Allen v. City of Mobile

• Citation: 466 F.2d 122
• Decision Date: 17 November 1972
• Docket Number: No. 72-1009.,72-1009.
• Parties: Willie ALLEN et al., Plaintiffs-Appellants, v. The CITY OF MOBILE et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

466 F.2d 122 (1972)

Willie ALLEN et al., Plaintiffs-Appellants, v. The CITY OF MOBILE et al., Defendants-Appellees.

No. 72-1009.

United States Court of Appeals, Fifth Circuit.

September 7, 1972.

Rehearing and Rehearing Denied November 17, 1972.

A. J. Cooper, Jr., Mobile, Ala., Jack Greenberg, Jeffry Mintz, William L. Robinson, New York City, for plaintiffs-appellants.

Mylan R. Engel, Fred G. Collins, Mobile, Ala., for defendants-appellees.

Before BELL, GOLDBERG and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 17, 1972.

PER CURIAM:

Plaintiffs, black officers of the Mobile Police Department, sued the defendants claiming that various practices of the Police Department discriminated against Negro officers on account of their race.

We agree with the plaintiffs' statement contained in their brief that the district court, in granting substantially all relief sought on the subject of racial assignment of officers, in ordering changes to reduce or eliminate the discriminatory impact of seniority and service ratings, and in requiring that instruction in intergroup relations be given to all officers and that the defendants undertake affirmative efforts to recruit black officers, has made possible substantial progress toward the achievement of the elimination of unlawful racial discrimination and the elimination of the vestiges of past discrimination.

Plaintiffs' sole issue on this appeal, however, is that the district court, in fashioning a remedy, did not enjoin the use of a written test, which they contend is discriminatory as to blacks, given to promote officers to the rank of sergeant. The district court found that the test is job-related. We affirm the judgment of Chief Judge Pittman on the basis of his order and decree reported at 331 F.Supp. 1134 (S.D.Ala.1971).

Affirmed.

GOLDBERG, Circuit Judge (dissenting):

It is with great reluctance that I dissent in this case, for I am conscious of the synoptic analysis of the problems surrounding testing procedures and of the enlightened decree entered by the distinguished trial judge. Allen v. City of Mobile, S.D.Ala.1971, 331 F.Supp. 1134. Despite the innovations and courage implicit in the trial judge's reformation of the hiring practices of the police force of Mobile, however, I am convinced that he stopped just short of this case's Rubicon by failing to wade into the deeper waters and to seine for a more optimal test for police promotions. In addition, I am compelled to conclude from the findings of fact of the able district judge that the traditional requirements of equity mandate more immediate relief than that afforded in the decree affirmed by the majority.

The area of occupational and promotional testing is both new and confusing to the courts. So-called "objective" tests were once hailed as the definitive answer to "subjective," often discriminatory, hiring or promotion procedures. But it has become increasingly clear as analysis becomes more sophisticated that there can be other, much more subtle, forms of discrimination lurking in "objective" testing. It is now recognized that a test can be impeccably "objective" in the manner in which the questions are asked, the test administered, and the answers graded, and still be grossly "subjective" in the educational or social milieu in which the test is set. See generally U.S. Comm. on Civil Rights, For ALL the People ... By ALL the People (1969); Comment, "Legal Implications of the Use of Standardized Ability Tests in Employment and Education," 68 Colum.L.Rev. 691 (1968).

I am persuaded that neither the able district judge nor the majority of this panel has applied an appropriate standard of review when a court is confronted with the admittedly difficult problem of reviewing tests. I do not know that I can provide here a more appropriate standard, but I can suggest some guidelines in the context of this case that seem to me to confront the deeper issues regarding testing.

A test alone is not talismanic; it should, in my opinion, be placed in its own context of valid predicative force for the appropriate position of skill and, in some circumstances, of its discriminatory effect. This Court has already concluded that promotional tests, as well as hiring tests, are subject to judicial scrutiny. See United States v. Jacksonville Terminal Co., 5 Cir.1971, 451 F.2d 418. It is beyond question at this point in the nation's history that discriminatory state employment practices are constitutionally invalid, save for those rare cases in which the state can show a substantial interest in maintaining a practice shown to be discriminatory. Appellants have, to paraphrase Mr. Justice Holmes' now diluted dictum, no constitutional right to be policemen. But they do have a constitutional right to "be free from unreasonable discriminatory practices with respect to such employment." Whitner v. Davis, 9 Cir.1969, 410 F.2d 24, 30. See also Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Castro v. Beecher, 1 Cir.1972, 459 F.2d 725; Chance v. Board of Examiners, 2 Cir.1972, 458 F.2d 1167; Carter v. Gallagher, 8 Cir.1971, 452 F.2d 315; Rolfe v. County Board of Education of Lincoln County, Tennessee, 6 Cir.1968, 391 F.2d 77; Wall v. Stanly County Board of Education, 4 Cir.1967, 378 F.2d 275; cf. Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Norwalk CORE v. Norwalk Redevelopment Agency, 2 Cir.1968, 395 F.2d 920. And of course even though police work is unquestionably sensitive, that sensitivity cannot ipso facto justify an unconstitutional procedure. See Washington v. Lee, M.D.Ala.1966, 263 F.Supp. 327 (three-judge court); aff'd per curiam, 1968, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212; Morrow v. Crisler, S.D. Miss.1971, No. 4716 Feb. 12, 1971, Oct. 4, 1971, appeal pending, No. 72-1139 (written test for highway patrol enjoined as unvalidated); Baker v. City of St. Petersburg, 5 Cir.1968, 400 F.2d 294; Castro v. Beecher, supra.

The patrolman in the instant case demonstrated beyond question that the Mobile police department was rife with discriminatory procedures, discrimination that the trial judge specifically found and that the majority accepts.¹ Since the Mobile police department was wrenched from its "whites only" status in 1954, only one black patrolman has been promoted to sergeant (in 1962) in a force in which 12.4% of the officers are black and in a city approximately one-third black. It appears from the record that this one sergeant was placed in positions within the department that precluded him from ever supervising any white officers. In addition, the one black sergeant twice took and passed the test for lieutenant, but had not been promoted at the time of the trial.

It is in the context of these findings that this Court must, in my opinion, view the testing issue.² The record demonstrates that a significantly larger percentage of black applicants failed the test than did white applicants. Of 94 white applicants, over 60% passed; of 14 black applicants, about 14% passed. It is acknowledged by all parties that the test has a critical impact upon promotion and that failure to achieve a passing grade of 70 precludes promotion altogether. Statistics, of course, are usually not conclusive of a proposition of fact, but "in the problem of racial discrimination, statistics tell much, and Courts listen." State of Alabama v. United States, 5 Cir.1962, 304 F.2d 583, aff'd per curiam, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112; see also Turner v. Fouche, 1970, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Hawkins v. Town of Shaw, 5 Cir.1971, 437 F.2d 1286, modified en banc, 5 Cir.1972, 461 F.2d 1171 1972. Although it is not noted in the district court's opinion, the record also shows that the police department's promotion sheets record the race of the applicant alongside the test scores.³ The district court and this panel are in agreement that the appellants produced during the trial a prima facie case that there was clear racial discrimination in the Mobile police department.

The other circuits have found racial discrimination in testing situations where there is not the history and existing milieu of racial discrimination that there is in the instant case. These circuits place more emphasis upon the bare statistics regarding substantial racial difference in rates of passing and promotion than I would find necessary in this case. See Castro v. Beecher, supra; Chance v. Board of Examiners, supra; Carter v. Gallagher, supra. Given the pronounced racial effect in the sergeants' test, accompanied by the findings of the district court that the majority now upholds regarding the long and deep history of racial practices in the police department, I would conclude that appellants have made a prima facie case that the sergeants' test is a part of the department's unconstitutional action. And if a prima facie constitutional violation is demonstrated, it is unnecessary, as a general proposition, that the plaintiff also establish a discriminatory intent on the part of the offending persons. See Whirl v. Kern, 5 Cir.1969, 407 F.2d 781, cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177; Hawkins v. Town of Shaw, supra; Daniels v. Van de Venter, 10 Cir.1967, 382 F.2d 29; Pierson v. Ray, 5 Cir.1965, 352 F.2d 213, rev'd on other grounds, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288; cf. Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. I would also argue, however, that the record and the district court's opinion and decree evince some conviction that the police department's procedures were, at least in part, discriminatory by intent. See, e. g., Allen v. City of Mobile, 331 F.Supp. at 1138. I do not, however, base my dissent upon a specific finding of so-called "intentional" discrimination by the department.⁴

The real issue of this case with regard to testing becomes one of establishing a standard of review to be...