WILLIE ALLEN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF MOBILE ET AL., DEFENDANTS-APPELLEES

PER CURIAM:

Plaintiffs, black officers of the Mobile Police Department, sued the defendants claiming that various practices of the Police Department discriminated against Negro officers on account of their race.

We agree with the plaintiffs’ statement contained in their brief that the district court, in granting substantially all relief sought on the subject of racial assignment of officers, in ordering changes to reduce or eliminate the discriminatory impact of seniority and service ratings, and in requiring that instruction in intergroup relations be given to all officers and that the defendants undertake affirmative efforts to recruit black officers, has made possible substantial progress toward the achievement of the elimination of unlawful racial discrimination and the elimination of the vestiges of past discrimination.

Plaintiffs’ sole issue on this appeal, however, is that the district court, in fashioning a remedy, did not enjoin the use of a written test, which they contend is discriminatory as to blacks, given to promote officers to the rank of sergeant. The district court found that the test is job-related. We affirm the judgment of Chief Judge Pittman on the basis of his order and decree reported at 331 F.Supp. 1134 (S.D.Ala.1971).

Affirmed.

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

GOLDBERG, Circuit Judge, dissents from the denial of the Petition for Rehearing and the Petition for Rehearing En Banc.

. As a particularly sad example, the trial judge found it necessary from the evidence presented to him to enjoin the use of the epithet “nigger” in the police force; in addition, he found that there was assignment of police beats by race in open defiance of this Court’s decision in Baker v. St. Petersburg, supra, and various other overtly racial acts by the police department, all of which are delineated in the district court’s opinion. We acknowledge also the district court’s observation that a new administration appears to have decreased somewhat the more blatant discrimination in the department.

. The test in question is described by the district court. Allen v. City of Mobile, 331 F.Supp. at 1141. It is prepared by the National Public Personnel Association of Chicago, a cooperative organization of local and state civil service officers. However, I have examined the record, and I must conclude that the district judge was incorrect when he stated that Dean O. W. Wilson of the University of California, a renowned expert in the field, aided in the preparation of the test in question. The record demonstrates only that Dean Wilson’s materials were read by those preparing the test.

. The last scores available for use at trial were those recorded in 1968.

. I realize that the “compelling state interest” test in all of its ramifications has not yet been applied to situations involving so-called “unintentional” discrimination, and I do not analytically approach this dissent with the idea that this is a so-called “intent” ease.

Nevertheless, I do not fully agree with distinctions often drawn in similar cases between “intentional” and “unintentional” racial discrimination. See, e. g., Chance v. Board of Examiners, supra-, Castro v. Beecher, supra. It appears to me that “motive” is often simply another way of stating that the statistical evidence and the context in which the statistics are set are sufficient to allow, if not compel, a prima facie inference of “intent.” See Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. Similarly, one who employs a test that unerringly produces greatly divergent results among applicants of different races and who makes no attempt whatsoever to study or to justify the reasons for that divergence can reasonably be said to employ a discriminatory test with “intent.” His “intent” need not necessarily be the less for purposes of enforcing the Constitution simply because he continues to use a device with known discriminatory effect rather than choosing to announce openly his discriminatory employment devices or to couch such devices in methods less subtle than testing:

“[W]e now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme.” Hobson v. Hansen, D.D.C. 1967, 269 F. Supp. 401, 497.

The degree of “justification” by the state to maintain a process or device discriminatory in fact cannot turn simply upon the fact that one practice might have been transcribed into statute and another practice followed unerringly in fact. See Johnson v. State of Virginia, 1963, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195; Lombard v. State of Louisiana, 1963, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Cisneros v. Corpus Christi Independent School Dist., 5 Cir. 1972, 459 F. 2d 13 (en banc) ; United States v. Texas Education Agency, 5 Cir. 1972, 467 F. 2d 848 (en banc); cf. Hawkins v. North Carolina Dental Society, 4 Cir. 1965, 355 F. 2d 718; Cypress v. Newport News Gen. and Nonsectarian Hosp. Ass’n, 4 Cir. 1967, 375 F. 2d 648. Enforcement of the Fourteenth Amendment’s prohibitions against racial discrimination is not a matter of “punishing” those “guilty” of discrimination, and accordingly the degree of justification required in discrimination cases should not turn upon the relative degree of “offensiveness” among perpetrators of racially discriminatory acts. If the prohibition of racially discriminatory acts is far from “punishment” but is rather the enforcement of constitutional rights and responsibilities under the Fourteenth Amendment, then perhaps “intent” should mean nothing more than the knowing perpetration of a racially discriminatory act or practice. To attempt to differentiate the burden of proof that is required to justify a discriminatory act upon the existence or degree of bad motive on the part of the perpetrator of the act seems to me to focus upon an unworkable issue and to ignore the entire thrust and purpose of the Fourteenth Amendment.

However, I note again that the lack of a specific finding of so-called “intent” either by the trial judge or by this panel does not reflect in any way the substance of my dissent. I have approached the department’s action as “unintentional,” in the previously discussed meaning of that term.

. The state also presented the testimony of the executive director of the personnel board that administered the test, but it appears from the record that the executive director was not conversant with testing analysis and had himself made no personnel studies or analysis regarding the predictive or content validity of the test in question.

. I should note in passing a few of the questions in the test.

“31. The most important rule to remember when questioning children and low-intelligence adults is to (1) speak clearly. (2) treat them as any other suspect. (3) allow such suspects wide freedom of narration. (4) avoid suggestions. “32. The success of a patient, well-planned interrogation of a presumed guilty party pleading innocent is based on the assumption that it is (1) impossible to commit the perfect crime. (2) possible to detect the veracity of the suspect by observing him. (3) difficult to lie consecutively and logically. (4) impossible for the suspect to live with his guilt very long. “33. Boys aged 10 to 15 can provide reliable testimony and are especially keen observers in areas relating to (1) phenomena of nature. (2) intimate occurrences. (3) girls of the same age. (4) moral matters. “39. As a general rule, the first approach to questioning a suspect should be (1) emotionally confusing. (2) direct and friendly. (3) Stern and authoritarian. (4) indifferent. “40. To inspire full confidence on the part of his subject it is vital that the interrogator establish that his attitude is one of (1) dignity and objectivity. (2) belligerence and intimidation. (3) efficiency and aloofness. (4) sympathy and understanding. “46. Experience has shown that several types of motives predominate in arson cases. That one of the following occurs more frequently than all of the others is (1) revenge. (2) pyromania. (3) economic gain. (4) intimidation. “67. In deciding whether a case involving a juvenile delinquent should be referred to a casework agency or to juvenile court, which of the following factors would likely be the last to be considered? (1) the parents’ desire for help. (2) the juvenile’s school record. (3) the emotional needs of the juvenile. (4) the number of offenses committed by the juvenile. “73. The use of narcotic drugs by juveniles seems to progress according to three definite steps. Generally, the first step ultimately to addiction is the use of (1) alcohol. (2) marijuana. (3) opium. (4) codeine. “74. The largest number of juvenile delinquents appearing before the juvenile court fall into which one of the following age groups? (1) 12-14 year age group. (2) 16-18 year age group. (3) 14-16 year age group. (4) 18-20 year age group. “76. Authorities in the field of criminal behavior know that nearly all confirmed adult criminals (1) are sooner or later apprehended and punished for their crimes. (2) start their careers as juvenile offenders. (3) are substandard in intelligence. (4) develop as a result of no religious training. “77. The more effective the police are in reducing the frequency of contact, the more effective they are in reducing exposure to venereal disease.

Therefore, health authorities are in agreement that the most effective way to combat the spread of venereal disease is (1) to suppress prostitution. (2) to legalize prostitution. (3) to require regular medical inspection of all prostitutes. (4) to encourage and sponsor sex education classes in the secondary schools.” These are just a few of the questions, of course. But one could argue convincingly, I believe, that the above questions are (1) only very tangentially relevant. (2) subject to considerable disagreement among experts. (3) calling for very subjective judgments among close alternatives. (4) based on very specific knowledge not generally available or read. (5) all or any combination of the above.

.

The state argues that United States v. Jacksonville Terminal, supra, is inapposite to the instant case because the Jacksonville Terminal case involved an aptitude test for unskilled workers, while the instant case deals with admittedly very skilled work. I agree that police work is, of course, substantially more sensitive and skilled than unskilled baggage carrying, but I do not agree that this factor decreases the force of the excellent opinion in Jacksonville Terminal regarding immediate relief. The “labor pool” from which the Mobile police department draws for its sergeants consists of its own patrolmen, whose qualifications as police officers have never been questioned during the course of this case. I agree that the rationale of Jacksonville Terminal might be inapposite to the instant case if the potential “labor pool” from which police-sergeants were to be promoted for purposes of immediate relief were only the general pool of available labor.

However, the pool consists of men already very skilled in the task of being police officers, presumably very much the same skills required of a police sergeant. The rationale of Jacksonville Terminal is correct for the potential baggage-carriers of that case and for the potential police sergeants of this case.

. For example, the department could be required to promote one black patrolman for every eight white patrolmen promoted (approximately the ratio of black to white patrolmen). See, e. g., NAACP v. Allen, supra; Carter v. Gallagher, supra; United States v. Ironworkers Local 86, supra; Contractors Ass’n of Eastern Pa. v. Secretary of Labor, supra. Or the district court could adjust any test employed by the department so as to equalize more appropriately the racial effect of the test. See Cooper & Sobol, 82 Harv.L.Rev. supra. Such an adjustment would not amount to unequal treatment to the white applicants; rather, it would be a recognition of the effects of unsubstantiated racial or cultural orientation, and a corrective.