source: Caselaw Access Project

author: GEWIN, Circuit Judge: RONEY, Circuit Judge

license: Public Domain

text:
    Eartha L. ST. ANN, etc., et al., Plaintiffs-Appellants, v. Vincent PALISI, etc., et al., Defendants-Appellees.
    No. 73-2558.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1974.
    Rehearing Denied July 24, 1974.

      William E. Rittenberg, Nils R. Douglas, Ronald P. Nabonne, New Orleans, La., for plaintiffs-appellants.
    Franklin V. Endom, Jr., Samuel I. Rosenberg, New Orleans, La., for defendants-appellees.
    Before TUTTLE, GEWIN and RO-NEY. Circuit Judges.
   GEWIN, Circuit Judge:

On this appeal Mrs. Eartha St. Ann, individually and on behalf of her minor children, presents a substantive due process challenge to Orleans Parish School Board Regulation XIX which allows school children to be suspended for their parents’ misconduct. We vacate the district court’s order of dismissal insofar as it relates to the claims of the minor plaintiffs and remand.

The challenge presented is prompted by the following occurrences. On September 27, 1972, the appellant’s son, Maurice, received a three day suspension from his seventh grade classes at Martin Behrman Middle School because of excessive tardiness and absenteeism. The following day Mrs. St. Ann went to the school with her daughter, Lavida, in order to check her into school because she was tardy. While in the school office, she inquired about her son’s suspension. A disagreement ensued between Mrs. St. Ann and the assistant principal,' Mr. Achary. Mrs. St. Ann became enraged and struck Mr. Achary on the face with her fist in which she was holding a key chain. As a consequence Mrs. St. Ann was charged with battery and pled guilty in Orleans Municipal Court.

Because of their mother’s attack and pursuant to the aforementioned regulation, Mrs. St. Ann’s two children were suspended from school by notices dated September 29, 1972. The principal, Vincent Palisi, recommended that the suspension be for an indefinite period of time. The District Superintendent, Mr. Monie, scheduled a conference concerning the suspensions for October 10th, but due to her change of address Mrs. St. Ann did not receive notice of the conference. When she failed to appear on October 10th, Mr. Monie telephoned her in an attempt to schedule another conference, but Mrs. St. Ann advised him that the matter had been referred to her attorney. She subsequently filed suit on October 13th.

At the district court’s request a conference between the parties was held on October 25, 1972. The conference did not result in the children’s reinstatement at Martin Behrman, however, because Mrs. St. Ann refused the school officials’ demands for an apology. After this conference the two children were transferred officially to Karr School which they had been attending since October 17, four days after the suit was filed.

The district court concluded that “Regulation XIX does not abuse the discretion allowed to school authorities to formulate rules for the maintenance of discipline in the public schools, Accordingly, Regulation XIX was held not to violate the substantive due process guarantee of the fourteenth amendment and the complaint was dismissed with prejudice.

As the district court indicated, school principals must be given considerable freedom to achieve effective school administration, but courts should not hesitate to act when fundamental constitutional liberties are contravened. Freedom from punishment in the. absence of personal guilt is a fundamental concept in the American scheme of justice. In order to intrude upon this fundamental liberty governments must satisfy a substantial burden of justification. Since the school officials have failed to meet this burden we must vacate the district court’s order of dismissal with prejudice with respect to the claims of the minor plaintiffs, and remand for proceedings consistent with this opinion.

I

The due process clause of the fourteenth amendment protects from state encroachment those fundamental concepts of justice which lie at the base of our civil and political institutions. It is established beyond question that these substantive due process rights are not limited to those liberties specifically enumerated in the Bill of Rights. The rights of marital privacy and interstate travel are but two examples of protections which arise from a free society but are not explicitly mentioned in the Constitution. The appellant contends that predicating punishment only upon personal guilt is such a fundamental notion that it should be placed in the same category. The school’s policy which attributes a parent’s misconduct to other family members is asserted to be guilt by association wholly alien to American liberty.

Substantial Supreme Court authority supports the appellant’s contentions. Traditionally, under our system of justice punishment must be founded upon an individual’s act or omission, not from his status, political affiliation or domestic relationship. This principle has often been recognized by the Court in cases involving membership in subversive organizations. In Scales v. United States Justice Harlan emphasized the personal guilt requirement:

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.

Further evidence of judicial solicitude for the concept of personal guilt appears in the Court’s acknowledgement that the indiscriminate classification of innocent with knowing activity must likewise fall as an impermissible assertion of arbitrary power. Accordingly, a state cannot punish innocent membership in a group without regard for the accused’s knowledge of the nature of the group.

Moreover, personal guilt has not been confined to problems involving political associations. In Levy v. Louisiana an equal protection violation was found when illegitimate children were denied an opportunity to pursue an action for the death of their mother under the Louisiana wrongful death statute. The illegitimate children were not to be deprived due to the indiscretion of their parents. Recently Louisiana’s workmen’s compensation laws which discriminated against illegitimate dependents were invalidated on similar 'grounds. Writing for the Court, Justice Powell stated:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible laisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffee-tual — as well as unjust — way of deterring the parent.

II

These Supreme Court pronouncements provide ample indication that personal guilt is a fundamental element in the American scheme of liberty. The appel-lees do not forcefully dispute this conclusion. Rather they assert, for a variety of reasons, that personal guilt considerations are inappropriate here.

Initially the appellees contend that substantive due process is not applicable unless a federal statutory or constitutional right is being violated. Furthermore, they claim that since San Antonio School District v. Rodriguez, it has been settled that the right to a public education is not a right guaranteed by the Constitution or by Congress. Therefore, appellees conclude that substantive due process cannot be applicable here because no right is being violated.

This syllogism is, of course, irrelevant and erroneous and must be rejected. The argument is irrelevant because the children do not complain that they were denied the constitutional right to an education, but that they were punished without being personally guilty. Thus a cardinal notion of liberty is involved and substantive due process is applicable. Secondly, the appellees are in error if they regard San Antonio as granting the states the power to arbitrarily deny individuals the right to a public education. Finding that education was not a right explicitly or implicitly protected by the Constitution was merely the Court’s analysis of why education is not regarded as fundamental for purposes of “strict scrutiny” under the equal protection clause.

Appellees also argue that there has been no punishment without personal guilt present here because there has been, in fact no punishment. The suspension and transfer were allegedly not designed to punish the St. Ann children. According to school authorities these actions were taken in order to maintain discipline and decorum at the Behrman School. This argument, however, is belied by the language of Regulation XIX itself. It provides:

Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere, verbally or in writing, by a parent or guardian, the child or ward of such parent or guardian shall, by reason of such conduct, be liable to suspension or other punishment. (emphasis added)

Furthermore, this court has recognized that a lengthy suspension does constitute a serious punishment, the imposition of which must be preceded by a due process hearing. Since the regulation provides for punishment and the St. Ann children were in fact suspended and transferred, the conclusion is inescapable that punishment resulted. The motives of the school officials are not controlling.

Ill

Having established a significant encroachment upon a basic element of due process, the state, in order to justify this encroachment, must satisfy a substantial burden. In order to assess the strength of the school officials’ interest one must examine the circumstances allegedly creating the need for such a regulation and the reasonableness of the methods used. The school officials argue that Regulation XIX facilitates preservation of discipline and decorum in the schools. We do not question either the necessity or authority of the Orleans Parish School Board in establishing regulations and rules for the maintenance of discipline and decorum in its schools. But the focus must be more narrow here. One must analyze the compelling reason for a regulation which punishes a child for the misconduct of the parent. It should be noted that the school officials commendably do not appear to argue that such a regulation will deter parental misconduct. Rather the argument appears to be that all children tend to ridicule a teacher who is insulted or attacked by a parent, and that if the children of the offending parent are removed from the school the ridicule will allegedly cease and discipline and teacher authority will be restored.

Initially the premise upon which this argument is based might be challenged; for an arbitrary exercise of the power to punish may do more to destroy respect for those in authority than to restore it. This is, however, essentially a legislative judgment, and if it were the only weakness in the appellees’ argument we would not substitute our judgment for that of a legislative body without further evidence. Nevertheless, there are further indications that Regulation XIX was less than essential. This court was informed upon oral argument that the Orleans Parish School Board has abolished Regulation XIX subsequent to the district court judgment. The repeal itself supports the contention that the challenged regulation is not completely indispensable even if it may arguably serve to restore an offended teacher’s authority.

After an examination of the exigency for the questioned regulation, an inquiry should be made as to the existence of reasonable alternative means for fulfilling that need. Non-students upon school property can be controlled or excluded by local regulations. Persistent violators may be enjoined or prosecuted under state law. Those who attack school officials are subject to state civil and criminal penalties just as Mrs. St. Ann was in the instant altercation. These are traditional and effective remedies for school officials who are disturbed by non-students. All these remedies place restraint on the offending individuals, not on the innocent members of the family. School officials can be relatively certain that news of such remedies will reach the school children, and perHaps the children will realize that the remedy did not arise from the arbitrary use of power but from the traditional precepts of justice in our society.

Since there are alternative paths to restoring teacher authority, and since Regulation XIX is not justifiably or reasonably necessary we must hold that the school officials have been unable to demonstrate a compelling governmental interest. Therefore, this inroad upon the theory of personal guilt cannot be sustained. Even if the challenged regulation were only to be tested against the “mere rationality” standard its constitutionality would be a matter of serious concern. The question would then become whether the regulation is a rational means of advancing a valid state interest. The state may find it difficult to show by more than testimonial surmise that punishment of this type actually creates a better educational atmosphere. Furthermore, statute's that make parents liable for the misconduct of their children have been similarly criticized as irrational and violative of personal guilt. At least in parent-child cases, however, the parent arguably has the power and duty to control his children. Clearly the children do not have the same opportunity.

Conclusion

Because the school officials cannot justify this infringement of a fundamental liberty guaranteed by the due process clause of the fourteenth amendment, we vacate the order of the district court dismissing the appellants’ case insofar as it relates to the claims of the minor plaintiffs and remand for proceedings consistent with this opinion. We only hold that the court committed error in dismissing the appellant’s complaint on behalf of the minor plaintiffs and make no suggestibn or intimation with respect to the value or lack of value of her claim for monetary damages on their behalf. That issue must be decided by the district court in the first instance.

Vacated and remanded.

RONEY, Circuit Judge

(dissenting) :■

I respectfully dissent. Virtually all of the cases cited in the majority opinion for the principle that one is constitutionally entitled to be free from punishment in the absence of personal guilt are criminal cases. This is not a criminal case. The remaining cases cited did not involve misdirected punishment but were decided because the state statutes involved suffered the vice of vagueness or established a classification which had no rational relationship to the purpose of the statutes. The civil law is replete with the concept of vicarious liability from strict liability for torts to the present era of legislation which frequently visits severe civil responsibility for conduct of another and where the one who is called upon to respond is totally without fault.

The idea that transfer of a student from one class to another or from one school to another is punishment in a criminal vein runs absolutely contrary to the law in this Circuit which has transferred from class to class and school to school wholesale numbers of children without any regard to the detriment this may have caused in individual social, economic and educational terms. Their transfer is certainly through no fault of their own and the result has sometimes adversely affected individual lives, but we have never yet conceived this to be “punishment” in the terms unveiled in the majority opinion.

I cannot agree that a state school must show a compelling governmental, interest in a precise rule of discipline. A school has a compelling interest in maintaining discipline and any rational rule to achieve that end should meet the constitutional test. I doubt very much that any rule of discipline could ever be defended in terms of a compelling interest in the exact rule. There are generally viable alternatives to almost every course of human conduct, however rational that conduct may be. The test should be whether the rule meets the Government interest in a rational way.

Finally, I cannot conceive of much education transpiring between a student and a teacher who has just been struck by the student’s parent in front of classmates and who is prosecuting the parent in criminal proceedings. Removing the student from that class and perhaps from the school might be not only the kindest thing to do for all parties but the best way to promote the educational interest of the particular student as well as that of all other students in the class. The “suspension” was merely a mechanical avenue to that end. Although I might not subscribe to such a rule as is challenged in this case, I can find no appropriate legal base to support the claim of unconstitutionality.

None of the findings of fact of the District Judge being clearly erroneous, I would affirm his order, attached to this dissent as an appendix, dismissing the suit on the ground that no federal right was violated by the defendants.

APPENDIX TO DISSENT ORDER

This is a suit by Mrs. St. Ann individually and on behalf of her minor children, Maurice and Lavida, against the principal and assistant principal of Martin Behrman Middle School, the Superintendent of the Orleans Parish Public Schools, and the members of the Orleans Parish School Board. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(3) and (4), and 28 U.S.C. §§ 2201 and 2202, and damages pursuant to 42 U.S.C. § 1983. (Plaintiff’s demands for the’ convening of a three judge court and for the bringing of a class action were previously denied by the Court.) Plaintiff asks that the court (1) declare unconstitutional the provisions of L.R.S. 17:416 relative to the discipline, suspension, and expulsion of pupils from Louisiana public schools ; (2) enjoin the enforcement of L.R.S. 17:416; (3) declare unconstitutional Orleans Parish School Board Regulation XIX which allows suspension of a child from school following disruptive acts by the parent at the school and enjoin enforcement of that regulation ; (4) declare the suspension and expulsion policies of the Orleans Parish School Board unconstitutional and enjoin expulsion and suspension of students from Orleans Parish Schools without prior notice and hearing; and (5) award plaintiff monetary damages for allegedly illegal suspensions.

An evidentiary hearing was held on February 13, 1973. After careful consideration of all testimony and other evidence produced at hearing, it is the opinion of the Court that, according to the applicable law, plaintiff has failed to prove any deprivation of any federally protected right, and therefore, all plaintiff’s claims being without merit, no injunction should issue and the matter should be dismissed, each party to bear its own costs.

FACTS

On September 27, 1972, Maurice St. Ann, the 14 year old son of plaintiff Mrs. St. Ann, was suspended for a period of three days from his seventh grade classes at Martin Behrman Middle School because of excessive tardiness and class cutting. Maurice was sent home with a written notice of his suspension and the reasons therefor. This suspension is not at issue in this suit.

On the following day, September 28, 1972, Mrs. St. Ann went to the school with her daughter Lavida, also a seventh grade student at Martin Behrman, who was tardy, in order to check the child into school. While she was in the school office, Mrs. St. Ann inquired about her son’s suspension. She was told by Mr. Achary, the assistant principal, that the usual procedure for a three day suspension was a conference with the parent at the end of the three day period, but that if she would be seated he would speak with her as soon as he finished talking with several students who were in his office at that time. At this point, according to Mrs. St. Ann, Mr. Achary called her son a liar, which fact is denied by Mr. Achary. At any rate, Mrs. St. Ann became enraged and struck Mr. Achary on the face with her fist in which she was holding a number of keys on a chain.

Following the incident on the morning of September 28th, both the St. Ann children were suspended from school. The suspension form issued, identical in form to the one previously issued for Maurice’s three day suspension, states “mother’s attack on principal” as the reason for the suspension and that the period of the suspension was “recommended indefinite”. The notices, dated September 29, 1972, were signed by Vincent Palisi, principal of Martin Behr-man, and noted that a copy of the form would be forwarded to the district superintendent. Lavida’s suspension form was brought home by her on the day of the incident, and Maurice’s was sent through the mail.

On October 2, 1972, the Monday following the children’s suspension, a letter was sent to Mrs. St. Ann at 1914 Murl Street by District Superintendent John F. Monie, advising her that a conference would be held with reference to her children’s suspensions on Tuesday, October 10, 1972 at 8:45 a. m. (at which time the children would have been '■ out of school for seven days). Mrs. St. Ann and her children did not appear on the date of the conference. Mr. Monie then telephoned Mrs. St. Ann, who advised him that she had not received the notice of the conference, due to a change of address to 1817 Joann Place. She further stated in response to Mr. Monie’s attempt to set up another conference that she did not wish to confer as the matter was in the hands of her attorney. On October 12, 1972, Mr. Monie again wrote Mrs. St. Ann, with copies sent to both the Murl and the Joann addresses, stating that Mrs. St. Ann should contact Mr. Monie “with the view of returning your children to a school”, giving the telephone number of Mr. Monie’s office, and noting that a call to the office would result in the rescheduling of the conference. This suit was filed on October 13,1972.

Subsequent to the filing of the suit, and at the request of the Court, a conference between the various interested parties was held on October 25, 1972. The conference did not result in reinstatement of the children in Martin Behrman because of plaintiff’s refusal to apologize for her actions on September 28th; however, after a conference between the Court and the parties, the children were transferred officially to Karr School — which they had in fact been attending since October 17, 1972. The children have been attending Karr School throughout the pendency of this suit, having missed approximately 12 days of school as a result of the suspension at issue. Karr School is approximately the same distance from the children’s home as Martin Behrman, and Maurice and Lavida, who are black, are now attending a school which is predominantly white (60%) as opposed to Martin Behrman, which, according to Mr. Monie, is 80% black. However, the transfer to Karr School is not felt to be satisfactory to plaintiff because of the alleged unavailability of free transportation to Karr and due to the children’s preference for Martin Behrman.

It is plaintiff’s position that the regulation pursuant to which her children were suspended was unconstitutional per se and that, in addition, a hearing should have been afforded prior to any suspension. Defendants contend that Regulation XIX is a necessary one for the maintenance of discipline in the public schools and is well within the power of the school board to enact. It is further argued that a prior hearing is not required for suspensions of short duration, that a hearing was arranged within a reasonable time, and that the reason that a prompt hearing was not in fact held as scheduled was the result of a good faith error as to the address of Mrs. St. Ann and the failure of Mrs. St. Ann herself to cooperate after the address problem was rectified.

CONCLUSIONS OF LAW

1. L.R.S. 17:416 and the Orleans Parish School Board regulations which track its provisions are not unconstitutional on their f§tce, Murray v. West Baton Rouge Parish School Board, (C.A.5, 1973), 472 F.2d 438, nor has plaintiff presented any evidence that they were unconstitutionally applied in the instant case.

2. Orleans Parish School Board Regulation XIX does not abuse the discretion allowed to school authorities to formulate rules for the maintenance of discipline in the public schools, and the procedures following the suspensions of the St. Ann children pursuant to Regulation XIX did not violate Due Process. This regulation was enacted by the Orleans Parish School Board pursuant to L. R.S. 17:81 which authorizes each school board to:

“. . . make such rules and regulations for its own government, not inconsistent with law or with the regulations of the Louisiana State Board of Education, as it may deem proper.”

L.R.S. 17:81 is made applicable to the Orleans Parish Board by L.R.S. 17:122 which provides:

§ 122. Application. of general laws and regulations of state board of education
All laws, and all rules and regulations of the state board of education governing other parish school boards throughout the state, shall govern the Orleans Parish School Board, except as otherwise specifically provided in this Title. As amended Acts 1960, 3rd Ex.Sess., No. 4, § 1.

According to testimony given at the hearing in this matter, the reason for Regulation XIX is that incidents involving parents and teachers on school property, such as the one involving Mr. Achary and Mrs. St. Ann, tend to materially disrupt discipline on the school grounds. Children tend to ridicule a teacher who is insulted or attacked by a parent, and such incidents result in a breakdown of discipline in the public schools. According to the school officials who testified in the instant case, if a parent makes amends for the disruptive conduct, the child is not penalized. In the event that the parent refuses to apologize, as did Mrs. St. Ann, the child is transferred to another school where the parent’s conduct is not known. It is further stated by the school officials that the term “indefinite suspension” as used on the suspension forms issued to the St. Ann children is merely the recommendation of the school principal to the district superintendent who will be the person who actually makes the decision after a conference with the parent and the school principal or teacher.

School officials have a wide margin of discretion in formulating school disciplinary rules, and school disciplinary codes cannot be drawn with the same precision as criminal codes. Burnside v. Byars, 363 F.2d 744 (C.A.5, 1966); Murray v. West Baton Rouge Parish School Board, supra. It is the Court’s opinion that the school officials in the instant case have demonstrated a need for a rule such as Regulation XIX in the public schools. There has been no evidence that this rule is or was intended to keep a child out of school, and the rule itself pro-' vides that no action is to be taken against the child unless the parent fails to make amends.

The procedure followed with respect to the suspensions of the St. Ann children is within constitutional limits. No prior hearing is required for a suspension of up to ten days. Sullivan et al. v. Houston Independent School District, 475 F.2d 1071, (C.A.5, 1973), citing Banks v. Bd. of Public Education, 314 F.Supp. 285 (S.D.Fla.) vacated for entry of a single judge order, 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), aff’d after remand, 450 F.2d 1103 (C.A.5, 1971). In the instant case the initial hearing was set up by letter dated the next working day following the suspensions by the district superintendent and scheduled to take place less than ten days following the initial suspension. The fact that the hearing was not held as planned on October 10th was not due to any fault of the school officials. The failure to have a hearing at any time following October 10th, pursuant to Mr. Monie’s phone call and letter of October 12th, were due to the refusal of the mother to assent to a conference. For these reasons it cannot be held that the school board acted in violation of procedural due process in this matter. Sullivan et al. v. Houston Indep. School District, supra.

Therefore, there having been no showing of facts sufficient to prove any constitutional deprivation to plaintiffs, it is ordered that plaintiff’s case be dismissed with prejudice, each party to bear its own costs.

Let judgment issue accordingly.

New Orleans, Louisiana, this 25th day of April, 1973.

s/ R. BLAKE WEST_

United States District Judge

      . Orleans Parish School Board Regulation XIX provides:
      A parent or guardian dissatisfied with the conduct of any teacher toward his child or ward shall first lay his complaint before the teacher, and, if not satisfied, may appeal to the principal. The principal shall hear such complaints only in the presence of the teacher concerned. If the matter is not satisfactorily resolved, the parent or guardian may appeal to the assistant superintendent in charge of the district, who shall hear the case only in the presence of the principal and teacher. Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere verbally or in writing, by a parent or guardian, the child or ward of such parent or guardia/n shall, by reason of such conduct, be liable to suspension or other punishment. Said suspension or other punishment shall not be made until after the parent or guardian has refused to make proper amends. (Emphasis added)

      . Murray v. West Baton Rouge Parish School Board, 472 E.2d 438, 444 (5th Cir. 1973).

      . Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (5th Cir. 1972) (En Banc).

      . Nothing we say should be construed as an approval of Mrs. St. Ann’s conduct. This opinion relates entirely to the rights of the minor plaintiffs she represents, her two children. Mrs. St. Ann has not asserted or demonstrated any error by the district court in dismissing her individual claim; therefore we affirm that portion of the order.

      . Powell v. Alabama, 287 U.S. 45, 67, 53 S. Ct. 55, 63, 77 L.Ed. 158,169 (1932).
      In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] * * * as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L.Ed. 674, 677 (1934).
      Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510, 520 (1965) (Goldberg, J. concurring).

      . Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972) (En Banc).

      . Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

      . Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969).

      . See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (State cannot make the “status” of narcotic addiction a criminal offense).

      . 367 U.S. 203, 224, 225, 81 S.Ct. 1469, 1483, 1484, 6 L.Ed.2d 782, 799 (1961).

      . The restraints imposed upon legislation by the due process clause of the fifth and four-' teenth amendments are generally considered the same. Heiner v. Donnan, 285 U.S. 312, 326, 52 S.Ct. 358, 361, 76 L.Ed. 772, 779 (1932). Even if different constructions of the provisions may be proper in appropriate eases there is no indication that such a distinction is relevant here.

      . Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216, 222 (1952).

      . Id. The concept has been further refined to require a showing of a specific intent to assist in achieving an organization’s unlawful ends. Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238,16 L.Ed.2d 321 (1966).

      . 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

      . See also Glona v. American Guar. and L. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L. Ed.2d 441 (1968). But cf. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971).

      . Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) .

      . Id. at 175, cited with approval Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, 591 (1973).

      . 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) .

      . Indeed the Court mentioned with approval several eases that have held the right to acquire useful knowledge a constitutionally protected liberty. Id. at 30.

      . Black Students v. Williams, 470 F.2d 957 (5th Cir. 1972). Ten days was held to be a substantial period of suspension so as to require a due process hearing.

      . Griswold v. Connecticut, 381 U.S. 479, 504, 85 S.Ct. 1678, 1692, 14 L.Ed.2d 510, 527 (1965) (White, J., concurring), quoting Bates v. City of Little Bock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480, 486 (1960); Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (1972).
      The United States Supreme Court has consistently distinguished between regulatory statutes in the economic sphere and those which are aimed at restricting more personal freedoms. In the case of economic regulation, the Court has stated that a “rational basis” for the legislation will suffice to meet the constitutional requisites of due process; on the other extreme, a clear and present danger to the public safety is required to justify a restriction on the first amendment right to free speech, (footnotes omitted).
      Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321,1325 (1972).

      . See p. 428 infra.

      . The appellants seek an award of monetary damages as well as declaratory and injunctive relief. The repeal of Regulation XIX may indeed moot all claims except that for monetary damages. See Nat’l Lawyers Guild, Univ. of Texas Chapter v. Bd. of Regents of the Univ. of Texas Sys., 490 F.2d 97 (5th Cir. 1974) and the cases cited therein.

      . An inquiry into reasonable alternative means to achieve a goal is an appropriate inquiry when analyzing a fourteenth amendment 1 due process challenge. In Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) the Court held that Connecticut could not create an irrebuttable presumption of nonresidence for college tuition purposes when the state had reasonable alternative means for determining residence. Id. at 452.

      . See note 21 supra.

      . E. g. Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973).

      . See Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321 (1972); cf. Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 Hous.L. Rev. 1039 (1973).

      . L.R.S. 17:416 provides :
      § 416. Discipline of pupils ; suspension ; expulsion
      A. Every teacher is authorized to hold every pupil to a strict accountability for any disorderely conduct in school or on the playgrounds of the school, on the street or road while going to or returning from school, or during intermission or recess. School principals may suspend from school any pupil who is guilty of willful disobedience; who treats with intentional disrespect a teacher, principal, superintendent, member or employee of the local school board; who makes against any one of them an unfounded charge; who uses unchaste or profane language ; who is guilty of immoral or vicious practices, or of conduct or habits injurious to his associates; who uses tobacco or alcoholic beverages in any form in school buildings or on school grounds; who disturbs the school and habitually violates any rule; who cuts, defaces or injures any part of public school buildings, or any property belonging to said buildings; or who writes any profane or obscene language or draws obscene pictures in or on any school material or on any public school premises, or on any fence, pole, sidewalk or building on the way to or from school; or who is found carrying firearms, knives, or other implements which can be used as weapons, the careless use of which might inflict harm or injury; or who throws missiles on the school grounds liable to injure other pupils, or who instigates or participates in fights while under school supervision ; or who violates traffic and safety regulations; or who leaves the school premises without permission; or who leaves his classroom during class hours or detention without permission; or who is habitually tardy or absent; or who commits any other serious offense. Notice in writing of the suspension and the reasons therefor shall be given to the parent or parents of the pupil suspended. Any parent of a pupil suspended shall have the right to appeal to the parish superintendent of schools, who shall conduct a hearing on the merits. The decision of the superintendent of schools on the merit of the case, as well as the term of suspension, shall be final, reserving the right to the superintendent of schools to remit any portion of the time of suspension. A pupil suspended for damages to any property belonging to the school system shall not be readmitted until payment in full has been made for such damage or until directed by the superintendent of schools.
      B. Any student after being suspended for committing any of the above offenses may be expelled, upon recommendation by the principal of the public school in which said student is enrolled, which recommended expulsion shall be subject to the provisions of Subsection (0) hereof.
      Any student after being suspended on three occasions for committing any of the above offenses, during the same school session, shall on committing the fourth such offense, be expelled from the public schools of the parish wherein he resided until the beginning of the next regular school session, subject to the review and approval of the local school board.
      O. Upon the recommendation by a principal for the expulsion of any student as authorized by Subsection (B) hereof, a hearing shall be conducted by the superintendent or by any other person, designated so to do by the superintendent. Upon the conclusion of the hearing, the superintendent, or his designate, shall determine whether such student shall be expelled from the school system or if other corrective or disciplinary action shall be taken. At said hearing the principal and/or teacher concerned may be represented by any person appointed by the superintendent. Until such hearing takes place the student shall remain suspended from the school. At such hearing the student may be represented by any person of his choice.
      The parent or tutor of the pupil may, within five days after the decision is rendered, request the city or parish school board to review the findings of the superintendent or his designate at a time set by the school board; otherwise the decision of the superintendent shall be final. If requested, as herein provided, and after reviewing the findings of the superintendent or his designate, the school board may affirm, modify or reverse the action previously taken.
      The parent or tutor of the pupil may, within ten days, appeal to the district court for the parish in which the student’s school is located, from an adverse ruling of the school board in upholding the action of the superintendent or his designate. The court may reverse or revise the ruling of the school board upon a finding that the ruling of the board was based on an absence of any relevant evidence in support thereof.
      D. The conviction of any student of a felony or the incarceration of any student in a juvenile institution for an act which had it been committed by an adult, would have constituted a felony, shall be cause for expulsion of the student for a period of time as determined by the board; provided that such expulsion shall require the vote of two-thirds of the elected members of the school board.
      Amended by Acts 1970, No. 194, § 1; Acts 1970, No. 306, § 1.

      . Orleans Parish School Board Regulation XIX provides:
      SECTION XIX COMPLAINT PROCEDURE
      A parent or guardian dissatisfied with the conduct of any teacher toward his child or ward shall first lay his complaint before the teacher, and, if not satisfied, may appeal to the principal. The principal shall hear such complaints only in the presence of the teacher concerned. If the matter is not satisfactorily resolved, the parent or guardian may appeal to the assistant superintendent in charge of the district, who shall hear the case only in the presence of the principal and teacher. Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere, verbally or in writing, by a parent or guardian, the child or ward of such parent or guardian shall, by reason of such conduct, be liable to suspension or other punishment. Said suspension or other punishment shall not be made until after the parent or guardian has refused to make proper amends.


author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie JAMES, Jr., Defendant-Appellant.
    No. 73-2763.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1974.

      John W. Coleman, Mobile, Ala., for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Willie James, Jr. was indicted in two counts for distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). The two counts arose from transactions between the appellant and a government informer, Sam Battles, on October 16 and October 27, 1972. A jury found James guilty under both counts, and we affirm those convictions.

Because Battles was dead at the time of trial, the government’s case against James rested largely on the testimony of George J. Cazenavette, a special agent of the Bureau of Narcotics and Dangerous Drugs. Through Battles, Cazenavette arranged via telephone the heroin purchases which underlie this prosecution, and acting under cover, he was present when the sales occurred. He testified in detail concerning both transactions, and this testimony was corroborated in significant particulars by the testimony of other law enforcement officials. The evidence is more than adequate to support the jury’s decision.

The only significant issue on appeal arises from the admission into evidence of two tape recordings, made when Battles talked to appellant on the telephone to set up the transactions. The most troublesome problem is the United States Attorney’s failure to disclose the existence of the tapes at the Omnibus Hearing held on April 18, 1972. There is no question that under this circuit’s interpretation of Rule 16(a)(1) James was entitled to discovery of the tapes. Davis v. United States, 413 F.2d 1226, 1231 (5th Cir., 1969); accord United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971); United States v. Isa, 413 F.2d 244 (7th Cir., 1969). That the U. S. Attorney was unaware of the tapes at the time of the hearing because they were in the possession of Agent Cazenavette does not excuse his affirmative misrepresentation.

Moreover, “[r]ule 16(g) imposes a continuing obligation on a party who already complied with a discovery order. If at any later time, prior to or at the trial, he finds additional material previously requested and ordered that is subject to discovery under the rule, he must promptly notify the other party or his attorney or the court of the existence of the additional material.” 1 C. Wright, Federal Practice & Procedure, § 259, at 532 (1969). Thus, when government counsel received the case file from the B. N. D. D. office in Washington at least two weeks prior to trial and thereby learned of the tape recordings, he should have notified appellant’s attorney or the court, and his failure to do so is inexcusable. We fully agree with the observation in United States v. Baum, 482 F.2d 1325, 1331 (2nd Cir., 1973), that “[o]rdinarily it is disclosure, rather than suppression, that promotes the proper administration of criminal justice.” In addition to helping expedite the trial of criminal cases, an omnibus hearing facilitates discovery thus reducing, in the spirit of the criminal discovery rules, the opportunity for trial by ambush. This salutary function cannot be aborted by allowing a United States Attorney to avoid discovery by pleading ignorance of discoverable material which is in the possession of another governmental agency; especially is this true when both are supposedly working together to apprehend and convict those engaged in the distribution of illegal drugs.

Our distaste for the government’s conduct does not, however, warrant a reversal of the case at bar. We have previously held that “an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.” United States v. Saitta, 443 F.2d 830, 831 (5th Cir., 1971), cert. den., 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250; United States v. DeSimone, 452 F.2d 554, 557 (5th Cir., 1971); accord United States v. Dowdy, 455 F.2d 1253, 1255 (10th Cir., 1972); United States v. Cole, 453 F.2d 902, 904 (8th Cir., 1972); United States v. Allsenberrie, 424 F.2d 1209, 1215 (7th Cir., 1970). See also Pierce v. United States, 414 F.2d 163, 169 (5th Cir., 1969), cert. den., 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425. A thorough review of the record in this case leaves us convinced that the prejudice, if any, flowing from the government’s failure to produce the tapes until the time of trial was insubstantial.

Defense counsel was informed immediately prior to trial about the tapes and the government’s intent to use them in its case in chief. A recess was then granted in order for both the court and the defense to consider the applicable law. Subsequently, a hearing was held outside the jury’s presence for the gov-eminent to establish the foundation for admitting the tapes into evidence. Once the court was satisfied as to the admissibility of the tapes, that they were authentic and that Battles had consented to have his conversations with James recorded, the trial proceeded. Defense counsel continued to object to admissibility on these grounds, but he did not argue that he was unprepared to meet the evidence contained in the tapes. See United States v. Kelly, 420 F.2d 26, 29 (2nd Cir., 1969). Nor did counsel seek either a longer recess or a continuance, see United States v. Avila, 443 F.2d 792, 795 (5th Cir., 1971), and he acquiesced in the continuation of the trial. And finally, the court was not asked pursuant to Rule 16(g) to refrain from admitting the tapes as a sanction for the government’s failure to comply with the discovery rules. See United States v. Good, 410 F.2d 1217 (5th Cir., 1969), cert. den., 397 U.S. 1002, 90 S.Ct. 1131, 25 L.Ed.2d 413.

In conclusion the record fails to disclose the type of prejudice that would require our granting appellant a new trial. Compare United States v. Baum, 482 F.2d 1325, 1331 (2nd Cir., 1973); United States v. Kelly, supra, 420 F.2d at 29; United States v. Miller, 411 F.2d 825, 832 (2nd Cir., 1969); United States v. Padrone, 406 F.2d 560, 561 (2nd Cir., 1969). Considering the damaging character of the tapes, counsel did an admirable job of countering this evidence during cross-examination of Agent Cazenavette. And, although the contents of the tapes bolstered by corroboration the agent’s previous testimony, they did not contain facts not previously revealed. See United States v. Miller, supra. It is therefore unnecessary to afford James a new trial for the purpose of giving him a fair opportunity to respond to this evidence. See United States v. Kelly, supra. Reiterating, we hold only that in the particular circumstances of this case the government’s failure to comply with the discovery rules until the time of trial does not amount to reversible error.

Affirmed.

      . “(a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally — •
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”

      . Battles was to appear as a government witness in a number of drug cases scheduled for trial in Mobile beginning on Monday, May 21. However, he was shot and killed at approximately 2:30 A.M. that morning as he worked at his filling station in Mobile. See United States v. McKinley, 493 F.2d 547, 549 n. 1 (5th Cir., 1974).

      . Appellant’s argument concerning the delay of four and one-half months between the criminal acts and his indictment is foreclosed by United States v. Judice, 457 F.2d 414, 415 (5th Cir., 1972), cert. den., 409 U.S. 886, 93 S.Ct. 104, 34 L.Ed.2d 142. James also contends that the trial court erred in not granting a continuance or a change of venue because of adverse publicity related to Battles’ death. In United States v. Robinson, 487 F.2d 340 (5th Cir., 1973), a similar argument was made on the basis of the same publicity, and we rejected it, saying, “Robinson’s claim of prejudicial pretrial publicity is without merit. The facts in the case before us simply do not show any prejudice to Robinson which would necessitate a reversal of the trial court’s exercise of sound discretion.” Appellant’s claim that the requirements of Miranda were violated is also without merit. See United States v. Frazier, 434 F.2d 994 (5th Cir., 1970).
      The trial court also admitted a statement made by defendant which contained incriminating admissions, although this statement, like the tape recordings, was not disclosed at the omnibus hearing. On learning of this statement immediately prior to trial, defense counsel stated: “Judge, the matter of the statement doesn’t create any concern to me at this point.” In view of this and counsel’s failure to object to admissibility on the basis of non-disclosure at the time of trial, we find no error in the court’s action. But, as our textual discussion of the government’s failure to comply with the discovery rules will indicate, this decision should -in no way be construed as an approval of the government’s conduct.

      . At the time of trial Federal Rule of Criminal Procedure 16(a) read in pertinent part as follows:
      “Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, . . . .”
      In Davis v. United States, 413 F.2d 1226, 1231 (5th Cir., 1969), we held that a recorded conversation between an accused and a government informer was a statement within the meaning of this rule. At the omnibus hearing the government stated that it did not have any such statements. The government’s argument that there was no misrepresentation because of its statement that there was no electronic surveillance in this case is thus beside the point. Clearly, “by the exercise of due diligence” government counsel would have become aware of the recordings.

      . See note 4, supra,.

      . It should be noted that the issue in this ease is not whether the government violated the commands of Brady v. Maryland, 373 U. S. 83 (1963). The evidence in the tapes was not favorable to the accused as either direct or impeaching evidence. See United States v. Harris, 458 F.2d 670, 675 (5th Cir., 1972). Compare Davis v. Heyd, 479 F.2d 446 (5th Cir., 1973) (Coleman, J., dissenting) .

      . That Battles consented to have the conversations recorded was established by the testimony of Agent Cazenavette. Appellant’s claim that this testimony was insufficient to establish consent is foreclosed by United States v. Rangel, 488 F.2d 871, 872 (5th Cir., 1974). We there stated:
      “Appellant, Israel Rangel, contends that the government did not carry its burden of showing that co-defendant Murray voluntarily consented to the government’s interception of the conversation. We disagree. We think that there was sufficient evidence on the record to justify the District Court’s conclusion that Murray did voluntarily consent to the recording. Murray was unavailable to testify. The Government produced one of the Customs
      agents who was present who testified that Murray had been given his Miranda warnings when taken into custody, that he asked Murray whether he had his permission to tape the telephone call to Rangel and Murray replied “yes”, and that Murray was shown all of the taping equipment before the call was placed.
      “We reject Appellant’s contention that the Government did not present a detailed enough description of the events in the Customs Office preceding the telephone call to warrant a finding of voluntary consent. Appellant had full opportunity to cross-examine the Customs agent who testified.”

        See also United States v. Bonanno, 487 F.2d 654, 658 (2nd Cir., 1973).


author: GEWIN, Circuit Judge:

text:
    Adam BAXTER, Plaintiff-Appellant, v. SAVANNAH SUGAR REFINING CORPORATION, Defendant-Appellee.
    No. 73-1039.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1974.
    Rehearing Denied July 9, 1974.

      Fletcher N. Farrington, Bobby L. Hill, Savannah, Ga., Kenneth L. Johnson, Baltimore, Md., Jack Greenberg, Morris J. Bailer, New York City, Robert Belton, Charlotte, N. C., for plaintiff-appellant.
    John E. Simpson, Savannah, Ga., John L. Sapp, Atlanta, Ga., for defendant-ap-pellee.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   GEWIN, Circuit Judge:

This appeal emanates from the district count’s judgment granting appellant Baxter and the class he represents partial injunctive relief prohibiting Savannah Sugar Refining Corporation’s (hereinafter Savannah) discriminatory promotion practices. Baxter based his right to affirmative relief on Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq., and 42 U.S.C. 1981 which forbid private racial discrimination in employment. In the district court’s opinion rendered on October 6, 1972, Baxter was permitted to represent all black employees at Savannah’s refinery pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.

Baxter presents three contentions for our review. First, it is alleged that the district court erred in denying his request for class-wide back pay on the asserted grounds oft Savannah’s alleged good faith actions taken subsequent to the filing of this lawsuit and additionally because Baxter had failed to prove I that an award of back pay was neees- j sary to make whole the class which had been subject to discrimination. Secondly, he contends that the district court erred in holding that he was not the victim of Savannah’s discriminatory employment practices. Finally, Baxter asseverates that the lower court unduly limited, without apparent justification, its award of attorney’s fees granted to Baxter’s counsel. After a review of the facts disclosed by the record and applying the applicable employment discrimination principles to the facts, we conclude that Baxter’s first and third contentions are meritorious. Accordingly, we remand this case to the district court for further proceedings consistent with this opinion.

I

Savannah, a New York corporation, refines, distributes and sells cane sugar. It maintains its headquarters in Savannah, Georgia. Baxter and the class he represents are employed at Savannah’s principal refinery in Port Wentworth, north of Savannah. Savannah has a history of hiring a large percentage of black employees at its refinery. Indeed, at all times relevant to this case, a majority of the workers at the refinery has been black. Baxter does not complain of the percentage of blacks hired at the refinery, but he does challenge its promotional policies toward black employees subsequent to their employment.

Savannah’s refinery is divided into numerous functional departments. In turn, the various departments are further compartmentalized into many job classifications. Even though lines of progression do exist within the departments, transfers freely occur among them. Furthermore, promotions are not based strictly on considerations of seniority but more importantly promotions are granted or .denied almost entirely upon a department supervisor’s recommendations as to who is “best qualified” among those in the pool of potential promotees for the particular job involved.

The facts fully support Baxter’s claim that Savannah has had a history —which has continued to the present time — of confining black employees to lower-paying, less-skilled positions within the refinery. The record demonstrates a classic example of consistent and continuous employment practices that have the impermissible consequence of limited upward mobility of blacks seeking economic advancement through job promotions. In a rather paternalistic manner, Savannah confers, without prior notice, promotions within the refinery. The supervisors, who are almost all white, choose those employees whom they feel have the qualities and backgrounds needed for an open position. There are no objective job descriptions to aid or guide supervisors in their promotion selection. Without notice of job openings and the qualifications desired, blacks are totally dependent upon their j white superiors for promotion and economic advancement. '

There is little dispute about the deleterious impact on black employees of Savannah’s promotion system prior to the filing of Baxter’s lawsuit in 1968. In 1965, Savannah’s work force was divided into seventy job classifications of which sixty-seven classifications were segregated by race. During the period 1965 to 1968, blacks continued to be assigned to all black positions and when promoted, were advanced to higher positions traditionally held by blacks. Therefore, at least until 1968, the company made no attempt to remove its discriminatory employment policies and conform to the Act’s proscriptions.

In early 1968, Savannah adopted a so-called “affirmative action program” in an apparent effort to alleviate its quondam misdeeds against blacks and possibly to blunt the impact of Baxter’s lawsuit. Under this “program”, blacks began receiving promotions to historically higher jobs held by blacks. Thus, during the period of 1968 through 1971, Savannah elevated 131 employees to higher positions of which 81 were black. The record establishes however, that most blacks were advanced to positions traditionally held by blacks. Moreover, it was not until 1971 that a black employee was promoted to a supervisory position which entailed direction of white employees. The refinery, on the other hand, did not undertake to improve its promotion practices by providing for objective guidelines and job descriptions which hopefully would have eradicated the subjectivity that had characterized its policies in the past.

The district court seems to have accorded same significance to the fact that the size of the refinery’s work force had diminished in analyzing Savannah’s promotion system and its impact on black employees. Such a consideration, while perhaps germane where a discrimina-tee’s challenge is to an employer’s hiring practices, is of small relevance where the challenge is to an employer’s promotion policies and the observed reduction in the work force occurs primarily in the lower paying black positions as in the instant case. During a part of the relevant period under review here, the work force actually increased between 1965 through 1968 from 505 employees to 510. Although there was a decrease between 1968 to 1971, the evidence demonstrates that while only four positions held by whites were eliminated from the work force, over 42 positions held by blacks were terminated. Thus the reduction in the size of the work force can not account, in any significant manner, for the black employees’ position at the refinery.

The trial court aptly observed the discriminatory consequence of Savannah’s promotion policies. It stated:

While black and white employees begin at the same rate of pay, Blacks ultimately fall behind the earning power of their white co-workers. Throughout the years from 1965 to 1971, the income gap between black and' white employees at defendant’s plant has widened. In 1965, the average wage for white employees was $105.86 per week, while Blacks averaged only $92.23 per week. In 1968, white employees of the Company averaged earning $126.60 per week while Blacks averaged only $104.84. In 1971, the defendant’s white production employees earned an average weekly wage of $156.94 while Blacks earned only $134.13. Black employees in segregated job classifications in 1971 earned $27.05 less on the average than Whites working in all white jobs. In 1965, the gap was $20.20. These data reflect that while defendant has recently achieved more dispersal of black employees into the higher wage levels, nevertheless the relative position of all black employees . . . has not improved. It is obvious that of the 95 black employees promoted from 1965 until the date of trial, only a few were promoted into formerly all-white or integrated job classifications. The majority of these promotees remained in segregated job classifications.

/The district court had no difficulty in ^discerning the cause of the difficulties / of the black employees in the refinery. | Savannah did not give notice of vaeancies, job descriptions or qualifications desired for a higher position. Em- ¡ ployees were selected for promotion by supervisors on the basis of those determined to be “best qualified.” Accordingly, the court enjoined the use of supervisory recommendations as the criteria for promotion and required that detailed affirmative steps be taken to eliminate such past abuses.

We completely agree with the district court order requiring that affirmative steps be taken to eliminate Savannah’s past discrimination in promotions. The record clearly demonstrates the injurious consequences of the employer’s policies on black employees. Only one conclusion can be distilled from the evidence; blacks, as a class, were the victims of discriminatory employment practices forbidden by Title VII and § 1981. An overriding determinant for job advancement at the refinery was the race or color of the employees. With the factual backdrop enunciated, we proceed to discuss Baxter’s contentions.

II

The district court explicated two reasons for its denial of class-wide back pay. First, the court was impressed by the fact that Savannah had “acted in good faith and made a positive effort to eliminate pre-Act segregations practices.” Secondly, the court held that Baxter had “failed to adduce satisfactory proof that such relief is needed to make the class whole. There has been no proof of a significant number of members of the group possessing qualifications who have been damaged by discriminatory practices notwithstanding their qualifications for promotion.” It is our considered opinion that neither of the stated grounds is legally sufficient to support the denial of a back pay award under the facts disclosed by the record in this case.

It is now settled law in our circuit that good faith is not a defense to an action for- class-wide back pay. In Johnson v. Goodyear Tire & Rubber Company, this court held that an employer’s allegedly good faith actions taken to vitiate the effects of its past practice of employment discrimination are not a defense to a c.laim for back pay when the class has established a prima facie case of discrimination. In reviewing the claim of good faith asserted by the employer, Goodyear, in Johnson, we observed:

First, Goodyear argues that it would be unjust to impose back pay upon it since the district court found that it has proceeded at all times subsequent to the Act to remedy its past discriminatory practices. Johnson strongly contests this finding of the court. We find it unnecessary to resolve this factual controversy since we hold as a matter of law that such a finding is totally irrelevant as a defense to a claim for back pay.
Goodyear’s argument completely misconstrues the nature of a back pay award. The entire thrust of this contention is based on the premise that back pay is punishment for its misdeeds and thus the court in good conscience should consider the motive of the employer in imposing the “penalty.” This proposition has been totally rejected by our court. . . . Our Circuit has been steadfast in its determination to insure that sufficient affirmative relief be provided to vindicate the rights guaranteed by Title VII. In short, back pay awards [seek not] to punish the employer but to economically elevate the victims to the status which is rightfully theirs.

The Johnson holding is equally applicable to the instant case. Even assuming that Savannah has taken actions in good faith to dissipate its previous discriminatory conduct, such actioifs are of little consequence where, as the instant case reveals, economic loss has occurred in the past and discrimination presently continues which results in financial deprivation to a company’s black employees. Whether an employer is beneficient or malevolent in implementing its employment practices, the same prohibited result adheres if they are discriminatory; economic loss for the class of discrimi-natees. In Title VII litigation, neither benign neglect nor activism will be judicially tolerated if the outcome of such practices is racially discriminatory and results in monetary loss.

Concerning the burden of proof imposed on the class of discriminatees, we think the district court acted prematurely in requiring individual proof of economic loss and committed error in mandating that an individual establish that he had the prerequisite “qualifications” for a higher position in the initial proceedings to ascertain the nature of employment practices. We reiterate, as the district court apparently recognized, that Baxter has established a prima facie case of class-wide discrimination resulting in severe economic disparities between the earning power of white and black employees at the refinery. Moreover, the evidence clearly evinced a promotion system which confined black employees to low paying black job classifications. In addition, even when promotions were given to blacks they were limited substantially to higher paying jobs formerly held by blacks. Therefore, there is a strong presumption that a number of the individual members of the class would have received promotions to better paying white positions if Savannah’s promotion process had been based on merit.

A Title VII class action suit presents a bifurcated burden of proof problem. . Initially, it is incumbent on the class to establish that an employer’s employment practices have resulted in cognizable deprivations to it as a class. At that juncture of the litigation, it is unnecessarily complicating and cumbersome to compel any particular discriminatee to prove class coverage by showing personal monetary loss. What is necessary to establish liability is evidence that the class of black employees has suffered from the policies and practices of the particular employer. Assuming that the class does establish invidious treatment, the court should then properly proceed to resolve whether a particular employee is in fact a member of the covered class, has suffered financial loss, and thus entitled to back pay or other appropriate relief.

As a further justification for denying back pay relief, the trial court also concluded that no member of the class had shown that he possessed the qualifications for a promotion. On the basis of this record, we find it difficult to discern just what qualifications the district court had in mind. Baxter’s evidence demonstrated that promotions resulted only from supervisory recommendations based on esoteric standards never revealed to the discriminatees. It is hard to conceive how one can prove that he meets certain employment criteria when no standards have been delineated by the employer. It is obvious that the burden of proof, encompassing nebulous and indeterminate standards, was improperly imposed here.

Accordingly, it is now proper to proceed with individual determinations of class coverage to resolve the issue of personal economic loss. The Johnson case, supra, refers to many factors which must be considered in the complex determination of an individual’s entitlement to back pay. Unlike the Johnson case, however, Savannah has no clearly ascertainable job standards other than the equivocal “best qualified” criterion. Thus it may be appropriate for the court on remand to ascertain what qualifications the white employees possess who occupy the higher paying “white” classifications. Of course, only those qualifications possessed by white workers which are established by Savannah to be job related should be considered. The evidence distilled from this process should provide a standard for determining whether an individual black worker was actually qualified for promotion under a true merit system. We do not purport to constrain the inquiry of the district court or to confine its consideration of other pertinent factors, if any, which may be developed by the evidence.

Obviously many factors will have to be considered in resolving which individual employees would have been promoted. There are 272 black employees at Savannah’s plant. Each individual presents unique characteristics and qualities. Perhaps of some significance is the fact that although higher positions do become available at the refinery, it does have a lower turnover rate than is usually found in an industrial setting. Thus it is apparent that many black employees would have never received an advancement regardless of Savannah’s policies. ■ If this assumption is established as a fact by Savannah, then the district court might consider a black incumbent’s accumulated seniority in determining which black employee would have been promoted from the available pool. While this tentative proposal is only meant as a suggestion, it does indicate the type of analysis which will be re-' quired to attain an equitable result from the factual milieu presented here.

Hopefully through such analysis, it will be possible to determine which blacks would have been promoted under a racially neutral system based on merit and job qualifications. As previously noted,■¡■the entire system of promotions formerly utilized by the refinery was based on a supervisor’s subjective judgment without the benefit of objective job descriptions. We think such a factual situation lends itself to the analysis concerning the burden of proof explicated in the Johnson opinion. Accordingly, on remand the initial burden will be on the individual diserimina-tee to show that he was available for promotion and possessed the general characteristics and qualifications which are shown by Savannah to be possessed by the higher paid white employees and are job related. Once this burden is met, the employer must demonstrate by clear and convincing evidence that any particular employee would have never been advanced because of that individual’s particular lack of qualifications for a more difficult position or for other good and sufficient reasons such employee would never have been promoted. It is apparent that whether any particular individual would have been advanced under a color-blind system cannot now be determined with 100% certainty. The court on remand will have to deal with probabilities. Any substantial doubts created by this task must be resolved in favor of the discriminatee who has produced evidence to establish a pri-ma facie case. The discriminatee is the innocent party in these circumstances.

Ill

Next, we are confronted with the issue of whether the district court erred in holding that Baxter was not promoted to the position of (relief) boiler room operator because he was not qualified to perform the duties required by that higher paying job. Our standard of review for resolving this alleged error has been adequately enunciated:

We review findings of fact in Title VII cases in the same manner as other fact findings of the trial court are reviewed. This Court may not set them aside unless it is able to conclude that such findings are “clearly erroneous.”

It is not our function to reverse a trial court’s determination of the facts unless we can conclude that there are insufficient facts in the record to support its ultimate conclusions. A review of this record demonstrates that sufficient evidence was introduced from which the trial court could infer that Baxter was not qualified to participate in the training program leading to the position of boiler room operator (relief).

Baxter has been employed as an electrician’s helper in the refinery’s electric shop since July 1, 1957. On September 7, 1959, he was assigned added duties as a relief helper in the refinery’s boiler room. The boiler room is the heart of Savannah’s sugar refining operation. It generates the vital energies necessary for the sugar production process. Because of its critical function, Savannah is required to operate the boiler room generators on a 24-hour, seven-day-week basis. To provide for this extended operation, it is necessary to have relief workers who can replace the regular boiler room employees on weekends and during emergency situations.

There are two positions in the boiler room; operator (or foreman) and helper. Concomitantly, two relief positions are also needed. The district court noted the complex tasks which must be performed by an operator. This observation is fully supported by the record. Indeed, Savannah requires a six-month training program for the new operators in the boiler room. The court further found that the position of helper did not prepare one to assume the duties of operator because each position required substantially different skills.

The trial court further concluded that a mechanical background was necessary to assume the job of boiler room operator and that the men advanced to that position “were significantly better qualified and possessed superior mechanical backgrounds than [Baxter] for the job of foreman or relief foreman in the boiler room.” Significance was additionally placed on the fact that Baxter had received some unfavorable work ratings from his supervisors for infractions of company rules and for failure to adequately perform his duties.

In 1965, following the enactment of Title VII, Baxter requested a promotion to the relief operator’s position from his current job as relief helper. In contravention of Baxter’s request, the company promoted Joseph Brinson, a white employee, to the position of relief operator in November of that year. The company justified Brinson’s appointment on the ground that he had superior educational and mechanical background compared to the other prospective promotees. In December of 1965, the company assigned John Andrews, a white, to the position of relief operator (trainee). On January 1, 1966, Savannah promoted Euless Hodges, a white, to the regular operator’s position. Hodges had performed for several years as relief operator prior to his appointment. Thereafter, Baxter filed his charge with the EEOC. Subsequently, the company assigned another white, Dennis Holiday to be a relief operator in April of 1967. Finally, in June of 1968, following the institution of this suit, Savannah assigned the first black man, Frank Williams, to the position of relief operator. The evidence shows that with the exception of Williams, all relief operators and regular operators have been white. All the helpers have been black.

In considering the treatment accorded Baxter by the company, we cannot ignore Savannah’s history of racial discrimination and thus must review the actions taken against Baxter within this context. Furthermore, it is apparent that the company did not welcome Baxter’s suit. In fact, the record shows that little concrete action was taken to remove the past discriminatory practices until Baxter’s suit was filed. We can only conclude that this suit was the partial impetus for the company’s various affirmative actions and could have possibly colored some of the negative ones taken against Baxter.

It is apparent from Baxter’s testimony at trial, that his real grievance was that the company allegedly discriminated against him in not granting him the right to participate in the operator’s training program. He readily admitted that he did not possess the skills necessary to perform the operator’s jobs. However, his admission was based on the fact that he was never permitted to gain these skills from the training program which is required of all operators.

The primary justification for excluding Baxter from the training program was his lack of a mechanical background and poor attitude evidenced by various infractions of company rules. Pretermitting the issue of Baxter’s attitude and work record following the institution of this suit, the evidence does support the trial court’s conclusions that mechanical expertise and skills are a necessary job trait and qualification for the performance of the duties of relief operator in the boiler room. Those employees who have performed the duties of operator in the best and most efficient manner have possessed a meehanical background. Mechanical expertise is necessary to respond intelligently to the demands of the boiler room. The record reveals that Baxter had not gained this needed skill in his position as an electrician’s helper and therefore could be properly excluded from consideration as a relief operator. Of course, our holding does not preclude proof from other blacks who do possess a mechanical background and other appropriate qualifications from proving that they were the victims of discrimination in being excluded from this predominantly all-white position on remand. Accordingly, that part of the trial court’s judgment denying relief to Baxter is affirmed.

IV

In view of the fact that it is necessary to remand this case for further proceedings by the district court, we deem it appropriate to set aside the award of attorney’s fees made at trial in order to allow further consideration of that subject in the district court. The district court awarded $12,500 in attorney’s fees to the four participating attorneys who represented Baxter in various stages of the litigation in the district court. The four attorneys claimed that they had expended over a substantial amount of time in preparing and trying the instant case. Based on the time claimed the award of $12,500 amounts to an average remuneration of approximately $22.50 an hour.

First, there appears to be no dispute as to the number of hours which were spent by counsel on Baxter’s behalf. There is a suggestion that some of the work performed by counsel for Baxter was duplicitous because of a change in counsel during the preparation stages of the litigation. Other grounds are presented by Savannah to support the award. However, we have no way of knowing the underlying reason for limiting the award to $12,500 since the district court gave none. We are aware of the rule that an award of attorneys’ fees is left to the sound discretion of the trial judge. The silence of the district court prevents us from determining whether there was a proper exercise of discretion in the instant case.

It is obvious that additional work will be required of counsel upon remand. We believe a determination of adequate compensation should be made by the district court when the case is finally concluded. If conditions warrant, an interim award may be granted. There is evidence in the record which tends to support the claim that the award of $22.50 per hour is low.

Many equitable considerations are involved in awarding attorney’s fees in a Title VII suit and for that reason we will not undertake to fix a rate of compensation in this opinion. The district court should have before it information as to charges generally made by counsel for litigants in this type of controversy in the Southern District of Georgia. We would not suggest that the highest or the lowest rate should be awarded. Due to the nature of public rights being vindicated, the award should be in such an amount to insure that attorneys will undertake representation in this type of case.

Affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion.

Affirmed in part and reversed and remanded in part.

      . See 350 F.Supp. 139 (S.D.Ga.1972). Savannah has not cross-appealed from the injunctive relief granted below.

      . Sanders v. Dobbs Houses, 431 F.2d 1097 (5th Cir. 1971).

      . There can be no question about the impropriety of a promotional system dependent upon supervisory recommendations uncontrolled by clearly delineated and objective job criteria where the discriminatees have demonstrated a conclusive case of discriminatory job standards. Such a system is patently illegal under Title VII. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 pp. 240-243 (5th Cir. 1974) [No. 73-1163, April 29, 1974] pp. 3244, 3298-3303.

      . 350 F.Supp. at 144.

      . See United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971).

      . 350 F.Supp. at 144-145. (Emphasis added).

      . 350 F.Supp. at 146. Additionally, the court recited various observations about the relevant standing of the refinery’s employment practices in comparison with other industries in the area. Id. However laudatory these practices and accomplishments may be, we do not consider them determinative of Baxter’s claim of employment discrimination.

      . Id. at 146.

      . 491 F.2d 1364 (5th Cir. 1974). The district court did not have the benefit of the holding in Johnson when it rendered its opinion.

      . 491 F.2d 1364, 1376 (footnotes omitted). See also Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 pp. 251-263 (5th Cir. 174) [No. 73-1163, April 29, 1974] pp. 3244, 3317-3341.

      . Compare United States v. Jacksonville Terminal Co., 451 F.2d 418, 441 (5th Cir. 1971).

      . Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1379-1380 (5th Cir. 1974).

      . For further suggestions which may possibly aid the parties on remand, see Davidson, “Back Pay” Awards Under Title VII of the Civil Rights Act of 1964, 26 Rutgers L.Rev. 741 (1973).

      . 350 F.Supp. at 143.

      . Smith v. Delta Airlines, Inc., 486 F.2d 512, 514 (5th Cir. 1973).

      . Specifically the court found :
      The plaintiff has been given written warnings on four occasions for failure to perform his work properly and for violation of plant rules. He has an unfavorable personnel record and what is considered a bad attitude toward his work, as evidenced by the • testimony of numerous witnesses and his demeanor in the courtroom. He has been given the opportunity on three different occasions to transfer into the boiler room as a regular helper, but has refused the transfer on each occasion. Moreover, plaintiff does not have a mechanical background as do all the four men promoted to the position of boiler room foreman or trained as relief foreman since the effective date of the Act. Each of those promoted had significantly better qualifications than plaintiff. The Court finds that the defendant has not discriminated against the individual plaintiff because of his race in failing to promote him to the position of boiler room foreman or relief foreman.
      350 E.Supp. at 143.

      . The record does not show Brinson’s educational attainment but it does reveal that Brinson had formerly been a packaging department mechanic. In June of 1966, Brin-son was given the regular operator’s position.

      . We wish to make clear the fact that our holding today as to the claim of Baxter with respect to the position of (relief) boiler room operator relates only to that position. If he is able to establish promotional discrimination in any other area of his employment, he may do so in accordance with the standards„outlined in this opinion.

      . Weeks v. Southern Bell Telephone & Telegraph Co., 467 F.2d 95, 97 (5th Cir. 1972).

      . For an exhaustive list of the factors which a district court in the Fifth Circuit should consider in awarding attorneys’ fees, see Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

      . See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968).