Morrow v. Dillard Supplemental Brief for Appellants on Rehearing En Banc
Public Court Documents
August 24, 1973

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Brief Collection, LDF Court Filings. Morrow v. Dillard Supplemental Brief for Appellants on Rehearing En Banc, 1973. 0e3dddcc-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e55d6944-b3f0-46b9-91d2-581335f6474f/morrow-v-dillard-supplemental-brief-for-appellants-on-rehearing-en-banc. Accessed April 19, 2025.
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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