Morrow v. Crisler Brief for Appellants
Public Court Documents
March 10, 1972
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Brief Collection, LDF Court Filings. Morrow v. Crisler Brief for Appellants, 1972. 3d3dddcc-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e1f6ad79-fb8d-4b67-b149-9b2ee23a1e09/morrow-v-crisler-brief-for-appellants. Accessed July 13, 2025.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH C±kCUIT
No. 72-1136
WILLIE L. MORROW and JEROME MANGUM,
individually and on behalf of all
others similarly situated,
Plaintiffs-Appellants-
cross-appellees,
versus
GILES W. CRISLER, Commissioner of
Public Safety of Mississippi, et al.,
Defendants-appellees-
cross-appellants.
Appeals from the United States District Court
for the Southern District of Mississippi
BRIEF FOR APPELLANTS
FRANK R. PARKER
March 10, 1972 CONSTANCE IONA SLAUGHTER
Lawyers' Committee for
Civil Rights Under Law
233 North Farish Street
Jackson, Mississippi 39201
Attorneys for Appellants
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 72-1136
WILLIE L. MORROW and JEROME MANGUM,
individually and on behalf of all
others similarly situated,
Plaintiffs-Appellants-
cross-appellees,
versus
GILES W. CRISLER, Commissioner of
Public Safety of Mississippi, et al.,
Defendants-appe1lees-
cross- appellants .
Appeals from the United States District Court
for the Southern District of Mississippi
CERTIFICATE REQUIRED BY FIFTH CIRCUIT LOCAL RULE 13(a)
The undersigned, counsel of record for appellants,
certifies that the following listed parties have an interest in
the outcome of the case. These representations are made in
order that Judges of this Court may evaluate possible disqualifr-
ua uj-uu c-'jl jouibuan l uoj ^gl_l i\uic j_ \ a. / *
Plaintiffs and identified plaintiff class member:
Willie L. Morrow, Jerome Mangum, Owen G. Coker.
Defendants: Governor of Mississippi, Commissioner
of Public Safety, Chief of Patrol, Personnel Officer
of the Mississippi Department of Public Safety.
Other: State of Mississippi, and all employees of
the Mississippi Department of Public Safety.
FRANK R. PARKER
Attorney of record for appellants.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE
Page
ii
1
3
A. Proceedings Below 3
B. The Decision Below 3
C. The Issues On Appeal 11
D. Jurisdiction 14
ARGUMENT
I. THE DISTRICT COURT ERRED IN
DENYING PLAINTIFFS SPECIFIC
RELIEF IN THE FORM OF EMPLOYMENT
OFFERS, BACK WAGES, AND OTHER
BENEFITS. 15
A. The Proper Legal Standard 16
B. The Defense 17
C. Plaintiffs' Evidence 21
D. Checking Back 23
E. The Rights of Plaintiffs to
Specific Relief 24
II. THE DISTRICT COURT ERRED IN FAILING
TO ORDER AFFIRMATIVE HIRING RELIEF
FOR MINORITY PERSONS AS A CLASS. 28
A. The Weight of Authority in This
and Other Circuits. 29
B. The Rationale For Aflirmative
Class Relief in This Case. 33
C. The Available Affirmative Remedies 38
III. THE DISTRICT COURT ERRED IN FAILING
TO ENJOIN THE ADMINISTRATION OF
UNVALIDATED EMPLOYMENT TESTS. 42
IV. THE DISTRICT COURT ERRED IN FAILING
TO GRANT ATTORNEY'S FEES AT THE RATE
REQUESTED BY PLAINTIFFS. 44
V. THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO GRANT DEFENDANTS'
MOTION TO MODIFY JUDGMENT. 48
CONCLUSION 52
\
-l-
TABLE OF AUTHORITIES
CASES PAGE
Ackermann v. United States, 340 U.S. 193, 71
STCFTTO9 , 9T'T7rEcTr“r0T-C19 50) . .......................... 50,52
Annat v. Beard, 277 F.2d 554 (5th Cir. 1960) ,
cert, denied, 364 U.S. 908 (1960) . . . . . , . . . , . .49
Armstead v. Starkville Munv Sep. School Dist.,
3T5~~F. Supp. 5F0 (N. D . Miss". TT7T7 I 7~7 . . . . . . . . 44
Arrington v. Massachusetts Bay Transo. Auth.,
w f . suPp T ^ T 5 T ^ i i r ^ i ^ r T ‘9T¥r“rT~r". . . . . . . . .44
Baker v. Columbus Mun. Sep. School Dist., 329
F. Supp. 706.(N7d7 Miss. 157TJ 7 ~ 44
Bowe v. Colgate-Palmolive Co., 416 F.2d 711
C7th cTFrrroT) : . . . ........... .. .27,35
Bradley v. School Bd. of City of Richmond, Va.,
5T f .r .D7*~TS“T e7d 7~W7_TT7T1 I I ; 1 ) I ~. . . . . . .45,46
Camp v. Boyd, 229 U.S. 530, 33 S.Ct. 785, 57
L.Ed. T3T7 (1913) . . . . . . . . . . . . .26
Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th
Cir. IFT0T7 certT d'eniecTT-"400 U.S. 951 (1970) . . . . . 34
Carter v. Gallagher, 452 F.2d 327 (8th Cir. 1972)
Ten banc77 reversing in part 452 F.2d 315
(1971) , affirming In part and reversing In
part 3 EPD 1[ 8205 (D. Minn. 1971). . . . . . . . . . . .30,37,40,44
Chambers v. Hendersonville City Bd. of Educ.,
o c a xn ->a t_oo rum mu TTTcTc'i emu iwrvrv i a 1 1
Chambers v. United States, 451 F.2d 1045 (Ct. Cl. 1971) . . . . . 41
Clark v. American Marine Corp., 437 F.2d
959 (5th Cir. 19 7lTT~af firming 320 F. Supp.
709 (E.D. La. 1970) . . . . . . . . . . . . . . . . . . . 45
Clark v. American Marine Corp.T 304 F. Supp. 603
[E.D. LiT“T970T ........ ............................... 45
Contractors Ass'n of Eastern Pennsylvania v. Secretary
of~Labor, 442 F.2d 15rT5^~ClK~TJ7IT~. . . . . .41
Colbert v. H-K Corp., 444 F.2d 1381 (5th Cir. 1971)........ 42
Culpepper v. Reynolds Metal Co., 442 F.2d 1078
"7.5th Cir. 1971) 7™. . . ................................ 27
-ii-
Dyer v. Love, 307 F. Supp. 9 74 (N.D. Miss. 1969) 45
Fears v. Burris Mfg. Co. , 4 EPD Ijf 7535, 7536 (5th
Cir. 1T7T7 .......................... .............. .. .45
Ferrell v. Trailmobile, Inc., 223 F.2d 697 (5th Cir.
' T 3 3 3 ) --- ~ ... - ' * “ 49t *
Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct.
BH, 28- L(Ed.'2d 138 (1971) . . . . . . . . . . . . . . . 42,44
Harkless v. Sweeny Independent School Dist., 427
F.2d 319 (5th Cir. 1970), cert, denied, 400
U.S. 991 (1971) ............................ .. . . . .. . 27
Hicks v. Crown Zellerbach Corp., 310 F. Supp. 536
TE.D. La.~T3701 . 7 . 41,44
Horton v. Lawrence Co. Bd. of Educ., 449 F.2d 793
T3EE Cir7 137X7 ~ ~ . . . . . . . . . . . . . . . . . 27
Interstate Circuit, Inc. v. United States, 306
---3757 2337 59 EX CTE7~~7r67, 8TT7:X37~5TD~T1939) . . . . . . . 22
Jenkins v. United Gas Corp., 400 F.2d 28 (5th
CxrT 196U7 — ....................... .. . . 35
Johnson v. Georgia Highway Express, Inc., 417 F.2d
ITZZ (5tF~CTFr'r9^97 TT~TT~7 . . . . . . . . . . . . .27,34
Klapprott v. United States, 335 U.S. 601, 69 S.Ct.
387T7 33 L.F^r~2W~TTTW) . . . . . . . . . . . . . . . .50
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) . . . .45,47
Lee v. Macon Co. .Bd. of Educ. (Muscle Shoals
School Svs tem), No'. 71-2963. 5Tfi Ci'r. . Dec. 28. 19 71 3 6.26
Lee v. Southern Home Sites Corp., 444 F.2d 143
(5 th CTf 7 1'97I)~ . . . . . . 7 . . . . . ........... .. . .45
Local 53, Asbestos Workers v. Vogler, 407 F.2d
T0T7 (5th CxrT 7T559) .............................. . . 25,29,35,39,4
Local 189, United Papermakers v. United States, 416
F.Zd 980 (5th Cir. 1969), cert, denied, 397
U.S. 919 (1970) ........ ............................. . ?2
Louisiana v. United States, 380 U.S. 145, 85 S.Ct.
"5T7TT3 L.Ed72'd"T0'9" (TF6 5) . . . . . . . . . . . . . . . 29
Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 1971) . . . . . 45
McFerren v. Co. Bd. of -Educ. of Fayette Co. , 4 EPD
li 7532 (6Xh Cir. 1972T~7 ; 7 7~~............... . . . .
-iii-
Miller v. Amusement Enterprises,
— rsth.cirT 1970) . . r . . . .
Inc., 426 F.2d 534
45
Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90
---37ct. F T O T ^ ^ lTe d."2d '393 (1970). . ........... .. 45
NAACP v. Allen, No. 3561-N, M.D. Ala., Feb. 10, 1972 . . . 32,40
NAACP v. Thompson, 357 F.2d 831 (5th Cir. 1966),
cert. denied, 385 U.S. 820 (1966) . . . . . . . . . . . .37
Newman v. Piggie Park Enterprises, 390 U.S. 400, 88
STCt. 9’ETT~T§ L . Ed. 2d 1263 (IT68) . . . . . . . . . . . . 45
Norman v. Young, 422 F.2d 470 (10th Cir. 1970) . . . . . . 49
Parham v. Southwestern Bell Telephone Co., 433 F.2d
421' (8th Cir. 1970) . . . . .~T'T~T~T............... . .16,35,45,4 7
Penn v. Stumpf, 308 F. Supp. 1238 (N.D. Cal. 1970) . . . . .34
Perkins v. Mississippi, No. 30410, 5th Cir., Jan.
T4~ 19 72 ........ .............. .. 37
Pettway v. American Cast Iron Pipe Co., 411 F.2d
99 8 (5th Cir. 19 691 \ . .............27
Ridley v. Phillips Petroleum Co., 427 F.2d 19 (10th
~Clr. 19 70T“7~'. . . . .................................... 50
Rinieri v. News Syndicate Co., 385 F,2d 818 (2d
CirT 19 67) . . 7 . . T 7 “. .............................. 52
Rios v. Enterprise Assn. Steamfi'ttersy Local 638, 326
F. SuppTTTg (s.D.N.Y. T57TJ T ........ .. . . . .
1 • -T- _ _ -i •_ m ---- a a a rn n
AUU1HO UJ.i V • JJUXXJ.A uj. C<. • / -a. ~i * u. « t~4
CirT "197lJ~’liert:̂ filed, 40 U.S.L.W.
(9/28/71) ............... ..
Rolfe v. Co. Bd. of Educ, 391 F.2d 77
•7 O '1 I A +-V,
3251
(6th Cir. 1968)
Singleton v. Jackson Mun. Sep. Sch. Dist., 419 F.2d
T2TlTT5th crFTT5W) (en~banc) , cert, denied, 396
U.S. 1032 (1970) .......... . . . . . . . . . .
Strain v. Philpott, 331 F. Supp. 836, 4 EPD
1111 7521, 7562 (M.D. Ala. 1971) . . . . .
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. l7~_9T_sTct7 1267, 28 L.Ed.2d 554 (1971).
United States ex rel. Tillery v . Cavell, 294 F .2d
12 (3d Cir. 196TT) cert, denied, 370 U.S.
945 (1962) ....................................
25
. 27,35
. 16
16
32
30
49
-xv-
United States v. Central Motor Lines, Inc. , 325 F.
Supp. 478 (W.D.N.C. 1970) . . . . . ................... 25
United States v. City Of Jackson, 318 F.2d 1
(5th Cir. 1963), on rehearing 320 F.2d 870 . . . . . . . 37
United States v. Frazer, 317 F. Supp. 1079 (M.D.
Ala. 1 9 7 0 ) ..................... ‘........... .. 32,39
United States v. Georgia Power Co. , 3 EPD 1i 8318
(N.D. Ga. 1971) . . . . . 7 T ........................... 46
United States v. Hayes Intern11 Co'rp. , 415 F.2d 1038
(5th Cir. 1969) . . . 7 7. . . . . . . . . . . . . . . .32,38
United States v. Hayes Intern'! Corp., No. 71-1392,
5th Cir., Feb. 22, 19 72 . . . . ~........ .. 31
United States v. IBEW, Local No. 38, 428 F.2d
144 [6th Cir. 1970), cert, denied, 400 U.S. 943
(1970)........................................ 29
United States v. Jacksonville Terminal Co., 451 F.2d
418 (5 tin "Cir. 1971) cert, filed, 40 U.S.L.W. 3379
(2/7/72) . ............. 32,43,44
United States v. Jefferson Co. Bd. of Educ., 372
F.2d 836, aff'd en banc, 380 F.2d 385 (5th Cir. 1967)
cert, denied, 389 U.S. ’840 (1967) . . . . . . . . . . . .16,35
United States v. Ladner, 238 F. Supp. 895 (S. D.
Miss. 1 9 6 5 ) .............................................. 23
United States v. Local 86 Ironworkers, 443 F,2d
544 (1971), cert, denied, 40 U.S.L.W. 3264 (11/19/71). . 30,41
United States v. Pickett's Food Service, 360 F.2d 338
(5th. Cir. 19 66) . . . . . . . . . . . . . . . . . . . . JZ
United States v. Sheet Metal Workers, 416 F.2d 123
(8th Cir. 1969) ......................................... 29
United States v. Woodall, 438 F.2d 1317 (5th Cir. 1970)
(en banc) ~ . . . ............................ 23
Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir. 1971) . . 31
-v-
Statutes and Regulations Page
28 United States Code
§ 1291 • • • • ................................ 15,48
§ 1 3 3 1 .......................................... 4
§ 1343 . ............................ 4
§ 2201 ................................................................4
§ 2202 ................................. 4
42 United States Code
§ 1981 . . . . . . . . . . . . . . ............ 4,7
§ 19 82 . . . . . . . . . . . . . . . . . . . . 4
§ 1983 ........................ .. 4,7,27
Title VI, Civil Rights Act of 1964, 42 U.S.C.
§ 2 0 0 0d . . . . ' . ............................... 4
Title VII, Civil Rights Act of 1964, 42 U.S.C.
§ 2Q00e . . . . . . . . . . . . . .... * * * 26 and passim
42 U.S.C. § 2000e-2 (j) . . . . . . . . . . . . 31
42 U.S.C. § 2000e--5 (g) . . . . . . . . . . . . 26
Mississippi Code
§ 4 065.3 (Re comp .1956). * * .........* • *37
§ 8665 (4) (Re comp.1956) . . . . . . . . . . . 2 3
Mississippi Classification Law,
§§ 8935-01 to 8935-14 (Supp. 1971) . . . . . 43
Miss. Laws, 1938, ch. 143 • ................. .. 5
Equal Employment Opportunity Commission,
Guidelines on Employee Selection Procedures,
2T_cTFTirrT6WT~T~':^ r~7 r~. . . . . ~ : “ . . .43,44,53
Executive Order No. 11246, 3 C.F.R. 402 (1970) • • • 41
Federal Rules of Appellate Procedure
Rule 3(a) ................................. 49
Federal Rules of Civil Procedure
Rule 7 ( b ) ...................................... 49,50
Rule 2 3 ........................... - . . . . 33
Rule 52(a)............ .......................17
Rule 59(a) ................... . . . . . . . . 50
Rule 59(e) . . ................. .............. 44
Rule 60(a) .. ............. .................. 49
Rule 60(b)................................. * 48-51
Rule 65(d)......................................-vi-
Office of Federal Contract Compliance, Guidelines
on Employee Selection Procedures, 35 Fed. Reg. 19307
(Oct. 2, 19 71) .......................................44
Other Authorities
Cooper and Sobol, "Seniority and Testing Under
Fair Employment Laws: A General Approach to
Objective Criteria in Hiring and Promotion,"
82 Harv. L. Rev. 159 8 (1969) ............... .. 42
C. McCormick, Evidence (1.954) . .......................... 23
7 Moore, Federal Practice (2d ed. 1970) . . . . . . . . . 49
Note, "Developments in the Law--Employment Discrimi
nation and Title VII of the Civil Rights Act of
1964," 84 Harv. L. Rev. 1109 (1971) .................... 41
Note, "Legal Implications of the Use of
Standardized Ability Tests in Employment
and Education," 68 Colum. L. Rev. 691 (1968). . . . . . 42
2 Wigmore, Evidence (3d ed. 1940) . . . . . . . . . . . . 22
-vxi-
Page
TABLE OF AUTHORITIES ii
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1
STATEMENT OF THE CASE 3
A. Proceedings Below 3
B. The Decision Below 3
C. The Issues On Appeal 11
D. Jurisdiction 14
ARGUMENT
I. THE DISTRICT COURT ERRED IN
DENYING PLAINTIFFS SPECIFIC
RELIEF IN THE FORM OF EMPLOYMENT
OFFERS, BACK WAGES, AND OTHER
BENEFITS. 15
A. The Proper Legal Standard 16
B. The Defense 17
C. Pxaintiffs' Evidence 21
D. Checking Back 23
E. The Rights of Plaintiffs to
Specific Relief 24
II. THE DISTRICT COURT ERRED IN FAILING
TO ORDER AFFIRMATIVE HIRING RELIEF
FOR MINORITY PERSONS AS A CLASS. 28
7\ rnl-, TYT/~\ 4 /-tT-i 4- -P 71 in 4-Vi /s 4 4- . » -» nTU 4 —•
and Other Circuits. 29
B. The Rationale For Affirmative
Class Relief in This Case. 33
C. The Available Affirmative Remedies 38
III. THE DISTRICT COURT ERRED IN FAILING
TO ENJOIN THE ADMINISTRATION OF
UNVALIDATED EMPLOYMENT TESTS. 42
IV. THE DISTRICT COURT ERRED IN FAILING
TO GRANT ATTORNEY'S FEES AT THE RATE
REQUESTED BY PLAINTIFFS. 44
V. THE DISTRICT COURT WAS WITHOUT
JURISDICTION TO GRANT DEFENDANTS'
MOTION TO MODIFY JUDGMENT. 48
CONCLUSION 52
TABLE OF CONTENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 72-1136
WILLIE L. MORROW and JEROME MANGUM,
individually and on behalf of all
others similarly situated,
Plaintiffs~appellants-
cross-appellees,
versus
GILES W. CRISLER, Commissioner of
Public Safety of Mississippi, et al.,
Defendants-appellees-
cross -appellants .
Appeals from the United States District Court
for the Southern District of Mississippi
BRIEF FOR APPELLANTS
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the plaintiffs and one member of the
plaintiff class, who were refused application forms to apply
for patrolman positions on the all-white Mississippi Highway
Patrol, were subjected to the defendants' pattern and practi
of racial discrimination in hiring and employment practices
and therefore are entitled to offers of employment, back pay
for wages lost, and other financial benefits and emoluments
lost as a result of one defendant's refusal to provide them
with application forms.
2. Whether, having found that the defendants and
their predecessors engaged in unlawful racially discriminatory
employment practices up to the eve of the trial resulting in
the total exclusion of blacks from other than the most menial
service positions since 1938, the district court erred in
failing to order affirmative hiring relief for qualified black
persons as a class to overcome the effects of past discrimination.
3. Whether, having found that the defendants had used
as a condition of employment with the Highway Patrol intelligence
and spelling tests which had not been validated for a relationship
with good job performance, the district court erred in failing to
order an unequivocal prohibition against the use of unvalidated
employment tests as a condition for employment.
4. Whether the amount of the award of attorney's fees
was adequate as a matter of law and on the facts presented,
especially when it is inconsistent with uncontradicted evidence
on the record showing the average s Lcmuard hourly for civil
cases in the area.
5. Whether the district court had jurisdiction to grant
a motion for relief from judgment to exempt defendants from the
terms of the final injunction in filling certain specified positions,
while these appeals were pending, when the motion failed to allege
an adequate reason for relief from judgment, or any reasons at
all, and when the defendants failed to meet their burden of proof,
or to present any evidence at all, why the motion should have been
granted.
2-
STATEMENT OF THE CASE
This is an appeal in an affirmative suit for equitable
relief on behalf of two black plaintiffs and those similarly
situated who were refused application forms to apply for
positions on the all-white Mississippi Highway Patrol and who
were otherwise denied equal employment opportunities with the
Patrol and the Department of Public Safety. The district court
granted partial judgment for the plaintiffs, but failed to grant
specific relief to the unsuccessful black applicants, sufficient
affirmative relief by way of minority preference or quota hiring
to overcome the effects of past discrimination, an unequivocal
prohibition against the use of unvalidated employment tests, or
adequate attorney's fees. Further, after the final judgment had
been rendered, the district court modified it to exempt several
important positions from the terms of the decree.
A . Proceedings Below
Plaintiffs Willie L. Morrow, a black Vietnam veteran
with police experience j_n the; Air Force, and Jerome Manmim. a
black college student, unsuccessfully sought application forms
to apply for patrolman positions at the Personnel Office of the
all-white Mississippi Highway Patrol on June 1, 1970 (Morrow),
June 4, 1970 (Morrow and Mangum) and on June 12, 1970 (Mangum)
1/
App. 47-172. Believing that they had been refused application
forms because of their race, they commenced this action on July
1/ The abbreviation "App." refers to pages in the Appendix
filed in this appeal.
-3-
J2/
30, 1970 on behalf of themselves and all others similarly situated
seeking declaratory and injunctive relief against racial discrimi
nation in hiring and other employment practices by the Highway
Patrol and the Mississippi Department of Public Safety, of which
the Highway Patrol is a part. Their complaint alleged Federal
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 to secure
rights guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution, 42 U.S.C. §§ 1981 through 1983, and
because Federal funds had been granted to the Patrol, Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Declaratory relief also was requested under 28 U.S.C. §§ 2201
and 2202. App. 1-13.
The defendants are the Governor of Mississippi, the
chief executive officer of the state who has general supervisory
authority over the Department and Patrol (App. 441), the
Commissioner of Public Safety, the chief executive officer of
the Department and Patrol (id.), the Assistant Commissioner of
Public Safety who is also the Chief of Patrol (App. 441-42), and
the Personnel Officer of the Department and Patrol responsible
ror personner puixcitb auu ijiuucuuj.cd . £App. 112) .
The district court on February 12, 1971 denied motions
to dismiss the action and for summary judgment in an opinion
holding that the district court had jurisdiction of the parties
and the subject matter of the complaint, that the complaint met
2/ The district court in its final decision defined the class
to include "all qualified Negroes who have applied or will apply
in the future for employment with the Mississippi Department of
Public Safety and/or the Mississippi Highway Safety Patrol, all
the present Negro employees of the Department and the Patrol,
and all future employees of the Department and the Patrol."
App. 462.
-4-
the requirements of a Federal class action, that the defendants
were not immune from the action, and that the allegations of the
plaintiffs and the statistics presented precluded summary judg-
-1/ment (Opinion R. 104, Order R. 125). The defendants answered
on February 19, 1971 admitting the race and residence of the
plaintiffs and the official capacities and responsibilities of
the defendants, but denying the other material factual and
legal allegations of the complaint (App. 16-19), A motion
for preliminary injunction to freeze new white hiring pending
final decision was denied on June 10, 1971 when the defendants
agreed to postpone an imminent recruit training class and
finally to provide the black applicants with application forms
(Opinion R. 355, Order R. 358).
In the absence of an agreement between the parties to
settle the lawsuit, a final hearing was held on June 28 and 29,
1971, The plaintiffs produced 33 documentary exhibits, including
depositions and employment statistics contained in answers to
interrogatories, which were admitted in evidence, and the testimony
of six witnesses: (1) and (2) plaintiffs Morrow and Mangum, who
testified regarding the refusal of defendant Snodgrass to provide
them with application forms for patrolman positions in June,
1970, and again on June 1, 1971 (3) Owen Glenn Coker, a black
Vietnam combat veteran who was turned down in his requests to
defendant Snodgrass for application forms in January and April,
1971, (4) Gary E. Brown, a native white Mississippian who
3/ The abbreviation "R." refers to pages in the Record on
Appeal. The decision of the district court denying defendants'
motion to dismiss is reported at 3 CCH Employment Practices
Decisions (hereinafter "EPD") 1[ 8119.
-5-
succeeded in obtaining an application form from the Patrol
personnel office in early June, 1970, (5) Edwin N. Williams,
a white Mississippi newspaper reporter who called Highway Patrol
headquarters in June, 1970, regarding the availability of
application forms and was told he coul'd go down to the head
quarters and pick one up, and (6) Aaron E. Henry, president
of the Mississippi State Conference of the National Association
for the Advancement of Colored People and life-long resident of
Mississippi, who testified regarding the reputation of the
Highway Patrol for racial discrimination in employment.
The defendants produced five documentary exhibits
showing for the first time a written policy banning discrimina
tion in hiring and employment, which had been issued in writing
a week before the trial, and called two witnesses, defendant
Commissioner of Public Safety Giles W. Crisler and defendant
Personnel Officer Charles E. Snodgrass, who denied the charges
of racial discrimination in hiring practices but failed to offer
any explanation for the statistics presented.
The United States through the Civil Rights Division
of the Department of Justice had been permitted to participate
amicus curiae by order signed June 1, 1971 and filed a memorandum
supporting plaintiffs' case but offered no evidence.
B . The Decision Below
The district court found that the Mississippi Highway
_4/
Patrol, established in 1938 , has never in its history employed
a black person as a sworn officer even though blacks have always
comprised a substantial percentage of the state's population
4/ Miss. Laws, 1938, ch. 143.
-6-
and currently represent 36.7 percent of the total (1970 Census)
5/
(App. 450). As of April 15, 1971, the court found that of the
27 bureaus within the Department of Public Safety, only two--the
Maintenance Bureau and the Training Academy— had any black
employees at all, and these were employed in the most menial
positions as janitors in the Maintenance Bureau and cooks at
the Training Academy. The employees of all the other bureaus
within the Department all were white, including all clerical
and secretarial personnel and sworn officers. The Department
employed a total of 743 persons, and only 17 of these, the
janitors and cooks, were black, and these statistics had been
the same since 1968. The defendant administration since January
1, 1968, had hired 107 persons for patrolmen, all of whom were
white. App. 450-51.
The Court held that these statistics, unrebutted and
unexplained by the defendants, showed "a pattern and practice
of racial discrimination in hiring and employment practices,
albeit unintentional, in violation of the Fourteenth Amendment
to the United States Constitution and 42 U.S.C. §§ 1981 and
03 .̂Hpp . *2 u u / .
The district court also found racial discrimination
in the recruitment, selection and training of applicants.
"Favoritism and partiality have been shown to those applicants
[hired for positions with the Department and the Patrol] having
relatives, friends and acquaintances on the all-white Patrol"
5/ At the time of trial the Patrol had an estimated 378 sworn
uniformed white officers (Crisler testimony, App. 280).
-7-
and the court found this to be a factor accounting for the
racial composition of the Department and Patrol (App. 457).
The application forms used by the Department and Patrol required
the listing of the applicants' relatives employed by the State
and his friends and acquaintances employed by the Patrol, and
of the 107 whites hired as patrolmen during the defendant
administration, all but twelve listed friends or acquaintances
employed by the Patrol and forty-two listed relatives employed
by the State (App. 455). Concerning recruiting, the court found
that although there were television and radio stations and
newspapers which reached a large portion of the black community
in Mississippi, neither the Department nor the Patrol had
advertised the availability of jobs in any of those media or
in any other news media in the State (id.). Most of the presently
employed patrolmen learned of vacancies and the acceptance of
applications through word of mouth communications from incumbent
patrolmen who were their friends or relatives, and the majority
of the clerical positions in the Department were filled by walk-
ins, many of whom were recommended by incumbent employees (App. 454).
The court further determined that the officers of the
Public Relations Bureau carried on a recruitment program by
presenting speeches and programs for civic clubs, church groups,
and student groups throughout Mississippi, and that included in
those programs were presentations on the employment opportunities
and qualifications for positions with the Department and Patrol.
The audiences for such programs have been predominantly white.
Further, prior to the trial the Public Relations Bureau had
shown to groups of students as part of career day programs a
film on the operations of the Law Enforcement Officers Training
Academy in which all the recruits, officers, instructors, and
-8-
other Academy personnel were white except the black cooks and
food servers in the cafeteria. App. 455-56.
On the issue of testing, the district court found that
the defendants had required applicants for patrolmen positions
to pass two tests, the Otis Quick Scoring Mental Ability Test
and an oral spelling test of which no record is kept, neither of
which "has been validated to determine whether there is a
significant correlation between high scores on the test and good
performance as a patrolman" (App. 453).
Prior to the promulgation of a new regulation resulting
from this lawsuit, the Department of Public Safety had no written
rules or regulations prohibiting the use of derogatory racial
terms or epithets by patrolmen, and terms such as "nigger" had
been used by patrolmen in addressing blacks (App. 456).
Finally, the court found that black persons had been
discouraged from applying for positions with the Department and
Patrol because these agencies "have had a reputation throughout
the State of Mississippi, and particularly among the Black
communities, as being an all-White Department and Patrol" because
-P 4_U ^ —IT „-U 4 -U -------------1 i J _ < - . ■> — -■
w WJ_ u x c r a t i U X a u u <J J_ "UXie
bias shown toward applicants having relatives, friends and
_§/acquaintances on the Patrol force (App. 457).
6/ The evidence also shows that black people in Mississippi are
not only aware of the racially discriminatory hiring policies of
the Patrol, but also view the Patrol as a repressive force of the
white community against the black community, which image also would
deter applications from blacks. The Mississippi Commission on Law
Enforcement, the state law enforcement planning agency appointed
by the Governor, approved in its 1970 report the conclusion of a
study by the International Association of Chiefs of Police, which
defendant Commissioner Crisler also approved by his affirmative
vote for adoption, which states:
"A synthesis of the opinion of the Negro
community about the Mississippi Highway
Safety Patrol seems to suggest that it,
-9-
On cn O jL> ci S X S OX
admitted by defendants (see Pre-Trial Stipulation of Facts
(Tr. Ex. P-8) par. 7 ) and uncontradicted in the record, the
district court entered a detailed decree which declares the
rights of the plaintiffs and plaintiff class and enjoins
defendants and their successors in office from discrimination
against black applicants or employees in hiring, training,
assignments, transfers, promotions or discharges. The court also
ordered a five-year freeze on hiring qualifications and standards,
prohibited preferences or favoritism toward friends or relatives
of incumbent employees, ordered discontinuation of visual aids
implying a whites-only hiring policy in recruiting, required
notice and advertising to the black community prior to filling
new vacancies, required recruitment at black educational
institutions, prohibited use by Department employees of deroga
tory racial epithets, and required extensive record-keeping to
insure compliance with the decree. APP- 475.
(cont1d)
too, represents in the Negro mind
another repressive force of the white
community. This feeling appears to be
based upon several factors. One, already
mentioned, is that the Highway Patrol has
appeared as a secondary police force at the
scene of disturbances in which Negroes,
and particularly young Negroes, were the
focal point of attention. A second cause
for the feeling is based upon the allegation
that there is differential treatment of
Negroes in the manner of enforcement of
traffic laws by the Highway Safety Patrol.
This appears to be particularly acute in
the rural areas of the state. A third
reason for the feeling would be that the
Highway Safety Patrol is an all-white
institution. It is acknowledged by most
people concerned that no significant effort
has been made to integrate the Patrol."
(App. 2 87-88).
-10-
C. The Issues On Appeal
In spite of the overwhelming statistical and other
evidence demonstrating a pervasive general policy of the defendants
of denying equal employment opportunities to black applicants
and employees, the district court held that plaintiffs Morrow and
Mangum had not been discriminated against because of race when
they were denied application forms, but that this refusal was
solely because of an employment freeze or embargo in force and
effect during that period caused by a lack of funds to hire new
employees (App. 462-63) . The court also found, however, that
the three applicants, Morrow, Mangum and Coker "met all objective
prerequisites and requirements to permit them to apply for member
ship on the Patrol" (App. 445), that the application forms of
patrolmen hired during the defendant administration contained six
v(actually eight) applications bearing dates within the period of
this so-called embargo (App. 447), that the defendant Personnel
Director Snodgrass admitted accepting the completed application
form of a white applicant, Richard B. Peden, only three days
7/ The collection of aDDlication forms of appl i wnt-s for- ps-t-rn) -
man positions who have been hired since January 1, 1968 (Trial
Exhibit P-11) shows the names of the following whites with the
indicated dates of their applications for patrolman positions:
Clyde Dennis Faust
Chelsie Wayne Miller
Tommy Gail Walters
Larry Wayne Muse
James Clyde Wall
Richard Breeland Peden
Dennis Wayne Abel
Joseph Samuel Gonce
March 9, 1970
March 16, 1970
April 23, 1970
May 4, 1970
May 7, 1970
June 15, 1970
September 17, 1970
September 17, 1970
These forms are reproduced in the Appendix, pp. 500-507. All of
these applicants were enrolled in the September, 1970 recruit
training class and subsequently appointed to patrolmen positions.
See defendants' answers to plaintiffs' second interrogatories,
par. 11 (Tr. Ex. P-15).
-11-
after denying Mangum an application and eleven days after denying
Morrow an application (App. 449), and that three months after
refusing application forms to blacks the defendants had convened
an all-white recruit school of twenty-two white recruits (some
of whom had applications bearing dates within the so-called
embargo period) "without notice to the Court or the plaintiffs"
(App. 436). The court also denied specific relief to the plaintiffs
on the basis 'of testimony that defendant Snodgrass had requested
them to return to his office in September, 1970 and they had failed
to do so (App. 463).
Also in its final order the court denied plaintiffs'
request for affirmative hiring relief in the form of a minority
preference or a racial quota system that would increase the number
of blacks on the Patrol to approximate the percentage of blacks
in the state as a whole. (Judgment % D, App. 483). The court
failed to give any specific reasons in its decision for refusing
to grant this requested relief.
The provisions of the final order regarding tests do not
require validation of all tests administered to applicants for
p o s i t w i t h the Department or Patrol. In par. 2(b) of the
order, the court banned the use of any standardized general
intelligence test or the Otis Quick Scoring Mental Ability Test
"or any other tests which have not been validated nor proved to
be significantly related to successful job performance, but
simultaneously in the same paragraph required that all tests be
conducted in compliance "with the regulations adopted by the
[Mississippi] Classification Commission, including the giving of
examinations which are standard nationally approved tests that
are administered in an objective manner" (App. 477-78). The
-12-
regulations of the Mississippi Classification Commission, if
they exist, do not appear in the record and the decree does not
require validation of MCC-approved unvalidated tests.
The court in its final decree awarded counsel for the
plaintiffs only $500 in attorney's fees in the absence of any
record on hours spent on the case or the standard hourly rate
in the area (App. 483). Plaintiffs then filed a motion to amend
judgment to increase the amount of the award to $6060 and supported
the motion with an itemization of time spent on the case, which
was not contested by defendants, and affidavits showing the general
hourly rate ($30 per hour) charged by attorneys for civil cases in
the Jackson area (App. 488-93, 496-97). The defendants responded
with affidavits showing the standard rate allowed by the state on
state legal work performed by private attorneys ($15 per hour) and
the hourly rate charged by one attorney on criminal cases appealed
to the state supreme court ($15 per hour) (App. 494-96). The
court denied plaintiffs' request to assess at the $30 per hour
rate, but did alter its judgment to assess at the $15 per hour
rate, increasing the award to $3000 (App. 498).
__ _ n i____ j._i_ — ~ - r -P 4 4- r-< f t n o 1 -in r lrrm o r\ +-
I l i iC C UiO UJ- on J ------------------ ------ j - ------ •
and after the notices of appeal and cross—appeal haa been filed,
the district court modified its judgment without the presentation
of any additional evidence and over the objections of the plaintiffs
to exempt filling the positions of Commissioner of Public Safety,
Assistant Commissioner of Public Safety (Chief of Patrol) Chief
Investigator, Director of the Law Enforcement Officers Training
Academy, Assistant Director of the Law Enforcement Officers Training
Academy, eight positions on the Governor s security force, and
-13-
the Executive Secretaries to the Commissioner and Assistant
Commissioner from the terms of the order, except that a simple
ban on racial discrimination in filling these positions was
_8/
retained. As a practical matter, this exemption of these
positions relieves defendants in filling these positions from
the decree's prohibitions on: use of unvalidated tests, applying
new standards or qualifications fox* five years, use. of application
forms encouraging nepotism or showing favoritism toward relatives
or friends of incumbent employees, filling positions without prior
advertising designed to reach the black community, and use of
derogatory racial terms and epithets, and also frees defendants
from record-keeping showing who has applied and the action taken
on applications, promotions, and discharges in these positions.
No reasons were given for the necessity of this modification of
the final judgment either in the motion filed by -the defendants
or in the order allowing these exemptions.
D. Jurisdiction
The district court rendered its final decision
granting part of the relief requested by plaintiffs on September
29 , 1971 (App. 432-74), reported at 4EPD 1[ 7563), and a conforming
Judgment and Order For Declaratory and Injunctive Relief was
entered on October 18, 1971 (App. 475-84, reported at 4 EPD
1[ 7541). Within 10 days of the final order, plaintiffs filed their
__§/ The motion for relief from judgment and the district court's
order granting the motion are included in the Addendum attached
hereto, Exhibits B and C.
-14-
motion to amend judgment on the issue of attorney's fees (App.
488), and on November 30, 1971 an order was entered increasing
the amount of the award of attorney's fees (App. 498) (reported
at 4 EPD 1[ 7584). Plaintiffs appealed from the final judgment,
as amended, on December 21, 1971 (R. 494), and the defendants
filed a cross-appeal on January 3, 1972 (R. 495). Subsequently
on January 13, 1972, the defendants filed their motion to modify
the judgment to exempt five executive, eight security force, and
two secretarial positions from the detailed compliance provisions
of the order (R. 499) and that motion was granted in an order
modifying the final judgment entered on January 14, 1972 (R. 502).
Plaintiffs took a second appeal from this Order on February 11,
1972.
The Court has jurisdiction of these appeals as
appeals from final orders pursuant to 28 U.S.C. § 1291.
ARGUMENT
I. THE DISTRICT COURT ERRED IN DENYING
PLAINTIFFS SPECIFIC RELIEF IN THE FORM
OF EMPLOYMENT OFFERS, BACK WAGES, AND
OTHER BENEFITS.________________________
The district court erred in failing to require defendants
to offer plaintiffs (and plaintiff class member Coker) recruit
positions in the next recruit training class, back wages lost as
a result of the refusal of the defendants to provide them with
application forms, and other benefits plaintiffs would have
gained if they had been allowed to apply and accepted for enroll
ment in the September, 1970, recruit training class. This error
15-
is based on the failure of the district court to apply the
appropriate legal standard to judge the facts presented and
the clearly erroneous factual conclusions resulting from the
failure to apply the proper legal standard.
A. The Proper Legal Standard
The finding of the district court that Morrow, Mangum,
and Coker were not denied applicationforms to apply for Patrol
positions because of their race is inconsistent with its holding
that the defendants were guilty of a "pattern and practice of
racial discrimination in hiring and employment practices" (App.
466). A strong statistical showing of a pervasive general
policy of racial discrimination in the hiring of blacks furnishes
a "strong inference" that a black applicant rejected during this
period was refused employment for racial reasons. Parham v.
Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir.
1370). This court repeatedly has held in the teacher employment
cases that when a black teacher or principal suffers adverse
administrative action with regard to his employment, and when
the educational processes had historically been segregated, the
_£/
V\ 1 1 ’V"* ̂ (71 n f~ \ "P n 'Vv (~i T •»—%/"■» ~! VN f t f VI 1" V-N M P 1 v-1 ^ J- /-> w. r-4 -1— — — J — \ - — _ »
onto the defendant state agency to prove that its adverse
employment action is non-discriminatory. Lee v. Macon Co. Bd.
of Educ. (Muscle Shoals School System), No. 71-2963, 5th Cir. ,
Dec. 28, 1971 (slip op. at 19); United States v. Jefferson Co.
Bd. of Educ., 372 F.2d 836, 895, aff’d en banc, 380 F.2d 385
(5th Cir. 1967), cert, denied, 389 U.S. 840 (1967). Accord:
Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189 (4th
Cir. 1966) (en banc); Rolfe v. Co. Bd. of Educ., 391 F.2d 77
9/ Singleton v. Jackson Mun, Sep. Sch. Dist., 419 F.2d 1211
(5th Cir. 1969"), cert, denied, 396 U.S. 1032 (1970).
-16-
(6th Cir. 1968). Under these circumstances the defendant state
agency with a prior history of racial discrimination must show
by "clear and convincing evidence" that its action was taken for
other than racial reasons. Chambers, supra, 364 F.2d at 192.
The defendants in this case, whose discrimination (and
that of their predecessors) goes back to 1938 and who failed to
comply with the mandate of the Constitution until forced to do so
by litigation, stand in the same position and should be judged by
the same standards applied to other state agencies in the above-
cited cases. The district court in this case, by failing to draw
the required presumption of racial discrimination from the failure
of the defendants to perform the simple act of providing these
black applicants with application forms, failed to apply the proper
9 a/
legal standard in judging the facts presented.
B . The Defense
Judged by the proper legal standard, what "clear and
convincing evidence" have the defendants presented to show that
their refusal for one year (up until June, 1971) to provide plain
tiffs with application forms to apply for Patrol positions was
justified for other than racial reasons? Their defense is that
when the plaintiffs visited the Personnel Office and requested
application forms to join the all-white Highway Patrol there just
happened to be in effect for the first time anyone can remember,
App. 289-90 (Crisler); App. 381-82 (Snodgrass), an employment
freeze or embargo on the hiring of new patrolmen and other
personnel. The testimony of the defendants is vague and
9a/ And therefore its findings of fact on this issue are not
insulated from full review by the "clearly erroneous" restriction
of Rule 52(a), F.R. Civ. P. United States v. Jacksonville Terminal
Co., 451 F.2d 418 (5th Cir. 1971), cert, filed, 40 U.S.L.W. 3379
(2/7/72); United States v. Pickett's Food Service. 360 F.2d 338,
341 (5th Cir. 1966).
-17-
contradictory on the details of this alleged freeze, Commissioner
Crisler testified that this freeze was instituted "about the
middle of the year," May or June or "somewhere thereabouts"
(App. 290) and ended "after July, somewhere thereabouts" (id.).
Personnel Director Snodgrass, on the.other hand, testified that
the freeze commenced "in February or early March, I think it was
the latter part of February" (App. 318) and ended on June 30 to
replace clerical personnel (App. 358) and in the latter part of
July for patrolman positions (App. 367).
Commissioner Crisler initially testified that he
instructed Snodgrass "to cease employing and accepting applica
tions on anyone" (App. 291) but later changed his testimony to
say that he "advised him .[Snodgrass] to stop employment and I
assume that would be the same as not accepting applications too"
(App. 292, emphasis added). There is nothing in Commissioner
Crisler's testimony to indicate that he specifically conferred
with Snodgrass or instructed his personnel officer either to
cease accepting or giving out applications or that he even under
stood the freeze to include an embargo on distributing applications,
ana tns wanness dvuiutiu i_luu3 on that rscuc (App.
10/
291-97). Snodgrass initially testified on direct examination
that it was the "decision of the Commissioner" (App. 320) not
to give out any applications during this period, but then changed
his testimony to say that it was "a joint idea" (id.) and then
10/ The district court found that the Commissioner of Public
Safety "did not specifically instruct Snodgrass not to give out
any application forms" (App. 447).
-18-
changed his testimony again on cross-examination to say that
not giving out applications was his own idea, that he discussed
it with the Commissioner, and that the Commissioner specifically
approved the alleged policy of not giving out any new applica
tion forms (App. 354-55).
The defendants testified that all these alleged actions
and instructions were made orally, and nothing about this alleged
hiring freeze was reduced to writing (App. 293 (Crisler), App. 354
(Snodgrass)). The defendants called no witnesses from the
financial department to support the testimony that the freeze
was required by lack of funds, which testimony from the defendants
admittedly was vague and incompetent (App. 355-56), and the
defendants' testimony was not corroborated by anyone not a
defendant who could give independent testimony that the freeze
existed or that anyone other than the plaintiffs had been
refused application forms.
The Director of the Public Relations Bureau, Thomas G.
Sadler, whose bureau handles, among other things, the recruitment
program of the Department of Public Safety and Highway Patrol,
~ n ^ 4̂ ^ ■>-. -̂3 +- <-< * o 4- T3 +- o m e n 4- g r~t rR -{- g 4~ 1 f l p f l TTl h*S.Cv
deposition that as far as he knew there have never been any
employment embargoes or freezes on hiring for the Highway Patrol
(Sadler dep., June 3, 1971, Tr. Ex. P-1, pp. 14-15).
Even if the Highway Patrol was precluded for lack of
funds from hiring any new personnel at the time the plaintiffs
requested application forms, the Record does not reveal any good
reason why a freeze on new hiring prevented the defendants upon
plaintiffs' request from handing out application forms which
could have been returned when the freeze was lifted and new
-19-
hiring resumed. Snodgrass testified that at the time plaintiffs
requested applications from him he had the forms available in
his office (App. 350) and there was no physical reason preventing
him from giving the forms to the plaintiffs (App. 364). Snodgrass'
stated reason for the alleged freeze on giving out applications
was that when he took office as Personnel Director there were in
the files between one and two thousand pending applications for
Patrol positions, which he then threw away, and he did not want
to create another backlog or build-up of applications for six or
eight months during a hiring freeze which would have required
each application to be up-dated for current information at the
end of the freeze (App. 316-20). But even this concern did not
preclude the defendant from offering the plaintiffs application
forms to permit them to collect the documents required with
instructions to return them with current information in September,
or whenever the new fiscal year began and the freeze lifted.
Further, and to negate the entire defense, Snodgrass
admitted in his testimony that his alleged policy did not prevent
him from giving preferential treatment to a white applicant,
Pickard B. Peden , whose a p p l I p a t - i n n h o s c lm i h h o d l v- a r p p n t p r l o n n r
about June 15, 1970, three days after refusing plaintiff Mangum
an application form and eleven days after refusing plaintiff Morrow
an application form (App. 336-38, 358-64). After accepting
Peden's completed application form "as a courtesy to a fellow
officer" also white, who handcarried the application to Snodgrass,
Snodgrass put it in his desk drawer and processed it "when we
began processing other applications" (App. 338) apparently without
any up-dating before Peden was enrolled in the September, 1970
recruit class. This testimony on Snodgrass's part is tantamount
-20-
to an admission of racial discrimination on the part of the
11/
Department's Personnel Officer.
Such is defendants' case. Judged by the proper legal
standard which the district court should have applied, defendants
have failed to rebut by "clear and convincing evidence" the
necessary presumption that their failure to px'ovide plaintiffs
with application forms was part of the over-all "pattern and
practice of racial discrimination in hiring and employment
practices" which the district court found to exist. In fact,
Snodgrass's admitted preferential acceptance of Peden's applica
tion at the same time he was denying plaintiffs application forms
negates the defense and further reinforces the presumption.
C. Plaintiffs' Evidence
This conclusion of racial discrimination, then, can be
reached even without a detailed analysis of the testimony of
plaintiffs' white witnesses which, without explanation, is not
discussed in the decision of the district court. At the same
time the plaintiffs were refused application forms for Patrol
employment, Gary E. Brown, a native white Mississippian, requested
as a test and did receive from a secretary in the Personnel Office
at Patrol headquarters in Jackson .an application form for Patrol
employment (App. 198-211). Similarly, Edwin N. Williams, a
reporter for the Greenville Delta-Democrat Times and also a
white Mississippian, called Patrol headquarters on June 19, 1970,
11/ Both defendants admit that when the new hiring commenced,
after this lawsuit had been filed and the defendants had been
served with process, no effort was made to contact the plaintiffs
to offer them application forms to allow them to be enrolled in
the September, 1970, all-white recruit training class (App. 307-
OS, 380).
-21-
and was told by an officer in the Public .Relations Bureau
that he could go down to Patrol headquarters and pick up an
application and that it did not have to be filled out there
(App. 211-223). Their testimony is consistent with the finding
of the court regarding defendants' policy of discrimination and
is uncontradicted and unimpeached in the record.
The district court's failure to apply the proper legal
standard is perhaps most strikingly illustrated by its treatment
of the most recent application forms of white persons hired for
patrolmen positions, six of which bear dates between February
and July, 1970 (App. 500-507). Snodgrass testified that there
was no regular procedure: governing dates on applications, and
that the date on the application could reflect "the day he [the
applicant] got it [the application form], the day he filled it
out or the day he mailed it in and in some instances when he
forgets to date it, I put a date on it [when it is received, as
in Peden's case]" (App. 336). Three of the four possible
explanations for the dates on the applications support the
inference of racial discrimination, and the district court
should have required the defendants to rebut the inference by
direct evidence. Since the defendants failed to produce their
own patrolmen to testify regarding the circumstances of their
applications, which they had the power to do, the only rational
inference is that such testimony would have been adverse to
defendants' case. Interstate Circuit, Inc, v. United States,
306 U.S. 208, 226, 59 S.Ct. 467, 83 L.Ed. 610 (1939); 2 Wigmore,
Evidence §§ 285-91 (3d ed. 1940).
-22-
D. Checking Back
The district court, in denying specific relief to the
plaintiffs, placed great emphasis on the testimony that Snodgrass
asked them to return to his office in September and they failed
12/
to do so, against the advice of their attorney. First, if they
were denied application forms in June, 1970, because of their race,
which the Record clearly shows, then they had no obligation, after
the lawsuit was filed, further to test the defendants' discrimina
tory policy. As Jerome Mangum put it, "If I went back in September
I would still be black" (Tr. 124). Second, although there is
evidence that Snodgrass may have asked the plaintiffs to return in
September, his own testimony reveals that he gave them no specific
assurances that they would receive application forms if they did
so: "He [Morrow] was told as all the rest of them were, that he
could check back the first part of September and we would probably
know something by then." (App. 327). (Emphasis added.) In response
to two leading questions by the district judge, Snodgrass served
his own cause by assuring the court that if the plaintiffs had
t — - — i - t 2 — ^ s .X . J r * - f t ^ 1 4- V i r v r l i n l - n r*f~\ 11 y 4-
X. £* / W V L-J. J. *-> U—L U i i v j w x - / j v * . * * . - / - — — — _ — -
required the plaintiffs to testify on cross-examination regarding
conversations with and advice from their attorneys on whether they
should repeat their futile visits to Patrol headquarters in
September, 1970, (App. 110-11, 160). This testimony is hearsay
and immaterial, and the ruling of the district judge requiring
plaintiffs to testify to advice from counsel regarding litigation
strategy violates the privilege of the client to refuse to dis
close confidential communications between himself and his attorney.
C. McCormick, Evidence, ch. 10, esp. § 100 (1954). See Miss. Code
§ 8665(4); United States v. Ladner, 238 F. Supp. 895 (S.D. Miss.
1965). This is not an instance where disclosure may be required
on grounds of waiver of privilege by prior voluntary disclosure
or because of a challenge to the effectiveness of counsel or the
performance of his duties, United States v. Woodall, 438 F.2d
1317 (5th Cir. 1970) (en banc), upon which the district court
apparently relied in overruling the objection (App. Ill, 160).
-23-
"checked back" in September they would have been given application
forms and would have been processed for enrollment in the recruit
training class which began September 20 (App. 324-25). But these
retrospective assurances at the time of trial are contradicted
and impeached by the more contemporary affidavit of Snodgrass
himself, executed on August 24, 1970, and filed with the court on
September 17, 1970, in which he implied that the next recruit class
was full and unequivocally stated:
"Any person desiring to make application to become
a uniform [sic] member of the Highway Patrol would
be discouraged from doing so at this time, but upon
their insistence would be allowed to do so. A
prospective applicant would be informed that there
is no hope for his employment within the next six-
month period and advised to recheck with the
personnel office after six months." App. 14.
If the plaintiffs were denied application forms for
Patrol employment because of their race, they are entitled to
specific relief regardless of their failure to "check back" in
September after their suit had been filed. Further, even if
they had checked back in September, the evidence on file with the
court at that time indicates that they would "be discouraged"
from applying and that there would be "no hope" for employment
E . The Rights of Plaintiffs To Specific Relief
The district court in its decision specifically held
that Morrow, Mangum and Coker at the time of their requests for
application forms "met all objective prerequisites and require
ments to permit them to apply for membership on the Patrol"
(App. 445). Defendant Snodgrass, the Personnel Director, after
carefully listening to all the testimony in the case, admitted
that he knew of nothing which would disqualify the plaintiffs
-24-
from applying for or being trained and hired for patrolmen
positions (App. 35Q-51). He also testified that there were white
applicants who had been accepted for training in the September,
1970, recruit training class who were less qualified by way of
prior police experience and educational background than the
plaintiffs and Coker (App. 391).
(1) Employment offers. Black applicants for employ
ment who have not been allowed to apply or who have not been
hired because of a policy of racial discrimination in hiring
are entitled to specific relief, including offers of the first
available employment for which they are qualified. This Court in
Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir.
1969), held that requiring the defendant union immediately to
admit four minority group applicants into membership and to
refer nine others for work was appropriate specific relief to
rectify the union's discriminatory admissions and referral
practices. Similarly, in United States v. Ironworkers Local 86,
443 F.2d 544 (9th Cir. 1971), cert, denied, ___ U.S. , 40
U.S.L.W. 3264 (Nov. 19, 1971), the Ninth Circuit approved a decree
n r r l b r i yq rr V n n 1 r l i n r r n r v r i p f v - i
referrals to previous racial discriminatees along with an affirma
tive recruiting program. The preliminary injunction issued in
United States v. Central Motor Lines, Inc., 325 F. Supp. 478 (W.D.
N.C. 1970) required the employer to hire six black drivers
"promptly", apparently within two weeks from the date of the order.
Also, Rios v. Enterprise Assn, Steamfitters, Local 638, 326 F.
Supp. 198 (S.D. N.Y. 1971) (preliminary injunction requiring union
to admit three plaintiff applicants to full membership); Clark v.
American Marine Corp., 304 F. Supp. 603 (E.D.La. 1969) (reinstate
-25-
ment of plaintiffs required after discriminatory refusal to
rehire) .
Offers of employment are not only required in cases
arising out of violations of Title VII of the Civil Rights Act
13/
of 1964, but also in instances of employment discrimination
by state agencies, as in the teacher discharge cases where this
Court uniformly has required school boards to reinstate discrimi-
nated-against teachers and principals to their former positions
or to equivalent positions within the school system. See, e.g.,
Lee v. Macon Co. Bd. of Educ. (Muscle Shoals School System),
supra. It is not enough that the defendants merely have agreed
to process the now completed application forms of Morrow, Mangum,
and Coker, if they retain the discretion not to enroll them in
the next recruit training class: "A court of equity ought to do
justice completely, and not by halves." Camp v. Boyd, 229 U.S.
530, 551, 33 S.Ct. 785, 57 L.Ed. 1317 (1913).
(2) Back pay and other lost benefits. When persons
have been denied employment for racial reasons, equity requires
that they be restored to the financial position in which they
WCllicl U CXV'"' ”U X. JC* J-U— ------1.. T-----------------------.------J3-----------------I ~ 1 ml____T_________ _ _
award is not punitive in nature, but is equitable relief designed
to restore the recipients to the economic status they would have
attained but for the wrongful acts of the defendant. Thus back
pay awards are expressly authorized in Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e(5)(g), where they are "an
integral part of the statutory equitable remedy" for relief from
employment discrimination, Johnson v. Georgia Highway Express, Inc.,
13/ 42 U.S.C. § 2000e et seq.
-26
417 F.2d 1122, 1125 (5th Cir. 1969), and are normally granted
to successful plaintiffs in such cases. Culpepper v. Reynolds
Metal Co., 442 F.2d 1078 (5th Cir. 1971); Pettway v. American
Cast Iron Pipe Co. , 411 F.2d 998, 1007 (5th Cir. 1969);
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971)
cert, filed,40 U.S.L.W. 3251 (9/28/71); Bowe v. Colgate-
Palmolive Co., 416 F.2d 711 (7th Cir. 1969). Back pay awards
and other equitable financial relief also are part of the
"comprehensive remedy" of 42 U.S.C. § 1983, invoked here, "for
the deprivation of federal constitutional and statutory rights."
Harkless v. Sweeny Independent School Dist., 427 F.2d 319, 322
(5th Cir. 1970), cert, denied, 400 U.S. 991 (1971). See also,
Horton v. Lawrence Co. Bd. of Educ., 449 F.2d 793 (5th Cir. 1971)
McFerren v. Co. Bd. of Educ. of Fayette Co., 4 EPD <j[ 7652 (6th
Cir. 1972); cf. Chambers V. United States, 451 F.2d 1045 (Ct. Cl.
1971) (applicant discrimination violative of Federal Executive
14/Order). Thus plaintiffs are entitled to the wages, seniority,
insurance and retirement benefits and the other emoluments of
office they would have received had they been allowed to
i u i ciiiwx jjccu aC u-c; va. r u i cao jju lxuxiucu j-ii
September, 1970, and subsequently hired in patrolmen positions.
14/ During 1970 and 1971 patrolmen were paid $400 per month
during recruit training and $490 per month after appointment.
Pre-Trial Order, Stipulations of Fact (Tr. Ex. P-8) par. 7(10).
-27-
II. THE DISTRICT COURT ERRED IN FAILING TO
ORDER AFFIRMATIVE HIRING RELIEF FOR
MINORITY PERSONS AS A CLASS.___________
The district court in its final order denied the
request of plaintiffs for such affirmative hiring relief as would
require the defendants to increase the number of black officers on
the Highway Patrol, by minority preference or a racial quota
system, so that the percentage of blacks on the Patrol would
not significantly differ from the percentage of blacks in the
population of the state (36.7 percent) (judgment, par. D, App.
483). The court in its memorandum decision did not specifically
give any reasons for denying this relief. The denial apparently
was based on the representation of defendants that between the
trial and the date of the decision defendants had begun processing
application forms from 29 white applicants and 5 black applicants
and the court's finding that the defendants "have now begun
to take many steps toward and have made substantial progress in
promulgating policies and programs designed to insure equal
treatment to citizens of all colors . . (App. 461-62) a
* C f c r C v ,n A +- vn -v- /-> — 4- -v- -i o 1 nvoTm il r t a f i on n -f w r i f f p n n n l i C'i P> c;
prohibiting racial discrimination in employment practices.
Neither the fact that defendants may formally have
abandoned some of their racially discriminatory practices
during the course of litigation nor the finding that defendants
are now making "substantial progress" toward complying with
Federal constitutional guarantees should deter Federal courts
from exercising their duty where necessary to render a decree
requiring such affirmative action as will eliminate all the
-28-
effects of past discrimination. United States v. IBEW, Local
No. 38, 428 F.2d 144 (6th Cir. 1970), cert, denied, 400 U.S.
943 (1970); Local 53, Asbestos Workers v. Vogler, 407 F.2d
1047, 1055 (5th Cir. 1969) ; cf. United States v. Sheet Metal
Workers, 416 F.2d 123 (8th Cir. 1969).
A. The Weight of Authority in This and Other
Circuits.________________________
The district court, by refusing to require affirmative
hiring relief for the class of discriminatees, under the circum
stances of this case abused its discretion by failing to follow
the teachings of the Supreme Court, applied in the employment
discrimination cases, that district courts have "not merely the
power but the duty to render a decree which will so far as
possible eliminate the discriminatory effects of the past as well
as bar like discrimination in the future." Louisiana v. United
States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965).
The relevant decisions in this and other circuits generally hold
that where the discriminatory employment practices of an employer
over a period of time result in an absence of, or severe dispro-
force or in certain job categories, district courts have a duty
to order affirmative employment relief to the disadvantaged class
to overcome the present effects of prior discrimination.
Thus, the Eighth Circuit in a very recent en banc
decision in a challenge to the discriminatory employment practices
of the all-white Minneapolis Fire Department, reversed a decision
of a panel of that court vacating a district court order requiring
defendants to give an absolute preference in new hiring to 20
-29-
minority applicants, and ordered the defendants to follow a one-
for-two hiring ratio (one minority group person for every two
whites hired) until 20 qualified minority group persons had been
hired. Carter v. Gallagher, 452 F.2d 327 (8th Cir. Jan. 7, 1972),
modifying and affirming 3 EPD i! 8205 (D. Minn. 1971). The full
court based its decision on the following considerations: (1) the
approval given by the Supreme Court in recent school cases to
mathematical ratios as "a starting point in the process of shaping
a remedy," Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1, 25, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); (2) the reputation
of the fire department in the black community for discrimination
in hiring practices, deterring black persons from applying without
assurances that blacks would be hired on more than a token basis;
(3) the testing procedures, used to rank applicants for considera
tion, which had not been validated to show any relationship to
successful job performance; and (4) while a one-to-one hiring
ratio might be required in areas with substantial minority
population, a one-to-two ratio would be more suitable to
Minneapolis conditions (6.4 percent minority, 4.4 percent black).
O 4 -w> 4 1 —n -v * 1 x -r 4— V T -I w 4- V n /'"* 4 4 - i - -i -w-N -T T-*-^ J — —̂ -L- ^
86 Ironworkers, 443 F.2d 544 (1971), cert, denied, 40 U.S.L.W.
3264 (Nov. 19, 1971) affirmed as necessary to overcome past
discrimination a district court order which, inter alia, ordered
three unions to establish "special" apprenticeship programs to
train overage and experienced blacks and to fill future training
classes to insure 30 percent black participation to the extent
that qualified blacks are available. See 315 F. Supp. 1202, esp.
-30-
at 1247-48 (W.D. Wash. 1970). The court also followed the weight
of authority in rejecting the defendants' contentions that such
relief established "racial preferences" in violation of the anti
preference prohibitions of Title VII of the Civil Rights Act of
1964 f 42 U.S.C. § 2000e~2(j) .
In ordering affirmative hiring relief to the class of'
discriminatees, these circuits generally have been following the
lead of this Court set in the landmark Vogler decision, supra, in
which the Court sustained a district court injunction ordering, in
addition to immediate union admission and work referrals for
thirteen named individuals, one-for-one work referrals to provide
job opportunities previously denied minority group persons. In
its recent decision reviewing an adjustment to the procedures for
referring white worker's , the Court once again sustained the one-
for-one referral system as within the power of the court "to shape
remedies that will most effectively protect and redress the
rights of Negro victims of discrimination." Vogler v. McCarty,
Inc., 451 F. 2d 1236 (5th Cir. 1971).
This Court repeatedly has held that although an employer
m a y have abandoned discriminatory employment practices ana aaoptea
racially neutral employment criteria, even these criteria are
inadequate if they perpetuate or fail to eliminate the present
effects of prior racial discrimination. In these circumstances
district courts have the duty to grant affirmative relief to the
class of persons formerly discriminated against to eradicate the
present effects of prior discrimination: "Affirmative action is
necessary to remove these lingering effects." United States v.
Hayes Intern'1 Corp., No. 71-1392, 5th Cir., Feb. 22, 1972 (slip
-31-
opinion at 7, emphasis added). See Also, United States v. Jackson
ville Terminal Co., 451 F.2d 418 (5th Cir. 1971) cert, filed, 40
U.S.L.W. 3379 (2/7/72) ; Local 189, United Fapermakers v. United
States, 416 F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919
(1970); United States v. Hayes Intern11 Corp., 415 F.2d 1038
(5th Cir. 19 69) .
The most recent district court decision in this circuit
bearing on the issue presented in NAACP v. Allen, Nos. 3561-N,
2709-N, M.D. Ala., Feb. 10, 1972, opinion and order attached. A
black applicant who had been refused an application form and other
plaintiffs succeeded in proving on facts similar to this case a
"blatant and continuous" pattern of racial discrimination in hiring
by the Alabama Department of Public Safety, both as to state
troopers and supporting personnel. Correctly finding that courts
have the duty to eliminate the present effects of past discrimina
tory practices which have "permeated the Department of Public
Safety's employment practices", the district court ordered an end
to discrimination, one-for-one hiring until the state police force
is 25 percent black, training courses to include 25 percent black
participation, and one-for-one hiring fox' clerical, score taxrai,
and other supporting personnel. See also, Strain v. Philpott, 331
F. Supp. 836, 4 EPD UK 7521, 7562 (M.D.Ala. 1971) (ordering 50
percent black hiring ratio) and United States v. Frazer, 317 F.
Supp. 1079 (M.D.Ala. 1970) (ordering temporary appointments in
ratio of black to white population).
To summarize, most of the courts to consider cases of
employment discrimination have held that the duty of Federal
courts to eliminate the effects of past discrimination includes
the duty to fashion affirmative relief for minority persons as
32-
a class which guarantees, through a minority preference or
remedial quota, employment opportunities for the previously
deprived class. The courts have held that this affirmative
class relief should be provided despite (or possibly consistent
with) evidence that the defendants have abandoned their past
discriminatory practices, have adopted facially neutral criteria,
and are attempting in good faith to comply with the law, and also
in conjunction with (and not relying exclusively on) other
affirmative programs which include publicity and recruitment in
the black community. When such programs are designed to overcome
past discrimination, they are not preferential to the disadvantage
of whites, but are only remedial toward achieving a goal which
would have obtained but for the illegal discrimination. The
weight of authority in this and other circuits regarding the
requirements of affirmative relief dictates a modification of the
district court's order.
B. The Rationale For Affirmative Class
Relief In This Case
(1) The notion of the class action. The district
court permitted the plaintiffs uo maintain this suit as a class
action as provided by Rules 23(a) and 23(b)(2), F.R. Civ. P.
15/
(App. 462).
15/ Plaintiffs in their complaint defined the plaintiff class
to include
"all qualified Negroes who have applied or will in
the future apply for employment with the Mississippi
Department of Public Safety and/or the Mississippi'
Highway Safety Patrol, all qualified Negroes who have
been deterred from applying for employment with the
Department and Patrol because of its racial composi
tion and reputed discriminatory hiring policies, all
present Negro employees of the Department and Patrol,
and all future Negro employees of the Department and
Patrol." App. 2.
-33-
Inherent in the principle of a class action is the notion that
if there has been discrimination against the class, which the
district court found to exist, then the members of the class
are entitled to specific relief, in this case, designed to
overcome the effects of the past discrimination and to redress
the effects of the class discrimination. If individual plain
tiffs who have been refused employment are entitled to specific
relief by way of offers of the next immediately available employ
ment for which they are qualified, as this Court regularly has
held, then the members of the class likewise should be entitled
to specific.relief and assurances of employment beyond mere
notice to the black community that application forms are now
available.
The denial of affirmative hiring relief to the class
of discriminatees is inconsistent with the numerous decisions
of this Court allowing employment discrimination cases to be main
tained as class actions in which plaintiffs, whatever their position
(applicants, discharged employeed, etc.), may mount "an 'across the
board' attack on unequal employment practices." Johnson v. Georgia
Highway Express. Tnp. ciinra , 417 F.2d at 1121; Carr v. Conoco
Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), cert, denied, 400 U.S. 951
(1970) . As in the school desegregation cases, racial discrimination is
15/ cont'd
Although the district court deleted the above-underlined portion
from its definition of the plaintiff class, it did find that the
Patrol's reputation had deterred blacks from applying (App. 457),
and plaintiffs' definition of the class should be proper. Compare,
Penn v. Stumpf, 308 F. Supp. 1238, at 1239-40, n. 1 (N.D. Cal. 1970),
allowing a class action on behalf of minority group members "who
would be eligible for employment but are unaware or unable to
accept such opportunities because of the discriminatory recruiting
Program surrounding selection of police officer appointees."
-34-
a class wrong, and calls for a class remedy. United States v.
jefferson Co. Bd. of Educ., supra, 372 F.2d at 866. The remedies
in employment discrimination cases "should be broadly read and
applied so as to effectively terminate the practice and make its
victims whole," Bowe v. Colgate-Palmolive Co., supra, 416 F.2d
at 721, Robinson v. Lor11lard Corp,, supra, 444 F.2d at 803. The
mandate to remedy discrimination should not be restricted to
providing specific relief to the plaintiffs only, as evidenced
by the cases allowing individual black plaintiffs to maintain
their class actions and to seek affirmative class relief even
though their own claims have been rendered moot/ Jenkins v. United
Gas Corp., 400 F.2d 28 (5th Cir. 1968), or have been proved
unfounded, Parham v. Southwestern Bell Telephone Co., supra.
2. The built-in headwinds. Despite the fact that the
defendants have been enjoined from discriminatory practices and
required to give notice of this to the black community, there is
no guarantee that blacks actually will be recruited and hired for
Department and Patrol positions. In fact there remain built-in
headwinds" encouraging white hiring and discouraging black hiring
and giving deienaants the opportunity covertly +-0 subvert the
purposes of the injunction. See Local 53, Asbestos Workers v.
Vogler, supra, 407 F.2d at 1055. First, the Patrol remains all-
------ 16/
white. It is well-known, and was proved in this case, that
motivation to apply for Patrol positions tends to come from
friendly contacts and the "image" of the Patrol. Although
nepotism and favoritism toward friends by the defendants have
16/ See depositions of J. W. Abies, Tr. Ex. P-4, pp. 6-7,
and Walter R. Tucker, Tr. Ex. P-2, p.5.
-35-
been enjoined, it remains likely that those with friends or
relatives on the force, and whites generally, will be more
encouraged to apply and blacks less encouraged to apply because
of this "image" factor.
Second, although the district court ordered the defendants
to undertake recruiting efforts at as many predominantly black
colleges, junior colleges, and high schools within the state "as
nearly as feasible and practicable" (App. 481), the Public
Relations Bureau, which is charged with this recruiting responsi
bility, remains all-white, and this is likely to undermine the
credibility of the recruiting efforts. For example, the Assistant
Director of the Public Relations Bureau, Walter R. Tucker,
admitted in his deposition that he would like to see the Highway
Patrol remain all-white (Tr. Ex. P-2, p. 23), and such attitudes
may effect the results of these recruiting efforts.
Third, it remains to be seen how the injunction will
affect hiring decisions, for example, when officials will have to
choose between equally qualified black and white applicants. Prior
to the final order, the defendants indicated that apart from the
statutory requirements, they were looking for "the right kind of
n —» f±JJ
people"", admittedly a subjective standard. The fact that the
persons who will in the future make final decisions on hiring
will be white, and will undoubtedly have in their minds a notion
of 'the right kind of person" (which cannot be controlled by court
order) is likely to operate as a built-in headwind against blacks.
17/ In his deposition Personnel Director Snodgrass described
"the type of people we are looking for":
"First of all we are looking for those people that
fit those statutory requirements. And then we are
looking for people who are law enforcement oriented,
who have a sincere desire to become a highway patrolman.
To summarize it, I guess you'd say we are looking for
the right kind of people." Snodgrass dep., Tr. Ex. P-7,
pp. 8-9.
-36-
3. The bad reputation. No chancellor's edict can
eliminate from the minds of the black, community of Mississippi
the reputation of the Highway Patrol that it is an all-white
institution (App. 457). It was the opinion of the International
Association of Chiefs of Police, endorsed by the Governor's
Commission on Law Enforcement, that the Mississippi Highway Patrol
"represents in the Negro mind another repressive force of the
white community" (App. 287). This Court judicially knows that for
years the Highway Patrol in Mississippi has been one of the
principal enforcing agents of Mississippi's "steel-hard, inflexible,
undeviating official policy of segregation." United States v.
City of Jackson, 318 F.2d 1, 5 (5th Cir. 1.963), on rehearing, 320
F.2d 870. See NAACP v. Thompson, 357 F.2d 831 (5th Cir. 1966),
cert, denied, 385 U.S. 820 (1966); Miss. Code § 4065.3 (Kecomp. 1956)
(repealed April, 1970); Perkins v. Mississippi, No. 30410, 5th
Cir., Jan. 14, 1972 (slip opinion at 12-121) (dissenting opinion
of Brown, C.J.).
The district court found that because of the past
policies and practices of the Highway Patrol few blacks had
applied (App. 457). As the Eighth Circuit in Carter v. Gallagher.
supra, observed on even less compelling facts, "it is not
unreasonable to assume that minority persons will still be
reluctant to apply for employment, absent some positive assurance
that if qualified they will in fact be hired on a more than
token basis." 452 F.2d at 331.
Some affirmative class hiring relief, therefore,
appears necessary, because the remedy is inherent in the notion
of a class action, because it will provide an incentive to the
defendants to conform to both the spirit and the letter of the
district court's decree, and because it is necessary to eliminate
-37-
the effects of the past discrimination, not the least of which
is the wide-spread and firmly entrenched belief in the black
community of Mississippi that the Highway Patrol is for whites
only- Of course, this would not require the defendants to hire
persons who do not meet objective and job-related qualifications.
But there is no larger manpower pool anywhere in the country
which can provide more qualified applicants and, as has been
noted above, courts in other areas with a substantially lesser
number of qualified potential minority group applicants have
ordered the use of minority preferences and quota hiring as
necessary elements of affirmative class relief. Further, there
is no proof in the Record that blacks as a class in Mississippi
are any less qualified for such positions than whites, or that
fewer blacks possess the necessary essential qualifications, and
this Court cannot assume otherwise in the absence of substantial
affirmative evidence. United States v. Haves Intern'1 Cprp.,
supra (slip opinion at 16).
C. The Available Affirmative Remedies.
1. Freeze on white hiring. Undoubtedly the quickest
and most efficient method of making the victims of defendants'
discrimination whole would be to order a freeze on white hiring—
to order the defendants to hire only qualified blacks until the
pool of blacks who want positions and who meet all the objective
non-racial qualifications is exhausted or until the number of
blacks on the Highway Patrol approximates the percentage of blacks
in the state population, whichever first occurs. Although this
remedy appears stringent, it is different only in degree from
other forms of relief ordered in this circuit which have had the
-38-
effect of a freeze on white hiring, or preferential hiring
of blacks for formerly white-only positions, to permit blacks a
chance to gain parity with whites formerly employed under a
racially discriminatory policy. Thus in Local 53, Asbestos
Workers, v. Vogler, supra, this Court approved a district court
decree which prohibited taking new members into the union, except
the plaintiffs and members of the plaintiff class, until the
union developed objective non-racial membership criteria. 407
F.2d at 1051. In Clark v. American Marine Corp., supra, the
district judge enjoined the defendants from filling new or
vacant positions in a number of job categories, including "helper"
and "tacker" positions, until qualified Negroes were first given
a chance to bid for or transfer to those positions on the basis of
non-racial, objective criteria. 304 F. Supp. at 608. Judge
Johnson in United States v. Frazer, supra, ordered that no person
could be hired, promoted, or demoted into one position, Laboratory
Technician, formerly filled only by whites, until all qualified
blacks employed in an equivalent position, Laboratory Aide, filled
all the vacancies in the Laboratory Technician positions. 317 F.
*“''-Mrir » ̂̂ •
It is unlikely that blacks soon will be able to achieve
parity of numbers with whites (or with their percentage in the
general population) in the Highway Patrol unless this drastic
action is taken, given the policy of the past 34 years of hiring
only whites. Any other form of relief would serve only to
perpetuate the discriminatory hiring pattern of past years. There
is no evidence that a freeze on white hiring would disrupt Patrol
operations. The Patrol has existed and performed its functions
-39-
for a number of years on a budget that required the Patrol to
maintain itself at considerably less than statutory strength.
Further, there is no evidence that there is such a lack of
interest in Patrol employment among blacks in Mississippi that,
given a proper recruiting program, qualified black applicants
would not be able to fill the next four or five recruit training
classes.
2. Quota hiring. If a freeze on white hiring, despite
its efficiency, is unacceptable for other reasons, then the
next best alternative is to order the district court to fashion
a decree resembling that recently issued in the Alabama state
police case, NAACP v. Allen, supra. There Judge Johnson ordered
one-for-one hiring until the number of black troopers approximated
the black percentage of the total population of the state, ordered
that any new recruit classes be composed of a similar percentage
of black recruits, and ordered one-for-one hiring in supporting
personnel (clerks, secretaries, and the like) until the percentage
goal was reached. In addition, an affirmative publicity and
recruiting program, similar to the one in this case, was required.
T'Vi r m n f 3 "tl Cil vi uO u w i i o t i UCU. cl "UciXJX 1 iS-Tli I1CJ 3.
maximum on black hiring, for after the percentage goal is reached,
the quotas and percentage goals should be abandoned to allow the
defendants to hire qualified applicants on their individual merits
on the basis of objective non-racial criteria. As we have noted
above, one-for-one hiring was specifically approved by this Court
in Voglor, and the Eighth Circuit recently has approved a one-for-
two hiring quota for an area with only a 6 percent minority group
population in Carter. The Ninth Circuit specifically approved a
minimum minority percentage rule for training classes in United
-40-
States v. Local 86, Ironworkers, supra. See also, Hicks v. Crown
Zellerbaclx Corp. , 310 F. Supp. 536 (E.D. La. 1970) (requiring
that specified positions be reserved for blacks as part of
merger of all-white and all-black unions).
In an analogous area, the affirmative action require
ment of Executive Order 11246, 3 C.F.R. 402 CL970), obligating
government contractors and contractors working on federally
assisted construction projects to undertake a program of affirma
tive action to improve the representation of minority workers if
they are underutilized, has been interpreted to require construc
tion contractors bidding on Federal projects to guarantee "best
faith efforts" to achieve certain percentage ranges of minority
employment throughout the work force on the construction project.
See Note, "Developments in the Law--Employment Discrimination and
Title VII of the Civil Rights Act of 1964," 84 Harv. L. Rev. 1109,
1291-1304 (1971). The area plans which impose minimum percentage
guidelines for minority group employment in selected trades have
been determined by the Department of Labor and the Office of Federal
Contract Compliance to be the only feasible mechanism for defining
with sufficient clarity the obligations of Federal contractors to
eliminate employment discrimination in hiring practices. One of
these, the "Philadelphia Plan," has recently been sustained by the
Third Circuit against challenges,, inter alia, that minority
percentage requirements conflict with Title VII and constitutional
guarantees. Contractors Ass'n, of Eastern Pennsylvania v.
Secretary of Labor, 442 F.2d 159 (3d Cir. 1971).
-41-
III. THE DISTRICT COURT ERRED IN FAILING
TO ENJOIN THE ADMINISTRATION OF
i n v a l i d a t e d e mployment tests .______
The district court found that neither of the two employ
ment tests administered to applicants for positions as swrorn officers
of the Highway Patrol, the Otis Quick Scoring Mental Ability Test
and an oral spelling test of which no record was kept, "has been
validated to determine whether there is a significant correlation
between high scores on the test and good performance as a patrol
man." (App. 453) Blacks bidding for positions formerly occupied
only by whites cannot be required as a condition of employment
to pass tests or meet standards which have not been proven to be
significantly related to successful job performance. Griggs v.
Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
The authorities have shown that written examinations which
incorporate white middle class values and vocabulary may discrimi
nate against black persons and are inherently discriminatory unless
it. can be clearly demonstrated that the skills measured are necessary
for successful job performance and that those tests adequately test
for the needed skills. See Cooper and Sobol, "Seniority and Testing
Under Farr Employment Laws; A General .approach to Objective
Criteria of Hiring and Promotion," 82 Harv. L. Rev. 1598 (1969);
Note, "Legal Implications of the Use of Standardized Ability Tests
in Employment and Education," 68 Col. L. Rev. 691 (1968). This
court vacated a district court decision upholding the use of the
Otis test and remanded for application of the Griggs standard in
Colbert v. H-K Corp,, 444 F.2d 1381 (5th Cir. 1971).
-42-
The district court should have enjoined the use of
all employment tests until validated in accordance with the
Equal Employment Opportunity Commission's Guidelines on Employee
Selection Procedures, 29 C.F.R. 1607, which this Court has
endorsed as "the safest validation method." United States v.
Jacksonville Terminal Co., supra, 451 F.2d at 456. Instead, the
district court enjoined the use of the unvalidated tests but
ordered that employment tests, including "all mental tests or
examinations," be administered in accordance with the rules and
regulations of the Mississippi Classification Commission (Decree,
18/
pars. 2(b) and 6, App. 477-78, 480). The statute establishing
the Mississippi Classification Commission, however, does not
require employment tests to be validated in accordance with the
EEOC Guidelines, Miss. Code §§ 8935-01 to 8935-14 (1971 Supp.),
and the defendants offered none of the rules and regulations of
the Commission in evidence to show whether proper validation is
required. In the absence of such proof, the injunction should
£)6 m o a m e a to ieictcuCc ' -f- M i c c ! i c : q i r h T i 7
Classification Commission and to require validation of all
employment tests, administered as a condition to employment with
18/ The Mississippi Classification Commission is not a civil
service commission and does not administer a merit system. Its
main function seems to be to administer tests to persons applying
for positions in the Department of Public Safety other than sworn
officers -with the Patrol and to insure that there is like pay
for like jobs throughout state government. Snodgrass dep. (Tr.
Ex. P-7), pp. 81-84. As far as Snodgrass knew, the state
classification commission had no specific rules prohibiting
racial discrimination in employment (id. at 84).
-43-
the Department and Patrol, to be validated in accordance with
19/
the EEOC Guidelines.
IV. THE DISTRICT COURT ERRED IN FAILING
TO GRANT ATTORNEY'S. FEES-AT THE RATE
REQUESTED BY PLAINTIFFS.
After final judgment plaintiffs moved to amend the
judgment pursuant to Rule 59(e), F.R. Civ. P., to increase the
amount of the award of‘attorney's fees from $500 (App. 483) to
$6,060 (App. 488-89) and supported the motion with affidavits
attesting to the amount of time spent by counsel in prosecuting
the action (202 hours) and the standard hourly rate prevailing
in the Jackson, Mississippi, area charged by counsel with
equivalent education and experience in civil cases ($30 per hour)
(App. 490-93, 496-97). The court granted the motion to amend
judgment, but increased the award to only $3,000, half the amount
requested (App. 498-99).
19/ Identical stnnflarrlB boon aborted by the Office cf
Federal Contract Compliance, 35 Fed. Reg. 1 9 3 0 7 (Oct. 2 , 1 9 7 1 )
as well as state anti-discrimination agencies. Cases incorpora
ting or approving the EEOC Guidelines for the development of
non-discriminatory employment tests include, relating to public
employment, Carter v . Gallagher, supra, 3 EPD 4,| 8205 at pp. 6 6 8 2 - 8 3
Baker v. Columbus Mun. Sep. School. Dist. , 329 F. Supp. 706 (N.D.
Miss. 1971)’; Armstead v . Starkville Mun. Sep. School Dist., 325
F. Supp. 560 Tn’.D . Miss. 1 9 7 1 ) . The court Tn Arrington v .
Massachusetts Bay Transp. Auth. , 30 6 F. Supp. 1.355 (D. Mass.
1969)' , also a public employment case, adopted a similar standard.
The Supreme Court approved the guidelines in Griggs, supra,
and they have also been approved in the Title VII cases, e.g.,
United States v. Jacksonville Terminal Co., supra, Hicks v.
Crown^eTTerr5a'ch Corn. , supra.
-44-
attorney's fees in this action was within the court's sound
discretion. Courts often have recognized the importance of
private enforcement of civil rights legislation and regularly
have awarded attorney's fees to successful litigants in employ-
20/
ment discrimination cases, and even have awarded fees in the
absence of express statutory authorization (as here) to enforce
21/
strong Congressional policies against racial discrimination.
However, in arriving at the amount of the award, district courts
should be governed by the rationale of awarding such fees— to
encourage private suits and, thereby, effectuate the purposes
of the legislation.
The appropriate method for determining the amount of
the award, sanctioned by this and other courts, is to multiply
the amount of time spent by the standard prevailing rate for
civil cases in the area in which the action is brought. Clark
v. American Marine Corp,, 437 F.2d 959 (5th Cir. 1971), affirming
320 F. Supp. 709 (E.D. La. 1970); Fears v. Burris Mfg. Co., 4
The decision of the district court to award plaintiffs
20/ ' Clark v. American Marine Corp., 437 F.2d 959 (5th Cir.
19 71)T~~Robinson~~vn LoaFTITard~^arpT, 444 F.2d 791 (4th Cir.
1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971);
Parham v~. Southwestern Bell Tel. Co., 433 F.2d 421 (8th ̂ Cir.
TTJWTJ cf.~Nevmairirr~PTggie Park Enterprises, 390 U.S. 400 ,
88 S.Ct. 9 6l~TT9~L.EdT2d 1263 (1968); Miller v. Amusement
Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970).
21/ Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir.
19 71) JTZ U.S.C. § 19 8 2~, a- comp anion statute to the ones
invoked here); Bradley v. School Bd. of City of Richmond, Va.,
53 F.R.D. 2 8 (FdlJ.Va. 19711 R/'uTS.C. § 19 83); Lyle v. Teresl,
327 F. Supp. 683 (D. Minn. 1971) (same); Dyer v. Love, 307 F.
Supp. 974, 986 (N.D. Miss. 1969) (same); cf. Mills v. Electric
Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593
11970/:
-45-
EPD 1111 7535, 7536 {5th Cir. 1971); United States v. Georgia Power
Co., 3 EPD 1! 8318 at p. 7096 (N.D.Ga. 1971) (awarding $6,500 on
the basis of 214 hours work, $25 per hour for attorney admitted
less than five years); Bradley v. School Bd. of City of Richmond,
Va., 53 F.R.D. 28 (E-D. Va. 1971). In this case the amount of
time spent, authenticated by affidavit, was not disputed. The
defendants did not introduce any evidence showing that the
standard prevailing rate for civil cases in the Jackson area was
any less than $30 per hour, but instead filed affidavits showing
the hourly rate of one attorney for criminal appeals before the
Mississippi Supreme Court and the hourly rate charged by a former
employee of the state attorney general's office for continued
work for that office (App. 494-96) . The district court abused its
discretion by calculating the award on the basis of the atypical
rate $15 per hour) charged clients generally unable to pay the
higher rate (criminal cases) and the state (generally considered
to be "charity" cases) rather than the standard prevailing rate
in civil cases (for corporate clients and the like). If attorneys
in regular private practice are to be encouraged to take employ
ment discrimination cases (generally on behalf of clients who,
because they are denied equal employment, are unable to pay), then
they must be compensated by an award of attorney s fees at the
standard prevailing rate, and nothing less. This is particularly
important considering that the award is contingent in any
22/ ’ Fears is directly in point because in that case this
Court awarded the undersigned attorney fees at the rate of $30
per hour against a state agency, the Mississippi Employment
Security Commission, after successfully defending an appeal
in this Court.
22/
-46-
Further, the district court in reassessing the
amount of the award took into account its earlier findings
(1) that the plaintiffs had not proved intentional racial
discrimination on the part of the defendants and (2) that the
two named plaintiffs had not been denied application forms
because of their race. Consideration of this second factor was
erroneous as a matter of law--successful plaintiffs in employ
ment discrimination cases who open the way for employment for
a discriminated-against class which potentially includes hundreds
of persons are entitled to the full measure of attorney's fees
regardless of whether they sought or secured specific relief
for themselves. Parham v. Southwestern Bell Tel. Co., supra;
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971). In
addition, if this Court determines those findings contested in this
appeal to be erroneous, then the case should be remanded for an
increase in the amount of the award.
event upon the plaintiff being successful.
-47-
V. THE DISTRICT COURT WAS WITHOUT JURISDICTION
TO GRANT DEFENDANTS' MOTION TO MODIFY JUDGMENT.
Three months after the final judgment had been entered,
and after plaintiffs had filed their notice of appeal and
defendants had filed their notice of cross-appeal, defendants
filed a Rule 60(b), F.R. Civ. P., motion for relief from judgment
to allow defendants to fill five executive positions (including
Commissioner of Public Safety and Chief of Patrol), eight Governor's
security force positions, and two executive secretarial positions,
without conforming to the final injunction (contained in Addendum,
Ex. B) . The district court, without any presentation of evidence,
granted the motion with the simple caveat that the positions were
to be filled on a non-discriminatory basis (Addendum, Ex. C).
Plaintiffs were thereby deprived of the benefits of the final
injunction with regard to the filling of those positions without
any statement of reasons for the change and without any showing
of exceptional or extraordinary circumstances compelling such a
change. The order granting the motion, having left nothing
further to be done or decided at the district court level, was a
final order and is appealable as such under 28 U.S.C. § 1291.
Moore, Federal Practice 11 60.30 [3] (2d ed. 1970).
The district court was without jurisdiction to. entertain
the motion. First, defendants had a full and complete opportunity
to litigate all issues during the two-day hearing on the action,
and if they were aggrieved by any portion of the final injunction
their proper remedy was to raise the issue as part of their cross
appeal (filed January 3, 1972, ten days before their motion was
-48-
filed). It is apparent that they desired to short-cut proper
procedures and obtain the relief they wanted by Rule 60(b) motion
as a substitute for appeal, which is prohibited. Annat v. Beard,
277 F.2d 554, 559 (5th Cir. 1970), cert, denied, 364 U.S. 908
(1960). The usual rule is that except in extreme circumstances,
the status quo should be maintained during the pendency of an
appeal, and for that reason it is generally held that "[d]uring
the pendency of an appeal from a final judgment the district court
lacks power to grant relief from the judgment, under Rule 60(b),
except with permission of the appellate court." 7 Moore, supra,
UK 60.30[1] and [2], p. 334 (emphasis added). An appeal is
perfected by the filing of a notice of appeal, Rule 3(a), F.R.
App. P. , and when the notice of appeal is filed the district court
is divested of jurisdiction, except to take action in aid of the
appeal (which excludes ruling on Rule 60(b) motions), until the
case is remanded to it by the appellate court. Norman v. Young,
422 F. 2d 470, 474 (10th Cir. 1970); United States ex rel. Tillery
v. Cavell, 294 F.2d 12 (3d Cir. 1961) cert, denied, 370 U.S. 945
(1962); Ferrell v. Trailmobile, Inc., 223 F .2d 697 (5th Cir. 1955).
Defendants argued, and the district court apparently accepted
their view, that relief from judgment could be granted by the
district court at any time before the appeal is docketed in the
appellate court, Rule 60(a), but that provision refers to correcting
clerical mistakes only.
Second, none of the requirements for obtaining relief
from judgment pursuant to Rule 60(b) were met. For the court to
have jurisdiction, the motion for relief from judgment must
satisfy the technical requirements of the Federal Rules of Civil
Procedure, including Rule 7(b) which requires that a motion shall
-49-
state with particularity the grounds•therefore," and the raxlure
of the party to allege an adequate reason for relief warrants
denial of the motion for lack of jurisdiction. Ackermann v. United
States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Klapprott
v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949) 7 Moor-
sup ra, 11 60.27 [1] through [3] and esp. at p. 326. Further, to be
valid, an order modifying a final judgment as a matter of due
process should set forth findings and the reasons why the
modification is required, as in required for the issuance of an
injunction, Rule 65(d), F.R. Civ. P., and the entry of a new
judgment, Rule 59(a), F.R. Civ. P.
Since defendants' motion did not allege any grounds on
which relief from judgment could be granted under reasons (1) through
(5) of Rule 60(b), we must assume that the motion was made and
23/
granted pursuant to clause (6), the Rule 60(b) catch-all. To
obtain relief from judgment under Rule 60(b) (6), a party must
allege and show "extraordinary circumstances" that compel a
departure from the normal rule of finality of judgments. Ackermann
v. United States, supra, 340 U.S. at 199. Where modification
of an injunctive order is sought by a participant in the litigation,
the moving party has the heavy burden of proving that it
"is exposed to severe hardships of extreme and
unexpected nature. Thus the requested change
should be approached with caution and a strong
showing is required of new conditions and cir
cumstances making the original injunction
oppressive." Ridley v. Phillips Petroleum Co.,
427 F.2d 19, 22 (10th Cir. 1970).
23/ Rule 60(b) (1) through (5) permit relief from final judgment
on grounds of mistake, inadvertance, excusable neglect, newly
discovered evidence, fraud, and the like. Clause (6) permits relief
from judgment "for any other reason justifying relief from the
operation of the judgment."
-50-
None of the above-stated requirements for relief from
judgment were met. The motion on its face fails to state any grounds
for relief, let along allege sufficient "extraordinary circumstances"
for the district court to have jurisdiction to rule upon it. No
evidence was taken, and the defendants utterly failed to meet '■
their burden of proving "extraordinary circumstances," severe
hardship or new conditions which would make compliance oppressive.
Further, the order of the district court itself granting relief
from judgment fails to articulate any reasons for its issuance or
even to note that it would serve the ends of justice.
The effect of the order is to deprive plaintiffs of the
final injunction's protections against racial discrimination in
employment at the very highest levels of the Department of Public
Safety and the Highway Patrol. Without this protection, defendants
are not required to advertise when these positions become vacant,
are not required to recruit, solicit or consider applications from
qualified persons from around the state or from the country at
large, and are not even required to keep any records on who is
considered f o r - n n c i f ^ n c to insure that they go to the u u s l
qualified persons. In effect, the order allows the defendants to
continue the past discriminatory practice of filling these
positions with insiders and cronies, except that lip service is
paid to non-discrimination but without providing any means for
insuring compliance with that requirement. Since none of the
factors necessary to bring the motion within the provisions of
Rule 60 (b) were alleged or proven, the district judge had no
basis in law under Rule 60(b) to grant defendants relief from
the final injunction and was without jurisdiction to rule on the
-51-
motion. Ackermann v. United States, supra; Rinieri v. News
Syndicate Co,, 385 F.2d 818 (2d Cir. 1967).
CONCLUSION
For the foregoing reasons, and on the basis of the
authorities cited, this Court should reverse the district court's
denial of plaintiffs' requested relief and remand this action to
the district court with instructions to:
(1) Order the defendants to offer to Morrow, Mangum,
and Coker the first available positions in the next patrolman
recruit training class and, upon successful completion of that
training, to appoint them to uniformed patrolman positions, and
to grant to plaintiffs Morrow and Mangum full back pay (diminished
by interim earnings), seniority in rank, insurance benefits, and
retirement benefits and other emoluments which they would have
received had they been permitted to enroll in the September,
1970, recruit training class and subsequently hired in patrolman
positions;
(2) Order the defendants (a) not to train or hire
any additional whites in patrolman positions until all black
applicants who have applied and meet the objective, non-racial
qualifications for recruit training have been enrolled in recruit
training and hired for patrolman positions, or until thirty-seven
percent of the uniformed patrolman positions on the Mississippi
Highway Patrol are filled by blacks, whichever first occurs or
alternatively (b) to train and hire one black applicant for each
white applicant trained and hired until the Highway Patrol is
thirty-seven percent black, to cease conducting any new patrolman
-52-
recruit training classes until sufficient qualified applicants
are obtained to insure that the next recruit training classes
are composed of fifty percent qualified black applicants until
the Highway Patrol is thirty-seven percent black, and to hire
one black for each white hired in all other entry level
positions in the Department of Public Safety until supporting
personnel are thirty-seven percent black, all to the extent that
qualified black applicants are available.
(3) Modify pars. 2(b) and 6 of section B of the
Judgment and Order for Declaratory and Injunctive Relief to
delete any reference to the rules, regulations or procedures
of the Mississippi Classification Commission regarding employ
ment testing, and to enjoin defendants from refusing to hire any
black applicants for any position in the Department of Public
Safety for failure to pass any employment tests which have not
been validated in accordance with the Equal Employment Opportunity
Commission's Guidelines on' Employee- Selection Procedures, 29
C.F.R. 1607.
(4) Modify the Order to Assess Reasonable Attorney's
Fees of November 30, 1971, to increase the award of attorney s
fees to $6,060; and
(5) Vacate the Order of January 14, 1972, granting
relief from judgment in filling certain specified positions in
the Department of Public Safety.
-53-
In all other respects, the judgment and final injunction
of the district court should be affirmed. Plaintiffs also move
for an award of attorney's fees in this appeal.
Respectfully submitted,
FRANK R. PARKER
CONSTANCE IONA SLAUGHTER
Lawyers' Committee for
Civil Rights Under Law
233 North Farish Street
Jackson, Mississippi 39201
Attorneys for Appellants
-54-
CERTIFICATE OF SERVICE
I certify that I have this day mailed, postage
prepaid, two copies of the foregoing Brief for Appellants
to the following counsel:
William A. Allain
Assistant Attorney General
Post Office Box 220
Jackson, Mississippi 39205
C. A. Marx, Esquire
Post Office Box 958
Jackson, Mississippi 39205
William B. Fenton, Esquire
Civil Rights Division
U. S. Department of Justice
Washington, D. C. 20530
This the ‘T ^ day of March, 19 72.
FRANK R. PARKER
-55-
A D D E N D U M
EXHIBIT 7V
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF ALABAMA, NORTHERN DIVISION
NAACP, )
)
)
)Plaintiff, )
)PHILLIP PARADISE, JR., )
Individually and on behalf )
of the class similarly situated, )
)Intervening Plaintiff, )
)UNITED STATES OF AMERICA, )
)Plaintiff and )
Amicus Curiae, )
)vs. )
)WALTER L. ALLEN, as Director )
of the Alabama Department of )
Public Safety, his agents, )
assigns, and successors in )
office; STANLEY FRAZER, as )
Personnel Director, Personnel )
Dept,, State of Alabama, his )
agents, assigns, and successors )
in office, )
)
Defendants. )
UNITED STATES OF AMERICA )
by JOHN N. MITCHELL, )
Attorney General, )
)
Plaintiff, )
)
vs. )
)
JOHN S. FRAZER, as Director, )
Alabama Personnel Department, )
ET AL., )
)
Defendants. )
CIVIL ACTION NO
3561-N
CIVIL ACTION NO
2709-N
O R D E R
This action was originally brought by the National
la
Association for the Advancement of Colored People on behalf
of its members and all similarly situated Negroes in the
State of Alabama. The complaint alleged that defendant Allen
as Director of the Alabama Department of Public Safety and
defendant Frazer as Personnel Director of the Alabama
Personnel Department have followed a continuous and pervasive
pattern and practice of excluding Negroes from employment in
the Department of Public Safety. At the commencement of the
hearing in this case, a motion by Phillip Paradise, Jr., to
intervene as a party plaintiff, individually and on behalf of
the class similarly situated, was granted.
The Department of Public Safety has two major
components; the state troopers and those secretaries, clerks
and others who comprise the supporting personnel. There are
two other groups closely associated with the department; the
trooper cadets and auxiliary troopers. The cadets are men too
young to qualify as regular troopers. The auxiliary force is
a group of unpaid volunteers which performs trooper functions
under department direction in time of emergency and which is
selected on the basis of a recommendation.
Because the agency's supporting staff is essentially
identical to those personnel who were the focus of this Court's
order in United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala.
1970) and because these employees are obtained from the defend
ant Frazer's department, this Court has determined that the
appropriate relief as to these positions will be treated as a
motion for supplemental relief under the Frazer decision.
The state troopers, however, are a different matter.
This group is a distinct, specialized force which is unlike the
relatively fungible secretaries and clerks who populate every
office. For example, the troopers have their own height, weight
and age requirements, maintain a separate testing program and
require an oral interview. The trooper force has an extensive
and specialized training program. For these reasons, it is clear
that the state trooper aspect of this case justifies the filing
and prosecution of separate litigation and requires separate
adjudication.
The defendants have raised an objection to the NAACP's
right to bring this suit. It was, however, the uncontroverted
testimony of the association's state president, Mr. Thomas Reed,
that some of its members have sought jobs with the department
and have been refused. It is well established that the NAACP
has standing to assert the rights of its members. NAACP v.
Button, 371 U.S. 415, 428 (1963); Louisiana ex rel. Gremillion
v. NAACP, 366 U.S. 293, 296 (1961); NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 458 (1958). Any standing question in
this case"was further obviated by the intervention of plaintiff
Paradise. His testimony at the hearing for a temporary restrain
ing order was undisputed that he was refused a trooper application.
He contends that the refusal, was racially motivated.
Accordingly, defendants' motion to dismiss is due to be
denied.
Plaintiffs have shown without contradiction that
the defendants have engaged in a blatant and continuous
pattern and practice of discrimination in hiring in the
Alabama Department of Public Safety, both as to troopers
and supporting personnel. In the thirty-seven-year history
of the patrol there has never been a black trooper and the
only Negroes ever employed by the department have been non
merit system laborers. This unexplained and unexplainable
discriminatory conduct by state officials is unquestionably
a violation of the Fourteenth Amendment. Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961); Brown v. Board of
Educa±Xon, 347 U.S. 483 (1954); United States v. Frazer, supra.
Under such circumstances as exist in these cases, the
courts have the authority and the duty not only to order an
end to discriminatory practices, but also to correct and eliminate
the present effects of past discrimination. Hutchins v . United
States Industries, Inc., 428 F.2d 303, 310 (5tlT~Cxru 1970); Local
53, Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir.
1969). The racial discrimination in this instance has so
permeated the Department of Public Safety's employment policies
that both mandatory and prohibitory injunctive relief are necessary
to end these discriminatory practices and to make some substantial
progress toward eliminating their effects.
While further discrimination will be enjoined, this
Court is not inclined to order new tests or testing procedures.
This Court recognizes that Griggs v. Duke Power Co., 401 U.S.
424 (1971) is authority for the view that if an employment
practice which operates to exclude Negroes is unrelated to job
performance, the practice is prohibited. Yet there are persuasive
the Government's selection technique expert, John E. Furcon,
testified that it would require a minimum of six months to
properly analyze the job of state trooper and compile proper
selection methods. The plaintiffs' expert, Dr. Richard S .
Barrett, estimated that the process may take as much as four or
five years, particularly in light of the fact that there are
presently no black troopers. Thus, it would in all likelihood
take several years to implement the selection procedures which
these experts envision.
Second, Dr. Barrett described Mr. Furcon's cost
estimate of $40,000 for the completion of such an analysis as
perhaps too low. Imposition of such a study would be an undue
burden upon the state. Moreover, in light of the affirmative
relief which this Court will require, primary concern over the
testing procedures is unnecessary. This is not to say that the
state may not undertake some revision of its selection methods
if it desires to do so. In fact, the testimony reflects that
changes are appropriate and necessary. This Court will simply
3a
not order it at this time. This particular aspect of the
state trooper case will be reserved pending receipt of
implementation reports to be filed by the defendants.
Accordingly, it is the ORDER, JUDGMENT and DECREE
of this Court:
I. That defendants' motion to dismiss be and the
same is hereby denied.
II. That the defendants John S. Frazer, as Director,
Alabama Personnel Department and Walter L. Allen, As Director,
Alabama Department of Public Safety, their agents, officers,
successors in office, employees and all persons acting in
concert or participation with them, be and they are hereby en
joined from engaging in any employment practices, including
recruitment, examination, appointment, training, promotion,
retention or any other personnel action, for the purpose or
with the effect of discriminating against any employee, or
actual or potential applicant for employment, on the ground of
race or color.
III. It is further ORDERED that the defendants be
and they are each hereby enjoined from failing to hire and
permanently employ after the probationary period, one Negro
trooper for each white trooper hired until approximately
twenty-five (25) percent of the Alabama state trooper force
is comprised of Negroes. This injunction applies to the cadet
and auxiliary troopers as well as to the regular troopers. It
shall be the responsibility of the Department of Public Safety
and the Personnel Department to find and hire the necessary
qualified black troopers.
IV. It is further ORDERED that the defendants be
and they are hereby enjoined from conducting any training
courses for the purpose of training new troopers until the
groups to be given said training courses are comprised of
^nnrnvi m^f dl u +-w — -F i ttg ( 9 ̂ ̂ nornonf hi ppV frnnnor nanrH rlaf oc
V. It is further ORDERED that the defendants be and
they are each hereby permanently enjoined from failing to hire
supporting personnel for the Department of Public Safety in the
ratio of one Negro for each white until approximately twenty-
five (25) percent of the supporting personnel are black. The
decree in United States v. Frazer, 317 F.Supp. 1079 (M.D. Ala.
1970) is hereby amended insofar as the Department of Public
Safety's employment practices are concerned.
VI. It is further ORDERED that eligible and promo
tional registers heretofore used for the purpose of hiring
troopers be and tney are hereby abrogated to the extent necessary
to comply with this decree.
VII. It is further ORDERED that:
4a
1* The defendants shall assign employees on the
basis of their training and ability, without regard to race.
Negro employees shall not be assigned to serve exclusively
or predominantly Negro clientele.
2. The defendants shall advise the public in all
advertisements and announcements that they will appoint and
employ persons on an equal opportunity, merit basis, without
discrimination on the ground of race or color. In such
public announcements, the defendants shall advise potential
and actual applicants and employees of their right to be
free from discrimination. Said announcements shall be made
throughout the State of Alabama within thirty days from the
date of this order.
3. The defendants shall adopt and implement a
program of recruitment and advertising which will fully
advise the Negro citizens of the State of Alabama of the
emplyment opportunities now available to them with the
Alabama Department of Public Safety. The defendants shall
institute reguxar recruitment visits to predominantly Negro
schools (vocational, high and college) throughout the State
of Alabama, such visits to be made in person by appropriate
officials of the Alabama Department of Public Safety.
4. No commitments of employment given by either
of the defendants or any of their agents to any applicant or
potential applicant, short of actual hiring prior~to January
13, 1972, the date the temporary restraining order was
entered in the state trooper case, shall be given any priority
over the hiring ratio set out in this decree. The present
hiring lists, compiled as a result of the discriminatory
practices, may be used to hire the white troopers, white
trooper cadets and white supporting personnel. New lists,
however, must be -..umpileu ana utxlxzed for the black troopers,
black trooper cadets and black supporting personnel.
5” The^defendants shall file through their counsel
wxth this Court within ninety days from the date of this
decree a written report setting forth in detail the efforts
which have been undertaken to recruit and hire black applicants.
The report shall also include the number of vacancies filled
among the state troopers, the auxiliary troopers, the cadets
and_the supporting personnel of the Department of Public Safety
during this period and the number of each race hired into each
of these groups.
VIII. It is further ORDERED that the costs of this
proceeding be and they are hereby taxed to the defendants in
Civil Action No. 3561-N, for which execution may issue.
5a
The Court retains jursidiction over these cases.
Done, this the 10t.h day of February, 1972.
/S/ Frank M. Johnson, Jr.
UNITED STATES "DISTRICT"JUDGE
6a
EXHiDl C B
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
WILLIE L. MORROW, ET AL, )
)
PLAINTIFFS )
)
VS. ) CIVIL ACTION NO. 4716
)
GILES W. CRISLER, COMMISSIONER )
OF PUBLIC SAFETY, ET AL, )
)
DEFENDANTS )
MOTION TO MODIFY JUDGMENT
AND ORDER FOR DECLARATORY
AND INJUNCTIVE RELIEF
Come now the Defendants and move the Court to
modify that certain Judgment and Order for Declaratory and
Injunctive Relief dated October 14, 1971, and filed October
18, 1971, to allow the Defendants to employ, at their discretion,
all personnel necessary to fill any vacancies which exist or
will exist in the following listed positions of the Mississippi
Department of Public Safety and the Mississippi Highway Safety
Patrol without the necessity of complying with or conforming
to the provisions of said Judgment and Order for Declaratory
and Injunctive Relief, to-wit:
Commissioner of Public Safety;
Assistant Commissioner of Public Safety
(Chief of Patrol);
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Chief Investigator;
Director of the Law Enforcement Officers'
Training Academy;
Assistant Director of the Law Enforcement
Officers' Training Academy;
Eight positions as personal security
for the Governor of the State of
Mississippi;
Executive Secretary to the Commissioner
of Public Safety;
Executive Secretary to the Assistant
Commissioner of Public Safety
WHEREFORE, movants respectfully pray that the
Court grant the foregoing Motion.
RESPECTFULLY SUBMITTED,
WILLIAM A. ALLAIN
FIRST ASSISTANT ATTORNEY GENERAL
r\r? mu-c cmAmp r\m mtcotccttilt
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IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
WILLIE L. MORROW, ET AL, )
)
PLAINTIFFS )
)
V. ) CIVIL ACTION NO. 4716
)
GILES W. CRISLER, COMMISSIONER )
OF PUBLIC SAFETY, ET AL, )
)
DEFENDANTS )
O R D E R
Came on for hearing on this day the Motion of
the Defendants to modify that certain Judgment and Order
for Declaratory and Injunctive Relief, dated October 14,
1971, and filed October 18, 1971, and the Court having
considered same is of the opinion that said Motion is well
taken and should be granted.
IT IS, THEREFORE, ORDERED that the said Judgment
and Order for Declaratory and Injunctive Relief is hereby
modified to the extent of allowing the Defendants to employ,
at their discretion, all personnel necessary to fill any
vacancies which exist or will exist in the following listed
positions of the Mississippi Department of Public Safety
and the Mississippi Highway Safety Patrol without the
necessity of complying with or conforming to the provisions
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of said Judgment and Order for Declaratory and Injunctive
Relief, to-wit: Commissioner of Public Safety; Assistant
Commissioner of Public Safety (Chief of Patrol); Chief
Investigator; Director of the Law Enforcement Officers'
Training Academy; Assistant Director of the Law Enforcement
Officers' Training Academy; Eight positions as personal
security for the Governor of the State of Mississippi;
Executive Secretary to the Commissioner of Public Safety;
and Executive Secretary to the Assistant Commissioner of
Public Safety.
It is further ordered that the Defendants shall
fill the above mentioned positions without regard to race,
color, creed or national origin.
Notices of appeal and cross appeal have been
filed in this action but said appeal and cross appeal
have not been docketed by the United States Court of Appeals
for the Fifth Circuit.
O’RnTunnn awn arvrnnc'R n. fh ic - fh o 2.*th d a y n-F
January 1972.
S/ Walter L. Nixon, Jr.______
UNITED STATES DISTRICT JUDGE
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