United States v. State of South Carolina

• Citation: 445 F. Supp. 1094
• Decision Date: 16 January 1978
• Docket Number: Civ. A. No. 75-1610.
• Parties: UNITED STATES of America, Plaintiff, and South Carolina Educational Association, the National Educational Association of the United States, Nathaniel Brown, Eunice Doe, Willie Edney, Roberta F. Hill, Anita P. Hunter, David Lawrence, Edward Pinckney, Adolph Simmons, Plaintiffs-Intervenors, v. STATE OF SOUTH CAROLINA, South Carolina State Board of Education, South Carolina State Retirement System, South Carolina Budget and Control Board, Charleston County Board of Education, Colleton County Board of Education, Richland District No. 1 Board of Education, on behalf of themselves and all other Boards of Education of similarly situated Public School Districts, Defendants.
• Court: U.S. District Court — District of South Carolina

445 F. Supp. 1094

UNITED STATES of America, Plaintiff, and South Carolina Educational Association, the National Educational Association of the United States, Nathaniel Brown, Eunice Doe, Willie Edney, Roberta F. Hill, Anita P. Hunter, David Lawrence, Edward Pinckney, Adolph Simmons, Plaintiffs-Intervenors, v. STATE OF SOUTH CAROLINA, South Carolina State Board of Education, South Carolina State Retirement System, South Carolina Budget and Control Board, Charleston County Board of Education, Colleton County Board of Education, Richland District No. 1 Board of Education, on behalf of themselves and all other Boards of Education of similarly situated Public School Districts, Defendants.

Civ. A. No. 75-1610.

United States District Court, D. South Carolina, Columbia Division.

April 14, 1977.

Judgment Affirmed January 16, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark W. Buyck, Jr., Columbia, S. C., Edward H. Levi, Atty. Gen., Drew S. Days, III, Asst. Atty. Gen., Alexander C. Ross, Thomas M. Keeling, Bruce L. Downey, Louis M. Stewart, Therese Obringer, Dept. of Justice, Washington, D. C., Craig K. Davis, Columbia, S. C., Richard M. Sharp, Washington, D. C., David Rubin, Washington, D. C., for the United States.

Daniel R. McLeod, C. Tolbert Goolsby, Jr., John L. Choate, Hardwick Stuart, Jr., Columbia, S. C., for State of South Carolina, S. C. Board of Education, S. C. Retirement System, S. C. Budget & Control Board.

George S. King, Jr., Columbia, S. C., for Richland Dist. No. 1.

Isadore Bogoslow, Walterboro, S. C., for Colleton County Board of Ed.

Augustine T. Smythe, Charleston, S. C., for Charleston County School Dist.

Howard P. Willens, Deanne C. Siemer, Theodore S. Sims, Washington, D. C., John S. Kramer, Gen. Counsel, Educational Testing Serv., Princeton, N. J., for Amicus Curiae—Educational Testing Service.

Wyche, Burgess, Freeman & Parham, Greenville, S. C., local counsel.

Kenneth L. Childs, Randall T. Bell, Columbia, S. C., Constangy, Brooks & Smith, Atlanta, Ga., for defendants.

Before HAYNSWORTH and RUSSELL, Circuit Judges and SIMONS, District Judge.

Judgment Affirmed January 16, 1978. See 98 S.Ct. 756.

ORDER

This is a decision in a bifurcated trial before a three-judge court. Pursuant to a prior Order of the court, only issues of constitutional and federal law with respect to liability were considered at the first three-judge hearing. Procedural issues with respect to the alleged plaintiff class and all issues with respect to the availability or amount of damages were reserved for later determination.¹

The United States brought this action on September 15, 1975, against the State of South Carolina, the South Carolina State Board of Education, the South Carolina State Retirement System, the South Carolina Budget and Control Board, and three local school boards in their individual capacities and as representatives of a defendant class of all local school boards in the State. The defendants are charged with violations of the Fourteenth Amendment to the Constitution of the United States and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., (1970), through the use of minimum score requirements on the National Teacher Examinations (hereinafter "NTE") to certify and determine the pay levels of teachers within the State.

On September 17, 1975, the South Carolina Education Association (SCEA), the National Education Association (NEA), and nine named individuals as class plaintiffs brought another suit against the same defendants in their official and individual capacities, seeking substantially the same relief sought by the U. S. Attorney General's suit, basing their actions also upon the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964, as amended; and, in addition, alleging violations of Sections 1981 and 1983 of Title 42 of the United States Code.

These plaintiffs moved to intervene in the Attorney General's action. This motion was granted on January 6, 1976, and they became the plaintiff-intervenors, and their separate action was stayed.

For over thirty years the State of South Carolina and its agencies have used scores on the NTE to make decisions with respect to the certification of teachers and the amount of state aid payable to local school districts. Local school boards within the State use scores on the NTE for selection and compensation of teachers. From 1969 to 1976, a minimum score of 975 was required by the State for its certification and state aid decisions. In June, 1976, after an exhaustive validation study by Educational Testing Service (ETS), and, after a critical review and evaluation of this study by the Board of Education's Committee on Teacher Recruitment, Training and Compensation and the Department Staff, the State established new certification requirements involving different minimum scores in various areas of teaching specialization that range from 940 to 1198. The court holds that these regulations are properly before it since the plaintiffs² were undoubtedly aware that the validity study by ETS upon which these regulations were based was well under way when the suits were filed.

The local boards are required by the State to hire only certified teachers, S.C. Code §§ 21-45, 21-371, 21-375, but there are no uniform standards with respect to test scores used by the local school boards in selecting from among the pool of certified applicants.

Plaintiffs challenge each of the uses of the NTE. They contend that more blacks than whites historically have failed to achieve the required minimum score, and that this result creates a racial classification in violation of the constitutional and statutory provisions cited in their complaints. Each complaint seeks declaratory and injunctive relief with respect to the use of the minimum score requirement in certifying and determining the pay levels of teachers, injunctive relief to upgrade the certification levels of teachers adversely affected by the minimum score requirement, and monetary relief for alleged financial losses of teachers, together with costs. Plaintiff-intervenors also asked for attorneys' fees.

Preliminary matters: There are three preliminary matters pending before this court which should be decided at the outset. By the court's order of June 17, 1976, rulings on the objections of all parties to the admissibility of certain evidence, and the determination of whether to certify the defendant class were reserved to the three-judge panel. At oral argument before the three-judge panel, plaintiffs moved for a review of the court's prior order permitting the defendants to conduct redirect examination of one witness by written questions.

Admissibility of evidence: We have considered all of the evidence offered by the parties and the objections thereto. In view of the fact that the court itself is the finder of fact, we admit and consider all of the evidence offered by all parties, and base our findings on the weight and probative value to be accorded the evidence in light of objections made by counsel.

Certification of the defendant class: Plaintiffs sought to bring their actions against a defendant class of all local school boards within the State, and by timely motion sought to certify the class under Rule 23, Federal Rules of Civil Procedure. The motion to certify is denied. The defendant class sought by plaintiffs does not meet the requirements of the Rule since they have failed to establish that there are questions of law or fact common to the class. Each of the 92 school districts involved apparently has different policies with respect to the hiring, salary and tenure of teachers. It appears that some districts hire only teachers with professional certificates plus additional credentials; some hire on the basis of professional certificates alone; others are willing to consider warrant holders. Some districts provide a local salary supplement for nearly all positions; while others provide such supplements for a few classes of positions or none at all. Further, the plaintiffs have made no proper showing that the three school districts named as class representatives have defenses that are typical of the class, and that they will fairly and adequately protect the interests of the class. Thus another requirement of the Rule has not been met by plaintiffs. It is therefore concluded that plaintiffs have failed to carry their necessary burden to establish that their action falls within any of the provisions of Rule 23 in order to justify the court's certifying it as a class action as sought by them.

Review of the Order permitting examination by written questions: Plaintiffs asked the three-judge panel to review and overturn the order entered by the district judge (acting for the three-judge panel in all preliminary and prehearing matters) granting a motion by the State defendants to make certain written questions propounded during discovery and the answers thereto a part of the record.

This dispute arose during the deposition of Dr. Winton H. Manning, a Vice President of ETS which administers the NTE. The plaintiffs deposed Dr. Manning for several days resulting in nearly 2000 pages of transcript. ETS being concerned with plaintiffs' inability to conclude the deposition of this senior officer offered to answer written questions in lieu of continuing the deposition by oral questioning.³ Plaintiffs agreed and submitted 188 written questions on cross-examination. ETS answered these questions promptly. Thereafter, Dr. Manning submitted to another day of oral cross-examination. Defendants then submitted 174 written questions in lieu of redirect examination by oral questions. ETS answered those questions. Plaintiffs then submitted 54 written questions in lieu of oral re-cross examination which ETS answered.

Plaintiffs objected to the admission into evidence of the answers to the questions on redirect examination. They urge that the procedure is not...