Washington v. Davis – Oral Argument – March 01, 1976

Media for Washington v. Davis

Audio Transcription for Opinion Announcement – June 07, 1976 in Washington v. Davis

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Warren E. Burger:

We will hear arguments first this morning in number 74-1492, Washington against Davis.

Mr. Sutton you may proceed when ever you are ready.

David P. Sutton:

Mr. Chief Justice and may it please the Court, at its threshold this case presents two highly important societal values.

The right of a community to be free from discrimination in Public employment and to the right of a community to a competent Police Force is our position that both of these values maybe rationally upheld in this case, such a failure and necessarily leads to the statement of the basic issues involved.

At the time the Certiorari Petition came before this Court, the issue were two in numbers.

First, whether the Metropolitan Police Departments Test 21, its entrance test has an adverse racial impact and secondly whether that test is rationally related to ones ability to be trained as the Policeman.

Later in proceeding before this Court, the Federal Government has injected a third issue into the case and that is whether or not this Court may adequately deal with the case on existing Summary Judgment Record which came to it as opposed to remanding the case to the District Court, so that we may begin all over again.

I would like to take up these issues individually.

In essence our position is that Test 21 does not have irrationally disproportion of impact, in any event as job related and that a remand as suggested by Federal Government which served no useful purpose and would indeed subvert the interest of Judicial Economy.

I will turn briefly to the impact issue.

We do not ask this Court to single out any one factor in dealing with the impact issue.

It is our position that there are four factors or four equal employment badges of credibility which conclusively negate an adverse impact and that these factors may find support in this Courts decisions.

First, vigorous minority recruitment, there is no question that since Chief Wilson took office in 1969 the department has vigorously, aggressively, unwaveringly, sought to recruit blacks into the Department and has succeeded.

Let us talk about the applicant pool.

In this Courts most recent decision on the subject Albermarle Paper Company versus Moody, this Court spoke in terms of a test which has a racial pattern significantly different from that of the pool of applicants, for the most two recent years for which statistics are available, 1970 and 1971, 53% of all the applicants were black and 43% of all the new Policeman were black.

We have a 10% under representation, we submit this does not indicate an adverse impact, but we do not ask the Court to stop here; we have two more badges of credibility.

First, we may fairly compare those in the 20 to 29 H category hired by the Department, the eligibles, 44% between 1969 and the time the Court rules.

Now for some reason —

Potter Stewart:

That is a total of 44% of all the applicants of both of all races were hired?

David P. Sutton:

No, of 44% of all the applicants were black.

Potter Stewart:

I see.

David P. Sutton:

54%, but this must be compared Your Honor; Mr. Justice Stewart with the blacks and the Standard Metropolitan Statistical Area which is considerably lesser than the 50 mile radius from which the Department recruits.

Now the SMSA or Standard Metropolitan Statistical Area, figures applicable to this age group.

In 1970, at the time this case was spending was 24%.

So we double that, but again we do not ask the Court to stop there, I would like to borrow on this Court’s very language in Griggs and this, I think is perhaps one of the most important impact tests.

In Griggs this Court emphasized, that the question is not one of intentional discrimination, it is a question of a practice which is neutralized space, but which has the effect of locking in or freezing a racially unacceptable status quo.

For that reason this Court said in Griggs that under the act, Civil Right Act, practices, procedure or a tests neutral on their face and even neutral in terms of intent cannot be maintained, if they operate to freeze the status quo of prior discriminatory employment practices.

How about a test that does the opposite?

The record does show in this case that in 1965, which co-incidentally was the effective date of the Civil Rights Act Title VII, the department’s black component was 17%.

The record showed that that components spiral overwhelmingly.

David P. Sutton:

The records shows for example, that between 1967 and 1970, the black component of the department increased 228%, the white component 47%.

Now recent statistics which in the report prepared by the District Humans Right office which will soon be available, is on the Mayor’s desk right now shows that presently the department’s Black Component is 41.2%.

Now this is the officer of status quo freezing, instead of lacking in a discriminatory practice of yesteryear, this dissipates anything that could arguably exist between what went on in the past and what went on now.

We do not ask the Court to consider anyone of this practice, we ask the Court to consider the totality of the practice and we respectfully submit that the Court does, does the Court will find that no adverse impact exists.

I would now like to turn to job relatedness and I would like to spend as much time as I can on the late contention of the Federal Respondents, that this Court cannot deal with the matter on the existing record for what of available psychological data, But first of all, again we begin with the Albermarle pronouncement; this Court in Albermarle said that in essence that will continue to consider two factors on job relatedness.

The job relatedness is a contextual matter, must be considered in the context of the employers operation first of all and secondly in the history of the testing program.

Well, let us take the employers operation which necessarily requires that we focus on a policeman’s job.

Now, what kind of a job we are talking about?

The Policeman of today is not the village constable of yesteryear.

He lives and performs in an age of evolving legal concepts.

He must necessarily have some kind of knowledge or familiarity with the laws of arrest, stop and frisk, search and seizure, and this is the age of Miranda v. Arizona and Carey v. Ohio, then too the policemen must have some kind of basic understanding of the component or constituent elements of the various criminal offenses with which he will be concerned when he works as this.

He must be reasonably skilled in a report writing, in the language of the dissenting judge and the Court below, he must be articulate.

In the language of this Court, in Albermarle, he must have job specific ability.

The department’s training curriculum which is before of this Court discusses all this areas as matter which recruits shall be exposed to arrest, search, seizure et cetera, et cetera.

And for that reason we respectfully submit,it is designed to impart the kind of job specific ability that this Court referred to in the Albermarle case.

Obviously, want these verbal ability to understand these materials, to understand the law of arrest, search and seizure.

It is undisputed, that Test 21 is a straight forward test of verbal ability.

The test requires a job specific ability that is training related on its face as Judge Rob so held, we could stop there if we wanted to but we do not have to because we have considerably more than that.

I would now like to turn to the second contextual criterion.

Thurgood Marshall:

What did the majority held about Test 21?

David P. Sutton:

They said that in essence as we say that it is does not predict trainability, they took question where issue with is cut off score of 40 and they stressed the fact that since nobody fail a recruit school, we could not use it.

I think that this comes in rather nicely with the history of the testing program and that will tell us an lawful lot with respect to the appendix or—.

Thurgood Marshall:

Does he gear the policeman?

No it is not, right?

David P. Sutton:

Is not gear the policeman Mr. Justice Marshall.

But, particularly suited to the policeman because that it is geared to the high school graduate and respondent concede that the high school education is sufficient, is required to be a policeman, authoritative study throughout the country including the President’s Crime Commission, take a similar position.

While it is generally geared to any job which in turn requires the high school education.

We respectfully submit as peculiarly suitable to this job, when study galore insists upon a policeman having not high a school education but more, some people would say college degree, we do not to go that far on this case.

In terms of history these terms —

Potter Stewart:

Mr. Sutton, the Court would never get to this question if you are right in your first point, is it not correct?

David P. Sutton:

That is correct Mr. Justice Stewart.

Potter Stewart:

The adverse racial impact, then any inquiry under the job relatedness of the test is never reached.

David P. Sutton:

That is correct, we would welcome holding a job relatedness as we can understand why the Court might not want to make one and if there is a slight impact and —

Potter Stewart:

If the Court does agree with in your first, on your first argument that is the end of the case, is it not?

David P. Sutton:

I submit that it is.

Potter Stewart:

Our decision is construing the Statute it is, is it not?

David P. Sutton:

Yes, Your Honor, Could I go to history, this test with its cut off score 40 correct out of 80 which the 50% passing score really, has been the existence for over 20 years.

It was issued then on the effective date of the 1965 Civil Rights Act like the test in Griggs versus Duke Power Company in which there was almost intentional discrimination.

The study was conducted in the 1967, it was not conducted as a last ditch effort to avoid back pay when the specter of back pay was raised on the evil trial as was the study conducted in Albermarle Paper Company and which the Federal Respondent seem to clink as the controlling precedent which they seem the fact as the controlling precedent in the context of a remand.

Unlike the study in Albermarle, it did not involve whites only.

It involved members of both the races, the record shows that there is an across the board relationship for both races between test scores and recruit school averages.

Enhance and predict trainability.

it was not based on subjective supervisory ratings as was the situation in Albermarle, it was based upon objective criteria, it was based upon test to test co-relation which even the American Physiological Association recognizes as acceptable.

Potter Stewart:

But does not everybody pass recruit school, is that not indicated somewhere in the record?

David P. Sutton:

Your Honor, the record indicates that everybody does ultimately pass recruit school but everybody does not pass recruit school tests.

At page 102 of the appendix, Futransky shows that he considered the fact that some failed.

At pages 181 and 182 of the appendix, it is pointed out that Futransky study was based upon the first taking of the test, if we were to consider this as an adverse factor, it would give the department a disincentive for working with people who otherwise would not make recruit school.

It is a neutral factor at best, I mean at worst.

At best a positive factor which shows an employer sensitivity to members of both races.

But the point that I really want to make is the Federal Respondents contention that this case should be remanded because I think it involves the matter, that strikes at the very high and what this type of litigation is all about?

Involves an important policy question considering the extent to which this Court and other Federal Courts, should rely upon psychological data in decision making.

What they say first of all, is that whether or not there is a relationship or an access between the content of the recruit school curriculum and the policeman’s job as a matter which should be decided by Psychologist until such time as the psychological record has built up, this Court is incapable of dealing with the matter on existing records.

We respectfully submit that this contention is baseless and will lead to all kinds of difficulty.

This Court has imposed many of the requirements for policeman’s job throughout the years.

This Court has written a description for the job in a narrow speaking.

This Court’s expertise on the question of whether a recruit school curriculum is related to a police officers job, we submit is entitled to more credence and a ton of psychological studies.

Potter Stewart:

Well, are we arguing as to whether it is a question for this Court as opposed to the District Court or this Court as opposed to Psychologist or the District Court as opposed to Psychologist, I presume it is basically a fact question is it not?

David P. Sutton:

I think it is a question of rational basis Your Honor, and I think question in narrower stand to review, this Court can view the recruit school curriculum applied to what it knows about a policeman’s job and say that the rational relationship, that the question of whether there is a connection between what a recruit learns at recruit school and what he does on the job is legal one, not a psychological one.

I think the same would hold true of a Bar Examination for example.

If this Court had before the Bar Examination and the question was whether because less blacks pass it, it is related to the practice of law, I do no think that this Court would want to remand it.

David P. Sutton:

I would hope or submit that this Court would not want to remand the case like that.

The psychological proof as to whether the Bar Exam relates to the job of the Lawyer.

William H. Rehnquist:

Well, it seems to me, you can make your point, we can agree with you in that regard without feeling that this Court is the forum in first instance that ought to make these decision as to opposed to the District Court.

David P. Sutton:

But, counsel would have the District Court or Federal Counsel put the District to its psychological proof, to have a balancing of the evidence test, to have Psychologists take the stand and testify as to what a policeman’s job is like.

We submit there is no need for that.

William H. Rehnquist:

Well, but I think you would argue on better ground if you said it because it is a question of fact for the District Court not because it is a question of rational basis for this Court.

David P. Sutton:

I would be reluctant to say that Your Honor, I do not feel that in this area, we need to have questions of fact in the sense, so we have to put an evidence on both sides of the scale and build up a massive record.

I think it would subvert the interest of Judicial Economy.

I think that there must be some jobs where we could just introduce, job descriptions and training curriculum and provide a sufficient basis for summary judgment ruling.

Warren E. Burger:

Are you suggesting to the District Judge of the United State District Court who is dealing with Search and Seizure, Fourth and Fifth Amendment in Carey case and Miranda is better able to make an evaluation of what it takes to make a policeman than some clinical Psychologist is able to make.

David P. Sutton:

That is exactly my position Your Honor and I only add to that.

That if we can take a contrary position with respect to policeman, how far are we going to carry this?

We are going to apply it claims examiners who deal with the Welfare Regulations, Training Program and the context of what these regulations are about.

Administrative Law Judges, Bar Examinations, but I want to emphasize at the same time, we are not suggesting at this Court lay down a rule for all seasons.

We ask this Court for a very narrow rule.

At least insofar as this job is concerned, the stand of review should be narrow.

There are many private jobs that this Court does not have much knowledge of.

Because of the complex society in which we live and we submit that the employer should be put to a psychological proof.

He should call in psychological testimony, jobs involving textile mills if you will.

Jobs involving those such as job, such as those involved in the Albermarle Paper Company.

I think that, that question can be fleshed out with the passage of time, when we take this job as it comes and I wish to emphasis, there are many jobs where the employer should be put to a psychological proof.

Thurgood Marshall:

Do we know what goes on the police academy?

David P. Sutton:

Your Honor, we have the curriculum before the Court and the curriculum shows what is taught there and this Court knows that what is taught there ties in with what the policeman does because this Court constantly reviews matters.

Maybe this Court does not know every thing that goes.

Thurgood Marshall:

You must have been to a police academy?

David P. Sutton:

Perhaps you have been Your Honor.

Thurgood Marshall:

I have, but I mean, do you know many other than that?

David P. Sutton:

No Your Honor.

Thurgood Marshall:

(Inaudible) that is a good bet now as it is here.

David P. Sutton:

Not here, it is true.

Thurgood Marshall:

Not in district either.

Lewis F. Powell, Jr.:

Before you go on, This suit was bought in 1970 alleging violations of the Fifth Amendment, the Equal Protection aspect of the Fifth Amendment and 1981, you seem to be arguing the case on the assumption that Title VII applies, was the complaint ever amended?

David P. Sutton:

No Your Honor it was not, but the District Court made Title VII applicable by analogy and Equal Protection kind of way and we think that is fair.

We think that the public employer should certainly maybe not minutely meet all the Title VII standards, but should substantially comply with Title VII even though the District was not included within Title VII at that time.

Potter Stewart:

And it is applicable under the Equal Protection Clause or identical to the standards applicable under Title VII?

David P. Sutton:

I do not think they are, Your Honor.

Potter Stewart:

All you have to show under the Equal Protection Clause would be the discriminatory impact?

David P. Sutton:

Let us say they are pretty close though and I think that the question is probably academic because we have gone further in this case and any Title VII private employee would go, I realize that —

Potter Stewart:

You are making no distinction between Equal Protection and Title VII in this case.

David P. Sutton:

Because we think — no Your Honor, because quite frankly we think that the substance of Title VII has been complied with.

Now the Civil Service Commission has issued regulations pursuant to Title VII, we are now involved in Title VII, now it does apply, so for all practical purposes in the future we are involved, that would make this distinction, the connection with the guidelines, the Chief justice pointed out in Albermarle that the guidelines are not regulations promulgated pursuant to administrative Procedure Act and hence they are different in that respect and these regulations that the Civil Service Commission has promulgated were and they should be entitled to more weight than the guidelines and I specifically validate this test.

The only other point I would make before sitting down is that the Federal Respondents make a second point that unless this Court has recruit school examinations that were given in 1963 and that is when they were given or evidentiary explication of the context of those examinations, there are no criterion measurements, and hence the Court is incapable of dealing with the case on the existing record before it.

We make no bounds about it, we do not have those examination, they are not available, nor can the contents of the examination be reconstructed. But this point was never raised in the District Court; this point was not raised by the individual respondents or by the Federal Respondent.

We submit that a presumption of regularity should apply, particularly since we know from the DC Crime Commissions report that the professors or instructors that prepare the examinations were generally competent, they did a good job, there was nothing suspicious or unusual in this case which suggest that the examinations were not calculated to assist mastery of what was taught and we think that if it is by date, the Court should accept the Federal Respondent’s contention and penalize the employer when those who challenged the test, could care less about the exams.

They will content to focus the whole argument on whether the test predicts job performance, but this would be to unjustly penalize the Civil Service Commission and the District of Columbia, essentially if the question of latches and the presumptive of regularity.

Nobody can take issue with the notion that we live in an age in which an evolving body of law has made a policeman’s job more complex.

We submit then that it is only fair, that (Inaudible) Police Department be permitted to ensure that those recruits that it would hire, have the necessary degree of verbal ability to learn the basic tools of the police trade.

We submit that the Metropolitan Police Department has done this, well at the same time boasting an equal employment opportunity record which is one of the very best in the nation, if not the best in the nation.

As Judge Gazelle said, the Metropolitan Police Department has been an example.

A clear example of bridging racial barriers.

We ask this Court to reverse the judgment of the Circuit Court of Appeals and more that, we ask this Court to permit the summary judgment ruling of the District Court to stand and I shall save the rest of my time for rebuttal if the Court has no further questions.

(Inaudible)

David P. Sutton:

Your Honor there is no question, we do not hide the fact that considerably more blacks failed Test 21 than passed it.

We submit that that is a factor to be considered in conjunction with other factors.

(Inaudible)

David P. Sutton:

We submit that is not enough to shift the Burden of Proof, this Court in the Albermarle case, put the question more so on the basis of overall hiring results rather than on to the basis of test results.

(Inaudible)

David P. Sutton:

I think it is a the factor, but I think that —

(Inaudible)

David P. Sutton:

Your Honor, maybe if Your Honor’s question is the full responsibility upon us, if Your Honor’s question is that ipso facto shift the burden of showing my answer is no, that does not.

(Inaudible)

David P. Sutton:

No it is a factor to be considered by the Court in connection with many other factors as did Court in Smith versus City.

(Inaudible)

David P. Sutton:

We submit that it does not; it would perhaps that we did not have the other badges of credibility that are depicted by this record —

(Inaudible)

David P. Sutton:

No, such as the fact that —

(Inaudible)

David P. Sutton:

Aggressive recruitment compares —

Warren E. Burger:

(Inaudible) I did not understand you said that Griggs Police Department, but that you had the best record on racial matters of any Metropolitan Police Department in the Country.

David P. Sutton:

Yes Mr. Chief Justice.

Thurgood Marshall:

And who said that?

David P. Sutton:

Judge Gazelle said that it has been a nationwide model for bridging racial barriers.

Thurgood Marshall:

(Inaudible)

David P. Sutton:

It was in the New York Times article which compares with other departments, Your Honor.

(Inaudible)

David P. Sutton:

Your Honor.

(Inaudible)

David P. Sutton:

There are many other cases Your honor that show worst track records and counsel has said there is a plethora of these cases in his brief.

I have never read a case that shows the Police Department with a better equal employment record.

If there is one maybe counsel can tell this court about it, if there is one, we respectfully submit that there would not be very many.

Thurgood Marshall:

(Inaudible) if this is best, make it automatically exempt from in position?

David P. Sutton:

No Your Honor, we must rely upon the totality of the —

Thurgood Marshall:

Applies under Section Article VII?

David P. Sutton:

No Your Honor, we must —

(Inaudible)

David P. Sutton:

Right, we must rely upon the totality of the statistical data, but I think that it should be counterbalanced with this Court’s pronouncement in one of its cases, statistics tell much in Court’s lesson We submit there are overwhelming statistical data in this record which apart from the statement of having a good track record, will negate the adverse impact and we say this, not withstanding the past failure rate.

John Paul Stevens:

Mr. Sutton could I ask just one question, if you assume that the burden shifted by showing the racial impact, what do you understand that the defendant’s burden is?

David P. Sutton:

Your Honor, I understand first of all, it is very light, because job relatedness is a contextual consideration, as we have a law review article on this, and we cite in our brief which dovetails nicely with Albermarle.

One of the factors that should lighten the employers burden is the insubstantiality of the impact, if the impact there be, another factors is the —

John Paul Stevens:

You are not answering my question, assume that there is a shift in the burden.

David P. Sutton:

Right.

John Paul Stevens:

What do you understand that the defendants must prove in order to shoulder their burden?

David P. Sutton:

That Test 21 is related to ones ability to be trained as a policeman.

John Paul Stevens:

Then that you have met that burden if you prove that the test establishes verbal ability?

David P. Sutton:

We do Your Honor.

John Paul Stevens:

So your Position is that the record shows that the verbal ability is established and verbal ability is a component of job performance.

David P. Sutton:

No, verbal ability is needed to succeed in the Police Training Academy.

John Paul Stevens:

Is it also needed in order to be an adequate police officer?

David P. Sutton:

It is indeed Your Honor.

John Paul Stevens:

Is that your position?

David P. Sutton:

That is our position, but we do not ask the Court, because —

John Paul Stevens:

If the record establishes that this test is a measure of verbal ability, you win.

David P. Sutton:

Right, we are not asking the Court to go so far as to say that verbal ability relates to the job after recruit school.

So we submit that it does as Judge Rob said.

We think we can structure much narrower rule.

Byron R. White:

Do you think that independently you should prevail because in terms of actual hiring, your recruitment program produces a police force that racially mares the community in terms of division between blacks and whites?

David P. Sutton:

I think we should, if you view the community as the District of Columbia itself, perhaps it might be one thing, but if you view the community in terms of the Standard Metropolitan Statistical Area and the District by statute and if the person does to not live within the District, to be a Metropolitan Police officer, he can live within a 20 mile radius, now the Court your honest question —

Byron R. White:

Let us assume that twice as many blacks as white pass the test, but you nevertheless hired in proportion to the racial composition of the community.

Do you think that —

David P. Sutton:

No that would be wrong, and there would be a quarter system.

Byron R. White:

Well.

David P. Sutton:

That would be improper.

Byron R. White:

You think that quarter system violates Section VII, Title VII.

David P. Sutton:

The Legislative history appears to indicate that Your Honor.

Byron R. White:

Either way?

David P. Sutton:

I would say so yes, but on the other hand if turns out that way.

Byron R. White:

Do you think that this is a Title VII case?

David P. Sutton:

I think the Title VII has to be dealt with in this case, I do not think it could be brushed aside.

The time, the case was tried the Title VII was not applicable to District but the Equal Protection concept was and this would certainly bring in your Title VII criteria.

Byron R. White:

Do you think the case would have been tried differently if the rules that are now applicable had been enforced at the time the case was tried.

David P. Sutton:

No Your Honor I do not.

Byron R. White:

So you think the rules are the same now as they were then?

David P. Sutton:

I do Your Honor yes.

Byron R. White:

Even though Title VII was not.

David P. Sutton:

We have met — if the Civil Service regulations were around the books at the time this case was tried the test would have passed master.

The test passes master on the EEOC guidelines.

Of course we realize that they have not been adopted in the totality by this Court.

But it meets most of the features of the guidelines.

William H. Rehnquist:

When did Title VII become applicable to District, 72?

David P. Sutton:

72 Mr. Justice Rehnquist, yes sir.

Harry A. Blackmun:

Let me ask you the question because your opposition does not stress it.

Is it not true that of those passing the test, a larger percentage of Negroes was hired than of whites, of those passing the test?

David P. Sutton:

I would have to say no, but I would say locally, a larger number of Negroes was hired than whites over the 9 month period that is referred to in the affidavit of the department demonstrative services officer.

I will have to say no, a larger percentage of Negroes was not hired, but a larger number was locally and we refer to the affidavit of the department’s administrative service office that contained at pages 66 and 80 of the appendix.

We point out that it just relates locally now.

During the final 6 months of 1969, Mr. Chief Wilson took office and during the first three months in 1970, let us take the latter, the first nine months of 1970, I think it was 504 blacks and 401 whites, but percentage wise we are hired.

But more blacks failed the test, there is no dispute about that.

Harry A. Blackmun:

My question was the percentage of those passers.

David P. Sutton:

Perhaps that so.

Harry A. Blackmun:

Well my question is taking out just those who passed and the hires from that pool of passers, is not the percentage of Negroes hired greater than the percentage of passers.

David P. Sutton:

Right test passers as distinct from, I have got your question out, test passers as distinguished from test takers, right.

Harry A. Blackmun:

Indeed.

David P. Sutton:

Right.

Harry A. Blackmun:

And your opponent makes no mention of this.

David P. Sutton:

No.

Harry A. Blackmun:

As I read his brief anywhere, but he concentrates entirely on those taking the test, not on those who pass it.

David P. Sutton:

And the language of the Sixth Circuit, in the Smith case which I understand is now pending before this Court, the impact should be an overall hiring results, not test results considered in isolation.

Harry A. Blackmun:

(Inaudible)

David P. Sutton:

No it is does not violate the Title VII.

(Inaudible)

David P. Sutton:

If it turns out in a way, that there are more blacks hired working for the Department.

(Inaudible)

David P. Sutton:

You now had a problem here you have a merit system, you have a system where the persons with the highest scores get the job, now that does not enter into consideration here because at the time this test was given everybody —

(Inaudible)

David P. Sutton:

Okay.

(Inaudible)

David P. Sutton:

There are no circumstances; there probably would be a quarter systems that would be improper under Title VII.

Warren E. Burger:

Would that to anyone prompt scrutiny of the underlying factors?

David P. Sutton:

No.

Warren E. Burger:

You say it is not of course, does not dictate a per se conclusion one way or the other.

David P. Sutton:

No.

Warren E. Burger:

It does not prove of anything it merely suggest the Court should look at it or someone should look at it.

David P. Sutton:

Right.

Warren E. Burger:

Very Well Mr. Sutton.

Mr. Evans.

Lewis F. Powell, Jr.:

Mr. Evans before you present.

I would like to go back to the question I asked, how did Title VII got into this case and do you think it is properly here?

Mark L. Evans:

Mr. Justice Powell, I think that in essence, the standards are the same under Title VII as they are under the Equal Protection concept because —

Lewis F. Powell, Jr.:

May I ask the question there; let us assume this way, an Equal Protection case is nothing else, when will the burden shift?

Mark L. Evans:

I think at the same point.

Lewis F. Powell, Jr.:

All you have to prove under straight Equal Protection analysis is that mathematically more whites were being — were passing this test and than blacks?

Mark L. Evans:

I think the same analysis that this Court is adopted in Griggs under Title VII ought properly apply—

Lewis F. Powell, Jr.:

This is not a Equal Protection case?

Mark L. Evans:

That right but it was a Title VII, but I believe that the analysis —

Lewis F. Powell, Jr.:

That is your case Justice Stewart.

Potter Stewart:

Albermarle.

Lewis F. Powell, Jr.:

And I am thinking about that, I am thinking about sex discrimination.

Potter Stewart:

Guilty.

Lewis F. Powell, Jr.:

Guilty.

Thurgood Marshall:

Guilty.

Lewis F. Powell, Jr.:

That was an Equal Protection case.

What standard was applied in that?

Mark L. Evans:

Well, there was some question as to whether there was a discrimination found in that case or not.

Lewis F. Powell, Jr.:

Well, all one has to show in Equal Protection case is a mathematical impact that can be construed discriminatory.

Mark L. Evans:

Well I am not sure, I had be prepared the generalize question from Mr. Justice Powell, but I think in the context of a testing challenge, it is reasonable to make the same analysis that the Court made under Title VII, I mean the basic standard is the same.

Title VII prohibits discrimination on the basis of race, sex color, religion.

William H. Rehnquist:

Well Mr. Evans, in Jefferson versus Hackney, we said that statistics standing alone were not sufficient.

Mark L. Evans:

Well, not sufficient for?

William H. Rehnquist:

Not sufficient to make out an Equal Protection Claim in the absence of a finding of intent to discriminate.

Potter Stewart:

(Inaudible)

Mark L. Evans:

Well, I think that is right.

Potter Stewart:

(Inaudible)

Mark L. Evans:

Well, frankly, have not addressed myself to this question because it has not been —

William H. Rehnquist:

I think it is important I mean that Title VII is the applicable now to the District.

Mark L. Evans:

That is right and for the future Title VII standards govern for all public employers.

William H. Rehnquist:

So, it might be quite important in another context, but is it at least arguable here that we should apply a Title VII standard.

Mark L. Evans:

Well, that is the way I thought about the case and just the way the parties have approached it that this is basically a Title VII case and well, I have not fell through all the ramifications of applying a standard Griggs analysis to a case which was brought at the time when Title VII was not yet applicable to the District, given the nature of the issue for the future.

I think it is appropriate for the Court to treat it that way since the parties then prepare to treat it that way.

Potter Stewart:

Is the compliant based wholly on the Equal Protection Clause of the constitutions?

Mark L. Evans:

I believe it was yes.

Potter Stewart:

On the Fifth Amendment?

Mark L. Evans:

1981.

Potter Stewart:

But substantively upon the Equal Protection component of Fifth Amendment.

Mark L. Evans:

That is right.

Potter Stewart:

Not at all upon the statute.

Mark L. Evans:

That is correct.

Potter Stewart:

Was the complaint ever amended?

Mark L. Evans:

I do not believe it was, I should add that there is one other complicating factor and that is that there is a statute which can be read as requiring the Civil Service Commission to ensure that all of its test are job relative regardless of any adverse impact.

That the application of that statute to this case was viewed by the Court of Appeals as not presented by this case and it may well be that the same job relatedness burden would fall upon the defendants in this case in any event as as public employers.

John Paul Stevens:

Were the statute requiring the Commission to be sure that all of the test are job related tests unless there is an attack upon that — can not one assume that the Commissioners have followed the law, does not help up defendants in this case?

Mark L. Evans:

Well, I think there is an attack on it, at least to the point –

(Inaudible)

Mark L. Evans:

At least to the point of shifting the burden to the defendants to come forward with some proof.

Where you — I mean, the presumption can only be carried so far and where the plaintiffs have established a dramatic adverse racial impact of the test, I think it is fair to impose upon the defendants the burden of at least presenting evidence showing that indeed the burden of job relatedness proving job relatedness has been met.

John Paul Stevens:

Mr. Evans could I ask you the same question, I asked your opponent, just precisely what is the burden?

Do you contend that they have failed to prove that the test establishes verbal ability or that verbal ability is not a component of the policeman’s job?

Mark L. Evans:

Well, the analysis does not really focus so much Mr. Justice Stevens on verbal ability.

It is true that this test was designed.

Test 21 was designed was by the Civil Service Commission as a test of verbal ability.

John Paul Stevens:

Do you question that it is does establish verbal ability?

Mark L. Evans:

I do not know one way or the other, because this record does not clearly answer it, the studies that were conducted as to the validity of the test did not go to whether or not it adequately measured verbal ability as a trait.

What it went to was the question whether on the hypothesis that it measured verbal ability and there is some evidence that it does but not definitive.

On the hypothesis that it measured verbal ability whether scores on that test were reasonably predictive of scores on recruit school examinations.

John Paul Stevens:

Would assume they were not for a moment; I just like to think through a little bit and assume that there is an expert who testifies without contradiction that this test does establish verbal ability.

What would your position be with regard to the question whether that is a job related characteristic of it.

Mark L. Evans:

Well, that would require a professional — different kind of professional ability.

John Paul Stevens:

whether or not, reading ability is a component of a successful performance of the policeman.

Mark L. Evans:

Well, it could be your successful performance of the training school.

John Paul Stevens:

Suppose we put the training school completely aside, we would just take Court of Appeals problem which is that we focused on the training school instead of the element job, but is there — do you take issue with the suggestion in Judge Rob’s dissent that one should know that a police officer must know how to read with sufficient skill to handle Search Warrants or things like that.

Mark L. Evans:

Well it is fine as a general proposition but professionals in the field have been quick to warn, lay persons and making the kinds of Judgment that Judge Rob made which is a basically a lay judgment, resting perhaps on an accurate notion or perhaps not.

John Paul Stevens:

I am not trying to debate the issue, your position is that there must be proof in the record that reading ability has some relationship to the job of a police officer before a Court could accept that conclusion.

Mark L. Evans:

I think that is correct if — but I want to emphasis that this case does not hinge on such as a showing.

There is no adequate evidence as to that in this record but that is not what was shouldered by the defendants in this case, they were not trying to demonstrate, a) that police officers had to have verbal ability and (b) that this test is an adequate measure of verbal ability.

They were hypothesizing that verbal ability would likely be something needed to succeed in the training school and then they were finding out whether on the basis of that hypothesis, scores on the test entry test were reasonably predictive of scores in training so that one could say as I believe that the evidence demonstrates.

That the higher one scores on the entry test the more likely he is to achieve satisfactory scores on the recruit school test, that is called the criterion related validity study under the technical jargon and it is quite different in concepts and in form, from what we are talking about the verbal ability test which would be studied under construct validity model.

By which you determine what traits are needed for the job and whether at the particular test is a reasonable measure of that trait.

John Paul Stevens:

Would you agree that if a test established the qualification for one of several traits that would be required for a job.

It could nevertheless be job related?

Mark L. Evans:

Yes, the issue was not wholly free of ambiguity, but I believe it is fair to say that if a test was designed and used to measure the capacity of a particular person, the ability of a particular applicant to do something, a trait or what is called the construct, that if there was a proof that this test adequately measured, was an adequately designed test to measure that trait and if there was some proof in the record.

Maybe or maybe not the psychological but probably psychological in nature to suggest that trait was an important part of the job. That would I think establish job relatedness.

Mark L. Evans:

In our view, there are two things missing from the record that makes it difficult to answer the question whether this test is job related under the model of validation that was used by the Psychologist here.

What is missing is that there has been shown a correlation between the scores on the entry test and scores under recruit school examinations.

What is not apparent from the record is whether and to what extent there is any reasonable relationship between the recruit school examinations and the recruit school curriculum.

That is do this examinations or did these examinations adequately measure mastery of the training school curriculum?

Mr. Sutton has pointed out that these examinations as they were used in 1963 at least may not be available anymore.

That is not to say some subsequent examination might not serve the purpose for this case.

But in any event there ought to be an opportunity to explore this question because without it, it is very difficult to determine whether you are measuring a correlation between the entry test of some job performance measure or just entry test in some abstraction and the second thing that missing is —

William H. Rehnquist:

What if there is no any presumption at all in the case of an employer that he puts on a school and gives you a test at the end of the school that the test is after be based on what is taught in the school?

Mark L. Evans:

Well, I think that practice, that is the kind of presumption that the defendants were operating under at the time of trial in this case and it may well have been appropriate at the time and what is caused us to look at the matter again is that standards have been in a State of evolution since the time this trial was conducted and more significantly and since the time the study was conducted which was before Griggs and before Title VII was extended to this.

William H. Rehnquist:

What is evolved with respect to that particular point?

Mark L. Evans:

Well, I can give you a very specific example on that point because the applicable professional standards which are ideals and not necessarily the minimum that must be accomplished but the ideals to strive for —

William H. Rehnquist:

Where do these come from?

Mark L. Evans:

These are publish by the American Psychological Association.

William H. Rehnquist:

What legal State as to they here.

Mark L. Evans:

Well, for one thing they are referred to and in effect incorporated by reference by the EEOC guidelines.

I mean they are generally looked to as the source for what the governing professional standards are to determine whether a validity study is an adequate one to show what it is intended to show, and these standards have changed quite significantly since 1966, which is what the prior version which was cited by the Court in Albermarle, and on that particular point there was nothing in the 1966 standards relating to whether or not the criterion measure, that is the training school exams were related significantly to the criteria, namely training success.

In this document it becomes apparent that the professional consensus is now is that is a relevant inquiry in determining job relatedness and this evolution has been.

Harry A. Blackmun:

What prevent the Psychologist changing their mind tomorrow?

Mark L. Evans:

Well there is nothing.

Harry A. Blackmun:

They think it is unknown to do?

Mark L. Evans:

MThere is nothing to prevent it and indeed they say in their document quite clearly.

They have not written these standards to be used as law that this is a growing profession indeed in its infancy and there are maybe changes of mind.

The only point of relying upon them is that the source as a guide really just as the agencies themselves formulate guidelines which themselves change.

Warren E. Burger:

Let me understand your position, let me see if I can clarify, this is my understanding of it. Is not the position of the United State Department of Justice in this case or generally that verbal ability is not a key imperative for the function of a policeman particularly on a Metropolitan Police Force, when he must understand as the arguments just last week before this Court in two cases were made that he must understand the Boyd case, he must understand the Weeks case, he must understand Miranda, he must understand Terry and the new answers of all of those cases.

Now is it the position of the Department of Justice that you need a Psychologist to tell you whether verbal skills are related to that process?

Mark L. Evans:

Well, I think one can hypothesize fairly that that is a substantial part of a police officer’s job.

Well, it is after all an assumption we are making it is not something that we know we have not I assume studied —

Warren E. Burger:

That applications for warrants must be not —

Mark L. Evans:

Well.

Warren E. Burger:

Then it was argued to us only last week that if the Judge in issuing the warrant makes a mistake, that he ought to be skillful enough to recognize that the Judge has made a mistake in issuing the warrant and not execute the warrant.

Mark L. Evans:

Well, let me assume for a moment that is an important and substantial part of a police officer’s job, this study that was presented in this case to support the job relatedness of Test 21 was not designed to show the extent to which Test 21 measured verbal ability.

That was not the model by which the validation was undertaken.

It was undertaken under this other model which I mentioned the criterion in related validity.

There is some statement in the expert affidavits in the case that Test 21 does measure verbal ability and that verbal ability is needed to past the training school.

But that is not what was attempted to be shouldered by the professional validation study submitted to this Court and I do not think that it is fair to infer from the evidence before the Court that the test has been showing job related by a professionally acceptable method as to the job relatedness, as to the verbal ability aspect of it.

Lewis F. Powell, Jr.:

Mr. Evans, you said there were two things missing from the petitioner’s case that you stated the second if —

Mark L. Evans:

I do not think I did, the second is that assuming for a moment that there is a basis for relating the recruit school examination scores to the content of the training program, that one measures the other, there is not adequate evidence in the record, in our view to relate the recruit school curriculum to the job of the police officer.

Again, there is I think nonprofessionals can find it easy to make assumptions by looking at the curriculum itself and then assuming what we all know a little bit about to the police officer’s job but the fact of the matter is there ought to be something in the evidence showing what it is, the police officers do once they get out of training school in order to justify the use of this training school as the measure of the criterion for justifying the entry test.

William H. Rehnquist:

Would that have to be shown by the testimony of a professional psychologist?

Mark L. Evans:

I do not think so Mr. Justice Rehnquist I think it may in certain cases but I think that there is no reason to establish that as an automatic rule.

I think in a case like this for example, it maybe perfectly adequate to have police officers in a supervisory capacity come in and testify but it is question of a fact.

Testify as to what a police officer does and then compare that with the curriculum.

Now, in some case it is going to be necessary to have what the Psychologist called a job analysis, to decide in a more technical field perhaps to decide what it is that the person is really doing on the job.

But whether it is required in this case or not it seems to me is itself a question that ought to be resolved by the District Court.

Harry A. Blackmun:

Mr. Evans, you read the questions in the Test 21 in the record?

Mark L. Evans:

I have read many of them.

Harry A. Blackmun:

The test is very difficult?

Mark L. Evans:

Well.

Harry A. Blackmun:

To pass with 50 percent of –.

Mark L. Evans:

Could I?

I do not take the test Mr. Justice Blackmun, I hope I could.

They are not all that difficult, they are designed to be high School level.

They are designed to measure of what a high school student, high school graduate is like to be able to answer.

Potter Stewart:

So as questions, I do not see, how you can even mark him.

Harry A. Blackmun:

But I was about to say, some of them are not so easy to understand or not — that the answer is not all together clear.

Potter Stewart:

For example on page 24 (a).

Warren E. Burger:

Perhaps hat is why the District Court is listed quite low.

Mark L. Evans:

Well let me state again although I hesitate to admonish the Court or suggest to the Court again that the Psychologist would frown in what we are doing here, this is called in the Psychological jargon, a study of face validity that as you at the look at the test and you decide on the basis, looking at it whether it is measures something important or whether it is a good test for the purpose for which it is used.

Everybody in the profession at least and I think everybody in this case agrees, that is not an appropriate inquiry.

That the appropriate inquiry is a professional one and indeed, I think this Court’s decision in Albermarle makes clear that job relatedness depends on a showing based on professionally acceptable methods and face validity that is looking at the face, the test is simply not such a method.

John Paul Stevens:

Can I ask one other question, you are here as Attorney for the Civil Service Commission as I understand.

Mark L. Evans:

That is right.

John Paul Stevens:

And you are identifying some shortcomings in the defendants proof.

Are you in effect asking for remand so that your client could put in the evidence that you say is missing?

Mark L. Evans:

Well, is that not all —

John Paul Stevens:

Are you saying that that evidence is available?

Mark L. Evans:

No as we say on our brief —

John Paul Stevens:

The summary judgment in the District Court.

Mark L. Evans:

As we say in the brief Mr. Justice Stevens, it is not all together clear whether the evidence is available or has been retained or can be reconstructed.

Mr. Sutton has said today that the tests that were used as the basis of —

John Paul Stevens:

You are here and on behalf of that litigant, you want to remand it?

Mark L. Evans:

Well, I think the case ought to be remanded and an inquiry should be made as to whether there is evidence that can be presented on these issues, if there is not —

John Paul Stevens:

You have not made that inquiry yet I take it.

Mark L. Evans:

Pardon me.

John Paul Stevens:

You have not made that inquiry yet?

Mark L. Evans:

In part, the inquiry depends upon what the district has available but my —

John Paul Stevens:

In the abstract here –

Mark L. Evans:

I am sorry?

John Paul Stevens:

You are sort of arguing in the abstract here.

Mark L. Evans:

Well, I think – I was going to say, I think the inquiry should be made as to whether the evidence exists.

If it does not exist, I think there is a further inquiry to be made whether the plaintiffs in this case, whether the plaintiffs failure to specifically raise these particular weaknesses that we have identified at any time the District Court contributed to the non-existence of the evidence at this point and if so —

John Paul Stevens:

They also moved for summary judgment, did they not?

Mark L. Evans:

They did.

There are times, I think even when both parties believed summary judgment is appropriate that turns out not to be appropriate.

(Inaudible)

Mark L. Evans:

These particular weaknesses aside from the Court of Appeals in some respects, no.

John Paul Stevens:

Do you brief witnesses in your own case?

Mark L. Evans:

That is correct.

John Paul Stevens:

Just as someone else should remedy them.

Mark L. Evans:

Well it is not, it is weaknesses in the joint case put on by the defendants in the District Court in light of what we think are the current standards and whether — another inquiry in the District might quite properly be whether even if the evidence today or the evidence in the District Court turns out not be sufficient under the standards.

Mark L. Evans:

We have articulated as what we think to be current standards.

Whether it might have been appropriate, it might have been satisfactory under the standards that existed then.

As I have said there is reasonably that standards have evolved substantially.

Thurgood Marshall:

Mr. Sutton where you now stand and how will you answer Mr. Sutton’s story about you are not doing anything about saving conditional time. what you hear him know what you want?

Mark L. Evans:

Well I think I have articulated that we are not clear, what evidence is available, but there are matters for inquiry.

I think appropriately in the District Court even if there is no evidence available and that is where does the brunt of that failure fall at this point?

Seems to me the problem is this, they are really —

Thurgood Marshall:

How can they brunt fall on the petition that cannot fall on them?

Mark L. Evans:

Well it can of my –

Thurgood Marshall:

The point have been raised until now?

Mark L. Evans:

Well but who did not raise it?

Thurgood Marshall:

You. [Laughter]

Mark L. Evans:

Well, but neither did the petitioners and they after all do have some burdens on litigation.

Thurgood Marshall:

Oh so you are playing on both aspects.

Mark L. Evans:

Well, I think there are really several alternatives.

One is to do what I think would be inappropriate which is to say here are the applicable standards.

Let us look at the proof.

The proof does not meet them therefore summary judgment in favor the District Court, the Court of Appeals decision is affirmed.

That is summary judgment in favor of the plaintiffs.

The other alternative is to say well, the plaintiffs never raised this issue in the District Court therefore the absence of these relevant materials in the evidence today is too bad summary judgment in favor of the defendants.

I am suggesting an alternative which would send it back to the District Court.

Thurgood Marshall:

On the basis of your argument to say that the plaintiff did not meet his burden of proof?

Mark L. Evans:

The Plaintiff?

Thurgood Marshall:

Yeah.

Mark L. Evans:

Well, let me go to the — this quite goes to a question of burden shifting.

Thurgood Marshall:

I think no.

Mark L. Evans:

I think that the plaintiffs met their threshold burden of establishing adverse racial impact.

Arguably, the defendants met their burden of proving job relatedness by submitting what we think now is partial evidence and with the general statement by its experts that this met the applicable standards and proved relatedness.

In the absence then of a specific attack by the plaintiffs on the weakness that we now feel, we are vulnerable on, perhaps they should bear the burden of having failed or having failed to raise the weaknesses that we now perceived in the evidence that we presented.

Thurgood Marshall:

If the petitions be required for producing some and nobody asked them to produce until now.

Mark L. Evans:

The same can be asked to the defendants.

How could the defendants have been asked to produce evidence on matters that nobody identify this being an issue.

Those are the petitions.

Mark L. Evans:

No, I am sorry.

I meant the respondent.

(Inaudible)

Mark L. Evans:

Yes.

Potter Stewart:

And we never get to any of this stuff, unless we agree with you that there was a — that the plaintiffs proved an adverse racial impact.

We never get to any of it.

Mark L. Evans:

That is correct.

Our position is as I have indicated this that standard was met.

Potter Stewart:

You are conceding that you lost that part of the case?

Mark L. Evans:

That is right.

Potter Stewart:

You do here represent the Civil Service Commission and only the Civil Service Commission?

Mark L. Evans:

Right.

Warren E. Burger:

Mr. Sobol.

Richard B. Sobol:

Mr. Chief Justice and may it please the Court, I would like to start with Justice Powell’s inquiry concerning the basis of the suit and to clarify, one or two misconceptions that have creped in.

There was three basis for this action as alleged in the complaint which appears on page 24 of the appendix.

The action was based on Fifth Amendment to United States Constitution in the Equal Protection requirements implicit therein.

It was based on section 1981 of the Title 42 which as far as I understand that it is not a procedural statue but is a substantive statute creating a private right of action against racial discrimination and employment.

It is unlike 1983, in that regard as the opinions of this Court and for example DC against Carter make clear.

Third it was based on the District of Columbia code 1-320 which prohibits racial discrimination and employment in the District of Columbia and there was jurisdiction alleged for each of these basis of action.

So, in essence the way the case reaches the Court, this Court, the issue is not the bald issue of whether Title VII standard are the same as constitutional standards.

It is whether the composite of Section 1981 of Title 42.

The prohibition against racial discrimination and employment in DC code and the Fifth Amendment together represent a lower standard, than the Title VII standard and I would submit that is not the case that the Courts have treated 1981 as equivalent at the least to Title VII in its prohibition against racial discrimination and employment.

But moving to the Constitutional issue, I would say this that the test creates a classification between those who pass it and those who do not.

At the very minimum, the issue is whether there is rational basis for that classification and we take the position that there is no difference between the question of whether a classification is rational and whether a test is related to a job.

It is essentially the same question.

We do not need in this case to get into the details of the EEOC guidelines.

That is not an issue, we simply say that there is a requirement under any of these basis of authority that the defendants make a showing at least rationality.

Richard B. Sobol:

Rationality for the use of an employment test would mean that the test has some relationship to the job in some respect and it is our position that their showing has not been made here.

William H. Rehnquist:

Mr. Sobol your prayer in the District Court was basically for the declaratory judgment, was it not?

Richard B. Sobol:

No sir for declaratory judgment and injunction in back pay.

William H. Rehnquist:

Okay, well certainly so far as declaratory judgment and injunction are concerned, that has never been issued by the District Court in your favor anyway since 1972 to Title VII has applied.

Richard B. Sobol:

Yes sir.

William H. Rehnquist:

Any declaratory judgment that you would now get or injunctive relief that you would now get would have to based on Title VII was it not?

Richard B. Sobol:

Well, not necessarily.

There is a problem of simply amending to allege a Title VII action, because you can not be in Court under Title VII unless you exhaust your administrative remedies and get the appropriate action by the administrative tribunal.

So it is not a simple matter of moving in the District Court to amend or at least it is a question whether that is possible and whether this case could ever be turned into a strictly speaking Title VII case, I think is questionable.

William H. Rehnquist:

But what useful purpose or indeed what case or controversy would the District Court be deciding, if it were to now enter a declaratory judgment or an injunction one way or the other in this case based on the law that governed in the District of Columbia before 1972?

Richard B. Sobol:

Well, this law is still governs.

It is a question of another piece of law also governs.

The plaintiffs brought this action before Title VII applied to the District.

It alleged three grounds of substantive right, those grounds are all still fully applicable and they rely on them.

(Inaudible)

Richard B. Sobol:

One of them is the constitutional remedy.

Well the Court of Appeal cited in its opinion the constitutional ground in 1981, in footnote 2 of the Court of Appeals–

Byron R. White:

Do you think it decided on both grounds?

Richard B. Sobol:

Yes sir, I think it made no distinction in the substantive standards Mr. Justice White and I think it decided on the grounds that were before it.

Yes sir.

Byron R. White:

Mr. Sobol, I understand you to say that you think the rational basis test is the appropriate one and that therefore be a rational relationship that between the test and the job. Who has a burden of showing that in this case?

Richard B. Sobol:

The defendants.

Byron R. White:

Why?

Richard B. Sobol:

Because the burden of showing rationale, your question assumes strictly a constitutional standard, I assume.

Byron R. White:

Well, I thought you just said that you did not think this was a Title VII case.

Richard B. Sobol:

It is not a Title VII case but it is based on two statutes prohibiting to discrimination and employment in this circumstance and the constitution.

Byron R. White:

The standard under 1981 is different from the constitutional standard?

Richard B. Sobol:

No sir.

I personally do not but I think that under any of those standard having shown the adverse impact, the burden of defending the practice as in any constitutional cases is on the defendant of making some showing of whatever the applicable standard is rationality, compelling interest, the burden is on the defendant of making not showing.

Yes sir.

Byron R. White:

If it were agreed that was nothing but a straight Equal Protection constitutional issue, I understand you are saying that if the plaintiff proved a statistical adverse impact the burden then shifts to the defendants.

Richard B. Sobol:

Yes sir.

Byron R. White:

Is there any authority for that?

Richard B. Sobol:

Yes sir, there is in the nature of, there is no authority in the employment context in this Court, but in footnote 35 of our brief on page 27, I have cited about 15 cases of the Court of Appeals and the District Courts that have directly faced this very question you are asking and have concluded that the standards are the same and —

Byron R. White:

(Inaudible) Title VII standard are the same?

Richard B. Sobol:

Are the same, yes sir and that this cases appear in footnote 35 I have about 15 different authorities in the Court.

Byron R. White:

On the second Court, is any decision at this Court that support showed you as to the shifting of the burden of proof in an Equal Protection case, merely on the basis of statistical evidence?

Richard B. Sobol:

Certainly not in the employment context, my understanding of Jefferson v. Hackney however was that the Court ruled that there was no necessity to make a showing of a compelling interest.

But that there was an inquiry based on the statistics into rationality and I have always assumed that the burden of establishing rationality for classification falls on the defendant.

William H. Rehnquist:

Well, is not any act presumed constitutional and the Burden of showing it is unconstitutional falls on him, would attack it.

So is it not the proper phrasing of the Equal Protection Test that the plaintiff was challenging the governmental action on Equal Protection clause has to show that there is no rational connection rather than — yes it is a legal really not a factual.

Richard B. Sobol:

That is not my understanding of the case is, I might be wrong on that regard, that is my understanding that the burden of showing rationality once the classification was established is on the defendant.

William H. Rehnquist:

Well, of course there is a classification in every case.

Richard B. Sobol:

Yes sir, but here to wind up this discussion, whatever maybe the correct answer under the constitutional standard for the Court to make a distinction in this case between Title VII standards and the standards applicable here, it would have to rule that direct prohibition against racial discrimination and employment in two Federal Statutes 1981 and that the provision of the DC code that I cited established a different standard of racial discrimination and employment in Title VII and I suggest that there is no authority for that.

The decisions applied in 1981 have made no distinction between its substantive thrust and the substantive of trust to Title VII.

Byron R. White:

We assume that we must face the fact that Court of Appeal did go on a constitutional ground.

Richard B. Sobol:

I think you must face the fact that the Court of Appeals relied on both sources of law and made no distinction between them.

Byron R. White:

And that, is it your impression of the Equal Protection Standard that a showing of unequal racial impact is a violation of Equal Protection Clause?

Richard B. Sobol:

I think, a practice that has uneven racial impact has to be at the very minimum rational.

Although, there are certainly cases in this Court saying that it has to be more than rational but without getting into that because we do not need to get into that.

I think at the very minimum there has to be rationality to support adverse racial impact on the constitution.

Byron R. White:

Is that under Title VII?

Richard B. Sobol:

Well, yes I think so.

I think what the Court —

Byron R. White:

Did this show some rational explanation is enough under Title VII?

Richard B. Sobol:

I think what is rational for a test is that the test is related to the job.

I think —

Byron R. White:

It is different.

Richard B. Sobol:

No, I do not think it is different.

In my opinion what is irrational basis for the use of an employment test is that the employment test assist the employer in choosing employees in some positive way.

Richard B. Sobol:

That is what I think Griggs held, that is what I think the essence of the guidelines are.

John Paul Stevens:

Mr. Sobol, I wonder perhaps we are not phrasing the constitutional issue incorrectly.

You suggested the classification is between those who pass and those who fail.

I wonder if you are not really arguing that if one looks closely behind what has happened, that we really have a racial classification and that is your contention, that there is — the way the test works, it divides the groups on account of race rather than simply on account of pass/fail and if that is the question, then our issue is whether it is a racial classification which in turn would decide what kind of a burden was involved.

I am just wondering if you have —

Richard B. Sobol:

I think it can be looked at in terms of either a racial classification or a non racial classification.

It definitely has racial impact, it may not be a racial classification but whether it is or it is not, rationality must be shown and we do not think, we need more than rationality to prevail.

Byron R. White:

I am just wondering if the question of whether or not if the racial classification turns on whether or not the test has an independent neutral justification namely, the job relatedness.

And the job relatedness issue may determine how we decide the classification question.

Richard B. Sobol:

Well, the opinions of this Court do not indicate as I read them that a — and I am thinking of the California Housing case the name has slipped my mind but do not indicate that a practice having racial impact is a racial classification, the indications as I read them out to the contrary.

Mindful of that, we have not argued and have never argued that there is a racial classification in this case which demands strict scrutiny or a compelling interest.

We are content to rely on the necessity that there be a rational basis for the use of a test and I think the only rational basis for the use of the test is that it does the employer some good and that that needs to be proved and has not been proved here.

Byron R. White:

Well then let me just ask you the one last question and I will be through.

I have asked the others this question, I would like to show you how you address it before you sit down.

On the question of job relatedness, do you contend there is—that is not a measure of a verbal ability or that verbal ability is not an aspect of the job?

Richard B. Sobol:

Verbal ability is an aspect of this and almost any other job in the world.

I do not know whether this is proper test to verbal ability, I rely on the necessity that there be some showing more than just a judge reading the questions and saying this looks okay to me.

I do not think that is how these cases can be decided anymore than Griggs could be decided on that basis.

Byron R. White:

Let assume the greater correlation between verbal ability for a policeman’s job and the jobs involved in Griggs I think would you not agreed of that?

I think the assumption there was there is a total absence correlation between the particular test and the particular jobs at stake.

Richard B. Sobol:

Every Title VII case that I have tried Your Honor, the defendants have brought in experts and have attempted to prove that the jobs are complicated require the filling out of complicated forms required the use of complicated machinery for which there are printed manuals that must be understood.

I have never seen a case in which any defendant has ever said that the jobs in question were not complicated and did not require reading and writing of complex material and it is true here too.

Warren E. Burger:

Mr. Sobol, I suggested to your friend Solicitor General from Boyd and weeks down to most recent, do you suggest that verbal skills are not highly important?

Richard B. Sobol:

Not for one second, what I suggest is that Test 21 has not been shown to be a reliable indicator of whether those verbal skills in the necessary degree are present or not present and what this Court held in Griggs as that cannot be surmised but has to be proved and that is our position here.

That there is a method of proving job relatedness with which we have no argument called construct validation, which involves taking a trait such as verbal ability and doing the appropriate job analysis and the appropriate study in rendering a report and the Civil Service Commission Regulations accept then and the EEOC Regulation accept that but that has not been done here.

Warren E. Burger:

(Inaudible) jury in general agreement with Mr. Sutton’s position that verbal skills are crucial to police function?

Richard B. Sobol:

I think a policeman has to be able to understand written material, speak and make reports to the Court and make applications for Search Warrants.

I think it is a very important part of the job.

I have no question about that.

What we do question is whether there is any indication that beyond the existing and unchallenged requirement in this case of a high school education, that this test measures something which will assist the display of those skills.

Richard B. Sobol:

That is what we see is the question.

We do not dispute for one moment that the requirements to be a policeman are demanding and rigorous and that they should be fulfilled.

We do not for a one moment think that the application of the Griggs test in any context involves a lowering of standards.

That is not with Griggs and Moody were about.

There is no effort by this Court to give out jobs to those who are not qualified for them.

What the Court is held is that where there is substantial adverse impact, we are not going to guess as to whether the standard is valid or valid but then it raises a requirement to prove it that it is valid.

If it is valid, if is measures something important, it can be used and if it is not, it cannot be used.

I think that is the—there is an underlying current in the briefs in this case that there is something about the Griggs test which requires putting incompetence in jobs and I think that is the furthest thing from the truth that can possibly be.

It is simply a demand that some proof be set forth as to whether the standard applied here Test 21 is predictive of the ability to perform those verbal skill or not.

(Inaudible)

Richard B. Sobol:

Well, if there was.

(Inaudible)

Richard B. Sobol:

If there was proof that there was a much better one.

That would raise the question of whether it was a less discriminatory alternative as called for this Court’s question in my argument.

(Inaudible).

Richard B. Sobol:

That there would be a less — that is there true but I do think it is required under 1981 which I view and I think the Courts have viewed as comparable to Title VII, that there be no less discriminatory alternative.

But in this case there is — the defendants made no effort to base their case on proof of verbal ability being required for policeman’s job.

The contention —

(Inaudible).

Richard B. Sobol:

Yes, an expert who is confident to do a validation study of one of the three types that have been recognized by the authorities in the field.

(Inaudible).

Richard B. Sobol:

Who comes to Court and —

(Inaudible)

Richard B. Sobol:

On what issue?

On whether this test predicts the right measure of verbal ability?

No, I would not accept him and the proof of that is that they are using a cut off score of 40 which is completely arbitrary.

There is no proof that it, rather than 50 or 30 or 35 or 60 was the appropriate cut off.

It was chosen at random.

William H. Rehnquist:

Well, whether it measures the skill but that goes to the question of how much of the skill you want?

Richard B. Sobol:

How much of the skill is being measured and if the test.

William H. Rehnquist:

Although those are two different inquiries.

Richard B. Sobol:

Yes it is two different inquiries but it goes to whether of the test is being validly used.

If the test being used were the law boards which also measures verbal ability and the same passing requirement what was imposed, would say “yes, it is measuring verbal ability,” but much to much verbal ability and the question is in view of the adverse racial impact is that is is it justified to have this additional unnecessary requirement.

The point here is that verbal ability is required but we do not know how much is required and where Test 21 indicates enough.

Perhaps answering a quarter of the questions on Test 21 would indicate sufficient ability.

William H. Rehnquist:

Well, how does that fit your rationality analysis?

Assuming that you concede that verbal skills are necessary to perform a policeman’s job and assuming it is established to your satisfaction that this test measures verbal skills to some extent along the lines of Justice White’s question.

What more in your view do you need to have to establish rationality from an Equal Protection analysis?

Richard B. Sobol:

I think what more you need is the showing that the way the test is being used with the cut off is having some measurable impact on the skills needed by a policeman.

Let me answer your question further.

Warren E. Burger:

No, do you mean the test — evaluate the test by who passes it and who fails, is that it?

Richard B. Sobol:

I think the first question is whether it has racial impact or we would not be here but going beyond that, it seems to me the question is you have a high school requirement to be on the police force.

As far as any of us know that is adequate verbal ability to fill out these reports and to understand these cases.

The question is whether Test 21 adds anything to that.

That is valid.

William H. Rehnquist:

Test 21 obviously adds something since many high school diplomat failed it.

Richard B. Sobol:

That is true, but we do not know whether it is screening out people that cannot perform or not.

We have no evidence of whether the people it is screening out could or could not perform adequately well as policeman.

Yes sir, I am sorry.

Lewis F. Powell, Jr.:

(Inaudible) I wanted to ask anyway whether that the record in this case shows any correlation between the performance on the test and the prior performance in high school, are high school grades available for example?

Richard B. Sobol:

No sir, they are not in the record.

Lewis F. Powell, Jr.:

But what about correlation between performance on the test and attendance at particular high schools.

Richard B. Sobol:

There is nothing on that in the record.

Lewis F. Powell, Jr.:

And may there well be a difference between the training one received say at Central high school in Washington and that one might receive in Wise county of Virginia up in the mountains?

Richard B. Sobol:

Yes, that is true and we do not question that the department has a right to give a test.

If it can make a showing that the test is improving its selection processes but what is failing here is under any of the alternative methods of making that showing that have been recognized any proof of that, and I suggest that the questions that are being asked are essentially raising the question of whether we just simply cannot read the test.

Whether the Court cannot simply read the test and say yes it measures verbal ability.

But if they administered the cross word puzzle on the Washington Post each morning to the applicants for work on the police force.

That would measure verbal ability unquestionably, and yet would that be a valid test and I think the answer has to be the same.

Its not simply looking at the test and saying this is verbal, this is not verbal.

Richard B. Sobol:

The important part of Griggs and Moody and oldest development of the law in this area is some proof not surmised that, that is true, that you have a proper measure of validation, you have a proper measure that this device is assisting the employer in getting better policeman or better employees what ever the case maybe.

Byron R. White:

What should we do if we decided that the Court of Appeals was wrong on its constitutional ground?

Richard B. Sobol:

Well, I think the Court is faced with the decision that whether the Court of Appeals was wrong on all of the ground on which is decision —

Byron R. White:

That is wrong on 1981.

Richard B. Sobol:

And what and the lesser stand its?

Byron R. White:

And the Constitutional ground because Title VII you think the Court of Appeals considered Title VII?

Richard B. Sobol:

Yes, it did consider Title VII.

It is said as much in its opinion, the Court of Appeals cited some cases saying that where there is a change in Federal Statutory law during the course of Litigation.

That change should be applied depending litigation and that is cited in the Court’s opinion.

Byron R. White:

On that basis, why would it ever reach the constitutional ground?

Why would it not deal with the statutory ground and the Court’s believed?

Richard B. Sobol:

I do not believe the Court’s opinion can be read as specifying which of these grounds it is relying on.

Potter Stewart:

You got to refer —

Richard B. Sobol:

Yes.

At the end of footnote 2.

Richard B. Sobol:

Yes, it is the end of footnote II on page 2 (a) and I personally have some problem.

William J. Brennan, Jr.:

That was Congress’ Fifth Amendment Title VII, which charges a racial discrimination between federal employment and the appellants questionably are entitled to the (Inaudible)?

Richard B. Sobol:

Yes sir and I think that in view of that, what Judge Robinson —

(Inaudible)

Richard B. Sobol:

Yes sir, what Judge Robinson was doing was saying the Title VII is applicable as well of the other basis of authority.

Byron R. White:

It is only that he also decided on the constitutional ground.

Richard B. Sobol:

In his opinion he recited the basis on which this ground — I said that what I meant is that in his opinion he recited that the complaint was based on the constitutional ground on 1981 and then he made this additional statement which Justice Brennan just read holding that the Title VII standards were applicable to this case.

Byron R. White:

Do you think that is just a purely Title VII case as it comes to us in the Court of Appeals without any constitutional overtone?

Richard B. Sobol:

Well, my trouble honestly with that proposition is the procedural requirements to get in the Court under Title VII, and this case has not met them.

So it raises the question, — in order to make determination as to whether this statement of Judge Robinsons is correct, it requires of this Court to make a determination as to given the circumstances of pending litigation and in fact in this case they were prior administrative proceedings whether the Court would dispense in this context with the exhaustion requirements of Title VII and consider this a Title VII case.

As I think it surely would be if they were no exhaustion requirements under Title VII.

I think then the authority cited by Judge Robinson would squarely on point.

The only wrinkle is that there was no charge, there was no final agency action and there was no resort to Court filing that.

Potter Stewart:

With respect to this, to the Amendment Title VII, applied to Federal Employees that there maybe no right to a trial de novo in the District Court, that is the matter that we are going to consider later this week.

Richard B. Sobol:

Yes sir.

Potter Stewart:

So that the scope of the trial might –.

Richard B. Sobol:

Yes, I believe that issues concern Federal employees and not District of Columbia employees and that issue would not be involved.

Potter Stewart:

Mr. Sobol, is there a difference between — let me put it this way, the DC Code, the third basis for relief.

Richard B. Sobol:

Yes.

Potter Stewart:

Which is not mentioned by Judge Robinson, is that akin to 1981 or akin to Title VII in your judgment? If there is a different between the two?

Richard B. Sobol:

Oh, you have to tell what you perceive to be the difference because I cannot see one.

It is a prohibition against discrimination in District of Columbia Government employment.

That is what the statute says.

Neither 1981 nor Title VII is limited government employment but the standard no racial discrimination and employment seems to me that be identical to 1981 and Title VII and Judge Robinson, it is seems to me both made this comment about Title VII being applicable and treated the standards as the same as has every Court, every Lower Court that has reached this question.

Potter Stewart:

Some of the justices were assuming, there might be a difference from the constitutional standard and the Title VII standard, I was just to ask if you assumed arguendo that there was such a difference, in which category would you put the DC Code?

Richard B. Sobol:

In the statutory standard because it is the statute which specifically addresses this problem as does Title VII and I would be hard put to think of any basis for distinguishing the DC Code provision and 1981 provision.

Potter Stewart:

It would be whether we find the difference or not, we still have to face a Title VII type case?

Richard B. Sobol:

Yes.

Potter Stewart:

At the DC Code.

Richard B. Sobol:

Yes exactly.

Now, I would like to briefly point out some other issues that have been made on the adverse impact very briefly.

We think this is one of the clearest showings of adverse impact of any case that has been litigated.

There is twice the pass rate of whites over blacks on the test and more important than that because there have been indications that this were not true.

That 2:1 ratio is exactly reflected in the higher rate.

So 87% of the whites and 43% of the blacks pass and 33% of the whites and 17% of the blacks are hired so there is no wash out phenomenon here.

The impact of the test is fully reflected in the hiring decision.

Now—

Potter Stewart:

Your hiring figures however go to those who apply, not to those who pass.

Richard B. Sobol:

Exactly, because the issue is the legality of the test.

Potter Stewart:

When you narrow the pool to those who pass.

Richard B. Sobol:

I can hardly say, it would be just the reverse, there is about 1½ percentage point different in the rate of hires.

The black rate of hire is 39.8%, the white rate of hire is 37.9%.

It is extremely closed and fully explained by the National Recruitment effort where in 1970 and 1971 that department went all over the country.

Got applications from an 88% white group and naturally most of those who applied did not come to work in the District because that was far from their home.

But although there is very slight difference, I think it is essentially equivalent and what it shows is that the practice, the discriminatory practice is what is being challenged and that is Test 21.

Potter Stewart:

Mr. Sobol what is the chronology of the processing and what was at the time of this trial, the chronology from the time of application to the time of becoming a probationary policeman?

Richard B. Sobol:

Alright.

Potter Stewart:

On the application for example, does the statistics here and include applicants who were not in fact high school graduates —

Richard B. Sobol:

An application decides.

Potter Stewart:

On the form, did you graduate from high school?

No.

Richard B. Sobol:

My understanding Mr. Justice Stewart if an applicant is asked if he graduated in high school and if he says “no,” he is not given an application.

Potter Stewart:

Not even an application.

Richard B. Sobol:

Not an application.

That these figures on the record are for high school graduates who completed an application satisfying the high school education requirement.

Potter Stewart:

And presumably the other requirements, I.e. what is your age, 52.

Richard B. Sobol:

Would not be accepted, would not be administered the test.

Potter Stewart:

In the application?

Richard B. Sobol:

I do not think so.

Potter Stewart:

Was your age 16 would that be an application?

Richard B. Sobol:

I do not believe so.

Potter Stewart:

Well but do you know because this seems to be quite important.

Richard B. Sobol:

It is not in the record, I know from extra record material that the answers I am giving you are correct. But there is nothing in the record specifically on the question you are asking.

Potter Stewart:

And so these applications included in the statistics in the record are all applications from people who are prima facia qualified application, high school graduate between 20 and 29?

Richard B. Sobol:

Yes sir that is my understanding.

Potter Stewart:

Who have, whatever the other requirements are —

Richard B. Sobol:

Not the mental examination and not the physical examination.

My understanding of chronology is that comes after passing the test.

Only Test passers are given a physical examination and a mental psychiatric examination.

Potter Stewart:

I would return to my racial question, I am sorry, I let you answer.

What is the chronology in application?

Richard B. Sobol:

An applicant walks in, indicates whether or not he meets this minimal age and education requirements and it is on the spot that day administered a test, which is scored then.

Potter Stewart:

He is not even an application form unless his oral response to the inquiry indicates that he is prima facia eligible that is it?

Richard B. Sobol:

Yes sir.

That is my understanding.

Potter Stewart:

So that he fills out the application giving his name, address, age, high school graduate, blah, blah, then what happens?

Richard B. Sobol:

He has administered the test, right then and there.

Potter Stewart:

Down there.

Richard B. Sobol:

Yes sir, it is scored, right then and there.

Potter Stewart:

Right at the counter?

Richard B. Sobol:

By the examiner, by the police officer in charge of this function and it is scored right then and there.

Potter Stewart:

He is individually given the test?

Richard B. Sobol:

Everything I am saying is not in the record but that is my understanding.

Potter Stewart:

No I think it is in —

Richard B. Sobol:

Yes.

I do not question that it is important which is not in the record.

Potter Stewart:

Then the statistics show if he was a white applicant, how many are white applicants, how many of them passed the test?

Richard B. Sobol:

87.

Potter Stewart:

(Inaudible)

Richard B. Sobol:

43.

Potter Stewart:

All of the 87 and all of the 43 would then go to the training program.

Richard B. Sobol:

No.

They then have a character investigation and a psychiatric investigation.

Potter Stewart:

Those are the tests?

Richard B. Sobol:

Yes.

Potter Stewart:

Physical?

Richard B. Sobol:

Are physical.

Potter Stewart:

Both tests and now what are the statistics about that?

That now have 87 white applicants and 43 is it?

Richard B. Sobol:

43, yes.

Potter Stewart:

Negro applicants?

Then what happens to these 87 and 43 between the time of passing the test and taking the training program.

Richard B. Sobol:

They have these three requirements to meet, the physical character and mental.

Potter Stewart:

And mental?

Richard B. Sobol:

If they pass, at least at time this record was compiled they were offered a job.

Potter Stewart:

How many of the 87, how many would be left to the 87?

Richard B. Sobol:

Now, at point the job was offered, Mr. Justice Stewart, there are no figures in the record.

What we have is acceptances of offers to which to which those who were hired and went to training school and the figures I gave Mr. Justice Blackmun is 39% of the Blacks and 37% of the whites, and rounding it off were hired.

Went through the — I am talking about those who passed now, those who passed.

Potter Stewart:

Yes, of those passers.

Richard B. Sobol:

Yes.

Potter Stewart:

So that is means 37% is white.

Richard B. Sobol:

It is approximately the same.

Potter Stewart:

38 or 39% of the Negros presumably then passed the physical and the character and the mental.

What is the mental, is that something additional to these test?

Richard B. Sobol:

See a Psychiatrist and —

Potter Stewart:

Well it is psychological?

Richard B. Sobol:

Yes.

Potter Stewart:

Not mental, not intellectual?

Richard B. Sobol:

No, it is psychological.

Potter Stewart:

And then 37% would be something like 35 people out of the 87 and some 18 people out of the 43.

Richard B. Sobol:

Right and the exact figures out of every hundred whites that applied 33 were hired out of every hundred blacks that were applied, 17 were hired.

Potter Stewart:

Thank you very much.

Richard B. Sobol:

Now I would like to briefly.

Harry A. Blackmun:

Is your next case, the Bar examination cases?

Richard B. Sobol:

Excuse me.

Harry A. Blackmun:

Is your next case to Bar examination?

Richard B. Sobol:

I do not have that case, I know that case is coming.

Potter Stewart:

Whatever to say that here certainly we will bear on that one.

Richard B. Sobol:

It depends how the opinion in this case is written.

If the opinion is written that there are statutory bases for the claim here.

Therefore, there is occasion to reach the constitutional question then it will not bear on that case and it would seem to me that is the most appropriate basis of deciding this case, given the Court’s normal rule about Constitutional decisions, there are plainly statutory basis for the relief here, with or without the Title VII component and I would think that would be the basis on which the case was decided in this Court.

Potter Stewart:

Presumably, it would not apply to Bar Association case.

Richard B. Sobol:

No.

Certainly not.

Potter Stewart:

It did not involve employment.

Richard B. Sobol:

Right, right.

Potter Stewart:

Mr. Sobol, one of the problems, here maybe that the passing grade is incorrectly set.

Does the record tell us whether the passing grade is determined by the Civil Service Commission or by the Police Department and whether it is the same or different from the passing grade used when the test is given to other types of jobs.

Richard B. Sobol:

No, the closest thing on the record, on the questions you are asking is that it has been this way for 25 years and that it is supposed to indicate a level of proficiency equal to a high school education, or high school graduation.

That is all that is in the record answer to your question.

I would like to very briefly get to a point that really has not been discussed and that is the issue of whether there has been a validation study here which has indicated that Test 21 is validated against success in training.

The Court of Appeals did not decide the question of whether training is an appropriate criterion for the validation of a test, and it is very clear from its opinion, it did not.

I stress that because there seems to be an invitation tendered by the amici, if no else for the Court to decide broad questions of whether test can be validated against training.

The Court found that the Court of Appeals found and I am referring the footnote 59 on page 16 (a) and 17 (a), that there was no showing that Test 21 predicted success in training and we think that holding is correct and that the abstract question of whether training is a proper criterion should not be reached and very briefly, the reason why the Court of Appeals held, I think correctly that there was no such showing, is that there had been, there is no proof that — let me put it differently.

Success in training is a successful completion of recruit school.

That is the only measure of success in training which has ever been used.

Every recruit passed recruit school.

Now the department essentially asked the Court to assume that persons who did not achieve a score of 40 on Test 21 could not pass recruit school.

But if the cut off was score was 45 or 50, the proof in this case would be identical and the proof I referred to was there be correlation between a level of passing score in Test 21 and the level of passing score in recruit school and the same argument could then be made that anyone who did not get a 50 could not pass recruit school and of course we have a record here where thousands upon thousands got between 40 and 50 and went on to recruit school and succeeded.

There is no different between the hypothetical, I put and the facts here, there is absolutely no basis for assuming that a person who scored 35 on this test could not succeed in recruit school and succeed as a policeman and the defendants expert Frutransky, the one recommendation he made was that the cut off score was too high, that he demanded more than what was necessary to predict success in recruit school.

He recommended it to be lower but of course that the point he chose, he had no basis for either, and the authorities who have indicated in our brief do indicate that there ought to be a study of this question of where on the scale between 0 and 80 on Test 21, is there some indication that this is the proper measure and not an excessive measure of the verbal ability needed to perform the task of a policeman.

We ask that the judgment of the Court of Appeals be affirmed.

We think there is plenty of room on remand pursuing to the Court of Appeals judgment to explore any issues of later developments in this case.

One thing which is crucial later development is that the defense is moot and that, they do not use these recruit school tests that the affidavits put in by the defendants make perfectly clear, in 1972 the whole system of written test in recruit school was abandoned and Chief Justice — I am really confused.

Chief Murray said in his affidavit that because there was a change in recruit school, he had no basis for making any judgment as to whether Test 21 was valid as against the current training procedures.

Now that is a very important question in the case, since the whole defense is based on correlation with an exam that was abandoned four years ago and it is not now used.

But my point —

William H. Rehnquist:

Well talking about the possibility of a declaratory judgment or an injunctive relief?

Richard B. Sobol:

I think that the Court of Appeals judgment said it is not clear on this record whether there should be an injunction or a declaration because of the circumstances that are now current were not explored.

The Court of Appeals said that as of 1971, based on the evidence that was in existence then, in the training program in existence then, Test 21 used was unlawful.

Judge Robinson remanded the case to the District Court to explore what other circumstances bear on the propriety of the showing an injunction or not issuing an injunction.

My point is that in affirmance of the Court of the Appeals decision is not the end of the matter.

It is simply an end of the Frutransky study and an end of the issue of whether as off 1971, the department had shown the test was valid.

Anything later that comes in is open to exploration on remand pursuant to the order of the Court of Appeals.

Warren E. Burger:

If I would verify just one thing that we have been, I have touched on, Mr. Justice White touched on.

The Griggs case announced in other cases following — including Albermarle Paper are consistent with that, that the test must be job related which obviously means related to the job to be performed.

Richard B. Sobol:

Yes sir.

Warren E. Burger:

Now is it your view that United States District Judge who was dealing with these matters constantly, looking at a test that measures verbal skills must have the expert testimony of the clinical Psychologist or an Educational Psychologist in order to make a judgment about whether that test is related to the job, not whether it is the best test or the perfect test but whether is it related to the job.

Richard B. Sobol:

Yes.

That is my view, that is the defendants view, SGs view and the view of all amici in the case.

This is very important question as far as testing is concerned that judgments not be made on the face of the test.

That there be some indication beyond the appearance of the matter that the test is doing the job it is intended to do particularly in the face of enormous adverse racial impact.

The question is whether this impact can be justified and it has to be justified in my opinion by more that just examination of the face of the test.

Thank you.

Warren E. Burger:

Very well Mr. Sobol.

Mr. Sutton.

David P. Sutton:

A few brief points Your Honor, in an answer to the most recent question.

I respectfully submit that counsel himself expressed a contrary view in an article written by him in Harvard law review.

Some test have an obvious relevance to business needs and can clearly be justified for reasonable use as a criterion for employment decision.

A typist must know how to type and a proof reader must reasonably proficient at proof reading and to this it might be added in the language of Judge Gazelle, the ability to swing a night stick no longer measures a policeman exacting role.

William H. Rehnquist:

Well, if counsel found as an advocate by everything he may have said as an author, I would hope not.

David P. Sutton:

No Your Honor it is not, but it should be the —

Warren E. Burger:

You are simply saying he was right at the first time.

David P. Sutton:

He was right the first time and we should not discount common sense in the handling of cases.

Now another point that is very crucial.

John Paul Stevens:

Certainly it has a different point.

This is not like a test, it says, “Sure you got to be able to read but you do not necessary have to able to reach Shakespeare.”

David P. Sutton:

Right!

John Paul Stevens:

And so we tell by looking at this test whether or not it measures the ability to Shakespeare, the ability to read search warrants.

David P. Sutton:

Your Honor all I can say to you there is that the Federal Government putting an affidavit of a psychologist which counsel did not dispute, the affidavit of Diane Wilson, which equates the verbal ability with Test 21, with that require to get to recruit school, and that same psychologist analyze study materials.

But the most important point I would make and that is in response to your question Mr. Justice Stevens and Mr. Justice Powell’s question about the correlation between the test and the high school education requirement.

Counsel did not accurately answer that question.

Futransky himself points out, and again this is an undisputed fact on the summary judgment record, at Page 100 of the record that by setting a standard of the 35 right and additional 15% of applicants would be eligible, this standard would still represent the reading level of at least the 11th grade.

However, it would by fairness and by the same logic represent verbal ability below the high school education level, and it would run counterproductive to the high school education requirement, the sufficiently of which counsel concedes, but let us not stop there.

David P. Sutton:

We live in a time when authoritative study throughout the country is saying we should have more than the high school education.

And nonetheless counsel with lower the cutting score below 40 have the department cut the ocean debts to see what the most possible workable cut off score is.

Thurgood Marshall:

By high school level, what do you mean nationwide?

David P. Sutton:

High School level Your Honor?

Thurgood Marshall:

Yes sir.

David P. Sutton:

I think that we can be concerned with —

Thurgood Marshall:

In this record what does it mean, because it poured all around?

David P. Sutton:

It means the proper high school education requirement.

Thurgood Marshall:

Involving that area?

David P. Sutton:

In general, we put —

Thurgood Marshall:

Suppose the high schools in this area are very low, would anything be done about that?

David P. Sutton:

Your Honor, I think that we have to use the term high school education in a general sense that would work about the same way to the President’s Crime Commission did.

When the President’s Crime Commission use the term or expression high school education it meant a proper high school education with its attendant verbal ability and —

Potter Stewart:

The problem is we live in an age when if one can read, if one can believe what he cures and reads that to many high school graduate do not have the equivalent of a high school education.

Thurgood Marshall:

Their reading ability is on fourth grade level and you tell me right concluded in this group.

David P. Sutton:

This maybe so Your Honor but the question is how does this effect the right of the community to a captain police force.

Warren E. Burger:

This is why test 21 is added to the high school requirement to see you whether they are part of the high school crop who cannot read.

David P. Sutton:

Right and it has a cutting score of — as a factual matter of 40 or 80, A 50% of grade, it is not really asking too much, and in spite of this Mr. Justice Marshall the black component of the department has sparrow and even though this cutting score has remained the same and the passing rate is remained the same.

Thurgood Marshall:

It was in 1886.

I do not get anything out of the how it has grown, I want to know is it constitutional now?

David P. Sutton:

Yes Your Honor.

One of the points —

Thurgood Marshall:

From myself, it is all over.

David P. Sutton:

I made a response to your question what more do we have to decide as waving a flag and saying we are model for recruitment.

We have cold print, we have statistics which shows that between 1900 and 65, the effect of the Civil Rights Act and the present.

The departments black component has increased from 17% to 41%, and we do not think this can be ignored.

Now the other point I would make is that the federal respondents tried to downplay this verbal ability but they themselves put in the record all kinds of affidavit saying that verbal ability is a critical factor.

(Inaudible)

David P. Sutton:

No Your Honor it has not and in the response to counsel’s assertion that we have an intervening circumstance to move the case, we submit that counsel wants to bring a new action, we can prove that verbal ability is still a critical factor under the department’s current training program and it gives the same test.

(Inaudible)

David P. Sutton:

It is sure is.

Potter Stewart:

The training program is greatly changed.

David P. Sutton:

The training is changed, but verbal ability is still a factor.

The only final point I would make, you may recall it and in response the questions posed by Mr. Justice White, we discussed this factor of a quota system.

Well the courts do not impose quota systems; they do impose goals to redress previous racial imbalance of Carter versus Gallagher was the case in point and this Massachusetts case is the case of point.

They said to atone the sense of past discrimination hire so many blacks until you bring your black component of your department up to a certain level.

This is to be distinguished from quotas, and this is when upheld notwithstanding Title VII.

Now, the question was also asked, what are we going to do here if we remand the case?

Subject to Metropolitan Police Department to a procedure like that.

We have already done it.

We hire one black policeman’s to every one white policeman, 52% of all officers out of the most recent statistics which we put in our reply brief are black.

How then could this case be remanded for us to adhere to a goal in order to redress a past racial imbalance in order to atone for past sense of racial discrimination.

The answer is there are no such sense and to this case, this test produces no adverse impact.

Harry A. Blackmun:

What kind of an injunction did the Court of Appeals anticipate?

David P. Sutton:

It did not say Your Honor.

Harry A. Blackmun:

Well.

David P. Sutton:

It went to leave out the Judge Gisele.

Harry A. Blackmun:

Right, I take it and anticipated some kind of a remedy other than just saying put giving Test 21?

David P. Sutton:

I would assume so, and another point about this business that well that is all been changed by new recruit program is that back pay has been sought here.

Back pay has been allowed by this Court in Albermarle and in a case involving the Federal Government, Chambers versus United States.

In fact the Court of Claims held there could be back pay.

Of course Chambers involved intentional discrimination; this case was not.

I respectfully submit the case and we ask Your Honors to permit the District Court summary judgment ruling to remain undisturbed.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.