Petition — Kirkland v. New York State Department of Correctional Services

Supreme Court brief1976

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~ Supreme @ourt, U. Sy

FILED

1976

MICHAEL RODAK, JR., CLERK

In THE

Supreme Court of the United States

Octoser Term, 1975

BD. cases vd 5-163]

Epwarp L. KrrKLanp aNp NaTHanreL Hayes, et al.,

Petitioners,

Tue New York State DEPARTMENT OF

CorRRECTIONAL Services, et al.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JacK GREENBERG

James M. Nasnrit, III

DesoraAH GREENBERG

10 Columbus Circle

Suite 2030

New York, New York 10019

Morris J. Bauer

145 Ninth Street

San Francisco, California 94103

Attorneys for Petitioners

TABLE OF CONTENTS

PAGE

GD TI cccecreseserctessitesteenictenitonticnion 2

TD: sciscteiciecicnnciaiteiticaiiiteiisaiiniiisaiiitatliiliiaian 2

I I cicticttccctertencntecrcestncinssittittivinpimenpananes 2

Statutory and Constitutional Provisions Involved ........ 3

Statement of the Case ~.................. csuninsaesmsiimiagininiieniatlicn 5

Reasons for Granting the Writ —..........2.2.220...2...-se000- 9

A. The District Court’s Power to Award Com-

ER ee ae ene 9

lg. IPT TEPID .cssscicisenisitssenenpesepndensentmaniniamseabiaiaines 14

NII wisccnidesscccealdteiocineeisileiiadaliigsidibbceiitdicdabiebaleabeeistaididiaial 16

TaBLE oF AUTHORITIES

Caseés:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) _..9, 15

Alexander v. Gardner-Denver Co., 415 U.S. 36

ITTTIITE: .nteeiscesosisstinienccslduuneainpeevianiatintessteiaeahimmaigntiiiiiaisinida 15, 15n

Alyeska Pipeline Service Co. v. Wilderness Society,

Ee Pe HY RIO IEED cccnnicisiiicinsiosensinnsnniitehs a5 elicit 3, 8, 14, 15

Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (ist

Cir. 1974), cert. denied, 421 U.S. 910 (1975) ..10n, 13, 13n

Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Comm’n, 482 F.2d 1333 (2d Cir. 1973), aff’g im

relevant part, 354 F. Supp. 778 (D. Conn. 1973) ........ 10n

PAGE

Carter v. Gallagher, 425 F.2d 315, 327 (8th Cir. 1972)

(en banc), cert. denied, 406 U.S. 950 (1972) ......... nies 10n

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) —......... lin

Chance v. Board of Examiners, 11 EPD § 10,633 (No.

75-7161 2d Cir. Jan, 19, 1976) _.... Lae Gace, eS EAS lin

Commonwealth of Pennsylvania v. O’Neill, 473 F.2d

1029 (3d Cir. 1973) (en bane), aff’g in relevant part,

348 F. Supp. 1084 (E.D. Pa. 1972) _....000 10n

Commonwealth of Pennsylvania y. Sebastian, 480 F.2d

917, reported fully, 6 EPD § 9037 (3d Cir. 1973),

aff’g, 368 F. Supp. 854, reported fully, 5 EPD ¥ 8558

2 2 2 re aaa ee ee 10n

Crockett v. Green, 11 EPD § 10,781 (7th Cir. 1976) ..10n, 13

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) ... 1

EEOC vy. Detroit Edison Co., 515 F.2d 301 (6th Cir.

Rs ern see ee Crm ee INOS 10n

EEOC v. Local 638 .. . Local 28 of the Sheet Metal

Workers Assoc., 11 EPD {10,740 (No. 75-6079, 2d

Sk IID TC TIIITIED scsscntipitisserneaiiniaditpencinadaphepuniadeianaedanansi lin

Erie Human Relations Comm’n v. Tullio, 493 F.2d 371

ETE SUIIIIED -scsssscxcipatinccnsaticiiipesinaiientnninecndbdehensignieeieaiainitteniianiia 10n

Franks v. Bowman Transportation Co., 44 U.S.L.W.

4356 (No. 74-728, March 24, 1976) ............2.....-..sc000-00+- 9-10

Franks v. Bowman Transportation Co., 495 F.2d 398

OU a alalioeciceninlinndini 11n, 12, 14n

Griggs v. Duke Power Company, 401 U.S. 424 (1971) ..12-13

Johnson vy. Railway Express Agency, 421 U.S. 454

UETETIE ndindiesseldiiihddladinscemnnipegsesrssmnatndivicinqnchieniavanepéienneiiaitin 15n

Jones v. New York City Human Resources Adminis-

tration, 11 EPD { 10,664 (2d Cir. 1976) 0. 13n

PAGE

Local 53, International Association of Heat & Frost

I & A Workers v. Vogler, 407 F.2d 1047 (5th Cir.

PUN eicsst aches sich ihenibctiilasapadelitaecajiitiliiatinsaitciipiplaldiceiinte 10n

Louisiana v. United States, 380 U.S. 145 (1965) ......... 9,12

Moor v. County of Alameda, 411 U.S. 693 (1973) ........ 14

Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert. de-

EE es ee COD sib inccteittticiiccnticnisinidininianinn lin

NAACP vy. Allen, 493 F.2d 614 (5th Cir. 1974) ............ 10n

Newman v. Piggie Park Enterprises, 390 U.S. 400

GE select beiahsdinitnctiiteicllthadoneiditetieantiatinedigiaitdaiatiiteneilith 15

Oburn v. Shapp, 521 F.2d 142 (3rd Cir. 1975) _......... 10n

Patterson v. American Tobacco Co., 11 EPD { 10,728

Ns TTT incase nciciiaeitiiaia enemies 11

Patterson v. Newspaper & Mail Deliverers Union, 514

aaa creel 10n

Rios v. Enterprise Association Steamfitters, Local 638,

BF. RRS eee 10n

Rogers v. International Paper Co., 510 F.2d 1340 (8th

Cir.), vacated and remanded on other grounds, 46

ef eee e ee ee 13n

Swann v. Charlotte-Mecklenburg Board of Education,

EA, ES RN OTR er mae 12

United States v. Carpenters, Local 169, 457 F.2d 210

(7th Cir. 1972), cert. denied, 409 U.S. 851 (1972) .... lin

United States v. IBEW Local 212, 472 F.2d 634 (6th

Ga siabieieiiaschiteilesththaciecadninsceeinhleclcipae tratahsdioaiiiatbiomens 10n

United States v. Ironworkers, Local 86, 443 F.2d 544

(9th Cir. 1971), cert. denied, 404 U.S. 984 (1971),

aff’g, 315 F. Supp. 1202 (W.D. Wash. 1970) ............ 10n

PAGE

United States v. Masonry Contractors Ass’n of Mem-

phis, Inc., 497 F.2d 871 (6th Cir. 1974) —....022222...... 10n

United States v. Montgomery County Board of Educa-

we RS! SS | ee 12

United States v. N. L. Industries, 479 F.2d 354 (8th

6) | | se ee 11n, 13

United States v. Wood, Wire & Metal Lathers, Local

46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939

(BOT) onenaecececnscxssssesessnntnsowenitieessstninnnaiaae 10n

Vulean Society of New York City Fire Dept. v. Civil

Service Comm’n, 490 F.2d 387 (2d Cir. 1973) ........ 10n, 13n

Statutes:

GB ULE.C, GIT nncccecencecenetsensserrsenennmanae 3, 5, 14, 15

GB UDO. GRGGBR ncccesecsccecsssviecsvectelinnnaaee 3, 5, 14, 15

4B UDC. GRGTD cccececescnccsnecessnssenmsnsinannanensa 4,14,15

4B UBC. GORCB BGR) nncecccescccsnpusntecssesnncsstiunee 5, 14, 15

Other Authorities:

United States Senate Subcommittee on Labor of the

Committee on Labor, Legislative Histevy of the

Equal Employment Opportunity Act of 1°°2 (No-

| en 11

M. Slate, Preferential Relief in Employment Diserimi-

nation Cases, 5 Loyola Univ. L. J. 315 (1974) ............ 12n

In THE

Supreme Court of the United States

Octoser Term, 1975

TY anisicanins

Epwarp L. KirKuanp anp Natuanten Hayes, et al.,

Petitioners,

Tue New York Strate DeparTMENT OF

CorrecTIONAL Services, et al.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners, Edward L. Kirkland and Nathaniel Hayes,

individually and on behalf of the class they represent,

respectfully pray that a writ of certiorari issue to re-

view the judgment and opinion of the United States

Court of Appeals for the Second Circuit of August 6,

1975 in this case."

' Respondents include, in addition to those named in the caption

the following: Russell Oswald, in his capacity as Commissioner

of the New York State Department of Correctional Services; the

New York State Civil Service Commission; Ersa Poston, in her

capacity as President of the New York State Civil Service Com-

mission; Michael N. Scelsi and Charles F. Stockmeister, each in

his capacity as Civil Service Commissioner; Albert M. Ribeiro

and Henry L. Coons.

Opinions Below

1. The opinion of the District Court is reported at

374 F.Supp. 1361 and is in the Appendix, pp. 1a-19a.

2. The decree of the District Court is not officially

reported, but is reprinted in 8 EPD {9675 and is in the

Appendix, pp. 20a-21a.

3. The opinion of the Court of Appeals is reported at

520 F.2d 420 and is in the Appendix, pp. 22a-41a.

4. The order denying rehearing and the opinions dis-

senting from said denial are not officially reported, but

are reprinted in 10 EPD {10,547 and are in the Appen-

dix, pp. 42a-56a.

Jurisdiction

The Court of Appeals entered judgment August 6, 1975.

Request for rehearing was denied December 10, 1975.

February 19, 1976, Mr. Justice Marsh. ll signed an order

extending time for filing this petition until May 8, 1976.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

Questions Presented

1. Since 1961 there have been only two blacks and no

Hispanics in supervisory positions in the entire New

York State prison system. Substantial uncontradicted

evidence demonstrated that this situation was caused by

unconstitutional racial discrimination. As part of the rem-

edy the District Court ordered that one minority be pro-

moted to sergeant for every three whites so promoted

until the ratio of minority to white sergeants equals the

ratio of minority to white officers—the entry level rank

immediately below sergeant.

Did the District Court have the power to award this

aspect of the relief or was the Court of Appeals correct

in reversing on the ground that it was prohibited by the

United States Constitution, the New York State Consti-

tution and the New York Civil Service law?

2. Did the Court of Appeals err in reversing an award

of counsel fees in this case, brought under 42 U.S.C. §§ 1981

and 1983, on the ground that such award was forbidden by

Alyeska Pipeline Service Co. v. Wilderness Society?

Statutory and Constitutional Provisions Involved

Section 1981, 42 United States Code, provides:

All persons within the judisdiction 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 equal benefit

of all laws and proceedings for the security of per-

sons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and to no

other.

Section 1983, 42 United States Code, provides:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable te the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

Section 1988, 42 United States Code, provides:

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

chapter and Title 18, for the protection of all persons

in the United States in their civil rights, and for their

vindication, shall be exercised and enforced in con-

formity with the laws of the United States, so far as

such laws are suitable to carry the same into effect;

but in all cases where they are not adapted to the ob-

ject, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against

law, the common law, as modified and changed by the

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial and

disposition of the cause, and, if it is of a criminal

rature, in the infliction of punishment on the party

found guilty.

Section 2000e-5(k), 42 United States Code, provides:

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

party, other than the Commission or the United States,

a reasonable attorney’s fee as part of the costs, and

the Commission and the United States shall be liable

for costs the same as a private person.

eee

Statement of the Case

As of May 1, 1973, of 122 permanent Correction Ser-

geants in the New York State Department of Correctional

Service not one was black or Hispanic. Since 1961, there

have been only two blacks and no Hispanics in supervisory

positions in the entire New York State prison system;

there is no evidence that any minorities held supervisory

positions prior to 1961.’

The complaint filed April 10, 1973, challenged the legality, °

under the Fourteenth Amendment and 42 U.S.C. §§ 1981

and 1983, of Civil Service examination 34-944 for promo-

tion to Correction Sergeant (Male), administered October

14, 1972, on the ground that it was racially discriminatory

in that it excluded disproportionate numbers of black and

Hispanic candidates and was not job-related. An amended

complaint of June 22, 1973, challenged Sergeant examina-

tions administered prior to 1972 on the same ground.

Petitioners introduced substantial, unrebutted evidence

that the gross under-representation of minorities among

supervisors was brought about by the screening-out effects

of the examinations.

For the 1972 examination, complete racial pass-fail sta-

tistics showed that whites passed at three times the rate

of blacks and Hispanics, whites scored high enough to

be likely to be appointed at six times the black rate, and

no Hispanics scored high enough to be appointed. While

complete data was not available for earlier examinations,

2 In the Correction Officer series of the New York State Depart-

ment of Correctional Services, the entry level position is Correc-

tion Officer. Promotions are made to successive supervisory posi-

tions of Sergeant, Lieutenant, Captain, Assistant Deputy Super-

intendent, Deputy Superintenden' and Superintendent on the

basis of a series of written examinations.

it was undisputed that, of 995 whites and 46 blacks and

Hispanics who took the 1970 exam and were still em-

ployed January 1, 1973, 9.4% of the whites and no mi-

norities passed. Prior to 1970, at one correctional facility

25 blacks took the 1968 exam and 10 to 15 blacks took the

1965 exam. Seven black officers testified they took the

Sergeant examination as many as four times and never

scored high enough to be appointed. Six of these officers

had, at time of trial, been serving as provisional Ser-

geants for as long as a year, all satisfactorily. Finally,

there was uncontroverted expert testimony that blacks

and Hispanics tend to achieve lower scores than whites

on the type of examinations in issue.

The State respondents’ attempted, unsuccessfully, to

demonstrate that the 1972 examination was job-related.

Petitioners established that the earlier exams were pre-

pared by the same process and were similar in content to

the 1972 examination. Respondents put on no evidence

about job-relatedness of earlier examinations.

The District Court found that respondents had engaged

in racial discrimination in that examination 34-944 had

a disproportionate impact upon blacks and Hispanics (3a-

7a) and respondents had not met their burden of estab-

lishing its job relatedness (7a-15a). As to past examina-

tions, it found that “while there is evidence in the record

of the discriminatory impact of the earlier tests, there

is no evidence as to their job-relatedness” (14a). It en-

joined the use of eligibility lists promulgated on the basis

* Respondents Ribeiro and Coons are provisional Sergeants who

would have been appointed permanent Sergeants on the basis of

their performance on examination 34-944 but for the District

Court’s temporary restraining order entered April 10, 1973. They

applied and were permitted to intervene after the District Court

entered its opinion.

of performance on examination 34-944 and ordered prep-

aration of a new selection procedure (20a).

The District Court fur her ordered (a) that permanent

appointments of Correction Sergeants prior to developing

a new selection procedure be in a ratio of one black or

Hispanic for each three whites until “the combined per-

centage of Blacks and Hispanics in the ranks of Correc-

tion Sergeants (Male) is equal to the combined percent-

age of Blacks and Hispanics in the ranks of Correction

Officers (Male)” (20a); (b) after adoption of a new se-

lection procedure the same ratio of appointing one black

for three whites was required to be maintained until the

black-Hispanic sergeant percentage equalled their percent-

age among correction officers. (20a-21a)‘

The District Court awarded attorneys’ fees to petitioners

on the ground that they were acting to vindicate the

right to equal employment opportunities in the public

sector (17a-19a).

On appeal, a panel of the Court of Appeals affirmed

the provisions of the decree enjoining defendants from

making appointments based upon the results of examina-

tion 34-944 and directing the development of a new se-

lection procedure (28a-33a); affirmed that portion of the

decree requiring quota appointments during the interim

period prior to the development of a new selection pro-

cedure (38a-39a); but reversed the District Court’s order

with respect to minority goals and implementing ratios

subsequent to development of a new selection procedure.

It is this reversal, denying the power of the district judge

‘The court did not specify the time at which the percentage of

minority representation among correction officers was to be ascer-

tained for purposes of determining whether the goal for minority

Sergeants had been met. As of May 1, 1973, 395 of 4490 Corree-

tion Officers, 8.8%, were black or Hispanic.

to award such relief in such circumstances, for which cer-

tiorari is sought.

The panel’s reversal of the grant of affirmative relief

following establishment of a new procedure was based on

the grounds that (1) there was insufficient proof of a

“clearcut pattern of long-continued and egregious racial

discrimination” because (a) complete statistical pass-fail

data was unavailable, (b) petitioners failed to prove that

the earlier exams were not job related, and (c) there was no

claim of bad faith (34a-35a); and (2) a quota might re-

sult in minority individuals being given preference over

identifiable non-minorities (persons ranking higher on a

civil service list) which, the panel asserted, “would seem

to be violative” of the United States Constitution, the New

York State Constitution, and the New York Civil Service

Law (35a-38a). The panel failed to consider, or to remand

to the District Court to consider, alternative forms of re-

lief to class members who had unconstitutionally and dis-

criminatorily been denied appointment because of per-

formance on pre-1972 examinations.

The panel also reversed the award of attorneys’ fees in

reliance on Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975).

Petitioners petitioned for rehearing, with a suggestion

for rehearing en banc, of the issue of affirmative relief. The

petition was denied (5-3), Chief Judge Kaufman and Cir-

cuit Judges Mansfield and Oakes dissenting (43a-56a).

Judge Mansfield, Judges Oakes and Kaufman concurring,

pointed out that the first ground for reversal, insufficient

proof of past discrimination, was not supported by the

record (49a-5la), and that the second, that a quota would

result in “identifiable reverse discrimination”, did not dis-

tinguish it from all the other cases in which Courts of

Appeals for the Second Circuit and seven other circuits

had affirmed the imposition of hiring goals, and that the

panel’s denial of quota relief had the effect of providing

“wholly inadequate relief to those aggrieved” (43a-49a,

5la-55a). In a separate opinion, Chief Judge Kaufman

expressed the view that the court could “retrace the steps

taken by previous panels ... only by an en banc... or

by a Supreme Court holding that [its] earlier decisions

have been in error” (55a-56a).

Reasons for Granting the Writ

A. The District Court’s Power to Award Complete Relief

The decision below restricts the power of a court of

equity to award effective relief after a finding of racial

discrimination in employment and is thereby in conflict

with the decisions of seven other Courts of Appeals and of

this Court. Such restriction, moreover, denies petitioners

and their class positions they would have held but for re-

spondents’ discriminatory testing practices, contrary tc

principles asserted by this Court.®

This Court has consistently recognized the power, indeed

the duty, of district courts to fashion relief “which will so

far as possible eliminate the discriminatory effects of the

past as well as bar like discrimination in the future”.

Louisiana v. United States, 380 U.S. 145, 154 (1965). In

employment cases, this Court has emphasized the necessity

of granting relief which will, to the extent possible, place

victims of racial discrimination in the position they would

have been in but for the discrimination. Albemarle Paper

Co. v. Moody, 422 U.S. 405, 418-419 (1975) ; Franks v. Bow-

5 The District Court defined plaintiffs’ class to include all blacks

and Hispanics who had taken examination 34-944 and either failed

or scored too low to be appointed from the resulting eligible list

(16a).

man Transportation Co., 44 U.S.L.W. 4356 (No. 74-728,

March 24, 1976).

Relief from class-wide discriminatory exclusion from

jobs, at entry and higher levels, in public and private em-

ployment, has frequently included numerical or percentage

goals or quotas, utilizing hiring or promotional ratios to

implement the goals. Courts of appeals for seven other

circuits, as well as the court below in decisions prior to

the instant one, have uniformly upheld the power of dis-

trict courts to grant such relief.®

® Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st Cir.

1974), cert. denied, 42 U.S. 910 (1975); United States v. Wood,

Wire & Metal Lathers, Local 46, 471 F.2d 408 (2d Cir.), cert.

denied, 412 U.S. 939 (1973) ; Bridgeport Guardians, Inc. v. Bridge-

port Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973), aff’g

in relevant pari, 354 F. Supp. 778 (D. Conn. 1973); Vulcan

Society of New York City Fire Dept. v. Civil Service Comm'n,

490 F.2d 387 (2d Cir. 1973); Rios v. Enterprise Association

Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974); Patterson

v. Newspaper & Mail Deliverers Union, 514 F.2d 767 (2d Cir.

1975) (approving consent decree); Commonwealth of Pennsyl-

vania v. Sebastian, 480 F.2d 917, reported fully, 6 [CCH] EPD

99037 (3rd Cir. 1973), aff’g, 368 F. Supp. 854, reported fully,

5 EPD 98558 (W.D. Pa. 1972); Commonwealth of Pennsylvania

v. O'Neill, 473 F.2d 1029 (3rd Cir. 1973) (en bane), aff’g in

relevant part, 348 F. Supp. 1084 (E.D. Pa. 1972); Erie Human

Relations Comm’n vy. Tullio, 493 F.2d 371 (3rd Cir. 1974); Oburn

v. Shapp, 521 F.2d 142 (3rd Cir. 1975); Local 53, International

Association of Heat & Frost I & A Workers v. Vogler, 407 F.2d

1047 (5th Cir. 1969); NAACP vy. Allen, 493 F.2d 614 (5th Cir.

1974) ; United States v. IBEW Local 212, 472 F.2d 634 (6th Cir.

1973) ; United States v. Masonry Contractors Ass’n of Memphis,

Inc., 497 F.2d 871 (6th Cir. 1974); EEOC v. Detroit Edison Co.,

515 F.2d 301 (6th Cir. 1975) ; Crockett v. Green, 11 EPD 910,781

(7th Cir. 1976); Carter v. Gallagher, 452 F.2d 315, 327 (8th

Cir.) (en bane), cert. denied, 406 U.S. 950 (1972) ; United States

v. Ironworkers, Local 86, 443 F.2d 544 (Sth Cir. 1971), cert.

denied, 404 U.S. 984 (1971), af’g, 315 F. Supp. 1202 (W.D.

Wash. 1970).

ski.

Courts of appeals for four circuits have reversed a dis-

trict court’s failure to order such relief.’ With the ex-

ception of two recent Second Circuit decisions which re-

lied upon the panel’s decision in the instant case,’ the

only appellate decision to have reversed a grant of quota

relief is Patterson vy. American Tobacco Co., 11 EPD

10,728 (4th Cir. 1976), where the court, recognizing the

appropriateness of such relief in certain circumstances,

found that under the facts of that case it was not necessary.

The legislative history of ihe 1972 amendments to Title

VII demonstrates that such relief accords with the intent

of Congress. In 1972, two amendments were proposed to

prohibit the type of remedy which the court below struck

down. Both were defeated. Floor managers of both parties

explained that they opposed the amendments because they

would prevent District Courts from providing adequate

remedies for past discriminatory practices. United States

Senate, Subcommittee on Labor of the Committee of Labor

and Public Welfare, Legislative History of the Equal Em-

ployment Opportunity Act of 1972, November 1972, pp.

1017, 1038-1075, 1681, 1714-1717.

In analogous contexts, this Court has upheld the power

of district courts to shape remedies for past constitutional

7 Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Morrow v.

Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S.

895 (1974) ; Franks v. Bowman Transportation Co., 495 F.2d 398,

418-20 (5th Cir. 1974), reversed on other grounds, 44 U.S.L.W.

4356 (No. 74-728 March 24, 1976); United States v. Carpenters,

Local 169, 457 F.2d 210 (7th Cir. 1972), cert. denied, 409 U.S. 851

(1972) ; United States v. N. L. Industries, 479 F.2d 354 (8th Cir.

1973).

8 Chance v. Board of Examiners, 11 EPD 910,633 (No. 75-7161

Jan. 19, 1976), petition for rehearing filed Feb. 2, 1976); EEOC

v. Local 638 . . . Local 28 of the Sheet Metal Workers Assoc.,

11 EPD {$10,740 (No. 75-6079 March 8, 1976), petition for re-

hearing filed, April 12, 1976.

violations by taking into account black-white ratios. Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1

(1971); United States v. Montgomery County Board of

Education, 395 U.S. 225 (1969).

The element that makes such affirmative provisions both

lawful and necessary is prvof of prior discrimination or its

continuing effects. Louisiana v. United States, supra; cf.

Franks v. Bowman Transportation Co., supra. And the

appropriateness in this particular case is manifest, for as

Judge Mansfield pointed out, rejecting goals denies “non-

white correction officers the long overdue promotions to

which they were entitled [and] ... by requiring them to

compete afresh with late comers once a non-diseriminatory

test is devised . . . postpones their promotions even

further” (51a). Yet, the alternative remedy which would

“adhere most closely to the merit principle, would be to

void and recall all past promotions made on the basis of

the non-validated tests.... [But] suecli relief ... would be

extremely harsh. ...” (52). The district judge took a mid-

die ground, well within the powers of a court of equity.°

One ground given by the panel for reversal was the

“paucity of proof” of past discrimination (35a.). But this

argument is not supported by the record. Substantial un-

contradicted evidence demonstrated the discriminatory ef-

fects of respondents’ past testing practices. While com-

plete statistical pass-fail evidence was not introduced, be-

cause it was not available, the argument that such evidence

is necessary to a finding of discriminatory impact has been

rejected, expressly or by implication, by this Court and

several Courts of Appeals. Griggs v. Duke Power Com-

®*See M. Slate, Preferential Relief in Employment Discrimina-

tion Cases, 5 Loyola Univ. L. J. 315 (1974) for a comprehensive

rationale of the law of this subject.

pany, 401 U.S. 424, 430 and n. 6 (1971), Courts of Appeals

for the First, Second, Eighth and District of Columbia

Cirenits have found discriminatory impact in the absence

of complete pass-fail data.’®

The panel’s second ground for denying that there is

equitable power to grant quota relief upon a finding of

ragial discrimination was that the non-minority officers

over whom the minority officers would be preferred for

promotion were identifiable. However the identifiability

vel non of those whose expectations might be diminished

has never been a criterion for determining the appropriate-

ness of affirmative relief (54a). In virtually all of the cases

in which preferences have been ordered, the identity of

those who possessed expectations deriving in part from

the continuing effects of past discrimination was known.

See, e.g., Boston Chapter, NAACP v. Beecher, 504 F.2d

1017, 1026-1027 (1st Cir. 1974). Nor has such relief been

confined to entry level jobs. See United States v. N. L.

Industries, 479 F.2d 354, 377 (8th Cir. 1973); Crockett v.

Green, 11 EPD {10,781 (7th Cir. 1976). Indeed the panel

decision recognized existence of the power to appoint ac-

cording to quotas until the time when new selection pro-

cedures would be developed, but denied its existence there-

after, when the use of such power would be most meaning-

ful.

In sum, the decision of the court below creates a conflict

with decisions of other circuits concerning the equitable

1° Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1020-1021

(Ist Cir. 1974); Vulcan Society v. Ciwil Service Commission, 490

F.2d 387, 393 (2d Cir. 1973); Jones v. New York City Human

Resources Administration, 11 EPD 10,664 (2d Cir. 1976) ; Rogers

v. International Paper Co., 510 F.2d 1340, 1346-49 (8th Cir.)

vacated and remanded on other grounds, 46 L.Ed. 2d 29 (1975) ;

Douglas v. Hampton, 512 F.2d 976, 982-983 (D.C. Cir. 1975).

power of district judges to award meaningful relief. This

Court, we respectfully submit, should resolve the conflict.”

B. Attorneys’ Fees

This Court has not yet decided whether a district court

has the power to award attorneys’ fees to prevailing

plaintiffs in cases of racial discrimination in employment

brought under 42 U.S.C. §§1981 and 1983. While there is

language in Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975) to support the decision of the

Court below, see especially id. at 270 n. 46, petitioners

respectfully submit that the rationale underlying Alyeska,

considered in conjunction with 42 U.S.C. $1988 and 42

U.S.C. §2000e-5(k), requires a contrary result.

In Alyeska, a case involving the enforcement of certain

laws for the protection of the environment, this Court held

that in the absence of express statutory authorization the

courts could not, except in limited classes of cases, award

attorneys’ fees. But there is express statutory authoriza-

tion, 42 U.S.C. §1988, which, we submit, warrants award

of counsel fees in this case. Sections 1981 and 1983 do not

specify any of the remedies available for the rights they

create. Rather, Section 1988 instructs the federal courts in

civil rights cases to exercise their jurisdiction in conformity

with the laws of the Up.ted States and, indeed, if they are

deficient, state laws, to provide remedies which will most

fully effectuate the substantive rights at issue. Moor v.

County of Alameda, 411 U.S. 693, 702-705 (1973).

11 Subsequent to the denial of rehearing in the instant case, this

Court decided Franks v. Bowman Transportation Co., supra. While

the issue resolved in Franks, the propriety of granting retroactive

seniority to diseriminatees, was not raised in the court below, a

remand to the Court of Appeals for reconsideration in the light

of Franks might afford complete relief to those members of plain-

tiffs’ class who were denied promotion to Sergeant on the basis

of their performance on pre-1972 examinations.

Congress enacted Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§2000e et seg. for the purpose of eradicat-

ing discriminatory employment practices; it gave a signif-

icant role to private litigants in the enforcement process.

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45 (1974).

In Section 706(k) of Title VII, 42 U.S.C. §2000e-5(k),

Congress provided for the award of attorneys’ fees to

successful plaintiffs, and this Court has recognized the

importance of implementing this provision to effectuate

the purpose of Title VII. Albemarle Paper Co. v. Moody,

405, 415 (1975).

Thus, unlike the situation presented to the Court in

Alyeska, where Congress had not seen fit to authorize the

award of attorneys’ fees in environmental litigation, there

is, in section 706(k) of Title VII, a clear expression of

Congressional intent to authorize federal courts to award

attorney’s fees to vindicate the national policy of eliminat-

ing racial discrimination in employment, a policy advanced

equally through suits brought pursuant to Sections 1981

and 1983 and Title VII.”

Accordingly, by assimilating (706(k) of Title VII to

§§1981 and 1983 as directed by §1988, the district court in

the instant case was authorized to award attorneys’ fees to

petitioner, and the reversal of said award by the court

below was contrary to the principle enunciated by this Court

in Alyeska, as well as to the rule expressed in Newman v.

Piggie Park Enterprises, 390 U.S. 400 (1968).

Certiorari should be granted also, we submit, to resolve

this important ambiguity resulting from Alyeska.

" Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 and n.7;

Johnson v. Railway Express Agency, 421 U.S. 454 (1975).

CONCLUSION

The Court should grant a Writ of Certiorari to review

the judgment and opinion of the Court of Appeals.

Respectfully submitted,

Jack GREENBERG

James M. Nasrait, IIT

Deroran GREENBERG

10 Columbus Circle

Suite 2030

New York, New York 10019

Morris J. BaLLer

145 Ninth Street

San Francisco, California 94103

Attorneys for Petitioners

May 1976

APPENDIX

Opinion of District Court

IN THE UNITED STATES DISTRICT COURT

For THE SourHERN Districr or New York

73 Civ. 1548

Epwarp L. Kmx.anp, et al. Plaintiffs,

New York State DEPARTMENT OF

2 CorreEcTionaL Services, et al., Defendants.

Filed: April 2, 1974

Jack Greenberg, Jeffry A. Mintz,

Morris J. Baller, Deborah M. Greenberg,

New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., of the

State of New York, New York City, for

defendants, Judith A. Gordon, Asst.

Atty. Gen., Stanley L. Kantor, Deputy

Asst. Atty. Gen., of counsel.

OPINION

LASKER, District Judge.

This suit is another in an ever-esies-

ing series of challenges to civil service

examinations. Plaintiffs, who are

Correction Officers, provisionally ap-

pointed to the rank of Correction Ser-

geant (Male), contend that the test for

promotion and permanent appointment

to that position discriminated against

them on the basis of race. They seek to

represent all Black and Hispanic Correc-

'. Originally, there wax a third named plain-

tiff, the Brotherhood of New York State

Correction Officers, tne. llowever, this

plaintiff withdrew at the commencement of

the trial.

2. Defendants urge ux to apply the dectrine

of primary juriwliction and defer the case to

the Equal Employment Opportunity Comminx-

sion on the theory that by extending Title

VIL to cover states and municipalities Con-

gress intended to oblige persoux secking re-

drexm against governmental discrimination in

employment to resort in the first inxtanee to

the EFOOC. This contention hax been re-

soumlingly rejected in cases involving suitx

against private employers under 12 ULNA. §

i781, Macklio vo Spector Freight Sy<tens,

Ine, 1G US App. Gf, 478 Fd 87n,

5-007 (1075); Deady +. Bristol-Meyers,

tuuon Officers and provisional Correction

Sergeants who failed the examination,

who passed it but ranked too low to be

appointed or who were deterred by the

appointment system from secking pro-

motion. Defendants are the New York

State Department of Correctional Serv-

ices, its Commissioner, and the New

York State Civil Service Commission

and its Commissioners.

The action is brought under the

Fifth and Fourteenth Amendments to

the Constitution and under the Civil

Rights Act (42 U.S.C. §$§ 1981 and

1983) and its jurisdictional counterpart

(28 U.S.C. §§ 1343(3) and (4)). Plain-

tiffs make no claim under Title VII of

the Civil Rights Act of 1964 (42 U.S.C.

§§ 2000e to 2000c-17), despite the avail-

ability, by recent amendment, of reme-

dies under it against states and munici-

palities (id. at § 2000e(a)).?

Ine, 450 Fld G21, G28-024 (Sth Cir. 1972);

Caldwell v. National Hrewing Co., 443 F.2d

Wett (Sth Cir), cert. denied, 404 ULS. 99S,

2 S.Ct. HH), 30 L.Ed2d 551 (1971); Young

v. International Telephone & Telegraph Co.,

438 Fold 757, 763 (Sed Cir, 1971); Sanders

v. Doble IHlouse, Ine, 431 F.2d 1007, 1100-

1301 (oth Cir, 1870), cert. denied, 401 ULS,

IS, OF Sr. 95, ZS L.Ed 2d 231 (1071).

Furthermore, cases in this Circuit involving

suits whieh, like the instant case, were

brought under & 198% hold that the amend-

ment to Tithe VII was not intended to fore-

cloxe recourse to the earlier Civil Rights

Act. Vulean Society v. Civil Service Com-

thixsion, 40 Ftd S87, at 200, m. t (2d Cir,

1724) ; rikigepyrt) Guonrdinus, Ine, v.

Iiridgeport Civil Service Commisxion, 482

F.2d 1333, US34, un. 1 (2d Cir. 1973).

| BEST COPY AVAILABLE

2a Opinion of District Court

In spring, 1972, the 1970 eligible list

for Sergeant appointments was exhaust-

ed. To fill needed positions pending es-

tablishment of a new list, the Depart-

ment of Corrections appointed provision-

al Correction Sergeants, in August,

1972, to hold their posts until permanent

appointments could be made. Both

named plaintiffs were appointed at that

time.

Upon request of the Department of

Corrections, the Civil Service Commis-

sion prepared a promotional cxamination

which was administered on October 14,

1972. That examination, 34-944, was

taken and failed by plaintiffs and is the

subject of this action.

34-944 was taken by 1,383 persons,

including 1,261 whites, 103 Blacks and

16 Hispanics. The candidates examina-

tions were graded and the passing grade

was established at 70%. After adjust-

ment for veteran’s preference and seni-

ority, those who passed were ranked by

grade and an eligible list was promulgat-

ed on March 15, 1973. On April 19,

1973, this suit was filed and a temporary

restraining order entered preventing de-

fendants from making appointments

from the list and from terminating the

provisional appointments of plaintiffs or

members of the class. By modification

and stipulation, the restraining order

was extended to maintain the status quo

until a decision on the merits.

The ground rules for cases such

as this have been thoroughly clucidated

by recent decisions of the Court of Ap-

peals for this Circuit. We note in par-

ticular Vulcan Society of the New York

City Fire Department, Inc. v. Civil Serv-

ice Commission (“Vulcan”), 490 F.2d

387 (2d Cir. 1973), aff'g, 360 F.

Supp. 1265 (S.D.N.Y.1973); Bridge-

port Guardians, Inc. v. Bridgeport Civ-

3. The total candidate pool was approximately

1.441. However, for reasons net apparent

from the record, the computer dixplay pre-

videl by defendants to deseribe cnndidate

performance (I X-12) indientes the perform-

ance of only 1,383 @¢undidates. Since both

parties have based their calculations on that

figure, we will do likewise.

“il Service Commission (“Guardians”),

482 F.2d 1333 (2d Cir.), aff’g in part

and rev’g in part, 354 F.Supp. 778 (D.

Conn.1973), and Chance v. Board of Ex-

aminers (“Chance”), 458 F.2d 1167 (2d

Cir. 1972), aff’g, 330 F.Supp. 208 (S.D

N.Y.1971). To summarize the approach

adopted by the cases, plaintifis must

first establish a prima facie case show-

ing that the examination has had “a ra-

cially disproportionate impact.” Vulcan,

490 F.2d at 391; Castro v. Beecher

(“Castro”), 459 F.2d 725, 732 (ist Cir.

1972). If they succeed, it then becomes

defendants’ burden to justify the exami-

nation’s use despite its differential im-

pact by proving that it is job-related

(Vulcan, 490 F.2d at 391) and that any

disparity of performance results solely

from variance in qualification and not

from race (Griggs v. Duke Power Co.,

401 U.S. 424, 430-431, 91 S.Ct. 849, 28

L.Ed.2d 158 (1971); Chaner, 330 F.

Supp. at 214). Discharging this burden

would entitle defendants to judgment;

failure would, of course, require the

court to take the third step of determin-

ing what remedy would be appropriate.

As is typical in cases of this

type, plaintiffs do not allege that de-

fendants have intentionally discriminat-

ed against their class. Such an allega-

tion is not a necessary part of their

case. Chance, 458 F.2d at 1175-1176.

As the Supreme Court stated in

Grigys:*

“[C jood intent or absence of discrimi-

natory intent does not redeem employ-

ment procedures or testing mecha-

nisms that operate as ‘built-in head-

winds’ for minority groups and are

unrelated to measuring job capability.”

401 U.S. at 432, 91 S.Ct. at 854.

Iluwever, the fact that the alleged dis-

crimination is not claimed to be deliber-

4. GUrigas arose under Tithe VIT of the Civil

Nights Act of 104: however, the same ap-

proach to employment discrimination cases

has gevernily been followed in § 108) cnsex

ax in Tithe VIL cuses. Ualean, 490 F.2d at

Hn; Castro, 450 F.2d at 733.

Opinion of District Court 3a

ate modifies the burden placed on the

state to justify its actions. Intentional

racial discrimination would require the

state to demonstrate a compelling neces-

sity for its selection methods. Cf. Lov-

ing v. Virginia, 388 U.S. 1, 87 S.Ct.

1817, 18 L.Ed.2d 1010 (1967); Yick Wo

v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,

30 L.Ed. 220 (1886). Ilowever, “the Su-

preme Court has yet to apply that strin-

gent test to a case such as this, in which

the allegedly unconstitutional action un-

intentionally resulted in discriminatory

effects." Chaner, 458% F.2d at 1:77.

Ayonizing over whether the state can

discharge its constitutional obligations

merely by suggesting a rational basis

for the cxamination’s use or whether it

must satisfy a more demanding stand-

ard, short of the compelling interest

test, is unnecessary. The guidelines

have been so refined by the cases that

no ambiguity obscures the road to deter-

mination regardicss of the difficulties

of classification which may remain to

plague the theorists. Guardians, 482 F.

2d at 1337. The decisions impose on the

state “a heavy burden of justifying its

contested examinations by at least dem-

onstrating that they were job-related.”

Chance, 458 F.2d at 1176; sce also

Guardians, 482 F.2d at 1337. This

“heavy burden” is discharged if the

state “come[s] forward with convincing

facts establishing a fit between the qual-

ification and the job.” Vulcan, 490 F.2d

at 393, quoting Castro, 459 F.2d at 732.

Once the state proves its case to that ex-

tent, it need not establish, as would be

required under the compelling interest

approach, that no alternate means of

selection are open to it. Castro, 459 F.

2d at 733; see also Vulcan, 490 F.2d at

393.

However clearly the issues are deline-

ated by well-established precedent, noth-

ing can make casy the task of deciding a

case such as this. The competing inter-

ests are vital to the named parties, to

other individuals who may be affected

by the outcome and to the public at

large. Plaintiffs strive to insure for

themselves and the minorities they seek

to represent the fair treatment in the

public employment sphere which the

Constitution guarantees. Their efforts

bring them into conflict with those indi-

viduals who passed the challenged exami-

nation and have a vested interest in se-

curing the promotions which are right-

fully theirs if the examination is upheld.

For both groups, the outcome is critical

since it affects their ability to earn a

living by advancing in the profession of

their choice. Last and perhaps most im-

portant is the public's stake in establish-

ing and maintaining a system of prison

administration which is both competent

and representative of the population.

As members of the public, we include, of

course, the inmates of the prison system

who, more than anyone else in the com-

munity, are directly affected by the

quality of correctional supervision. The

delicacy of the decision is further com-

pounded by the potential for heightened

tension which attends any direct conflict

along racial and cultural lines.

Bearing these factors in mind, we pro-

ceed, with caution but without more ado,

to a consideration of plaintiffs’ prima

facie case.

I. DISPROPORTIONATE IMPACT.

Plaintiffs rest their case on the fol-

lowing uncontested statistics. The fig-

ures computed by defendants indicate

that White candidates passed 34-944 at

a rate of 30.94%, while only 7.7% of

Black candidates and 12.5°, of Hispanic

candidates achieved a passing score.

(Transcript at 500). That is, Whites

passed at a rate approximately four

times that of Blacks and 2.5 times that

of Ilispanics. Defendants concede the

Statistical significance of these differ-

ences. (Post-trial Memorandum at I-4.)

Plaintiffs’ evidence reveals an even

more startling disparity among those

who ranked high enough to be appoint-

ed. The Department of Corrrections in-

tends to appoint a maximum of 147 per-

4a Opinion of District Court

sons from the present cligible list.5 A

computer display of the results of 34-

944 (PX-12) reveals that, of 159 per-

sons who scored 57 or above (a group

large enough to satisfy the Department's

projected needs), 157 were White, two

were Black and none was Hispanic.

Thus, 12.5% of the Whites who took

34-944 are likely to be appointed, while

only 1.9% of Black candidates and no

Hispanics h:.ve a chance at appointment.

These results would lead to the appoint-

ment of Whites at 6.5 times the rate of

Blacks and would bar completely the ap-

pointment of Hispanics.

The statistical significance of these

figures is established beyond dispute by

the earlier cases. In Chance, Guardians

and Vulcan, the impact was less drasti-

cally disproportionate among the races.

In Chance, the passing rate for Whites

was 1.5 times that of Blacks and His-

panics (330 F.Supp. at 210); in Guardi-

ans, Whites passed at 3.5 times the rate

for Blacks and Hispanics (354 F.Supp.

at 784); and in Vulcan, Whites scored

high enough to have a chance at ap-

pointment at 2.8 times the rate for

Blacks and Hispanics (360 F.Supp. at

1269).

Defendants do not challenge the accu-

racy of plaintiffs’ figures (for which

iitey are the source) nor do they deny

the statistical significance of the differ-

ential impact indicated by them. They

contend, however, that the approach tak-

en by plaintiffs, that is, consideration of

the statistics as to the statewide impact

of the entire exam, does not accurately

reflect the performance of the groups in

relation to each other. They urge us,

rather, to base our determination of ra-

cial impact on the candidates’ perform-

ances facility by facility rather than

throughout the state. They contend

that otherwise it is impossible to deter-

5. The Department of Corrections appointed

87 persons from the eligible ‘ist baxed on

34-044 in April, 172. (PN-2, answer to

Interrogatory No. 30.) On May 29, 1973,

the Department indieated that it intends to

wiake another 40-00 appointments from the

lixt within roughly two years from that date.

(PX-2, answer to Interrogatory No. 40.)

mine whether minority candidates are

succeeding less well as a group because

of their racial and cultural backgrounds

or because they are located at facilities

which, for reasons unspecified, prepare

their officers less well for the promo-

tional exam. In fact, the great majority

of minority candidates are located at Os-

sining (82 Blacks out of a total of 104, 9

Hispanics out of a tota! of 16) with the

second largest concentration of Blacks at

Greenhaven (8). (PX-12, codes 1007

and 1008.) Defendants argue that if

both Whites and minority candidates at

Ossining perform less well than persons

—White, Black or Hispanic—employed

at other facilities, then 34-944 has not

been shown to differentiate on the basis

of race. Second, defendants contend

that, since 34-944 is composed of five

subtests, comparative performance on

each subtest should be determinative

rather than performance on the test as a

whole. If these approaches are adopted,

they claim, the three groups of candi-

dates will be shown not to have per-

formed sufficiently differently to make

out a prima facie case of disproportion-

ate impact.

To support their argument that the

results of 34-944 are relevant only if

separated by facility, defendants rely on

an analysis of the computer display of

examination results (PX-12) drawn up

by Kenneth Siege!, the Associate Per-

sonnel Examiner who was responsible

for the preparation of 34-944. He ana-

lyzed the performances of the groups in

terms of mean scores on the total exam

and on each of the five subtests at Os-

sining, Green Haven, all the other facili-

ties and all the facilities taken together

(DX-DD). The reason for selecting Os-

sining and Green Haven for special at-

tention was the concentration of minori-

ty candidates at those facilities. Sie-

Thus, a maximom of 147 persons will be ap-

pointed through May of 1975. No appoint-

ments are likely after that date, sinew an-

other promotional exam will be given in

i074 (UN-42. p. 4. Tih par.d ane the engi-

ble list from 34-44 will therefore expire in

1974 or early 1975.

Opinion of District Court

gel’s written analysis (DX-.)) dves

not indicate passing rates, but only

mean scores. However, Siegel testified

that the difference in passing rates be-

tween Whites and Blacks at Green Ha-

ven (Transcript at 511) and all other fa-

cilities except Ossining is not statistical-

ly significant (Transcript at 509, 515).

Based on Siegel's testimony, defendants

argue that as a result plaintiffs’ prima

facie case fails with respect to all facili-

ties except Ossining.

The principal obstacle to accepting de-

fendants’ analysis is that it is premised

on assumptions which are factually erro-

neous. Their own statistics bely their

theory. Siegel's analysis (DX-DD) of

the computer display (PX-12) reveals

not only that the mean score for Whites

state-wide (48.9) is superior to that of

Blacks (43.2) and Hispanics (44.2), but

also that the mean scores at Ossining,

Green Haven and other facilities consid-

ered separately reflect the same pattern.

Whites at Ossining achieved a mean

score of 47.32, compared with 42.96 for

Blacks and 41.56 for Hispanics. The

disparity at Ossining is virtually identi-

cal to that derived from a comparison of

statewide figures for Whites and Blacks

(48.9 to 43.2) and is greater than the

state-wide difference between Whites

and Hispanics (48.9 to 44.2). This ef-

fectively refutes defendants’ theory that

minority candidates generally performed

less well than Whites solely because they

were concentrated at Ossining where

candidates as a whole did less well.

The range at Green Haven is almost

as striking and indicates again a

greater variance than is found state-

wide between Whites and Blacks and an

almost identical disparity as that found

state-wide between Whites and Hispan-

ics: Whites, 48.68; Blacks 42.00; His-

panics, 44.00. A comparison of results

at facilities other than Ossining and

Green Haven bears out the trend:

Whites, 49.00; Blacks, 45.21; Hispan-

ics, 48.17. It is true that Hispanics at

these facilities fared better than at Os-

sining and Green Haven and their

scores more closely approximate the

performance of Whites. However, the

importance of this discovery is some-

what discounted by the small size of

the sample (6 Hispanic candidates)

which ‘decreases the possibility of sta-

tistical accuracy (Transcript at 936-37).

Furthermore, Siegel's analysis indicates

that the standard deviation in mean

scores between Whites and Blacks was

statistically significant at Ossining,

Green Haven and all other facilities as

well as state-wide, and the same is true

of Whites and Hispanics at Ossining

where the largest concentration of His-

panics is found. (DX-DD.)

An analysis of passing rates, which is

more appropriate since it is the passing

score which determines a candidate’s eli-

gibility for appointment, is even more

illuminating. Siegel testified that there

was a significant difference between the

passing rates of Whites and Blacks at

Ossining (Transcript at 509), but that

no such difference existed between

Whites and Blacks at Green Haven and

facilities other than Ossining and Green

Haven and none between Whites and

Hispanics at Ossining, or other facili-

ties. (Transcript at 509-515.) He

did not compare the passing rates of

Whites and Hispanics at Green Haven

because there was only one Hispanic

candidate at that facility. (Transcript

at 511.) Nor did he testify as to the

difference between the passing rates

of Whites and Hispanics at facilities

other than Ossining and Green Haven.

Siegel is correct that the disparity in

passing rates between Whites and

Blacks at Ossining is significant:

Whites passed at a rate of 23.5% and

Blacks at a rate of 4.9%. (PX-33.)

However, his testimony as to Blacks at

Green Haven and at other facilities and

as to Hispanics at Ossining flies in the

face of the figures in evidence. To the

contrary, comparison of the groupings

mentioned above indicates in each in-

stance a significant disparity between

the passing rate of White and minority

candidates. Whites at Green Haven

passed at a rate of 31.6%, while Blacks

and Hispanics achieved rates of only 12.-

6a Opinion of District Court

3% and 0%* respectively. 30.7% of

Whites at facilities other than Ossining

and Green Haven? passed 34-944, while

only 14.3% of Blacks passed. Although

Hispanics at facilities other than Ossin-

ing and Green Haven passed at a higher

rate than Whites (33.35% compared to

30.7%), the reliability of this computa-

tion is put in doubt by the smallness of

the sample. Hispanics at Ossining, on

the other hand, passed at a rate of 0%

compared to a White passing rate of 23.-

5%. Accordingly, contrary to Siegel’s

conclusion, the disparity between White

and minority candidates was significant

with regard to Blacks at Ossining,

Green Haven and all other facilities, as

well as state-wide, and was significant

with regard to Hispanics at Ossining,

where the largest number of Hispanics

are located.

These computations destroy the

factual premise of defendants’ argument

that minority performance reflects the

facilities in which they concentrated

rather than their minority characteris-

tics. We would in any event be forced

to reject defendants’ theory as a matter

of law, even if it could be factually sub-

stantiated. Attempts to correlate racial

performance to such non-racial charac-

teristics as quality of schooling or edu-

cational and cultural deprivation have

been rejected as irrelevant to rebut a

statistical prima facie case. As the dis-

trict court opinion in Guardians stated:

“More fundamentally, this data |as to

quality of schooling] fails to remove

the prima facie showing of discrimi-

nation because it does not alter but

only tries to explain the difference in

6. Inasmuch ax there was only one Hispanic

eundidate from Green Haven, the importance

of thix comparison should not be exaggera\

ed.

7. The figures for White, Black and Hispanic

passing rates at facilities other than Onxsin-

ing and Gireen Haven are not in the record,

but can be readily computed from those

which are in evidence (see PX-35). The

number of Whites at “other facilities” ix

169 (12H, the total of White candidates,

minus 195, which is the sum of White candi-

passing rates.” 354 F.Supp. at 785;