Morrow v. Dillard Supplemental Brief for Appellants on Rehearing En Banc

    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
W. O. DILLARD, Commissioner of Public Safety of 
Mississippi; WILLIAM L. WALLER, Governor of 
Mississippi; WOOD STRINGER, JR., Chief of Patrol; 
BILLY HARPER, Personnel Director of the 
Mississippi Department of Public Safety,

Defendants-Appellees- 
Cross Appellants

Appeals from the United States District Court for the 
Southern District of Mississippi

SUPPLEMENTAL BRIEF FOR APPELLANTS
ON REHEARING EN BANC_______

Of Counsel:
HERMAN WILSON
CONS T A N C ^ i^^ jS LA IIG m E R

RANK R. PARKER ,awyers' Committee for Civil 
Rights Under Law 
33 North Farish Streetackson. MississiPt ‘



TABLE OF CONTENTS

OPINIONS BELOW
BRIEF STATEMENT OF THE CASE
ARGUMENT

I. THE DISTRICT COURT ERRED IN 
FAILING TO ORDER AFFIRMATIVE 
HIRING RELIEF TO REMEDY THE PRESENT 
EFFECTS OF PAST DISCRIMINATION IN 
HIRING.
A. The Findings of the District 

Court Compel Affirmative 
Minority Hiring Goals

B. Affirmative Hiring Relief to 
Remedy the Present Effectsof Past Discriminatory Hiring 
Practices is Constitutionally 
Required.

C. Plaintiffs' Request for 
Affirmative Minority Hiring 
Goals is Supported by the 
Overwhelming Weight of Authority; 
Every Court of Appeals Has 
Required or Approved Affirmative 
Hiring Ratios in Cases of Public 
Employment Discrimination 
Raising the Issue.

D. Affirmative Minority Hiring Goals Are Feasible and 
Constitutional.

II. THE DISTRICT COURT ERRED IN FAILING 
TO REQUIRE THE DEFENDANTS TO ADHERE 
TO STRICT STANDARDS OF TEST VALIDATION.

III. THE DISTRICT COURT ERRED IN FAILING 
TO REQUIRE DEFENDANTS TO OFFER 
PLAINTIFFS EMPLOYMENT AND TRAINING 
WITH BACK PAY.

CONCLUSION

1
2
7

7

7

9

13

16

21

25
29

-l-



TABLE OF AUTHORITIES

CASES PAGE

Bing v. Roadway Express, Inc., 444 F.2d 687
C5th Cir. 1971)..............................

Bridgeport Guardians, Inc, v. Bridgeport Civil 
Service Comm'n, 5 FEP Cases 1344 (2d Cir.
1973), aff'g in relevant part, 354 F. Supp.
778 (D. Conn. 1973) ........................

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 19 71) 
(en banc), cert, denied, 406 U.S. 950 
(1972) ....................................

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972).
Chance v. Board of Examiners, 458 F.2d 1167

(2d Cir. 1972)..............................
Commonwealth of Pennsylvania v. 0 Neill, 473

F.2d 1029 (3d Cir. 1973) ....................
Contractors Ass'n of Eastern Pennsylvania v.

Sec'v of Labor, 442 F.2d 159 (3d Cir.
1971), cert, denied, 404 U.S. 854 (1971). • •

Griggs v. Duke Power Co., 401 U.S. 424,91 S.Ct. 849, 28 L.Ed.2d 158 (1971) . . . .
Harkless v. Sweeny Indep. School Dist., 427

F.2d 319 (5th Cir. 1970) ..................
Interstate Circuit Inc^, v. Un ite d St ates,

306 U.S. 208, 59 S.Ct. 467, 83 L.Ed.610 
(1939) ....................................

Lee v. Macon County Bd. of Educ., 453 F.2d
1104 (5th Cir. 1971) ......................

Local 53. Asbestos Workers v. Vogler, 407 F.2d 
1047 (5th Cir. 1969)......................

Local 189, United Papermakers v. United States, 
416 F.2d 980 (5th Cir. 1969), cert, denied, 
379 U.S. 919 (1970) ........................

Louisiana v. United States, 380 U.S. 145,
85 S.Ct. 817, 13 L.Ed.2d 709 (1965) ........

17

10,15,16,22,25

10,14,18,20 
10 ,14,25

22

10,15,25

20

8

11,29

27

26

10,20

18

10

-li-



Morrow v. Cris ler, 5 EPD 11859 0 , p. 7 72 8 (S.D. 
Miss. May 25, 1972) .................... 21

NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala.1972)   6,16 ,29
Parham v. Southwestern Bell Tel. Co., 433

F. 2d 421 (8th Cir. 1970) ......................  26
Quarles v. Philip Morris, Inc., 279 F. Supp.

505 (E.D. Va. 1968)..............................  11
Rowe v. General Motors Corp., No. 28959

(5th Cir. Mar. 2, 19 7 3 ) .......................  26
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 

(5th Cir. 1970), cert, denied, 401 U.S.
948 (1971) ....................................  11

Southern Illinois Builders Ass'n v. Ogilvie,
471 F. 2d 680 (7th Cir. 1972)...................  20

Sparks v. Griffin, 460 F.2d 433 (5th Cir.
1972)..........................................  29

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554

(1971)...........................................11
Turner v. Fouche, 396 U.S. 346, 90 S.Ct.

532, 24 L. Ed . 2 d 567 (1970)......................  18
United States v. Georgia Power Co., 474 F.2d

906 (5th Cir. 1973)...............................8
United States v. Haves Internat'l Corp., 415

F. 2d 1038 (5th Cir. 1969)........................H
United States v. Jacksonville Terminal Co.,

451 F.2d 418 (5th Cir. 1971), cert, denied,
406 U.S. 906 (1971)   12 ,25

United States v. Local 46, Lathers, 471 F.2d
408 (2d Cir. 1973)...............................10

United States v. Local 86 Ironworkers, 443 
F. 2d 544 (9th Cir. 1971), cert, denied,
404 U.S. 984 (1971), aff'g, 315 F. Supp.
1202 (W.D. Wash. 1970)..........................  10

United States v. Local 212, IBEW, 472 F.2d 634
(6th Cir. 1973)..........   1°

-iii-

_____ _____________________________ ______ _____-  , u  ■ ,W H ' till ■ I M l I. I ......... W M M
*• '. >.<« . ■ UMHP."1 r*'- '— ■' i  -»-V II.



united States v. N. L. Industries, 5 EPD 118529 ,
- reh'g deiTI^d, 5~EP^T862 8 (8th Cir. 19 73) . •
United States v. Texas Education Agency, 459 
---F.2d GOO (5th Cir. 19 72) . ................
Vogler v- McCarty, Inc., 451 F.2d 1236 (5th
—  Cir. 1971)................................

29

20

10

OTHER AUTHORITIES

Equal Employment Opportunity Commis 
on Employee Selection Procedures

sion1s Guidelines
, 29 CFR 1607 . • 25

Science Research Associates, Inc 
Report for the First Civilian 
the AGCT, p. 6 (19 6ul • • •

, Technical 
Edition~of 24

-iv-



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
W.o. DILLARD, Commissioner of Public Safety 
of Mississippi; WILLIAM L. WALLER, Governor 
of Mississippi; WOOD STRINGER, JR., Chief of 
Patrol; BILLY HARPER, Personnel Director of 
the Mississippi Department of Public Safety,

Defendants-Appellees- 
Cross Appellants.

Appeals from the United States District Court for the 
Southern District of Mississippi

SUPPLEMENTAL BRIEF FOR APPELLANTS ON REHEARING EN BANC

OPINIONS BELOW

The memorandum opinion of the District Court granting 
plaintiffs passive relief but denying affirmative hiring relief



is unreported in the official reports but may be found at
4 CCH Employment Practices Decisions [hereinafter EPD]

' 11̂7563, and is reprinted in the Appendix at 432-74. The 
Judgment and Order for Declaratory and Injunctive Relief 
is found at 4 EPD 1(7541 and in the Appendix at 475-84. A 

I prior opinion denying defendants' motion to dismiss is found
at 3 EPD 1(8119. A subsequent order reassessing the amount 
of attorney's fees awarded counsel for the plaintiffs may be
found at 4 EPD 1(7584 , and is reprinted in the Appendix ati
4 9 8 -9 9 . A further opinion modifying the judgment and denying 
plaintiffs further relief on the testing issue may be found

I
at 5 EPD 1| 8 5 9 0 .

BRIEF STATEMENT OF THE CASE 
The two plaintiffs, Willie L. Morrow, a black 

veteran with more than three years of police training and ;
experience in the Air Force (App. 48-55), and Jerome Mangum, j:j a black college student at Jackson State College (App. 138),
requested and were denied application forms for employment 
with the all-white Mississippi Highway Patrol in June, 1970, j
even though they were objectively qualified for Patrol employ j
ment (App. 350-51) and white applicants at the same time were 
given application forms (testimony of Gary E. Brown, App. 199- 
201) and were permitted to apply for employment (testimony of 
Charles E. Snodgrass, Personnel Director, App. 336-38, 358-64).

Plaintiffs filed this class action on July 30, 1970 
on behalf of a class defined by the District Court as including

I ]

-2-

—  —



"dii 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), and sought comprehensive 
declaratory and injunctive relief against racial discrimina­
tion in hiring and employment conditions in the Mississippi 
Department of Public Safety and the Mississippi Highway Patrol 
pursuant to the Fourteenth Amendment, Title VI of the Civil 
Rights of 1964, 42 U.S.C. § 2000d, and 42 U.S.C. §§ 1981 
and 1983 (App. 1-13). The District Court on September 29,
1971 held that the statistical evidence showing that since 
1938 the Patrol had never hired a black person as a sworn 
officer in a state which currently is 36.79 percent black 
(1970 Census), and that of the 743 employees of the Mississ­
ippi Department of Public Safety, only 17— the cooks and 
janitors— were black, showed "a pattern and practice of 
racial discrimination in hiring and employment practices" 
by the Department of Public Safety and Highway Patrol, and 
entered a passive decree on October 18, 1971 prohibiting future 
racial discrimination in employment practices. However, the 
District Court refused to (1) grant specific relief to plain­
tiffs, including offers of employment and back pay; (2) order 
affirmative hiring relief to the plaintiff class of qualified 
blacks interested in employment with the Patrol; (3) enjoin 
categorically the use of pre-employment tests which were

-3-



racially discriminatory and not validated for business 
necessity; and (4) award plaintiffs their attorneys fees 
at the generally prevailing rate for Federal litigation.
After this appeal was filed, the District Court on the 
motion of defendants modified its injunctive order to 
relieve the defendants of the duty of compliance in filling 
five top positions in the Department, eight Governor's 
bodyguard positions, and two secretarial positions (order 
included in the Brief for Appellants as Exhibit C in the 
Addendum). Defendants also filed a cross-appeal challenging 
the findings made and relief ordered by the District Court.

On April 18, 1973, a panel of this Court in a 
2—1 decision (Judge Goldberg dissenting) affirmed the injunc 
tion issued by the District Court finding principally that 
although the District Court articulated no reasons for its 
failure to grant affirmative hiring relief for the plaintiff 
class, the refusal to order affirmative hiring relief never 
theless was within the discretion of the District Judge. 
Plaintiffs' petition for rehearing en banc was granted August
6, 1973.

Since the District Court's decree was entered, 
relatively little actual integration of the work force of the 
Department of Public Safety and Highway Patrol has been 
accomplished. As of May 3, 1973, eighteen months after the 
decree, only 13 black persons (excluding cooks and janitors) 
had been employed by the Department of Public Safety (which

-4-



has more than 700 employees), and only 4 black sworn patrol­
men had been hired in the Highway Patrol of the 363 sworn 
officers employed.

The current hiring statistics as of May 3, 1973,
contained in plaintiffs' motion to supplement the record filed
May 7, 1973, based on statistics required by the decree to be
kept by defendants, and admitted as accurate by the defendants
in their response to plaintiffs' motion filed May 21, 1973,
show that since the decree the Department has employed (new-
hires) 186 persons, and of these 173 have been white (93.0
percent) and only 13 have been black (7.0 percent), which
includes one black in recruit training who subsequently has been
discharged. Of the 51 Highway Patrolmen hired since the
decree, 47 have been white (92.2 percent), and only 4 have
been black (7.8 percent). Of the 99 support personnel hired
since the decree, 91 have been white (91.9 percent) and only
8 have been black (8.1 percent) (excluding cooks and janitors).

The rate of hiring of blacks as Highway Patrolmen
has steadily decreased since the decree, as shown by the May 3
statistics on graduation and enrollment (April 22, 1973 class)
in the Patrol's recruit training classes:
Date of Recruit 
Training Class
June 18, 1972 (graduates)
January 7, 1973 (graduates)
April 22, 1973 (class in 
session as of May 3, 19 73)
1/ The 1 black person Tn the recruit training class which 
commenced April 22 , 1973 subsequently was d i s c h .
the last completed Patrol recruit training Rnnpllants'Affidavit of Edwin Milford Buckley, attached to Appellant
Reply Brief on petition for rehearing.

Total White Black % Black
31 28 3 9.7%
20 19 1 5.0%
36 35 l V 2.8%

-5



In contrast, in a shorter period of time (February 
10 , 1972 to April 27, 1973) the Alabama Department of Public 
Safety, placed under a one-for-one alternating white and 
black hiring ratio in NAACP v. Allen, 340 F. Supp. 703 (M.D.
Ala. 1972), on appeal No. 72-1796 , has hired four times as 
many black employees as Mississippi, including three times as 
many black patrolmen, and five times as many black support 
personnel in a state with a smaller percentage of blacks in the 
total population (26.2 percent black) than Mississippi (36.8 
percent black). See Report Concerning Compliance With Order, 
NAACP v. Allen, filed April 27, 1973, attached to plaintiffs' 
motion to supplement record. A comparision of racial hiring 
since the date of the respective decrees is shown in the 
following table, with Mississippi figures taken from defendants' 
records as of May 3, 1973, and the Alabama figures taken from 
the April 27, 1973 compliance report:

NEW HIRING
Mississippi
(From Oct. 18, 1971; 
state is 36.8% black)

Alabama
(From Feb. 10 , 19 72; state is 26.2% black)

Total White Black Total White Black
New hires 186 173 13 (7.0%) 96 44 52 (54.2%)
Patrolmen 51 47 4 (7.8%) 25 13 12 (48.0%)
Support 2/ (56.3%)personnel 99 91 8 (8.1%) 71 31 40
Currently in recruit 
training as 
of May 3 36 35 1 (2.8%)
2/ Includes 1 part-time toxicologist, 1 temporary clerk, and 
T clerk hired but not yet working as of May 3, 1973, excludes 
cooks and janitors. _c_



Defendants' statistics show that Mississippi s 
tokenism and continued discrimination in hiring is not the 
result of lack of interest among Mississippi black persons in 
joining the Patrol, but rather in substantial part is the 
result of racial discrimination in testing. Since the decree, 
149 blacks have applied for patrolmen positions and were 
considered sufficiently qualified to be notified to appear for 
testing, according to defendants' most recent reports. Of 
the 108 black applicants who appeared for testing during this 
period and took the defendants' Army General Classification 
Test, a test instituted since the decree and not yet validated 
for successful job performance with the Patrol, only 9 have 
passed (pass rate of 8.3 percent for blacks). In contrast, 
of the 317 whites who appeared for testing during this period 
and took the test, 209 have passed (pass rate of 65.9 percent
for whites).

ARGUMENT
I. THE DISTRICT COURT ERRED IN FAILING TO 

ORDER AFFIRMATIVE HIRING RELIEF TO 
REMEDY THE PRESENT EFFECTS OF PAST 
DISCRIMINATION IN HIRING.____________
A. The Findings of the District 

Court Compel Affirmative 
Minority Hiring Goals.______

The District Court found, and the panel unanimously 
sustained its findings, that the defendants have engaged in a 
firmly entrenched, systematic, and pervasive pattern and 
practice of discrimination against blacks in hiring and other

-7-



I

conditions of employment in the Mississippi Department of 
| Public Safety and the Mississippi Highway Patrol. This { j

finding is supported by statistical evidence of complete
i

exclusion of blacks from patrolmen and support positions, 
except as menial labor, as well as by undisputed evidence of

.■jidentifiable discriminatory practices, including (1) informal 
word-of-mouth and "friends and relatives" recruiting and 
hiring (App. 454, 457) which perpetuates the all-white nature 
of the work force, see United States v. Georgia Power Co., 474 
F.2d 906, 925 (5th Cir. 1973); (2) recruiting efforts
predominantly among whites, and the use of recruiting aids 
portraying an all-white Patrol (App. 455-56); (3) the use of 
qualifying examinations which have not been validated for 
successful job performance (App. 453), see Griggs v. Duke 
Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); 
and (4) the lack of any written rules or regulations prohibiting 
the use of derogatory racial epithets, which have been used by 
patrolmen in addressing blacks (App. 456).

Further, the District Court found, and the panel 
sustained its findings, that the Department and the Highway 
Patrol "have had a reputation throughout the State of Mississippi, 
and particularly among the Black communities, as being an all- 
white Department and Patrol, which has discouraged Blacks . . .
from applying for membership, particularly as sworn officers 
of the Patrol . . . "  (App. 457). These findings are under-
lined by the 1970 study made by the International Association

I

-8-



of Chiefs of Police and approved by the Mississippi state 
law enforcement planning agency which found: "A synthesis
of the opinion of the Negro community about the Mississippi 
Highway Patrol seems to suggest that it, too, represents 
in the Negro mind another repressive force of the white 
community" (App. 287-88).

The findings of the District Court clearly indicate, 
as Judge Goldberg notes in his dissenting opinion, that "the 
barriers to black entry into the Highway Patrol that defendants 
erected and tolerated have been formidable" (slip opinion at 
19). On these facts, the deterrent to substantial numbers of 
qualified blacks applying, and being accepted, for employment 
with the Department of Public Safety and the Highway Patrol 
is so great that the imposition of affirmative minority 
hiring goals is compelled if substantial integration is to 
be achieved.

B. Affirmative Hiring Relief to Remedythe Present Effects of Past Discrimina­
tory Hiring Practices is Constitutionally 
Required.________________  ____________

The Constitution not only prohibits states from 
discriminating in employment on the basis of race, but also 
requires that effective steps must be taken to remedy the 
present effects of past discrimination. In the face of 
constitutionally prohibited racial discrimination, the Supreme 
Court has held that District Courts have "not merely the power 
but the duty to render a decree which so far as possible 
eliminate the discriminatory effects of the past as well as

-9



bar like discrimination in the future." Louisiana v. United 
States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1905).

Mindful of this constitutional requirement and 
uniformly applying it to cases of employment discrimination, 
on the basis of facts far less compelling than are present 
here, this Court and seven other courts of appeals, including 
the First, Second, Third, Sixth, Seventh, Eighth, and Ninth 
Circuits, have both in Title VII and public employment hiring 
discrimination cases, required or approved district court decrees 
which include affirmative minority hiring goals. Local .53, 
Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969);
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); United 
States v. Local 46, Lathers, 471 F.2d 408 (2d Cir. 1973) , 
cert, denied, 41 U.S.L.W. 3645 (U.S. June 11, 1973); Bridge; 
port Guardians, Inc, v. Bridgeport Civil Service Common, 5 
PEP Cases 1344 (2d Cir. 1973), aff'9 in relevant part, 354 
F. Supp. 778 (D. Conn. 1973); Commonwealth of Pennsylvania v.
O.Neill, 473 F.2d 1029 (3rd Cir. 1973); United States v.
Local 212, IBEW, 472 F.2d 634 (6th Cir. 1973); United States 
v. Local 169. Carpenters, 457 F.2d 210 (7th Cir. 1972), cert, 
denied, 93 S.Ct. 63 (1972); Carter v. Gallagher, 452 F.2d 
315, 327 (8th Cir. 1972) (en banc), cert, denied, 406 U.S.
950 (1972); United States v. N. L. Industries, 5 EPD 118529 , 
reh’g denied, 5 EPD 118628 (8th Cir. 1973); United States v.
Local 86 ironworkers, 443 F.2d 544 (9th Cir. 1971), cert, 
denied, 404 U.S. 984 (1971), aff’9, 315 F. Supp. 1202 
(W.D. Wash. 19 70) .

- 10-

------' >. — M B—



Constitutional rights won upon trial are never
fully realized unless adequate relief is prescribed, and a 
court of equity has wide-ranging authority, including the 
use of mathematical ratios, to decree whatever relief is 
necessary to remedy constitutional violations. Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25, 91 S.Ct. 
1267, 28 L.Ed.2d 554 (1971). A remedy is not sufficient if 
it merely forbids future discrimination. The statutes invoked 
here have been held by this Court to provide "a comprehensive 
remedy" for relief from employment discrimination, Harkless v. 
Sweeny Indep. School Dist., 427 F.2d 319, 324 (5th Cir. 1970)
(42 U.S.C. § 1983), and to contain "general remedial language." 
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1101 (5th Cir. 
1970) (42 U.S.C. § 1981), cert, denied, 401 U.S. 948 (1971).
Congressional anti-discrimination legislation was "not 
intended to freeze an entire generation of Negro[es] . . . into
discriminatory patterns that existed before the act[s]."
Quarles v. Philip Morris, Inc., 279 F. Supp. 505, 516 (E.D.
Va. 1968), quoted with approval, United States v. Hayes 
Intemat11 Corp. , 415 F.2d 1038, 1045 (5th Cir. 1969).

Hence, to the extent possible, the relief granted 
in employment discrimination cases must place the victims of 
discrimination in the positions they would have occupied but 
for the discriminatory practices of the defendants. "When the 
current effects of past— and sometimes present— racial discri­
mination have come to our attention, this Court has unhesi­
tatingly required affirmative remedial relief." United States

-11-



v. Jacksonville Terminal Co., 451 F.2d 418, 455 (5th Cir. 1971), 
cert, denied, 406 U.S. 906 (1971).

Because of racial discrimination in hiring, quali­
fied blacks have been completely excluded from the work force 
of the Mississippi Department of Public Safety and the 
Mississippi Highway Patrol, except in the most menial positions. 
Since this racial exclusion is directly attributable to the 
Constitutional violation found by the District Court to exist, 
and unanimously affirmed by the panel, an effective remedy 
for this violation must deal directly with the issue of 
wholesale exclusion. A swift, effective means, which excludes 
the possibility of "covert subversion of the purpose of the 
injunction," Vogler, supra, 407 F.2d at 1055, must be devised 
affirmatively to include qualified blacks in the defendants' 
work force, and they must be affirmatively included in sufficient 
numbers to overcome the present effects of the past discrimi­
nation, that is, to place the plaintiff class of qualified 
blacks in the position they would have attained but for the 
violation. "Affirmative action is necessary to remove these 
lingering effects." United States v. Hayes Internat'l Corp.,
456 F.2d 112, 117 (5th Cir. 1972). This is not to say that 
a permanent system of quota hiring, or the like is required.
Once the Constitutional violation has been remedied, and the 
rights of the plaintiff class have been vindicated by the 
affirmative employment of blacks in sufficient numbers to 
overcome the decades of exclusion, the defendants can be

-12-



relieved of these constraints and blacks and whites can 
compete for positions on an equal basis.

The findings of the District Court show a firmly 
entrenched and pervasive pattern and practice of racial 
exclusion from employment which has existed for decades.
These findings also show that the barriers to black entry 
into positions in the Department and Patrol have been 
formidable. The most recent statistics show that eighteen 
months after the District Court's decree, the barriers have 
not been eliminated and blacks continue to be virtually 
excluded from these positions. The burden must be placed 
on the defendants to recruit qualified blacks and to hire 
them in positions in significant numbers as vacancies arise.

C. Plaintiffs' Request for Affirmative 
Minority Hiring Goals Is Supported 
by the Overwhelming Weight of Authority;
Every Court of Appeals Has Required or 
Approved Affirmative Hiring Ratios in Cases 
of Public Employment Discrimination 
Raising the I s s u e . _________________

Because the Constitution requires affirmative steps 
to eradicate the present effects of past discrimination, the 
failure of the District Court to provide appropriate 
affirmative remedies constitutes an abuse of discretion and 
requires modification of the decree. Every court of appeals 
faced with the question of ordering affirmative hiring goals 
has required or approved their use as a means of remedying 
the effects of past discrimination. Four circuits have

-13-



required or upheld their use in public employment diocrimina 
t-ion cases, three involving police departments.

In Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972), 
involving non-purposeful racial discrimination in recruiting 
and hiring of policemen for the Boston Police Department and 
other police agencies, the district court held that the 
qualifying examinations were discriminatory but declined to 
order affirmative hiring relief to correct racial under 
representation on the police agencies involved, primarily 
because of its definition of the breadth of the aggrieved 
class. The First Circuit held that because of the court's 
duty to remedy past discrimination, "some form of compensa­
tory relief is mandated" (459 F.2d at 736). Affirmative 
hiring relief was held to be required: "if relief in the near 
future is to be more than token, further provision is 
necessary" (id. at 737). The district court was directed to 
establish hiring pools, one for whites and one for minority 
group members, qualified under non-discriminatory standards 
and that applicants be hired from those pools according to a 
fixed ratio, one-for-one, one-for-two, or one-for-three.

The Eighth Circuit in Carter v. Gallagher, 452 F.2d 
315, 327 (1972) (en banc), cert, denied, 406 U.S. 950 (1972), 
upon a district court finding of racial discrimination in 
hiring for the Minneapolis, Minnesota Fire Department, 
provided for a one-to-two alternating minority and white 
hiring ratio, although it recognized that a one-to-one ratio 
had been approved for "areas with a more substantial minority

-14-



population than the Minneapolis area,-' (452 F.2d at 331), 
which was only 6.44 percent minority. Recognizing "the 
legitimacy of erasing the effects of past racially 
discriminatory practices," (452 F.2d at 330) the court held 
tli at

"in making meaningful in the immediate 
future the constitutional guarantees 
against racial discrimination, more than 
a token representation should be afforded.* * * Given the past discriminatory hiring 
policies of the Minneapolis Fire Department, 
which were well known in the minority 
community, 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.
Very recently, the Second Circuit in Bridgeport 

Guardians, Inc, v. Bridgeport Civil Service Comm'n, 5 FEP 
Cases 1344 (1973) (No. 73-1356 , June 28, 1973), holding that 
the relief was appropriate to cure past discrimination, sustained 
a district court injunction granting relief from non-purpose- 
ful racial discrimination in hiring by the Bridgeport,
Connecticut Police Department which required that minorities 
be hired to fill (1) half of the current 10 patrolman vacancies,
(2) three-fourths of the next 20 patrolmen vacancies, and
(3) half of all subsequent vacancies until the goal of 50 
minority patrolmen— 15 percent of the force— had been reached.
354 F. Supp. 778, 79 8-99 (D. Conn. 1973).

Similarly, in Commonwealth of Pennsylvania v. 0 1 Neill, 
473 F.2d 1029 (3d Cir. 19 73) (en banc) the Third Circuit

-15-



sustained a preliminary injunction entered by the district 
court requiring a one-for-two black-white hiring ratio to 
cure racial discrimination in hiring by the Philadelphia, 
Pennsylvania, Police Department. 348 F. Supp. 1084, 1105 
(E.D. Pa. 1972).

D. Affirmative Minority Hiring Goals Are 
Feasible and Constitutional._________

Minority hiring goals, whether in the form of one- 
for-one hiring, the creation of priority hiring pools, or a 
minority preference such as ordered in the Bridgeport 
Guardians case, provide the most effective and efficient 
means of overcoming past discrimination in hiring practices.
They are the one remedy that will insure results and are not 
susceptible of evasion.

On almost identical facts as exist in this case,
Judge Johnson in NAACP v. Allen, 340 F. Supp. 703 (M.D.
Ala. 1972), on appeal No. 72-1796, consistent with his 
recognized duty "to correct and eliminate the present effects 
of past discrimination" (340 F. Supp. at 705) ordered (1) one- 
for-one alternating white and black hiring until the racial 
composition of the Alabama State Troopers approximated the 
racial composition of the state population (approximately 25 
percent), (2) further recruit training classes enjoined until
they were 25 percent black, and (3) one-for-one alternating 
white and black hiring of support personnel in the Department 
of Public Safety until the racial composition of support person­
nel was approximately 25 percent black (340 F. Supp. at 706).

-16-



The order properly places on the defendants, the 
perpetrators of unlawful discrimination, the burden of 
recruiting qualified personnel: "It shall be the responsibility 
of the Department of Public Safety and the Personnel Depart­
ment to find and hire the necessary qualified black troopers" 
(id.). These minority hiring goals also provide a powerful 
incentive to the defendants to abolish their discriminatory 
tests and entrance requirements, and to develop reasonable, 
job-related, and non-discriminatory entrance requirements and 
employment standards. The hiring statistics show that since 
the date of the decree, the relief ordered has gone far to 
remedy the effects of past discrimination and shows how little 
has been accomplished toward that end by the Mississippi decree.

Mississippi's population according to the 1970 
Census (which has been questioned for unde renumerating blacks) 
was 36.79 percent black, and it is valid to assume, as 
courts have done in other cases, that but for discrimination 
in employment the racial composition of the Mississippi Highway 
Patrol and Department of Public Safety would approximate this 
figure. Indeed, the District Court itself, and the cases upon 
which it relied, utilized this population criterion in reaching 
its finding of a "prima facie case of racial discrimination in 
hiring personnel for the Department and the Patrol." Opinion, 
Conclusions of Law, par. 4 (App. 464); Bing v. Roadway Express, 
Inc. , 444 F. 2d 687 (5th Cir. 1971).

It logically follows that, any relief which falls 
short of approximating the racial composition of the Mississippi



population in the Department and Patrol also fails to over­
come the prima facie case of racial discrimination found by 
the District Judge, and serves to perpetuate the racially 
discriminatory hiring practices of the past- Cf. Turner v. 
Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 24 L.Ed.2d 567 
(1970). In Carter v. Gallagher, supra, the Eighth Circuit 
(en banc) expressly recognized this reasoning when it held that

"some reasonable ratio for hiring minority 
persons who can qualify under the revised 
qualification standard is in order for a 
limited period of time or until there is a fair approximation of minority representation 
consistent with the population mix in the area- 
452 F.2d at 330 (emphasis added).
In opposing plaintiffs' request for affirmative 

hiring relief, the defendants have argued (1) that if required 
to follow a hiring ratio, they would be unable to find a 
sufficiently large number of qualified blacks interested in 
Patrol employment to meet the ratio, and (2) that such a ratio 
would constitute an unconstitutional preference for blacks and 
discrimination against qualified white applicants.

1. Finding the Qualified Black Applicants 
The argument frequently has been made to this Court 

by defendants found guilty of racially discriminatory employ­
ment practices that they cannot remedy the present results of 
their discrimination because of a lack of qualified blacks to 
fill positions formerly reserved for whites, and the argument 
uniformly has been rejected. United States v. Hayes Internat 1 
Corp. , 456 F. 2d 112, 120 (5th Cir. 19 72); Local 189, United

-18-



Pace rmake rs v. United States , 416 F.2d 9 80 , 988 (5th Cir. 
1969), cert, denied, 397 U.S. 919 (1970). The burden of 
proving the unavailability of qualified black applicants 
is on the defendants, id., and there is nothing in the Record 
which proves this allegation. In face the District Court 
specifically found that the defendants had failed to rebut 
the statistical prima facie case by showing that the all- 
white composition of the Highway Patrol was the result of 
factors other than racially discriminatory hiring and 
employment practices (App. 465-66).

The supplemented Record shows that since the date 
of the decree 149 black applicants met the statutory 
requirements for Patrol employment and were invited by the 
defendants to take the qualifying examination. The fact 
that only 9 passed the examination does not prove that they 
were unqualified, but on the contrary clearly establishes 
the racially discriminatory impact of the examination itself. 
Certainly the defendants should not be permitted to rely on 
racially discriminatory hiring criteria as a defense to 
enable them to maintain a virtually all-white Patrol.

2. The Constitutionality of a Minority 
Hiring Remedy_______ ___________

Experience has shown, and the court decisions 
discussed herein have uniformly upheld the notion, that to 
eradicate past discrimination in hiring, particularly when 
it has been so pervasive as in this case, some temporary 
hiring guarantees must be given to qualified minority group

-19-



applicants. When such programs are designed to overcome 
past discrimination, they are not preferential to the 
disadvantage of whites, but provide only a temporary remedy 
toward achieving the goal which would have been obtained 
but for the illegal discrimination. In Local 53, Asbestos 
Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969), this Court 
affirmed a district court decree requiring that four minority 
group members be admitted to union membership, that nine others 
be referred for work, and that future work referrals alternate 
between white and black persons until objective membership 
criteria had been developed, and in affirming the injunction 
the Court held that such effective remedies for past discrimi­
nation do not constitute an unlawful preference in violation 
of the rights of whites under Title VII of the Civil Rights 
Act of 1964. 407 F.2d at 1053. The holding was reaffirmed
in the sequel to that case, Vogler v. McCarty, Inc., 451 F.2d 
1236 (5th Cir. 1971).

Such an argument as defendants make has uniformly 
been rejected, both in cases challenging the constitutionality 
of court-imposed affirmative minority hiring goals in public 
employment discrimination cases, see, e.g., Carter v. Gallagher, 
supra, and in cases challenging the constitutionality of 
affirmative minority hiring plans mandated by Federal 
administrative agencies pursuant to Executive Order 11246, 
Southern Illinois Builders Ass'n v. Ogilvie, 471 F.2d 680 
(7th Cir. 1972); Contractors Ass'n of Eastern Pennsylvania v.

-20-



„.v of Labor. 442 F.2d 159 (3d Clr. 1971), cert, denied,
404 U.S. 854 (19 71).

II. THE DISTRICT COURT ERRED IN FAILING TO 
REQUIRE THE DEFENDANTS TO ADHERE TO 
STRICT STANDARDS OF TEST VALIDATION.

After the District Court's decree was entered, the 
defendants discontinued use of the Otis Quick Scoring Mental 
Ability Test and the oral spelling which they had been using 
and replaced them with the Army General Classification Test 
(AGCT) published by Science Research Associates, Inc. The 
evidence produced at the hearing on plaintiffs' subsequent 
motion to discontinue use of the AGCT showed that the test 
had a dramatic racially discriminatory impact: of the 56 black 
applicants who took the test, only 3 passed (pass rate of 5.4 
percent), but of the 171 whites who took the test, 105 passed 
(pass rate of 61.4 percent). Morrow v. Crisler, 5 EPD 118590 , 
p. 7728 (S.D. Miss. May 25, 1972). Persons who "fail" this 
test, or who do not receive "passing scores," are disqualified 
from Patrol employment.

Defendants' records of test results from the date 
of the decree to May 3, 1973, attached to plaintiffs' motion 
to supplement the record filed May 7, 1973, show that during 
this 18-month period, of the 108 black applicants who took 
the test, only 9 have passed (pass rate of 8.3 percent for 
blacks), while of the 317 whites who took the test, 209 
have passed (pass rate of 65.9 percent for whites). The 
passing rate for whites has thus been more than 8 times the

-21-



passing rate for blacks over this period. Courts in other 
public employment cases have enjoined the use of written 
qualifying examinations on the basis of racial disparities 
far less striking than these Bridgeport Guardians, Inc, v. 
Bridgeport Civil Service Comm'n, 354 F. Supp. 770, 784 (D.
Conn. 19 73) (passing rate for whites 3-1/2 times rate for 
minorities), aff'd in relevant part, 5 FEP Cases 1344 (2d 
Cir. 1973); Chance v. Board of Examiners, 458 F.2d 1167,
1170 (2d Cir. 1972) (passing rate for whites 1-1/2 and 2 
times the rate for minorities).

There is no evidence in the Record indicating that 
the AGCT has been properly validated to show a high 
correlation between test scores and successful job performance 
on the Patrol. At the hearing on plaintiffs' motion for 
interlocutory relief pending appeal the Department of Public 
Safety's Personnel Director testified that he had no evidence 
that the test had been validated for successful job performance 
with the Patrol (May 19, 1972 Hearing Transcript, pp. 17-18,
23, 35, Supp. R.). After the May 19, 1972 hearing, at which 
the defendants presented no proof of validation in the face 
of evidence showing a severe racially discriminatory impact, 
the classification and test supervisor of the Mississippi 
Classification Commission filed with the District Court an 
affidavit, completely depriving plaintiffs of the opportunity 
of cross-examination, indicating that studies in other parts 
of the country showed a high correlation between test scores

»•
-22-

-----------~—



on the AGCT and grades in recruit training, but omitting 
reference to actual job performance, and that the same 
test was given recruits for the North Carolina Highway 
Patrol, but without reference to whether that agency's 
hiring practices are discriminatory. A subsequent 
affidavit (filed after the District Court's decision) by 

Philip Ash, a noted authority on the discriminatory 
impact of testing, rebuts the defendants' affidavit and shows 
that the use of the AGCT by the defendants is racially 
discriminatory and indefensible according to professionally 
acceptable standards (Supp. R.) .

While refering to the defendants' affidavit, the
District Court in its decision on plaintiffs' motion did not
hold that the AGCT would serve to eliminate the discriminatory
hiring practices of defendants, but rather held only that it
lacked the power to enforce its own decree while this case
was on appeal to this Court:

"Under the circumstances of this case, this Court is of the opinion that it cannot and 
should not exercise any jurisdiction pursuant 
to Rule 62(c), F.R.C.P., or under its general 
equity powers to completely reopen this case 
while on appeal to consider whether the test 
administered by the Mississippi Classification Commission was racially discriminatory or 
administered in a racially discriminatory manner."5 EPD 1(8590 , p. 7729.
The Army General Classification Test is a psychological 

test administered to Army recruits during World War II. As 
described by its publisher,

-23-



test r a t h e ^ Gsigned as. a classification
tests servo to di?tinSui-b"h ^eSt* Screening ,n,i , ° distinguish between acceptableand unaceeptabie applicants for a given job
is « l a n? r ™ lmplies' 3 edification ?es?^  * tof measure the different levels ofability, for the purpose of assignment amona those previously select-^ « amon9Aqqnmnfoe T Y faexected. Science Research ates, fno. , Technical Report for t-ho
Trff^ Cxvilaan Edition of the' AGCT. n. fi--
TiS,,l,, ‘«»wn5a-E5-a»-5oSrFaroiai argument) .

Thus, the use to which defendants are putting this test is
wholly inconsistent with the function for which it was intended 
by its publisher.

The AGCT consists of three parts— vocabulary, 
arithmetic, and block counting. Its publisher admits that 
studies conducted on test performance for whites, blacks, 
Mexican-Americans, and Indians shows that test scores are
lower for minority groups, and therefore that the test is 
culturally and racially biased:

n?i?c\thS AGCT ^ t i t a t i v e  and verbal ?vaLtS haYe ltems that are informational in type, and since speed is a factor, it may
be somewhat- ^hat Scores for these items would 
g?oups?"haitd?ePr29?d f°r cultu«lW-deprived
The test publisher also cites studies of the St.

Louis Police Department (not indicating whether any blacks 
were tested) showing that although scores on the AGCT correlated 
highly with "academic scores" in the "police officer training 
program," there was a low correlation between test scores and 
actual job performance: "The correlations with these service
ratings [used as the measure of job performance) were low 
for . . . the AGCT , . ... Ifl. at 21> 22_

-24-



The Supreme Court (Griggs v. Duke Power Co. supra)
and the courts of appeals frequently have found racially 
discriminatory and unvalidated qualifying examinations to be 
a prime source of racial discrimination in hiring, particularly 
in hiring procedures for police departments. Castro v. Beecher, 
supra; Bridgeport Guardians, Inc, v. Bridgeport Civil Service 
Comm'n , supra; Commonwealth of Pennsylvania v. 0'Neill, supra. 
The Supreme Court has approved, Griggs v. Duke Power Co., 
supra, 401 U.S. at 433-34, and this Court has adopted the 
Equal Employment Opportunity Commission's Guidelines on 
Employee Selection Procedures, 29 CFR 1607, as "the safest 
validation method," United States v. Jacksonville Terminal Co., 
supra, 451 F.2d at 456, for insuring that employment tests are 
not racially discriminatory and that they are properly validated 
to show a high correlation between test scores and successful 
job performance. The injunction issued by the District Court 
therefore should be modified to prohibit the defendants from 
using any employment tests as a condition for employment with 
the Department of Public Safety and Highway Patrol which 
have not been properly validated for a high correlation of job­
relatedness according to the EEOC Guidelines.

III. THE DISTRICT COURT ERRED IN FAILING TO 
REQUIRE DEFENDANTS TO OFFER PLAINTIFFS 
EMPLOYMENT AND TRAINING WITH BACK PAY.

Since the individual named plaintiffs were refused 
applications for employment at a time when, according to

-25-



that the plaintiffs were refused application forms (testimony 
of Charles Snodgrass, App. 336-38, 358-64; Opinion, Conclusions 
of Law, par. 3, App. 463). Peden subsequently was enrolled 
in the September, 1970, all-white Patrol recruit training 
class (App. 448). Another white Mississippian, Gary E. Brown, 
was able to obtain an application form in the Personnel Office 
at this time (App. 199-201), and a white newspaper reporter 
was told by an officer in the Public Relations Bureau that 
he could go to Patrol headquarters and obtain an application 
(App. 211-23). These facts are uncontradicted in the Record.

Further, this employment embargo was supposed to 
have lasted from late February to July, and the exhibits 
show six application forms from white applicants bearing 
dates during this period (App. 500-505). If those applicants 
did not receive or submit their application forms on the 
dates placed on their forms, the burden was on the defendants 
to produce those applicants, who were the employees of the 
defendants, to rebut the presumption that they had been given 
preferred treatment during this period. Interstate Circuit, 
Inc, v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed.
610 (1939).

After the plaintiffs finally obtained application 
forms, in June, 1971, and applied for the next recruit 
training class, both of them continued to be excluded on 
discriminatory grounds. Plaintiff Willie L. Morrow, who had 
more than three years police training and experience in the

-27-

tOL



Air Force, passed the AGCT test was rejected because he was 
under the statutory minimum weight restriction of 165 lbs.
(May 19 , 19 72 Hearing Tr. , p. 39, Supp. R. ) , although the 
District Court had found in its opinion that prior to the 
filing of this suit "members of the Patrol [white] have been 
permitted to apply for patrol training even though they did 
not meet the statutory weight . . . requirements at the time
of their application" (Opinion, Findings of Fact, par. 18,
App. 452).

Plaintiff Jerome Mangum, a Jackson State College 
student at the time of his application, was rejected for 
receiving a failing grade on the AGCT (May 19, 1972 Hearing 
Tr., p. 17, Supp. R.) which whites applying prior to the 
decree had not been required to take. All of the 53 black
applicants recorded as "failed" had a high school diploma or
its equivalent, 10 had B .A. or B.S. degrees according to 
their application forms, and an additional 22 had one or more
years of college training (id., Pis. Ex. P-1, Ex. B). At
the trial of this action, the defendant Personnel Director had 
admitted that from their testimony and applications both of 
the named plaintiffs were objectively qualified for Patrol
employment (App. 350-51).

On these facts, this Court should hold that the
finding of the District Court that the plaintiffs were 
refused employment with the Highway Patrol for non-racial 
reasons is clearly erroneous, and that the plaintiffs are

-28-



qualified for Patrol employment by objective and non- 
discriminatory standards, and direct the District Court to 

the defendants to extend offers of employment and 
training to the plaintiffs, and grant them the back pay 
which they would have earned had they been accepted for 
and enrolled in the September, 1970 recruit training class 
and subsequently appointed to positions as patrolmen, 
diminished by interim earnings. Sparks v. Griffin, 460 
F"2d 433 (5th Cir. 1972); United States v. Texas Education 
A^enc^, 459 F.2d 600, 609 (5th Cir. 1972); Harkless v. Sweeney 
indep. School Dist. , 427 F.2d 319 (5th Cir. 1970), cert, 
denied, 400 U.S. 991 (1971).

CONCLUSION
For the above-stated reasons, and on the basis of 

the authorities cited, this Court should order that the District 
Court modify its decree in accordance with the relief requested 
by plaintiffs, and fully stated in the conclusion of the Brief 
for Appellants. In order to overcome the present effects of 
past discrimination in hiring, this Court should order the 
District Court to modify its decree in accordance with Judge 
Johnson's order in NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 
1972), except that the goal should be a Department and Patrol 
that is approximately 37 percent black, and recruit training 
classes should be 50 percent black to enable the defendants
to hire new patrolmen on a one-to-one alternating white and

/
l

-29-



black basis until the hiring goal has been reached.

Respectfully submitted,

FRANK R. PARKER " ~
Lawyers' Committee for Civil Rights Under Law 
233 North Farish Street 
Jackson, Mississippi 39201

Of Counsel:
Herman Wilson, Esquire 
Lawyers' Committee for Civil Rights Under Law 
233 North Farish Street 
Jackson, Mississippi 39201
Constance Iona Slaughter, Esquire Post Office Box 334 
Forest, Mississippi 39074

-30-



CERTIFICATE OF SERVICE

I certify that I have this day mailed, postage
prepaid, a copy of the foregoing Supplemental Brief for
Appellants on Rehearing En Banc to the following counsel

William A. Allain, Esquire P. 0. Box 220
Jackson, Mississippi 39205
Charles A. Marx, Esquire P. 0. Box 958
Jackson, Mississippi 39205
Heber A. Ladner, Jr. , Esquire P. 0. Box 220
Jackson, Mississippi 39205
William B. Fenton, Esquire Civil Rights Division 
United States Department of Justice Washington, D. C. 20530

This day of August, 1973.

Frank r . Par k er  —

Printed copies mailed this 
28th day of August, 1973