Armstead v. Starkville Municipal Separate School Dist., 71-2124.

• Citation: 461 F.2d 276
• Decision Date: 09 June 1972
• Docket Number: No. 71-2124.,71-2124.
• Parties: Bernice ARMSTEAD et al., Plaintiffs-Appellees, v. STARKVILLE MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

461 F.2d 276 (1972)

Bernice ARMSTEAD et al., Plaintiffs-Appellees, v. STARKVILLE MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellants.

No. 71-2124.

United States Court of Appeals, Fifth Circuit.

June 9, 1972.

Thomas J. Tubb, Tubb & Stevens, West Point, Miss., A. F. Summer, Atty. Gen. of Miss., Jackson, Miss., William Q. McKee, Edward F. McDowell, McKee & McDowell, Starkville, Miss., for defendants-appellants.

Stephen J. Pollak, Richard M. Sharp, Washington, D. C., T. H. Freeland, III, Oxford, Miss., David Rubin, Deputy Gen. Counsel Nat. Education Assn., Shea & Gardner, Washington, D. C., of counsel, for plaintiffs-appellees.

Before RIVES, COLEMAN and DYER, Circuit Judges.

DYER, Circuit Judge:

Starkville Municipal Separate School District appeals from the district court's judgment, 325 F.Supp. 560, based upon findings that a test given to teachers to qualify for employment was not substantially related to the knowledge and skills required of primary and secondary school teachers and its use by Starkville was both unreasonable and discriminatory. We affirm in part and reverse in part.¹

In April, 1968, Starkville adopted School Board Policy 13-69. The policy, as amended in April and August of 1969, provided, inter alia, that in order to be considered for a teaching position a candidate must submit:

d. An official transcript of the candidate\'s scores on the Graduate Record Examination with a minimum score of 750 on the verbal and quantitative sections or a percentile score of 60 or above on the advanced section in education or the special subject field in which the candidate is endorsed to teach.

e. As an alternative to "d" above, a score of 500 on the commons section of the National Teacher Examination and a score of 500 on the teaching fields section of the NTE will give provisional status to the candidate until the Graduate Record Examination score requirements are met.

f. As an alternative to "d" above, a teacher who holds a Master\'s Degree in any field or who holds an AA Teaching Certificate will not be required to present GRE or NTE scores.

g. As an alternative to "d" above, a teacher who is enrolled in a graduate school program of education which is designed to lead to the Master\'s Degree in Education, which might be completed within a two year period after employment, will not be required to present GRE scores, provided that one-half of the required hours are earned during the first year of employment. Teachers who were employed during the first year these regulations were in effect will be allowed to qualify by acquiring the Master\'s Degree prior to September, 1970.

h. A teacher who has not taken the Graduate Record Examination at the time of interview for a position may be employed, subject to qualification on the GRE and who agrees to take the GRE on the first available testing date. Teachers who receive GRE scores, after employment, who do not qualify will have the assurance of serving only one year even though the GRE scores do not meet the minimum requirements.

In addition to the above testing requirements for new teachers, incumbent teachers were also compelled to meet similar criteria for retention. These were as follows:

1. Teachers who are currently employed in the Starkville Public Schools must attain a minimum combined score of 640 on the verbal and quantitative sections of the Graduate Record Examination.

2. As an alternative to "1" above, the teacher may qualify by ranking in the 50th percentile, or higher, on the GRE in education or in the special subject matter field in which the teacher is endorsed.

3. As an alternative to "1" above, a teacher may qualify by holding a Master\'s Degree in any field or by holding an AA Teaching Certificate.

4. A teacher who does not hold a Master\'s Degree or an AA Teaching Certificate, or who fails to score 640 on the GRE or who does not rank in the 50th percentile, or higher, in the special subject matter field will be allowed two calendar years in which to meet one of the requirements.

During the 1969-1970 academic year student enrollment in the Starkville public schools was 4,313 with a racial ratio of 53 percent white and 47 percent black. Prior to a court desegregation order in February, 1970, the Starkville public schools operated a dual system based upon race.²

At the close of the 1969-1970 school year there were 191 teachers in the system, 134 white and 57 black. Of that number there were 4 white and 3 black principals. The faculty was reduced by 43 positions for the 1970-71 school year. Of 17 white teachers not reemployed 9 had failed the Policy 13-69 requirements. 16 of 26 black teachers not reemployed had failed the new policy requirements. Starkville hired 32 new white teachers for the 1970-71 school year. No new blacks were hired on the stated grounds that there were no qualified black teachers available. Six blacks who applied for the new jobs met the new policy requirements but were not hired.

Prior to the implementation of Policy 13-69 applicants were required to submit a form containing personal and professional information and five references. In the event the superintendent or a principal decided to pursue an application he requested an evaluation of the applicant from the five references listed.³ The applicant was then interviewed and evaluated on the same criteria used by the references. If the principal recommended the applicant to the superintendent, he in turn would make his recommendation to the Board of Trustees. A principal's recommendation would usually determine whether a teacher would be reemployed.

With the advent of Policy 13-69, an applicant was not considered unless the new testing or alternative criteria were met. This was a sine qua non for consideration of employment, irrespective of an applicant's ability with regard to the other criteria utilized in the hiring process.

Before Policy 13-69 was established, it had been ascertained by Starkville that a Graduate Record Examination score of 900 was required for regular admission and a 700 score was required for provisional admission to graduate school at Mississippi State University.

Each party in the court below introduced expert evidence concerning the functions and objectives of the Graduate Record Examination. The GRE is composed of an aptitude test and advanced tests. The aptitude test contains a verbal section which tests vocabulary and reading comprehension and a quantitative section testing mathematical reasoning and graph interpretation. The advanced tests measure knowledge in specialized areas. The entire examination tests an individual's capacity for advanced studies at the master's and doctoral level. The tests were designed to assist graduate schools in the selection of students for graduate study, primarily for the doctorate. They were not designed for the purpose of identifying those who are or will be competent teachers at the primary and secondary level.

Neither the Educational Testing Service (ETS)⁴ nor Starkville have ever conducted studies that would demonstrate the GRE's reliability and validity⁵ for selecting public school teachers. The experts knew of no study or attempt by others which would suggest that GRE scores would be an effective measure of the competency of public school teachers. The Starkville superintendent admittedly knew that the GRE had nothing to do with determining teacher competency. Furthermore, no studies or other evidence was available to determine what cut-off, if any, would be a valid and reliable measure for this purpose.

The district court found that a prima facie case of racial discrimination had been proved. Because the GRE was not shown to be a reliable and valid measure for testing teacher effectiveness, the court enjoined its use for this purpose. It also proscribed the use of the alternatives because, as a practical matter, they did not differ substantially from the GRE requirement.

The use of the GRE test has operated to exclude more blacks than whites from teaching positions in Starkville. Starkville asserts that the reductions occurred because it desired to improve the faculty and the appellees were not among those who met the minimum standards established. A school board's desire to employ the best teachers available is both legitimate and commendable. However, in attempting to attain this laudatory objective, Starkville must not deny to any person the equal protection of the laws. U.S.Const. Amend. XIV; see Cooper v. Aaron, 1958, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5.

The district court found that the GRE score requirement classifies applicants and in-service teachers on the basis of race which required the school board to justify the classification with an overriding purpose independent of the discrimination. We need not go this far to uphold the judgment below. It is unnecessary to decide whether there was a sufficient showing that the policy did in fact create a racial classification. Cf. Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. Nor do we need to decide what justification would be necessary to overcome any racial classification that might be found because the GRE score requirement does not measure up to the equal protection requirements under the Fourteenth Amendment, i. e., it is not reasonably related to the purpose for which it was designed.⁶ See Eisenstadt v. Baird, 1972, 405 U.S. 438, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349 (1972); Turner v. Fouche, 1970, 396 U.S. 346, 362, 90 S.Ct. 532, 24 L.Ed.2d 567.

Starkville has created an absolute classification among the teachers seeking reemployment and among those applying for initial employment. Those who attain a minimum score on the GRE are classified as suitable for employment while those who fail to meet this mark are automatically rejected. Although Starkville may have discretion to establish an appropriate classification, the classification must not be an arbitrary one, i. e., acting...