Respondents Brief — Crisler v. Morrow (Nos. CD-0017-74, 73-1838)

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PR. Cl

Supreme Court of the United States

October Term, 1973

No. 73-1838

GILES CRISLER, Commissioner of Public Safety

of the State of Mississippi, et al.,

Petitioners,

WILLIE MORROW and JEROME MANGUM, individually

and on behalf of all others similarly situated,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

ALIX H. SANDERS

FRANK R. PARKER

Lawyers’ Committee for

Civil Rights Under Law

233 North Farish Street

Be RS RR ce ERE Or ane rr <a eae

TABLE OF CONTENTS

Page

Opinions Below .........-.---.---------++2s+e0++ 1

Question Presented ...........-.--------+e-eeeeees 2

Constitutional and Statutory Provisions Involved .. 2

ee ik ssdecedapetatees 3

Argument ..........-------------e2eeeeeeeeeee ey

I. The Decision Below Does Not Conflict

With Any Applicable Decision of This

Court Nor With Any Similar Decision

of Any Court of Appeals ................-. 14

Il. The Petition Presents No Important

Question of Federal Law Which Needs

to Be Resolved by This Court ............ 19

Conclusion ..... » 2 Srp SEC DD AEA gee LE EE a 26

IID ai navies oneness een e rn enten eens cteeees la

TABLE OF AUTHORITIES

Cases

Associated Gen’l Contractors v. Altshuler, 490

F.2d 9 (1st Cir. 1973), cert. denied, 42 U.S.L.W.

3593 (U.S. No. 73-1324) (April 22, 1974) ...... 18, 19

Bradley v. School Bd. of City of Richmond, —_

U.S. —, 4 L.Ed 2d 476 (1974) ............-. 24, 26

Bradenburger v. Thompson, 494 F.2d 885 (9th

ee Ore nn weaked esi eneawes 26

Bridgeport Guardians, Inc. v. Bridgeport Civil

Service Comm’n, 482 F.2d 1333 (2d Cir. 1973) .. 11,17

Mae Mov « —

amie PN RL nt NEE

TABLE OF AUTHORITIES (Continued)

Page

Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th

Cir.), cert. denied, 400 U.S. 951 (1970) .......... 22

Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir.

1971) (en banc), cert. denied, 406 U.S. 950

aap AM Reina MA TENS aie 1 ASD ty op 11, 18, 19

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972). 11, 17, 20

Chance v. Bd. of Examiners, 458 F.2d 1167 (2d

ts « aatinnd os =o Rd od eee Sei ached ah sien 20

Contractors Assn. v. Shultz, 442 F.2d 159, (3d

Cir.), cert. denied, 404 U.S. 854 (1971) ........ 18, 19

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ...... 25

DeFunis v. Odegaard® __ US. _, 40 L.Ed.2d

RI occ ona e ce teas eae vedekace os 13

Edleman v. Jordan, __ U.S. __, 39 L.Ed.2d 662

(EN Ee ets spe Sedans pee ot 20, 25

Erie Human Relations Comm’n v. Tullio, 493

ie € § | | ee ere rrr 17

Ex parte Young, 209 U.S. 123 (1908) .............. 20

Fairmont Cremery Co. v. Minnesota, 275 USS.

COU saci c catvidewa weee ne x 26

Fowler v. Schwarzwalder, __ F.2d _., EPD § 9427

SR ee eee aeedy a Rh aiid eel eared 25

Gates v. Collier, 489 F.2d 298 (5th Cir. 1973) ...... 26

Georgia R. and Banking Co. v. Redwine, 342 U.S.

gS aie Se Rem 2 PORES de 9 tl a ys line 20

a eeieeenaemaneal

ei ee ed —

iii

TABLE OF AUTHORITIES (Continued)

Page

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .. 15, 16, 20

Hall v. Cole, 412 U.S. 1 (1973) ...................05. 24

Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973),

aff'g, Harper v. Mayor & Council of City of

Baltimore, 359 F. Supp. 1187 (D.Md. 1973) .. 18, 20,

21, 25

Huff v. N. D. Cass Co., 485 F.2d 710 (5th Cir.

oo kN eee ar eae 22

Louisiana v. United States, 380 U.S. 145 (1965) _..... 11

McDonnell Douglas Co. v. Green, 411 U.S. 792

(1973)

Mayor of City of Philadelphia v. Educational

Equality League, __ U.S. __, 39 L.Ed.2d 630

$8 EE RG A Ne en ee wi hence Cate Se, RN (Se ees 22, 23

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) .. 24

Morton v. Mancari, __ U.S. _, 42 U.S.L.W. 4933

(U.S. Nos. 73-362 and 73-364) (June 17, 1974) .. 12

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) __.. 17, 25

NAACP vy. Thompson, 357 F.2d 831 (5th Cir. 1966),

cert. denied, 385 U.S. 820 (1966) ................ 6

Newman v. Piggie Park Enterprises, Ind., 390

ee CE Sool ee se eee 24

North Carolina Bd. of Educ. v. Swann, 402 U.S.

2, ee iment ieee. Ms 16

He Di iinet et Hel one

vat pss Dey Nonlin tn oF

RAEN TS es PY cry Ae

TABLE OF AUTHORITIES (Continued)

Page

Northcross v. Bd. of Educ. of Memphis City

Bebeets, GS US. Gay CHGGS) ...-.--------------- 26

O’Shea v. Littleton, _. U.S. __, 38 L.Ed.2d 674

ee ee iru kakaetansehanenen <2 22

Perkins v. Mississippi, 455 F.2d 7, aff'd en banc,

ae eae meee Gees Gee, See .....-...--.....2..- 6

Quarles v. Philip Morris, Inc., 279 F. Supp. 505

ee aE ae a 12

Reynolds v. Sims, 377 U.S. 533 (1964) .............. 19

Scheuer v. Rhodes, _. U.S. —, 40 L.Ed.2d 90

es eI Soe Win a Spin 5 4 ho wns 20, 26

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972),

ee 24

Smith v. City of East Cleveland, 363 F. Supp.

ne uch ese anbueee 8

Southern Illinois Builders Assn. v. Ogilvie, 471

ee a, ED , we ne ee eee 18

Spomer v. Littleton, _. U.S. _.,. 38 L.Ed.2d 694

ERE Sei ye a yO 22, 23

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

ee a paiicenne« 19

United States v. Carpenters Local No. 169, 457

F.2d 210 (7th Cir.), cert. denied, 409 US.

Se isons 17, 18, 19

STM at EW MK ws FR TOS Dt rn OEE?

TABLE OF AUTHORITIES (Continued)

: Page

United States v. City of Jackson, 318 F.2d 1

(5th Cir. 1963), on rehearing, 320 F.2d 870

EEE EE SIRES tg Ea a ROR ere mre eR 6

United States v. IBEW Local No. 212, 472 F.2d

I I a ag cee ga eee 17

United States v. Ironworkers Local No. 86, 443

F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984

Ne ene ea ee Cio: 18, 19

United States v. Montgomery Co. Bd. of Educ.,

ee ee ee es 16

United States v. W. T. Grant Co., 345 U.S. 629

NA dundee henson eau ek Ves enna wmideon 24

Statutes

U.S. Const., Eleventh Amendment .............. 19, 26

U.S. Const., Fourteenth Amendment .. 2, 4, 11, 18, 19, 25

NE hee cle co on ne ene bend celcoks 3, 4, 25

use tee ............. See Sa ance 25, 34

Civil Rights Act of May 31 1870, §§ 2, 3, 16 Stat.

rea a se pact th i nr ig ars as 24

Civil Rights Act of 1964, Title VII,

ee eee 18

I st a eg ae 18

RIE ve kes s en ues sass 24

SAIL PIPE NTN Rh ete wicasah nm wom ret tony

PRIA ot

TABLE OF AUTHORITIES (Continued)

. Page

_ Equal Employment Opportunity Act of 1972,

§ 2(1) P.L. 92-261, 86 Stat. 103 .................. 25

Miss. Code Ann. § 4065-3 (1965 Recomp.) .......... 6

Other Authorities

Rule 25(d), Federal Rules of Civil Procedure .... 7, 23

A. Blumrosen, Strangers in Paradise: Griggs

v. Duke Power Co. and the Concept of Em-

ployment Discrimination, 71 Mich. L.Rev.

PR co. ceeh et os cee anaccueurcr eect sess 16

LTTE SEES RE 2 OTN LI TEL ATR ot

OL PMA BDDPELLP LDV LORE IER

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No. 73-1838

GILES CRISLER, Commissioner of Public Safety

of the State of Mississippi, et al.,

Petitioners, .

versus

WILLIE MORROW and JEROME MANGUM,

individually and on behalf of all others similarly

situated,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit sitting en banc which is the sub-

ject of the Petition (App. B of Petition) is now report-

ed at 491 F.2d 1053.

A stay of proceedings pending application for cer-

tiorari was denied by the District Court on May 15,

is FERRE DEI + et 7 oe tans oo wens

as ORE ILA DOO TS

Pe Aa. DR eer eka, (Aor Ka,

VOUS REN DSM heh <- Begin TH

SY PERG IN her ah Tan RAL

i e w

1974. Motions by petitioners for recall and stay of the

mandate of the Fifth Circuit were denied by the Court

of Appeals on June 3, 1974, and by this Court on June

17, 1974, 42 U.S.L.W. 3691.

QUESTION PRESENTED

Whether, after District Court findings that petition-

ers had engaged in a long and pervasive pattern

and practice of racial discrimination in hiring and em-

ployment and that petitioners’ ‘“all-White” reputation

among Black citizens in Mississippi had discouraged

Blacks from applying for positions, and supplemental

Statistics provided by petitioners showed that the re-

lief ordered by the District Court was insufficient to

eradicate petitioners’ unconstitutional employment

practices and their effects, the Court of Appeals erred

in remanding the case back to the District Court to

fashion some form of affirmative hiring relief that

would have the certain result of increasing the num-

ber of Blacks employed by petitioners and would

eliminate present continuing discrimination in hiring

and recruitment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment:

““ *** No State shall make or enforce any

law which shall abridge the privileges or im-

munities of citizens of the United States; nor

shall any State deprive any person of life,

ee bs ata NB RN aad cts IAN ne Gd stihl RNS es isda AIPM ani Lit Cai clan ebro

that ati ema CPT oy

i ° “ MINeg

SEO PLE ALi ARS ASE NEE TI “i

liberty, or property, without due process of

law; nor deny to any person within its juris-

diction the equal protection of the laws.”

42 U.S.C. § 1981.

“All persons within the jurisdiction of the

United States shall have the same right in

every State and Territory to make and enforce

contracts, *** and to the full and equal bene-

fit of all laws and proceedings for the security

of persons and property as is enjoyed by

White citizens * * *”

42 U.S.C. 1983.

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction there-

of to the deprivation of any rights, privi-

leges, or immunities secured by the Constitu- .

tion and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or

other proper proceeding for redress.”

STATEMENT

The two plaintiffs (respondents here), one a Black

Vietnam veteran with police experience in the Air

Force and the other a Black college student, were re-

fused application forms for patrolman positions with

the all-White Mississippi Highway Patrol in June,

1970, and filed this class action on July 30, 1970

against state officials in charge of the Missis-

sippi Department of Public Safety and the Highway

Patrol] to gain equal hiring and employment oppor-

tunities pursuant to the guarantees of the Fourteenth

Amendment and 42 U.S.C. §§ 1981 and 1983. The de-

fendants (petitioners here) are the Governor of Mis-

Sissippi, who as chief executive officer of the ‘state con-

trols the policies and practices of the Department

and Patrol] (A. 67),! the Commissioner of Public

Safety, who is the titular head of the Department and

Patrol, the Chief of Patrol, and the Personnel Officer

of the Department of Public Safety. Neither the State

of Mississippi, nor either of the state agencies involv-

ed, are named defendants in this action. .

4 The United States, was granted leave by the District

» , Court to appear as amicus curiae, and both in the

District Court and the Court of Appeals supported’

plaintiffs’ requests for affirmative hiring relief to

correct the effects of past discrimination in hiring

and employment by officials of the Department of Pub-

lic Safety and the Highway Patrol. — :

A. © Findings of the District Court |

_. The undisputed facts, as found by the District Court,

, Showed that of the 743 employees in the Mississippi

Department of Public Safety, of which the Highway

Patro] is a division, only 17 were Black, and these

Blacks were employed exclusively in, the jobs of cook

1“A.” references are to the Pages of the wee filed with and

attached to the Petition.

MReese PNET ELIE Fe SOIL IO Lt FLEE IL LEE N

6 : eR :

ve SL EA SER CPD REPO CH PETTERS a ree OR SOY a io oes

pita TARR pees Cate eae oe

TR TON» SOME TM at I YEE LAS OLR LICG «EMA Gad al

and janitor (A. 74). Of the 27 bureaus of the Depart-

meni, only two had any Black employees at all—

the cooks at the Training Academy and the janitors

in the Maintenance Bureau. (id.)

Officials of the Highway Patrol had never in its

history — since 1938 — employed a Black person as a

sworn officer in a state which is 36.7 Black (1970

Census) (id). Between January 1, 1968 and the time

of trial (June, 1971), 107 Whites had been hired in

patrolmen positions (id.), and all but twelve had

friends or acquaintances employed by the Patrol

(A. 78). Most of the present patrolmen learned of va-

cancies and the fact that applications were being ac-

' cepted through word-of-mouth inquiry from patrol-

men who were their friends and relatives, and the ma-

jority of the clerical positions in the Department were

filled by walk-ins, many of whom were recommend-

ed by present employees (A. 77). Favoritism and par-

tiality had been shown to those applicants having

relatives, friends and acquaintances on the all-White

Patrol (A. 80).

The District Court found that as a result of defend-

ants’ discriminatory practices the Department and

Patrol have a reputation throughout Mississippi, and

particularly among Black communities, as all-White

agencies, and this reputation has discouraged Blacks

from applying for employment (A. 79).2

2In addition, the Mississippi Legislature has imposed upon High-

way Patrolmen a statutory duty to enforce Mississippi’s “‘steel-

hard, inflexible, undeviating official policy of segregation,”

ey oe Lee ee a eee ee ee ee etre es,”

le an ee ee i te ee ee ee .

' The District Court further found, and its findings

were affirmed on appeal, that applicants for Patrol

positions had been required to pass the Otis Quick

Scoring Menta] Ability Test and an oral spelling test,

and that neither test had been validated to show a

significant relationship with successful job perform-

ance (A. 76). Neither the Department nor the Patrol

publicly announced job vacancies, nor advertised the

availability of positions in communications media

serving the Black community (A. 78). Recruitment

programs were presented to audiences which were

predominantly White, and a motion picture used for

recruiting portrayed an all-White Patrol (except for

Black cooks and food servers) (A. 78-79). Until] shortly

before trial, no Department or Patrol rules prohibited

the use of derogatory racial epithets, and the term

“nigger” had been used by patrolmen in addressing

blacks (A. 79).

The District Court held that the defendants had en-

gaged in “a pattern and practice of racial discrimina-

tion in hiring and employment practices” in violation

of the Fourteenth Amendment and 42 U.S.C. $$ 1981

and 1983 (A. 86), and entered a decree enjoining future

United States v. City of Jackson, 318 F.2d 1, 5 (5th Cir. 1963),

on rehearing, 320 F.2d 870, in Miss. Code Ann. § 4065.3 (1956

Recomp., repealed April 3, 1970) requiring Highway Patrol-

men and other state officials to prohibit school desegregation

and integration of the races, and Highway Patrolmen have

been involved in efforts to suppress civil rights protest demon-

strations, NAACP v. Thompson, 357 F.2d 831 (5th Cir. 1966),

cert. denied, 385 U.S. 820 (1966); Perkins v. Mississippi, 455

F.2d 7, aff'd en banc, 470 F.2d 1371 (5th Cir. 1972).

Panter tn

2 OR | Nn CR AP i

discrimination in hiring and employment (A. 94-100)?

However, without stating any reasons, the District

Court specifically denied plaintiffs’ request for result-

oriented affirmative hiring relief (A. 101).

A three-judge panel of the Court of Appeals unani-

mously affirmed the District Court’s finding that the

defendants had engaged in a constitutionally prohibit-

ed pattern and practice of racial discrimination in hir-

ing and employment, but split (2-1) in holding that the

District Court did not abuse its discretion in failing to

order affirmative hiring relief. In dissent, Judge

Goldberg noted, “The order affirmed by the majority

does not obligate the defendants to hire any Blacks”

(A. 35).

B. Defendants’ Supplemental Statistics.

After plaintiffs’ petition for rehearing en banc had

been granted, the present defendants* on October 12,

1973, filed with the Court of Appeals a statistica] re-

port entitled “Defendants’ Submission on Employ-

ment and Testing Statistics Since January 1, 1972”

3The District Court denied the two individual

relief in the form of employment and back pay on the ground

that an employment freeze was in effect they

benefits of the class relief and that their applications should

be processed without discrimination. To date Morrow and

Mangum have not been hired because of the defendants’ con-

PRET Pe ORE ee: PS PE CS ara RR Ne a OR RESETS 2 a

—

ee en PRP RRMNND ES Hie

Pen “ar EE Fin VE PM POL PIT AEP FAN Nl IT Bt

(Attached as Appendix A) which showed that racial

discrimination in hiring by the Highway Patro] and

the Department of Public Safety had been perpetuat-

ed by the successors of the original defendants and

that the relief ordered by the District Court was in-

sufficient to eliminate and eradicate the present ef-

fects of past employment discrimination by defend-

ants and their predecessors. This report showed that

of the approximately 400 patrolmen and recruits em-

ployed by the Patrol as of October, 1973, two years

after the entry of the District Court’s decree, only 6

were Black. The report further showed that between

January 1, 1972 (when the present defendants took

office) and October, 1973, the Patrol had hired 91

Whites and only 6 Blacks (including two then in re-

cruit training) out of a total of 264 Black applicants,

and that the entire Department of Public Safety had

hired 222 Whites and only 28 Blacks ( including patrol-

men and recruits) out of a total of 273 Black

applicants.

Although the defendants discontinued the Otis

Quick Scoring Mental Ability Test and the oral spell-

ing test for patrolman applicants pursuant to the

District Court’s injunction, they substituted for these

tests the equally discriminatory and unvalidated

Army General Classification Test (AGCT).® The de-

police officer positions in Smith v. City of East Cleveland, 363

F.Supp. 1131, 1150 (N.D. Ohio 1973).

IAB mse ct i

fendants’ October, 1973 report to the Court of Appeals

showed that the AGCT had a severe racially discrimi-

natory impact with a pass rate for Whites (66.6)

percent) taking the tests 5.2 times the pass rate for

Blacks (12.9 percent), a disparity much greater than

in any of the appellate cases in which racial discrimi-

nation had been found. Testing for employment with

the entire Department of Public Safety was equally dis-

criminatory on the basis of statistics provided in the

defendants’ report, with a pass rate for all White ap-

plicants for Department positions (69 percent) being 3.6

times the pass rate for Blacks (19 percent).

C. Opinion of the Fifth Circuit.

On rehearing en banc the entire Fifth Circuit de-

termined 13 to 2 that “the relief ordered by the Dis-

trict Court is insufficient” (A. 41) and that the defend-

ants’ statistics contained in their submission

“alone negate the State’s argument that its

present practices are nondiscriminatory, and

give no support whatsoever to any argument

that the decree appealed from is sufficient

to eliminate the effects of past racial

discrimination.” (Id.)

The Fifth Circuit found that the defendants’ entrance

requirements in use during this period, specifically

the high school diploma requirement and the Army

General Classification Test, had not been job-validated

despite the showing of a disproportionate racial im-

pact, that the qualifications for positions and/or the

* >

oe. > '

= -

ee ee |

recruitment practices of defendants have been dis-

criminatory in effect, that the defendants’ recruit-

ment practices and hiring criteria should be re-

examined by the District Court, and that the case

should be remanded “for the District Court, in the

first instance, to fashion an appropriate decree which

will have the certain result of increasing the number

of Blacks on the Highway Patrol” (A. 42). However,

the full Fifth Circuit made it clear that it was not re-

quiring “that the proportion of Blacks on the Patrol

mirror the proportion of Blacks in the population”

(A. 43). Petitioners’ statement in their Petition that

the Court of Appeals suggested that the qualifications

for the Patrol might need to be lowered (Petition,

p. 4) is misleading and erroneous; the Fifth Circuit

specifically stated: “We emphasize, however, that the

imposition of some affirmatiye hiring relief need not

inexorably lead to the“dilution of valid employment

qualifications” (id.).

Until the District Court fashions some form of af-

firmative hiring relief, Black applicants will continue

to be denied equal employment opportunities in the

Department of Public Safety and the Highway Patrol.

On May 17, 1974, the defendants graduated another

all-White recruit training class consisting of 15 White

patrolmen. On remand, the District Court has ordered a

temporary hiring freeze, except for emergency situa-

tions, and ordered the defendants to submit a compre-

hensive affirmative hiring plan after which a hearing

is to be held. To date no affirmative hiring relief has

been ordered by the District Court.

- _ a tg Seg 2

PDEA Ta LIE EEN ERLE ST ETE RR FR SERA RI TT ne a RH

In remanding the case back to the District Court to

require the defendants to adopt nondiscriminatory

and job validated hiring criteria, to augment their re-

cruitment program and insure that sufficient numbers

of qualified Black applicants apply, and to engage in

an affirmative hiring program which will increase

the number of Blacks employed until the residual ef-

fects of past employment discrimination have been

eliminated, the Court of Appeals went no further than

what the Constitution and applicable Federal statutes

require to remedy discrimination and to insure equal

employment opportunities for all citizens. In cases in-

volving violations of civil rights protected by the

Fourteenth Amendment and Federal statutes, this

Court has declared the fundamental principle that

Courts have “not merely the power but the duty to

render a decree which will so far as possible elimi-

nate the discriminatory effects of the past as well as

bar like discrimination in the future,” Louisiana vy.

United States, 380 U.S. 145, 154 (1965). This fundamen-

tal principle of affirmative remedial action is fully

applicable to cases of employment discrimination in-

volving public employers. E.g., Castro v. Beecher, 459

F.2d 725, 736 (1st Cir. 1972); Bridgeport Guardians,

Inc. v. Bridgeport Civil Service Comm’n, 482 F.2d

1333, 1340 (2d Cir. 1973); Carter v. Gallagher, 452

F.2d 327, 328 (8th Cir. 1971) (en banc), cert, denied,

406 U.S. 950 (1972).

Prior to the filing of this lawsuit, Blacks in Missis-

Sippi were completely excluded from the Highway

Patrol and from all but the most menial positions in

the Department of Public Safety. To remedy this leng-

SR ate eI SSNS NY RE TE SME I SN ae ee

eee Se ee Oe ee

me Nana edt Sena

wis iat nad ered

Ro tere ein Wie Wee ener a ferent ah

2 Madhouse welahjaten Ls

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standing practice of exclusion, some affirmative hir-

ing relief — left to the informed discretion of the Dis-

trict Court — is required, since Congressional legisla-

tion providing remedies for employment discrimina-

tion was “not intended to freeze an entire generation

of Negrofes] . . . into discriminatory patterns that

existed before the Act.” Quarles v. Philip Morris,

Inc., 279 F. Supp. 505, 506 (E.D. Va. 1968).

Contrary to petitioners’ assertions, this case doves

not involve the question of an absolute hiring prefer-

ence “solely on the basis of race” (Petition, p. 5). The

affirmative hiring remedy required by the Court of

Appeals does not include all Blacks, or even all

Blacks who apply for Patrol positions, regardless of

qualifications. The Fifth Circuit made it clear that af-

firmative hiring does not require the defendants to

hire Black applicants who are not qualified under

objective, nondiscriminatory, and job-validated hiring

criteria (A. 43). No one is required to be hired

simply because he or she is Black. Thus, the guide-

lines established by the Fifth Circuit operate to ex-

clude many Blacks who are not objectively qualified

for Patrol employment, and in this sense the affirma-

tive hiring remedy is employment-related rather

than strictly racial. Cf. Morton v. Mancari, 42

U.S.L.W. 4933, 4939 (U.S. Nos. 73-362 and 13-364)

(June 17, 1974). The affirmative hiring remedy man-

dated by the Fifth Circuit is not a racial preference

in the absolute sense, but only constitutes a remedy

for hiring discrimination reasonably designed to re-

quire the defendants to hire qualified Black appli-

cants who otherwise would have been rejected be-

eres

cause of the defendants’ racially discriminatory hire

ing policies.

Similarly, this case does not involve the question of

a “racial preference” faced by the Court in DeFunis

v. Odegaard, __ U.S. __, 40 L.Ed.2d 164 (1974). Unlike

DeFunis which involved a “‘benign” quota, this case

involves a judicial determination of unconstitutional

racial discrimination in hiring and employment by a

court of competent jurisdiction, and the search for an

effective remedy for the constitutional violation. Nor

does the relief ordered by the Court of Appeals con-

stitute a racial quota, since the Fifth Circuit specifi-

cally stated that: “It is not required that the propor-

tion of Blacks on the Patrol mirror the proportion of

Blacks in the population” (A. 43).

Some form of result-oriented affirmative hiring re-

lief was ordered by the Fifth Circuit only after it had

determined based upon statistics presented by the de-

fendants that affirmative relief Was necessary to se-

cure constitutional rights and that the passive relief

ordered by the District Court was insufficient to elimi-

nate the present effects of past racial discrimination.

The relief required to be entered by the District

Court is not preferential, but only “temporary” (A. 43)

and remedial, designed to overcome the present ef-

fects of past discrimination and to be abrogated as

soon as the residual effects of this past discrimina-

tion have in fact been eliminated.

Thus, contrary to petitioners’ assertions, the deci-

Sion of the Court of Appeals breaks no judicial new

LAL DORE

iiss diss

SW Ee eT Pees

EPEAT aPC a RI PEEL IE LO OTIS IE NT

ground (Petition, p. 6), but constitutes simply the ap-

plication of sound constitutional principles declared

by this Court and Similarly applied by other

Courts of Appeals to remedy and eliminate pervasive

and firmly entrenched racial discrimination in hiring

and employment which violates the constitutional

rights of plaintiffs and the class they represent. As

such, the relief ordered by the Court of Appeals does

not conflict with, and is completely consistent with,

the rulings of this Court in employment discrimination

cases, and is in complete accord with the overwhelm-

ing weight of authority in every other circuit which

has ruled on affirmative hiring relief in similar

cases. The decision below is manifestly correct, and

the issues raised by the petitioners do not present

any substantial question which needs to be resolved

by this Court.

ARGUMENT

I. The Decision Below Does Not Conflict With

Any Applicable Decision of This Court Nor

With Any Similar Decision of Any Court of

Appeals.

The instant opinion of the Court of Appeals requires

the District Court (i) to scrutinize the defendants’ re-

cruitment and hiring criteria to insure that Black ap-

plicants are attracted and that objective, nondiscrimi-

natory, and job-validated hiring criteria are utilized,

and (ii) to order some form of affirmative hiring re-

lief that will have the certain result of increasing the

number of defendants’ Black employees. The first re-

NR a a a BT RC Re a gh ORIN PILE OS

quirement is fully consistent with this Court’s decision,

in Griggs v. Duke Power Co., 401 U.S. (1971), and

the Petition does not seriously question the constitu-

tionality or necessity of this form of relief.

The second requirement derives from the “conse-

quences test” of discrimination embraced by this

Court in its unanimous decision in Griggs v. Duke

Power Co., supra. In Griggs, this Court rejected the

notion that a discriminatory purpose must be shown

to invalidate an employment practice, and held that

employment practices which have a disproportionate

adverse impact on minorities must fall unless the em-

ployer can bear its burden of showing that the prac-

tice is significantly related to successful job per-

formance. “... Congress directed the thrust of the

Act to the consequences of employment practices, not

simply the motivation” (401 U.S. at 423).

“Under the Act, practices, procedures, or

tests neutral on their face, and even neutral

in terms of intent, cannot be maintained if

they operate to ‘freeze’ the status quo of prior

discriminatory practices.” 401 U.S. at 430.

This standard was reaffirmed and expanded by the

Court in McDonnell Douglas Co. v. Green, 411 U.S. 792,

805 (1973), in which the Court held that statistical evi-

dence of a general policy of employment discrimina-

tion may be relevant on whether adverse action

against an individual employee conformed to a gen-

‘eral pattern of discrimination against Blacks.

ehhh diies mabkbiie cians lade ba ata ee

The nature of the remedy required to cure unlawful

class employment discrimination flows from the con-

Sequences test of discrimination established by

Griggs. To be fully adequate, the remedy must be one

that alters the consequences of the employers’ dis-

criminatory practices and produces acceptable

results:

“Once discrimination is found, the remedy

must destroy the adverse effect on minorities

as rapidly as possible, while leaving a decree

of flexibility in the implementation of the

corrective measures. In the case of discrimi-

natory failures to recruit and hire, the

courts have properly required defendants to

use a numerical standard for hiring minori-

ties.” A. Blumrosen, Strangers in Paradise:

Griggs v. Duke Power Co. and the Concept

of Employment Discrimination, 71 Mich. L.

Rev. 59, 93 (1972).

The use of racial ratios and numerical standards as a

remedy for hiring and employment discrimination is

completely consistent with this Court’s holdings in the

school discrimination cases in which the Court held

that

th DASARI WARN ck Wish ek hi Vi blaine

“when past and continuing constitutional viola-

tions are found, some ratios are likely to be

useful starting points in shaping a remedy.”

North Carolina Bd. of Educ. v. Swann, 402

U.S. 43, 46 (1971): cf. United States v. Mont-

gomery Co. Bd. of Educ., 395 U.S. 225 (1969)

(teacher ratios).

- RII hoe f "GR:

AR ek Cane — nee

The constitutionality and necessity of result-orient-

ed hiring relief to cure unconstitutional and unlawful

hiring and employment discrimination by both public

and private employers have been fully accepted by

the Courts of Appeals throughout the country. As

Judge Clark points out in his concurring opinion in

this case (A. 48-49) and in his recent ‘opinion in

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

ing a one-for-one (Black-White) hiring ratio for Ala-

bama State Troopers, the decision.of the Fifth Circuit

here is in complete accord with and indeed was com-

pelled by the overwhelming weight of authority in _

every other circuit which has ruled on the question

of affirmative hiring ‘relief in employment discrimina-

tion cases.

See, e.g., Castro vs. Beecher, 459 F.2d 725 (1st Cir,

1972) (Boston police agencies) (reversed refusal to

order affirmative hiring relief; District Court directed ©

to establish hiring pools and hiring ratio,, one-for-

one, one-for-two, or one-for-three); Bridgeport Guard-

ians, Inc., v. Bridgeport Civil Service Comm’n, 482

F.2d 1333 (2d Cir. 1973) Bridgeport Police Dept.)

(affirmed affirmative hiring relief requiring defend-

ants to fill 50% or more of patrolman vacancies

with minorities until minorities constitute 15%

of force); Erie Human Relations Comm’n v. Tullio,

493 F.2d 371 (3d Cir. 1974) (Erie Police Dept.) (affirm-

ed order requiring one-for-one hiring for the next 20

vacancies); United States v. IBEW Local No. 212,

472 F.2d 634 (6th Cir, 1973) (affirmed order imposing

mandatory quota of 11% Black membership in

the union and creating minority preference); United

a Ah 2 sda adibe eid oD ee Ut ean TRE Ae an eet ee S|

States v. Carpenters Local No. 169, 457 F.2d 210 (7th

Cir.), cert. denied, 409 U.S. 851 (1972) (reversed and

remanded to District Court to require construction

unions to conform to Ogilvie Plan providing for affirm-

ative hiring relief for Black trainees); Carter v. Gal-

lagher, 452 F.2d 315, 327. (8th Cir. 1971) ‘(en banc), ’

cert. denied, 406 U.S. 950 (1972) (Minneapolis Fire

Dept.) (required one-for-two hiring ratio ‘until 20

minority firemen are hired); United States v. Iron-

workers Local No, 86, 443 F.2d 544 (9th Cir.), cert. de-

_ nied, 404 U.S. 984 (1971) (affirmed order providing

minority preference for special apprenticeship pro-

grams and requiring future training classes to be 30%

Black).¢ | ’ ;

The various circuits similarly are in accord that af-

firmative hiring remedies to correct racial discrimi-

nation do not constitute “reverse discrimination” in

violation of the Fourteenth Amendment or the anti-

preference provisions of Title VII of the Civil Rights

Act of 1964, 42 U.S.C.. § 2000e-2(a), (j). See cases |

cited above and: Assoc. Gen’! Contractors v. Alt-

Shuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 42

U.S.L.W. 3593 (U.S. No. 74-1324) (April 22, 1974);

Contractors Assn. v. Shultz, 442 F.2d 159 (3d _ Cir.),

cert. denied, 404 U.S. 854 (1971); Southern Illinois

Builders Assn. v. Ogilvie, 471 F.2d 680 (7th Cir. 1972).

Although the Fourth Circuit rejected plaintiffs’ requests for hiring

quotas in Harper v. Kloster, 486 F.2d 1134 (1973), it did affirm

the District Court’s order requiring that city residents be

given preference in hiring over non-city residents, which in

effect provided a minority preference, since a higher per-

centage of Blacks resided in Baltimore City than the sur-

rounding counties which had become havens for White flight.

MEAL ARIE New

The fact that this Court has denied certiorari ix

number of cases requiring or approving the use of

numerical ratios to cure discrimination in hiring and

employment indicates that there is no conflict of de-

cision and that the issue fails to present a substantial

question which should be resolved by this Court, E.g.,

Assoc. Gent’l Contractors v. Altshuler, supra;

Carter v. Gallagher, supra; United States v. Carpen-

ters Local No, 169, supra; United States v. Ironwork-

ers Local No. 86, supra; Contractors Assn. v. Shultz,

supra. }

II. The Petition Presents No Important Ques-

tion of Federal Law Which Needs To Be Re-

solved by This Court.

A. Immunity of State Officials from Mandatory In-

junctive Relief. Petitioners’ contentions to the effect

that the Eleventh Amendment renders the guaran-

tees of the Fourteenth Amendment inoperable and

grants defendants immunity from a mandatory in-

, junction enforcing the Fourteenth Amendment and

Federal civil rights statutes (Petition, pp. 8-11) fails

to present a substantial question of Federal law which

needs to be resolved by this Court, given the many

cases in which this Court has required state officials

in their official capacity to take affirmative steps to

secure constitutional rights, E.g., Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (school

desegregation); Reynolds v. Sims, 377 U.S. 533 (1964)

(reapportionment), The Eleventh Amendment pro-

vides no shield for state officials confronted by

claims that they have deprived persons of Federal

rights under color of state law provided — as in this

case — the action is not against the state in name or

in fact, and does not seek damages from the public

treasury. Scheuer v. Rhodes, __ US, —, 4 LEd2d

90, 97 (U.S. Nos. 72-914 and 72-1318) (April 17, 1974);

Edelman v. Jordan, __ US. — 39 L.Ed.2d 662, 673

(U.S. No. 72-1410) (March 25, 1974); Georgia R. and

Banking Co. v. Redwine, 342 U.S. 299, 304-06 (1952);

Ex parte Young, 209 U.S. 123 (1908).

B. Qualifications and Police Power. The Court of Ap-

peals went no further than to require the District

Court to follow the Griggs standards. If any employ-

ment qualification, including general intelligence

tests and education requirements, ‘‘which operates to

exclude Negroes cannot be shown to be related to job

performance, the practice is prohibited” (401 U.S. at

431), and this requirement applies equally to public

employers subject to the restrictions >7f the Four-

teenth Amendment, McDonnell Douglas Corp. v.

Green, supra, 411 US. at 800, 802, n. 14 (citing

_ Castro v. Beecher, supra, and Chance v. Bd. of Ex-

aminers, 458 F.2d 1167 (2d Cir. 1972), both public

employment discrimination cases). As the Court of

Appeals emphasized, the relief required “need not in-

exorably lead to the dilution of valid employment

qualifications” (A. 43) nor to any restriction on the

State’s police power, but rather provides an im-

provement of those standards to make certain they

determine, without discrimination, who is and who is

not qualified, hopefully resulting in the improvement

of equal law enforcement within Mississippi. Cf.

Harper v. Mayor & City Council of Baltimore, 359 F.

BEEP vor ce me a ae et Le EEO MEP TTL? ABT ET ee

as a

Supp. 1187, 1213 (D. Md. 1973), aff'd sub nom. Har-

per v. Kloster, supra.

C. Plaintiffs’ Standing. The District Court proper-

ly defined the plaintiff class to include “all qualified

Negroes who have applied or will apply in the future

for employment with the Mississippi Department of

Public Safety and/or the Mississippi Highway Safety

Patrol” (A. 83), and it is undisputed that the indivi-

dual named plaintiffs, Morrow and Mangum, were

members of this class, that is, they had applied for

employment with the Highway Patrol and “were ob-

jectively qualified to receive an application form and

to apply for positions as sworn officers of the Missis-

sippi Highwa'y Safety Patrol” (id.).

Although the District Court denied the individual

plaintiffs immediate employment and back pay be-

cause the defendants presented a nonracial justifica-

tion for their failure to give the plaintiffs application

forms, the District Court did find that the defendants

had engaged in a pattern and practice of racial dis-

crimination in hiring and employment (A. 86), and

granted the plaintiffs and the plaintiff class injunctive

relief against future discrimination requiring that

their applications be processed and their terms of em-

ployment be established without discrimination.

Subsequently, the supplemental record revealed

that Mangum was rejected for employment for fail-

ing to pass the Army General Classification Test,

which had a disproportionate adverse impact on

Black applicants and which the Court of Appeals

found was not job validated, and Morrow was reject-

ed for failing to meet the minimum weight require-

ment, although the District Court found that Whites

had been employed as patrolmen who did not meet

the weight minimum at the time of their application.

(A. 76). Thus, contrary to petitioners’ assertions

(Petition, pp. 13-14), there is an actual case and con-

troversy between the parties which is continuing,

plaintiffs have suffered and continue to suffer threat-

ened and actual injury resulting from the illegal ac-

tions of the defendants, and plaintiffs possessed and

continue to possess a sufficient personal stake in the

outcome to insure concrete adverseness in the presen-

tation of issues. O’Shea v. Littleton, _ U.S. _, 38

L.Ed.2d 682-83 (1974). Cf. Huff v. N. D. Cass Co.,

485 F2d 710 (5th Cir. 1973) (en banc); Carr v. Conoco

Plastics, Inc., 423 F.2d 57 (5th Cir.), cert. denied, 400

U.S. 951 (1970).

D. Discrimination by the Present State Official Defend-

ants. This case is ‘completely distinguishable from

Spomer v. Littleton, _ U.S. _, 38 L.Ed.2d 694 (1974)

and Mayor of City of Philadelphia v. Educational

Equality League, _. U.S. _, 39 L.Ed.2d 630 (1974),

upon which petitioners rely in claiming that the case

is moot and that there is no justification for entering

additional injunctive relief against the present defend-

ants (Petition, p. 14). In both cases there was no evi-

dence of discrimination by the successors to the ori-

ginal defendants nor supplemental findings indicating

that the new officers would continue the practices of

their predecessors (38 L.Ed.2d at 700; 39 L.Ed2d at

645).

i ik ee Ee en, See en er

Unlike Spomer and Educational Equality League,

here the present state officials who succeeded the

original defendants were substituted as defendants by

the District Court pursuant to Rule 25(d), F.R. Civ. P.,

after a hearing in the District Court and prior to

decision by the Court of Appeals (A. 116). The present

defendants themselves submitted to the Court of Ap-

peals indisputable evidenc2 from their own files and

records that they were continuing the discriminatory

hiring and employment patterns established by their

predecessors (See Appendices A and B, attached). Re-

ferring to the updated submission by the present de-

fendants, the Fifth Circuit made the supplemental

findings that:

“These figures alone negate the State’s argu-

ment that its present practices are nondis-

criminatory, and give no support whatsoever

to any argument that the decree appealed

from is sufficient to eliminate the effects of

past racial discrimination.” (A. 41, emphasis

added)

Having been substituted as defendants by the Dis-

trict Court after a hearing, having prosecuted their

cross-appeal in the Court of Appeals, and having pre-

. Sented to the appellate court indisputable evidence

that their own present practices were discriminatory

and that they were continuing the discriminatory

practices of their predecessors, the present state of-

ficial defendants are estopped from asserting here

that they have been denied their day in court or that

the present action is moot. See, United States v.

W. T. Grant Co., 345 U.S. 629, 632-33 (1953).

E. Attorneys’ Fees. The Award of counsel fees to the

successful plaintiffs by the District Court (A. 92, 108)

fell squarely within the traditional equitable power of

federal courts to award such fees, whether justified

(i) by the bad faith and dilatory defense by petition-

ers of an obvious case of employment discrimination,

Hall v. Cole, 412 U.S. 1, 5 (1973); (ii) because plain-

tiffs’ successful litigation confers a substantial benefit

on the members of an ascertainable class which

corrects or prevents an abuse which would be prejudi-

cial to the rights and interests of others, Hall v. Cole,

supra, at 5-6; Mills v. Electronic Auto-Lite Co., 396

U.S. 375, 393-94, 396 (1970); and/or (iii) because plain-

tiffs acted as “private attorneys general” vindicating

a policy that Congress considered of the highest prior-

ity, Bradley v. School Board of City of Richmoad,

— US. —, 40 L.Ed.2d 476, 486, 493, n. 27 (1974); Hall

v. Cole, supra, 412 U.S. at 5, n. 7; Newman v. Piggie

Park Enterprises, Inc., 390 U.S” 400, 402 (1968);

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972), aff'd,

409 U.S. 942 (1972).

Congress early expressed its intent that counsel fees

should be awarded in successful civil rights litigation,

Act of May 31, 1870, §§ 2, 3, 16 Stat. 140, and more

recently has expressly authorized attorneys’ fees to

the prevailing party in employment discrimination

litigation under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5(k), which is now applicabie

to state and local governments, governmental agen-

Merwe FE PPE PPE ESN BERMAN ASL ET LE AP Rn Ga Rae

cies, and political subdivisions, P.L. 92-261, 86 Stat.

103, § 2(1) (March 24, 1972).

Awards of attorneys’ fees against state and local of-

ficials in successful employment discrimination liti-

gation pursuant to the Fourteenth Amendment and 42

U.S.C. §§ 1981 and 1983 are Supported by the over-

whelming weight of authority and present no conflict

of decisions or substantial Federal question. E.g.,

Fowler v. Schwarzwalder, __ F.2d — 7 EPD § 9427

(8th Cir. 1974) (St. Paul Fire Dept. Officials); Harper

v. Mayor and City Council of Baltimore, 359 F. Supp.

1187, 1217-18 (D. Md. 1973), aff'd, 486 F2d 1134 (4th

Cir. 1973) (Baltimore Fire Dept. Officiais); NAACP

v. Allen, 340 Supp. 703, 707-10 (M.D. Ala. 1972), aff'd,

493 F2d 614, (5th Cir. 1974) (Alabama Dept. of Public

Safety Officials); Cooper v. Allen, 467 F.2d 836, 841

(5th Cir. 1972) (Atlanta City Officials).

Petitioners assert that under Edélman vy. Jordan,

Supra, an award of attorneys’ fees against individual

State official defendants is barred by the Eleventh

Amendment (Petition, pp. 19-20), but the Edelman

question is not presented here. 6

There is no hint in this case that the attorneys’ fee

award against individual wrongdoing state officials is

the equivalent of an award of an accrued monetary

liability which must be met from the general revenues

of the state. Plaintiffs seek no recovery of money

from the state, and in no sense is the state the real

or substantial party in interest. The award of attor-

neys’ fees was made as part of the costs of the litiga-

GPS ices rr eeennone on tam ey Catan ineaiaciiciniae a

tion against the individual state official defendants for

which they are liable, as any individual defendants,

for their wrongdoing and unsuccessful defense of the

litigation, and in no case has this Court held that such

an award is barred by the Eleventh Amendment. Cf.

Scheuer v. Rhodes, _ U.S. __, 40 L.Ed.2d 90 (1974);

Bradley v. School Bd. of City of Richmond, supra;

Northcross v. Bd. of Educ. of Memphis City Schools,

412 US. 427 (1973); Fa.rmont Creamery Co. v.

Minnesota, 275 U.S. 70 (1927). See, Brandenburger v.

Thompson, 494 F.2d 885 (9th Cir. 1974); Gates v.

Collier, 489 F.2d 298 (5th Cir. 1973) (rejecting Eleventh

Amendment argument in awarding attorneys’ fees

against individual state officials).

CONCLUSION

For the foregoing reasons this petition for a writ of

certiorari should be denied.

Respectfully submitted,

se ALIX H. SANDERS

FRANK R. PARKER

Lawyers’ Committee for

Civil Rights Under Law

233 North Farish Street

Jackson, Mississippi 39201

Attorneys for Respondents

re ee, <P Pe INES eel SL APES.

SS eee LF Na BED ERS POM,

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-1136

WILLIE L. MORROW AND JEROME MANGUM,

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS

SIMILARLY SITUATED,

Plaintiffs-Appellants,

Cross Appellees,

versus

GILES W. CRISLER, COMMISSIONER OF PUBLIC

SAFETY OF MISSISSIPPI, ET AL,

Defendants-Appellees,

Cross Appellants.

ON REHEARING EN BANC

DEFENDANTS’ SUBMISSION ON EMPLOYMENT

AND TESTING STATISTICS SINCE JANUARY 1, 1972

COME NOW the Defendants-Appellees, by their at-

torneys, and present for the en banc court a compen-

8 MS RETYIOTS “IN BANC SES Se ae ¥ Bh yee coe MSH.

ee ee eS Oe Cee oR

ees

dium of the employment and testing statistics since

January 1, 1972, to wit: . »

EMPLOYMENT PERIOD JANUARY 1, 1972,

THROUGH OCTOBER 4, 1973

TOTAL WHITE % BLAQK %

APPLICATIONS

RECEIVED 1089 816 75% 273 25%

APPLICANTS

TESTED 867 644 174% 223 26%

APPLICANTS

PASSED 490 447 91% 43 9%

APPLICANTS

FAILED 377 197 52% 180 48%

FAILED TO RE-

PORT FOR TESTS 257 =—s-«:180 Ss 70% 77 30%

‘EMPLOYED BY

DEPARTMENT 250 222 89% 28 811%

TERMINATED BY

DEPARTMENT 162 150 93% 12 71%

Percent of whites hired who passed tests - 50%

Percent of blacks hired who passed tests - 65%

Percent of whites terminated during period - 68%

Percent of blacks terminated during period - 43%

EY RISE 8 PE IS EERE Bar BO IN ERR EIN LTTE A NN OE EON EL LIM: AG TNE REET, ATO IE CG OA hg rE —

RECRUIT SCHOOL

June 18, 1972

TOTAL WHITE BLACK

NOTIFIED FOR TESTS 440 303 137

APPLICANTS TESTED 343 233 110

APPLICANTS PASSED 164 151 13

APPLICANTS FAILED 179 82 97

FAILED TO REPORT FOR

TESTS 97 70 27

NOTIFIED FOR

PHYSICAL EXAMINATION 164 152 12

APPLICANTS EXAMINED 158 147 11

APPLICANTS PASSED 84 80 4

APPLICANTS CONDI-

TIONALLY PASSED 25 23 2

APPLICANTS FAILED 49 44 5

FAILED TO REPORT

FOR PHYSICAL 6 5 1

APPLICANTS SELECTED

FOR SCHOOL 48 43 5

FAILED TO REPORT

FOR SCHOOL 0 0 0

APPLICANTS WHO

LEFT SCHOOL 16 14 2

APPLICANTS DISMISSED

FROM SCHOOL 0 0 0

RECRUITS GRADUATED

9-i-72

RECRUIT SCHOOL

January 7, 1973

TOTAL WHITE BLACK

NOTIFIED FOR TESTS 113 93 40

APPLICANTS TESTED 99 73 26

APPLICANTS PASSED 4 50 4

APPLICANTS FAILED 45 B22

FAILED TO REPORT

FOR TESTS 34 20 14

NOTIFIED FOR

PHYSICAL EXAMINATION 54 50 4

APPLICANTS EXAMINED _54 50 4

APPLICANTS PASSED 21 20 1

APPLICANTS CONDI-

TIONALLY PASSED 23 20 3

APPLICANTS FAILED 10 10 0

FAILED TO REPORT

FOR PHYSICAL 0 0 0

NOTIFIED FOR PHYSI-

CAL REEXAMINATION _ 34 33 1

APPLICANTS REEXAMINED 24 23 1

APPLICANTS PASSED 20 20 0

APPLICANTS CONDI-

TIONALLY PASSED 3 2 1

APPLICANTS FAILED i 1 0

FAILED TO REPORT

FOR PHYSICAL 10 10 0

APPLICANTS SELECTED

FOR SCHOOL 40 39 1

FAILED TO REPORT

FOR SCHOOL 5 5 0

ss seutpialisssiaias cikid omelet a cheaettaaial ini aise alien dea eine dade a a a : .

APPLICANTS WHO

LEFT SCHOOL 15 15 0

APPLICANTS DISMISSED

FROM SCHOOL 0 0 0

RECRUITS GRADUATED

4-6-73 20 19 1

RECRUIT SCHOOL

April 22, 1973

TOTAL WHITE BLACK

NOTIFIED FOR TESTS 131 92 39

APPLICANTS TESTED ,_ 99 73 26

APPLICANTS PASSED 56 54 2

APPLICANTS FAILED 43 19 24

FAILED TO REPORT

FOR TESTS oe - 19 13

NOTIFIED FOR

PHYSICAL EXAMINATION 56 54 2

APPLICANTS EXAMINED 55 53 2

APPLICANTS PASSED 34 34 0

APPLICANTS CONDI-

TIONALLY PASSED s 6 0

APPLICANTS FAILED 15 13 2

FAILED TO REPORT

FOR PHYSICAL 1 1 0

NOTIFIED FOR PHYSICAL

REEXAMINATION . eee 2

APPLICANTS REEXAMINED 24 23 1

APPLICANTS PASSED 15 15 0

APPLICANTS CONDI-

TIONALLY PASSED 5 4 1

APPLICANTS FAILED 4 4 0

° %

EE OL IS NET, TOTNES ER ROTT a , tiene

FAILED TO REPORT

FOR PHYSICAL 8

APPLICANTS SELECTED

FOR SCHOOL beso

FAILED TO REPORT

FOR SCHOOL | . 2

APPLICANTS WHO |

LEFT SCHOOL 18

APPLICANTS DISMISSED

FROM SCHOOL 8

RECRUITS GRADUATED

7-20-73 22

RECRUIT SCHOOL

September 2, 1973

NOTIFIED FOR TESTS 142

APPLICANTS TESTED 102

APPLICANTS PASSED 50

APPLICANTS FAILED 52

FAILED TO REPORT

FOR TESTS 40

NOTIFIED FOR

PHYSICAL EXAMINATION 50

APPLICANTS EXAMINED 48

APPLICANTS PASSED 31

APPLICANTS CONDI-

TIONALLY PASSED 10

APPLICANTS FAILED 7

FAILED TO REPORT

FOR PHYSICAL 2

NOTIFIED FOR PHYSICAL

REEXAMINATION 30

a a

TOTAL WHITE BLACK

—

3 7a

APPLICANTS REEXAMINED 21 21 0

APPLICANTS PASSED 17 17 0

APPLICANTS CONDITION-

ALLY PASSED 0 0 0

APPLICANTS FAILED 4 4 0

FAILED TO REPORT FOR

PHYSICAL 9 8 1

APPLICANTS SELECTED

FOR SCHOOL 46 41 5

FAILED TO REPORT

‘FOR SCHOOL 4 4 0

APPLICANTS WHO LEFT

SCHOOL 18 15 3

APPLICANTS DISMISSED

. FROM SCHOOL 1 1 0

REMAINING RECRUITS 23 21 2

Respecfully submitted,

A, F. SUMMER, ATTORNEY

GENERAL OF THE STATE

OF MISSISSIPPI

WILLIAM A, ALLAIN

FIRST ASSISTANT

ATTORNEY GENERAL

HEBER A. LADNER, JR.

SPECIAL COUNSEL

Suite 1638, Capital Towers

Jackson, Mississippi 39201

/s/ HEBER LADNER, JR.

HEBER A. LADNER, JR.

ae tabi a ae Sk Dt ,

oo Oy

Foe

1 7

RAN rare peancerenRTURAORn DearS RRND RUIN amenity |

Ssproportionately larger number of whites

have been hiring for patrolman positions ‘or remain

if c ‘ ? ‘

have tt ‘

‘ L¢ .

‘

' t er >

‘

a h¢

‘ i ‘ ? ty tr a

‘ . t

‘ « , ,

Applicants Pested 44 Zes

Applicants passed 447 45

Pass Rate 69°: 19%

Conclusion: The pass rate for whites taking tests for

Department of Public Safety positions is 3.6 times the

pass rate for blacks. This disparity is higher than that

shown ir any of the reported appellate court cases

where a conclusion of racial discrimination in testing

has been upheld. Castro v. Beecher, 459 F.2d 725 (1st

Cir. 1972) (pass rate for whites 2.6 times the pass rate

for blacks): Bridgeport Guardians, Inc. v. Bridgeport

‘pass rate for whites 3-12 times the pass rate

for blacks and Puerto Ricans}; Chance v. Bd. of Exam-

ners, 458 F.2d 1167, 1171 (2d Cir. 1972) ‘pass rate for

whites 1-1] 2 times pass rate for blacks and Puerto Ri-

12a

cans); Commonwealth of Pennsylvania v. O’Neill, 473

F.2d 1029 (3d Cir. 1973) (pass rate for whites 1.82 times

pass rate for blacks).

5. Testing Discrimination, Highway Patrol. An an-

alysis of the testing statistics for the Highway Patrol,

compiled separately from the figures contained in the

columns under the date for each recruit training

school, shows an even greater disparity:

Whites Blacks

Applicants Tested 449 194

Applicants Passed 299 25

Pass Rate 66.6% 12.9%

Conclusion: The pass rate for whites taking tests for

Highway Patrol positions is 5.2 times the pass rate

for blacks, a disparity much greater than proven in

any of the reported appellate cases where racial dis-

crimination in testing has been found.

Respectfully submitted,

/s/ FRANK R. PARKER

FRANK R. PARKER

Lawyers’ Committee for

Civil Rights Under Law

233 North Farish Street

Jackson, Mississippi 39201

Attorney for Appellants

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.