City of New York Board of Education v. Califano Brief Amicus Curiae
Public Court Documents
July 12, 1979
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Brief Collection, LDF Court Filings. Hazelwood School District v. United States Brief for Petitioners, 1977. 633424db-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6f519024-f017-40f4-bbc2-f8f61b1f6c1a/hazelwood-school-district-v-united-states-brief-for-petitioners. Accessed April 28, 2025.
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No. 76-255
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, In The
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S u p rem e C ourt o f th e U n ite d S tates
•; October Term, 1976 a .A. v '4 ,
it.-;.
HAZELWOOD SCHOOL DISTRICT; C. O. McDONALD, 4
Superintendent; ROBERT BISCHOF, ROBERT COLEMAN.
DOROTHY SMITH, CHARLES SWEENEY, DONALD MATTOX
■ and MILTON STRAUSS, Members of the Board of
/t Education of the Hazelwood School District, / ' ’
' ' Petitioners,
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: ; ■: ‘4^ LJNITED STATES OF AMERICA, / ■ : "V'.
v- •' f- /:.• tj* '■'..Respondent. ".-V'/j m 's -. -si - ' fe. /; iU'v f • • is
• V , ON WRIT OF CERTIORARI TO THE
1 UNITED STATES COURT OF APPEALS 1 •? s
FOR THE EIGHTH CIRCUIT 'VC.A‘ '/!
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WILLIAM H. ALLEN y
COLEMAN S! HICKS
JEFFREYS. BERLIN ; V v V 1
8S8 Sixteenth Street, N.W. '■
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' , O f Counsel: , i ..
■ I /.Washington, D.C. 20006 : V ;4 i f ■ v 'At:
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i ' DON O. RUSSELL ■ S V '- 'X '- K f
314 No. Broadway, Suite 1210 i
St. Louis, Missouri 63102COVINGTON & BURLING
888 Sixteenth Street, N.W.
Washington, D.C. 20006 ’ Attorneys for Petitioners j1 N».U..
■■ . . •' A ,\ .V • ; • i, v .'s’ :'
RUSSELL, SCHECHTER, WEISS & ENS 1
314 No. proadway, Suite 1210
St. Louis, Missouri63102,
V .February 1977
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TABLE OF CONTENTS
Page
OPINIONS BELOW............................................................................. 1
JURISDICTION................................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED.............................................................................................2
QUESTIONS PRESENTED.................................................................. 3
STATEMENT.......................................................................................... 4
SUMMARY OF ARGUMENT.......................... 12
ARGUMENT...................................................................................... 16
I. TITLE VII CANNOT CONSTITUTIONALLY
PROHIBIT EMPLOYMENT PRACTICES BY
AN AGENCY OF A STATE GOVERNMENT
IN THE ABSENCE: OF PROOF OF PURPOSE
FUL DISCRIMINATION. ANDTHERE WAS
NO SUCH PROOF H E R E .................................................. 18
A. The Commerce Clause Docs Not Authorize
Congress To Interfere with the Hiring
Practices of a State Agency..........................
B. Section 5 of the Fourteenth Amendment
Does Not Empower Congress To Prohibit
Employment Practices by a State Agency
in the Absence of Proof of Purposeful
Discrimination. And There Was No Such
Proof H e re .....................................................
1. Proof Of Purposeful Discrimination Is
Required To Establish A Violation Of
The Equal Protection Clause. And There
Was No Such Proof H e r e ......................
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II. SINCF. HAZELWOOD'S HIRING PRACTICES
WERE DIRECTLY SHOWN NOT TO EX
CLUDE A DISPROPORTIONATE NUMBER
OK APPLICANT'S. COMPARATIVE WORK
FORCE STATISTICS. FAULTY IN ANY EVENT.
CANNOT SUSTAIN A FINDING OF A VIO
LATION OF TITLE V II ............................................
A. Since the Record Showed the Rate at
Which Hazelwood Hired Black Applicants
and That Rate Was Higher Than the Rate
At Which It Hired Applicants Generally.
Reliance on Area Workforce Statistics
Was Unwarranted .....................................
Even If Hazelwood's Hiring Practices Are
Considered in Light of Area Workforce
Statistics. It Is Clear That Those Prac
tices Have Not Resulted in a Dispropor
tionate Exclusion of Blacks......................
Hazelwood Has. Since Title VII Became
Applicable To It. Hired Black Teachers
Substantially In Proportion To The Black
Share Of The Pool Of Applicants In The
Labor Market Who Are Reasonably Avail
able For Employment By Hazelwood . • -
a. T he pool ol applicants...................................
b. Hazelwood's hiring ........................................
2. Since Hazelwood Has Hired Black Teachers
Substantially In Proportion To The Black
Share Of The Pool Of Those Available For
Employment. The Fact That Hazelwood's Over
all Teacher Workforce Includes A Lower
Proportion Of Blacks Than Arc Employed As
Teachers In The Labor Market Is Not Evidence
That Hazelwood Discriminated In Hiring.........
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(iv)
P.ige
III. THE EVIDENCE AS TO 14 BLACK APPLICANTS
WHO WERE NOT INTERVIEWED AND TWO
OTHERS WHO WERE INTERVIEWED BUT
NOT HIRED DOES NOT SHOW OR TEND TO
SHOW THAT HAZELWOOD DISCRIMI
NATED IN HIRING. AND THE HANDLING
OF THE 16 CASES DEMONSTRATES THAT
HAZELWOOD'S HIRING PROCEDURES
WERE APPLIED FAIRLY TO BLACKS.......................... 61
A. Hazelwood's Two-Step Hiring Process.
Involving First Selection for Inter
views and Then Interviews. Is Not a
Racially Discriminatory Process on
Its F a c e ...........................................................................62
B. Hazelwood Did Not Discriminate in the
Selection of Applicants To Be Interviewed ................. 66
C. Hazelwood Did Not Discriminate in the
Selection of New Employees from among
Those Applicants Who Were Interviewed....................73
CONCLUSION....................................................... ............................ 78
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(V)I
TABLE OF AUTHORITIES
Coses:
Albemarle Paper Co. v. Moody.
422 U.S. 405 (1975).............
Page
41.45
Bivens v. -SY.r Unknown Federal Narcotics Agents.
403 U.S. 3880971).......................................................................... 42
Brown v. Board of Education.
347 U.S. 483 09.54)................................................................ 7. 16. 20
Castro v. Beecher.
459 F.2d 725 (1st Cir. 1972)............................................................. 45
Chance v. Board of Examiners.
330 F. Supp. 203 (S.D.N.Y. 1971),
ttffd. 458 F.2d 1167 (2d Cir. 1972)..................................... 28. 46, 76
Coopersmith v. Roudebush.
517 F.2d 818 (D.C. Cir. 1975)......................................................... 76
Davis v. Schnell.
81 F. Supp. 872 (S.D. Ala.), a I f d per curiam, pr
336 U.S. 933 0 949).......................................................................... 30 l'|.
mssm
s g m s i
Aw nip u.-a»rt>
Epperson v. Arkansas.
393 U.S. 97 0968) ........................................................................... 20
Espinoza v. Farali Mfg. Co..
414 U.S. 850973) .......................................................................... 41
Ex parte Virginia.
100 U.S. 339 0 8 7 9 ) ............................................................. 23. 33. 43
Fitzpatrick v. Bitzer.
96 S. Ct. 2666 0 9 7 6 ) ..................................................................17.42
Gaston Comity v. United Slates.
395 U.S. 285 0 969)........................................................................... 36
t (vi)
Pjiie
General Electric Co. v. Gilbert.
97 S. Ct. 401 (1976).......................................................................... 41
Goss v. Lopez.
419 U.S. 565(1975)....................... 20
Grijlin v. Breckenridge.
403 U.S. 88(1971) .......................................................................... 37
GriUin v. County School Board.
377 U.S. 218(1964).......................................................................... 30
Griggs v. Duke Power Co..
401 U.S. 424 (1971).......................... 41.45.58.67.75
Grosjean v. American Press Co..
297 U.S. 233 (1936)............................................................. 30
Johnson v. Railway Express Agency. Inc..
421 U.S. 454(1975)................. ' . ......................................................37
Jones v. Alfred H. Mover Co..
392 U.S. 409(1968).......................................................................... 36
« P B P s1
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d f e i
Katzenbach v. Morgan.
384 U.S. 641 (1966).......................................13, 14. 23. 32, 33. 34. 35.
36. 37. 38,39. 42.43
Keyes v. School District No. I.
413 U.S. 189(1973).......................................................................... 29
Lane v. Wilson.
307 U.S. 268(1939).......................................................................... 30
Lau v. Nichols.
414 U.S. 563 (1974).......................................................................... 37
Logan v. Genera! Fireproofing Co..
521 F.2d 881 (4th Cir. 1971)........................................................... 46
McCulloch v. Maryland.
4 Wheat. 316(1819)............................................................. . . . . . 23
r
(vu)
p.aye
McDonnell Douglas Corp. v. Green.
411 U.S. 792(1973)....................
Maryland v. Wirt:.
392 U.S. 183 0 9t>8)...................................
Mtill ken v. Bradley.
418 U.S. 717(1974)...................................
National League o f Cities v. Userc.
96 S. 0 . 2465(1976)............. ...................
Oregon ex ret. State Land Board v. Corvallis
Sand & Gravel Co.. 97 S. Ct. 583(1977)
Oregon v. Mitchell.
400 U.S. 1 12 (1970) ...................................
Beit man v. Mulkey.
387 U.S. 369(1967)........................
............... 41. 72. 75
12. 19, 20
. . 20. 42
12, 19, 20. 21.22.3'
37
14, 35, 36. 38
............. 30
Rizzo v. Goode.
423 U.S. 362(1976)
i
I
Runyan v. McCrary.
96 S. 0 . 2586(1976).................................................................. 37
Smith v. Board of Education oJ Morrilton School
District No. 32. 365 F.2d 770 (8th Or. 1966)................................. 76
Snowden v. Hughes.
321 U.S. 1 (1944)........................................................................ 26 40
South Carolina v. Katzenhach.
383 U.S. 301 (1966)........................................................... 34 36
Sullivan v. Little Hunting Bark. Inc..
396 U.S. 229(1969)........................................................................... 37
Tillman \. It heaton-Haven Recreation Ass n. Inc..
410 U.S. 431 (197.3)................................... ’ •r
"T*amm
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(viii)
Page
Tinker v. Dcs Moines School District.
393 U.S. 503(1969).......................................................................... 20
United Stines v. City o f Chicago.
385 F. Supp. 543 (N.D. 111. 1974).....................................................28
United Suites v. Guest.
383 U.S. 745(1966).......................................................................... 21
Village o f Arlington Heights v. Metropolitan
Housing Development Corp..
97 S. Ct. 555(1977).................................................. 13. 24. 26. 27. 29
Wade v. Mississippi Cooperative Extension Service.
372 F. Supp. 126 (N.D. Miss. 1974)...................... .......................... 28
Washington v. Davis.
426 U.S. 229(1976).......................... 12. 13. 24. 25. 26, 27. 28. 40. 41
Wright v. Council o f the City o f Emporia.
407 U.S. 451 (1972).......................................................................... 41
Ytck Wo v. Hopkins.
118 U.S. 356(1886)............................................................. 26.29.72
jgSnSp&l
Constitutional and Statutory Provisions:
United States Constitution
Article I. section 8. cl. 1 8 ............................................................... 23
Thirteenth Amendment, section 2 ...................................................36
Fourteenth Amendment, section 1 2
Fourteenth Amendment, section 5 ........... 2. 3. 13, 17, 18. 23, 24. 30.
31,32. 34,35. 36.37.43
Fifteenth Amendment, section I .....................................................36
Fifteenth Amendment, section 2 .....................................................36
California Constitution
Article I. section 2 6 ........................................................................ 30
18U.S.C. §241 ................................................................................... 31
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Page
18 U.S.C. § 243 ................................................................................... 33
28 U.S.C. § 1254(1) ...............................................................................2
Civil Rights Act of 1866
42 U.S.C. § 1982, section 1 .................................................. •..........37
Civil Rights Act of 1964, 78 Stat. 253. Title VII
42 U.S.C. § 2000c.i'l scq............................................................... passim
Section 703. 42 U.S.C. § 2000e-2............................................3, 5. 16
Section 705, 42 U.S.C. § 2000e-4.......... 32
Section 706, 42 U.S.C. § 2000c-5.....................................................32
Section 707, 42 U.S.C. § 2000e-6 .......................... 3. 5, 16, 32. 40. 41
Section 708, 42 U.S.C. § 2000e-7 .....................................................32
Section 709.42 U.S.C. § 2000e-8 .....................................................32
Section 710. 42 U.S.C. § 2000e-9 .....................................................32
Equal Employment Opportunity Act of 1972,
86 Stat. 103 ................................................................2. 16. 18. 19, 39
Voting Rights Act of 1965,
42 U.S.C. § 1973b(e) . . 33
■rttfudi
Voting Rights Act Amendments of 1970.
84 Stat. 3 1 3 ..........................................
Legislative Materials:
Hearings on S. 818. S. 2456, S. 2507 & Title IV of
S. 2029 Bclore the Subcommittee on Constitutional
Rights of the Senate Committee on the Judiciary,
91st Cong., 2d Sess. (1970)............................................................. 35
H R. Rep. No. 92-238. 92d Cong.. 1st Sess. (1971)........... 18. 23. 39.40
S. Rep. No. 92-415. 92d Cong.. 1st Sess. (1971)......... 18.19.23.39,40
116 Cong. Rec. (1970)........................................................................... 35
118 Cong. Rec. (1972).................................................. 18. 19. 23. 39. 40
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Miscellaneous:
Bun. Miranda and Title- II: A Morgana,ie Marriage.
I%9 S. Ct. Rev. 81
Cohen. Congressional Power to Interpret Due P roe ess
and Equal Protection. 27 Sian. L. Rev. 603 U97r>) .
35
35
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In The
S up rem e C ourt o f th e U n ited States
October Term, 1976
No. 76-255
11
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UNITED STATES OF AMERICA.
Respondent.
OPINIONS BELOW
The opinion of the United States District Court for the
Eastern District of Missouri, which is reported at 392 F.
Supp. 1276, appears at Appendix A of the Petition, pp. la-
26a. The opinion of the United States Court of Appeals for
the Eighth Circuit, which is reported at 534 F.2d 805, is
reprinted at Appendix B of the Petition, pp. lb-32b.
JURISDICTION
The judgment of the court of appeals, reversing a
judgment of the district court in petitioners’ favor, was en-
HAZELWOOD SCHOOL DISTRIC T; C. O. MeDONALD.
Superintendent; ROBERT BISCHOF. ROBERT COLEMAN,
DOROTHY SMITH. CHARLES SWEENEY. DONALD MATTOX
and MILTON STRAUSS. Members of the Board of
Education of the Hazelwood School District,
Petitioners.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR PETITIONERS
1
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tcrcd on April 20. 1976. and on May 25. 1976. the court of
appeals denied a timely petition for rchcarim; and
suggestions for rehearing cn banc. (Pet. Apps. C. D.) A
petition for a writ of certiorari was filed on August 20, 1976,
and was granted on January 10. 1977. Tibs Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourteenth Amendment to the United States Con
stitution provides in pertinent part:
SECTION 1-----(N]or shall any State . . . deny to
any person within its jurisdiction the equal protection
of the laws.
* * H:
SECTION 5. The Congress shall have power to en
force. by appropriate legislation, the provisions of this
article.”
Section 701 of the Civil Rights Act of 1964. 78 Slat. 258.
b> the EqUal Employment Opportunity Act of
1972. 86 Stat. 103, 42 U.S.C. § 2000e. provides in pertinent
part: r
fiiW'lll'iK»>lii
.aStfTft.a;
‘For the purposes of this title—
(a) The term ‘person’ includes one or more individuals,
governments, governmental agencies, political sub
divisions. labor unions, partnerships, associations, cor
porations. legal representatives, mutual companies,
joint-stock companies, trusts. unincorporated
organizations, trustees, trustees in bankruptcy, or
receivers.
(b) The term ‘employer’ means a person engaged in an
industry affecting commerce who has fifteen^or more
employees for each working day in each of twenty or
more calendar weeks in the current or preceding calen
dar year___ ”
•* - .7 &e’v - y . »«. • V'T ••
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Section 703(aXl) of the Civil Rights Act of 1964, 78 Stat.
255. 42 U.S.C. § 2000e-2, provides":
“(a) It shall be an unlawful employment practice for an
employer—
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color,
religion, sex, or national origin; . .
Section 707(a) of the Civil Rights Act of 1964, 78 Stat.
261,42 U.S.C. § 2000e-6(a), provides:
“(a) Whenever the Attorney General has reasonable cause
to believe that any person or group of persons is engaged in
a pattern or practice of resistance to the full enjoyment of
any of the rights secured by this title, and that the pattern
or practice is of such a nature and is intended to deny the
full exercise of the rights herein described, the Attorney
General may bring a civil action in the appropriate district
court of the United States by filing with it a complaint (1)
signed by him (or in his absence the Acting Attorney
General). (2) setting forth facts pertaining to such pattern
or practice, and (3) requesting such relief, including an ap
plication for a permanent or temporary injunction,
restraining order or other order against the person or per
sons responsible for such pattern or practice, as he deems
necessary to insure the full enjoyment of the rights herein
described.”
QUESTIONS PRESENTED
1. Whether Congress has authority under Section 5 of
the Fourteenth Amendment to prohibit by Title VII of the
Civil Rights Act of 1964 employment practices of an agency
of a state government in the absence of proof that the agency
purposefully discriminated against applicants on the basis
of race.
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2. Whether a court may disregard evidence that an em
ployer has treated actual job applicants in a non-
discriminatory manner and rely on undifferentiated work
force statistics to find an unrebutted prima facie case of
employment discrimination in violation of Title VII of the
Civil Rights Act of 1964.
STATEMENT
The Hazelwood School District lies in the northernmost
tip of St. Louis County. Missouri. It was organized
between 1949 and 1951 from more than a dozen school
districts, none of which provided instruction beyond the
eighth grade. At that time the area of 78 square miles that
was brought within the single Hazelwood District was farm
ing country. Hazelwood operated just eight schools at the
beginning, with 811 students. There were 27 faculty mem
bers. None of the students and none of the teachers was
black. (Pet. App. A 2a-3a.)'
Since 1951, the area served by the Hazelwood School
District has become a populous outlying suburb of St.
a& sL
Louis. School enrollment and faculty size have grown enor
mously. By 1970 Hazelwood operated a system of schools
through high school, and in 1973-74, the last year for which
there are data of record, more than 25,000 students were
enrolled, about 500 of them black, and there were about
1.200 teachers and other academic professionals, 22 of
them black. (Pet. App. A 3a; PI. Ex. 55.)
This case concerns the hiring of black professionals by
Hazelwood. A complaint was filed by the Attorney General
'Most facts arc uncontested at this point, and citations for factual
propositions arc principally to the opinions of the district court (Pet.
App. A_) and the court of appeals (Pet. App. B—). which are
reproduced in the appendices to the petition for certiorari. Other
citations are to the appendix in this Court (App. ----- ). the joint ap
pendix below (R__ ). the transcript of the trial (Tr. —) and exhibits (PI.
Ex. _)■
1
in the name of the United States asserting violations by
Hazelwood in such hiring of Title N il ot the Civil Rights
Act of 1964 and the equal protection clause ol the Four
teenth Amendment. (App. 2-6.) Section 03(a)(1) of the
Civil Rights Act of 1964 (p. 3, supra) makes it an unlawtul
employment practice for an “employer” — redefined m
1972 to include “governments, governmental agencies,
[and] political subdivisions" (p. 2. supra) to fail or
refuse to hire any individual because ot his race, color,
religion, sex or national origin. Section 70Ta) ot the Act (p.
3. supra) empowers the Attorney General to bring suits
against any person that he has “reasonable cause to believe
. . . is engaged in a pattern or practice ot resistance to the
full enjoyment of any of the rights secured by” Title VII
and when he has reasonable cause to believe that “the pat
tern or practice is of such a nature and is intended to deny
the full exercise of the rights” described in 1 itle VII.
Although Title VII was made applicable to state and
local governmental bodies only in 1972. the record made on
the Government’s complaint covers a longer period. It
showed:
In the early and middle 1960’s, there were more open
teaching jobs than applicants as enrollment in such school
districts as Hazelwood grew rapidly. 1 hen a dramatic turn
around in the nationwide market for teachers occurred as
school enrollment growth slowed, and in recent years thcie
have been more applicants for teachers jobs than jobs.
When the sellers’ market prevailed, Hazelwood engaged in
quite extensive recruiting of teachers. (Pet. App. A 3a-4a;
App. 54.)
More recently Hazelwood has been able to get along with
a minimum of recruiting. Without trying, it has several
qualified applicants for every open teaching position. In the
1971-72 school year there were 3,127 applicants for 234
open faculty positions. In 1972-73 there were 2,373 ap
plications for 282 teaching vacancies. (Pet. App. A 4a; I r.
385.)
5
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To make the choices that this abundance of job ap
plicants requires. Hazelwood depends primarily on the
principals of its elementary schools and the principals and
department heads of its secondary schools. A central oftice
receives, catalogues and indexes completed applications
and makes 'applicants available for interviews when job
openings occur. The interv iews are conducted by principals
in elementary schools and by department heads and
sometimes the principals in junior and senior high schools.
(Pet. App. A 4a-5a: App. 15-16. 20-21, 24-25, 28-31, 38-41,
63-65.67-68.)
Recommendations made or endorsed by the principals
on the basis of the interviews are routinely honored in
hiring decisions that are made formally by the superin
tendent of schools and ratified by the Board of Education.
(App. 10-11. 24-25, 39, 46-47.) Hazelwood’s policy is to hire
as teachers “the best possible certified persons within the
financial ability of the district without consideration as to
age. sex. race, national origin, political or religious beliefs.”
(App. 11.) All of the school officials whose testimony is of
record here emphasized that their sole aim is to obtain the
most competent teachers they can. (App. 18, 21, 25, 48. 60,
65.) Hazelwood has no other formal standards. Advanced
degrees do not count for much, if anything. (App. 22. 27,
51.) Nor does mere length of experience. {Id.) There are
standardized evaluation sheets for use by elementary and
secondary school interviewers, but the criteria are general.
(App. 16-17, 317-18.) There is no effort to quantify what
cannot be quantified or to pretend to apply objective
measurements of likely success in the classroom that ex
perience indicates do not exist. The principals, coor
dinators and superintendents who testified agreed on the
importance of certain factors: a prospective teacher’s at
titude toward his or her work and toward children; the ap
plicant’s knowledge of the subject matter to be taught,
especially in secondary schools, his or her quality of ex
pression, manner around children and personal ap-
pearancc. (App. 22, 26, 48-51, 68-69.) To make possible in
formed judgments as to what applicant will best serve the
educational needs of Hazelwood’s students, applicant in
terviews may last as long as an hour or an hour and a half.
(See generally Pet. App. A 4a-6a; App. 26.)
Before 1954 public schools throughout Missouri were
segregated by command of State law. (Pet. App. A 17a.)
Furthermore, only white teachers were allowed to teach in
schools with white students and only black teachers in
schools with black students. There was never any occasion
to enforce racial segregation in the schools of the
Hazelwood District (or, so far as appears, its predecessors)
because there were no black residents in the area.2
When the first black student actually enrolled in a
Hazelwood school does not appear from the record. In the
1967-68 school year there were 59 black students. (PI. Ex.
55.) The first black teacher was hired by Hazelwood for the
1969-70 school year. (Pet. App. A 3a; PI. Ex. 70.) Offers
were made to black applicants for teachers’ jobs before
that. (App. 52.)
In recent years black teachers have been hired in in
creasing numbers. Indeed, black applicants for teaching
jobs as a group apparently have fared better in the
Hazelwood hiring process than white applicants. The num
ber oi black professionals in the system has grown from six
in 1970-71 and seven in 1971-72 to 16 in 1972-73 to 22 in
7
Tate in 1954. alter this Court's decision in Brown v. Board of
Education. 347 U.S. 483 (1954). the superintendent of schools reported
to the Board of Education that a black family that might have school-
age children had moved into the District.The Board instructed that any
black resident children be admitted into the appropriate school but
suggested that the superintendent offer to pay tuition at a school in
some other district in view of the otherwise complete absence of blacks
irom the Hazelwood schools. (Bet. App. A 2a; App. 428.)
:LU
1973-74.1 The Government identified on the record 52 un
successful black applicants for teaching positions, prin
cipally concentrated in the 1972-73 and 1973-74 school
years.4 If there were a total of 52 unsuccesslul black ap
plicants for those two years, then since 15 other black ap
plicants were hired for those two years, the hire rate tor
black applicants was 22 percent. On the other hand, lor the
1971-72 and 1972-73 school years, Hazelwood, as indicated
above, had a total of 5,500 applicants for 516 open
positions. The overall hire rate in these two years, then, was
less than 10 percent, halt the rate tor black applicants.
Even if the Government failed to identity as many as halt
the unsuccessful black applicants on the record, the black
rate of teacher hire exceeded the apparent general rate ot
teacher hire in the period.
The record contains census figures indicating that 15
percent of all teachers in St. Louis City and County com
bined in the census year of 1970 were black (App. 408-11),
while the 22 black Hazelwood faculty members in the 1973-
74 school year were slightly less than 2 percent ot the total
Hazelwood faculty of about 1,200 (PI. Ex. 55)f The Gov-
!
1
■"See Pet. App. A 3a. The record source for most ot the figures stated
by the district court is PI. Ex. 55, a reproduction ot reports by
Hazelwood to federal authorities. Hazelwood was required to report on
the composition of its faculty only biannually. tor the years 1970-71 and
1972-73. for example, until 1973; the figure ot seven black (acuity
members for 1971-72 is not of record but is taken from Hazelwood s in
ternal records.
'At trial, the Government produced PI. Ex. 49. which listed 61 per
sons asserted to have been unsuccessful black applicants. Seven names
were deleted prior to the exhibit's introduction into evidence. Othei
evidence showed that of the remaining 54 persons, one was in fact hired
by Hazelwood and another was offered a job but declined it. For
reasons that arc not entirely clear, both the district court and the court
of appeals referred repeatedly to the number of unsuccessful applicants
as 55.
5The record contains several different figures for Hazelwood s fa
culty size. For the 1973-74 school year, the District's total full-time
(continued)
:
eminent relied heavily on the contrast between the 15 per
cent black teacher figure for the area that it took as the
relevant market for Hazelwood’s teacher recruitment and
Hazelwood’s own 2 percent black faculty figure.
The district court found the comparison irrelevant
because the 15 percent figure ‘‘is distorted by the inclusion
of data from the St. Louis City district, which contains a
much higher ratio of black teachers . . . .” (Pet. App. A
19a.) Indeed, the St. Louis school district, which employs
over one fourth of the teachers in the combined City-
County area, consciously and deliberately attempts to
maintain a faculty that is 50 percent black. (App. 94-95.)
This fixed 50 percent quota is not based on the availability
of black applicants for teaching vacancies or on the per
centage of actual applicants for teaching positions there
who are black. (Id.)
The district court noted the figures mentioned above in
dicating the growth in the number of black faculty mem
bers at Hazelwood and the relative success of blacks as job
applicants. (Pet. App. A 19a. 25a.) Having found no overall
pattern of discrimination, the district court saw nothing
discriminatory in Hazelwood's failure to hire the un
successful black applicants identified by the Government at
trial. (Id. at 25a.) It rendered judgment for the defendants,
the Hazelwood District, the superintendent of schools and
members of the Board of Education.
9
'(continued)
professional staff, including the superintendent's staff, principals,
teachers, counselors, librarians, and others, numbered 1.321. (PI. Ex.
55.) Ol that group, there were 1.188 classroom teachers, counselors and
librarians. In 1972-73. the District's professional staff—apparently ex
cluding personnel not assigned to a single school—numbered 1.230.
and there were 1 .107 classroom teachers. Ud.) The district court placed
the size of the''full-time professional faculty” in 1973-74 at 1,231 (Pet.
App. A 3a), which may have been a transposition of digits in the 1.321
figure slated above. The district court’s 1.231 figure was unquestioned
and was adopted by the court of appeals (Pet. App. B 4b).
r
r
r
*S. i‘\ ...
t.
10 ( .*
The court held that the disparity between 15 percent and
2 percent established a "/wima facie case of a pattern or
practice of employment discrimination in violation of Title
VII” (id. at 14b), which Hazelwood had not rebutted. The
court said that the statistical evidence should be considered
in the light of Hazelwood’s “hiring procedures” described
above (id.), which it elsewhere said “may be the crux of the
problem.” apparently because Hazelwood had not at
tempted to establish some kind of objective standards for
its hiring decisions (id. at 4b).
The court of appeals also said that the statistical showing
was buttressed by “evidence of actual discriminatory prac
tices in the hiring of teachers during the period prior to the
effective date of Title VII . . . .” (Id. at 14b.) These “prac
tices" were (1) a newspaper advertisement for teachers that
appeared in 1962 in a Jackson, Mississippi, newspaper with
a restrictive “white only” phrase that may or may not have
been in the School District's copy as submitted (App. 56-57, 70,
76)—the same advertisement appeared elsewhere without
the restrictive phrase (App. 73. 74). and the man who was
superintendent of schools at the time testified that he would
not have included the phrase in any advertising material
sent out of his office because it was contrary to the
The judgment was reversed on appeal by a divided panel
of the court of appeals. (Pet. App. B 1 b-32b.) The majority
of the court ignored the statistics indicating that
Hazelwood had been hiring black applicants at twice the
rate at which it was hiring whites and accepted as con
trolling the Government’s comparison of the 15 percent
census figure for the combined City and County with
Hazelwood’s 2 percent figure.
"The law is well-settled that the relevant consideration
in an employment discrimination case is the statistical
disparity between the proportion of blacks in the em
ployer’s workforce and the proportion of blacks in the
labor market.” (Pet. App. B 1 lb.)
I
District’s policy (App. 56-57); (2) the failure, in the years
when Hazelwood was actively recruiting, to pursue recruit
ment efforts at colleges with predominantly black student
bodies, beyond one visit to such a college, where, not sur
prisingly. there, was little interest in all-white Hazelwood
among black students who foresaw a sellers' market for
their services (Pet. App. A 3a-4a; B 9b n.6); and (3) the
possible use until the early 1960’s of application forms with
racial identifications on them, which would have had to be
used to satisfy Missouri law before 1954 (Pet. App. A 4a; R.
46-47. 55-56).
The court, finally, found that in 16 of the 52 individual
black applicants’ cases presented by the Government there
was a prima facie case of discrimination and that these in
dividual cases buttressed its finding of a pattern or practice
of discrimination. (Pet. App. B 14b, I7b-25b.)
The court of appeals reversed the judgment of the dis
trict court and remanded, ordering wide-ranging specific
injunctive relief. (/</. at 26b-28b).6 Although in open
ing his case in the district court, counsel for the Govern
ment had said that his evidence would show that what
he described as the lack of black professional employees
in Hazelwood “does not result from chance but is the re
sult of purpose” (Tr. 8). the court made no finding of
anv discriminatory purpose motivating Hazelwood s cm-
-The conn of appeals ordered that the injunctive relief against
Hazelwood include (!) a permanent injunction against further
discrimination. (2) promulgation of job descriptions and hiring criteria.
(3) inclusion in recruiting and application materials ol requirements tor
teaching positions and procedures by which selections are nu e.
equal notice of available openings to all applieants. b> visits to
predominantly black colleges and other institutions in any recruiting,
(ft) assurance of student-teaching opportunities tor black college
students. (7) periodic reports to the Justice Department tor three school
vears. (8) maintenance for three years of a record explaining selection of
anv white applicant over an available black. <9> offer to 16 previously
unsuccessful black applicants of first available teaching positions tor
which they arc qualified, and < 10) back pav.lPet. App. B 2bb-.8b.)
s
"N‘i
ployment practices, and it did not find a violation of the
Fourteenth Amendment.
The decisions of this Court in National League o f Cities
v. Userv, 96 S.Ct. 2465 (1976), and Washington v. Davis.
426 U.S. 229 (1976), were rendered after the judgment
below. The court below did not consider whether the mere
statistical showing of disparate treatment of blacks that it
perceived, buttressed as it thought the Government’s case
here had been by the evidence of Hazelwood's history, its
decentralized hiring procedures, and the cases of the 16
blacks not offered jobs, could properly be the premise of a
judgment against a political subdivision of a sovereign state
and the imposition of sanctions on it. The court did not
consider whether, instead, a finding of purposeful dis
crimination on evidence that would support such a find
ing. such as would be required in a case arising solely un
der the Fourteenth Amendment, was also necessary here if
sanctions were to be imposed on a local governmental body.
SUMMARY OF ARGUMENT
v
Title Vll of the Civil Rights Act of 1964 as applied to
state and local governmental bodies cannot be sustained as
an exercise of Congress’ commerce power, whatever may
have been the view when the amendment making it ap
plicable to state and local governments was enacted. In
National League o f Cities v. Usery. 96 S. Ct. 2465 (1976),
the Court held that the Fair Labor Standards Act could not
constitutionally be applied to prescribe the minimum pay
and maximum working hours of state and local govern
mental employees, in that case policemen and firemen. In
doing so. it overruled Maryland v. Wirtz. 392 U.S. 183
(1968). which had sustained the statute in its application to
employees of state schools and hospitals. If Congress can
not prescribe the wages and hours of public employees, in-
W-
*'r
eluding school employees, it cannot prescribe how public
school districts must go about hiring and promoting their
employees.
Congress also invoked Section 5 oi the Fourteenth Amend
ment in making Title Vll applicable to state and local
governments. In some circumstances, and in any case if so
read as to be no more than commensurate with the equal
protection clause of the Fourteenth Amendment. Title VII
so applied is undoubtedly appropriate legislation to enforce
the equal protection clause of the Fourteenth Amendment
and therefore authorized by Section 5. But a state or local
statute, regulation or other governmental action denies the
equal protection of the laws in violation of the Fourteenth
Amendment only if it is purposefully discriminatory. It is
not enough that it has effects that differ for different
groups, even different racial groups. Washington v. Davis.
426 U.S. 229 (1976); Village o f Arlington Heights v.
Metropolitan Housing Development Corp.. 97 S. Ct. 555
(1977).
Here Title VII was interpreted and applied to prohibit
hiring practices that the court below found to produce
racially disparate results, principally on the basis of a
statistical comparison of the proportion of black teachers
on the Hazelwood School District faculty and the propor
tion of black teachers in what the court took to be
Hazelwood’s labor market. The court did not Find that
Hazelwood had purposefully discriminated against black
applicants for teaching positions, and it could not have so
found on the record.
Neither this Court’s decision in Katzenbach v. Morgan.
384 U.S. 641 (1966), nor any other decision of the Court
holds that Section 5 gives Congress the authority to
proscribe state action that under this Court’s precedents
does not work a denial of the equal protection of the laws,
in the absence of considerations not present here such as a
necessity to remedy past constitutional violations. Compare
■ • - I * V-. r ■ A
:
X
‘4J
r
14
Oregon v. Mitchell. 400 U.S. 112 (1970). The Morgan
decision, sustaining a sharply-focused invalidation of a par
ticular action of a single state that was reasonably taken to
work a denial of equal protection, does not support the
present application of Title VII, which has been used by the
court below as a basis for imposing severe injunctive,
preferential hire and backpay sanctions on Hazelwood for
unintended racially disparate consequences of employment
practices that are racially neutral on their face. A public em
ployer whose employment practices produce such unin
tended consequences has been held by this Court not to
deny the equal protection of the laws, and in amending
Title VII Congress made no contrary judgment. Moreover,
there is no element here of remedy for past unconstitutional
discrimination, and the sanctions imposed by the court
would force the Hazelwood School District to make
racially-motivated hiring decisions that could themselves be
asserted to deny non-black teacher job applicants the equal
protection of the laws.
i
1
Even if it were the law that a showing of unintended
racially disparate consequences of hiring practices could
suffice to make out a violation of Title VII. there has been
no such showing here. The court below relied principally on
fatally flawed statistical proof in finding a prima facie
violation of Title VII. The proof was that, according to the
1970 census. 15 percent of all the teachers in St. Louis City
and County combined are black whereas in the most recent
year for which data are of record less than 2 percent of
Hazelwood's faculty was black. But comparisons of the
composition of an employer's workforce and the com
position of his labor market arc appropriate only in cir
cumstances that did not obtain here—notably cir
cumstances in which it is impossible to measure directly
15
I
i
,;j
i
how the employer has dealt with black job applicants. The
direct evidence is the best evidence when it is a\ailable. In
this case there is evidence ol Hazelwood s treatment ot
black job applicants. I he evidence is that apparently they
fared somewhat better as a group than white applicants.
There is no indication, moreover, that black prospects were
discouraged from applying or that there was any other im
pediment to a lull voluntary representation of blacks
among job applicants. Furthermore, the worktorce-labor
market comparison used by the court of appeals as the
basis of its decision is itself Hawed by (1) the tact that the St.
Louis labor market is dominated by the schools of the City
of St. Louis, which attempt to maintain a faculty that is 50
percent black, succeed or nearly succeed in doing so and
thereby distort the labor market figures and preempt the
available black teachers, and (2) the fact that the com
parison is with Hazelwood s entire workforce, largely the
result of hiring before Title VII applied to it, and not with
its new black "teacher hires, which only recently have been
made in significant numbers.
Ill
The decision below cannot be sustained independently ol
the flawed statistical proof. The court found fault with
Hazelwood’s decentralized hiring procedures because of an
asserted lack of objective standards tor hiring decisions,
and it found that in 16 cases (of 52 presented by the Govern
ment) unsuccessful black applicants for teaching jobs had
shown a prima facie case under Title VII because othcis no
better qualified had been hired for jobs for which they were
not hired. Analysis of these cases shows that there was no
discrimination and that Hazelwood s hiring procedutes,
fair on their face, were administered fairly.
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vV-V ... A % sV. '■ \ \ w - ■ ■
ir.......... .......... — ■ ' -M ' ' - . ty&y* ■ •’ '-V; ■- A • .vy'.ffVf-v
1 11111
16
ARGUMENT
The court of appeals did not find that Hazelwood had
purposely discriminated against black applicants for
teaching positions. It could not have so found on the
record. The court did not hold that Hazelwood s past or
current hiring procedures denied to black applicants the
equal protection of the laws, in violation of the Fourteenth
Amendment, to which as a public body Hazelwood has
always been subject. The Court rather found a ‘‘disparity
between the proportion of blacks in Hazelwood s workforce
and the proportion of blacks in the relevant labor market
(Pet. App. B 14b) and. principally on the basis ot this find
ing, concluded that a prima facie case was established un
der Title VII of the Civil Rights Act of 1964. to which
Hazelwood was subject beginning only with its teacher
hiring for the 1972-73 school year.7 It also found separately
that a prima facie case of employment discrimination was
made as to 16 black applicants for teaching jobs on a
showing that they were qualified for jobs that were not ot
tered to them and that the jobs went to white applicants no
better qualified.
The court said that the prima facie case had not been
rebutted, and it therefore concluded that Hazelwood had
violated Section 703(aXl) of the Act. (P. 3, supra.) It grant
ed broad injunctive, preferential hiring and backpay relict
upon the Government’s request under Section 707 (p. 3,
supra), on the theory that Hazelwood was responsible tor a
pattern or practice of denial of equal employment op
portunity rights.
The court thus applied t itle VII ot the Civil Rights ^\ct
to a political subdivision of a sovereign state exercising
“perhaps the most important function of state and local
governments,” Brown v. Board o f Education. 347 U.S. 483,
’Title VII first applied to Hazelwood on March 24, 1972. when the
Equal Employment Opportunity Act of 1972. amending the deiinitioti
of employers covered by Title VII of the Civil Rights Act of 1964 (p. 2.
supra), was approved. 86 St a t . 113.
I
\
17
493 (1954). on the basis of a finding of what must be taken
as unintended racially disparate results of hiring
procedures. If the court properly construed Title VII and
correctly applied the Act to Hazelwood, this case directly
presents the question whether Title VII is constitutional as
so construed and applied. The issue ultimately posed.is
whether Congress has authority under Section 5 of the
Fourteenth Amendment to prohibit by Title VII em
ployment practices of a state agency in the absence of proof
that the practices were racially motivated. That issue was
noted but expressly not decided in Fitzpatrick v. Bitzcr, 96
S. Ct. 2666. 2671 n.ll (1976). We submit, for the reasons
set forth in Part I below, that if this issue is now confronted,
the Court must find the application of Title VII to the
public school district in this case unconstitutional.
In Part II of the Argument we urge that, even taken on
its own terms, i.e., on the assumption that sanctions can be
imposed on a public body for the unintended, racially-
imbalanced effects of its employment practices, the
decision below is wrong because the statistics on which the
court relied did not indicate, much less prove, that black
applicants as a group were treated any differently from
white applicants as a group. When the main statistical prop
of the court’s decision is removed, the decision tails because
at most the other evidence was regarded by the court itself
as buttressing the statistical showing or as something in the
light of which the statistical showing should be considered.
We address ourselves in Part 111 to the inadequacy ot other
evidence, particularly evidence as to 16 asserted individual
cases of discrimination against black job applicants, as in
dependent grounds of decision.
i » . r /*'
18
I. TITLE VII CANNOT CONSTITUTIONALLY
PROHIBIT EMPLOYMENT PRACTICES BY AN
AGENCY OF A STATE GOVERNMENT IN THE
ABSENCE OF PROOF OF PURPOSEFUL
DISCRIMINATION. AND THERE WAS NO SUCH
PROOF HERE.
The court of appeals found a prima facie violation of
Title VII by Hazelwood on the basis of statistical evidence
that the percentage of black teachers on the Hazelwood
faculty was smaller than the percentage of black teachers
employed in all the school districts ot St. Louis City and St.
Louis County combined. For all practical purposes the
court of appeals then converted this prima facie case into
irrebuttable proof by finding that Hazelwood s hiring stan
dards are "subjective” and, for that reason alone, that no
explanation based on how those standards were applied
could rebut the inference of discrimination — indeed that
such an attempted explanation would corroborate rather
than rebut the charge. (Pet. App. B 14b.) The court of ap
peals thus held that no more than a showing of racial
disparity in workforce statistics is required to prove a
violation of Title VII by an employer that, like Hazelwood,
inevitably relies to some degree on "subjective” hiring stan
dards. There is no need on this view ot I itle VII to show any
purposeful discrimination.
There are two possible sources of congressional power to
enact such a provision of law — the Commerce Clause and
Section 5 of the Fourteenth Amendment — both of which
were invoked by Congress when, as part ot the Equal Em
ployment Opportunity Act of 1972, it extended Title VII to
state and local governments. See H.R. Rep. No. 92-238. 92d
Cong.. 1st. Sess. 19 (1971); S. Rep. No. 92-415. 92d Cong..
1st Sess. 11 (1971); 118 Cong. Rec. 1816. 1839-40 (1972)
(remarks of Senators Williams and Javits). The Commerce
Clause is not authority for Title VII in its application to
state and local governments, however Title VII is con
strued. and Section 5 ol the Fourteenth Amendment is not
, • !Gj>r.L . ‘ -
>45 • ‘.'TV T ■
1
\
authority for the Title VII that the court of appeals has ap
plied to a local governmental body in this case.
A.The Commerce Clause Does Not Authorize
Congress To Interfere with the Hiring Prac
tices of a State Agency.
Congress was of the view in considering the bills that
became the Equal Employment Opportunity Act of 1972,
86 Stat. 103. that the extension of the employment title of
the Civil Rights Act of 1964 to state and local governments
could be justified, at least in part, under the Commerce
Clause. That view rested on this Court’s opinion in
Maryland v. Wirt:. 392 U.S. 183 (1968). which had upheld
application of federal wage and hour rules to state hos
pitals and schools. See S. Rep. No. 92-415, 92d Cong., 1st
Sess. 11 (1971); 118 Cong. Rec. 1816, 1839 (1972) (remarks
of Senators Williams and Javits).
However correct that view may have been in 1971. it was
repudiated last term when the Court decided National
League o f Cities v. Usery. 96 S. Ct. 2465 (1976). There the
Court held that application of the Fair Labor Standards
Act to states, cities and counties would violate controlling
pi inciples of constitutional federalism by imposing sub
stantial additional financial costs on those sovereign en
tities. thereby “directly displacing] the States’ freedom to
structure integral operations in the areas of traditional
governmental functions.” Id. at 2474.
The Com t s decision was not based on any distinction
between the state and local agencies that were before it in
National League o f Cities— police and fire depart
ments—and the schools and hospitals that had been in
volved in Maryland v. Wirt:.
While there are obvious differences between the
schools and hospitals involved in Wirt:, and the fire
and police departments affected here, each provides
an integral portion of those governmental services
20
|
t
which the States and their political subdivisions have
traditionally afforded their citizens. We are therefore
persuaded that Wirt: must be overruled.” Id. at 2476
(footnote omitted).
In overruling rather than distinguishing Maryland v.
Wirtz. the Court confirmed the view of the importance
of public education as a governmental function that it has
frequently expressed. We have quoted above from Brown v.
Board o f Education. 347 U.S. 483. 493 (1954) (p. \b. supra).
In Millikan v. Bradley. 418 U.S. 717. 741-42 (1974). the
Court just recently stressed the need for effective local con
trol over this vital activity.
“No single tradition in public education is more deeply
rooted than local control over the operation of schools;
local autonomy has long been thought essential both to
the maintenance of community concern and support
for public schools and to quality of the educational
process. Sec Wright v. Council o f the City o f Emporia.
407 U.S.. at 469. Thus, in San Antonio School District
v. Rodriguez. 411 U.S. 1. 50 (1973), we observed that
local control over the educational process affords
citizens an opportunity to participate in decision
making. permits the structuring of school programs to
fit local needs, and encourages ‘experimentation, in
novation. and a healthy competition for educational
excellence.’ ”
Compare Goss v. Lopez. 419 U.S. 565, 576 (1975); Tinker
v. Des Moines School District. 393 U.S. 503, 507 (1969);
Epperson v. Arkansas. 393 U.S. 97, 104(1968).
If schools cannot properly be distinguished from police
and fire departments in measuring the scope of Congress’
Commerce Clause power, neither can the prescription of
hiring practices for state bodies be distinguished from the
prescription of minimum wages and maximum hours for
state employees.
1!
J
At the risk of overarguing what seems an indubitable
point, we submit that, while the application of Title VII to
state agencies does not directly impose on them increased
costs like those that the court discussed in National League
o f Cities, the Court did not base its decision there on the
mere fact that the Fair Labor Standards Act would increase
the labor expenses of state and local governments. Rather,
it based its decision on the interference with the govern
mental operations that would result from increased labor
costs. Application of Title VII would result in comparably
unjustified interference with Hazelwood s operations.
There is. to begin with, the obvious direct bur
den—psychological as well as physical of the requit ement
that Hazelwood create extensive records and make special
periodic reports to the federal government not required of
other school districts. The more important direct in
terference. however, is the requirement that Hazelwood of
fer teaching positions to 16 named black applicants 14 of
whom have never been interviewed by Hazelwood and the
other two of whom were interviewed and rejected by
Hazelwood as inferior to other candidates. (Pp. 66-73. in
fra.) A more fundamental displacement of Hazelwood's
‘‘freedom to structure [its] integral operations.” National
League of Cities v. Usery. supra at 2474, is difficult to
imagine.
Potentially even more of an interference is the enforced
adoption of artificially objective hiring standards. Whate\er
may be said about the desirability of objective standards in
the hiring of non-professionals, it makes no sense to judge an
applicant for a position as a teacher by any set of defined
objective standards. A principal interviewing candidates to
teach an elementary school class cannot just look to see who
has a certificate indicating minimal qualification to teach
elementary subjects, or even whose paper academic and ex
perience credentials look best. Rather, the principal must
determine who, among those with certificates, will woik
most successfully with his or her students, who will set the
best example for the students to follow. These judgments
necessarily require assessment by the principal of what the
court of appeals termed “subjective” matters: philosophy
of education, ability to develop and sustain personal
relationships with young people, knowledge of subject mat
ter and capacity to communicate that knowledge, ability to
inspire students, personality, poise, sell control, attitude,
appearance, and spirit of mutual respect. Judgments on
these matters may or may not correspond with an ob
jective" assessment of paper credentials.
22
In view of the inherently subjective nature of the process
of hiring teachers, the impact of the court of appeals’ view
of Title VII is devastating. It means that a prima facie case
of statistical discrimination cannot be rebutted and thus,
that if a school district faculty includes fewer members of a
group protected by Title VII than a defined area “stan
dard,” the district has two alternatives: (1) immediately to
engage in racially-, religiously- or sex-oriented hiring to bring
its average workforce statistics up to the defined area stan
dard. with the disregard for qualifications that must ac
company such a process, or (2) remain subject to suit under
Title VII on the same grounds relied upon by the court of
appeals in finding a violation by Hazelwood. This choice, of
course, is no choice at all, and a district in this situation
would, as a practical matter, have little alternative but to
hire the necessary number of black, Spanish-surnamed.
Catholic or male teachers regardless of its assessment of
their relative competence. Thus Congress in efteet will have
replaced the broadly gauged qualification standards ac
cording to which the school district would select teachers
with a new standard almost exclusively geared to the
requirements of Title VII. This is a grave interference with
the district’s freedom to structure its own operations. Un
der National League o f Cities Congress derives no power
from the Commerce Clause so to burden an instrumentality
of state sovereignty.
i'1
B. Section 5 of the Fourteenth Amendment
Does Not Empower Congress To Prohibit
Employment Practices by a State Agency
in the Absence of Proof of Purposeful
Discrimination, and There Was No Such
Proof Here.
Congress did of course intend Title VII to interfere with
the employment practices of state agencies, in laudable
pursuit of Congress’ responsibility to enforce under Section
5 the prohibition of discrimination contained in the equal
protection clause of the Fourteenth Amendment. See H.R.
Rep. No. 92-238. 92d Cong.. 1st Sess. 19 (1971); S. Rep. No.
92-415. 92d Cong.. 1st Sess. 11 (1971); 118 Cong. Rec. 1840
(1972) (remarks of Senator Javits). Section 5 empowers
Congress “to enforce, by appropriate legislation.” the sub
stantive provisions of that amendment, including the equal
' protection clause. In Katzenhach v. Morgan. 384 U.S. 641,
650 (1966), the Court compared the reach of congres
sional power under Section 5 to the scope of the necessar>
and proper clause. Art. I. § 8, cl. 18, and quoted Chief
Justice Marshall’s often repeated formulation of the latter
in McCulloch v. Maryland. 4 Wheat. 316, 421 (1819). The
Court in Morgan also repeated from Ex parte Virginia. 100
U.S. 339. 345-46 (1879). the following articulation of the
scope of Section 5;
“Whatever legislation is appropriate, that is. adapted
to carry out the objects the amendments have in view,
whatever tends to enforce submission to the
prohibitions they contain, and to secure to all persons
the enjoyment of perfect equality of civil rights and the
equal protection of the laws against State denial or in
vasion, if not prohibited, is brought within the domain
of congressional power.” 384 U.S. at 650.
However sweeping the language used to desetibe the
scope of congressional power under Section 5, the question
t • *t
i
)
24
whether a statute is “appropriate” to enforce a substantive
provision of the Fourteenth Amendment—in this case, the
prohibition of racial discrimination contained in the equal
protection clause—can be determined only by assessment
of what state action the statute by its own specific terms
prohibits or commands and what the general terms of the
equal protection clause allow to be commanded or
prohibited in their name. Because enforcing legislation un
der Section 5 directly impinges upon activities of the
sovereign states, this assessment must be made in the light
of the principles of federalism that are at the heart of our
constitutional system.
Title VII need be read to sweep no wider than the equal
protection clause itself (pp. 38-41. infra) and on that reading
would pose no substantial issue regarding the scope of Sec
tion 5. However, as interpreted by the court of appeals.
Title VII goes far beyond enforcement of the equal protec
tion clause: broadly sweeping away state sovereignty, it may
well require state agencies to violate the very principle of
nondiscrimination that is the genius of the equal protection
clause.
1. Proof Of Purposeful Discrimination Is
Required To Establish A Violation Of The
Equal Protection Clause. And There Was No
Such Proof Here.
a. Purposeful discrimination is essential to a
finding that a state or state subdivision has
denied to some within its jurisdiction the
equal protection of the laws.
The equal protection clause protects against intentional
discrimination: it does not prohibit conduct simply because
it has a disproportionate racial impact. Any doubts as to
that proposition of law were stilled by this Court’s decision
in Washington v. Davis, 426 U.S. 229 (1976). The
proposition has very recently been confirmed in Village o f
Arlington Heights v. Metropolitan Housing Development
25
Corp.. 97 S. Ct. 555(1977). It seemingly commands the as
sent of all members of the Court.
Like this case, Washington v. Davis involved allegations
of discriminatory hiring practices. Unsuccessful applicants
for positions in a training program for the District of
Columbia police department asked to have invalidated on
constitutional.grounds a requirement that they pass a stan
dard test of verbal, reading and comprehension skills. The
challenge was based solely on evidence showing that the test
disqualified as a disproportionate number of black appli
cants; plaintiffs did not charge that the use of the test
was racially motivated, or that the District had in the past
purposefully discriminated against them, or any other
blacks, in hiring for the police department.
Because the District is not a state, the constitutional
challenge was based on the due process clause of the Fifth
Amendment, which as the Court said “contains an equal
protection component prohibiting the United States from
invidiously discriminating between individuals or groups.”
426 U.S. at 239. Thus, cases arising under the equal protec
tion clause of the Fourteenth Amendment were pertinent.
Those cases, the Court said, “have not embraced the
proposition that a law or other official act. without regard
to whether it reflects a racially discriminatory purpose, is
unconstitutional so/clv because it has a racially dispropor
tionate impact.” Id. The Court traced the relevant cases,
candidly Finding in some of them “indications to the con
trary” of the proposition it was laying down. Id. at 242. The
Court recognized that some lower court cases had built
upon these indications by finding constitutional violations
in mere disparate impacts in areas including public em
ployment and housing. “[T]o to the extent that those cases
rested on or expressed the view that proof of discriminatory
racial purpose is unnecessary in making out an equal
protection violation,” the Court disapproved them. Id. at
245 & n. 12.
26
|
j
|
j
b. There are no findings of purposeful discri
mination here and no evidence on which such
findings could he made.
Here, as in Arlington Heights, there is ‘‘governing
legislation [that] appears neutral on its face.” or. as in
Snowden v. Hughes, a “statute fair on its face.” The
In Arlington Heights the court restated that “[p]roof of
racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” 97 S. Ct.
at 563. It went on to suggest how such a showing can be
made: it can start with impact — whether the official ac
tion in question “ ‘bears more heavily on one race than
another.’ ” but. except in such rare and classic instances as
the blatant enforcement solely against Chinese ot a
municipal ordinance that invited arbitrariness in Yick Wo
v. Hopkins. 118 U.S. 356 (1886), “ impact alone is not deter
minative . . . .” 97 S. Ct. at 564. Another factor that may be
significant is historical background, “particularly if it
reveals a series of official actions taken for invidious pur
poses;” and the “specific sequence of events leading up to
the challenged decision.” and the “legislative or ad
ministrative history may be highly relevant . . . .” Id. at 564-
65.
As the discussion in the Arlington Heights case indicates,
the question we are concerned with here arises most
frequently where state action is alleged to be discriminatory
“even when the governing legislation appears neutral on its
face." Id. at 564. A generation ago. the Court anticipated
Washington v. Davis and Arlington Heights in a non-racial
context, when, speaking through Chief Justice Stone, it said
that “|t]he unlawful administration by state officers of a
state statute fair on its face, resulting in its unequal ap
plication to those who are entitled to be treated alike, is not
a denial of equal protection unless there is shown to be
present in it an element of intentional or purposeful
discrimination.” Snowden v. Hughes. 321 U.S. 1,8(1944).
27
i
I;
I1
1
. tl’
District’s hiring policy, laid down bv its governing board, is
unequivocal: to hire “the best possible certified persons
within the financial ability of the district without consider
ation as to age, sex. race, national origin, political or religious
beliefs.” (P. 6, .supra.) The court of appeals did not find that
any school official or group of school officials had pur
posely or intentionally violated this policy by making race a
consideration in the hiring of teachers. The failure to make
such a finding was not a mere omission brought about by a
belief that Title VII required no more than the finding of
discriminatory effect that the court did make. The Govern
ment alleged a violation of the equal protection clause as
well as of Title VII. (App. 4.) As a prerequisite to bringing
the suit, the Attorney General had to have reasonable cause
to believe that Hazelwood was engaged in a pattern or prac
tice of resistance to full enjoyment of equal employment op
portunity rights and that the pattern or practice “is of such
a nature and is intended” to deny the full exercise of such
rights. (P. 3, supra.) Intention was alleged in the complaint
(App. 3-5), and government counsel promised to prove that
what he thought was the relative lack of black professionals
on the Hazelwood faculty was “the result of purpose.” (Tr.
8.) .
The court made no finding of purpose or intention on
these allegations because on the record none could be
made. We have said that, in holding that Hazelwood had
violated Title VII. the court relied principally on the
statistical disparity that it saw between the percentage of
teachers in St. Louis City and County who are black and the
percentage of Hazelwood teachers who are black. That is
the paradigm of the evidence that this Court has said in
Washington v. Davis and Arlington Heights is not suf
ficient to show a constitutional violation.8 The court said
"We urge that the undifferentiated workforce data relied on be
low are not even good evidence of racially disparate effect, let alone
(cor.tinued)
a;
ij
*
zJ?.-.. .I-
28
that it considered the statistical evidence “in light of
Hazelwood’s hiring procedures involving the use ol vague
and subjective criteria (Pet. App. B 14b.) But the
existence of “vague and subjective’’ hiring criteria by itsell
is no proof of purpose to discriminate; if such criteria are to
be relevant at all. it can only be on a showing that they were
manipulated to the disadvantage of black applicants, and
there was no such showing here. (Pp. 73-78. infra.) The court
also said that the statistical showing was buttressed by
"evidence of actual discriminatory practices in the hiring of
teachers during the period prior to the effective date ot
Title VII and the rejection of some 16 black ap
plicants . . . . ’’ The evidence regarding the 16 applicants
shows at most that white applicants were hired for some
positions for which the 16 black applicants were no worse
qualified; it is not evidence of a purpose to discriminate
against the blacks, especially when, during the same
period, no fewer than 15 black applicants for teaching
positions were hired in preference to dozens of white rivals.
(Pp. 61 -78. in fra.)
The evidence regarding Hazelwood’s hiring for years
prior to 1972-73 was clearly not such as would sustain or
even go any distance to support a finding of purposeful and
'(continued)
of purposeful racial discrimination. (Pp. 44-60. infra.) Among the lower
court cases disapproved by the Court in Washington v. Davis. 426 U.S.
229.245 A: n.12 <19”6). are cases in which the courts did not rely on the
inferior evidence of general workforce statistics but. rather, measured
the direct impact of challenged employment practices on minority in
dividuals who were actually affected. See especially Chance v. Board of
Examiners. 458 F.2d 1167 (2d Cir. 1972). Thus, not even the best
evidence of disparate racial impact, much less the once- or twice-
removed evidence relied on below, suffices to show a discriminatory
purpose. The decisions disapproved by the Court in Washinynm v.
Davis also included cases involving use of "subjective" standards much
like those applied by Hazelwood in its teacher hiring. See Wade v.
Mississippi Cooperative Extension Service. 372 F. Supp. 126. 142 (N.D.
Miss. 1974); United States v. City of Chicago. 385 F. Supp. 543. 560
(N.D: 111. 1974).
ig ea a Lxi ■ v-iy
ŝ--- <*••
M»wa «*«■ «fc Mwur’t ̂ ithwiiwiiififrifeiriit^
Pf^-’ V (V;Vt« 4<..v->* t r'- . . ; . r-
intentional discrimination. The evidence was that
Hazelwood did not hire a black teacher until 1969. for
reasons that arc not stated, but perhaps lack of applicants
01 rejection of offers; that in the 1960’s Hazelwood did not
engage in wnat today would be called affirmative action to
encourage black application by recruiting vigorously on
predominantly-black campuses; and that, in contravention
of the policy of the man who was then superintendent of
schools, an advertisement for teacher candidates that
specified white only once ran in Hazelwood’s name in
Jackson. Mississippi, in 1962. (Pp. 10-ll.sn/j/*«.)
This is not the material from which a purpose to dis
criminate in hiring for the 1972-73 and 1973-74 school
years could be discerned under the standards articulated in
thc Arlington Heights case and the cases cited by the Court
in Arlington Heights for those standards. 97 S. Ct. at 564-
65. This is plainly not one of those “rare” cases where stan
dards have been so discriminatory applied that the rule of
Ytck Wo v. Hopkins. 118 U.S. 356 (1886), comes into play,
and this focuses the search for purposefulness on the other
types of evidence referred to by the Court. There is not, as
we have just noted, any “historical background” of racially
motivated discrimination at Hazelwood. Unlike the school
district in Denver, where for more than a decade after 1960
the school authorities . . . carried out a systematic
program of segregation affecting a substantial portion of
the students, school, teachers and facilities within the
school system,” Keyes v. School District No. 1. 413 U.S.
189, 201 (1973), Hazelwood has neveroperated a segregated
school. The doors of Hazelwood’s schools are and have
been open to blacks — teachers as well as students.
Neither is there anything suspicious about the “specific
sequence of events leading up to” Hazelwood’s hiring for
the 1972-73 and 1973-74 school years that is under scrutiny
here. Hazelwood continued in those years to select its
teachers on the same careful basis that it had relied on
30
before in staffing its growing system. This case involves
nothing even remotely related to the "sophisticated” use of
voter registration requirements in Oklahoma as a “mode of
discrimination against blacks that was invalided in
Lane v. Wilson. 307 U.S. 268, 275 (1939); the "Virginia
plan . . . created to accomplish . . . the perpetuation of
racial segregation by closing public schools and operating
only segregated schools supported directly or indirectly by
state or county funds" that was struck down in Griffin v.
County School Board. 377 U.S. 218, 232 (1964); or the
literacy test used by Alabama as a "contrivance . . . to
thwart equality in the enjoyment of the right to vote . . . on
account of race or color" that was voided in Davis v.
Sc lute II. 81 F. Supp. 872, 879 (S.D. Ala.), afj'd per curiam.
336 U.S. 933 (1949).9 Finally, there is nothing in the
“legislative or administrative history” of the way Hazel
wood carried out its hiring practices that implicates ra
cial motivation in any way.
Hazelwood clearly was not shown, prima facie or other
wise. to have violated the equal protection clause. The
showing against it. indeed, is of the kind that this Court has
held is not a showing on which a constitutional violation
can be premised. The question, then, is whether Congress
can say that such a showing will satisfy a statute the only
constitutional authority for which is Section 5 of the Four
teenth Amendment.
’Hazelwood's employment practices arc equally remote from Art. 1. §
26. ot the California Constitution, which "encouragcjd| and significant
ly involve[dl the State in private racial discrimination" and was in-
\alidated in Reitman v. Mulkey, 387 U.S. 364. 376 (1967), and from the
Louisiana "tax" having the "plain purpose of penalizing the publishers
and curtailing the circulation of tt selected group of newspapers" that
was struck down in Grosjenn v. American Press Co., 297 U.S. 233. 251
(1936).
2. Congress May Not Prohibit State Conduct
Under Section 5 Of The Fourteenth Amend
ment In The Absence Of Proof Of Pur
poseful Discrimination.
Enforcing statutes under Section 5 include prohibitions
phrased in terms of constitutional rights, administrative
provisions, and specific prohibitions not phrased in terms
of constitutional rights. No substantial question of ap
propriateness under Section 5 arises with respect to
legislation in the first category. The Court made that point
in United Suites v. Guest. 383 U.S. 745(1966), where it con
strued a provision of one of the nineteenth century Civil
Rights Acts, now codified as 18 U.S.C. § 241, making it a
crime for two or more persons to conspire to injure, op
press. threaten or intimidate any citizen in the free exercise
or enjoyment of any right or privilege secured to him by the
Constitution. The Court held that this language included
rights secured by the equal protection clause and went on:
“ In this connection, we emphasize that Section 241 by
its clear language incorporates no more than the
Equal Protection Clause itself; the statute does not
purport to give substantive, as opposed to remedial,
implementation to any rights secured by that Clause.
Since we therefore deal here only with the bare terms
of the Equal Protection Clause itself, nothing said in
this opinion goes to the question of what kinds of other
and broader legislation Congress might con
stitutionally enact under § 5 of the Fourteenth Amend
ment to implement that Clause or any other provision
of the Amendment.” Id. at 754-55.
To the extent that Title VII provides a remedy for con
duct of a state or local government that would be reached
by the equal protection clause itself, there is no doubt that
it is "appropriate” legislation within the meaning of Sec
tion 5.
32
Neither is there any significant question of the ap
propriateness of legislation when the statute being con
sidered is administrative—that is, when the provisions in
volved are not themselves prohibitory but, rather, establish
remedial procedures to aid in the enforcement of sub
stantive rights that are declared elsewhere. Title VII con
tains many examples of such non-prohibitory ptenisions.
Like general prohibitions phrased in terms of deprivations
of constitutional rights, such administrative provisions do
not expand upon the substantive prohibitions of the Con
stitution. and their scope thus raises no constitutional
question.
a. This Court's decision in Kalznihuch v. Morgan
is not authority that the Section 5 enforcement
power may be used to proscribe state conduct
when no deprivation of constitutional rights is
involved.
When Congress acts under Section 5 to prohibit specific
conduct that is not described in terms of constitutional
rights, the question of appropriateness inevitably arises.
When, for example. Congress determines that some specilic
state conduct violates the equal protection clause. Congiess
’“Title Vll provisions of this sort include those that (1) create the
Equal Employment Opportunity Commission with power to investigate
charges, eliminate challenged practices through informal methods, and
bring (or intervene in a) suit if necessary. 42 U.S.C. §§ 2000e-4 through
2000e-9; (2) provide jurisdiction for United States district courts to hear
cases brought by the Equal Employment Opportunity Commission, the
Attorney General of the United States, or individuals, id. §§ 2000e-5.
2000e-6; (3) empower district courts to enjoin employers from violating
Title Vll and order any appropriate equitable relict, expressly in
cluding compulsory hiring, reinstatement, and back pay. id. v, 2000e
5(g); (4) authorize assignment of cases certified by the Attorney
General to be of general public importance to three-judge district
courts with direct appeal to the Supreme Court, id. § 2000e-6(b>: <o)
authorize court-appointed counsel, waiver of tees, costs, or security. i<
§ 2000c-5(f); and ((>) provide for award of attorneys’ tecs to prevailing
private plaintiffs, id. § 2000e-5lk).
has. by prohibiting that conduct itself, defined the terms on
which the balance of the relationship between the federal
government and the states is to be struck. Thus it is not the
neutral judiciary that makes this important judgment, but.
rather, one of the partisans in the inevitable tugging and
hauling that is our federal system.
The Court has upheld congressional determinations that
certain types of state action deny the equal protection of
laws. It did so. for example, in the case of a criminal
provision of the Civil Rights Act of 1875 prohibiting any
state officer from excluding persons from juries on grounds
of race. 18 U.S.C. § 243. Ex pane Virginia. 100 U.S. 339
(1879). The Court’s approval of legislation of this sort
reached its farthest limit in Katzenbach v. Morgan. 384
U.S. 641 (1966). There the Court upheld under Section 5
the prohibition contained in Section 4(e) of the Voting
Rights Act of 1965, 42 U.S.C. § 1973b(e), of enforcement of
New York's general English-language literacy requirement
against voters educated in Spanish-speaking schools in
Puerto Rico. It did so without analyzing whether, in
dependent of the statute, the Court would itself have
stricken the state's literacy requirement in that application
under the equal protection clause.
The Court in Morgan held, however:
‘‘[W]e perceive a basis upon which Congress might
predicate a judgment that the application of New
York’s English literacy requirement to deny the right
to vote to a person with a sixth grade education in
Puerto Rican schools in which the language of in
struction was other than English constituted an in
vidious discrimination in violation of the Equal Protec
tion Clause.” 384 U.S. at 656.
The Court noted that Congress’ prohibition of the denial
to Puerto Ricans educated in Spanish of the right to vote
was enacted "in the context of a general appraisal of
3 4
• ■ '
. - v >
% •*,» * > ‘ -0 •»■ivf
literacy requirements for voting, see South Carolina v. Au/-
zenbach. [383 U.S. 301 (1966)]. to which [Congress] brought
a specially informed legislative competence . . . . Kut-
cnbach v. Morgan, supra at 655-56. In South Carolina v.
Katzenbach. the Court had upheld the constitutionality of
selected other sections of the Voting Rights Act of 1965.
finding that “various tests and devices have been instituted
with the purpose of disenfranchising Negroes, have been
framed in such a way as to facilitate this aim. and have
been administered in a discriminatory fashion tor many
years.” 383 U.S. at 333-34.
The Court also held that Congress could have concluded
to void New York’s literacy statute under Section 5 in order
to remedy discrimination against Puerto Ricans in the
provision of public services. The Court so concluded
because voting is. in practice, a necessary gateway through
which a minority suffering from discrimination must pass
in order to achieve and preserve its right to equal treatment
in the provision of government services at the local level.
384 U.S. at 652-53. Once again, however, the trigger
justifying congressional action was the availability of a
reasonable determination that Puerto Ricans were suf
fering from discrimination of some variety—and this must
mean invidious. purposeful, unconstitutional dis
crimination—in New York.
Morgan accordingly is fairly read to mean only that
where an informed and proper basis exists for Congress to
determine that specific state conduct in fact violates the
equal protection clause, a congressional prohibition ol that
conduct may be sustained under Section 5 without this
Court’s having fully to satisfy itself that it would necessarily
reach the same decision unaided by the congressional
judgment.
In its farthest reach as an invitation to congressional ac
tion, Morgan has not had the generative effect that might
have been expected of it. There has been concern over its
*v
implications, but these have not been developed. Com
mentators particularly have wondered whether principled
adherence to footnote 10 of the opinion, 384 U.S. at 651
n-10, disallowing congressional dilution of Fourteenth
Amendment rights, is possible if Congress is given liberal
rem to enlarge such rights." The cases that will test that
concern and others have not been posed or decided.
Moron,, was a focus of the Congressional debate that
preceded the enactment of the 18-year-old vote statute that
was before the Court in Oregon v. Mitchell. 400 U.S. 112
(1970). Proponents of the statute, enacted as a part of the
Voting Rights Act Amendments of 1970. 84 Stat. 313.
asserted that it was constitutional in the light of Morgan.
Opponents denied that Morgan meant that Section 5
authorized Congress to go so far. Sec Hearings on S. 818. S
2456. S. 2507 & Title IV o f S. 2029 Before the Sub
committee on Constitutional Rights o f the Senate Com
mittee on the Judiciary. 91st Cong.. 2d Scss. (1970). See also
116 Cong. Rec. 6946-51. 6954-59, 6960-69(1970). When the
dispute reached the Court, the event was inconclusive. It
can be said, however, that five Justices of the Court did not
believe that Section 5 authorized Congress to prescribe an
18-year-old voting age for state elections.
Mr. Justice Stewart spoke for three of the five and in his
opinion explained Morgan, we believe, consistently with the
way we have tried to explain it above. He said that, even so
explained, its decisional grounds were farreaching" and
that it ‘‘gave congressional power under § 5 the furthest
possible legitimate reach." 400 U.S. at 296. But the three- '
Justice opinion denied to Congress the power claimed for it
in Otegon v. Mitchell "not only to . . . eradicatfe] situations
that amount to a violation ot the Equal Protection Clause."
Sn e.g.. Burt. Miranda and Title II: A Morganatic Marriage. 1969
Supreme Court Review 81. 1 15-34; Cohen. Congressional Tower to In
terpret Due Process and Equal Protection. 27 Stan. L. Rev. 603, 605-20
(1975).
which was what t h c const i tut ional law what
situations3fal^whhin^thc^nihh of the clause and what state
interests arc ‘compelling. I d -
The concern over c o n g r e s s * ° ^ | ^ ^ ^ d e d
peculiar to the Fo,l" “ '’^ sf ,’0" cxample. write the federal
guarantees. Could Cong - • ‘ for all 50 states on
Administrative Proeeduic aclnl‘inislrativc process has
the ground that its stu > 1 ,. , process of law
persuaded it that the - ^ ^ ^ ^ p c e d u r a l protections
today requires no less in > 1 Qthcr Uvo Civil War
than the federal Act a ° l p provisions comparable
amendments contain Amendmcnt. but
to Section 5 ot tn their authority from
congressional enactments g more narrowly
these provisions designed to entorce an(J Fif.
focused substantne provi nroduced the same close
teenth Amendments havc n0 P concern outside it. In
divisions of the Court or the not be
Oregon v. M i,M L a five-year
mustered for the propost to (es|s for dctc,mining
suspension of the use o appropriate legislation
eligibility to vote was sustainable . ‘ PI P uspcnsion
- enrorce under
specific guarantee of Section o (1966); Gaston
*™<* C“" ’' r 285 (1969). Mr. Justice
Coinin' v. U m l e d S i a m .395 U.h. “ 0I1
Stewart, the author of .h . prmc.P > ^ ^ . L of th.
slarcry by ohm.nat.ng . hand by forbiddm
'’Sec also Runyan v. McCrary, 96 S. Ct. 2586 (1976); Johnson v.
Railway Express Agency. Inc., 421 U.S. 454 (1975); Tillman v.
Wheaton-Haven Recreation Ass'n. Inc.. 410 U.S. 431 (1973); Griffin v.
Breckenridge. 403 U.S. 88(1971); Sullivan v. Little Hunting Park. Inc..
396 U.S. 229 (1969). Congress also “has power to fix the terms on which
its money allotments to States shall be disbursed." Lau v. Nichols. 414
U.S. 563. 569 (1974). but the spending power is not involved in this
case.
discrimination against blacks in the sale of property
through Section 1 of the Civil Rights Act of 1866. 42
U.S.C.§ 1982.,J
Conceivably, in the light of its heightened concern to
guard against unjustified incursions on state sovereignty.
sci’, e.f.;.. National League o f Cities v. Useiy. 96 S. Ct.
2465 (1976); Oregon ex rel. State Land Board v. Con'allis
Sand & Gravel Co.. 97 S. Ct. 583 (1977), the Court will wish
to consider whether Morgan has taken it farther than it
should properly go in allowing congressional intrusion into
state affairs. The Court, however, need not undertake any
reconsideration of Morgan in order to decide this case, for
Title Vll cannot pass muster even under Morgan's broad
definition of the scope of Section 5. In the first place. Title
VII’s general prohibition of discrimination in employment
practices is wholly unlike the narrow prohibition con
sidered in Morgan, where the statute had been precisely
drawn to deal with a specific situation in which Congress
believed that Puerto Ricans were being denied the equal
protection of the laws. Moreover, irrespective of what
Congress intended Title VII to do. there is no basis to
sustain its application here, where it is beyond doubt that
there was no purposeful denial of equal protection. Finally,
the disheartening irony of Title VII as interpreted and ap
plied by the court of appeals is that it may very well compel
more discrimination than it remedies.
38
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b. Congress intended the substantive prohibitions
of Title VII to be no broader than the scope of
the equal protection clause.
Morgan dealt with (lie legitimacy of a narrow provision
aimed by Congress at carefully defined state action, a par
ticular application of New York’s voter eligibility laws,
which had been closely examined for its tendency to bring
about invidious discrimination against Puerto Ricans,
United States citizens who had been educated under the
American flag in their own language. Congress concluded
that application of New York’s literacy statute had to be
restricted in order to protect Puerto Ricans from just such
discrimination. Title VII, on the other hand, as originally
enacted and as amended to apply to public agencies, was
the broadest of reform measures. It covered a multitude of
situations involving the hiring, firing and promotion of all
who might be adversely affected if their race, color,
religion, sex or national origin were considered. Congress
focused on nothing even so specific as, for example, the
possibility that subjective hiring criteria for teachers might
be used to discriminate against blacks. It did not find that
all employment practices that produce a disparate racial
impact, regardless of the presence or absence of racial
motivation, are in fact used as ‘‘instruments of invidious
What Congress meant to do when it came to apply Title
VII. enacted in 1964 as part of the Civil Rights Act of that
year, to state and local governments was to provide new
i remedies for substantive standards to which those govern
ments were already subject. Congress understood when it
extended Title VII to state agencies that the substantive
prohibitions of the Act were no broader than those of the
equal protection clause. That understanding is of the ut-
discrimination." Oregon v. Mitchell. 400 U.S. 112, 296
(1970) (opinion of Stewart. J.). or that they must be
prohibited in order to deal with some other denial of equal
protection.
; V • - ’iv :i ;.Y- ".VV-V v
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39
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most significance because by the time the Equal Em
ployment Opportunity Act of 1972 was enacted, k a i
zen bach v. Morgan had been decided and the way might
have been thought open to enlarge the substantive pro
hibitions. Indeed. Katzenbach v. Morgan was discussed
at length during debate on the bills that became the Equal
Employment Opportunity Act of 1972. see 118 Cong. Rec.
4485-92 (1972),. and was specifically cited as authority em
powering Congress to enact legislative prohibitions under
Section 5 broader than those of the equal protection clause
itself. Id. at 4485 (remarks of Senator Ervin). Nevertheless,
the proponents of the bills declined to embrace the broad
proposition for which Katzenbach v. Morgan had been
cited and did not even refer to the case as authority for the
proposed legislation.
The cognizant Senate committee said:
“The Constitution is imperative in its prohibition of
discrimination by State and local governments. The
Fourteenth Amendment guarantees equal treatment of
all citizens by States and their political subdivisions,
and the Supreme Court has reinforced this directive by
holding that State action which denies equal protec
tion of the laws to any person, even if only indirectly, is
in violation of the Fourteenth Amendment. It is clear
that the guarantee of equal protection must also ex
tend to such direct action as discriminatory em
ployment practices.’’ S. Rep. No. 92-415, 92d Cong..
1st Sess. 10 (1971).
The other relevant committee report is to the same effect,
H.R. Rep. No. 92-238. 92d Cong.. 1st Sess. 18-19 (1971),
and in Senate floor debate two principal advocates of ex
tending Title VII to state and local governments. Senators
Williams and Javits. stated their understanding that the
equal protection clause already protected employees of
state agencies against discrimination. 118 Cong. Rec. 1816,
1840(1972).
40
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To be sure. Washington v. Davis had not been decided
when the bills that became the 1972 Act were under con
sideration. However, the doctrine stated in Snowden v.
Hughes. 321 U.S. 1. 8 (1944), that there must be present
‘‘an element of intentional or purposeful discrimination” to
make out a denial of the equal protection of the laws was
familiar and was unimpaired by any decision of this Court.
For those legislators familiar with the law of the equal
protection clause, that doctrine provided the background
against which they legislated explicitly to provide more ef
fective remedies for equal protection violations affecting
public employees. Those legislators were aware of a 1969
report of the Civil Rights Commission, which at one point
suggested a broader view ol the scope of the equal protec
tion clause than any decision of this Court warranted. The
Commission said that “(ujneonstitutiona! practices include
not only those which are purposefully discriminatory, but
also those which have the effect ol creating or reinforcing
barriers to equal employment opportunity.” See 118 Cong.
Rec. 1817 (1972). But the responsible committees quoted
not that ambiguous and possibly misleading passage but
rather what the report had to say of conscious, purposef ul
discrimination:
Not only do State and local governments consciously
and overtly discriminate in hiring and promoting
minority group members, but they do not foster
positive programs to deal with discriminatory treat
ment on the job.” H.R. Rep. No. 92-238. 92d Cong.,
1st Sess. 18 (1971); S. Rep. No. 92-415. 92d Cong.. 1st
Sess. 10(1971).
The foregoing discussion suggests a narrowing con
struction of Title VII. at least in its application to state and
local governmental bodies, that would avoid the con
stitutional doubts that attend the court of appeals' con
struction.11 More significantly for the question of con-
in addition. £ 707(a). under which this suit was brought, indicates that
in a suit by the Attorney General against a public body (or anyone else)
(continued)
3
i
stitutionality that is presented on this writ, the discussion
establishes that this Court cannot justify a decision
sustaining the court of appeals’ Title VII as appropriate
judicial deference to an informed congressional judgment
that unintended racial (or other) disparities resulting from
the employment practices of state and local governments
should be subject to federal sanctions. Congress made no
such judgment. As Mr. Justice Stevens suggested in his con-
1'(continued)
intentional discrimination must be shown. Sueh a suit cannot be in
stituted unless the Attorney General first has reasonable cause to
believe that someone is engaging in a pattern or practice of resistance to
the full enjoyment of Title VII rights and reasonable cause to belieie
also that "the pattern or practice is of such nature and is intended to
deny the full exercise o f such rights. (Emphasis supplied.) Under §
707(a) the Attorney General may request injunctive and other relief tn a
district court “against the person or persons responsible for such pat
tern or practice,” i.e., a pattern or practice intended to deny the full
exercise of Title VII rights.
We would add that, although it has been assumed in opinions of this
Court that mere disparate treatment ot blacks (or others entitled to the
protection ofTitle VII) in employment practices suffices to make a case
under Title VII. see General Electric Co. v. Gilbert. 97 S. Ct. 401.408-
09 (1976); Washington v. Davis. 426 U.S. 229. 246-47 (1976), no
decision of this Court so holds. In Griggs v. Duke Power Co.. 401 U.S.
424 (1971), there was a long history of blatantly discriminatory prac
tices. and the effect of these was frozen by the challenged testing and
educational requirements; this was an application of very traditional
remedial law. like Wright v. Council of the City of Emporia. 407 U.S.
451 (1972). discussed in Washington v. Davis. 426 U.S. 229, 243 (19/6).
Albemarle Paper Co. v. Moody'422 U.S. 405 (1975), is comparable to
Griff’s. In McDonnell Douglas Corp. v. Green. 411 U.S. 792(1973). the
Court held that Green could prevail only it he could prove that Mc
Donnell Douglas' asserted reason for not rehiring him was only a
pretext—"in fact a coverup for a racially discriminatory decision. Id.
at 805. In Espinoza v. Farah Mfg. Co.. 414 U.S. 86 (1973), the Court
held that, even though a policy of not employing aliens had a dispropor
tionate impact on persons born abroad and thus might fairly be
thought to relate to national origin. Title VII was not violated because
it docs not prohibit discrimination against aliens. Thus, the undoubted
purposeful discrimination was not within the terms of the statute, and
the unintended discriminatory eflcct. though implicating a lorm ot job
discrimination affected by the statute, was not within its reach.
42
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curring opinion in Fitzpatrick v. Bitzer. 96 S. Ct. 2666,
2672 (1976), — lie was “not sure that the 1972 Amend
ments were ‘needed to secure the guarantees of the Four
teenth Amendment,’ ” — a case involving application of
Title VII as construed below to a state agency such as
Hazelwood is a world away from Morgan.
c. There was no denial of the equal protection of
the laws here under controlling decisions of
this Court and no room for a contrary
congressional judgment.
In Morgan the Court did not itself decide whether New
York's English literacy requirement violated the equal
protection clause, or whether Puerto Ricans there were suf
fering other unconstitutional denials of equal treatment in
the provision of local services. The Court suggested,
however, that it might well have answered these questions
in the affirmative. Congress, in Mr. Justice Stewart's later
words, was eradicating a situation that amounted to a
violation of the equal protection clause. Here, on the other
hand, Hazelwood has been found in violation of Title VII
without proof of any purposeful discrimination. The con
duct in this case is conduct that, on the basis of this Court’s
very fresh precedents, does not violate the equal protection
clause. In the light of those precedents, the Court cannot
find that Congress could reasonably have determined that
the conduct is violative of the equal protection clause.
It is highly relevant that, although the courts have broad
ranging remedial powers to enforce constitutional rights,
compare Bivens v. Six Unknown Federal Narcotics Agents.
403 U.S. 388 (1971), in attempting to eradicate a denial to
students of the equal protection of the laws, they may not
invoke that power to interfere with the operation of a school
district that has itself not purposefully engaged in un
constitutional conduct. Milliken v. Bradley. 418 U.S. 717
(1974). See also Rizzo v. Goode. 423 U.S. 362 (1976). There
is no occasion for remedy where there is no constitutional
violation.
43
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.♦.a *
d. Title VII as construed below encourages dis
crimination and therefore cannot be “ap
propriate legislation to enforce the equal pro
tection clause.
Title VII as applied below diverges sharply from the non
discrimination principle of the equal protection clause and
therefore cannot be, within the terms of Section 5, ap
propriate legislation to enforce the Fourteenth Amend
ment. In that application. Title VII requires Hazelwood to
engage in racially oriented hiring, not to remedy a past con
stitutional wrong but because its faculty has fewer blacks
than an outside measure suggests that it should have. How
can a statute that in practice requires school districts such
as Hazelwood to hire expressly on the basis of race, religion,
sex or national origin be consistent with the requirement, as
stated in Morgan. 384 U.S. at 650, that enforcing
legislation under Section 5 must tend to “secure to all par
sons . . . the enjoyment of equal protection of the laws"?
(quoting Ex parte Virginia. 100 U.S. 339. 345 (1879)) (em
phasis supplied). When a court requires such a district pur
posefully to hire blacks. Catholics. Mexican-Americans or
men — irrespective of how their qualifications compare
with those of competing applicants — what remains of the
requirement of the Constitution that the equal protection of
the laws be secured to all. including those who have
necessarily been excluded in order to accommodate the
district’s consciously discriminatory hiring?
The congressional prohibition of the New York English
literacy requirement that was before the Court in Morgan
was required to deal with a denial of equal protection of
laws but even then did not compel New York to make any
conscious distinctions among its citizens and favor some
over others. There the statute added Puerto Ricans to New
York’s voting rolls, without requiring any compensating
removal of members of some other class. Here, by contrast,
Hazelwood has not violated the equal protection clause, yet
it must allocate among competing applicants jobs that are
$
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44
scarce resources: Teaching positions cannot be expanded at
will, like lists of eligible voters; one applicant’s acceptance
is a refusal for scores of others.
The short of it is that Title VII cannot constitutionally be
interpreted and applied to a public body as it was by the
court of appeals here.
II. SINCF HAZELWOOD'S HIKING PRACTICES
WERF DIRECTLY SHOWN NOT TO EXCLUDE A
DISPROPORTIONATE NUMBER OF BLACK AP
PLICANTS. COMPARATIVE WORKFORCE
STA riSTICS. FAULTY IN ANY EVENT. CANNOT
SUSTAIN A FINDING OF A VIOLATION OF
TITLE VII.
In this part of our Argument we assume, contrary to
tthut we have contended above, that unintended racially
disparate consequences of hiring practices arc sufficient as
a matter ot statutory and constitutional law to make out a
violation by a public body of Title VII of the Civil Rights
Act. We undertake here to demonstrate that no such con
sequences were shown on the record and that, indeed, the
record shows that Hazelwood has been hiring propor
tionally more blacks than whites as teachers.
i
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The court of appeals ignored the evidence that black ap
plicants for faculty positions at Hazelwood were hired at a
rate well in excess of the rate for white applicants. It held
that, given what it perceived to be the nature of
Hazelwood's hiring process, a prima facie case of unlawful
discrimination was established by evidence that the propor
tion of Hazelwood’s teaching staff that was black was sub
stantially below the black proportion of the overall teacher
workforce employed in St. Louis City and St. Louis County
combined. (Pet. App. B 14b.) The court erred in relying on
his comparison when direct evidence of Hazelwood’s
inng practices was available, and in any event the com
parative workforce statistics relied on by the court were so
Hawed as to be useless.
f.>'y •.;
A. Since the Record Showed the Rate at Which
Hazelwood Hired Black Applicants and That
Rate was Higher Than the Rate at Which It
Hired Applicants Generally, Reliance on
Area Workforce Statistics Was Un
warranted.
The statutory issue raised by the Government’s suit is
whether Hazelwood used employment practices prohibited
by Title VII in its selection of new teachers from among
those persons who were available for employment. The ob
vious primary source of proof in respect of such a charge is
evidence as to the employer’s treatment of persons actually
identified as available to be hired. Proof of a racially
representative workforce composition would not overcome
a showing of racial discrimination in the treatment of an in
dividual applicant for employment. Likewise, failure to em
ploy the same proportion of minority employees as does
another employer or group of employers proves nothing if
the employer whose practices are challenged treats all ap
plicants fairly and without regard to race.
No court has ever construed, and Congress clearly never
intended. Title VII to impose on a public employer an
obligation to conduct an affirmative hiring program de
signed to replicate in the employer’s own workforce the
composition of the local labor market. “A public employer
may constitutionally take its applicants as it finds them.”
Castro v. Beecher. 459 F.2d 725, 733 (1st Cir. 1972). In ap
praising the lawfulness of an employer’s hiring practices
under Title VII, the question is whether those practices
select individuals “in a racial pattern significantly differ
ent from that of the pool o f applicants.” Cf. Albemarle
Paper Co. v. Moody. 422 U.S. 405, 425 (1975) (emphasis
supplied).
Statistical evidence may be used to measure the impact
of employment practices. Griggs v. Duke Power Co.. 401
U.S. 424, 431 &. n.7 (1971). But “statistics must not be
accepted uncritically, without careful consideration of all
mxam
:»« -tX v
relevant factors." Lof>an v. Genera/ I'ireproo/hif; Co.. 521
F.2d 881. 883 (4tli Cir. 1971). Particularly in dealing with
questions involving the employment of a select group such
as qualified professional educators, it is necessary that
statistical data be very carefully refined. See. e.f>.. Chance v.
Board o f Examiners. 330 F. Supp. 203. 214 (S.D.N.Y.
1971), af/'d. 458 F.2d 1167 (2d Cir. 1972). Where
professional hiring is involved and the "pool of applicants”
can be determined precisely, it is the experience of those
persons who make up the pool — not a hypothetical group
of potential applicants — that must be examined.
4 0
There arc. to be sure, some situations in which an em
ployer’s compliance with the demands of Title VII is
properly measured by reference to labor market statistics.
In a case of alleged discrimination in hiring, labor market
composition may be considered where the racial breakdown
of the employer's actual applicant flow is unknown; area
statistics can serve as a surrogate means of calculating the
number of minority group members that are likely to apply
or be available for employment. And it may be appropriate
to refer to area workforce statistics where an employer,
rather than passively receiving job applications, tries to in
duce or discourage applications from some sources; in such
a situation, it may be asserted that the employer has
manipulated the racial composition of its applicant flow
and thereby rendered inadequate an analysis restricted to
its treatment of actual applicants.
Where the racial composition of an employer’s applicant
flow is known, where the effect of the employer’s practices
in handling the flow can be directly measured, and where
there is no evidence that the employer has manipulated that
flow so as to reduce minority representation, that employer
cannot be found to have violated Title VII simply because
minority group members are not represented in its work
force to the extent that they are represented in other em
ployers’ workforces. This, we submit, is Hazelwood’s case.
■j
There is evidence as to the racial composition of
Hazelwood’s applicant flow. There is evidence that
Hazelwood's practices in regard to its job applicants are
neutral in character (i.c.. not racially based) and that those
practices do not operate to exclude black applicants from
employment in disproportionate numbers. There is no
evidence that Hazelwood discourages black applications in
the first instance or that any past discouragement — and
none was shown — affected the number of black applicants
since 1970 or. particularly, since Title VII was amended to
reach Hazelwood in 1972.
The relevant data are not complicated:
For the 1971-72 school year, there were 3.127 applicants
for 234 teaching positions at Hazelwood; for 1972-1973,
Hazelwood hired 282 of 2.373 applicants. (Pet. App. A 4a.)
Thus. Hazelwood hired only 7.5 percent of all applicants
for 1971-72 and 11.9 percent for 1972-73 — a two-year
average of 9.4 percent.14
As for the hiring rate for black applicants, there was a
net increase of 16 in the number of black teachers and
other professionals at Hazelwood from 1970 to the start of
the 1973-74 school year.15 And it is known that at least one
'■‘The record also shows that Hazelwood hired 123 new professional
statt members tor 1973-74 (PI. Ex. 55) but does not disclose how many
persons applied lor jobs for that year, although at the time of trial in
March 1974, there were 2300 applications on file (Tr. 38).
''The record as to these matters, whichconsists of Hazelwood's sub
missions to the Department of Health. Education and Welfare and the
Equal Employment Opportunity Commission, shows faculty figures for
19/0-71, 1972-73 and 1973-74. (PI. Ex. 55.) There were six black
professional employees — apparently all teachers — in 1970-71 and 22
black professional employees in 1973-74. Apparently until 19~3 faculty
figures were submitted to the Government agencies only every two
years. In the Statement (p. 8. supra) we have stated the number
of black teachers on the Hazelwood faculty in 1971-72 as shown in
(continued)
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48
other black applicant was offered a job but had already ac
cepted another position.16
The Government, after an exhaustive FBI search of
Hazelwood’s records, offered an exhibit that originally
identified 61 persons alleged to have been unsuccessful
black applicants for teaching jobs in the Hazelwood
District in 1971-72. 1972-73 and 1973-74 — mostly the latter
two years. As corrected before being introduced, the ex
hibit (PI. Ex. 49) identified 54 applicants, but one of these
was the applicant who was offered a job and another was
among those hired. As we will explain (see p. 67. infra), at
least four of the remaining 52 either applied for nonexistent
positions or did not possess even the minimum credentials
required for the jobs they sought; therefore, no more than
48 eligible but unsuccessful applicants were identified. Six
ty-five blacks have thus been identified as having applied
for professional faculty positions for school years 1971-72
through 1973-74: 48 who were unsuccessful. 16 who were
offered positions and accepted them, and one who declined
an offer from Haz.elwood. Accordingly, it appears that job
offers were made to as many as 26.2 percent of black ap
plicants.17 Even if another 30 blacks, not identified at trial,
applied for the 1971-72 school year — an implausibly high
number since some applicants for that year are already in
cluded in the list of 65 known applicants and the number of
black applicants has apparently grown each year — the
hiring rate for the three-year period would still be 17.9 per
cent.18
"(continued)
Hazelwood's records and have made substantially the same calcula
tions as appear in the text here but somewhat simplified. Here we con
fine ourselves to the record figures.
‘“The applicant who had accepted another offer was Reid. (Tr. 193-
94.) There may, of course, have been other such cases.
17l.e.. 17 divided by 65.
"/.e.. 17 divided by 95. Moreover, even if there were not 95 but twice
that many black applicants — an impossibly high number, given the
(continued)
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At least since 1971, then, it appears that blacks who have
applied for teaching positions at Hazelwood have been
hired at a rate substantially in excess of the rate at which
applicants generally have been hired. Because there is no
evidence that during this period Hazelwood either
discouraged blacks from applying or sought non-black ap
plicants in disproportionate numbers or that there were
lingering effects of any past failures to encourage black ap
plications. the relative rates of hire are the proper index to
Hazelwood’s treatment of its black applicants. A gross
comparison of Hazelwood’s proportion of black teachers
with the proportion in even the most relevant labor market
is neither warranted nor useful.
B. Even If Hazelwood’s Hiring Practices Are
Considered in Light of Area Workforce
Statistics, It Is Clear That Those Practices
Have Not Resulted in a Disproportionate Ex
clusion of Blacks.
The court of appeals’ fundamental error in disregarding
data reflecting Hazelwood’s actual treatment of black job
applicants in favor of workforce statistics is discussed in the
preceding section of this part of our Argument. Even if
workforce statistics were somehow relevant here, the court
of appeals’ selection and analysis of these data are flawed in
three major ways.
First, the court, overruling an express finding of the
district court, held that the appropriate labor market
against which Hazelwood’s hiring should be compared was
the combined teacher employment of the City of St. Louis
and St. Louis County. Second, the court of appeals simply
ignored the drastic effect on area workforce figures of the
hiring practices of the City of St. Louis, whose adheience to
’’(continued)
apparent thoroughness of the FBI search — the hiring rate would still
be 8.9%(/.<•.. 17 divided by 190).
50
a racial hiring quota both inflates the proportion of black
teachers of the City-County labor market and diverts to the
City school system black applicants who might otherwise be
available to small outlying districts such as Hazelwood.1'’
Finally, the court of appeals compared the inflated
minority workforce statistics of the City and County, not
with Hazelwood’s post-1972 hiring, but rather with
Hazelwood’s overall workforce composition, which was
largely the product of experience prior to the amendment of
Title VI1 in 1972.
In short, the court of appeals found a prima facie
showing of discrimination in violation of Title V11 on the
basis that Hazelwood failed to conduct its hiring so as to
replicate the racial composition of an arbitrarily selected
measuring group, which was itself largely affected by the
racially oriented, preemptive hiring practices of a single
dominant employer. The court’s analysis is obviously un
sound for all the foregoing reasons. If an analytically valid
comparison is made between Hazelwood and other em
ployers. it becomes apparent that Hazelwood’s hiring prac
tices have, at least since Title VII became applicable to it,
resulted in the hiring of blacks substantially in proportion
to black representation in the appropriate measuring
group.
‘’The City's hiring practices arc described at p. 52. infra.
I.
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1. Hazelwood Has. Since Title VII Became Ap
plicable To It. Hired Black Teachers Sub
stantially In Proportion To The Black Share
Of The Pool Of Applicants In The Labor
Market Who Are Reasonably Available For
Employment By Hazelwood.
JUThc source of the residence figures relied on by the court of appeals
is obscure. Such evidence as the record contains suggests that while a
distinct majority of the teachers hired by Hazelwood resided in the City-
County area when they applied for teaching positions, the school
district in fact attracts applicants from nearby southern Illinois and
other states. Of the 16 unsuccessful job applicants as to whom the court
of appeals found discrimination, four (Carson. Triplett, and the two
Wilsons) resided out of the designated area and two others (Novel and
Smith) were attending college in Minnesota when they applied.
The court of appeals compared the percentage of
Hazelwood’s workforce that is black with the black per
centage of the workforce in a labor market defined by the
court as the City of St. Louis and St. Louis County. It found
a disparity sufficient, in light of Hazelwood s hiring
procedures as the court understood them, to create a prima
facie case of unlawful discrimination. In selecting the ap
propriate labor market, the court of appeals simply rejected
the contrary holding of the district court (Pet. App. A 18a-
19a) and decided that, since a majority of the teachers hired
by Hazelwood for 1972-73 resided in that geographical
area, it should be presumed that all teachers residing in
that area are available for and interested in employment by
Hazelwood (Pet. App. B 10b n.7).20 The court erred in its
selection of the appropriate labor market. Moreover, its
treatment of the available statistical evidence pertaining to
the labor market that it did select was also erroneous. As
the following discussion will make clear, even using the
labor market definition adopted by the court of appeals,
the black proportion of the area workforce available for
employment by Hazelwood is possibly 4 percent and in no
event more than 6 percent. Moreover, since Title VII
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became applicable to Hazelwood, between 3 and 4 percent
of Hazelwood’s new teachers have been black. Correctly
analyzed, therefore, the statistical comparison shows not a
disparity in minority hiring but rather substantial
equivalency in treatment for presumed job applicants. It
follows that a prima facie showing of discrimination can
not. in Hazelwood’s case, be founded on the results ot
statistical analysis of workforce data.
a. The pool of applicants
The court of appeals, noting that of the 19.425 employed
teachers in St. Louis City and County in 1970.21 2,997 (15.4
percent) were black,22 concluded that the black share ol the
labor market — against which Hazelwood’s hiring would
be measured — was 15 percent. (Pet. App. B 10b.) I he
court failed to carry its analysis the necessary next step. A
comparative workforce analysis depends on the inference
that the labor market workforce composition is represen
tative of those individuals who are in competition lor the
positions at issue: where the composition ot the labor
market workforce is not representative ol presumed ap
plicants, the data must be adjusted belorc any compari
sons can be made.
The most significant adjustment required here is the ex
clusion of the impact of the racially-based teacher hiring
practices of the City of St. Louis on the area averages. The
St. Louis City school system maintains a teaching stat 1 that
is approximately 50 percent black. (App. 94-95.) Indeed, it
recruits aggressively in order to meet its goal (App. 92-93)
and selects teachers by race to HU vacancies as they occur
(App. 96). The City’s 50 percent quota is not determined by
reference to the composition of the labor market workforce
or the group of actual applicants for City school positions:
rather, it represents what the City perceives to be a
111970 Census Tables 86 & 122. lApp. 409-10.)
221970 Census Tables 93 & 127. (App. 409- II.)
53
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desirable accommodation to the composition of the City’s
population (40.8 percent black)23 and its public school
enrollment (65-70 percent black). (App. 94-95; Tr. 333,
352.) In 1970, reflecting the City school system’s hiring
practices, 41.7 percent of the teachers living in the City of
St. Louis were black. And of the 2,997 blacks employed as
teachers in the combined City and County area, 2,182 — a
72.8 percent share — lived in the City. The County’s 815
black teachers amounted to only 5.7 percent of the teachers
living in the County.
There are not enough potential black teachers in the St.
Louis City and County area to allow the City to maintain a
teaching staff that is 50 percent black and also permit the
outlying districts to increase the black representation on
their faculties appreciably. Although in 1970 blacks con
stituted 19 percent of the combined City and County
population,25 only 6.4 percent of the City-County
population with at least four years of college—clearly an
unobjectionable minimum qualification for public school
teachers — was black.26 Moreover, one of every two black
persons in the City-County area with four years or more of
college was already employed as a teacher in 1970.27
*'1970 Census Tables 81 & 91. (App. 408-09.)
"The 1970 Census shows that of the 19.425 employed teachers in the
City and County, 2,997 (15.4%) were black (see notes 21 & 22. . s u p r a ) . 'Hie
City figures were 2.182 of 5,238 (41.7%) (App. 409-10); the County
statistics 815 of 14.187 (5.7%) (App. 410-11). If only 15% (786 of the
5,238) teachers in the City had been black, the City-County average
would have been only 8.2% black (1601 of 19,425).
*'299.847 of 1.573,587 inhabitants were black. (Census Tables 81 &
t 119; App. 408. 410.)
"’Of 92.733 inhabitants with at least four years of college, only 5,946
were black. (Census Tables 120 & 125; App. 410-11.)
"O f 5.946 blacks with at least four years of college. 2,997 (50.4%)
were employed as teachers. (Census Tables 91. 93, 125 & 127; App.
409-11.) In contrast, only 16.428 of 86.787 non-blacks (18.9%) with
equivalent education were employed as teachers. (Census Tables 86, 93.
120. 1 22 & 127; App. 408-11.)
:
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The population of St. Louis County was only 4.8 percent
black in 1970.2H Blacks constituted only 1.9 percent of the
County’s college-educated population.29 and. as in the City
of St. Louis, half of those persons were already employed as
teachers.’0
The City's racially-based hiring practices — to which the
Government takes no exception and. indeed, which it ap
pears to endorse” — combine with these demographic facts
to render impossible of achievement the racial distribution
evidently contemplated by the court of appeals. Using 1970
figures, it 50 percent ot the teachers in the City of St. Louis
had been black, and 15 percent — instead of 5.7 percent —
of the County’s teachers had been black, there would have
been 4.747 black teachers out of a total of 19.425 teachers
in the area.'2 This would mean not only that nearly a quar
ter of all teachers would have been black (compared with
the 6.4 percent black proportion of those who have com
pleted tour years ot college), but also that four-fifths of all
blacks with at least four years of college would have been
employed as teachers.
It is apparent that, as long as the City of St. Louis adheres
to its quota hiring practice, the remaining school districts
2,45.579 of 951.35.1 inhabitants were black. (Census Tables 119 &
125: App. 410-11.)
1.598 ol 82.529 inhabitants with 4 years of college were black. (Cen
sus Tables 120 A- 125; App. 410-11.) ,
"’815 ot 1.598 (51%) were teachers. (Census Table 125; App. 411.)
*' 1 here is. to be sure, a bizarre touch to the Government's use of an
otticial of the City ot St. Louis school district — which deliberately
restricts its hiring ot non-blacks to a level well below their 85% average
area workforce composition, regardless of their representation among
actual applicants — as part of an effort to prove that Hazelwood
discriminates against blacks by hiring actual black applicants at twice
the rate at which it hires whites.
‘"The City s 50% quota would yield 2,b 19 black teachers out of 5.238;
the County's 15% representation would yield 2,914 out of 14,187.
54
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Finally, the nature of the labor market in the teaching
profession suggests that it is wrong to assume — as the
court of appeals necessarily did — that all presently em
ployed teachers in the City-County area are potential
Hazelwood employees. There is, first, no reason to assume a
total job mobility within the area; it is the City of St. Louis,
” 01 the City-County area's 73,308 inhabitants with at least four
years of college who were nut employed as teachers in 1970, only 2,949
were black — a representation of only 4%. In St. Louis County alone, of
the 68. 342 college-educated inhabitants not employed as teachers, only
783 — or 1.1 % — were black.
“ The court of appeals believed that Harris was one “of the two
predominantly black colleges in Missouri." (Pet. App. B 4b.)
in the City-County area must share an artificially restricted
portion of potentially qualified black teachers. Conversely,
the heavy draw by St. Louis on the pool of college-educated
blacks suggests that the job-seekers — that is, unemployed
teachers or those not content with their present situations
— are disproportionately likely not to be black.3-’
In addition to skewing the labor market statistics, the
practices of the City of St. Louis appear to have other ef
fects on the ability of other County school districts to hire
qualified black teachers. The evidence established that one
ot the major sources of new black teachers in the area is
Harris Teachers College, whose graduating class in 1973
was 60 percent black. (Tr. 166.}’4 But Harris is operated by
the school system of the City of St. Louis, which in con
sequence occupies an advantageous position in the recruit
ment of Harris graduates; according to the City's director
of personnel, the City hires ‘‘most” of the black Harris
graduates (Tr. 336), and the City’s school principals have
ample opportunity to scout and recruit the “better ones”
(id.). The City thus diverts blacks who might otherwise ap
ply for employment at County school districts such as
Hazelwood.
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not outlying Hazelwood." that is at the center of the
regional transportation network. And it is characteristic of
the teaching profession that job mobility is not common,
particularly among more experienced teachers and par
ticularly in times like the present, when the supply of
teachers exceeds the demand for them. Additionally, there
is evidence that at least in some specialty areas Hazel
wood’s standards for employment are higher than those
used by other districts in the region; the evidence shows, tor
example, that Hazelwood requires its business education
teachers to have vocational certificates in that field, while
some other districts do not." Moreover, Hazelwood does
not offer employment in all educational fields: special
education, for example, is conducted for all St. Louis Coun
ty districts at a central facility, and Hazelwood con
sequently employs no special education teachers. (Tr. 83-
85.)
b. Hazelwood’s hiring
For the 1972-73 and 1973-74 school years, Hazelwood
hired 405 new employees.17 while the District’s black
professional staff increased from seven to 22 (a net increase
of 15). (Pp. 7-8 &. n.3. supra.) If the number of blacks
hired was no greater than the net increase, then 3.7 percent
of Hazelwood’s new hires for the period were black.3" For
1973-74 alone, five of Hazelwood's 123 new hires were
black — a rate of 4.1 percent. (PI. Ex. 55.)
J5 Hazelwood shares a short common boundary with the City ot Si.
Louis but primarily senes an area ol St. Louis County that was
predominantly rural and undeveloped until the 1960 s and has only
recently been subjected to the pressures ot suburban growth.
"E./i.. Tr. 49. 64. Applicants Ealy (who lacked such a certificate) and
Catlin (who lacked a similarly required vocational home economics cer
tificate) both obtained positions in St. Louis City schools. (Tr. 52. 218.)
” 282 lor 1972-72 and 1 23 lor 1973-74. (Pet. App. A 4a; PI. Ex. 55.)
*'/.<•.. >5 divided by 405.
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57
Since blacks constitute only 6.4 percent of the City-
County population with at least four years of college, only 4
percent of the college-educated City-County population not
already employed as teachers, only 5.7 percent of the
, St. Louis County inhabitants employed as teachers, and
only 1.1 percent of the County’s college-educated
population not already employed as teachers, Hazelwood’s
i black hiring rate of not less than 3.7 percent is not only not
disproportionately low but is even substantially equivalent
to the composition of a group consisting of those persons
most reasonably assumed to be available for employment at
Hazelwood.
2. Since Hazelwood Has Hired Black Teachers
Substantially In Proportion To The Black
Share Of The Pool Of Those Available For
Employment. The Fact That Hazelwood’s
Overall Teacher Workforce Includes A
Lower Proportion Of Blacks Than Are Em
ployed As Teachers In The Labor Market Is
Not Evidence That Hazelwood Discrimi
nated In Hiring.
Since the statutory issue presented in this case is whether
Hazelwood discriminated against blacks in hiring after
Title VII became applicable to it in 1972, the court of ap
peals erred in measuring Hazelwood’s conduct by using
statistics that commingle the results of pre-1972 and later
hiring. The practical effect of comparing the number of
black teachers in 1973-74 (22) with total faculty at that time
(about 1200) is to base a Finding of discrimination in hiring
for the 1972-73 and 1973-74 school years on the fact that
Hazelwood employed only six blacks out of approximately
1,000 professional staff members in 1971, the year before
Title VII applied to Hazelwood. (PI. Ex. 55.)1v That is no
■‘■'The court of appeals considered it significant that Hazelwood em
ployed its first black teacher in 1969 (Pet. App. B 9b). but the court
(continued)
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58
proper basis for such a finding. The employment practices
Ha/.elwood used in hiring the teachers who were staff mem
bers in 1971 could be relevant as evidence of a violation of
Title VII in later years only if Ha/.clwood purposefully
discriminated against blacks in the earlier years — in con
travention of the equal protection clause — and if its
non-racially motivated employment practices beginning in
1972 served somehow to perpetuate the effects of the past
purposeful discrimination. Grief’s v. Duke Power Co.. 401
U.S. 424(1971). Neither standard is met here.
In the first place, there is neither direct nor indirect proof
here of any purposeful discrimination by Hazelwood. There
is no evidence what proportion of applicants for jobs at
Hazelwood were black before 1971-72. The evidence depicts a
small rural school district being overtaken by suburban
growth in the 1960’s and 1970’s. The evidence shows that
no blacks resided in the district for many years;
and it is not unreasonable to infer that black teachers did
not make application to Hazelwood during that period.40
Moreover, it must be recalled that, as the evidence shows,
teachers were in great demand during the 1960’s; and the
present-day pattern of job-seeking, well illustrated in the
record of this case, simply did not exist. In short, there is
every reason to believe that Hazelwood did not receive ap
plications from significant numbers of blacks prior to 1972.
and no evidence to the contrary. There is certainly no
evidence in the record that Hazelwood ever rejected an ac
tual black applicant for reasons of race.
'“(continued)
overlooked evidence that Hazelwood had earlier made job offers to
black applicants that had not been accepted (App. 52).
'“Hazelwood had no occasion to maintain a dual school system and
cannot fairly be made to bear consequences of other districts’ having
done so.
Surely the mere absence of black teachers from a school
district that had few or no black students; a failure to
recruit at predominantly black schools; a stray newspaper
advertisement in 1962 for whose discriminatory contents
the District may or may not be responsible; and the
possible use of some old application forms bearing racial
identifications do not add up to purposeful discrimination
such as would justify a finding that Hazelwood had denied
to black teacher applicants the equal protection of the laws
before 1972.
Equally importantly, even if a court could find invidious
discrimination by Hazelwood prior to 1972. which we
vigorously dispute, there is no issue here about per
petuation of any effects from those earlier years. This is a
case involving present hiring practices only — there is no
issue here about seniority rights, transfer opportunities or
promotions; the effects of discrimination in those areas
have a high potential for persistence. On the other hand, a
1962 newspaper advertisement or a failure to visit a
predominantly black college campus in 1964 has no logical
effect on (1) whether a black prospective teacher will apply
for a job in 1972. 1973 or 1974 or (2) how his application
will be handled if he does apply.
The analysis of the court of appeals should also be rejec
ted because to hold that a prima facie showing of
discrimination is created by Hazelwood’s failure to equal
the average area workforce composition is to make the
showing irrebuttable; there were simply not enough
qualified black applicants. Even if Hazelwood had hired
every willing and minimally qualified black applicant for a
teaching position prior to the trial in early 1974. the
District’s teaching staff would have included no more
thatt 70 blacks^'out of about 1.200 (see p. 8 n.5 supra)
22 blacks actually employed in 1973-74 plus the 54 applicants
identified at trial (PI. llx. 49). less one (Reid) who turned down a job of-
(continued)
5 9
— no greater than a 5.7 percent share. And the court of ap
peals found no fault in Hazelwood's rejection of all but 16
applicants; accordingly, even if Hazelwood had hired all 16
as to whom the court of appeals found discrimination, the
District’s professional faculty would have included only 38
blacks out of 1.200 — a share no larger than 3.1 percent.
f>0
The demonstrable absence of qualified black applicants
in the 1970's is complemented by the fact that the lower
court’s labor market workforce standard levies an im
possible burden on all the St. Louis County school districts.
It is obvious that if the City of St. Louis adheres to its goal
of 50 percent black representation on its teaching staff —
more than three times the “average” endorsed by the court
of appeals — then all or most of the County school districts
must employ fewer than the “average” number of blacks.
Not every employer can be “average” if the dominant single
employer is so far above the “average.” This proposition
requires no extended proof: if the City employs one fourth
of all teachers in the labor market, and ensures that 50 per
cent of its workforce is black, while the County districts
raise their average black employment to 15 percent, the
labor market workforce will be 23.8 percent black. And the
County districts will still be considered deficient in their
employment practices.
'"(continued)
ler. one (Carol Jackson) who was in fact employed by Hazelwood, three
(Boyd. Catlin and F.aly) who lacked the vocational certification required
for the positions they sought, and another (Cotton) who applied lor a
specialty Hazelwood did not offer. Sec p. (>7. infra.
III. THE EVIDENCE AS TO 14 BLACK APPLICANTS
WHO WERE NOT INTERVIEWED AND TWO
OTHERS WHO WERE INTERVIEWED BUT NOT
HIRED DOES NOT SHOW OR TEND TO SHOW
THAT HAZELWOOD DISCRIMINATED IN
HIRING, AND THE HANDLING OF THE 16
CASES DEMONSTRATES THAT HAZELWOOD'S
HIRING PROCEDURES WERE APPLIED
FAIRLY TO BLACKS.
The court below made a ritual bow to the need to be
cautious in the use of statistical evidence. (Pet. App. B 8b.)
Further, it indicated that the comparative workforce-labor
market statistical evidence on which it relied did not stand
alone. It said that it had been “considered in the light of
Hazelwood’s hiring procedures . . . .” (Id. at 14b.) It said
that the statistical proof was buttressed by the showing of
Hazelwood's history of employment of blacks. (Id.) And it
said that the statistical proof was buttressed also by the
showing that Hazelwood had rejected the 16 black ap
plicants whose cases it discussed. (Id.)
We have seen that the court was far from cautious in its
approach to statistics but instead adopted wholesale a
statistical approach that inevitably led it far astray. We
have seen that the history to which the court referred is of
little if any relevance to the statutory period here, which
began in 1972. As for the hiring procedures, however
“vague and subjective” the criteria for employment de
cisions that Hazelwood used, the procedures generally and
the criteria criticized by the court are neutral on their face
and import nothing as to discrimination save as there is
proof that they were improperly manipulated in order to
discriminate. We have seen that this was not the case as a
general matter — that statistically, black applicants for
teaching positions appear to have been favored, not
disfavored.
There remain the cases of the 16 unsuccessful black
applicants. We undertake here to show that these cases
62
do not at all buttress the statistical proof on which the court
primarily relied and that, in fact, the court’s finding that
prinia facie cases of discrimination were made as to the 16
applicants is explicable only on the assumption that a pat
tern or practice of discrimination had been proved and on
the assumption that these applicants — only 16 of 52 that
the Government presented — must have been the indi
vidual victims. No question has been presented by us on
certiorari specifically concerning the correctness of the
court of appeals’ judgment as to the 16 cases — this Court,
we recognize, does not sit to resolve disputes over the
weight of evidence — but we wish to rebut any suggestion
that the decision below is sustainable independently on the
basis of the 16 cases without regard to the fatally flawed
statistics. At the very least, if we are right about the errors
in the court’s decision otherwise, we are entitled to a
remand for reconsideration of the 16 cases untainted by a
prior error-infected finding of a pattern or practice of
discrimination. Further, the discussion hereunder should
emphasize the point that Hazelwood’s hiring procedures
not only were neutral on their face but also were not
manipulated to the disadvantage of black applicants.
A. Hazelwood’s Two-Step Hiring Process, In
volving First Selection for Interviews and
Then Interviews, Is Not a Racially Discri
minatory Process on Its Face.
Hazelwood's hiring process operates in the following
manner:
Applications are received at all times by the District’s
personnel director. When Hazelwood receives an appli
cation, the personnel director acknowledges receipt and
files the application, recording in a card file the applicant s
stated grade and subject preferences. Applications not act
ed on arc discarded alter one year, although applicants are
notified of their opportunity to reactivate their applications
and thus avert such a disposition. The personnel director
does no hiring or formal interviewing and speaks personally
only to those applicants who happen to visit his office.
(App. 27-29.)
When a teaching vacancy occurs or is projected by the
principal of one of Hazelwood’s 23 schools, the coordina
tor of elementary or secondary education, as appropriate,
requests the personnel director to provide a given number
of applicants for interview. The number of applicants
requested depends on such factors as the number of
simultaneous vacancies, the subject area involved and other
considerations the requesting administrator may consider
significant. (App. 15. 29-31.) There is a range of two or
three up to as many as 10 per opening. (App. 15, 31, 41.)
The personnel director does not evaluate or screen ap
plicants. except to verify that the minimum qualifying
credentials are asserted. He merely uses his card file to
identify the specified number of applicants whose ex
pressed preferences match the administrator’s request.
Some preference is given to applicants whose forms have
only recently been received or who have recently expressed
a current interest in employment.'*2 The personnel director
then contacts the selected applicants to arrange for their
appearance for interviews. (App. 29-30.) One consequence
of this procedure is that the personnel director docs not
necessarily refer for interviews all applicants with the
requisite specialties and preferences; he or his secretary
merely pulls a certain number of cards, and no separate ef
fort is made to ascertain that every applicant is referred for
an interview.
''App. 30. Hazelwood's personnel director testified that the number
of applications in recent years is greater than can be handled and, in
effect, that the applicants who have more recently shown a new or con
tinuing interest arc contacted first because they are more likely to be
available. (/</.)
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Depending on the subject, grade level, and number of
positions to be filled, applicants may appear in a group for
orientation talks, followed by individual interviews at one
or more schools. An applicant may be interviewed by a
principal, assistant principal, and department chairman or
may meet only with the principal whose school is in need of
a new teacher. Each interviewer completes a standardized
evaluation sheet on each applicant and makes a recom
mendation to the coordinator of elementary or secondary
education. On occasion, where several administrators have
interviewed one or more applicants, the interviewers meet
to exchange observations and arrive at a collegial ranking
prior to making a final recommendation to the school
district’s superintendent. (App. 21. 24-25. 39. 46-47. 64.) In
practice, the recommendation of the interviewing depart
ment chairman or principal is nearly always followed. (App.
46.)
While the assessments made by the various interviewers
are necessarily dependent to some degree on their own ex
perience and educational philosophy, there arc some
general principles applicable throughout the Hazelwood
schools. Advanced degrees and lengthy experience are not
necessarily favored; all witnesses agreed that a prospective
teacher's attitude toward his work and toward pupils is
much more important. (App. 22. 26, 27, 51, 68-69. 78-79.)
All interviewers look for trails such as quality of expression,
manner around children, personal appearance, and voice
quality — all reflective of the demands of classroom
teaching. (App. 22. 26. 50-51.) Some interviewers ask ap
plicants to resolve hypothetical classroom situations; some
discuss educational philosophy and instructional methods.
(App. 21.) Some administrators interview applicants alone;
others have associates sit in. Their methods vary — as do
their personal approaches toward teaching — but they
share one goal: the selection of the “best possible" or “best
nt
65
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qualified” teachers for the Hazelwood schools.43 The in
terviewing process is indeed "subjective,” to the extent that
it calls for an assessment of professional qualifications ir
reducible to forms susceptible of quantitative measure
ment.44
If an administrator does not recommend employing an
applicant for the specific position for which he was in
terviewed.,he may still suggest to Hazelwood’s personnel
director that the application be held for consideration in
case other vacancies open in the future. However, if an ap
plicant is neither offered a job nor "held” for possible
referral to another interview pursuant to an administrator’s
recommendation, he is not generally invited back to com
pete for another vacancy. (See, e.g.. App. 49.) Thus, the
court of appeals was incorrect in concluding, as it ap
parently did, that an applicant is in competition for all
positions that open after his application is received by
Hazelwood. To the contrary, Hazelwood typically affords
an applicant no more than one opportunity to impress a
principal with his qualifications.
Hazelwood’s hiring process, then, involves two discrete
steps: (1) selection for interview, and (2) interview,
evaluation, and recommendation. The first step involves a
“neutral” practice that includes no evaluation of an ap
plicant’s qualifications and also operates to permit only
"Hazelwood's principals and administrators uniformly testified they
sought “the most competent teachers” (App. 18); “the best possible ap
plicant" (App. 21); the "person that can do the job best” (App. 25);
“the best candidate for the position” (App. 48); “the most competent
person available" (App. 60); "the best qualified person for the
position” (App. 65).
44Thc task of interviewing applicants for professional employment
draws upon skills acquired by the interviewer during his own career.
Moreover. Hazelwood's administrators are not necessarily left to their
own instincts in conducting interviews; one principal testified that he
had taken college courses and workshop training, the latter conducted
by Hazelwood, to develop his skills in interviewing. (App. 66.)
ftb
sonic fraction of applicants to move on to the next step of
the process. The second step is not mechanical; the in
terviewing administrator is called upon to assess those
professional qualities that cannot be measured by reading
an application form prepared by the applicant. Since in
most instances several applicants are interviewed for a
single vacancy, the evaluation process also permits in
terviewers to make comparative judgments in order to
select the most qualified applicant.
Neither step in Hazelwood’s hiring process by the farth
est stretch constitutes a violation of Title VII. The first
step — the neutral practice of selection for interview —
does not by its nature cause a disproportionate exclusion of
black applicants. It is a wholly reasonable device for
reducing a flood of applicants to a smaller flow that can be
dealt with by administrators.-1* The second step likewise has
no inherent tendency to exclude blacks from employment
in disproportionate numbers; moreover, it is a legitimate
hiring tool used in so many situations with which the
Justices of this Court arc familiar, including the selection of
their own law clerks, that to catalogue them would be point
less. And neither the first step, as applied to 14 applicants
identified by the court of appeals, nor the second step, as
applied to two others, was shown on this record to have
operated in such a way as to make out a prima facie case of
discriminatory treatment.
B. Hazelwood Did Not Discriminate in the Se
lection of Applicants To Be Interviewed.
If the process by which Hazelwood selects applicants for
interviews is neutral on its face. i.c.. not racially based, as
we have just shown, then it can only be violative of Title VII
’Hazelwood s coordinator of secondary education testified that "we
just haven't got the time to interview all the people that apply.” (App.
41.)
67
if in application it excludes a disproportionate number
of blacks. See Griffs v. Duke Power Co.. 401 U.S. 424
(1971).46 There was no showing of such a disparate im
pact. In fact, the evidence is that black applicants were nor
excluded from interviews in disproportionate numbers.
Hazelwood :s personnel director supplies for interview the
requested number of applicants whose application forms
indicate interest and minimal qualification (/>., teacher
certification) in the appropriate field and grade level. He
does so by delving into his card file — favoring only the ap
plicants more recently heard from — until he has pulled the
requested number of names for referral. The results of the
personnel director's actions demonstrate that black ap
plicants are not excluded from job referrals in dispropor
tionate numbers. The Government presented evidence as to
52 black applicants to whom Hazelwood did not offer em
ployment. (PI. Ex. 49.) Of these, one (Cotton) applied for a
position in special education, which Hazelwood does not
provide (Tr. 83-85); three others (Boyd, Catlin. and Ealy)
lacked the vocational certificate required for the business
education positions they sought (Tr. 49. 55, 64; Pet. App.
A 7a. 8a. 15a), and one of those (Ealy) may in any event
have been applying for a position already filled (Tr. 321). Of
the remaining 48. at least seven were interviewed for
positions;47 another (Thompson) was invited to an in-
_ 46Disparate racial impact was only one of the conditions that the
"M s Court held would, in combination, constitute a violation of Title
VIb In Griggs the employment practices involved were not reasonably
related to job performance, and the burden of a disparate racial impact
fell on the shoulders of employees who were already victims of past
purposeful discrimination by the employer. 401 U.S. at 432. Here
neither of those two factors is present.
’’These were Carson (PI. Ex. 49). Ellis (Tr. 169), Fletcher (Tr. 216).
Kincaid (Tr. 201). Lockett (Tr. 183). Gerald Trotter (PI. Ex. 49) and
Jerome Trotter (Tr. 197-98). This list, based on all the record evidence,
varies to some extent from the information set forth in PI. Ex. 49. which
was to that degree incorrect.
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tervicw, but was “unable to attend" (PI. Ex. 49); and one
other (Florez) was invited to attend an interview but had
already accepted another position (Tr. 129). In addition, at
least 16 other black applicants, including one listed by the
Government as an unsuccessful, uninterviewed applicant/8
were hired for faculty positions, and still another, also
listed as an unsuccessful applicant, was in fact offered a job
but did not accept.49 Since an interview was a prerequisite
to a job offer, it follows that these 17 were interviewed.
Thus, of 65 minimally eligible black applicants. 26 were
referred for interviews — a rate of 40 percent.
The record does not show what proportion of applicants
generally were interviewed, but there is no reason to think it
was significantly different from the 40 percent rate that ob
tained for blacks. In any event, the burden of establishing
any such difference lay with the Government, which was at
tempting to prove a violation of Title VII, and absence of
conclusive evidence on this point means only that the
Government failed to carry its burden in this regard.
The court of appeals found prima facie showings of
discrimination with respect to 14 applicants who were
not interviewed. These applicants were excluded by oper
ation of a process not shown itself to be violative of Title
VII. The demonstrated legitimacy of this process, without
regard to the specific facts of each case, should control. But
if those cases are examined, they do not suggest any im
propriety in the practice.
The Government has singled out five of the 16 cases
discussed by the court of appeals by designating the record
evidence pertaining to them for reproduction in the ap
pendix. Four of these are cases of applicants who were not
interviewed. They serve as well as any others to illustrate
our point.
"Carol A. Jackson (Tr. 32).
"Reid (Tr. 186-194).
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Cynthia Edmond, whose race would have had to be in
ferred from her attendance at a college in Georgia that a
standard source lists as having a student body predominant
ly made up of black students, applied for a position as a
secondary school social studies teacher. She applied in July
1972 and, according to her testimony, “understood there
were no vacancies available” at that time (App. 86), ap
parently because Hazelwood’s receptionist told her “there
were approximately five hundred teachers on the waiting
list" (App. 85). At Hazelwood’s invitation, she renewed her
application for 1973-74. (App. 86.) The court of appeals
believed that five whites were hired as social studies
teachers for 1972-73 “after Edmond was told no vacancies
existed." (Pet. App. B 19b.) But the evidence shows that
only three persons known to have been interviewed after
Edmond applied were hired for that school year; moreover,
Edmond did not testify that any Hazelwood officer or em
ployee had told her there were no vacancies in her field.
And the court failed to note that, of the nine50 persons hired
for social studies positions in the 1973-74 school year, one
was black. (PI. Ex. 49.)51
Robert Howell also applied for a secondary social studies
position but only for 1973-74. (App. 338-39.) He was not in
terviewed. although he had hoped that his experience as a
student teacher at Hazelwood in 1971 would work in his
favor. Ten other persons were, as the court of appeals ob
served, hired for secondary social studies positions after
Howell applied; however, as in Edmond’s case, the court
erred in referring to them all as whites (Pet. App. B 17b),
since one was black.
soOr 10, see the discussion of the applicant Howell, infra.
“ The court of appeals also erred in stating that Edmond’s college
grade point average in her major was a superior 3.9 on a 4.0 scale (Pet.
App. B 19b); in fact, she testified that her average was only 3.3 in her
major and 2.9 overall (App. 85). The quality of her academic record
was not. in any event, revealed on her application form (App. 330-337),
which is all that those who selected applicants for interviews had before
them.
Willie Palmer applied for a position as a reading
specialist at the elementary level or in junior or senior high
school, an administrator or science teacher at the elemen
tary level or a media specialist or “curriculum lab” in
junior or senior high school for 1972-73. He ambiguously
listed “teacher in elementary grades” on his application
form along with “public relations” as among “other
positions” desired, i.c., other than “elementary level” or
“junior or senior high school.” (App. 346-47.) As the court
of appeals acknowledged, although Palmer was a man of
mature years with a substantial body of experience in both
teaching and industry by the time he applied to Hazelwood,
he lacked the master’s degree required for a science
teaching position. (Pet. App. B 24b; App. 91.) He was not
interviewed. (App. 87-91.) The court of appeals believed it
to be significant that, after Palmer applied, 57 other per
sons were hired “to teach elementary school or reading
during the 1972-73 school year.” (Pet. App. B 24b-25b.)
But of the 57 successful applicants noted by the court, only
three were hired as reading or language arts teachers.
The others were elementary grade teachers, and it was
surely not irrational for Hazelwood to think it pointless to
refer a 43-year-old who according to his application had not
been responsible for an elementary classroom for more
than 10 years to compete for the job of generally instructing
and supervising a first, second, third or even sixth grade
class. In fact, only one applicant was hired as a "reading
specialist,” and she had experience comparable to
Palmer’s. A language arts teacher was also hired for 1972-
73, and she (Gcrst) was black. A second language arts
teacher was hired for the 1973-74 school year, not the 1972-
73 year for which Palmer applied. (PI. Ex. 49.)
Georgia Shaw applied for a position as an elementary
school teacher (grade preferences: 3, 4. 5. 2, 1, 6) for 1973-
74. She had received a favorable evaluation of her student
teaching experience at Hazelwood. (App. 406-07.) Shaw
was not interviewed. She did not testify. As the court of ap-
70
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peals found, several other applicants were hired for elemen
tary positions. (Pet. App. B 21 b-22b.)
And that is the sum of it: two black applicants for social
studies teaching jobs who were not interviewed for jobs for
which at least one other black applicant was interviewed
and hired: an experienced teacher, who was not mini
mally qualified for some of the jobs that he applied for and
who professed a willingness to take a S3.000 salary cut to
get back into teaching from industry (App. 350), who was
not interviewed for the specialized position that he was
primarily interested in and for which he was qualified —
and which was idled by another black and a white person of
comparable experience; and a former student teacher in
the District, who had impressed her supervisor in that
capacity, who was not interviewed for an elementary
classroom teacher's job. The latter case, that of Miss Shaw,
may be puzzling on the face of things —one wishes that she
had testified — but it is not without more the basis for a find
ing of discrimination. The other cases do not even puzzle.
None of the cases, those discussed here or the other 10,
presents the kind of material on which a finding of em
ployment discrimination could be based, as is confirmed
when the nature of the findings made by the court of ap
peals as to Hazelwood's hiring process is considered. The
court of appeals’ criticism was of lack of standards for
hiring, of “an unstructured decentralized hiring process in
which subjective criteria predominate in evaluating can
didates, ot “subjectively-based selection procedures” and
of “the use of vague and subjective criteria.” (Pet. App. B
12b-14b.) To the extent that there is any validity to that
body of criticism, it applies only to the interviewing stage of
the hiring process. It has nothing to do with the selection of
applicants for interviews, which is where 14 of the court of
appeals' 16 applicants lost out. Nothing in the general
description of the interview-selection process or in the c.ases
of four. 14 or 37 blacks who were not selected for interviews
(in a period in which 26 blacks were selected) suggests or
72
system “fair on its face and impartial in appearance . . .
with an evil eye and an unequal hand, so as practically to
make unjust and illegal discrimination between persons in
similar circumstances.” Yick Wo v\ Hopkins. 118 U.S. 356,
374(1886).
“(i) that he belongs to a racial minority; (ii) that he ap
plied and was qualified for a job for which the em
ployer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his
rejection, the position remained open and the em
ployer continued to seek applicants from persons of
complainant’s qualifications.”
None of the 14 black applicants can be held as a matter
of law to be “qualified” for employment by Hazelwood, as
that term is used in the McDonnell Douglas rule. None of
the 14 has met personally with a Hazelwood school prin
cipal. and none has been evaluated in an interview situation
or compared to other available job applicants. Unless
teachers are to be hired strictly on the basis of their own
self-serving recitations as set forth in their written ap
plications. the court of appeals’ 14 uninterviewed ap
plicants cannot be said to be “qualified” for employment.
This failure of proof is accentuated by the nature of the
relief ordered by the court of appeals with respect to these
14. Hazelwood is required, inter alia, to offer the next
available positions to these applicants, persons whose
educational philosophy, response to classroom situations,
attitude toward children, quality of speech, and personal
On a more technical level, it cannot be said that the
14 applicants not selected for interviews satisfied the re
quirements of McDonnell Douglas Corp. v. Green. 411
U.S. 792, 802 (1973). as the court of appeals said that they
did (Pet. App. B 15b-16b). The Court said in McDonnell
Douglas that an individual complainant in a Title VII trial
can make a prima facie case by showing:
appearance have never been measured. Moreover, while ap
plicants who are interviewed are evaluated in competition
with others, the court of appeals has held these 14 to
possess such merit that they should be spared that com
petitive process in which only a minority of applicants
triumph.SJ The lower court's examination of the paper
credentials of each applicant — with its express emphasis
on advanced degrees and years of experience, criteria that
are not in themselves favored by Hazelwood — emphasizes
the error of the court’s attempt to substitute its judgment
for the school district's in weighing the qualifications of
teachers.
C. Hazelwood Did Not Discriminate in the
Selection of New Employees from among
Those Applicants Who Were Interviewed.
The second step in Hazelwood's hiring process — in
terviewing applicants and selecting from among those in
terviewed the ones to whom job offers will be made — does
not result in the exclusion from employment of a dispropor
tionate number of blacks; for that reason, if for no other, it
is not an employment practice prohibited by Title VII. But
the practice would survive even a showing of disparate ef
fect — not made in the present case — because it is a
legitimate, job-related employment tool.
The Government presented no evidence as to the number
of applicants who are actually interviewed by Hazelwood
and similarly presented no evidence as to the relative suc
cess rates of blacks and non-blacks who encounter this
phase of Hazelwood’s hiring process. Since the burden of
"James Washington, one of tlte 14. testified that he applied to seven
or eight school districts in St. Louis County but for several months
could find work only as a substitute teacher. (Tr. 123-25.) The court of
appeals gave no reason why Washington should be held qualified to
teach at Hazelwood when he was rejected nearlv everywhere else.
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proving a disproportionate exclusion of blacks lies with the
party alleging a violation of Title VII. it is apparent that the
Government failed to sustain its burden in this respect. The
evidence does show, however, that of 24 black applicants
known to have been interviewed, 17 received job offers'3 —
a rate of 70:8 percent. Although the record does not provide
a basis for comparing this rate directly with the rate for
non-black applicants, an estimate as to that rate may be in
terred from the evidence that — where a sufficient number
of eligible applicants are available — several applicants
may be interviewed for each vacancy. Whatever the precise
statistics, there is obviously no reason to believe that blacks
are excluded in disproportionate numbers by the interview-
and-evaluation process. To the contrary, blacks have fared
exceptionally well in their competition with other ap
plicants.
Although the court of appeals scorned Hazelwood’s
hiring practice as ‘‘standardless” and — because of its
“subjective” nature — susceptible of discriminatory ap
plication, the tact is that Hazelwood seeks the “best
qualified” teachers. The school principals and other ad
ministrators who interview job applicants and make the
crucial recommendations for employment, far from
treating this standard as a license to exercise personal
whim, devote considerable effort to the interview-and-
evaluation process. They are, after all, professional
educators, whose objective is not the conduct of an in
dustrial assembly line or the management of an unskilled
labor force, but rather the education of children.
The court of appeals overlooked the professional nature
of the employment involved here. Unlike Green in Me-
5J See pp. 67-68. supra. Another applicant who was interviewed
(Catlin) turned out to lack minimum certification for the job she sought
(see p. 67, supra) and is therefore excluded in this computation.
75
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D onnell Douglas C a rp . - p ^ m ' h L job
former employee whose q rejected applicants in
were not in dispute — an un i (1971) — who were
G r i n s v. D u k e P o « e r ^ - ^ “Lvnfen, ptactice from even
barred by a sweeping P oerform the jobs in
demonstrating their a i 1 1L . terviews for a Hazelwood
question — an apphean \ ••auaiified” to teach in a
job cannot be said to ^ basis of the represen-
Hazelwood school simp > ̂ Ucation form. Although the
tations he has made o ^ accord reCognition
court of appeals indicated t 0f teachers, the
to “objective” standards u ed profession
court did noV SU| geS a .obiective” measures of an ap-
there might be found J Q u a l i t y of speech, poise.
plicant’s attitude t ° ^ ^ J ^uaJ es that are highly
" , t a n .n . r r h i r i n g of teachers and that can only be
evaluated by means of interviews.
, ,hcteaching profession, like other proles
• M° T ' C ' a ari of philosophies concern,ng. and
sions. displays a ' “•'«> P lishmc„t of the baste edu-
approaches toward, t school’s principal who is su-
cational task at ban - ‘ activities at the school (c-g..
pervisor of the instruction,, ac area of
App. 6 3 ); and it is '^ ' “ ’̂“'sehoors teachers by means that
responsibtluy to «tect whcther an applicant’s views
T crucial matters of educational philosophy are com-
patiblc with his.
The court below some years ag° which the
inherent subjectivity of the process y
'qualifications of teachers must be judged.
“We recognize that teaching‘̂ " ^ g ^ x p e r ie n c e .
cellence does not depend upon duct§ajone> fitness
formal training and classic* and
for teaching rests upon a broad range
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76
encompasses numerous personality and character
traits. In addition, the particular needs of a school
district may at times genuinely require that weight in
deed be given to an applicant’s ability to teach more
than one subject, or, in addition to teaching, to super
vise extracurricular activity. Nothing contained in this
opinion is intended to be restrictive of a school board’s
freedom to make full inquiry and to give full con
sideration to an applicant’s qualifications and the
district’s needs in filling vacancies so long as the board
does not act unreasonably, arbitrarily, capriciously, or
unlawfully.” Smith v. Board o f Education of Morrilton
School District No. 32. 365 F.2d 770. 781-82 (8th Cir.
1966) (Blackmun, J.) (citations omitted). Accord.
Chance v. Board o f Examiners. 330 F. Supp. 203, 214
(S.D.N.Y. 1971), af/'d. 458 F.2d 1167 (2d. Cir. 1972).
The issue, then, is not whether the underlying criteria are
judgmental; it is whether those criteria are fairly applied.
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The lower courts have not often considered how. in Title
VII cases involving the employment of professionals, the
necessary resort to standards not easily reduced to objective
measurement is to be judged. That issue will not always be
addressed in such cases since an employer is not required to
establish the job-relatedness of his practices until the
challenging party has established that those practices
produce an adverse disparate impact on a protected
minority. But where the issue has been considered,
recognition has been given to the difference between the
employment of professionals and the hiring of less skilled
labor. In Coopersmith v. Roudebush. 517 F.2d 818 (D.C.
Cir. 1975), for example, the court considered a Title VII sex
discrimination challenge to two practices used by a federal
employer in the hiring of attorneys: a preference for ap
plicants with recent legal experience, and the evaluation of
the applicant s written response to a “test problem”
designed to simulate one of the tasks performed by at-
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tornevs in the jobs in question. Adopting the position urged
by the United States, the court found the rejected applicant
had not established that the use of either of these practices
operated to exclude women disproportionately from em
ployment and then went further, deliberately upholding
both the recent-experience requirement and the use of a
test problem as job-related even though an evaluation of the
quality of an applicant’s experience and response to a test
problem necessarily depends on the “subjective” judgment
of the persons who select new employees.
It is clear that the process by which Hazelwood evaluates
the job applicants it interviews has not worked to the disad
vantage of blacks. The inquiry, we contend, should stop
there. But we shall examine the case of the one of two in
dividual interviewed applicants, as to whom the court of ap
peals found a prima facie showing of discrimination, that
the Government has selected for the appendix. For that
case, far from serving as a specific example of dis
crimination, illustrates the Government’s failure to prove
discriminatory conduct by Hazelwood.
Timotheus Carson applied for a position teaching secon
dary English, French, or German for the 1972-73 school
year. (App. 309-10.) He was interviewed for a position
teaching English at the senior high school. Although the
court of appeals stated that Carson was rated very highly
by his interviewer (Pet. App. B 21b), in fact the ratings en
tered on Carson’s interview sheet were only average or
slightly above (App. 317-18). Although the court of appeals
thought that 23 persons were hired "in Carson’s field” after
he applied (id.), the Government’s evidence showed only
that seven persons who were interviewed after Carson ap
plied were hired for senior high school English positions
through the end of 1972 (PI. Ex. 49). The court of appeals
apparently considered Carson’s 10 years of experience and
master’s degree as showing his fitness for employment,
disregarding the evidence that established that neither ex-
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perience nor an advanced degree is necessarily favored by
Hazelwood.'4
Carson’s case proves nothing. Some others who were in
terviewed about the same time as he was for high school
English teaching jobs impressed their interviewer more
than he. That is all. No inference can fairly be drawn that
he suffered in the interview process from being black.”
CONCLUSION
The judgment of the court of appeals should be reversed.
If the Court acceptsour constitutional argument, the case
should be remanded with instructions to reinstate the
district court’s original judgment for defendants on the
ground that what the Constitution requires to be proved
to warrant the imposition of Title VII sanctions on the
Hazelwood School District was not proved. If the Court
does not agree with us on that point, the case should be
remanded for reconsideration of the alleged individual
cases of discrimination by a court disabused of the
erroneous notion that statistics showed Hazelwood
engaging in a pattern or practice of discrimination against
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S4In the process of substituting its judgment for that of Hazelwood s
administrators, the court of appeals also erred in evaluating the record
of Ellis, the other applicant who was interviewed but rejected as to
whom it found discrimination. The court thought that Ellis had seven
years of teaching experience" (Pet. App. B 20b). but in fact she had
taught for only one year after receiving her teaching degree (Pi. Ex. 12).
Moreover, the two principals who interviewed Ellis tcstilicd that she
had not been the best qualified applicant for the positions tor which she
was considered. (App. 13. 78.)
''Although Carson was present at trial, he did not testily. (Pet. App.
A 16a.)
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79
black applicants for teaching positions. There has been no
such showing.
Respectfully submitted.
WILLIAM H. ALLEN
COLEMAN S. HICKS
JEFFREYS. BERLIN
888 Sixteenth Street, N.W.
Washington, D.C. 20006
DON O. RUSSELL
314 No. Broadway, Suite 1210
St. Louis, Missouri 63102
O f Counsel: Attorneys for Petitioners
COVINGTON & BURLING
888 Sixteenth Street, N.W.
Washington, D.C. 20006
RUSSELL. SCHECHTER. WEISS & ENS
314 No. Broadway, Suite 1210
St. Louis, Missouri 63102