Chance v. Board of Examiners
| Decision Date | 13 October 1977 |
| Docket Number | No. 458,D,458 |
| Citation | 561 F.2d 1079 |
| Parties | 19 Fair Empl.Prac.Cas. 1266, 14 Empl. Prac. Dec. P 7793, 15 Empl. Prac. Dec. P 7883 Boston M. CHANCE and Louis C. Mercado et al., Plaintiffs-Appellees, v. The BOARD OF EXAMINERS, Defendant-Appellant, and The Board of Education of the City of New York and the Chancellor of the City School District, Defendants-Appellees. ocket 76-7348. |
| Court | U.S. Court of Appeals — Second Circuit |
Saul Z. Cohen, New York City (Julius Berman, Howard A. Jacobson, Barry P. Schwartz, Kaye, Scholer, Fierman, Hays & Handler, New York City, of counsel), for defendant-appellant.
Elizabeth B. DuBois, New York City (George Cooper, Jeanne R. Silver, Jack Greenberg, Deborah M. Greenberg, and Legal Action Center of the City of New York, Inc., New York City, of counsel), for plaintiffs-appellees.
Deborah G. Rothman, New York City (Leonard Koerner and W. Bernard Richland, Corporation Counsel, New York City, of counsel), for defendants-appellees.
Leonard Greenwald, New York City (Frankle & Greenwald, New York City, and Gretchen White Oberman, New York City, of counsel), for amicus curiae Council of Supervisors and Administrators of the City of New York, Local 1, AFSA, AFL-CIO, SASOC.
Before GURFEIN and MESKILL, Circuit Judges, and NEWMAN, District Judge. *
A child who was in the first grade when this action was begun is now ready to enter junior high school. The case is on appeal to this court for the fourth time. 1 In the intervening seven years, the U.S. District Court for the Southern District has been engaged in the intermittent monitoring of the selection of principals and assistant principals of schools in New York City. The issue as it has narrowed on this appeal turns largely on an interpretation of the New York State Constitution and provisions of the New York Education Law. The federal question of racial discrimination in the selection of supervisory personnel as the cardinal issue has, at this juncture, receded.
The Board of Examiners ("Examiners") 2 appeals from a judgment of the U.S. District Court for the Southern District of New York (Pollack, J.), entered on July 7, 1976, which modified a Final Judgment on Consent entered July 12, 1973 (Mansfield, J., as District Judge), and a plan pursuant thereto approved by the District Court (Tyler, J.), by order entered March 25, 1975.
This action was commenced in September 1970 by the filing of a complaint alleging that prior examinations prepared and administered by defendant Board of Examiners for selection and licensing of supervisors 3 in the New York City school system discriminated against blacks and persons of Puerto Rican descent in violation of the Fourteenth Amendment and failed to accord with the requirements of New York State law. 4 Title VII was not then applicable to governmental bodies. 5 The complaint, a class action, sought to enjoin the Board of Examiners from giving examinations to determine the "merit and fitness" of applicants " . . . which had not been prepared and validated in accordance with the latest standards of professional psychological testing . . . ," and with the requirements of New York law.
On plaintiffs' motion for a preliminary injunction, the District Court found that no purposeful or intentional discrimination was being practiced. However, on the basis of statistical data concerning the comparative pass-fail rate for supervisory positions of blacks, Puerto Ricans and whites during the preceding seven years, 330 F.Supp. 203, 209, the court found a substantial disparity in the examination performances of blacks and Puerto Ricans compared to whites, and held that there was a substantial likelihood that this disparity evidenced a prima facie case of unintentional discrimination. Judge Mansfield (then District Judge) concluded that the Examiners 6 had failed to meet their "heavy burden" of making a "strong showing" that the tests were job-related, and issued a preliminary injunction barring the administration of any examination until the Examiners revised their tests to meet the standards articulated in the court's decision. 330 F.Supp. 203.
On appeal, this court affirmed the entry of the preliminary injunction, 458 F.2d 1167 (April 5, 1972). Basically, we agreed with the District Court's legal analysis that there was a prima facie case of de facto discrimination, and concluded that the District Court was not clearly erroneous with respect to its factual findings and conclusions and had not abused its discretion.
Both Judge Mansfield in his decision on the preliminary injunction (330 F.Supp. at 224) and this court in its affirmance (458 F.2d at 1179) expressed the expectation that new examinations would be speedily developed.
Following this court's 1972 decision, the Board of Examiners moved in the District Court on June 1, 1972, to modify the preliminary injunction to permit the development and administration of new examinations pursuant to a proposal submitted therewith. On the return date, Judge Mansfield, stating that the parties were more knowledgeable than the court about the creation of future test procedures, urged both sides to make a serious effort to reach agreement on a plan for new examinations, which he envisaged as requiring "specific examination procedures for numerous positions."
Thereafter, the parties commenced settlement discussions which, almost one year later, led to the execution of a Stipulation of Settlement by plaintiffs and defendant Board of Examiners and the Chancellor of the City School District. Pursuant to its terms, a final Judgment on Consent was entered on July 12, 1973 after notice to the class, with respect to defendant Board of Examiners and Chancellor (the "Consent Judgment"). Simultaneously, the District Court entered a parallel order with respect to defendant Board of Education ("the Board") which had refused to agree to the settlement. 7
The Consent Judgment established a two-part plan. Part One provided for an "interim" system for the selection and licensing of supervisors, essentially through on-the-job performance evaluations conducted by the Board of Examiners. Thus, supervisors appointed on an acting basis in accordance with the preliminary injunction could expeditiously be evaluated and obtain licenses without passing the customary plenary examination. 8
The Consent Judgment expressly provided that within six months, the "interim" system would be phased out and replaced by a permanent plan ultimately to be incorporated as part of the Consent Judgment.
Thereafter, the parties did submit to the District Court a Permanent Plan which was acknowledged to have been agreed to by all parties, except for two unresolved issues which the parties submitted to the court for resolution. 9 During the proceedings to resolve the two open issues, the parties continued to acknowledge their general acquiescence in the Permanent Plan.
On March 25, 1975, the District Court (Tyler, J.), entered an "Order Modifying Final Judgment and Order" (the "Tyler Order") which approved the Plan submitted by the parties in May 1974 (with additions relating solely to the two previously unresolved issues), incorporated it as part of the Consent Judgment, and authorized the defendants to prepare and administer examinations pursuant to it and thereafter to issue licenses based upon the results of such examinations. 10
Under the Tyler Order, as modified, the permanent licensing of supervisors was to consist of a Step 1 "Test" and a Step 2 "evaluation procedure" designed to effect "non-discriminatory personnel selection policies without abandoning the essential elements of a merit system." The Step 1 "Test" involved the issuance of provisional licenses to those who passed a plenary examination developed by the Examiners based upon a job analysis of the supervisory positions prepared by the Board of Education; the Step 2 evaluation procedure involved the issuance of permanent licenses to those who serve on the job in a position for one year and who pass a "Step 2" on-the-job performance evaluation by the Examiners.
It will be seen that this plan, to which all parties including the Board of Education consented, provided as a minimum prerequisite for provisional licensure some kind of examination, administered by the Examiners, designed to test for the job requirements established by the Board. It was assumed that the Examiners would develop the examination on the basis of the criteria set forth in the State Constitution and statutes discussed below. It was Judge Tyler's view that Opinion of April 1, 1975.
In the two years after the judgment was entered, the Board did not give the Examiners the job analysis criteria needed for the preparation of examinations. Although the Board had been furnished with three prototype job analyses by its consultant, the American Institute for Research by the Spring of 1975, the analyses were not turned over to the Examiners on the express ground that the Board believed them to be inadequate.
In January, 1976, the Examiners complained to the District Court at a pre-motion conference that the Board of Education was not diligently proceeding to carry out its responsibilities under Step 1 of the Plan. On the representation that more time was necessary, a six-week adjournment was granted. In March, 1976, at a second...
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