Morrow v. Crisler

• Citation: 479 F.2d 960
• Decision Date: 06 August 1973
• Docket Number: No. 72-1136.,72-1136.
• Parties: Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants-Cross Appellees, v. Giles W. CRISLER, Commissioner of Public Safety of Mississippi, et al., Defendants-Appellees-Cross Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

479 F.2d 960 (1973)

Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants-Cross Appellees, v. Giles W. CRISLER, Commissioner of Public Safety of Mississippi, et al., Defendants-Appellees-Cross Appellants.

No. 72-1136.

United States Court of Appeals, Fifth Circuit.

April 18, 1973.

Rehearing and Rehearing Granted August 6, 1973.

Frank R. Parker, Constance Iona Slaughter, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants.

William A. Allain, First Asst. Atty. Gen., P. Roger Googe, Jr., Special Asst. Atty. Gen., Charles A. Marx, Heber Ladner, Jr., Jackson, Miss., for defendants-appellees.

David L. Rose, Chief, William B. Fenton, Employment Section, Dept. of Justice, Civil Rights Div., Washington, D. C., amicus curiae.

Before BELL, GOLDBERG and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Granted August 6, 1973.

RONEY, Circuit Judge:

This is a civil rights suit involving racial discrimination in employment and working conditions in the Mississippi Highway Safety Patrol. The District Court entered a declaratory and injunctive decree in favor of the plaintiffs who appeal on the ground that they were not accorded sufficient relief by the Court. The defendants cross-appeal. We affirm.

The defendants' cross-appeal is without merit. The population of the State of Mississippi was 36.7% black according to the 1970 Census. The Mississippi Highway Patrol has never in its history employed a member of the Negro race as a sworn officer. As of April 15, 1971, of the 27 bureaus within the Department of Public Safety, only two, the Maintenance Bureau and the Training Academy, had any black employees and these consisted of cooks and janitors. The employees of all other bureaus within the Department, including clerical and secretarial personnel and sworn officers, were white. Of the Department's 743 employees, only 17 are black. Since January 1, 1968, 197 persons, all white, have been hired as Mississippi Highway Patrolmen. The evidence presented in this case amply supports the District Court's conclusion that the policies and practices of the defendants constitute a pattern and practice of racial discrimination in hiring and employment in violation of the Fourteenth Amendment to the United States Constitution and that plaintiffs are entitled to injunctive relief.

This brings us to the plaintiffs' appeal. The District Court entered a declaratory and injunctive decree, attached in full as an appendix, which declared the right of the plaintiffs and the members of the plaintiff class to be treated equally without racial discrimination, and enjoined the defendants from (1) racial discrimination in the distribution, receipt, and processing of all applications for employment within the Department of Public Safety; (2) from continuing, maintaining or instituting any of nine specified racially discriminatory practices, including the requirement of passing a standardized general intelligence test or the Otis Quick Mental Scoring Test or any other tests which have neither been validated nor proved to be significantly related to successful job performance; (3) from applying for the next five years any standards or conditions of employment more stringent than those previously applied that would make it more difficult for future employees to be hired; (4) from giving preference to applicants who have relatives in the Department; (5) from using recruiting films which imply that responsible positions are open to or held by whites only; and requiring defendants to (6) conduct an affirmative recruiting program oriented to the black population; (7) comply with Departmental Rules and Regulations prohibiting the use of any racial terms and epithets which are humiliating, derogatory, and insulting to anyone because of their race, color, creed, or national origin; (8) maintain records and make reports as to the race of all applicants, employees, hirings, promotions, demotions, and discharges for a three to five year period.

The Court specifically denied the individual plaintiffs the relief of hiring, training, and back pay, and denied the affirmative relief of requiring the defendants to increase the number of black officers by minority preference on a racial quota system, to the end that the percentage of blacks on the Patrol does not significantly differ from the percentage of blacks in the population of the State of Mississippi.

The question before us is whether the District Court was required to afford the affirmative relief as a matter of law.

Relief as to Individuals

The decision as to whether the individual plaintiffs were legally entitled to affirmative relief turns on whether or not the Court was clearly erroneous in finding that at the time that plaintiffs sought application forms in June, 1970, they were denied the requested forms because of an employment freeze or embargo caused by budgetary problems and were not denied these forms because of their race. The plaintiffs argue that once it was determined defendants were guilty of a pattern and practice of racial discrimination in hiring and employment practices, the defendants must show by clear and convincing evidence that the action was taken for other than racial reasons. The plaintiffs argue that the findings of the Court are not insulated from a full review by the clearly erroneous standard because the Court applied the wrong legal standard. This argument is not without some difficulty. We think, however, that the plaintiffs misconceive the force of their figures. Once the state proved that there was an embargo on hiring at the time the plaintiffs sought to apply, i. e., that no one was hired, black or white, because of budgetary reasons, then the prima facie case of discrimination fades for that period of time. The essence of the case is whether the plaintiffs did not get jobs because of their race. The court having determined that no one got jobs during the period involved simply means that the plaintiffs would not have gotten the jobs had they been white. This being the case, they cannot now obtain employment, back pay, and other benefits as if they would have received jobs, but for their race. The evidence concerning the embargo was conflicting, but once the credibility choices were resolved by the District Court, we cannot hold that the Court's decision was clearly erroneous. The plaintiffs were told to return for applications in September, 1970, at which time the embargo would be lifted. They did not do this, even though advised by an attorney to do so. The evidence is not sufficient to conclude that they would now be working for the Department had they been white, which would seem to be a sine qua non for the relief they request.

The Class Relief

The question here is whether the District Court granted sufficient equitable relief to eliminate the discriminatory effects of the past as well as to bar like discrimination in the future. If it did not, it abused its discretion, and the case would be remanded for the entry of appropriate relief.

The appellants argue that the relief granted was insufficient for two reasons: first, the Court should have ordered affirmative hiring relief for minority persons as a class, through either minority preference in hiring or quota hiring, and second, the Court should have enjoined the administration of unvalidated employment tests.

We do not reach the question as to whether it would have been within the Court's discretion to order relief of this kind. We merely decide that, under the facts and circumstances as shown by the record in this case, the failure to fashion relief along these lines was not an abuse of discretion.

The approach to the review of orders of District Courts in granting relief in cases involving racial discrimination in public hiring is not unlike that referred to by the Supreme Court in Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970):

"Once a right and a violation have been shown, the scope of a district court\'s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.

`The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. Hecht Co. v. Bowles, 321 U.S. 321, 329-330 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944), cited in Brown II Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)\'. . . .

In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary.

Judicial authority enters only when local authority defaults."

402 U.S. at 15-16, 91 S.Ct. at 1276. See Smith v. Young Men's Christian Ass'n of Montgomery, 462 F.2d 634, 649 (5th Cir. 1972).

We are met with this obstacle to the argument that the Court did not require enough: there is no showing in this record that the relief it granted will not remedy the wrong. There is no evidence in the record from which to infer the percentage of the hired employees of the Highway Patrol that be white and the percentage that would be black, but for racial discrimination. There is no evidence that the enforced recruiting measures ordered by the District Court will not be sufficient to assure all interested members of the minority class that they will be hired by the Department, if qualified. There is no evidence that the present...