Carmical v. Craven Supplemental Brief for Respondent

    UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

RICHARD L. CARMICAL, )
)

Petitioner-Appellant, )
)

vs. )
)

WALTER E. CRAVEN, Warden, )
California State Prison )
at Folsom, )

)
Respondent-Appellee. )

)
_________________________________________________ )

No. 26236

SUPPLEMENTAL BRIEF FOR RESPONDENT

EVELLE J. YOUNGER, Attorney General 
of the State of California

EDWARD P. O'BRIEN
Deputy Attorney General

GLORIA F. DeHART
Deputy Attorney General

6000 State Bldg.
San Francisco, Calif. 94102 
Telephone: 557-0799

Attorneys for Respondent-Appellee



TABLE OF CASES

j
Page

Carter v. Jury Commission, 
369 U.S. 320 (1970) 3

Griggs v. Duke Power Company, 
39 U.S.L.W. 4317 (1970) 1, 2, 3, 4

Turner v. Fouche,
369 U.S. 346 (1970) 3

STATUTES AND AUTHORITIES

2, 3

Civil Rights Act 

§ § 703 (a) , (h)



UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD L. CARMICAL, )
)

Petitioner-Appellant, )
)

vs. ) No. 26236
)

WALTER E. CRAVEN, Warden, )
California State Prison )
at Folsom, )

)
Respondent-Appellee. )

)
____________________________________________________ )

SUPPLEMENTAL BRIEF FOR RESPONDENT 

Petitioner has filed a "Supplemental Brief for 

Appellant" calling this Court's attention to the recently 

decided case, Griggs v. Duke Power Company, No. 124,

Oct. 1970, 39 U.S.L.W. 4317, and urging that the reason­

ing of Griggs is dispositive of the issue before this 

Court in the instant case. We disagree with petitioner's 

analysis and interpretation of Griggs.

The Court in Griggs indicated that it granted

review

"to resolve the question whether an employer is 

prohibited by the Civil Rights Act of 1964,

Title VII, from requiring a high school educa­

tion or passing of a standardized general 

intelligence test as a condition of employment 

in or transfer to jobs when (a) neither standard 

is shown to be significantly related to

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successful job performance, (b) both requirements 

operate to disqualify Negroes at a substantially 

higher rate than white applicants, and (c) the 

jobs in question formerly had been filled only by 

white employees as part of a longstanding practice 

of giving preference to whites.

Section 703(a) of the Civil Rights Act provides 

inter alia that it shall be an unlawful practice for an 

employer to classify his employees in ways to adversely 

affect his status because of his race, color, religion, 

sex or national origin. Section 703(h) provides that it is 

not unlawful to give or act on the results of a profession­

ally developed ability test provided the test "is not 

designed, intended or used to discriminate because of race, 

color, religion, sex or national origin."

The Court in Griggs was concerned solely with 

interpreting the meaning of the Act. The Court noted that 

the objective of Congress was to achieve equality of job 

opportunities and remove past barriers:

"Under the Act, practices, procedures or tests 

neutral on their face, and even neutral in terms 

of intent cannot be maintained if they operate to 

'freeze' the status quo of prior discriminatory 

employment practices. . . . What is required by

Congress is the removal of artificial, arbitrary, 

and unnecessary barriers to employment when the 

barriers operate invidiously to discriminate on

2.



the basis of racial or other impermissible 

classification. . . . The Act proscribes not 

only overt discrimination but also practices 

that are fair in form but discriminatory in 

operation. The touchstone is business neces­

sity. If an employment practice which 

operates to exclude Negroes cannot be shown 

to be related to job performance, the practice 

is 'prohibited.' Id. at 4319.

The Court then went on to discuss the meaning of 

section 703(h) authorizing tests not "designed, intended or 

used to discriminate . . . "  (Emphasis added by Court). The 

Court noted that the Equal Employment Opportunity Commission 

with enforcement responsibility, had issued guidelines inter 

preting this section to permit only the use of job related 

tests. The Court then reviewed the legislative history of 

the Act and concluded that the guidelines expressed the will 

of Congress. Id. at 4320-21.

Thus, the decision is based entirely on statutory 

construction and not on constitutional requirements. We 

submit that such a decision interpreting a statute and 

related to the entirely different problems of employment is 

entirely inapplicable to the instant case. There is no 

constitutional violation in a jury selection process unless 

intentional discrimination on grounds of race is shown.

The Griggs case does not change in any way the position of 

the Court expressed in Carter v. Jury Commission, 369 U.S. 

320 (1970) and Turner v. Fouche, 369 U.S. 346 (1970). The

3.



"clear-thinking" test formerly used in Alameda County may 

not have been a perfect measure of intelligence, but it did 

not "measure" race and the record is clear that there was 

no purposeful discrimination based on race.

CONCLUSION

For the above reasons and those expressed in 

Respondent's Brief, we respectfully request that the 

decision of the District Court denying the petition be 

affirmed.

Dated: April 20, 1971.

EVELLE J. YOUNGER, Attorney General 
of the State of California

EDWARD P. O'BRIEN
Deputy Attorney General

GLORIA F. DeHART
Deputy Attorney General

Attorneys for Respondent-Appellee

G F D :EB 
SF CR 013359

4 .



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