Morrow v. Crisler

BROWN, Chief Judge,

with whom WISDOM, Circuit Judge, joins (concurring) ;

Although I have joined, without reservation in Judge Gewin’s opinion for us, I write this concurrence to respond to Judge Clark’s concurrence. Although perhaps literally directed to race-selective hiring his insistence that by this action “we break judicial new ground in this Circuit” leads me to read it broadly as asserting that this is so wholly unprecedented that were it not for the vast body of law from sister Circuits his doubts “that its constitutional validity can be reasonably articulated” would have led him to dissent. But this is not new and startling. Rather than followers we have been in the van. We are not Johnny-come-latelys to the eradication of racial discrimination through race conscious means.

I wish to put the Court’s decision in proper historical perspective. In voting rights cases of the early 1960’s, this Court adopted what has been characterized as the deep freeze principle, a remedy designed to ensure that until all traces of discrimination against blacks were removed, blacks would be accorded the same treatment as that accorded whites in the era of discrimination. The object was to give blacks this right to catch up. To achieve that goal, blacks had to be dealt with as blacks. 1

While Judge Clark recognizes the Court’s use of “color conscious” relief to remedy discrimination in the schools, we have imposed ratios in hiring of teach *1058 ers and replacement of those displaced by desegregation orders. 2

Similarly, under Title VII we have frequently sanctioned use of the race conscious “rightful place theory” under which incumbent black employees may use plant, company or terminal seniority despite a collective bargaining agreement mandate of job, unit or craft seniority in order to eradicate the present effects of past discrimination. 3 Furthermore we have approved of an interim one-for-one black-white referral system pending the development of objective Union membership criteria. 4

Likewise in grand and petit jury selection cases we have many times held that to achieve the constitutional goal of a fair cross section of the community the state must consciously take into account identifiable groups such as blacks. 5

Use of race consciousness as a part of the judicial remedy to overcome or alleviate past discrimination is neither new to the Fifth Circuit nor in need of outside assistance from our sister Circuits, much as we welcome it.

. United States v. Duke, 5 Cir., 1964, 332 F.2d 759 ; United States v. Mississippi, 5 Cir., 1964, 339 F.2d 679 ; United States v. Ward (Miss.), 5 Cir., 1965, 345 F.2d 857 ; United States v. Ramsey, 5 Cir., 1965, 353 F.2d 650 ; United States v. Mississippi (Walthall County), 5 Cir., 1964, 339 F.2d 679 ; United States v. Ward (Louisiana), 5 Cir., 1965, 349 F.2d 795 , modified on rehearing, 352 F.2d 329 ; United States v. Lynd, 5 Cir., 1962, 301 F.2d 818 , cert. denied, 1963, 371 U.S. 893 , 83 S.Ct. 187 , 9 L.Ed.2d 125 ; Kennedy v. Lynd, 5 Cir., 306 F.2d 222 , cert. denied, 371 U.S. 952 , 83 S.Ct. 507 , 9 L.Ed.2d 500 ; United States v. Lynd, 5 Cir., 1965, 349 F.2d 785 ; United States v. Alabama, 5 Cir., 304 F.2d 583 , cert. granted, judgment affirmed, 371 U.S. 37 , 83 S.Ct. 145 , 9 L.Ed.2d 112 ; United States v. Dogan, 5 Cir., 1963, 314 F.2d 767 ; Toney v. White, 5 Cir., 1973, 476 F.2d 203 , modified and affirmed en banc, 488 F.2d 310 . Similar relief was made available through three-Judge courts within the Circuit. See United States v. Louisiana, E.D.Louisiana, 3-Judge, 1963, 225 F.Supp. 353 , affirmed, 380 U.S. 145, 155-156 , 85 S.Ct. 817, 823 , 13 L.Ed.2d 709, 716 ; United States v. Mississippi, S.D.Miss., 3-Judge, 1964, 229 F.Supp. 925 , reversed and remanded, 1965, 380 U.S. 128 , 85 S.Ct. 808 , 13 L.Ed.2d 717 . This principle of freezing was legislatively prescribed in the Voting Rights Act of 1965, 79 Stat. 437 , 42 U.S.C.A. §§ 1973b(a), 1973c.

. United States v. Jefferson County Board of Education, 5 Cir., 1966, 372 F.2d 836 , affirmed en banc, 1967, 380 F.2d 385 , 394; Singleton v. Jackson Municipal Separate School Dist., 5 Cir., 1969, 419 F.2d 1211 , 1217-1218 (Singleton III) (en banc) ; McLaurin v. Columbia Municipal Separate School Dist., 5 Cir., 1973, 478 F.2d 348 , en banc court dissolved, 486 F.2d 1049 ; Adams v. Rankin County School Board, 5 Cir., 1973, 485 F.2d 324 ; Lee v. Macon County Board of Educ., 5 Cir., 1971, 453 F.2d 1104 .

. Local 189, United Papermakers and Paperworkers v. United States, 5 Cir., 1969, 416 F.2d 980, 988 , cert. denied, 397 U.S. 919 , 90 S.Ct. 926 , 25 L.Ed.2d 100 ; United States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418 , cert. denied, 406 U.S. 906 , 92 S.Ct. 1607 , 31 L.Ed.2d 815 (1972) ; United States v. Hayes International Corporation, 5 Cir., 1972, 456 F.2d 112 ; Bing v. Roadway Express, Inc., 5 Cir., 1973, 485 F.2d 441 and 444 F.2d 687 .

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

. Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1 , cert. denied, 386 U.S. 975 , 87 S.Ct. 1169 , 18 L.Ed.2d 135 , reh. den., 386 U.S. 1043 , 87 S.Ct. 1489 , 18 L.Ed.2d 618 ; Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34 ; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698 , cert. den., 386 U.S. 991 , 87 S.Ct. 1303 , 18 L.Ed.2d 334 ; Mack v. Walker, 5 Cir., 1966, 372 F.2d 170 , cert. den., 393 U.S. 1030 , 89 S.Ct. 641 , 21 L.Ed.2d 573 ; James v. United States, 5 Cir., 1969, 416 F.2d 467 , cert. den., 397 U.S. 907 , 90 S.Ct. 902 , 25 L.Ed.2d 87 .