Arnold v. Ballard

• Decision Date: 14 March 1978
• Docket Number: No. C 73-478.,C 73-478.
• Citation: 448 F. Supp. 1025
• Parties: Royal Thomas ARNOLD et al., Plaintiffs, v. John S. BALLARD et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

448 F. Supp. 1025

Royal Thomas ARNOLD et al., Plaintiffs, v. John S. BALLARD et al., Defendants.

No. C 73-478.

United States District Court, N. D. Ohio, E. D.

March 14, 1978.

Edwin L. Parms, Akron, Ohio and Richard T. Seymour, Washington, D. C., for plaintiffs.

Richard M. Fanelly, Akron, Ohio, Thomas H. Barnard and John T. Meredith, Cleveland, Ohio, for defendants.

William R. Holland, Akron, Ohio, for intervenor-defendants.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

In this class action alleging racial discrimination by the City of Akron, Ohio, in the hiring and promotion of police and fire officers, the Court on January 31, 1975, issued its order and decree which found, on the basis of disproportionate impact on the plaintiffs, that defendants had used hiring procedures which discriminated on the basis of race in the hiring of Akron police officers. Arnold v. Ballard, 390 F.Supp. 723 (N.D.Ohio 1975). As part of the relief awarded to plaintiffs, the Court ordered that the City of Akron implement a one-for-two hiring quota for the police department, and that the city continue its affirmative recruiting programs. That order and decree followed the grant of a preliminary injunction in May, 1973, which, inter alia, imposed a one-for-one hiring ratio on the Akron fire department. Finally, the parties agreed to two consent decrees. On May 10, 1976, issues concerning promotion and assignment in the police department were resolved (effective September 20, 1976, on the Court's order), as well as substitution of a one-for-two hiring quota for the fire department. On May 17, 1976, the preliminary injunction of 1973 was modified to comport with the terms of the May 10th consent decree.

Meanwhile, defendants had appealed the Court's order and decree of January 31, 1975. The United States Court of Appeals for the Sixth Circuit affirmed that order on June 21, 1976. Arnold v. Ballard, No. 75-1756 (6th Cir. June 21, 1976). In the interim, however, the United States Supreme Court announced its decision (on June 7, 1976) in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which held that proof of discriminatory intent was required to make out a violation of the Fourteenth Amendment and the equal protection clause in employment discrimination cases. Defendants duly filed a motion for rehearing in the Court of Appeals. On October 18, 1976, the Court of Appeals granted the motion, vacated its decision and judgment of June 21, 1976, and remanded this case for reconsideration in light of Washington v. Davis, supra. This Court's order and decree of January 31, 1975, was left in full force and effect, and the parties have continued to abide by its terms. (E. g., the compliance report for 1977 was mailed to this Court on January 17, 1978.) The Court has refrained from reconsidering its prior order until this time because of ongoing settlement discussions, which the parties have informed the Court have now been terminated.

The Court now decides that claims of employment discrimination which are brought under 42 U.S.C. § 1981 and/or the Fourteenth Amendment cannot succeed unless the plaintiffs prove purposeful racial discrimination on the part of the defendants. Because the prior order and decree found liability primarily on the basis of disparate discriminatory impact on the plaintiffs, and no finding of discriminatory intent on the part of the City of Akron was made or even deemed relevant, that question of fact must now be resolved before the Court can make its ultimate determination on this remand for reconsideration. However, the Court will defer to the judgment of the parties, in light of this order, whether they wish the Court to rely on the present record in assessing the question of discriminatory intent, or whether additional material and relevant evidence is necessary. But the Court will, in order to shape the scope of that inquiry, discuss some of the prevailing standards for proving the existence of discriminatory purpose.

I. IMPACT OF WASHINGTON V. DAVIS

Before June 7, 1976, it was the widely accepted rule in this Circuit, as well as others, that a district court could impose numerical relief intended to correct the continuing effects of past racial discrimination when the court found that employment practices had a disproportionate impact on racial minorities. See, e. g., United States v. Masonry Contractors Ass'n of Memphis, Inc., 497 F.2d 871 (6th Cir. 1974). This standard of proof on the issue of the employer's liability, largely borrowed from cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was also routinely held to apply in cases brought against public employers under the Civil Rights Act of 1866, 42 U.S.C. § 1981. See, e. g., Bridgeport Guardians v. Bridgeport Civil Service Comm'n, 482 F.2d 1333 (2d Cir. 1973). This lesser standard of proof was applicable even when the claims under section 1981 were coupled with a claim that the employment practices violated the equal protection clause of the Fourteenth Amendment. That principle was in obvious contrast to equal protection claims in school desegregation and other constitutional discrimination cases, where proof of intentional racial bias is required. See, e. g., Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). It was against that background, and with those accepted principles in mind, that this case was tried and the findings of fact and conclusions of law of the January 31, 1975, order and decree were made. See generally Arnold v. Ballard, supra.

In retrospect and in light of Washington v. Davis, supra, it is now apparent that the federal courts, in their eagerness to redress some of the effects of a long history of racial discrimination in this country, had not made the necessary fine distinctions among claims brought under Title VII, under 42 U.S.C. §§ 1981-1985, and/or under the equal protection clause. Washington v. Davis now teaches us quite clearly that we were in error in believing that "proof of discriminatory racial purpose is unnecessary in making out an equal protection violation . . .." 426 U.S. at 245, 96 S.Ct. at 2050. Proof of intentional discrimination on the basis of race is required for all claims brought solely under the Fourteenth Amendment and the corresponding jurisdictional statutes, e. g., 28 U.S.C. §§ 1331, 1343(3). But Washington v. Davis did not answer the more narrow question which is now posed in this case: must plaintiffs also prove discriminatory purpose on the part of the defendants on those claims arising solely under 42 U.S.C. § 1981?

The Supreme Court did, however, in Part III of Washington v. Davis, imply that proof of discriminatory intent would thereafter be a necessary element of proof for section 1981 claims. The plaintiffs in Washington v. Davis had not only alleged violations of the Fourteenth Amendment by the District of Columbia government, but had also brought claims under section 1981 and the Civil Service Act of 1883, 5 U.S.C. § 3304(a)(1). In proceeding to affirm the district court's holding that the defendants were entitled to summary judgment on both statutory and constitutional grounds, the Court necessarily intimated that Title VII standards were no longer applicable to claims under section 1981. This is because the district court had not found the pre-employment test to be "job-related" as that term had been previously construed in employment discrimination cases. See Washington v. Davis, 426 U.S. at 248-250, 96 S.Ct. 2040. That divorce of Title VII from section 1981 also finds support in prior cases holding that, although the two statutes are related and serve many of the same ends, the remedies are separate and distinct. See Johnson v. Railway Express Agency, 421 U.S. 454, 461, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

But the most important fact about Washington v. Davis for present purposes is that it clearly indicates the direction in which the law of employment discrimination is now developing. There is no real dispute that section 1981—a statute specifically enacted in 1866 to implement the broad concerns of the Thirteenth and Fourteenth Amendments—is a much different creature than Title VII, which was enacted in 1964 as a complex, intricate statutory mechanism for the relief of racial discrimination in employment. See Davis v. County of Los Angeles, 566 F.2d 1334, at 1340 (9th Cir. 1977) (Decision on Rehearing) (Wallace, J., dissenting). Thus the great majority of courts which have considered this question have concluded that section 1981 must be governed by the same considerations as the constitutional provisions from which it is derived. Accordingly, since proof of discriminatory intent is a necessary element of a constitutional violation after Washington v. Davis, the same proof must be required to make out a violation of section 1981. See Davis v. County of Los Angeles, supra, 566 F.2d 1334 (9th Cir. 1977) (Wallace, J., dissenting); Colaizzi v. Walker, 542 F.2d 969, 972 (7th Cir. 1976); Milburn v. Girard, 441 F.Supp. 184, 188 (E.D.Pa.1977); Lewis v. Bethlehem Steel Corp., 440 F.Supp. 949, 962-966 (D.Md. 1977); Croker v. Boeing Co., 437 F.Supp. 1138, 1181-82 (E.D.Pa.1977); Guardians Ass'n of N. Y. City v. Civil Serv. Comm'n, 431 F.Supp. 526, 534 (S.D.N.Y.1977); Johnson v. Hoffman, 424 F.Supp. 490, 494 (E.D. Mo.1977).

Two courts have held that proof of discriminatory purpose is still not a necessary element of a claim under section 1981. However, the Court does not find those cases persuasive. In Dawson v. Pastrick, 441 F.Supp. 133, 140 (N.D.Ind.1977), there was no discussion of the impact of Washington v. Davis on section 1981. In Davis v. County of Los Angeles, supra, the Ninth Circuit based its conclusion primarily on a literal reading of Washington v. Davis, coupled with a desire not to deviate from...