Morrow v. Crisler Memorandum Amicus Curiae

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FOR THE FIFTH CIRCUIT

No. 72-1136

WILLIE L. MORROW, et al.,
Plaintiffs-Appe11ants, 
Cross Appellees

v.
GILES W. CEISLER, et al.,

Defendants-Appellees, 
Cross Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE IN 
SUPPORT OF APPELLANTS' PETITION FOR REHEARING AND SUGGES­

TION FOR REHEARING EN BANC

ROBERT E. HAUBERG J. STANLEY POTTINCUR
United States Attorney Assistant Attorney General

DAVID L. ROSE 
WILLIAM B. FENTON

v Attorneys
V Department of Justice
. Washington, D.C. 20530

________  ___ ■ __________ __________________



.. .-'tv.T-A '’•'iTTC T' pc i n n c*AL3

FOR THE FIFTH CIRCUIT

No. 72-1136

WILLIE L. MORROW, et al.,
P1 a in t i f f r> - A p p e 11 an t s , 
Cross Appellees

v .
GILES W. CRISLER, et al.,

Defendants-Appellees, 
Cross Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE IN 
SUPPORT OF APPELLANTS' PETITION FOR REHEARING AND SUGGES­

TION FOR REHEARING EN BANC

ROBERT E. HAUBERG 
United States Attorney

J. STANLEY POTTINGER 
Assistant Attorney General
DAVID L. ROSE 
WILLIAM B. FENTON 

Attorneys
Department of Justice 
Washington, D.C. 20530

< i u u pp



TABLE OF CONTESTS.

Introduction...................................
Statement.......................................
Argument............ ...........................

A. The District Court’s Refusal to Order an 
Affirmative Hiring Goal Constituted an 
Abuse of Discretion Because It Did̂  Not 
Accord TJith the Fundamental Equitable 
Principles of Correcting the Effects
of Past Discrimination............... * •

B. There is no Constitutional Infirmity to
the Ordering of an Affirmative Hiring 
Goal for Minorities....................

Conclusion......................................
CITATIONS

Cases:
Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir. 1972), 
cert, denied, 406 U.S. 950....................... .

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972).....

Contractors Ass’n of Eastern Pa. v . Secre_tarv—of 
Labor, 442 F.2d 159 “(3rd Cir. 1971), certm denied,
404 U.S. 854........................................

Green v. School Board of New Kent County, 391 U.S.
430 (1968)..........................................

Local 53. Asbestos Workers v. Vogler, 407 F.2d 
1047 (5th Cir. 1969)...............................



Page
Local 189, United Pnoerreakers v. United States,
416 F.2d 930 (5th Cir. 1969), cert. denied, 397
U.S. 919..................... '..___ '.... ........ 4

Louisiana v . United States, 380 U.S. 145 (1965)...... 4

Moody v. Albemarle Pater Co.. 474 F.2d 134 
(4th Cir"] 1973).......... . ......................... 5

NAACP and United States v. A11en and Frazer, 340 
F. Supp. 703 (M.D. Ala. 1972), appeal pending,
No. 72-1796.......................... ".............. 6, 7

Nev/inan v. Pisaie Park Enterprises, Inc.. 390 U.S.
400 (1968)..... ....................................  5

Northeast Construction Co. v. Romney, 5 [CCH]
EPD % 8495, 5 FEP Cases 746 (D.C. Cir. 1973)........  8

T

Southern Builders Ass'n v. Oailvie, 471 F.2d 
680 (7th Cir. 1972)................................  7, 8

United States v. Burr, 25 Fed. Cas. 30 (No. 14,
692d, 1307)............. ...........................  5

United States v. Hinds County School Board, 417 
F.2d 852 (5th Cir0 1969)........................... 5a

United States v 0 Local 86. Ironworkers, 443 F.2d 
544 (Sth Circ 1971), cert, deniea, 404 U.S.
984, aff’ming 315 F. Supp. 1202 (W.D. Wash.
1970)............................................... 8

United States v. Local 169, Carpenters, 457 F.2d 210 
(7th Cir. 1972), cert. denied, 409 U.S. 851........  5

United States v. Local Union No. 2.12, Int'l.
Brotherhood of Electrical Honkers, 472 F.2d
634 (6th Cir. 1973)................................  7-8

United States v. Wood, Wire & Metal Lathers Int'l.
Union."Local No. 46, 471 F.2d 403 (2nd Cir. 1973), 
petition for cert, filed, No. 72-1309...... ........ 8

-ii-



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 72-1136

WILLIE L. MORROW, et al.,

Plaintiffs-Appellants, 
Cross Appellees

v.
GILES W. CRISLER, et al.,

Defendants-Appellees, 
Cross Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE IN SUPPORT 
OF APPELLANTS' PETITION FOR REHEARING AND 

SUGGESTION FOR REHEARING EN BANC

The United States respectfully submits this memorandum 
as amicus curiae pursuant to Rule 29 of the Federal Rules of 
Appellate Procedure.

INTRODUCTION
The United States has previously filed briefs as 

amicus curiae in both the district court and the Court of



Appeals in this case, primarily because of the impact which 
the decision here will have on the enforcement obligations 
of the Federal Government under Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. 
(which now covers states and their political subdivisions 
as the result of the Equal Employment Opportunity Act of 
1972 P.L. 92-261) and Executive Order 11246. We support 
the appellants’ petition for rehearing and suggestion for 
rehearing en banc because we believe that the district 
court's refusal to order affirmative hiring relief 
for minorities on the facts of record was an abuse of 
discretion which if sustained by this Court will create 
an appellate precedent which will have a substantial 
adverse impact on the enforcement program of the Federal 
Government.

STATEMENT
The undisputed facts, as found by the district 

court, showed that of the 743 employees in the Mississippi 
Department of Public Safety, of which the Highway Safety 
Patrol is an agency, only 17 were black and these blacks 
were employed exclusively in the jobs of cook and janitor.

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The Highway Safety Patrol has never in its history 
employed a black as a sworn officer. Of the 107 whites 
hired as patrolmen since January 1, 1968, all but twelve 
had friends or acquaintances employed by the Patrol.
Most of the present patrolmen learned of vacancies and 
the fact that applications were being accepted through 
word-of-mouth inquiry from patrolmen who were their 
friends and relatives. Similarly, the majority of the 
clerical positions in the Department were filled by 
walk-ins, many of whom were recommended by present 

employees.
The Department and the Patrol have a reputation 

in the black communities of Mississippi (which is 
36.7% black) of being all-white.

After fi-nding that the defendants were engaged 
in a pattern and practice of racial discrimination in 
violation of the Fourteenth Amendment and 42 U.S.C.
§§1981 and 1983, the district court enjoined the con­
tinuance of xchat it perceived to be racially discrimina­
tory policies and practices. The district court, however, 
without giving any reasons for its order in this regard, 
specifically denied any affirmative hiring relief for 
minorities (see Slip. Op., p. 17).



The three-judge panel of this Court affirmed the 
district court’s finding that the defendants were engaged 
in a pattern and practice of racial discrimination in 
hiring and employment in violation of the Fourteenth 
Amendment. A majority of the panel further held (with 
Judge Goldberg dissenting on this issue) that under the 
facts and circumstances as shown by the record, the dis­
trict court did not abuse its discretion in failing to 
order affirmative hiring relief for minorities.

ARGUMENT
A . The District Court’s Refusal to Order an 

Affirmative Hiring Goal Constituted an 
Abuse of Discretion Because It Did Not 
Accord With the Fundamental Equitable 
Principles of Correcting the Effects of 
Past Discrimination

In cases involving violations of civil rights 
protected by the Fourteenth Amendment and federal statutes, 
it is fundamental that the courts have the authority and 
the duty not only to prevent future discrimination but to 
correct insofar as feasible the effects of past discrimina­
tion. Louisiana v0 United States. 380 U.S. 145, 154 (1965). 
This fundamental equitable principle is fully applicable to 
cases of employment discrimination. E.g., Local 53. Asbestos 
Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969);
Local 189, United Papemakers v. United States, 416 F.2d

-4-



980, 990-991 (5th Cir. 1969), cert, denied, 397 U.S. 919; 
United States v. Local 169, Carpenters, 457 F.2d 210, 216 
(7tli Cir. 1972), cert. denied, 409 U.S. 851.

A district court's discretion in cases involving 
racial discrimination is not absolute but must be exercised 
in accordance with the purposes of federal law and sound 
equitable principles. Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400 (1968); Green v. School Board of New Kent 
County, 391 U.S. 430 (1968); Moody v. Albemarle Paper Co., 
474 F.2d 134 (4th Cir. 1973). As Chief Justice Marshall 
stated long ago, to say that a matter is within a court's 
discretion means that it is addressed not to the 
court's "inclination, but to its judgment; and its 
judgment is to be guided by sound legal principles."
United States v. Burr, 25 Fed. Cas. 30, 35 (No. 14,
692d, 1807).

The decisions cited above place on the district 
court an obligation to fashion affirmative relief, and its 
discretion is to be exercised in choosing from among 
available methods of effective affirmative relief.
While the decree below may be adequate to prevent future

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discrimination, it does not address the problem of correcting 
the effects of past discrimination. Indeed, the district court 
did not purport to find that the decree would correct the 
effects of past discrimination or that any facts of record 
militate against an affirmative hiring goal for minorities.

In this case, the exclusion of blacks from the 
position of patrolman was total, and while "statistics are 
not, of course, the whole answer, . . . nothing is as 
emphatic as zero." United States v. Hinds County School 
Boa_rd, 417 1.2a 852, 858 (5th Cir. 1969). The record before 
the district court when it entered its decree showed the 
need for affirmative relief, and developments under the

'""l — *" - .................... .. i ■ ip ■■■■■■■ — — m m m mi i ■  ■

decree have shown that the relief given by the district
court was inadequate to correct the effects of past dis­
crimination. A token number of black employees is all that

____^ ii— wj'ini  •

the district court's present decree is producing - a 
result made inevitable by the extent of the discrimination 
shown by evidence of record and the refusal of the district 
court to order affirmative relief. Records required to be

5a



kept by the district court's decree show that only 13 of 
the 186 persons hired by the Department since the date of the 
decree have been black (7%), including only 4 of the 51 
newly hired patrolmen (see Appellants' Motion to Supplement 
the Record, served on May 4, 1973). On the other hand, the 
record in NAACP and United States v0 Allen and Frazer, 340 
F. Supp0 703 (M0D. Ala0 1972), appeal pending, No0 72- 
1796, a case factually similar to the one at bar in which the 
district court ordered affirmative hiring relief for blacks 
with respect to the Alabama Department of Public Safety, 
shows that since the effective date of the court's order on 
February 10, 1972, 52 of the 96 persons employed by the Alabama 
Department of Public Safety have been black (54,2%), including 
12 of 25 newly hired state troopers (see Appellants' Motion to 
Supplement the Record, served on May 4, 1973). The difference 
in terms of the measurable results of the decree sub judice 
and the decree in NAACP and United States v. Allen and Frazer, 

iLuP i*®.* > the percentage of blacks employed, is striking 
and admits of only one conclusion: the decree requiring
affirmative minority hiring is working while the one here is not.

Although the rationale of the majority's decision, 
m  giving wide latitude to a district court to fashion a remedy

-  6 -



to cure the evils of racial disirrsjcn• "-Mr:ion, v;ould seem to 
also sanction the affirmative numerical relief ordered in

53- - A b s t■o£ Workers v 0 Verier, 407 F.2d 1047 (5th 
Cir. 19o9) the result is in fact in conflict with the 
result under that earlier decision of this Court.

Finally, the rationale of the panel's decision here 
would seem to indicate that the district court in NAACP

~-d- Unit:ed v. Allen and Frazer, sunra, did not abuse
its discretion in ordering numerical affirmative relief, 
although the results are opposite on records which are 
in all material respects identical.

B• There is no Constitutional Infirmity tn 
the Oraerxng or an Arrlnr.aciye Hiring 
Goal for Minorities

The majority opinion also expresses concern over 
the constitutionality of "quota-based relief" (Slip Op., p. 8). 
With respect to affirmative hiring goals for minorities, which 
is the relief we believe is required here, that concern is 
unfounded as at least seven of the eleven circuits have 
ruled: Carter v. Gallagher, 452 F.2d 315, 327 (Sth Cir.
1972), cert^ denied, 406 U.S. 950; Southern Builders Ass'n v. 
0£ilvie, 471 F.2d 680 (7th Cir. 1972); United States v.

-7-



liS S a L iM o n No- 212. Int'1. Brotherhood o f E le c tr ic a l Uorkny.- 

472 F.2d 634 (6tll Cir0 1973); Contractors Ass'n o f E;astern
v - Secretary of Labor. 442 F.2d 159 (3rd Cir. 1971), 

denied, 404 U.S. 854; United States v. Wood, Wire & 

I-'a111er_s_ Int13. Union, Local No, 46. 471 F.2d 408 
(2nd Cir. 1973) petition for cert, filed, No. 72-1309; 

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); United 

States v. Local 86, Ironworkers. 443 F.2d 544 (9th Cir. 

1971), cert^. denied, 404 U.S. 984, aff'ming 315 F. Supp. 
1202 (W.D. Wash. 1970). See also, Northeast Construction 
^  v -_l2£nev, 5 [CCH] EPD *118495, 5 FEP Cases 746 

(D.C. Cir. 1973). As the Seventh Circuit put it in 
-̂̂1111414442311— ^ers Ass’n v . Oalluie. surra, 471

F*2d at 685: "Affirmative action plans promulgated by 
the courts are part of the courts1 power and duty to 
eliminate the vestiges of past discrimination."

We wish to make clear that we do not ask that
the district court be directed to order "quota" hiring 
which would require the defendants to h ire a specified 
number of minorities regardless of qualifications and 
would require absolute preferences based on race. We 
do ask, however, that the district court be directed to
implement an affirmative hiring goal (subject to the avail­
ability of qualified black applicants) in order to assure



minorities that if they do apply and are qualified (under 
.non-discriminatory stanoards) they will h have a realistic 
opportunity for employment when vacancies occur. I f

In our view, an appropriate affirmative hiring 
order would be to require the defendants or their
successors to adopt and seek to achieve a goal of hiring 
one black for every white hired (i.e. 50% black) to 
the extent that qualified blacks are available, and 
that it adopt a recruiting program designed to attract 
enough qualified black applicants to meet their goal. 
Such a goal should remain in effect until such time
as the percentage of black employees in the entry level job 
categories in the Department and the Patrol approximates 
the percentage of blacks w’hich would have been in those 
jobs, in the absence of past discrimination. 2/

1 /  See Memorandum-Permissible Goals and Timetables in State 
■gild Local Government Employment Practices (March 23, 1973)~ 
stating the rederal policy on remedies concerning equal 
employment opportunity in state and local government personnel 
systems, 1 [CCII] Empl. Practices Guide 5 3775.

—/ majority opinion sta.tes that "there is no evidence in 
the record from which to infer the percentage of the hired
• employees of the Highway Patrol that be white and the per­
centage thai_ would be black, but tor * *..cial discrimination" 
•(Slip Op., p .  7). It is true that the present result of 
past discrimination in this area cannot be measured 
with complete exactitude; however, it is not unreasonable 
to assume that in the absence of racial discrimination, 
blacks would have been employed in at least the entry level 
jobs in the Department and the Patrol in percentages 
approximating the percentage of blacks in the state.



This relief will result in more then a token employment 
of blacks in the Department and Patid. and at the same time 
it will insure that only qualified persons are employed. 
Moreover, the hiring ratio goal will not be an indefinite 
obligation on defendants or their successors -- it will 
be only an interim requirement which will end when the 
effects of past discrimination have been substantially

overcome.
CONCLUSION

For the foregoing reasons, we urge that the 
appellants' petition for rehearing and suggestion for 
rehearing en banc be granted and that the case be remanded 
to the district court with instructions to order affir­

mative hiring relief.
Respectfully submitted,

ROBERT E. HAUBERG 
United States Attorney

J. STANLEY POTTINGER 
Assistant Attorney General

\ V U : ___
DAVID L. ROSE 
WILLIAM B. FENTON 
Attorneys
Department, of Justice 
Washington, D.C. 20530



CERTIFICATE C VT’VTf’ir
L - * .  V V . L  *-J

I hereby certify that I have served the roregoing 
Memorandum For The United States As Amicus Curiae In 
Support Of Appellants' Petition For Rehearing And Sugges­
tion For Rehearing En Banc on counsel for each of the 
parties by mailing copies to them at the addresses listed 

belov? on this the l̂ > day of May, 1973:

Frank R. Parker & Constance Iona 
Slaughter, Esquires 
233 North Farish Street 
Jackson, Mississippi 39201
William A. Allain 
Assistant Attorney General 
State of Mississippi 
Post Office Box 220 
Jackson, Mississippi 39205
C.A. Marx, Esquire 
Post Office Box 958 
Jackson, Mississippi 39205

X n  %  .N:.:
WILLIAM B. FENTON 
Attorney
Department of Justice 
Washington, D.C. 20530