Castro v. Beecher

• Decision Date: 07 May 1973
• Docket Number: Civ. A. No. 70-1220.
• Citation: 365 F. Supp. 655
• Parties: Pedro CASTRO et al. v. Nancy BEECHER et al.
• Court: U.S. District Court — District of Massachusetts

365 F. Supp. 655

Pedro CASTRO et al. v. Nancy BEECHER et al.

Civ. A. No. 70-1220.

United States District Court, D. Massachusetts.

April 15, 1973.

Rehearing Denied May 7, 1973.

John F. McGarry, Asst. Atty. Gen., for the Civil Service defendants.

Richard A. Howard and John F. Dargin, Jr., Boston, Mass., for intervenors.

Nicholas Foundas, Boston, Mass., for defendant Police Commissioner of City of Boston.

Thomas A. Mela and Patrick J. King, Boston, Mass., for plaintiffs.

OPINION

On Motions for Approval of Consent Decree

WYZANSKI, Senior District Judge.

This case is before the Court on a motion made by all the parties and intervenors. It seeks the Court's approval of a decree in the form set forth in Appendix A, to which everyone of them has consented in writing.

Unlike most consent decrees, it has been preceded by full hearings, findings of fact, conclusions of law, and several opinions in 1971 by this court, reported in 334 F.Supp. 930, and two opinions of the Court of Appeals delivered in 1972.

Plaintiffs, a class of blacks and Spanish-speaking persons, hereafter for brevity sometimes called merely "blacks", complained that the Massachusetts Civil Service Commissioners discriminated against them in setting civil service examinations preliminarily to certifying candidates for appointment by cities, towns, and state agencies, in violation of the Fourteenth Amendment to the United States Constitution's guarantee of equal protection under the laws, and in violation of the Civil Rights Act codified in 42 U.S.C. § 1983.

Ample opportunity was expressly afforded in this court in 1971 for intervention. Advantage was taken of this by persons who were without exception allowed to intervene upon request. By the most widespread publicity in 1971, 1972, and particularly in 1973, all media of communication drew the public's attention to this litigation. The press, the radio, and the television stations in their reports indicated that the Attorney General of Massachusetts, members of the Massachusetts legislature, and some individuals contemplated intervention. This court allowed the time between the discussion of a possible compromise first set forth in open hearing on March 27, and fully discussed thereafter in the Massachusetts legislature, and debated by columnists and correspondents in the press, and the time of the formal presentation of the compromise in open court on April 13, 1973, for possible intervention. Despite the barrage of publicity, which, to say the least, raised every possible real or fanciful objection, no one who had not previously appeared sought intervention. Nonetheless, those who were already parties or intervenors brought to the court's attention in public proceedings every kind of potentially relevant factor.

The matter is now ripe for action.

In 1972 the Court of Appeals overruled this court's 1971 determination that no black or white should have priority of any kind. It had been this court's judgment that the only relief to which plaintiffs were entitled was (1) the setting aside of the results of three examinations which the Civil Service Commission itself had admitted in court were discriminatory, and (2) the ordering of the Civil Service Commission to design and conduct new examinations which would be open to all, with no one, regardless of ethnic or other considerations, entitled to favor or any kind of preference of any sort.

The Court of Appeals, disagreeing with this court, directly commanded that a first priority be given to Blacks and Spanish-speaking persons who should pass a new properly designed non-discriminatory examination, and that a second priority be given to those (who happened to be virtually in each instance white persons who were not Spanish-Americans) who previous to 1972 had passed the admittedly discriminatory examinations. That Court also suggested, but did not command, possible ratios between those two priority groups, which are called in the Draft Decree presented by the parties and intervenors, Group "A" and Group "B".

The Draft Decree conforms in its Groups A and B to the judgment of the Court of Appeals.

No objection has been made to that aspect of the Draft Decree. The only objection which this Court can imagine might have been made, but was not in fact made, would be by a black who did not pass the 1972 Civil Service examination, and who therefore did not come within Group A.

There has been considerable public misunderstanding as to the possible claim of such a black. This court confesses that its own lack of clarity contributed to that confusion. Others who failed to read the whole record consecutively, but who picked out of context particular remarks, did their share in promoting confusion.

Chronologically, the first point to be made about the hypothetical black who did not pass the 1972 examination is that, by necessity, he must be supposed to be a person with a high school diploma or its equivalent. In the most explicit terms, in a passage several paragraphs in length, this court ruled in 1971 in its published and unaltered opinion, that only high school graduates or their equivalent were eligible to become police patrolmen. This is the valid Massachusetts statutory rule. It conforms to national standards. And what this court ruled on this point was affirmed in 1972 by the Court of Appeals. It is hard to see how in good faith any informed person, whether party, intervenor, counsel, journalist, correspondent, or legislator could ever have supposed that this court was being asked in 1973 to consider, or contemplated in 1973 considering, the appointment to the police forces of a candidate who could not read or write, or reach in all respects the level of a high school graduate.

The second point to be made about the hypothetical black who did not pass the 1972 examination is that, admittedly, he could prove, not just assert, that the Civil Service Commission did not comply with the decrees of this court in 1971 and of the Court of Appeals in 1972 in setting that examination. Without ambiguity, both courts commanded the Civil Service Commission to design a new examination. Confessedly, the Commission offered a hodge-podge of old examinations. Even if this paper-and-paste assembly could be construed as a novel combination, the several parts were obsolete and did not purport to be related specifically to the police patrolman's job. At best this examination tested qualities possibly relevant to a candidate for a low level position in the desk occupations of the white-collar persons employed in the federal bureaucracy.

The third point to be made is that at one early stage of the open court proceedings on March 27, a lawyer suggested on his own initiative that the hypothetical black who failed the 1972 examination and his 55 or so colleagues, in view of the impropriety of the 1972 examination and his proven ability as a high school graduate to pass a fair examination, be treated as though he had in fact passed a valid examination.

What this proposal sought to accomplish was the avoidance of a cancellation of all the results of the 1972 examination and an immediate appointment of those who had long been awaiting positions to which they, under the decree of the Court of Appeals, were entitled because they had already passed pre-1972 examinations. This proposal was designed to help the local authorities make not merely temporary appointments to the police (a right which they had always retained and exercised without let or hindrance by any injunction or judicial restraint) but also hundreds of permanent appointments.

Recognizing the obvious appeal of this proposal initiated by others, this court later in the hearing proposed that the parties and intervenors during a 10 day adjournment should voluntarily consider as a feature of a possible overall compromise that blacks who took but did not pass the 1972 Civil Service Examination should be certified by the Commission.

Such proposal was not an order commanding the certification of such blacks. This court would have lacked the power to issue such an order. Moreover, in the clearest terms in 1971 this court had ruled, and had never changed, or contemplated changing, its ruling that the United States Constitution's Equal Protection Clause does not authorize quotas based on ethnic considerations or any comparable priority except in the most unusual situations, of which this obviously was not one, at least in this court's opinion (before it was otherwise instructed in 1972 by the Court of Appeals).

At the same time that the court proposed discussions between the parties and intervenors, the court noted how dilatory and otherwise obdurate had been the Civil Service Commission. The court indicated that the obduracy of the Commision might induce the court to appoint a receiver. See opinion March 22, 1973. Explaining how inadequate any purely legal-judicial remedies might be because of the limitations of the constitutional remedies and because of the restrictions upon judicial power, even when exercised by activist judges, this court entered on March 28 a Memorandum as a reflection intended to aid the parties in reaching a compromise. See Memorandum dated March 28, 1973.

It now appears from the Draft Decree presented April 13, 1973 to this court, that the parties and intervenors do not want to have included in the Decree any special priority for black high school graduates or others who did not pass the 1972 examination.

This court surely does not object. It never thought it had the constitutional right to order such a provision. It only proposed that the provision which had been initiated by others be considered. As a voluntary compromise, it has been considered. It has been rejected. And that's that.

Nor can valid objection to the omission be made by any black who took and failed the 1972 examination. Such a hypothetical person is represented by competent counsel who on his behalf has recognized he...