Baker v. Columbus Municipal Separate School District, 71-2531.

• Decision Date: 30 June 1972
• Docket Number: No. 71-2531.,71-2531.
• Citation: 462 F.2d 1112
• Parties: Bettye Joe BAKER et al., Plaintiffs-Appellees, v. COLUMBUS MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.2d 1112 (1972)

Bettye Joe BAKER et al., Plaintiffs-Appellees, v. COLUMBUS MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellants.

No. 71-2531.

United States Court of Appeals, Fifth Circuit.

June 30, 1972.

Shield Sims, C. Darrell Reeves, Sims & Sims, Columbus, Miss., for defendants-appellants.

Stephen J. Pollak, Richard M. Sharp, Washington, D. C., T. H. Freeland, Oxford, Miss., David Rubin, National Education Assn. of the U. S., Ralph J. Moore, Jr., Freeland & Gafford, Oxford, Miss., for plaintiffs-appellees; Shea & Gardner, Washington, D. C., of counsel.

Before RIVES, COLEMAN and DYER, Circuit Judges.

DYER, Circuit Judge:

In January, 1970, Columbus Municipal Separate School District initiated a policy that required teachers hired for the first time during the 1969-1970 school year, and all future teacher applicants, to achieve a combined score of 1000 on the National Teachers Examination (NTE) as a condition of employment. The score requirement excluded proportionally more incumbent black than white teachers. Of the 133 black teachers, 18 were required to take the test. Only one achieved the minimum score of 1000. Of the 243 white teachers, 73 were required to take the test and 64 either met or surpassed the minimum score requirement. The district court held that the use of the NTE was unlawful under the equal protection clause of the Fourteenth Amendment because it created a racial classification, and it was not shown to have a manifest relation to job performance. The court also found that Columbus had purposely discriminated against blacks by the use of the NTE score requirement.¹

The purposeful discrimination finding of the district court was based upon three factors in addition to the racially disproportionate effect produced by the NTE score requirement. First, Columbus knew that the use of the NTE would produce racially disproportionate results because the test had been used in the three preceding years as an element of a merit pay program.² During the first year of its use in that program 20 percent of the black teachers who took the test achieved the minimum score while 96 percent of the white teachers tested met the minimum score. In the second and third years of its use 14 percent and 53 percent respectively of the black teachers tested and 87 percent and 95 percent respectively of the white teachers tested achieved a minimum score.

Another indicia of discrimination was found by the court when Columbus required two black teachers hired during the spring term of the 1968-1969 school year to take the test while other teachers employed during that year did not have to take the test. Finally, Columbus hired only one black out of 44 new teachers hired when 9 NTE qualified blacks had applied.

In matters concerning faculty standards and other internal administrative and professional procedures we prefer, if possible, to defer to the judgment of the school administrators. However, the percentage of blacks who failed to meet the 1000 cut-off score compared to the percentage of whites who failed is a circumstance that cannot be dealt with lightly.³ Whenever the effect of a law or policy produces such a racial distortion it is subject to strict scrutiny. See Korematsu v. United States, 1944, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194. Even though this policy does not on its face purport to classify along racial lines as in Korematsu and in McLaughlin v. Florida, 1964, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222, its effects can be just as devastating. See Hawkins v. Shaw, 5 Cir. 1972, 461 F.2d 1171, 1172 (en banc). In order to withstand an equal protection attack it must be justified by an overriding purpose independent of its racial effects.

A school district's desire to improve its faculty may be such an overriding purpose, provided the policies and procedures employed to implement this goal are clearly related to it. See Armstead v. Starkville Municipal Separate School District, 5 Cir. 1972, 461 F.2d 276; Chance v. Board of Examiners, 2d Cir. 1972, 458 F.2d 1167. But this is not such a case.

It is uncontradicted that the NTE cut-off score requirement was set by appellants without any investigation or study of the validity and reliability of the examination or the cut-off score as a means of selecting teachers for hiring or re-employment,...