Walston v. County School Board of Nansemond Cty., Va.

• Decision Date: 19 February 1974
• Docket Number: 73-1493.,No. 73-1492,73-1492
• Parties: Syvalius WALSTON, Jr. et al., Plaintiffs-Appellants, v. COUNTY SCHOOL BOARD OF NANSEMOND COUNTY, VIRGINIA, et al., Defendants-Appellees, UNITED STATES of America, Plaintiff-Appellant, v. NANSEMOND COUNTY SCHOOL BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

492 F.2d 919 (1974)

Syvalius WALSTON, Jr. et al., Plaintiffs-Appellants, v. COUNTY SCHOOL BOARD OF NANSEMOND COUNTY, VIRGINIA, et al., Defendants-Appellees, UNITED STATES of America, Plaintiff-Appellant, v. NANSEMOND COUNTY SCHOOL BOARD et al., Defendants-Appellees.

Nos. 73-1492, 73-1493.

United States Court of Appeals, Fourth Circuit.

Argued November 6, 1973.

Decided February 19, 1974.

S. W. Tucker, Henry L. Marsh, III, and James W. Benton, Jr., Richmond, Va., James A. Overton, Portsmouth, Va., and Jack Greenberg and Norman J. Chachkin, New York City, for appellants, No. 73-1492.

J. Stanley Pottinger, Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., Brian K. Landsberg, Thomas M. Keeling, Daniel L. Bell, II, Dept. of Justice, Washington, D. C., for appellant, No. 73-1493.

Frederick T. Gray, Chesterfield, Va., and Joshua Pretlow, Jr., Suffolk, Va., for appellees.

Stephen J. Pollak, Richard M. Sharp; and David Rubin, Washington, D. C., for amicus curiae, National Education Ass'n.

Before CLARK, Associate Justice,^* BOREMAN, Senior Circuit Judge, and BUTZNER, Circuit Judge.

CLARK, Associate Justice:

I.

These consolidated cases are here on appeal from an order of the District Court denying injunctive relief, reinstatement and back pay to certain black teachers formerly employed by the County School Board of Nansemond County, Virginia. 351 F.Supp. 196 (1972). No. 73-1493 was originally filed on May 27, 1970 by the United States because of its dissatisfaction with the degree of desegregation in the Nansemond County School District under a freedom-of-choice plan. The action sought the total desegregation of the schools and faculties in the district controlled by the Board. Subsequently a desegregation plan submitted by the Board was ordered implemented by the Court for the school year 1970-71. The United States filed a motion in the case on June 1, 1971, for supplemental relief, alleging that the Board's plan had failed to disestablish the dual school system which had existed for many years in the district. It was further alleged that the Board had instituted a qualification and selection plan for the hiring and the retention of faculty members which had, in fact, substantially reduced its black teaching staff and that the Board had refused to demonstrate that its actions were not racially discriminatory. No. 73-1492 was filed against the Board on August 20, 1971, by thirteen black teachers as individuals and on behalf of the class represented by them. They alleged that the Board had racially discriminated against them and other black faculty members in violation of the Due Process and Equal Protection Clauses of the 14th Amendment by its application of certain testing criteria to them which resulted in the termination of their employment.

II.

Prior to the 1970-71 school year the Board had required each applicant to have a baccalaureate degree, a Virginia teacher's certificate endorsed for the grade or subject to be taught and three letters of recommendation. The controversy here centers on a new requirement of the Board adopted January 13, 1970 that teachers take the National Teacher Examinations (NTE) and present a minimum score of 500 on the Weighted Common section of the examination. Teachers in non-academic areas were exempted, such as physical and driver education and certain trade and industrial courses. Currently employed teachers were permitted to continue in their positions without taking the NTE; however if a school transfer was effectuated, the teacher could be placed on a three-month provisional contract until such time as there was an opportunity to give the examination. The NTE is given several times a year by the Educational Testing Service of Princeton, New Jersey. It consists of a Weighted Common section and a Teaching Area section. The former offers a general appraisal of the teacher's basic professional preparation and general academic attainments upon graduation from college and before entering the teaching profession. The latter is a test of the individual's command of a specific academic subject. The Educational Testing Service does not recommend that the test be used as the sole criterion for employment; however the Board did so use it here, making it the sine qua non of employment.

The Board's action required that the test be taken by all teachers who came to the School District in the 1970-71 school year and all subsequent applicants. However, as implemented, only those teachers completing their first year of teaching with the School District were required to submit an NTE weighted common test score of 500 or better. The remainder were grandfathered in.¹

Prior to the inauguration of the NTE, the faculty in the School District was 59 percent black, but after it was implemented, the percentage dropped to 52 percent by 1972. At the end of the 1970-71 school year twenty-five teachers were not offered new contracts and of those, twenty-one were black. Fifteen of these black teachers were terminated solely on the basis of their NTE scores.² Twelve of them had from two to twelve years of teaching experience while three had only one year. However, all fifteen had been recommended for retention by their respective principals, several with above average or better overall ratings. In 1970-71, 127 in-service teachers were required to take the NTE test, twenty-one were black and 106 white. Seventy percent of the blacks failed, while only two percent of the whites did so. Only two white teachers were not re-employed as a result of an unsatisfactory score on the NTE. During this same year, the Board employed nineteen white and nine black teachers, none of whom had a college degree nor took the NTE test. In 1970-71, thirty-two white and seven black new teachers were employed who held "collegiate certificates", a lower level certificate than the "collegiate professional" certificate awarded to teachers who had completed an education training program held by the dismissed black teachers. The District Court noted that teaching outside a teacher's area of certification was an additional ground for dismissal; yet it appears that the Board employed thirty-six white and thirty-two black teachers for the 1970-71 school year to teach academic subjects outside of those for which they were certified. For the 1971-72 school year, the number of black teachers was further reduced by thirty-one, while the number of whites increased by twenty-seven; eighty-two new white teachers were employed but only fifteen new black ones.

The statistics on employment of new teachers was thirty eight percent black in 1970-71, while it was only fourteen percent in 1971-72. Significantly, we note that of the appellants whose employment was terminated for insufficient NTE scores, some had been teaching for over a decade and none had been teaching less than one year. For example, Celestine Whitehead had taught in Nansemond County from 1966-68 when she resigned to join her soldier husband stationed in Europe. Upon returning and during the 1970-71 school year she received the Teacher of the Year Award from the Chuckatuck Ruritan Club. She was terminated that year because of a deficient NTE score, although her principal rated her outstanding or above average in all evaluation categories and recommended the renewal of her contract. Another teacher, Josephine Gatling, was employed to teach physical education and driver education, subjects that were exempted from the NTE test under the announced policy guidelines of the Board. Nevertheless, she was required to take the test and upon her failure to make a score of 500 she was terminated at the end of the 1970-71 school year. On the other hand, other teachers in brick masonry, auto mechanics and electronics were exempted. Another teacher, Thelma Corprew, had taught three years, the last year in Nansemond County. She was terminated in 1971 because of her NTE score. She took the NTE test again, making 505, but was told the faculty had no vacancies; yet three white teachers were employed to teach in the same grade after she had been refused.

III.

The trial court found that "there was no racial motivation involved in any decision of the school board" but held that this "lack of intentional discrimination" was not dispositive of the case although it acknowledged that two situations involving de facto discrimination in violation of individual rights were presented by the facts. The first was that the adoption of the NTE requirement resulted in the severance of more blacks than whites and secondly, that a "larger number of blacks were demoted or refused re-employment based upon the subjective evaluation form and the recommendation of the principal." The question, the Court posed, was whether the employment standards utilized by the Board were justifiable under the Equal Protection Clause. Citing Western Addition Community Organization v. Alioto, D.C., 330 F.Supp. 536 (1971), the Court reasoned that if there was "a reasonably necessary connection between the qualities tested . . . and the actual requirements of the job to be performed," at 539 "it would seem to make no difference whether the classification being attacked" was "on the basis of race . . . The test need only reasonably measure those abilities which are essential to the job to be performed." 351 F.Supp. at 203. The Court then applied this "reasonable measure" criterion and decided that, although the NTE had no "predictive validity", it did have "content validity — that is to say, the knowledge and abilities tested are those used in the job contemplated." It then found that the evidence, "including that from the plaintiffs' own experts, would seem to indicate that the test validly measures skills essential to the teaching profession." Finally, the Court adopted, absent any clearly conflicting evidence to the contrary, the views of one of the expert witnesses, Dr. Deneen, who "commented that many school districts abused...