Hazelwood School District v. United States Brief Amicus Curiae

    No. 76-255

IN THE

&u$nnw (tart nf %  Initrii i>tatra
October Term , 1976

H azelwood S chool D istrict, et al., Petitioners,
V.

U nited S tates of A merica

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE

R obert A. M ltrphy 
R ichard S. K ohn  
R ichard T. Seymour 

L awyers’ Committee for 
Civil R ights U nder L aw 

733 15th Street, N.W. 
Washington, D.C. 20005 

Attorneys for Amicus Curiae

Press of Byron S. Adams Printing, Inc., Washington, D. C.



TABLE OF CONTENTS
Page

I n ter est  op A m ic u s  C u r i a e .......................................................  1

S ta t e m e n t  of t h e  C ase ..................................................... 4

S u m m a ry  of A r g u m e n t  .......................................................... .... 9

A r g u m e n t

I . H azelw ood ’s C o n stitu tio n a l  A r g u m e n t  S h o u ld  
N ot B e B eached  B ecause  T h e r e  I s S u bsta n tia l  
E vidence  op P u r po se fu l  R acial D isc r im in a t io n  
in  I ts  T ea c h er  H ir in g  P r a c t ic e s .............................  10

II. I n t h e  E v en t  T h a t  t h e  C o n st it u t io n a l  Q u e s ­
t io n  Is R ea ch ed , t h e  E x t e n sio n  to S tate  and 
L ocal G o v ern m en ts  op T it l e  V I P s P r o h ib it io n  
op P ractices W h ic h  H ave a D ispro po rtio n a tely  
A dverse R acial I m pa ct  B u t  W h ic h  A re N ot 
tile R e s u l t  op a D iscrim in a to ry  P urpose  I s a 
V alid E xercise  op C ongressional  P ow er  H nder 
t h e  E n fo r c em en t  C lause  op t h e  F o u r t e e n t h
Am e n d m e n t  ..........................................................................  22

Co n c lu sio n  ................... ..................................................................... 30

TABLE OF AUTHORITIES
Ca s e s :

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) ...........'.......................................  2

Brinkman v. Gilligan, 518 F.2d 853 (6th Cir.), cert, de­
nied, 423 U.S. 1000 (1975) .................................  2

Chandler v. Roudebush, 96 S.Ct. 1949 (1976) ............ 3
Clyatt v. United States, 197 U.S. 207 (1905) ...........  25
Davis v. Schnell, 81 F.Supp. 872 (S.D. Alaska), atf’d.,

336 U.S. 933 (1949) ...........................................  23



11 Table of Authorities Continued

Page
Dayton Board of Education v. Brinkman, 539 F.2d 1084 

(6th Cir,. 1976), cert, granted, 50 L.Ed.2d 775 
(1977) ...............................................................  2

Douglas v. Hampton, 512 F.2d 976 (D.C.Cir. 1975) ... 3
Ex Parte Virginia, 100 U.S. 339 (1880) .................. 26, 27
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ......................   14
Franklin v. Troxel Mfg. Co., 501 F.2d 1013 (6th Cir. 

1974) .................................................................  17
General Electric Co. v. Gilbert, 50 L.Ed.2d 343 (1976) 22
Gordon v. Jefferson Davis Parish School Board, 446 

F.2d 266 (5th Cir. 1971) ...............................   2
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .........  22
Interstate Circuit, Inc. v. United States, 306 U.S. 208

(1939) .......................................   19-20
James Everard’s Breweries v. Day, 265 U.S. 545 (1924) 27
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) ... 27
Katzenbaeh v. Morgan, 384 U.S. 641 (1966) .......26, 27, 28
Lassiter v. Northampton County Board of Elections,

360 U.S. 45 (1959) ............' .........................  22-23, 27
McCormick & Co., Inc. v. Brown, 286 U.S. 131 (1932). . 26
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315 (1819) 27
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

14,17
Milliken v. Bradley, 540 F.2d 229 (6th Cir. 1976), cert.

granted, 97 S.Ct. 380 (1977) ...............................  2
Mims v. Wilson, 514 F.2d 106 (5th Cir. 1975) ............ 17
Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, 

denied, 421 U.S. 963 (1975) ...............................  2
Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert, de­

nied, 419 U.S. 895 (1974) ................................... 3
Newman v. Henderson, 539 F.2d 502 (5th Cir. 1976) .. 18



Table of Authorities Continued ux

Page
Oregon v. Mitchell, 400 U.S. 112 (1970) ........ 10, 24, 26, 28
Pasadena City Board of Education v. Spangler, 96 

S.Ct. 2697 (1977) ..............................................  2
Patterson v. American Tobacco Co., 535 F.2d 257 (4th 

Cir.), oert, denied, 50 L.Ed.2d 286 (1976) ...........  17
Rhode Island v. Palmer, 253 U.S. 350 (1920) (National 

Prohibition Cases) .............................................  26
South Carolina v. Katzenbach, 383 U.S. 301 (1966)

10, 24, 25, 27, 28
State Board of Insurance v. Todd Shipyards Corp., 370 

U.S. 451 (1962) .................................................. 26
Strauder v. West Virginia, 100 U.S. 303 (1880) ........  26
United States v. Guest, 383 U.S. 745 (1966) ............... 26
United States v. Hazelwood School District, 392 F. 

Supp. 1276 (E.D.Mo. 1975) ..............   7,12,16
United States v. Hazelwood School District, 534 F.2d 

805 (8th Oir. 1976) ...........................6, 7, 9,11,12,13
Village of Arlington Heights v. Metropolitan Housing 

Development Corp., — U.S. —, 50 L.Ed.2d 450 
(1977) .............................................................. 17,18

Ward v. Apprice, 6 Mod. 264, 87 Eng.Rep. 1011 (Q.B. 
1705) ................................................................19,20

Washington v. Davis, 426 U.S. 229 (1976) ..........18, 22, 27
C o n st it u t io n  and S ta tu tes  :

U.S. Constitution, 13th Amendment.........................25, 26
U.S. Constitution, 14th Amendment, Section 5 ........ 10, 22,

24, 25, 26, 27, 30
14 Stat. 546, 18 U.S.C. Sec. 1581...............................  25
Civil Rights Act of 1875,18 Stat, 336,18 U.S.C. Sec. 243 25
Civil Rights Act of 1964, 78 Stat. 253, Title VII, as 

amended, 42 U.S.C. Sec. 2000e et seq. (Supp. II 
1972) .............................................................. 3,4,22



IV Table of Authorities Continued

Page
Voting Rights Act of 1965, 79 Stat. 438, 42 U.S.C. Sec. 

1973b ................................................................. 24
Voting Rights Act Amendments of 1970, 84 Stat. 315,

42 U.S.C. Sec. 1973aa...........................................  24
Equal Employment Opportunity Act of 1972, Pub.L. 

92-261, 86 Stat. 103, 42 U.S.C. Sec. 2000e et seq... 10, 28

O t h e r  A u t h o r it ie s  :

H.R. Rep. No. 92-238, 92nd Cong., 1st Sess. (1971) ... 29
S. Rep. No. 92-415, 92nd Cong., 1st Sess. (1971) ....... 29
1972 U.S. Code Cong. & Admin. News 2137, 2152 ....... 29
U.S. Commission on Civil Rights, For All the People 

. . . By All the People: A Report on Equal Oppor­
tunity in State and Local Government Employ­
ment, 1969 ......................................................... 28

Howard University, Institute for the Study of Educa­
tional Policy, Equal Educational Opportunity for 
Blacks in U.S. Higher Education: An Assessment 
(1976) ............................ .................................. 16

2 J. Wigmore, Treatise on the Anglo-American System 
of Evidence, Sec. 291 at p. 187 (3rd ed. 1940) . . . .  19

2 Conrad, Modern Trial Evidence, Sec. 950 at p. 169 
(1956) ............................................................... 19



IN THE

i^ujimte Court of tfyr Hutted Stairs
October T erm , 1976

No. 76-255

H azelwood S chool D istrict, et al., Petitioners,
V.

U nited States op A merica

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under 
Law was organized in 1963 at the request of the Presi­
dent of the United States, John F. Kennedy, to in­
volve private attorneys throughout the country in the 
national effort to assure civil rights to all Americans. 
The Committee’s membership today includes two for­
mer Attorneys General, nine past Presidents of the 
American Bar Association, two former Solicitors Gen­
eral, a number of law school deans, and many of the



2

nation’s leading lawyers. Through its national office 
in Washington, D.C. and its offices in Jackson, Missis­
sippi and eight other cities, the Lawyers’ Committee 
over the past fourteen years has enlisted the services 
of over a thousand members of the private bar in ad­
dressing the legal problems of minorities and the poor 
in voting, education, employment, housing, municipal 
services, the administration of justice, and law en­
forcement.

The Lawyers’ Committee and its staff have a long 
history of support for, and participation in, school 
desegregation litigation. For example, the Committee 
filed a brief and participated in oral argument as 
amicus curiae in Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969). Volunteer attorneys, 
under the auspices of the Lawyers’ Committee, have 
assisted plaintiffs’ counsel in numerous proceedings 
which resulted from this Court’s decision in Alexander. 
See, e.g., Gordon v. Jefferson Davis Parish School 
Board, 446 F.2d 266 (5th Oir. 1971). More recently, 
staff and volunteer attorneys of the Lawyers’ Commit­
tee have assisted in representing plaintiffs in such 
cases as Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 
1974) cert, denied, 421 U.S. 963 (1975); Brinkman v. 
Gilligan, 518 F.2d 853 (6th Cir. 1975), cert, denied, 
423 U.S. 1000 (1975) and Dayton Board of Education 
v. Brinkman, 539 F.2d 1084 (6th Cir. 1976) cert, 
granted, 50 L. Ed.2d 775 (1977). The Lawyers’ Com­
mittee has also been directly involved in Milliken v. 
Bradley, 540 F.2d 229 (6th Cir. 1976) cert, granted, 
97 S. Ct. 380 (1977) and Pasadena City Board of 
Education v. Spangler, 96 S. Ct. 2697 (1977).

Since 1971, the Lawyers’ Committee through a grant 
from the Equal Employment Opportunity Commis­



3

sion has assisted the private bar in litigation under 
Title V II of the Civil Rights Act of 1964, as amended 
(42 U.S.C. §§ 2000e et seq.) on behalf of hundreds of 
injured individuals and class members. The Lawyers’ 
Committee, through its Government Employment 
Project, its local committees, affiliates and volunteer 
lawyers is also actively engaged in providing legal 
representation to the victims of racially discrimina­
tory employment practices of federal, State and local 
governments. See, e.g., Chandler v. Roudebush, 96 S.Ct. 
1949 (1976) ; Morrow v. Crisler, 491 F.2d 1053 (5th 
Cir.), cert, denied, 419 U.S. 895 (1974) ; Douglas v. 
Hampton, 512 F.2d 976 (D.C. Cir. 1975).

In view of our continuing heavy involvement in 
school desegregation and Title V II cases, it is obvious 
that the issues which the petitioners seek to raise in 
their appeal in the instant case are of particular im­
portance to the Lawyers’ Committee. Should the Court 
hold, as petitioners contend, that it lies beyond the 
power of Congress to extend Title V II to State and 
local governments under the Enforcement Clause of 
the Fourteenth Amendment, a devastating blow would 
be dealt to the efforts being made to eradicate the 
effects of segregation in our nation’s schools, including 
their faculties.

The interest of the amicus curiae, therefore, stems 
from our longstanding efforts to secure to black citi­
zens their right under the Fourteenth Amendment to 
be free from discrimination based on race in all aspects 
of our national life.

The written consent of the parties, pursuant to Su­
preme Court Rule 42(2), is filed herewith.



4

STATEMENT OF THE CASE

This suit was filed by the Attorney General in the 
name of the United States on August 9, 1973, under 
Title Y II of the Civil Rights Act of 1964, 42 U.S.C. 
Sec, 2000e et seq. (1970), as amended, 42 U.S.C. Sec. 
2000e et seq. (Supp. II, 1972), and the Fourteenth 
Amendment to the federal constitution, alleging that 
the Hazelwood School District, located in St. Louis 
County, Missouri, was practicing racial discrimination 
in hiring teachers and staff:. Specifically, the govern­
ment charged that, in hiring teachers, Hazelwood was 
pursuing a pattern or practice of racial discrimina­
tion that had its antecedents in de jure segregation 
that existed prior to 1955. The government contended 
that, long after the legal barriers had been struck down, 
Hazelwood persisted in refusing to employ black teach­
ers who were as well or better qualified than white 
applicants who were hired instead. Injunctive relief 
was sought to put an end to discriminatory hiring 
practices and to require the district to recruit black 
faculty and staff, and further relief was sought to ob­
tain back pay for the victims of past discrimination.

The Hazelwood School District occupies 78 square 
miles of territory and serves 25,000 students, mostly 
white, in five communities in northern St. Louis 
County. I t is partially contiguous with the St. Louis 
City School District. The Hazelwood School District 
was created between 1949 and 1951 by consolidating 
thirteen rural school districts. Before 1955, Hazelwood 
employed no black facility or staff. This reflected the 
fact that under state law the schools were segregated 
by race with respect to both faculty and students. Since 
the Hazelwood District did not have a resident black



5

population at that time, there was no black school and, 
consequently, no black faculty.

Hazelwood did not hire a black faculty member until 
1969, although a 1964 policy adopted by the District 
proclaimed that teachers would be hired “ on the basis 
of training, preparation and recommendations regard­
less of race, color or creed.” In 1970-71, the number 
of black teachers had risen to six, constituting 0.6 per 
cent of the total teachers in the District. In 1972-73, 
13 of 1,197 teachers, or 1.1 per cent, were black, and 
in 1973-74, Hazelwood employed 22 black teachers out 
of 1,231, or 1.8 per cent. In contrast, in 1970, over 15 
per cent of the teachers in St. Louis City and County 
were black.

The low percentage of black teachers employed by 
Hazelwood reflected hiring practices which had long 
been biased in favor of whites. Although there were 
two predominantly black colleges in Missouri, Harris 
Teachers College and Lincoln University, Hazelwood 
did not recruit from them but instead sought to attract 
graduates from predominantly white colleges and uni­
versities in Missouri, Illinois, Arkansas, Kansas and 
Oklahoma. Hazelwood did not recruit from black col­
leges in other states. As late as the 1962-63 school 
year, some teacher application forms still had a space 
for “ race” and in 1962 Hazelwood placed an advertise­
ment in a Jackson, Mississippi newspaper for elemen­
tary and kindergarten teachers, limiting applicants to 
“ white only.”

The procedures for hiring faculty members are to­
tally deficient in objective standards, thus enhancing 
the opportunity for racially based decisions to be made. 
Applications are kept on file at the central personnel



6

office. Applicants are instructed to update their forms 
annually, and applications not kept current are dis­
carded. When vacancies occur, the personnel office 
notifies applicants selected from the file and advises 
them to arrange an interview with the appropriate 
principal.

The hiring procedure is in three steps: first, the ap­
plicants meet as a group with Hazelwood’s elementary 
or secondary school coordinator, who familiarizes them 
with the district. Next, each applicant is interviewed 
by the principal. Thirdly, the principal makes a recom­
mendation to the coordinator, who makes a recom­
mendation to the Superintendent. Ordinarily, the 
principal’s choice is followed. All of the elementary 
and secondary principals are white. There are no stand­
ards to govern the principal’s choice except a general 
instruction to hire “ the most competent person.”

Evidence was presented concerning 55 black teach­
ers who had unsuccessfully sought positions at Hazel­
wood, and 25 of them testified at trial. This testimony 
established that black applicants were advised fre­
quently that there were no vacancies in their field, 
after which white applicants for the same position 
were hired. United States v. Hazelwood School District, 
534 E.2d 805, 814-15 (8th Cir. 1976). While Hazelwood 
had a policy of giving preference to teachers who had 
previously taught in the system, this policy was not 
followed with respect to some black applicants. Black 
applicants were denied employment on the ground 
that they lacked certification, even though it was com­
mon practice in the District to hire recent graduates 
on the understanding that they would obtain certifica­
tion. 534 F.2d at 809 n.2. Often, black applicants were 
not given any interviews at all, although an interview



7

was a necessary predicate to employment. 534 F.2d at 
809 n.3.

The district court held that the government had 
failed to establish a “ pattern and practice” of discri­
minatory hiring practices under Title V II or the 
Fourteenth Amendment. The court held that the per­
centage of black teachers was roughly comparable with 
the percentage of black students in the Hazelwood 
District. The court also held that the record did not 
support claims by 55 unsuccessful black applicants 
for teaching positions that they had been discriminated 
against on the basis of their race. United States v. 
Hazelwood School District, 392 F. Supp. 1276 (E.D. 
Mo., 1975).

The Court of Appeals reversed, one judge dissent­
ing. United States v. Hazelwood School District, 534 
F.2d 805 (8th Cir. 1976). The majority found that the 
trial court had erred in failing to assign appropriate 
weight to the evidence adduced by the government 
concerning Hazelwood’s prior hiring practices which 
was “ highly relevant to show that present policies or 
practices which appear neutral on their face, perpetu­
ate past discriminatory policies.” Id. at 811. The Court 
also held that the district court erroneously compared 
the percentage of black teachers in Hazelwood with 
the percentage of black students in the schools rather 
than with the percentage of black teachers in the rele­
vant labor market—St. Louis City and County.

The combination of the statistical evidence, the hir­
ing practices which gave almost total discretion to the 
23 school principals (all of whom were white), the 
past pattern of employment discrimination, and the 
Court’s finding that 16 black applicants had been de­



8

nied employment based on race, led the Court to con­
clude that the government had established a prima 
facie case of a pattern or practice of employment dis­
crimination in violation of Title Y II which had not 
been adequately rebutted by the State.

In a separate discussion, headed “ I I I ” in its 
opinion, the Court of Appeals examined the record 
concerning claims of discrimination by specific individ­
uals and concluded on the basis of the individual facts 
of each case that the government “ proved unlawful 
discrimination against 16 rejected black applicants.” 
534 ¥.2(1 at 819.

The Court of Appeals instructed the district court 
on remand to enter an order enjoining Hazelwood
(1) from discriminating against any applicant for a 
teaching position on the basis of his race or color;
(2) to promulgate accurate job descriptions and hiring 
criteria to ensure that all applicants are judged on the 
basis of individual merit; (3) to announce its hiring 
procedures in application and recruiting materials; 
(4) to ensure that notice of all available openings be 
given to all potential applicants, that black colleges 
be included in any future recruitment activities, and 
that black college students be given the opportunity 
to studenit teach at Hazelwood; (5) to maintain records 
to facilitate government inspections as well as to pre­
pare periodic reports for the Justice Department for 
a three year period; and, (6) to give the sixteen ap­
plicants found by the Court to have been discrimi­
nated against, preferential standing and the right of 
first refusal of any vacancies to which their qualifica­
tions would entitle them. The Court also ordered back 
pay awards for two applicants and directed the district 
court to determine whether back pay should not be 
awarded to fourteen others.



9

SUMMARY OF ARGUMENT

I.
I t is unnecessary to address the constitutional argu­

ment which the petitioners seek to raise because the 
record is replete with evidence of purposeful discrimi­
nation. Through misrepresentation, selective applica­
tions of its own hiring policies, and utilization of a 
system that gave maximum leeway for preferential 
hiring, Hazelwood ensured that qualified black appli­
cants would not be employed. Petitioners’ claim that 
the Court of Appeals’ ruling that 16 specific individ­
uals were discriminated against was predicated on the 
court’s finding of a pattern of discrimination is simply 
a misreading of the Eighth Circuit’s opinion. The 
Court reached its conclusion concerning these individ­
uals on its examination of the facts in each individual 
case and nothing else. Nor does petitioners’ claim that 
applicant-flow statistics demonstrate that the 16 in­
dividuals could not have been the subjects of discrimi­
nation withstand analysis. The record does not estab­
lish race-identification of applicants for the years in 
question. In any event, failure to discriminate against 
some blacks is not a conclusive defense to a claim of 
discrimination against other blacks, and the petition­
ers did not offer any rebuttal evidence concerning the 
individuals in question. 534 F.2d at 814.

II.

Assuming the court reaches the constitutional ques­
tion, it is a valid exercise of Congressional power 
under the Enforcement Clause of the Fourteenth 
Amendment to make Title V II’s prohibition of prac­
tices which have a disproportionately adverse racial



10

impact, even if not purposeful, applicable to State 
and local governments. This result is commanded by 
this court’s decisions in South Carolina v. Katzenbach, 
383 U.S. 301 (1966), and Oregon v. Mitchell, 400 U.S. 
112 (1970). The legislation is adapted to carry out the 
objects of the Fourteenth Amendment and tends to 
enforce compliance with the prohibitions they contain. 
The extension of Title Y II to State and local govern­
ments is designed precisely to achieve this result. The 
legislative history of the Equal Employment Opportu­
nity Act of 1972, P.L. 92-261, 86 Stat. 103, contains an 
adequate factual basis for Congress’ action in expand­
ing the reach of Title YII.

A R G U M E N T
I. HAZELWOOD'S CONSTITUTIONAL ARGUMENT SHOULD 

NOT BE REACHED BECAUSE THERE IS SUBSTANTIAL 
EVIDENCE OF PURPOSEFUL RACIAL DISCRIMINATION IN 
ITS TEACHER HIRING PRACTICES

The record substantiates the Court of Appeals’ find­
ing that Hazelwood has engaged in purposeful discrim­
ination in the selection of black applicants to interview, 
and in the selection of black interviewees to hire. For 
example, the school district had admittedly engaged in 
extensive recruiting efforts at predominantly-white col­
leges, but had refused to do so at predominantly-black 
colleges. The testimony of the man who served as its 
Superintendent of Schools from July 1953 through 
June 1967 is instructive:

Q. Did you ever recruit at Lincoln University?
A. I  never did recruit at Lincoln University.
Q. For what reason?



11

A. In the early years of my superintendeney that 
was a Hegro university.

App. 54-55.1

The Court of Appeals also discussed instance after 
specific instance in which the Hazelwood school district 
treated black applicants for teaching positions in a 
manner both different from, and less favorable than, 
the manner in which it treated white applicants. In 
some instances Hazelwood used inconsistent standards, 
as when it disqualified blacks for ‘ ‘ reasons ’ ’ which were 
equally applicable to whites, but which did not result 
in whites being barred from employment. In other in­
stances, the school district’s unfavorable treatment of 
black applicants violated its own policies. In still others, 
the school district’s favorable treatment of whites re­
sulted in a waiver of some of the few objective criteria 
it claims to have recognized. In none of these types of 
instances did the school district offer any explanation 
for its d iff (‘rent treatment of black and white appli­
cants; in none did it produce any evidence that might 
prove a lack of purposeful racial discrimination, such 
as evidence that some white applicants were disquali­
fied for reasons which did not bar the employment of 
blacks, or evidence that Hazelwood violated its own 
policies in any assertedly unfavorable treatment of any 
white applicant, or evidence that it ever waived any 
of its objective criteria in favor of any black applicant.

1 In  its brief at 11, the school district makes much of a single 
visit of a subordinate official to Lincoln University thirteen or 
fourteen years ago, but the school district’s claim that black stu­
dents were uninterested in it is somewhat thin; its “ recruiter” 
failed to speak to a single black student. 534 F.2d at 811 Note 6.



12

The Court of Appeals pointed out that Hazelwood 
misrepresented to Derek Novel, a black, that there were 
no vacancies in the type of teaching position for which 
he had applied, that it then hired ten later-applying 
applicants for the assertedly nonexistent vacancies in 
that type of position, that five of the persons so hired 
had qualifications inferior in whole or in part to Nov­
el’s, that one of the successful applicants “ had even 
been dismissed from his university on the basis of his 
grades,” and that Hazelwood offered no explanation 
of these facts. 534 F.2d at 814-15. The school district 
has not challenged, or even mentioned, this statement 
by the Court of Appeals in its brief before this Court.

Also, the Court of Appeals pointed out that Hazel­
wood had a policy of giving preference to applicants 
who had successfully done their student teaching in 
that district,2 but did not apply this policy to Robert 
Howell, a black applicant. The Court of Appeals point­
ed out that Hazelwood had not even bothered to inter­
view Howell, that subsequent to his application it had 
hired ten whites for the type of teaching position for 
which he had applied, that nine of the ten successful 
white applicants had no more experience than Howell, 
and that Hazelwood offered no explanation of these 
facts. 534 F.2d at 815. The school district’s only rejoind­
er to this Court is its assertion, in its brief at 69, that 
there were only nine successful white applicants and 
that the remaining one person was black.

In addition, the Court of Appeals pointed out that 
Alice Roach, a black teaching applicant, had assertedly 
been disqualified because she lacked teaching certifiea-

2 534 F.2d at 815. The district court had also found this to be 
Hazelwood’s policy. 392 F.Supp. at 1281.



13

tion at the time she applied, but that Hazelwood had 
routinely hired white applicants who lacked teaching 
certifications at the time of their applications. 534 F.2d 
at 815. Indeed, plaintiff’s exhibit 61 listed 101 Hazel­
wood teachers who lacked certifications at the time of 
their applications, and shows that over half of them 
did not have teaching certificates even at the time Ha­
zelwood made its job offers to them. App. 429-31. The 
Court of Appeals noted that Hazelwood had offered no 
explanation for the application of a different standard 
to Alice Roach, 534 F.2d at 815-16, and the district re­
mains silent in its brief before this Court.

The above situations were not unique; the Court of 
Appeals pointed out that Hazelwood has misrepresent­
ed to several black applicants the nonexistence of open­
ings which in fact did exist, in addition to the “ several” 
misrepresentations it made to Derek Novel, 534 F.2d 
at 815; such misrepresentations were made to James 
Washington, 534 F.2d at 815, to Samuel Downs, Id,., 
and to Cynthia Edmond, 534 F.2d at 816. Only as to 
Cynthia Edmond does the school district now deny mis­
representation, in its brief at 69, and even that denial 
is based on an interpretation of her trial testimony 
which is not the only possible interpretation. The Court 
of Appeals similarly pointed out the school district’s 
pretextual reliance on the lack of teaching certificates 
at the time of application for several black applicants, 
despite Hazelwood’s waiver of such requirements for 
whites; besides Alice Roach, the petitioner relied on 
this pretext as to Delores Penten, 534 F.2d at 816, Geor­
gia Shaw, 534 F.2d at 816-17, Alexis Smith, 534 F.2d 
at 817, Geraldine Thomas, Id., Mary Wilson, Id., and 
Robert Wilson, 534 F.2d at 818. Moreover, as the Court 
of Appeals observed, the school district violated its own



14

policy of giving preference to applicants who had suc­
cessfully clone their student teaching in the Hazelwood 
district in the ease of Georgia Shaw, Id., as well as that 
of Robert Howell. 534 F.2d at 815.

The school district asserts, in its brief at 72, that none 
of the above disputed facts matters because McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) re­
quires a showing that the applicant is “ qualified,” that 
only a personal meeting with a Hazelwood principal 
can determine whether an applicant is “ qualified,” and 
that the applicant’s “ self-serving recitations as set 
forth in their written applications” are insufficient to 
show that they were “ qualified.” The assertion is un­
tenable ; if it were otherwise, a school district could re­
fuse to hire a single black and could escape liability 
by the simple expedient of refusing to give blacks the 
opportunity for an interview.

The school district also argues, in its brief at 62, that 
the undisputed facts discussed by the Court of Appeals 
are in some unexplained way “ tainted” by a “ prior 
error-infected finding of a pattern or practice of dis­
crimination.” In point of fact, the Court of Appeals 
never once relied on its findings of such a pattern in 
discussing the undisputed evidence of discrimination 
against sixteen black applicants. Indeed, the Court of 
Appeals may have erred in failing to use the finding of 
a pattern to shift the burden to Hazelwood with respect 
to the thirty-nine black applicants the Court of Appeals 
held not to have been discriminatd against, cf. Franks 
v. Bowman Transportation Go., 424 U.S. 747, 772-73 
(1976). In any event, a plain reading of the Court’s 
decision establishes that its evaluation of the treatment 
the sixteen received was entirely independent of its 
other findings of discrimination.



15

Finally, Hazelwood relies on applicant-flow statistics 
to support its contention that, notwithstanding its dis­
parate treatment of the sixteen black applicants dis­
cussed by the Court of Appeals, blacks as a whole fared 
better than whites and that this somehow disproves dis­
crimination as to the sixteen. Brief for petitioners at 
61-62. This argument has no factual basis in the record. 
Hazelwood’s contention is based on the assumption that 
most of the black applicants have been race-identified, 
but the record is completely silent as to the number of 
applicants in the years in question who actually were 
race-identified. Moreover, the record does contain two 
indications that there were substantial numbers of per­
sons whose race could not be identified. First, Hazel­
wood’s applicant-flow contention is based on data for 
the total number of applicants for the 1971-72 and 1972- 
73 school years, brief at 8, 47-48, even though race-iden­
tification was impossible for the great bulk of the 3,127 
applicants for the 1971-72 school year. The school dis­
trict routinely destroyed most old applications and the 
district court stated that “ the years for which the dis­
trict had retained personnel records” wTere for the 1972- 
73 and 1973-74 school years. 392 F. Supp. at 1281.3 Sec­
ond, it is obvious from the means of race-identification 
used by the Government4 that, even where application 
forms had been preserved, many blacks would not have

3 Hazelwood admits that most of the persons who were race- 
identified as black had applied in the years for which records 
were preserved. Brief at 8.

4 The Government tried to race-identify applicants as black by 
determining whether they had attended local, predominantly- 
black schools, or had attended predominantly-black colleges and 
universities, or from optional photographs some persons had in­
cluded with their applications. Tr. 306-07.



16

been race-identified. I t is probable that some blacks in 
the local area bad not attended predominantly-black 
schools. Furthermore, this means of racial identifica­
tion was not even used for non-local applicants and 
plaintiff’s exhibit 2 shows that roughly one third of 
Hazelwood’s applicants were not local. The next means 
of racial identification, relying on attendance at pre­
dominantly-black colleges and universities, would have 
failed to identify the race of blaeks who did not attend 
such schools. According to the Institute for the Study 
of Educational Policy at Howard University, only 23 
percent of black college students in the Fall of 1973 
were enrolled in predominantly-black colleges and uni­
versities. Institute, Equal Educational Opportunity for 
Blacks in U.S. Higher Education: An Assessment 
(1976) at p. 56. The conclusion is inescapable that this 
means of race identification would have failed to work 
on three-quarters of the black applicants. The next 
means of racial identification, reliance on photographs, 
was insufficient because the school district had not re­
quired photographs since 1954, 392 F. Supp. at 1280. 
Finally, the school district’s applicant-flow contention 
is weakened by its reliance on hiring data for the pe­
riod of time after it learned that the Government was 
contemplating suit against it.

There is a legal, as well as a factual, defect in Hazel­
wood’s effort to rebut the individual showings of dis­
crimination by reliance on applicant-flow data. An em­
ployer’s failure to discriminate against some blacks is, 
while relevant, not a conclusive defense to a claim of 
discrimination against other blacks. “ A single invidi­
ously discriminatory governmental act . . . would not 
necessarily be immunized by the absence of such dis­
crimination in the making of other comparable deci­



17

sions.” Village of Arlington Heights v. Metropolitan
Housing Development Corp.,----- U.S. —— 50 L.Ed.
2d 450, 465 note 14 (1977). In case after case, the 
'Courts of Appeal have held that the right, to freedom 
from employment discrimination is personal to each 
victim of such discrimination, and that fair treatment 
of other blacks, even the1 hiring of blacks in proportion 
to their number in the applicant flow or in the local 
population or work force, is not dispositive of the 
claim of the person actually discriminated against. 
Franklin v. Troxel Mfg. Go., 501 F.2d 1013, 1016 (6th 
Cir., 1974); Mims v. Wilson, 514 F.2d 106, 109 note 5 
(5th Cir, 1975); Patterson v. American Tobacco Go.,
535 F.2d 257, 275 note 18 (4th Cir.), cert, den., -----
U.S. — , 50 L.Ed.2d 286 (1976).

While it is important to note that each of the sixteen 
instances of individual discrimination cited by the 
Court of Appeals meets the McDonnell Douglas stand­
ards for shifting to the employer the burden of proving 
nonracial motivation for the disparate treatment of 
black applicants, it is equally important to note that 
the undisputed evidence of record as to these sixteen 
also meets the Arlington Heights standards for infer­
ring discriminatory motivation in the absence of an ad­
mitted discriminatory intent. These sixteen instances 
involve “ [departures from the normal procedural se­
quence”, include showings that “ the factors usually 
considered important by the decisionmaker strongly 
favor a decision contrary to the one reached”, 50 L.Ed. 
2d at 466, and involve a series of questionable actions 
rather than a few facts taken in isolation, cf. 50 L.Ed. 
2d at 465. The school district’s haphazard and subjec­
tive decisionmaking is more readily analogous to jury 
selection than it is to governmental decision making,



18

e.g., on the adoption of an employment test or on the 
acceptance or location of public housing. Thus, discrim­
inatory purpose may be inferred more readily in the 
case at bar than in cases such as Washington v. Davis, 
426 U.S. 229 (1976) or Arlington Heights. This Court 
so recognized in Washington, 426 U.S. at 244-245, and 
in Arlington Heights, 50 L.Ed.2d at 465 note 13.5

Notwithstanding the school district’s protestations, 
brief at 22, it is always open to a public or private em­
ployer to prove a nonracial motivation for the actions 
under challenge. There may be nonracial reasons, for 
example, which explain why a school district would 
refuse to abide by its policy to interview an applicant 
who had successfully done his or her student teaching 
in that district. Nevertheless, a court of law cannot de­
cide such a case on the basis of speculation. If  there 
were a nonracial explanation in any of these sixteen 
instances, the burden of persuasion was with the school 
district. And Hazelwood did not even try to make such 
showings. Instead, throughout this litigation it has 
acted as if the Government had the threshold burden 
of proving specific racial motivation for the actions 
of the district’s officials. Perhaps the clearest indica­

5 Cf. Newman v. Henderson, 539 F.2d 502, 505 (5th Cir., 1976), 
a Fourteenth Amendment jury case in which the court interpreted 
this passage in Washington as distinguishing between a govern­
mental selection process such as a test, which separates the quali­
fied from the unqualified and in which proof of discriminatory 
purpose is required to show that the process distinguishes on the 
basis of race rather than on the basis of nonqualification, and a 
governmental selection process which merely picks some individuals 
from among a group of qualified persons. Where there is no com­
peting inference of nonqualification, Newman held proof of dis­
criminatory impact is tantamount to proof of discriminatory 
purpose.



19

tion of this flaw in Hazelwood’s approach lies in its 
discussion of its failure to interview or to hire a strik­
ingly well-qualified applicant, Georgia Shaw:

The latter case, that of Miss Shaw, may he puzzling 
on the face of things—one wishes that she had 
testified—but it is not without more the basis for 
a finding of discriminaton.

Brief for petitioners at 71 (emphasis supplied). I t is 
factually clear, however, that only Hazelwood can ex­
plain its reasons for its rejection of her for even an 
interview", and it is legally clear that Hazelwood’s deci­
sion to stand mute on this claim, as on the others, itself 
supports the inference that both she and the others were 
deliberately rejected on racial grounds. This eviden­
tiary principle is both old and basic. Over two hundred 
and seventy years ago, the Court of Queen’s Bench ar­
ticulated i t :

. . . [B Jut if very slender evidence be given against 
him, then, if he will not produce his books, it brings 
a great slur upon his cause.

Ward v. Apprice, 6 Mod. 264, 87 Eng.Rep. 1011 (Q.R., 
1705). Professor Wigmore has stated that the failure 
or refusal to produce a relevant document “ is evidence 
from which alone its contents may be inferred to be un­
favorable to the possessor. . . . ” 2 J. Wigmore, A Trea­
tise on the Anglo-American System of Evidence, § 291 
at p. 187 (3rd Ed., 1940). See also 2 Conrad, Modern 
Trial Evidence, § 960 at p. 169 (1956). This Court noted 
in Interstate Circuit Inc. v. United States, 306 U.S. 208, 
221 (1939), that it is usual, in oases of alleged unlawful 
agreements to restrain commerce, that “ the govern­
ment is without the aid of direct testimony that the 
distributors entered into any agreement”, and that to



20

establish agreement “ it is compelled to rely on infer­
ences drawn from the course of conduct of the alleged 
conspirators.” Following the same principle laid down 
over two hundred years earlier in Ward v. Apprice, 
this Court then held that the antitrust defendants’ fail­
ure to call knowledgeable witnesses:

. . .  is itself persuasive that their testimony, if 
given, would have been unfavorable to appellants. 
The production of weak evidence when strong is 
available can lead only to the conclusion that the 
strong would have been adverse. . . . Silence then 
becomes evidence of the most convincing character.

As a general proposition, Hazelwood’s assertion in 
its brief that teacher selection involves an element of 
discretion which will inevitably reflect the application 
of subjective criteria, states a reality with which few 
would probably quarrel. However, the rubric of “ sub­
jective criteria” cannot be used to mask racially dis­
criminatory hiring practices. In the context of teach­
ing, differences in philosophy might be a valid criterion 
for hiring an applicant. Skin color is not. Hazelwood 
has totally failed to provide an adequate nonracial ex­
planation for its disparate treatment of its black and 
white applicants.6

6 A few limited examples from the record will suffice to demon­
strate Hazelwood’s casual treatment of this crucial issue. Hazel­
wood’s Coordinator of Secondary Education testified:

Q. Well, are there subjective standards also?
A. No, our intangibles are personal.
Q. What would they be?
A. My gosh. You could list many. I mentioned some, voice 

articulation, attitude that the person might detect towards 
kids, towards teaching. You could just go on and on, and say 
that I might see or you might see some things different from 
me, and you and I are sitting across the table from each 
other, and you shake hands with each other. You can begin



21

The relief ordered by the Court of Appeals is care­
fully tailored and amply justified by the school dis­
trict’s purposeful discrimination in interviewing and 
in hiring black teachers, and in limiting its past recruit­
ment efforts to whites. The Court of Appeals did not 
abolish Hazelwood’s use of subjective criteria, but 
merely required that the subjective standards it desires 
to use be made publicly known and be fairly applied. 
The Court of Appeals did not require any recruiting, 
but merely required that there be no discrimination in 
whatever recruiting Hazelwood decides to do. Ho as­
pect of relief is dependent on any showing of uninten­
tional discrimination. There is therefore no occasion for 
this Court to reach the constitutional question.

to evaluate things the way you grab a man’s hand, tells me 
something, and from that point on I begin to look at you from 
a personal point of view.

App. 50-51. The Superintendent of the Hazelwood district testified:
Q. Has Hazelwood ever conducted any analysis of the 

various teaching jobs to see what qualifications should be 
required for each one?

A. No.
Q. Has Hazelwood ever conducted any studies to make sure 

that its practices, procedures and standards result in the 
employment of the best qualified teachers?

A. We have no standards, but we have not conducted any 
studies along this line.

App. 61. The result of this abdication of the school district’s 
responsibilities is predictable: each hiring official does whatever 
he wants, free of any realistic constraint against making improper 
—or racially biased—decisions. The Court of Appeals singled out 
compelling testimony by a principal as to the scope of his dis­
cretion : it “ was like dating a girl, some of them impress you, some 
of them don’t . ” 534 F.2d at 812. Another testified:

Q. Have they explained to you what is meant by best 
qualified ?

A. I t ’s a feeling that a principal has, when he has been 
in charge of a building, we don’t have a barometer to set 
someone up by.

App. 65.



22

II. IN THE EVENT THAT THE CONSTITUTIONAL QUESTION 
IS REACHED, THE EXTENSION TO' STATE AND LOCAL 
GOVERNMENTS OF TITLE VII'S PROHIBITION OF PRAC­
TICES WHICH HAVE A DISPROPORTIONATELY ADVERSE 
RACIAL IMPACT BUT WHICH ARE NOT THE RESULT OF 
A DISCRIMINATORY PURPOSE IS A VALID EXERCISE OF 
CONGRESSIONAL POWER UNDER THE ENFORCEMENT 
CLAUSE OF THE FOURTEENTH AMENDMENT.

The distinguishing feature of Title Y II of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., is its 
prohibition of practices which have a disproportionate­
ly adverse impact on a group and which are not justi­
fied by business necessity, regardless of the presence 
or absence of discriminatory purpose. Griggs v. Duke 
Power Go., 401 U.S. 424, 432 (1971) ; Washington v. 
Davis, supra, 426 U.S. at 246-7; General Electric Co.
v. Gilbert, -----  U.S. ----- , 50 L.Ed.2d 343, 354-55
(1976).

The question Hazelwood seeks to have this Court 
decide is whether the Enforcement Clause of the Four­
teenth Amendment7 authorized Congress to accom­
plish the Amendment’s purpose of ending racial dis­
crimination by States through a means which proscribes 
some actions additional to those directly proscribed by 
the Amendment itself. Amicus urges that the answer is 
in the affirmative.

The scope of the powers granted by the Enforcement 
Clauses of the Civil War Amendments is well illustrat­
ed by reference to the legality of literacy tests for voter 
registration. In Lassiter v. Northampton County Board 
of Elections, 360 IJ.S. 45, 51-53 (1959), this Court held

7 Section 5 of the Amendment states:
5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article.



23

unanimously that, absent proof of discriminatory pur­
pose or of discriminatory administration, ISTorth Caro­
lina’s literacy test for voting did not violate the Four­
teenth or Fifteenth Amendments:

Literacy and intelligence are obviously not synony­
mous. Illiterate people may be intelligent voters. 
Yet in our society where newspapers, periodicals, 
books, and other printed matter canvass and de­
bate campaign issues, a State might conclude that 
only those who are literate should exercise the fran­
chise. .. . We do not sit in judgment on the wisdom 
of that policy. W e cannot say, however, that it is 
not an allowable one measured by constitutional 
standards.
Of course a literacy test, fair on its face, may be 
employed to perpetuate that discrimination which 
the Fifteenth Amendment was designed to uproot. 
No such influence is charged here. On the other 
hand, a literacy test may be unconstitutional on its 
face. In Davis v. Schnell, 81 F.Supp. 872, aff’d 336 
U.S. 933, 93 L.Ed, 1093, 69 S.Ct. 749, the test was 
the citizen’s ability to “ understand and explain” 
an article of the Federal Constitution. The legisla­
tive setting of that provision and the great discre­
tion it vested in the registrar made clear that a 
literacy requirement was merely a device to make 
racial discrimination easy. We cannot make the 
same inference here. The present requirement, ap­
plicable to members of all races, is that the pros­
pective voter “ be able to read and write any sec­
tion of the Constitution of Forth Carolina in the 
English language.” That seems to us to be one fair 
way of determining whether a person is literate, 
not a calculated scheme to lay springes for the citi­
zen. Certainly we cannot condemn it on its face as 
a device unrelated to the desire of Forth Carolina 
to raise the standards for people of all races who 
east the ballot.



24

Then the Voting Eights Act of 1965 was passed, and 
Congress suspended all literacy tests in the areas cov­
ered by the Act, based upon evidence of discriminatory 
purpose or discriminatory administration in some 
areas. § 4(a) of the Act, 79 Stat. 438. When this provi­
sion was challenged, this Court held that an across-the- 
board suspension, even without prior adjudication of 
a particular test’s invalidity because of discriminatory 
purpose or discriminatory administration, was appro­
priate legislation to “ enforce” the Fifteenth Amend­
ment. South Carolina v. Katzenbach, 383 U.S. 301, 333- 
34, 337 (1966).

The ban on literacy tests was extended nationwide by 
§ 201 of the Voting Rights Act Amendments of 1970, 84 
Stat. 315, 42 U.S.C. § 1973aa. Under this amendment, 
no State or political subdivision of a State could escape 
the ban by showing that it had never discriminated in 
voting, and that it had never used any “ test or device” 
in a discriminatory manner or with a discriminatory 
purpose. Despite the legality of such literacy tests under 
the Fourteenth and Fifteenth Amendments in areas, 
such as Arizona, which had never discriminated or tried 
to discriminate, this Court unanimously upheld the new 
right declared by Congress under the Enforcement 
Clause of these Amendments. Oregon v. Mitchell, 400 
U.S. 112,118 (1970).

The impact of the Enforcement Clause power upon 
the scope of the Fourteenth and Fifteenth Amend­
ments rights is clear. In an area which the Court had 
refused to enter because of the limitations on its power 
to define violations of the Civil War Amendments, the 
Enforcement Clause gave Congress the power both to 
define new rights and to provide new means of effect­



25

uating old rights, in order to protect the underlying 
constitutionally declared right to freedom from dis­
criminatory obstacles to voting. Similarly, it is clear 
that not every new voting procedure in a State which 
had formerly discriminated in voting would contravene 
the Fourteenth and Fifteenth Amendments, but this 
Court has held that Congress had the power under the 
Enforcement Clauses to suspend such new procedures 
and to make them unlawful unless the State carries the 
burden of showing that the changes will have neither 
the purpose nor the effect of discrimination in voting. 
South Carolina v. Katzenbach, supra, 383 U.S. at 334- 
35.

From the beginning, the Enforcement Clauses of the 
Civil War Amendments have been held to invest Con­
gress, the branch of government expressly entrusted 
with their enforcement, with the authority both to cre­
ate new rights serving the general purposes of the 
Amendments, and to create new remedies to effectuate 
those rights. To enforce the prohibition of “ involun­
tary servitude” in the Thirteenth Amendment, Con­
gress had the power to enact the anti-peonage statute, 
14 Stat. 546, 18 IT.S.C. § 1581, which extended the defi­
nition of Thirteenth Amendment rights to include com­
pulsory service to secure the payment of a debt, and 
extended the remedy for their violation by providing 
criminal sanctions. Clyatt v. United States, 197 U.S. 
207, 218 (1905). To enforce the prohibitions of the 
Fourteenth Amendment, Congress had the power to en­
act § 4 of the Civil Rights Act of 1875,18 Stat. 336, 18 
U.S.C. § 243, which extended the definition of Four­
teenth Amendment rights to include the right to free­
dom from racial discrimination in service on grand 
juries and trial juries, and provided the remedy of



26

criminal sanctions, and the remedy of removal, for such 
violations. Ex parte Virginia, 100 U.S. 339 (1880); 
Strauder v. West Virginia, 100 U.S. 303 (1880). This 
Court had not itself defined the scope of Thirteenth 
and Fourteenth Amendment rights to include such mat­
ters at the time Congress enacted these provisions, and 
it could certainly never have provided the remedies dis­
cussed above.

Congress, therefore, clearly has the power under the 
Enforcement Clause to define rights under the Four­
teenth Amendment which go beyond those indepen­
dently guaranteed by the Amendment; it clearly has 
the power to alter and shift the burden of proof re­
quired to establish a violation of the rights secured by 
the Amendment; and, it has the power to create new 
remedies, of a kind different from that which the 
courts themselves could create for their violation.8

8 Hazelwood contends that a rule giving Congress the authority 
“ to give substantive, as opposed to remedial implementation” to 
Fourteenth Amendment rights, cf. United States v. Guest, 383 
U.S. 745, 754-55 (1966), may also have the undesirable effect of 
allowing Congress to restrict existing judicially-declared rights 
under the Amendment. Brief at 31, 35.

Unlike the congressional power to “ regulate”  interstate com­
merce which includes the power to grant or withhold protection 
of such commerce, State Bd. of Insurance v. Todd Shipyards Corp., 
370 U.S. 451, 456-57 (1962), the congressional power under the 
Civil War Amendments is only “ to enforce” them. Katzenbach 
v. Morgan, 384 U.S. 641, 651 note 10 (1966) ; Oregon v. Mitchell, 
supra, 400 U.S. at 249 note 31 (Brennan, J . joined by White, J., 
and Marshall, J .), 400 U.S. at 287 (Stewart, J., joined by Burger, 
C.J., and Blackmun, J.) and 400 U.S. at 128-29 (Black, J.). This 
Court previously addressed the same question with respect to the 
Eighteenth Amendment, and held that the concurrent power of 
Congress and of the States to enforce that provision does not 
enable them “ to defeat or thwart the prohibition, but only to 
enforce it by appropriate means.” Rhode Island v. Palmer, 253 
U.S. 350, 387 (1920). Accord, McCormick & Co., Inc. v. Brown, 
286 U.S. 131, 143-44 (1932).



27

The only remaining question is whether the particu­
lar Congressional action in question is appropriate un­
der the Fourteenth Amendment. In essence, does the 
legislation conflict with an express prohibition in the 
Constitution, is the legislation “ adapted to carry out 
the objects the amendments have in view”, and does it 
“ tend[s] to enforce submission to the prohibitions they 
contain.” Ex parte Virginia, supra, 100 U.S. at 345-46. 
Accord, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 
315, 421 (1819); South Carolina v. Katzenbach, supra, 
383 U.S. at 326; Katzenbach v. Morgan, supra, 384 
U.S. at 650; Jones v. Alfred 11. Mayer Co., 392 U.S. 
409, 443 (1968). Of. James Everard’s Breweries v. 
Bay, 265 U.S. 545, 559 (1924).

The holding of Washington v. Davis that purposeful 
discrimination is a required element of a Fourteenth 
Amendment violation did not purport to create a con­
stitutional right in a State to freedom from all judicial 
inquiry as to its employment practices in the absence 
of such a showing. I t merely stated a limit to judicial 
enforcement of the Amendment in the absence of action 
by the branch of government the Amendment had des­
ignated as primarily responsible for its enforcement. 
Compare Lassiter, supra, and South Carolina v. Katz- 
enbach, supra.

On its face, the extension of Title Y!! to State and 
local governments is adapted to carry out the objects 
of the Fourteenth Amendment and to enforce submis­
sion to its prohibition against discrimination. In eval­
uating the propriety of the “ inventive manner” in 
which Congress exercised its authority to end purpose­
ful discrimination in voting by broadly prohibiting 
practices shown to have had a disparate racial impact



in some particular situations, this Court held that such 
legislative action was permissible where Congress had 
a sufficient factual basis for deciding that there was a 
problem of sufficient scope to warrant its intervention. 
South Carolina v. Katzenbach, supra, 383 U.S. at 327, 
329-31. Accord, Katzenbach v. Morgan, supra, 384 U.S. 
at 654-56; Oregon v. Mitchell, supra, 400 U.S. at 132-33 
(Black, J.). In South Carolina v. Katzenbach, this 
Court held that “ Congress . . . may avail itself of in­
formation from any probative source”, and held that 
studies of the U.S. Commission on Civil Bights were 
such a probative source. 383 U.S. at 330.

The legislative history of the Equal Employment Op­
portunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, clear­
ly shows a sufficient factual basis for the extension of 
Title Y II to local and State governments. The U.S. 
Commission on Civil Bights had issued a report in 1969, 
For All the People . . . By All the People: A Report on 
Equal Opportunity in State and Local Government 
Employment, which found extensive employment dis­
crimination by state and local governments, both of the 
purposeful type exemplified by the case at bar and of 
the type involving objective, facially neutral require­
ments adopted in good faith but having a dispropor­
tionately adverse effect on blacks,9 and concluded by

9 The Commission’s findings stated in p a r t:
B arriers to E qual Opportunity 

4. State and local government employment opportunities 
for minorities are restricted by overt discrimination in per­
sonnel actions and hiring decisions, a lack of positive action 
by governments to redress the consequences of past discrimi­
nation, and discriminatory and biased treatment on the job.

(a) A merit system of public personnel administration does 
not eliminate discrimination against members of minorities. 
I t  proclaims objectivity, but does not assure it. Discrimina-



29

recommending the elimination of the exemption of 
State and local governments from the coverage of Title 
VII. Id. at 128. The Senate Committee Report express­
ly relied on this report, and cited its references to forms 
of discrimination not involving discriminatory pur­
pose :

The report’s findings indicate that the existence 
of discrimination is perpetuated by both institu­
tional and overt discriminatory practices, and that 
past discriminatory practices are maintained 
through de facto segregated job ladders, invalid 
selection techniques, and stereotypical misconcep­
tions by supervisors regarding minority group ca­
pabilities. The study also indicates that employ­
ment discrimination in State and local govern­
ments is more pervasive than in the private sector.

S.Rep.Ro. 92-415 (92nd Cong., 1st Sess.) at 10. The 
House Committee Report was substantially similar. H. 
Rep.Ro. 92-238 (92nd Cong., 1st Sess.) at 17,1972 U.S. 
Code Cong. & Admin. News 2137, 2152.

Under the standards established by this Court since 
the passage of the Civil War Amendments, the exten-

tion occurs both in recruiting and in selection among final 
applicants.

(b) Governments have undertaken few efforts to eliminate 
recruitment and selection devices which are arbitrary, unre­
lated to job performance, and result in unequal treatment of 
minorities. Further, governments have failed to undertake 
programs of positive action to recruit minority applicants, and 
to help them overcome barriers created by current selection 
procedures.

(c) Promotional opportunities are not made available to 
minorities on an equal basis by governments that rely on 
criteria unrelated to job performance and on discriminatory 
supervisory ratings.

For All ike People at 119. Its Conclusion made the same point at 
131-32.



30

sion of Title V II to State and local governments was 
appropriate legislation under the Enforcement Clause 
of the Fourteenth Amendment.

CONCLUSION

The judgment of the United States Court of Appeals 
for the Eighth Circuit should be affirmed.

Respectfully submitted,

R obert A. M urphy  
R ichard S. K ohn  
R ichard T. S eymour 

L awyers’ Committee for 
Civil R ights U nder L aw 

733 15th Street, E.W. 
Washington, D.C. 20005 

Attorneys for Amicus Curiae