author: Mr. Justice Powell Mr. Justice Douglas,

text:
    GAGNON, WARDEN v. SCARPELLI
    No. 71-1225.
    Argued January 9, 1973
    Decided May 14, 1973
    Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a statement dissenting in part, post, p. 791.

      William, A. Platz, Assistant Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs was Robert W. Warren, Attorney General.

      William M. Coffey, by appointment of the Court, 408 U. S. 921, argued the cause and filed a brief for respondent.
   Mr. Justice Powell

delivered the opinion of the Court.

This case presents the related questions whether a previously sentenced probationer is entitled to a hearing when his probation is revoked and, if so, whether he is entitled to be represented by appointed counsel at such a hearing.

I

Respondent, Gerald Scarpelli, pleaded guilty in July 1965, to a charge of armed robbery in Wisconsin. The trial Judge sentenced him to 15 years’ imprisonment, but suspended the sentence and placed him on probation for seven years in the custody of the Wisconsin Department of Public Welfare (the Department). At that time, he signed an agreement specifying the terms of his probation and a “Travel Permit and Agreement to Return” allowing him to reside in Illinois, with supervision there under an interstate compact. On August 5, 1965, he was accepted for supervision by the Adult Probation Department of Cook County, Illinois.

On August 6, respondent was apprehended by Illinois police, who had surprised him and one Fred Kleckner, Jr., in the course of the burglary of a house. After being apprised of his constitutional rights, respondent admitted that he and Kleckner had broken into the house for the purpose of stealing merchandise or money, although he now asserts that his statement was made under duress and is false. Probation was revoked by the Wisconsin Department on September 1, without a hearing. The stated grounds for revocation were that:

“1. [Scarpelli] has associated with known criminals, in--direct violation of his probation regulations and his supervising agent’s instructions;
“2. [Scarpelli,] while associating with a known criminal, namely Fred Kleckner, Jr., was involved in, and arrested for, a burglary ... in Deerfield, Illinois.” App. 20.

On September 4, 1965, he was incarcerated in the Wisconsin State Reformatory at Green Bay to begin serving the 15 years to which he had been sentenced by the trial judge. At no time was he afforded a hearing.

Some three years later, on December 16, 1968, respondent applied for a writ of habeas corpus. After the petition had been filed, but before it had been acted upon, the Department placed respondent on parole. The District Court found that his status as parolee was sufficient custody to confer jurisdiction on the court and that the petition was not moot because the revocation carried “collateral consequences,” presumably including the restraints imposed by his parole. On the merits, the District Court held that revocation without a hearing and counsel was a denial of due process. 317 F. Supp. 72 (ED Wis. 1970). The Court of Appeals affirmed sub nom. Gunsolus v. Gagnon, 454 F. 2d 416 (CA7 1971), and we granted certiorari. 408 U. S. 921 (1972).

II

Two prior decisions set the bounds of our present inquiry. In Mempa v. Rhay, 389 U. S. 128 (1967), the Court held that a probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing. Reasoning that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” id., at 134, and that sentencing is one such stage, the Court concluded that counsel must be provided an indigent at sentencing even when it is accomplished as part of a subsequent probation revocation proceeding. But this line of reasoning does not require a hearing or counsel at the time of probation revocation in a case such as the present one, where the probationer was sentenced at the time of trial.

Of greater relevance is our decision last Term in Morrissey v. Brewer, 408 U. S. 471 (1972). There we held that the revocation of parole is not a part of a criminal prosecution.

“Parole arises after the end of the criminal prosecution, including imposition of sentence. . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id., at 480.

Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.

Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra.

III

The second, and more difficult, question posed by this case is whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings. In answering that question, we draw heavily on the opinion in Morrissey. Our first point of reference is the character of probation or parole. As noted in Morrissey regarding parole, the “purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able . . . .” 408 U. S., at 477. The duty and attitude of the probation or parole officer reflect this purpose:

“While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large concern for the client dominates his professional attitude. The parole agent ordinarily defines his role as representing his client’s best interests as long as these do not constitute a threat to public safety.”

Because the probation or parole officer’s function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, he has been entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and has been armed with the power to recommend or even to declare revocation.

In Morrissey, we recognized that the revocation decision has two analytically distinct components:

“The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?” 408 U. S., at 479-480.

The parole officer’s attitude toward these decisions reflects the rehabilitative rather than punitive focus of the probation/parole system:

“Revocation ... is, if anything, commonly treated as a failure of supervision. While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail.”

But an exclusive focus on the benevolent attitudes of those who administer the probation/parole system when it is working successfully obscures the modification in attitude which is likely to take place once the officer has decided to recommend revocation. Even though the officer is not by this recommendation converted into a prosecutor committed to convict, his role as counsellor to the probationer or parolee is then surely compromised.

When the officer’s view of the probationer’s or parolee’s conduct differs in this fundamental way from the latter’s own view, due process requires that the difference be resolved before revocation becomes final. Both the probationer or parolee and the State have interests in the accurate finding of fact and the informed use of discretion — the probationer or parolee to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.

It was to serve all of these interests that Morrissey mandated preliminary and final revocation hearings. At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing. 408 U. S., at 487. The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the “minimum requirements of due process” include very similar elements:

“(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finders as to the evidence relied on and reasons for revoking [probation or] parole.” Morrissey v. Brewer, supra, at 489.

These requirements in themselves serve as substantial protection against ill-considered revocation, and petitioner argues that counsel need never be supplied. What this argument overlooks is that the effectiveness of the rights guaranteed by Morrissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess. Despite the informal nature of the proceedings and the absence of technical rules of procedure or evidence, the unskilled or uneducated probationer or parolee may well have difficulty in presenting his version of a disputed set of facts where the presentation requires the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence.

By the same token, we think that the Court of Appeals erred in accepting respondent’s contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases. While such a rule has the appeal of simplicity, it would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel. In most cases, the probationer or parolee has been convicted of committing another crime or has admitted the charges against him. And while in some cases he may have a justifiable excuse for the violation or a convincing reason why revocation is not the appropriate disposition, mitigating evidence of this kind is often not susceptible of proof or is so simple as not to require either investigation or exposition by counsel.

The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself, aptly described in Morrissey as being “predictive and discretionary” as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpunitive rehabilitation. Certainly, the decisionmaking process will be prolonged, and the financial cost to the State — for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review — will not be insubstantial.

In some cases, these modifications in the nature of the revocation hearing must be endured and the costs borne because, as we have indicated above, the probationer’s or parolee’s version of a disputed issue can fairly be represented only by a trained advocate. But due process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.

In so concluding, we are of course aware that the case-by-case approach to the right to counsel in felony prosecutions adopted in Betts v. Brady, 316 U. S. 455 (1942), was later rejected in favor of a per se rule in Gideon v. Wainwright, 372 U. S. 335 (1963). See also Argersinger v. Hamlin, 407 U. S. 25 (1972). We do not, however, draw from Gideon and Argersinger the conclusion that a case-by-case approach to furnishing counsel is necessarily inadequate to protect constitutional rights asserted in varying types of proceedings: there are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.

In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole. The need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases.

The differences between a criminal trial and a revocation hearing do not dispose altogether of the argument that under a case-by-case approach there may be cases in which a lawyer would be useful but in which none would be appointed because an arguable defense would be uncovered only by a lawyer. Without denying that there is some force in this argument, we think it a sufficient answer that we deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.

We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel. We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.

It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

IV

We return to the facts of the present case. Because respondent was not afforded either a preliminary hearing or a final hearing, the revocation of his probation did not meet the standards of due process prescribed in Morrissey, which we have here held applicable to probation revocations. Accordingly, respondent was entitled to a writ of habeas corpus. On remand, the District Court should allow the State an opportunity to conduct such a hearing. As to whether the State must provide counsel, respondent’s admission to having committed another serious crime creates the very sort of situation in which counsel need not ordinarily be provided. But because of respondent’s subsequent assertions regarding that admission, see supra, at 780, we conclude that the failure of the Department to provide respondent with the assistance of counsel should be re-examined in light of this opinion. The general guidelines outlined above should be applied in the first instance by those charged with conducting the revocation hearing.

Affirmed in part, reversed in part, and remanded.

Mr. Justice Douglas,

dissenting in part.

I believe that due process requires the appointment of counsel in this case because of the claim that respondent’s confession of the burglary was made under duress. See Morrissey v. Brewer, 408 U. S. 471, 498 (opinion of Douglas, J.).

       The Court’s order placing respondent on probation provided, among other things, that “[i]n the event of his failure to meet the conditions of his probation he will stand committed under the sentence all ready [sic] imposed.” App. 10. The agreement specifying the conditions of the probation, duly executed by respondent, obligated him to “make a sincere attempt to avoid all acts which are forbidden by law . . . .” App. 12.

       Respondent was initially paroled to a federal detainer to serve a previously imposed federal sentence arising from another conviction. He was subsequently released from federal custody, but remains a parolee under the supervision of the Department.

       Despite the undoubted minor differences between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole. See, e. g., Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Calif. L. Rev. 1215, 1241-1243 (1971); Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J. Crim. L. C. & P. S. 175, 198 n. 182 (1964).

       It is clear at least after Morrissey v. Brewer, 408 U. S. 471 (1972), that a probationer can no longer be denied due process, in reliance on the dictum in Escoe v. Zerbst, 295 U. S. 490, 492 (1935), that probation is an “act of grace.”

       Petitioner argues, in addition, that the Morrissey hearing requirements impose serious practical problems in cases such as the present one in which a probationer or parolee is allowed to leave the convicting State for supervision in another State. Such arrangements are made pursuant to an interstate compact adopted by all of the States, including Wisconsin. Wis. Stat. Ann. §57.13 (1957). Petitioner’s brief asserts that as of June 30, 1972, Wisconsin had a total of 642 parolees and probationers under supervision in other States and that incomplete statistics as of June 30,1971, indicated a national total of 24,693 persons under out-of-state supervision. Brief for Petitioner 21-22.
      Some amount of disruption inevitably attends any new constitutional ruling. We are confident, however, that modification of the interstate compact can remove without undue strain the more serious technical hurdles to compliance with Morrissey. An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses. Petitioner’s greatest concern is with the difficulty and expense of procuring witnesses from perhaps thousands of miles away. While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.

       In Morrissey v. Brewer, we left open the question “whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.” 408 U. S., at 489. Since respondent did not attempt to retain counsel but asked only for appointed counsel, we have no occasion to decide in this case whether a probationer or parolee has a right to be represented at a revocation hearing by retained counsel in situations other than those where the State would be obliged to furnish counsel for an indigent.

       F. Remington, D. Newman, E. Kimball, M. Melli & H. Goldstein, Criminal Justice Administration, Materials and Cases 910-911 (1969).

       The factors entering into these decisions relate in major part to a professional evaluation, by trained probation or parole officers, as to the overall social readjustment of the offender in the community, and include consideration of such variables as the offender’s relationship toward his family, his attitude toward the fulfillment of financial obligations, the e:xtent of his cooperation with the probation or parole officer assigned to his case, Ms personal associations, and — of course — whether there have been specific and sigmficant violations of the conditions of the probation or parole. The importance of these considerations, some factual and others entirely judgmental, is illustrated by a Wisconsin empirical study which disclosed that, in the sample studied, probation or parole was revoked in only 34.5% of the cases in which the probationer or parolee violated the terms of Ms release. S. Hunt, The Revocation Decision: A Study of Probation and Parole Agents’ Discretion 10 (unpublished thesis on file at the library of the University of Wisconsin) (1964), cited in Brief for Petitioner, Addendum 106.

       Remington, Newman, Kimball, Melli & Goldstein, supra, n. 7, at 910.

       See Sklar, supra, n. 3, at 192 (parole), 193 (probation).

       The scope of the practical problem which would be occasioned by a requirement of counsel in all revocation cases is suggested by the fact that in the mid-1960’s there was an estimated average of 20,000 adult felony parole revocations and 108,000 adult probation revocations each year. President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 56 n. 28 (1967).

       Cf. In re Gault, 387 U. S. 1 (1967), establishing a juvenile’s right to appointed counsel in a delinquency proceeding which, while denominated civil, was functionally akin to a criminal trial. A juvenile charged with violation of a generally applicable statute is differently situated from an already-convicted probationer or parolee, and is entitled to a higher degree of protection. See In re Winship,
        397 U. S. 358 (1970) (the standard of proof in a juvenile delinquency-proceeding must be “proof beyond a reasonable doubt”).


source: Caselaw Access Project

author: Mr. Justice Powell

license: Public Domain

text:
    McDONNELL DOUGLAS CORP. v. GREEN
    No. 72-490.
    Argued March 28, 1973
    Decided May 14, 1973

      Powell, J., delivered the opinion for a unanimous Court.

      Veryl L. Riddle argued the cause for petitioner. With him on the briefs were R. H. McRoberts and Thomas C. Walsh.

      Louis Gilden argued the cause for respondent. With him on the brief were Jack Greenberg, James M. Nabrit III, William L. Robinson, and Albert Rosenthal.

         Milton A. Smith and Lawrence M. Cohen filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.

        Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Keith A. Jones, David L. Rose, Julia P. Cooper, and Beatrice Rosenberg filed a brief for the United States as amicus curiae urging affirmance.

   Mr. Justice Powell

delivered the opinion of the Court.

The case before us raises significant questions as to the proper order and nature of proof in actions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq.

Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 1964 when he was laid off in the course of a general reduction in petitioner’s work force.

Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner’s plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent’s participation in, the “stall-in” as follows:

“[F]ive teams, each consisting of four cars would 'tie up’ five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour.
“Acting under the 'stall in’ plan, plaintiff [respondent in the present action] drove his car onto Brown Road, a McDonnell access road, at approximately 7:00 a. m., at the start of the morning rush hour. Plaintiff was aware of the traffic problems that would result. He stopped his car with the intent to block traffic. The police arrived shortly and requested plaintiff to move his car. He refused to move his car voluntarily. Plaintiff’s car was towed away by the police, and he was arrested for obstructing traffic. Plaintiff pleaded guilty to the charge of obstructing traffic and was fined.” 318 F. Supp. 846, 849.

On July 2, 1965, a “lock-in” took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner’s employees, from leaving. Though respondent apparently knew beforehand of the “lock-in,” the full extent of his involvement remains uncertain.

Some three weeks following the “lock-in,” on July 25, 1965, petitioner publicly advertised for qualified mechanics, respondent’s trade, and respondent promptly applied for re-employment. Petitioner turned down respondent, basing its rejection on respondent’s participation in the “stall-in” and “lock-in.” Shortly thereafter, respondent filed a formal complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement, in violation of §§ 703 (a)(1) and 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-2 (a)(1) and 2000e-3 (a). The former section generally prohibits racial discrimination in any employment decision while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.

The Commission made no finding on respondent’s allegation of racial bias under §703 (a)(1), but it did find reasonable cause to believe petitioner had violated § 704 (a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccessfully attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a civil action in federal court within 30 days.

On April 15, 1968, respondent brought the present action, claiming initially a violation of § 704 (a) and, in an amended complaint, a violation of § 703 (a)(1) as well. The District Court dismissed the latter claim of racial discrimination in petitioner’s hiring procedures on the ground that the Commission had failed to make a determination of reasonable cause to believe that a violation of that section had been committed. The District Court also found that petitioner’s refusal to rehire respondent was based solely on his participation in the illegal demonstrations and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected “such activity as employed by the plaintiff in the ‘stall in’ and ‘lock in’ demonstrations.” 318 F. Supp., at 850.

On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under § 704 (a), but reversed the dismissal of respondent’s § 703 (a)(1) claim relating to racially discriminatory hiring practices, holding that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court ordered the case remanded for trial of respondent’s claim under § 703 (a)(1).

In remanding, the Court of Appeals attempted to set forth standards to govern the consideration of respondent’s claim. The majority noted that respondent had established a prima facie case of racial discrimination; that petitioner’s refusal to rehire respondent rested on “subjective” criteria which carried little weight in rebutting charges of discrimination; that, though respondent’s participation in the unlawful demonstrations might indicate a lack of a responsible attitude toward performing work for that employer, respondent should be given the opportunity to demonstrate that petitioner’s reasons for refusing to rehire him were mere pretext. In order to clarify the standards governing the disposition of an action challenging employment discrimination, we granted certiorari, 409 U. S. 1036 (1972).

I

We agree with the Court of Appeals that absence of a Commission finding of reasonable cause cannot bar suit under an appropriate section of Title VII and that the District Judge erred in dismissing respondent’s claim of racial discrimination under §703 (a)(1). Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission’s statutory notice of the right to sue, 42 U. S. C. §§ 2000e-5 (a) and 2000e-5 (e). The Act does not restrict a complainant’s right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts. The Commission itself does not consider the absence of a “reasonable cause” determination as.providing employer immunity from similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, “court actions under Title VII are de novo proceedings and ... a Commission 'no reasonable cause’ finding does not bar a lawsuit in the case.” Robinson v. Lorillard Corp., 444 F. 2d 791, 800 (CA4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F. 2d 1136 (CA5 1971); Flowers v. Local 6, Laborers International Union of North America, 431 F. 2d 205 (CA7 1970); Fekete v. U. S. Steel Corp., 424 F. 2d 331 (CA3 1970).

Petitioner argues, as it did below, that respondent sustained no prejudice from the trial court’s erroneous ruling because in fact the issue of racial discrimination in the refusal to re-employ “was tried thoroughly” in a trial lasting four days with “at least 80% ” of the questions relating to the issue of “race.” Petitioner, therefore, requests that the judgment below be vacated and the cause remanded with instructions that the judgment of the District Court be affirmed. We cannot agree that the dismissal of- respondent’s § 703 (a)(1) claim was harmless error. It is not clear that the District Court’s findings as to respondent’s § 704 (a) contentions involved the identical issues raised by his claim under § 703 (a) (1). The former section relates solely to discrimination against an applicant or employee oh account of his participation in legitimate civil rights activities or protests, while the latter section deals with the broader and centrally important question under the Act of whether, for any reason, a racially discriminatory employment decision has been made. Moreover, respondent should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the § 703 (a)(1) cause of action was properly before the District Court. Accordingly, we remand the case for trial of respondent’s claim of racial discrimination consistent with the views set forth below.

II

The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U. S. 424, 429 (1971); Castro v. Beecher, 459 F. 2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F. 2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va. 1968). As noted in Griggs, supra:

“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id., at 430-431.

There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.

In this case respondent, the complainant below, charges that he was denied employment “because of his involvement in civil rights activities” and “because of his race and color.” Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case. We now address this problem.

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. 463 F. 2d 337, 353. Petitioner sought mechanics, respondent’s trade, and continued to do so after respondent’s rejection. Petitioner, moreover, does not dispute respondent’s qualifications and acknowledges that his past work performance in petitioner’s employ was “satisfactory.”

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. We need not attempt in the instant case to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.

_The Court of Appeals., intimated, ..however,. that petitioner’s stated reason for refusing to rehire respondent was a~‘fsubjective’’ rather than objective criterjpmwhjch “earn [ ies] little weight jn rebutting charges of. discrimination” 463 F. 2d, at 352, This was among the statements which caused the dissenting judge to read the opinion as taking “the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved . . . .” Id., at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned “stall-in,” designed to tie up access to and egress from petitioner’s plant at a peak traffic hour. Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it. In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained an employer’s factory buildings in an illegal sit-down strike, the Court noted pertinently:

“We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, — to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property .... Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression.” NLRB v. Fansteel Corp., 306 U. S. 240, 255 (1939).

Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title YII does not, without more, compel rehiring of respondent, neither does, it .permit petitioner to use respondent’s conduct asa pretext fot the sort of discrimination prohibited by § 703~(a) (1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the “stall-in” were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.

Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner’s treatment of respondent during his prior term of employment; petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and practice with respect to minority employment. On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F. 2d 245 (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972). In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.

The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the Court stated: “If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” 401 U. S., at 431. But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Id., at 430. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant’s personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of “artificial, arbitrary, and unnecessary barriers to employment” which the Court found to be the intention of Congress to remove. Id., at 431.

III

In sum, respondent should have been allowed to pursue his claim under §703 (a)(1). If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a prima facie case of racial discrimination and that petitioner successfully rebutted that case. But this does not end the matter. On retrial, respondent must be afforded a fair opportunity to demonstrate that petitioner’s assigned reason for refusing to re-employ was a pretext or discriminatory in its application. If the District Judge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner’s refusal to rehire must stand.

The judgment is vacated and the cause is hereby remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

       His employment during these years was continuous except for 21 months of service in the military.

       The Court of Appeals noted that respondent then “filed formal complaints of discrimination with the President's Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights.” 463 E. 2d 337, 339 (1972).

       The “lock-in” occurred during a picketing demonstration by ACTION, a civil rights organization, at the entrance to a downtown office building which housed a part of petitioner’s offices and in which certain of petitioner’s employees were working at the time. A chain and padlock were placed on the front door of the building to prevent ingress and egress. Although respondent acknowledges that he was chairman of ACTION at the time, that the demonstration was planned and staged by his group, that he participated in and indeed was in charge of the picket line in front of the building, that he was told in advance by a member of ACTION “that he was planning to chain the front door,” and that he “approved of” chaining the door, there is no evidence that respondent personally took part in the actual “lock-in,” and he was not arrested. App. 132-133.
      The Court of Appeals majority, however, found that the record did “not support the trial court’s conclusion that Green ‘actively cooperated’ in chaining the doors of the downtown St. Louis building during the ‘lock-in’ demonstration.” 463 F. 2d, at 341. See also concurring opinion of Judge Lay. Id., at 345. Judge Johnsen, in dissent, agreed with the District Court that the “chaining and padlocking [were] carried out as planned, [and that] Green had in fact given it . . . approval and authorization.” Id., at 348.
      In view of respondent’s admitted participation in the unlawful “stall-in,” we find it unnecessary to resolve the contradictory contentions surrounding this “lock-in.”

         Section 703 (a)(1) of the Civil Rights Act of 1964, 42 U. S. C. §2000e-2 (a)(1), in pertinent part provides:
      “It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”
      Section 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. §2000e-3 (a), in pertinent part provides:
      “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . . .”

       Respondent also contested the legality of his 1964 discharge by petitioner, but both courts held this claim barred by the statute of limitations. Respondent does not challenge those rulings here.

       Respondent has not sought review of this issue.

       All references here are to Part V of the revised opinion of the Court of Appeals, 463 F. 2d, at 352, which superseded Part V of the court’s initial opinion with respect to the order and nature of proof.

       Tr. of Oral Arg. 11.

       Brief for Petitioner 40.

       The trial court did not discuss respondent’s §703 (a)(1) claim in its opinion and denied requests for discovery of statistical materials which may have been relevant to that claim.

       The respondent initially charged petitioner in his complaint filed April 15, 1968, with discrimination because of his “involvement in civil rights activities.” App. 8. In his amended complaint, filed March 20, 1969, plaintiff broadened his charge to include denial of employment because of race in violation of §703 (a)(1). App. 27.

       See original opinion of the majority of the panel which heard the case, 463 F. 2d, at 338; the concurring opinion of Judge Lay, id., at 344; the first opinion of Judge Johnsen, dissenting in part, id., at 346; the revised opinion of the majority, id., at 352; and the supplemental dissent of Judge Johnsen, id., at 353. A petition for rehearing en banc was denied by an evenly divided Court of Appeals.

       The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.

       We note that the issue of what may properly be used to test qualifications for employment is not present in this case. Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be “shown to bear a demonstrable relationship to successful performance of the jobs” for which they were used, Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). Castro v. Beecher, 459 F. 2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F. 2d 1167 (CA2 1972).

       Tr. of Oral Arg. 3; 463 F. 2d, at 353.

       The trial judge noted that no personal injury or property damage resulted from the “stall-in” due “solely to the fact that law enforcement officials had obtained notice in advance of plaintiff’s [here respondent’s] demonstration and were at the scene to remove plaintiff’s car from the highway.” 318 F. Supp. 846, 851.

         The unlawful activity in this case was directed specifically against petitioner. We need not consider or decide here whether, or under what circumstances, unlawful activity not directed against the particular employer may be a legitimate justification for refusing to hire.

       We are aware that some of the above factors were, indeed, considered by the District Judge in finding under §704 (a), that “defendant’s [here petitioner’s] reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff’s participation in the 'stall in’ and ‘lock in’ demonstrations.” 318 F. Supp., at 850. We do not intimate that this finding must be overturned after consideration on remand of respondent’s §703 (a)(1) claim. We do, however, insist that respondent under §703 (a)(1) must be given a full and fair opportunity to demonstrate by competent evidence that whatever the stated reasons for his rejection, the decision was in reality racially premised.

       The District Court may, for example, determine, after reasonable discovery that “the [racial] composition of defendant’s labor force is itself reflective of restrictive or exclusionary practices.” See Blumrosen, supra, at 92. We caution that such general determinations, while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire. See generally United States v. Bethlehem Steel Corp., 312 F. Supp. 977, 992 (WDNY 1970), order modified, 446 F. 2d 652 (CA2 1971). Blumrosen, supra, n. 19, at 93.

       See 463 F. 2d, at 352.

       It is, of course, a predictive evaluation, resistant to empirical proof, whether “an applicant’s past participation in unlawful conduct directed at his prospective employer might indicate the applicant’s lack of a responsible attitude toward performing work for that employer.” 463 F. 2d, at 353. But in this case, given the seriousness and harmful potential of respondent’s participation in the “stall-in” and the accompanying inconvenience to other employees, it cannot be said that petitioner’s refusal to employ lacked a rational and neutral business justification. As the Court has noted elsewhere: “Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.” Garner v. Los Angeles Board, 341 U. S. 716, 720 (1951).


text:
    March 23, 1973
    No. A-968 (72-1290).
    Bufalino v. Immigration and Naturalization Service.
   C. A. 3d Cir. Application for stay of deportation presented to Mr. Justice Brennan, and by him referred to the Court, denied.

Mr. Justice Marshall took no part in the consideration or decision of this application.


text:
    No. A-969.
    Baker et al. v. New York.
   C. A. 2d Cir. Application for stay presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    March 26, 1973
    No. 72-1236.
    Ponder v. Louisiana State Bar Assn.
   Sup. Ct. La. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    No. 72-1070.
    Binkowski v. Miller et al.
   Affirmed on appeal from D. C. E. D. Mich.


text:
    No. 72-1082.
    Benners, Executrix v. City of University Park.
   Appeal from Sup. Ct. Tex. dismissed for want of substantial federal question.


text:
    No. 71-6693.
    Reed et al. v. City of New Orleans.
   Sup. Ct. La. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for reconsideration in light of Argersinger v. Hamlin, 407 U. S. 26 (1972).

Mr. Justice Douglas would grant certiorari and reverse the judgment.


text:
    No. 72-6484.
    George v. Louisiana.
   Sup. Ct. La. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated insofar as it leaves undisturbed the death penalty imposed, and case remanded for further proceedings. See Stewart v. Massachusetts, 408 U. S. 845 (1972).


text:
    No. A-920 (72-1004).
    Bethlehem Steel Corp. v. Williamson et al.
   Application to vacate stay heretofore granted by the United States Court of Appeals for the Second Circuit presented to Mr. Justice Marshall, and by him referred to the Court, granted.


text:
    No. 40, Orig.
    Pennsylvania v. New York et al.
   It is hereby ordered that John F. Davis, the Special Master appointed in this cause, having completed his duties, is hereby discharged.

It is further ordered that his expenditures in preparing the supplemental report in amount of One Hundred Four Dollars ($104) are approved.

It is further ordered that the compensation for services of the Special Master in the supplementary proceedings be fixed at One Thousand Dollars ($1,000) and that that amount plus the approved expenditures shall be paid to him by Western Union out of the funds in its possession which are the subject of this suit and that Western Union be given credit for that amount divided pro rata among the parties who would otherwise be entitled to the money under the opinion and decree of this Court. [For earlier orders herein, see, e. g., 410 U. S. 977.]


text:
    No. 71-6278.
    Almeida-Sanchez v. United States.
   C. A. 9th Cir. [Certiorari granted, 406 U. S. 944.] Motion of Prison Research Council for the University of Pennsylvania for leave to file an untimely brief as amicus curiae denied. Motion for appointment of counsel granted. It is ordered that John J. Cleary, Esquire, of San Diego, California, a member of the Bar of this Court, be, and he is hereby, appointed to serve as co-counsel for petitioner in this case.


text:
    No. 71-6732.
    Chaffin v. Stynchcombe, Sheriff.
   C. A. 5th Cir. [Certiorari granted, 409 U. S. 912.] Motion of the Attorney General of Tennessee for leave to file a brief as amicus curiae after argument granted.


text:
    No. 72-394.
    No. 72-414.
    No. 72-555.
    No. 72-666.
    No. 72-528.
    Weinberger, Secretary of Health, Education, and Welfare, et al. v. Hynson, Westcott & Dunning, Inc.; Hynson, Westcott & Dunning, Inc. v. Weinberger, Secretary of Health, Education, and Welfare, et al.; Weinberger, Secretary of Health, Education, and Welfare, et al. v. Bentex Pharmaceuticals, Inc., et al.; USV Pharmaceutical Corp. v. Weinberger, Secretary of Health, Education, and Welfare, et al. CIBA Corp. v. Weinberger, Secretary of Health, Education, and Welfare, et al.
   C. A. 4th Cir.; and

C. A. 3d Cir. [Certiorari granted, 409 U. S. 1105.] Motion of Bentex Pharmaceuticals, Inc., et al., for additional time for oral argument denied.


text:
    No. 72-624.
    United States v. Pennsylvania Industrial Chemical Corp.
   C. A. 3d Cir. [Certiorari granted, 409 U. S. 1074]. Motions of Jones & Laughlin Steel Corp. and Chamber of Commerce of the United States for leave to participate in oral argument as amici curiae denied.


text:
    No. 72-658.
    City of Kenosha et al. v. Bruno et al.
   Appeal from D. C. E. D. Wis. [Probable jurisdiction noted, 409 U. S. 1105.] Motion to dispense with filing a brief on the merits on behalf of appellees Richard Misurelli and David Robers granted.


text:
    No. 72-694.
    Committee for Public Education & Religious Liberty et al. v. Nyquist, Commissioner of Education of New York, et al.
   Appeal from D. C. S. D. N. Y. [Probable jurisdiction noted, 410 U. S. 907.] Motion of National Education Assn, et al. for leave to file an untimely brief as amici curiae granted.


text:
    No. 72-822.
    Renegotiation Board v. Bannercraft Clothing Co., Inc., et al.
   C. A. D. C. Cir. [Certiorari granted, 410 U. S. 907.] Motion of Sears, Roebuck & Co. for leave to file a brief as amicus curiae granted, and motion for leave to postpone oral argument denied.

Mr. Justice Powell took no part in the consideration or decision of these motions.


text:
    No. 72-950.
    Reed v. Reed,
   410 U. S. 931. Motion of respondent for reasonable damages under Rule 56 (4) of the Rules of this Court denied.


text:
    No. 72-1061.
    Windward Shipping (London) Ltd. et al. v. American Radio Assn., AFL-CIO, et al.
   Ct. Civ. App. Tex., 14th Sup. Jud. Dist. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 72-5521.
    Strunk, aka Wagner v. United States
   C. A. 7th Cir. [Certiorari granted, 409 U. S. 1106.] Motion of Terence F. MacCarthy to permit John R. Wideikis to argue pro hac vice on behalf of petitioner granted.


text:
    No. 72-6170.
    Kaplan v. Judges of the United States Court of Appeals for the Second Circuit et al.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 72-5830.
    Patterson v. Warner et al.
   Appeal from D. C. S. D. W. Va. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 72-1057.
    United States v. Giordano et al.
   C. A. 4th Cir. Motion of respondent Giordano for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 72-944.
    Marulakis v. Williams.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 72-975.
    Newman v. United States.
   C. A. 5th Cir.

Certiorari denied.


text:
    No. 72-980.
    Vastola v. United States.
   C. A. 2d Cir.

Certiorari denied.


text:
    No. 72-982.
    Rosenberg v. United States.
   C. A. 7th Cir.

Certiorari denied.


text:
    No. 72-988.
    Moore v. United States.
   C. A. 3d Cir.

Certiorari denied.


text:
    No. 72-991.
    Miller, aka Muller v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-1009.
    Flood et ux. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-1015.
    Tred-Air of California, Inc. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-1029.
    District 65, Distributive Workers of America v. R & M Kaufmann, a Division of Russ Togs, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-1045.
    Bible Baptist Church v. Ireland et al.
   Ct. Civ. App. Tex., 9th Sup. Jud. Dist. Certiorari denied.


text:
    No. 72-1060.
    Johnson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-1081.
    International Brotherhood of Electrical Workers v. Washington Terminal Co.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 72-1083.
    O’Brien v. Franich et al.
   Ct. App. Wash. Certiorari denied.


text:
    No. 72-1089.
    London v. Patterson, Vocational Institution Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-1122.
    Jacksonville Newspaper Printing Pressman & Assistants’ Union No. 57 v. Florida Publishing Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-5706.
    Hughes v. Cardwell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-5801.
    Strader v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-5833.
    Lombardi v. Warner, Justice.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 72-5859.
    Hall v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 72-5860.
    Murray v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 72-5892.
    Gore v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 72-5897.
    Brown v. Cardwell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-5903.
    Dixon v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 72-5947.
    Ellingburg v. Arkansas.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-5971.
    Stephenson v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 72-6007.
    Liantaud v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6016.
    Soto v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6017.
    Cantu v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6021.
    Crews et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6028.
    Gammon v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-6030.
    Robinson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6031.
    Kubitsky v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 72-6036.
    Riggs v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-6037.
    Smith v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6045.
    Crowder v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6053.
    Morris v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6091.
    Lee v. Alabama.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 72-6164.
    Wardlaw v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 72-6169.
    Rulo v. Rubin, Trustee in Bankruptcy.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-6071.
    George v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6172.
    Cherry v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 72-6180.
    Shadden v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 72-6193.
    Graham v. Hall.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-6196.
    Martin v. Wainwright, Corrections Director, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6212.
    Robinson v. Alabama.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6223.
    Jackson v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 72-974.
    Popkin v. United States.
   C. A. 1st Cir. Certiorari denied.

Mr. Justice- Douglas would grant certiorari.


text:
    No. 72-5835.
    Martin v. Florida.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5966.
    Heinrich v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-977.
    No. 72-978.
    Jack v. United States; and Overton v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Marshall took no part in the consideration or decision of these petitions.


text:
    No. 72-5973.
    Halverson v. Cady, Warden.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1001.
    Majewski v. United States.
   C. A. 2d Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 72-1116.
    McCloud v. Branch et al.
   C. A. 5th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 72-5632.
    Worton v. Oklahoma.
   C. A. 10th Cir. Motion to amend petition granted. Certiorari denied.


text:
    No. 71-685.
    No. 71-691.
    No. 71-1672.
    No. 72-839.
    No. 72-963.
    Lehnhausen, Director, Department of Local Government Affairs of Illinois v. Lake Shore Auto Parts Co. et al., Barrett, County Clerk of Cook County, Illinois, et al. v. Shapiro et al., Guthrie et al. v. Alabama By-Products Co. et al., Williams v. Mississippi Export Railroad, Hutter et al. v. Cook County, Illinois, et al.,
   410 U. S. 356;

410 U. S. 356;

410 U. S. 946;

410 U. S. 942; and

410 U. S. 955. Petitions for rehearing denied.


text:
    No. 71-991.
    Otter Tail Power Co. v. United States,
   410 U. S. 366. Petition for rehearing denied.

Mr. Justice Blackmun and Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 72-510.
    Falkner et ux. v. Brown, Chief Judge, U. S. Court of Appeals,
   410 U. S. 923. Motion to dispense with printing petition granted. Petition for rehearing denied.


text:
    April 2, 1973
    No. 72-997.
    Atlee et al. v. Richardson, Secretary of Defense, et al.
   Affirmed on appeal from D. C. E. D. Pa.

Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Stewart would note probable jurisdiction and set case for oral argument.


text:
    No. 72-6025.
    Briggs et al. v. Arafeh, Hospital Superintendent, et al.
   Affirmed on appeal from D. C. Conn.

Mr. Justice Douglas and Mr. Justice Powell dissent from affirmance.


text:
    No. 72-795.
    Leathers v. Massell et al.
   Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question.


text:
    No. 72-893.
    Fox et ux. v. Norberg, Tax Administrator.
   Appeal from Super. Ct. R. I. dismissed for want of substantial federal question.


text:
    No. 72-1093.
    Variety Theatres, Inc. v. Cleveland County et al.
   Appeal from Sup. Ct. N. C. dismissed for want of substantial federal question.


text:
    No. 72-5919.
    Faubion v. Juras, Administrator, Oregon Public Welfare Division, et al.
   Appeal from Ct. App. Ore. dismissed for want of substantial federal question.

Mr. Justice Douglas dissents for reasons stated in his dissenting opinion in Ortwein v. Schwab, 410 U. S. 656, 661 (1973).


text:
    No. 72-1106.
    Hammond v. Hager et al.
   Appeal from Sup. Ct. Mont, dismissed for want of substantial federal question.


text:
    No. 72-1114.
    Hutter et ux. v. Korzen.
   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of substantial federal question.


text:
    No. 72-5943.
    Boykin et al. v. Ott, Administrator, Oregon Motor Vehicles Division.
   Appeal from Ct. App. Ore. dismissed for want of substantial federal question.


text:
    No. 72-1075.
    Bachrodt Chevrolet Co. v. National Labor Relations Board.
   C. A. 7th Cir. . Certiorari granted, judgment vacated, and case remanded with instructions to remand case to the National Labor Relations Board for such further proceedings as may be appropriate in light of NLRB v. Burns International Security Services, Inc., 406 U. S. 272 (1972). FTC v. Sperry & Hutchinson Co., 405 U. S. 233, 245-250 (1972); SEC v. Chenery Corp., 318 U. S. 80, 87-88 (1943).


text:
    No. A-987.
    Ruderer v. Bartlett, U. S. Attorney.
   C. A. 8th Cir. Motion for leaye to file petition for injunctive order, presented to Mr. Justice Blackmun, and by him referred to the Court, denied.

Mr. Justice Blackmun took no part in the consideration or decision of this motion.


text:
    No. 72-658.
    City of Kenosha et al. v. Bruno et al.
   Appeal from D. C. E. D. Wis. [Probable jurisdiction noted, 409 U. S. 1105.] Motion to permit two counsel to argue orally on behalf of appellees granted.


text:
    No. 48, Orig.
    Mississippi v. Arkansas.
   Report of Special Master received and ordered filed. Exceptions to Report, if any, with supporting briefs may be filed by the parties on or before May 17, 1973. Reply briefs, if any, to such exceptions may be filed on or before June 18, 1973. [For earlier orders herein, see, e. g., 403 U. S. 951.]


text:
    No. 72-459.
    No. 72-620.
    Sloan, Treasurer of Pennsylvania, et al. v. Lemon et al.; and Crouter v. Lemon et al.
   Appeals from D. C. E. D. Pa. [Probable jurisdiction noted, 410 U. S. 907.] Motion of National Association of Independent Schools, Inc., for leave to participate in oral argument as amicus cuñae denied.


text:
    No. 72-549.
    No. 72-550.
    School Board of City of Richmond, Virginia, et al. v. State Board of Education of Virginia et al.; and Bradley et al. v. State Board of Education of Virginia et al.
   C. A. 4th Cir. [Certiorari granted, 409 U. S. 1124.] Motion of the Solicitor General for leave to participate in oral argument as amicus cuñae in support of respondents granted and 15 minutes allotted for that purpose. Counsel for petitioners hereby allotted 15 additional minutes for oral argument.

Mr. Justice Powell took no part in the consideration or decision of this motion.


text:
    No. 72-5990.
    No. 72-6113.
    No. 72-6186.
    No. 72-6187.
    No. 72-6188.
    Maghe v. Guarino, Judge; Johnson v. Stuart, U. S. District Judge, et al.; Gerardi v. Seamans, Secretary of the Air Force; Gerardi v. Johnson, Administrator of Veterans Affairs; and Gerardi v. United States Department of Justice.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 72-694.
    No. 72-753.
    No. 72-791.
    No. 72-929.
    Committee for Public Education & Religious Liberty et al. v. Nyquist, Commissioner of Education of New York, et al.; Anderson v. Committee for Public Education & Religious Liberty et al.; Nyquist, Commissioner of Education of New York, et al. v. Committee for Public Education & Religious Liberty et al.; and Cherry et al. v. Committee for Public Education & Religious Liberty et al.
   Appeals, from D. C. S. D. N. Y. [Probable jurisdiction noted, 410 U. S. 907.] Motion of Lawrence E. Klinger for leave to file an untimely brief as amicus curiae granted.


text:
    No. 72-804.
    Ruckelshaus, Administrator, Environmental Protection Agency v. Sierra Club et al.
   C. A. D. C. Cir. [Certiorari granted, 409 U. S. 1124.] Motion of the State of Arizona et al. for leave to present oral argument as amici curiae denied.


text:
    No. 72-1187.
    Combs, Superintendent, Grand Prairie Independent School District, et al. v. Johnson et al.
   C. A. 5th Cir. Motion to advance and for pendente lite relief denied.


text:
    No. 72-5881.
    Marshall v. United States.
   C. A. 9th Cir. [Certiorari granted, 410 U. S. 954.] Motion for appointment of counsel granted. It is ordered that James F. Hewitt, Esquire, of San Francisco, California, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case.


text:
    No. 72-1084.
    Grossman v. Kavanagh, Chief Justice, Supreme Court of Michigan.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 71-1631.
    Kusper et al. v. Pontikes.
   Appeal from D. C. N. D. Ill. Probable jurisdiction noted.


text:
    No. 72-922.
    Paschall et al. v. Christie-Stewart, Inc., et al.
   Appeal from Sup. Ct. Okla. Probable jurisdiction noted.


text:
    No. 72-1118.
    Phillips, Acting Director, Office of Economic Opportunity, et al. v. Kennedy et al.
   Appeal from D. C. N. D. Ill. Probable jurisdiction noted.


text:
    No. 72-953.
    O'Shea, Magistrate, Circuit Court of Alexander County, Illinois, et al. v. Littleton et al.
   C. A. 7th Cir. Certiorari granted and case set for oral argument with No. 72-955 [immediately infra].


text:
    No. 72-955.
    Spomer, State's Attorney of Alexander County, Illinois v. Littleton et al.
   C. A. 7th Cir. Certiorari granted and case set for oral argument with No. 72-953 [immediately supra].


text:
    No. 72-6041.
    Pernell v. Southall Realty.
   Ct. App. D. C. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 72-819.
    Reyes v. Laborers' International Union of North America, Local Union No. 16, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 72-842.
    Bradley v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 72-898.
    Fiocconi et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-924.
    Lafayette Airport Commission et al. v. Roy et al.
   Ct. App. La., 3d Cir. Certiorari denied.


text:
    No. 72-927.
    Bankers Life & Casualty Co. v. Village of North Palm Beach, Florida, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-979.
    Thorne v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 72-1011.
    Cooper v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-1014.
    Braden v. Herman et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-1016.
    Chip Steak Co., Inc., et al. v. Butz, Secretary of Agriculture, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-1017.
    No. 72-1020.
    Nebraska et al. v. Weinberger, Secretary of Health, Education, and Welfare, et al.; and Nebraska et al. v. Weinberger, Secretary of Health, Education, and Welfare, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-1074.
    Martin v. Martin.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 72-1080.
    Peltzman v. American Radio Assn. et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 72-1087.
    Card v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-1088.
    Pennsylvania v. Brown.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 72-1110.
    Usciak v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 72-1121.
    Ellis et al. v. Flying Tiger Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-1132.
    Jacobs, Administratrix v. Clarke-White.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 72-1143.
    Spercel, dba Spercel Tool Co. v. Sterling Industries, Inc., et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 72-1227.
    No. 72-1228.
    No. 72-1229.
    Morton, Secretary of the Interior v. Wilderness Society et al.; Alaska v. Wilderness Society et al.; and Alyeska Pipeline Service Co. v. Wilderness Society et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 72-5406.
    Carter v. Hardy.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-5793.
    Long v. Twomey, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-5813.
    Bilton v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-5887.
    Passwater et al. v. Myers, Judge, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-5898.
    Knight v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-5912.
    Evans v. Evans.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 72-5928.
    McMurray v. Illinois.
   App. Ct. Ill., 1st Jud. Dist. Certiorari denied.


text:
    No. 72-5968.
    Hargrove v. Slayton, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-5969.
    Thomas v. Slayton, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-5984.
    Lovallo v. Froehlke, Secretary of the Army, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-6009.
    Shorter v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6042.
    Pellegrino et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-6051.
    Allen v. Cardwell, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-6052.
    Landry v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6056.
    Maciel v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6062.
    Valdez v. California Selective Service Local Board No. 44 et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6061.
    Evans v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6063.
    Perez-Valle v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6065.
    Crowder v. Harris, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 72-6077.
    Alberti v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-6078.
    Williams v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-6085.
    Davenport v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6087.
    Henderson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 72-6088.
    Giardina v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6089.
    Von Atzingen v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6105.
    Fields v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6184.
    Torres et al. v. New York City Transit Authority et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-6204.
    Le Brun v. Cupp, Penitentiary Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6214.
    Cox v. Wolfe, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-6215.
    Ridgill v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 72-6217.
    Eckert v. American Arbitration Assn.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6219.
    Recor v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 72-6220.
    Eckert v. Pennsylvania.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-6225.
    Johnson v. Illinois.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-6237.
    Thornton v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6238.
    Knight v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 72-995.
    Jenkins v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1005.
    Sierra Club et al. v. Morton, Secretary of the Interior, et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1063.
    Unger v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5808.
    Frinks v. North Carolina.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5899.
    Wyatt v. United States.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5951.
    Lindsey v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-5981.
    Washington v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1094.
    Estelle, Corrections Director v. Sanchez.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 72-1115.
    Rozelle v. Connecticut General Life Insurance Co. et al.
   C. A. 10th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 72-1131.
    Newberry v. Town of Fishkill.
   C. A. 3d Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 72-1146.
    Milam et ux. v. Reading & Bates Offshore Drilling Co. et al.
   C. A. 5th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 72-5831.
    Rothstein et al. v. Wyman, Commissioner, Department of Social Services of New York, et al.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas and Mr. Justice White would grant certiorari.


text:
    No. 72-5431.
    No. 72-5712.
    No. 72-5779.
    No. 72-5803.
    No. 72-5872.
    No. 72-5885.
    Ortwein et al. v. Schwab et al., Higginbotham v. United States, Jackson v. United States, McCray v. United States, Thomas et al. v. Mississippi, Sellars v. Estelle, Corrections Director,
   410 U. S. 656;

410 U. S. 933;

410 U. S. 935;

410 U. S. 936;

410 U. S. 939; and

410 U. S. 940. Petitions for rehearing denied.


text:
    No. 71-364.
    No. 71-373.
    Mahan, Secretary, State Board of Elections, et al. v. Howell et al.; and City of Virginia Beach v. Howell et al.,
   410 U. S. 315. Treating the petition for rehearing in No. 71-373 as a motion to modify the Court’s opinion, the following order is hereby entered:

“The motion of appellant, city of Virginia Beach, to modify this Court’s opinion is hereby granted. The first paragraph in Part II of the opinion is amended by adding ‘a portion of’ after the phrase ‘Under the plan,’ in the second sentence thereof, and by striking the phrase ‘encompassing the cities of Norfolk and Virginia Beach’ in the last sentence of the paragraph, substituting therefor the following phrase: ‘encompassing the city of Norfolk and a portion of Virginia Beach.’

Mr. Justice Powell took no part in the consideration or decision of this order.


text:
    No. 72-826.
    Broussard v. Patton et al.,
   410 U. S. 942. Motion of James Abourezk et al. for leave to file a brief as amici curiae in support of petition for rehearing granted. Petition for rehearing denied.


text:
    No. 72-5771.
    Jakalski v. United States,
   410 U. S. 935. Petition for rehearing and other relief denied.


text:
    April 5, 1973
    No. 72-1284.
    International Brotherhood of Electrical Workers et al. v. Southern Pacific Transportation Co.
   C. A. 9th Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    April 12, 1973
    No. 72-1147.
    Dorfman v. United States.
   C. A. 2d Cir. Petition for writ of certiorari dismissed under Rule 60 of the Rules of this Court.


text:
    April 16, 1973
    No. 72-1128.
    Kingston et al., Justices v. McLaughlin, Justice, et al.
   Affirmed on appeal from D. C. Mass.


text:
    No. 72-925.
    Palkes, dba Madison Iron & Metal Co. v. Illinois.
   Appeal from Sup. Ct. Ill. dismissed for want of final judgment.


author: Mr. Justice Douglas,

text:
    No. 72-1025.
    B. P. O. E. Lodge 2043 of Brunswick et al. v. Ingraham et al.
   Appeal from Sup. Jud. Ct. Me. dismissed for want of substantial federal question.

Mr. Justice Douglas,

with whom Mr. Justice Stewart and Mr. Justice Blackmun concur,

dissenting.

Appellants, 15 Maine lodges of the Benevolent and Protective Order of Elks, brought suit against the State Liquor Commission of Maine to enjoin it from denying them liquor licenses under § 1301-A of Tit. 17 of the Maine Rev. Stat. Ann., which reads:

“No person, firm or corporation holding a license under the State of Maine or any of its subdivisions for the dispensing of food, liquor or for any service or being a State of Maine corporation or a corporation authorized to do business in the State shall withhold membership, its facilities or services to any person on account of race, religion or national origin, except such organizations which are oriented to a particular religion or which are ethnic in character.”

The Elks require a person to be a “white citizen” to be a member. The Commission denied licenses to the 15 subordinate lodges pursuant to § 55 (8) of Tit. 28 of the Maine Rev. Stat. Ann., which provides that the Commission, in issuing or renewing licenses, “shall give consideration to the character of any applicant, the location of the place of business and the manner in which it has been operated.” The Commission stated that the “whites only” limitation of the Elks Constitution established “bad moral character” of the subordinate lodges. The Supreme Judicial Court, reversing a decision of the superior court which had granted appellants a permanent injunction, upheld the Commission’s action. The court stated:

“We find it unnecessary to predicate our decision on the specific basis assigned by the Commission to support its actions — i. e., that [appellants] had ‘bad moral character.’ We conclude, rather, that the Commission’s ultimate denial of license renewals was justified under the avowed public policy of the State of Maine, as delineated in the provisions of 17 M. R. S. A. § 1301-A, and the authority afforded the Commission under that statute conjoined with the provisions of 28 M. R. S. A. § 55 (8) allowing the Commission to take into account the ‘character’ of the plaintiffs (independently of ‘morality’ considerations) and the ‘manner’ by which they have ‘operated.’ ” 297 A. 2d 607, 610. (Emphasis added.)

In concluding that the Commission was justified in denying the licenses because the lodges had violated the State’s public policy embodied in § 1301-A, the court rejected appellants’ contention, inter alia, that the statute violates the Equal Protection Clause of the Fourteenth Amendment.

Appellants sought a stay pending appeal to this Court, and the state court denied it. A similar application to this Court, eventually referred to the Conference, was granted, 410 U. S. 903. The Court now dismisses the appeal for want of a substantial federal question. I cannot agree with this disposition.

The Maine court specifically considered appellants’ claim that the exception for “organizations which are oriented to a particular religion or which are ethnic in character” violates the Equal Protection Clause because it permits some associations to have liquor licenses notwithstanding their discriminatory membership policies. The court said:

“The fallacy of the argument is that it fails to recognize the differences between: (1) restrictive membership discriminations which are arbitrary, because without rational relationship to the fostering of the legitimate purposes for which the association has come into being, and (2) those which rationally promote such lawfully cognizable objectives. . . .
“. . . Since such organizations are formed to promote lawful objectives which their members share as common interests by virtue of their religious or ethnic identities, their confining of membership to persons who bear the same religious or ethnic identity is a rational classification. It thus lacks the arbitrariness by which discrimination becomes invidious and which is outlawed by the ‘equal protection of the laws’ clause of the Fourteenth Amendment of the Constitution of the United States when it is the result of State action.
“The exception as here recognized by the State of Maine is, therefore, consistent with the federal Fourteenth Amendment.” 297 A. 2d, at 616-617.

Webster’s New International Dictionary (2d ed.) tells us that “ethnic” means: “Relating to community of physical and mental traits in races, or designating groups of races of mankind discriminated on the basis of common customs and characters.” The “ethnic” exception in the Act therefore would seem to allow Chinese, Japanese, Malaysian, or African groups to practice discrimination in their lodges and still get liquor licenses but not to allow “whites” the same privilege. As stated long ago in Strauder v. West Virginia, 100 U. S. 303, 308:

“If in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.”

We repeated the same thought in Hernandez v. Texas, 347 U. S. 475, 478, in speaking of discrimination against persons of Mexican descent:

“Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single.out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’ — that is, based upon differences between ‘white’ and Negro.”

That classifications based upon race or nationality are “suspect” and therefore demand close scrutiny is well established. See San Antonio Ind. School Dist. v. Rodriguez, ante, p. 1, at 104-105. (Marshall, J., dissenting). I do not question the State’s beneficent motives in attempting to eliminate the scourge of discrimination by whites against nonwhites solely on the basis of color, but I cannot subscribe to the view that the State may legislate against this form of invidious discrimination and, at the same time, sanction and insulate another, albeit less invidious, in the State’s eyes. Since the Maine statute and its application by the Supreme Judicial Court raise, in my mind, a substantial question under the Equal Protection Clause, I would note probable jurisdiction.

       Section 1301-A was added to Tit. 17 in 1969. C. 371, Me. Laws 1969.

       Section 144 of the Elks Stat. Ann. (1972) provides:
      “No person shall be accepted as a member of this Order unless he be a white citizen of the United States of America, of sound mind and body, of good character, not under the age of Twenty-one years,, and a believer in God. No person shall be accepted as a member of this Order who is directly or indirectly a member of or in any way connected or affiliated with the Communist Party, or who believes [in] or advocates the overthrow of our Government by force.”
      The bylaws of the National Order apparently are incorporated in the bylaws of each subordinate lodge.

       See, e. g., McLaughlin v. Florida, 379 U. S. 184, 191-192; Loving v. Virginia, 388 U. S. 1, 9.

       See Oyama v. California, 332 U. S. 633, 644-646; Korematsu v. United States, 323 U. S. 214, 216.


text:
    No, 72-6153.
    Ruderer v. United States Army Aviation Materiel Command et al.
   Appeal from D. C. E. D. Ill. dismissed for want of jurisdiction. Mr. Justice Blackmun took no part in the consideration or decision of this appeal.


text:
    No. A-1028.
    Worcester City Hospital et al. v. Hathaway.
   C. A. 1st Cir. Application, for stay of mandate presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. 72-394.
    No. 72-414.
    No. 72-555.
    No. 72-666.
    No. 72-528.
    Weinberger, Secretary of Health, Education, and Welfare, et al. v. Hynson, Westcott & Dunning, Inc.; Hynson, Westcott & Dunning, Inc. v. Weinberger, Secretary of Health, Education, and Welfare, et al.; Weinberger, Secretary of Health, Education, and Welfare, et al. v. Bentex Pharmaceuticals, Inc., et al.; USV Pharmaceutical Corp. v. Weinberger, Secretary of Health, Education, and Welfare, et al. Ciba Corp. v. Weinberger, Secretary of Health Education, and Welfare, et al.
   C. A. 4th Cir.; and

C. A. 3d Cir. [Certiorari granted, 409 U. S. 1105.] Motions of American Public Health Assn, et al., Pharmaceutical Manufacturers Assn., and Proprietary Assn, for leave to file briefs as amici curiae granted.


text:
    No. 72-459.
    No. 72-620.
    Sloan, Treasurer of Pennsylvania, et al. v. Lemon et al.; and Crouter v. Lemon et al.
   Appeals from D. C. E. D. Pa. [Probable jurisdiction noted, 410 U. S. 907.] Motion of National Education Assn, et al. for leave to file a brief as amici curiae granted.


text:
    No. 72-5794.
    Davis v. Alaska.
   Sup. Ct. Alaska. [Certiorari granted, 410 U. S. 925.] Motion of Arthur Bembury for leave to file a brief as amicus curiae granted.


text:
    No. 72-804.
    Ruckelshaus, Administrator, Environmental Protection Agency v. Sierra Club et al.
   C. A. D. C. Cir. [Certiorari granted, 409 U. S. 1124.] Motion of the State of Michigan for additional time and for leave to present oral argument as amicus curiae denied.

Mr. Justice Douglas, Mr. Justice Stewart, and Mr. Justice White would grant the motion.


text:
    No. 72-6033.
    No. 72-6227.
    No. 72-6249.
    No. 72-6269.
    No. 72-6292.
    Pedrosa v. Elrod, Sheriff, et al.; Hawkins v. Wyoming et al.; Muhammad v. United States; Crow v. Arizona et al.; and Turner v. McCarthy, Men's Colony Superintendent.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 72-1111.
    Pokrandt et al. v. Van Dusen, U. S. Circuit Judge.
   Motion for leave to file petition for writ of mandamus and other relief denied.


text:
    No. 72-5704.
    Christian et al. v. New York State Department of Labor, Division of Employment, et al.
   Appeal from D. C. S. D. N. Y. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 72-1154.
    Foley et al. v. Blair & Co., Inc., et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 72-1076.
    Huddleston v. United States.
   C. A. 9th Cir. Motion to dispense with printing petition and certiorari granted.


text:
    No. 72-824.
    Board of Education of the City of Pleasant Grove v. Stout et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-857.
    McKinnon v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 72-1004.
    No. 72-1246.
    Bethlehem Steel Corp. v. Williamson et al.; and United Steelworkers of America, AFL-CIO, Local Union 2601, et al. v. Williamson et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1013.
    Hanna v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 72-1028.
    Field v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1031.
    Kocher et ux. v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1032.
    Lachmann v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 72-1034.
    Birch et ux v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-1037.
    Diggs et al. v. Shultz, Secretary of the Treasury, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 72-1042.
    Stone v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-1050.
    Kommanvittselskapet Harwi (Rolf Wigand) et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-1051.
    Rosenberg v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1066.
    Riva v. Kleindienst, Attorney General, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-1078.
    Javor v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-1079.
    Rosenfield v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-1109.
    Central School District No. 1 et al. v. Russo.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1123.
    Williams v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 72-1126.
    Hattersley v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 72-1150.
    Dallas Cabana, Inc., et al. v. Collier, Trustee in Bankruptcy.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-1157.
    Air Cargo, Inc., et al. v. Breen Air Freight, Ltd., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1158.
    Building & Construction Trades Council of Philadelphia & Vicinity et al. v. Altémose Construction Co.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 72-1177.
    Wellco Co. v. Franklin.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 72-1190.
    Alarid et al. v. New Mexico Board of Bar Examiners.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 72-1202.
    Valley Oil Co. v. City of Garland, Texas.
   Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Certiorari denied.


text:
    No. 72-1225.
    City of New Orleans et al. v. New Orleans Firefighters Assn., Local 632, et al.
   Sup. Ct. La. Certiorari denied.


text:
    No. 72-1252.
    Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-5802.
    Robinson v. California.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 72-5950.
    Buford v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 72-5956.
    Weathington v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 72-5958.
    Bell v. Illinois.
   App. Ct. Ill., 4th Jud. Dist. Certiorari denied.


text:
    No. 72-5961.
    Kelly v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-5974.
    Echeverria v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-5982.
    Redus v. Swenson, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-5992.
    No. 72-6154.
    Meekins v. United States; and Jones v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 72-5993.
    Sullivan v. Virginia.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-6006.
    Whan v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 72-6055.
    Screeton v. Hutto, Correction Commissioner.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-6059.
    Oliver v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 72-6060.
    Tolbert v. Bragan, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 72-6076.
    Esparza-Ramirez v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 72-6095.
    Holland v. United States.
   Ct. App. D. C. Certiorari denied.