DOTHARD v. RAWLINSON

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Argument of G. Daniel Evans

Chief Justice Warren E. Burger: We will hear arguments next in Dothard against Mieth.

Mr. Evans you may proceed whenever you are ready.

Mr. G. Daniel Evans: Mr. Chief Justice and may it please the Court.

My name is Danny Evans, I am an Assistant Attorney General for the State of Alabama, counsel for the appellants.

My co-counsel with me is today is Mr. Eric Bowen, also of our Attorneys General’s office.

The facts of the case are basically these: This case presents an appeal from a Three-Judge ruling of the Middle District of Alabama striking down both the State Statute and an administrative regulation.

The case started as two consolidated class actions, both challenging different areas of Alabama Law on constitutional grounds, as well as statutory grounds under Title VII.

This appeal pertains only to the part of the order would struck down a height/weight requirement and a prison regulation.

The class that is affected by this order challenged a 5 foot 2, 120 pound, minimum height/weight requirement that is included in an Alabama Statute for law enforcement officers included, under that statute, our prison guards.

The action also challenged, although the plaintiff representative was not an employee, an administrative regulation of the Alabama Board of Correction which prevented guards of opposite sections working in contact position within penitentiaries in Alabama with inmates of opposite sections.

The court below found in regard to the statute that the height/weight minimums on the basis of 1960 statistical survey have a disproportional impact on women, and in that regard and on that basis solely they we found it to be a prima facie discriminatory under Title VII and enjoined its further application.

In regard to the Regulation the court made no finding of the prima facie showing of discrimination but merely present it to be discriminatory and evidently, explicitly due to its application of the bona fide occupational qualification of the defense.

Unknown Speaker: Now, we do not have to state duplicacy.

Mr. G. Daniel Evans: No sir you do not.

Unknown Speaker: Only the (Inaudible).

Mr. G. Daniel Evans: That is right Your Honor.

Unknown Speaker: Do these statistics that you are taking into account, the eligible females and eligible males, are they restricted to eligibles in the sense of being in the labor market or just to women in general and men in general?

Mr. G. Daniel Evans: That is all, Your Honor, just exactly that, and that is one of the grievances we bring to this Court is that the Court look to merely 14-year old statistics representing women between the ages of 18 and 79 in Alabama.

Now, certainly they could affect judicial knowledge of those facts.

There was no restriction -- you will found this on Page 32 of the jurisdiction statement -- there is no restriction as to the number of age brackets that would even be considered for the job or the number of the people which worked actually in the labor market itself, and certainly there was no finding as to the applicants, as this Court stated it should be in Albemarle.

Now, there are several issues before the Court by this appeal but due to the time limitations I intend to address only three.

From notification of the clerk he indicated that the Court would be interested in hearing a jurisdictional issue on the providence of this appeals as the outset.

Now, certainly the Court knows that probable jurisdiction was noted on November 29 but since at time the AFL-CIO filed an amicus brief challenging some aspects of jurisdiction, and we are prepared to argue that today.

Second issue, and we contend should be addressed by the Court, is the applicability of Title VII to the states.

In addition to that issue we intend to argue to the correct interpretation of the bona fide occupational qualification.

Unknown Speaker: With this respect to what kind of job here?

What job is at issue here?

Mr. G. Daniel Evans: A prison guard in the all male prison or all female prison with regard to the opposite sex.

Unknown Speaker: Nothing with the Highway Patrol.

Mr. G. Daniel Evans: No Your Honor, this appeal pertains only to the prison guard classification.

Unknown Speaker: And what is the issue there, height and weight or --

Mr. G. Daniel Evans: The two issue that in --

Unknown Speaker: Are they both here?

Mr. G. Daniel Evans: Yes Your Honor.

Returning to the first issue of jurisdiction and the providence of this appeal tell us contend a course that the court noted probable jurisdiction properly on November 29th.

The grievance of the AFL-CIO as amicus is that basically since Title VII which he used as the grounds for the part of the order and since it could have been used under their assumptions or the entirety of the order then the case should not properly be here as no constitutional finding was made by the court below.

At the outset we would point out the key facts of the case.

The complaint of the consolidated class action challenged Alabama Statutes and regulations on statutory and constitutional grounds.

Every statute that was brought in was challenged on constitutional grounds.

The Three-Judge Court ordered that pertaining to the Highway Troopers which is not before us was based solely on constitutional grounds, was a complete 1983 action having nothing to do with Title VII.

Unknown Speaker: As a matter of fact I gather that plaintiff here could not have brought a statutory action because she had never exhausted first before the commission.

Mr. G. Daniel Evans: That seems to be indicated rather record, yes your honor.

Unknown Speaker: So, then it had to be just a constitutional case.

Mr. G. Daniel Evans: That is correct.

Unknown Speaker: But that is not all of it.

Mr. G. Daniel Evans: That is not, that is not there.

That was before the Court when its decision to convene a Three-Judge Panel, was made.

Also in pertaining to this appeal the regulation which was enjoined was enjoined on both Title VII and constitutional grounds, and the statute which was enjoined have a constitutional allegation to it and we feel certain that the Court made that allegation from these facts.

Unknown Speaker: With the decision with respect to the statute was purely based upon Title VII, wasn’t it?

Mr. G. Daniel Evans: That is correct, your honor.

Unknown Speaker: And the decision with respect to the prison guards sexual regulation with the regulation was based on both.

Mr. G. Daniel Evans: That is correct, Your Honor.

Unknown Speaker: In the AFL amicus brief is that a fortiori if that was the Title VII case.

Mr. G. Daniel Evans: That is correct, your honor.

Unknown Speaker: In the light of Washington against Davis and other cases, if it did not violate Title VII it could not possibly violate the Constitution.

Mr. G. Daniel Evans: In effect Your Honor, that is their argument that the Title VII allegation makes insubstantial allegation of constitutionality.

Now, we feel --

Unknown Speaker: And that makes unnecessary.

Mr. G. Daniel Evans: We feel that for several reasons including our challenge to the constitutionality of application of the states of Title VII.

We feel that is inappropriate logic especially dealing with the providence of an appeal and previous cases of this Court held that the substantial constitutional questions are alleged in the complaint that a Three-Judge Court should be convened.

Furthermore --

Unknown Speaker: I do not think anybody including any amicuses saying that the invention of the Three-Judge Court was inappropriate.

Mr. G. Daniel Evans: I certainly help not your honor.

We contend that it was not --

Unknown Speaker: Well, that does not go to the question really of jurisdiction here.

Mr. G. Daniel Evans: Well, the following facts I believe do.

The merits of the claim were reached in this case too, and in fact one of the statutes was enjoined explicitly on the basis of constitutionality as well as a statutory question, and we feel it would be improper for the Court to ignore that determination.

We also feel that that would be improper for the Court to feel that a Title VII allegation makes insubstantial allegation of denial of the equal protection.

This Court recently in Philbrook versus Glodgett found that even if a court is properly convened and reaches the merits of the case, even if the final ruling is based totally on statutory grounds then that case should be on the direct appeal to this Court, and we feel that it is properly lie here.

The allegation that Title VII makes insubstantial, the constitutional allegation, we feel is remiss with many interpretations of the Three-Judge appeal.

Hagens v. Lavine a recent case by this Court indicated that that would be the most judicial efficienct with method of dealing with the -- statutory and constitutional claim were presented for the single judge to take the statutory claim, decide it, then take the constitutional claim if necessary and convene a Three-Judge Court.

Now, the several problems we see with that type of method -- but at outset I would point out in this particular case dealing with equal protection and dealing with a Title VII equal employment claim, the gravenment of the complaint in each is identical.

The method of proof in both will be very similar.

The judicial efficiency therefore in that regard would be almost nil of requiring that one judge to determine a statutory claim and then possibly changing the rate of an appeal for one party and then reconvening a Three-Judge Panel.

Unknown Speaker: Well the point is if the plaintiff prevails upon the statutory claim, the constitutional claim is never reached and the Three-Judge Court is never convened under the preferable procedure.

Mr. G. Daniel Evans: One blatant flaw we see in that Your Honor is that if the plaintiff does prevail on the statutory claim and the constitutional claim is never met then the defendant, if it should appeal, has to go the Circuit Court of Appeals.

Unknown Speaker: That is right.

Mr. G. Daniel Evans: If the plaintiff does in fact fail on the statutory claim the court finds that the constitutional questions are still viable convenes a Three-Judge Court and a direct appeal allows to this Court.

Unknown Speaker: Correct.

Mr. G. Daniel Evans: So, about adjoining an allegation constitutionality and a statutory claim the plaintiff is assured of a direct appeal to this Court whereas the defendant would not be, and we feel that that would be a denial of equal protection to the defendant and certainly an improvident interpretation of section 1253.

Unknown Speaker: Well the plaintiff isn’t assured a direct appeal to this Court if even on the constitutional claim the injunction is denied on some basis other than the merits of the claim.

Mr. G. Daniel Evans: That is correct Your Honor.

Unknown Speaker: So, there is not appeal then that is under --

Mr. G. Daniel Evans: If the merits are met, standing is proper and so forth, it would lie here.

We feel however though that that are constitutional challenge to Title VII and its application to the state is a significance in reaching the minutes of even the insubstantial, substantial argument regarding Title VII and the Fourteenth Amendment.

Unknown Speaker: Well, was that constitution challenge to Title VII?

I guess this is National (Inaudible).

Was that made below?

Mr. G. Daniel Evans: No, Your Honor it was not, it was not made below nor was it included specifically in our jurisdictional statement.

Unknown Speaker: Well, I do not see how that handles your argument that there is still appealability here.

Mr. G. Daniel Evans: For the simple fact that a --

Unknown Speaker: I mean that is an issue that was never attended, never decided below.

Mr. G. Daniel Evans: We feel that the issue should be decided by this Court for the simple fact that it has crucial bearing on the subject-matter jurisdiction of this case, and certainly if it is unconstitutional as we contend that it is then it would destroy any insubstantial argument of the constitutional claim.

Returning to that allegation --

Unknown Speaker: You have not argued Philbrook and Glodgett.

Mr. G. Daniel Evans: Well, Your Honor in Philbrook versus Glodgett the Court I think through Justice Rehnquist specifically stated that they would not consider Locomotive Engineers versus Chicago Rock Island, where it was specifically --

Unknown Speaker: Well, I think isn’t that footnote is the strongest precedent that you have?

Mr. G. Daniel Evans: Yes Your Honor and we contend that does support the jurisdiction here.

I would feel that that does support the jurisdiction but turning to the constitutional question which I feel is properly before the Court.

It is basically our argument that the 1972 amendments of Title VII pose an unconstitutional abridgement of state’s rights under the Tenth Amendment, as well as an unwarranted extension of the congressional power.

At the outset Title VII was justified on the Commerce Clause as the Court, I am certain familiar with.

In 1972 there was a post grip(ph) application including all state activities within its coverage.

There was no definition of the state activities in such commerce even in the most incidental fashion.

Unknown Speaker: Wouldn’t you at least have that counterclaim in the District Court in order to raise that sort of a constitutional question when the plaintiff is challenging the constitutionality of your own statute?

Mr. G. Daniel Evans: Your Honor, we raise it here on the basis of subject-matter jurisdiction and certainly the counterclaim --

Unknown Speaker: How do you spell that out?

You say you raised that as a matter of subject-matter jurisdiction.

Mr. G. Daniel Evans: Well, certainly if Title VII is to be used as the basis for declaring unconstitutional a statute and a regulation of the state --

Unknown Speaker: No, not as declaring unconstitutional --

Mr. G. Daniel Evans: Or declaring volitive -- excuse me Your Honor.

If it is to be used as that basis, certainly its constitutionality must be established, and if it is not the Court was without jurisdiction in a sentence.

Unknown Speaker: Well, that would sentence you to say as a defendant in the District Court and you never did.

Mr. G. Daniel Evans: Well, you certainly challenge the subject-matter of jurisdiction and of course as I am sure you are aware that that can be raised at in point.

Unknown Speaker: But you say subject-matter jurisdiction, I do not get your jump from the unconstitutional, as the claim of unconstitutionality of Title VII to subject-matter jurisdiction.

Mr. G. Daniel Evans: It our contention basically Your Honor that if the court below was to use a vehicle of Title VII to declare unconstitutional or declare volitive a state statute and regulation of Alabama.

It would be without subject-matter jurisdiction to do that if that statutory vehicle, i.e. Title VII was itself on that.

Unknown Speaker: But that is the merits, that is the merits, that is not a matter jurisdiction.

Unknown Speaker: They still have alleged the claim under 1331 and 1343 that your statute and regulations violate the Equal Protection Clause.

Mr. G. Daniel Evans: Yes Your Honor, and we feel that those claim, on the basis of facts, should be denied too, but here the statute was declared unconstitutional specifically on the basis of Title VII.

Unknown Speaker: Well, that is based on what, the Supremacy Clause?

Mr. G. Daniel Evans: Yes Your Honor, but if that -- we urge that if that is to be upheld the constitutionality of Title VII must also be examined to find out that the Court had subject-matter jurisdiction for the same allegation.

Unknown Speaker: If I may say so, I -- perhaps I am touse on this, but it seems to me is that that is a matter of defense, for you to assert in the District Court, the claim was that your practice has violated Title VII.

Put to one side for a moment the claim that they are unconstitutional, but that your statute and regulations violated Title VII.

And if you say in defense of that, Title VII is unconstitutional, that is for you to say in defense on the merits, but it has nothing to do -- and then it is up to the Court to decide it, the District Court in the first instance.

It has nothing to do with the jurisdiction of the District Court, does it?

Mr. G. Daniel Evans: It would have nothing to do with the jurisdiction of the District Court pertaining to the constitutional claim I believe Your Honor.

Unknown Speaker: No, no, to this Title VII claim, you are asking the District Court to hold the Title VII as unconstitutional as applied to you.

That is something for you to assert in defense on the merits of the claim against you.

There is nothing to do with the jurisdiction of the court.

Mr. G. Daniel Evans: We feel that it would in the fact that the Court would be without jurisdiction, even entertain those allegations…

Unknown Speaker: Do you think this Court, for example, without jurisdiction to hold something is unconstitutional?

Mr. G. Daniel Evans: No Your Honor, certainly not.

Unknown Speaker: What does it got to do with the jurisdiction of the Court?

Mr. G. Daniel Evans: By simple fact that the allegations and the basis of the ruling of the District Court were based on that statute.

Unknown Speaker: Yes.

Unknown Speaker: But all statutes of Congress are presumed constitutional.

Mr. G. Daniel Evans: Certainly Your Honor.

Unknown Speaker: And if you have not challenged them at all in District Court, I would not spend a lot of time arguing a point like that up here, if I would.

Mr. G. Daniel Evans: Well, Your Honor, I will certainly proceed with other arguments in that case, but we do earnestly contend that that is a viable issue before the Court and that it has been briefed and the Solicitor General has been notified of it.

Unknown Speaker: Mr. Evans you have fifteen minutes to discuss the merits of the case now.

Mr. G. Daniel Evans: I will proceed directly there Your Honor.

Now, the third issue which I intended to address today deals with the providence of a finding of a bona fide occupational qualification for contact positions within penitentiaries only in Alabama.

At outset as we have just argued, we feel that Title VII is inapplicable.

However, the factual considerations that would uphold it under equal protection analysis and under Title VII, we feel would justify as a bona fide occupational qualification.

The court below found it volitive of both, equal protection and the Title VII.

Nevertheless even if this Court should find that Title VII is applicable and should also find as the court below evidently assume that it is prima facie discriminatory, we feel that the facts below justify the defense with bona fide occupational qualification.

We do not urge a broad reason of the statute, many of the amicus have challenged that, we do not urge that it effaced a very purpose of the statute and we do not challenge the good intent of the Congress in this regard.

But if the bona fide occupational qualification is to be given anything more than an imaginary existence, certainly the facts of this case warranted.

The facts surrounding the regulation are these: The regulation was promulgated by the Board of Corrections of Alabama only after the solicited advice of the General Counsel for the EEOC.

It is not arbitrary, it does not just leave, get up to the open discretion, sets forth several criteria to be used in determining whether a contact position within a penitentiary should be subject to requiring a guard of alike sex with inmates.

It is limited only to contact positions and limited only to penitentiaries.

Alabama penitentiaries are unique in their selves as I am sure the all penitentiaries within each state, and certainly --

Unknown Speaker: What is the definition of the contact position?

Mr. G. Daniel Evans: The contact position in Alabama Your Honor, within the brief on Page 50 they are laid out, they have certain five criteria that deal with the position -- that define it as a regulation be it basically whether they would be in direct contact with inmates of opposite sex without anyone else around and requiring invasions of privacy, no other protection so forth as that.

Now, in reference to the justifiability of this particular regulation, we would point out some peculiarities about Alabama system.

The penitentiaries in Alabama are open dormitories, they are not single cell occupied, they have open communal toilets to allow open view into the penitentiaries by patrolling guards, we have multiple offenders only in Alabama penitentiaries, we have other facilities that house first offenders in use.

20% of the population are sex offenders.

We have farming operation at, at least, two of the four facilities that require extensive strip searching and path searching and guards are used interchangeably in all the positions in the prison for several reasons to promote their familiarity with institutions and also because of the shortage of manpower.

Now, the State of Alabama is not intending any type of discrimination for women in regard to its use in females or males in contact positions.

The state has been using women in minimum security institutions since 1974.

They have used them in work-release centers, in youth facilities, and we have encountered several difficulties in those facilities but nevertheless the overriding considerations of equal employment opportunity, we have used them in those facilities.

The Board of Corrections, it is our contention, in promulgating Regulation 204 deals with real contacts.

They cannot assume that inmates within the State of Alabama penitentiaries view every individual where equal protections lies.

They are dealing with the stereotypes that are perceived by the inmates within Alabama.

They have certain goals they must make sure the institution are secured, they must make sure have control of it, they must make sure that the inmates are safe and that their employees are safe, and these require realistic appraisal of the facts before them.

We feel that the record below of dealing with the Commissioner Lott's deposition who is commissioner of our Board of Corrections, recognizing the sexual stereotypes, the innate attraction of multiple offenders who have been long incarcerated to a female’s presence or vice versa are necessary and realistic concerns, and that these certainly justify the Regulation.

The evidence that was proposed to the contrary below does little we feel to impeach that the experts that were testified, starting with Mr. Nelson.

Mr. Nelson is the director of a minimum security institution in Chicago, and that institution houses persons with less than a year to serve.

They have been using women there for six months.

It is the single cell institutions.

They toilets are not communal, they are divided off and the inmate staff ratio was considerably less.

That primarily is the fact of the type of institution that we are dealing with.

Now, from his six months appraisal he said they have been good that we reviews that but he admitted that the federal system of which he is a part does not use women in the penitentiaries in contact positions and for obvious reason that we feel are adequately proposed today.

Mr. Sarba (ph) the other expert before the court below had never supervised women in any penitentiary, although he had been warden of two.

He had never known of any such situation of women being in contact positions in penitentiaries, but nevertheless he was sure that they would be very capable and would add to the normalization of the prison system, but we feel that this is simply not credible evidence to impeach the correctly promulgated Regulations of the State.

Unknown Speaker: The whole issue on the merits of the Title VII issue, whether or not this is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or the enterprises?

Mr. G. Daniel Evans: They are doing Regulation 204 Your Honor.

Unknown Speaker: That is the entire issue on the merits of the…

Mr. G. Daniel Evans: Regulation --

Unknown Speaker: And of the Title VII claim.

Mr. G. Daniel Evans: It is Your Honor.

Unknown Speaker: Except that there is height and weight thing under the statute.

Unknown Speaker: No, that has nothing to do with this.

Mr. G. Daniel Evans: That is correct the Regulation was cut down --

Unknown Speaker: To whom does the Regulation apply?

Mr. G. Daniel Evans: It applies to prison employees, the guards.

Unknown Speaker: Or it applies to people anybody who want to be selected off of the register has to satisfy.

Mr. G. Daniel Evans: Well Your Honor --

Unknown Speaker: Well, aren’t these assignments made from the training register.

Mr. G. Daniel Evans: The assignments as a correctional counselor -- this regulation was to certify correctional counselor --

Unknown Speaker: And then to certify them they come up to trainee register.

Mr. G. Daniel Evans: Initially it did Your Honor, that has been changed.

Unknown Speaker: Well, then how do you get on the trainee register?

Mr. G. Daniel Evans: The trainee register, you have to satisfy the height and weight requirement.

That is the difference.

Unknown Speaker: The Regulation deals very frankly with sex, with gender, if you will unlike the height and weight requirement which is a frankly the gender based distinctions.

Mr. G. Daniel Evans: It deals with the combination of sex, that is exactly Your Honor.

Unknown Speaker: Distinguishes between females and males as such.

Mr. G. Daniel Evans: Exactly Your Honor.

We feel the court below ignored the factual differences of the institution and the experts testified about, and the fact that Alabama uses women in its minimum security institutions and has longer than any institution that was proposed by the plaintiffs should not found as an inconsistent position which recognizing factual differences between a minimum security work release center and a penitentiary for multiple offenders.

Unknown Speaker: But were any these plaintiffs in this case on the register?

Mr. G. Daniel Evans: No, your honor, and I did not handle the case at trail, but I challenged or would challenge here if our plaintiff would preserve the standing, they did not even challenge the Regulation 204.

Unknown Speaker: Well they have to get on the register before there even eligible to be selected for counselor.

Mr. G. Daniel Evans: Exactly Your Honor.

Unknown Speaker: And to get on the register they have to satisfy height and weight limitations.

Mr. G. Daniel Evans: Exactly Your Honor.

Unknown Speaker: Which are not sexually oriented.

Unknown Speaker: How do you everreach the Title VII case then without until you decide whether the height/weight issue is -- you have to decide that first, don’t you?

Mr. G. Daniel Evans: To decide their standing probably not Your Honor, because the person is not an employee.

I would not think would have standing in any case.

Unknown Speaker: Well, isn’t the argument made that the heights weights implicitly, inherently involve a sex discrimination because the generality of men are bigger than the generality of women?

Mr. G. Daniel Evans: That is it, that is it your honor.

Unknown Speaker: But if we were to uphold the height and weight requirements, wouldn’t that be the end of the case as to these particular plaintiffs, because if they could not have met the height and weight requirements they could never have gotten on the trainee register and therefore they never would have had the confront the sexually described classification.

Mr. G. Daniel Evans: Then it would your honor.

Unknown Speaker: At place it would be holding that the height/weight requirements are appropriate standards for prison guards --

Mr. G. Daniel Evans: Yes, Your Honor.

Unknown Speaker: -- without respect to sex (Inaduible) what Justice Rehnquist has suggested.

Is that so?

Mr. G. Daniel Evans: Yes, Your Honor.

I think it would.

If it please the Court I would reserve the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Well, Ms. Horowitz.

Argument of Pamela S. Horowitz

Ms Pamela S. Horowitz: Mr. Chief Justice and may it please the Court.

I am Pamela Horowitz counsel for Appellee Dianne Rawlinson.

As the Court has requested I will initially address the jurisdictional point raised by one of the amicus briefs.

The Appellee’s position is simply that under its prior holding in Locomotive Engineers versus Chicago, Rock Island & Pacific Railroad, this Court clearly has jurisdiction of this appeal under 1253 and as recently as 1975 in Philbrook v. Glodgett, this Court refused to reconsider the Engineers doctrine, and I would submit that there is no reason for that doctrine to be reconsidered now.

Turning, if I may then, to the merits of the Title VII issues in this case.

There are two Title VII questions: The first involves the validity of height and weight requirements for employment as a prison guard in the Alabama system.

The second involves the validity of an administrative regulation which in effect provides that only like sex guards shall work in the State’s prison.

Unknown Speaker: Do you represent a single individual plaintiff, do you know?

Ms Pamela S. Horowitz: And she represents the class your honor which was certified as all women who are employed might be employed or are applicants for employment with the Board of Corrections.

Unknown Speaker: Who are under certain height and under certain weight?

Is at the end of class?

Ms Pamela S. Horowitz: No, your honor.

Unknown Speaker: It would have to be, wouldn’t it?

Otherwise it has no claim.

Ms Pamela S. Horowitz: Well, the individual plaintiff in this case did not meet the weight requirements.

Unknown Speaker: Right, and the class you represent therefore, I would suppose, would not meet either the weight or the height requirements, one or the other or else they would be a class without a grievance.

Ms Pamela S. Horowitz: Well, but I would submit that she clearly has --

Unknown Speaker: But what was the class that was certified?

Ms Pamela S. Horowitz: As I said it to you that was how the Court certified as all women who are employed, might be employed, or are applicants for employment with the Board of Corrections for the job of prison guard.

Unknown Speaker: Well, many such women would not be affected by the height and weight statute.

Ms Pamela S. Horowitz: That is true.

Unknown Speaker: Then how could they be members of the class.

Ms Pamela S. Horowitz: Well, they are members of the class for purposes of challenging Regulation 204 because they are clearly affected by the Administrative Regulation which excludes women from working in the male facilities.

Unknown Speaker: They never get on the roll.

If, as my brothers have pointed out, the height and weight requirement is valid then your named plaintiff never gets on the role and is never in a position to challenge the Regulation.

Correct?

Ms Pamela S. Horowitz: That is correct Your Honor.

Unknown Speaker: I think that your finding about the women is that women who are six feet tall and 150 pounds cannot qualify for the inside so-called contract positions.

That is really a subclass isn’t, it of your general class?

Ms Pamela S. Horowitz: Yes, I would say that they are a class of women that are clearly included in the class as it was certified by the District Court and that --

Unknown Speaker: All females would have a -- all women would be in a position to challenge the Regulation.

Ms Pamela S. Horowitz: That is correct Your Honor.

Now, with respect to the validity of the height and weight requirement, it is Appellee’s position as a facially neutral job qualification.

The height and weight requirement is governed by this Court’s decision in Griggs versus Duke Power Company and the rationale of that case was correctly applied by the District Court in a case sub judice.

The allocation of the burden under Griggs and cases where you are dealing with a facially neutral job qualification is that plaintiff bears the initial burden of proving a prima facie case by showing that the job qualification in issue has a substantial disparity impact on women.

Unknown Speaker: Ms. Horowitz, before you go on, which subsection of 2000e-2 (a) were you claiming under in your Title VII claim?

Section 1 about fail -- or if you will turn to 61 of the Appellant’s brief, that you are probably so familiar with them, you do not have to, but the subsection 1 talks about failing or refusing to hire and subsection 2 talks about limiting segregating or classifying.

Ms Pamela S. Horowitz: Subsection 1 Your Honor is relied on for purposes of the height and weight requirement and subsection 2 for purposes of the Regulation 204.

Unknown Speaker: They are cast in somewhat different language, I think.

Ms Pamela S. Horowitz: Yes, I agree they are.

Unknown Speaker: Subsection 2 more resembles the language with the section that was involved in Griggs than subsection 1.

Ms Pamela S. Horowitz: But I do not think that there is anything in the rationale of Griggs that would limit it to cases brought under subsection 2.

Unknown Speaker: You prefer to the rationale over holding.

Ms Pamela S. Horowitz: Pardon me.

Unknown Speaker: I say you are referring to the rationale rather than the holding.

Ms Pamela S. Horowitz: Correct.

I think that the import of Griggs is that Title VII looks to the consequences of employment practices and not to the motivation until that Griggs becomes the appropriate analysis whenever you have a showing that a facially neutral job qualification has a disparity impact on a protected class.

That in this case plaintiff made that showing, since Mr. Chiswick(ph) indicates that when combine the height and weight requirements disqualifies 41% of the women as opposed to less than 1% of the men.

Unknown Speaker: Now, what are the kinds of the women, the women who were looking for jobs or just women in Alabama as a class?

Ms Pamela S. Horowitz: Your Honor, the court below relied on the statistics which are national statistics of women 18 to 79, they are --

Unknown Speaker: All women between 18 and 79 are not in the job market, are they?

Ms Pamela S. Horowitz: That is true Your Honor and I would conceive that there is nothing in statistical evidence presented to the court below to show the actual effect on applicants of the height and weight requirement.

Unknown Speaker: Why was not that evidence presented, it is certainly available somewhere.

Ms Pamela S. Horowitz: Well, I would submit Your Honor that it is not easily available and that it should not be required as part of the plaintiff’s evidentiary burden under Title VII.

Because the height and weight requirement, I would submit is itself defining qualification and it discriminate, its evil is not only in the fact that it discriminates against anybody who applies and is rejected for being under the minimums, but it discriminates against all those who know of the minimums and do not apply because they do not need them.

It is unlike a test or an interview or those kinds of job qualifications where a potential applicant can not know, whether or not, he or she would be disqualified until he or she actually undertakes the test or the interview.

Unknown Speaker: Ms. Horowitz, what worries me about this case if the Alabama won’t discriminate against women.

They did it, they said, “No woman could be hired,” so what could is the weight and height there?

Ms Pamela S. Horowitz: Well, because the Regulation --

Unknown Speaker: Why would they waste that?

They have already said they can not have a woman.

Ms Pamela S. Horowitz: But the Regulation which says that women can not be hired applies to the all male penitentiaries in the state.

They were hiring only since 1954 –74, excuse me.

Unknown Speaker: That is worthy when it combined the two.

I mean when they knew -- as I understand the statute, when Alabama wanted to say, we would not hire a woman, they said, “We would not hire woman.”

Ms Pamela S. Horowitz: With respect to the four male penitentiaries --

Unknown Speaker: But I mean they knew how to say it, they knew how to say it.

Ms Pamela S. Horowitz: That is correct Your Honor, but I think it is also interesting to point out that Regulation 204 was promulgated while this lawsuit was pending.

Unknown Speaker: Don’t you think, they can put in a weight and a height restriction of some sort?

Ms Pamela S. Horowitz: Not when it showing to have a disparity impact on a protected class under Title VII, unless they show it to be job related.

Unknown Speaker: Well, could they say that they will not hire anybody weighting more than 400 pounds.

Ms Pamela S. Horowitz: I think that they can have it -- nothing in the Court’s decision --

Unknown Speaker: Would not that be fine -- there is nothing wrong with that?

Ms Pamela S. Horowitz: I think nothing in the Court’s decision prohibits them from having proportional hire…

Unknown Speaker: But they also say, “We will not hire anybody over the age of 55.

With approval this Court said that kind of thing.

Ms Pamela S. Horowitz: I would say they can and they do.

Unknown Speaker: This Court said so.

Ms Pamela S. Horowitz: But when the burden shifted in this case to the State to prove that the height and weight requirements were job related, I would submit that the court, that the State not only failed to carry its burden of showing that any height and weight requirements were related to the efficient performance of the duties of a prison guard, but they certainly failed to prove that these particular height and weight requirements had any relation to the duties of a prison guy.

They admitted that there was no meaningful study conducted prior to the application of the particular requirement of 5’2” and 120.

Chief Justice Warren E. Burger: Do you think that Court could not take judicial notice of the proposition of the heights and weights size as a direct relationship defining the functions of the prison’s guards.

Ms Pamela S. Horowitz: I think that that is permissible and that that is basically what the District Court said because the District Court said that --

Chief Justice Warren E. Burger: This Court can do it too, can’t it?

Ms Pamela S. Horowitz: Yes, Mr. Chief Justice, but I think that the conclusion that you reach is the same because as the District Court put it, even assuming that height and weight do have some relationship to strength and that strength is a facet of effective job performance as a prison guard.

There is absolutely no proof that anybody below the arbitrarily defined level of 5’2” and 120 pounds is unable to perform.

Chief Justice Warren E. Burger: But isn’t that traditional and usual line drawing process as to which we have said many, many times that any such line invariably excludes some that might well be included and includes some that might properly be excluded.

Ms Pamela S. Horowitz: I do not think Mr. Chief Justice that this Court has permitted that in Title VII cases.

In Griggs this Court said, that you are going after arbitrary and unnecessary barriers to discrimination.

Chief Justice Warren E. Burger: Griggs have nothing to do with this kind of a job requirement.

What if they had said 100 pounds and 4’8” that would be alright, wouldn’t it?

Ms Pamela S. Horowitz: Depending on the proof that they offer.

The burden is on the State --

Chief Justice Warren E. Burger: No, I am thinking of the Regulation.

In the first instance, the State needs no proof.

It is subjective decision based upon general experience, and suppose they say 4’8” and 100 pounds, would you have any quarrel with that?

Ms Pamela S. Horowitz: It would depend on what kind of proof that they have been used.

Chief Justice Warren E. Burger: No, they have made a regulation, no proof involved; you do not need any proof to make a regulation.

Ms Pamela S. Horowitz: I would not have any quarrel under this case.

Chief Justice Warren E. Burger: No, that is what I am talking about; you would not have any quarrel.

So, the issue is all itself drew a line that you do not like as compared to the line that you would find acceptable.

They have drawn the wrong line.

That is your case, isn’t it?

Ms Pamela S. Horowitz: They have drawn an arbitrary line which --

Chief Justice Warren E. Burger: With 4’8” and 100 pounds this would be just as arbitrary, wouldn’t it?

Ms Pamela S. Horowitz: Well, I am not conceding to you that that would be permissible; I am only saying that it would not necessarily be precluded by the Court’s decision to strike down 5’2”, 120.

Chief Justice Warren E. Burger: Let us pursue your other proposition.

The 4’8” and 100 pounds would not exclude all the women that you have been concerned about.

Ms Pamela S. Horowitz: Well, then you never reach to the question.

If you can not show the disparity impact -- that that burden is on the plaintiff, and if there is no disparity impact on a protected class, then there is no discrimination.

Chief Justice Warren E. Burger: It brings us around the circle again.

The State can draw a line, 4’8” and 100 pounds would be a tolerable line, but 5’2” and 120 is unacceptable line because of its exclusionary operative effect.

Ms Pamela S. Horowitz: That is correct your honor.

Unknown Speaker: Ms. Horowitz , can you give me name of any police force or prison guard system in the country that does not have a weight and height requirement?

Ms Pamela S. Horowitz: Yes, Your Honor the record, the evidence in this case shows that the Federal Prison System uses no height and weight requirement.

Unknown Speaker: I thought I said State, I thought I said State.

Ms Pamela S. Horowitz: Among State systems I do not know but it is my understanding from the amicus brief filed by California that California does not.

Unknown Speaker: I was just thinking that, I was just wondering how many police systems we would upset if we go along with you?

Ms Pamela S. Horowitz: Well, I would concede to this Court that the use height and weight minimums are quite common among law enforcement agencies, but I do not think that that is a permissible ground for upholding them under Title VII.

Unknown Speaker: Well, I just want to know --

Ms Pamela S. Horowitz: But it is my understanding that there are a number of -- the vast majority of law enforcement agencies do use minimum height and weight requirements, and there is at the present time I believe a lot of pending litigation dealing with the validity of such minimums.

Chief Justice Warren E. Burger: Did you undertake to show how many inside guards in contract decisions in the Federal System work, under 120 and 5 feet 2 or 4 whatever this --

Ms Pamela S. Horowitz: Not in the entire system, no your honor but --

Chief Justice Warren E. Burger: Wouldn’t then Title VII quite relevant if you not stand out?

Ms Pamela S. Horowitz: I do not think so, your honor because we did not rely on the failure of the other systems to not use height and weight requirements in proving our case to the court below and I do not think, and that is not necessary to an affirmance of that court’s holding.

Unknown Speaker: Ms. Horowitz, I am correct, am I not that both the height and weight requirement.

That was struck down under Title VII, wasn’t that?

Ms Pamela S. Horowitz: That is correct Mr. Justice Rehnquist.

Unknown Speaker: Then the other issue is also a Title VII issue namely bona fide occupational qualification, isn’t that so?

Ms Pamela S. Horowitz: That is correct.

Unknown Speaker: So, the only issue is we have both under Title VII--

Ms Pamela S. Horowitz: That is right your honor.

Unknown Speaker: No constitutional issue at all.

Ms Pamela S. Horowitz: That is right your honor.

Unknown Speaker: Who was that wanted to be the prison guard?

What name is?

Ms Pamela S. Horowitz: Rawlinson.

Unknown Speaker: Rawlinson?

Ms Pamela S. Horowitz: Yes.

Unknown Speaker: She was the one who was excluded basically because of height and weight in contract and she is the one who was perfect at the procedural steps.

Ms Pamela S. Horowitz: That is correct.

Unknown Speaker: Mrs. Mieth had perfect --

Ms Pamela S. Horowitz: No, her claim -- she was suing the Department Public Safety for a trooper position, she comes under the constitutional claim.

Unknown Speaker: Now, her claim is not here.

Ms Pamela S. Horowitz: That is correct this is Title VII, which brings us to --

Unknown Speaker: But she also applied, and may be this where I am confused, she wanted to be either a state trooper or a correctional officer, was that is?

Ms Pamela S. Horowitz: No, when Mieth wanted to be a state trooper, Rawlinson wanted be a correctional officer.

Justice William J. Brennan: Now the one who wanted to be state trooper is no longer in the case at all.

Ms Pamela S. Horowitz: Right, the Department of Public Safety shows not to appeal.

Justice William J. Brennan: We would have only one name.

Ms Pamela S. Horowitz: That is correct Mr. Justice Brennan.

Justice William J. Brennan: That is who?

Ms Pamela S. Horowitz: Dianne Rawlinson.

So, the name of the candidate --

Justice William J. Brennan: I do not know Doctor Mieth, but Mieth is not there.

Ms Pamela S. Horowitz: That is correct.

Turning to the merits of the other Title VII claim in the case that is whether Regulation 204 comes within the BFOQ defense.

It is Appellee’s position that sets it clear that all of the indicia of the proper construction of the BFOQ defense point to the fact that it is an exception which is to be narrowly constructed.

I would propose to this Court, that the standard which should be formulated to determine the applicability of the defense is whether the classification seeks a permissible objective and whether it is necessary to be achievement of that objective.

Congress used the word ‘necessary’ in the defining a BFOQ, i.e. that which is reasonably necessary to the effective operation of a business or enterprise, and I think that this standard is the appropriate one for allowing the employer to come within the exceptions when the evidence warrants it but making sure that the exception is not allowed to swallow the rule.

Now, applying that standard to the facts in this case, I would submit to the Court that the District Court was clearly correct in refusing to apply the BFOQ defense.

The first justification advanced by the State in support of Regulation 204 was that women would be unable to safely and efficiently perform the duties of a prison guard.

Now, that is clearly a permissible objective.

In other words it is -- plaintiff does not argue that it is not permissible for the State of Alabama to want to have a safe and efficient workforce in its prisons.

The question then becomes whether or not Regulation 204 is necessary to the achievement of that objective.

Unknown Speaker: Now, this has to be addressed in the context of this type of penitentiary, all male housing only multiple offenders.

Is that right?

Ms Pamela S. Horowitz: That is correct.

I would --

Unknown Speaker: 20% of whom are there for sex related offenses.

Ms Pamela S. Horowitz: I do not think is that is proved that I would concede --

Unknown Speaker: Well I thought that is in the record.

Ms Pamela S. Horowitz: That I think what -- it is in the opinion as the State alleged that 20% of the offenders are sex offenders, but I wouldn’t quiver over it because I do not think -- I would concede that some are and I do not think it makes a difference to the determination.

Unknown Speaker: What percentage are, if this record shows it, in these institutions were crimes of violence?

Ms Pamela S. Horowitz: I do not think the record shows the percentage but it is clear that a number of them are, if not, the majority.

Unknown Speaker: That is true with most state prisons in our Country, isn’t it?

Ms Pamela S. Horowitz: But I would submit that the burden with on the states to offer factual objective data that women could not perform in this kind of prison setting and that that proof is simply not in this record.

There is a reliance on sexual stereotypes which is clearly not permissible under Title VII and in effort to come within the BFOQ defense.

Unknown Speaker: Wasn’t the reliance rather on the prisoner’s sexual stereotypes?

Ms Pamela S. Horowitz: There were allegations to that effect Your Honor.

Unknown Speaker: Well wasn’t that the reliance on the BFOQ defense that the prisoners would have this image about female custodians?

Ms Pamela S. Horowitz: Well, I think that is also clear from the testimony that the prison administrators who testified in this case have agreed that women will innately incapable -- I mean the Commissioner of Corrections testified that women are sex objects.

Unknown Speaker: That in the view of incarcerated that all male prisoners where all of them guilty of multiple offenses, that wasn’t the BFOQ defense premised upon the attitude of those prisoners toward women guards.

Ms Pamela S. Horowitz: Well, I would submit Your Honor that that was only a part of the argument.

Unknown Speaker: Well, was it a part or not?

Ms Pamela S. Horowitz: Yes, it was a part, but I do not think it was what the state intended to rely on.

Unknown Speaker: Well, I rather thought it did in its argument, and then of course, you would counter with the cases that say that customer stereotypes could not relied upon this Steward(ph) cases and so on, then I was going to ask you if this isn’t a little different from customer as this is a nature of a incarcerated human being.

Ms Pamela S. Horowitz: Yes, I would not analogize that you -- customer preference --

Unknown Speaker: You did in your brief.

Ms Pamela S. Horowitz: I think that -- well that was not my intention if that was how it was read.

The way I would handle customer preferences under the formulation I have suggested to the Court to deal with the BFOQ defense if that being whether the classification seeks a permissible objective, that if the defense with customer preferences that is not a permissible objective under Title VII, and you do not go beyond that point.

But I am not attempting to analogize prisoners, the customers by any means.

I think that that comes in, in terms of dealing with the justification advanced by the State dealing with the privacy needs of the prisoners.

But if I may just summarize again the evidence presented on the question of whether or not women can safely and efficiently perform the jobs, it is Appellee’s contention that the state did not offer any factual data to establish that women in fact cannot perform that they relied in no small measure on sexual stereotypes that the evidence established and the District Court found that women were working satisfactorily in contact positions in the non-penitentiaries, that this District Court was unusually familiar with conditions in the Alabama penitentiaries, because Judge Johnson, one of the members of the Three-Judge Court had just handed down a ruling dealing with conditions in these prisons.

And that this Three-Judge Court unanimously found that the evidence just was not there that women could not perform and that that requires an affirmance.

Even though the burden was clearly on the defendants to prove women could not perform, it is also to be noted that the plaintiff introduced expert testimony from prison administrators that women were performing in this capacity elsewhere and in a satisfactory manner.

Justice Thurgood Marshall: In multiple offender institutions?

Ms Pamela S. Horowitz: Yes, Mr. Justice Marshall.

Justice Thurgood Marshall: I thought this Chicago man was a first term prisoner.

Ms Pamela S. Horowitz: No, Your Honor, the record reflects in his testimony is a maximum security prison and he has sex offenders and those who have committed violent crimes as well as --

Justice Thurgood Marshall: My word was multiple.

Did he have multiple offenders?

Ms Pamela S. Horowitz: I believe that that his testimony reflects, yes.

Justice Thurgood Marshall: Well, then the Attorney General was wrong.

Ms Pamela S. Horowitz: Yes.

Unknown Speaker: We have the amicus brief in California here too.

Ms Pamela S. Horowitz: Yes, that is correct.

Unknown Speaker: Was there BFOQ defense asserted to the statutory, to the attack on the statute as contrasted with the Regulation?

Ms Pamela S. Horowitz: The height and weight requirements?

Unknown Speaker: The height and weight requirements.

Ms Pamela S. Horowitz: No, Your Honor.

The justification attempted there was the relationship that the height and weight minimum is there to strength, but there was no assertion of BFOQ is an affirmative defense.

Unknown Speaker: There was not?

Ms Pamela S. Horowitz: No and the position of the Appellee that the District Court preceded correctly, because I would submit to this Court that when you are dealing with a facially neutral job qualification, Griggs is the standard, when you are dealing with gender based discrimination, such as we find in Regulation 204, then the BFOQ defense is the standard.

If it is not pleaded, since it is the burden on the defendants that ends the case.

If I may quickly also address the second justification advanced, by the State in support of Regulation 204, which was the privacy needs of prisoners, again I submit to this Court that the proper question to be asked is whether Regulation 204 is necessary to the achievement of the state of objective.

Again, I would concede it is permissible that there are privacy needs, which the prison administrators rightly should concern themselves with.

Our position, however, is that the State failed to prove that Regulation 204 was necessary to the achievement of this objective, because the evidence is clear that the sexual aspects of the job, which are basically strip searches, can be separated from the non-sexual aspects, and the State attempted to offer no reason at all why it could not achieve its objective, as the District Court suggested, that is by selective work responsibilities as opposed to the total exclusion of women.

Indeed we are dealing primarily with the four male penitentiaries and the evidence reflected that in two of these facilities no systematic strip searches are conducted, and in the other two, less than 25% of the workforce is involved in systematic care.

Unknown Speaker: Are there women’s prisons in the State?

Ms Pamela S. Horowitz: There is one women’s prison Your Honor which you --

Unknown Speaker: Are those all female guards?

Ms Pamela S. Horowitz: There are not any male guards in contact positions, there are males in non-contact positions, but since there is only one prison it employed 6% of the workforce, and when you are dealing with the four male penitentiaries, you are talking about 77% of workforce.

Unknown Speaker: Did I understand you correctly to suggest that the height/weight restriction is not justifiable by as a bona fide work qualification?

Or is that issue here, is it open that is --

Ms Pamela S. Horowitz: It is not here and I would submit that, the height –-

Unknown Speaker: It isn’t even open.

Ms Pamela S. Horowitz: -- that facially neutral job qualification are not be judged by the BFOQ exception that the defense --

Unknown Speaker: Well, the defense was not asserted as --

Ms Pamela S. Horowitz: And it was not pleaded.

No, it was not asserted…

Unknown Speaker: Now, what are they to be justified by?

Ms Pamela S. Horowitz: By the Griggs test, job relatedness.

Unknown Speaker: But you have emphasized the searching problem that is only one element, there is the problem of patrolling a dormitory type of institution where there are open doors and people moving around constantly.

That is a far more important factor than the search problem that you emphasize.

Ms Pamela S. Horowitz: I would submit Your Honor that since we are talking about the BFOQ defense that the burden was on the State to show that there were other sexual aspects of the job that could not be separated, and in the non-penitentiaries --

Unknown Speaker: Well, isn’t that judicially noticeable when you heard there is a recitation of the facts?

Ms Pamela S. Horowitz: I do not think it is Your Honor when the facts include the evidence that in the non-penitentiaries Alabama is employing women in contact positions and the only restriction that they have placed on the women is that they do not conduct strip searches.

They are patrolling, they are conducting bathroom inspections, and I do not see how the State can admits on the one hand to evidence showing that women do that work in non-penitentiaries, and then come back and somehow say, well, they can not do it in penitentiaries.

So, that would be my reason for saying that the only thing this Court need to concern itself with, with respect to the privacy issue, is the systematic strip searches, and that the evidence in this case clearly indicates they can be handled as the District Court ruled they should be, and this is the proper standard under the BFOQ defense.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Evans, do you have anything further?

Rebuttal of G. Daniel Evans

Mr. G. Daniel Evans: May it please the Court, I have a few things to state.

I did not mean to imply Justice Marshall that the prison in Chicago is a first offender institution, it is multiple offended, that what I stated, I believe was that they all have less than a year to serve and it is single cell and so forth.

The State did try to make selective work responsibility.

That was a whole promulgation, the whole reason behind Regulation 204 is to assign women in male prisons where they could be used and still meet the needs of the State and to assign males in the women prisons where they could be used.

Now, we use them in the youth centers and in the work release centers.

As our youth centers, the boys or first offenders, non valid inmates have got less than ten years to serve, and they are going to school during the day.

At the work release centers, all the inmates are gone during the day to jobs.

There is certainly no patrolling situation like here in the penitentiaries.

I would like to address briefly the prima facie showing against the height and weight statute.

The only thing was shown in this case was some census figures that were taken in 1960 about women between the ages of 18 and 79.

There was no attempt whatsoever to show women in the Alabama workforce, they were eligible for employment as prison guards, no attempt whatsoever.

We feel that the Court could have taken judicial knowledge of this and this is certainly not sufficient to show and the challenge to the state statute is being prima facie discriminatory.

In Griggs the Court did find a statistical disparity plus a past practice of over racial discrimination made out a prima facie case of discrimination.

We do not have any past practice here, we do not have any over discrimination in the past, there is nothing shown by some census figures, and we certainly contend that the Griggs decision is limited by those circumstances.

Unknown Speaker: How long is the statute been in the books?

Mr. G. Daniel Evans: 1971 Your Honor.

Unknown Speaker: 1971.

So, for at least six years until now, anybody under 5’3” in height and 120 pounds in weight would -- that there is no point in applying, don’t you think?

Mr. G. Daniel Evans: Well, Your Honor we contend that they are not that widely known because obviously the plaintiff representative in this case had a Masters degree in criminals psychology proposed to have some law enforcement experience and had no idea that there was such a height and weight minimum.

Justice Marshall questioned earlier about the widespread use of these things.

A Lawyer View Article which we cited in brief, there had been some investigation of that and found that 47 of the 50 largest police forces is in the country do use those, and we are unaware of any state troop force in the country that does not use some type of height/weight requirement.

As far as drawing the line which I believe Mr. Chief Justice mentioned earlier, this job is not like an airline job where you can tell if the person is so many inches long then he can reach to the paddles in the controls.

This is a job which has a peculiar function, the duties are unpredictable, there is high risk involved and there in a maximum amount of state responsibility both to the inmates as well as the population which surrounds the prisons, and the whole of the State is such a rigid standard or to a mathematical certainty to have to say that a person 5’2”, 120 pounds can always do the job, whereas a person 5’2” 115 pounds can never do the job, we feel that is certainly unjustified and in a derogation of the Tenth Amendment.

Unknown Speaker: Mr. Attorney General, I assume that in Alabama the guards inside do not have weapons.

Mr. G. Daniel Evans: That is correct Your Honor.

Unknown Speaker: The only thing they have is their (Inaudible).

Mr. G. Daniel Evans: They carry knife sticks, or if they are sticks --

Unknown Speaker: That is all?

Mr. G. Daniel Evans: That is all Your Honor, and of course they are minority.

My time is expired.

Thank you.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.