# Petition — Kirkland v. New York State Department of Correctional Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2348%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 823 ## Text ~ 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 iv 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, v. 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 4 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. 6 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. 7 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. 8 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 9 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). 10 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. 11 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. 12 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. 13 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). 14 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. 15 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). 16 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 la IN THE UNITED STATES DISTRICT COURT For THE SourHERN Districr or New York 73 Civ. 1548 Epwarp L. Kmx.anp, et al. Plaintiffs, v. 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— Van GRAAFEILAND, Circuit Judge: 24a Opinion of Court of Appeals Department of Correctional Services. One thousand, two hundred sixty-three white correctional officers took this ex- amination, aud three hundred eighty-nine, or 30.8%, re- ceived a passing score. Of the one hundred four Blacks tested, eight, or 7.7% passed; of the sixteen Hispanics, two, or 12.0% passed. Thus was this litigation born. On April 10, 1973, Edward Kirkland and Nathaniel Hayes, two Black officers who failed, joined with the Brotherhood of New York State Correction Officers, Inc., in instituting this civil rights class action’ on behalf of their similarly situated fellow officers, seeking to enjoin any promotions to sergeant based on the results of the examination. The case was tried before Judge Lasker in J uly of 1973, and this appeal is taken from his order and decree. Basic- ally, the order provided as follows: 1. It declared examination 34-944 invalid as uncon- ‘titutionally discriminatory and enjoined defendants from making any appointments to sergeant based on the results thereof. ’ 2. it mandatorily enjoined defendants to develop a lawful, non-discriminatory selection procedure for the position of sergeant, equiring that it be validated in accordance with the E.E.0.C.2 Guidelines on Em- ployment Selection Procedures and that all validation studies be performed by means of empirical, criterion. related validation techniques insofar as feasible. It also required that the proposed selection procedure 1 Although the coverage of Title VII was enlarged in 1972 by the amendment of 42 U.S.C. § 2000e(a) to inelude governments, govern. mental agencies and politieal subdivisions, this action was brought under 42 U.8.C. §§ 1981, 1983. ° 2 Equal Employment Opportunity Commission. Opinion of Court of Appeals 25a be submitted to the plaintiffs for review and to the court for approval prior to its adoption. 3. It authorized defendants to request the court’s permission for the making of interim appointments, with the provision that members of the plaintiff class receive at least one out of every four such promotions until the combined percentage of Black and Hispanic sergeants was equal to the combined percentage of Black and Hispanic correction officers. 4. It required that, following the development and court approval of revised selection procedures, de- fendants continue to promote at least one Black or Hispanic employee for each three white employees pro- moted until the combined percentage of Black and Hispanic sergeants was equal to the combined per- centage of Black and Hispanic correction officers. 5. It awarded attorney’s fees to plaintiffs as part of their costs, retaining jurisdiction in the court to determine the amount thereof. Defendants have appealed from this order, contending primarily that examination 34-944 was job-related and therefore not unconstitutionally discriminatory; that the court erred in requiring future examinations be criterion- validated ; that the imposition of promotion quotas was un- justified and constituted reverse discrimination; and that the award of attorney’s fees was improper. By order to show cause dated April 23, 1974, Albert M. Ribeiro and Henry L. Coons, correction officers who had taken and passed examination 34-944, sought leave to intervene as parties defendant on behalf of thémselves and a class of similarly situated correction officers, alleging that they were indispensable parties, since the relief sought 26a Opinion of Court of Appeals by plaintiffs wouid deprive them of their persona! and property rights without due process of law. This motion was granted, with the proviso that intervenors could not litigate any matters which they might have litigated had they been parties from the outset. Interven‘ion was also limited to the petitioners as individuals and not as repre- sentatives of a class. Intervenors also appeal from the final order and deerce, urging as additional error that they should have been joined at the outset as indispensable parties. Since this latter contention involves the litigation at its inception, we will address ourselves to it first. DismissaL For Non-JOINDER Intervenors’ claim of indispensability is grounded upon the provisions of the New Yerk Civil Service Law. The office of correction sergeant is in the competitive class under such law.* Article 5, Section 6, of the New York Constitution requires that appointments and promotions in the Civil Service “shall be made according to merit and fitness to be ascertained, as far as practicable, by examina- tion which, as far as practicable, shall be competitive”. The Civil Service Law, following the mandate of the Constitution, requires the taking of competitive examina- tions and the appointment and promotion to covered posi- tions from eligible lists promulgated from the results of such examinations.‘ Appointment or promotion is gen- erally required to be made from one of the three persons standing highest on the eligible list.’ When there is no appropriate eligible list available, provisional appoint- 3. iN. Y. Civil Service Law § 44 (McKinney 1972). 4 N.Y. Civil Service Law $6 52, 61 (McKinney 1972). 5 _N. Y. Civil Service Law § 61 (McKinney 1972). Opinion of Court of Appeals 27a ments or promotions are authorized, pending the creation of a new list;* and provisional appointees secure certain benefits which may be applied against future permanent appointments.’ The eligible list from the examination preceding 34-944 became exhausted in the Spring of 1972, and intervenors, together with some members of plaintiff class, received provisional appointments to correction sergeant. Inter- venors were among the ninety persons who had passing scores on examination 34-944, and it was expected that all ninety would receive permanent appointments as sergeant. Such appointments were prohibited, initially by the District Court’s temporary restraining order and finally by the or- der and decree appealed from. That the intervenors were adversely affected by such orders can hardly be gainsaid.* However, this in itself is not determinative of their right to be joined as in- dispensable parties. When litigation seeks the vindication of a public right, third persons who may be adversely affected by a decision favorable to the plaintiff do not thereby become indispensable parties.’ It may be that because of the “reverse discrimination” aspects of this case which will be discussed hereafter, in- tervention with the right to participate in the trial would have been appropriate if timely request therefor was 6 N. Y. Civil Service Law § 65 (MeKinney 1972). N. Y. Civil Service Law § 52 (McKinney 1972). =! Castro v. Beecher, 459 F.2d 725, 736 (1st Cir. 1972). > ®& National Licorice Co. v. NLEB, 309 U.S. 350, 366 (1940); National Resources Defense Council, Inc. v. Tennessee Valley Authority, 340 F. Supp. 400 (S.D.N.Y. 1971), rev'd on other grounds, 459 F.2d 255 (2d Cir. 1972); Sansom Committee v. Lynn, 366 F. Supp. 1271 (E.D. Pa. 1973). 28a Opinion of Court of Appeals made.’® However, that question is not before us. We hold that intervenors’ argument that the complaint should have been dismissed because they were not joined as indispens- able parties could not be made for the first time one year after the trial had been completed. At that late date, the test of “equity and good conscience” foreclosed any such rights which intervenors might possibly have had." That intervenors were aware of the litigation at its inception was clearly shown by the fact that the District Court’s preliminary injunction prohibited their appoint- ments. The orderly processes of justice do not permit that, with such knowledge, they may stand idly by until after an adverse decision is rendered."* THE CONSTITUTIONALITY OF THE EXAMINATION Proof in employment discrimination cases proceeds from effect to cause. Plaintiffs establish the racially disparate consequences of defendants’ employment practices, and defendants must then justify such consequences on con- stitutionally acceptable grounds.” Plaintiffs herein contend that examination 34-944 had a disproportionate impact upon minority correction officers, and that defendants must therefore establish that the sub- ject matter of the test bore a meaningful relationship to the duties of the office for which the test was given, 1.e., that it was “‘job-related”.™ 10 See, e.g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333 (2d Cir. 1973). 11 Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968). 12 Rios v. Steamfitters Local 638, —— F.2d ——- (2d Cir. June 24, 1975), Slip op. 4351, 4358 n.3. 13 Griggs v. Duke Power Co., 401 U.S. 424 (1971). 14 Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333 (2a Cir. 1973); Vulcan Society of the New York Ciiy Fire Dep’t, Inc. v. Civil Service Comm'n, 490 F.2d 387 (2d Cir. 1973). Opinion of Court of Appeals 29a The figures relied upon by plaintiffs are recited above; 30.8% of the Whites who took examination 34-944 passed, as contrasted with 7.7% of the Blacks and 12.5% of the Hispanics. Defendants, while not disputing the accuracy of these figures, contend that most of the racial disparity occurred at Ossining Prison which employs the largest group of minority correction officers and urge that any attack upon the examination should be limited to the em- ployees at that institution. Defendants say that either there was no disparity at all at the other correction facili- ties or else that so few officers were tested at such facilities that no meaningful conclusions could be reached from the test resuits. This argument completely overlooks the identity of job classifications in the State’s penal institutions, the State- wide scope of examination coverage, and the mobility of employees throughout the correctional system. It also ignores the fact that the examination grades for minorities were uniformly lower at all of the State’s facilities. The District Court’s refusal to fractionalize the exam- ination by varying its application among the correctional facilities was therefore not clearly erroneous. : The District Court was likewise not convinced by defen- dants’ argument that the results of the five sub-tests com- prising examination 34-944 did not show a consistent racial disparity, particularly when broken down among the dif- ferent correctional facilities. Since passing grades and promotion were dependent upon the cumulative results of the five sub-tests, we too see little relevance in this proof on the issue of whether or not the examination as a whole had an unconstitutional discriminatory impact." 15 Vulcan Society of the New York City Fire Dep’t, Inc. v. Civil Service Comm'n, 360 F. Supp. 1265, 1272 (8.D.N.Y. 1973), aff'd, 490 F.2d 387 (2d Cir. 1973). See note 13, supra. 30a Opinion of Court of Appeals In Vulcan Society of the New York City Fire Depart- ment, Inc. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973), we stated that racially disproporticnate impact need not be proven with complete mathematical certainty. Within the broad outlines of that rule, the District Court’s holding that examination 34-944 had such disproportionate impact was not clearly erroneous. Defendants were there- fore properly put to their proof to establish the job-relat- edness of the examination under attack. The District Judge’s decision that defendants had not met the heavy burden thus imposed upon them was based largely upon his conclusion that the procedures employed in constructing examination 34-944 did not conform to pro- fessionally acceptable and legally required standards. Spe- cifically, the District Judge held that the defendants had not performed an adequate job analysis and had too rou- tinely followed the pattern of past practices. This approach was approved by us in Vulcan, supra, where we said that it was unnecessary for the trial judge to bury himself in a question-by-question analysis of the test. Of course, the trial judge could not confine himself to an examination of the process of preparation while com- pletely ignoring the merit of the result. However, since insufficient spadework usually results in a poor garden, evidence of unsatisfactory preparation imposed upon the defendants a heavier burden of demonstrating that they had created a satisfactory job-related examination. The District Judge, without going into great detail, pointed out that certain items on the test involved guide- lines that a correction sergeant would have no need to apply. He showed that the five sub-tests and their com- ponent parts were not weighted to reflect the relative im- portance of the job-related attributes being tested. He considered the expert testimony submitted by both sides Opinion of Court of Appeals 31a and stressed the fact that neither expert would characterize the examination as job-related. We hold that Judge Lasker’s finding that defendants had failed to carry their heavy burden of establishing the job-relatedness of examination 34-944 was not clearly er- roneous, and we move to the question of the relief granted. r New Testine Procepures Having declared examination 34-944 unconstitutionally invalid, the District Judge ordered the development of a “lawful non-discriminatory selection procedure”. He also required that such procedure be validated in accordance with the E.E.0.C. Guidelines on Employment Selection Procedures’* and that such validations be performed by means of empirical criterion-related validation techniques insofar as feasible. In Bridgeport Guardians, Inc. vy. Bridgeport Civil Ser- vice Commission, 482 F.2d 1333 (2d Cir. 1973), and again in Vulcan, supra, we described the several techniques for proving the validity of testing procedures which are pro- fessionally designated “empirical”, “construct” and “con- tent”, and we see no need for further description in this opinion. In Vulcan, we went a step further. We said: “The Fourteenth Amendment no more enacted a par- ticular theory of psychological testing than it did Mr. Herbert Spencer’s Social Statics. Experience teaches that the preferred method of today may be the re- jected one of tomorrow. What is required is simply that an examination must be ‘shown to bear a demon- strable relationship to successful performance of the jobs for which it was used.’ ” 16 29 C¥.R. §§ 1607.1 et seg. (1970). 32a Opinion of Court of Appeals However, since our decision in Vulcan, the Supreme Court in Albemarle Paper Co. v. Moody, 43 U.S.L.W. 4880 (U.S. June 25, 1975), has strongly endorsed the pro- cedures outlined in the E.E.0.C. Guidelines which provide that evidence of content.or construct validity may be ap- propriate “where criterion-related validity is not feasible”.”’ While Albemarle is distinguishable from the instant case in that it is a Title VII action involving a private indus- trial employer, we think the District Court’s similar pref- erence for the E.E.0.C. Guidelines was not clearly er- roneous.’* We do not construe the order of the District Court as going beyond the provisions of the Guidelines by requiring empirical validation regardless of feasibility. It seems clear that the problems involved in civil service testing are sub- stantially different from those which confront a private _employer who tests on a limited and non-competitive basis. These problems will, we are sure, be considered by the District Court should a dispute hereafter arise as to whether appellants’ testing procedures have been empiric- ally validated “insofar as feasible”. The District Court ordered that the new test prepared by defendants be submitted to the plaintiffs for review. We find this requirement difficult to comprehend. Pre- sumably, this examination will be taken by members of the plaintiff class in competition with others. Permitting advance review by plaintiffs would place all others at a competitive disadvantage.’* If the District Judge is seek- ing professional assistance from plaintiffs’ expert, his 17 29 C.F.R. § 1607.5(a) (1970). 18 Cf. Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975). 19 Cf. Matter of Fitzgerald v. Conway, 275 App. Div. 205 (3d Dep't 1949); Matter of Belmont v. Kaplan, 16 A.D. aff'd 13 N.Y. 2d 998 (1963) (mem). Opinion of Court of Appeals 33a order should so provide; and proper steps should be taken to insure confidentiality. Tue Imposition oF Quotas One of the most controversial areas in our continuing search for equal employment opportunity is the use of judicially imposed employment quotas.*° The replacement of individual rights and opportunities by a system of sta- tistical classifications based on race is repugnant to the basic concepts of a democratic society. The most ardent supporters of quotas as a weapon in the fight against discrimination have recognized their un- democratic inequities and conceded that their use should be limited.** Commentators merely echo the judiciary in their disapproval of the “discrimination inherent in a quota system.” Our court has approached the use of quotas in a lim- ited and “gingerly” fashion. In United States v. Wood Lathers, Local 46, 471 F.2d 408 (2d Cir.) cert. denied, 412 U.S. 939 (1973), we approved an order based upon a con- sent decree which directed a union to issue a quota of work permits to minority workers. In Bridgeport, supra, we approved the use of hiring quotas for the Dridgeport Police Department. In Vulcan, supra, we affirmed an in- terim order for quota hiring of New York City firemen 20 Note, Constitutionality of Remedial Minority Preferences in Employ- ment, 56 Minn. L. Rev. 842 (1972). See, e.g., Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974), cert. denied 417 U.S. 965 (1974). 21 Blumenrosen, Quotas, Common Sense, and Law in Labor Relations: Three Dimensions of Equal Opportunity, 27 Rutgers L. Rev. 675 (1974). 22 Hughes v. Superior Court, 339 U.S. 460, 467 (1950); see also dissent- ing opinion of Mr. Justice Douglas in De Funis v. Odegaard, 416 U8. 312 (1974), dissenting opinion of Judge Hays in Rios v. Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974), and concurring opinion of Judge Feinberg in Patterson v. Newspaper Deliverers Union, 514 F.2d 767 (2d Cir. 1975). 34a Opinion of Court of Appeals “only because no other method was available for afford- ing appropriate relief without impairing essential city services”. 490 F.2d at 398. Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974) im- posed a specific racial membership goal upon a union. In Patterson v. Newspaper Delivers Union, 514 F.2d 767 (2d Cir. 1975), we approved a settlement which also in- volved union inembership with an imposed quota system for the union’s group classification system. In each of these cases, there was a clear-cut pattern of long-continued and egregious racial discrimination. In none of them was there a showing of identifiable reverse discrimination. In the instant case, there is insufficient proof of the former and substantial evidence of the latter. This is a class action brought on behalf of one hundred seventeen persons who took and failed examination 39-944 or who passed but ranked too low to be appointed. The class was so designated by the District Court which found that the question of whether examination 34-944 discrim- inated against minority candidates was the question of law common to the class. The existence of such common question of law or fact was, of course, a prerequisite to the maintenance of a class action.” At the outset of the trial, the District Judge indicated his desire to decide the case on the basis of 34-944 alone, and it :s clear that the trial proceeded substantially on that basis. Some incomplete, and therefore unreliable, data were submitted with regard to the previous exam- ination given in 1970, but plaintiffs concede, as they must, that there are no data in the record with respect to pre- 1970 tests. There was proof of some present racial im- balance among supervisory correction personnel, but this had little probative value without statistical background 23 Fed. R. Civ. Pro. 23(a). Opinion of Court of Appeals 35a data concerning the eligible correction officer labor pool from which minority supervisors could have been drawn. The testimony is undisputed that the duties of a correc- tion sergeant have changed substantially over the years so that no retroactive inference concerning job-relatedness could be made as a result of examination 34-944 which was evaluated in relation to the job as it then existed. Finally, although this is not dispositive of the matter, there is no claim that defendants at any time acted with- out the utmost good faith or with intention to discriminate. A comparison of respondent’s proof with that considered by then District Judge Mansfield in Chance v. Board of Examiners, 330 F. Supp. 203 (S.D.N.Y. 1971), aff'd, 458 F.2d 1167 (2d Cir. 1972) is illuminating. Judge Mans- field’s opinion shows that he revieweu the pass-fail statis- ties from fifty supervisory examinations taken by six thou- sand, two hundred one candidates over a seven-year period to ascertain the relevant racial and ethnic groupings. In the instant case, the litigation centered on one. As Dis- trict Judge Weinfeld pointed out in the lower court opinion in Vulcan, 360 F. Supp. 1265, 1271 (S.D.N.Y. 1973), the consequence of relying upon one examination is “that any finding of discrimination and the relief to be granted will necessarily be restricted to the scope of the proof.” In view of the limited scope of the issues framed in this class action and the paucity of the proof concerning past discrimination, we feel that the imposition of. permanent quotas to eradicate the effects of past discriminatory prac- tices is unwarranted.” Moreover, once defendants have prepared a court-ap- proved job-related civil service examination, a deliberate misuse of the resultant eligibility list on racial grounds 24 See Chance v. Board of Examiners, 458 F.2d 1167, 1179 (2d Cir. 1972). 36a Opinion of Court of Appeals would seem to be violative of both the New York and the Federal Constitutions. Civil service laws, like civil rights laws, were enacted to ameliorate a social evil. In the former case, it was the spoils system; in the latter, discrimination. To the citizens of the State of New York, civil service was sufficiently im- portant that they mandated its use by their constitution.” In so doing, they “declared in unmistakeable terms that merit, ascertained as therein provided, shall govern ap- pointments and promotions in the public service”,** and that merit must be ascertained as far as practicable by competitive examination.” The Congress recognized the social benefits inherent in a system of promotion based upon merit when it provided that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide merit system’”.** As pointed out by the Court in Griggs, supra, Congress did not intend “to guarantee a job to every person regardless of qualifica- tions”.*® The attack upon the content of civil service examina- tions, illustrated by Vulcan and Bridgeport, merely heralds future confrontations between the advocates of equal em- ployment opportunities and the supporters of our civil service system. In the offing, surely, is an attack upon the provisions of § 61 of the New York Civil Service Law which requires that appointment from an eligible list be made 25 N.Y. Const. art. V, §6 (1965). 26 Palmer v. Board of Education, 276 N.Y. 222, 226 (1937). 27 Matter of Fink v. Finegan, 270 N.Y. 356, 361 (1936). 28 42 U.S.C. § 2000e-2(h). 29 401 U.S. 424, at 430 (1971). Opinion of Court of Appeals 37a from one of the three persons standing highest on the list. It seems to us that the judiciary should act with great reluctance in undermining traditional civil service con- cepts; and, if a decision is to be made to subordinate the social purposes of civil service to those of equal employ- ment opportunity, that decision should be made by the people speaking through their legislators. The courts of New York hold that one whose efforts secure for him a position upon a civil service promotion list “is entitled to consideration and protection in such position”.*® Whether this governmental benefit be termed a right or a privilege is of no significance; constitutional rights do not turn upon such issue.” So long as civil service remains the constitutionally man- dated route to public employment in the State of New York, no one should be “bumped” from a preferred posi- tion on the eligibility list solely because of his race.*? Un- less the Fourteenth Amendment is applicable only to Blacks, this is constitutionally forbidden reverse discrim- ination.** The smaller the group participating in a civil service examination, the more pointed the problem becomes.. We can no longer speak in general terms of statistics and class groupings. We must address ourselves to individual rights. 30 Barlow v. Craig, 210 App. Div. 716, 719 (1st Dept. 1924); Barlow v. Berry, 245 N.Y. 500, 503 (1927). 31 Sugarman v. Dougall, 413 U.S. 634, 644 (1973). 32 Note Judge Feinberg’s concern about “bumping” expressed in U.S. v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971). 33 “The Constitution voices its disapproval whenever economic discrim- ination is applied under authority of law against any race, creed or color.” Steele v. Louisville ¢ Nashville R.R. Co., 323 U.S. 192, 209 (1944) (concurring opinion of Mr. Justice Murphy); Commonwealth v. Glickman, 370 F. Supp. 724, 736 (W.D. Pa. 1974). 38a Opinion of Court of Appeals A hiring quota deals with the public at large, none of whose members can be identified individually in advance. A quota placed upon a small number of readily identifi- able candidates for promotion is an entirely different matter. Both these men and the court know in advance that regardless of their qualifications and standing in a competitive examination, some of them may be by-passed for advancement solely because they are white. As to such a situation, the following comments of Judge Mulligan in Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, supra, are most pertinent: “We are discussing some 117 positions with time-in- grade requirements mandating three years’ service as patrolman, sergeant and lieutenant postponing promo- tion to captain for a minimum of nine years. While this factor will delay those of the minority groups who will become patrolmen, the imposition of quotas will obviously discriminate against those Whites who have embarked upon a police career with the expectation of advancement only to be now thwarted because of their color alone. The impact of the quota upon these men would be harsh and can only exacerbate rather than diminish racial attitudes.” ** We turn now to the remedial relief ordered by the Dis- trict Court, which is both interim and final in nature. As interim relief, the court ordered that if defendants wished to make any appointments pending the development of a new selection procedure, they might apply to the court for permission to do so. The court directed that at least one out of four of the persons so promoted must be mem- bers of the plaintiff class. Since this portion of the decree is interim in nature, does not mandate the making of any 34 482 F.2d at 1341. Opinion of Court of Appeals 39a promotions, does not disregard an existing civil service eligibility list, and since its benefits are limited to the mem- bers of the plaintiff class, we affirm it as not Yeing an abuse of the District Court’s discretion. Insofar as the order appealed from imposes permanent quota restrictions upon those who seek advancement by means of a court-approved job-related civil service exam- ination, we reverse. The benefits of such order are not limited to the plaintiff class. Its quota requirements are based upon a shifting and rapidly expanding racial base, wholly unrelated to the consequences of any alleged past discrimination. It provides for appointment according to race without regard to the individual applicant’s standing on a job-related examination and, indeed, without regard to whether the benefitted Black or Hispanic received a passing grade. It completely ignores the statutory re- quirements and constitutional purpose of the New York Civil Service Law and constitutes court-imposed reverse discrimination without any exceptional or compelling gov- ernmental purpose.** ProvisionaL APPOINTMENTS At the outset of the litigation, the District Court issued a temporary restraining order prohibiting defendants from terminating provisional appointments which had been made to members of plaintiff class. The terms of this order were carried over into Judge Lasker’s opinion but were amended to state that such appointments might not be terminated solely because of plaintiffs’ failure to pass examination 34-944. However, they were not incorporated into the final order and decree, and we cannot be sure that the District Court intended them to survive. 25 See Matter of Board of Education v. Nyquist, 31 N.Y. 2d 468, 475 (1973). 40a Opinion of Court of Appeals Appellants argue convincingly that under 460 of the New York Civil Service Law provisional appointments are made only when there is no appropriate éligible list available for filling a vacancy and that therefore the mak- ing of such appointments bears no relationship to the con- stitutionality of examination 34-944. Appellants also argue that such order was discriminatory in that it applied only to minorities who failed the examination. We need not reach any of the foregoing questions, however, since, as we read § 65, provisional appointments are made only for periods of up to nine months and then terminate auto- matically unless a new provisional appointment is made. We do not read Judge Lasker’s opinion as prohibiting termination for any reason unrelated to the failure to pass the examination or requiring the making of a new ap- pointment at the end of the nine month provisional period. ATTORNEY’s FEEs The District Court’s award of attorney’s fees cannot stand. In Stolberg v. Board of Trustees, 474 F.2d 485 (2d Cir. 1973), we laid down the test of “unreasonable, obdurate obstinancy” on the part of the defendant as the determin- ing factor in the award of counsel fees.** There is no claim of any such attitude on the part of defendants-appellants. Accordingly, we would have been reluctant to approve the awarding of counsel fees herein. In any event the matter has now been decided for us by the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 43 U.S. L.W. 4561 (U.S. May 12, 1975).* 36 See also, Bridgeport Guardians, Inc. v. Bridgeport Civil Service Com- mission, 497 F.2d 1112 (2d Cir. 1974). 37 Although an attorney may find lesser professional challenge in a Title VII proceeding than in an action under §§ 1981 and 1983, there are a number of reasons why the former procedure is preferable. The possibility of an award for attorney's fees is now one of them. Opinion of Court of Appeals 4la Disposition 1. We deny intervenors’ application to dismiss the complaint. 2. We affirm the District Court’s order insofar as it invalidates examination 34-944 and directs the prepara- tion of a new non-discriminatory examination procedure. 3. We affirm so much of the District Court’s order as requires the new testing procedures to be validated by means of empirical criterion-related validation techniques if feasible. 4. We reverse so much of the District Court’s order as requires the new testing procedure to be submitted to plaintiffs for review. 0. We affirm that part of the District Court’s order which provides a procedure for interim appointments if desired by defendant. 6. We reverse so much of the District Court’s order as provides for promotion by quota following the establish- ment of new civil service testing procedures. 7. We reverse that part of the District Court’s order | which includes counsel fees as part of plaintiff's costs. 8. We remand to the District Court for such further orders as are required by and consistent with this opinion, 42a Order Denying Rehearing UNITED STATES COURT OF APPEALS For tHe Seconp Circuit +o At a stated term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse, in the City of New York, on the 10th day of December, one thousand nine hundred and seventy-five. ee Calendar Nos.—445, 499 74-2116 74-2258 —-or Epwarp L. Krrxianp, etc., Plaintiff s-Appellees, —against— THe New York State DEPARTMENT or CorREcTIONAL Services, etc., Defendants-A ppellants. eS A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by counsel for the plaintiffs-appellees, and a poll of the judges in regular active service having been taken, and Circuit Judges Mulligan, Timbers, Gurfein, VanGraafeiland, and Meskill having voted against en bane reconsideration, and Chief Judge Kaufman and Circuit Judges Mansfield and Oakes having voted in favor thereof, and an opinion by Circuit Judge Mansfield dissenting from denial of en banc reconsideration, in which Chief Judge Kaufman and Circuit Order Denying Rehearing 43a Judge Oakes join, and an opinion by Chief Judge Kaufman dissenting from denial of en banc reconsideration, having been filed, Upon consideration thereof, it is Ordered that said request be and it hereby is denied. Circuit Judge Feinberg took no part in consideration of the question whether to grant rehearing en banc. /8/ Irvine R. Kaurman Irvine R. KaurmMan Chief Judge o> MansFIELD, Circuit Judge (Dissenting) : (With Whom Chief Judge Kaufman and Judge Oakes concur) I dissent from the denial of an en banc hearing in this appeal because the decision potentially places us in con- flict with previous decisions in this and other circuits and creates uncertainty regarding this circuit’s law on a ques- tion of exceptional importance that has been and will be frequently encountered, i.e., whether, and under what cir- cumstances, relief in the nature of a racial goal or quota may be imposed to remedy injury caused to a minority group by use of racially discriminatory methods to hire or promote persons from a pool of potentially eligible can- didates. In my view this question should be resolved now for the guidance of district court judges, members of the bar and litigants in the Second Circuit, rather than leaving them in a state of confusion regarding the issue. Until the decision in this case, while adopting a cau- tionary stance and acting “somewhat gingerly,” we none- theless repeatedly have held that where racially discrim- 44a Order Denying Rehearing inatory methods are used to hire or promote persons in violation of the civil rights of others, the district court should have the discretionary power to remedy the effects of the unlawful conduct and compensate the injured class by requiring the hiring or appointment of a higher per- centage of minority applicants. 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. ». Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973); Vulcan Society of the New York City Fire Dept. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973); Rios v. Enterprise Association Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974) ; Patterson v. News- paper & Mail Deliverers Union, 514 F.2 7 (2d Cir. 1975). The authority of a court of equity to issue such relief was recognized by the Supreme Court in Loutsiana v. United States, 380 U.S. 145 (1965), where Justice Black, speaking for a unanimous Court, stated: “We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” 380 U.S. at 154. This was followed by the Court’s recognition in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), that mathematical ratios might serve as a “useful starting point” in shaping a remedy for past constitu- tional violations. 402 U.S. at 25. Following this lead we, in United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408 (2d Cir. 1973), approved an order directing a local union to take affirmative action to remedy the effects of past discriminatory practices in the issuance of work Order Denying Rehearing 45a permits by issuing 100 permits immediately to minority applicants, pointing out that “(While quotas merely to attain racial balance are forbidden, quotas to correct past discriminatory prac- tices are not. See Carter v. Gallagher, 452 F.2d 315, 329 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) ; Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 173 n.47 (3rd Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971) ; United States v. Ironworkers, Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed. 2d 367 (1971) ; United States v. International Brother- hood of Electrical Workers, No, 38, 428 F.2d 144, 149 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970) ; Local 53 of International Associa- tion of Heat & Frost I. & A. Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969); United States v. Cen- tral Motor Lines, Inc., 325 F. Supp. 478 (W.D.N.C. 1970).” 471 F.2d at 413. There followed our decision in Bridgeport Guardians, Ine. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), wherein we upheld the use of a hiring quota to remedy the discriminatory effect of non-job-related ex- aminations administered pursuant to the Civil Service pro- visions of the Bridgeport City Charter for the position of policeman, stating: “We commence with the basic tenet that the district court, sitting as a court of equity, has wide power and discretion to fashion its decree not only to prohibit present discrimination but to eradicate the effects of past discriminatory practices. Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 517, 13 L.Ed.2d 709 46a Order Denying Rehearing (1965) ; United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 413 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). Al- though most of the cases dealing with the issue of past discriminatory practices arose under Title VII of the Civil Rights Act of 1964, Section 1983 cases have also granted relief by sanctioning quotas aimed at curing past discrimination. See, e.g., Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc) ; Castro v. Beecher, supra, 459 F.2d 725; Carter v. Gal- lagher, 452 F.2d 315, 327-332 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972).” 482 F.2d at 1340. Again, in Vulcan Society of the New York City Fire Dept. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973), we approved the use of an interim quota to redress the discriminatory effect of non-job-related Civil Service examinations for the position of fireman and ordered the City to appoint one minority candidate for each three non- minority candidates appointed from a list of eligibles, stating: “In arriving at a ratio midway between what would have been appropriate on the basis of correcting the inequities of Exam 0159 alone and the plaintiffs’ de- mand for much more extensive relief, the judge took appropriate account both of the resentment of non- minority individuals against quotas of any sort and of the need of getting started to redress past wrongs. See Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965); United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 413 (2 Cir.), cert. denied, 412 U.S. 939, 93 S. Ct. 2773, 37 L.Ed.2d 398 (1973). As the Supreme Court has stated, ‘The framing of decrees should take place in Order Denying Rehearing 47a the District rather than in Appellate Courts.’ Inter- national Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947); Chance, supra, 458 F.2d at 1178.” 490 F.2d at 399. Finally, in Patterson v. Newspaper ¢ Mail Deliverers Union, 514 F.2d 767 (2d Cir. 1975), we approved an affir- mative-action promotion program which would achieve a quota by advancing minority News deliverers faster than non-minority workers in order to compensate the minority group for injury suffered under the previous discrimina- tory promotion program. The effect was to temporarily restrain the advancement of White workers who would have been promoted under a program of strict seniority. The United States Supreme Court has not yet had the opportunity to offer clear guidance on the appropriateness or parameters of remedies or programs granting a prefer- ence to groups that previously were subjected to discrim- inatory treatment. See DeFunis v. Odegaard, 416 U.S. 312 (i974). But seven other circuits, recognizing that “[t]he framing of decrees should take place in the District rather than Appellate Courts,” International Salt Co. v. United States, 332 U.S. 392, 400 (1947), and that the district judge, who is better acquainted with the background and details of the case, should have broad discretionary authority to fashion appropriate relief, have upheld the authority of the district court, in the exercise of its broad powers as a court of equity, to establish goals or quotas for the purpose of remedying harm caused by past discriminatory conduct. See, e.g., Boston NAACP v. Beecher, 504 F.2d 1017, 1026-27 (1st Cir. 1974) (upholding hiring by ratios until percentage of minority fire fighters equals-their percentage in popula- . tion) ; Castro v. Beecher, 459 F.2d 725, 737 (1st Cir. 1972) (Blacks and Spanish-surnamed police candidates who failed old, impermissible test but pass new validated one should 48a Order Denying Rehearing be placed in priority pool to be selected by ratio of 1 al, 1:2, or 1:3 with respect to others as determined by district court); Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc) (upholding by equally-divided vote Power of district court to order Black-White hiring by ratio cor- responding to Black overall population and number of Black applicants); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) (upholding hiring of Black-White state troopers in 1:1 ratio until Blacks reach 25% of force); Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en banc), cert. denied, 419 U.S. 895 (1974) (ordering district court to impose further affirmative relief to remedy discrimination in state police employment practices; may include 1 :1 or 1:2 Black-White hiring, the freezing of White hiring, or “any other form of affirmative hiring relief until the Patrol is effectively integrated”); United States v. Local Union No. 212, 472 F.2d 634 (6th Cir. 1973) (upholding district court order mandating 11% Black membership in appren- tice programs); United States v. International Bhd. of Elec. Wkrs., 428 F.2d 144 (6th Cir.), cert. dented, 400 US. 943 (1970) (remanding to district court for consideration of appropriate affirmative relief) ; United States v. United Bhd. of Carpenters, 457 F.2d 210 (7th Cir.), cert. dented, 409 U.S. 851 (1972) (remanding to district court for fash- ioning appropriate affirmative relief); United States v. N.L. Industries, 479 F.2d 354, 377 (8th Cir. 1973) (court can order Black-White promotion in 1:1 ratio until 15% of foremen are Black) ; Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir.) (en bane), cert. denied, 406 U.S. 950 (1972) (dis- trict court may order the hiring of firemen in 1:2 Black- White ratio until 20 Blacks hired); United States v. Iron- workers Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984 (1971) (district court can order immediate job referrals to previous discriminatees and require union Order Denying Rehearing 49a training program to select sufficient Black applicants to overcome past discrimination). But ef. Harper v. Kloster, 486 F.2d 1134, 1136-37 (4th Cir. 1973) (upholding district court’s denial of quota relief). Turning to the present case, the district court, in order to compensate minority correctional officers for the harm caused the minority group by the discriminatory state civik service promotional system, odered the defendants to promote minority correctional officers to the rank of sergeant on the basis of one minority for each three non- minority appointments until the combined percentage of minority sergeants equalled that of the minority correc- tional officers. Once this goal was satisfied, defendants, of course, would be entirely free to select sergeants solely through the application of a non-discriminatory, validated examination. In adopting this relief Judge Lasker exer- cised the authority granted by our above-vited decisions. Yet despite the reasonableness of Judge Lasker’s decree, this court’s decision denies quota relief once a permissible test is created, seeking to distinguish our earlier decisions on the grounds (1) that there was insufficient proof of a “clear-cut pattern of long-continued and egregious racial discrimination” and (2) that there was substantial evi- dence that a quota would result in “identifiable reverse dis- crimination,” thereby violating the Constitutions of New York and the United States as well as New York’s Civil Service Law. With due respect, the first ground is not supported by the record before us and the second does not distinguish this case from all the previous instances where we have endorsed the use of hiring goals. With respect to the nature and extent of past discrimi- nation it is undisputed that the 1972 examination for pro- motion from correctional officer to sergeant was unconsti- tutionally discriminatory. If, by “egregious racial discrim- 50a Order Denying Rehearing ination” Judge Van Graafeiland means intentional or de- liberate conduct, the law is settled that the existence of deliberate and intentional racial discrimination is not a condition precedent to the granting of quota relief. See Bridgeport Guardians, Inc., supra, where such relief was granted despite the fact that there was “no showing that the test [Civil Service test for appointment as policeman] was deliberately or intentionally discriminatory,” 482 F.2d at 1336, and Vulcan Society of the New York City Fire Dept., supra, where in granting quota relief, the court made clear that proof of non-job-relatedness of the examinations was sufficient to satisfy the requirement of invidiousness, thereby placing the burden of justification upon the City’s shoulders. 490 F.2d at 391 n.4. Although the defendants here did not maintain pass-fail data according to race or color for the examinations prior to 1972, there was ample evidence to support Judge Lasker’s finding of prior racial discrimination in the state’s promotional process. As of May 1, 1973, for instance, all 122 permanent sergeants were white. The pre-1972 examinations were prepared by the same process as the non-job-related 1972 examination, which did not meet constitutional standards, and resulted in the appointment of only two Blacks and no Hispanics to the rank of sergeant or above. Of 997 Whites and 46 Blacks and Hispanics who took the examination for ser- geant in 1970 and who continued to be employed by the defendants in 1973, 9.4% of the Whites and 0% of the non-Whites passed. Although 25 Black correctional offi- cers employed at the Ossining Correctional Facility took the examination for sergeant in 1968 and 10 to 15 Blacks took the examination in 1965, none passed. Surely this proof, all pointing in the direction of past unlawful dis- crimination against minority candidates, was at least suffi- cient to shift the burden of justifying the earlier examina- Order Denying Rehearing 5la tions to the defendants, see Griggs v. Duke Power Co., 401 U.S. 424 (1971); Vulcan Society, supra, 490 F.2d at 393; Boston Chapter of NAACP, supra, 504 F.2d at 1019. Yet, there is no indication that the defendants ever attempted to sustain this burden. To reject the imposition of a minority quota as a com- pensatory remedy on the ground that it would discrimi- nate in reverse against eligible White candidates for pro- motion ignores the district court’s duty as a court of equity to remedy past wrongs. It should be recognized that at a mjnimum the plaintiff class in this case included + a definite, identifiable group of aggrieved non-White indi- viduals—those already in the correctional system who, while previously qualified for advancement, nonethel«ss failed to be promoted due to the application of the dis- criminatory test. Given the fact that the Whites who bene- fited from the discriminatory sysiem retain their promo- tions, the aggrieved non-White members of this minority group would deserve quick promotion even under the most traditional notions of compensatory relief. The obvious problem is that, because discriminatory examinations were used, we are unable to identify those White correctional officers who were wrongfully promoted to sergeant and those Black correctional officers who under a non-discrim- inatory system would have been promoted. This problem, however, does not justify the court’s throwing up its hands and entirely rejecting a goal as a means of making whole the injured members of the minority group. The effect of such rejection, of course, is not only to deny some non- White correctional officers the long overdue promotions to which they were entitled, but, by requiring them to com- pete afresh with late-comers once a non-discriminatory test is devised, it postpones their promotions even further. Thus the court’s decision hardly promises to make whole the injured members of the minority group. — 52a Order Denying Rehearing Although the court justifies its action partly on the ground that Judge Lasker’s order permits appointment without regard to the individual applicant’s comparative standing on a job-related examination or even to his re- ceiving a passing grade, this represents but one facet of the relief, which can easily be rectified by providing that once a valid test is available, the correctional authorities legitimately may decide to test these non-White officers anew. Should they pass the valid test, however, they should be promoted preferentially without having to experience the delay of further competition on equal terms with those newcomers who never were previously aggrieved. See, e.g., Castro v. Beecher, 459 F.2d 725, 739 (1st Cir. 1972) (dis- trict court should mandate hiring of those in preferential pool as compared to others by ratio of 1:1, 1:2, or 1:3). Thus the effect of the court’s action is to provide wholly inadequate relief to those aggrieved. When one considers the other alternative remedy that might be employed to provide more effective relief, the use of a temporary goal or quota looks even more attractive as a salutary exercise of discretion. That alternative remedy, which would ad- here most closely to the merit principle, would be to void and recall all past promotions made on the basis of the previous non-validated tests, since they were the products of unlawful discrimination in violation of the Equal Pro- tection Clause, having served to “bump” eligible non-White applicants in favor of Whites. Such relief, however, would be extremely harsh, for by giving a fair opportunity to those minority officers who had been denied that oppor- tunity under the discriminatory scheme, it would also serve to strip some White sergeants of a status that they al- ready have come to enjoy and that they might have achieved even under a non-discriminatory system. Faced with a choice of relief measures, the district court wisely chose to select the imposition of temporary goals Order Denying Rehearing 53a as the less drastic remedy. In analogous contexts, such as school desegregation cases, the Supreme Court has not hesitated to uphoid the district courts’ discretionary power to strike a fair balance and fashion an equitable remedy that compensates racial minorities for wrongs done, even though Whites as a class may be forced to accept unde- sired burdens. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22-31 (1971); United States v. Montgomery County Board of Education, 395 U.S. 225 (1969) (upholding faculty assignment to schools by White-Black ratio); Green v. New Kent County School Board, 391 U.S. 430 (1968). It is true that if promotion of the non-Whites in the existing and identifiable pool of correctional officers failed to satisfy the quota, the effect of Judge Lasker’s decree would be to benefit some Blacks as a group at the expense of some Whites. This might explain the court’s concern for “reverse discrimination.” But all of the previously cited cases both in this circuit and outside have now es- tablished that such temporary burdening of Whites as a group is often necessary to effectively compensate for wrongs done to minority groups. As I hope I have shown, no remedy is perfect. Each must of necessity require some persons to forego some benefits. The advantage of an appropriately tailored goal or quota is that it goes the farthest toward remedying past wrongs with the least harm te others. The fact remains that past non-job-related Civil Service examinations have resulted in the promotion of Whites only, denying eligible non-White applicants the chance to qualify on the basis of merit. Thus the Civil Service sys- tem, albeit not deliberately, was used to “bump” eligible minority applicants in favor of Whites. It would be ironic to allow adherence to the same civil service system, per- 2 54a Order Denying Rehearing version of which has caused the racial imbalance in promo- tions, to be used as a shield against an effective remedy for the wrong done in its name. Nor can our prior decisions granting quota relief be dis- tinguished on the ground that they dealt with unidentifiable White candidates rather than individually-identifiable qual- ified and eligible persons. In Vulcan the district court’s interim decree upheld by us, under which the City would be required to appoint one minority candidate from the Civil Service eligibility list for each three non-minority candidates appointed, deferred appointment of some non- minority candidates ‘“‘who had qualified under [Civil Ser- vice] Exam 0159 but had not yet been appointed.” 490 F.2d at 391. Thus the non-minority group, some of whom intervened in the action, were “readily identifiable candi- dates for promotion,” who, “regardless of their qualifica- tions and standing in a competitive examination [might] be by-passed for advancement solely because they are white,” see Kirkland v. New York State Department of Correction, supra, Slip Opin. at 5413. Similarly, in Bridgeport Guardians, Inc. the intervening defendants in- cluded persons “who have a high standing on current eligi- bility lists, and presumably would be appointed to the force but for the decision below,” 482 F.2d at 1334. Likewise in Patterson v. Newspaper & Mail Deliverers, supra, we up- held a quota against challenge by 100 identifiable News White workers who were permitted to intervene for the purpose of challenging the quota relief on the ground that its effect would be to “bump” White workers in favor of minority workers. 514 F.2d at 769. All of this is not intended to denigrate the problems of fairness and justice raised by the White intervenors in these cases. But references to “identifiable” Whites, while perhaps placing the consequences of a goal into sharper ee Order Denying Rehearing 55a focus, do not add to the reality that, irrespective of the identifiability of the Whites, a goal inevitably serves to benefit some at the expense of others and that this court as wel! as most others nonetheless have come to recognize its necessary inclusion in the district court’s remedial arsenal. The wisest and fairest course that we could follow is not to reject this remedy but to specify the smallest quota in terms of percentage and duration necessary to correct the past discrimination. See, e.g., Rios, supra, 501 F.2d at 628 n.3; Vulcan Society, supra, 490 F.2d at 399. This heretofore clearly has been our policy and the goal proposed by the district court in this case is perfectly in line with previously tolerated remedies. For these reasons I believe it is unfortunate that the court has not seen fit, by hearing this case en banc, to seize this opportunity, absent guidance from the Supreme Court, to clarify our position with respect to the constantly recur- ring and troublesome question presented. o> Kaurman, Chief Judge (Dissenting) : I concur in my brother Mansfield’s scholarly opinion. I should like to add the following thoughts, however. As Judge Mansfield’s opinion makes clear, this Court has traveled too far along the road of temporary “goals” as a remedy for past discrimination to permit a single panel to appear to reverse the course consistently followed. It is my view that we can retrace the steps taken by previ- ous panels of this Court only by an en banc, F.R.A.P. 35(a), or by a Supreme Court holding that our earlier decisions have been in error. I am still of the view that the en banc device is often cumbersome and unproductive of the defin- itive resolution for which it is invoked, see, e.g., Rodriquez v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (en banc), rev’d ES ———<—— 6a Order Denying Rehearing sub nom. Preiser v. Rodriguez, 407 U.S. 919 (1973). But, the issues in the present case are so sharply defined and our prior holdings so clearly applicable that an en banc would have achieved the goal of “maintain[ing] uniformity of [our] decisions.” F.R.A.P. 35(a). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2348%3A1. Public record. Not legal advice.