# Respondents Brief — Crisler v. Morrow (Nos. CD-0017-74, 73-1838) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1872%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1974 ## Text ’ al 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 oe. > ' = - = ee ee | 10 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 1K 11 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 + rp oe athe abe peg URS eal > 12 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 13 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 14 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 15 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 16 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 17 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| 18 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 19 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 20 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 21 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 4 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- 4 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, ‘ 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 Ciril Serrice Comm'n, 6 EPD © 8755 (2d Cir. 1973) ‘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- i! 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1872%3A2. Public record. Not legal advice.