Williams v. City of New Orleans Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 82-3435

LARRY WILLIAMS, et al.f
Plaintiffs-Appellants, 

v.
THE CITY OF NEW ORLEANS, LOUISIANA,
A MUNICIPAL CORPORATION, et al.,

Defendants

On Appeal from the United States District Court 
for the Eastern District of Louisiana

BRIEF FOR PLAINTIFFS-APPELLANTS

'JACK GREENBERG
0. PETER SHERWOOD BETH 'J. LIEF 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

RONALD L. WILSON
310 Richards Building
837 Gravier Street
New Orleans, Louisiana 70112

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 82-3435

LARRY WILLIAMS, et al.,
Plaintiffs-Appellants, 

v.
THE CITY OF NEW ORLEANS, LOUISIANA,
A MUNICIPAL CORPORATION, et al.,

Defendants

On Appeal from The United States District Court 
for The Eastern District of Louisiana

CERTIFICATE REQUIRED BY LOCAL RULE 13.6.1

The undersigned, counsel of record for the plaintiffs- 
appellants, certifies that the following listed parties have 
an interest in the outcome of this case. These representa­
tions are made in order that Judges of this Court may 
evaluate possible disqualification or recusal.

1. Larry Williams, Gustave Thomas, Willie Carter, Jr., 
Edgar Morgan, Jr., Ronald Bechet, Sr., Jacob R. Johnson, 
Timothy McGruder, Nathaniel A. Ray, III, Sterling Hayes, 
Samuel Reive, Patricia LeBeaux, Jeanne McGlory Wallace and 
Arzelia Jones.

l



2. The class of all black applicants for employment as 
police officers and present and former black police officers 
in the New Orleans Police Department.

3. The City of New Orleans, Louisiana and the New 
Orleans Civil Service Commission.

4. The mayor of the City of New Orleans, the Superin­
tendent of Police, and the members of the City Civil Service 
Commission, all acting in their official capacities. The 
individuals who occupied these positions have changed, some­
times more than once, over the nine years that this case has 
been pending. Current occupants of these positions are 
Ernest Morial, mayor, Henry Morris, Superintendent of Police, 
Wood Brown, III, Anthony M. Rachel, Leon J. Reymond, Dr.
Barbara G. Thompson, and Thomas H. Sponsler, CSC commissioners.

0. Peter Sherwood 
Attorney of record for

Plaintiffs-Appellants

li



STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs believe that this case is governed by pre­

vailing precedent in this Circuit, United States v. City 
of Alexandria, La., 614 F.2d 1358 (5th Cir. 1980), and 
that summary reversal is appropriate. Additionally prompt 
action should be taken in this case because under Louisiana 
law the existing eligible register for sergeant from which 
approximately 25 police officers are to be promoted pur­
suant to the consent decree which is before this court will 
expire on or about January 23, 1983.

Accordingly plaintiffs believe that oral argument is 
not necessary in this case. This statement is made pursuant 
to Local-Rule 13.6.4.

- iii -



TABLE OF CONTENTS
Page

TABLE OF CONTENTS ..................... iv-v
TABLE OF CITATIONS .................... vi-vi(b )
NOTE ON FORM OF CITATIONS ............. vii
STATEMENT OF ISSUE PRESENTED ..........

WHETHER, ON A RECORD THAT REVEALS 
A LONG AND EGREGIOUS HISTORY OF 
UNLAWFUL RACIAL DISCRIMINATION,
THE DISTRICT COURT COMMITTED 
REVERSABLE ERROR IN REFUSING TO 
APPROVE A CONSENT DECREE BECAUSE 
IT CONTAINED PROMOTIONAL GOALS AND 
TIMETABLES THAT ARE RELATED TO THE 
REPRESENTATION OF BLACKS IN AN 
INAPROPRIATELY EXTERNAL LABOR MARKET?

viii

I. STATEMENT OF THE CASE ............. 1
A. Early History of the Case .... 2
B. Post May 1980 History of theCase ......................... 3
C. Intervention Sought and

Granted ...................... 4
D. The Settlement Process ....... 6

II. STATEMENT OF FACTS ............... 6
A. The NOPD Prior to 1973 ....... 6
B. The NOPD: 1973 - 1982 ........ 1 1

III. SUMMARY OF ARGUMENT .............. 17
IV. ARGUMENT .........................

Where The Record In This Case 
Reveals A Conspicuous Under­
representation Of Black Officers 
At All Ranks Within The NOPD, The 
District Court's Determination 
Disapproving The Settlement 
Agreement Presented By All Of 
The Parties To This Case Consti­
tutes Clear Legal Error

19



Page

A. Introduction .................  19
B. Standard of Review ............. 22
C. The District Court's 

Disapproval Should Be
Reversed ..................... 25

V. CONCLUSION ......................... 41

v



TABLE OF CITATIONS

Cases Page
Airline Stewards & Stewardesses Assn., 

Local No., 550 v. American Airlines 
Inc., 573 F.2d at 960 (7th Cir. 1978) . 24

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ................... 22

Armstrong v. Board of School 
Directors, City of Milwaukee,
616 F.2d 305 (7th Cir. 1980) ........ 23, 24

Carson v. American Brands, 450 U.S. 
79 (1980) ....................... 6

Cotton v. Hinton, 559 F.2d 1326
(5th Cir. 1977) ..................... 23, 25

Dennison v. City of Los Angeles,
658 F.2d 694 (9th Cir. 1981) ........ 36

Detroit v. Grinnell Corp., 495 F.2d
448 (2d Cir. 1974) .................. 24

D.P.O.A. v. Young, 608 F.2d 671
(6th Cir. 1979) ..................... 18, 28, 32, 37, 41

EEOC v. A.T. & T. Co., 556 F.2d 
167 (3d cir. 1977), cert, denied,

U.S. , 436 (7th Cir. 1978) ___ 36
EEOC v. Detroit Edison, 515 F.2d 301 

(6th Cir. 1975), vac. and rem'd on 
other grounds, 431 U.S. 951 (1977) ... 36

Florida Trailer and Equipment Co. v. 
Deal, 284 F.2d 567 (5th Cir. 1960) ... 23

Firebird Society of New Haven - New 
Haven Board of Fire Commissioners,
66 F.R.D. 457 (D. Conn. 1975) ....... 29

International Brotherhood of
Teamsters, v. United States, 431 U.S. 324 (1977) ..................... 29

Lehman v. Yellow Freight System, Inc. , 
651 F.2d 520 (7th Cir. 1981) ........ 27

Vl



TABLE OF CITATIONS

Cases Page
Morrow v. Chrisler, 491 F.2d 1053 

(5th Cir. 1974) (en banc), cert, 
denied, 419 U.S. 895 (1974) .........  35

Morgan v. Kerrigan, 388 F.Supp. 581 
(D. Mass. 1975), affd. 530 F.2d 431 
(1st Cir. 1976) cert, denied, 426 
U.S. 935 (1976) .....................  36

Morgan v. O'Bryant, 671 F.2d 23 
(1st Cir. 1982) cert, denied,
___ U.S. (1982) ................  26

Patterson v. NMDU, 514 F.2d 767
(2d Cir. 1975) ..........................  24

Regalado v. 'Johnson, 79 F.R.D. 447
(D. 111. 1978) ..........................  24

Rule v. IABSOI, Local Union No.396,
568 F. 3d 558 (8th Cir. 1977) ........  13

Setser v. Novak Inv. Co., 657 F.2d
962 ( 8th Cir. 1981) .................. 26, 37

Stotts v. Memphis Fire Dept., 679 
F.2d 541 (6th Cir. 1982), pet. 
for cert, pending, U.S.
(1982)   26

United States v. City of Alexandria,
La., 614 F.ed 1358 (5th Cir. 1980) ... passim

United States v. City of Chicago,
549 F. 2d 416 (7th Cir. 1978) ........  29, 36, 37

United States v. City of Chicago,
663 F.2d 1354 (7th Cir. 1981)(en banc) ................ ■..........  31

United States v. City of 'Jackson,
519 F. 2d 1147 (5th Cir. 1975) .......  22, 24

- vi(a)



TABLE OF CITATIONS

Cases Pagq

United States v. City of Miami, 614 
F. 2d 1322 ( 5th Cir. 1980) vacated
664 F. 2d 435 (1981) ..................  22, 23, 24, 25,

26, 37
United Steelworkers of America v.

Weber, 443 U.S. 193 (1979) ..........  18, 27, 35
Williams v. City of New Orleans, 565

F. 2d 874 ( 5th Cir. 1978) ............  2
Zipes v. Trans World Airlines,

U.S. , 71 L.Ed. 2d 234 
(1982) ............................... 7

Statutes, Rules and Other References
Civil Rights Act of 1866, 42 U.S.C.

§ 1981 ............................... 2
Civil Rights Act of 1871, 42 U.S.C.

§ 1983 ............................... 2
Civil Rights Act of 1964, 42 U.S.C.

§ 200e et seq........................  2
La. Rev. Stat. § 33:2411 ..............  7, 32
28 U.S.C. § 1292(a)(1) ................  6
F.R.App.P., Rule 8 ..................  5
F.R.Cir.P., Rule 8 ..................  7
Manual for Complex Litigation,

§ 1.46 i.............................. 24
Uniform Guidelines On Employee
Selection Procedures, 29 CFR § 1607 .. 39

- v i (b ) —



Note on Form of Citation

The following citations are used frequently in this brief.

Citation Description
"Affd. Affidavit of the named individual sub­

mitted by plaintiffs at the commence­
ment of the settlement evidentiary hearing, March 8, 1982.

"Administrations No. " Plaintiffs' First Request to Admit or 
State Facts served 'July 27, 1981 and 
appearing in this record on appeal 
commencing at page 1955.

"Hearing (date), p. Page of transcript of evidentiary 
hearing on settlement on the date indi­
cated. These three volumes of trans­
cript are designated volumes 17, 18 and 19 of the record on this appeal.

"R. Page of record on this appeal.

-  V l l  -



STATEMENT OF ISSUE PRESENTED
WHETHER, ON A RECORD THAT REVEALS A LONG AND
EGREGIOUS HISTORY OF UNLAWFUL RACIAL DISCRIMINATION,
THE DISTRICT COURT COMMITTED REVERSABLE ERROR
IN REFUSING TO APPROVE A CONSENT DECREE BECAUSE
IT CONTAINED PROMOTIONAL GOALS AND TIMETABLES
THAT ARE RELATED TO THE REPRESENTATION OF
BLACKS IN AN INAPROPRIATELY EXTERNAL LABOR MARKET?

Vlll



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 82-3435

LARRY WILLIAMS, et al.,
Plaint iffs-Appellants,

v.
THE CITY OF NEW ORLEANS, LOUISIANA,
A MUNICIPAL CORPORATION, et al.,

Defendants

On Appeal from the United States District Court 
for the Eastern District of Louisiana

BRIEF FOR PLAINTIFFS-APPELLANTS

I. STATEMENT OF THE CASE

On this appeal plaintiffs-appellants seek review 
of the refusal of the district court to approve a settlement 
agreement that would have brought this nine year old case to a 
final conclusion. The disapproved consent decree was intended 
to end years of unlawful racial discrimination in employment 
at the New Orleans Police Department (NOPD) and to make up 
for prior racial exclusion, segregation and discrimination.



A. Early History Of The Case

In 1973 several black police officers and applicants 
commenced this action, naming the City of New Orleans, the 
New Orleans Civil Service Commission (CSC) and several 
officials of both entities as defendants. Plaintiffs alleged 
violations of Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e et, seq. , the Civil Rights Act of 
1866, 42 U.S.C. § 1981, the Civil Rights Act of 1871, 42 
U.S.C. § 1983, and the Thirteenth and Fourteenth Amendments 
of the Constitution of the United States.

The suit was declared a class action in 1976.—^
*

(R. 534). The City appealed this determination. In 1978 
this Court dismissed the City's appeal for failure to satisfy 
the requirements of 28 U.S.C. § 1292(b) pertaining to interlocu­
tory appeals. Williams v. City of New Orleans, 565 F.2d 874 
(5th Cir. 1978). By the time the case was remanded to the 
district court, the law firm which plaintiffs had employed had 
been dissolved.

1/ 'Judge Rubin defined the class as:
1. All black persons who applied but were denied 

employment as policemen in the New Orleans Police Department; and
2. all present and past black members of the New 

Orleans Police Department who have been subject 
to discriminatory employment practices.

* See note on form of citation at p.v/ , supra.
2



On August 23, 1978, 'Judge Sear decertified the 
class for lack of adequate representation and he dismissed 
the case two days later. He agreed to reopen the matter as 
individual cases on November 9, 1978.

, B. Post May 1980 History Of The Case
In May 1980, new counsel appeared on behalf of 

plaintiffs. On 'July 30, 1980, 'Judge Sear recertified the 
class as defined by 'Judge Rubin. See n.1, supra. Thereafter 
the parties conducted extensive discovery.

On 'January 12, 1981, the parties entered into a 
stipulation which was approved by the district court, agreeing 
in essence that no further promotions would be made to the
ranks of sergeant and lieutenant until the case was resolved

2/on the merits.— (R. 1488). This agreement is still in 
effect.

On 'January 19, 1981, Martin Venezia and thirteen 
other white police officers moved to intervene. (R. 1610). 
Specifically, they sought to invalidate the 'January 12 stipula­
tion and to require defendants to promote them on the basis of 
the positions they occupied on the existing sergeant eligible 
list. Following an evidentiary hearing the district court, 
on May 6, 1981, denied this motion. They filed a notice of 
appeal on May 27, 1981.

2/ The City defendants entered into a similar agreement 
with plaintiffs on August 25, 1981 to cover the ranks of 
captain and major. (R. 2083).

3



On October 13, 1981, the day trial was scheduled 
to begin, the parties announced that they had agreed on all 
of the major elements of a settlement. The parties submitted 
a fully executed consent decree on October 21, 1981. (R. 2521).

C. Intervention Sought and Granted
Between October 13, 1981, and November 9, 1981

three separate groups of non-black police officers who were
represented by counsel, sought to intervene.—^ On December
9, 1981 the district court issued an eighteen page decision
detailing its reasons for granting them conditional interven- 

4/tion. The district court imposed the following con­
ditions :

Movants shall have the right to object to approval 
of the proposed consent decree, submitted to the 
court on October 23, 1981, to present evidence in 
support of these objections, or to appeal the 
approval of any approved consent decree. Their

3/ On October 15, 1981, Horace Perez sought to intervene 
on his own behalf and on behalf of other police officers 
who claimed to be Hispanic Americans. (R. 2172).

On November 2, 1981, Larry Lombas, a white police 
officer, sought to intervene on his own behalf and on behalf 
of over 600 other officers who had signed a petition opposing the settlement. (R. 2228).

On November 9, 1981, Cindy Duke and two other white 
female police officers sought to intervene on their own 
behalf and on behalf of other female officers. (R. 2296).
_4/ The district court also indicated a willingness to accept objections from any member of the New Orleans Police 
Department, provided such objections were filed by February 1, 1982.

4



grounds for objection shall be limited to the fairness, adequacy, or reasonableness of the 
consent decree with respect to their interests.
To the extent that the movants move for a broader 
intervention or role in this case,their motions are DENIED.

(R. 2351) .
On October 19, 1981, this Court, pursuant to a 

motion filed by the Venezia would-be intervenors, stayed entry 
of conditional or final approval of the consent decree in 
order to permit them an opportunity to comply with the require­
ments of Rule 8(a), F.R.App.P. - '̂  Thereafter Venezia 
applied to the district court for a stay. That application 
was denied in the December 9, 1981 decision on the ground 
that the applicants had failed to show a strong likelihood 
of success on their appeal. However, the district court 
invited them to seek conditional intervention on the same 
basis as the other three groups of non-black objectors. 
Thereafter, on 'January 18, 1982, this Court vacated the 
stay, denied Venezia's motion for summary reversal of the 
district court's ’January 1981 denial of their motion to 
intervene, and remanded the case to the district court. (R. 
3247).

Venezia subsequently applied for conditional inter­
vention. This application was granted on February 26,
1982. (R. 3291).

5/ Venezia applied for a stay in the court of appeals without 
making that application first in the district court.

5



D. The Settlement Process
On 'January 26, 1982, the district court granted

preliminary approval of the consent decree and ordered that
notice be given. (R. 3101). Both black and non-black police
officers filed objections to the settlement.

The district court conducted an evidentiary hearing
on the fairness, reasonableness and adequacy of the consent

6 /decree on March 8 and April 5-6, 1982.—' On 'June 11,
1982, the district court rendered a 48-page opinion in which 
it refused to approve the settlement so long as it includes 
a provision requiring that black and white officer be promoted 
on a 1—to—1 ratio until black constitute 50% of all ranks 
within the New Orleans Police Department (NOPD).

Plaintiffs filed a timely notice of appeal on 'July 
12, 1892. The jurisdiction of this Court is invoked pursuant 
to 28 U.S.C. § 1292(a)(1). See also Carson v. American Brands, 
450 U.S. 79 (1980).

II. STATEMENT OF FACTS

A. The NOPD Prior to 1973
Prior to 'June 1950 the City simply did not employ\

black people as police officers. (Admissions No. 30). (R. 1973).

6/ All intervenors who were represented by counsel were 
permitted to participate fully. Additionally, the court 
took a sample of the written objections submitted by white 
officers and invited the authors to testify. Finally, any 
member of the plaintiff class who sought to testify was 
permitted to do so.
7/ The facts that are outlined here regarding the early 
racially based employment practices of defendants is more than

6



This blanket exclusion was due neither to the absence of 
potential applicants nor to a concern for employment of the 
best qualified officers. For the last thirteen decades at
least, blacks have comprised a large proportion of the pop-

8 /ulation of the City of New O r l e a n s a n d , since at least 
1940, Louisiana law accorded "qualified voters of the city" 
an absolute preference for employment in the classified service 
of the City of New Orleans. See La. Rev. Stat. §33:2411.—^

7/ continued
mere background. Although the district court discusses the 
applicable Title VII and Louisiana limitations periods in its 
decision disapproving the settlement, Opinion, p. 13 (R. 3466), 
no statute of limitations applies in this case. Defendants 
have never pleaded the statute of limitations or claimed that 
plaintiffs Title VII charges are untimely. Accordingly all of 
the facts set forth here are directly actionable. Rule 8(c),
F.R. Civ. P.; Zipe's v. Trans World Airlines, U.S. , 71 L.Ed.2d 234 (1982).
8/ Census reports show the following representation of 
blacks among city residents:

Census Year % Black Pop. Orleans Parish
1850 23.2%
1910 26.4%
1950 32.1%
1970 45.9%
1980 55.0%

Sources: U.S. Census Office, 9th Census, Vol. 1, p. 156. The
Statistics of the Population of the U.S. 1870 (1872); Dept, of 
Commerce, Bureau of Census,x13th Census of U.S., Vol. 1, p.
230, Population 1910 (1913); Dept, of Commerce, U.S. Bureau of 
Census, Census of Population 1950, Vol. II Characteristics of 
Population, Pt. 18, Tables 35 and 36 Louisiana (1952); Admissions 
Nos. 35 and 36. (R. 1 975) .
9/ The statute permits the City to waive this requirement 
if, "after diligent effort, it has been found inpracticable 
to obtain a sufficient number of qualified voters of the city 
for positions in any class ...." La. Rev. Stat. §33:2411.

7



(R. 2022). During the 1940's, the city was hiring whites as 
police officers who had completed as little as six years of
school. Travis Affd. and Decree, p.3. (R. 2523). During
the 1950's and 1960's the city hired persons as police 
officers who had as little as seven (7) and eight (8) years 
of schooling respectively. Travis Affd. (R. ). While
the CSC began, on October 3, 1966, requiring that all future 
applicants for employment as police officers possess a high 
school diploma or its equivalent (Hearing Apr. 5, 1982, p.
66), the record in this case shows that persons with as 
little as ten years of schooling were hired as police officers 
as late as 1974. Travis Affd. (R. .)

For over twenty years after 1950, the defendants 
kept the flow of black appointments to a trickle. George 
Williams Affd. (R. ). Hiring figures are not available for
years prior to 1963. Between 1963 and 1971 the City appointed 
1146 whites and 59 blacks (4.9%) to the NOPD. Decree, pp. 4-5. 
(R. 2524-5). In 1972 blacks constituted only six percent (6%) 
of the police officers in the NOPD. Cogley Affd, Exhibit A.
(R. . )

The appointment of blacks to the NOPD did not
a

improve significantly until after this lawsuit was filed in 
early 1973. By the end of that year, the proportion of blacks 
appointed more than doubled from 8% in 1972 to 17%. This 
dramatic change occurred despite the fact that the rate of 
applications by blacks had fallen from 63% to 46% between 1972 
and 1973. Decree pp. 4-5. (R. 2523). During the pendency of
this suit the proportion of blacks appointed has increased

8



steadily and by 1981 had reached over 50%. Decree, p. 5. (R.
2524) .

The few blacks who were hired, discovered early that 
racial considerations would govern the daily routine on
, . . . ±g/tne 30b. see generally, affidavits of 'John Raphael,
Samuel Reine, Alfred TJ. Parker and Rinal Martin. (R. ,

, .) Until 1967 or 1968, blacks were required
to attend separate roll call. See affidavit of Rinal Martin 
(R- .) Until the early 1970's, blacks were assigned
only old squad cars and they were required to ride on a 
racially segregated basis. See affidavits of 'John Raphael, 
Samuel Reine, Yvonne Becket. (R. , , ). Until
the early 1970's, separate toilet facilities were maintained —  
black police officers were required to share a toilet with 
prisoners; affidavit of ’Joseph Orticke (R. ); white female
officers were not assigned to ride in squad cars with black 
male officers but black female officers were assigned to 
ride with white male officers. Affidavit of Dana Walker (R.
). For many years —  well into the 1970's —  blacks were 
restricted to certain assignments and as late as 1978-1979, were

10/ Retired police officer Samuel E. Reine, recalled his 
initiation into the NOPD as follows:

Early in my tour of duty with the 'Juvenile Bureau in 
1954, the captain called me into his office. "I am a 
white man," he said, "and you should never forget it."

Affidavit of Samuel E. Reine, p. 2. (R. ).

9



not assigned to specialized units on the same basis as their 
white counterparts. Affidavits of Rinal Martin, Thaddeus 
Freeman and Mitchell Dusset. (R. , , ).

The deliberate policy of exclusion of blacks from 
employment was mirrored by a policy of exclusion from super­
visory ranks. In fact, the policy of exclusion of blacks 
from supervisory ranks was so successful that in the entire 
history of the NOPD only twenty (20) blacks have ever pro­
gressed above the rank of police officer, only five (5) had 
ever advanced to the rank of lieutenant, and just one has 
received appointment to the rank of captain. Admissions,
No. 31. (R. 1973). The mechanism employed prior to 1966 to
exclude blacks from filed supervisory positions was direct.
The NOPD simply made promotions in rank order off eligible 
lists until the name of the first black officer was reached. 
Rather than appoint the black officer, it simply let the list 
expire. George Williams Affd., p.3. 'John Raphael Affd., p. 
4. (R. , ). A black officer achieved position number 5
on the 1965 sergeant examination and the NOPD determined to 
proceed to appoint him and several other blacks to the rank 
of sergeant. The impending change appears to have caused some

1V  The NOPD did appoint two blacks to the rank of desk 
sergeant in 1957 after black citizens protested a public 
statement of the then Superintendent of Police to the effect 
that he would never appoint a black to the rank of sergeant. 
George Williams Affd., p. 2. (R. ). The officers
who were appointed in 1957 to the position of desk sergeant 
had no command authority and were assigned to supervise blacks only. Id.

10



concern among NOPD administrators. Before announcing these 
appointments, then Superintendent 'Joseph Giarrusso called in 
the six black officers who were about to be appointed for 
special counseling. This action was motivated at least 
in part by a fear of the reaction of white officers at the 
prospect of them being supervised by blacks. George Williams 
Affd. , pp. 3-4. (R. ).

B. The NOPD: 1973 to 1982
By the end of the 1972 blacks held only eight

1 2/(8) of the 162 (5%) occupied sergeant—  positions. No
1 3 /blacks held any higher classified position.— See Cogley 

Affd., Exhibit A. (R. ). Nine years later virtually no
improvement had occurred. As of August 31, 1981 only seven 
blacks held classified ranks above that of police officer.
0. P. Sherwood Affd., Exhibit E. (R. ). Five were
sergeants and the other two were lieutenants. At the same 
time, there were at least 171 white sergeants and 62 
white lieutenants. Id.

The district court found that defendants' use of paper 
and pencil tests as a major component of defendants' hiring 
and promotion selection procedures was a principal cause of 
the exclusion of blacks from employment and promotion within

J_2/ The total figure includes 51 desk sergeant positions.
13/ One black officer, Louis Turner, occupied the unclassified 
position of Deputy Superintendent. He and one other black 
officer had previously attained the rank of lieutenant. The 
other black officer who had reached that rank retired in 1970 or 1971.



the NOPD, and it has been, especially in recent years. See 
Hoffman Affd., see Opinion, p. 15. (R. , 3470.) However,
as previously discussed, the exclusion of blacks from supervi­
sory positions prior to 1966 was the result of invidious 
intentional racial discrimination. See p. 10, supra. A 
pattern of intentional racial discrimination was present also 
at the entry level. As the following table details, until 
1979, the disparity between the proportion of blacks who passed 
the entry level written examination and the proportion who were 
appointed was as wide as the disparity between the proportion
of blacks who were tested and the proportion who passed the
hiring test:

% Black % Black % BlackYear Tested Passed Test Appointed
1971 44.9 26.0 7.91972 63.2 41.7 8.01973 45.9 39.9 17.71974 unavail. unavail. 22.31975 unavail. unavail. 36.61976 unavail. unavail. 33.01977 64.2 48.2 34.61978 68.9 49.8 38.81979 64.9 49.0 35.21980 69.5 48.2 45.51981 - - 50.6
The disparities between the proportion of blacks who passed the 
test and the proportion appointed cannot be explained on the 
basis of a suggestion that blacks failed disproportionately 
to meet neutral eligibility requirements for only applicants 
who satisfy the basic eligibility requirements —  i.e., 
education (high school or equivalent), age (20-35), height 
(5'8" until 1979), residency and registration as a voter of 
Orleans Parish (except during periods when a waiver is in

12



effect) —  are permitted to sit for the written examination.
Decree, p. 3. (R 2523). These disparities necessarily
are the result of unequal application of the less objective
portions of the entry level selection process, including the
background investigation, polygraph and medical examination.
The district court acknowledged the complaints of several
members of the plaintiff class regarding these aspects of
the entry level selection system, see Opinion pp. 14-15 and
affidavits of Robert Bonds, Herman Cade, Gilbert 'Johnson,
Sr., Farrell St. Martin, (R. , , , , ,
3469-70), but it apparently discounted these complaints on
the ground that "no statistics were presented to bolster 

1 4/these claims."—  id.
The long history of unlawful discrimination resulted 

in a police department which revealed substantial and sta­
tistically significant underrepresentation of blacks at all 
levels. Plaintiffs sought to estimate the extent of that 
underrepresentation as of December 1980 through a study 
prepared by Dr. Marc Bendick, a labor economist. Relying 
principally on census and other generally available labor 
market data, Dr. Bendick calculated the proportion of blacks 
one would expect to find at each rank as of 1980 if the NOPD

14/ To the extent that the district court discounted the 
strength of plaintiffs' prima facie case on the basis of 
this finding, it committed legal error. The undisputed 
evidence shows that blacks were disproportionately excluded 
on the basis of the several screening devices that were 
applied to applicants who passed the written test. Decree, pp. 
4-5 (R. 2524-5), and p.12, supra. Plaintiffs are entitled to 
rely exclusively on proof that these devices as a whole have a 
disparate impact. There is no need to show separately the 
impact of each device. Rule v. IABSOI, Local Union No. 396,
568 F. 2d 558, 565, n. 10 (8th Cir. 1977).

13



had hired and promoted in a "race-free" manner, i.e., 
that the percentage of blacks actually hired and promoted 
equaled the representation of blacks in the relevant labor

i 11/pool. His study revealed the following disparity between
the expected number and proportion of blacks and the actual 
number and proportion of blacks occupying various ranks 
within the NOPD:

Expected Actual Expected Actual
Rank # Black # Black Proportion Black Proportion
P.0. 544 229 51.8% 21.8%
Sgt. 81 7 40.7 3.5Lt. 26 2 39.4 3.0Opt. 9 0 37.4 0.0Mjr. 2 0 30.5 0.0

In each instance the difference between the
expected and actual proportions is statistically
significant. Bendick Affd. r PP . 4-6. (R. 3348-50.)

C. The Consent Decree
The decree sets forth its purpose. Article I, 

§ A declares:
The purpose of this Decree is to provide 

equal employment opportunity in the New Orleans 
Police Department, to eliminate any prior 
racial discriminatino that may have existed 
and its effects, to seek to improve citizen 
trust and respect for and cooperation with

15/ Dr. Bendick derived the relevant labor pool by taking Orleans Parish census figures for all of the relevant years 
and adjusting them to take into account age, the census 
undercount, education, racial propensity to apply and labor 
force participated and propensity to apply for government jobs. 
Bendick Affd., Exhibit B. (R.3352-59). Dr. Bendick's 
methodology is fully detailed in the affidavit which accom­
panies the study he prepared. (R. 3345).

14



the police and thereby improve the ability of the NOPD to provide fair and effective 
law enforcement.
Given the extent of unlawful discrimination within

the NOPD, this purpose could be achieved only if the decree
dealt significantly with most of the major employment practices
of the NOPD. Accordingly, it addresses recruitment, hiring,
training, and promotion. It also requires extensive reporting.

The provisions regarding promotions is the centerpiece
of the decree. It requires defendants to establish 44 new

16/supervisory positions, and to fill them intially with 
black officers. Thereafter defendants are required to
appoint to vacant positions one black officer for each white 
officer appointed until blpck officers constitute fifty percent 
(50%) of all ranks within the NOPD. Decree, pp. 14-15. (R.
2534-5). This latter method of accelerated promotion of black

16/ These 44 positions will be distributed among the affected ranks as follows:
Sergeant - 30 
Lieutenant - 12 
Captain - 2

Decree, p. 15, Art. IV, § A. (R. 2535).
\Defendants are permitted to eliminate these 44 positions 

over a period of time by not filling every fourth future 
vacancy. Decree, p. 15, Art. VI, § B(l). (R. 2535).
17/ The decree also provides for the immediate promotion of 
nine (9) white officers to the rank of sergeant and three 
(3) white officers to the rank of lieutenant. Decree, 
p. 15, Art. VI, § B(2) (R. 2535). Defendants promoted three 
white officers to the rank of lieutenant on February 3,
1982, because the lieutenant eligible register from which 
they were required to be selected would expire on February 
7, 1982, and, under Louisiana law, could not be extended.

15



officers would not be followed if to do so would result in
the proportion of blacks then occupying the rank in question
to exceed the proportion of black officers in the rank of
police officer. Decree, p. 16, Art. VI, § C. (R. 2536).

The district court approved the first part of the
agreement, respecting promotions, which involved the 44 new
positions, but it refused to approve the second part, requiring
that future promotions be made on a 1-to-l ratio until the 50%

18/end-goal is reached.—
The district court gave conditional approval of 

another provision of the decree which permits, but does not 
require, defendants to fix differing cut-off scores for black 
and white officers on the written test portion of the promo-

18/ According to the report of Dr. Melvin Wolfson, an 
economist appointed by the court to assess the impact of the 
settlement on affected groups, the number and proportion 
of blacks holding ranks above that of police officer as of 
March 2, 1982 were as follows:
Rank Black Non-black % Black
Sergeant 5 176 2.8%
Lieutenant 2 63 3. 1
Captain 0 21 0.0
Major 0 6 0.0
Wolfson Report, p. 7. (R. ) •

Application of the first part of the provision of 
the decree affecting promotions to these figures, without more, 
yields the following results:
Rank Black Non-black % Black
Sergeant 35 185 15.9%
Lieutenant 14 63 18.2
Captain 2 21 8.7
Major 0 6 0.0

- 16 -



tional selection process. Art. IX § C(2). (R. 3539).
It may not be necessary to amend the agreement in 

order to satisfy the conditions imposed by the district court 
with respect to Article IX § C(2) of the decree. Neverthe­
less plaintiffs have indicated to the other parties their 
willingness to agree to such an amendment. The parties have 
attempted to devise a substitute for the disapproved portions 
of Article VI but have been unable to come to an argreement 
which would satisfy the district court and preserve the 
substance of that portion of the agreement.

III. SUMMARY OF ARGUMENT

The district court refused to approve the consent 
decree which all parties signed principally because it contains 
a provision that obligates defendants to promote black and white 
officers to all ranks on a 1-to-1 basis until each rank within 
the NOPD is fifty percent black. In so doing, the district court 
erroneously exercised its power to slow the pace of voluntary 
efforts to remedy a long and egregious history of racial discrim­
ination. That action is subject to c[e novo review in this Court. 
United States v. City of Alexandria, La., 614 F.2d 1358, 1362 (5th 
Cir. 1980). Even if this Court were to apply the more deferential 
"abuse of discretion" standard of review, the decision of the 
district court must be reversed since the district court applied

19/ Under the terms of the consent decree, the written portion 
of the selection procedure is used as a qualifying measure only.
It plays no role in the determination of which officers are pro­
moted or the sequence of such promotions.

19/

17



the wrong legal standard and made clearly erroneous findings 
with respect to important facts.

In determining that the promotional goals and 
timetables agreed to by the parties were excessive, the 
district court failed to apply the correct legal standard 
which holds that voluntary affirmative action plans which 
"seek the same racial proportion among employees as in the 
labor force will ordinarily be reasonable," City of Alexandria 
614 F.2d at 1366, n.18. Accord., Detroit Police Officers 
Assn, v. Young, 608 F.2d 671, 696 (6th Cir. 1979); United 
Steelworkers of American v. Weber, 443 U.S. 193 (1979). The 
district court did not identify any unusual circumstances or 
undue hardships to non-minority workers in this case which 
would justify refusal to approve the promotoinal goals and 
timetables that are contained in this consent decree.

The district court's findings that the target 
of fifty percent black representation is unsupported by 
the evidence is clearly erroneous. This finding is not based 
on the proper yardstick —  the appropriate external labor 
market. Moreover, the lower court relied on the fact that in 
the past defendants engaged in recruitment outside Orleans 
Parish. This reliance is improper since it ignores a state 
statute which restricts employment to Orleans Parish residents 
La. Rev. Stat. § 33:2411. Finally, the district court 
misunderstood the analysis that was presented by plaintiffs' 
labor market economist.

18



The district court's declaration that the impact of 
the 1-to-1 promotional ratio is harsh, ignores the fact that
such implementing ratios have been approved as reasonable 
by this Court, other courts of appeals and the Supreme Court 
of the United States. See pp. 33-6, infra.

The district court applied the incorrect legal 
standard when it declared that the promotional targets 
contained in the consent decree are "unecessary" to provide 
plaintiffs complete relief, given other elements of the 
settlement. See pp. 36-8, infra. In any event the targets 
contained in this consent decree are necessary in order to 
overcome the conspicuous underrepresentation of blacks in the 
NOPD. See pp. 38-40, infra.

IV. ARGUMENT
Where the Record In This Case Reveals A 
Conspicuous Underrepresentation Of Black 
Officers At All Levels Within the NOPD,The District Court's Determination Dis­
approving The Settlement Agreement Presented 
By All Of The Parties To This Case Con­
stitutes Clear Legal Error.

that took 
addressed 
interests 
officials

A. Introduction
The parties attempted to devise a consent decree 
into account the extent of prior discrimination, 
the plaintiffs' concerns, recognized the legitimate 
of non-black officers, provided flexibility to the 
who would be responsible for its implementation,

19



and gave concrete guidance regarding the measures thought 
necessary to effectuate the goal of the parties. The decree
that was presented to the court contemplated all of these 
considerations.

Plaintiffs wished to have a remedy that would reform
use of employment practices that had an adverse result on blacks.
Accordingly, plaintiffs sought and obtained an agreement that
selection procedures used in the future not result in adverse

20/impact. Plaintiffs also sought provision that, as rapidly
as possible, would compensate for the historic failure of the 
NOPD to hire and promote blacks on a non-discriminatory basis.
In view of the extensiveness of the prior discrimination, 
including the recent promotion of 37 whites and 0 blacks to 
the rank of sergeant and 32 whites and 1 black to the rank of 
lieutenant off existing eligible registers, see Decree, p. 7, 
plaintiffs sought an implementing ratio in promotions of two 
black officers for each white officer. However, the provisions 
of the settlement agreement that define the promotional ratios 
to be employed are not responsive to the plaintiffs' interests 
only; they recognize, and are responsive to, the interests 
of both black and non-black police officers. These provisions 
permit the immediate promotion of twelve (12) white and forty-four

20/ The entry level selection procedures to be employed are 
likely to result in adverse impact. The agreement contemplates 
implemenation of measures that will reduce but not eliminate 
the adverse racial impact that is believed to be inherent in paper and pencil tests of the type defendants are likely to 
use. Under the terms of the decree defendants will seek to 
eliminate all adverse impact in subsequent phases of the hiring 
process.

20



2J/(44) black officers. The 44 positions to which black
officers are to be appointed are new positions. As vacancies 
occur in these new positions and in pre-existing positions,
black and white officers will be appointed on a 1-to-l

22/ratio. This system resulted from a balancing of the 
interests of the plaintiffs and of affected white officers.
It offered plaintiffs initial access to supervisory positions 
without loss to white officers. It gave white officers access 
to one-half of an expanded pool of jobs in the future and 
deferred realization of plaintiffs' desire to eliminate 
rapidly all prior discrimination and its effects.

The parties sought to achieve fifty percent (50%) 
black representation at all levels within the NOPD within a 
reasonable period of time. The 50% end goal was thought to 
be reasonable since (1) Louisiana law and city policy 
limits employment in the NOPD to city residents unless an 
adequate number of qualified applicants who are city residents 
cannot be found (see p. 7, supra, Admissions No. 9 and R. 
2022). (R. 1960); (2) the city is over 55%— ^ black; and
(3) in most years since 1970, blacks represented over 50% of

2 V  Thus, 81 white officers (69 previously and 12 under the 
consent decree) will have received promotions to the ranks of 
sergeant and lieutenant off the existing eligible registers.
22/ But see n. 16 supra.
23/ The 1980 census reveals that blacks constitute over 
55% of the residents of Orleans Parish who are between the 
ages of 20 and 30. According to the 1970 census, blacks 
represented 45% of the residents of Orleans Parish between ages 20 and 34. See Admissions Nos. 35-36 (R. 1975).

21



all applicants for NOPD employment,— see Decree, 
p. 3. Thus, if the 50% end goal was achieved, the racial 
composition of the NOPD would approximate the population 
it serves and one could be reasonably sure that prior discrim­
ination and its effects have been remedied. See United 
States v. City of Alexandria, La., 614 F.2d 1358, 1366 (5th 
Cir. 1980); and D.P.O.A. v. Young, 608 F.2d 671, 696-97 (6th 
Cir. 1979). Moreover, the governmental purpose of improving 
effective law enforcement would be fostered by having a police 
department that is fully integrated at all levels. See D.P.O.A., 
supra.

The district court's decision disrupts the largest 
portion of the promotion aspect of the decree. On this record, 
that action constitutes clear legal error.

B. Standard of Review
The law in general, and Title VII in particular,

favor voluntary settlements. Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974); United States v. City of Miami, 614 F.2d
1322, 1331 (5th Cir. 1980), vacated on other grounds, 664 F.2d

25/435 (1981) (en banc); United States v. City of 'Jackson,

24/ Moreover, plaintiffs' labor market economist's study 
revealed that the rank of police officer should have been 
over 50% black as of 1980. See Bendick Affd., Ex. B, Table 
I.
25/ The en banc court vacated the panel decision in part and 
and in part remanded the case for a limited trial on the merits 
as to those portions of the consent decree entered into between 
the City of Miami and the United States that purported to bind 
the police officer union.

[footnote continued]

22



519 F.2d 1147, 1151 (5th Cir. 1975). In class actions such 
as the instant case, "there is an overriding public interest
in favor of settlement." Cotton v, Hinton, 559 F.2d 1326,
1331 (5th Cir. 1977). Accord, e.g., City of Miami, 664 F.2d 
at 441-42 (Rubin); Armstrong v. Board of School Directors,
City of Milwaukee, 616 F.2d 305, 313 (7th Cir. 1980). A 
proposed settlement in a Title VII class action is entitled to 
a presumption of validity. City of Miami, 614 F.2d at 1333 
and 664 F.2d at 440 (Rubin); United States v. City of Alexandria 
614 F. 2d 1358, 1361 ( 5th Cir. 1980).— /

25/ continued
There were five opinions written by members of the court 

sitting en banc. None of the opinions commanded a majority. 
Plaintiffs have cited to both the panel and the en banc opinions 
The en banc court either reaffirmed those principles announced 
by the panel upon which the plaintiffs here rely or did not 
disturb them. For example the proposition expressed in the text 
was reaffirmed in the eri banc opinion written by 'Judge Rubin.
See United States v. City of Miami, Fla., 664 F. 2d 435, 442 
(5th Cir. 1981). In the text of this brief plaintiffs have identified the author of the opinion cited.
26/ The rationale for courts 1 endorsements of settlements was 
explained in the seminal case of Florida Trailer and Equipment 
Co. v. Deal, 284 F.2d 567, 571 (5th Cir. 1960):

Of course, the approval of a proposed settlement 
does not depend on establishing as a matter of legal 
certainty that the subject claim or counterclaim is or 
is not worthless or valuable. The probable outcome of 
the event of litigation, the relative advantages and 
disadvantages are, of course, relevant factors -for 
evaluation. But the very uncertainty of the outcome 
in litigation, as well as the avoidance of wasteful 
litigation and expense, lay behind the Congressional 
infusion of a power to compromise. This is a recogni­
tion of the policy of the law generally to encourage 
settlements. This could hardly be achieved if the test on hearing for approval meant establishing success or 
failure to a certainty. Parties would be hesitant to 
explore the likelihood of settlement apprehensive as 
they would be that the application for approval would 
necessarily result in a judicial determination that 
there was no escape from liability or no hope of re­
covery and hence no basis for a compromise.

23



Furthermore, courts have recognized that a consent 
judgment is essentially a contract between the parties, City 
of Jackson, 519 F.2d at 1151; Regalado v. 'Johnson, 79 F.R.D.
447, 450 (D. 111. 1978). The question to be decided is not 
what a court might or might not order after a determination 
of the merits of the action. Patterson v. NMDU, 514 F.2d 
767, 769 (2d Cir. 1975). There should be no attempt to 
precisely delineate the parties' legal rights. City of 
'Jackson, 519 F.2d at 1152; see also fn. 25, supra.

The issue before the district court is whether 
the proposed settlement is fair, adequate, and reasonable in 
the circumstances of the particular case. Manual for Complex 
Litigation, § 1.46 at 57; City of Alexandria, 614 F.2d at 
1361 & n.6; City of Miami, 664 F.2d at 460 ('Johnson); Armstrong, 
616 F.2d at 314. However, the district court is not expected 
to simply rubber stamp the agreement of the parties. It must 
satisfy itself that the consent "decree is not unlawful, 
unreasonable or inequitable." City of Alexandria, 614 F.2d at 
1361.

The district court has an obligation to safeguard 
the rights of the members of the class. Armstrong, 616 F.2d 
at 313. In determining whether the proposed settlement 
provides fair, adequate, and reasonable relief to the class, 
the court should recognize that compromise is the essence of 
a settlement, and the court should not require the parties to 
litigate the merits of their claims and defenses. Id. at 
315; Detroit v. Grinnell Corp., 495 F.2d 448, 462 (2d Cir.
1974). Airline Stewards, 573 F.2d at 963-64.

24



While an appellate court may overturn a district 
court decision approving a settlement only upon a showing 
that the lower court abused its discretion, e.g. , Cotton v. 
Hinton, 559 F.2d at 1331; City of Miami, 614 F.2d at 1334-5 
and 664 F.2d at 442, a decision of a lower court refusing to 
approve a settlement is subject to de novo review. City of 
Alexandria, 614 F.2d at 1362.

It is against these standards that the district 
court's disapproval of the portion of the decree providing 
for future promotions of black and white officers on a 1-to-1 
basis until black officers constitute fifty percent (50%) of 
all ranks should be evaluated.

C. The District Court's Disapproval Should Be 
Reversed

Without reference to any judicial precedent, the 
district court enunciated three reasons for its disapproval: 
First, that the goal of fifty percent "is unsupported by the 
evidence in the record";— / second, that the impact of
the quota is "harsh" and, as a corollary of that concern,

2 8/that the impact is aggravated by the decree's duration; — '

29/and third, that the quota is "unnecessary."—  as demon­
strated below, the district court's reasoning and conclusions

27/ Opinion p. 39. (R. 3492).
28/ Id. at 40-41. (R. 3493-94).
2_9/ Id. at 41-42. (R. 3494-95).

25



ignore the facts presented at the settlement evidentiary 
hearing and is at odds with the law of the Supreme Court, 
this Court and other courts of appeal.

The law in this Circuit is clear beyond peradventure 
that a consent decree may properly require the defendants to 
take affirmative action to remedy past discrimination.
City of Miami, 664 F.2d at 442 (Rubin) and 461 ('Johnson). As 
the panel opinion in City of Miami stated:

At this point in the history of the fight 
against discrimination, it cannot be seriusly argued that there is any insur­
mountable barrier to the use of goals or 
quotas to eradicate the effects of past 
discrimination.

614 F.2d at 1335, vacated on other grounds, 664 F.2d 435 
( 1 98 1)(en banc).

This Court has held that the affirmative relief provisions 
of a consent decree should be approved if they are reasonably 
related to the remedial purpose of correcting racial imbalance 
caused by past employment practices. City of Alexandria, 614 
F.2d at 1366-67; accord, City of Miami, 614 F.2d at 1339.
The standard which this Court has adopted is substantially the 
same as that followed in other circuits. Eee, e.g. , Stotts v. 
Memphis Fire Dept., 679 F.2d 541, 552-53 (6th Cir. 1982), Pet. 
for cert, pending, 51 U.S.L.W. 3120 (August 5, 1982); Morgan v. 
O'Bryant, 671 F.2d 23, 28 (1st Cir. 1982), cert, denied, 51 
U.S.L.W. 3254 (October 4, 1982); Setser v. Novak Inv. Co., 657

26



F.2d 962, 968-70 (8th Cir. 1981)(en banc); Lehman v. Yellow
Freight System, Inc., 651 F.2d 520, 526-27 (7th Cir. 1981).

In United Steelworkers of America v. Weber, 443 U.S 193 
(1979), the Supreme Court approved a collectively-bargained 
affirmative action plan that reserved for black employees 50% 
of the openings in an in-plant craft-training program until the 
percentage of black craftworkers in the plant were commensurate 
with the percentage of blacks in the local labor force. In so 
doing, the Court noted that the plan was designed to break down 
old patterns of racial segregation and that it was structured to 
open employment opportunities in occupations traditionally 
closed to blacks. 442 U.S at 208. The Court also pointed 
to three factors which led to the conclusion that the plan did 
not unnecessarily trammel the interests of white employees: 
first, that it did not require the discharge of white workers 
and their replacement with new black hires; second, that 
the plan was not an absolute bar to white advancement; and 
third, that the plan was temporary in nature. _Id. The consent 
decree in this case shares all these characteristics. Like 
Weber, the affirmative relief provisions here do not require 
the discharge of white workers and their replacement by blacks. 
Like Weber, the promotional mechanism is not an absolute bar to 
white advancement, but rather accords them fifty percent of an 
expanded pool of jobs. Finally, the provisions here, like 
Weber, are a temporary measure until the percentage of blacks 
in all ranks of the police department approximates that of the 
labor force.

27



This Court has previously considered what constitutes a 
reasonable affirmative goal and the provisions at issue here 
clearly comply with those standards. In City of Alexandria, 
this Court stated:

. . . The Sixth Circuit has said that "a goal 
which seeks the same racial proportion among 
employees as in the labor force will ordinarily 
be reasonable" Detroit Police Officers' Asso­
ciation v. Young, 608 F.2d 671 at 696 (6th 
Cit. 1979). Absent unusual circumstances or 
undue hardship to non-minority workers, we agree 
with this proposition.

614 F.2d at 1366 n.18. The district court did not point to, 
and there is no evidence of, any special or unusual circumstances 
which preclude application of this standard.

As shown above, pp. 16-17, supra, the fifty percent 
end-goal contemplated by the parties is related to the propor­
tion of the population of Orleans Parish that is black and the 
rate of applications submitted by blacks for NOPD employment. 
Moreover, plaintiffs' labor economists' hypothetical reconstruc­
tion of the NOPD workforce to eliminate the racially exclusionary 
effects of defendants' prior practices reveals that by 1980 the 
rank of police officer would have been over 50% black if 
defendants had pursued racially neutral employment practices.
See pp. 12-13, supra. Given the increasing proportion of 
blacks in the relevant labor pool.— ^it is reasonable to

30/ Dr. Bendick derived the following year-by-year proportions
of blacks in the relevant labor pool of applicants, see iBendick
Af fd. , Exhibit B, Table G : (R. 3359):
Year % Black Year % Black Year % Black Year % Black
1965 40.9% 1969 42.2% 1973 45.9%* 1977 64.2%*
1966 41.2 1970 43.4 1974 50.5 1978 68.9*
1967 41.5 1971 44.5* 1975 55.1 1979 65.6*1968 41.9 1972 54.1* 1976 59.6 1980 67.9*

* Based on actual percent of blacks in pool of individuals
tested by CSC for hire as police officers.



expect that if Dr. Bendick's methodology was applied to 1982 or
later data the proportion of blacks one would expect in the
rank of police officer —  and ultimately ranks above that of
police officer —  would be much higher than 50%. Put another
way, the relevant labor force in 1980 was greater than fifty
percent. Accordingly, an end goal of fifty percent at all
ranks is presumptively reasonable, for

"[Ajbsent explanation it is ordinarily to be 
expected that nondiscriminatory hiring practices 
will in time result in a work force more or less 
representative of the racial and ethnic composi­
tion of the population in the community from 
which employees are hired. 431 U.S. 324, 340, n.20 
(1977) International Brotherhood of Teamsters v.United States.

The Court of Appeals in DPOA v. Young, 608 F.2d at 697, 
cited to this portion of the Supreme Court opinion in Teamsters 
when it presumptively approved a fifty percent promotional end 
goal for sergeants in the Detroit Police Department based on 
the percentage of blacks in the external labor market. Accord, 
U.S. v. City of Chicago, 549 F.2d 415, 436 (7th Cir. 1977); 
Firebird Society of New Haven - New Haven Board of Fire 
Commissioners, 66 F.R.D. 457, 459 (D. Conn. 1975).

1. The district court's statement that "the target of 
fifty percent black representation in all ranks is unsupported 
by evidence in the record," Opinion, p. 39 (R. 3492), was 
offered as the first reason for rejection of the promotional 
goals and timetables set forth in the consent decree. This 
statement is clearly erroneous and demonstrates the district

29



court's misunderstanding of the meaning and appropriate use 
of the testimony of plaintiffs' expert labor economist, Dr. 
Bendick.

Dr. Bendick's study, as explained supra at 12-13, 
revealed the percent of black representation one would expect 
to find occupying the ranks of police officer (51.8%), 
sergeant (40.7%), lieutenant (39.4%), captain (37.4%) and 
major (30.5%) as of December 1980. These figures do not —  
and are not intended to —  fix the appropriate percentage of 
black representation in each rank either now (two years later 
than that date), or some twelve years from the time implemen­
tation of the consent decree commences, the point at which 
the court's expert estimated the decree will achieve its 
purpose. Defendants' practice of discrimination did not end 
in 1980. Moreover, the effects of hire and promotion discrim­
ination at the rank of sergeant (and at the higher ranks) 
cannot be expected to have dissipated at the moment discrim­
ination ceases. Thus, assuming that discrimination ended in 
1980, the fact that Dr. Bendick's analysis shows that the 
rank of sergeant should have been 40.7% black as of 1980 does 
not mean that the end-goal of a remedial affirmative action 
plan should be frozen at 40.7%.

It is more appropriate to base an end-goal for all 
ranks on the proportion of blacks in the properly defined 
external labor force as of the time discrimination ceased.
And the courts have adopted this approach. See p. 25, supra. 
If the median number of years of service of NOPD sergeants 
is eight or nine years, one would expect that absent racial

30



considerations, the racial composition of officers in that 
rank will approximate the proportion of blacks who were in 
the external labor force eight or nine years earlier. 
Establishment of an end-goal at all ranks that is tied to the 
black representation in the labor force as of the time 
discrimination ceased, takes this lag-time into account.
Thus as the Court of Appeals for the Seventh Circuit sitting 
en banc, noted, a promotional quota which will achieve parity 
with minority representation at the police officer rank "was 
a reasonable and proper objective of a consent decree.
United States v. City of Chicago, 663 F.2d 1354, 1360 (7th 
Cir. 1981)(en banc).

Application of the 1-to-1 promotional ratio will never
result in a greater proportion of black officers occupying
supervisory positions than their percent representation in the
entry level rank of police officer. The decree provides:

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

Decree, p. 16 (R. 2536). Moreover the decree itself provides 
for retention of the jurisdiction of the court to order any 
modification that is required as a result of changed circum­
stances. See Decree, p. 31. (R. 2551).

While finding Dr. Bendick's analysis to be "generally 
reliable," Opinion, p. 39 (R. 3492), the district court 
identified certain "shortcomings" which led it to conclude 
that the proportion of blacks one would expect in each rank "is

31



somewhat lower than Dr. Bendick's generally helpful projection." 
Opinion, p. 40 (R. 3493). The district court misapplied the
law and its finding of fact is clearly erroneous.

In this Court it is established that absent unusual 
circumstances or undue hardship to non-minority workers, an

fi-E’rostive action end—goal "which seeks the same racial propor­
tion among employees as in the labor force will ordinarily 
be reasonable." City of Alexandria, 614 F.2d at 1366 quoting
D.P.O.A. v. Young, 608 F.2d at 696. The district court 
criticized the fact that Dr.Bendick confined the relevant 
labor pool to Orleans Parish and noted that "in the past 
defendants regularly solicited applications from outside the 
parish to meet their personel demands." Both statements are 
correct but the latter cannot be a legal basis of a finding 
that Dr. Bendick's study "overstated." Here, the relevant 
labor market has been defined by statute. Since at least 
1940, employment with the NOPD has been restricted to "qualified 
voters of the City." In the past, defendants pursued employment 
practices that excluded 40 to 55% or more of the relevant labor 
market, i.e., that portion consisting of black people, from 
meaningful consideration. Given this fact, it should come as no 
surprise that defendants found it necessary to go outside 
Orleans Parish in attempts to satisfy their personnel demands.— ^

31/ Louisiana law obligates defendants to make "diligent 
effort" to obtain its employees from among city residents, and they may seek nonresident applicants only after "it has been 
found impracticable to obtain a sufficient number of qualified voters of the city for positions in any class. La. Rev. Stat. 
§ 33:2411. In the past, defendants restricted application of 
this directive to white persons who were "qualified voters of 
the city." See pp. 6-14, supra.

32



These special recruitment efforts, therefore, are tainted by 
the very employment practices which plaintiffs have challenged
in this case. They cannot be used as a basis for claiming that 
the remedial actions contemplated by the consent decree are 
excessive. Accordingly, the finding that Dr. Bendick "overstated" 
the expected proportion of black officers, absent discrimina­
tion, is clearly erroneous.

2. The district court expressed concern that the 
1—to—1 provision would have harsh effects on non-black officers, 
in general and on the future promotional opportunities of white 
and Hispanic women in particular. Opinion, p. 40. The effects 
of this provision of the decree is no more harsh on non-black 
officers than it is in other cases where a 1-to-1 implementing 
ratio is employed, yet courts, including the Supreme Court 
and this Court have nevertheless approved its use. See cases 
cited at pp. 35-6, infra. Moreover, nothing in this decree 
prevents white and Hispanic female officers from commencing 
an action to force compliance with the federal fair employment 
laws and the decree does not prohibit defendants from implement­
ing a voluntary affirmative action plan that is aimed at over­
coming the lingering effects of any prior discrimination against 

32/women. Indeed it is possible to devise an affirmative
action plan for female officers which requires a 100% quota with-

32/ Linda Buczek, a white female applicant to the NOPD filed a 
class action suit alleging discriminationon the basis of sex.
Ms. Buczek subsequently settled her case after the defendants 
modified the minimum 5'8" requirement, a principal target of 
her lawsuit. (Hearing Apr. 5, 1982, p. 179).

33



out altering this decree.
The district court appears to have rejected the 

requirement that one qualified black officer be promoted for 
each white officer in large part because a minimum of twelve 
years is necessary to reach the decree's terminal point. Op. 
at 40. (R. 3493). This criticism underscores the court's
misunderstanding of the differing functions of an end-goal, on 
the one hand, and a race-conscious promotional mechanism, on 
the other, as the two operate in the decree's affirmative 
action provisions.

The duration of this decree, and indeed, all others 
which include race-conscious provisions, is a function of two 
factors, the end-goal and the rate by which it is achieved.
The end-goal sets forth the appropriate racial complement of 
the defendants' workforce and defines when the program will 
terminate. A "one-to-one," or any other promotion mechanism, 
simply dictates the speed at which the defendants are to pro-

33/

33/ We note that Hispanics do not constitute a substantial 
portion of the population of Orleans Parish. Preliminary 
figures taken from the 1980 census show that Hispanics represent 
only 3.4% of the population. See Admissions, No. 36 (R. 1975) 
Moreover virtually all officers on the NOPD who are identified 
in this action as "Hispanic" classified themselvs as "white" at 
the time of their application for employment. Compare Affd. of 
'James Cogley dated, oct. 3, 1981 with Affd. of ’Janice Roussel, dated Nov. 11, 1981. (R. and ). Finally Hispanic
officers are substantially overrepresented in the supervisory 
ranks as the following table shows:

Hispanics as a Percent of All Officers Within Rank
Police Officer 1.4
Sergeant 3.5Lieutenant 3.0
Captain 12.7
Major 16.7

See Affd. of 'James Cogley, Ex. H. (R. ).
34



ceed toward the end-goal. The more whites who are promoted 
in proportion to blacks, the longer it will take to achieve
the end-goal. Thus, if the district court's complaint is that
the decree should not affect promotions for as long as twelve
years, the proper adjustment is an increase in the proportional
rate of black promotions (e.g., two black promotions for each
white promotion), not as the opinion below appears to suggest,

34/a proportion which slows the rate of black advancement.—
Indeed, the concern that the end goal be reached in a 

timely fashion supports the use of the decree's one-for-one 
promotional scheme. In Weber, the Supreme Court explicitly 
held that an identical plan whereby one black was promoted for 
every white did not unnecessarily trammel the interests of white 
employees because, as in this case, the plan was not an absolute 
bar to the advancement of whites and did not require discharge 
of white workers and their replacement with new black hires.
443 U.S at 208. This Court has specifically approved orders 
requiring one-to-one employment ratios. Morrow v. Crisler,
491 F.2d 1053 (5th Cir. 1974) (en banc), cert, denied, 419 U.S 895 
(1974), cited with approval in City of Alexandria, 614 F.2d at 
1365. Other courts of appeals have upheld similar race-conscious

v

34/ It should also be noted that the district court was 
incorrect in its statement that twelve years spanned the 
entire career of many officers. Op. at p. 40. (R. 3493). In
fact, the career of most officers in the NOPD today lasts at 
least twenty years.

35



mechanisms. The Court of Appeals in EEOC v. Detroit Edison 35/

specifically approved a remedial order under Title VII and 
§ 1981 requiring the promotion of one black employee for each 
white promoted to a supervisory position, provided, as here, 
that only qualified persons are promoted and that there is a 
time or percentage limit placed on the order. See also, e.g♦, 
Dennison v. City of Los Angeles, 658 F.2d 694, 695 (9th Cir. 
1981); Morgan v. Kerrigan, 388 F. Supp. 581 (D. Mass. 1975), 
aff'd. 530 F.2d 431 (1st Cir. 1976) cert, denied, 426 U.S. 935 
(1976); EEOC v. A.T. & T. Co., 556 F.2d 167, 177 (3d Cir.
1977), cert, denied, 438 U.S. 915 (1978); United States v. City 
of Chicago, 549 F.2d 416, 436-37 (7th Cir. 1978). In this 
case, as in Weber, the one-for-one promotional mechanism from 
an expanded pool of jobs is a reasonable compromise between 
the need to remedy past discrimination in a timely fashion 
and the wish to avoid any greater bar to the advancement of 
white officers.

3. The second reason offered for rejection of the 
1—to— 1 promotional ratio, and the final reason for rejection 
of the promotional scheme, is that it is "unnecessary to afford
complete relief to the plaintiffs. Opinion, p. 41. (R. 3494).
©

In using the criterion of the necessity, the district court 
departed from the correct legal standard. In any event, the 
rejected provision is necessary to overcome years of unlawful

35/ 515 F.2d 301, 317 (6th Cir. 1975), vac. and rem. on other
grounds, 431 U.S 951 (1977).

36



racial discrimination. Plaintiffs turn now to a fuller dis­
cussion of these points.

Although a court properly could have imposed promo­
tional goals and timetables like those contained in Article VI 
C of the consent decree, see, e.g., United States v. City of 
Chicago, 549 F.2d 415, 436 (7th Cir. 1977), the district 
court was reviewing a settlment agreement, not fashioning relief 
after trial on the merits. Thus, the focus is not on what a 
court might or might not order; rather, the focus is on 
whether the agreement of the parties is permissible under all 
of the circumstances. City of Alexandria, 614 F.2d at 1362.

A settlement which provides race conscious hiring and 
promotion relief should be approve where it is reasonably 
related to the legitimate state goal of achieving equality of 
opportunities. City of Alexandria, 614 F.2d at 1366; City of 
Miami, 614 F.2d at 1338-49; accord Setzer v. Novack Investment 
Co., 657 F.2d 962, 968 (8th Cir. 1981); (voluntary affirmative 
action plan); D.P.O.A. v. Young, 608 F.2d at 671 (voluntary 
affirmative action plan).

A settlement should not be rejected because it contains 
promotion ratios which affect the interests of white officers 
where, as here, such ratios are temporary and will terminate 
when manifest imbalance have been eliminated, do not establish 
an absolute bar to the advancement of white officers, and do 
not require the hiring and promotion of unqualified officers.
City of Alexandria, 614 F.2d at 1366. See supra pp. 24-25. 
Neither this Court nor others have required a showing that 
these provisions be "necessary."

37



In any event the 1-to-1 promotion ratios provided for 
in this case are necessary to overcome years of egregious and
unlawful racial discrimination. Virtually all of the provisions 
of the consent decree to which the district court points as 
adequate substitutes for the 1-to-1 promotional ratios seek 
merely to assure that employment practices that are implemented 
in the future do not disadvantage black officers and applicants. 
Thus, defendants are expected to develop new selection procedures 
for hire and promotion which eliminate or minimize adverse 
impact. Decree, Art. IX, D. (R. 2540). With respect to the 
written examination portion of the entry level selection pro­
cedure, the district court noted that defendants are required
to eliminate all items on the test that produce a statistically

3 6/significant adverse impact. As to the introduction of new

36/ The district court noted also that this requirement operates 
regardless of the effect of the test as a whole. See Opinion, 
p. 41. This provision was not drafted without knowledge of the 
factors that produced adverse impact on the most recent hiring 
tests. At the time the settlement was presented for approval, 
plaintiffs explained to the district court that:

the results of the most recent tests reveal 
that only a few items are responsible for most 
of the adverse impact. Paragraph IX B simply 
requires the elimination of those few items.
There is no requirement that any minimum num­
ber of blacks be tested, passed or appointed.

Plaintiffs Memorandum Of Law In Support Of Joint Motion Of All 
Parties For Approval Of Consent Decree And Response To Objection 
of Limited Intervenors, p. 10. (R. 3327). No one challenged the
accuracy of this statement. It is likely that the written entry 
level test will continue to result in adverse impact against 
black applicants, and the decree does not prohibit that result.

38



selection procedures for promotion, if the written test
portion has adverse impact, defendant are rquired to review

37/the test for the possible presence of unfairness.— if
unfairness is found (or if it is otherwise appropriate, e.g.,
to accommodate use of alternate selection procedures, see
U.G.S.P., 29 CFR § 1607.6 to satisfy affirmative action
obligations, see U.G.E.S.P., 29 CFR § 1607.13) defendants may
score the test on the basis of separately calculated frequency 

38/distributions.—
These provisions and all of the other provisions which the 

district court listed except for the 44 immediate promotion 
slots, are intended merely "to ensure that (in the future) 
blacks will advance through the ranks on the same basis as 
nonblacks" Opinion, p. 41 (R. 3494).

36/ continued
The consent decree obligates defendants instead to make their 
best efforts to reduce or eliminate adverse impact. See Decree, 
Art. Ill (R.2531), but does not require that the proportion of 
blacks who pass the written test be equal to the proportion of 
who take it. The fact that defendants are obligated to avoid 
adverse impact in the remainder of the selection process, which 
contains subjective elements and historically has screened 
out the greatest number of blacks, and at the police academy, 
does not negate the likelihood that the entry level selection 
process, as a whole may still produce adverse impact against 
black applicants.
37/ The term "unfairness" that is used in the consent decree 
was taken from the Uniform Guidelines On Employee Selection 
Procedures, is defined there. See 29 CFR § 1607.16V.
38/ As a further condition of approval the district court has 
required that prior court approval be obtained each time the 
defendants contemplates implementation of this procedure.
See Opinion, p. 36. (R. 3489).

39



Finally, the provision for the immediate promotion of 
44 blacks to supervisory ranks is simply insufficient to 
overcome the lingering effects of prior unlawful practices.
Dr. Bendick's study shows that as of 1980 blacks should have 
been represented at the various ranks in the following propor­
tions :

Police Officer 51 .8%Sergeant 40.7%Lieutenant 39.4%Captain 37.4%Major 30.5%
(R. 3362-66). After the 44 promotions are make blacks will be 
represented in supervisory ranks in the following proportions: —

Police Officer 23.5%Sergeant 15.9%Lieutenant 18.2%Captain 8.7%Major 0.0%
These proportions are only one-third to one-half the 1980 
expected proportions of blacks and none begin to approach the 
percentage representation of blacks in the relevant labor 
market. Clearly, more than 44 promotions are necessary to 
provide complete relief to the plaintiffs.

39/ Derived by adding 30, 12, and 2 blacks to the existing 
number of blacks occupying the ranks of sergeant, lieutenant, 
captain and major respectively to the workforce statistics 
presented by the court appointed expert, Dr. Melvin Wolfson.
See n.17, supra. Pursuant to Art. VI § B, n.2 of the consent 
decree 9 nonpersons were added to the total number of nonblacks occupying the rank of sergeant. (R. 2535). The three (3)
whites to be promoted to the rank of lieutenant pursuant to 
that provision were appointed on February 3, 1982 because the 
then existing lieutenant eligible list was about to expire and could not be extended. (R. 3233).

40



CONCLUSION

After nine years of litigation, the parties to this 
lawsuit negotiated a consent decree which is admittedly 
complex but undeniably intended to achieve the difficult and 
interrelated goal of correcting decades of employment discrim­
ination in the New Orelans Police Department and of providing 
a blueprint for the construction of a truly integrated 
police force in the City of New Orleans. By rejecting the 
race-conscious promotional mechanism in the decree, the 
district judge removed a fundamental cornerstone of the plan. 
Absent a guarantee that the NOPD will be truly integrated at 
all ranks, the victims of discrimination will not have a 
complete remedy, the City of New Orleans will be unable to 
close the chapter on years of racial injustice within the 
NOPD, and the efficient and effective delivery of police 
services to city residents will continued to be impaired.
See DPOA v. Young, 608 F.2d at 696.

We believe that we have demonstrated the reasonable­
ness of the provisions of the consent decree which provide for 
a "one-to-one" promotional mechanism until all ranks in the 
NOPD are fifty percent black. The district court failed to 
apply the proper legal standards when it rejected these provi­
sions of the decree. Accordingly, we respectfully request 
that the decision of the district court be reversed insofar as 
it rejected Art. VI of the consent decree and that the case be

41



remanded with instructions to approve the consent decree in
.. . 40/its entirety.—

Respectfully submitted,

"JACK GREENBERG "~~=>
0. PETER SHERWOOD BETH \J. LIEF 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

RONALD L. WILSON
310 Richards Building
837 Gravier Street
New Orleans, Louisiana 70112

Attorneys for Plaintiffs-Appellants

40/ The district court also required, Opinion, p. 36 (R. 
3489) that leave of court be obtained prior to implementation 
of promotional test scoring procedures which involve separate 
frequency distribution techniques as is permitted under Article IX C(2) of the consent decree. Plaintiffs believe 
that the decree need not be reworded to conform to this 
requirement. However, should this Court disagree with 
plaintiffs' interpretation, we request reversal of the 
district court insofar as its decision requires explicit 
amendment of Article IX C(2).

42



CERTIFICATE OF SERVICE
This is to certify that on the 29th day of October, 

1982, copies of the foregoing Brief of Plaintiffs- 
Appellants were served on each of the counsel set forth 
below:

Gilbert Buras, Jr., Esq. 
1300 Perdido Street 
New Orleans, La. 70112
Ralph Dwyer, Jr., Esq. 
503 Whitney Building 
New Orleans, La. 70130
Sidney Bach, Esq.
221 Carondelet
New Orleans, La. 70130
Dale C. Wilks, Esq.
234 Loyola Avenue 
New Orleans, La. 70112
Lynne Wasserman, Esq.
Pan American Life Center 
601 Poydras Street 
New Orleans, La. 70130
Patrick Hugg, Esq.
307 Exchange Alley 
New Orleans, La. 70130



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