Hazelwood School District v. United States Brief Amicus Curiae

    I n  THE

Bvtpxzmz (Heart af tip United States
October Teem, 1976 

No. 76-225

H azelwood School District. et aL,

v.
Petitioners,

U nited States oe Amebica,

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

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

AND EDUCATIONAL FUND, INC.

J ack Greenberg 
J ames C. Gray, J r.
P atrick 0 . P atterson 
Tyree Irving 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Louis Gilden
722 Chestnut Street 
St. Louis, Missouri 63101

Counsel for Amicus



I N D E X
PAGE

Interest of Amicus Curiae -----------------------

I. Introduction ------------------------------------

II. The Findings of Discrimination Below ...

TTT Title V II’s Prohibition Against Unnecessary 
Practices With Discriminatory Effects Is Con­
stitutional ------------------------------- -----

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

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

. .... .....  25
tncts .............................................

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

Table of A uthorities

Cases 2
Albemarle Paper Co. v. Moody, 422 U.S. 405 t1975^  ^  ^  

Brown v. Board of Education, 347 U.S. 483 (1954^  ̂ ^  ^

Euclid v. Ambler Realty, 272 U.S. 365 (1926) ............-  21
Gaston County v. United States, 395 U.S. 285 (1969) .... 21 
General Electric Co. v. Gilbert, 97 S.Ct. 401 (1976 )"  1
Green v. School Board of New Kent County, 391 U.S.

430 (1968) ...............................................................25,27’
Griggs v. Duke Power Co., 401 U.S. 424 (1971)^  ^  ^  21

. . . . . . .  8Jefferson v. Hackney, 406 U.S. 535 (1972)



11

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

Katzenbach v. Morgan, 384 TJ.S. 641 (1966) -------19, 20, 22

Lassiter v. Northampton Election Board, 360 TJ.S. 45
(1959) ..................... ...................................................... 20,22

National Leagne of Cities v. Usery, 426 TJ.S. 833
(1976) ............................................................................ 22,23

Oregon v. Mitchell, 400 TJ.S. 112 (1970) ..................... -20, 22

Palmer y. Thompson, 403 TJ.S. 217 (1971) ....................  20
Pierre v. Louisiana, 306 TJ.S. 354 (1939) ......................  12
Bowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) 10

Senter v. General Motors Corp., o32 F.2d 511 (6th
Cir.), cert, denied, 50 L.Ed. 2d 150 (1976) .................  10

Stewart v. General Motors Corp., o42 F.2d 445 (7th
Cir. 1976) ........................................................................  10

Swan y. Charlotte-Mecklenburg, 402 TJ.S. 1 (1971) .... 25,
26,27

United Jewish Organization of Williamsburg v. Carey,
45 U.S.L.W. 4221 (1977) ..............................................  18

United States v. Carpenters Local 169, 457 F.2d 210
(7th Cir.), cert, denied, 409 U.S. 851 (1972) ............. 10

United States v. Chesapeake & Ohio By. Co., 471 F.2d
582 (4th Cir. 1972) .......................................................  10

United States y. City of Black Jack, 508 F.2d 1179 (8th
Cir. 1974), cert, denied, 422 U.S. 1042 (1975) --------  6

United States v. Hayes In t’l Corp., 456 F.2d 112 (5th
‘ Cir. 1972) _______________________ -........................ 10
United States v. Hazelwood School District, 392 F.

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

805 (8th Cir. 1976) ......................................................... 6,7

PAGE



iii page

United States" v. Ironworkers Local1 * .  *  * *  544 ^
(9th Cir.), cert, dented, 404 ^  f Bolard 0£ Educa- 

United States v. Montgomery County B oaru________  , 5

tion, 395 U.S. 2^5 of City of Jennings,
United States v. School D (8th

399 F.Supp. 322 (E.D. Mo.), rev d =39 ___ .

. . .  .... _ - n ^ c  I 2fi U.S. 229 (1976) ..... -...-...16,20

Constitutional Provisions:

Article I, Section 8 ......... .
Thirteenth. Amendment .... 
Fourteenth Amendment - 
Fifteenth Amendment ....

.......... 18,22,23

................ 18,19

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

S ta tu to ry  Provisions:

Civil Eights Act of 1866 ------

Civil Eights Act of 1871 .......
Title T O  of the Civil Eights 

§2000-e, as amended ...........

............................  19

............ 19

Act of 1964, 42 TJ.S.C. _ 
.............passim

State C onstitutions and Laws: 
Missouri Constitution, Art. IS , §1



Miscellaneous:

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

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

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

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

H. Eep. No. 92-238, 92d Cong..........................................  17

“Legislative History of the Equal Employment Op­
portunity Act of 1972”, published by the Senate
Committee on Labor and Public Welfare (1972).......18,

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

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

S. Eep. No. 92-415 92d Cong............................................  47

tenBroek, “Equal Under Law” (1951) ........................  19

Yackle, The Burger Court, “State Action,” and Con­
gressional Enforcement of the Civil War Amend­
ments, 27 Ala. L. Eev. 479 (1975) ............................  20

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

iv
PAGE



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_ . discrimination litigation
seated parties in ts The Legal Defense
before this Court and t h 1 » «  ^  employment drsormn-
Fund believes that i t .  « P  assistaIloe to the Court.

I.
Introduction

. • , ase in which de jure
This action presents a ^  been perpetuated

segregation of public scho rimination in hiring. Prior
in operation by Purp0S*f"  i ution required that separate 
to 1954 the Missouri Constitute ^  ^  cHldren. Mo. 
schools he mamtamed ag elsewhere, thi

s t r s f "  '-■» “ * ■*
schools. f  bout i.5 million,

St. Louis County, with a pop * * the size of Montgom- 
and covering an area a p p r ^  25 achool districts,
cry County, Maryland *  Br(mm v. Board of E
Prior to this Court s deci school districts
X .  r .S . 483 (1954). ^ t°y aud Kinloch. Blach
operated black schools • u  ted to travel to one
children in other ^  J "  d to attend school." Under 
of these d i s t r - c t ^  T teachers, n0 matter how quail- 
the state constitution m

_________  t tQ the filing of this brief have been filed with
i Letters of consent to the mi „

*■ CleXk t numher of districts has varied over the last 20 years

a3 d^tricts have merged1 ^ 2 ^ ' Missouri, m  ^ V V -  739, 743 
s coo TJnited States i« ( ;  (8th Cir. 197o).



3
• f T'or a black

led could only teach m these 2 <hstac ^
teacher seeking employment »  S t  mandated faculty
souri constitution operated
assignment rnle. the provision of

Although Brown  was deci e t^e hiring of black
th^Missouri Constitution Pr* * f “ S23 of tte  25 districts 
faculty at white schools, at ̂  ^  Mo.

f„nSl Ll t  U ^ U O Z * * £ £ % ? :

TZ'im &
s *

ers, and another 4 with n ^  teacbers were concen-
Louis City about half *  \y 0 of the total county teach- 
trated in 3 districts with o • -t city, with a com-

Enloch, Wellstori and Umve J  rcmaining districts

to e d  faculty is
were 3.0fo black. H  St.
parity is even greater. o{ each school

The proportion the district’s hlack student en-
ost mathematical precision.

________ . rto fto u  Bayless, Brentwood a ze lw M iH a n ^

distrirt is set otttIpTlS. See P- 7L? , .a -a. XTrv



4

Students and M j * -  Louis

Percent of 
Faculty 

Fan-White

88.27k 
79.8% 
54.4% 
26.6% 
13.3% 
11.7% 
10.4% 

8.0%

County

District
Kinloch
Wellston8
St. Louis City
University City
H ormandy8
Webster
Maplewood8
BerKeiey . . , f  
Special School District of 7.7 %

St. Louis County 7.2%
Uickwood 5.6%
Bitenour 1.6%
Valley Park 1.4%
Perguson 1.1%
Brentwood7 1.0%
Hazelwood8 0.6%
Jennings8'1 0.09%
Parkway1 0.05%
LaDue1 0.05%
Pattonville 0.04%
Lindbergh 0.02%
Bockwood g 
Biverview Gardens 0

Percent of 
Students

Fon-White

100.0%
96.8%
68.8%
54.9%
45.9%
16.0%
16.9%
25.7%

18.9%
12.4%

6.9%
1.7%
2.2%
10.1%

2.3%
3.6%
0.2%
1.3%
0.9%
0.3%
1.0%
1.6%

5 Piaintitt s ’, u Elementary
Welfare, Directory of pp. 746-785 (1972).

»  e o n . i r e o - ^ " 1970. Depart-

S T S & S  (1970).



5

)istrict
lancock8
kfton*
Bayless'
Melville

percent of 
Faculty

Non-White

0
0
0
0

Percent of 
Students 

Non-White

0.1 °Jo 
0 
0 
0

raciaUy identifiable school lin a^ore
to 1954 have thus oontmucd, althou„, of blaek

, which substantial number ^  proportion to the

S eh enrollment in the "  1276, l787.8 <W>. Mo.
wood School D 'stnct, 392
1975).' „ „ ttl„ distribution of black faculty

I ‘ from the heavily black £ £

iT o u is ^ F o u r  of the five distorts of the 9 adjacent

^  4districts, 6 game erroneous
_______— , . +h(, same district took the ^  j ennings,

* Another judge in school District 2d 655 (8th
position in NLo. 1975), rev d o39
oqq V Supp- 3^ ’ 6 .
Cir. 1976). Biverview Gardens, Hancock,
9 H azelw ood , J f f f t  B l^



6

listricts1” with faculties from 0 - 0 9 | , J f ^ t h U i e  escep-

their teachers from among their own residents.

Hazelwood is the f  “ ™ S*B̂ t n  t t^ o r ^ t io n

°£ ^  W W ^ f ^ ^ t e ^  ^ te rS O O te a c h -
Hazelwood faculty r f ts  Ured -a  these years was

' 7 ,  :  Hazelwood had only 12 black teachers out 
white. In  19 <2 tta  10/12 Hazelwood has a
of a faculty of 1 * 0 .  or U -  tb a n ^ o . ^ Hazel ^  ^
common boundary m  Louig municipal airport,
district is adjacent to the S . ig
Lambert Field. The northern area of S t  Lorn ^  ^
closest to Hazelwood is the poalno School
greatest concentration of blacks. 1 ^  ^  M d
District includes the city o  ̂ ’ prevent blacks
hare "  City of

Cir. 1974) cert, denied, 422 U.S.

1042 (1975). f in
The government commenced this action on August 10,
i m ,alleging purposeful - i a l  “  “ Q

of teachers, -eluding apphcation of different a

r  ̂
io Patonville, Ritenour, Ferguson, Berkeley.

..  Hazelwood, the t a p -  -  “ ^ " g ^ p l l a L ^ e S

g^saSf lfrlwood Seh°°lF.2d 805, 811-12, n.7 (8th Cir. 1976).
12 Plaintiffs Exhibit 54; 534 F.2d 805, 809.

i* App. 4.



7 „ t detailed tie  claimstatement,

United S t a t e ^ ^ 3 ° ^ d  seet to P - ° ^  ^ ^ t o r y
rrhich the ?la® sent  ra“ia^ d,s deliberate re‘

mve defendants P Sazel^ood  ̂ incep-

ot p a rp o ^  J  & e ra tely <=®t appUeants.

S - S^ StTil i c l  ^  * e n nt also urgedtlceS tve governme aCrainst
, t ia\  metnorandum ^criminate

In  its post-tna deliberated
& at aaae l«ood contender
Wacb3.“  • (rovernnie . _ . . . taon
uat Basebvoo rf3 contention
jlncke.”  jected the S°''e discrimination,

The district court - ra^ ^  r.Sup?.
that Haselwood B a ^ o o d  J ĉoUrt of a p p c ^

% e\ ^ 9  W 6)h T e s ^ d1 ** » ,04 fT.Sd 8O0 v states bad aIid rest-versed. United ® . _pruninati°Ut ,

” » - s s  -  - r s s -’wbite Prm.C. ̂ nt3 vvltli a standar ^  race, o34 *

"“ “ ay  r^ ected W ac^  Ratified Wa* f  Ratified
tionally t least 16 or no b pinion

vdiltes- 0 pp.'T-8- a vindings of
_________ _ . , ivlarcb 25,19 ’ .«, proposed n plain-

Txauscr.pt of rf order, p p £  •p. 100-

11 MT c “  c S o p t  of “  aud Coudusrou

& £ * * * * * “ *101,114, U8-



8

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

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

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



n.
The Findings o£ Discrimination Below

When this ease was tried in * * * % * ”£  “  ^ 5 ,
and when i t  was heard™ s Lngle consistent, though ulti- 
the defendants presented a 8 ’ were hired
mately nnpersuasive d e fe n se -  hat few ^  ^  ^ e r -
by Hazelwood because the P aBT3licants and the vast

r ; :r r c . i
on examining a cold ’ hat happened m
tirely new assertions of fa aS *  the years
Hazelwood, and to some ex school hoard em-
prior to trial. None o deposition, ever
ployees who testified, for Peti-
presented the “ g “ at“ eir brief.° This theory was never 
tioners in P art H  o Under the circumstances
presented to either court h e ^  Under f t  ^  >t

«  doubt that such n e w p e t i t i o n e r s ’ complaint that the 
this late date; we find aPr(yuments and theories never
court of appeals i0 . ° United States cannotthere presented, and we heheve the U m te^  ^  ^  ^

reasonably be requiT erted by counsel for defen-
a hypothetical defense first asserted oy
dants in this Court in 1977. _ . ,

w S r 5 h ^ 7 4 ^  very

and C onclusions of Law, the f F t  and C onclusions of
1” Circuit, and the P c
S i t e  B e r i n g  the Court of Appeals.



10

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

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

20 See Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th 
Cir. 1976); Senter v. General Motors Corp., 532 F.2d 511, 526-28 
(6th Cir.), cert, denied, 50 L.Ed. 2d 150 (1976) ; United States v. 
Chesapeake <& Ohio By. Co., 471 F.2d 582, 586 (4th Cir. 1972) ; 
Rowe v. General Motors Corp., 457 F.2d 348. 358 (5th Cir. 1972) ; 
United States v. Carpenters Local 169, 457 F.2d 210, 214 (7th 
Cir.), cert, denied, 409 U.S. 851 (1972) ; United States v. Hayes 
Inf l  Corp., 456 F.2d 112, 120 (5th Cir. 1972); United States v. 
Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), cert, denied, 
404 U.S. 984 (1971) ; Jones v. Lee Way Motor Freight Lines, 431 
F.2d 245, 247 (10th Cir. 1970), cert, denied, 410 U.S. 954 (1971).

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



11

PP— y 54 ^ M c a n t s  —  ^
nuneEt for the years 19J1 ^  the government’s
pplicants, or close to it- f  United States ex-
S e  at trial, whom it would

a fraction of the total:

i T L  of the s s s
the pool of available qua 1 ffles after one year,
practice of destroying app ca on ftU or prob­
it has not been possibh> to °btam 1̂ t .  
ably most black apphca identify

However we for 1972 and

at least ^  ° ^ d̂ 74 who, the evidence will show, 
1973 and 1973 and 1 ^  there were vacancies
applied for positions fo J  hired white appli- 
and that Hazelwoo q1ialified for the vacan-
cants either less or no better q
cies.M

The government was able to f
o£ the blank applicants
only by sending ÔT,j aTlts never suggested below tha.t 
thought to be black, e ^  most 0f the black appli­
e s  group of 54 C0̂ S ^ calculations from this figure 
cants, never made bel°^  Hgh proportion of black
which lead them■ 0 aM cannot reaSOnably complain
applicants were hired, this “fact”.23 Even if

r  m
: ; ; s rta ■ De “

«  Transcript of March 25,1974, p. 9. 
sa Brief for Petitioners, pp. 47-48.

« Id., PP- 44.



12

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

Defendants also offered no evidence to establish that a 
low level of black applicants, if it existed, was not tainted 
by present or past discriminatory practices. Defendants’ 
counsel urges in this Court that there were only 54 black 
applicants in 1971-73, compared to a total of 7,800 appli­
cants those three years.25 If  this were indeed the case, 
blacks would have accounted for less than 0.7% of all ap­
plicants for positions at Hazelwood, even though blacks 
were 15% of the teachers in St. Louis County, from which 
most of Hazelwood’s new employees came. One th ir i  of 
Hazelwood’s new employees come from St. Louis City, 
whose teachers are over 54% black and whose population 
is over 40% black.26 The applicant flow asserted by de­
fendant would mean, inter alia, that despite the thousands 
of black teachers in St. Louis virtually all the teachers in

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

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

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



13

tte city seeking jobs in Hazelwood were whife 8m * .  
peculiar pattern of “  ^ “fait that

S E N S ' S  f ^ f e  to L e  £

r p T i n t f m i l e ® !  variety of other possible theories, most
involving continuing effects of past discrirmnariou could

;ne hypothesized to explain ^ f^ / " d e ^

r  i ^ i  " n  - .
“ au number of black applicants first asserted to emst in 
this Court several years later.

Defendants offer a related assertion o f fartwi t t  regard 
to its failure to hire any blacks prior 196 
tnally no blacks applied during this period. N o emp T 

flh e  defendant school board who testified, 
ov^Prience at Hazelwood began prior to 1969, stated m 
w T any shortage of black applicants then. This era, more- 

:n whicb Hazelwood was engaged in active
r ^ ^ ^ e r a c i r = ^ n . r t eant

r j a ^ f  Wack app ^ n ts1 ta this period it was certainly 
a +n the fact that Hazelwood’s recruiting was almos 
entirely^Umited  ̂to^all-white or virtually all-white codecs, 
and that while the district recruited from schools m 
tant states it never sought applicants from the predo -

. inantly black 27 *
rn

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



14

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

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

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

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



15

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

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

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

30 534 F.2d 811.
31 App. 92-94.



16

and hiring are tilted to increase the number of blacks over 
what would otherwise have been hired, or to increase the 
number of whites. Since black teachers had risen to 54.5% 
of the St. Louis City school system by 1972-73,32 maintain­
ing a 50% white and black proportion would have required 
favortism for white applicants, not blacks.

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

in.
Title V n’s Prohibition Against Unnecessary Practices 

With Discriminatory Effects Is Constitutional

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

32 Plaintiff’s Exhibit 54.



17

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

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

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



18

are not, in fact, job-related; so did Congressman Perkins,34 
the Honse floor manager and Senator Williams,35 the Sen­
ate floor leader.

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

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

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

35 Id., p. 1114.



19

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

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

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

Decision, 69 Harv. L. Rev. 1, 63-64 (1955). See Katzenbach v. 
Morgan, 384 U.S. 641, 648-51 (1966).

37 The burdens complained of at pp. 21-22 of the Brief for Peti­
tioners are the normal incidents of a finding of discrimination and 
have nothing to do with the effect rule as such.

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



2 0

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

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

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

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



21

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

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



2 2

a law, otherwise valid, the stamp of invalidity.” Euclid v. 
Ambler Realty, 272 U.S. 365, 388-89 (1926).- This rnle 
clearly applies to the congressional Fourteenth Amendment 
enforcement power,37” which includes the power to prohibit 
as a preventive measure under Section 5 that which would 
not be prohibited by Section 1 of its own force. Com­
pare Katzenbach v. Morgan and Oregon v. Mitchell, supra, 
with Lassiter v. Northampton Election Board, supra.

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

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

37b See Orloski, The Enforcement Clauses of the Civil War 
Amendments: A Repository of Legislative Power, 49 St. John s 
L Rev 493, 506-507 (1975) ; Tackle, The Burger Court State 
Action” and Congressional Enforcement of the Civil War Amend- 
M b ,  ! !  Ala. U  Rev. 479, 562-66 (1975) s Cohen, C o ^ m m n .1  
Power to Interpret Due Process and Equal Protection, 27 Stan. 
L Rev. 603, 613-16 (1975) ; Note, Federal Power to Regulate Pri­
vate Discrimination: The Revival of the Enforcement Clauses of 
the Reconstruction Era Amendments, 74 Colum. L. Rev. 449, 
505-10 (1974).



23

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

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

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

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

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

38 Legislative History, pp. 1114-15.



24

eral aid being provided to state and local governmen a. 
Senator Williams also placed in the record portions of a 
xenort of the United States Commission on Civil Bights 
urging federal action on this basis« The Hazelwood 
School District is among the thousands of units of state 
and local government receiving such federal aid and m 
recent years has sought and accepted more than $500,000 
annually in federal grants. Agencies accepting snch funds 
are, as a consequence, subject to a host of federal statutes 
and regulations not remotely related to their constitution 
duties, and Hazelwood, like the others, must accept such 
n/i/in-irvnol -rpniiirements.

IV.
The Remedy Afforded the 16 Victims of Discrimination

Petitioners devote 17 pages of their brief to an argument 
that the court of appeals erred in finding there was dis­
crimination against the 16 black applicants to whom specific 
relief was awarded. Brief for Petitioners, pp. 61-77. peti­
tioners urge that, if the Court rejects their argument con­
cerning the constitutionality of Title VII, the caae none­
theless be “remanded for reconsideration of the alleged 
individual cases of discrimination.” Id., p. 78. Petitioners 
candidly concede, however, that certiorari was purposely 
not sought with regard to this aspect of the Eighth Cir­
cuit’s decision. Id., p. 62. Under these circumstances the 
Court can neither consider nor resolve the issues deliber- 
ately abandoned by petitioners. 39

39 Id., pp. 1138-50. 
*• Id., 1123.



25

V.
Affirmative Action Is Required to Disestablish the 

Pattern of Racially Identifiable School Districts

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

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



26

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

Sxvann also held that a similar obligation applied to 
faculties:

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

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

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

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



27

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

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

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

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



28

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

We believe that, judged by the requirements of Green, 
as by those of Title VII, the remedy ordered by the court 
of appeals is seriously deficient. Hazelwood is directed to 
cease discrimination, to adopt more objective standards, 
and to make periodic reports. The only specific substantive 
relief ordered is the hiring of 16 particular victims of past 
discrimination, a number so small as to be insufficient to 
materially increase the proportion of black teachers at 
Hazelwood. Although the government, at trial, sought af­
firmative relief in the form of goals and timetables to in­
crease the number of black teachers,43 the issue of relief, 
however, was not briefed on appeal. With the exception of 
the 16 rejected blacks the Eighth Circuit’s order is entirely 
prospective, and does not seek to redress the effects of 
past practices. We note, however, that the opinion of the 
court of appeals does not purport to limit the ability or 
duty of the district court to order whatever additional re­
lief may be warranted by the circumstances.

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

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



29

CONCLUSION

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

Kespectfully submitted,

J ack Gbeekbebg 
J ames C. Gbay, J b.
P atbick 0 . P attebson 
Tybee Ibvikg 
E bic S chnappeb 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Louis Gilden
722 Chestnut Street 
St. Louis, Missouri 63101

Counsel for Amicus