Kirkland v. The New York State Department of Correctional Services Opinion and Order

    UNITED STATES COUET OF APPEALS 
F ob the Second Circuit

At a stated term of the United States Court of Appeals, 
in and for the Second Circuit, held at the United States 
Courthouse, in the City of New York, on the 10th day of 
December, one thousand nine hundred and seventy-five.

Calendar Nos.— 415, 499

74-2116
74-2258

Edward L. K irkland, etc.,

Plaintiffs-Appellees,
—against—

T he New Y ork State Department 
of Correctional Services, etc.,

Defendants-Appellants.

A petition for rehearing containing a suggestion that 
the action be reheard in banc having been filed herein by 
counsel for the plaintiffs-appellees, and a poll of the judges 
in regular active service having been taken, and Circuit 
Judges Mulligan, Timbers, Gurfein, VanGraafeiland, and 
Meskill having voted against en banc reconsideration, and 
Chief Judge Ivaufman and Circuit Judges Mansfield and 
Oakes having voted in favor thereof, and an opinion by 
Circuit Judge Mansfield dissenting from denial of en banc 
reconsideration, in which Chief Judge Kaufman and Circuit

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i*«u.£* m i a t i l aatehMa iii*atifc --- >, feuh ttiMliiijfc idtfMrtjttteJta&fi t&■ ^ - t a u ^ r . . , ^ . .

Judge Oakes join, aud an opinion by Chief Judge Kaufman 
dissenting from denial of en banc reconsideration, having 
been filed,

Upon consideration thereof, it is
Ordered that said request be and it hereby is denied.
Circuit Judge Feinbcrg took no paid in consideration

■

of the question whether to grant rehearing en banc.

/ s /  I kving R. K aufman 
Ieving R. K aufman 
Chief Judge

Mansfield, Circuit Judge (Dissenting):

(With Whom Chief Judge Kaufman and Judge Oakes 
concur) •

I dissent from the denial of an en banc hearing in this 
appeal because the decision potentially places us in con­
flict with previous decisions in this and other circuits and 
creates uncertainty regarding this circuit’s law on a ques­
tion of exceptional importance that has been and will be 
frequently encountered, i.e., whether, and under wliat cir­
cumstances, relief in the nature of a racial goal or quota 
may be imposed to remedy injury caused to a minority 
group by use of racially discriminatory methods to hire 
or promote persons from a pool of potentially eligible can­
didates. In my view this question should be resolved now 
for the guidance of district court judges, members of the 
bar and litigants in the Second Circuit, rather than leaving 
them in a state of confusion regarding the issue.

Until the decision in this case, while adopting a cau­
tionary stance and acting “ somewhat gingerly,” we none­
theless repeatedly have held that where racially discrim-

1004

WrtTPf.V ■»."?!



inatory methods are used to hire or promote persons in 
violation of the civil rights of others, the district court 
should have the discretionary power to remedy the effects 
of the unlawful conduct and compensate the injured class 
by requiring the hiring or appointment of a higher per­
centage of minority applicants. United States v. Wood, 
Wire £  Metal Lathers, Local 46, 471 F.2d 40S (2d Cir.), 
cert, denied, 412 U.S. 939 (1973) ; Bridgeport Guardians, 
Inc. v. Bridgeport Civil Service Conunission, 482 F.2d 
1333 (2d Cir. 1973); Vulcan Society of the New York City 
Fire Dept. v. Civil Service Commission. 490 F.2d 387 (2d 
Cir. 1973); Rios v, Enterp rise Association Steamfitters, 
Local 638, 501 F.2d 622 (2d Cir. 1974) ; Patterson v. News­
paper £  Mail Deliverers Union, 514 F.2d 767 (2d Cir. 
1975).

The authority of a court of equity to issue such relief 
was recognized by the Supreme Court in Louisiana v. 
United States, 3S0 U.S. 145 (1965), where Justice Black, 
speaking for a unanimous Court, stated:

“We bear in mind that the court has not merely the 
power but the duty to render a decree which will so 
far as possible eliminate the discriminatory effects 
of the past as well as bar like discrimination in the 
future.” 380 U.S. at 154.

This was followed by the Court’s recognition in Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971), that mathematical ratios might serve as a “ useful 
starting point”  in shaping a remedy for past constitu­
tional violations. 402 U.S. at 25. Following this lead we, 
in United States v. Wood, Wire £  Metal Lathers, Local 46, 
471 F.2d 408 (2d Cir. 1973), approved an order directing 
a local union to take affirmative action to remedy the effects 
of past discriminatory practices in the issuance of work

1005 .

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tkCAuc*

permits by issuing 100 permits immediately to minority 
applicants, pointing out that

“ [WJhile quotas merely to attain racial balance are 
forbidden, quotas to correct past discriminatory prac­
tices are not. See Carter v. Gallagher, 452 F.2d 315, 
329 (8th Cir. 1971) (en banc), cert, denied, 406 U S 
950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) • Contractors 
Association of Eastern Pennsylvania v. Secretary of 
Labor, 442 F.2d 159, 173 n.47 (3rd Cir.), cert, denied, 
404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); United 
States v. Ironworkers, Local 86, 443 F.2d 544, 553 (9th 
Cir.), cert, denied, 404 U.S. 984, 92 S.Ct. 447,’ 30 L.Ed. 
2d 367 (1971); United States v. International Brother­
hood of Electrical Workers, No. 38, 428 F.2d 144, 149 
(6th Cir.), cert, denied, 400 U.S. 943, 91 S.Ct. 245, 27 
L.Ed.2d 248 (1970); Local 53 of International Associa­
tion of Heat & Frost I. & A. Workers v. Vogler, 407 
F.2d 1047, 1052 (5th Cir. 1969); United States v. Cen­
tral Motor Lines, Inc., 325 F. Supp. 478 (W  D N C 
1970).” 471 F.2d at 413.

There followed our decision in Bridgeport Guardians, 
nc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 

(2d Cir. 1973), wherein we upheld the use of a hiring quota 
to remedy the discriminatory effect of non-job-related ex­
aminations administered pursuant to the Civil Service pro­
visions of the Bridgeport City Charter for the position of 
policeman, stating:

“We commence with the basic tenet that the district 
court, sitting as a court of equity, has wide power and 
discretion to fashion its decree not only to prohibit 
present discrimination but to eradicate the effects of 
past discriminatory practices. Louisiana v. United 
States, 3S0 U.S. 145, 154, 85 S.Ct. 517, 13 L.Ed.2d 709



-  *it MWlitfirUM *& L

(1965); United States v. Wood, Wire & Metal Lathers, 
Local 46, 471 F.2d 408, 413 (2d Cir.), cert, denied, 412 
U.S.' 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). Al­
though most of the cases dealing with the issue of 
past discriminatory practices arose under Title VII 
of the Civil Rights Act of 1964, Section 1983 cases 
have also granted relief hy sanctioning quotas aimed 
at curing past discrimination. See, e.g., Pennsylvania 
v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); 
Castro v. Beecher, supra, 459 F.2d 725; Carter v. Gal­
lagher, 452 F.2d 315, 327-332 (8th Cir. 1971) (en banc), 
cert, denied, 406 U.S. 950, 92 S.Ct, 2045, 32 L.Ed.2d 
338 (1972).” 482 F.2d at 1340.

Again, in Vulcan Society of the New York City Fire 
Dept. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 
1973), we approved the use of an interim quota to redress 
the discriminatory effect of non-job-related Civil Service 
examinations for the position of fireman and ordered the 
City to appoint one minority candidate for each three non- 
minority candidates appointed from a list of eligibles, 
stating:

“In arriving at a ratio midway between what would 
have been appropriate on the basis of correcting the 
inequities of Exam 0159 alone and the plaintiffs’ de­
mand for much more extensive relief, the judge took 
appropriate account both of the resentment of non­
minority individuals against quotas of any sort and 
of the need of getting started to redress past wrongs. 
See Louisiana v. United States, 380 U.S. 145, 154, 85 
S.Ct. 817, 13 L.Ed.2d 709 (1965); United States v. 
Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 
413 (2 Cir.), cert, denied, 412 U.S. 939, 93 S. Ct. 2773, 
37 L.Ed.2d 398 (1973). As the Supreme Court has 
stated, ‘The framing of decrees should take place in

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the District rather than in Appellate Courts.’ Inter­
national Salt Co. v. United States, 332 U.S. 392, 400, 
68 S.Ct. 12, 17, 92 L.Ed. 20 (1947); Chance, supra, 
458 F.2d at 1178.” 490 F.2d at 399.

Finally, in Patterson v. Newspaper dZ Mail Deliverers 
Union, 514 F.2d 7G7 (2d Cir. 1975), we approved an affir­
mative-action promotion program which would achieve a 
quota by advancing minority News deliverers faster than 
non-minority workers in order to compensate the minority 
group for injury suffered under the previous discrimina­
tory promotion program. The effect was to temporarily 
restrain the advancement of White workers who would have 
been promoted under a program of strict seniority.

The United States Supreme Court has not yet had the 
opportunity to offer clear guidance on the appropriateness 
or parameters of remedies or programs granting a prefer­
ence to groups that previously were subjected to discrim­
inatory treatment. See DeFunis v. Odegaard, 416 U.S. 312 
(1974). But seven other circuits, recognizing that “ [t]he 
framing of decrees should take place in the District rather 
than Appellate Courts,”  International Salt Co. v. United 
States, 332 U.S. 392, 400 (1947), and that the district judge, 
who is better acquainted with the background and details 
of the case, should have broad discretionary authority to 
fashion appropriate relief, have upheld the authority of the 
distiict court, in the exercise of its broad powers as a court 
of equity, to establish goals or quotas for the purpose of 
remedying harm caused by past discriminatory conduct. 
See, e.g., Boston NAACP  v. Beecher, 504 F.2d 1017, 1026-27 
(1st Cir. 1974) (upholding hiring by ratios until percentage 
of minority fire fighters equals their percentage in popula­
tion) ; Castro v. Beecher, 459 F.2d 725, 737 (1st Cir. 1972) 
(Blacks and Spanish-surnamed police candidates who failed 
old, impermissible test but pass new validated one should

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be placed in priority pool to be selected by ratio of 1:1, 
1 :2, or 1 :3 with respect to others as determined by district 
court); Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 
1973) (en banc) (upholding by equally-divided vote power 
of district court to order Black-White hiring by ratio cor­
responding to Black overall population and number of 
Black applicants); NAACP  v. Allen, 493 F.2d 614 (5th 
Cir. 1974) (upholding hiring of Black-White state troopers 
in 1:1 ratio until Blacks reach 25% of force); Morrow v. 
Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en banc), cert, 
denied, 419 IJ.S. 895 (1974) (ordering district court to 
impose further affirmative relief to remedy discrimination 
in state police employment practices; may include 1 :1 or 
1:2 Black-White hiring, the freezing of White hiring, or 
“any other form of affirmative hiring relief until the Patrol 
is effectively integrated” ) ; United States v. Local Union 
No. 212, 472 F.2d 634 (6th Cir. 1973) (upholding district 
court order mandating 11% Black membership in appren­
tice programs); United States v. International Blid. of 
Elec. Wkrz., 428 F.2d 144 (6tli Cir.), cert, denied, 400 U.S. 
943 (1970) (remanding to district court for consideration 
of appropriate affirmative relief); United States v. United 
Bhd. of Carpenters, 457 F.2d 210 (7th Cir.), cert, denied, 
409 U.S. S51 (1972) (remanding to district court for fash­
ioning appropriate affirmative relief): United States v. 
N.L. Industries, 479 F.2d 354, 377 (8th Cir. 1973) (court can 
order Black-White promotion in 1:1 ratio until 15% of 
foremen are Black) ; Carter v. Gallagher, 452 F.2d 315, 331 
(8th Cir.) (en banc), cert, denied, 406 U.S. 950 (1972) (dis­
trict court may order the hiring of firemen in 1 :2 Black- 
White ratio until 20 Blacks hired); United States v. Iron­
workers Local 66, 443 F.2d 544, 553 (9tli Cir.), cert, denied, 
404 U.S. 984 (1971) (district court can order immediate job 
referrals to previous discriminatees and require union

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training program to select sufficient Black applicants to 
overcome past discrimination). But cf. Harper v. Kloster, 
486 F .2d 1134, 1136-37 (4tk Cir. 1973) (upholding district 
court’s denial of quota relief).

Turning to the present case, the district court, in order 
to compensate minority correctional officers for the harm 
caused the minority group by the discriminatory state 
civil service promotional system, odered the defendants 
to promote minority correctional officers to the rank of 
sergeant on the basis of one minority for each three non­
minority appointments until the combined percentage of 
minority sergeants equalled that of the minority correc­
tional officers. Once this goal was satisfied, defendants, of 
course, would be entirely free to select sergeants solely 
through the application of a non-discriminatory, validated 
examination. In adopting this relief Judge Lasker exex1- 
cised the authority granted by our above-cited decisions. 
Yet despite the reasonableness of Judge Lasker’s decree, 
this court s decision denies quota relief once a permissible 
test is created, seeking to distinguish our earlier decisions 
on the grounds (1) that there was insufficient proof of a 
clear-cut pattern of long-continued and egregious racial 

discrimination” and (2) that there was substantial evi­
dence that a quota would result in ‘'identifiable reverse dis­
crimination,” thereby violating the Constitutions of New 
York and the United States as well as New York’s Civil 
Service Law. With due respect, the first ground is not 
supported by the record before us and the second does 
not distinguish this case from all the previous instances 
where we have endorsed the use of hiring goals.

"With respect to the nature and extent of past discrimi­
nation it is undisputed that the 1972 examination for pro­
motion from correctional officer to sergeant was unconsti­
tutionally discriminatory. If, by “ egregious racial di scrim-

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Ji.»r liurifMUMittliMinfi MMi > ■ I . itimimstimiu» iHSmte

ination” Judge Van Graafeiland means intentional or de­
liberate conduct, tbe law is settled that the existence of 
deliberate and intentional racial discrimination is not a 
condition precedent to the granting of quota relief. See 
Bridgeport Guardians, Inc., supra, where such relief was 
granted despite the fact that there was “no showing that 
the test [Civil Service test for appointment as policeman] 
was deliberately or intentionally discriminatory,” 482 F.2d 
at 1336, and Vulcan Society of the New York City Fire 
Dept., supra, where in granting quota relief, the court made 
clear that proof of non-job-relatedness of the examinations 
was sufficient to satisfy the requirement of invidiousness, 
thereby placing the burden of justification upon the City’s 
shoulders. 490 F.2d at 391 n.4. Although the defendants 
here did not maintain pass-fail data according to race or 
color for the examinations prior to 1972, there was ample 
evidence to support Judge Lasker’s finding of prior racial 
discrimination in the state’s promotional process. As of 
May 1, 1973, for instance, all 122 permanent sergeants 
were white. The pre-1972 examinations were prepared by 
the same process as the non-job-related 1972 examination, 
which did not meet constitutional standards, and resulted 
in the appointment of only two Blacks and no Hispanics to 
the rank of sergeant or above. Of 997 Whites and 46 
Blacks and Hispanics who took the examination for ser­
geant in 1970 and who continued to be employed by the 
defendants in 1973, 9.4% of the Whites and 0% of the 
non-AVhites passed. Although 25 Black correctional offi­
cers employed at the Ossining Correctional Facility took 
the examination for sergeant in 1968 and 10 to 15 Blacks 
took the examination in 1965, none passed. Surely this 
proof, all pointing in the direction of past unlawful dis­
crimination against minority candidates, was at least suffi­
cient to shift the burden of justifying the earlier examina-

1011



tions to the defendants, see Griggs v. Duke Power Co., 401 
U.S. 424 (1971); Vulcan Society, supra, 490 F.2d at 393; 
Boston Chapter of NAACP, supra, 504 F.2d at 1019. Yet, 
there is no indication that the defendants ever attempted 
to sustain this burden.

To reject the imposition of a minority quota as a com­
pensatory remedy on the ground that it would discrimi­
nate in reverse against eligible White candidates for pro­
motion ignores the district court’s duty as a court of 
equity to remedy past wrongs. It should be recognized 
that at a minimum the plaintiff class in this case included 
a definite, identifiable group of aggrieved non-White indi­
viduals—those already in the correctional system who, 
while previously qualified for advancement, nonetheless 
failed to be promoted due to the application of the dis­
criminatory test. Given the fact that the Whites who bene­
fited from the discriminatory system retain their promo­
tions, 'the aggrieved non-White members of this minority 
group would deserve quick promotion even under the most 
traditional notions of compensatory relief. The obvious 
problem is that, because discriminatory examinations were 
used, we are unable to identify those White correctional 
officers who were wrongfully promoted to sergeant and 
those Black correctional officers who under a non-discrim- 
inatory system would have been promoted. This problem, 
however, does not justify the court’s throwing up its hands 
and entirely rejecting a goal as a means of making whole 
the injured members of the minority group. The effect 
of such rejection, of course, is not only to deny some non- 
White correctional officers the long overdue promotions to 
which they were entitled, but, by requiring them to com­
pete afresh with late-comers once a non-discriminatory 
test is devised, it postpones their promotions even further. 
Thus the court’s decision hardly promises to make whole 
the injured members of the minority group.

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Although the court justifies its action partly on the 
ground that Judge Lasker’s order permits appointment 
without regard to the individual applicant’s comparative 
standing on a job-related examination or even to his re­
ceiving a passing grade, this represents but one facet of 
the relief, which can easily be rectified by providing that 
once a valid test is available, the correctional authorities 
legitimately may decide to test these non-White officers 
anew. Should they pass the valid test, however, they should 
be promoted preferentially without having to experience 
the delay of further competition on equal terms with those 
newcomers who never were previously aggrieved. See, e.g., 
Castro v. Beecher, 459 F.2d 725, 739 (1st Cir. 1972) ’(dis­
trict court should mandate hiring of those in preferential 
pool as compared to others by ratio of 1:1, 1:2, or 1:3).

Thus the effect of the court’s action is to provide wholly 
inadequate relief to those aggrieved. When one considers 
the other alternative remedy that might be employed to 
provide more effective relief, the use of a temporary goal 
or quota looks even more attractive as a salutary exercise 
of discretion. That alternative remedy, which would ad­
here most closely to the merit principle, would be to void 
and recall all past promotions made on the basis of the 
previous non-validated tests, since they were the products 
of unlawful discrimination in violation of the Equal Pro­
tection Clause, having served to “bump” eligible non-White 
applicants in favor of TV bites. Such relief, however, would 
be extremely harsh, for by giving a fair opportunity to 
those minority officers who had been denied that oppor­
tunity under the discriminatory scheme, it would also serve 
to strip some White sergeants of a status that they al­
ready ha\ e come to enjoy and that they might have achieved 
even under a non-discriminatory system.

Faced with a choice of relief measures, the district court 
wisely chose to select the imposition of temporary goals

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as the less drastic remedy. In analogous contexts, such as 
school desegregation cases, the Supreme Court has not 
hesitated to uphold the district courts’ discretionary power 
to stiike a fair balance and fashion an equitable remedy 
that compensates racial minorities for wrongs done, even 
though "YY bites as a class may he forced to accept unde­
sired burdens. See, e.g., Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 22-31 (1971); United 
States v. Montgomery County Board of Education, 395 
U.S. 225 (1969) (upholding faculty assignment to schools 
by White-Black ratio); Green v. New Kent County School 
Board, 391 U.S. 430 (1968).

It is true that if promotion of the non-Whites in the 
existing and identifiable pool of correctional officers failed 
to satisfy the quota, the effect of Judge Lasker’s decree 
would be to benefit some Blacks as a group at the expense 
of some Whites. This might explain the court’s concern 
for revei se discrimination.”  But all of the previously 
cited cases both in this circuit and outside have now es­
tablished that such temporary burdening of Whites as a 
gioup is often necessary to effectively compensate for 
wrongs done to minority groups. As I hope I have shown, 
no remedy is perfect. Each must of necessity require '• 
some persons to forego some benefits. The advantage of 
an appropriately tailored goal or quota is that it goes the 
farthest toward remedying past wrongs with the least harm 
to others.

The fact remains that past non-job-related Civil Service 
examinations have resulted in the promotion of Whites 
only, denying eligible non-White applicants the chance to 
qualify on the basis of merit. Thus the Civil Service sys­
tem, albeit not deliberately, was used to “bump”  eligible 
minority applicants in favor of Whites. It would be ironic 
to allow adherence to the same civil service system, per-



MU.

version of which has caused the racial imbalance in promo­
tions, to be used as a shield against an effective remedy for 
the wrong done in its name.
_ Nof  can our Pri«r decisions granting quota relief bo dis­

tinguished on the ground that they dealt with unidentifiable 
White candidates rather than individually-identifiable qual- 

i anc* eligilole persons. In Vulcan the district court’s
interim decree upheld by us, under which the City would 
be required to appoint one minority candidate from the 
Civil Service eligibility list for each three non-minority 
candidates appointed, deferred appointment of some non­
minority candidates “ who had qualified under [Civil Ser­
vice] Lxarn 0159 but had not yet been appointed.” 490 
F.2d at 391. Thus the non-minority group, some of whom 
intervened m the action, were “ readily identifiable candi­
dates for promotion,” who, “ regardless of their qualifica­
tions and standing in a competitive examination 
[might] be by-passed for advancement solely because they 
are white,’ ’ see Kirkland v. New York State Department 
of Correction, supra, Slip Opin. at 5413. Similarly, in 
Bridgeport Guardians, Inc. the intervening defendants in­
cluded persons “who have a high standing on current eligi­
bility lists, and presumably would be appointed to the force 
but for the decision below,” 482 F.2d at 1334. Likewise in 
Patterson v. Newspaper £  Mail Deliverers, supra, we up­
held a quota against challenge by 100 identifiable News 
White workers who were permitted to intervene for the 
purpose of challenging the quota relief on the ground that 
its effect would be to “bump” White workers in favor of 
minority workers. 514 F.2d at 769.

All of this is not intended to denigrate the problems of 
fairness and justice raised by the White interveners in 
these cases. But references to “ identifiable” Whites, while 
perhaps placing the consequences of a goal into sharper

1015



focus, do not add to the reality that, irrespective of the 
identifiability of the "Whites, a goal inevitably serves to 
benefit some at the expense of others and that this court 
as well as most others nonetheless have come to recognize 
its necessary inclusion in the district court’s remedial 
arsenal. The wisest and fairest course that we could follow 
is not to reject this remedy but to specify the smallest 
quota in terms of percentage and duration necessary to 
correct the past discrimination. See, e.g., Bios, supra, 501 
R2d at G2S n.3; Vulcan Society, supra, 490 F.2d at 399. 
This heretofore clearly has been our policy and the goal 
proposed by the district court in this case is perfectly in 
line with previously tolerated remedies.

For these reasons I believe it is unfortunate that the 
court has not seen fit, by hearing this case en banc, to seize 
this opportunity, absent guidance from the Supreme Court, 
to clarify our position with respect to the constantly recur- 
ring and troublesome question presented.

K aufman, Chief Judge (Dissenting) :

I concur in my brother Mansfield’s scholarly opinion. I 
should like to add the following thoughts, however. As 
Judge Mansfield’s opinion makes clear, this Court has 
traveled too far along the road of temporary “goals” as 
a remedy for past discrimination to permit a single panel 
to appear to reverse the course consistently followed. It 
is my view that we can retrace the steps taken by previ­
ous panels of this Court only by an en banc, F.E.A.P. 35(a), 
or by a Supreme Court holding that our earlier decisions 
have been in error. I am still of the view that the en banc 
device is often cumbersome and unproductive of the defin­
itive resolution for which it is invoked, see, e.g., Rodriguez 
v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (en banc), rev’d

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