Morrow v. Crisler

• Decision Date: 27 March 1974
• Docket Number: No. 72-1136.,72-1136.
• Citation: 491 F.2d 1053
• Parties: Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants-Cross Appellees, v. Giles CRISLER, Commissioner of Public Safety of Mississippi et al., Defendants-Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.2d 1053 (1974)

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

No. 72-1136.

United States Court of Appeals, Fifth Circuit.

March 27, 1974.

Frank R. Parker, Constance Iona Slaughter, Jackson, Miss., for plaintiffs-appellants-cross appellees.

David L. Rose, Chief, Employment Section, William B. Fenton, Dept. of Justice, Civ. Rights Div., Washington, D.C., Morris S. Dees, Jr., Joseph J. Levin, Jr., Montgomery, Ala., for amicus curiae.

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-cross appellants.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

GEWIN, Circuit Judge:

This case involves racial discrimination in the employment practices of the Mississippi Highway Patrol. There being no question that the Highway Patrol has historically engaged in unconstitutional discrimination in the employment of patrolmen, the only question that brought this case en banc is whether the District Court ordered sufficient affirmative relief to eradicate the State's unconstitutional employment practices and their effects.

Experience since the entry of the decree provides this Court on rehearing with the hindsight to determine what was fathomed by foresight in the dissent from the panel opinion: the relief ordered by the District Court is insufficient. When this case was heard by the original panel in June 1972, the Highway Patrol had four black patrolmen. By the time the case was heard by the en banc Court in October 1973, there were six black patrolmen — six black patrolmen hired since entry of the decree during a period when 91 patrolmen were added to a total force of approximately 500 troopers.

These figures alone negate the State's argument that its present practices are nondiscriminatory, and give no support whatsoever to any argument that the decree appealed from is sufficient to eliminate the effects of past racial discrimination. Although we have difficulty seeing how any good faith argument could be made that the State has fulfilled the spirit, intent, and purpose of the District Court decree, counsel reported at oral argument before the en banc Court that the Highway Patrol has fully complied with the precise terms of the order. This illuminates plaintiffs' argument that the District Court must order additional specific relief if the Mississippi Highway Patrol's employment practices are ever to pass constitutional muster.

The controlling facts of the case and the District Court's decree are fully set forth in the panel opinions reported at 479 F.2d 960 (5th Cir. 1973). The majority affirmed the decree on the ground that it did not appear that the relief granted was inadequate to remedy the constitutional wrong. It was noted that

Time may prove that the District Court was wrong, i.e., that the relief ordered was not sufficient to achieve a nondiscriminatory system and eliminate the effects of past discrimination. . . . The Court has retained jurisdiction to make the decree work. If it has ordered too much, it may modify the decree when it appears necessary. If it has not ordered enough, it may change the decree to require such additional relief as it determines to be necessary to remedy the wrong.

479 F.2d at 964. The undisputed results of the decree as reported to us on rehearing prove that the District Court was wrong, and the en banc Court now decides that the case should have been and must now be remanded for the District Court, in the first instance, to fashion an appropriate decree which will have the certain result of increasing the number of blacks on the Highway Patrol. Although we are mindful of our limited role in fashioning equitable decrees, we deem it fitting to adumbrate guidelines to aid the District Court.

The appellees represent that they have hired every black applicant who has met qualifications for employment. If this be true, it is apparent that either the qualifications are discriminatory in effect, or the State has not conducted a sufficient recruitment campaign to enlist blacks who meet those requirements. It is the recruitment and the hiring criteria that the District Court should scrutinize on remand.

The reputation of the Patrol in the black community as a discriminatory employer has posed a formidable obstacle to the achievement of a Patrol which has eradicated all of the effects of past discriminatory practices. To counteract this reputation, the District Court ordered the Patrol to conduct an affirmative recruitment program. The efficacy of this program is belied by appellees' assertion that qualified blacks are not in fact applying for positions. Since we are not sanguine enough to be of the view that benign recruitment programs can purge in two years a reputation which discriminatory practices of approximately 30 years have entrenched in the minds of blacks in Mississippi, on remand the District Court should order that additional appropriate recruitment measures be taken to insure that black applicants will be attracted to the force.

The Department's hiring criteria should also be reexamined. Employment is presently conditioned upon possession of a high school diploma and passage of the Army General Classification Test, neither of which has been validated as a proper job requirement despite the fact that their propriety has been called into question. It may be that the diploma and test score requirements (a score of 110) are higher than needed to qualify those applicants who can perform the work of a Highway Patrolman. Such tests should be job validated. Moreover, the state should be required to defend by clear and convincing evidence the necessity of any additional objective requirements which black applicants have difficulty in satisfying.

Beyond insuring that objective hiring criteria are utilized, it will be incumbent on the District Court to order some affirmative hiring relief. It may, within the bounds of discretion, order temporary one-to-one or one-to-two hiring, the creation of hiring pools, or a freeze on white hiring, or any other form of affirmative hiring relief until the Patrol is effectively integrated. We emphasize, however, that the imposition of some affirmative hiring relief need not inexorably lead to the dilution of valid employment qualifications.

The duration of the affirmative hiring relief shall be determined by the District Court. When it is convinced that the measures undertaken by the Patrol effectively offset the effects of past discrimination, such affirmative hiring relief can be terminated. It is not required that the proportion of blacks on the Patrol mirror the proportion of blacks in the population. However, in view of the protracted and pervasive discrimination practiced by the Department and the inefficacy of the prior decree in producing a more integrated Patrol, the burden will be upon the Patrol to prove that the residual effect of past discrimination has in fact been eliminated. Moreover, prior to the cessation of affirmative hiring programs, where any black individual challenges the Patrol's refusal to employ him, the Patrol must show that such refusal was for legitimate job related reasons.

Upon completion of its scrutiny of the recruitment program and hiring criteria consistent with the aforementioned principles, the District Court should require the Department to fashion and submit for immediate approval and subsequent periodic review a plan which incorporates the District Court's mandates. As we have said in other contexts involving discrimination, the plan submitted to the District Court and subject to its ultimate enforcement must be one that works and works now. Discriminatory hiring policies must be eliminated and the evils of their existence eradicated. Nothing less is countenanced by the applicable law.

Competition is keen for able and competent blacks in the law enforcement area. Salaries are limited by legislative enactment. Public bodies cannot fully engage in salary and benefit competition which is available to the private sector. From the record in this case, it is obvious that the Highway Patrol probably cannot successfully engage in this competition through mere mechanical obedience to the words of a judicial decree. Imaginative initiative is needed from all present members of the Highway Patrol.

To achieve success in this case, the plaintiffs and the defendants need to fully cooperate with each other and with the Court. The plaintiffs, as a class, seeking equity must do equity and might well be required to give full assistance in the recruitment of qualified black applicants.

This case is remanded to the District Court for such immediate interim orders, further proceedings, and final action as may be consistent with this opinion.

The panel opinion is affirmed as to the individual appeals. The District Court shall reconsider the award of the amount of attorney's fees, and shall award such fees as may be appropriate for this appeal and further proceedings. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); Clark v. American Marine Corp., 320 F.Supp. 709, aff'd, 437 F.2d 959 (5th Cir. 1971).

Remanded.

BROWN, Chief Judge, with whom WISDOM, Circuit Judge, joins (concurring):

Although I have joined without reservation in Judge Gewin's opinion for us, I write this concurrence to respond to Judge Clark's concurrence. Although perhaps literally directed to race-selective hiring his insistence that by this action "we break judicial new ground in this Circuit" leads me to read it broadly as asserting that this is so wholly unprecedented that were it not...