459 F.2d 725 (1st Cir. 1972), 71-1180, Castro v. Beecher

Docket Nº:71-1180, 71-1395, 71-1396.
Citation:459 F.2d 725
Party Name:Pedro CASTRO et al., Plaintiffs-Appellants, v. Nancy BEECHER et al., Defendants-Appellees, George A. Hodges et al., Intervenors-Appellants, Jeffrey O. Counsell et al., Proposed Intervenors-Appellants (three cases).
Case Date:April 26, 1972
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 725

459 F.2d 725 (1st Cir. 1972)

Pedro CASTRO et al., Plaintiffs-Appellants,

v.

Nancy BEECHER et al., Defendants-Appellees,

George A. Hodges et al., Intervenors-Appellants,

Jeffrey O. Counsell et al., Proposed Intervenors-Appellants (three cases).

Nos. 71-1180, 71-1395, 71-1396.

United States Court of Appeals, First Circuit.

April 26, 1972

Argued Jan. 3 and March 6, 1972.

As Amended May 24, 1972.

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[Copyrighted Material Omitted]

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Thomas A. Mela, Boston, Mass., with whom Patrick J. King, Boston, Mass., and Jeffry S. Mintz, New York City, were on briefs, for Pedro Castro et al.

Richard A. Howard and John F. Dargin, Jr., Boston, Mass., with whom Brickley, Sears & Cole, Boston, Mass., was on brief, for George A. Hodges et al., intervenors.

John F. McGary, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., Chief, Administrative Division, were on brief, for Nancy Beecher et al.

Robert Glass, Cambridge, Mass., for Edmund McNamara.

Henry Wise and Robert L. Wise, Boston, Mass., on brief, for Boston Police Patrolmen's Association, Inc., amicus curiae.

Herbert F. Travers, Jr., U. S. Atty., David L. Norman, Asst. Atty. Gen., Denis F. Gordon, and Joel L. Selig, Attys., Department of Justice, on brief, for the United States, amicus curiae.

Robert P. Vogel, Asst. Atty. Gen., F. John Hagele, Deputy Atty. Gen., and J. Shane Creamer, Atty. Gen., on brief for Commonwealth of Pennsylvania, amicus curiae.

John F. Dargin, Jr., Boston, Mass., and Robert C. Hagopian, Cambridge, Mass., for appellants in case No. 71-1180.

Patrick J. King, Boston, Mass., with whom Thomas A. Mela, Boston, Mass., was on brief, for appellees in case No. 71-1180.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This case epitomizes the classic, clumsy and yet unavoidable attempt to rectify, through the courts, long standing though not consciously intended discriminatory selection policies in public employment in a northern community. The fact that the discrimination was not intended has raised somewhat novel issues relating to the standards for judging policies

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of a public employer which have been discriminatory in effect, the feasibility of identifying racial classes in the face of non-purposive policies which have had a broader than racial reach, the extent to which remedies must seek not only to eliminate discrimination in the future but compensate for past injustice, and, if such compensatory relief be required, how it may be effected with minimum impact on the earned expectancies of innocent beneficiaries of a discriminatory system.

The plaintiffs are six black and two Spanish-surnamed residents of Boston who claim violations of their civil rights under 42 U.S.C. § 1981 and § 1983 in the police recruiting and hiring practices of defendants, the members of the Massachusetts Civil Service Commission, the Director of Civil Service, and the Commissioner of the Boston Police Department. Plaintiffs brought the action on their own behalf and on behalf of black and Spanish-surnamed persons who have applied, might apply, or, but for the alleged discriminatory practices, might have applied for the job of policeman in Boston, in the other cities and towns of Massachusetts, or with the Metropolitan District Commission (M.D.C.), the Massachusetts Bay Transportation Authority (M.B.T.A.), or the Capitol Police. Their claims are that they and their class suffer discrimination in the dissemination of information about employment opportunities; in the imposition of an irrelevant and discriminatory educational requirement; and in the use of a nonjob predictive and discriminatory written examination, a five foot seven inch minimum height, and a one hundred yard swimming test. Plaintiffs seek declaratory and injunctive relief barring recourse to existing eligibility lists or to any requirement which has not been found to be predictive of successful performance on the job, and affirmatively, ordering preferential hiring of qualified blacks and Spanish-surnamed applicants until the percentage of such officers on the Boston force equals the percentage of black and Spanish-surnamed people in the Boston population.

After a substantial trial, the court addressed itself in three separate rulings to plaintiffs' request that a class be certified. It first held that, all the evidence having been submitted, the request was not timely. It then ruled that plaintiffs, all of whom had taken one or more police examinations, were not in the position of those black and Spanish-surnamed individuals who had not known of the examinations or had been discouraged from taking them. Finally, and most importantly, it observed that if a comprehensive class sharing the same characteristics were to be recognized, it would be not all black and Spanish-surnamed actual or potential applicants but rather all who wished police employment, took the examination, and failed for cultural reasons. The court variously described the class as also including "non-mainstream whites" and, most comprehensively, "minorities which did not share the prevailing white culture: that is, . . . groups such as blacks, yellows, browns, American Indians, persons reared in lands where the preferred language is not English, and even whites from backwood areas."

In its opinion on the merits, 334 F.Supp. 930 (D.Mass.1971), the court first acknowledged that there was no claim or evidence that defendants had a discriminatory purpose or pursued any practice that was discriminatory on its face. It then approached each of plaintiffs' claims to inquire whether the challenged standard or requirement was significantly related to a policeman's job and, if not, whether objectively it had the consequence of discriminating against black and Spanish-surnamed police applicants. It found a discrepancy sufficient to put it on inquiry; namely, a 16.3 per cent black population in Boston in 1970, with blacks on the police force representing only 3.6 per cent. 1 Analyzing each of the challenged practices, it concluded

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that recruiting, even if plaintiffs could raise the point, had been adquately and fairly conducted, and that the educational, height, and swim test requirements all had a significant relation to a policeman's job performance.

As to the principal grievance, shared by all the named plaintiffs, that the written examination was both non-job predictive and discriminatory, the court had much more to say. Though the examinations after 1967 placed less stress on memory and general information and more on "general intelligence" than in earlier years, the court found that the test designers lacked training in either test design or police selection; that the passing grade of 70 was arbitrarily selected; that no attempt was made to relate the questions to an occupational analysis of a policeman's job; that stress was placed on verbal and academic skills having little relevance; and that the racial data collected by questionnaire for the September, 1970, examination revealed that while only 25 per cent of the black and 10 per cent of the Spanish-surnamed applicants passed, 65 per cent of all others did. The court held not only that the examinations given in 1968-1970 were not rationally related to the capacity to perform a policeman's job but that they were "discriminatory against minorities which did not share the prevailing white culture."

The court proceeded to fashion a remedy stemming from its findings. The action against the defendant Police Commissioner was dismissed, since his actions were based upon the examinations, the responsibility of the Civil Service defendants, and involved no further discrimination on his part. Plaintiffs were held entitled to a declaration that the 1968-1970 examinations were not significantly job-related and "gave a discriminatory advantage to white persons whose original primary language was English, and who had been trained and educated in the mainstream of American society"; and an injunction against issuance of further certificates of eligibility based on these examinations and against the use of any examination which is not significantly job related or which discriminates against any "racial, national, cultural, or other comparable group." 2 It laid down guidelines, compliance with which would prima facie accredit the new entrance examination as significantly job related and non-discriminatory. 3 Finally, the Civil Service Commission was directed to submit a comprehensive plan for recruitment of minority group members for all police forces. The court declined to grant preferential hiring for black and Spanish-surnamed applicants.

The Discrimination

On the principal claim in the case- that the entrance examinations were discriminatory-the court, after finding both discrimination and a lack of significant job relatedness, adopted the proposition that the racially discriminatory effect

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of the examination was not cognizable apart from the disadvantage sustained by all who were outside of the "mainstream white" educational, social, and cultural establishment. This proposition underlay the court's refusal to certify a class composed of blacks and Spanish-surnamed persons, and to grant relief appropriate for such a class. Yet the court did not apparently treat the case as one brought only by the individually named plaintiffs, for it did not merely order reexamination or hiring of the eight plaintiffs. In effect, though not in form, it ordered relief for the class of all persons other than "mainstream whites". The discrimination not being in its view racial, there was no basis for giving preferential treatment to any specific racial or...

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