Hazelwood School District v. United States – Oral Argument – April 27, 1977

Media for Hazelwood School District v. United States

Audio Transcription for Opinion Announcement – June 27, 1977 in Hazelwood School District v. United States

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Warren E. Burger:

We will hear arguments next in 76-255, Hazelwood School District against the United States.

Mr. Allen, I think you may proceed whenever you are ready.

William H. Allen:

Mr. Chief Justice, May it please the court.

This case concerns charges by the government that the Hazelwood School District in suburban of St. Louis discriminated against black applicants for teaching positions in violation of the civil rights of Title VII of the Civil Rights Act, 1964.

After a trial, the district court found the charges not substantiated and granted judgment for the school district.

The Court of Appeals reversed and directed the order entry of a remedial order.

In this Court two questions are raised on review of the Court of Appeals’ judgment.

One is whether the Court of Appeals could legally find in violation of Title VII on the basis of a comparison of the proportion of Black members of Hazelwood’s faculty, with the proportion of Blacks among teachers in the whole St. Louis area when evidence was available in the record, as we contend to show that Hazelwood did not discriminate against actual Black applicants for jobs.

The other question is whether given the findings and the evidence on which those findings rest, the Court of Appeals in this case which we submit lack the element of purpose, there is any constitutional basis or the application of Title VII to this public school district.

Since, it was formed about a quarter of a century ago, the Hazelwood school district has grown….

But if we disagreed with you on purpose, that your question is answered.

William H. Allen:

We have no constitutional claim.

There is no doubt Your Honor that under Section 5 of the Fourteenth Amendment without regard to the commerce clause, Congress can enforce the equal protection clause, yes.

The Hazelwood district in 25 years has grown from a small rural collection of grammar schools to rather good sized suburban school system.

The area it serves is a populous outlying suburb of St. Louis, a predominantly white suburb.

There were no black residents in the District of 1954.

Consequently Hazelwood never maintained the system of separate schools that was required by Missouri law up until the time of the Brown against Board of education.

There were 59 black students in the school year 1967-68 and nearly 600 out of 25000 total enrollments in the school year 1973-74.

Hazelwood hired its first Black teacher in 1969.

By the school year 1973-74, 22 of a faculty of a faculty of about 1200 were blacks.

The official policy of the district, since sometime before 1964, has been to hire the most competent, the best qualified teachers without regard to race, color or other extraneous factors.

In the 1960s, Hazelwood had to engage in rather extensive recruiting in order to find the most qualified, most competent teachers it wanted.

At that time the demand for teachers was greater than the supply.

Today recruiting is not nearly so necessary.

Hazelwood indeed is deluged with applications for teaching positions, ten or a dozen for every vacancy.

These applications are received in a central office, Hazelwood’s personnel office.

There, in that central office, vacancies are made known by the school principals and the central office is asked to refer applicants for interviews and they are referred for interviews without any real evaluation of their qualifications.

At the individual schools, when the interviews are conducted, they are conducted by principals and in some cases in the secondary schools by department heads.

They seek through the interviewing process to find the best qualified or most competent teachers.

Title VII was made applicable to Hazelwood and other public bodies in March of 1972.

William H. Allen:

Few months later, in October, the Justice department gave Hazelwood notice that it was considering filing a Title VII case against it.

The suit was actually filed in August 1973.

It alleged a pattern or practice of discrimination against Black applicants for teaching positions in violation of Title VII and in addition alleged a violation of Fourteenth Amendment.

The government searched through Hazelwood’s files of applications, employment forms and the like.

It took depositions of Hazelwood’s top school administrators, principals, superintendents, personnel officers and so forth.

Exhibits that were consisted of copies of the file material were constructed from that file material were a principal part of the government’s case at trial, the depositions came in at trial and in addition, 25 black applicants for teaching positions testified as to the circumstances of their applications.

The government set out to prove that Hazelwood had deliberately, purposefully engaged in a pattern or practice of discrimination against Black job applicants generally, a showing of a few isolated cases of unfavorable treatment of the individuals, Black applicants for teaching positions would not do to make the kind of case that the government set out to make.

The government tried to show that Hazelwood’s hiring procedures, its decentralized system of interviewing that I described, disfavored Black applicants generally.

The fact was the Hazelwood’s files showed the contrary that between 1971 and 1973, 17 Black applicants were hired or offered jobs and 52 were identified by the government as having been rejected for teaching jobs.

It’s on the face of it; that is a much greater proportion of hires than they were for applicants generally in that period.

So the government adopted as the centerpiece of it’s attempted showing of a pattern or practice of discrimination, a comparison of the racial composition of the Hazelwood’s faculty in 1973-74, approximately 2% black with the racial composition of the St. Louis City and county teachers.

In other words, as shown by the census of the 1970, 15% of all the teachers in St. Louis City and county were black.

In addition, the government noted that an ad, a newspaper advertisement for features that appeared Jackson, Mississippi over Hazelwood’s name back in 1962, with the words white only in it, the same ad had run else where without that notation at the same time, that Hazelwood had used application forms up until 1962-63, some of which carried lines for racial identification, that Hazelwood had not recruited a pre-dominantly black colleges in the 1960s when recruitment was a part of it’s hiring process.

In addition, the government also cited the cases of the 52 unsuccessful Black applicants that it had identified and said that they had been rejected in the favor of whites, no better qualified.

Hazelwood argued that none of this showed discrimination, District Court agreed.

On appeal, the Court of Appeals found…

Mr. Allen, who was the District judge, Judge Harper.

William H. Allen:

Judge Harper, Your Honor.

On appeal, the Court of Appeals found that the discrepancy between the racial composition of the Hazelwood’s faculty and this St. Louis city and county labor market taken in light of what it termed unstructured standard-less hiring procedures with vague and subjective criteria made a prima facie case of discrimination in violation of Title VII.

William H. Rehnquist:

Mr. Allen, you understand the Court of Appeals holding to have rested solely on Title VII and not on any violation of the Fourteenth Amendment?

William H. Allen:

Court of Appeals recited that there was the charge of a violation of a Fourteenth Amendment at the outset of this opinion.

It found that no such violation in the course of its opinion.

I think it is fair Mr. Rehnquist to say that the Court of Appeals did not find a violation in the Fourteenth Amendment.

It found that this prima facie case that it based principally on the statistics of a violation of Title VII was buttressed by these incidents from Hazelwood’s history that I recited and its analysis of the government showing of rejected Black applicants.

On that analysis, it found that 16 out of 52 of the black applicants had been rejected for jobs for which whites no better qualified had later been hired and of those 16, only 2 had gone through the interview process which was a only part of whole hiring procedure of which the court was critical.

It did not in our view, this has become a matter of contention, but in our view it clearly, the court did not find purposeful discrimination and as I have said in response to Mr. Justice Rehnquist’s question, it did not find a violation of a Fourteenth Amendment.

We submit that the Court of Appeals erred in placing its reliance on the workforce labor market comparison.

My argument on that score is a simple one.

I think, despite the impression that might be gotten from the rather extensive discussion of the record that appears in the briefs here.

Let me try to make it simple.

William H. Allen:

That sort of comparison of racial composition of an employer’s workforce and of the racial composition of a labor market is in some circumstances a valid test for, whether there has been a violation of Title VII, but the circumstances simply did not obtain here.

For one thing, the circumstances didn’t obtain because of the problem induced or the labor market statistics by the hiring practices of the City of St. Louis schools; that City of St. Louis schools deliberately tried and succeeded in maintaining an approximate 50/50 ratio balance between blacks and whites.

Mr. Allen, let me get my geography straight.

Hazelwood abuts on St. Louis County?

William H. Allen:

Well, it abuts in a sense Your Honor.

The City of St. Louis as I understand that runs north along the ballast of Mississippi river and there is a small point there where the Hazelwood district which generally lies north of the City of St. Louis abuts it, but in no realistic sense is that a channel of trade or communication between the two.

It is fairly described as an outlying district.

Is it part of St. Louis County?

William H. Allen:

It is a part of St. Louis County, yes Your Honor.

And why do you think every Black teacher applicant in the St. Louis area would rather go to St. Louis than to Hazelwood?

William H. Allen:

I don’t think that is the case, Mr. Justice White.

Wouldn’t your statistical analysis based on that assumption?

William H. Allen:

No, I think not Your Honor.

I think our statistical analysis is based on the preposition that there are not 15% of teachers in the workforce, who are black in St. Louis city and county, who are available for hire by Hazelwood.

The government’s position as I understand is that the workforce comparison is legitimate because absent discrimination, it means that would be the composition of the employer’s workforce and that situation is simply not true here where one has this distorting effect, that is our position in that regard.

But there is really a deeper and more basic flaw in the use of the workforce labor market comparison in this case.

At its best, even if constructed validly, that comparison is a get only.

For a true comparison of how an employer has treated black applicants, actual black applicants for job on the one hand and how it has treated applicants generally on the other hand.

Now, the government does not deny that.

I don’t think, they don’t acknowledge it, but they don’t deny it.

It seems an obvious enough point.

They say that this latter evidence was not available in the record, but there was that evidence in the record.

Evidence as to the number of applications generally and number of hires generally, the number of black applicants and the number of black applicants hired and that evidence as I have indicated showed that blacks faired at least as well as whites in the periods 1971-72, 1972-73, and 1973-74.

The record identifies 52 black applicants.

William H. Allen:

52 unsuccessful black applicants.

52 unsuccessful, does the record indicate whether or not some of the other unsuccessful applicants may also have been black?

William H. Allen:

That is exactly what I am now going to turn to because that is the government’s principal position with respect to the applicant flow data and it’s important to understand, there were six black members of the Hazelwood Faculty at the beginning of the 1971-72 school year.

At least 16 were hired by 1973-74 because there were 22 on the faculty in 1973-74.

When was it that you found that the federal government was after you?

William H. Allen:

In October 1972 Your Honor.

Could that account for the additional…

William H. Allen:

It did not.

In fact well, I suppose it could Your Honor.

The fact was that there were 13, according to the District Court, 13 black members of the faculty in the fall of 1972, presumably before the notification had been given although after Title VII was made applicable.

Now, this question was when you had an official notification, when they found that the federal government was moving around?

William H. Allen:

As far as I know it was October of 1972 Your Honor.

The record doesn’t show any earlier date.

I suppose there may have been an earlier date, I don’t know.

There were 17 all told in this period who were either hired or offered jobs.

In that same period the government as I have said identified 52 unsuccessful black applicants.

So rate of success was about 25% on the face of those figures.

At the same time, there were 7800 applications generally, of whom 640 were hired, overall rate of success of 8%.

Now, in addendum A to our reply brief, we have made allowances for any Black applicants that maybe missing from among those that the government identified.

Thurgood Marshall:

I missed some, didn’t you say in recent years you didn’t have race on the applications?

William H. Allen:

This data as I understand, have to be gathered specially for the government, in other words, the identification were made specifically for this case.

Thurgood Marshall:

And how was that done, you don’t know?

William H. Allen:

I don’t know.

Thurgood Marshall:

You can’t imagine?

William H. Allen:

Mr. Justice Marshall, one way that the figures…

Thurgood Marshall:

One way they could do, would be to see if students were from Lincoln University; that is one way?

William H. Allen:

That is with respect to applicants yes Your Honor.

With respect to successful applicants there are reports formally to the Department of Health Education Welfare, now the Equal Employment Opportunity Commission that asked for a racial breakdown of faculty and those reports are in the record, but the racial identification of the applications was made in part by the school district as I understand and part by the FBI which went through the school district’s records.

The record, I submit, shows that there are no significant numbers of black applicants who were not identified by the FBI.

All the applications for 1973 and 74 school year, and the 1972-73 were available to the FBI at the time it conducted its file search, some from 1971-72.

Hazelwood School Principals were deposed, their depositions were taken.

They were all about the blacks they had interviewed.

The analysis of their testimony and deposition is in the addendum B to our reply brief and indicates that at most a very few black applicants who were interviewed are unaccounted for and 70% on the basis of the figures that are known, 70% of the black applicants who were interviewed or known to have been interviewed or identified as having been interviewed, 70% of them were hired and that is a larger percentage than obtained for applicants.

Generally although that precise figure is not of record, it can’t be, an estimate can be made of how many interviews there were for the numbers of hires and the proportion would be much less without it generally.

William H. Rehnquist:

Mr. Allen, if the District Court, you have made this argument to the District Court and the District Court have found against you and decided to consider just the evidence of the Court of Appeals, all of them are relied on, and the Court of Appeals affirmed that District Court’s finding is not clearly erroneous, would you…

William H. Allen:

I think, Mr. Justice Rehnquist that would not be a clearly erroneous type of finding.

William H. Allen:

I think this is a question of law as to the showing that has to be made in order to justify a holding that a prima facie case has been made under Title VII.

There is a pattern of practice.

Apart of that there are two basic types of Title VII violations, are there not?

There is the Griggs v. Duke Power type which deals only with effects, the (Inaudible) effect and then there is this type in which there has to be a proof of a discriminatory purpose, is that not right?

William H. Allen:

Well, I don’t know if the government would concede that.

The policy of practice of discrimination which has to be proved by the plaintiff, but after the plaintiff proves certain things then it perhaps becomes the duty of the respondent or the defendant to rebut the prima facie case.

That is a McDonnell and this is the latter type of case.

William H. Allen:

This is a pattern or practice type of case.

This is not a Duke Power type case at all.

William H. Allen:

Well, we believe Your Honor that in the deciding the case principally on the basis of the workforce labor market comparison, the Court of Appeals decided what amounts to and effects case, regardless of what the case may have been conceived of by the government at the beginning, that the Court of Appeals did not itself draw the further inference of purpose from the findings it made and we submit that given the infirmity of the statistical showing, given the reputation of it in the applicant flow data that I have been talking about that no such finding could have been made.

William J. Brennan, Jr.:

Mr. Allen, what do you do of my rights that you say earlier, the district court found 16…

William H. Allen:

No, the Court of Appeals found 16 cases Your Honor.

William J. Brennan, Jr.:

Identifiable…

William H. Allen:

Identifiable discrimination.

William J. Brennan, Jr.:

That’s in the sense that no more qualified rights likes were hired?

William H. Allen:

That is correct Mr. Justice Brennan.

William J. Brennan, Jr.:

You suggest it holds significance to the attachment?

William H. Allen:

I don’t suggest, there is no significance, let me..

William J. Brennan, Jr.:

Why is it dispositive significance?

William H. Allen:

Let me state two or three things about it.

First the government in opposing certiorari suggested that it was a dispositive significance, said that the judgment could be affirmed on that basis solely.

They abandoned that decision in argument the merits and no longer claimed that.

That is a preface to what I was going to say about.

The fact is Your Honor that the 16 cases out of 52 do not establish a prima facie case of discrimination because Hazelwood showed that the hiring procedures that the applicants were subjected to were operated fairly in the generality of cases.

William J. Brennan, Jr.:

And not withstanding which, however fairly they operated, they resulted in 16 cases of identifiable discrimination?

William H. Allen:

They have resulted in 16 cases…

William J. Brennan, Jr.:

That doesn’t strike me as a very fairly operated procedure.

William H. Allen:

What they resulted in Your Honor was 16 cases in which the McDonnell Douglas four point test was satisfied and I suggest that even in a case where the rest of the evidence was neutral as to the fairness of the hiring procedures and that’s not this case, in this case there is positive evidence of the hiring procedure were fair.

Even in another case, the satisfaction in McDonnell Douglas test does not lead necessarily or even always reasonably to a finding that there was purposeful discrimination and certainly not a pattern or practice of discrimination.

If we were to agree, I guess, that is the end of the case.

William H. Allen:

Well, I think you happen to go one further step Your Honor and to find that these 16 cases, two of whom were interviewed, only two of whom were interviewed, the others were all that happened to them was they were not referred for interviews according to this mechanical process of referrals that I referred to.

Thurgood Marshall:

Mr. Allen assuming that the applied would be unable to get Hazelwood school board and all of their principals to admit that they discriminated, assuming that you couldn’t get that, what other evidence could you get?

William H. Allen:

In a case like this Mr. Justice Marshall, if the applicant flow data that were in the record showed that a much lower proportion of black applicants were being hired than white applicants, I wouldn’t have any problem with even inferring purposeful discrimination, if the discrepancy were great enough in that case, but that is not what this record shows.

Thurgood Marshall:

That would show it, it is by statistics alone.

William H. Allen:

You certainly can show by proper statistics one can make a case from which purpose can it be inferred.

Thurgood Marshall:

Yes, (Inaudible) and would promptly, that is the trouble, isn’t it?

William H. Allen:

Well, I…

William J. Brennan, Jr.:

Mr. Allen, have you finished your answer to me?

William H. Allen:

I think not quite.

You have to take one further step Mr. Justice Brennan and that is to find that the cases of the 16 made a pattern or practice by themselves of discrimination.

Even in purpose, and purposeful?

Even if purposeful?

William H. Allen:

That’s correct Your Honor.

In other words, you are suggesting that there must be a margin of tolerance for mistakes?

William H. Allen:

That in a situation of this sort where there were thousands of applications each year for teaching positions, it is not all blacks are going to be hired, just as not all whites were hired.

Yes Your Honor?

Out of thousands of applications to Hazel

William H. Allen:

Yes, thousands.

Of course is not over, I think that even if we agree with you that purposeful discrimination was not shown or not found by Court of Appeals?

William H. Allen:

Well there are two separate points Your Honor, I did not really get to the…

You have argued and the answer is no, the case is not over except we still have to decide that purposeful discrimination is necessary in order to sustain this Title VII case?

William H. Allen:

No, I think Your Honor I think that is not quite what my argument is.

Well what do you say, do you say Title VII is unconstitutional, unless it was a finding of purposeful…

William H. Allen:

And the evidence to support that finding, yeah, we have argued that Your Honor.

So if we don’t find purpose in this case then the Title VII, you say that Title VII…

William H. Allen:

Cannot constitutionally be applied to a public…

Yeah, you haven’t argued that.

William H. Allen:

I have not argued that this morning, I have devoted my self to the other point which I thought would be better elucidated by counsel’s argument.

Warren E. Burger:

Mr. Wallace.

Lawrence G. Wallace:

Mr. Chief Justice and May it please the court.

Lawrence G. Wallace:

We find ourselves in a peculiar position here of not believing that either of the questions presented in the petition for certiorari which this court granted is really presented by this case, unless it can be said that the second question is presented in a very limited sense.

We went into the District Court in this case and introduced evidence to establish a four-pronged showing of a prima facie case that employment discrimination by the Hazelwood school district and that four-pronged showing as we presented our case, is very well summarized by Mr. Justice Clark’s opinion for the Court of Appeals set forth in the appendix of the petition for writ of certiorari.

Let me ask you Mr. Wallace, since you are referring to Justice Clark’s opinion; at Page 3 (b) what seems to me a rather central conclusion of that opinion that the top of page 3(b) verses, “We have concluded that from it’s establishment in 1949, 1950 until at least March 1974, Hazelwood is engaged in a pattern or practice of discriminatorily failing and refusing to hire blacks in violation of the Act and that the United States and certain black teaching applicants are entitled to relief.

Now, it my understanding that the Act is applied to private individuals was first enacted in the 1964, and that it was made applicable to the governmental subdivisions only in 1972.

Do you support that statement in the opinion as a correct doctrine of law?

Lawrence G. Wallace:

Well, the statement is a little elliptical.

It is not elliptical at all?

Lawrence G. Wallace:

It’s elliptical in saying in violation of the Act attached to that whole period of time.

The fact of the matter is the school district was under an obligation under the Fourteenth Amendment not to discriminate in its hiring practices during that entire period of time and the evidence show that pattern or practice of discrimination during that period, the portion of which from March 24th 1972 was covered by the Act.

Different standard is imposed by Title VII and is imposed by the Fourteenth Amendment in this kind of case.

Lawrence G. Wallace:

In this kind of case, probably no different standard substantively.

I don’t think this case involves any substantive extension of the Fourteenth Amendment obligation.

I think that the impact of Title VII in this case is a procedural impact in shifting the burden of proof to the defendant after a prima facie showing of discrimination has been made, of purposeful discrimination which is what’s involved in this case as we understand it.

(Inaudible)

Lawrence G. Wallace:

That we don’t believe that a pattern or practice language of the statute is limited to purposeful discrimination, but this case is concerned only with purposeful discrimination.

I think I can explain this by briefly discussing these.

Well, suppose we disagree with you and agree with your adversary that there was no finding in purposeful discrimination in this case, do you lose?

Lawrence G. Wallace:

Oh, no I think that it would still be open for such a finding to be made in the case, if you are not satisfied.

We would stop and remand then, is it not?

Lawrence G. Wallace:

If the court was left in doubt about that, but I don’t see any room for doubt about that and then beyond that there is the question of whether the other type of suit would be applied here, but I don’t see any basis for conceiving of the Court of Appeals’ decision here as being based on the rationale of Griggs that unintentional effects from the application of standards or of tests have to be justified as a business necessity because the case never even got to the point of showing what standard was disqualifying a disproportionate number of blacks in the statistical showing to even raise a question of whether that’s a justifiable standard to have that effect.

The case as it’s decided here on the face of it, involves a conclusion by the Court of Appeals that a prima facie showing has been made here that no explanation other than raised accounts for the showing of a disparate effect.

Is that a question of law or a question of fact, in the sense of, could the Court of Appeals had said that district court, you said there was no prima facie showing, we think there is one, therefore, we think your finding was clearly erroneous?

Lawrence G. Wallace:

I think it is fundamentally a question of law.

Of course it’s mixed with questions of fact, but it’s fundamentally a question of law whether we made a prima facie showing discrimination that stands un-rebutted.

Now, let me just anticipate a little bit the analysis that I was intending to give here on page 8 (b) of the appendix to the petition of the four prongs of the showing that we did make in this case.

The first, a history of discriminatory practice is prior to the extension of Title VII, to state in local governments and that started off and I have to differ with opposing counsel on that point with a de jure discriminatory hiring practice that was in effect and required by Missouri law and in effect in the Hazelwood district prior to this Court’s decision in Brown against Board of Education.

It’s true there was no segregation of students or teachers in Hazelwood, but Missouri Law required every school district, including Hazelwood to hire only white teachers to teach white students and only black teachers to teach black students and they had nothing, but white students at Hazelwood.

Mr. Wallace, you rely on that I take in part to support a constitutional violation, but is that relevant to the question whether it is a statutory violation?

Lawrence G. Wallace:

Well it is.

It is part of the background here to the period in which the statute was in effect.

Lawrence G. Wallace:

There was an enormous momentum of hiring practices, built up here, a system that was based on the hiring of only white teachers by white supervisory personnel which continued up to 1969, there was never a black teacher hired.

On May 1st of 1972 or some date around that period what did the board have to do to avoid being in violation of law at that particular moment, say they didn’t hire anybody for a couple of months, would they have violated the statute?

Lawrence G. Wallace:

I don’t think they could violate the statute only by past acts, but we are not in that situation at all.

I am just wondering if the history does not put the other way because it explains, I suppose, why there was a disproportionate number of whites being employed at the time the statute went into effect?

Lawrence G. Wallace:

Well, it explains it in a sense and if the statute were the district’s only obligation, sure, but they knew at least since 1954, that their obligation was not to engage in racial discrimination in hiring and had such a policy adopted for the district sometime prior to 1964, yet their hiring continued to be exclusively of whites until 1969 and then very predominantly of whites, every year right up to statute enactment and then during the years after the statute enactment.

Are we asked to decide a constitutional question here?

Lawrence G. Wallace:

I don’t believe so. I don’t think so.

It seems to me you go back and forth and your brief does the same thing between a constitutional problem and a statutory problem and I frankly have some difficulty keeping the two separate.

Lawrence G. Wallace:

Well, part of the obligation arises out of the situation in which the district found it self because part of what the statute is aimed at is the perpetuation of past discriminatory practices and when you have had a system setup so that all of your feeder teacher institutions which you have been recruiting and hiring over the years are geared to providing predominantly white faculty, some effort has to be made to change that pattern of hiring into a non discriminatory pattern, yes, it is that obligation at the outset of the statutory (Inaudible).

I think the statute imposed an affirmative obligation to employ more blacks than whites during the period in order to equalize…

Lawrence G. Wallace:

Oh, not to equalize or employ more blacks than whites, but to revise the hiring practices into a non discriminatory pattern of hiring, so that if we came forward with a prima facie showing of discrimination in the results both as to particular individuals and in the overall pattern of hiring, the state could show that it’s practices are not discriminatory, which they didn’t (Inaudible).

Well, at least they shot from the point because I think it relates to the statistical showing.

Supposing two months after the statute went into effect, you brought a suit, you put in evidence that at that particular moment in time 99% of the teachers were white, would that tend to prove any thing?

Lawrence G. Wallace:

Maybe not in itself without some indication which this record shows of the quantity of teachers being hired.

Should we focus on the hiring rate.

Your opponent seems to argue that we should look at the rate of hire and then on a rate of hire the proportions are about equal.

Lawrence G. Wallace:

Well, the rate of hire of what?

I mean, he is saying the rate of hire of applicants, we don’t know the race of the applicants and there are serious problems with looking only at the applicants when you have a situation in which the applicant group may well be distorted.

Whose burden was it to identify the race there?

Lawrence G. Wallace:

We had a burden of presenting a prima facie case and we presented a prima facie case that was partly statistical in nature, but that had nothing to do with the statistics that opposing counsel is talking about.

Our statistical showing had nothing to do with the treatment of applicants and their contention is based on an interpolation from bits and pieces of the record that were not designed to then make a statistical case for either the plaintiffs or the defendants.

Well, I am just wondering how your statistical case differs from the hypothetical I gave you, that the two or three months after the Act was passed, there was evidence that 99% of the teachers were white, did you show anything more than that statistically?

Lawrence G. Wallace:

Yes, we went way beyond two or three months after the act was passed, went back and forwards.

Before 1954.

Lawrence G. Wallace:

Well, this is all part of the background.

I mean, if one considers some of that excessive, it doesn’t detract from what we have shown during the 1972-73 and the 1973-74 periods.

This suit was brought early on in the history of the Act’s extension to state local governments because there was reason to move in this particular area where you had a history of a number of all white faculties in suburban school districts and this being the largest one.

And this means as though you’re submitting that the Hazelwood school district or some other school district curbed, be in violation of the act, the moment it was passed?

Lawrence G. Wallace:

Not the moment it was passed and that really isn’t presented here.

That’s been presented hypothetically in questioning that the suit was brought some time after that and the evidence had to do with their hiring practices, everyone of the 16 individuals that Court of Appeals found had been discriminated against in hiring, those occurrences were during the statutory period, not during the pre-statutory period and the other 50, the others of the 50 some odd that we presented evidence with respect to, all occurring during the statutory period.

If there had been 32 people hired during the period that these 16 were discriminated against you say 32 hired, there had been 16 whites and 16 blacks hired, and the 16 blacks that weren’t hired are the ones that were discriminated against you say.

Lawrence G. Wallace:

Well, it would depend on what your evidence showed and part of the point of having…

Well, you say that they were equally competent, though they were at least as competent as the ones who were hired and the ones who were hired were white and that’s your discriminatory showing.

Lawrence G. Wallace:

Well, it’s not just equally confident.

If you look at the findings that are involved here, there are a number of instances in which whites who had been on academic probation and had other basis.

These are findings by the Court of Appeals that is a fact.

Lawrence G. Wallace:

That is correct, a fact presented in the record here and not contradicted by anything found by the District Court in its treatment of these individuals.

The District Court simply didn’t make us detail the finding with respect to each of these individuals, but as you notice we have summarized some of them in the appendix to our brief in which there is instance after instance of an individual who was black, who applied, who didn’t get the job and then persons who had been on probation, suspended and dismissed from college and academic probation had very low grade etcetera who were white who were hired for the same job opportunities.

These are not mild instances.

On the face of it, they indicated discrimination and part of what opposing counsel has been contending here, what the petitioners have been contending is that their practices themselves are non discriminatory and as to that the evidence of pre act discrimination in results is very probative because they are following the same practice that’s for years resulted in first an all white and then a virtually all white faculty, at a time when they were under a Fourteenth Amendment obligation not to discriminate in their hiring practice.

Well, let me get it straight what your position is and I am following up with on you’re colloquially with Justice Stevens.

If two years after the act was passed and your suit was filed, it assumes that since this act was passed, they have hired twice as many negro’s as whites, and I take it you would say that would not be an adequate answer to your.

Lawrence G. Wallace:

Well, that showing would certainly not be a prima facie statistical showing of discrimination against blacks hired.

It might be individuals who were discriminated against, it might be evidence of that.

Let us just say that at the time the Act was passed, the 90% of the employees were white as a result of Fourteenth Amendment type discrimination prior to the passage of the act. As soon as the act is passed, the company starts hiring twice as many blacks as whites.

Lawrence G. Wallace:

Well, hypothetically it’s very different from this case, yes (Inaudible)…

Would you say that the showing, the actual hiring would be an answer to…

Lawrence G. Wallace:

Well, they might very well, on the face of it of course.

You would have to know something more about the case, but on the face of it they might well be an answer.

Here there wasn’t any answer authored, any of the prima facie case.

That was part of the difficulty here.

After we introduced our statistical evidence, historical evidence, the evidence with the standard lists, procedures being used and the evidence of the individual instances of discrimination, the rebuttal other than simple cross examination of our witnesses was summarized by the Court of Appeals at the bottom of the page 7B of the appendix to the petition, quite accurately as follows.

The school district had presented one witness and several exhibits.

The witness testified to the total number of teachers who applied and were hired during the 1971-72 and 1973-74 school years and you can see the figures there at the bottom of page 7B which indicated hiring in access of 200 teachers per year during the statutory period and the exhibits consisted of the policy manual, policy books, staff handbook and historical summary of the formation of the Hazelwood School District and then at the top of page 8B, Hazelwood argued that no discrimination could be proved because equal employment opportunity was it’s official policy and because of the small numbers of black teachers was comparable to the small number of black students enrolled in Hazelwood schools and beyond that the only defense offered was an attempt by Hazelwood to contend that it was following a policy of hiring the best qualified and vast majority of the best qualified applicants were white and for that reason there was a very small number of blacks, 10 up to the time that Hazelwood was notified that our investigation was underway with that information as a footnote 10 on page 7 of our record, for that reason there was a very small number of blacks hired and because that was the defense, our evidence focused on showing who was hired in place of the unsuccessful black applicants.

We introduced extensive evidence with respect to which of these people hired had poor academic records, been on academic probation and that sort of thing.

In buttressing our statistical case and the rest of our showing, we did try to isolate some examples of the individuals who were discriminated against, but we know we’re purported to do an exhaustive study of the application list to the extent they were even available, in an effort to ascertain what is total number or what percentage of applicants had been black or had been white.

In fact, the United States expressly at the beginning of its case on trial and this is setout in full as explanation of our introduction of any of this material on page 11 of the brief filed in our support by the NAACP Legal Defense Fund and there we said that the outset of the case in view of the district’s action severely restricting the pool of available qualified black applicants and its practice of destroying applications filed after one year, it is not been possible to obtain facts on all or probably most black applicants to the district and we have collected in our brief in footnote 93 on page 26th, the number of the examples of black applicants whose application could not be found by the district, even though they were during the period when supposedly the applications had not yet been destroyed…

How could you know that these were black applicants?

Is there a file…

Lawrence G. Wallace:

This individuals testified that they…

At the trial.

Lawrence G. Wallace:

Yes, yes or were deposed.

Now, as this statement went on to say, however, we have been able to locate and identify at least 50 or 60 black applicants for 1972-1973 and 1973-1974, who the evidence will show applied for positions for which there were vacancies and that Hazelwood consistently hired white applications, either less or no better qualified for the vacancy.

Now, the record is actually very sketchy on how we identify these 50 or 60 because no defense was ever made that black applicants were being treated better than white applicants.

The whole defense was the other way around that the whites hired were better qualified than the blacks and that is why so few blacks were being hired.

It was not part of our statistical showing to try to compare how the applicant pool was being treated.

So the record does not really show what happened here in any detail, but all that did happened was that a search was made through the records to pull out some examples of black applicants based on knowledge of predominantly black high schools or colleges that they might have attended or some other indication on the face of the application whether that individual is black, this was not part of an effort to build a statistical case, it was an effort to identify some particular victims of discrimination for that part of our prima facie showing and then interview those people and the course of those interviews, they would be asked you know of anyone else, (Voice Overlap) the applicants.

Mr. Wallace, you said that was not part of your statistical case.

Your statistical case was one that comparison of the percentage of black teachers in Hazelwood with the percentage of black applicants, for potential applicants in St. Louis Metropolitan, what else did it consist off?

Lawrence G. Wallace:

That was the statistical case…

You mean that you say met your prima facie burden.

Lawrence G. Wallace:

That was part one of the four parts of our prima facie case.

That is comparison with the other employers drawing from that employment area, there was a gross statistical disparity in the number of — in the percentage of black.

Mr. Wallace is it not correct that if we put to one side for the moment the fourth part of the test, the 16 specific acts of discrimination, each of the other three parts of the test would apply equally to my hypothetical example, two months after the act was in affect, when 99% would be white, you would have then proved the prima facie case?

Lawrence G. Wallace:

Well, if there had been findings of the 16…

No, no I am saying you put that to one side, I am just saying your case really depends on the 16, does it not?

Lawrence G. Wallace:

Well, it is an important part of the case given the limited period, but period is not as limited as your hypothetical, but as the difference have greater probative value than they would under your…

Well, how is it different in probative value if you have precisely the same kind of statistical evidence and it is the number of people employed as compared with the total number or the percentage in the labor market and there is a perfectly logical explanation which maybe unhappy one and an undesirable, but it is non-statutory explanation for the predominant number of whites in labor…

Lawrence G. Wallace:

The statistics do show that the rate of hiring is in itself under the percentage in the labor market.

But the question that keeps raising in my mind is who had the burden of showing the makeup of the hiring rate and the failure to hire more blacks during the period after test…?

Lawrence G. Wallace:

We showed that in these statistics.

They show when 284 were being hired altogether and only seven or nine whatever it was were black that is way under the 15%.

You do not have to compare it only with the total workforce.

The statistics also show that the rate of hiring in itself as way under that percentage.

So it is all part of the prima facie showing that was made here.

The point is that the other attempt to interpolate then statistics raises evidentiary questions that were not explored below, not only about how incomplete those statistics were, but we never introduced any evidence on discriminatory reputation to show that the applicant flow to Hazelwood was being distorted because there was never any reason to have to introduce that.

The defense was not that black applicants were being treated better than white applicants.

That was not put an issue in this case.

There is something very similar to what the court was referring to in Castaneda against Partida — attempt to put forward a new array of a different statistical case that is based on untested assumptions, that were not explored below because the whole theory of the defense was different below and it seems to us this an attempt to rebut our prima facie showing comes to light, when it is based on evidentiary questions and the evidence is not there.

My time is expired as there are answer further questions.

Warren E. Burger:

Very well, Mr. Wallace, you have one minute Mr. Allen.

William H. Allen:

May it please the court, in its brief, in the TIME DC case, here this term, the government has said that a pattern case requires more than isolated rejections of qualified individuals.

We submit that that is why the government has not argued, that the cases of the 16 establish its prima facie case here and if in answer to Mr. Justice Brennan’s question, I say that we acknowledged that the test of McDonald Douglas was met in the case of those applicants, I did not mean to say so.

We have assumed that arguendo in some points in arguing the case.

Excuse me are you finished?

Is not that true that some 500 since the Act passed, some 500 whites were hired and 16 Negros.

William H. Allen:

16 blacks have been hired.

And 500 whites.

William H. Allen:

And some were on that order of…

Since the act was…

William H. Allen:

Since the act was passed Your Honor and that is a function of the relative number of applications because if one picks the number of applications and compares the number of blacks hired and the number of the non-blacks hired, the blacks at their better and I earnestly solicit your attention to Pages 3 to 8 of our Reply Brief and Agenda A and B to that Reply Brief for a demonstration of the mere completeness of the showing of the number of the black applicants in the period in question.

Thank you.

Warren E. Burger:

Thank you gentleman.

The case is submitted.