, 
and that while the district recruited from schools in dis­
tant states it never sought applicants from the predom­
inantly black Harris Teachers College less than 10 miles 
away in downtown St. Louis. Here again, the burden was

27 Brief for Petitioners, pp. 58-59.
28 534 F.2d at 808-09.



14

on Hazelwood to offer evidence establishing both a low 
number of black applicants, and the absence of taint, and 
it did neither.

Finally defendants attack the inclusion of St. Louis City 
in the labor market with which Hazelwood’s meager num­
ber of blacks was compared. The court below noted that 
approximately one third of the teachers hired by Hazel­
wood lived in St. Louis City when first hired by defendants, 
and Hazelwood does not deny that about half of all the 
teachers in St. Louis are black. 534 F.2d at 812, n. 7. 
Defendants did not raise this issue in the district court, 
a matter of some importance since it also involves factual 
assumptions not supported by the record; defendants’ ref­
erence in their court of appeals brief to the inclusion of 
St. Louis, if an argument at all, certainly is not the con­
tention urged here.29

(a) Defendants appear to argue that the large number 
of presently employed black teachers in St. Louis is unim­
portant because that figure is inflated by the City’s active 
recruitment of black teachers from outside the state, where­
as those hired from St. Louis by Hazelwood were persons 
who merely lived there but were not yet employed as 
teachers, presumable mostly new college graduates. This 
contention rests entirely on the assumption that Hazelwood 
is not hiring employed teachers away from the City of St.

29 Brief of Appellees, p. 18:
“It is ironical that the Government would introduce Dr. Young 
as a witness to support its contentions. His further testimony 
indicated that his office maintained files with complete knowl­
edge of the race of the applicants. Further, he stated that the 
Board of Education deliberately tried to maintain a ratio of 
50% black and 50% white teachers. That in the last three 
years, the St. Louis Board of Education has hired approxi­
mately 55% black teachers. This is in the face of the Govern­
ment’s argument that a 16% teacher ratio should be maintained 
in the St. Louis area.”



15

Louis and that few of the new teachers in St. Louis are 
black; these factual allegations were never made or proved 
below and are not supported by the record.

(b) Defendants seem to argue, in the alternative, that it 
cannot find many black teachers because St. Louis is get­
ting them all, or, at least, St. Louis is getting all the black 
teachers who live in St. Louis. This factual claim, how­
ever, was never made or approved below, and no evidence 
was introduced, and no new factual assertion is made here, 
to explain why Hazelwood would always lose to St. Louis 
in the competition for blacks, why black college graduates 
would prefer to teach in St. Louis, or why black teachers 
in the St. Louis system would be less interested in trans­
ferring to Hazelwood than white St. Louis teachers.

(c) The government argued and the court of appeals 
found that the 15% black teacher ratio in St. Louis County 
was a reasonable standard against which to measure 
Hazelwood. The 15% standard was based on the 1970 cen­
sus when blacks constituted about 40% of the St, Louis 
City teachers.30 In arguing that the St. Louis figures are 
in some sense inflated defendants rely entirely on a state­
ment made by a St. Louis school official in March of 1974 
that “in the past few years” the city had shaped its re­
cruiting and hiring policies so as to maintain an equal 
number of black and white teachers in the system.31 Given 
the temporal limitation in the testimony, however, there 
is no reason to believe that this “recent” policy was in ef­
fect prior to 1970 or was responsible for the 1970 St. Louis 
figure, which was well under 50% black and which is the 
figure used by the court of appeals. Moreover, the testi­
mony relied on does not indicate whether the recruiting

30 5 34 F.2d 811.
31 App. 92-94,



16

and hiring are tilted to increase the number of blacks over 
what would otherwise have been hired, or to increase the 
number of whites. Since black teachers had risen to 54.5% 
of the St. Louis City school system by 1972-73,82 maintain­
ing a 50% white and black proportion would have required 
favortism for white applicants, not blacks.

Defendants in the trial court failed to introduce evidence 
which adequately rebutted the inference of purposeful dis­
crimination raised by the government’s evidence which 
showed a history of discriminatory practices, a hiring pro­
cedure susceptible to racial abuse, a revealing statistical 
disparity, and the clear disparate treatment of qualified 
black applicants who were never interviewed or hired. 
Petitioners’ attempt to rebut that inference at this point 
with a conjectured statistical analysis cannot stand.

III.

Title VIPs Prohibition Against Unnecessary Practices 
With Discriminatory Effects Is Constitutional

Petitioners urge that “no decision of the Court . . . 
holds,” that “mere disparate treatment of blacks (or others 
entitled to the protection of Title VII) in employment prac­
tices suffices to make out a case under Title VII,” and that 
both General Electric Co. v. Gilbert, 97 S.Ct. 401, 408-09 
(1976), and Washington v. Davis, 426 U.S. 229, 246-47 
((1976), erred in suggesting that this matter was decided 
earlier. They insist both Griggs v. Duke Power Co., 401 
U.S. 424 (1971) and Albemarle Paper Co. v. Moody, 422 
U.S. 405 (1975) were, insofar as they dealt with testing 
and educational requirements, really intent cases, and that 
the tests and requirements were there disapproved be- 32

32 Plaintiff’s Exhibit 54.



17

cause they froze blacks into positions to which they had 
been assigned on the basis of race. Brief for Petitioners, 
p. 41, n. 13. In Griggs, however, the test was only used for 
employees hired after 1965, when the district court found 
there was no intentional discrimination in assignment, 
401 U.S. at 427, and this Court’s disapproval of the com­
pany’s education requirement was not based merely upon 
its effect on, or limited to, pre-1965 hires, but applied to 
all uses of such requirements “that operate as ‘built-in 
headwinds’ for minority groups and are unrelated to mea­
suring job capability.” 401 U.S. at 432. Similarly, this 
Court’s decision in Albemarle was not limited to the ap­
plication of the Beta and Wonderlie tests to blacks pre­
viously assigned to low skill lines of progression and de­
partments on the basis of race, but extended to all uses 
of those tests. 422 U.S. at 425-436.

Petitioners suggest, in the alternative, that Congress 
never intended to extend this aspect of Title VII to state 
and local governments, emphasizing that the legislative 
history of the 1972 amendments noted that racial discrim­
ination by state and local governments was already prohib­
ited by the Fourteenth Amendment. Brief of Petitioners, 
pp. 38-41. The legislative history cited by petitioners, 
however, does not assert that the substantive rights under 
Title VII are identical to those under the Equal Protec­
tion Clause. The statutory language of Title VII draws 
no distinction whatever between the employment practices 
prohibited on the part of private and public employers. 
Both the House and Senate Beports, in explaining the ap­
plication of Title VII to state and local governments, ex­
pressly noted the need to stop the use of “invalid selection 
techniques,” 33 i.e. tests and educational requirements that

33 S. Rep. No. 92-415, 92nd Cong, 1st Sess., 10 (1971); H.R. 
Rep. No. 92-238, 92nd Cong., 1st Sess. 17 (1971).



18

are not, in fact, job-related; so did Congressman Perkins,34 * 
the House floor manager and Senator Williams,36 the Sen­
ate floor leader.

Third, petitioners suggest that the effect rule is uncon­
stitutional as applied to any employer because it requires 
that applicants be hired on the basis of race. Brief for 
Petitioners, p. 22. Griggs and its progeny do not require 
employers to hire blacks in exactly the proportion of black 
applicants or residents or members of the work force, or 
to abandon any selection procedure which would yield any 
other proportion; a test or other requirement that has an 
adverse effect on a minority group may nonetheless be 
used if the employer can demonstrate that the standard 
is job-related and that no alternative selection procedures 
exist without that effect. Albemarle Paper Co. v. Moody, 
422 U.S. at 429-435. It is, of course, true that Title VII 
encourages an employer to inquire whether its selection 
procedures have such an adverse racial impact, but such 
a salutary undertaking is well within the benign consid­
erations of race permitted, and at times required, by the 
Fourteenth Amendment, iUnited Jewish Organisations of 
Williamsburg v. Carey, 45 TJ.S.L.W. 4221 (1977).

Title VII, insofar as it prohibits certain discriminatory 
effects, was clearly within the power of Congress to enact 
under Section 5 of the Fourteenth Amendment, Section 2 
of the Thirteenth Amendment, and the Commerce Clause. 
There is no area of federal-state relations in which an 
extension of overriding federal control is more firmly 
established, in our history and in the Constitution, than 
that of discrimination. The fundamental constitutional and

34 Legislative History of the Equal Employment Opportunity 
Act of 1972 (hereinafter cited as “Legislative History”) 196
(1972).

36 Id., p. 1114.



19

political theory of the abolitionists who brought about the 
end of slavery, and who, in Congress, drafted the Thir­
teenth, Fourteenth, and Fifteenth Amendments and the 
Civil Rights Acts of 1866 and 1871, was that eradicating, 
discrimination in and by states and localities was a re­
sponsibility which the national government could and 
should assume.36 No form of discrimination is closer to that 
which the Thirteenth Amendment forbade, and no form of 
discrimination is more clearly a “badge of slavery”, than 
racial discrimination in employment. Moreover, the his­
torical evidence indicates that the intent of the framers 
was for Congress, not merely the courts, to play the major 
role in determining what legislation would best enforce 
the protections of the Amendments.* 368

Title VII is not, as petitioners suggest, a wide ranging 
untried and burdensome new substantive standard far 
from the clear meaning of the Equal Protection Clause. 
The effect rule under Title VII, as elaborated by Griggs 
and its progeny, is a precise prohibition against a rela­
tively narrow class of hiring and promotion standards— 
particularly tests and educational, height and weight re­
quirements—which are not related to the particular job at 
issue. This validation defense assures that Title VII will 
not deprive any employer, private or public, of a per­
sonnel device actually necessary to its operation, and thus 
places no significant burden on an employer.37 Congress

36 See generally tenBroek, Equal Under Law (1951).
368 Bickel, The Original Understanding and the Segregation 

Decision, 69 Harv. L. Rev. 1, 63-64 (1955). See Katzenbach v 
Morgan, 384 U.S. 641, 648-51 (1966).
_ 37 The burdens complained of at pp. 21-22 of the Brief for Peti­

tioners are the normal incidents of a finding of discrimination and 
have nothing to do with the effect rule as such.

Petitioners also appear to misunderstand the remedy ordered by 
the court of appeals in this ease which makes clear that it was 
remedying purposeful discrimination by limiting the potential for



2 0

only applied this requirement to state and local govern­
ments after 7 years of experience in the private sector 
demonstrated that the effect rule was both necessary and 
workable.

Katzenbach v. Morgan, 384 U.S. 641 (1966) and Oregon 
v. Mitchell, 400 U.S. 112 (1970) make clear that Con­
gress may, in appropriate cases, prohibit under § 5 of 
the Fourteenth Amendment conduct not otherwise for­
bidden by the Amendment. Compare Lassiter v. North­
ampton Election Board, 360 U.S. 45 (1959). Congressional 
action establishing substantive standards under Section 5 
is most clearly warranted in the penumbra of the Amend­
ment, where either the statutory rule has historically 
or reasonably been regarded as the constitutional rule— 
even though ultimately held not to be so—or the facts 
which Congress has declared a statutory violation would 
have been significant evidence of a constitutional violation. 
Both circumstances are present here. That effect might be 
both necessary and sufficient to establish a constitutional 
violation was suggested by this Court as recently as Pal­
mer v. Thompson, 403 U.S. 217 (1971), and both Washing-

racial abuse. Their claim that the court interfered excessively with 
its necessary operations and ordered racially discriminatory hiring 
is just unfounded. This is shown by what the Court did not do as 
well as by what it did. With the exception of the 16 applicants who 
were discriminated against, the court did not order Hazelwood to 
hire any black teachers. Neither did it order them to establish any 
particular set of standards or criteria or to engage in any re­
cruiting.

The court’s remedy allows Hazelwood to structure its hiring pro­
cedures in any way that it chooses and to establish whatever cri­
teria it wants to apply. The court’s order interferes with Hazel­
wood’s operations only by requiring it not to discriminate in the 
operation of those procedures and the application of those criteria. 
Reporting to the Justice Department and maintaining a record of 
the fate of black applicants make it possible to check whether these 
standards have been applied in a fair and non-discriminatory 
manner.



21

ton v. Davis, 426 IT.S. 229, 241 (1976) and Village of 
Arlington Heights v. Metropolitan Housing Development 
Corp., 45 U.S.L.W. 4073, 4078 (1977) indicate that the ex­
tent to which a disputed action has a discriminatory effect 
is often the most important evidence of the underlying 
intent.

As a matter of purely constitutional law the use by a 
state or local government of a non job-related selection 
procedure with an adverse impact on minorities would, 
under a variety of circumstances, be impermissible. In a 
significant number of cases in which an employer uses 
a test or other device which excludes disproportionate num­
bers of blacks or other minorities, but which is not in fact 
job related, the employer is intentionally employing that 
procedure to discriminate. There are doubtless other cases 
in which such procedures, however wTell intentioned, have 
the effect of locking minority employees into jobs to 
which they were initially assigned on the basis of race. 
Since some selection procedures have an adverse impact 
on minorities because of inadequate education, Griggs 
v. Duke Power Co., 401 U.S. 424, 430 (1971), and since 
that inadequate education is often itself due to past 
racial or other discrimination by state and local govern­
ments, Gaston County v. United States, 395 U.S. 285 
(1969), the use of such procedures by a state or local 
government will involve a problem of past intentional dis­
crimination not applicable to private employers. We be­
lieve that Congress, rather than requiring detailed proof 
that a selection procedure fell into one of these categories 
of unconstitutional action, could reasonably establish a 
simple rule prohibiting the use of such procedures if they 
were not job related. Title VII, viewed in this light, falls 
within the general rule that “the inclusion of a reasonable 
margin to insure effective enforcement will not put upon



22

a law, otherwise valid, the stamp of invalidity.” Euclid v. 
Ambler Realty, 272 U.S. 365, 388-89 (1926).87a This role 
clearly applies to the congressional Fourteenth Amendment 
enforcement power,* 376 which includes the power to prohibit 
as a preventive measure under Section 5 that which would 
not be prohibited by Section 1 of its own force. Com­
pare Katzenbach v. Morgan and Oregon v. Mitchell, supra, 
with Lassiter v. Northampton Election Board, supra.

Title VII is also well within the power of Congress 
under the Commerce Clause. National League of Cities v. 
Usery, 426 U.S. 833 (1976), established that Congress does 
not have the same unfettered control over state and local 
government activities affecting interstate commerce that it 
has over private businesses, and that a statute proper as 
to private industry may be invalidated if it interferes ex­
cessively with the “integral governmental functions” of 
states or cities. 426 U.S. at 851. The constitutionality of 
such legislation depends upon “the degree of intrusion 
upon the protected area of state sovereignty” and the ex­
tent to which its object is, as a legal or practical matter, 
an area of substantial federal interest. 426 U.S. at 852-53. 
The federal interest in protecting racial minorities is well

37a The Court in Euclid further stated that “such laws may also 
find their justification in the fact that, in some fields, the bad fades 
into the good by such insensible degrees that the two are not cap­
able of being readily distinguished and separated in terms of leg­
islation.” Id.

376 See Orloski, The Enforcement Clauses of the Civil War 
Amendments: A Repository of Legislative Power, 49 St. John’s 
L. Rev. 493, 506-507 (1975) ; Yaekle, The Burger Court, “State 
Action,” and Congressional Enforcement of the Civil War Amend­
ments, 27 Ala. L. Rev. 479, 562-66 (1975) ; Cohen, Congressional 
Power to Interpret Due Process and Equal Protection, 27 Stan. 
L. Rev. 603, 613-16 (1975) ; Note, Federal Power to Regulate Pri­
vate Discrimination: The Revival of the Enforcement Clauses of 
the Reconstruction Era Amendments, 74 Colum. L. Rev. 449, 
505-10 (1974).



23

established in our constitutional system, and transcends 
the type of concern at issue in National League of Cities. 
Conformity with Title VII’s effect rule, unlike the min­
imum wage in National League of Cities, will not impose 
any costs on complying jurisdictions. Since Title VII pro­
hibits only selection practices which are not job related, 
compliance will not interfere with any legitimate state or 
local policies or practices and may well contribute sig­
nificantly to the efficacy of their personnel methods.

Independent of its other constitutional bases for actions, 
Congress clearly could, and in this case intended to, re­
quire compliance with the effect rule of Title VII under 
its spending power. Senator Williams, the floor manager, 
explained at the outset of the Senate debate on extending' 
Title VII to state and local employees this rationale and 
ground for congressional action:

The Federal Government’s interest in state and local 
government operations cannot be underestimated. 
There are approximately 10 million employees of state 
and local political subdivisions. The Federal Govern­
ment alone will distribute more than $43 billion of its 
tax revenues to these levels in the next year . . .

Mr. President, it is clear that with the expenditure 
of such sums comes the responsibility of making sure 
that the distribution and use of the funds is without 
discrimination. The failure to have adequate minority 
representation in those agencies of Government re­
sponsible for expending those funds is an element of 
this discrimination.38

Senator Williams then placed in the Congressional Record 
a lengthy memorandum detailing the various types of fed­

Legislative History, pp. 1114-15,



24

eral aid being provided to state and local governments.39 
Senator Williams also placed in the record portions of a 
report of the United States Commission on Civil Rights 
urging federal action on this basis.40 The Hazelwood 
School District is among the thousands of units of state 
and local government receiving such federal aid and in 
recent years has sought and accepted more than $500,000 
annually in federal grants. Agencies accepting such funds 
are, as a consequence, subject to a host of federal statutes 
and regulations not remotely related to their constitutional 
duties, and Hazelwood, like the others, must accept such 
additional requirements.

IV.

The Remedy Afforded the 16 Victims o f Discrimination

Petitioners devote 17 pages of their brief to an argument 
that the court of appeals erred in finding there was dis­
crimination against the 16 black applicants to whom specific 
relief was awarded. Brief for Petitioners, pp. 61-77. Peti­
tioners urge that, if the Court rejects their argument con­
cerning the constitutionality of Title VII, the case none­
theless be “remanded for reconsideration of the alleged 
individual cases of discrimination.” Id., p. 78. Petitioners 
candidly concede, however, that certiorari was purposely 
not sought with regard to this aspect of the Eighth Cir­
cuit’s decision. Id., p. 62. Under these circumstances the 
Court can neither consider nor resolve the issues deliber­
ately abandoned by petitioners.

39 Id., pp. 1138-50.
40 Id., 1123.



25

v.
Affirmative Action Is Required to Disestablish the 

Pattern o f Racially Identifiable School Districts

As we noted supra, pp. 2-6, Missouri prior to 1954 
mandated the assignment of teachers among St. Louis 
county school districts on the basis of race, and forbade 
the hiring of black teachers by Hazelwood and 22 other 
districts. The result of this de jure faculty segregation 
was that both the racial composition of student bodies, 
and which districts operated schools for black students at 
all, could be readily identified by the race of the faculty. 
Such a pattern of faculty hiring and assignments is among 
the practices which are forbidden by Brown and which the 
school officials involved are required to take steps to dis­
establish. United States v. Montgomery County Board of 
Education, 395 TJ.S. 225 (1969).

Even if Hazelwood abandoned in the early 1970’s or 
earlier its past policy of hiring only whites, that would 
not be sufficient to satisfy its constitutional obligation 
under Brown. In Green v. School Board of New Kent 
County, 391 TJ.S. 430 (1968), this Court rejected the argu­
ment that a school board could meet its responsibilities 
with regard to student segregation by merely opening “the 
doors of the former ‘white’ school to Negro children,” par­
ticularly since this placed the burden of desegregation on 
black parents and children who were required to take the 
initiative in disestablishing the dual system. 391 H.S. at 
438, 441. Green charged the school boards with an “affirm­
ative duty to take whatever steps might be necessary to 
convert to a unitary system in which racial discrimination 
would be eliminated root and branch.” 391 TJ.S. at 438. 
Swann v. Charlotte-Mecklenburg, 402 H.S. 1 (1971), made



26

clear that this means that, to the extent reasonably feas­
ible, pupil assignments must be modified to disestablish 
any pattern of racially identifiable schools.

Swann also held that a similar obligation applied to 
f aculties:

Independent of student assignment, where it is pos­
sible to identify a “white school” or a “Negro school” 
simply by reference to the racial composition of teach­
ers and staff, the quality of school buildings and equip­
ment, or the organization of sports activities, a prima 
facie case of violation of substantive constitutional 
rights under the Equal Protection Clause is shown. 
402 IJ.S. at 18.

There is no reason to distinguish the cle jure restriction of 
black teachers to particular schools from the de jure allo­
cation of black teachers among particular districts wdiere, 
as here, those districts are adjacent or in reasonable proxi 
imity to each other. In the instant case there are 9 school 
districts with over 3,000 teachers adjacent to St. Louis 
City, all of which were forbidden by law to hire black 
teachers prior to 1954. These are precisely the circum­
stances in wThich Sivann requires that affirmative action be 
taken by local officials to disestablish the pattern of racially 
identifiable school districts.41

The record clearly establishes that this was not done. 
As of 1972-73, 4 of the 9 adjacent school districts still had 
no black teachers, and 2 others, including Hazelwood, had 
1% or less. The only districts with significant numbers of

41 Since there are 9 such adjoining districts it is not necessary 
for the Court to consider whether the other 14 districts in the 
county have such a geographical proximity to St. Louis, Kinloch, 
or the new heavily black districts as to require similar affirmative 
action.



27

black teachers are those that have also acquired since 1954 
substantial black populations. The simple system of racial 
identifiability that had existed in 1954, rather than wither­
ing away, had grown in sophistication and complexity, now 
indicating, not merely whether a district had black stu­
dents, but also roughly how many. See pp. 4-5, supra.

The conduct of the Hazelwood officials in this case bears 
a striking resemblance to that disapproved in Green. Al­
though the district claims to have had a nominal policy of 
non-discrimination since at least the early 1960’s, no black 
teacher was hired until 1969, some 15 years after Brown. 
Since then the black faculty has remained at a token level 
in the school district. The critical hiring decisions, based 
on broad and unreviewed discretion, are made by principals 
and supervisors who, because of Hazelwood’s past dis­
crimination, are all white. The primary defense advanced 
by Hazelwood in this Court is that it has opened its doors 
to black teachers, but that very few teachers have applied. 
Hazelwood’s conduct is the precise counterpart in the area 
of faculty segregation to the “freedom of choice” plan 
found wanting in Green. Such a passive approach, while 
not invalid per se, is only constitutionally acceptable where 
it in fact succeeds in disestablishing the pattern that arose 
under the practices forbidden by Brown. Here, as in 
Green, it has not succeeded.

Green and Swann thus provide a constitutional basis 
for requiring appropriate remedial action by Hazelwood 
regardless of whether the school district has engaged in 
active discrimination in recent years. This theory of the 
case was expressly advanced by the United States below.42 * * *

42 App. 3, 4; Memorandum In Support of Plaintiff’s Proposed
Findings of Fact and Conclusions of Law and Proposed Order,
pp. 6-7. This Memorandum urged that in view of Hazelwood’s
affirmative duty under Green “a late blooming racial neutrality on



The decision of the court of appeals can be affirmed on 
this ground alone, without reaching the Title YII issue, 
and should be affirmed on this ground even if the govern­
ment’s Title VII claim is not upheld.

We believe that, judged by the requirements of Green, 
as by those of Title VII, the remedy ordered by the court 
of appeals is seriously deficient. Hazelwood is directed to 
cease discrimination, to adopt more objective standards, 
and to make periodic reports. The only specific substantive 
relief ordered is the hiring of 16 particular victims of past 
discrimination, a number so small as to be insufficient to 
materially increase the proportion of black teachers at 
Hazelwood. Although the government, at trial, sought af­
firmative relief in the form of goals and timetables to in­
crease the number of black teachers,* 48 the issue of relief, 
however, was not briefed on appeal. With the exception of 
the 16 rejected blacks the Eighth Circuit’s order is entirely 
prospective, and does not seek to redress the effects of 
past practices. We note, however, that the opinion of the 
court of appeals does not purport to limit the ability or 
duty of the district court to order whatever additional re­
lief may be warranted by the circumstances.

the part of District personnel in hiring decisions, even if it were 
present in this case, which we do not concede, would not be suffi­
cient to establish absence of a violation.”

48 Memorandum In Support of Plaintiffs’ Proposed Findings of 
Fact and Conclusions of Law and Proposed Order, pp. 10-13. The 
United States suggested as a goal that Hazelwood hire at least 1 
black for every 3 whites until the Hazelwood Faculty reached 15% 
black. Id,., p. 12.



29

CONCLUSION

For the foregoing reasons the judgment of the court 
of appeals should he affirmed.

Respectfully submitted,

J ack Greenberg 
J ames C. Gray, J r.
P atrick 0 . P atterson 
T yree I rving 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Louis Gilden

722 Chestnut Street 
St. Louis, Missouri 63101

Counsel for Amicus



MEILEN PRESS INC — N. Y. C. 219