The opinion of the court was delivered by: JOHNSON
This action was originally brought by the National Association for the Advancement of Colored People on behalf of its members and all similarly situated Negroes in the State of Alabama. The complaint alleged that defendant Allen, as Director of the Alabama Department of Public Safety,
and defendant Frazer, as Personnel Director of the Alabama Personnel Department, have followed the continuous and pervasive pattern and practice of excluding Negroes from employment in the Alabama Department of Public Safety. On February 10, 1972, this Court filed its Findings of Fact and Conclusions of Law, setting them forth in a Memorandum Opinion entered that date, 340 F. Supp. 703, which found that defendants had engaged in a continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel. In an effort to remedy the continuing effects of this discrimination and in an effort to eliminate the effects of past discriminatory practices, the Court ordered defendants to fill fifty (50) percent of future vacancies in trooper and support positions with qualified blacks until such time as the jobs were filled by blacks in a ratio of approximately twenty-five (25) percent.
The defendants filed a timely notice of appeal from this Court's order and also moved for a stay pending the outcome of the appeal. On March 16, 1972, this Court denied a stay pending appeal.
On November 12, 1973, the panel of the Court of Appeals for the Fifth Circuit, to which this case has been assigned, entered an order providing that
. . . the record in this cause should now be supplemented and the district court should be accorded the opportunity to reconsider its decree in the light of current information.
The panel directed the parties to prepare and file a stipulation reflecting certain data and also directed this Court to
. . . reconsider any portion of its decree as the same would now apply to future employment practices. The district court shall augment the record on file in this court with copies of the required stipulation and with appropriate evidence of the [district] court's action or decision to allow present decree to remain unaltered.
To implement the order of the Fifth Circuit's panel, this Court ordered the parties to submit the stipulation required by the Fifth Circuit panel within ten days. The parties were also given thirty days to "elicit evidence relevant to this Court's reconsideration of its decree of February 10, 1972, as the same applies to future employment practices by the defendants."
The stipulation as required by the Court of Appeals' panel has now been filed with this Court. Furthermore, the plaintiffs have submitted interrogatories to the defendants; these interrogatories have been answered. Certain past and present officials of the Departments of Public Safety and Personnel for the State of Alabama have been deposed. These depositions and several affidavits from former state troopers have been filed. On the basis of some of this evidence, the private plaintiffs have filed a request to this Court for an order to show cause why the Governor of the State of Alabama should not be held in criminal contempt of this Court's order entered February 10, 1972. The United States has also filed a motion with this Court to supplement the record in this case with the evidence filed on July 19, 1973, in the companion case of United States v. Frazer, Civil Action No. 2709-N.
Now, upon this submission, this Court in this memorandum makes appropriate findings and conclusions in order to comply with the order of the panel of the Court of Appeals for the Fifth Circuit entered in this case on November 12, 1973.
On February 10, 1972, the date this Court's order and injunction was entered in this case, the State of Alabama employed no black state troopers. Since the entry of this order, the state has hired forty-nine (49) troopers, of whom twenty-five (25) have been black. Sixteen (16) of the black troopers are still working for the Department of Public Safety. The progress in the area of support personnel has been even more significant. Today there are some eighty (80) blacks working in support positions in the Alabama Department of Public Safety where before this Court entered its order February 10, 1972, there were none. This Court considers it appropriate in this case to compare the progress achieved thus far in this case under the February 10, 1972, order with the limited success of the decree entered in United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970). So that the panel of the Fifth Circuit may also be able to compare the progress in this case with the lack of progress in Frazer, the motion of the United States to supplement the record herein with the evidence filed on July 19, 1973, in the Frazer case will be granted. Like Allen, Frazer represented an attack on the discriminatory employment practices of State of Alabama agencies. In both cases the agencies in question hired most of their employees through the Alabama Personnel Department, and the head of Personnel, Frazer, is a defendant in both cases.
Frazer initially involved seven Alabama agencies. This Court entered a decree in that case on July 28, 1970, some eighteen months before the decree was entered in the Allen case. Since the Department of Personnel was one of the defendants in Frazer and Personnel supplies employees to all state agencies, the provisions of the Frazer order were applied across the board to all Alabama agencies. On February 14, 1973, this Court formalized this arrangement by granting the Government's motion to add all state agencies except Public Safety as defendants in Frazer.
The Frazer decree has a much wider scope than the Allen order, which focuses on only one agency -- the Alabama Department of Public Safety -- but the decree in Frazer lacks the precision achieved in Allen through the use of hiring goals.
The contrast in results achieved to this point in the Allen case and the Frazer case under the two orders entered in those cases is striking indeed. Even though the agencies affected by the Frazer order and the Department of Public Safety draw upon the same pool of black applicants -- that is, those who have been processed through the Department of Personnel -- Allen has seen substantial black hiring, while the progress under Frazer has been slow and, in many instances, nonexistent. This lack of progress is documented in the tables that were furnished this Court by the United States as a part of its brief. The data set forth on the tables was extracted from reports filed with the Court in Frazer. Copies of some of these tables are appended to and by reference made a part of these findings.
The pattern which emerges from a study of these tables is clear. While the level of increase in nonmenial black employment is nowhere high, it is lowest in those agencies and job classifications from which blacks have historically been completely or almost completely excluded prior to July 28, 1970. In the past no Alabama agency was more exclusionary than the Alabama Department of Public Safety. On July 28, 1970, the Alabama Department of Public Safety was all white. For eighteen months it, like other Alabama agencies, was affected by the Frazer order, but it was still all white as of February 10, 1972. On that date, however, the Alabama Department of Public ...