Petition — Arado v. United States
Supreme Court brief1977
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MICHAEL RODAK, JR., CLERK
— — ee ee
IN THE
Supreme Court of the United States
OcToBerR TERM, 1976
No. 76-1380
LOUIS ARADO, ET XL.,
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.
NORMAN J. BARRY,
ROTHSCHILD, BARRY & MYERS,
Two First National Plaza,
Chicago, Illinois 60603,
(312) 372-2345,
Attorney for Petitioners.
Pill B. KURLAND,
DANIEL D. Po.ssy,
Jos yH A. Morris,
Of Counsel
Gunthorp-Warren Printing Company, Chicago e Financial 6-6565
PAGE
, ¶ ( been 1
PE webebbbenddocespedcendtecescesecnnec 2
, eee eee 2
Constitutional and Stati ory Provisions Involved 2
eee eee eee ee 3
Reasons for Granting the Wit. 6
r eee esse 15
Append A: Opinions of the Court of Appeals Al
Appendix B: Police Sergeant Examination (1973) A63
TABLE OF AUTHORITIES CITED.
Boston Chapter NAACP, Inc. v. Beecher, 504 F. 2d 1017
(Ist Cir.), certiorari denied, 421 U. S. 910 (1975)... 10
Griggs v. Duke Power Co., 401 U. S. 424 (1971)...... 9,13
Hazelwood School District v. United States, No. 76-255,
certiorari granted, 45 U. S. L. W. 346 (January 10,
r 6
Heart of Atlanta Motel, Inc. v. United States, 379 U. S.
. . 7
Local 53, Heat Workers v. Vogler, 407 F. 2d 1047 (Sth
r ˙ —·0—»»W mne 10
Maryland v. Wirtz, 392 U. S. 183 (1969) 7
National League of Cities v. Usery, 426 U. S. 833 (1976). 7
Patterson v. American Tobacco Co., 535 F. 2d 257 (4th
...... v x 10
Rios v. Enterprise Ass n. Steamfitters Local 638 of UA,
ILL 10
Southern Illinois Builders Ass'n. v. Ogilvie, 471 F. 2d
II.. 9
United States v. City of Chicago, Nos. 76-1113, 76-1152,
76-1205, and 76-1344 (7th Cir., January 11, 1977)
United States v. City of Chicago, 411 F. Supp. 218 (N. D.
III. 1976)
United States v. City of Chicago, 395 F. Supp. 329 (N. D.
.... l
United States v. City of Chicago, 385 F. Supp. 543 (N. D.
.es es sss eee eee 4, 14
iii
United States v. International Brotherhood of Electrical
Workers, 428 F. 2d 144 (6th Cir.), certiorari denied.
re eee eee eee e 10
United States v. International Union of Elevator Constru. -
tors, 538 F. 2d 1012 (3d Cir. 1976).............. 10
United States v. Iron Workers Local 86, 443 F. 2d 544
(9th Cir.), certiorari denied, 404 U. S. 94 (1971).... 10
United States v. N. L. Industries, Inc., 479 F. 2d 354 (8th
D een 10
Village of Arlington Heights v. Metropolitan Housing De-
velopment Corporation, 45 U. S. L. W. 4073 (January
%/ͤAAAAAAAA. . 8
Washington v. Davis, 426 U. S. 229 (1976).......... 5,7,8
Wickard v. Filburn, 317 U. S. 111 (1942)............ 7
/
Constitutional and Statutory Material.
United States Constitution, Art. I, S888. 7
United States Constitution, Amendment X............ 7
United States Constitution, Amendment XIV.......... passim
3 OL ER ee ee 2
e EMPTToTTITITT TTT TTT Tee 6,7
eee ese passim
ener. eee eee ee eee ee eee 12, 13
Other Authorities.
110 Cong. r ccnuasees 9
——
Supreme Court of the United States
Octoper Term, 1976
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.
Petitioners, Louis Arado and the other intervening defend-
ants, respectfully pray that a writ of certiorari be issued to
review the decision in this case of the United States Court of
Appeals for the Seventh Circuit.
The opinion of the United States District Court for the
Northern District of Illinois is reported at 411 F. Supp. 218
(1976). The opinion of the United States Court of Appeals
for the Seventh Circuit is as yet unreported, and is reproduced
herein as Appendix A. An earlier interlocutory appeal in this
case was decided sub nomine United States v. City of Chicago,
at 534 F. 2d 708 (7th Cir. 1976), reviewing the district court's
memorandum de ion of April 21, 1975, reported at 395
2
F. Supp. 329 (N. D. Ill. 1975). The district court's still earlier
preliminary injunction order is reported at 385 F. Supp. 543
(N. D. Ill. 1974).
The court of appeals entered its judgment on January 11,
1977. This Court has jurisdiction under 28 U. S. C. § 1254.
QUESTIONS PRESENTED.
1. Whether either Title VII of the Civil Rights Act of
1964 or the Constitution authorizes a federal district court to
order an agency of state government to engage in racial quota
hiring, absent proof of purposeful racial discrimination?
2. Whether Congress authorized the use of racial or ethnic
quotas under Title VII of the Civil Rights Act of 1964 as a
remedy for unlawful discrimination?
3. Whether the district court's use of the guidelines of the
Equal Employment Opportunity Commission establishes a rule
that mere disproportion in the performance of black and white
police officers taking a promotional examination is conclusively
and irrebuttably presumptive of unlawful discrimination?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED.
The Fourteenth Amendment to the United States Constitution
provides in pertinent part:
“Section 1. ... No State shall . . deny to any person
within its jurisdiction the equal protectior. of the laws.
“Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.”
Section 703 of Title VII of the Civil Rights Act of 1964
provides in pertinent part:
3
“(a) Employer Practices.
866 be ae — pm a a
employer—
(i) to fail or refuse to hire or to discharge any indi-
(2) to limit, segregate, or classify his employees in any
way which would deprive or tend to deprive any individual
various employment practices of the Chicago police depart-
ment. The third of those suits was brought in August, 1973, by
the United States, under Title VII of the Civil Rights Act of
1964, 42 U. S. C. §§ 20006¢ er seq. It alleged patterns and prac-
in hiring, assignment, promotion, and discipline. It is in the third
case, and in that case alone, that petitioners intervened as
parties-defendant.
4
high-priority positions on the then-current sergeants’ promotional
eligibility roster, were allowed to intervene as defendants, because
the means by which officers were qualified for entry on this roster
was attacked as invalid by the United States in its lawsuit.
Arado and the other members of his class are the petitioners
herein.
The sergeants’ eligibility roster at issue in the May, 1974,
hearing was filled according to three criteria developed with
LEAA approval: (1) an applicant's seniority; (2) his efficiency
rating in his past and current police work; and (3) the results of
istered by the Chicago Civil Service Commission pursuant to
Illinois law. The examination was prepared in conformity with
LEAA standards. The examination administered in 1973 is the
one at issue herein, and is set forth as Appendix B hereto.
In November, 1974, the district court handed down a
preliminary injunction order which included findings of fact
based on the hearing. The court determined, among other
things, that the City of Chicago had discriminated in promotion
practices. One foundation for this finding was that the city
placed significant reliance on the results of the 1973 sergeants’
examination in deciding whom to promote. The court prelimi-
narily enjoined any further promotioas from eligibility rosters
whose composition was based on the 1973 examination.
On March 10, 1975, trial on the merits of the consolidated
cases was begun in the United States District Court for the
Northern District of Illinois. On January 5, 1976, the court
handed down a memorandum decision, generally reiterating the
findings of discrimination in promotion that it had made in its
November, 1974, preliminary injunction order. (385 F. Supp.
5
543.) One month later, on February 2, 1976, the district court
made its preliminary injunction permanent with respect, inter
alia, to sergeants’ promotions, and further established a racial
was allowed, but not required, to make use of persons on the
1973 eligibility roster in making its non-quota promotions.
On January 11, 1977, the United States Court of Appeals for
the Seventh Circuit affirmed this decision. It said:
6
black and white examinees; a greater proportion of white officers
than of black officers taking the examination passed with a high
score. The applicable seniority standards and efficiency ratings
were not found to be discriminatory. (App. A at 17, n. 12.)
Although petitioners presented evidence that the examination
was both construct-valid and content-valid according to the exist-
ing norms of professional testing, this evidence was rejected on
the ground that the validation procedures followed by the city
were inadequate under the testing guidelines of the Equal Em-
ployment Opportunity Commission. Both lower courts accorded
to those guidelines the force and effect of law. The examination
itself, as this Court will observe, contains virtually no matter
other than questions concerning proper police procedures.
REASONS FOR GRANTING THE WRIT.
This case presents three constitutional questions which, by
virtue of the great number of cases in the federal courts to
which the questions are relevant, are of extraordinary im-
portance. This first is whether a finding of unlawful employ-
ment practices under Title VII of the Civil Rights Act of 1964
may be sustained as to an agency of state government without
proof of purposefully discriminatory acts.* The second is
whether, assuming that some act prohibited under Title VII has
been proved, the imposition by a district court of mandatory
racial quotas is a permissible remedy. The third is whether the
courts can create an essentially conclusive presumption of dis-
crimination by faulting defendants’ failure to comply with
E. E. O. C. guidelines for “validating” examinations which are
impossible to meet.
1. Title VII of the Civil Rights Act of 1964, as originally
enacted, did not apply to state and municipal government em-
ployers; applicability of these provisions to the states came only
in the Equal Employment Opportunity Act of 1972, 42 U. S. C.
* This question is now before the Court in Hazelwood School
District v. United States, No. 76-255, certiorari granted 45 U. 8.
L. W. 3463 (January 10, 1977).
J
§ 2000(d) and (e). This extension of the Civil Rights Act does
not expressly state that public and private employers should be
subject to different substantive standards under Title VII. Never-
theless, this conclusion unavoidably emerges from interpreting
the statute in the light of National League of Cities v. Usery,
426 U. S. 833 (1976).
The Civil Rights Act of 1964 generally rests on two con-
stitutional bases—the Commerce Power of Art. I, § 8 of the
Constitution, and §5 of the Fourteenth Amendment. The
breadth of Congress’ power under the Commerce Clause is, of
course, great. See Wickard v. Filburn, 317 U. S. 111 (1942);
Heart of Atlanta Motel, Inc. v. United States, 379 C. S. 241
(1964). Nevertheless, as a matter of federalism under the Tenth
Amendment, this Court has made it clear that the Commerce
Power does not teach the terms and conditions on which state
governments hire, promote, and compensate their employees.
National League of Cities v. Usery, 426 U. S. 833 (1976),
overruling Maryland v. Wirtz, 392 U. S. 183 (1968). It
follows, accordingly, that Section 5 of the Fourteenth Amend-
ment must be the basis, and the only possible constitutional basis,
on which to rest the extension of the terms of Title VII to state
and local government pursuant to the Equal Employment Op-
portunity Act of 1972.
Section 5 of the Fourteenth Amendment provides: “The Con-
gress shall have power to enforce, by appropriate legislation, the
provisions of this article.” In order to determine the meaning
of Title VII as applied to state government, it is therefore neces-
sary to inquire what substantive rights are protected by the
Fourteenth Amendment and, in particular, Section 1 thereof.
Last Term, in Washington v. Davis, 426 U. S. 229 (1976),
this Court made it clear that “the basic equal protection prin-
ciple lis] that the invidious quality of a law claimed to be
racially discriminatory must ultimately be traced to a racially dis-
criminatory purpose.” 426 U. S. at 240. And while the Court did
not insist that “the necessary discriminatory racial purpose must
be express or appear on the face of the statute,” 426 U. S. at 241,
it did declare that mere evidence of race-linked disparities in
examination performance does not, in itself, establish a prima
facie constitutional violation. Again, this Term, the Court
stressed that differential racial impact is not in itself proof of a
constitutionally-prohibited discrimination. Village of Arlington
Heights v. Metropolitan Housing Development Corporation,
U. S. 45 U. S. L. W. 4073 (January 11, 1977).
These holdings have a singular importance in this case, for
here it cannot be argued that any racially motivated purpose-—
whether overt or covert—was present. The Court of Appeals for
the Seventh Circuit so held:
There is no evidence in the record before us that the Chi-
cago Police Department engaged in purposeful discrimina-
tion. .4 . Accordingly we hold that the hiring and promo-
tion policies of the Chicago Police Department did not
violate the Constitution. (App. A at 30.)
If there were no purposeful discrimination by the City, then there
cannot be a basis in the Fourteenth Amendment for the district
court to prohibit the administration of the selection and pro-
motion examinations themselves, let alone for contriving the
extensive relief decreed in this case.
2. Even if purposeful discrimination had been shown, how-
ever, the remedies selected by the district court here and en-
dorsed by the court of appeals are unauthorized by the Civil
Rights Act. Indeed, they are obviously contrary to the provisions
of Title VII itself. The key element in the district court’s remedy
was the mandatory racial and ethnic quota: a certain percentage
of new promotions must be reserved for persons of a particular,
specified race or national origin. Yet Title VII makes it an un-
lawful employment practice for an employer to prefer or
punish an employce on account of his skin color or the accident
of his ancestry. And § 703(j) amplifies this rule by forbidding
the use of preferential hiring policies to change the “racial bal-
ance” of an employer's workforce. In Griggs v. Duke Power
~~
9
Co., 401 U. S. 424, 430, 431 (1971), this Court pointedly
observed that Title VII:
does not command that any person be hired simply because
he was formerly the subject of discrimination, or because
he is a member of a minority group. Discriminatory pref-
erence for any group, minority or majority, is precisely
and only what Congress has proscribed.
Actions that would constitute a violation of the Civil Rights
Act if done by an employer cannot be denatured and legiti-
mated just because they were ordered by a federal court. Con-
duct forbidden to employers by Title VII because it constitutes
racial discrimination is certainly not entrusted by this Title to
district courts as a remedy for racial discrimination. On the
contrary, the Civil Rights Act contemplated precisely the op-
posite result. This point was made clear by Hubert H.
Humphrey, the Whip of the Senate majority at the time of the
passage of the 1964 Civil Rights Act, and that statute’s floor
manager and chief draftsman as well. In defending proposed
Title VII to his colleagues, Senator Humphrey stressed:
Contrary to the allegations of some opponents of this
title, there is nothing in it that will give any power to the
Equal Employment Opportunity] Commission or to any
court to require hiring, firing, or promotion of employees
in order to meet a racial “quota” or to achieve a certain
racial balance.
That bugaboo has been brought up a dozen times, but
it is nonexistent. In fact, the very opposite is true. Title
VII prohibits discrimination. In effect, it says that race.
religion and national origin are not to be used as a basis
for hiring and firing. Title VII is designed to encourage
hiring on the basis of ability and qualifications, not race
and religion. (110 Cong. Rec. 6549 (1964).)
Tacitly recognizing the illicit character of mandatory racial
quotas under Title VII, a number of federal courts which have
imposed this remedy have sought to disguise the true nature
of their action by the use of such gingerly euphemisms as
“numerical objectives,” Southern Illinois Builders Association
v. Ogilvie, 471 F. 2d 680, 686 (Ich Cir. 1972), “preferential
10
relief,” Patterson v. American Tobacco Co., 535 F. 2d 257,
273 (4th Cir. 1976), or, more simply, “goals,” Rios v. Enter-
prise Ass'n. Steamfitters Loc. 638 of U. A., 501 F. 2d 622, 629
(2d Cir. 1974). Emboldened by the use of such mandatory
quotas in at least nine circuits“ and perhaps by this Court's
refusal thus far to review the imposition of such relief, the court
of appeals here has abandoned the modesty of circumlocution
and declared without pretense that mandatory quotas are an
allowable remedy under Title VII (App. A at 32-33). In the
light of the language and purpose of Title VII, and the un-
ambiguous clarity of its legislative history,** this holding by the
court of appeals is little less than judicial legislation, not com-
plementing, but contradicting, the Act of the Congress.
3. The 1973 sergeants’ examination of the Chicago police
department is one of the most carefully designed and construct-
validated standardized examinations ever used by an employer.
It corresponds to the requirements for such tests set out by
the Law Enforcement Assistance Administration of the Depart-
ment of Justice. The examination does not include questions
* First Circuit: Boston Chapter, NAACP, Inc. v. Beecher, 504
F. 2d 1017, 1026-28; certiorari denied, 421 U. S. 910 (1975);
Second Circuit: Rios v. Enterprise Association Steamfitters Local
638 of U. A., 501 F. 2d 622, 628-31 (1974);
Third Circuit: United States v. International Union of Elevator
Contractors, 538 F. 2d 1012, 1017-20 (1976);
Fourth Circuit: Patterson v. American Tobacco Co., 535 F. 2d
257, 273-74, certiorari denied, 45 U. S. L. W. 3330 (October 29,
1976);
Fifth Circuit: Local 53, Heat Workers v. Vogler, 407 F. 2d 1047,
1053-54 (1969);
Sixth Circuit: United States v. International Brotherhood of Elec-
trical Workers, 428 F. 2d 144, 149-51, certiorari denied, 400 U. S.
943 (1970);
Seventh Circuit: Southern Illinois Builders Assn. v. Ogilvie, 471
F. 2d 680, 686 (1973);
Eighth Circuit: United States v. V. L. Industries, Inc, 479 F. 2d
354, 377 (1973);
Ninth Circuit: United States v. lronworkers Local 86, 443 F. 2d
544, certiorari denied, 404 U. S. 984 (1971).
** This legislative history is epitomized by J Hays in his
dissenting opinion in Rios, supra, 501 F. 2d at 634-636.
11
meant to test “aptitude,” “attitude,” or any such elusive qualities
supposed to make for success as a police sergeant. Instead, the
examination confines itself exclusively to matters of law and
established police policies and procedures which the City insists
be mastered by anyone performing the duties of police sergeant.
The relevance of this information on law, policy, and pro-
cedure was not assumed or left either to “common sense” or to
chance. The examination was not drafted until a comprehensive
job analysis of a sergeant’s duties was performed by the Chicago
Civil Service Commission, which required four man-years to
complete. It included, in addition to numerous on-the-job obser-
vations, interviews with 147 active sergeants, drawn from all
geographic districts of the City and representing every field
of police work. From these observations and interviews, the
Commission identified 137 separate operations or jobs which
police sergeants must perform; these operations were further
organized into a dozen “critical task” categories. From this
analysis, an examination was prepared by professional psycholo-
gists on the Commission’s staff. Each question on the resulting
examination was then double-checked, that is. analyzed by the
Commission staff in order to verify that it did in fact address
matters substantially related to one or more of the “critical
tasks” that had previously been identified. .
The examination set out in Appendix B hereto was the out-
come of these efforts. Every question is directed to some matter
which has been found by painstaking empirical research to be
germane to the police sergeant’s work. Who is responsible for
notification of the hospital when an absconded mental patient is
apprehended? (Question 5.) If an off-duty police officer is
involved in a tavern brawl, might he be liable for civil damages
under the federal civil rights laws? (Question 19.) When may an
officer not search or seize an arrestee? (Question 55.) Must a
supervisor's approval be secured before police dogs may be sum-
moned to the scene of a crime? (Question 66.) Does an arrest
for attempted suicide require the preparation of a case report?
(Question 72.)
12
If the City is entitled to insist that its sergeants actually be
familiar with such elementary details of their jobs, it surely
entails no excessive leap of logic to conclude that candidates
who know that patrolmen are authorized by department policy
to summon police dogs to the scene of a crime on their own
initiative, or who know that the watch commander is the person
responsible for notifying a hospital that an escaped mental
patient has been arrested, will be able to answer these questions
correctly; and that, contrariwise, candidates who do not know
the answers for purposes of the examination will not know
them in practice on the job. The examination is thus “construct-
valid,” and fully corresponds to the most exacting professional
standards for such validity.
The district court, however, found that the test had not
been validaied by a measurable criterion relationship. Criterion-
related validation—the validation technique preferred by the
guidelines of the Equal Employment Opportunity Commission,
29 C. F. R. § 1607.5(a)—may be accomplished by one of
two possible strategies, the “predictive” or the “concurrent.”
The predictive strategy requires the promotion examination to
be administered over a period of years on an essentially experi-
mental basis. Promoiions would be made disregarding candi-
dates’ examination scores. Eventually, after several years’ ex-
perience, the performance of the sergeants on the examination
would be correlated with some presumably-valid criterion of
actual performance on the job in order to determine whether
there existed a significant statistical correspondence between
the two.
The “concurrent” strategy, the one followed by the City
with respect to this examination, produces faster results than
the predictive strategy. This technique calls for the administra-
tion of the examination to existing incumbents to determine
whether scores on the examination bear some regular relationship
to aciual performance on the job, as ascertained by some presum-
ably-valid criterion of performance. The evidence of concurrent
validity of this examination showed not only that there was
13
a statistically significant relationship between the test scores
and the performance criterion, but that when the examination
was given to 176 sergeants, half of them black and half of them
white, and matched for age and performance ratings, the exami-
nation did not produce a disparate racial impact. Sergeants of
both races did equally well.
The district court refused to accept the construct-validity of
the examination, however, and did not credit the City’s evi-
dence of a concurrent relationship between the scores on the
test and some criterion of on-the-job performance. The court
left it unclear, moreover, what evidence might be received to
rebut the presumption of discrimination which arises when an
examination produces an adverse impact on candidates from
minorities protected by Title VII. It suggested, however, that
prediction “of performance on the job . is the test we are
to apply in testing the testers.” 411 F. Supp. at 238.
The court of appeals approved of this holding on the apparent
premise that it was based on the City’s failure to meet the
requirements of the E. E. O. C. guidelines on tests of this sort,
29 C. F. R. Part 1607. This is an enigmatic holding indeed, for
the guidelines clearly do authorize the use of construct-valid
tests, 29 C. F. R. § 1607.5(a); and indeed, this Court has said
that an examination is acceptable under Title VII if the traits
which it was designed to test are “significantly correlated with
important elements of work behavior.” Griggs v. Duke Power
Co., 401 U. S. at 433, n. 9 (1971). There seems to be little
question that the sergeants’ examination does, in fact, test for
knowledge of police policy and procedure. The issue would then
appear to be whether it is lawful for the City to insist on sergeants
knowing this information, when the need for such knowledge has
been empirically established beforehand, although this insistence
produces a performance disparity along racial lines. Neither
court below could cite any authority for the proposition that
this insistence is unlawful; and indeed, no such authority exists.
Race-linked examination performance disparities, in and of
themselves, were not prohibited by Title VII. Only examina-
14
tions which cannot be shown to have a relationship to the job
for which they are administered are banned. It is thus apparent
that the dissatisfaction of the courts below with the sergeants’
examination was the City’s failure to bear the burden of per-
suading that knowledge of police department policies—and not
just any policies, but those which have been systematically ob-
served to be part of a sergeant’s job—is a skill related to the
business of being a police sergeant.
When the lower courts’ holdings descend to this level of ten-
dentiousness and cavil, it seems appropriate to ask whether there
has not been introduced into Title VII a clause which Congress
never enacted—that racial disparities in examinatio perform-
ance conclusively show the existence of employment practices
prohibited by Title VII.
The elimination by the lower courts of examinations validated
as in this case will have paradoxical results. If the City were to
rely solely on a relationship between the examination scores and
some asserted index (or “criterion” ) of actual performance, what
would that criterion be? If police sergeants’ performance were
easily quantifiable, a non-controversial criterion might be easy to
find—batting average, number of tons processed, number of sales
made. But given the variability and complexity of a sergeant's
job, the only criterion which is available for use is the com-
posite judgments of other policemen, that is, efficiency ratings.
However, both the E. E. O. C. guidelines, 29 C. F. R. § 1607.5(4),
and the trial court below, 385 F. Supp. at 560, recognized that
such performance ratings are themselves “highly subjective” and
unusually vulnerable to contamination for racial bias. It is in
order to avoid, and to ameliorate, this possibility of contamina-
tion by bias that a construct-valid examination was chosen in the
first place. The criterion-validation evidently required by the
courts below, then, is as subject, or more subject, to challenge
for racial bias as the validation procedure primarily relied upon
by the City here.
©
a ey
-@ + w*
The practical effect of the court of appeals’ judgment is es-
sentially to rule that examinations of this sort—paper-and-
pencil examinations, as they were characterized by the trial court
may never be used if they produce a disparate racial impact.
This, in spite of evidence showing the manifest relationship of
the examination to the sergeant's job, in spite of evidence that
the questions on the examination were conceived from racially-
neutral data, and in spite of the incontrovertible fact that no
other method of merit selection for promotion—including selec-
tion by means of a criterion-valid examination—would be so
free of racial bias. In such circumstances, it is fair to conclude
that racially-disparate performance on the examination is what
the courts below find objectionable; and there is no warrant,
in Title VII or in any other provision of law, for any such rule.
CONCLUSION.
For the foregoing reasons, this petition for a writ of certiorari
should be granted.
Respectfully submitted,
Norman J. BARRY,
Roruscum p. Barry & Myers,
Two First National Plaza,
Chicago, Hlinois 60603,
(312) 372-2345,
Attorney for Petitioners.
Pini B. KURLAND,
DANIEL D. Posey,
JosEFH A. Morris,
Of Counsel.
*“#APPENDIX
*
Al
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 76-1113, 76-1152, 76-1205. & 76-1344
UniTeD STATES OF AMERICA, et al.,
Plaintiffs-A ppellees,
City Or CHICAGO, et al.
Defendants-A ppellants.
Appeais from the United States District Court for the
Northern District of Illinois. Eastern Division
No 73 C 2080—Prentice H. Marshall, Judge
ARGUED JUNE 14. 1976—Decipep JANUARY 11. 1977
Before FAIRCHILD, Chief Judge, SWYGERT and PELL,
Circuit Judges.
Re 41 — . ed case * — —
eivil rights action ye nging emp t
practices of the Chicago Police Department. The district
court in its Jan 5, 1976 memorandum decision
found that the utilized by the Police Department
in hiring and promoting police officers resulted in
discrimination against blacks, Hispanics, and women in
violation of federal civil rights statutes and the Con-
stitution. On February 2, 1976 the court entered a final
order which enjoined those employment practices found
to be discriminatory, — numerical hiring and
promotion quotas, and continued its injunction against
A2
2 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
payment of federal revenue sharing funds to the City of
Chic pending compliance with the court's order. The
defendants cha lenge both the court's findings of dis-
crimination and its choice of remedies.
|
We will briefly review the proceedi in the district
court, which have been thoroughly detailed i previ
reported decisions. : N —
On September 9, 1970 Renault Robinson, a black
Chicago police officer, and the Afro-American
Patrolmen's N filed a complaint against the
Superintendent of Police, the City of Chicago, and the
members of the Police Review Board charging raciai
discrimination in the assignment, tion, and di
cipline of Chicago police officers.* Robinson plain-
tiffs sought declaratory and injunctive relief and
damages under the first, fifth, thirteenth. and
the Civil, Rights "Acts of 1506 men See: and under
; cts o a 1871, S.C.
§§ 1981 and 1983. a
A second action was brought on 13, 1973
the City, the Superintendent of Police and the Chicago
Civil Service Commission and its Secretary by Tadeo
Robert Camacho and ten blacks and Hispanics who were
unsuccessful applicants for positions as Chicago police
officers. The Camacho plaintiffs challenged the full
range of departmental ices with recruit-
ing. pcrecning. and hirve ! connie | ied eae 42
U.S.C. §§ 1981 and 1985, the fourteenth amendment.
' United States v. City of Chi 411 F. Su 18 (N.D. Ill
1976); 395 F. Supp. N. B. Tl. 1975); 388 9. 543
renn F. Sen 85
The is an association formed by members of the
Chicago Police De t to represent interests 1
1 officers the black — — = ieee
. original complaint. which also challenged
Separate hiring practices, was dismissed by the 12
) anon ied — &
allegations with respect to hiring. „ ——
A3
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 3
and Titles VI and VII of the Civil Rights Act of 1964
(which had been amended and licable to
municipalities in 1972), 42 U.S.C. § 2000(d) and (e).
A third suit was filed August 14, 1973 by the United
States against the City, the Superintendent of Police,
and the Chicago Civil Service Commission alleging a
— and practice of discrimination within the
hicago Police Department against blacks, Hispanics,
and women in the hiring, assignment, promotion, and
discipline of police * Government t
relief under Title VII, under sections 1981 and 1985,
and under the anti-discrimination guidelines and
regulations of the Department of Justice and the Law
Enforcement Assistance Administration, 28 C.F.R.
§§ 42.201 et seg. and 42.301 et seg. U plaintiffs’ joint
motion, the three cases were consolidated in the district
court before Judge Prentice H. Marshall.
An evidentiary hearing on plaintiffs motion for a
reliminary injunction commenced on May 30, 1974.
Plaintiffs sought to restrain further hiring by the City
from the patrolman’s eligibility roster and furtner
promotion to the rank of sergeant from the sergeant's
eligibility roster. The patrolman’s eligibility roster was
based on the results of the 1971 patrolman’s examination
given by the Chicago Civil Service Commission and a
series of physical and medical tests. The sergeant’s
eligibility roster was based on the results of the 1973
sergeants examination given by the Commission, de-
partmental efficiency ratings, and seniority. Plaintiffs
amy 1. F ——— as a as f r criteria
u ice Department in hiring an con
— — discriminated against blac Hispanic
candidates. In addition, the Government sought prelim-
inary relief against the disparate treatment of women
within the Department. Just prior to the hearing, Louis
Arado and other police officers who held positions on the
1973 sergeant’s eligibility roster were permitted to
intervene as defendants.
The limi injunction hearing consumed seven-
teen trial days. During the hearing, consent decree
was entered which resolved challenges to the Police
Ad
4 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
Department's physical and medical requirements. On
November 7, 1974 the district court issued findings of
discrimination in hiring and promotion and preliminari-
3 enjoined the defendants from utilizing practices that
iscriminated against minorities and women. The court
also specifically prohibited any further hiring or promo-
tion from eligibility rosters based on the 1971
patrolman’s and the 1973 sergeant’s examinations. Rely-
ing on representations by the City that a new
patrolman's examination was being developed, the court
declined to impose any preliminary hiring or promotion
quotas.
A fourth action alleging employment discrimination in
the Chi Police Department was filed on February 7,
1974 in the district court for the District of Columbia
against the Secretary of the Treasury and the Office of
Revenue — In this action plaintiffs Robinson. the
Afro-American Patrolmen's League, and the National
Association for the Advancement of Colored People
sought to enjoin further payment of revenue sharing
funds earmarked for the City of Chi under the State
and Local Fiscal Assistance Act of 1972, 31 U.S.C.
1221 et seg. They all that a substantia! portion of
unds paid to the City of Chicago under the Act were be-
ing allocated to the Police Department, that the Police
Department was engaged in discriminatory employment
practices, and that payment of further funds to the City
was consequently prohibited the nondiscrimination
rovision of the Act, 31 U.S.C. § 1242. This suit was
rought because the plaintiffs were dissatisfied with the
response of the Secretary and the Office of Revenue
Sharing to an administrative complaint filed in
September 1973.
On May 29, 1974 the Secretary responded to the ad-
ministrative complaint and recommended to the At-
torney General, pursuant to 31 U.S.C. § 1242(b), that he
bring a civil suit against the City. Government
The details of these „ are set out in the distriet
court's decision in 395 F. Supp. and in our own decision in
2 981 4 in this case, 534 F.2d 708 (7th
ir. .
ors
A5
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 5
accepted this recommendation on May 30, 1974 b
amending its complaint in the Northern District of II-
linois to allege violations of the Fiscal Assistance Act.
The District of Columbia district court then initially
denied the requested injunctive relief on June 28, 1974,
reasoning that the Secretary had already fulfilléd his
statutory duty. Following entry of the preliminary in-
junction against the Chicago defendants in the
— in the Northern District of Illinois,
owever, the District of Columbia court reconsidered
panes motion for injunctive relief. In reliance on
udge Marshall's findings. the court on December 18,
1974 enjoined further payment of revenue sharing funds
to the City until such time as the Secretary and
the Office of Revenue Sharing determined that the
Police Department was in compliance with the non-
discrimination 1 1 of the Fiscal Assistance Act.
Subsequently the City intervened in the Distriet of
Columbia proceedings and unsuccessfully sought
modification of that court’s order. The action was then
transferred at the City’s request from the District of
Columbia to the Northern District of Illinois, where it
was consolidated with the other cases pending against
the City. In the following months, the district court
twice denied motions by the City to modify the order
forbidding payment of revenue sharing funds.
While the parties litigated the revenue sharing ques-
tion, the original actions moved forward. After extensive
negotiations, all interested parties consented to an in-
terim hiring agreement that permitted the City to hire
six hundr lice officers from the 1971 patrolman’s
and the 1972 police woman's matron's lists in three
groups of two hundred, with one hundred positions in
each group to be filled by minority male candidates,
thirty-three by women, and the remaining sixty-seven
by white males. The court approved the agreement on
December 16, 1974. The City then notified the first
group of two hundred to report to the police training
academy on January 6, 1975. However, on January 2 the
City unilaterally suspended the interim hiring agree-
ment and instructed the * notified applicants
not to report for training. On March 10, the opening day
A6
6 Nos. 76-1113, 76-1152, 76-1205. & 76-1344
of the trial on the merits. the City announced, again
unilaterally, a new examination for patrol officers and
a program for the appointment of temporary sergeants
not be selected from the 1973 sergeant's list. Plaintiffs
moved to enjoin the promotion of temporary sergeants,
but this motion was denied on June 6. The court,
however. did grant in part the motion of the Camacho
plaintiffs to compel compliance with the interim hirin
agreement. On April 21 it ordered the City to proc
with the suspended hiring of the two hundred applicants
previously notified. It declined, however, to enforce the
remainder of the agreement because of the City’s
assurance that results of the new patrolman’s examina-
tion soon would be forthcoming.
The trial on the merits in the four consolidated cases
vegan on March 10, 1975. Prior to trial the court allowed
the intervention as plaintiffs of Carolyn Burauer and
other named individuals who aspired to become police
officers anc who charged that they had been the victims
of discrimination because they were women. It also per-
mitted Roy Isakson and others who held positions on the
1971 patrolman’s eligibility roster to intervene as defen-
dants. All parties agreed that evidence adduced at the
evidentiary hearing on the motion for a preliminary
injunction would be considered as part of the trial on the
merits pursuant to Fed.R.Civ.P. Gia 2)
On January 5, 1976 the district court entered a
memorandum decision reaffirming in most respects the
preliminary findings of discrimination in hiring and
promotion made in its November 1974 decision. It found
no discrimination, however, in the Police Department's
procedures governing promotion to the rank of lieute-
nant and found no racial discrimination in the
Department's assignment of personnel. It deferred final
decision on the allegations of discrimination in discipline
and on the pe.sonal claims of the Robinson plaintiffs.
In its implementing order of February 2, the district
court made permanent the —— aspects of the
preliminary injunction. To fill immediate vacancies in
patrol officer ranks, it ordered the hiring of four
A7
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 7
hundred patrol officers pursuant to the uncompleted
rtion of the interim hiring agreement and authorized
urther hiring from the 1971 patrolman's list and the
1972 policewoman’s/matron’s list in accordance with the
racial and sexual percentages specified in that agree-
ment. The court also permit the appointments of
temporary sergeants to be made permanent.
In addition, the court imposed racial and sexual
quotas on future hiring and promotion as a long term
goal to remedy the past effects cf discrimination. It
required that at least sixteen percent of new patrol
officer vacancies be filled by women and that at least
forty-two percent of those vacancies be filled by black
and Spanish-surnamed men. The City was permitted,
though not required, to utilize persons remaining on the
1971 and 1972 rosters in filling vacancies after these
quotas were satisfied.
The court further ordered that forty percent of the of-
ficers promoted to sergeant be black or Spanish-
surnamed. The City was allowed at its option to use the
1973 roster in determining who would be promoted
after this guideline was met.
Finally, the court continued the withholding of federal
revenue sharing funds until the City brought itself into
compliance with the nondiscrimination provision of the
State and Loca! Fiscal Assistance Act. It ordered the
parties to submit proposed timetables for the release of
those funds subject to action by the City to cease its dis-
criminatory conduct and comply with the court's order.
II
As a preliminary matter, the defendants contend that
the Robinson complaint must be dismissed for lack of
subject matter jurisdiction.’ The Robinson complaint
alleged general federal question jurisdiction under 28
There is no jurisdictional issue with respect to the other
laintiffs, since they all y= violations of Title VII. The
binson plaintiffs could not bring their action within the am-
bit of Title VII since that statute was not applicable to
municipalities when they filed their complaint in 1970.
AS
—
8 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
U.S.C. § 1331 for violations of the first, fifth, and
fourteenth amendments and civil rights jurisdiction un-
der 28 U.S.C. § 1343(3) for violations of the Civil Rights
Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983. The
district court concluded that no action lay for violation
of section 1983 against the City or the Police Review
Board since municipal corporations are not “persons”
subject to suit under that provision. City of Kenosha v.
Bruno, 412 U.S. 507 (1973); Monroe v. Pape. 365 U.S.
167 (1961). The court held, however, that jurisdiction
was proper both under section 1331 and under section
1981 through its jurisdictional counterpart, section
1343(3). Robinson v. Conlisk, 385 F. Supp. 529 (N. D. III.
1974). We agree with these conclusions.
The availability of general federal question jurisdic-
tion under section 13317 as an alternative to civil rights
jurisdiction under section 1343 for a plaintiff alleging
constitutional deprivations against a municipal corpora-
tion has been recognized by the Supreme Court and by
this court. City of Kenosha v. Bruno, 412 U.S. at 514;
Calvin v. Conlisk, 520 F.2d 1, 8 (7th Cir. 1975), vacated
on other grounds, 424 U.S. 902 (1976). Section 1331,
however, unlike section 1343, requires the plaintiff to
meet a $10,000 amount in controversy requirement. The
general principle governing dismissal for want of
jurisdictional amount is that, unless the law gives a
* 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance,
a. 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 im-
munities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
28 U.S.C. § 1331 provides in pertinent part:
(a) The district courts shall have original jurisdiction
of all civil actions wherein the matter in controversy ex-
ceeds the sum or value of $10,000, exclusive of interest
and costs. and arises under the Constitution, laws or
treaties of the United States.
AS
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 9
different rule, the sum claimed in good faith by the
laintiff at the time of filing controls. St. Paul Mercury
ndemnity Co. v. Red Cab Co., 303 U.S. 283, 288 (1937);
Calvin v. Conlisk, 520 F.2d at 9. The district court con-
cluded that Robinson satisfied this test by alleging in
good faith that he had lost $30,000 in pay because of the
defendants’ discriminatory acts. The court also found
that the requirement was met by the good faith allega-
tions of the Afro-American Patrolmen’s League that it
had suffered damages of $100,000 because defendants’
discriminatory acts discouraged membership in and
support for the League.
The City contends, however, that because the plaintiffs
asked for damages only from the Superintendent of
Police and merely requested injunctive and declaratory
relief against the City and the Police Review Board, sec-
tion 1331 jurisdiction is improper with respect to the
City and the Board. We reject this argument. In a suit
seeking injunctive relief, the amount in controversy is
the value of the right to be protected or the extent of the
injury to be prevented. 1 Moore’s Federal Practice {
0.96 [3.-1] at 939. The Robinson plaintiffs have alleged
that discriminatory practices by the City will, unless en-
joined, cause them future damages well in excess of
$10,000. This is enough to satisfy the statute.
The district court alternatively found that subject
matter jurisdiction with respect to the claims made
against the City and the Board could be grounded on
section 1981* through section 1343(3), its jurisdictional!
counterpart, which has no amount in controversy re-
quirement. We agree. As the court noted, the lan N
purpose, and legislative history of section 1981 differ
substantially from those of section 1983. Unlike section
Section 1981 provides:
All persons within the jurisdietion of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be give
evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens, shall be subject to like
yg penalties, taxes, licenses, and exactions
of every kind, and to no other.
Al
10 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
1983, which requires action under color of state law, sec-
tion 1981, intended to enforce the thirteenth amend-
ment, prohibits all racial discrimination which deprives
any person of the “full and equal benefit of all —
Runyon v. McCrary, 44 U.S. L. W. 5034, 5037 (U.S. June
25, 1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409,
37-44 (1968). The exception from liability for munic-
ipalities that can be discerned from the legislative
history of section 1983 is absent in the langu or
history of section 1981.“ Moreover, it would be
anomalous to hold that section 1981 proscribes racial
— — — * F actors but not by
municipalities. See Ma 8 . aham, 378 F. .
913, 917 (E.D. Pa. 1974). * Supp
III
We turn now to the merits of this case. The district
court held that the employment practices of the Police
Department discriminated against racial minorities and
women in violation of Title VII of the Civil Rights Act of
1964 and the equal protection clause. We shall evaluate
the court’s conclusions with respect to each of these
sources of law proscribing discrimination.
In reviewing the court’s decision, we are bound under
Fed.R.Civ.P. 52(a) to accept findings of fact unless they
are clearly erroneous. Stewart v. General Motors Corp.,
542 F. 2d 445, 449 (7th Cir. 1976); Prince v. Packer Mig.
The City has cited cases in which an action brought against
a municipal corporation under both sections 1981 and 1983
was dismissed for want of jurisdiction without separate con-
sideration of the section 1981 claim. See Flood r. Margis, 461
F. 2d 253, 256 (7th Cir. 1972); Hampton v. City of Chicago, 484
F.2d 602 (7th Cir, 1973); Percy v. Brennan, 284 F. Supp. 800
S PD. N.Y. 1974). These cases merely held that a municipality
is not a — within the meaning of the Civil Rights Act,
citing Monroe, City of Kenosha, or Moor v. County of
Alameda, 411 U.S. 693 (1973). Because those cases construe
section 1983, not section 1981, and because section 1981 in fact
does not even speak in terms of a “person” as a defendant, we
> a — we * bound by previous * — in which
gave no consideration to the quite di
and history of section 1981. 8 W
All
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 11
Co., 419 F.2d 34, 36 (7th Cir. 1969). The statement that
discrimination exists for the pur s of establishing
liability under Title VII or under the Constitution,
however, is as much a conclusion of law as a finding of
fact. A distinction must be drawn between subsidiary
facts to which the “clearly erroneous” standard applies,
and the ultimate fact of discrimination necessary to
trigger a statutory or constitutional violation, which is
the decisive issue to be determined in this litigation. See
Stewart v. General Motors Corp., 542 F.2d at 449 (Title
VII); East v. Romine, Inc., 518 F.2d 332, 338-39 (5th Cir.
1975) (Title VII). Accordingly, we will make an indepen-
dent examination of whether the Police Department's
employment practices, as a matter of law, were
— under Title VII or the equal protection
clause.
A. THE MECHANICS OF HIRING AND PROMOTION WITHIN
THE CHICAGO POLICE DEPARTMENT
Hiring and promotion within the Chicago Police
Department is governed by state law. The Illinois
Municipal Code, Ill. Rev. Stat. ch. 24, § 10-1-7, provides
that applicants for positions in a municipal police force
must take competitive examinations. The statute states
that “[sJuch examinations shall be practical in their
character, and shall relate to those matters which will
fairly test the relative capacity of the persons examined
to discharge the duties of the positions to which they
seek to be appointed, and shall include tests of physical
qualifications and health, and when appropriate of
manual skill.” A roster of eligible candidates is then to
be Poa from the results of the examinations, with
rank on the roster to be determined by each candidate’s
scores. The roster is to include “the persons whose
= average one upon examination. . is not
ess than the minimum fixed by the rules of. . [the]
commission, and who are otherwise eligible.” III. )
Stat. ch. 24, § 10-1-12. When a vacancy occurs, it must
be filled by the candidate standing highest on the roster.
Ill. Rev. Stat. ch. 24, § 10-1-14. A person’s name may be
struck from the eligibility roster after two years. Id. If
more than one examination is given within two years,
Al2
12 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
however, or if the administering commission gives
another examination after two years without striking
from the roster the names of those remaining from the
old examination, rank on the roster is to be determined
by relative excellence without reference to the time of
examination. Ill. Rev. Stat. ch. 24, § 10-1-12.
Pursuant to these statutory commands, the Chicago
Civil Service Commission periodically administered a
patrolman's eligibility examination to individuals who
met certain age, height, weight, and residency re-
quirements. The examination from which appointments
were being made at the time the Government filed suit
was administered on December 4, 1971. It was a two-
hour written examination containing 120 multiple choice
questions designed to test vocabulary, grammar, word
choice, arithmetic, and verbal and mathematical reason-
ing. Those who received a passing score on the written
examination were required to submit to a physical and
medical examination. The names of applicants who
passed the physical and medical screening were then
posted on a patrolman’s eligibility list in rank order ac-
cording to their scores on the written test.
Whenever the Police Department needed patrolmen,
the Commission supplied a list of names from the top of
the eligibility list. The Department then conducted a
background investigation of the individuals whose
names had been 3 An applicant was disqualified
and removed from the eligibility list if the investigation
proved that he had made false statements to the Com-
mission or violated its rules in connection with his
application or his examination, that he had ever been
discharged from public employment for cause, or that
evidence established his “bad character, dissolute habits,
or immoral conduct.”
The Municipal Code similarly provides that
promotional rosters must be based on competitive ex-
aminations, as well as “ascertained merit” and seniority.
Vacancies must be filled by one of the three candidates
at the top of the roster, and a high-ranking candidate
cannot be passed over more than twice. Candidates can
be struck from the promotional roster after two years if
——
Al3
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 13
there are no existing vacancies. III. Rev. Stat. ch. 24.
§ 10-1-13.
The Chicago Civil Service Commission accordingly re-
quired patrolmen who sought promotion to the rank of
sergeant to take a written examination. The examina-
tion at issue in this case was administered on August 18,
1973, and contained one hundred multiple choice
— designed to test a candidate's knowledge of
epartmental regulations and procedures, and his judg-
ment in situations that might confront a police sergeant.
An eligibility roster was then derived from a weighted
combination of scores on the written examination (sixty
percent), recent patrolman efficiency ratings (thirty
percent), and points for seniority (ten percent).
who achieved a composite score of seventy were placed
on the roster in rank order according to their composite
scores. Promotions were to be made from the top of this
list as positions became available.
The Illinois Municipal Code makes no distinction
between the sexes in providing procedures for hiring
and promotion to municipal police forces. Nonetheless.
the Police Department has always maintained sexually
segregated procedures for hiring and promotion. For the
purposes of this case, the hiring of women was based on
the 1972 policewoman's matron's list, derived from a
separate examination. Based on the record, there
appears to have been no organized procedure governing
the promotion of women within the Department.
B. TitTLe VII
1. GENERAL PRINCIPLES
The basic legal standard to be utilized in litigation un-
der Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seg., was developed by the Su Court in
Ss . Power Co., 401 U.S. 424 (1971), and
amplified in Albemarle Paper Co. v. Moody, 422 U.S.
405 — In Griggs, the —— 4 that a test .
employment or promotion having a disproportionately
adverse effect on black applicants was unlawful under
Title VII unless it was demonstrably related to job per-
formance. The Court stated:
Al4
14 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
The Act proscribes not only overt discrimination
but also practices that are fair in form, but dis-
— in operation. The touchstone is business
necessity. If an employment practice which
to exclude Negroes cannot be shown to be re to
iw performance, the practice is prohibited. 401
S. at 431.
Therefore, a prima facie case of discrimination is es-
~ ap — 2 — 1 tests in soe
tion se applicants for hire or in à rac
pattern signi! icantly different from that of the pool of
applicants.” Albemarle, 422 U.S. at 425; Stewart v.
neral Motors Corp., 542 F.2d at 449. — such a
showing of disparate effect on minority applicants,
burden shifts to the employer to show “that any gi
requirement {has} a manifest relationship to the employ-
ment in question, and Gat te nperty be Be pretest
of nondiscriminatory factors.” Griggs, 401 U.S. at 432;
Stewart, 542 F.2d at 450. Where employment tests are at
issue, courts have often required an employer to prove
job-relatedness by evidence that the tests have been
“validated” g accordance with the Guidelines issued by
the Equal Employment Opportunity Commission
the professional — Be of the American
chological Association that the Guidelines 0
6.9. v. Hampton, 512 F.2d 976, 986 (D.C.
18757 United States 1. Georgia Power Co., 474 F.2d 90
913 (5th Cir. 1973). The Supreme Court has held that in
considering evidence of job-relatedness the EEOC
Guidelines are entitled to oe ee = ad-
ministrative interpretation i agency
desi to enforce it. See Albemarle, U.S. at 430-
31; Gri 401 U.S. at 433-34.
Moreover, - Title VII explicitly 7 ibits —¥--
ll as raci iscrimination, see ips v. Martin
Marietta Corp., 400 U.S. 542 (1970), the standards laid
down in Griggs should be pplied when sex, as well as
race, is at issue. See Bowe v. Colgate, Palmolive Co., 489
F.2d 896, 900 (7th Cir. 1973).
7 Guidelines on Employment Selection Procedures, 29
CFR § 1607 T1 — 1 Association, Standards
for Educational and Tests and Manuals (1966).
Pay:
See.
Cir.
906,
Al5
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 15
2. RaciAL DISCRIMINATION
The district court, in applying these standards, per-
manently enjoined further hiring and promotion from
the 1971 man's and the 1973 sergeant's eligibility
rosters. This decision was based on the court's findi
that the 1971 patrolman’s examination, the
Departments background investigation, and the 1973
sergeant's examination each had an adverse impact on
minority candidates and that these selection devices had
not been shown to be job-related. Based on an indepen-
dent review of the record, we hold that the district
court's conclusions were correct.
a. DISPROPORTIONATE IMPACT
Hiring. The district court found that thirty-four per-
cent of the total pool of applicants taking the 1971
patrolman’s examination were black or Hispanic, but
that only ten percent of the candidates actually hired
from the 1971 roster at the time its use was suspended
were members of those minority groupe. In analyzing
the evidence, the court also examined separate com-
ponents making up the hiri process within the
Chicago Police t, and determined that each of
them had a discriminatory impact. We find the court's
factual findings to be supported by substantial evidence
and hold that the disparity produced by
of these components is enough to establish a prima facie
case that the Department's em nt practices were
discriminatory in violation of Title VII.
The district court first looked at comparative success
on the 1971 patrolman’s examination and found that
blacks and ~——— failed at twice the rate of white
applicants.!! endants contend that this evidence is in-
icient to show discrimination because intiffs
failed to show that the disproportionate ilure rate
Al6
16 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
conceives the legal standard to be utilized in deter-
mining whether a prima facie case of discrimination ex-
ists within the meaning of Title VII. Plaintiffs did not
need to show that the examination was devised with the
intent to exclude racial minorities or that a direct causal
relationship exists between an applicant's race and his
applicants as a group: at that poi burden
be on the City t demonstrate chet the 22
fact tested related qualifications. See Griggs, 401
4789, 4794 (U.S. June 8, 1976). „
Second. the distriet eourt found that the Department's
background investigation disqualified a significantly
greater percentage of minority applicants then white
applicants. For example, blacks were disqualified at
twice the rate of white applicants because of a previous
arrest record and at three times the rate of white
applicants because of a tive employment record.
Since 1968, 25.7 percent of black applicants who un-
derwent background investigations were disqualified as
groups. While black
proximately five-thirds
about eight-sevenths the rate of the black group.
latter figure is less impressive than the former one
the rurposes of establishing discriminatory impact.
the background screening in finding that the
Department's employment practices were dis-
criminatory. The court utilized the disparity in screen-
ing results. however, only in conjunction with other
evidence in reaching its conclusion. It was certainly en-
titled to do this, whether it viewed the statistics in terms
— — —
Al7
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 17
Garry or failing. See Green v. Missouri Pac. R.R.,
F.2d 1290, 1294-95 (8th Cir. 1975). Moreover, the
court's ultimate finding was based on the percentage of
white applicants ly hired in contrast to the per-
centage of minority applicants hired. This emphasis on
selection rather than disqualification conforms with the
defendants’ wishes.
Promotion. The district court's finding that the use of
the 1973 sergeant’s roster had an adverse impact on
minority ps is also supported by substantial evi-
dence. the 6,555 patrolmen who took the 1973
sergeants examination, 1,298 were black or Hispanic.
While 1,918 patrolmen achieved a passing composite
score of seventy by combining their examination score
and points for efficiency ratings and seniority, the -
ties agreed, based on previous experience, that only four
hundred of those who passed had any chance for promo-
tion. Only twenty-nine of these first four aundred men
were black or Hispanic. Thus, 2.23 percent of the
minority candidates taking the examination had a prac-
tical chance of being promoted, compared to 7.07 per-
cent of the white candidates.“ We with the dis-
trict court that a prima facie case of discrimination can
be based on this disparity.
Defendants mount two principal attacks on the validi-
ty of these statistics. First, they assert that the
difference between the average performance of black
and white candidates on the written examination is too
slight to support an inference of discrimination. This
argument misses the point, for it is the impact of the ex-
amination on the racial composition of the first four
hundred finishers, not the average impact, that is
significant. The ultimate question is whether substan-
tially fewer minority men than white men
were promoted to the rank of t. average
scores are irrelevant in answering question.
ionate impact on minority applicants is at-
tributable to written examination since the district court
found neither the efficiency ratings nor the seniority fac-
tor had an appreciably differential impact on minorities.
Als
18 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
Second, defendants attack the district court's reliance
on combined statistics for blacks and Hispanics, conten-
ding that separate statistics indicate that Hispanic can-
didates for promotion in fact were as successful as
whites on the examination both in terms of pass rate
and practical success rate. Even assuming that this con-
tention is correct, however, plaintiffs have still made out
a prima facie case that the examination produced a dis-
criminatory impact. If black and Hispanic candidates
are considered separately, the adverse impact which the
testing procedure had on blacks is even more
striking: roy | 1.77 percent of the black candidates,
compared to 7.07 percent of the white candidates, made
the top four hundred places on the roster. Defendants’
argument only goes to the appropriateness of including
Hispanics in the remedy to be imposed to correct dis-
crimination in promotional practices.
b. JOB-RELATEDNESS
The defendants attempted to justify the use of the
selection and promotion practices that excluded minori-
ty candidates at disproportionate rates b introducing
Statistical studies and expert opinion evidence urpor-
ting to establish the job-relatedness of the challenged
devices. The district court found that the validity stu ies
offered by defendants failed to comply with ihe re-
uirements of the EEOC Guidelines and APA Stan-
ards for test validation and that defendants’ experts
failed to establish that any of the selection and promo-
tion devices were demonstrably job-related.
On appeal the defendants seek to challenge the district
court's conclusions by relitigating the probativeness of
the evidence introduced and rejected at trial. The find-
ings of the trial court with respect to this evidence—
Statistical studies and the testimony of expert
witnesses—are perfect examples of subsidiary facts to
which the clearly erroneous standard applies. As this
court has observed, “[t}he resolution of evidentiary con-
flicts is the precise function for which our trial courts sit
land it] is “y | necessary for us to determine on review
whether the findings supporting the 1 — have an
evidentiary base.” Harry Alter Co. v. Chrysler Corp.,
Al9
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 19
: 8, 906 (7th Cir. 1961); Prince v. Packer Mfg.
Co, “io 820 34, 36 (7th Cir. 1969). We should reverse
the district court's findings only if, with due deference
to the trial judge's resolution of conflicting evidence and
to his determination of credibility, we are left with the
definite and firm conviction that a mistake has been
committed. Guzman v. Pichirilo, 369 U.S. 698, 702
(1962). We conclude that no mistake has been made and
affirm the findings of the district court.
The 1971 Patrolman’s Examination. Defendants
sought to show that the 1971 patrolman's examination
was job-related through the testimony of an outside ex-
pert commissioned by the City to conduct a validity
study of the 1971 examination.“ This was a “criterion
validity” study designed to determine whether scores on
patrolman's entry examinations correlated with subse-
quent performance on the job measured by criteria
selected to indicate job success.“ Comparisons were
made between success on the examinations and four
criteria: (1) patrolman efficiency ratings, (2)
43 rt principally relied on results of the 1970 pa-
1. amination. which was accepted by the court *
the parties as the substantial rr of the 1971 test. Me
note that the 1970 examination had the same disproportionate
effect on minorities as the 1971 examination, disqualifyin
blacks at the rate of 77 percent, Hispanics at 70 percent, an
whites at 42 percent.
ve Court nas recently described the
ee — methods for validating employment
tests:
ional standards developed by the [APA Standards,
— —1 note 10] accept three basic methods of
validation: ‘empirical’ or ‘criterion’ validity
(demonstrated by identifying criteria that indicate
successful job performance and then correlating test
scores and the criteria so identified), ‘construct’ validity
(demonstrated by examinations structured to measure the
degree to which job applicants have identifiab
characteristics that have been determined to be important
in successful job performance), and ‘content’ validity
(demonstrated by tests whose content closely 17
imated tasks to be performed by the cant).
(Emphasis added). Washi v. Davis, 44 U.S.L.W. 4789,
4794 n. 13 (U.S. June 8, 1976).
A20
20 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
departmental awards, (3) disciplinary actions, and (4)
performance on sergeant’s promotion examinations and
actual promotion to command ranks. Although the
defendants’ expert testified that this study established
the validity of the patrolman's examination, we are per-
suaded that the district court properly rejected this
evidence under the governing EE Guidelines. Com-
pliance with these Guidelines is generally required ab-
sent some showing that a cogent reason exists for ron-
compliance. United States v. Georgia Power Co., 474
F.2d 906, 913 (5th Cir. 1973).
The correlations between the examinations and each
criterion failed to meet minimum professional re-
quirements. The study showed no correlation between
test performance and disciplinary actions. There was
some correlation with efficiency ratings, but it did not
reach the level of statistical significance required by the
EEOC Guidelines to ensure it was attributable to some
factor other than chance. See 29 C. F. R. § 1607.5(c)(1).
The study did discover a small but statistically signifi-
cant correlation between test performance by white
applicants and departmental awards, but found no cor-
relation for that criterion with respect to black
applicants. The EEOC Guidelines require, where
technically feasible, that an examination separately
validated for both minority and nonminority candidates.
29 C. F. R. 5 1607.5(bX5). The Supreme Court in
Albemarle cited this Guideline with approva!. 422 U.S.
at 435. See also Rogers v. I. Paper Co., 510
F.2d 1340, 1350 (8th Cir.), vacated on other nds, 423
U.S. 809 (1975); Georgia Power Co., 474 F. 2d at 913-14.
Since an adequate minority sample made differential
validation in this study technically feasible, the
Guidelines were not satisfied.
The only valid correlation revealed by the study was
between success on the patrolman’s examination and
subsequent success on the sergeant's examination,
28 to ya ag to command ranks. Under the
EE Guidelines, however, promotability is a proper
criterion for validation only where the “great majority”
of employees can expect promotion within a “reasonable
AZ2l
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 21
period of time.” 29 C. F. R. § 1607. 44e“). This approach
was endorsed by the Supreme Court in Albemarle. 422
U.S. at 434. The district court found thai only four hun-
dred out of twelve thousand patrolmen could expect pro-
motion within a reasonable time.“ negating the impor-
tance of any correlation between performance on the
two examinations. Moreover, the EEOC Guidelines
discount promotability as a valid criterion when the
potential of employees to os high level jobs will
change over time. 29 C. F. R. § 1607.4(c)(1). This would
certainly be the case with a patrolman’s ability to
perform command duties, because some patrolmen will
gain more from experience than others.
The study suffers from a further inadequacy in that it
failed to comply with 29 C. F. R. § 1607.5(b)(3), which re-
quires that the criteria used to predict job performance
“must represent major or critical work behaviors as
revealed by careful job analyses.” See Albemarle, 422
U.S. at 432 n. 30. As the APA Standards note:
[T]he logie of criterion-related validity assumes
that the criterion possess validity. All too often,
tests are validated against any available criterion
with no corresponding investigation of the criterion
itself. The merit of a criterion-related validity study
depends on the appropriateness and quality of the
criterion chosen .... Criterion-related validity
studies based on the ‘criterion at hand’ chosen more
for availability than for a place in a carefully
reasoned hypothesis, are to be deplored. APA Stan-
dards at 27.
No job analysis of the position of patrolman was con-
ducted before the 1971 examination or the 1974 validity
study, indicating that the criteria used in the study were
This statistic is supported by the accepted evidence that
only fifty to one hundr trolmen are promoted to the rank
of sergeant each year. fendants challenge the statistics
relied on by the district court and cite statistics indicatin
that the ratio of promoted persons to patrolmen is one to 3.5.
Even these statistics, however, do not establish that the “great
majority” of patrolmen can expect promotion and that promo-
tion will occur within a reasonable time.
A22
22 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
in fact chosen for their availability rather than because
they would accurately predict job performance. The
Civil Service Commission’s Secretary, Dr. Pounian.
testified that a job description of several paragraphs
was maintained and updated from time to time, but this
was not introduced into evidence. Furthermore, both the
efficiency ratings and the 1973 sergeant's examination
which the study used as criteria of job performance
were found by the district court not to be job-related.
Defendants, relying on the Supreme Court’s recent
decision in Washington v. Davis, 44 U.S. L. W. 4789 (U.S.
June 8, 1976), assert that the district court erred in re-
jecting evidence that performance on the patrolman’s
examination correlated with success in the police train-
ing academy as proof of job-relatedness.!’ The Supreme
Court in Washington held that under the nondiscrimina-
tion statutes applicable in that case,“ a police depart-
ment may use an entry test that predicts success in a re-
quired training program even if that test is not shown to
predict job performance. Although the applicability of
the Court's holding to cases arising under Title VII is
not clear,’* even if a relationship between examination
performance and police academy performance would be
enough to establish job-relatedness for Title VII pur-
poses, we do not read the district court’s opinion as ex-
pressing a finding that such a relationship exists.
16
Although the court eventually concluded that the efficien-
cy ratings were not discriminatory, that conclusion was based
on the absence of a clear disparate impact rather than on con-
vineing evidence of their reliability as measures of job perfor-
mance.
7 In its Costeien granting the preliminary injunction, the
district court stated:
Finally, Defendants sought to show a correlation between
the results of the 1971 patrolman’s exam (and earlier ex-
ams) and performance in the police academy. Again one
would expect a correlation between performance on
written exams. But significantly, defendants established
no corresponding correlation between academy perfor-
mance and patrol job performance. 385 F. Supp. at 556.
D.C. Code § 1-320; see also the Federal Civil Service Act. 5
L.S.C. § 3304a.
See 44 U.S. LW. at 4800-01 (Stevens. J. concurring).
A23
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 23
Moreover, we cannot find convincing proof of this
relationship in the record before us. The only evidence
that would support such a finding is testimony by Dr.
Pounian at the preliminary injunction hearing that
studies in the 1960's showed some correlation between
earlier patrolman examinations and training academy
success. No studies, however, were ever introduced into
evidence. Mere testimony that a test has been validated,
without a record of validation, is insufficient to prove job
relatedness. Albemarle, 422 U.S. at 428 n. 23; 29 C. F. R.
§ 1607.4(a). We therefore conclude that the evidence was
insufficient to establish a relationship between success
on the 1971 patrolman's examination and performance
in the police training academy.
The Back nd Investigation. The district court
found that the Department's background investigation,
which disqualified applicants for employment without
written regulations, standards, or guidelines, was not
demonstrably related to job performance. Defendants
assert that a background investigation to determine the
fitness of individuals to serve in responsible positions of
authority as municipal police officers is job-related on
its face. We recognize that careful screening through in-
vestigation of an applicant’s background can be a useful
device in determining whether an applicant has the per-
sonal qualities required of a police officer. But we are
persuaded that the district court properly concluded
that the particular 1 .— investigation devised
and administered by the Chieago Police Department did
not achieve that purpose.
2 In their supplemental briefs, defendants rely on a section
of the 1972 ow Enforcement Assistance Administration
Report on discrimination in the Chicago Police Department
that cites a 1968 study by the Department showing a correla-
tion between entry examination success and scores on tests
given in the training academy. The LEAA Report, however,
was offered into evidence by plaintiffs over defendants’ objec-
tion and was admitted on a limited basis upon a stipulation by
the parties. The section on which defendants now seek to rely
was not part of the stipulation and consequently was not
before the district court nor before us on appeal.
A24
24 Nos. 76-1115, 76-1152, 76-1205, & 76-1344
The Department’s background investigation
procedures required disqualification of applicants who
evidenced “bad character, dissolute habits or immoral
conduct.” At trial, however, the administrative chief of
the Department’s investigation section was unable to
define these criteria. The evidence showed that as part
of the background investigation the Department in-
quires into an applicant’s social status, financial condi-
tion, arrest and driving records, military, employment
and educational background, and the arrest record of
his family. Yet no evidence indicated what specific
negative information in these areas would trigger dis-
qualification. Moreover, as the district court correctly
noted, courts have found disqualification or discharge in
private sector employment to be impermissible when
based on several of these factors. See, e. g., Gregory v. Lit-
ton Systems, Inc., 472 F.2d 631 (9th Cir. 1972) (arrest);
Wallace v. Debrorn Corp., 494 F.2d 674 (8th Cir. 1974)
(financial condition); Johnson v. Pike Corp., 332 F. Supp.
490 (C.D. Cal. 1971) (financial condition).
Job-relatedness can only be determined where the
criteria for selection are clearly identified. Here, the
vagueness of the governing criteria and the defendants’
failure to offer any articulable standards to guide the
application of these criteria make it impossible to deter-
mine whether the background investigation actually
served to select applicants according to real differences
in job-related qualifications. See Afro-American
Hatrol mans League v. Duck, 503 F.2d 294 (6th Cir.
1974). Accordingly, the district court did not err in
holding that defendants failed to demonstrate that the
background screening procedure as administered by the
Police Department was job-related.
The 1973 Sergeant's Examination. At the
preliminary injunction hearing, defendants introduced
expert testimony and statistical evidence which pur-
ported to establish the concurrent validity and the con-
*: Concurrent validation is a form of criterion-related valida-
tion. See note 14 supra. Two types of criterion-related valida-
tion are professionally recognized: (1) predictive validation,
(Footnote continued on following page)
A25
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 25
tent validity?? of the 1973 sergeant’s examination. To
support a finding of concurrent validity, defendants
offered into evidence a study conducted by Dr. Pounian,
who administered the 1973 sergeant’s examination to
176 incumbent Chicago police sergeants? and then com-
puted the correlations between their scores and their
most recent departmental efficiency ratings. Dr. Pou-
nian testified that his computations established the con-
current validity of the sergeant’s examination. His
testimony was supported at trial by defendants’ expert
Dr. Philip Ash, who performed additional computations
based on data from Dr. Pounian’s study.
The district court rejected their conclusion because
the study failed to meet the EEOC Guidelines. This find-
ing was based on substantial evidence and we affirm it.
First, the use of efficiency ratings as the sole criterion
against which the test was validated was defective un-
der the Guidelines in view of the court’s finding that
those ratings did not accurately measure job perfor-
mance.** See 29 C. F. R. §§ 1607.50b 3) and (el). The
continued
in which test scores are compared with subsequent perfor-
mance on criteria selected to measure job performance,
and (2) concurrent validation, where test scores are com-
pared with current performance on job criteria. APA Stan-
dards at 26. While predictive validation is preferred, “data
obtained in a concurrent study may be used to estimate the
predictive validity of a test.” Id.
An examination has content validity if the content of the
examination matches the content of the job.” Vulcan Society v.
Civil Service Commission, 409 F.2d 387, 395 (2d Cir. 1973).
See note 14 supra; APA Standards at 28.
The 176 sergeants included 88 black/white pairs matched
according to age and efficiency ratings.
There was a good dea! of testimony revealing the vagaries
of the Departments means of measuring efficiency. See
Supp. at 560-61. The efficiency ratings were supposed to be
computed from a checklist of separate ratings for quantity of
work, quality of work, and other specified indicia of job per-
formance. Defendants’ experts computed correlations for each
of these ratings as well as for the overall rating. However
supervisors often assigned the overal! efficiency score an
then manipulated the ratings for each factor to conform to
that score. Thus, the specific ratings gave no better indication
of actual job performance than the overall ratings.
A26
26 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
entire rationale of a criterion-related study requires that
the criterion with which test results are compared be a
good measure of job performance. APA Standards at 27.
Second, even assuming the validity of the criterion
used, the results of the study did not show any cor-
relations for blacks at levels of practical significance.
See 29 C. F. R. § 1607.5(c\(2). As we have already noted,
the EEOC Guidelines require that an examination be
validated for both minorities and whites. 29 C.F.R.
§ 1607.5(b)(5). We do not consider this uirement a
mere technicality. See Albemarle, 422 U.S. at 435.
Where a test excludes minorities from promotion at
disproportionate rates, those who use the test must show
that its use enhances their ability to predict job
rformance for minorities as well as whites and thus
egitimately excludes minorities because of deficiencies
in their qualifications for the job.
The district court also found that the validity of the
study was undermined by serious problems as to Dr.
Pounian’s credibility. That finding is supported by sub-
stantial evidence and we will not disturb it.
The defendants further attempted to show that the
sergeant's examination had content validity as well as
concurrent validity. In support of a finding of content
validity, Dr. Pounian testified that a comprehensive job
analysis was developed in preparation for the 1973 ex-
amination. From this analysis a sergeant’s task list was
drawn up, and these tasks were broken down into six
areas to be covered on the examination: personnel
supervision (twenty-five percent); community relations
(ten percent); investigatory skill: (ten percent); crowd
control and special events (five percent); laws, rules, and
regulations (twenty percent); and judgment (thirty
percent). Dr. Pounian also testified that the items on the
examination bore a direct relationship to the tasks
performed by police sergeants in each area.
The district court found that the sergeant’s examina-
tion lacked content validity, based on evidence derived
from the concurrent validity study. Defendants’ claim of
content validity required them to show that the tasks on
A27
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 27
the examination substantially represented equivalent
tasks on the job.?“ Yet the evidence indicates that incum-
bent sergeants performing successfully in their —1
did not score well on the examination, even though it
consisted of questions that allegedly tested functions
which they perform regularly on the job. The concurrent
validity study showed that when the 1973 sergeant's ex-
amination was administered to incumbent sergeants
who were performing satisfactorily, their average score
was only fifty-three percent, just two percent more than
the average patrolman’s score of fifty-one percent. The
district court noted that the average sergeant could not
have made the practical cut-off point on the sergeant’s
roster even with maximum seniority and a perfect one
hundred percent efficiency rating.
In view of the conflicting evidence, the district court
was not required to accept the conclusions of defendants’
experts that the examination was valid. See Vulcan
Society v. Civil Service Commission, 490 F.2d 387, 397
(2d Cir. 1973). The court could properly conclude that
the evidence of the poor performance of incumbent
sergeants on the examination instead demonstrated that
it was not content valid.
3. SEXUAL DISCRIMINATION
The unchallenged findings of the district court present
a clear pattern of sexual discrimination in the Chicago
Police Department. Women in the Department have
been traditionally segregated into separate positions as
policewomen or police matrons. The number of these
positions has been severely limited. In August 1973 only
115 women held sworn positions within the .
which employed at that time approximately 13.500
sworn personnel. At the time of the preliminary hearing
in 1974, this number had increased to only 160, or about
one percent of the Chicago police force. Policewomen
and police matrons were principally assigned duties
2 The EEOC Guidelines provide that evidence of the content
validity of an employment test may be accepted as evidence of
job relatedness for tests “that consist of suitable samples of
the essential knowledge. skills or behaviors composing the job
in question.” 29 C. F. R. § 1607.5(a).
A28
28 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
relating to the processing and custody of female
risoners and certain duties in the Youth Division.
‘omen were not entitled to compete on the patrolman’s
entry examination nor assigned to patrol work. Only two
women held command positions in the Department, and
their authority extended only to other women.
established policies and practices continued after the
1972 amendments to Title VII brought municipalities
within the ambit of that statute. Evidence that women
have been “limited, segregated and classified” in em-
ployment within the department is undisputed in this
case. These — could be justified only by proof
that sex is a bona fide occupational qualification of those
sitions from which women have been excluded. 42
S.C. § 2000e-2(e1); Weeks v. Southern Bell Telephone
and Telegraph Co., 408 F.2d 228, 232 (5th Cir. 1969);
Bowe v. Colgate, Palmolive Co., 416 F.2d 711, 715-16 (7th
Cir. 1969). The City neither asserted nor attempted to
prove that only men could perform the full range of
police duties.
Instead, the City urges reversal of the district court’s
holding that the Department's practices violated Title
VII on the ground that the initiation of a pilot 4
to study the feasibility of female patrol officers following
the 1972 amendments to the Act was a rational ap-
proach” to compliance. Even assuming that the sup-
porters of the 1972 amendments envisioned some grace
period for municipalities to meet the requirements of Ti-
tile VII. however, the district court concluded, and we
agree, that the City’s actions did not exhibit an intent to
promptly and voluntarily end discrimination. Under the
1972 amendments, Title VII became applicable to
municipalities on March 21. 1972, and the Government
brought suit alleging sexual! discrimination on August
14, 1973. Yet not until June 1974 were the first women
experimentally assigned to patrol duties under the pilot
program. Not until April 1975 were women first en-
titled to compete with men on an entry examination for
patrol officer positions. And not until June 1975 did the
City announce a policy of nondiscrimination against
women in Police Department assignments. Moreover,
these latter actions were taken under compulsion of the
court's November 7, 1974 preliminary injunction.
A29
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 29
The City further contends that it has not illegally dis-
criminated against women because there is evidence of
sexual discrimination in other law enforcement agen-
cies. As the district court correctly observed, it is no
defense to a charge of discrimination that not everyone
else is in compliance with the law. We therefore affirm
the district court’s holding that sexual discrimination
within the Police Department violated Title VII.
C. THE EQUAL PROTECTION CLAUSE
The district court stated that:
[the evidence shows that the City defendants
have knowingly engaged in racial and sexual dis-
crimination in employment and promotion within
the Chicago Police Department. Accordingly, they
have knowingly violated the equal protection clause
: oe Fourteenth Amendment. . 411 F. Supp. at
45.
We reverse the district court’s holding of a constitutional
violation as to racial discrimination and remand the con-
stitutional sexual discrimination issue for further
proceedings.
Our disagreement with the district court on the racial
discrimination issue is the result of the Supreme Court's
decision in Washington v. Davis, 44 U.S.L.W. 4789 (U.S.
June 7, 1976), handed down after the district court’s
final order. In Washington, the Supreme Court held that
racial discrimination within the meaning of the equal
protection clause could not be demonstrated solely by a
racially disproportionate impact. Rather, the Court held,
for constitutional purposes it is necessary to show an in-
tent or purpose to discriminate by reason of race. Thus,
the Court has differentiated between the stand
necessary to prove a violation of Title VII and the stan-
dard required under the Constitution. Under Title VII a
disproportionate racial impact remains enough to es-
tablish a prima facie case while under the Constitution
evidence of intention must be proved. 44 U.S.L.W. at
4791-92, 4794.
A30
30 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
There is no evidence in the record before us that the
Chicago Police Department engaged in purposeful dis-
crimination.” The Department merely followed the com-
mand of Illinois law in administering tests which on
their face were racially neutral. When the district court
stated that the City knowingly engaged in racial dis-
crimination, it may have been referring to the fact that
the Department must have been aware of the racially
disproportionate impact of those examinations. Under
Washington, this is not enough to show intent for pur-
poses of the equal protection clause. See 44 U.S. L. W. at
4792-93. Accordingly, we hold that the hiring and
promotion policies of the Chicago Police Department did
not violate the Constitution.
We remand the case to the district court as to the con-
stitutional sexual discrimination issue because the dis-
trict court, equating the equal protection clause with Ti-
tle VII, failed to deal with the difficult problems which
arise when a claim is made that a sex-based classifica-
tion violates the equal protection clause. See, 8
Weinberger v. Weisenfeld, 420 U.S. 636 (1975);
Schlesinger r. Ballard, 419 U.S. 498 (1975); Note, The
Supreme Court, 1974 Term, 89 Harv. L. Rev. 49, 95-103
(1975). On remand, the district court should also face the
question of whether the intent requirement which
Washington imposed on claims of racial discrimination
also applies to claims of sexual discrimination and if so,
whether the plaintiffs have satisfied the requirement in
this case.?
IV
Based on its findings, the district court entered a final
decree designed both to remedy the effects of past dis-
crimination and to ensure that the City will comply with
the law in the future. The City, the individ defen-
This statement is not intended to apply to the individual
= of the Robinson plaintiffs, which are not at issue in this
appeal.
We note that the district court’s consideration of these
issues is contingent upon the willingness of the parties to
further litigate them.
A3l
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 31
dants, and the Burauer plaintiffs have appealed various
aspects of the decree. We shall consider each of their
contentions individually.
A. MANDATORY QUOTAS
The City and the individual defendants challenge the
propriety of the mandatory quotas for hiring and promo-
tion which the district court imposed as long term goals.
The court ordered the City to appoint at least sixteen
rcent females and forty-two percent black or“
panish-surnamed males to fill future patrol officer
vacancies. It also required that forty percent of the
trol officers promoted to the position of sergeant be
lack or Spanish-surnamed. These standards were to be
in force until further order of the court.”
We hold that the district court did not abuse its dis-
cretion in imposing mandatory quotas upon the Police
Department. Under Title VII Congress has equipped the
courts with wide discretionary power to remedy
statutory violations by fashioning the most complete
relief possible. See 42 U.S.C. § 2000e-5(g); Fra v.
Bowman Transp. Co., 424 U.S. 747, 763-64 (1976);
Albemarle, 422 U.S. at 421. The district court had a
duty to construct a rome 82 — we npn as
far as ible the past effects of discrimination and pre-
vent — in the future. Albemarle, 422 U.S. at
417-18. Moreover, even though Title VII did not become
The decree actually uses “and” rather than “or.” However,
the context makes it clear that the disjunctive form was in-
tended. 0
% In a postdecree order issued September 7, 1976, the dis-
trict court suspended the hiring quotas to allow the City to ap-
point patrol officers from the roster of 1,091 candidates de-
rived from new examinations given by the Department in
1975. The results of that examination, which the district court
found not to have a discriminatory impact against racial
minorities or women, had not been available when the court
entered its final order. Although we are not considering
appeals from the September 7 order as part of this case, we
have ordered that it be made part of the record to ensure that
appeals from the imposition of mandatory quotas contained in
the final decree are not now moot. After considering the
statements of the parties on this question, we hold that the
propriety of the quotas is not a moot issue because they are
still in force as to promotions and because they could be
reinstated as to hiring at any time.
A32
32 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
applicable to the City until 1972, the court had an
obligation to correct the present consequences of dis-
criminatory conduct that occurred before that date.
Robinson v. Lorillard Corp., 444 F.2d 791, 795 (4th Cir.).
cert. dismissed, 404 U.S. 1006 (1971); Local 189, Paper-
makers v. United States, 416 F.2d 980, 987-88 (5th Cir.
1970), cert. denied, 397 U.S. 919 (1971); Quarles v.
Phillip Morris, Inc, 279 F. Supp. 505, 515-16 (E.D. Va.
1968).
At least seven circuits, including our own, have heid
that a court may authorize the use of mandatory racial
or sexual quotas in the exercise of its remedial powers
under Title VII. Southern Illinois Builders Association
„. Ogilvie, 471 F.2d 680 (7th Cir. 1973); Patterson v.
American Tobacco Co., 535 F.2d 257, 273-74 (4th Cir.
1976); Rios v. — 1 ey Local 638, 501 F.2d 622. 628
31 (2d Cir. 1974); United Stotes u. N. L. Industries, Inc.,
479 F.2d 354, 377 (8th Cir. 1973); United States v.
Ironworkers Local 86, 443 F.2d 544, 552-3 (9th Cir.
1971); United States v. Local 38, IBEW, 428 F.2d 144,
149-51 (6th Cir. 1970); Local 53, Heat Workers v. Vogler,
407 F.2d 1047, 1053-54 (5th Cir. 1969). In addition, this
court has held that such preferential relief violates
neither the equa! protection clause nor any provision of
Title VII. Crockett v. Green, 534 F.2d 715, 718 (7th Cir.
1976); Southern Illinois Builders, 471 F.2d at 683-86.
Preferential numerical relief nevertheless remains an
extraordinary remedy, and its use must be justified by
the particular circumstances of each case. In this case
the district court initially rejected numerical relief in its
preliminary injunction order in the hope that a remedy
could be fashioned by agreement of the parties. In its
final order, however, the district court determined that
numerical standards were necessary in view of the are
recalcitrance in voluntarily taking steps to correct the
racial and sexual imbalances within the Police Depart-
ment. In light of the frustrations which the district
court has faced since the beginning of this litigation in
attempting to construct a remedy that did not require
mandatory quotas and its caution in finally imposing
A33
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 33
them, we cannot say that its action was an abuse of dis-
cretion.*
The Burauer plaintiffs also challenge the quotas im-
posed by the district court because, they assert, the re-
quirement that sixteen percent of new appointments to
patrol officer positions be women is both arbitrary and
too low in proportion to the number of female
applicants. There is substance to this contention because
the sixteen percent figure appears to be what was left
after the district court allocated equal quotas of forty-
two percent for both white and nonwhite males. More-
over, 25.9 percent of the applicants for the 1975 patrol
officer’s examination were female.
However, the district court itself noted these problems
in an order issued on March 31, 1976 which is part of
the record in this case. We therefore decline to interfere
with the district court’s discretion until it has had a
chance to correct any underrepresentation of females
that has become apparent since its fina! decree.*!
% Our conclusion that the district court only resorted to the
use of mandatory quotas when no other solution was possible
is buttressed by the September 7, 1976 order in which the hir-
ing quotas were suspended because new testing procedures
yielded nondiscriminatory results. See note 29 supra.
_ We also hold that the district court did not abuse its discre-
tion in. imposing promotion quotas for Hispanics even though
they did as well as whites on the sergeant's examination. in
view of the strong evidence of discrimination against
Hispanics with respect to hiring and their underrepresenta-
tion in command positions, the court may well have deter-
mined that special protection was advisable during the period
of adjustment in the Department's employment practices.
Another reason for not granting specific relief to the
Burauer plaintiffs at this time is that females are not un-
derrepresented on the roster derived from the 1975 examina-
tion, which is the current source for new appointments to the
Department. See note 29 supra.
A34
34 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
B. THE INDIVIDUAL CLAIMS OF THE ISAKSON DEFEN-
DANTS
The Isakson defendants, representing candidates for
patrol officer positions on the 1971 patrolman’s roster,
contend that the district court’s final decree illegally
deprived them of vested rights by permitting the City,
at its option, to disregard the 1971 roster in making new
appointments as long as the mandatory quotas were
met.“ We agree, and vacate this aspect of the decree.
As we have previously noted, the hiring procedure of
the Chicago Police Department is governed by the II-
linois Municipal Code. That statute unequivocally states
that only persons who pass a qualifying examination
may be placed on the eligibility roster for a position
covered by the Code and that hiring for that position
must be hem the eligibility roster, in rank order. III.
Rev. Stat., ch. 24 §§ 10-1-12, 10-1-14. Of course, insofar
as these provisions, as applied, violate the command of
Title VII, their operation must be suspended under the
— clause. Moreover, the City has an affirmative
obligation to develop new tests, within the constraints of
state law, which do not produce illegally discriminatory
results. But the fact that the general testing procedure
set up by the Illinois legislature, as put into practice by
the City, produced results which conflicted with federal
civil rights legislation did not give the district court an
unbridled license to replace the state’s method for selec-
ting police officers with its own. “When a state statute is
assailed because of alleged conflict with a federal law,
the same consideratons of forbearance, the same regard
for the lawmaking power of States, should guide the
judicial judgment as when this Court is asked to declare
The final order, at Part I. subpart 8(b), 411 F. Supp. at
249, laid out the numerical quotas which we have previously
discussed and then went on to state: “So long as they comply
with this requirement of this decree, the Chicago defendants
are authorized to appoint, at their election, but in rank order,
rsons who remain on the eligibility lists based upon the
971 Patrolman's Examination and the 1972 Police-
woman / Matron's Examination.
A35
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 35
a statute unconstitutional outright.” Farmers Union v.
WDAY, Inc., 360 U.S. 525, 546 (1959) (Frankfurter, J.
dissenting). Accordingly, the district court should have
constructed its remedy to preserve as much of the II-
linois statutory scheme as possible.
It failed to do this when it allowed the City to depart
from the 1971 and 1972 rosters in selecting new patrol
officers. It was unnecessary to permit the City to discard
the rosters entirely in compelling it to correct racial and
sexual imbalances in the Police Department. The forty-
two percent of the patrol officers who would be hired
under the decree after the fifty-eight percent quotas for
blacks, Hispanics, and women have been filled must be
— mg from the applicable eligibility rosters, in rank
order.
The Isakson defendants also ask us to hold that per-
sons on the 1971 roster must be hired ahead of persons
on the roster derived from new examinations given by
the Chicago Civil Service Commission in 1975. We
decline to rule on the precedence of the 1971 examina-
tion vis-k-vis subsequent examinations. The district
court’s final order, from which this appeal is taken, was
issued before the results of the 1975 examination were
available. It therefore would be inappropriate at this
point for us to decide the difficult issues of state law
that may arise in determining the rights of persons on
the 1971 roster in light of the existence of the new roster
derived from the 1975 examination.“ We limit our
The decree, while not requiring nonquota patrol officers to
be hired from the rosters, curiously does appear to require
that blacks, Hispanics, and women within the fifty-eight N
cent mandated by the quotas come from the rosters. The
decree states, at Part I, Subpart 8b), 411 F. Supp. at 249
that the quotas shall be followed “subject to the availability of
gualified black, Spanish-surnamed and female applicants.”
Qualified” in this context seems to refer to candidates who
have been listed on an eligibility roster pursuant to Illinois
law. While none of the parties is appealing this portion of the
decree, we note our approval of this requirement.
We again note the existence of the district court’s order of
September 7, 1976, in which it ordered subsequent hiring to
be from the roster derived from the 1975 examinations to the
exclusion of persons on the 1971 roster. A separate appeal
frorn that order has been taken to this court.
A36
36 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
holding in this case to the statement that the City must
utilize the results of some examination given pursuant to
Illinois law in appointing patrol officers.
C. THE INDIVIDUAL CLAIMS OF THE ARADO DEFENDANTS
The Arado defendants, representing patrolmen on the
1973 sergeant's eligibility roster, challenge the portion
of the final order that permitted the City to make per-
manent the temporary promotions to the rank of
sergeant which had been effective since June 1975. The
Arado defendants contend that even if quotas are to be
imposed, the district court erred in allowing the City to
go outside the 1973 roster except to correct racial and
sexual imbalances. For the reasons we stated with
respect to the Isakson defendants, we agree, and vacate
this portion of the final order.
Promotions within the Police Department, like ap-
intments, are strictly govern by the Illinois
funicipal Code. The Illinois legislature has limited
promotions to any position covered by the Municipal
Code to the top three candidates on the relevant eligibili-
ty roster. Ill. Rev. Stat: ch. 24, § 10-1-13. While the dis-
trict court was required under Title VII to suspend this
statutory scheme to remedy illegal discrimination, it
should not have authorized actions contr to the
Municipal Code which were not necessary to achieve this
goal. The temporary appointments to ser t were
made completely at the discretion of the Police Depart-
ment. The Code appears to have been r. exactly
to prevent this exigency. Therefore, we hold that those
appointments cannot be made permanent. Promotions to
sergeant after the forty percent quota has been filled“
— be made from a roster derived pursuant to state
aw.
„ Fulfillment of the forty percent promotion quota, as in the
case of the hiring quota, is subject to the availability of
“qualified” black and Hispanic applicants. Again, this
language presumably directs the Police Department to select
black and Hispanic patrol officers to fill the quota from the
applicable eligibility list—in this case, the 1973 roster.
A37
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 37
D. THE INJUNCTION AGAINST PAYMENT OF REVENUE
SHARING FUNDS
The City defendants finally contend that the district
court exceeded its authority in continuing to enjoin the
federal government from paying the City $76,000,000"
in revenue sharing funds under the State and Local
Fiscal Assistance Act of 1972. We hold that the district
court’s action, based on the Act’s nondiscrimination
provision, was both in tune with the intent of Congress
in enacting the statute and a proper exercise of
equitable discretion in compelling the City to find a
method of hiring and promoting police officers, consis-
tent with state law, that did not discriminate against
racial minorities and women.“
Section 122(a) of the Fiscal Assistance Act. 31 U.S.C.
§ 1242(a), states:
No person in the United States shall on the grounds
of race, color, national origin, or sex be excluded
from participation in, be denied the benefits of, or
be subjected to discrimination under any program
or activity funded in whole or in part with funds
made available under [the Act].
Tze amount withheld appears to be at least this much. The
district court noted that 895.000.000 might be a more ac-
curate figure while the City claimed that over $114,000,000
has been withheld.
* Congress has recently passed, and the President has
signed. a bill adding amendments to the Fiscal Assistance Act
that specifically grant federal courts the power to withhold
funds for violations of the Act's nondiscrimination provision.
See State and Loca! Fiscal Assistance Amendments of 1976
§ 8. Pub.L. No. 94-488, 90 Stat. 2341. These amendments,
which do not take effect until January 1, 1977, have been
made part of the record in this case. The Robinson plaintiffs
have urged that the amendments clarify the original intent of
Congress to permit the district courts to withhold funds. The
City replies that the fact that Congress amended the Act to
add this power indicates that it did not — exist. We
will not resolve this probably unanswerable question because
in determining that the district courts presently have the
power to withhold funds we do not rely in any way on the
passage of the amendments.
A38
38 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
The district court concluded that the City had violated
this provision, based on the court’s prior finding of
employment discrimination in violation of Title VII and
on the admitted use of federal revenue sharing funds to
pay police salaries. The validity of the district court's
conclusion is buttressed by the regulations issued by the
Secretary of the Treasury under section 142(a) of the
Fiscal Assistance Act, 31 U.S.C. § 1262(a), which state
in pertinent part:
In any program or activity funded in whole or in
part with entitlement funds, a recipient government
may not... subject any individual to discrimina-
tion on the ground of race, color, national origin, or
sex in its employment practices. 31 C. F. R.
§ 51.53(a).
Moreover. these regulations state that the standards to
be used in determining whether employment dis-
crimination exists for purposes of the Fiscal Assistance
Act are ordinarily the same as the standards used by the
EEOC under Title VII. 31 C.F.R. § 51.53(b). Since
regulations promulgated pursuant to rulemaking
authority granted by statute have the force of law, see,
e.g.. Federal Crop Ins. Co. v. Merrill, 332 U.S. 380, 384-
85 (1947), we hold that the district court was correct in
finding that the Department’s hiring and promotional
8 violated the Fiscal Assistance Act as well as
tie .
Therefore, the only issues remaining on appeal are
whether the district court had the power to order the
withholding of the federal revenue sharing funds which
are distributed under the Fiscal Assistance Act because
the Act's nondiscrimination provision had been violated
and whether, even if the court had that power, its action
was a proper exercise of discretion. The question of
power can be resolved by examining the structure of the
Act, as illuminated by the administrative regulations
promulgated under it.
The Act provides alternative procedures for enforce-
ment of section 122. First, the Secretary of the Treasury
must seek voluntary compliance by asking the governor
A39
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 39
of the state where the violation is occurring to correct it.
31 U.S.C. § 1242(b). The Secretary took this required
step in April 1974. See 395 F. Supp. at 334.
If the governor fails or refuses to secure compliance,
the Secretary may either refer the matter to the At-
torney General with a recommendation that an ap-
propriate civil action be instituted, initiate ad-
ministrative proceedings.“ or take ~ other actions
provided for by law. 31 U.S.C. § 1242(b). In this case,
the Secretary pursued the first option, and the Attorney
General followed the Secretary's recommendation by
amending the Government’s complaint to allege violation
of the Fiscal Assistance Act. Under section 122(c) of the
statute, the Attorney General may request “such relief
as may be appropriate, including injunctive relief.” 31
U.S.C. § 1242(c).
In view of this statutory scheme, the power of the dis-
trict court to withhold revenue sharing funds is ap-
parent. The phrase “injunctive relief” in section 122(c)
can have only two possible applications: to the dis-
criminatory conduct itself and to the payment of
revenue sharing funds. It would be anomalous to con-
strue “injunctive relief” to allow a court to directly in-
terfere with the activities of state or local governments
but not to permit the less drastic step of enjoining the
payment of federal funds in an effort to force the non-
complying government to itself choose a means of en-
ding ill discrimination. The former involves a
greater abridgement of state or local autonomy by a
federal court than the latter, and therefore the latter is
to be preferred on federalism grounds.
Moreover, to deny the district court the power to with-
hold revenue sharing funds would seriously cripple it in
its efforts to enforce the nondiscrimination provision and
would be contrary to the established policy of permitting
a court to use the full range of its discretion in fashion-
ing equitable remedies. “When Congress entrusts to an
equity court the enforcement of prohibitions contained
* The administrative proceedings are provided for in Title
VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seg.
A40
40 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
in a regulatory enactment, it must be taken to have
acted cognizant of the historic 114 of equity to
provide complete relief in light of the statutory pur-
poses.” Mitchell v. DeMario Jewelry, Inc., 361 U.S. 288,
291-92 (1960). See also Porter v. Warner Holding Co.,
328 U.S. 395, 397-98 (1946). A court is not limited to
simply prohibiting action in violation of a statute, but
may also require affirmative acts to be taken to assure
compliance. See, e.g., Green v. Connally, 330 F. Supp.
1150, 1177-78 (D.C. D.C. (prom court), affd sub
nom. Coit v. Green, 404 U.S. 997 (1971).
Finally, the regulations promulgated by the Secretary
governing enforcement of the nondiscrimination provi-
sion specifically authorize a district court to withhold
revenue sharing funds in a civil action brought by the
Attorney General.“ In light of the deference which we
must give to the interpretation of a statute by the agen-
cy assigned that task by Congress, as well as the other
factors we have enumerated, we hold that the district
court had the power to withhold revenue sharing funds
in order to secure compliance with the Fiscal Assistance
Act’s nondiscrimination provision.
The City advances two arguments to support its con-
tention that the district court lacked the power to
withhold revenue sharing funds. First, it asserts that
funds may not be withheld unless the state or local
government in question is out of compliance with a court
order, and that it has fully complied with all the affir-
mative requirements of the district court’s preliminary
injunction and final order. As a matter of law, it is
dubious whether a district court’s power to withhold
funds is contingent upon the defendant’s disobedience of
„31 C. F. R. § 51.59(d) states in pertinent part:
Nothing in these regulations is intended to preclude the
United States, in a civil action initiated by the Attorney
General of the United States pursuant to section 122(c) of
the Act, from seeking, or a court from granting, an order
to require the repayment of funds previously paid under
the Act, or an order that the payment of funds under the
Act be terminated or withheld.
44
A4l
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 41
the court’s own injunction or order.“ In addition,
however, the City’s statement that it has fully complied
with the district court's injunction and final order is at
odds with the district court’s finding that “the City
defendants have done virtually nothing to alleviate the
effects of their discrimination” since the issuance of the
preliminary injunction, contrary to the mandate of that
injunction and the Fiscal Assistance Act. See 411 F.
Supp. at 244. The key to complying with the
4 4—— and ending discrimination within
the Police Department was the development of new tests
that would produce nondiscriminatory results. At the
time the district court entered its final order, the City
had not yet demonstrated that it was willing to
construct nondiscriminatory examinations, and the
withholding of revenue sharing funds during the inter-
val between the issuance of the preliminary injunction
and the entry of the final order was properly perceived
by the district court as a necessary tool in prodding the
City toward ending discrimination.
The City relies on Adams v. Richardson, 351 F. Supp. 636
(D.C. D.C.. affd in part. 480 F.2d 1159 (D.C. Cir. 1971) fen
banc), and Lee v. Macon County Board of Education, 270 F.
Supp. 859 (M.D. Ala.) (three-judge court) (per curiam), affd
sub nom. Wallace v. United States, 389 U.S. 215 (1967), as
authority for this proposition. Both of those cases, however,
dealt with the authority of the Secretary of Health, Education
and Welfare to withhold federal funds in the face of a federal
court order. courts in Adams and Lee refused to allow ex-
ecutive branch officials to interfere with the equitable discre-
tion of federal courts in choosing particular remedies to end
discrimination. There are regulations promulgated under the
Fiscal Assistance Art permitting the Secretary of the
Treasury to withhola revenue — funds on his own
authority pending action by a court; following the logic of
— I. that the court has not yet resolved the
uest ion of withholding. 31 C. FR. § 51.59(c). But the power of
the court itself to withhold funds when a state or loca! govern-
ment is subject to a court order enjoining discrimination—
particularly as in this case when the court that seeks to
withhold the funds is the same court that issued the
injunction—presents far different considerations. The danger
of interference with the discretion of the district court enter-
ing 1 —— order designed to end discrimination is
muc
A42
42 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
Furthermore, the district court retained the power to
continue the withholding of funds after it had issued its
final order. Given the recalcitrance of the City in devis-
ing its own remedy, the court could logically require
that portions of the funds be paid out only after the City
had taken steps to comply with the order.
The City’s second argument is that the district court
lacked the power to withhold funds absent a con-
stitutional violation. But as we have already noted, dis-
criminatory conduct which violates Title VII is enough,
without proof of a constitutional infirmity, to establish a
violation of the Fiscal Assistance Act’s nondiscrimina-
tion provision. It would be anomalous to not permit the
district court to enforce that provision, which is itself
statutory, simply because the City has not violated the
Constitution as well as Title VII.
The City also asserts that even if the district court had
the power to withhold funds, it abused its discretion in
doing so in this case. We disagree. The district court has
demonstrated unusual patience with the defendants
throughout the course of this litigation. We have already
alluded to the City’s failure to take affirmative steps to
end discrimination in the Police Department following
the preliminary injunction in 1974. In addition, the
City’s unilateral suspension of the interim hiring agree-
ment and its failure to promptly eliminate purposeful
sexual discrimination in the Department after entry of
the preliminary injunction lend support to the district
court's decision both initially to withhold revenue shar-
ing funds and to continue to withhold them until com-
pliance with its order is assured.
The City further urges that the district court should
only have withheld that portion of the funds allocated to
the Police Department, rather than the entire sum ear-
marked for the City of Chicago, because any discrimina-
tion occurred solely within the Department. The City
relies on Gautreauz v. 457 F.2d 124 (7th Cir.
1972), where this court held a district court could
not enjoin the payment of federal funds to Chicago's
Model Cities because of discrimination in
federally financed activities of the Chicago Housing
Authority.
ee
A43
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 43
The key to the Gautreaux decision was that an insuf-
ficient nexus existed between the failure of the Chi
City Council to approve blic housing sites in
predominantly white areas and payments by the Depart-
ment of Housing and Urban Development to the Chicago
Model Cities program, which was untainted by dis-
crimination. This case presents different facts. In
contrast to the situation in Gautreauz, all of the funds
withheld by the district court were to be paid to one set
of local officials pursuant to one statute. Also, between
1972 and 1974, when payments were suspended, 97.7
percent of the revenue sharing funds paid to the City
were allocated to — safety, with 75 percent of those
funds going directly to the Police Department. Thus, the
relationship between the funds withheld and the dis-
criminatory conduct at issue was considerably closer in
this case than in Gautreaux. Moreover, there was
evidence that if the district court withheld only of
the funds the City might change the allocation of funds
to the Police Department in order to avoid the effects of
the district court’s order. See 395 F. Supp. at 344. Ac-
cordingly, we nold that the district court did not abuse
its discretion in withholding all of the funds earmarked
for the City of Chicago under the Fiscal Assistance Act.
The judgment of the district court is affirmed in part
and reversed in part, and the cause is remanded for
further proceedings consistent with this opinion.
A44
44 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
PELL. Circuit Judge, dissenting.
Being of the conviction that some one hundred
millions of dollars of federal revenue sharing funds were
improperly and needlessly withheld from the City of
Chicago and that what should have been stayed was the
equitable hand of the district court rather than the flow
of essential operating funds to one of the largest
metropolises of this country, I respectfully dissent from
that portion of the majority opinion dealing with the
withholding! of the revenue sharing funds.“
We need not take judicial knowledge of the financial
light of large cities, that is a matter of common
nowledge; yet when a reading of the necessarily
extended opinion written by Judge Swygert is com-
pleted we find that only one paragraph has n devoted
to whether the withholding of this substantial sum
constituted such an abuse of equitable discretion as to
require reversal. Irrespective of whether the district
court had the power it exercised with regard to these
funds, and I generally entertain the idea that a federal
court acting in equity inherently must and does possess
the power to fashion a remedy appropriate to the
accomplishment of proper ends,’ it appears to me from a
review of the reported proceedings that the district
Although the funds were escrowed, the district court re-
fused to place the withheld funds in an interest-bearing
account.
Other than with regard to the withholding issue, I am in
genera! eement with the result reached in the majority
opinion. Although basically confining ay dissent to the matter
of the withheld revenue sharing funds, | will. after discussing
that issue, set forth a few observations which | believe to be
appropriate to other matters raised by the present litigation.
ln an equity case, the nature of the violation determines the
scope of the remedy. Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1, 16 (1971). This would not appear to me
to be the basis for justifying a remedy where there has been
no violation or justifying a remedy substantially broader than
tnat called for by the violation. *
+ United States v. Cit Chicago, 385 F.Supp. 540 (1974);
385 F.Supp. 543 i974), N 4 329 1973) 411 F.Supp.
218 (1976); 416 F.Supp. 788 (1976); 420 F.Supp. 733 (1976).
(All in the Northern District of Illinois, and all references in
this dissent. unless otherwise noted. to “district court” will be
to that court.)
A45
Nos. 76-1113. 76-1152, 76-1205, & 76-1344 45
court, assuming for the sake of the argument that it
ed the power it exercised, prematurely and
improvidently exercised it.
The reported cases referred to above as well as the
majority opinion set forth in considerable detail the
events and happenings in this protracted litigation
which has occupied an inordinate amount of time of the
district court and a substantial amount of time of this
court in its several trips here. Nevertheless, it appears
advisable to me to set forth the salient factors which
apoeee to me to have culminated in the improper action
of withholding.
On April 24, 1974, the district court consolidated
various cases charging discrimination in police depart-
ment practices.“ More than two months prior to that
date, following unsuccessful efforts in administrative
proceedings to cut off the flow of revenue sharing funds
to Chicago (the City) certain of the individual plaintiffs
filed a civil suit in the district court of the District of
Columbia (D.C.) to achieve the same objective. The City
was not made a gt! although it was aware of the
litigation. The D.C. litigation had not been met with
success as of November 7, 1974, at which time Jud
Marshall entered a aay wy injunction in the
Northern District of Illinois.“ The Marshall injunction in
no way was concerned with the matter of the disburse-
ment of revenue sharing funds. Although the D.C.
—— were also plaintiffs in the Northern District of
llinois, where the City was a party, the efforts at
stopping the money to the City were at that time
confined to the D.C. litigation.
The Marshall preliminary injunction that was
— putting it very simply, prohibited further
iring of patrol officers and the advancement of officers
to the rank of sergeant discriminatorily toward females
and black and Spanish surnamed males. The district
court recognized that because of the pending action the
385 F. Supp. 540.
* 385 F. Supp. 543.
A46
46 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
City had refrained from hiring patrol officers and from
promoting officers to the sergeant rank, and that
eventually, the shortage of patrol officers will become
critical in a city the size and complexity of Chicago.“
The court nevertheless was of the opinion that the
injunctive relief “would be required as the only effective
remedy pending development by defendants of valid
testing procedures.“ (Emphasis added.) Nowhere do |
find in the record of this case any persuasive reason for
thinking that if this injunction had been enforced by
normal and traditional means available to equity courts
the desired objective of elimination of discrimination
could not have been achieved without resorting to the
extraordinary procedure of stopping operating funds,
the lifeblood of a complex metropolis, which city in this
case ultimately had to turn to commercial banks for
loans with which to meet the crisis when the federal
funds were in fact stopped.
Further, it is quite clear that the City had no intention
to violate the crisp and explicit terms of the preliminary
injunction. Indeed in the month following its entry, the
parties had reached an agreement which the court
approved on December 16, 1974, for the hiring of police
officers according to a specified schedule. The purpose
of the agreement was to alleviate a critical shortage of
police officers attributable in part at least to the
preliminary injunction.’ It is patent, of course, that those
plaintiffs concerned with non-discriminatory hiring of
lice officers were in agreement that the scheduled
irings were not discriminatorily tainted. Equally
obviously the agreed order did not purport to correct
any existent disproportionment, for the preliminary
injunction was keyed only to future hiring and did not
mandate discharge of existing police officers to achieve
a balance in the existing force. Indeed, the preliminary
injunction itself did not require any one to be hired; it
merely, as stated, enjoined discrimination when hiring
did occur.
Id. at 547.
Id. at 548.
* 395 F. Supp. at 336.
A47
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 47
As of December 16, 1974, the defendants had every
reason for thinking that everyone was well on the way to
an amicable solution to formidable problems. The aim |
—1— of the City based upon examinations whic
ad been thought of as achieving job-related results had
been found wanting by a federal judge who had
determined that the resulting disproportionate impact
required judicial correction in future hiring practices.
Following negotiation by the litigants steps were
outlined for going forward with interim hiring, and in
the meantime work was underway for devising new
examinations which — happily achieve both job-
relatedness and a racially and sexually proportionate
situation.
The rosiness vanished from the picture two days later,
December 18, 1974, when Judge John Lewis Smith, Jr.,
in the D.C. district court entered an injunction enjoining
the Office of Revenue Sharing officials from making
further payments of federal revenue sharing funds to
the City until further order of the court and in no event
until the entry of a final order in the Northern Illinois
litigation with the defendants in that litigation (they
were still not parties in the D.C. litigation) giving
formal assurances of compliance and continuing to
monitor compliance thereafter. Inasmuch as Judge
Smith's injunction was based upon the November 7
decision of Judge Marshall, we must turn to that to
attempt to discern why the D.C. judge thought it
necessary to impose what I regard as an extraordinarily
unitive sanction. There could have been nothing before
udge Smith to show lack of compliance or lack of intent
to compiy with the November injunction; nor was there
any basis for thinking that the final order of injunction,
if one were entered, would be any broader than the
November preliminary injunction. Indeed, the final
injunction was narrower in scope.“
© The district court had preliminarily enjoined the use of
departmental! efficiency ratings based on a finding that they
were 1 — discriminatory. In its final decree the court
reversed itself and found that such efficiency ratings were not
discriminatory. The same is true for assignments within the
department which the court found to be nondiscriminatory.
The court also rejected claims that a 1970 lieutenant's ex-
amination was invalid under Title VII.
A48
48 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
When we turn to the November findings of. Judge
Marshall upon which the withholding injunction of
Judge 1 based, we must note that the judge
who made those findings regarded them only as
establishing “a prima facie case of de facto discrimina-
tion in employment and promotion.“ (Italics in the
original.) The prima facie case was established by the
resultant imbalance which followed the past hiring and
promotion practices and did not rest upon any deter-
mination of an intentional and invidious determination
to discriminate. This imbalance, however, was deemed
sufficient to warrant a preliminary injunction. The
infirm basis that the findings and reliminary injunc-
tion of November constituted for Judge Smith's order is
clearly demonstrated by the following characterization
by Judge Frank in Hamilton Watch Co. v. Benrus Watch
Co., 206 F.2d 738, 742 (2d Cir. 1953):
The judge's lega’ conclusions, like his fact-
findings, are subject w ge after a full hearing
and the opportunity for more mature deliberation.
For a preliminary injunction—as indicated by the
numerous more or less synonymous adjectives used
to label it—is, by its very nature, interlocutory,
tentative, provisional, ad interim, impermanent,
mutable, not fixed or final or conclusive, character-
ized by its for-the-time-beingness. It serves as an
equitable policing measure to prevent the parties
from harming one another during the litigation; to
keep the parties, while the suit goes on, as far as
possible in the respective positions they occupied
when the suit began.
Further, it is to be noted that Judge Marshall rested
the granting of the preliminary injunction on the doubie
prongs of constitutional and statutory deficiency. But as
we now know from the subsequently decided Washing-
ton v. Davis. U.S. ..... (1976), official acts are not
unconstitutional solely because they have a racially
disproportionate impact.
i 385 F. Supp. at 55°
449
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 49
Eventually, after some unsuccessful efforts to remove
the ban on receipt of the revenue sharing funds by way
of collateral attack in the Illinois district court and this
court, the City hied to Washington, as with hindsight it
should have in the first place, and, after unsuccessfully
attempting to secure direct relief there, did secure the
transfer of the D.C. proceedings to the Northern District
of Illinois whereby they became a part of the ongoing
litigation before Judge Marshall. It might appear that
the story was now ready for a happy ending but in the
meantime the City’s expeditious negotiation followin
the November injunction provided the stumbling block
rather than the paving stone to early solution of
problems. Under the December agreed order, which, it
must be understood was not an order emanating from
Judge Marshall to which he secured agreement but was
instead one upon which the parties had agreed and
which the judge then approved, the first group of
applicants were to report for training on January 6,
1975. On January 2, 1975, the Acting Superintendent of
Police issued the following notice:
It now appears unlikely that the federal revenue
sharing funds due on Monday, y <9! 6, 1975, will
be received by the City on that date. Inasmuch as a
substantial portion of these funds was to be used for
the payment of 4 — salaries, the Comptroller has
suggested, and I have directed, that the proposed
hiring of 200 police candidates on Monday, January
6, 1975, be deferred until this matter is resolved in
the pending litigation in the federal court. I have
also directed that the 200 candidates scheduled to
report for training on Monday, January 6, 1975, be
immediately notified of this unfortunate, but neces-
sary decision.
The novelist who charts his plot line so as to embroil
his characters in confrontations finds timing a necessary
instrument. As in the case of the contrived plot, if
something had — 4 — earlier or later, how different
the results would have been! Here if the ———
injunction had come down before the negotiations ha
reached agreement, it is entirely reasonable to think
that the City would have first addressed itself to getting
A50
50 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
its rating funds restored. | have no reason for
thinkin that the City would not have been successful
before Judge Marshall, who was aware at the time that
the City was progressing toward the — x of a
new patrol officers’ examination which, hopefully would
meet the requirements of law.“ and who had recently
expressed the opinion that “(ijt is far better in cases of
this nature that the remedy come from the parties
rather than the court.” There simply would have been
insufficient motivation before the court to require the
continuance of the crippling suspension of revenue
sharing fund payments. Conversely, if the order by
Judge Smith had been delayed until after the agreed
order plan had been implemented, Judge Marshall when
asked to reconsider Judge Smith’s injunction when it
was properly before him would have been able to do so
in the light of the fact that the City was not only obeying
the purely negative aspects of his November injunction
by not hiring or promoting but was also affirmatively
going forward with a negotiated plan for elimination of
the disproportionate aspects resulting from_ practices
found by him to be deficient statutorily and constitu-
tionally.
iming, however, was not right and early January
of 1958 ( — one of the largest municipalities in the
nation facing the immediate loss of nearly 20 million
dollars which had been budgeted by ft and which the
paying Government had thus far intended to pay, not
doing so solely because of a court injunction. The
prospect was that a like amount would be stopped eac
quarter thereafter unless the injunction could be lifted.
Quite understandably, the City findin — r —
introduced as to the matter of payment of those a J
on the payroll abandoned its planned yt —
increases and turned its attention to getting itself bac
on the federal payroll. The same period of time found a
federal judge, who had regarded the agreed — as
permissive although the parties had cast it in mandatory
2 385 F.Supp. at 548.
d. at 561.
4 *
As!
Nos. 76-1113, 76-1152. 76-1205. & 76-1344 51
language.“ now incensed at the ex parte failure to
comply with that order, which refusal the district court
later characterized as “the arrogant, contumacious
refusal by the City defendants to honor their interim
hiring agreement and our order approving it of
December 16, 1974.”5 The confrontation and its resul-
tant deleterious effect on the working out of the societal
problems inherent in this litigation were inevitable as
was the snowballing crystallization of antagonistic
attitudes between these two branches of government.
Early in the period of confrontation it might have
seemed that the simple judicial answer would have been
that jurisdiction of the withholding injunction now bein
in Illinois, the withholding injunction would be vacated
until further order of the court provided that there was
promot compliance with the December agreed order.
his would seem to have been the position of the federal
government which on January 20, 1975, responded,
consistently with the position it had taken when the
action was pending in the District of Columbia, that the
withholding order should be modified as requested by
the City. The Government added, however, that in view
of the City’s refusal to implement the interim hiring
agreement and to give assurances that it would com ly
with the court’s order of November 7, 1974, further
revenue sharing payments should not be made to the
City. Although the Government thereby was retreatin
from its earlier position that the flow of the funds should
not be stopped, nevertheless the fact is patent that the
appropriate authorities of the Government having to do
with the payment of these funds were willing to have
the payment released that should have been paid on
January 6, 1975. Further, while the City had perhaps
not given formal assurances that it would comply with
the November order, there had been no failure to
comply nor any indication that there would be such a
failure. The only real factor in the Government's new
position on future payments was the failure of the City
to proceed with the interim hiring notwithstanding the
cutoff of revenue sharing funds. Indeed. as late as
2395 F.Supp. at 346.
411 F.Supp. at 224.
A2
52 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
January 5, 1976, the court stated that the Office of
Revenue Sharing defendants had been ambiguous and
faltering on the matter of withholding and that “it is not
clear that they would continue to withhold those
payments should the injunction be dissolved.” The
court also at that time observed that the Department of
Justice had taken an ambiguous stance.”’
Also, when early in 1975, the district court had before
it the matter of modifying or vacating the D.C.
injunction, it could have resorted to traditional methods
of enforcement of injunctions, as it was urged to do by
the plaintiffs as to the mandatorily worded interim
hiring agreed order. Although expressing regret subse-
quently that it had not done so, the court took what
appeared to it at the time to be the wiser course!“ and
neither compelled compliance by traditional methods
with the interim hiring order nor ruled on the City’s
motion to modify the D.C. injunction. Instead the court
deferred these matters until the trial was underway,
and they were not the subject of formal judicial action
until the memorandum decision of April 21, 1975. In the
meantime positions had solidified, and the resultant
aggravations increased the difficulties of negotiated
solutions which had seemed so happily on the way prior
to the granting of the D.C. injunction. Reality, of course,
requires recognition of the fact of litigation life that,
while parties have relatively great freedom in nego-
tiating with each other toward an agreement, a judge
who believes. rightly or wrongly, that his order has been
willfully violated is less amenable to a bargaining
process to secure compliance.
Another fact which appears inescapable to me is that
at the time these early 1975 motions were before the
court, the course which appeared wiser to the court was
also probably the easier way. A last resort remedy,
which I consider the withholding of revenue sharing
funds to be, implicitly is the one that is most likely to be
% 411 F.Supp. at 245.
d. at 246.
1 Jd. at 224.
2395 F.Supp. at 338.
A53
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 53
drastic in its effect. Certainly the withholding of
millions of dollars from financially plagued megapolitan
cities is a device 23 to bring them quickly to their
knees. It is because of the stringency of this remedy that
I regret the majority opinion of this court did not come
down hard on the proposition that such withholding
while a potential remedy is a last resort one by holding
that in this case the last resort stage had not been by
any means reached. A trial judge confronted with the
problems of the type here involved should not be
permitted to yield to the song of the siren.
In addressing the issue of whether the withholding
injunction should be vacated,” the district court, after
reciting the background, dealt with and denied various
legal arguments advanced by the City. Irrespective of
whether I am able to agree with the district court's
disposition of these, I shall not lengthen this dissent by
treating them because my principal concern is with
what I regard to be the larger issue of the misuse of
equitable power. The district court disposed of the
equitable discretion issue in seven par:.graphs*! with
principal reliance being placed upon the City’s uni-
lateral suspension of the hiring which was to have taken
place under the December 16 agreed order. The court
found inescapable the conclusion that the City canceiled
the interim hiring program, found by the court to
involve $350,000 for the first quarter of 1975, in an
attempt to lever loose $19,000,000 in revenue sharing
funds. Indubitably the City did abandon further hiring
despite its needs for replacement patrol officers; how-
ever, the court's reasoning ignores the facts that the sum
of $350,000 was just the first quarter cost estimate and
would be a continuing cost item in the future. At this
point because of the inaction of the court, the prospect of
a change in the receipt of revenue sharing funds was a
bleak one. Further, whiie $350,000 may have —
on the petty side to the court when compared with
$19,000,000, the City was now facing the fact that
without the larger sum it would still nave to meet the
*» 395 F.Supp. at 339 et seg.
2) Jd. at 344-45.
A54
54 Nos. 76-1113, 76-1152, 76-1205, & 76-1344
budgeted payroll of the existing police force. A third of
a million dollars it would reasonably seem would con-
stitute the aphoristic straw.
The district court also in considering the equitable
discretion issue referred to the fact that the promised
new patrol officer examination had not been forthcom-
ing. Over and above the fact that the incentive to forge
ahead with the development of this plan had been
seriously diluted when it was becoming evident that the
City was going to have difficulty in securing a substan-
tial portion of the sum needed to pay the patrol! officers
already on the payroll, the fact appears obvious to me
from an examination of the massive record in this cause
that the matter of an a priori determination that a plan
for the hiring of police officers would achieve those best
qualified to serve in that capacity is an extremely dif-
ficult task. A federal district judge who is faced with
the awesome task of saving that methods of selection are
truly job-related or not jab-related is deserving of great
sympathy. Certainly Judge Marshall in the instant case
can be said to have given every ounce of devoted atten-
tion to the best possible resolution of the thorny
questions involved. Nevertheless, from the point of view
of the devisers of the plan who had to produce methods
which at once would achieve job-relatedness and would
not be violative of Title VII, the problems were also
awesome. From my own observation of this record, I
could entertain real doubts as to whether the matter of
an equation between performance on examinations and
performance in the field would be susceptible of advance
determination but would necessarily be dependent upon
an examination of the actual performance. Even this
post hoc approach would not seem productive of scien-
tific certitude as at least some of the evaluation of actual
performance would be based upon human subjective
considerations.
The majority opinion of this court obviously does not
agree with my evaluation of the stringency of the
withholding remedy and states that the direct inter-
ference with activities of local government is more dras-
tic than the withholding of federal funds. While the
district court here engaged in both the direct and in-
direct forms of interference, I cannot agree with the
majority premise that the withholding lacks stringency
Ass
Nos. 76-1113. 76-1152. 76-1205. & 76-1344 55
of the greatest magnitude. Stopping the flow of lifeblood
to a body is certainly more fatal than enjoining that body
from certain activity. In the context of the states’ power
to tax, a great Chief Justice long ago observed that the
power to tax involves the power to destroy.“ It appears
to me that the power to withhold operational funds from
a municipality has an equally destructive potential. As
the district court itself observed, the philosophy of the
Fiscal Assistance to State and Local Government Act. 31
U.S.C. § 1221, “is to return to state and local govern-
ment a portion of the individual federal income taxes
paid by the inhabitants of the territory governed by the
state and local government.” (Emphasis added.)“ Implicit
in the recognition that upon ultimate analysis the City
was Just getting its inhabitants’ tax money back for its
own uses was the court’s further observation that “(t]he
funds are payable to the state and local governments
almost as a matter of right on a quarterly basis.“
Illumination upon the stringency of the withholding of
federal funds is found in an analogous situation in the
remarks of Senator Hubert Humphrey. the Senate
Manager of the 1964 Civil Rights Act:
The objective of title VI is, and should be, to end
discrimination, and not to cut off Federal funds. In
its present form, title VI is drafted on the theory
that cutoff of funds should be avoided if racial
discrimination can be ended by other means. It
encourages Federal departments and agencies to be
resourceful in finding ways of ending discrimina-
tion voluntarily without forcing a termination of
funds needed for education, public health, social
welfare, disaster relief, and other urgent programs.
Cutoff of funds needed for such purposes should be
the last step, not the first, in an effective program
t end racial discrimination. Title VI would require
that funds be refused or terminated if other
methods of ending discrimination are not available.
or have not proved effective. But it would allow
Federal departments and agencies to try such other
methods first.
* MeCulloch u Maryland, 17 U.S. (4 Wheat.) 159. 210 (1819).
* 411 F.Supp. at 244.
2 Id.
A356
5% Nos. 76-1113. 76-1152. 76-1205. & 76-1344
Mandatory, immediate cutoffs of Federal funds
would defeat important objectives of Federal legis-
lation, without commensurate gains in eliminating
racial discrimination or segregation. {110 Cong.
Rec., p. 6546.)
Termination of assistance, however. is not the
objective of the titlhe—I underscore this point—it is
the last resort. to be used only if all else fails to
achieve the real objective. the elimination of
discrimination in the use and receipt of Federal
funds. This fact deserves the greatest possible
emphasis: Cutoff of Federal funds is seen as a last
resort, when all voluntary means have failed. Id. at
— 6544.)
This attitude toward the stringency of the remedy was
also reflected in the present litigation by the response of
the federal defendants to plaintiffs’ renewed motion for
summary judgment:
The withholding of revenue sharing payments to
a recipient govenment can have the result of
ted programs being terminated, taxes being
increased, employees being laid off. services being
denied and other adverse effects. The fact that these
funds will eventually be released some time in the
future certainly does not mitigate the present fiscal
plight which they would be experiencing. .. .
It is also of some significance that in the district court
the position of the City in seeking vacation or modifica-
tion of the withholding order was supported by amici
curvae briefs filed by the following responsible civic
organizations: the Chi Bar Association, the Chica-
o Crime Commission, the Civic Federation, and the
Southeast Chicago Commission. These organizations
which recorded their long standing stance against
sexual and racial discrimination asserted that the eco-
nomic sanction of revenue sharing termination was in-
appropriate in the circumstances of this case. The
district court 2 found little significance in
their support of the City because of eir lack of
familiarity with the record of this case.“ Nevertheless,
411 F.Supp. at 228-29.
457
Nos. 76-1113. 76-1152. 76-1205. K 76-1344 57
1 f } . } * i
The majority opinion finds a preference wi
ing funds as an enforcement’ means 22 —
grounds. The Stringency of the remedy, however, ap-
pears to me to be inconsistent with the trend of recent
controlling decisions in the federalism area. See the dis-
cussion in § 52A. “Our Federalism.” of Professor Charles
Alen Wright's Law of Federal Courts. 3rd ed., 1976 at
<4 et seq. tracing the developments initiated by
Younger *. Harris, 401 U.S. 37 (197 1), through Huffman
6. Purewe, Ltd.. 420 U.S. 592 (1975). We also should not
unmindful that the Congress at one time provided for
procedures, now happily substantially eliminated from
ederal jurisprudence. whereby interference with fun-
damenta! State procedures required the convening of a
three-judge district court because of the likelihood of
public resentment at such action occurring as the result
of the action of a single judge. See Wright, supra at 213.
While I would entertain serious d 8
power of the district court at the e
enjoin the payment of the federa! funds in the absence of
é showing that there had been noncompliance with an
injunction against discriminatory action, a situation
which was certainly true at the time Judge Smith
entered the origina! withholding injunction, in the light
or cases such as Adams and Lee, cited in note 40 of the
— 7 opinion, I have. as previously indicated, not
th . it necessary to pursue this aspect of the case in
view of what I regard as the serious misuse of the power
to the extent to which it may have existed.
Unfortunately in the realm of hu
"ei man relat
oration of problems arising therefrom hove io —
thing as instant replay. The crystallization of attitudes
* Further, the situation as to the existence of the power in
; and
Fiscal Assistance Amendments of 1976. l w
4946. | would, however,
1 > agves merely 20 nintitis’ contention that the
existence all along of the — — oe
AS8
5 Nos. 76-1113. 76-1152. 76-1205. & 76-1344
and aggravations, real or believed to be real, all too
often nullify the possibility of retracing steps toward an
amicable and desirable solution. Here | am convinced
that the withholding of needed revenue funds came
about not because of any necessity but through a set of
unfortunate circumstances which improperiy delayed
ae ag which the district court was so assiduously
seeking. ,
As a culmination of the developments which have been
set forth—the antagonisms, the cross-pur and,
indeed, the loss of perspective inevitably the order of
February 2. 1976. under review here. perpetuated this
unfortunate comedy of errors. I would therefore reverse
the order enjoining the 3 of the revenue sharing
funds and order all suc funds not heretofore released
paid forthwith to the City.
As previously indicated in this dissent. J am in
general agreement with the result reached otherwise in
the majority opinion. I nevertheless find it necessary to
remark upon certain phases of the issues presented to
this court in the present appeal.
I. Mandatory Quotas. Despite the fact that several
courts have found resort to the imposition of mandatory
quotas to be the only practicable solution to the
problems presented by either racial or sexual discrimi-
nation, it appears to me that this resort should only
occur when the circumstances ar of an in extremis
nature. I regard this to be particularly true when the
matter is the composition of a police aepartment. In
today’s climate of increasing crime, with accompanying
increase of public indignation and fear. the only
standard for police department composition at every
echelon should be, in my opinion, the very best possible
person obtainable for the work to be performed.
meeting this standard means that the makeup of th
department is disproportionately high with minority
groups in relation to their position in the population
jicture, this would be more desirable than their being
imited by the artificial limitation which is implicit
when a quota has been imposed. It is for that reason no
doubt that minority groups themselves do not consistent-
lv favor a quota system. It would appear fortunate that
AS9
Nos. 76-1113, 76-1152. 76-1205, & 76-1344 59
in later proceedings in the district court in the present
litigation, which proceedings are not now before this
court for review, the district court is amenable to
deviating from strict adherence to the quota system in
accordance with its own expressed distaste for that
system.
2 The Isakson Defendants. The majority opinion at
one point in relation to these defendants indicates that
the 42 percent of the patrol officers “must be selected
from the applicable eligibility rosters, in rank order.”
Insofar as this is stating, which it appears to be doing.
that the 42 percent should have been hired from the
1971 patrolman’s roster, it would seem to me to be
inconsistent with the result thereafter reached in the
opinion that it would be inappropriate for this court to
decide the difficult. questions of state law that might
arise in determining the rights of persons on the 1971
roster in the lignt of the existence of the new 1975
examination roster. I think the court weuld have been
better advised simply to leave the matter of determina-
tion of the applicable state law to the district court,
which is the ultimate holding on the Isakson issue.
3. The Background Investigation. The majority opin-
ion recognizes “that careful screening through investiga-
tion of an applicant’s background can be a useful device
in determining whether an applicant has the personal
qualities required of a police officer.” I regard it as
more than a useful device: rather it appears to me to be
an essential instrument for the purpose. As the district
court observed, “Of course, the Department must protect
itself from those who would undermine it or work at
cross purposes with it.” (Emphesis added. What the
district court did not add but is obvious is that the
Department must protect itself not for its own self-
preservation as an institution but because it is in the
public interest that the police duties be performed
effectively.
2385 F.Supp. at 557.
A460
60 Nos. 76-1113. 76-1152, 76-1205, & 76-1344
I cannot quarrel with the position of the district court
affirmed by this court that there be articulable stan-
dards for guidance of those conducting the background
investigations. Broadly stated criteria too easily lend
themselves to subjective whim. Nevertheless, I am
concerned with an implicit suggestion in both the
writing of the district court and the majority opinion
which might be construed as minimizing the importance
of good character on the part of police officers. Perhaps
the supervisor of the Recruit Processing Section was
unable to put into words what “dissolute habits” meant.“
but I have little doubt that if one’s neighbors thought a
person had dissolute habits, he would have little respect
from them as a police officer without which respect he
could not capably perform his duties. To paraphrase a
famous reference in another field of law, the neighbors
also might not be able to define in words “bad character,
dissolute habits. and immoral character,” but most of
them would be able to recognize the existence of these
attributes in those with whom they are acquainted.
It perhaps is too much to expect that every police
officer will be an exact duplicate of Caesar’s wife, but
the nearer tnat goal is approached the more effective the
police department will be. Frequent arrests or poor
regard for financial obligations may be explicable and
he shown not to detract from the ability to be an
effective police officer. On the other hand, either or both
may be demonstrative of an underlying disrespect for
the law. a deficiency which should not exist in a person
holding this position. It should also be remembered that
in the city scene with the overload on the prosecutorial!
staffs and the courts and the reluctance of witnesses to
become involved, many arrests which do not result in
convictions nevertheless are arrests of guilty persons.
The police department, in my opinion, is a questionable
forum for rehabilitation. The job of articulating objec-
tive standards in the present area is certainly a
tremendously difficult one. I merely express the hope
that when the difficult task is completed the reviewing
385 F.Supp. at 556.
A6él
Nos. 76-1113, 76-1152, 76-1205, & 76-1344 61
courts will permit the inclusion of aspects therein on a
realistic basis consonant with the achievement of as high
as possible regard on the part of the public toward those
performing the duties of police officers.
4. The Constitutional Sex Discrimination Issue. The
majority o
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