Respondents, representing present and future black and
Mexican-American applicants to the Los Angeles County Fire
Department, brought a class action against petitioners (Los Angeles
County, and the County Board of Supervisors and Civil Service
Commission), alleging, inter alia,
hiring procedure whereby they proposed to interview the top 544
scorers (of whom 492 were white, 10 were black, and 33 were
Mexican-American) on a 1972 written civil service examination in
order to fill temporary emergency manpower needs in the Fire
Department, violated 42 U.S.C. § 1981. The District Court, in 1973,
held that the procedure, though not discriminatorily motivated,
violated § 1981 because the 1972 examination had not been validated
as predictive of job performance, and accordingly the court
permanently enjoined all future discrimination and mandated good
faith affirmative action efforts. The Court of Appeals
The controversy has become moot during the
pendency of the litigation. Pp. 440 U. S.
(a) Jurisdiction, properly acquired, may abate if a case becomes
moot because (1) there is no reasonable expectation that the
alleged violation will recur, and (2) interim relief or events have
completely and irrevocably eradicated the effects of the alleged
violation. When both conditions are satisfied, the case is moot
because neither party has a legally cognizable interest in the
final determination of the underlying questions of fact and law. P.
440 U. S.
(b) Here the first condition is met, because there can be no
reasonable expectation that petitioners will use an unvalidated
civil service examination for the purposes contemplated in 1972.
The temporary emergency firefighter shortage and lack of an
alternative means of screening job applicants existing at that time
were unique, are no longer present, and are unlikely to recur
because, since the commencement of the litigation, petitioners have
instituted an efficient and nonrandom method of screening job
applicants and increasing minority representation in the Fire
Department. Pp. 440 U. S.
(c) The second condition of mootness is met because petitioners'
compliance since 1973 with the District Court's decree and their
Page 440 U. S. 626
of over 500 of new recruits from minorities has completely cured
any discriminatory effects of the 1972 proposal. Pp. 440 U. S.
566 F.2d 1334, vacated and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEWART, J., filed a
dissenting opinion, in which REHNQUIST, J., joined, post,
p. 440 U. S. 634
POWELL, J., filed a dissenting opinion, in which BURGER, C.J.,
p. 440 U. S.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The District Court for the Central District of California
determined in 1973 that hiring practices of the County of Los
Angeles respecting the County Fire Department violated 42
Page 440 U. S. 627
U.S.C. § 1981. [Footnote 1
The District Court, in an unreported opinion and order, permanently
enjoined all future discrimination and entered a remedial hiring
order. The Court of Appeals for the Ninth Circuit affirmed in part,
reversed in part, and remanded the case for further consideration.
566 F.2d 1334 (1977). We granted certiorari to consider questions
presented as to whether the use of arbitrary employment criteria,
racially exclusionary in operation, but not purposefully
discriminatory, violates 42 U.S.C. § 1981 and, if so, whether the
imposition of minimum hiring quotas for fully qualified minority
applicants is an appropriate remedy in this employment
discrimination case. 437 U.S. 903 (1978). We now find that the
controversy has become moot during the pendency of this litigation.
Accordingly, we vacate the judgment of the Court of Appeals and
direct that court to modify its remand so as to direct the District
Court to dismiss the action.
In 1969, persons seeking employment with the Los Angeles County
Fire Department were required to take a written civil service
examination and a physical agility test. Applicants were ranked
according to their performance on the two tests and selected for
job interviews on the basis of their scores. Those who passed their
oral interviews were then placed on a hiring eligibility list.
Because blacks and Hispanics did poorly on the written examination,
this method of screening job applicants proved to have a disparate
impact on minority hiring. The County of Los Angeles has not used
the written civil
Page 440 U. S. 628
service examination as a ranking device since 1969. The county
desisted, prior to the commencement of this litigation, because it
felt that the test had a disparate adverse impact on minority
hiring, because it feared that this impact might violate Title VII
of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42
U.S.C. § 2000e et seq.,
and because it wished, in any
event, to increase minority representation in the Fire Department.
App. to Brief for Respondents 1-4.
In 1971, the county replaced the 1969 procedure with a new
method of screening job applicants. A new written test was designed
expressly to eliminate cultural bias. The test was to be given and
graded on a pass-fail basis for the sole purpose of screening out
illiterates. Five hundred of the passing applicants were to be
selected at random for oral interviews and physical agility tests.
Passing applicants were to be ranked solely on the basis of the
results of the physical agility test and the oral interview.
566 F.2d at 1346 (Wallace J., dissenting).
An examination was conducted, pursuant to this plan, in January,
1972. Ninety-seven percent of the applicants passed the written
test. There was no disparate adverse impact on minorities, and this
use of the written examination has not been challenged in this
After administration of the written test, but before the random
selection could be made, an action was filed in state court against
the county charging that the random selection process violated
provisions of the county charter and civil service regulations. The
county was enjoined from using the random selection method pending
trial on the merits. See ibid.
For a time, the hiring process came to a halt. The eligibility
list drawn from the 1969 examination had been exhausted. The county
was unable to devise a nonrandom method of screening job
applicants, and the county lacked the resources to interview all of
the applicants who had passed the 1972 examination.
Page 440 U. S. 629
As a consequence of this unintended hiring freeze, vacancies in
the County Fire Department increased and the manpower needs of the
Department became critical. Finally, to break the log-jam, the
County Department of Personnel proposed to interview those
applicants who had received the top 544 scores on the 1972 written
test. Of this number, 492 were white, 10 black, and 33
Mexican-American. The applicants were not to be ranked on the basis
of the test results, however, and the interviews were not intended
to eliminate the remaining applicants from consideration. The
purpose was solely to expedite the hiring of sufficient
firefighters to meet the immediate urgent requirements of the Fire
Department. See ibid.
But when minority representatives
objected to the plan, it was abandoned, uneffectuated, prior to the
commencement of this litigation. In January, 1973, respondents,
representing present and future black and Mexican-American
applicants to the Fire Department, brought a class action against
the County of Los Angeles, the Board of Supervisors of the County
of Los Angeles, and the Civil Service Commission of the County of
Los Angeles (petitioners). Respondents charged that petitioners'
1969 hiring procedures violated 42 U.S.C. § 1981. Respondents also
charged that petitioners' plan to interview those applicants who
had received the top 544 scores on the 1972 written test violated
42 U.S.C. § 1981. The District Court found that petitioners had
acted without discriminatory intent. Nonetheless, the District
Court held that, because the 1969 and 1972 written examinations had
not been validated as predictive of job performance, petitioners'
employment practices had violated 42 U.S.C. § 1981. The court
permanently enjoined all future discrimination and mandated good
faith affirmative action efforts. The court also entered a remedial
hiring order whereby at least 20% of all new firefighter recruits
were required to be black and another 20% were required to be
Mexican-American until the
Page 440 U. S. 630
percentage of blacks and Mexican-Americans in the Los Angeles
County Fire Department was commensurate with their percentage in
Los Angeles County. [Footnote
The Court of Appeals reversed the District Court with respect to
the 1969 examination: the Court of Appeals held that respondents
did not have standing to seek relief on account of the 1969 civil
service examination because the plaintiff class, as certified by
the District Court, consisted only of present and future job
applicants [Footnote 3
] and did
not include any persons who had in any way been affected by the
1969 test. [Footnote 4
The Court of Appeals affirmed, however, the District
Page 440 U. S. 631
Court's holding with respect to the 1972 proposal to use an
unvalidated civil service examination.
The only question remaining in this case, then, concerns
petitioners' 1972 plan to interview the top 544 scorers on the 1972
written examination in order to fill temporary emergency manpower
needs. We find that this controversy became moot during the
pendency of this litigation.
"Simply stated, a case is moot when the issues presented are no
longer live' or the parties lack a legally cognizable interest
in the outcome." Powell v. McCormack, 395 U.
S. 486, 395 U. S. 496
(1969). We recognize that, as a general rule,
"voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case,
does not make the case moot."
United States v. W. T. Grant Co., 345 U.
, 345 U. S. 632
(1953). But jurisdiction, properly acquired, may abate if the case
becomes moot because
(1) it can be said with assurance that "there is no reasonable
expectation . . ." that the alleged violation will recur, see
at 345 U. S. 633
see also SEC v. Medical Committee For Human Rights,
404 U. S. 403
(2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See, e.g.,
DeFunis v. Odegaard, 416 U. S. 312
(1974); Indiana Employment Security Div. v. Burney,
409 U. S. 540
When both conditions are satisfied, it may be said that the case
is moot because neither party has a legally cognizable interest in
the final determination of the underlying questions of fact and
The burden of demonstrating mootness "is a heavy one." See
United States v. W. T. Grant Co., supra
at 345 U. S.
-633. Nevertheless, that burden is fully met on this
The first condition is met because there can be no reasonable
expectation that petitioners will use an unvalidated civil
Page 440 U. S. 632
service examination for the purposes contemplated in 1972.
Petitioners have not used an unvalidated written examination to
rank job applicants since 1969. Petitioners considered employing
such a procedure in 1972 only because of a temporary emergency
shortage of firefighters and only because petitioners then had no
alternative means of screening job applicants. Those conditions
were unique, are no longer present, and are unlikely to recur
because, since the commencement of this litigation, petitioners
have succeeded in instituting an efficient and nonrandom method of
screening job applicants and increasing minority representation in
the Fire Department. The new procedures are as follows:
To fill each group of vacancies, petitioners interview 500
applicants who passed their written examination, including the
highest scoring 300 whites, 100 blacks, and 100 Mexican-Americans.
The number interviewed is several times the number of actual
vacancies. The interviewers rate each of these applicants on his or
her merits, without regard to race or national origin. Thereafter
applicants are hired solely on the basis of the score given by the
interviewer, again without regard to race or national origin. Those
hired are not hired from separate lists, no quotas are used, and
the same rating standards are applied to all applicants. The
interviewers are not authorized to give extra points because of an
applicant's race or national origin, but are directed only to be
alert for talented minority applicants. This procedure has resulted
every year since 1972 in a minority hiring level which
consistently, though by varying amounts, exceeded 50%.
There has been no suggestion by any of the parties, nor is there
any reason to believe, that petitioners would significantly alter
their present hiring practices if the injunction were dissolved.
Brief for N.A.A.C.P. Legal Defense and
Educational Fund, Inc., as Amicus Curiae
there is no reason to believe that petitioners would
replace their present hiring procedures with procedures that they
Page 440 U. S. 633
as unsatisfactory even before the commencement of this
litigation. Under these circumstances, we believe that this aspect
of the case has
"lost its character as a present, live controversy of the kind
that must exist if [the Court is] to avoid advisory opinions on
abstract propositions of law."
Hall v. Beals, 396 U. S. 45
396 U. S. 48
The second condition of mootness is met because petitioners'
compliance during the five years since 1973 with the District
Court's decree and their hiring of over 50% of new recruits from
minorities has completely cured any discriminatory effects of the
1972 proposal. Indeed, it is extremely doubtful, from this record,
that the 1972 proposal had any discriminatory effects to redress.
The plan, it must be remembered, was never carried out. As a
consequence, there has been no finding that any minority job
applicant was excluded from employment as a result of the proposal.
Cf. Franks v. Bowman Transportation Co., 424 U.
] Nor has there been a finding that any prospective minority
job applicant was deterred from applying for employment with the
Fire Department as a result of the proposed application of the
examination. Cf. Teamsters v. United States, 431 U.
, 431 U. S.
-367 (1977). Nor has there been a finding that the
1972 proposal reflected a racial animus that might have tainted
other employment practices. Cf. Keyes v. School Dist. No. 1,
Denver, Colo., 413 U. S. 189
(1973). On the contrary the District Court expressly found:
"Neither Defendants nor their officials engaged in employment
practices with a willful or conscious purpose of excluding blacks
and Mexican-Americans from employment at the Los Angeles County
Fire Department. To the contrary, several of Defendants' officials
Page 440 U. S. 634
in efforts designed to increase the minority representation in
the Los Angeles County Fire Department."
All of these circumstances, taken together, persuade us that,
whatever might have been the case at the time of trial, the
controversy has become moot during the pendency of this litigation.
Accordingly, we vacate the judgment of the Court of Appeals and
remand to that court for entry of an appropriate order directing
the District Court to dismiss the action as moot. See United
States v. Munsingwear, Inc., 340 U. S. 36
340 U. S. 9
(1950). [Footnote 6
Revised Stat. § 1977, 42 U.S.C. § 1981, provides:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
Despite the fact that the Mexican-American population of Los
Angeles County was approximately double the size of the black
population, the District Court ordered identical accelerated hiring
for both groups due to its finding that the Fire Department's 5'7"
height requirement for job applicants was a valid requirement for
employment, and that this height requirement had the effect of
eliminating 41% of the otherwise eligible Mexican-American
applicants from consideration. See
566 F.2d 1334, 1337
(1977). The Court of Appeals reversed the District Court in this
respect, and ordered a relative increase in the Mexican-American
hiring quota. In light of our disposition on grounds of mootness,
we do not consider this issue.
Respondents contend that their failure to include past
applicants in the class was a "mere oversight" which should not be
used to vitiate the District Court's decree. But respondents did
not cross-petition for modification of the judgment of the Court of
Appeals reversing the District Court with respect to the 1969 test.
The issue of oversight, as a consequence, is not properly before
us. See FEA v. Algonquin SNG, Inc., 426 U.
, 426 U. S. 560
n. 11 (1976). We intimate no view whether respondents may seek,
despite the oversight, to bring a new lawsuit with new and proper
parties. See Gibson v. Supercargoes & Checker,
F.2d 1259, 1264 (CA9 1976).
The parties stipulated that approximately 100 vacancies occur in
the ranks of firemen each year, and testimony at trial established
that 187 applicants were placed on an eligibility list following
the 1969 test. Based on this evidence the Court of Appeals
concluded that the 1969 list had been exhausted before plaintiffs
applied for employment as firefighters in October, 1971.
566 F.2d at 1338.
Moreover, there appears to be no possibility that persons hired
pursuant to the District Court's order will be terminated in
consequence of our vacation of the Court of Appeals' judgment as
moot. Cf. DeFunis v. Odegaard, 416 U.
Of necessity, our decision "vacating the judgment of the Court
of Appeals deprives that court's opinion of precedential effect. .
. ." Connor v. Donaldson, 422 U.
, 422 U. S.
-578, n. 12 (1975). See also A. L. Mechling Barge
Lines v. United States, 368 U. S. 324
368 U. S.
MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins,
The Court of Appeals dealt with three alleged instances of
discrimination by the petitioners in hiring firemen: a minimum
height requirement, the use of a written test in 1969 to establish
hiring priorities, and the threatened reliance on the results of a
test administered in 1972. The Court of Appeals ruled that the
height requirement violated federal law. That ruling has not been
challenged here. It concluded that these respondents did not have
standing to challenge the 1969 test results. All Members of this
Court agree. Thus, only the third claim remains in this case.
At least some of the respondents do have standing to challenge
the threatened use of the 1972 test. They had applied for
employment with the county in 1971 and took the 1972 test. Clearly,
they would be affected by the county's decision to use the results
of that test to select applicants for interviews. If the county's
proposed use of the test was illegal, those respondents were
threatened with injury in fact.
Page 440 U. S. 635
For the reasons expressed by MR. JUSTICE POWELL, I believe that
their controversy with the county is still alive.
I cannot agree with MR. JUSTICE POWELL, however, that the § 1981
question is properly presented in this case. The respondents'
second amended complaint alleged that the county had violated Title
VII of the Civil Rights Act of 1964. The complaint included copies
of "right to sue" letters from the Equal Employment Opportunity
Commission. Title VII became applicable to local governmental units
in March, 1972. The county decided to use the 1972 test to rank
applicants at the end of 1972. The District Court held that the
county had violated both § 1981 and Title VII. The Court of Appeals
expressly affirmed that decision.
"Of course, this continued threat to use the 1972 test as part
of the selection process right up to the filing of the complaint in
this case is admittedly a violation of Title VII."
566 F.2d 1334, 1341 n. 14.
MR. JUSTICE POWELL concludes that the Court of Appeals did not
make a considered judgment on the Title VII issue. While it is true
that the text of the court's opinion dealt almost exclusively with
§ 1981, the court clearly held that Title VII standards apply to
alleged violations of § 1981. Under the court's analysis, if a
violation of § 1981 were made out and the conduct occurred while
the defendant was covered by Title VII, Title VII must have been
violated also. As the dissenting opinion in the Court of Appeals
recognized, the decision on Title VII thus made completely
unnecessary the court's discussion of whether § 1981 requires proof
of discriminatory intent. 566 F.2d at 1347.
The petitioners did not question the ruling of the Court of
Appeals on the Title VII claim, *
and any opinion
Page 440 U. S. 636
might render on the § 1981 question would not affect the
judgment below that petitioners' action was illegal under Title
VII. Thus, it would truly be an advisory opinion.
It is clear, however, that the only violation remaining in this
case, the threatened use of the 1972 test to rank job applicants,
cannot justify the extensive remedy ordered by the District Court.
"As with any equity case, the nature of the violation determines
the scope of the remedy." Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U. S. 1
402 U. S. 16
simple order enjoining the illegal use of the 1972 test would seem
sufficient to remedy the only violation of which the respondents
had standing to complain. Therefore, I would vacate the judgment of
the Court of Appeals and remand the case to the District Court with
directions to narrow the scope of the remedy substantially.
* The second question presented in the petition for certiorari
does bear on Title VII, but not in a sense relevant to this
"Is a racial quota hiring order to be effective until the entire
fire department achieves current racial parity with the general
population beyond the jurisdiction of the court when:"
"* * * *"
"c. The plaintiffs had no standing to represent any pre-March
24, 1972 applicants and no discriminatory hiring
occurred subsequent to Title VII's effective date."
(Emphasis added.) This does not challenge the holding of the
Court of Appeals that the threatened use of the 1972 test was
itself a Title VII violation, nor, in fact, does it challenge any
finding of violation at all. Rather, it is addressed solely to the
In their brief, the petitioners argue that the mere threat to
use the test results to rank applicants cannot constitute a
violation of Title VII, and that a pattern or practice of
discrimination must be shown. They also urge that Title VII cannot
be applied to local governmental units absent some showing of
discriminatory intent. See Dothard v. Rawlinson,
433 U. S. 321
433 U. S. 323
n. 1; Hazelwood School Dist. v. United States,
433 U. S. 299
433 U. S. 306
n. 12. Because these issues were not raised in the petition for
certiorari, it is unnecessary to address them.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins,
Today the Court orders dismissal of a suit challenging the
hiring practices of the Los Angeles County Fire Department.
Page 440 U. S. 637
The dismissal is predicated on the view that the case has become
moot. This disposition of the case is opposed by petitioners, and
is not urged by respondents either in their briefs or oral
argument. But apart from this, I believe the Court's decision
misapplies settled principles of mootness, and think the case is
properly before us. We should reach, rather than seek a
questionable means of avoiding, the important question --
heretofore unresolved by this Court -- whether cases brought under
42 U.S.C. § 1981, like those brought directly under the Fourteenth
Amendment, require proof of racially discriminatory intent or
This suit was brought to eliminate the effects of alleged racial
discrimination in the Los Angeles County Fire Department. The
plaintiffs, respondents here, were persons who applied
unsuccessfully for fireman jobs in 1971; the class they represented
was certified to include present and future, but not past, black
and Mexican-American job applicants to the Fire Department. The
county was accused of a variety of employment practices said to
discriminate against minorities, including the use of "written
tests as a promotion and hiring selection device" even though the
tests had "disproportionate detrimental impact" on blacks and
Mexican-Americans. App. 4. The named plaintiffs had taken the most
recent of these tests, which was administered in January, 1972. The
use of the tests, together with other actions of the county that
plaintiffs described as discriminatory, [Footnote 2/1
] was alleged to be responsible
Page 440 U. S. 638
for substantially fewer blacks and Mexican-Americans being
employed by the Fire Department than were present in the population
The District Court found that the county had engaged in
employment discrimination and imposed a comprehensive racially
based hiring order. [Footnote 2/2
In granting this relief, the court apparently acted under the
assumption that the plaintiff class had standing to attack acts of
discrimination that occurred before any of the class members
applied for employment in 1971. The Court of Appeals for the Ninth
Circuit reversed this determination. As no past applicants were
included in the plaintiff class, the court held that respondents
could not challenge the legality of employment practices which had
no effect on post-1971 hiring. Respondents therefore were held to
lack standing to challenge the civil service test administered in
1969, as the list of eligible applicants drawn up on the basis of
that test had been exhausted before any of the class members had
sought employment. 566 F.2d 1334, 1337-1338 (1977). A majority of
the panel nonetheless affirmed the District Court's hiring order.
Respondents have not sought review of the determination of
standing by the court below. Accordingly, the county's
Page 440 U. S. 639
use of the 1972 test is the only employment practice now before
us. This narrows the controversy considerably from its original
dimensions, but it does not follow that a case or controversy
between the county and respondents no longer exists. This is
evident from a review of the facts.
The 1972 test was the same as the one administered in 1969,
except that some attempt had been made to screen out questions
thought to reflect cultural bias. After grading the test, the
county announced it would interview only the 544 applicants with
the highest scores, rather than the 2,338 applicants who achieved a
passing score. On January 8, 1973, five days after interviews
began, the county changed its plans and decided to interview all
applicants who had passed. [Footnote
] Respondents filed this suit on January 11, 1973. In their
second amended complaint, filed on April 16, 1973, respondents
alleged that the county decided not to use the 1972 test as a
screening device only because suit was about to be filed, App. 5,
and that the county would reinstitute such use unless an injunction
were issued, id.
at 7. The District Court found that the
1972 test was among the discriminatory employment practices in
which the county engaged, [Footnote
] and that the county had dropped its plan to tie interviews
to test performance because of the then pending suit. Id.
The court below agreed that the county's attempt to use the 1972
test as a selection device "had an adverse impact on the
Page 440 U. S. 640
racial class of plaintiffs." 566 F.2d at 1338 n. 6. In its view,
respondents therefore had standing to attack this conduct. After
determining what it considered to be the proper standard for
liability under § 1981, the court held that "the district court
properly found defendants' use of the 1972 written examination as a
selection device to be a violation of § 1981." 566 F.2d at 1341.
Turning to the scope of the relief ordered, a majority of the panel
expressed its approval of the District Court's remedial order.
Looking at the judicial "power under § 1981," id.
the majority ruled that "the district court properly exercised its
discretion in ordering affirmative action to be undertaken to erase
the effects of past discrimination." Id.
In addition to requiring an affirmative employment program to
achieve specified racial percentages in hiring, the District Court
ordered that petitioners
"are permanently enjoined and restrained from engaging in any
employment practice which discriminates on the basis of race or
national origin against the class represented by Plaintiffs in this
Action. . . . "
Page 440 U. S. 641
App. 45. If the District Court was correct, as the court below
held, in ruling that the threatened use of the 1972 test was an
employment practice that discriminated on the basis of race, then
an order to prevent the county from carrying out its threat would
have been appropriate. The fact that wrongful conduct has not yet
transpired does not leave a court powerless to prevent the
threatened wrong, if the likelihood of harm is sufficiently
substantial. Doran v. Salem Inn, Inc., 422 U.
, 422 U. S.
-932 (1975); Steffel v. Thompson,
415 U. S. 452
415 U. S.
-460 (1974); Doe v. Bolton, 410 U.
, 410 U. S. 188
(1973). Cf. Warth v. Seldin, 422 U.
, 422 U. S. 499
(1975); Linda R. S. v. Richard D., 410 U.
, 410 U. S. 617
(1973). [Footnote 2/6
The Court nonetheless holds that this case has become moot,
"there can be no reasonable expectation that petitioners will
use an unvalidated civil service examination for the purposes
contemplated in 1972,"
at 440 U. S.
-632. This assumption is contrary to findings of fact
by the courts below, is opposed by the parties who are subject to
the order to be dismissed, and manifestly is at odds with the
record in this case.
Neither of the courts below regarded the county's planned use of
the 1972 test as solely a response to what the Court characterizes
as a "temporary emergency shortage of firefighters." Ante
at 440 U. S. 632
The District Court, in assessing whether petitioners' announced
intention to use the 1972 test as a
Page 440 U. S. 642
selection device violated § 1981, found that this lawsuit was
responsible for the county's change in hiring procedures from
interviewing only high scorers to considering everyone who passed
the test. App. 39. The Court of Appeals agreed, and held:
"[Petitioners'] decision, prompted solely by the filing of this
lawsuit, to abandon the written exam as a selection device does not
moot the claim." 566 F.2d at 1341.
Nor have petitioners altered their position on the legality of
their use of testing since the decision below. Rather, petitioners
strongly assert that the controversy is still a live one. The only
suggestion of mootness that has been raised in this case comes from
the N.A.A.C.P. Legal Defense and Educational Fund, an organization
which is an amicus curiae
here but has not participated
previously in this litigation. Petitioners have attacked this
assertion and the factual assumptions on which it rests:
"The NAACP in reliance on statements of fact that appear
absolutely nowhere in the record, gratuitously advance the novel
theory that the petitioners have not been hiring under compulsion
of the quota order since it was entered in 1973. This contention is
not only irrelevant to the issue of the validity of the quota
order, but is simply not correct. The amicus'
representation itself describes a quota when it states that all
applicants are reduced down to three groups of whites, blacks and
Mexican-Americans in exact proportion to the 1-1-3 hiring
Reply Brief for Petitioners 20 n. 7. Petitioners continue to use
civil service examinations as a threshold barrier for employment
consideration, and the record is silent on their validation. To
comply with the District Court's order, petitioners have added
additional steps to the hiring process to take account of the race
of the applicants. The test scores of applicants are ranked
separately within each racial group, and the highest scorers are
Page 440 U. S. 643
interviews in the exact racial proportions specified by the
court order. Among those applicants who receive an interview,
preference is given to minority group members. But these steps
clearly are the product of the injunction at issue here, and do not
represent, as the Court's opinion states, a voluntary affirmative
The fact that the county, upon pain of contempt, has
substantially altered its use of examinations by the addition of
other steps that take account of applicants' race hardly can
support a finding that "there is no reasonable expectation" the
county will abandon its additional procedures once the court order
requiring them is dismissed. Our previous decisions make clear that
a case does not become moot simply because a court order redressing
the alleged grievance has been obeyed. NLRB v. Raytheon
Co., 398 U. S. 25
(1970); NLRB v. Pennsylvania Greyhound Lines, Inc.,
303 U. S. 261
303 U. S. 271
(1938). In United States v. W. T. Grant Co., 345 U.
(1953), on which the court below relied and which
the Court today attempts to distinguish, it was stated:
"Both sides agree to the abstract proposition that voluntary
cessation of allegedly illegal conduct does not deprive the
tribunal of power to hear and determine the case, i.e.,
does not make the case moot. United States v. Trans-Missouri
Freight Assn., 166 U. S. 290
v. Helmerich & Payne, Inc., 323 U. S. 37
(1944); Hecht Co. v. Bowles, 321 U. S.
(1944). A controversy may remain to be settled in
such circumstances, United States v. Aluminum Co. of
148 F.2d 416, 448 (1945), e.g.,
over the legality of the challenged practices. Walling v.
Helmerich & Payne, Inc., supra; Carpenters Union v. Labor
Board, 341 U. S. 707
, 341 U. S.
(1951). The defendant is free to return to his old
ways. This, together with a public interest in having the legality
of the practices settled, militates against a mootness conclusion.
United States v. Trans-Missouri
Page 440 U. S. 644
Freight Assn., supra
at 166 U. S.
, 166 U. S. 310
. For to say
that the case has become moot means that the defendant is entitled
to a dismissal as a matter of right, Labor Board v. General
179 F.2d 221 (1950). The courts have rightly
refused to grant defendants such a powerful weapon against public
"The case may nevertheless be moot if the defendant can
demonstrate that 'there is no reasonable expectation that the wrong
will be repeated.' The burden is a heavy one. Here, the defendants
told the court that the interlocks no longer existed, and
disclaimed any intention to revive them. Such a profession does
not suffice to make a case moot,
although it is one of the
factors to be considered in determining the appropriateness of
granting an injunction against the now-discontinued acts."
at 345 U. S.
-633 (footnotes omitted; emphasis supplied).
In my view, there is far less to the mootness issue here than to
that presented in W. T. Grant Co.
Petitioners, the subject
of the lower court's injunction, hotly dispute any suggestion that
no live issues remain. Furthermore, they did not cease voluntarily
their allegedly illegal conduct, and have not disclaimed an
intention to resume their use of civil service tests as a primary
hiring criterion. [Footnote 2/8
Nor, in light of this
Page 440 U. S. 645
record, could a disclaimer -- were it made -- satisfy the "heavy
burden" imposed upon a defendant seeking to have a suit dismissed
as moot. [Footnote 2/9
Page 440 U. S. 646
Furthermore, the Court's avoidance of the merits of this
controversy by its novel view of mootness leaves the county in a
quandary. Although it is not unreasonable to assume, following
dismissal of this suit as moot, that the county will again base
hiring on unvalidated aptitude tests, it also is possible that the
county may believe that hiring procedures of the sort previously
required by the order under review are necessary to ensure
compliance with federal law. The Court's disposition today will
leave the decision of the Court of Appeals on the merits as the
most pertinent statement of the governing law, even if that
decision is not directly binding. [Footnote 2/10
] Therefore, any future litigation against
the county, including the suit to assert the rights of pre-1971
applicants that the Court seems to contemplate, ante
440 U. S. 630
n. 3, is likely to be controlled by the decision of that court.
In sum, the Court's disposition leaves all of the parties in
positions of uncertainty: Respondents lack protection against the
resumption of the county's alleged discrimination, and the county
lacks a conclusive determination of the legality of its conduct.
All of these considerations militate against a determination of
mootness. See Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.
, 435 U. S.
-537, n. 14 (1978). Accordingly, I conclude that the
question of whether petitioners violated § 1981 is before
Page 440 U. S. 647
us. [Footnote 2/11
] I would
reach this issue and determine whether § 1981, like the Equal
Protection Clause of the Fourteenth Amendment, prohibits only
purposefully discriminatory conduct. [Footnote 2/12
The complaint also alleged that Fire Department personnel had
engaged in nepotistic and "word-of-mouth" recruitment, employed a
discriminatory interview procedure, used other procedures,
practices, and standards that disfavored minorities, and refused to
take affirmative action to correct the effects of past
discrimination. App. 5. The District Court found that the written
tests and the Department's failure to take affirmative steps to
overcome a reputation of discrimination among blacks and
Mexican-Americans constituted illegal discrimination, but held that
the use of a 5'7" height requirement for firemen was job-related,
and not discriminatory. Id.
at 39. The opinion of the
Court of Appeals relied entirely on the county's written
examinations as the basis for sustaining the District Court's
remedial order. 566 F.2d 1334, 1342-134 (1977).
In addition, the Court of Appeals reversed as clearly erroneous
the finding that the height requirement was job-related, and
suggested that the District Court could take further steps to
offset the allegedly discriminatory effect of this standard.
at 1341-1342, 1343. Petitioners have not sought review
of that question; rather they contend that the court below applied
t.he wrong legal standards in assessing generally the legality of
their employment practices.
The order required the county to select a minimum of 20% of its
new firemen from black applicants and another 20% from
Mexican-American applicants until the percentage of members of
these racial groups in the fireman workforce equaled the
percentages in the general population of t.he county. The county
also was required to file annual reports with t.he court on fireman
A stipulation signed by the parties in the District Court
incorrectly stated that the change in plans took place on January
8, 1972. It is clear from the face of the stipulation, however,
that the 1973 date was meant: the county could not have scheduled
interviews to take place on or after January 3, 1972, on the basis
of a test administered some time in January, 1972. No party has
contended here that the 1972 date was correct.
According to the stipulated facts, 19.8% of the applicants who
took the 1972 test were black or Mexican-American, but only 8.g% of
those 544 applicants who initially were scheduled for interviews
were minority group members.
MR. JUSTICE STEWART agrees that the case is not moot, but argues
that the § 1981 issue is not properly presented in this case. He
thinks the court below also rested its holding on a finding that
petitioners' conduct violated Title VII of the Civil Rights Act of
1964. While the matter is not free from doubt, it seems most
unlikely that the court below based its affirmance of the District
Court's sweeping injunction on its cryptic and offhand conclusion
that "[o]f course" the "continued threat" to base hiring on test
performance "is admittedly a violation of Title VII," 566 F.2d at
1341 n. 14. As the language quoted in the text illustrates, the
court grounded its decision expressly on § 1981. The one-sentence
reference to Title VII is divorced from any discussion of the
relationship between the purported violation and the relief
granted. Although the basis of the court's affirmance of the
injunction is not clear, see
566 F.2d at 1342-1344, it
apparently believed the District Court properly took into account
pre-Title VII violations of § 1981 in determining the scope of the
remedial order, in spite of respondents' lack of standing to seek
relief for themselves. Thus, the decision of the Court of Appeals
seems to have been based on a conclusion that independent
violations of § 1981 had occurred.
Petitioners challenged the standing of respondents to seek the
relief that was granted. The court below rejected this challenge in
part, holding that respondents could attack the threatened use of
the 1972 test. 566 F.2d at 1338 n. 6; id.
at 1347 n. 2
(Wallace, J., dissenting). The Court approves this holding today.
at 440 U. S. 631
I agree that respondents alleged injuries in fact, and sought
relief, adequate to meet our standing requirements, even though
they lacked standing to seek all of the relief accorded them by the
courts below. See Nyquist v. Mauclet, 432 U. S.
, 432 U. S. 6
(1977); Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252
429 U. S.
-264 (1977); Simon v. Eastern Kentucky Welfare
Rights Org., 426 U. S. 26
426 U. S. 41
(1976); Warth v. Seldin,
422 U.S. at 498-502; Linda R.
S. v. Richard D.,
410 U.S. at 410 U. S. 617
Cf. East Texas Motor Freight Systems, Inc. v. Rodriguez,
431 U. S. 395
431 U. S. 404
As we further observed in United States v. Oregon State
Medical Soc., 343 U. S. 326
343 U. S. 333
"[i]t is the duty of the courts to beware of efforts to defeat
injunctive relief by protestations of repentance and reform,
especially when abandonment seems timed to anticipate suit, and
there is probability of resumption."
Los Angeles, along with the city of San Diego, filed an
brief in a case before this Court which involved
personnel testing. In their statement of interest, these
"The Cities of Los Angeles and San Diego are municipal
corporations within the State of California. The interests of those
cities arise from their positions as public sector employers which
have charter requirements to hire individuals based on merit.
Pursuant to merit principles, both cities use various personnel
tests to hire and to promote individuals in the classified civil
"* * * *"
"Thus, both cities before this Court as Amici Curiae
have interests in maintaining personnel testing programs to fulfill
the merit system requirements of their municipal charters, as well
as interests in sustaining those personnel tests in
Brief for City of Los Angeles et al.
in Detroit Edison Co. v. NLRB,
O T.1978, No.
77-968, pp. 2, 4.
The assertion of the Court that "there can be no reasonable
expectation" that petitioners will base hiring on unvalidated
aptitude tests, ante
at 440 U. S. 631
lacks any record support, and is contrary to the assumptions upon
which the courts below based their actions. There has been no
change in circumstances of any relevance to the Court's conclusion
since petitioners attempted to use their unvalidated 1972 test as a
hiring device. Title VII, which the Court appears to suggest as an
intervening factor, applied with full force to petitioners when, in
January, 1973, they sought to limit hiring to applicants with the
highest scores on the 1972 test. Under W. T. Grant Co.,
the burden is on petitioners to demonstrate that there is little
chance they will resume their allegedly illegal conduct.
Petitioners have not attempted to meet that burden here. The
Court's assumption that in the future the county will seek to
validate its tests before relying on them not only is
unsubstantiated by the record facts, it also reverses the
presumption we normally apply in mootness cases. See, e.g.,
Hampton v. Mow Sun Wong, 426 U. S. 88
426 U. S. 98
and n. 14 (1976) (federal agency's new hiring regulation forbidding
challenged practice does not moot claim for injunctive and
It is instructive to compare the facts of this case with those
of DeFunis v. Odegaard, 416 U. S. 312
(1974). Here, petitioners have made no change in their hiring
procedures except in response to the court order, and have put on
this record no evidence that they contemplate any further changes.
The Court's belief that petitioners will not resume their use of
unvalidated tests rests solely on speculation. In DeFunis,
by contrast, the law school had admitted DeFunis to his final
quarter in school and represented to this Court that it would make
no attempt to rescind this registration. Unlike the case at bar,
DeFunis had not brought a class action; hence only his individual
right not to be discriminated against in law school admissions was
at stake. Id.
at 416 U. S. 317
Because it was virtually certain that DeFunis never again would
need to submit to the admission process he challenged, we held that
the case had become moot. Id.
at 416 U. S. 318
Even the very slight chance that DeFunis might not receive his
degree was considered sufficiently substantial by four Members of
the Court to render the case a live controversy.
Although a decision vacating a judgment necessarily prevents the
opinion of the lower court from being the law of the case,
O'Connor v. Donaldson, 422 U. S. 563
422 U. S.
-578, n. 12 (1975); A. L. Mechling Barge Lines v.
United States, 368 U. S. 324
368 U. S.
-330 (1961); United States v. Munsingwear,
Inc., 340 U. S. 36
(1950), the expressions of the court below on the merits, if not
reversed, will continue to have precedential weight and, until
contrary authority is decided, are likely to be viewed as
persuasive authority, if not the governing law of the Ninth
I cannot agree with MR. JUSTICE STEWART that the question
whether petitioners had violated § 1981 in the past was a matter of
indifference to the court below and would be immaterial upon
remand. See 440
fn2/5|>n. 5, supra.
In exercising its
"broad" equitable discretion as to granting any prophylactic
relief, see United States v. W. T. Grant Co., 345 U.
, 345 U. S. 633
(1953), the District Court could consider whether the county's
conduct was a single, isolated instance of illegality or part of a
pattern of unlawful conduct. This would rest on a determination of
the requirements of § 1981 prior to the 1972 amendment of Title
VII. Thus, a decision now on the § 1981 issue could affect the
substantial rights of the parties, and would not be an advisory
I am in agreement with MR. JUSTICE STEWART that, regardless of
the proper construction of § 1981, the only arguably illegal
conduct in this case could not justify the sweeping remedy ordered
by the District Court.