Mayor of Philadelphia v. Educational Equality League – Oral Argument – December 10, 1973

Media for Mayor of Philadelphia v. Educational Equality League

Audio Transcription for Opinion Announcement – March 25, 1974 in Mayor of Philadelphia v. Educational Equality League

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Warren E. Burger:

We will hear arguments first in 72-1264, Mayor of Philadelphia against Educational Equality League.

Mr. Mattioni.

John Mattioni:

Mr. Chief Justice and may it please the Court.

This matter arises out of an action commenced in the United States District Court for the Eastern District of Pennsylvania, wherein the respondents sue the Mayor of the City of Philadelphia, then James H. J. Tate, and the members of the Educational Nominating Panel.

The allegations made contended that the appointment to that panel discriminated on the basis of race and, therefore, it was requested that the appointments made by the Mayor be strict in as invalidly made under the constitution.

In order to fully understand what the case is all about, it is necessary to understand something about the Educational Home Rule Charter provisions of the City of Philadelphia and the method of selecting and appointing members of the School Board.

In 1965, the electors of the City of Philadelphia adopted a new home rule charter establishing a Home Rule School District.

This was a result of a Commission appointed by Mayor Tate which studied the problem and nature of the school district some-years before the City of Philadelphia having obtained an almost complete home rule in all other aspects.

The legislature of the common law of Pennsylvania had authorized, now something new, a home rule for the School District of Philadelphia as well.

A Commission was appointed and, because of various problems, came up with what essentially was experimental in nature, and also represented something of compromise.

The method of selecting members of the School Board, which is not an issue in this matter before the Court, was determined essentially as follows.

The Mayor of the City of Philadelphia would appoint 13 members of the Educational Nominating Panel.

Those 13 members would in turn, for each vacancy on the Board, recommend initially three, and if the Mayor requested, an additional three persons from which the Mayor could make the appointments to the Board of Education.

The 13 of the 39 were required to be appointed from certain classes of organizations within the City of Philadelphia.

There were supposed to be citywide in scope and representative of such groups as the labor, commercial interest intergroup relations, parent-teacher associations, public education representatives, general community organizations of citizens, organizations for the purpose of improvement of local government, higher education in the form of someone who is Head of a higher education institution in the City of Philadelphia, and a group concerned with the physical resources of the city.

Warren E. Burger:

Were these groups indicated by name or by category?

John Mattioni:

By category, Your Honor.

They were not — the charter did not specifically say group X must be the one from which appointments are made but, rather, said for example, with respect to labor organizations, a council for other organization of labor unions in the city, and it did not say that it had to be a particular one.

The framers of the charter, being aware and being concerned with the fact that if you specified a particular organization now, that might go out of existence in the future or it might become invalid in the sense that it although is still in existence it might shrink in size and not be citywide.

Harry A. Blackmun:

Mr. Mattioni, perhaps you’ve covered this.

I want to be sure.

There’s no attack made here on the composition of the School Board itself as distinguished on the panel.

John Mattioni:

That’s correct, Mr. Justice Blackmun.

The attack here is solely on the appointments made to the Educational Nominating Panel, not to any appointments made to the School Board of the School District of the City of Philadelphia and, furthermore, there’s no attack made on the Charter Scheme for appointments to the Board of Education nor any attack made on the validity of the nine categories and then, after those nine, there is four that are appointments in essence at large by the Mayor where he has total discretion in terms of those four.

Now, they say, I believe that this is essentially an experimental type concept and at least until this attack seemed to work reasonably well.

The harder guts of the whole procedure was that you wanted to have on this panel persons who represented, in essence, all of the various kinds of problems that a School Board and a School District would have to deal with during the course of its existence.

As, for example, we all know in a– in large urban School Districts now and indeed in many of the smaller ones, there are truculently substantial labor management relations problems and, of course, in Philadelphia where we do not escape this, in the last couple of years, we’ve been subject to rather extended and protracted labor disputes with school teachers and labor disputes with other support personnel in the School District.

The School Board has to contend with economic problems of a rather major proportion and, again, the purpose of the charter was to make sure that we had represented on the Nominating Panel people who could screen applicants and not possible nominees for the School Board to insure that they met at least minimally all of the necessary requirements, and the concept was to have people on the Nominating Panel who had expertise in their particular areas.

As, for example, an organization dealing with intergroup relations, because it’s quite clear that urban School Districts have substantial race relations problems and other problems of a similar nature and I think this is borne out by the fact that the Head of the Charter Commission wrote and as quoted in respondents’ brief, “the Panel’s composition should be so-arranged in the charter that it can always constitute a balanced representation or a cross-section of the entire community, all of the community’s ethnic, racial, economic, geographic elements and segments” and the point here and the reason why I’m dwelling on this is it’s important to understand that this charter, at this charter scheme was intended to be representative in a very much broader sense than simply on the basis of Black and White.Respondents would have that the only consideration is representation on the basis of Black and White.

I believe this is further borne out by the fact that we’re here dealing with the fourth largest city in the United States, a city with a population of approximately 2 million people, a city which has in its populous persons from all kinds and all manner of racial and ethnic backgrounds.

John Mattioni:

For example, there are large concentrations of Italian-Americans, Russian-Americans, German-Americans.

There are large concentrations of Blacks and of course Blacks, like all other people, can’t be put into a bowl and mixed up.

These are diverse people.

They are, if nothing else, they can be divided into two broad general categories: Blacks who were in Philadelphia for hundreds of years, who predated even the Constitution of the United States, and those who are of very recent migration from areas in the South.

But in addition to that, in addition to the variations in population, Philadelphia is a large industrial city.

It has heavy industry, oil refineries, smelting industries.

It’s a large commercial center.

It has banks and brokerage houses and stock exchanges.

It has large commercial areas and retail sales and the like.

It’s a major port facility in the United States.

It’s probably the third or fourth largest port in the United States in terms of tonnage and Philadelphia, perhaps more important than all of these things, is known as a residential city and, of course, it’s a city with problems, very substantial problems, but those problems are being dealt with here notwithstanding all of that.

The respondents came into Court alleging that Mayor Tate was guilty of discrimination on the basis of race making his appointments to this Educational Nominating Panel.

This was proven by the plain — by the respondents almost entirely on a strictly statistical basis but, at no time in the Court below did the respondents ever proved and that the statistics upon which they relied had any statistical significance.

Not only did they not prove statistical significance, but they never proved the practical and actual significance in an ordinary everyday sense.

What they did prove was that in 1971 Mayor Tate appointed two Blacks out of 13 members to the Nominating Panel.

That from 1965, through the appointments made by the– in 1971, Blacks were appointed to the Nominating Panel on the basis of an average of two out of thirteen or, in percentages, approximately 15.4%.

They also attempted to prove discrimination in appointments to the Nominating Panel on the basis of alleged discrimination by Mayor Tate in his appointments to city government, and that was purported to be done by establishing from the records produced by the City of Philadelphia that of all of the persons appointed, not necessarily by the Mayor but employed by the City of Philadelphia earning $20,000 or more, that only approximately 9 or 12%, and I’m not — the particular percentage — at the moment, were Black as opposed to a population of 33% Black.

And that in the Boards and Commissions the Mayor appointed 12% Blacks as opposed to the same population of 33%.

The respondents went further than that and said that, because the population of the School District in terms of its pupils was approximately 65% Black, that this necessitated some additional consideration of race, I believe in this instance a new category never before sanctioned by any Court, reference to the school population as opposed to the city population of persons who should be considered as eligible for nomination or appointment to the Nominating Panel.

Countering this, the petitioners submitted evidence, first of all, took the position that there was no statistical significance proved and, second of all, submitted evidence that the Mayor’s appointments to various positions in city government, insofar as the relationship between Black and White was concerned, was substantially better than private industry in the same city, substantially better than national averages in the United States, substantially better than other governmental agencies.

More importantly, petitioners put in evidence, which was not contradicted in any way, shape, or form, that the City of Philadelphia’s workforce is 41% Black as opposed to 33% in the population, that 24% of the middle management was Black, that somewhere between 9 and 12% of upper management was Black.

Now from this, of course, the respondents would derive some kind of discriminatory pattern.

However, it was further established that under then Mayor Tate’s regime, as Chief Executive Officer of the City of Philadelphia, the pattern of employment of Blacks in all levels, in the lowest levels, in middle management, in upper management had increased substantially over the 8 or 9 or 10 years that he had been in office.

That he had continually taken pains to ensure that qualified Blacks were continuously appointed and promoted and reappointed and re-promoted as fast as could be done under the circumstances, and without infringing upon the rights of any other person or persons in the community.

The only complaint in essence that respondents have is that, in their view, it wasn’t done fast enough and, because there was some alleged statistical underrepresentation of Blacks, that all of a sudden this had to prove racial discrimination on the part of Mayor Tate but, quite the contrary is true when considered in complete context.

Respondents went one step further.

They said that they proved actual discrimination on the part of Mayor Tate in his appointment, and this goes back then to question of what that evidence was, and bearing in mind that the District Court judge who heard the evidence refused to find actual discrimination.

The Court of Appeals, on the other hand, found that there was evidence of actual discrimination which was not rebutted on the record.

We believe that the Court of Appeals clearly violated Rule 52 (a) of the Federal Rules of Civil Procedure because the finding or the refusal to find discrimination by the District Court judge was not clearly erroneous and was, in fact, supported by substantial evidence in the record.

The only evidence of alleged actual discrimination was a testimony of W. Wilson Good who said that in 1696, two years before the actions of which complaints now made, Mayor Tate had publicly said at the time the Mayor made a public statement that he was not going to appoint anymore Negroes to the Board because, in his feeling, they had adequate representation and that he was going to appoint someone from the Nominees to the Board of Education.

John Mattioni:

Well, I submit that that’s a rather thin ice upon which the bottom, a finding of actual discriminatory intent on the part of the Chief Executive Officer of the city of Philadelphia.

Not only is that rather thin evidence, but it was clearly refuted in evidence by the person who had been instrumental in making the appointments acting as an aid to Mayor Tate.

He specifically said that Mayor Tate was an old warhorse politician, and that he took into account all of the necessary things and his — one of his primary criterion in making appointments was to be sure that everybody had adequate representation on these kinds of Boards or Commissions, including the Nominating Panel.

And, of course, in the final analysis, the question really comes down to, looking at the Educational Nominating Panel itself, considering what it’s purpose was, considering what it was intended to do, intended to achieve and how it was intended to achieve it, a finding of discrimination whether inferentially based on statistics of which the significance was never proved or based upon the meager testimony of W. Wilson Good, which was contradicted and which was not accepted by the trial judge who heard the testimony, is grossly unfair to the Mayor of the City of Philadelphia.

Indeed, it does more harm to the City of Philadelphia than good in every way, shape, and form that could be imagined or considered.

The respondents placed particular emphasis on several decisions of this Court

I believe that they rely most strenuously upon Calvin Turner versus Fouche, a decision by this Honorable Court in January of 1970.

The difficulty, I believe, with that– placing reliance upon that case which must, of course, be read in tandem with Carter versus Jury Commissioner of Greene County, is that, there, the issue involved: appointments to a jury panel — grand jury panel which in turn then appointed a School Board, and the evidence showed rather clearly and dramatically that discrimination was involved in the selection of grand jurors by the Jury Commission.

Now, the Jury Commissioners in that case stand essentially on a footing, on the same footing with the Educational Nominating Panel in this case and, interestingly enough, the plaintiffs in that case wanted to set aside the appointment of the Jury Commissioner, and this Court refused to set aside that appointment notwithstanding that all of the Jury Commissioners were White and notwithstanding it was proved that they were guilty of discrimination.

In the matter before the Court now, there is not one iota of evidence to establish that the Educational Nominating Panel, the very panel which is being attacked by the respondents, acted in any way in a discriminatory manner in making its recommendations for appointment to the Mayor.

There isn’t even a contention made here that the Mayor discriminated in making his appointments to the School Board.

That is the Board which was charged with the responsibility of running the school system, not the Educational Nominating Panel.

It was simply an instrument to (a) the Mayor in making nominations to the School Board. Of course, the reason why no contention was made to that effect is rather clear.

At the present time, 33% of the School Board is Black and, at the time that this case was in suit, 24% was Black, and the School Board has never been without Black representation nor has the Educational Nominating Panel been without Black representation.

Indeed, if the criteria sought to be established by respondents were accepted by this Court, we would have an almost insurmountable problem because every recognizable ethnic minority, every recognizable minority of any kind be it Asiatic, be it Italian-American, be it Russian-American, Black-American would have the same right to proportional representation on this panel, but this is a panel of 13 members and that’s an impossibility.

Respondents’ witnesses testified, for example, that the Puerto Rican-Americans in the City of Philadelphia were absolutely entitled to representation on this panel.

But, the problem with that is that on a proportional basis, they couldn’t be entitled to representation because they represent less than 3% of the population of the City of Philadelphia, and one person on the Educational Nominating Panel represents 8%.

So that, they don’t even have enough to say that we’re entitled to half of one person on the panel.

And, if we were to accept that proposition, then no person who was Puerto Rican could ever appointed to the panel because he’s not entitled to his proportion on that panel.

No person of Chinese-American extraction in the City of Philadelphia could ever be entitled to such representation because although we have a strong and viable Chinese-American community in Philadelphia, it’s small and it’s too small to be entitled to a proportion that share on this panel.

And so under those circumstances, it would represent a gross inequity to all other minorities and, indeed, to those who might be considered as a majority, if there is one, in any urban center in the United States today.

Harry A. Blackmun:

Mr. Mattioni, let me get this evidence in focus.

Is it correct to say that there — well, I ask, is there any evidence other than the statistical material, the newspaper comment, and the Deputy Mayor’s alleged lack of knowledge that supports the decision of the Third Circuit here?

John Mattioni:

I believe there is not, Your Honor.

I believe, however, that respondents could point to one other piece of evidence and that is the fact that the School Board of the City of Philadelphia is under an order to desegregate the school system of the City of Philadelphia.

However, that doesn’t really bear on the Nominating Panel because the Nominating Panel has absolutely no responsibility with respect to running the School Board.

Harry A. Blackmun:

Now, one other question.

Is there any allegation of discrimination here that is not directed personally to Mayor Tate as distinguished from the current mayor?

John Mattioni:

I believe there is not, Your Honor.

Harry A. Blackmun:

And yet you have injunctive relief granted.

John Mattioni:

Well, the Court of Appeals indicated that an injunction should be entered against the present mayor because Anthony Zecca, the Deputy Mayor to change Tate, is still on the staff of Mayor Rizzo, of course his position on that staff is substantially different.

That’s the only nexus or connection.

Other than that, there is none.

William H. Rehnquist:

Is there any indication that the Deputy Mayor who’s held over exercises independent judgment free from the Mayor’s supervision?

John Mattioni:

Absolutely none, Your Honor.

Of course, one thing I have not touched upon which also should be kept in mind by this Court is the fact that we are here dealing with the appointments by the Chief Executive Officer of the City of Philadelphia.

Now, of course in first blush, one might say “well, what’s that got to do with all of this?”

I mean, after all, he’s not the President of the United States, but it has this much at least to do with it.

He is a Chief Executive Officer.

He is clearly the representative of the Executive Branch of government, and he — we are here dealing within the context of the appointments to be made, a clear question of executive discretion in the appointment power of the Mayor of the City of Philadelphia.

Now, the Court of Appeals took the position that petitioners had argued that we could only refrain from interference with appointments of the Mayor or Chief Executive in terms of appointments that are close and personal.

In other words, I think they were suggesting that only those personal staff members of the Chief Executive Officer were considered for entitled to any kind of protection.

We submit to this Court that that is not an appropriate method of approaching the problem at all.

In a long line of cases in this Court, appointments of Executive Officers, the President of the United States had been protected again and again and again and again.

This Court has determined quite clearly that where the President of the United States exercises discretionary power committed to him, that Courts either should not interfere or certainly should be loathed to interfere, except on the weightiest of evidence.

The Mayor of the City of Philadelphia is not the President of the United States, but he is an Executive Officer and, of course, we do have other problems here.

We have problems of the federal state relationship which we have not briefed because I don’t think those are really terribly important here, but they have to be kept in focus as well.

And, we’re now talking about a man who was charged by the people who elected him with exercising his discretion in making the very appointments that are here under attack, and we submit, very respectfully, that it would be totally inappropriate.

It was totally inappropriate for the District Court to even consider the matter.

It was inappropriate for the Court of Appeals not only to consider the matter–

Thurgood Marshall:

What are you going to do about the cases where the Federal Courts have ordered cities to employ a certain number of policemen of a certain race?

You’ve forgotten those–

John Mattioni:

I have not forgotten them, Mr. Justice Marshall, indeed —

Thurgood Marshall:

You said there was a long line of cases on one side.

There’s a long line on the other side, too, isn’t there?

John Mattioni:

Yes.

I submit, Mr. Justice, that that’s–

Thurgood Marshall:

And you do admit that the matter is calmed by the constitution so why try to get too much out of it?

John Mattioni:

Well, except for one thing, Mr. Justice Marshall.

The cases you’re talking about did not really and truly involved discretion at all.

John Mattioni:

When you are hiring a — supposedly on an objective basis, on a basis where people come in, they take a test, and either they pass or fail it.

They take a physical exam, and pass it or fail it.

Thurgood Marshall:

You mean that the city–

John Mattioni:

There’s no discretion.

Thurgood Marshall:

You mean that the Mayor of the City of Philadelphia is saying I’m not going to hire a Negro under circumstances and nothing can be done about it?

John Mattioni:

Well of course, factually, they could not appear here.

Thurgood Marshall:

Well, I mean–

John Mattioni:

I’m sorry, Mr. Justice, but–

Thurgood Marshall:

Why try to go too far?

John Mattioni:

I believe that, nevertheless, it’s necessary–

Thurgood Marshall:

Why don’t you rely on the fact that you say it wasn’t proved in this case without saying that he’s exempt from being looked into?

John Mattioni:

I think, Mr. Justice, that even if I meant–

Thurgood Marshall:

Do you say that the Mayor cannot be questioned by a Federal Court?

John Mattioni:

I believe that, in the case of this type, you should not be.

In–

Byron R. White:

Could you explain the Mayor could announce openly that he is not considering for the Nominating Panel any Negroes.

John Mattioni:

If he did, he would hardly be reelected in Philadelphia, sir.

Byron R. White:

That isn’t what I asked you, is it?

John Mattioni:

I know, and I submit–

Byron R. White:

Well, how about that?

How about under the Fourteenth Amendment?

John Mattioni:

Well, I submit–

Byron R. White:

Would the Mayor be subject to any kind of legal redress?

John Mattioni:

I submit that he would not, Mr. Justice, and the reason for that is this.

Byron R. White:

Does your case depend on that?

John Mattioni:

Sir?

Byron R. White:

Does your case depend on that?

John Mattioni:

No, it does not because I don’t believe that anything like that has been proved.

On the other hand, I believe that–

Byron R. White:

Let us assume–

John Mattioni:

If nothing else, sir, what must be kept in mind here is this.

That this is the Chief Executive Officer of the City of Philadelphia, and I certainly–

Byron R. White:

Well, let’s assume–

John Mattioni:

Some consideration of that fact is necessary which requires a Court to at least step back and say “well, before I’m going to get involved in this case, there’s got to be some weighty evidence establishing allegations of actual discrimination.”

Byron R. White:

Well, would you take the same position if the Mayor was appointing the School Board members directly and he announced that he was not considering Negroes for the School Board?

John Mattioni:

I believe, I would, Mr. Justice, for this reason.

Byron R. White:

And judges and anybody that he had a party of– in appointing?

John Mattioni:

Yes, Mr. Justice, and the reason for that is simple.

This is still a tri-partite form of government and if we are to have faith in the electors of our country and in our cities and the whole works, if we’re going to have any faith in that system at all, we’ve got to trust to the good judgment of the electors that if we have somebody who acts in that gross of fashion, that he will be turned out of office.

It’s all it takes.

Thurgood Marshall:

Are you aware the fact that this Court has ruled against governors of states?

John Mattioni:

Yes, Mr. Justice Marshall.

Thurgood Marshall:

Well, you say the Mayor has got more than the governor has?

John Mattioni:

In different context, the Mayor is fully subject to every order of this Court and this Court has full authority, but I’m saying, in this kind of context, this Court should not.

Thurgood Marshall:

What do you mean this type?

John Mattioni:

In this context where we are dealing with a question of executive discretion as opposed to other types.

If the Mayor, for example, got up and said “I’m not going to obey the Court —

Thurgood Marshall:

Do you consider calling out the National Guard in the same category?

John Mattioni:

It depends on the circumstances, Mr. Justice.

Thurgood Marshall:

Well, it showed in Constantin this Court didn’t’ have any trouble questioning the government about that.

John Mattioni:

But again, Mr. Justice, I think it depends on the particular facts in a given case.

Thurgood Marshall:

And this — your difference is this is filled up.

John Mattioni:

No, not that, Mr. Justice.

Warren E. Burger:

Mr. Wolf.

Edwin D. Wolf:

Mr. Chief Justice and may it please the Court.

It’s great honor for any lawyer to appear here.

I’m pleased that I’m here younger than my grandfather, didn’t appear here until he was 80 and my father hasn’t appeared here at all.

I represent the respondents in this case.

In a way, you see in me a stand in for the United States Court of Appeals for the Third Circuit for it is their decision and their opinion that I am here defending.

My clients, therefore, come before this Court not as plaintiffs, which they were below, but as parties who have — who were found by the Court of Appeals to have proved their complaint of a violation of the fourteenth Amendment.

Edwin D. Wolf:

I make this point at the outset because our argument today is that the issue before this Court is whether there is anything in the decision of the Court of Appeals that warrants this Court’s attention.

The essence of our argument is that there is nothing.

That the Court of Appeals dealt thoroughly and carefully with a unique fact situation, applied its earlier decisions and the decisions of this Court in an unexceptional manner, and neither developed nor applied a legal principle that warrants the attention of this Court.

The underlying facts of the case have been stated by the petitioner.

I would like to add just a couple of points.

First of all, with regard to the purpose of the panel, the defendants below introduced a substantial amount of material which purported to represent the legislative history of the composition and the establishment of the Educational Home Rule Charter.

One element that they did not mention that emerges from these documents is that there was a good deal of discussion below before the enactment of the charter about the question of whether the School Board should be elected or whether it should be appointed.

There was substantial support for the election proposition.

The compromise that resulted was this Nominating Panel and, particularly, in Exhibit D7x is a statement by the Chairman of the panel, a leading industrialist in the city, that the panel was supposed to be a counterpart of popular election.

I think that notion is important in considering exactly what the concept of representation means.

Warren E. Burger:

You mean the selection of the panel or the function of the panel after it was selected?

Edwin D. Wolf:

The function of the panel after it was selected.

The panel was supposed to play the role of an election in a democratic system.

Warren E. Burger:

Would you say there’s quite a difference in the two?

Edwin D. Wolf:

Oh, yes, because, as was pointed out in response to Mr. Justice Blackmun’s question, we are not attacking the action of the panel.

I mean only the appointment of–

Warren E. Burger:

How many Catholics, for example, on this Nominating Panel at the time of this litigation?

Edwin D. Wolf:

I don’t know exactly.

I think there were probably two or three, as best I can tell.

We didn’t inquire as to religious affiliation at the trial, so it’s hard for me to tell.

I know that–

Warren E. Burger:

But don’t you think that’s of any importance?

Edwin D. Wolf:

Well, I think that in this case we were trying to establish only that there was exclusion from consideration of qualified Blacks to the panel, and I think that that’s an important notion about our case.

We have never maintained that Blacks are entitled to any particular proportion on the panel.

We are not — the Court of Appeals did not hold that.

The Court of Appeals did not order proportional representation as a remedy.

Warren E. Burger:

Do you know what proportion of Catholics live in the City of Philadelphia?

Edwin D. Wolf:

Yes, I know that there are more Catholics than there are Blacks.

I think it’s about 40%.

However, there are not —

Warren E. Burger:

But they have only two members of the panel, did you say?

Edwin D. Wolf:

There are not very many Black Catholics who are in the public schools because there’s a substantial archdiocese in School District in Philadelphia.

Warren E. Burger:

Would that, in turn, make a difference in your mind?

Edwin D. Wolf:

No, because, again, we’re not talking about whether everybody is represented.

We’re talking about whether there was an a priori exclusion of Blacks from legitimate consideration as members of the panel.

Warren E. Burger:

You don’t know whether there was any such exclusionary attitude with respect to other minorities.

Edwin D. Wolf:

No, we did not inquire into that, and our clients would not have had standing to raise that as a matter– of course, maybe they would’ve.

I don’t know whether they’re Catholic.

I didn’t inquire into that because the issue that we’re concerned with is the exclusion of Blacks from consideration.

The first element of proof that we developed was the composition of the Nominating Panels.

In 1965, there were 10 Whites and 3 Blacks.

In 1967, there were 11 Whites and 2 Blacks.

In 1969, there were 12 Whites and 1 Black, and in 1971, initially, there were 12 Whites and 1 Black and, subsequently, one of the Whites indicated to the Mayor that he was no longer the Chief Executive of an organization.

He was replaced by a Black.

This three-two-one-two pattern, I would suggest and was found by the Court of Appeals not to be conclusive proof of racial discrimination, but was considered by the Court of Appeals to be evidence that was consistent with an inference of racial discrimination.

The second thing that we proved that the District Court found as a fact and the Court of Appeals accepted as a fact was that there were Black organizations that met these standards set forth in the nine — in eight of the nine categories in the charter document.

We also proved and the District Court found this a fact and the Circuit Court accepted as a fact that the person who in fact put together the list of names, the Deputy Mayor, Mr. Zecca, did not know of many of these Black organizations.

These are findings of fact 16 and 17 in the District Court’s opinion.

We subsequently proved a pattern of underrepresentation of Blacks in other appointments by the Mayor.

We did not prove discrimination.

We did not go into that issue.

What we did prove, however, was numerical underrepresentation and I think if you look at the Appendix from page 5 to 23 and you can see in a very graphic way the — what I would regard as a litany of exclusion.

You have lists —

Potter Stewart:

What page is it?

Edwin D. Wolf:

Pages 5 to 23 in the Appendix, Mr. Justice Stewart.

Particularly with regard to the Boards, Commissions, and Authorities of the City of Philadelphia beginning on page 17.

If you look at the third column and you see the number of Black persons, on most of these there is either zero or one.

That’s a litany of tokenism, I think, and although we did not set out to prove–

Warren E. Burger:

Could you help me a little?

Edwin D. Wolf:

I’m sorry.

Warren E. Burger:

What does this have to do– would you relate that to the panel problem that we’re dealing with?

Edwin D. Wolf:

Yes, sir.

Warren E. Burger:

You mean this shows an attitude on the part of the Mayor?

Edwin D. Wolf:

Well, Mr. Chief Justice–

Warren E. Burger:

Or someone?

Edwin D. Wolf:

I think that the principal issue in this case is how do you prove a case of racial discrimination?

Last term, in McDonnell Douglas versus Green, Mr. Justice Powell set out at some detail the order of proof and the method of proof in a case of racial discrimination, and one of the things that he said was that when you have a respondent or a defendant or an employer coming forward to say that he had valid reasons not to hire or to have taken the personnel action into question.

That you could look at other employment patterns by the same person to determine whether his defense was pre-textual is the word that Mr. Justice Powell used and, of course, this is what the lower Federal Courts have been dong ever since Title VII of the Civil Rights Act of 1964 was enacted.

The question of the general employment pattern, although not determinative, is relevant as a matter of a prima facie case and it was for that reason that we introduced that evidence and, in the District Court’s opinion, some of that was the subject of a finding of fact in 17 to 19.

There was a reference to some of this evidence.

The Court of Appeals did not refer to it.

Although, on the other hand, the Court of Appeals did say that it was considering the record as a whole.

The final evidence that we introduced was testimony by one of the plaintiffs, Wilson Good, and I think that testimony is important not only for the purpose that it was cited by Court of Appeals, but also to give this Court an idea of what was going on, what the Black community was feeling about this Educational Nominating Panel and what their response was to this particular pattern of appointment.

And, in that context, what happened in 1969 does become important and does reflect on 1971, and as the Court of Appeals said, it is consistent with an inference of discrimination.

Again, it does not prove that in 1971 the Mayor discriminated but this evidence–

Warren E. Burger:

Do you think this is the correct standard of review for a Court of Appeals reviewing findings of the District Court?

Edwin D. Wolf:

Yes, because the–

Warren E. Burger:

Well, may the Court of Appeals reverse if they find that a contrary conclusion to that of the District Court is a permissible conclusion?

Edwin D. Wolf:

Well, in this context, they can because the issue is not a factual inference to be drawn but a legal inference to be drawn, and the legal inference is, was there sufficient evidence in the record to establish a prima facie case?

If there was sufficient evidence to establish a prima facie case, then the burden shifts.

This also was made clear in McDonnell Douglas versus Green last term, and that is why the question of the Court of Appeals was the right question and I think that they were correct in concluding that a prima facie case of racial discrimination was made out because a prima facie case is not conclusive proof.

When I was an Assistant District Attorney in Philadelphia and trying criminal cases, a prima facie case was merely the establishment on the one side of the elements necessary to make out an offense.

It was not the determination beyond a reasonable doubt or beyond any kind of doubt.

It was simply the establishment on the record of elements which, if unrebutted, would be sufficient to make out a prima facie case.

That is a question of law and that is the question that the Court of Appeals addressed, and it is the question on which it reversed the District Court.

Mr. Good’s testimony discussed the efforts of the Black community to convince the Mayor to appoint additional Blacks to the Nominating Panel and to the School Board.

He recounted that in 1969 the efforts of the Black community had had an effect on the then existing Nominating Panel, and that the Nominating Panel had submitted two out of three in submitting three names for a vacancy that came up, submitted two Black names and he also testified that the Mayor became angry at this and made a public statement that he was not going to appoint any additional Blacks to the panel, to the School Board, and I think it’s important that this testimony is not, Mr. Justice Blackmun, based only on a newspaper article.

The newspaper article was shown to Mr. Zecca in his cross-examination to see what his response was, but Mr. Good did not testify from the newspaper article.

In fact, the newspaper article itself stated that it was based on statements that the Mayor made on television and, although Mr. Good did not testify to this and perhaps this was no mission of mine, he did see it on television.

He was not cross-examined by the City Solicitor to determine whether his information was hearsay, and the record only shows that he testified that he knew that the Mayor knew made the statement.

Edwin D. Wolf:

The questioning of Mr. Zecca in this regard brought forth only that Mr. Zecca did not recall the incident.

That was on page 66 and again on page 93 of the Appendix.

Mr. Zecca was asked “do you recall?”

And he said “no, I don’t recall.”

Well those, I think, are the principal facts with respect to the facts in defense that the city developed.

I think it’s important to note that Mr. Farmer who was the Chairman of the Philadelphia Commission on Human Relations did testify that there were 41% Blacks in this Philadelphia City Government.

I had always assumed at trial, beginning at trial and until I received a reply brief of the city that the Mayor did have something to do with the personnel practices of the city but, according to the reply brief, apparently the Personnel Director is independent of the Mayor and, in looking at the charter, I found that that’s true.

So, I’m not sure that the 41% city employment does prove anything about the Mayor.

On the other hand, the testimony of Mr. Farmer showed that neither he nor anyone on his staff knew that there was a drastic reduction in Black employment in the Philadelphia Police Department which was shown in another action in Federal District Court brought by the Commonwealth of Pennsylvania alleging employment discrimination in the Police Department.

That’s on page 110 of the Appendix, and Mr. Farmer, in his capacity as the Chief City Officer responsible for discrimination and employment in the city, simply didn’t know that this had occurred in the Philadelphia Police Department.

Well, to go back to what the Court of Appeals did, the Court of Appeals reviewed these facts and stated with regard to them that they were consistent with a finding of racial discrimination and then apply the standard developed in the jury cases of how do you prove racial discrimination, and they said the way you prove racial discrimination is, first of all, you have to find an underrepresentation of Blacks.

Second of all, you find an opportunity for discrimination, and then that is enough to make out a prima facie case and, if there is n rebuttal or at least no rebuttal of any legal weight, then you conclude that the case has been made out.

Now, again, I think that what we’re always concerned with is what is the record in the case?

What is the evidence that was before the Court?

Now, it may be that if Mayor Tate had testified, he could’ve satisfied everybody.

He could’ve satisfied everybody.

The District court, the Court of Appeals, this Court.

He might have even been able to satisfy the plaintiffs in the case that he did not discriminate, but he didn’t testify and the Court of Appeals made this point in its opinion.

It said the Mayor didn’t testify and so we don’t really know, but what we do know is —

William J. Brennan, Jr.:

Do you think–

Edwin D. Wolf:

What the evidence says on the record.

William J. Brennan, Jr.:

Do you think the Mayor Rizzo ought to have a chance to testify before an injunction is entered against him?

Edwin D. Wolf:

Absolutely, and I think the Court of Appeals also made that clear.

William J. Brennan, Jr.:

But the injunction was directed to issue against him.

Edwin D. Wolf:

Well, I think the Court of Appeals began its discussion of remedy by saying it is for the District Court to determine the precise nature of the relief.

It did, however, suggest that prospective relief is appropriate.

William J. Brennan, Jr.:

You say then that without further proceedings an injunction should not issue against Mayor Rizzo.

Edwin D. Wolf:

Yes, that would be my position but, on the other hand, I think as–

Warren E. Burger:

But it isn’t the Court of Appeals’ position, is it?

Edwin D. Wolf:

Well, the Courts of Appeals, I think, was speaking to the proposition stated by Mr. Justice White, in most recently in Alexander versus Louisiana, quoting Louisiana versus United States with regard to the obligation of a Federal Court not only to declare racial discrimination when it sees it but also to grant effective relief to see that its effects are eliminated and that it does not recur in the future.

Edwin D. Wolf:

That is the question that will be before the District Court and I cannot tell you right now whether I think an injunction should issue against Mayor Rizzo or if it should– what it term should be.

Byron R. White:

Well, I thought the Court of Appeals rather emphasized the fact that the Deputy Mayor remains the same person?

Edwin D. Wolf:

Well, the Court of Appeals said in Footnote 21 in page 49 of the petition for certiorari, which is the point that I was just making, nevertheless, on this record Mr. Zecca continues as a Deputy Mayor and, since this Court finds that plaintiffs have shown on this record discrimination in regard to the present panel, the Federal Courts must assure that the appointment of a 1973 panel is free from taint and I think that in this whole discussion of remedy, which appears really on one paragraph on pages 48 and 49 of the petition, that there is an emphasis on the fact that they’re dealing with a record.

For example, the last sentence in Footnote 21 says also “we repeat that the defendant Mayor testified and the Court passes no personal judgment on him.”

Byron R. White:

Well, you suggest in any event we read the Court of Appeals opinion as though it did not direct the District Court to issue an injunction, but gives the Mayor?

Edwin D. Wolf:

I think that’s true.

I would, as a practical matter, I would take that position on remand.

Byron R. White:

And that if the mayor did absolutely nothing after– on remand, an injunction should not issue until the other side noticed some further proceedings.

Edwin D. Wolf:

I’m not sure that I– the Mayor has already appointed the 1973 panel.

Byron R. White:

Yes, but the Mayor– but with respect to whether an injunction should issue against him or not, the burden is not on the Mayor to go in and have some injunction vacated?

Edwin D. Wolf:

No, and that’s one of the problems with this case.

There is no order of the District Court to review.

There is a suggestion of some of the considerations that the District Court should keep in mind when it comes to entering an order.

Byron R. White:

So you– I taken then, you really– it sounds to me as though you would really be satisfied if whatever part of this judgment was declaratory is affirmed?

Edwin D. Wolf:

Well, I think that I would not read the —

Byron R. White:

With respect to the Mayor.

Edwin D. Wolf:

I think that the appropriate disposition of this case, as far as I’m concerned, is to remand it to the District Court for further proceedings to determine the precise nature of the relief to which plaintiffs are entitled.

Byron R. White:

Do you think there’s still the case of controversy then?

Edwin D. Wolf:

Oh, yes.

Byron R. White:

Between Mayor Rizzo and the plaintiffs?

Edwin D. Wolf:

Oh, yes, there is definitely a case in controversy.

Of course, the– as cases go up on appeal, the underlying facts change and the city government went on.

Byron R. White:

Yes.

Edwin D. Wolf:

We initially sought to enjoin any action by the panel, but we were denied that relief and the panel did act.

It did submit names to the Mayor.

The Mayor did appoint members to the School Board for a six-year term and they are presently sitting.

Byron R. White:

I suppose that if this suit were brought — had been brought for the first time now, after a new Mayor had been elected, and all you attack was the activities of Mayor Tate and introduce no more evidence and purport introduced no more evidence than you introduced in this case, you might have some trouble about having a case of controversy?

Edwin D. Wolf:

No, because there are people sitting on the School Board as a result of the activities of a 1971 panel and, like in Turner versus Fouche on remand, the remedy is to remove them.

Byron R. White:

That isn’t what you– you aren’t suggesting that the School Board members be removed, are you?

Edwin D. Wolf:

That is a possible remedy on remand, and the Court of Appeals, again, said in its amendment to the opinion which was filed in February at our request on remand, the District Court– this is on page 53 of the petition for certiorari, the District Court should consider the continuing effectiveness of appointments to the Board made after August 1971 on the basis of all the facts which may be developed at the hearing on such remand.

Edwin D. Wolf:

Now, it’s entirely possible that the District Court, in its exercise of equitable discretion, could conclude that it will not remove these members of the School Board for one reason or another.

On the other hand, it clearly is open to it to do so, and by analogy to Turner versus Fouche where the order entered by the District Court on remand was in fact to remove the School Board members who had been appointed as a result of the unconstitutional process, that would be a possible remedy here and I think that, as far as my clients are concerned, if we are successful here and if the case is remanded to the District Court for the entry of an order, we will conduct some discovery and we will take testimony, and then we will have to decide, as a matter of the public interest, what remedy we desire to seek.

William H. Rehnquist:

Mr. Wolf, supposing that after the 1976 Presidential election, whoever is then President Elect is asked whether he plans to appoint a Catholic to the Cabinet and his response is “no, I don’t.

I didn’t’ get any support from Catholics in this election and I really have no intention of considering them for a Cabinet Post.”

Would you think then that a representative group of Catholics could go into some Federal Court and under the due– the equal protection component of the Due Process Clause of the Fifth Amendment and get some sort of an injunction at least requiring him to consider Catholics?

Edwin D. Wolf:

Well, I think that you’re asking two questions there.

One is, whether they would have a right to attempt to prove that Catholics were excluded at priori from consideration and, second–

William H. Rehnquist:

Well, I give you–

Edwin D. Wolf:

— whether they would succeed.

William H. Rehnquist:

By hypothesis, I give you the fact that the President Elect himself states that they are excluded a priori.

Edwin D. Wolf:

Well, I suspect that with regard to a Presidential appointment to the Cabinet that the President would introduce or at least there would be argument regarding the confidential personal nature of the relationship between the President and a Cabinet member regarding the political nature of the appointment, that is, that the appointee is to carryout the President’s policy, and that becomes relevant as a matter of rebutting the prima facie case.

If you’re asking me whether a President or any other appointing authority, having made that statement, offers no defense or no explanation, whether that would constitute a violation of either the Fifth or Fourteenth Amendment’s Equal Protection Clause, I would say, yes and I would say that relief could be granted.

But I think, as I said, that the issue in this case and in that case would be not the right and not the power of the Federal Court, but whether the plaintiffs made out their case and that goes to the simple legal question of what constitutes a prima facie case of racial discrimination and what constitutes an adequate rebuttal to a prima facie case of racial discrimination.

Byron R. White:

Well is this different– would it be different if the Mayor of Philadelphia announced that he just wasn’t considering any members of a particular political party for a position on the School Board?

Edwin D. Wolf:

No, I don’t think that the Equal Protection Clause protects members of a political party as opposed to another.

After all, the Fourteenth Amendment says– talks about race.

Byron R. White:

Well, it talks about equal protection, but you should — you may discriminate against somebody, the Mayor may discriminate against somebody on the grounds of his political beliefs?

Edwin D. Wolf:

I think that’s right, but I don’t really think that that was what was intended to be covered by the Fourteenth Amendment.

Potter Stewart:

And that gets not only in the equal protection area, but the first Amendment area.

Justice White’s–

Edwin D. Wolf:

That’s right.

Potter Stewart:

Justice White’s question, and yet you arguendo at least concede the validity of that sort of discrimination, do you?

Edwin D. Wolf:

Well I think that, first of all, it’s really not involved in this case.

It’s a very extreme–

Potter Stewart:

Well, it may be.

In analyzing this case, it may well be.

Edwin D. Wolf:

I think that the Equal Protection Clause would apply and I think, again, in that situation what you have is an overwhelming defense, overwhelming explanation.

That is, we’re in a political situation.

We’re making political appointments and this person is not of the same political party as I am and, therefore, that’s all the reason in the world not to appoint him.

Potter Stewart:

And what if the political party were the Lily White Party?

Edwin D. Wolf:

Well, I think that you begin to get into Mr. Justice Powell’s word of pre-textual.

Potter Stewart:

No, he went open and nothing pre-texual, the only thing undercover about it–

Edwin D. Wolf:

No, what I mean is that you–

Potter Stewart:

The political party would be an all-White party.

Edwin D. Wolf:

What I mean is that you begin to get to the question of whether saying that he is not going to appoint any members of that political party is a pre-text for not appointing any Blacks and if you find that it’s a pre-text, then I think that it is subject to the Fourteenth Amendment or the Fifth Amendment.

Warren E. Burger:

Well, to pursue that line for a moment even though it may take us quite far, suppose the Mayor having– a Mayor, having been elected, has an analysis made of the precincts and wards from which his support came and he announced that since he only had 10% support in the Negro-voting districts of the city he was going to appoint only 10% Negros, not exceeding 10% of the panel, the Nominating Panel.

Now, that’s a political decision, isn’t it?

Edwin D. Wolf:

That’s right.

I think that that would not be valid.

I think it would not be valid because it is an a priori limitation, that is exclusion–

Warren E. Burger:

How do you distinguish it–

Edwin D. Wolf:

From consideration of members of a particular race.

Warren E. Burger:

How do you distinguish it from the response you gave to Mr. Justice Stewart?

It’s a decision based on political support.

Says he, “I am going to have people appointed to– within my appointing power, who have supported me.”

Edwin D. Wolf:

Well, I think that’s a tough case.

I think it’s a lot tougher than the one we have here, and I think that I —

Warren E. Burger:

But does it not suggest something about the difficulty of having judges make these philosophical analysis?

Edwin D. Wolf:

Oh, it is no question that the– that determining whether a case has been made out is always a difficult one and the thing that you have to look at is– under the law, is first of all, whether the plaintiffs have presented evidence which, if unrebutted, would establish a case of discrimination and, second, whether the defendant has brought forth evidence in mitigation.

The real problem with this case, frankly, I think is that the District Court said on a couple of occasions, “remember, if the plaintiffs bring forth a prima facie case, you’ve got to rebut it” and it was only after the conclusion of plaintiffs’ case, as a matter of fact the following day, that defendants indicated that they did want to put on some testimony, and we did it about a week later.

But, I think that, here, there really wasn’t the kind of political evidence that the two hypothetical situations you’ve given me would suggest.

I think the Mayor could have come in and said “Well, I’m only going to put on this panel people who supported me in elections,” but he didn’t say that and I think that if he had, we might have had a more difficult case.

Thurgood Marshall:

Mr. Wolf, what worries me is, up until just a few minutes ago, I understood you were not after the School Board members at all.

Edwin D. Wolf:

That’s right.

Thurgood Marshall:

And now, you are.

Edwin D. Wolf:

No, I’m only after the panel members.

I’m only saying that the —

Thurgood Marshall:

I thought you said when you went back to the lower Court.

Edwin D. Wolf:

Oh, that’s as a matter of relief, Mr. Justice Marshall, only a question of what relief —

Thurgood Marshall:

Isn’t that matter before us?

Edwin D. Wolf:

Well, I don’t think so because the question of relief is always a matter–

Thurgood Marshall:

Well, you want us to move blindly on this?

Edwin D. Wolf:

Excuse me?

Thurgood Marshall:

was just to ignore what you said?

Edwin D. Wolf:

No, I think the case should be sent back because–

Thurgood Marshall:

So that you can attack the School Board members.

Edwin D. Wolf:

No, because there’s no relief that’s been entered here.

There’s no relief.

The District Court has not exercised its discretion.

Thurgood Marshall:

I understand that, but I understood you to say that when you went back, you more than likely would ask that those people that were put on in 1971 be removed.

Edwin D. Wolf:

That’s right and the reason is because the process by which they were appointed violated the constitution and if the process violates the constitution, then under Louisiana versus–

Thurgood Marshall:

Then I have to ignore what you said that they aren’t involved, they are?

Edwin D. Wolf:

Well, there– when I said they were not involved, what I said was there is no attack on the racial composition of the School Board.

There’s no attack on the School–

Thurgood Marshall:

Why do you want them taken off?

Edwin D. Wolf:

Because the procedure, the process, whereby they were appointed was constitutionally invalid.

Thurgood Marshall:

Even if there were Negroes, they have to go?

Edwin D. Wolf:

Even if there were Negroes because the process was unconstitutional.

That’s why we have constantly tried to make clear that we are not in any way attacking the actions of the panel.

We are only attacking the process whereby the panel was appointed, and we maintain that that was done in a racially discriminatory manner.

Warren E. Burger:

Mr. Wolf, let me ask you one final question that you may or may not be in position to respond to.

I noticed in Footnote 21 that you referred to on page 49, the Court of Appeals has this statement about the senator.

This Court finds that plaintiffs are shown on this record and so forth.

I notice in several other places in its opinion it uses the term “finds” or “found.”

Now, judges when they use that term, ordinarily mean they’re finding a fact which — do you consider that an appropriate function for the Court of Appeals?

Edwin D. Wolf:

I don’t think they were finding a fact.

I think that they were relying on the findings of fact in the Court below with the one exception of Mr. Good’s testimony.

Warren E. Burger:

Do you think they were just using this term inadvertently and artfully?

Edwin D. Wolf:

Yes, because you also find conclusions of law, I think, or make– I guess you make conclusions upon as opposed to findings of fact.

Warren E. Burger:

Well, when judges use those terms, I think they use them more carefully normally.

Edwin D. Wolf:

Well, I think though that the question of whether a particular set of evidence makes out a case of racial discrimination is a conclusion of law, and that kind of conclusion of law is appropriate for a Court of Appeals to draw.

Thank you very much.

Warren E. Burger:

Very well, Mr. Wolf.

Thank you, Gentlemen.

The case is submitted.