Petition — Stover v. Chicano Police Officers Ass'n

IN THE APR 13. 1976

Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1481

Rosert V. Stover, Chief of Police, Albuquerque Police

Department, Roy Baca; Rosert T. PooLe; Nancy

Kocu; Louis SAAVEDRA; RICHARD VAUGHN, City

Commissioners for the City of Albuquerque, all of

the above individually and in their official capacity,

and Hers Situ, City Manager, individually and

in his official capacity, Petitioners,

V.

CHICANO POLICE OFFICER’S ASSOCIATION and SEGILFE-

REDO SANCHEZ; VINCE VILLANUEVA; DANIEL GAR-

ci1A; ARCHIE BorunpDA; ELoy SANCHEZ; ROBERT

CHAVEZ; FLAvio RoMERO; ERNEST OLAGUE; Davip

Garcia; Maurice Moya; FRANK CHAVEZ; and Roy

BeserrA, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

WiuraM A. SLoaN, Esq.,

DvANE C. GILKEY, Esq., and

Ropey, Dickason, SLOAN, AKIN &

Ross, P.A.

20 First Plaza (P.O. Box 1888)

Albuquerque, New Mexico 87103

FRANK Horan, Esa.

City of Albuquerque Attorney

City Hall

Albuquerque, New Mexico 87103

Counsel for Petitioners

April 13, 1976

Press or Byron S. ApAMs PRINTING, INC., WasHINGToN, D. C.

Page

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Constitutional and Statutory Provisions Involved .... 3

ES NS EES re ee Ee ae Pe we a

Reasons for Granting the Writ .................... 9

1. The Decision of the Court of Appeals is in Conflict

with Decisions of this Court Concerning Standing

Oe ee ee IE ID vn oc oo cecccoucts ces 9

A. Neither the Association nor the Other Plain-

tiffs Made a Showing of Injury Sufficient to

"Establish the Specificity and Causation Re-

SE SEE ane cv avdicnsecasaduce 11

B. Neither the Association nor the Other Plain-

tiffs have Standing to Assert the Rights of

ee Lieu ceas 14

2. The Opinion of the Court of Appeals, Holding As

a Matter of Law That Respondents Had Presented

a Prima Facie Case Conflicts with Decisions of this

Court and Substantially Departs from the Ae-

cepted and Usual Court of Judicial Proceedings .. 15

A. The Relevancy of Prior Examination Results 16

B. The Propriety of Rejecting Unreliable and

Inaccurate Evidence, Even Though the Objec-

tion is On the Grounds of Relevaney ........ 18

C. The Significance or Insignificance of an Un-

SE WME FEED on ccs nccdccusccccccens 19

Se rE RCC ep c cee ee hiee ctl tee cida des eeess 21

Appendix (Opinion and Judgment of Court of Appeals

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il

CITATIONS

Page

CaSEs :

Baker v. Carr, 369 U. S. 186, 7 L.Ed. 2d 663, 82 S. Ct. ;

GD CD oo cc vncccdescvcnath Pb apesévsepseves 15

Barrows v. Jackson, 346 U.S 249, 97 L.Ed. 1586, 73

yO Re ire mage ae 14

‘Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. z

Pwr errr rer rT et TTT ee 17

EEOC vy. University of New Mexico, Albuquerque,

504 F.2d 1296, 1304 (10th Cir. 1974) ............ 17

Griggs v. Duke Power Co., 401 U.S. 424, 432 28 L.Ed.

S & F Se Fe errr. 17, 21

Hamling vy. U.S., 418 U.S. 87, 41 L. Ed. 2d 590, 615, 94

YY f 2. | errr rrr errr rrr rr 19

Kansas City Southern Railway Co. v. Jones, 241 U.S.

181, 60 L. Ed. 943, 3 Sup. 513 (1916) .......... 18-19

O’Shea v. Littleton, 414 U.S. 488, 493-494, 38 L.Ed. 2d

8 § Se Ff, | errr errr 15

Rich v. Martin-Marietta Corp., 552 F. 2d 333, 343, 345

aie -64 ccs RANK SARCHER CAS ASAE EEE es 17

Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S.

2. errr es 10, 11, 12, 13, 14, 15

CONSTITUTION AND STATUTES:

Constitution of the United States, Article II] ...... 2,10

ee es ee ND ono a6 6%6s ee acesendante 3

ES BE sO OE 6.0-0:0.0'9:0 4 6444 ane OT EN EEE ES 3

OD Ws SE OD 6 '9.0'5-550005 0cs0Nerandardesecatsin 2

fi i Se | error TT 2,3, 4.5

IN THE

Suprene Court of the United States

OcToBER TERM, 1975

No.

Rosert V. Stover, Chief of Police, Albuquerque Police

Department, Roy Baca; Rospert T, PooLe; NANCY

Kocu; Louis SAAVEDRa; RicHARD VAUGHN, City

Commissioners for the City of Albuquerque, all of

the above individually and in their official capacity,

and Hers Situ, City Manager, individually and

in his official capacity, Petitioners,

Vv.

CHICANO PoLicE OFFICER’s ASSOCIATION and SEGILFE-

REDO SANCHEZ; VINCE VILLANUEVA; DANIEL GAR-

c1A; ArcHTE BorunpA; ELoy SANCHEZ; ROBERT

CHAVEZ; FLavio Romero; Ernest OLAGUE; Davip

Garcia; Maurice Moya; FRANK CHAVEZ; and Roy

Beserra, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

The above-named Petitioners respectfully pray that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Tenth Circuit entered in this cause on November 20,

1975.

2

OPINION BELOW

The opinion of the Court of Appeals for the Tenth

Cireuit reported at 526 F.2d 431, appears in the Ap-

pendix hereto. The District Court for the District of

New Mexico did not render a written opinion.

JURISDICTION

The judgment and opinion of the Court of Appeals

for the Tenth Cireuit was entered on November 20,

1975. Petitioners filed, in the Court of Appeals, a

timely Petition for Rehearing and Suggestion for

Rehearing en banc, which were denied on January 14,

1976. This petition for writ of certiorari was filed

within 90 days of January 14, 1976. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether an unincorporated association (com-

posed of incumbent Chicano police officers) and indi-

vidual incumbent Chicano police officers have stand-

ing, under Article III of the Constitution of the

United States, to challenge the hiring procedures

(including entry level examinations) of a municipal

police department, as being violative of 42 U.S.C.

§§ 1981, 1983 and 1985.

2. Whether results of different promotional exami-

nations, given in prior years, are relevant to individual

claims (as opposed to class claims) that present pro-

motional examinations have a discriminatory impact

in violation of 42 U.S.C. §§ 1981, 1983 and 1985.

3. Whether a trial court, in an employment dis-

crimination case brought under 42 U.S.C. §§ 1981,

1983 and 1985, may properly refuse to consider sum-

maries of results of prior promotional examinations,

3

which contain classification and compilation errors,

even though the objections raised to admission of such

summaries were on different grounds.

4. Whether a prima facie case of employment dis-

crimination, under 42 U.S.C. §§$-198i, 1983 and 1985,

can be proved by statistics showing » two to one pass

rate (or less), as between total examinees and Chicano

examinees, where the evidence shows the ratio to be

unstable, because of the small sample base.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

CONSTITUTION OF THE UNITED STATES

Article ILI, § 2, Clause I:

‘The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, an 1 Treaties

made, or which shall be made, under their Author-

ity ;—to all Cases of admiralty and maritime Juris-

diction ;—to Controversies to which the United

States shall be a Party ;—to Controversies between

two or more States ;—between a State and Citizens

of another State ;—between Citizens of different

States ;—between Citizens of the same State claim-

ing Lands under Grants of different States, and

between a State, or the Citizens thereof, and for-

eign States, Citizens or Subjects.”

CONSTITUTION OF THE UNITED STATES

Amendment XTV, § 1:

‘*All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

foree any law which shall abridge the privileges

or immunities of citizens of the United States;

4

nor shall any State deprive any person of life,

liberty or property, without due process of law ;

nor deny to any person within its jurisdiction the

equal protection of the laws.’

Unrrep States Cope, Title 42:

§ 1981. Equal rights under the law

‘‘All persons within the jurisdiction of the

United States shall have the same right in every

State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full

and equally benefit of all laws and proceedings for

the security of persons and property as is enjoyed

bv white citizens, and shall be subject to like pun-

ishment, pains, penalties, taxes, licenses, and exac-

tions of every kind, and no other.’’

§ 1983. Civil action for deprivation of rights

‘‘Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be sub-

jected, any citizen of the United States or other

person within the jurisdiction thereof to the depri-

vation of any rights, privileges, or Immunities

secured by the Constitution and laws, shall be

liable to the other party injured in an action at

law, suit in equity, or other proper proceeding for

redress.”’

§ 1985. Conspiracy to Interfere with Civil Rights

«+ # * * ~ * 7 7” *

‘‘(3) If two or more persons in any State or

Territory conspire * * * for the purpose of de-

priving, either directly or indirectly, any person

or class of persons of the equal protection of the

laws, or of equal privileges and immunities under

the laws; * * * in any ease of conspiracy set forth

in this section, if one or more persons engaged

5

therein do, or cause to be done, any act in further-

ance of the object of such conspiracy, whereby

another is injured in his person or property, or

deprived of having and exercising any right or

privilege of a citizen of the United States, the

party so injured or deprived may have an action

for the recovery of damages, occasioned by such

injury or deprivation, against any one or more of

the conspirators.”’

STATEMENT OF THE CASE

This is a case brought by twelve Chicano Police of-

ficers and the Chicano Police Officers Association ( As-

sociation) (Respondents herein) against the Chief of

Police, City Manager and Commissioners of the City of

Albuquerque, New Mexico (Petitioners herein) chal-

lenging certain employment practices and procedures

of the Albuquerque Police Department (Department)

as being unconstitutionally discriminatory, in viola-

tion of 42 USC §§ 1981, 1983 and 1985 and other fed-

eral statutes (R., Vol. I, 9).

The Complaint did not allege a class action, but

prayed for declaratory and injunctive relief from the

results of promotional examinations conducted by the

Department on June 2, 1973. (R., Vol. I, 9) The in-

dividual Respondents failed to qualify to take the ex-

aminations, or failed the examinations. Respondents

also challenged the entry level requirements of the De-

partment. (R., Vol. I, 9)

In August, 1973, the Department was composed of

402 commissioned police officers, 86 of whom were Chi-

eano. (R., Vol. VI, 82) The membership of the Asso-

ciation is not limited to Chicano police officers (R., Vol.

VI, 81). No member of the Association and no indi-

6

vidual plaintiff had been denied employment with the

Department (R., Vol. I, 286).

A Department general order required: (1) that all

officers to be promoted after January 1, 1972, must

have completed at least six semester hours of college

accredited study; (2) for promotion during 1974,

twelve semester hours were required; (3) thereafter,

an additional six hours per year is required until the

officer obtains his bachelor’s degree. (Pl. Ex.6) Four

of the individual Respondents lacked the six hours of

college credit in 1973. Approximately 75 percent of

the Chicano officers in the Department attended col-

lege in 1973 and received incentive pay for such at-

tendance. (R., Vol. I, 293).

On June 2, 1973, the Department conducted exam-

inations for promotion to the ranks of Sergeant, Lieu-

tenant and Captain. For the most part, the written

examinations were on texts in the areas of police ad-

ministration, management, psychology, leadership and

planning. Departmental General Order gave different

weighting to the applicants’ test score, supervisor’s

evaluation and oral interview. (PI. Ex. 6)

Members of the Association did not read the assigned

texts, in toto, but studied from chapter outlines pre-

pared by one another. The Association urged all of

the members to apply for promotion and take the ex-

amination. At least one member testified that he took

the examination as a ‘‘dry run,’’ not expecting to pass.

(P., Vol. VII 157-159, 259-260, 303-305; Vol. VIII,

438). Dr. Frederie Carleton, an expert in personnel

testing, testified that where there is self-selection of

applicants on an employment test, the scores will range

higher than where there is mandatory testing of an

entire group. (R., Vol. X, 772-784)

a ee

7

The results of the June 2, 1973 Sergeants and Lieu-

tenants examinations were as follows:

Sergeant’s Examination:

(1) Total Examinees 90

Passing Examinees mR,

Percentage Passing 19%

(2) Spanish-surnamed Examinees 26

Passing Examinees 3

Percentage Passing 11.5%

Lieutenant’s Examination

(1) Total Examinees 44

Passing Examinees 7

Percentage Passing 16%

(2) Spanish-surnamed Examinees 7

Passing Examinees 1

Percentage Passing 14%

(3) Non-minority Examinees 36

Passing Examinees 5

Percentage Passing 14%

(R., Vol. V1, 63, 64, Pl. Ex. 14)

No Chicano took the June 2, 1973 examination for

Captain (R., Vol. VI, 64). The examinations were

entirely different, in content and weighting, from pro-

motional examinations given by the Department in past

years. (R., Vol. XIII, 460, 487) Dr. Carleton, the

expert witness, testified that the statistics of the June

2, 1973 promotional examinations did not show a sig-

nificant adverse affect on the Chicano officers. ( R.,

Vol. X, 770-771, 772-787; Defts. Exs. 2, Al, B1, (1

D1, R., Vol. TX, 602-606) )

At the trial, Respondents offered tabulations of re-

sults of promotional examinations given during the

8

years 1966 to 1971. Respondent Frank Chavez, who

had compiled the tabulations, admitted on cross-exam-

ination that he had failed unintentionally to include

in the tabulation several Spanish surnamed officers, and

had omitted purposely several other Spanish surnamed

officers, because he knew that these persons were really

‘Anglos.’ (R., Vol. VII, 109-114) Petitioners ob-

jected to the admission of the tabulations, on the

grounds of irrelevancy. The District Court did not

consider the tabulations in making its findings.

The question of standing of the Association to chal-

lenge the Department’s entry level requirements was

the subject of an affidavit of Respondent Frank

Chavez, admitted by stipulation, subject to certain ob-

jections. That affidavit stated, inter alia, that (1) the

Association ‘‘must have the support of as many Chi-

canos, and particularly Chicano policemen, as possi-

ble,’ (2) that the Association can negotiate effectively

‘‘only if it represents a substantial number of police-

men” and that (3) discrimination against Chicanos in

recruitment dilutes the strength of the Association and

its effectiveness. (R., Vol. I, 202)

At the close of Respondents’ evidence, the District

Court granted Petitioners’ Rule 41(b) motion, and dis-

missed the Complaint. The District Court concluded,

inter alia: (1) that neither the Association nor any

individual Respondent had standing to challenge the

Department’s entry level requirements; ( 2) that the

Respondents had failed to present a prima facie case

that the college educational requirement for promo-

tion adversely affected them; (3) that the evidence

failed to show that the promotional examinations

caused a statistically significant discriminatory effect

ee

9

on the Chicano officers; (4) that the two to one passing

ratio of total to Chicano officers on the Sergeant’s ex-

amination was not significant because of the small

ae es causing the ratio to be unstable; and (5)

that che Respondents had shown no right to relief

Vol. I, 293) F —e

On appeal, the Court of Appeals for the Tenth Cir-

cuit reversed, holding, in short, that (1) the individual

Respondents and the Association had standing to chal-

lenge the Department’s entry level requirements; and

(2) the Respondents had presented a prima facie case

that the Department’s promotional requirements were

unconstitutionally discriminatory.

. The findings and conclusions of the District Court.

in their entirety, and the judgment were vacated. The

case was remanded to the District Court for further

proceedings.

REASONS FOR GRANTING THE WRIT

1, THE DECISION OF THE COURT OF APPEALS IS IN CONFLICT

WITH DECISIONS OF THIS COUR?’ CONCERNING STANDING

TO SUE IN A FEDERAL COURT.

The District Court concluded that neither the indi-

vidual police officers nor the Association had standing

to challenge the hiring policies of the Department.

(R., Vol. I, 289) In reversing, the Court opined that

(1) secondary effects of discriminatory entry level

requirements upon incumbent police officers afforded

a valid basis of standing to the individual Respondents,

and (2) the Association had standing because of its

‘direct stake ... in challenging barriers against em-

ployment of those from whom it might well enhance its

membership and resources to attain its goals’’. (Ct.

Ap». Opn., App. p. 9a) |

10

The Court of Appeals reached its decision that all of

the Respondents had standing to attac the entry level

requirements, in spite of the following facts: (1) that

the litigation was not brought as a class action; (2)

that none of the individual Respondents or the mem-

bership of the Association had been excluded from

employment because of the Department 8 hiring pol-

icies; and (3) that challenged hiring policies did not di-

rectly apply to members of the Association or the other

Respondents, all of whom were incumbent police offi-

cers.

It is respectfully suggested that the holding of the

Court of Appeals is indirect conflict with decisions of

this Court defining the ‘case and controversy ”’ require-

ments of Article III of the United States Constitution,

and stating prudential standing limitations for the

federal court system. The Court of Appeals, although

citing the recent standing pronouncement of this Court

in Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95

S. Ct. 2197 (1975), apparently disregarding the guid-

ance offered by that decision.

Standing of persons, not directly affected, to main-

tain a civil rights action, challenging employment

practices, is an issue of primary importance which

frequently confronts the lower federal courts. The

Tenth Circuit has assumed a most permissive stance,

allowing civil rights litigants to challenge employment

policies which, at most, affect them only remotely. That

stance should be reviewed.

11

A. Neither the Association Nor the Other Plaintiffs Made a

Showing of Injury Sufficient To Establish the Specificity

and Causation Requirements of Warth.

In Warth, various plaintiffs ' sued the Zoning, Plan-

ning and Town Boards of the Town of Penfield in

New York to enjoin the enforcement of zoning ordi-

nances and other land-use restrictions which, it

was claimed, effectively excluded persons of low-

and moderate-income from living in Penfield. The

low-income taxpayers asserted that because of the zon-

ing ordinance, they were unable to purchase housing

at prices they could afford. The district court for the

Second Circuit dismissed for lack of standing. The

Court of Appeals for the Second Cireuit affirmed the

dismissal. This Court, speaking through Justice

Powell, set forth the two criteria for determining the

nature of the injury cognizable by the federal courts

and the casual relationship between the challenged

governmental restriction and the injury alleged. This

Court first determined that even where a plaintiff has

a'leged sufficient injury to meet the ‘“‘ease and econtro-

versy’’ requirement, the plaintiff ‘“‘generally must

assert his own legal rights and interests and cannot

rest his claim to relief on the legal rights and interests

‘The plaintiffs included 8 individual plaintiffs and Metro-Act

of Rochester, Inc., a not-for-profit, corporation, having as its

purpose to urge action to alleviate the general shortage of housing

for low- and moderate-income persons. Five of the plaintiffs

were resident-taxpayers of the City of Rochester or of surrounding

communities. Three plaintiffs were low- and moderate-income

residents of Rochester.

12

of third parties’? 45 L. Ed. 2d at p. 355. This Court

then enunciated a simple test for determining whether

the litigant had standing to assert his claim: The plain-

tiffs must show by a substantial probability that but for

illegal governmental action, injury to the plaintiff

would not occur. In short, where a government regula-

lation causes direct harm to a party because of its appli-

cation to third persons, the indirectness of the injury

may not preelude the party from having standing but

requires specific factual allegations and proof establish-

ing demonstrable causation between the injury and the

gvovernmental action.

The failure of proof of injury and causation fatal

to plaintiffs’ claim in Warth is replicated in the case

at bar. The Court of Appeals placed substantial reli-

anee on the Affidavit of Respondent Frank Chavez.

(R., Vol. 1,202) That affdavit is totally devoid of any

specific factual allegations upon which the Associa-

tion’s fulfillment of its objectives can be connected with

elimination of the challenged hiring policies. The

Affidavit opines that the Association ‘‘must have the

support of as many Chicanos and particularly Chicano

policemen as possible.’ It concludes that the Associa-

tion can negotiate effectively ‘‘only if it represents a

substantial number of policemen’’. Finally, it offers an

opinion, unsubstantiated by specifie factual allegations,

that discrimination against Chiexnos in recruitment

2In Warth. as in the case at bar, the governmental restriction

‘n this case does not apply to the particular plaintiffs to the action.

The low-income plaintiffs were not residents of Penfield and the

ordinance in question applied only to Penfield, not Rochester.

Similarly, the governmental policies attacked in the case at bar

did not apply to any of the named plaintiffs, but rather to

unnamed, unidentified, potential employees of the police depart-

ment.

13

dilutes the strength of the Association and its effective-

ness. (R., Vol. I, 202)

These are merely bald conclusions unsupported by

any specific factual proof. The record contains no

evidence showing a substantial likelihood of an en-

hanced negotiating position should the hiring policies

be invalidated. Respondents did not show a causal

relationship: (1) that should more Chicanos be em-

ployed as policemen, the membership of the Association

would in fact be increased; (2) that even should more

Chicanos join the Association, the Police Officer’s

Association would be able to negotiate more effectively

with the department; and (3) that the Association had

ever negotiated with the Albuquerque Police Depart-

ment, or had in the past suffered any inability to do

so effectively because of inadequate numbers. There

was no testimony from any witness that the Association

had been stymied in its attempts to deal with the

Department because of insufficient numbers or that the

Association’s negotiating position would be affected

favorably by an increase in membership. Indeed, there

is no indication that the Association had ever negotiated

with the Department in the past. |

As the trier of fact, the District Court found Chavez’

conclusionary allegations insufficient. In reversing,

the Court of Appeals held that the District Court

should have inferred the necessary causal relationship

from the evidence that approximately 42 of the 70

Chicano officers on the foree were signed members of

the Association.* It is submitted that such a eonelu-

sion violates the spirit and the letter of Warth.

3 In fact, the Court of A

. Appeals used an erroneous figure for the

total number of Chicano officers on the force. In August, 1973

there were 86 Chicano officers. See footnote 10 of Court of Ap-

peals opinion. See also R., Vol. IX, 643.

14

B. Neither the Association Nor the Other Plaintiffs Have

Standing To Assert the Rights of Third Parties.

In Warth, this Court specifically limited those cases

where a party will be allowed to challenge governmental

restrictions based on violation of a third party’s rights.

The first exception is where Congress confers standing

by statute to a litigant who would not otherwise have

had it. The second exception was where enforcement

of the challenged restriction would result indirectly in

violation of third party’s rights. The third exception

involved eases where the third party was under a dis-

ability which precluded the assertion of his legal or

constitutional rights himself.

In the case at bar, Congress has not conferred any

special standing on incumbent employees to assert the

rights of applicants for employment. ‘The vindication

of Respondents’ rights does not depend on the assertion

of third persons’ rights. See Barrows v. Jackson, 346

U.S. 249, 97 L.Ed. 1586, 73 S.Ct. 1031 (1953). And

there is no disability which prevents frustrated appli-

cants from bringing their own lawsuit if they so de-

sire

This Court’s treatment of the Metro-Act’s standing

in the Wurth case disposes of the precise argument

adopted by the Court of Appeals, in the instant case,

on jus tertii standing. Metro-Act, a not-for-profit cor-

poration, alleged that 9°, of its membership were pres-

ent residents of Penfield. For this reason, the zoning

ordinance directly applied to them. Metro-Act had

argued that these Penfield residents were directly af-

fected by the exclusionary zoning practices by being

deprived of the benefits of living in a racially and eth-

nically integrated community. This argument is

identical to that of the Association and the other Re-

a FO EY we ea aa

15

spondents that they have been deprived of a racially

integrated police force which might enhance the posi-

tion of Chicanos generally within the Department.

On this point, too, the opinion of the Court of Appeals

directly conflicts with the Warth decision.

In its opinion, the Court of Appeals observed that

‘there is no indication of a lack of concrete adverseness

between the position the plaintiffs take and that of de-

fendants”’’, (Opin., Ct. App., App. p. 1la) referring to

the requirement of true adversity discussed in O’Shea

v. Littleton, 414 U.S. 488, 493-494, 38 L.Ed.2d 674, 94

S. Ot. 669 (1974), and Baker v. Carr, 369 U.S. 186, 204

7 L.Ed.2d 663, 82 8.Ct. 691 (1962). Again, the teaching

of Warth was missed. Like the plaintiffs in Warth, the

incumbent police officers and the Association have no

real proven stake in the vindication of rights of absent

persons. In such eases, concrete adverseness cannot

be insured.

Because of the direct and apparent conflict between

the opinion of the Court of Appeals, and this Court’s

decision in Warth, the Writ should issue.

2. THE OPINION OF THE COURT OF APPEALS, HOLDING AS A

MATTER OF LAW THAT RESPONDENTS HAD PRESENTED A

PRIMA FACIE CASE CONFLICTS WITH DECISIONS OF THIS

COURT AND SUBSTANTIALLY DEPARTS FROM THE AC-

CEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS.

In reversing the District Court’s dismissal of the

Complaint, the Court of Appeals held:

—That the results of different promotional exam-

inations for the ranks of sergeant, lieutenant, and cap-

tain, given from 1966 to 1971, were relevant to the re-

spondents’ individual claims (as opposed to a class aec-

tion) that the promotional examinations given on June

16

2, 1973 had a discriminatory impact on the Chicano

Police Officers taking that examination.

—That the District Court erred by not considering

proferred summaries of past examinations, which eon-

tained classification and compilation errors, since Pe-

titioners’ objections thereto raised only relevancy

grounds.

—That Respondents’ proof of a two to one pass

rate (or less), as between total and Chicano examinees

proved a prima facie case, in spite of substantial evi-

dence that the ratio was unstable, because of the small

base of the statisties.

It is respectfully submitted that these holdings con-

flict with decisions of this Court and substantially de-

part from the accepted and usual course of judicial

proceedings.

A. The Relevancy of Prior Examination Results

Despite the fact that this action was not brought as a

class action, but only for declaratory and injunctive re-

lief to individual police officers who failed the promo-

tional examinations given on June 2, 1973, the Court of

Appeals held that results of different promotional ex-

aminations given from 1966 to 1971 were relevant.

All of the individual Respondents took the examin-

ations given on June 2, 1973 (R., Vol. V, 6€; Vol. VI,

194, 245, 289, 515, 332; Vol. VII, 348, 398, 411-412, 435),

and were asking for individual relief from the results of

those exeminations. The June 2, 1973 examinations

were substantially different from prior examinations in

weighting and content. (R., Vol. VI, 289; Vol. VII,

460, 487)

.

4

17

The Court of Appeals recognized the standard for

proof of a prima facie case, established by Griggs Vv.

Dulkee Power Co., 401 U.S. 424, 432, 28 L.Ed.2d 158, 191

S.Ct. 849 (1971)—that the plaintiff needs only to show

that the challenged procedures have a discriminatory

result. However, the Court of Appeals reasoned that

proof of a prima facie case may necessitate ‘ta back-

ward glanee .. .”’ (quoting its decision in FEOC v.

University of New Mexcio, Albuquerque, 504 F.2d 1296,

1304 [1974]), and the plaintiff should be free **. . . to

develop proof of the general overall trends in hiring

and promotion policies’’ (citing its decision in Rich v.

Martin-Marietta Corp., 522 F.2d 333, 348, 345 [1975] ).

In support of its conclusion that results of prior exam-

inations were relevant, the Court of Appeals relied

upon eases involving class action challenges to prior

and present employment practices and procedures.

See Chance v. Board of Examiners, 458 F.2d 1167 (2nd

Cir., 1972), and the cases set forth in footnote 6 of the

Court of Appeals opinion App., p. 18a. Here, the issue

was whether the June 2, 1972 examinations had an un-

constitutional discriminatory impact. Class claims re-

lated to prior examinations were not raised. Thus,

statistics of prior years were not probative.

In effect, the Court of Appeals held that, even if the

results of the challenged examinations showed no dis-

criminatory impact, the aggregate results of totally

different examinations given during the prior seven

vears should have been considered on this issue. It is

submitted that this broad concept of relevancy of

statistical data to make a prima facie showing in an

employment civil rights case is in conflict with the

teaching of Griggs, and should be reviewed by this

Court.

18

B. The Propriety of Rejecting Unreliable and Inaccurate

Evidence, Even Thougi the Objection Is on the Grounds

of Relevancy.

At the trial of the case, Respondents offered into

evidence tabulations of the results of prior promotional

examinations given by the Department. (Plaintiffs

Exhibits 7-12). On eross-examination, Respondent

Roy Chevez admitted that, in preparing the tabulations,

he had overlooked several Spanish surnames and had

purposely omitted several more Spanish surnames be-

eause such individuals, in his opinion, were really

**Anglos’’ (R., Vol. 1, 109-114). Petitioners raised ob-

jections to the tabulations on the specifie grounds of

relevancy. Although the District Court reserved its

ruling on admission of the tabulations, in making its

findings, no mention of prior examination results was

made,

The Court of Appeals held that it was error for the

District Court to give no consideration to the tabula-

tions, stating that Petitioners’ objections to admission

of the tabulations ‘*... raised only relevaney and (we)

must assume this was the basis for the trial court’s ex-

elusion of the proof.”’ (Ct. App. Opn., App. p. 12a).

Since the Court of Appeals viewed the statisties of

prior examinations as relevant, the failure of the trial

court to consider these tabulations was found to be

erroneous. Disregarded entirely by the Court of Ap-

peals was the evidence indicating that the tabulations

were unreliable because of compilation errors.

The ruling of the Court of Appeals conflicts with

settled decisions of this Court, establishing the rule

that ‘*. .. a specific objection sustained (like a general

objection) is sufficient, though naming an untenable

ground, if some other tenable one existed.’’ Aansas

19

City Southern Railway Co. v. Jones, 241 U.S, 181, 60

L.Ed, 943, 3 Sup. 513 (1916); Hamling v. U.S., 418

U.S. 87, 108, 41 L.Ed.2d 590, 615, 94 S.Ct. 2887 (1974).

In its opinion on the Petition For Rehearing, the Court

of Appeals attempted to avoid this apparent conflict,

stating: ‘‘ Without considering whether such rule would

apply here, this record convinces us that rejection of

all the proof of prior examinations cannot be sustained

here.’’ (Ct. App. opn., App., 18a). The ‘‘proof’’ of-

fered was the tabulations, which were admittedly inae-

eurate. Thus, the Court of Appeals substitutes its

opinion of the reliability of evidence for that of the

District Court, and in the process, violates fundamental

rules of evidence and customary rules of appellate re-

view.

Because of the conflict between this holding of the

Court of Appeals and long-standing decisions of this

Court, the Writ should issue.

C. The Significance or Insignificance of an Unstable Pass-Fail

Ratio

The results of the June 2, 1973 examinations con-

ducted by the Department for promotion to the rank

of Sergeant showed that 19 percent of 90 total exam-

inees passed, while 11 percent of the 26 Chicano exam-

inees passed. The District Court noted that this two

to one ratio was highly unstable in that a variance of

two Chicanos passing or failing would yield ratios be-

tween five to one, and one to one.* Accordingly, the

* Although the Court of Appeals set aside all findings and con-

clusions, there was no statistical evidence that the examinations

for promotion to lieutenant and captain had a disparate effect.

The pass ratio was one to one for the lieutenant’s examination.

None of the five examinees taking the captain’s examination was

Chicano,

20

District Court concluded that the disparity in pass rate

was not statistically significant. This conclusion is

supported in the record by the testimony of Dr. Fred-

erie Carleton, a well qualified psychometrician, who

testified that the statistics did not significantly show

any adverse impact of the examinations. (R., Vol. X,

770-778, Defts. Exhibits 2, Al, B1, C1, D1)

Regardless of substantial evidence to support the

District Court’s conclusion that the ratio was unstable

because of the small sample size, the Court of Appeals

reversed, reasoning that rejection of small sample sta-

tistics would **... deny employees in small plants the

type of protection the civil rights statutes afford.”’

(Ct. App. Opn., App. p. 15a). Thus, the Court of Ap-

peals arrived at a very novel (and untenable) stand—

that a prima facie case of unconstitutional employment

discrimination may be shown from unstable statistics

derived from a small sample base.

Moreover. the Court of Appeals rejected the District

Court's reliance upon evidence that the test statistics

were not probative. Evidence which was held, as a

matter of law, to be of no consequence in assessing the

reliability of the statisties included: (1) that the Chi-

eano officers did net read the texts assigned, but studied

from chapter outlines prepared by one «nother; (2)

that the Association urged all Chicano officers to take

the tests: (3) that one Chicano officer took the test as

a ‘dry run,’* not expecting to pass; (4) that when a

test is given on a self-selection basis, the examinees

will seore higher than when all within a group are

tested. (R. Vol. VIL, 157-159, 259-260, 303-305; Vol.

VIII, 438)

The Court of Appeals held that reliance upon this

evidence by the trial court was erroneous, in that an

21

improper burden was imposed upon the Respondents-—

i.e., to show that non-minority examinees passed with

equal or less preparation than the Chicano examinees.

In holding that a prima facie ease had been proved,

as a matter of law, the Court of Appeals stripped the

District Court of all discretion to weigh the reliability

and probative value of statistical evidence. It is re-

spectfully submitted that such holding is in conflict

with the tests established by this court in Griggs vy.

Duke Power Co., 401 U.S. 424, 28 L:Ed.2d 158, 91 S.Ct.

848 (1971), and violates basic trial principles of the

federal court system.

CONCLUSION

Upon the foregoing reasons, a Writ of Certiorari

should issue to review the judgment and opinion of the

Court of Appeals for the Tenth Circuit.

Respectfully submitted,

WiuraM A. SLOAN, Esq.,

DvuANeE C, GiLKey, Esq., and

Ropry, Dickason, SLOAN, AKIN &

Ross, P.A.

20 First Plaza (P.O. Box 1888)

Albuquerque, New Mexico 87103

Frank Horan, Esa.

City of Albuquerque Attorney

City Hall

Albuquerque, New Mexico 87103

Counsel for Petitioners

April 13, 1976

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

No. 74-116u.

Cuicano Poiice Orricer’s ASSOCIATION ET AL.,

Plaintiff s-A ppellants,

V.

Ropert V. Srover, Chief of Police, Albuquerque Police

Department, er aL., Vefendants-Appellees.

Ray M. Vargas, Albuquerque, N. M. (Richard C. Bosson,

Albuquerque, N. M., Vilma 8. Martinez, Sanford Jay Rosen

and Drucilla S. Ramey, San Francisco, Cal., and Joseph R.

Grodin, San Francisco, Cal., of counsel, University of

California Hastings College of Law, on the brief), for

plaintiffs-appellants.

William S. Dixon, Albuquerque, N. M. (Frank L. Horan,

City Atty., and Rodey, Dickason, Sloan, Akin & Robb,

P. S., and Duane C. Gilkey, Albuquerque, N. M., on the

brief}, for defendants-appellees.

Before Sern, Ho_toway and Doy se, Circuit Judges.

Hottoway, Circuit Judge.

This civil rights suit challenges both the hiring and pro-

motion procedures of the Albuquerque, New Mexico, Police

Department (the Departinent) as racially diserimintory

against Spanish-speaking and surnamed Americans. The

plaintiffs are twelve Chicano employees of the Department

and the Chicano Police Officer’s Association (the Associa-

tion).!. The defendant Stover is the Chief of Police of the

1 Throughout this opinion we will use the term ‘‘Chicano’’ to

designate the racial minority of Spanish-speaking and Spanish

surnamed Americans whom the suit concerns.

2a

Department and the other defendants are the City Com-

missioners and City Manager of Albuquerque.

The complaint essentially alleged that the defendants

had deprived plaintiffs, under color of State law, of rights,

privileges and immunities secured by the constitution and

laws of the United States in violation of 42 U.S.C.A.

$s 1981, 1983 and 1985 (R. I, 9). The complaint averred

that defendants employed hiring and promotion procedures

including tests and other job criteria which are not sub-

stantially related to job performance and have the effect

of excluding a disproportionate number of Chicanos from

employment and promotions in the Department, thus vio-

lating rights seeured by the equal protection clause; by 42

U.S.CLA. $$ 1981, 1983 and 1985, and other statutes. Juris-

diction was claimed under 28 U.S.C.A. §1343(3) and (4),

and declaratory and injunctive relief were sought.

After presentation of the plaintiffs’ evidence, and that of

two defense witnesses heard out of turn, defendants moved

to dismiss under Rule 41(b), F.R.Civ.P., on the ground that

plaintiffs had shown no right to relief. The trial court

made written findings and conclusions adverse to the plain-

tiffs and dismissed.

On appeal plaintiffs argue principally that the trial court

erred in that:

1. The court erred in holding that plaintiffs lack stand-

ing to challenge the hiring or entry level procedures

of defendants; and

2. It was error to find and conelude that plaintiffs

had made no prima facie case of the unlawfulness of

the promotion procedures used by defendants.

We turn to the findings and conelusions of the trial

court which are of eritical importance.

3a

I

The Trial Court’s Findings and Conclusions

The trial court made these findings: The Chicano Po-

lice Officer’s Organization is an unincorporated associa-

tion composed chiefly of Spanish-speaking or Spanish sur-

named police officers in the Albuquerque Police Depart-

ment. Its membership is not limited to Spanish-speaking

or Spanish surnamed ofiicers and not all such officers are

members of the Association. The Association seeks to

achieve equal opportunity for Spanish-speaking or sur-

named Americans in recruitment and promotions within

the Department, and to discourage discrimination.’

The court found that no member of the Association and

no plaintiff has been denied employment with the Depart-

ment.

? Plaintiffs’ exhibit 1, a brochure of the Association, states that

the Association’s aims include, tnter alia:

STATEMENT OF PURPOSE

The Chicano Police Officers Association also known as the Con-

cerned Police Officers Association is dedicated to the following

principles and purposes :

* * 7 od * ae * *

2. To achieve equal opportunity in recruitment, promotion,

assignment, evaluation, and other areas within all Police

Departments. _

* * * * * * * *

6. To actively support the recruitment of personnel for police

work in such a manner as to insure proportionate repre-

sentation within the profession of all cultural and ethnie

groups of the population of our community.

7. To encourage racial and ethnic harmony within the pro-

fession, as well as between the profession and the com-

munity and to discourage racism and discrimination.

* x * * * * te *

10. To expand our knowledge of the various cultures and

heritages of other people and to educate other members

of the police profession on our own culture.

4a

The court found further that police officers must be high

school graduates or have obtained a general equivalency

degree. The Department’s General Order 71-23, issued

December 17, 1971, requires that all officers to be promoted

after Janvary 1, 1972, must have completed at least six

semester hours of college accredited study. Those to be

promoted during 1974 were required to have completed

twelve semester hours, and an additional six hours credit

per year is required until a bachelor’s degree is attained.

9

Promotional examinations were held on June 2, 1973.

Four individual plaintiffs were ineligible to take the ex-

amination because they lacked the six hours of college

eredit. The court found, however, that there was ample

notice and opportunity fer completion of the six hour re-

quirement prior to its application precluding officers from

taking the examination. There had been an incentive pay

of $1 per month for each hour of college credit, and from

April, 1973, to June, 1978, 208 officers of the Department

reecived incentive pay. Fifty-three of approximately

seventy Spanish-speaking or surnamed officers received

incentive pay under the program. 155 of approximately

305 Anglo officers reccived incentive pay. It was found

that this demontrates that 75% of the Spanish-speaking /

surnamed officers attended college during the period and

that the educational requirement did not ereet a barrier

for a minority group and that the requirement did not

have a discriminatory effect on Chicanos as a group.

The results of the June 2, 1973, examination were sum-

marized by the court as follows:

A. Sergeant’s Examination:

1) Total Examinees 90

Passing Examinees 17

Percentage Passing 19%

2) Spanish-surnamed

ixaminees 26

Passing Exa:ninees 3

Percentage Passing 11.5%

da

B. Lieutenant’s Exainination:

1) Total Examinees 44

Pasing Examinees 7

Percentage Passing 16%

2) Spanish-surnamed

Examinees 7

Passing l.xaminees 1

Percentage Passing 14%

3) Non-minority

Examinees 36

Passing Examinees D

Percentage Passing 14%

No Spanish-surnamed Americans took the June 2, 1972,

examination for captain. The examinations were achiev-

ment tests and their subject matter was taken from tests

on police administration, management, psychology, leader-

ship and planning. Members of the Chicanos Police Off-

cer’s Association formed a study group. Some were

assigned responsibility for outlining portions of the as-

signed texts. Several officers read some but not all the texts

and relied on outlines for the material they did not read.

The June 2, 197°, examination had not been used before

and is not to be used in the future.

The court concluded that no plaintiff has standing to

contest the hiring policies of the Department. The injury

alleged by the Association and one individual plaintiff is

that development of the power to negotiate for the better-

ment of the position of Chicanos is stifled by policies per-

petuating under-representation of the Spanish minority

on the police force. It was concluded, however, that the re-

lief sought would not directly benefit the Association, and

that the Association and its members have only an indirect

stake in the outcome and are not entitled to assert the

rights of those directly affected and not present in the

suit.

6a

The court conelnded that the plaintiffs have failed to

establish prima facie that the college educational require-

ment adversely affects minority groups. It concluded that

the plaintiffs failed to show that the promotional examina-

tions caused a statistically significant discriminatory im-

pact on Spanish-speaking /surnamed officers. The overall

pass ratio for each examination was small. 19 percent

passed the sergeant’s examination and 16 percent passed

the lieutenant’s examination. The ratio of Spanish-sur-

named passing to non-minority passing was one to one on

the lieutenant’s examination and slightly less than two

to one on the sergeant’s exa:mination.

The 11 percent pass rate for Spanish-speaking/surnamed

examinees for sergeant is arrived at from a small sample,

since only 26 Spanish-speaking/surnamed were eligible to

take the examinatien. Three of the 26 passed. The trial

court held that the 11 percent figure is not stable or highly

reliable. A variance of two Spanish individuals passing or

failing would yield ratios between five to one and one to

one.

The court coneluded that any significance the two to one

ratio might have is undermined by the testimony. There

was no showing that any other examinees were able to

pass with equal or less preparation. Thus, the court con-

cluded that it cannot be said that the disparity in pass rate

is statistically significant.

The court concluded further that the plaintiffs have

shown no right to relief. It was observed, however, that

had they made a prima facie showing of a discriminatory

impact of the tests, the defendants probably could not have

earried their burden of persuasion; that defendants need

to improve recruitment and promotion policies to alleviate

under-representation of the Spanish minority at all levels

of the Department; that the heavy reliance placed on the

achievement type test seems inequitable and misplaced;

oe

7a

and that the test does not go far enough in showing per-

formance, leadership and supervisory ability.

The court said further that the value and reliability of

the present promotional scheme was dubious, but that the

evidence has not shown the signifieant adverse impact on

minorities which is necessary to support an injunction or

imposition of a court-ordered remedial plan. And _ the

court stated that immediate steps should be taken to solve

these problems and eliminate ‘‘. .. what could become a

breeding ground for future litigation.’’

On these findings and conclusions the court dismissed

with prejudice.

II

Standing To Challenge the Fntry Level Wiriva Praccdures

First, plaintiffs argue that the trial court erred in hold-

ing that no plaintiff has standing to challenge the hiring

policies of the Department. As stated, the court reasoned

that the injury alleged by the Association and one officer

is that the development of power to negotiate for the bet-

terment of the position of Chicanos is stifled by policies

perpetuating under-representation of Chicanos. However,

the court concluded that the Association and its members

have only an indirect stake in the outcome and are not

entitled to assert the right of the e directly affected and

not otherwise present in the suil—-persons unsuccessfully

seeking employment or discouraged from doing so.

We must, of course, observe the requirements for stand-

ing which have a constitutional starting point in Article

lil. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45

L.Fd.2d 343; Data Processing Service v. Camp, 397 U.S.

150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184. The plaintiffs must

show that the challenged action has caused them injury

in fact, economic or otherwise, and that the interest they

seek to protect is arguably within the zone of interests to

Sa

be protected or regulated by the statute and the eonstitu-

tional guarantee in question. Id. at 152-53, 90 S.Ct. 827;

United States v. SCRAP, 412 U.S. 669, 686-90, 93 S.Ct.

2405, 37 L.Ed.2d 254. They must have a personal stake in

the outcome. Warth v. Seldin, supra, 422 U.S. at 499, 95

S.Ct, 2197. This requirement is to insure that concrete ad-

verseness which sharpens presentation of issues on which

the courts depend for illumination of difficult constitutional

questions. O’Shea y. Litileton, 414 U.S. 488, 493-94, 94

S(t. 669, 38 L.Ed.2d 674; Baker v. Carr, 369 U.S. 186, 204,

82 S.Ct. 691, 7 L.Ed.2d 663.

Nevertheless, the standing requirement is not to be ap-

plied to defeat constitutional claims. An ‘‘identifiable

trifle’? is enough for standing to fight out a question of

principle; the trifle is the basis for standing and the prin-

ciple supplies the motivation. United States v. SCRAP,

412 U.S. 669, 689, n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254.

In our case we have both individual plaintiff Chicano

officers and the Association maintained for others.* The

plaintiffs allege that by denying to them and other Chicano

citizens the benefits of being hired and promoted—which

denial is on the basis of invalid tests and criteria having

no substantial relationship to job performance—the effect

is to exclude a disproportionate number of Chicano citizens

in violation of the equal protection clause and various

statutes. The affidavit of Mr. Chavez supports the general

claims made, stating that in working with the Department

for fair treatment of Chicanos and other minorities, the

Association must have the support of as many Chicanos

as possible; that only if it represents a substantial number

of policemen can they negotiate effectively with the De-

3 This makes inapposite the class action cases relied on by plain-

tiffs which support the ‘‘across the board’’ theory permitting one

plaintiff to challenge al! discriminatory practices of an employer.

We do not reach this theory in our disposition.

9a

partment from a position of strength; that discrimination

against Chicanos in recruitment and hiring dilutes the

strength of the Association and directly affects its effee-

tiveness; and that Chavez is personally affected in his

attempts to change the system by the effect of what he

believes to be discrimination against Chicanos in the en-

trance procedures of the Department.

We are satisfied that both the Association and the in-

dividual plaintiffs made a sufficient showing of standing.

This was demonstrated, we feel, by undisputed proof and

reasonable and obvious inferences. The Association had

44 signed members at the time of trial (Nov. 26, 1973),

and about 50 members in all (Tr. 82). Of these only one

or two were Anglos. Id. In the period from April to June,

1975, the court’s findings state that there were approxi-

mately 70 Spanish-speaking/surnamed officers and ap-

proximately 312 Anglo officers on the force (see Find-

ing 23). Thus, from the proof it is clear that a

substantial portion of Chicanos obtaining employment on

the force joined the Association. The Association therefore

has a direct stake, independent of its members’ rights un-

der the Civil Rights Act, in challenging barriers against

employment of those from whom it might well enhance its

membership and resources to attain its goals. Warth v.

Seldin, supra, 422 U.S. 511, 95 S.Ct. 2197; Albany Welfare

Rights Organization v. Wyman, 493 F.2d 1319, 1322 (2d

Cir.).

We are also satisfied that the proof made a sufficient

showing of standing of the individual plaintiffs to chal-

lenge the hiring procedures. There is recognition of sec-

ondary effects on others as a valid basis for standing in

several instances. In Marable v. Alabama Mental Health

Board, 297 F.Supp. 291, 297-98 (M.D: Ala.), the court up-

held the standing of individual mental patients for them-

selves and for a class to challenge the discriminatory hir-

ing practices affecting staff personnel of the institution

where they were located. The court reasoned that the sec-

10a

ondary effects of discrimination on the plaintiffs as pa-

tients entitled them to challenge the hiring procedures re-

lating to the staff personnel. Ibid. In like manner the

standing of students to challenge the discriminatory policies

of teacher assignments has been sustained on the rationale

that the removal of a discriminatory educational system

and the achievement ef a non-racially operated system

afforded standing rights to individual plaintiffs. Lee Vv.

Macon County Board of Education, 267 F.Supp. 458, 472-

73, 478 (M.D.Ala.), aff'd sub nom. Wallace v. United States,

829 U.S, 215, 88 S.Ct. 415, 19 L.Ed.2d 422.

Moreover, this court recently affirmed a similar order

for transfer of school officials, recognizing implicitly the

standing of individual students to assert the invalidity of

discriminatory personnel policies affecting others because

the policies had a secondary effect on the students. See

Dowell v. Board of Education of the Oklahoma City Public

Schools, Unpublished Order (10th Cir., January 31, 1975),

cert, denied, -—— U.S. ——, 96 S.Ct. 37, 46 L..Ed.2d 40

(1975). The fact that harm from discriminatory hiring

policies is imposed directly on the rejected or discouraged

applicant does not deprive the present Chicano officers of

standing to challenge the hiring practices that are asserted

to produce an under-representation of Chicanos on the

foree. The indirectness of the injury to the employees

does not necessarily deprive them of standing to vindicate

their rights. See Warth v. Seldin, supra, 422 USS. 504-05,

95 S.Ct. 2197. and to seek removal of the taint of racial

discrimination from the work force."

$ There is a substantial factual basis for the claim that diserim-

ination exists at the entry level. The evidence of under-represen-

tation throughout the police force apears in Part TIL, infra. Addi-

tional evidence reflects a racial disproportionality in the results

of entrance examinations administered by the defendants between

1971 and 1972. Based upon a large sampling of examinees, it

anpears that the pass rate among Spanish-surnamed Aenetuanme

was approximately 43.2'¢ for the years 1971 through gp. om

the non-Spanish-surianied Americans passed at a 78.9% rate; a

pass rate ratio of 1.53:1. (Exhibit 2; R. 328).

~—

lla

In sum, we are satisfied that both the Association and

the individuals made a sufficient showing of standing to

challenge the allegedly discriminatory hiring policies and,

of course, there is no indication of a lack of concrete ad-

verseness between the position the plaintiffs take and that

of defendants. See Baker v. Carr, 369 U.S. 186, 204, 82

S.Ct. 691, 7 L.Ed.2d 663. It follows that we must hold

that the court was in error in its findings and conclusions

denying standing to plaintiffs to challenge the entry level

hiring procedures.

Il

The Trial Court’s Ruling that no Prima Facie Case

was made by Plaintiffs

Plaintiffs’ second argument on appeal is that the trial

court erred in holding that plaintiffs had not made out a

prima facie case against the promotion level procedures

and in dismissing their claim for relief from such allegedly

unlawful procedures. More specifically plaintiffs say the

court erred (1) by excluding evidence relating to prior

examinations; (2) by coneluding plaintiffs had not estab-

lished a prima facie case on the evidence presented; (3)

by ignoring, as a consequence of its rulings as to standing,

the relationship between promotions and discriminatory

hiring practices; and (4) by dismissing their showing as

not statistically significant because any significance of the

slightly less than two to one ratio on the sergeant’s test

was undermined by the testimony.** (Brief of Plaintiffs-

Appellants at 27, 24).

First, we feel the exclusion of the prior examinations

poses a serious question. Plaintiffs offered proof of the

* Although not explicitly set out in the findings, the two to one

pass rate ratio derived by the court is apparently the correct sta-

tistieal comparison of the pass rate of non-minority examinees to

the pass rate of the minority examinees. See Bridgeport Guardians,

Ine. v. Members of Bridgeport Civil Service Commission, 482 F.2d

1353 at 1335, n.3 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95

S.Ct. 1997, 44 L.Ed.2d 481 (1975); see also cases cited therein.

12a

results of examinations from 1966 to 1971 (Plaintiffs’ Ex-

hibits 7-12). Objections were made on the ground of rele-

vancy to these exhibits, defendants arguing that an inter-

vening and different examination was now being given and

that the results of the old examinations were irrelevant

(See Tr. 49, 53; and the various objections at 49-60).

Other objections are said to have been urged and are now

argued on appeal to support the exclusion of the exhibits

(Answer Brief of Defendants-Appellees at 12-15). We

read the record to have raised only relevancy and must

assume this was the basis for the trial court’s exclusion

of the proof.’

We agree with the view that the measure of a claim un-

der the Civil Rights Act is in essence that applied in a

suit under Title VII of the Civil Rights Act of 1964.

Chance v. Board of Examiners, 458 F.2d 1167, 1175-76 (2d

Cir.): see Sabol v. Snyder, 524 F.2d 1009, 1012 (10th Cir.

1975). Relief may be had from artificial, arbitrary and un-

necessary barriers to employment when they operate invidi-

ously to discriminate on the basis of racial or other im-er-

missible classifications. Grigas v. Duke Power Co., 401 U.S.

424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158. While the emple y-

er’s intent may be examined, Griggs supra at 432, 91 S.Ct.

849, the plaintiff needs only to show that the challenged

procedures have a discriminatory result, Griggs, supra at

432, 91 S.Ct. 849. This showing would make out a prima

facie case, requiring the employer to demonstrate that his

employment criteria or tests were validly job-related. Spur-

* There was no express ruling on the objection. However the

trial court’s detaiied findings treat only the latest promotional

examinations given on June 2, 1973, and it is apparent that the

court did not weigh the earlier examinations in its considerations.

On the further trial for which we are remanding, the trial court

may, of course, consider authenticity or other objections timely

made and the defendants may develop the weaknesses which they

say exist as to the exhibits covering past years.

ts ates orn

13a

lock v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir.) ;

Chance v. Board of Examiners, supra, 458 F.2d at 1176.

Obviously, the scope of proof must be broad to establish

such a prima facie case, It is open to the plaintiff to de-

velop proof of the general overall trends in hiring and

promotion policies. See Rich v. Martin-Marietta Corp.,

022 F.2d 333, at 343, 345 (10th Cir. 1975), and this may

necessitate ‘‘a backward glance....’’ EEOC v. Univer-

sity of New Mexico, Albuquerque, 504 F.2d 1296, 1304 (10th

Cir.). In our type of case we must, agree with the view

in Chance v. Board of Examiners, 458 F.2d 1167, 1171 (2d

Cir.), where examinations given during several past years

to large numbers of applicants were considered.®

Defendants argue that the prior tests were different

from those given on June 2, 1973.7 However, if such an

objection were sustained an employer could ilways say

that he regularly changes examinations and thus insulate

unlawful practices from scrutiny.’ We cannot agree with

° We note that a compilation of prior test results was relied

upon in Bridgeport Guardians, supra, 482 F.2d at 1335 (five years

of entrance exams; twelve years of promotional exams were ad-

mitted, although for some reason the «ourt did not compile the

statistics on the promotional exams), see 354 F.Supp. 778 at 795;

in Chance v. Board of Examiners, 330 F.Supp. 203 at 209 (S.D.

N.Y.1971), aff'd, 458 F.2d 1167 (2d Cir. 1972) (‘50 supervisory

examinations given over the past few years.’’); in Commonwealta

of Pa. vy. O'Neill, 248 F.Supp. 1084 at 1101 (E.D. Pa. 1972), aff'd,

473 F.2d 1029 (3d Cir. 1973) (three written promotion exams

given between 1968 and 1970); and in Harper v. Mayor and City

Council of Baltimore, 359 F.Supp. 1187 (D.Md. 1973) modified

sub nom. Harper y. Kloster, 486 F.2d 1134 (4th Cir. 1973) (the

court considered exam results from 1971, 1963, 1960, 1957 and

1954, 5 exams), see 359 F.Supp. at 1198-99.

7 The trial court found that the examinations given on June 2,

1973, had not been given before and are not to be given in the

future (R. 289).

* We assume that an employer would regularly change at least

the specific questions on examinations to avoid them becoming

simply a memory exercise to recall answers to available prior tests.

l4a

defendants’ theory and instead feel that prior procedures,

at least for the years here offered, were relevant.

The question of relevance and of remoteness of ex-

hibits in time is, of course, generally within the dis-

cretion of the trial court. Here, however, we are

satisfied that the proof offered was clearly within a

reasonable time frame and should not have been rejected

as irrelevant. In this connection we note that such proof

need not show a racially disproportionate impact with

mathematical nicety; its purpose is initially to premise a

finding whether a prima facie case is made; such a finding

does not decide the case and instead only places the burden

on the defendant to justify the testing criteria in ques-

tion. Vulcan Society of the New York City Fire Depart-

ment v. Civil Service Commission of the City of New York,

490 F.2d 387, 393 (2d Cir.).

In the circumstances before us we feel rejection of the

exhibits of these plaintiffs as irrelevant was error.

Second, plaintiffs argue the trial court erred in dismis-

sing the 2 to 1 ratio as statistically insignificant because

of the smallness of the sample and undermining of its sig-

nificance by the testimony (Brief of Plaintiffs- Appellants

at 34). They are pointing to the Court’s conclusion that

they failed to show that the promotional examinations

caused a statistically significant discriminatory impact

on Spanish-speaking ‘surnamed officers, and thai ‘‘there

was no showing that any other examinees were able to

pass with equal or less preparations.”’ (R. 290).°

We must disagree with the ultimate findings and con-

clusions of the trial court. The smallness of the sample

should not be grounds here for rejecting the proof. If it

* There was some testimony that the Chicano group assigned

reading of books to certain persons and relied on review of outlines

prepared by them (R. 94-95, 158-59).

lida

were, the tendency would be to deny employees in small

plants the type of protection the civili rights statutes afford

Moreover, here the inability to evaluate the test effects on

a larger seale resulted in large part from the exclnsion

of the results of the several prior examinations. And. in

id re feel the group tested was not too omall to

e evaluated as significant. See Brito vy. Zi iS FF

redhagernapaad 4 See Brito v. Zia Co., 478 F.2d

Morcover, we note that althongh the court found that

no prima facie case was made it was.observed that: De-

fendants need to improve recruitment and promotion pol-

icies in order to alleviate the underrepresentation of the

Spanish minority at all levels of the department (R. 291).

PI record in the present case reflects a statistical diserepancy

roc _ von popula ‘ of Bernalillo County, and the

age A presentation in ti. Albuquerque Police Department.

spel ieano population of Bernalillo County is approximately

39.2% (Exhibits 26, 27; R. 471, 472). The statistical breakdovy 7

of the Albuquerque Police Department as of August, 1973 iia

on testimony of plaintiffs’ witness is approximately as Selous:

No. %

Chicano S6 214

Non-Chicano 316 78.6

Total 402 100.0

(Tr. 643).

Although the Chicano population of the county is approximately

39.2 4, only 21.4% of the police force is Chicano. The malap r-

tionment becomes more significant when the police force is ides

down by rank. None of the police captains are Chicano: only

4.5% of the police lieutenants are Chicano; (ie. one out of twenty-

two); 18.3% of the police sergeants are Chicano; and 31% of

the patrolmen are Chicano (Exh. 13, R. 398, Tr. 641) It is ap-

parent that the representation of Chicano within the police prec

ment as a whole diminishes at the higher rank; that the bulk of

the Chicanos are employed at the lower levels. At every level of

the Department, however, the Chicano population of Bernalillo

County is under-represented.

l6a

In view of the facts concerning the small Chicano rep-

resentation, as well as the errors which we are persuaded

occurred, we are convinced we should set aside the findings

and conclusions and remand for a new hearing and recon-

sideration.

There remains the trial court’s reference to the lack

of a showing that ‘‘any other examinees were able to pass

with equal or less preparation.’’ (R. 290), an apparent

allusion to the testimony that outlines prepared by others,

and not the text books, were studied by the Chicago officers.

We have noted no authority supporting the imposition

of such a burden on the plaintiff. If the proof surround-

ing a test showed a lack of good faith effort by minorities

to pass, we do not say this factor should be ignored. But

in this case we feel the burden imposed was unjustified in

connection with a showing for a prima facie ease, Our

conclusion here is re-enforced when we recall the trial

court’s unfavorable observations concerning the type of

tests used:

The heavy reliance placed on the achievement type

test seems inequitable and misplaced. It does not

go far enough in showing performance, leadership and

supervisory ability. (R. 291).

It seems illogical to say the type of test was improper

and at the same time to hold the prima facie showing of

plaintiffs was defective because they did not prove that

any other examinees were able to pass such tests with equal

or less preparation.

Other arguments are made by the parties but we need

not diseuss them. What we have said shows our reasons

for concluding that errors in the standing determination

on the entry level issue as well as in the treatment of the

promotional level proof require a retrial. Accordingly,

the findings, conclusions and judgment are vacated and the

case is remanded for further proceedings.

17a

On Petition for Rehearing

This matter comes on for consideration of the petition

filed by defendants for rehearing together with a sugges-

tion that there be a rehearing en bane.

Upon consideration whereof, we conclude that the re-

hearing should be denied and it is ordered denied. No

judge having requested a poll on the suggestion fo: re-

hearing en bane, that suggestion is denied. Rule 35h).

Federal Rules of Appellate Procedure. Our reasons fol-

low: |

First, defendants argue that the opinion is at odds with

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d

343, saying that neither the Association nor the individual

plaintiffs have shown injury to themselves sufficiently to

meet the requirements of Warth, and that they may not

assert the rights of third parties.

The opinion details the showing of standing we feel suf-

ficient under Warth. We need only emphasize that there

is an adequate showing, we feel, of a personal stake by

the Association and individuals to challenge the hiring

policies. Warth, supra at 499, 95 S.Ct. 2197. The Asso-

ciation, as indicated by the evidence, see note 1 of the opin-

ion, seeks to encourage racial harmony and to discourage

racism and discrimination. The underrepresentation of

Chicanos on the police force, see notes 4 and 10 of the

opinion, would have an obvious effect in restricting mem-

bership and resources available to the organization for

furthering these purposes (Plaintiffs’ Exhibit 1; affidavit

of Frank Chavez, R. Vol. I, 202, stipulated into evidence

subject to objections, id. at 194). The individuals make a

similar showing of injury to themselves due to the effect

of discrimination on the workforce. The proof was that re-

striction of Chicano employment by discriminatory entrance

procedures weakened both the Association and individual

efforts to change promotion policies (Affidavit of Frank

Chavez, R. Vol. I, 202).

18a

We are convinced that for standing purposes injury to

the Association and individuals is sufficiently shown in con-

nection with composition of the workforce, and the fact

that specific harm occurs to third parties not hired does not

deprive these plaintiffs of standing to vindicate their own

rights. Warth, supra at 504-05, 95 S.Ct. 2197.

Second, defendants turn to the opinion’s treatment of

the trial court’s ruling that a prima case was not made to

challenge the promotion level procedures. In part they

challenge our holding that it was error for the trial court

to exclude as relevant the proof concerning the prior exami-

nations from 1966 to 1971 (Plaintiffs* Exhibits 7-12).

Defendants say that reversal is not warranted because

in addition to the relevancy objections raising the grounds

of errors in tabulation, erroneous conclusions and authen-

tication, citing record objections in Vol. VI, at 116 and 119.

It is clear, however, that these other objections were di-

rected to other exhibits, that is Exhibits 3 and 4, and not

to the examinations in question (R. VI, 108, 116, 119).

Defendants argue also that even if the trial court errone-

ously excluded the exhibits as irrelevant,’ there were other

tenable grounds for exclysion—lack of authentication, com-

pilation errors, et cetera, so that the ruling should not be

reversed, citing Hamling v. United States, 418 U.S. 87, 108

n. 10, 94 S.Ct. 2887, 41 L.F.d.2d 590, inter alia.

Without considering whether such rule would apply here,

this record convinces us that rejection of all the proof

of prior examinations cannot be sustained here. The trial

court admitted, without objection, plaintiffs’ summary of

the 1973 examinations, Exhibit 14, containing tabulations

made apparently in the same way and by the same witness,

1 Pefendants also contend that we should presume that the

exhibits were actnally considered and discounted as unreliable.

(See Petition for Rehearing, 13).

19a

Mr. Chavez (R. V, 63; VI, 144), whose tabulations for the

other exhibits covering the prior examinations are chal-

lenged as inaccurate, et cetera. Exhibit 14 was appar-

ently accepted and relied on by the trial court whose find-

ings cite Chavez’ figures (R. 1, 288). Thus it would be un-

fair here to say that the other grounds of objection to

Exhibits 7-12 concerning the prior examinations—such as

unreliability and the like—existed and were ‘‘tenable.’’

’ The prior examinations were not mentioned in the find-

ings or conclusions of the trial court and there was no ex-

press ruling on the relevancy objections made. The 1973

examination was discussed in detail. We are satisfied

that the exhibits concerning the earlier examinations were

excluded from consideration by the trial court as irrelevant

and that this is the only tenable ground to consider in the

posture of this appeal. And regardless of whether the ex-

hibits were excluded as irrelevant, or considered unreliable

and wholly discounted, we are convinced we cannot sustain

the failure to give any consideration to them.