531 F.

2d 5

11 Fair Empl.Prac.Cas. 1253,

10 Empl. Prac. Dec. P 10,547
Edward L. KIRKLAND, etc., Plaintiffs-Appellees,
v.
The NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES,
etc., Defendants-Appellants.
Nos. 445, 499, 74-2116 and 74-2258.

United States Court of Appeals,

Second Circuit.
Dec. 10, 1975.

Circuit Judge FEINBERG took no part in consideration of the question

whether to grant rehearing en banc.
MANSFIELD, Circuit Judge, dissenting with whom Chief Judge
KAUFMAN and Circuit Judge OAKES concur:
I dissent from the denial of an en banc hearing in this appeal because the
decision potentially places us in conflict with previous decisions in this
and other circuits and creates uncertainty regarding this circuit's law on a
question of exceptional importance that has been and will be frequently
encountered, i.e., whether, and under what circumstances, relief in the
nature of a racial goal or quota may be imposed to remedy injury caused
to a minority group by use of racially discriminatory methods to hire or
promote persons from a pool of potentially eligible candidates. In my view
this question should be resolved now for the guidance of district court
judges, members of the bar and litigants in the Second Circuit, rather than
leaving them in a state of confusion regarding the issue.
Until the decision in this case, while adopting a cautionary stance and
acting 'somewhat gingerly,' we nonetheless repeatedly have held that
where racially discriminatory methods are used to hire or promote persons
in violation of the civil rights of others, the district court should have the
discretionary power to remedy the effects of the unlawful conduct and

compensate the injured class by requiring the hiring or appointment of a

higher percentage of minority applicants. United States v. Wood, Wire &
Metal Lathers, Local 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S.
939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); Bridgeport Guardians, Inc. v.
Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973);
Vulcan Society of the New York City Fire Dept. v. Civil Service
Commission, 490 F.2d 387 (2d Cir. 1973); Rios v. Enterprise Association
Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974); Patterson v.
Newspaper & Mail Deliverers Union, 514 F.2d 767 (2d Cir. 1975).
The authority of a court of equity to issue such relief was recognized by
the Supreme Court in Louisiana v. United States, 380 U.S. 145, 85 S.Ct.
817, 13 L.Ed.2d 709 (1965), where Justice Black, speaking for a
unanimous Court, stated:

1 bear in mind that the court has not merely the power but the duty to render a
'We
decree which will so far as possible eliminate the discriminatory effects of the past
as well as bar like discrimination in the future.' 380 U.S. at 154, 85 S.Ct. at 822.
2

This was followed by the Court's recognition in Swann v. CharlotteMecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554
(1971), that mathematical ratios might serve as a 'useful starting point' in
shaping a remedy for past constitutional violations. 402 U.S. at 25, 91 S.Ct.
1267. Following this lead we, in United States v. Wood, Wire & Metal Lathers,
Local 46, 471 F.2d 408 (2d Cir. 1973), approved an order directing a local
union to take affirmative action to remedy the effects of past discriminatory
practices in the issuance of work permits by issuing 100 permits immediately to
minority applicants, pointing out that

3
'(W)hile
quotas merely to attain racial balance are forbidden, quotas to correct past
discriminatory practices are not. See Carter v. Gallagher, 452 F.2d 315, 329 (8th Cir.
1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972);
Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d
159, 173 n. 47 (3rd Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95
(1971); United States v. Ironworkers, Local 86, 443 F.2d 544, 553 (9th Cir.), cert.
denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); United States v.
International Brotherhood of Electrical Workers, No. 38, 428 F.2d 144, 149 (6th
Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); Local 53 of
International Association of Heat & Frost I. & A. Workers v. Vogler, 407 F.2d 1047,
1052 (5th Cir. 1969); United States v. Central Motor Lines, Inc., 325 F.Supp. 478
(W.D.N.C.1970).' 471 F.2d at 413.

There followed our decision in Bridgeport Guardians, Inc. v. Bridgeport Civil

Service Commission, 482 F.2d 1333 (2d Cir. 1973), wherein we upheld the use
of a hiring quota to remedy the discriminatory effect of non-job-related
examinations administered pursuant to the Civil Service provisions of the
Bridgeport City Charter for the position of policeman, stating:

5 commence with the basic tenet that the district court, sitting as a court of equity,
'We
has wide power and discretion to fashion its decree not only to prohibit present
discrimination but to eradicate the effects of past discriminatory practices. Louisiana
v. United States, 380 U.S. 145, 154, 85 S.Ct. 517, 13 L.Ed.2d 709 (1965); United
States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 413 (2d Cir.), cert.
denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). Although most of the
cases dealing with the issue of past discriminatory practices arose under Title VII of
the Civil Rights Act of 1964, Section 1983 cases have also granted relief by
sanctioning quotas aimed at curing past discrimination. See, e.g., Pennsylvania v.
O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); Castro v. Beecher, supra, (1 Cir.)
459 F.2d 725; Carter v. Gallagher, 452 F.2d 315, 327--332 (8th Cir. 1971) (en banc),
cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972).' 482 F.2d at 1340.
6

Again, in Vulcan Society of the New York City Fire Dept. v. Civil Service
Commission, 490 F.2d 387 (2d Cir. 1973), we approve the use of an interim
quota to redress the discriminatory effect of non-job-related Civil Service
examinations for the position of fireman and ordered the City to appoint one
minority candidate for each three non-minority candidates appointed from a list
of eligibles, stating:

7 arriving at a ratio midway between what would have been appropriate on the
'In
basis of correcting the inequities of Exam 0159 alone and the plaintiffs' demand for
much more extensive relief, the judge took appropriate account both of the
resentment of non-minority individuals against quotas of any sort and of the need of
getting started to redress past wrongs. See Louisiana v. United States, 380 U.S. 145,
154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965); United States v. Wood, Wire & Metal
Lathers, Local 46, 471 F.2d 408, 413 (2 Cir.), cert. denied, 412 U.S. 939, 93 S.Ct.
2773, 37 L.Ed.2d 398 (1973). As the Supreme Court has stated, 'The framing of
decrees should take place in the District rather than in Appellate Courts.'
International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed.
20 (1947); Chance, (v. Board of Examiners) supra, 458 F.2d (1167) at 1178.' 490
F.2d at 399.
8

Finally, in Patterson v. Newspaper & Mail Deliverers Union, 514 F.2d 767 (2d
Cir. 1975), we approved an affirmative-action promotion program which would
achieve a quota by advancing minority News deliverers faster than non-

minority workers in order to compensate the minority group for injury suffered
under the previous discriminatory promotion program. The effect was to
temporarily restrain the advancement of White workers who would have been
promoted under a program of strict seniority.
9

The United States Supreme Court has not yet had the opportunity to offer clear
guidance on the appropriateness or parameters of remedies or programs
granting a preference to groups that previously were subjected to discriminatory
treatment. See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d
164 (1974). But seven other circuits, recognizing that '(t)he framing of decrees
should take place in the District rather than Appellate Courts,' International Salt
Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947),
and that the district judge, who is better acquainted with the background and
details of the case, should have broad discretionary authority to fashion
appropriate relief, have upheld the authority of the district court, in the exercise
of its broad powers as a court of equity, to establish goals or quotas for the
purpose of remedying harm caused by past discriminatory conduct. See, e.g.,
Boston NAACP v. Beecher, 504 F.2d 1017, 1026--27 (1st Cir. 1974)
(upholding hiring by ratios until percentage of minority fire fighters equals their
percentage in population); Castro v. Beecher, 459 F.2d 725, 737 (1st Cir. 1972)
(Blacks and Spanish-surnamed police candidates who failed old, impermissible
test but pass new validated one should be placed in priority pool to be selected
by ratio of 1:1, 1:2, or 1:3 with respect to others as determined by district court);
Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc) (upholding by
equally-divided vote power of district court to order Black-White hiring by
ratio corresponding to Black overall population and number of Black
applicants); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) (upholding hiring
of Black-White state troopers in 1:1 ratio until Blacks reach 25% of force);
Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en banc), cert. denied, 419
U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974) (ordering district court to
impose further affirmative relief to remedy discrimination in state police
employment practices; may include 1:1 or 1:2 Black-White hiring, the freezing
of White hiring, or 'any other form of affirmative hiring relief until the Patrol is
effectively integrated'); United States v. Local Union No. 212, 472 F.2d 634
(6th Cir. 1973) (upholding district court order mandating 11% Black
membership in apprentice programs); United States v. International Bhd. of
Elec. Wkrs., 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245,
27 L.Ed.2d 248 (1970) (remanding to district court for consideration of
appropriate affirmative relief); United States v. United Bhd. of Carpenters, 457
F.2d 210 (7th Cir.), cert. denied, 409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94
(1972) (remanding to district court for fashioning appropriate affirmative
relief); United States v. N.L. Industries, 479 F.2d 354, 377 (8th Cir. 1973)

(court can order Black-White promotion in 1:1 ratio until 15% of foremen are
Black); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir.) (en banc), cert.
denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) (district court may
order the hiring of firemen in 1:2 Black-White ratio until 20 Blacks hired);
United States v. Ironworkers Local 86, 443 F.2d 544, 553 (9th Cir.), cert.
denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) (district court can
order immediate job referrals to previous discriminatees and require union
training program to select sufficient Black applicants to overcome past
discrimination). But cf. Harper v. Kloster, 486 F.2d 1134, 1136--37 (4th Cir.
1973) (upholding district court's denial of quota relief).
10

Turning to the present case, the district court, in order to compensate minority
correctional officers for the harm caused the minority group by the
discriminatory state civil service promotional system, ordered the defendants to
promote minority correctional officers to the rank of sergeant on the basis of
one minority for each three non-minority appointments until the combined
percentage of minority sergeants equalled that of the minority correctional
officers. Once this goal was satisfied, defendants, of course, would be entirely
free to select sergeants solely through the application of a non-discriminatory,
validated examination. In adopting this relief Judge Lasker exercised the
authority granted by our above-cited decisions. Yet despite the reasonableness
of Judge Lasker's decree, this court's decision denies quota relief once a
permissible test is created, seeking to distinguish our earlier decisions on the
grounds (1) that there was insufficient proof of a 'clear-cut pattern of longcontinued and egregious racial discrimination' and (2) that there was substantial
evidence that a quota would result in 'identifiable reverse discrimination,'
thereby violating the Constitutions of New York and the United States as well
as New York's Civil Service Law. With due respect, the first ground is not
supported by the record before us and the second does not distinguish this case
from all the previous instances where we have endorsed the use of hiring goals.

11

With respect to the nature and extent of past discrimination it is undisputed that
the 1972 examination for promotion from correctional officer to sergeant was
unconstitutionally discriminatory. If, by 'egregious racial discrimination' Judge
Van Graafeiland means intentional or deliberate conduct, the law is settled that
the existence of deliberate and intentional racial discrimination is not a
condition precedent to the granting of quota relief. See Bridgeport Guardians,
Inc., supra, where such relief was granted despite the fact that there was 'no
showing that the test (Civil Service test for appointment as policeman) was
deliberately or intentionally discriminatory,' 482 F.2d at 1336, and Vulcan
Society of the New York City Fire Dept., supra, where in granting quota relief,
the court made clear that proof of non-job-relatedness of the examinations was

sufficient to satisfy the requirement of invidiousness, thereby placing the

burden of justification upon the City's shoulders. 490 F.2d at 391 n. 4. Although
the defendants here did not maintain passfail data according to race or color for
the examinations prior to 1972, there was ample evidence to support Judge
Lasker's finding of prior racial discrimination in the state's promotional process.
As of May 1, 1973, for instance, all 122 permanent sergeants were white. The
pre-1972 examinations were prepared by the same process as the non-jobrelated 1972 examination, which did not meet constitutional standards, and
resulted in the appointment of only two Blacks and no Hispanics to the rank of
sergeant or above. Of 997 Whites and 46 Blacks and Hispanics who took the
examination for sergeant in 1970 and who continued to be employed by the
defendants in 1973, 9.4% of the Whites and 0% of the non-Whites passed.
Although 25 Black correctional officers employed at the Ossining Correctional
Facility took the examination for sergeant in 1968 and 10 to 15 Blacks took the
examination in 1965, none passed. Surely this proof, all pointing in the
direction of past unlawful discrimination against minority candidates, was at
least sufficient to shift the burden of justifying the earlier examinations to the
defendants, see Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28
L.Ed.2d 158 (1971); Vulcan Society, supra, 490 F.2d at 393; Boston Chapter of
NAACP, supra, 504 F.2d at 1019. Yet, there is no indication that the
defendants ever attempted to sustain this burden.
12

To reject the imposition of a minority quota as a compensatory remedy on the

ground that it would discriminate in reverse against eligible White candidates
for promotion ignores the district court's duty as a court of equity to remedy
past wrongs. It should be recognized that at a minimum the plaintiff class in
this case included a definite, identifiable group of aggrieved non-White
individuals--those already in the correctional system who, while previously
qualified for advancement, nonetheless failed to be promoted due to the
application of the discriminatory test. Given the fact that the Whites who
benefited from the discriminatory system retain their promotions, the aggrieved
non-White members of this minority group would deserve quick promotion
even under the most traditional notions of compensatory relief. The obvious
problem is that, because discriminatory examinations were used, we are unable
to identify those White correctional officers who were wrongfully promoted to
sergeant and those Black correctional officers who under a non-discriminatory
system would have been promoted. This problem, however, does not justify the
court's throwing up its hands and entirely rejecting a goal as a means of making
whole the injured members of the minority group. The effect of such rejection,
of course, is not only to deny some non-White correctional officers the long
overdue promotions to which they were entitled, but, by requiring them to
compete afresh with late-comers once a non-discriminatory test is devised, it

postpones their promotions even further. Thus the court's decision hardly
promises to make whole the injured members of the minority group.
13

Although the court justifies its action partly on the ground that Judge Lasker's
order permits appointment without regard to the individual applicant's
comparative standing on a job-related examination or even to his receiving a
passing grade, this represents but one facet of the relief, which can easily be
rectified by providing that once a valid test is available, the correctional
authorities legitimately may decide to test these non-White officers anew.
Should they pass the valid test, however, they should be promoted
preferentially without having to experience the delay of further competition on
equal terms with those newcomers who never were previously aggrieved. See,
e.g., Castro v. Beecher, 459 F.2d 725, 739 (1st Cir. 1972) (district court should
mandate hiring of those in preferential pool as compared to others by ratio of
1:1, 1:2, or 1:3).

14

Thus the effect of the court's action is to provide wholly inadequate relief to
those aggrieved. When one considers the other alternative remedy that might be
employed to provide more effective relief, the use of a temporary goal or quota
looks even more attractive as a salutary exercise of discretion. That alternative
remedy, which would adhere most closely to the merit principle, would be to
void and recall all past promotions made on the basis of the previous nonvalidated tests, since they were the products of unlawful discrimination in
violation of the Equal Protection Clause, having served to 'bump' eligible nonWhite applicants in favor of Whites. Such relief, however, would be extremely
harsh, for by giving a fair opportunity to those minority officers who had been
denied that opportunity under the discriminatory scheme, it would also serve to
strip some White sergeants of a status that they already have come to enjoy and
that they might have achieved even under a non-discriminatory system.

15

Faced with a choice of relief measures, the district court wisely chose to select
the imposition of temporary goals as the less drastic remedy. In analogous
contexts, such as school desegregation cases, the Supreme Court has not
hesitated to uphold the district courts' discretionary power to strike a fair
balance and fashion an equitable remedy that compensates racial minorities for
wrongs done, even though Whites as a class may be forced to accept undesired
burdens. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1, 22--31, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); United States v.
Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23
L.Ed.2d 263 (1969) (upholding faculty assignment to schools by White-Black
ratio); Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689,
20 L.Ed.2d 716 (1968).

16

It is true that if promotion of the non-Whites in the existing and identifiable

pool of correctional officers failed to satisfy the quota, the effect of Judge
Lasker's decree would be to benefit some Blacks as a group at the expense of
some Whites. This might explain the court's concern for 'reverse
discrimination.' But all of the previously cited cases both in this circuit and
outside have now established that such temporary burdening of Whites as a
group is often necessary to effectively compensate for wrongs done to minority
groups. As I hope I have shown, no remedy is perfect. Each must of necessity
require some persons to forego some benefits. The advantage of an
appropriately tailored goal or quota is that it goes the farthest toward remedying
past wrongs with the least harm to others.

17

The fact remains that past non-job-related Civil Service examinations have
resulted in the promotion of Whites only, denying eligible non-White
applicants the chance to qualify on the basis of merit. Thus the Civil Service
system, albeit not deliberately, was used to 'bump' eligible minority applicants
in favor of Whites. It would be ironic to allow adherence to the same civil
service system, perversion of which has caused the racial imbalance in
promotions, to be used as a shield against an effective remedy for the wrong
done in its name.

18

Nor can our prior decisions granting quota relief be distinguished on the ground
that they dealt with unidentifiable White candidates rather than individuallyidentifiable qualified and eligible persons. In Vulcan the district court's interim
decree upheld by us, under which the City would be required to appoint one
minority candidate from the Civil Service eligibility list for each three nonminority candidates appointed, deferred appointment of some non-minority
candidates 'who had qualified under (Civil Service) Exam 0159 but had not yet
been appointed.' 490 F.2d at 391. Thus the non-minority group, some of whom
intervened in the action, were 'readily identifiable candidates for promotion,'
who, 'regardless of their qualifications and standing in a competitive
examination . . . (might) be by-passed for advancement solely because they are
white,' see Kirkland v. New York State Department of Correction, supra, 520
F.2d 420 at 429. Similarly, in Bridgeport Guardians, Inc. the intervening
defendants included persons 'who have a high standing on current eligibility
lists, and presumably would be appointed to the force but for the decision
below,' 482 F.2d at 1334. Likewise in Patterson v. Newspaper & Mail
Deliverers, supra, we upheld a quota against challenge by 100 identifiable
News White workers who were permitted to intervene for the purpose of
challenging the quota relief on the ground that its effect would be to 'bump'
White workers in favor of minority workers. 514 F.2d at 769.

19

All of this is not intended to denigrate the problems of fairness and justice
raised by the White intervenors in these cases. But references to 'identifiable'
Whites, while perhaps placing the consequences of a goal into sharper focus,
do not add to the reality that, irrespective of the identifiability of the Whites, a
goal inevitably serves to benefit some at the expense of others and that this
court as well as most others nonetheless have come to recognize its necessary
inclusion in the district court's remedial arsenal. The wisest and fairest course
that we could follow is not to reject this remedy but to specify the smallest
quota in terms of percentage and duration necessary to correct the past
discrimination. See, e.g., Rios, supra, 501 F.2d at 628 n. 3; Vulcan Society,
supra, 490 F.2d at 399. This heretofore clearly has been our policy and the goal
proposed by the district court in this case is perfectly in line with previously
tolerated remedies.

20

For these reasons I believe it is unfortunate that the court has not seen fit, by
hearing this case en banc, to seize this opportunity, absent guidance from the
Supreme Court, to clarify our position with respect to the constantly recurring
and troublesome question presented.
KAUFMAN, Chief Judge (dissenting):

21

I concur in my brother Mansfield's scholarly opinion. I should like to add the

following thoughts, however. As Judge Mansfield's opinion makes clear, this
Court has traveled too far along the road of temporary 'goals' as a remedy for
past discrimination to permit a single panel to appear to reverse the course
consistently followed. It is my view that we can retrace the steps taken by
previous panels of this Court only by an en banc, F.R.A.P. 35(a), or by a
Supreme Court holding that our earlier decisions have been in error. I am still
of the view that the en banc device is often cumbersome and unproductive of
the definitive resolution for which it is invoked, see, e.g., Rodriguez v.
McGinnis, 456 F.2d 79 (2d Cir. 1972) (en banc), rev'd sub nom. Preiser v.
Rodriguez, 407 U.S. 919, 92 S.Ct. 2459, 32 L.Ed.2d 805 (1973). But, the issues
in the present case are so sharply defined and our prior holdings so clearly
applicable that an en banc would have achieved the goal of 'maintain(ing)
uniformity of (our) decisions.' F.R.A.P. 35(a).