Arar v. Ashcroft Brief for Amicus Curiae NAACP Legal Defense & Educational Fund in Support of Plaintiff-Appellant Upon Rehearing En Banc

    IN  THE

luttefr BMvb (Hmvt nf Appeals
For the Fifth Circuit

No. 21256

JONI RABIN0 WITZ,

versus
Appellant,

UNITED STATES OF AMERICA,
Appellee.

SUPPLEMENTAL BRIEF FOR APPELLANT

V ic to r  R a b in o w it z ,
L eo n a rd  B . B ottdin,

New York, N. Y.

C. B . K in g ,
Albany, Ga.,

Attorneys for Appellant.



IN THE

llnttefc States (Hmtrt rrf Apjmtla
For the Fifth Circuit

No. 21256

------------o------------
J o n i R a b in o w it z ,

versus
Appellant,

U n it e d  S ta te s  oe A m e r ic a ,
Appellee.

— ---------------------------o-------- --------------- --------

SUPPLEMENTAL BRIEF FOR APPELLANT

In the original brief submitted on behalf of the appel­
lant, we pointed to the wide disparity between the pro­
portion of Negroes in the adult population (34.55%) and 
proportion of Negroes on the jury list (5.8%). Some ques­
tion has been raised as to whether the same ratio would hold 
if we were to consider only adult persons who were, in the 
words of the statute, able to ‘ ‘ read, write, speak and under­
stand the English language”  (28 U. S'. C. 1861).

Unfortunately, a precise statistical analysis is impos­
sible. The standard of literacy set forth in the statute is 
not an objective one and not readily susceptible of statis­
tical treatment. However, the census does contain some 
information as to the extent of formal education of the 
population on a county by county basis and some general 
conclusions may be drawn therefrom.

In its Current Population Reports, the Bureau of the 
Census refers to “ functional illiteracy”  and notes that that 
term was used by the Army in World War II. “ Since that 
time, the term ‘ functional illiterate’ has been commonly



2

used to denote-a person who has completed fewer than five 
years of school.”  (Current Population Reports, Feb. 12, 
1963, Series P-3, No. 8.) By that standard, available census 
statistics would indicate that Negroes constitute between 
25.3% and 26.3% of the “ functionally literate”  population 
in the Macon Division of Georgia (as compared with 5.8% 
of the jury list).

If we accept the standard of literacy established by 
the Civil Rights Act of 1964 [42 IT. S. C. 1971(c)]* and 
assume that any person who has completed the sixth grade 
possesses the literacy qualifications for service as a juror, 
the census statistics would indicate that between 22.9% and 
23.9% of the literate population is Negro.

The relevant statistics are set forth in tables in an 
appendix hereto. All of the information in the tables is 
taken or derived from United States Census of Population: 
1960, Vol. I, Characteristics of the Population, Part XII,  
Georgia, pp. 277-290, 333-343. The tables show that Negroes 
(i.e., non-whites) make up 24.3% of the population over 
the age of twenty-five who have completed the fifth grade 
of school, and 21.9% of the population who have completed 
the sixth grade. The Bureau of Census does not publish 
comparable figures for persons over the age of twenty-one, 
the statutory age for jury eligibility. Since, generally 
speaking, Negro illiteracy is proportionately greater in the 
older segments of the population and since there is an 
appreciable number of persons between the ages of twenty- 
one and twenty-five, one or two percentage points should 
be added to the census figures to provide a proper adjust­
ment.

* “ . . . there shall be a rebuttable presumption that any person 
who has not been adjudged an incompetent and who has completed 
the sixth grade in a public school . . . possesses sufficient literacy, 
comprehension and intelligence to vote in any federal election.”



Even on these statistics there is a discrepancy which 
is startling. If a jury list had been a true cross-section of 
the “ literate”  population, it would have had about 500 
Negroes on the jury list instead of 117. This is not a dis­
crepancy that can be explained by accident. In fact, it is 
fully explained by the record. See original Brief, pp. 8-24.

V ic to r  R a b in o w it z ,
L eonard  B . B o u d in ,

New York, N. Y.

C . B. K in g ,
Albany, Ga.,

Attorneys for Appellant.

May 12, 1965.



4

APPENDIX

Column 1 2 3 4 5 6 7
Persons 25 years & over________ Non-White 25 years & over

Completed Completed
Completed5 yrs. or more Completed 5 yrs.or more

(i.e. meets 6 yrs.or more Total Non- (i.e. meets 6 yrs. or more
U. S. Army (i.e. meets White U. S. Army (i.e. meets

Completed standard of standard of Population Completed standard of standard of

County
25 years 
& over

fewer than 
5 school years

“functionally
literate” )

Civil Rights 
Act of 1964)

25 years 
& over

fewer than 5 
school years

“functionally
literate” )

Civil Rights 
Act of 1964)

Baldwin 22,066 7,405 14,661 13,021 7,922 4,059 3,863 3,140
Bibb 73,819 11,440 62,379 57,803 22,508 8,090 14,418 12,180
Bleckley 4,742 1,305 3,437 3,083 1,099 680 419 311
Butts 4,527 1,111 3,416 3,078 1,689 790 899 709
Crawford 2,692 772 1,920 1,662 1,250 600 650 516
Hancock 4,475 1,373 3,102 2,636 2,898 1,224 1,674 1,301
Houston 17,950 2,197 15,753 15,016 3,360 1,699 1,661 1,359
Jasper 3,158 844 2,314 2,074 1,460 687 773 617
Jones 4,091 1,024 3,067 2,748 1,749 763 986 806
Lamar 5,282 1,053 4,229 3,845 1,703 672 1,031 869
Monroe 5,085 1,195 3,890 3,530 2,106 909 1,197 988
Peach 6,531 1,653 4,860 4,474 3,256 1,444 1,812 1,552
Pulaski 4,156 1,083 3,073 2,800 1,461 759 702 562
Putnam 3,786 928 2,858 2,524 1,826 745 1,081 851
Twiggs 3,469 1,210 2,259 1,955 1,802 925 877 703
Upson 12,784 2,797 9,987 9,043 3,066 1,537 1,529 1,193
Washington 9,325 2,768 6,557 5,865 4,564 2,309 2,255 1,795
Wilkenson 4,617 1,164 3,453 3,043 1,774 822 952 760

T otal 192,537 41,322 151,215 138,200 65,493 28,714 36,779(1) 30,212(2)

(1) Negroes comprise 24.3% of the total population 25 yrs. & over meeting the U. S. Army standard of “functionally literate” .
(2) Negroes comprise 21.9% of the total population 25 yrs. & over meeting the literacy standard of the Civil Rights Act of 1964.
Note: The Census Bureau reports separate totals for persons who have completed no school years, for those who have com­

pleted one to four years of school and for those who have completed five and six years of school. There is no separate calculation 
for those who have completed six years. In the above tabulation, therefor, columns 1, 2, 3, 5, 6 and 7 are copied from or directly derived 
from the census reports. Columns 4 and 8 are based on the assumption that, in the “five and six year” classification, half of the persons 
have completed five years of school and the other half six.



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