United States of America v. City of Chicago

PELL, Circuit Judge,

dissenting.

Being of the conviction that some one hundred millions of dollars of federal revenue sharing funds were improperly and needlessly withheld from the City of Chicago and that what should have been stayed was the equitable hand of the district court rather than the flow of essential operating funds to one of the largest metropolises of this country, I respectfully dissent from that portion of the majority opinion dealing with the withholding 1 of the revenue sharing funds. 2

*443 We need not take judicial knowledge of the financial plight of large cities, that is a matter of common knowledge; yet when a reading of the necessarily extended opinion written by Judge Swygert is completed we find that only one paragraph has been devoted to whether the withholding of this substantial sum constituted such an abuse of equitable discretion as to require reversal. Irrespective of whether the district court had the power it exercised with regard to these funds, and I generally entertain the idea that a federal court acting in equity inherently must and does possess the power to fashion a remedy appropriate to the accomplishment of proper ends, 3 it appears to me from a review of the reported proceedings 4 that the district court, assuming for the sake of the argument that it possessed the power it exercised, prematurely and improvidently exercised it.

The reported cases referred to above as well as the majority opinion set forth in considerable detail the events and happenings in this protracted litigation which has occupied an inordinate amount of time of the district court and a substantial amount of time of this court in its several trips here. Nevertheless, it appears advisable to me to set forth the salient factors which appear to me to have culminated in the improper action of withholding.

On April 24, 1974, the district court consolidated-various cases charging discrimination in police department practices. 5 More than two months prior to that date, following unsuccessful efforts in administrative proceedings to cut off the flow of revenue sharing funds to Chicago (the City) certain of the individual plaintiffs filed a civil suit in the district court of the District of Columbia (D.C.) to achieve the same objective. The City was not made a party although it was aware of the litigation. The D.C. litigation had not been met with success as of November 7, 1974, at which time Judge Marshall entered a preliminary injunction in the Northern District of Illinois. 6 The Marshall injunction in no way was concerned with the matter of the disbursement of revenue sharing funds. Although the D.C. plaintiffs were also plaintiffs in the Northern District of Illinois, where the City was a party, the efforts at stopping the money to the City were at that time confined to the D.C. litigation.

The Marshall preliminary injunction that was granted, putting it very simply, prohibited further hiring of patrol officers and the advancement of officers to the rank of sergeant discriminatorily toward females and black and Spanish surnamed males. The district court recognized that because of the pending action the City had refrained from hiring patrol officers and from promoting officers to the sergeant rank, and that “[ejventually, the shortage of patrol officers will become critical in a city the size and complexity of Chicago.” 7 The court nevertheless was of the opinion that the injunctive relief “would be required as the only effective remedy pending development by defendants of valid testing *444 procedures.” 8 (Emphasis added.) Nowhere do I find in the record of this case any persuasive reason for thinking that if this injunction had been enforced by normal and traditional means available to equity courts the desired objective of elimination of discrimination could not have been achieved without resorting to the extraordinary procedure of stopping operating funds, the lifeblood of a complex metropolis, which city in this case ultimately had to turn to commercial banks for loans with which to meet the crisis when the federal funds were in fact stopped.

Further, it is quite clear that the City had no intention to violate the crisp and explicit terms of the preliminary injunction. Indeed in the month following its entry, the parties had reached an agreement which the court approved on December 16, 1974, for the hiring of police officers according to a specified schedule. The purpose of the agreement was to alleviate a critical shortage of police officers attributable in part at least to the preliminary injunction. 9 It is patent, of course, that those plaintiffs concerned with non-discriminatory hiring of police officers were in agreement that the scheduled hirings were not discriminatorily tainted. Equally obviously the agreed order did not purport to correct any existent disproportionrnent, for the preliminary injunction was keyed only to future hiring and did not mandate discharge of existing police officers to achieve a balance in the existing force. Indeed, the preliminary injunction itself did not require any one to be hired; it merely, as stated, enjoined discrimination when hiring did occur.

As of December 16, 1974, the defendants had every reason for thinking that everyone was well on the way to an amicable solution to formidable problems. The hiring practices of the City based upon examinations which had been thought of as achieving job-related results had been found wanting by a federal judge who had determined that the resulting disproportionate impact required judicial correction in future hiring practices. Following negotiation by the litigants steps were outlined for going forward with interim hiring, and in the meantime work was underway for devising new examinations which might happily achieve both job-relatedness and a racially and sexually proportionate situation.

The rosiness vanished from the picture two days later, December 18, 1974, when Judge John Lewis Smith, Jr., in the D.C. district court entered an injunction enjoining the Office of Revenue Sharing officials from making further payments of federal revenue sharing funds to the City until further order of the court and in no event until the entry of a final order in the Northern Illinois litigation with the defendants in that litigation (they were still not parties in the D.C. litigation) giving formal assurances of compliance and continuing to monitor compliance thereafter. Inasmuch as Judge Smith’s injunction was based upon the November 7 decision of Judge Marshall, we must turn to that to attempt to discern why the D.C. judge thought it necessary to impose what I regard as an extraordinarily punitive sanction. There could have been nothing before Judge Smith to show lack of compliance or lack of intent to comply with the November injunction; nor was there any basis for thinking that the final order of injunction, if one were entered, would be any broader than the November preliminary injunction. Indeed, the final injunction was narrower in scope. 10

When we turn to the November findings of Judge Marshall upon which the withholding injunction of Judge Smith was based, we must note that the judge who made *445 those findings regarded them only as establishing “a prima facie case of de facto discrimination in employment and promotion.” 11 (Italics in the original.) The prima facie case was established by the resultant imbalance which followed the past hiring and promotion practices and did not rest upon any determination of an intentional and invidious determination to discriminate. This imbalance, however, was deemed sufficient to warrant a preliminary injunction. The infirm basis that the findings and preliminary injunction of November constituted for Judge Smith’s order is clearly demonstrated by the following characterization by Judge Frank in Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953):

The judge’s legal conclusions, like his fact-findings, are subject to change after a full hearing and the opportunity for more mature deliberation. For a preliminary injunction — as indicated by the numerous more or less synonymous adjectives used to label it — is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness. It serves as an equitable policing measure to prevent the parties from harming one another during the litigation; to keep the parties, while the suit goes on, as far as possible in the respective positions they occupied when the suit began.

Further, it is to be noted that Judge Marshall rested the granting of the preliminary injunction on the double prongs of constitutional and statutory deficiency. But as we now know from the subsequently decided Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976), official acts are not unconstitutional solely because they have a racially disproportionate impact.

Eventually, after some unsuccessful efforts to remove the ban on receipt of the revenue sharing funds by way of collateral attack in the Illinois district court and this court, the City hied to Washington, as with hindsight it should have in the first place, and, after unsuccessfully attempting to secure direct relief there, did secure the transfer of the D.C. proceedings to the Northern District of Illinois whereby they became a part of the ongoing litigation before Judge Marshall. It might appear that the story was now ready for a happy ending but in the meantime the City’s expeditious negotiation following the November injunction provided the stumbling block rather than the paving stone to early solution of problems. Under the December agreed order, which, it must be understood was not an order emanating from Judge Marshall to which he secured agreement but was instead one upon which the parties had agreed and which the judge then approved, the first group of applicants were to report for training on January 6, 1975. On January 2, 1975, the Acting Superintendent of Police issued the following notice:

It now appears unlikely that the federal revenue sharing funds due on Monday, January 6, 1975, will be received by the City on that date. Inasmuch as a substantial portion of these funds was to be used for the payment of police salaries, the Comptroller has suggested, and I have directed, that the proposed hiring of 200 police candidates on Monday, January 6, 1975, be deferred until this matter is resolved in the pending litigation in the federal court. I have also directed that the 200 candidates scheduled to report for training on Monday, January 6, 1975, be immediately notified of this unfortunate, but necessary decision.

The novelist who charts his plot line so as to embroil his characters in confrontations finds timing a necessary instrument. As in the case of the contrived plot, if something had happened earlier or later, how different the results would have been! Here if the withholding injunction had come down before the negotiations had reached agreement, it is entirely reasonable to think that the City would have first addressed itself to getting its operating funds restored. I *446 have no reason for thinking that the City would not have been successful before Judge Marshall, who was aware at the time that the City was progressing toward the development of a new patrol officers’ examination which hopefully would meet the requirements of law, 12 and who had recently expressed the opinion that “[i]t is far better in cases of this nature that the remedy come from the parties rather than the court.” 13 There simply would have been insufficient motivation before the court to require the continuance of the crippling suspension of revenue sharing fund payments. Conversely, if the order by Judge Smith had been delayed until after the agreed order plan had been implemented, Judge Marshall when asked to reconsider Judge Smith’s injunction when it was properly before him would have been able to do so in the light of the fact that the City was not only obeying the purely negative aspects of his November injunction by not hiring or promoting but was also affirmatively going forward with a negotiated plan for elimination of the disproportionate aspects resulting from practices found by him to be deficient statutorily and constitutionally.

The timing, however, was not right and early January of 1975 found one of the largest municipalities in the nation facing the immediate loss of nearly 20 million dollars which had been budgeted by it and which the paying Government had thus far intended to pay, not doing so solely because of a court injunction. The prospect was that a like amount would be stopped each quarter thereafter unless the injunction could be lifted. Quite understandably, the City finding uncertainty introduced as to the matter of payment of those already on the payroll abandoned its planned departmental increases and turned its attention to getting itself back on the federal payroll. The same period of time found a federal judge, who had regarded the agreed order as permissive although the parties had cast it in mandatory language, 14 now incensed at the ex parte failure to comply with that order, which refusal the district court later characterized as “the arrogant, contumacious refusal by the City defendants to hon- or their interim hiring agreement and our order approving it of December 16, 1974.” 15 The confrontation and its resultant deleterious effect on the working out of the societal problems inherent in this litigation were inevitable as was the snowballing crystallization of antagonistic attitudes between these two branches of government. Early in the period of confrontation it might have seemed that the simple judicial answer would have been that jurisdiction of the withholding injunction now being in Illinois, the withholding injunction would be vacated until further order of the court provided that there was prompt compliance with the December agreed order. This would seem to have been the position of the federal government which on January 20, 1975, responded, consistently with the position it had taken when the action was pending in the District of Columbia, that the withholding order should be modified as requested by the City. The Government added, however, that in view of the City’s refusal to implement the interim hiring agreement and to give assurances that it would comply with the court’s order of November 7, 1974, further revenue sharing payments should not be made to the City. Although the Government thereby was retreating from its earlier position that the flow of the funds should not be stopped, nevertheless the fact is patent that the appropriate authorities of the Government having to do with the payment of these funds were willing to have the payment released that should have been paid on January 6, 1975. Further, while the City had perhaps not given formal assurances that it would comply with the November order, there had been no failure to comply nor any indication that there would be such a failure. The only real factor in the Government’s new position on future payments *447 was the failure of the City to proceed with the interim hiring notwithstanding the cutoff of revenue sharing funds. Indeed, as late as January 5, 1976, the court stated that the Office of Revenue Sharing defendants had been ambiguous and faltering on the matter of withholding and that “it is not clear that they would continue to withhold those payments should the injunction be dissolved.” 16 The court also at that time observed that the Department of Justice had taken an ambiguous stance. 17

Also, when early in 1975, the district court had before it the matter of modifying or vacating the D.C. injunction, it could have resorted to traditional methods of enforcement of injunctions, as it was urged to do by the plaintiffs as to the mandatorily worded interim hiring agreed order. Although expressing regret subsequently that it had not done so, 18 the court took what appeared to it at the time to be the wiser course 19 and neither compelled compliance by traditional methods with the interim hiring order nor ruled on the City’s motion to modify the D.C. injunction. Instead the court deferred these matters until the trial was underway, and they were not the subject of formal judicial action until the memorandum decision of April 21, 1975. In the meantime positions had solidified, and the resultant aggravations increased the difficulties of negotiated solutions which had seemed so happily on the way prior to the granting of the D.C. injunction. Reality, of course, requires recognition of the fact of litigation life that, while parties have relatively great freedom in negotiating with each other toward an agreement, a judge who believes, rightly or wrongly, that his order has been willfully violated is less amenable to a bargaining process to secure compliance.

Another fact which appears inescapable to me is that at the time these early 1975 motions were before the court, the course which appeared wiser to the court was also probably the easier way. A last resort remedy, which I consider the withholding of revenue sharing funds to be, implicitly is the one that is most likely to be drastic in its effect. Certainly the withholding of millions of dollars from financially plagued megapolitan cities is a device designed to bring them quickly to their knees. It is because of the stringency of this remedy that I regret the majority opinion of this court did not come down hard on the proposition that such withholding while a potential remedy is a last resort one by holding that in this case the last resort stage had not been by any means reached. A trial judge confronted with the problems of the type here involved should not be permitted to yield to the song of the siren.

In addressing the issue of whether the withholding injunction should be vacated, 20 the district court, after reciting the background, dealt with and denied various legal arguments advanced by the City. Irrespective of whether I am able to agree with the district court’s disposition of these, I shall not lengthen this dissent by treating them because my principal concern is with what I regard to be the larger issue of the misuse of equitable power. The district court disposed of the equitable discretion issue in seven paragraphs 21 with principal reliance being placed upon the City’s unilateral suspension of the hiring which was to have taken place under the December 16 agreed order. The court found inescapable the conclusion that the City cancelled the interim hiring program, found by the court to involve $350,000 for the first quarter of 1975, in an attempt to lever loose $19,000,-000 in revenue sharing funds. Indubitably the City did abandon further hiring despite its needs for replacement patrol officers; however, the court’s reasoning ignores the facts that the sum of $350,000 was just the first quarter cost estimate and would be a *448 continuing cost item in the future. At this point because of the inaction of the court, the prospect of a change in the receipt of revenue sharing funds was a bleak one. Further, while $350,000 may have appeared on the petty side to the court when compared with $19,000,000, the City was now facing the fact that without the larger sum it would still have to meet the budgeted payroll of the existing police force. A third of a million dollars it would reasonably seem would constitute the aphoristic straw.

The district court also in considering the equitable discretion issue referred to the fact that the promised new patrol officer examination had not been forthcoming. Over and above the fact that the incentive to forge ahead with the development of this plan had been seriously diluted when it was becoming evident that the City was going to have difficulty in securing a substantial portion of the sum needed to pay the patrol officers already on the payroll, the fact appears obvious to me from an examination of the massive record in this cause that the matter of an a priori determination that a plan for the hiring of police officers would achieve those best qualified to serve in that capacity is an extremely difficult task. A federal district judge who is faced with the awesome task of saying that methods of selection are truly job-related or not job-related is deserving of great sympathy. Certainly Judge Marshall in the instant case can be said to have given every ounce of devoted attention to the best possible resolution of the thorny questions involved. Nevertheless, from the point of view of the devisers of the plan who had to produce methods which at once would achieve job-relatedness and would not be violative of Title VII, the problems were also awesome. From my own observation of this record, I could entertain real doubts as to whether the matter of an equation between performance on examinations and performance in the field would be susceptible of advance determination but would necessarily be dependent upon an examination of the actual performance. Even this post hoc approach would' not seem productive of scientific certitude as at least some of the evaluation of actual performance would be based upon human subjective considerations.

The majority opinion of this court obviously does not agree with my evaluation of the stringency of the withholding remedy and states that the direct interference with activities of local government is more drastic than the withholding of federal funds. While the district court here engaged in both the direct and indirect forms of interference, I cannot agree with the majority premise that the withholding lacks stringency of the greatest magnitude. Stopping the flow of lifeblood to a body is certainly more fatal than enjoining that body from certain activity. In the context of the states’ power to tax, a great Chief Justice long ago observed that the power to tax involves the power to destroy. 22 It appears to me that the power to withhold operational funds from a municipality has an equally destructive potential. As the district court itself observed, the philosophy of the Fiscal Assistance to State and Local Government Act, 31 U.S.C. § 1221 , “is to return to state and local government a portion of the individual federal income taxes paid by the inhabitants of the territory governed by the state and local government." (Emphasis added.) 23 Implicit in the recognition that upon ultimate analysis the City was just getting its inhabitants’ tax money back for its own uses was the court’s further observation that “[t]he funds are payable to the state and local governments almost as a matter of right on a quarterly basis.” 24 Illumination upon the stringency of the withholding of federal funds is found in an analogous situation in the remarks of Senator Hubert Humphrey, the Senate Manager of the 1964 Civil Rights Act:

The objective of title VI is, and should be, to end discrimination, and not to cut off Federal funds. In its present form, *449 title VI is drafted on the theory that cutoff of funds should be avoided if racial discrimination can be ended by other means. It encourages Federal departments and agencies to be resourceful in finding ways of ending discrimination voluntarily without forcing a termination of funds needed for education, public health, social welfare, disaster relief, and other urgent programs. Cutoff of funds needed for such purposes should be the last step, not the first, in an effective program to end racial discrimination. Title VI would require that funds be refused or terminated if other methods of ending discrimination are not available, or have not proved effective. But it would allow Federal departments and agencies to try such other methods first.

Mandatory, immediate cutoffs of Federal funds would defeat important objectives of Federal legislation, without commensurate gains in eliminating racial discrimination or segregation. [110 Cong. Rec., p. 6546.]

Termination of assistance, however, is not the objective of the title — I underscore this point — it is the last resort, to be used only if all else fails to achieve the real objective, the elimination of discrimination in the use and receipt of Federal funds. This fact deserves the greatest possible emphasis: Cutoff of Federal funds is seen as a last resort, when all voluntary means have failed. [Id. at 6544.]

This attitude toward the stringency of. the remedy was also reflected in the present litigation by the response of the federal defendants to plaintiffs’ renewed motion for summary judgment:

The withholding of revenue sharing payments to a recipient government can have the result of initiated programs being terminated, taxes being increased, employees being laid off, services being denied and other adverse effects. The fact that these funds will eventually be released some time in the future certainly does not mitigate the present fiscal plight which they would be experiencing.

It is also of some significance that in the district court the position of the City in seeking vacation or modification of the withholding order was supported by amici curiae briefs filed by the following responsible civic organizations: the Chicago Bar Association, the Chicago Crime Commission, the Civic Federation, and the Southeast Chicago Commission. These organizations which recorded their long standing stance against sexual and racial discrimination asserted that the economic sanction of revenue sharing termination was inappropriate in the circumstances of this case. The district court apparently found little significance in their support of the City because of their lack of familiarity with the record of this case. 25 Nevertheless, at the very least their support is indicative of the stringency of the economic weapon then being used by the court.

The majority opinion finds a preference for withholding funds as an enforcement means on federalism grounds. The stringency of the remedy, however, appears to me to be inconsistent with the trend of recent controlling decisions in the federalism area. See the discussion in § 52A, “Our Federalism,” of Professor Charles Alan Wright’s Law of Federal Courts, 3rd ed., 1976 at 229 et seq., tracing the developments initiated by Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), through Huffman v. Pursue, Ltd., 420 U.S. 592 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975). We also should not be unmindful that the Congress at one time provided for procedures, now happily substantially eliminated from federal jurisprudence, whereby interference with fundamental state procedures required the convening of a three-judge district court because of the likelihood of public resentment at such action occurring as the result of the action of a single judge. See Wright, supra at 213.

While I would entertain serious doubts about the power of the district court at the *450 pertinent time to enjoin the payment of the federal funds in the absence of a showing that there had been noncompliance with an injunction against discriminatory action, a situation which was certainly true at the time Judge Smith entered the original withholding injunction, in the light of cases such as Adams and Lee, cited in note 40 of the majority opinion, I have, as previously indicated not thought it necessary to pursue this aspect of the case in view of what I regard as the serious misuse of the power to the extent to which it may have existed. 26

Unfortunately in the realm of human relations and the solution of problems arising therefrom there is no such thing as instant replay. The crystallization of attitudes and aggravations, real or believed to be real, all too often nullify the possibility of retracing steps toward an amicable and desirable solution. Here I am convinced that the withholding of needed revenue funds came about not because of any necessity but through a set of unfortunate circumstances which improperly delayed the result which the district court was so assiduously seeking.

As a culmination of the developments which have been set forth — the antagonisms, the cross-purposes, and, indeed, the loss of perspective — inevitably the order of February 2, 1976, under review here, perpetuated this unfortunate comedy of errors. I would therefore reverse the order enjoining the payment of the revenue sharing funds and order all such funds not heretofore released paid forthwith to the City.

As previously indicated in this dissent, I am in general agreement with the result reached otherwise in the majority opinion. I nevertheless find it necessary to remark upon certain phases of the issues presented to this court in the present appeal.

1. Mandatory Quotas. Despite the fact that several courts have found resort to the imposition of mandatory quotas to be the only practicable solution to the problems presented by either racial or sexual discrimination, it appears to me that this resort should only occur when the circumstances are of an in extremis nature. I regard this to be particularly true when the matter is the composition of a police department. In today’s climate of increasing crime, with accompanying increase of public indignation and fear, the only standard for police department composition at every echelon should be, in my opinion, the very best possible person obtainable for the work to be performed. If meeting this standard means that the makeup of the department is disproportionately high with minority groups in relation to their position in the population picture, this would be more desirable than their being limited by the artificial limitation which is implicit when a quota has been imposed. It is for that reason no doubt that minority groups themselves do not consistently favor a quota system. It would appear fortunate that in later proceedings in the district court in the present litigation, which proceedings are not now before this court for review, the district court is amenable to deviating from strict adherence to the quota system in accordance with its own expressed distaste for that system.

2. The Isakson Defendants. The majority opinion at one point in relation to these defendants indicates that the 42 percent of the patrol officers “must be selected from the applicable eligibility rosters, in rank order.” Insofar as this is stating, which it appears to be doing, that the 42 percent should have been hired from the 1971 patrolman’s roster, it would seem to me to be inconsistent with the result thereafter reached in the opinion that it would be inappropriate for this court to decide the difficult questions of state law that might arise in determining the rights of persons on the 1971 roster in the light of the existence of the new 1975 examination roster. I think the court would have been better advised simply to leave the matter of deter *451 mination of the applicable state law to the district court, which is the ultimate holding on the Isakson issue.

3. The Background Investigation. The majority opinion recognizes “that careful screening through investigation of an applicant’s background can be a useful device in determining whether an applicant has the personal qualities required of a police officer.” I regard it as more than a useful device; rather it appears to me to be an essential instrument for the purpose. As the district court observed, “Of course, the Department must protect itself from those who would undermine it or work at cross purposes with it.” (Emphasis added.) 27 What the district court did not add but is obvious is that the Department must protect itself not for its own self-preservation as an institution but because it is in the public interest that the police duties be performed effectively.

I cannot quarrel with the position of the district court affirmed by this court that there be articulable standards for guidance of those conducting the background investigations. Broadly stated criteria too easily lend themselves to subjective whim. Nevertheless, I am concerned with an implicit suggestion in both the writing of the district court and the majority opinion which might be construed as minimizing the importance of good character on the part of police officers. Perhaps the supervisor of the Recruit Processing Section was unable to put into words what “dissolute habits” meant, 28 but I have little doubt that if one’s neighbors thought a person had dissolute habits, he would have little respect from them as a police officer without which respect he could not capably perform his duties. To paraphrase a famous reference in another field of law, the neighbors also might not be able to define in words “bad character, dissolute habits, and immoral character,” but most of them would be able to recognize the existence of these attributes in those with whom they are acquainted.

It perhaps is too much to expect that every police officer will be an exact duplicate of Caesar’s wife, but the nearer that goal is approached the more effective the police department will be. Frequent arrests or poor regard for financial obligations may be explicable and be shown not to detract from the ability to be an effective police officer. On the other hand, either or both may be demonstrative of an underlying disrespect for the law, a deficiency which should not exist in a person holding this position. It should also be remembered that in the city scene with the overload on the prosecutorial staffs and the courts and the reluctance of witnesses to become involved, many arrests which do not result in convictions nevertheless are arrests of guilty persons. The police department, in my opinion, is a questionable forum for rehabilitation. The job of articulating objective standards in the present area is certainly a tremendously difficult one. I merely express the hope that when the difficult task is completed the reviewing courts will permit the inclusion of aspects therein on a realistic basis consonant with the achievement of as high as possible regard on the part of the public toward those performing the duties of police officers.

4. The Constitutional Sex Discrimination Issue. The majority opinion correctly observes that the district court, by equating the equal protection clause with Title VII, failed to deal with the difficult problems which arise when a claim is made that a sex-based classification violates the equal protection clause. It directs the district court to face on remand the question of whether the intent requirement which Washington imposed on claims of racial discrimination also applies to claims of sexual discrimination. I think that our directive guidance should also require the district court to face the question in the light of General Electric Company v. Gilbert, 429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976).

. Although the funds were escrowed, the district court refused to place the withheld funds in an interest-bearing account.

. Other than with regard to the withholding issue, I am in general agreement with the result reached in the majority opinion. Although ba *443 sically confining my dissent to the matter of the withheld revenue sharing funds, I will, after discussing that issue, set forth a few observations which I believe to be appropriate to other matters raised by the present litigation.

. In an equity case, the nature of the violation determines the scope of the remedy. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 , 91 S.Ct. 1267 , 28 L.Ed.2d 554 (1971). This would not appear to me to be the basis for justifying a remedy where there has been no violation or justifying a remedy substantially broader than that called for by the violation.

. United States v. City of Chicago, 385 F.Supp. 540 (1974); 385 F.Supp. 543 (1974); 395 F.Supp. 329 (1975); 411 F.Supp. 218 (1976); 416 F.Supp. 788 (1976); 420 F.Supp. 733 (1976). (All in the Northern District of Illinois, and all references in this dissent, unless otherwise noted, to “district court” will be to that court.)

. 385 F.Supp. 540 .

. 385 F.Supp. 543 .

. Id. at 547 .

. Id. at 548 .

. 395 F.Supp. at 336 .

. The district court had preliminarily enjoined the use of departmental efficiency ratings based on a finding that they were racially discriminatory. In its final decree the court reversed itself and found that such efficiency ratings were not discriminatory. The same is true for assignments within the department which the court found to be nondiscriminatory. The court also rejected claims that a 1970 lieutenant’s examination was invalid under Title VII.

. 385 F.Supp. at 552.

. 385 F.Supp. at 548.

. Id. at 561.

. 395 F.Supp. at 346 .

. 411 F.Supp. at 224 .

. 411 F.Supp. at 245 .

. Id. at 246 .

. Id. at 224 .

. 395 F.Supp. at 338 .

. 395 F.Supp. at 339 et seq.

. Id. at 344-45 .

. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 159, 210 , 4 L.Ed. 579 (1819).

. 411 F.Supp. at 244 .

. Id.

. 411 F.Supp. at 228-29 .

. Further, the situation as to the existence of the power in the future may have changed in view of the State and Local Fiscal Assistance Amendments of 1976. I would, however, not be able to agree with the plaintiffs’ contention that the amendments are merely additional authority as to the existence all along of the power.

. 385 F.Supp. at 557.

. 385 F.Supp. at 556.