NAACP v. Allen

• Decision Date: 19 April 1974
• Docket Number: No. 72-1796.,72-1796.
• Citation: 493 F.2d 614
• Parties: NAACP, Plaintiff, Phillip Paradise, Jr., Individually and on behalf of the class similarly situated, Intervenor-Appellee, United States of America, Plaintiff and Amicus Curiae-Appellee, v. Walter L. ALLEN, as Director of the Alabama Department of Public Safety, his agents, assigns, etc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 614 (1974)

NAACP, Plaintiff Phillip Paradise, Jr., Individually and on behalf of the class similarly situated, Intervenor-Appellee United States of America, Plaintiff and Amicus Curiae-Appellee, v. Walter L. ALLEN, as Director of the Alabama Department of Public Safety, his agents, assigns, etc., et al., Defendants-Appellants.

No. 72-1796.

United States Court of Appeals, Fifth Circuit.

April 19, 1974.

William J. Baxley, Atty. Gen., State of Ala., E. Ray Acton, Executive Asst. Atty. Gen., Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., for appellants.

Morris Dees, Jr., Joseph J. Levin, Jr., Ira DeMent, U.S. Atty., Montgomery Ala., David Norman, David L. Rose Douglas B. Huron, Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., for appellees.

Before MORGAN, CLARK and INGRAHAM, Circuit Judges.

CLARK, Circuit Judge:

This class action suit charging Walter L. Allen,¹ Director of the Alabama Department of Public Safety (DPS), and John S. Frazer, Director of the Alabama Department of Personnel, with unconstitutionally excluding Negroes from employment in the DPS was instituted by the National Association for the Advancement of Colored People (NAACP) on behalf of its members and all similarly situated blacks in the state of Alabama. The NAACP was joined in this cause by Phillip Paradise, Jr., who intervened individually and on behalf of the class, and by the United States, which was ordered by the district court to participate as a party and amicus curiae. At the trial the proof showed that the DPS employed 650 state troopers, 26 trooper cadets (men, too young to qualify as troopers, whom the department trains to become future troopers), and 279 support personnel (secretaries, clerks and technicians).² In addition, the patrol maintained an arm of approximately 500 auxiliary state troopers, unpaid volunteers selected by the DPS to assist mainline troopers in emergency situations. All but five DPS employees had been selected and hired under the Alabama merit system, as conceived and conducted by the Department of Personnel in concert with the DPS. In addition to its troopers, support personnel and auxiliary, the patrol employed five blacks as menial laborers.

Support personnel apply to and are selected by the Department of Personnel. Trooper and trooper cadet applicants, however, undergo an independent five-step selection process. For recruiting new troopers and trooper cadets, the DPS relies primarily on informal channels and referrals from inside the patrol. Preliminary screening culls applicants who fail to meet basic height, weight and health requirements. The remaining applicants are ranked on an employment register according to their scores on a written examination and the results of an oral interview. The Department of Personnel then certifies the highest ranking applicants to the DPS, which investigates and selects new troopers from among those with "clean" backgrounds.

The district judge found that the record reflected evidence of identifiable discriminatory practices at each stage of the employment selection process. Although the written test and oral interview disqualified blacks at a pronouncedly disproportionate rate, neither was validated to correlate successful scores with successful job performance. The plaintiffs also proved several instances of individual racial discrimination. Most importantly, the district court found that "in the thirty-seven year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers." Defendants demurred to the prima facie case made out by these statistics and to the trial court's conclusion that "this unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the Fourteenth Amendment." NAACP v. Allen, 340 F.Supp. 703, 705 (M.D.Ala.1972).

The district judge exercised his discretion to grant both mandatory and prohibitory injunctive relief as a means of ending racial discrimination in the patrol's employment policies and beginning eradication of its lingering effects. Although the patrol's unvalidated test and subjective interview procedure were left intact pending subsequent review, defendants were enjoined from engaging in any further discriminatory employment practices. In addition, the DPS was ordered to institute statewide recruitment and equal opportunity advertising programs directed especially at the plaintiff class and to submit periodic, written reports setting forth in detail the efforts undertaken to recruit and hire black troopers. Finally, the court affirmatively required the hiring and permanent employment of one qualified black trooper or support person for each white so hired until approximately 25% of both the state trooper and support personnel force was comprised of blacks.³

Defendants do not attack the court's fact findings, rather they center their appellate attack on the propriety of the equitable relief entered below, contending that the quota hiring relief granted (1) results in unconstitutional discrimination against eligible white applicants — thereby, at best, substituting one constitutional infirmity for another — and (2) improperly requires the patrol to appoint less qualified blacks ahead of whites who have achieved higher test scores. Defendants also object to the award of attorneys' fees to plaintiffs. Because each of these contentions has been foreclosed by our recent en banc decision in Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974), the judgment of the district court is affirmed.

The evidentiary record here was capable of but one tenable interpretation — the existence of unconstitutional racial discrimination. With or without proof of the defendants' motives or intent, the present effect of past practices was clear. Indeed, defendants do not challenge the district court's finding that they "have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel." 340 F.Supp. at 705. Thus, the district court's equitable obligations and responsibilities were patent. When the deprivation by state officials of rights secured to the plaintiff class by the equal protection clause of the Fourteenth Amendment is so clearly demonstrated, the federal chancellor has "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709, 715 (1965). "The task is to correct, by a balancing of the individual and collective interests, the conditions that offend the Constitution." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554, 566 (1971). The scope of the district court's discretionary equitable powers is broad, and the nature of the relief it prescribes is inherently flexible. The remedy it decrees, however, must be feasible, workable, effective, Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 32, 91 S.Ct. at 1283, and promise realistically to work and to work now. Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

The nondiscretionary duty to bar all past and future discriminatory practices is not the subject of this appeal. Defendants only object to the entry of "affirmative hiring relief," urging that the order compels them to violate the Fourteenth Amendment rights of eligible white applicants by discriminating in favor of less qualified blacks, whose examination and interview scores resulted in a lower ranking on the personnel department's employment register. Defendants argue that the best hope for eliminating discrimination in public employment is through the established competitive merit system. Assuming, arguendo, that defendants have standing to assert the constitutional rights of presently certified and eligible or future white applicants, whatever doubts that may have existed about the constitutionality or availability of affirmative hiring relief as a legitimate weapon in the federal chancellor's arsenal of remedial instruments were erased by our decision in Morrow v. Crisler, supra.

In Morrow we overturned the district court's determination to withhold quota relief in the face of a supplemented appellate record furnishing hindsight proof that the lower court's prohibitory judgment had wholly failed to eliminate the pervasive effects of past racial discrimination. In the absence of validated, job-related qualifications and testing procedures and any minority recruiting initiatives by the Mississippi Highway Patrol, the trial judge's decree had the effect of prolonging the pre-existing discriminatory environment. Thus, even assuming that the unvalidated selection procedures of the past were neutrally applied, the court's failure to impose affirmative hiring relief itself contravened the Fourteenth Amendment since it operated to perpetuate constitutionally deficient employment practices and preserve the discriminatory status quo. Morrow established that this state of affairs mandated the entry of affirmative hiring relief, despite the fact that the district court had decided it was not necessary. A fortiori, the trial court's exercise of discretion to impose such relief in the nearly identical circumstances here was permissible.

Since no decision has adequately rationalized the constitutional problems raised by affirmative hiring relief, we now undertake that task within the factual matrix presented by this case. At the outset, it is apparent that no applicant for public employment can base any claim of right under the Fourteenth Amendment's equal protection or due process clauses upon an eligibility ranking which results from unvalidated selection procedures that...