# Petition — Stover v. Chicano Police Officers Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 944

## Text

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
ee SD IED i. occ wdcdvéccccccces la

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1973%3A1. Public record. Not legal advice.