Davis v. Mobile County Board of School Commissioners Appellants' Petition for Rehearing and Suggestion for Rehearing En Banc

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 78-1078

BIRDIE MAE DAVIS, ET AL.,
Plaintiffs.

EDWIN FOSTER and JAMES E. BUSKEY,
Plaintiffs-Appellants,

VS
BOARD OF SCHOOL COMMISSIONERS OF 
MOBILE COUNTY, ET AL.,

Defendants-Appellees.

On Appeal from the United States District Court for the 
Southern District of Alabama Southern Division

APPELLANTS' PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC

Appellants Edwin Foster and James E. Buskey hereby peti­
tion the Court, pursuant to Rule 40, FRAP, to grant rehearing 
of the above-styled appeal in order to reconsider the follow­
ing questions raised as a result of the panel decision issued 
August 6, 1979:



1. Where a line of cases has established 
the rule in this Circuit that a black teacher with 
fully matured Title VII claims must intervene in the pending school desegregation action, does a district 
court's refusal to certify the intervenor as the 
representative of a subclass of black teachers subject 
to the same racially discriminatory employment practices 
--on the ground that the original student plaintiffs 
adequately represent the teachers' interests-- 
necessarily and absolutely preclude the possibility
of providing classwide Title VII rights and remedies?

2. Are teachers with Title VII claims barred 
from challenging the school board's written promotion 
criteria under the disparate impact theory of Griggs 
v. Duke Power Co. simply because the board is subject
to the Singleton provisions of a pending school desegre­
gation decree?

3. Where the court holds that a teacher has 
proved a pattern or practice of racially segregating 
administrative jobs in violation of Title VII and the 
school desegregation decree, can the board successfully 
defend against the teacher's claim for individual relief 
by advancing purely subjective considerations, such
as the teacher's "philosophy on life in general"?

Appellants further suggest, pursuant to Rule 35, FRAP, that 
the issues framed by this petition be reheard en banc on 
grounds that the panel opinion directly conflicts with prior 
precedents of this Court and the Supreme Court.

CERTIFICATION FOR REHEARING 
_________EN BANC__________

I express a belief, based on a reasoned and studied 
professional judgment, that the panel decision is contrary 
to the following decisions of the United States Supreme 
Court and the Court of Appeals for the Fifth Circuit, and 
that consideration by the full court is necessary to secure



and maintain uniformity of decisions in this Court:
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976);
Teamsters v. United States, 431 U.S. 324 (1977); 
Griggs v. Duke Power Company, 401 U.S. 424 (1971); 
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 

437 (5th Cir.), cert, denied, 419 U. S. 1033 (1974);
Rowe v. General Motors Corp., 457 F.2d 348 (5th

Cir. 1972);
Qatis v. Crown-Zellerbach Corp., 398 F .2d 496 (5th

Cir. 1968).
I express a belief, based on a reasoned and studied pro­

fessional judgment, that this appeal involves the following 
question of exceptional importance:

Should the pendency of a school desegregation 
decree containing Singleton provisions prevent black teachers 
from enjoying the classwide and individual rights and remedies 
provided by Congress in Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C. §2000e et. seq.?

i / 1 4 L , t .  A — --------------------------------_ _rorney of Record for Plamtiffs-
Intervenors-Appellants Edwin Foster and James Buskey



TABLE OF CONTENTS
Page(s)

Statement Of The Course of Proceedings 
and Disposition of the Case

Argument
1.The Davis Class Plaintiffs Cannot 
Assert Title VII Claims, and Refusal 
to Certify the Teacher-Intervenor as 
a Subclass Representative Necessarily Destroys the Title VII Rights and 
Remedies of Similarly Situated Black Teachers.

2 Black Teachers May Challenge Employment Standards Under a Griggs Theory Even in 
School Systems Subject to a Singleton Injunction.

3. Because the Teachers Have ProvedIntentional Classwide Discrimination, 
They Should Not Be Denied Individual 
Relief on the Basis of Unvalidated, 
Nonstandardized, Purely Subiective Criteria.

Conclusion
Certificate of Service

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5 - 9

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TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody,
422 U.S. 417 (1975)..........................7

Allen v. Grenada Municipal Separate 
School Dist.,

575 F. 2d 486 (5th Cir. 1978)................ 5,9
• Baxter v. Savannah Sugar Refining Corp.,

495 F.2d 437 (5th Cir.)» cert, denied,419 U. S. 1033 (1974) ................. iii, 9
Davis v. Board of School Comm'rs of Mobile

• County,
517 F.2d 1044 (5th Cir. 1975),
cert, denied, 425 U.S. 944 (1976)............  1, 5, 6

Franks v. Bowman Transportation Co.,
424 U. S. 747 (1976)........................ iii, 8, 9,

12

Griggs v. Duke Power Co.,
• 401 U. S. 424 (1971)........................ii, iii, 4,

7, 9
Hereford v. Huntsville Bd. of Education,

574 F . 2d 268 (5th Cir. 1978)................ 9, 11
McDonnell Douglas Corp. v. Green,

411 U. S. 792 (1973)........................  4, 10
Oatis v. Crown-Zellerbach Corp.,

398 F. 2d 496 (5th Cir.1968)................iii, 8
Robinson v. Union Carbide Corp.,

538 F.2d 652 (5th Cir. 1976),
• mod, on rehearing, 544 F. 2d

1258, cert. denied, _____U.S._____1977 . . . .

Cases Page (s)

11



Cases:
TABLE OF AUTHORITIES

Page(s)
Rowe v. General Motors Corp.,

457 F. 2d 348 (5th Cir. 1972)................iii, 11,
12

Singleton v. Jackson Municipal Separate School Dist~
419 F . 2d 1211 (5th Cir. 1969)............... ii, iii, 1,

4, 9, 12, 13
United States v. U. S. Steel Corp.,

520 F. 2d 1043
(5th Cir. 1975), cert, denied
429 U. S. 871 (197rT7 T ................. 9

Teamsters v._United States
431 U. S. 324 ( 1 9 7 7 ) ....................... iii, 4, 10,

12

Watkins v. Scott Paper Co.,
530 F.2d 1159 (5th Cir.)
cert .denied, 429 U. S. 861 (1976).......... 11, 12

Constitution and Statutes :

Title VII of the Civil Rights Act of 1964, as amended,
42 U.S. C. §2000e et. seq................... ii, iii, 1,

2, 3, 4, 5, 
6, 7, 9

Rule 35, F R A P ............. .............. ii
Rule 40, F R A P ................................... i
Uniform Guidelines on Employee Selection Procedures,

29 CFR 1607 (1978)..........................  11



STATEMENT OF THE COURSE OF PROCEEDINGS AND 
___________ DISPOSITION OF THE CASE_______

Appellants petition the Court for rehearing on three 
issues of law, which together ask whether the Singleton 
provisions in pending school desegregation decrees have some­
how preempted or critically truncated the Title VII rights 
of black teachers. Unless it is revised, Appellants respect­
fully contend, this is precisely what will be the effect of 
the panel decision written by Judge Hill and joined by Judges 
Ainsworth and Godbold.

Appellants Edwin Foster and James E. Buskey alleged that 
the Mobile County School Board's practices and procedures 
unlawfully discriminated against black teachers desiring 
promotion to principalship and central office staff positions. 
Mr. Buskey filed an EEOC charge and eventually received his 
right-to-sue letter; Mr. Foster did not. As a result of an 
interlocutory appeal to this Court, Davis v. Board of School 
Commissioners of Mobile County, 517 F .2d 1044 (5th Cir. 1975), 
cert, denied, 425 U.S. 944 (1976), both black teachers were 
forced to assert their claims through intervention in the pend­
ing school desegregation action. In the earlier opinion, 
written by Judge Bell, this Court promised that " [ intervention 
would not result in the loss of substantive or procedural rights

1/ Singleton v. Jackson Municipal Separate School Dist., 
419 F.2d 1211, 1217 (5th Cir. 1969).



under Title VII." 517 F.2d at 1049.
On remand, following full discovery and a trial on 

the merits, the district court found that the School Board 
was maintaining a policy or practice of assigning blacks to 
principalships only at virtually all-black schools and whites 
to principalships at all other schools, a 75-25 ratio of white 
to black principals and an 85-15 ratio of whites to blacks on 
the central office staff. By contrast, 407o of all teachers 
in the system were black. The court examined the Board's 
written promotion procedures and criteria (summarized in the 
panel opinion, slip op. at 6713), concluded they were too 
subjective to avoid the possibility of bias affecting the 
selection process, and ordered the Board to adopt new objective 
criteria, to begin posting and bidding for vacancies and 
to make annual reports to the court. The evidence showed 
that these promotion practices and criteria had a severe 
adverse impact on blacks, who, for example, received only 
17 (23%) of the 73 promotions to principal from 1971 to 1976.

However, when it considered the legal effect of these 
practices and disparate results, the district court held they 
had arguably resulted in injury only to "some unspecified 
number of persons", which had been "demonstrated in this 
case only as a statistical incident." See panel opinion at 
6711. The court refused to certify Messrs. Foster and Buskey 
as representatives of a black teacher subclass on the theory 
that this Court's interlocutory decision absolutely prohibited



superimpos[ing] a class action upon a class action." It 
thus limited its relief for the teacher subclass to the pros­
pective changes in the promotion process. The district court 
dismissed the individual claims of Messrs. Foster and Buskey 
after conducting a series of ad hominum comparisons of their 
objective qualifications with those of the whites promoted 
in their stead.

Reviewing these rulings, the panel affirmed the finding 
of racially segregated principal assignments and vacated 
the dismissal of the individual claims, stating that, based 
on objective criteria, "we cannot say that we would affirm 
the court's findings that all white recipients of promotions 
were better qualified than were [Foster and Buskey]." Slip 
op. at 6713.

But the panel upheld the lower court's refusal to let 
Mr. Buskey assert class claims for other black teachers 
under Title VII. It disavowed the district court's restrict­
ive reading of this Court's interlocutory decision as strict­
ly prohibiting subclass certification. Instead, while 
acknowledging that no "representative of the Davis class 
participated in the lawsuit and protected the interests of 
the class," Slip op. at 6710 n.2, the panel affirmed denial 
of a Title VII class "because the overall Davis class was 
adequate to represent the interests of the subclass that Foster 
and Buskey sought to represent.” Slip op. at 6710 n.l.
The decision even rules that co-intervenor Foster cannot seek



back pay for the period of limitation tolled by Mr. Buskey's 
EEOC charge. Slip op. at 6712 n.4. Because the Singleton 
injunction is pending, held the panel, black teachers have 
a duty to intervene individually, Slip op. at 6709-10, 6713, 
or "the Davis class" may if they wish "bring forth additional 
evidence of discrimination before or after [the date of the 
district court's judgment] and seek additional relief". Slip 
op. at 6710 n .2.

The panel opinion instructs the district court on re­
mand to disregard the intervenors' claim that the School 
Board's written promotion criteria, while facially neutral, 
had a disparate impact on blacks and thus violated Title 
VII, according to Griggs v. Duke Power Co., 401 U.S. 424, 
430-32 (1971), absent proof of their business necessity and 
regardless of the Board's motives in using them. Slip op. 
at 6710-11. Rather, the district court was instructed to 
reexamine the claims of Foster and Buskey using exclusively 
the "disparate treatment" standards of McDonnell Douglas 
Corp, v. Green, 411 U.S. 792, 805 n. 18 (1973), which 
exonerate the employer who proves his actions had legitimate 
nonracial motives. Slip op. at 6711, citing Teamsters v. 
United States, 431 U.S. 324, 335 n. 15 (1977). Furthermore, 
according to the panel's remand instructions, the district 
court may consider as evidence that the intervenors were 
refused promotions for racially innocent reasons "certain 
subjective factors, such as an applicant's knowledge of his



subject, philosophy on education and on life in general, 
appearance, references, leadership ability, and aggressive­
ness." Slip op. at 6713.

ARGUMENT

1. The Davis Class Plaintiffs Cannot
Assert Title VII Claims, and Refusal 
to Certify the Teacher-Intervenor as 
a Subclass Representative Necessarily Destroys the Title VII Rights and 
Remedies of Similarly Situated Black Teachers.

This Court has laid down an inviolable rule that black 
teachers with Title VII claims must intervene in the pending 
school desegregation case rather than commence an independent 
civil action. Allen v. Grenada Municipal Separate School 
District, 575 F.2d 486, 487 (5th Cir. 1978); Davis v. Board 
of School Comm'rs of Mobile County, 517 F2d 1044, 1049 (5th 
Cir. 1975). The Title VII claimant is not even permitted 
to bring an independent action and join the desegregation 
case through consolidation. Davis, supra , 517 F.2d at 
1049. The teacher must intervene. Now the panel in the 
instant case has held that the intervenor cannot extend Title 
VII protection to other black teachers who have not perfected 
EEOC charges and sought intervention on their own. The panel, 
on a barren record, ex mero motu certified the Davis plain­
tiffs as adequate representatives of black teachers wrongfully

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denied promotion. Slip op. at 6710 n.l. But even if the 
district court had already made such a determination, it 
would have been erroneous as a matter of law.

The original Davis plaintiffs were twenty black school 
children and their parents. Their complaint was founded 
solely on 42 U.S.C. §1983 and the fourteenth amendment. They 
sought to represent a class comprised of "all other Negro 
children and their parents in Mobile County". Complaint, p.4. 
The district court has never entered a Rule 23 certification 
order, and Davis is a class action only because this Court's 
many decisions in the action have declared it to be. E.g., 
Davis, supra, 517 F.2d at 1046 (dubbed by Judge Bell as 
"Mobile XIII") and earlier cases cited therein at n.l. Conse­
quently, the panel erred in affirming denial of class certi­
fication of Buskey's Title VII claims in reliance on the 
outstanding Davis decree with its broad Singleton injunction 
against racial discrimination in employment. Even if the 
plaintiff school children can advance black teachers' employ­
ment claims, as the panel decision invites them to do (Slip 
op. at. 6710 n.2), they can rely only on constitutional causes 
of action and cannot assert Title VII claims.

The inability of the Davis plaintiffs to allege Title 
VII claims for the black teacher "subclass" prevents vindi­
cation of important substantive and remedial class rights 
exclusively available under Title VII, including the right 
to challenge racially motiveless employment practices with a



disparate impact on blacks, under Griggs v. Duke Power Co., 
and the right to obtain back pay, front pay and retrospective 
employment benefits governed by the Title VII limitations period, 
under Teamsters v. United States, supra, and Albemarle Paper 
Co. v. Moody, 422 U. S. 417 (1975).

The panel dicision does not specify what recovery time 
periods would apply to teacher claims brought by the Davis 
plaintiffs. Arguably, if such an approach were used, Birdie 
Mae Davis could seek back pay and other remedial relief for 
black teachers back to 1962, one year before the suit was 
filed. It seems unlikely, however, that the panel intended 
this result, since it restricted Mr. Foster's remedy to one 
year preceding his complaint in intervention.. Slip op. at 
6712 n.4. Perhaps the panel decision leaves open the possi­
bility that through some procedural gymnastics Mr. Buskey's 
Title VII jurisdiction vests in the Davis plaintiffs for the 
purpose of class relief, but this is not discussed in the 
opinion and also seems unlikely. Thus it is unclear what time 
periods the panel has in mind when it invites representatives 
of the Davis class "to bring forth additional evidence of 
discrimination before or after October 27, 1977, and seek 
additional relief, should they desire to do so." Slip op.
6710 n .2.

As for other teacher class members who would seek relief 
on their own behalfs, the panel decision plainly requires them 
to intervene individually and permits them to assert Title VII



rights and remedies only if they have filed their own EEOC 
charges. Slip op. at 6709-10, 6712 n.4. This holding 
directly conflicts with the established rule of the Supreme 
Court and this Court that where, as in the instant case, the 
court has found a pattern or practice of racially discrimin­
atory job assignments it must provide both prospective and 
retrospective relief for all unnamed class members whether or 
not they have filed EEOC charges. Franks v. Bowman Transpor­
tation Co., 424 U.S. 747, 771-75 (1976); v. Crown-Zeller-
bach Corp,, 398 F.2d 496 (5th Cir. 1968). Franks is almost
squarely on point. The racial patterns of truck driver assign­
ments there were of the same nature as the racially segregated 
administrative assignments and quotas in the instant case.
The district court in Franks denied retrospective seniority 
relief to unnamed class members (1) because they had not filed 
EEOC charges and (2) because there was no evidence of "a vacancy, 
qualification, and performance by every member." 424 U.S. at 
771-72. Basically identical reasons underlie the panel's 
decision in the instant case not to require the district court 
on remand to provide full relief for all similarly situated 
black teachers who were victims of the class discrimination.
Yet the Supreme Court held these reasons did not justify 
"the denial of relief to the entire class" and the failure to 
institute what this Court has called "Stagell" proceedings to 
determine which class members have in fact been victims of the proven



class discrimination. Franks, supra, 424 U.S. at 772, citing 
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-44 
(5th Cir.), cert, denied, 419 U.S. 1033 (1974). See also 
United States v. U. S, Steel Corp., 520 F.2d 1043, 1052-57 (5th 
Cir. 1975), cert, denied, 429 U.S. 871 (1976).

Consequently, because this Court has affirmed the trial 
court's finding of racially segregated administrative assign­
ments, it matters not that the injury to unnamed class members 
is shown "only as a statistical incident." Slip op. at 6711. 
Stage II proceedings must be used to identify the victims 
of the unlawful practices. In this critical respect -- proof 
of a present, classwide policy of racial discrimination -- 
the instant case is readily distinguishable from Allen v. 
Grenada Municipal Separate School District, supra, and 
Hereford v. Huntsville Bd. of Education, 574 F.2d 268 (5th 
Cir. 1978), relied on in the panel opinion.

2. Black Teachers May Challenge 
Employment Standards Under a 
Griggs Theory Even in School 
Systems Subject to a Singleton Injunction.

The panel decision holds that the Title VII intervenor 
may not attempt to prove that the School Board's facially 
neutral promotion practices are unlawful under the "disparate 
impact" standard of Griggs v. Duke Power Co. Slip op. at 6710-
11. Buskey's complaint alleged that the defendants "maintain



a racially discriminatroy policy or practice of refusing
to promote qualified Negro professional employees" and
that said "policy and practices ... has [sic] the purpose
and effect of minimizing the presence of blacks at the

Buskey Complaint p.4.administrative level ...."/ The district court found that the 
Board's written promotion policy "looked to the degree or 
degrees held by the applicants, the certification by the 
State, the length of experience, the job performance and 
letters of recommendation secured." R. 427. The undisputed 
evidence showed that together these criteria had produced a 
marked adverse impact on blacks. Nevertheless, the panel 
held that Buskey's allegations of discrimination are, "by defi­
nition, the result of overt consideration of race" and that 
he can only prevail by proving purposeful racial discrimination. 
Slip op. at 6711. In other words, the Title VII teacher- 
intervenor is restricted to using the McDonnell Douglas 
"disparate treatment" standard of proof. This ruling conflicts 
directly with existing precedent of the Supreme Court and 
this Court.

The same factual circumstances may support proof of 
Title VII violations under both the disparate impact and 
disparate treatment theories. Teamsters v. United States, 
supra, 97 S. Ct. at 1854 n.15. In the instant case there 
was both proof of deliberate racial job segregation and the 
use of selection procedures that resulted in disparate impact. 
Even where the selection procedures are informal or unscored--



like the performance evaluations and letters of recommendation 
used by the School Board -- the employer must either "eliminate 
the adverse impact, or modify the procedure to one which is a 
formal, scored or quantified measure ... and then validate the 
procedure ...." Uniform Guidelines on Employee Selection Proce­
dures §6B(1), 29 CFR 1607 (1978); accord, e.g., Robinson v. Union 
Carbide Corp., 538 F.2d 652, 655-57 (5th Cir. 1976); Watkins v. Scott 
Paper Co., 530 F.2d 1159, 1190-94 (5th Cir.), cert, denied, 429 U.
S. 861 (1976); Rowe v. General Motors Corp., 457 F .2d 348, 358-59 
(5th Cir. 1972).

3. Because the Teachers Have Proved
Intentional Classwide Discrimination,
They Should Not Be Denied Individual 
Relief on the Basis of Unvalidated, 
Nonstandardized, Purely Subjective 
Criteria.

The panel correctly notes that because purposeful racial 
discrimination against the class of black teachers was proven the 
Board had the burden of overcoming the presumption that Messrs. Fos­
ter and Buskey were among the victims. Slip op. at 6711. It was 
unable to affirm the dismissal of their individual claims based on r 
the available objective data actually relied on by the district 
court. Id. at 6713. But it remanded the case with instructions 
that the trial judge reconsider the Board's nonstandardized, sub­
jective reasons, citing Hereford v. Huntsville Board of Education, 
supra, 574 F.2d at 270. Appellants respectfully submit that these 
remand instructions conflict with Supreme Court and Fifth Circuit 
teachings regarding allowable defenses to individual claims after 
class discrimination has been established.

Hereford dealt with eight individual teacher claims raised



in the context of a trial court finding of no classwide discrimin­
ation. But where a pattern and practice of discrimination has 
been proven, the employer becomes a "proven wrongdoer", and the 
court must hypothetically recreate the conditions that would have 
existed had there been no unlawful discrimination. Teamsters, supra, 
97 S. Ct. at 1867 n.45, 1873. Evidence of the class member's 
inferior qualifications must be based on "nondiscriminatory stan­
dards actually applied" by the employer. Franks, supra, 424 U.S. 
at 773 n.32. In these circumstances, where it has already been 
established that subjective, racial concerns prevented the individ­
ual from being considered for selection in the first instance, 
federal courts should not exonerate the wrongdoer on the basis of 
asserted criteria that lack written guidelines, are vague and sub­
jective and provide no safeguards against racial bias. Cf., Watkins 
v. Scott Paper Co., supra, 530 F.2d at 1193, citing Rowe v.
General Motors, supra, 457 F. 2d at 358-59. Perhaps some subjective 
criteria can satisfy these constraints (e.g., validated, stand­
ardized performance evaluations). But when the panel decision 
instructs the trial judge to take into account the candidate's 
"philosophy on education and on life in general it is simply 
inviting the wrongdoer to construct new unverifiable excuses for 
the racial considerations that actually governed its decision in the 
first place.

In this respect the instant case is not significantly 
different from the situation in Singleton, where this Court 
ordered school boards to specify their objective criteria for



selecting which principals would be demoted in the wake of 
desegregation. 419 F.2d at 1218. The Court apparently felt that 
the protection of measurable standards was warranted in view of 
the intentional faculty segregation that existed up to that point. 
Similarly, the Mobile School Board should not be permitted to 
justify a denial of relief to the plaintiffs-intervenors here 
as though their claims were bare allegations of discrimination. 
Stricter scrutiny is required where racial segregation has already 
been proved.

CONCLUSION

This Court should reconsider and modify the panel decision 
by reversing the judgment below and by remanding with instructions 
that Foster andBuskey be certified as representatives of the 
class of black teachers if they satisfy Rule 23 requirements, 
that the School Board eliminate the parts of its promotion procedures 
that adversely impact on blacks and are not validated, and that full 
retroactive and prospective relief be granted Foster, Buskey and 
all other indentifiable victims of the Board's unlawful promotion 
practices on the basis of demonstrably nondiscriminatory measures 
of qualifications.

BLACKSHER, MENEFEE & STEIN, P.A. 
405 VAN ANTWERP BUILDING 
P. 0. BOX 1051 
MOBILE, ALABMA 36601

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JACK GREENBERG, ESQUIRE 
BILL LANN LEE, ESQUIRE 
LEGAL DEFENSE FUND 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, NEW YORK 10019
SOLOMON SEAY, ESQUIRE 
352 DEXTER AVENUE 
MONTGOMERY, ALABAMA 36104
Attorneys for Plaintiffs- 
Intervenors-Appellants

CERTIFICATE OF SERVICE

/ ///I do hereby certify that on this day of September,
1979, I served copies of the foregoing APPELLANTS' PETITION 
FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC upon Robert
C. Campbell, III, Esquire, 800 Downtowner Blvd., Mobile, Alabama 
36609, William A. Kimbrough, Esquire, U. S. Attorney, Post Office 
Drawer E, Mobile, Alabama 36601 and Howard Feinstein, Esquire, 
Civil Rights Division, U. S. Department of Justice, Washington,
D. C. 20530.

)

:WyV ô P?a4nt:L-:iFf s-
INTERVENORS-APPELLANTS

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