Board of Educ. of City School Dist. of City of New York v. Califano
| Decision Date | 21 August 1978 |
| Docket Number | 1414,Nos. 1121,D,s. 1121 |
| Citation | 584 F.2d 576 |
| Parties | 19 Empl. Prac. Dec. P 8972 BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK et al., Appellants, v. Joseph A. CALIFANO, Jr., Secretary, United States Department of Health, Education and Welfare, et al., Appellees. ockets 78-6083, 78-6088. |
| Court | U.S. Court of Appeals — Second Circuit |
Rosemary Carroll, Asst. Corp. Counsel, New York City (Allen G. Schwartz, Corp. Counsel of the City of New York, Leonard Koerner, Asst. Corp. Counsel, New York City, of counsel), for appellants.
Richard B. Caro, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., Harvey M. Stone, Rodger C. Field, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellees.
Before OAKES, Circuit Judge, and BLUMENFELD * and MEHRTENS, ** District Judges.
Consolidated appeals raise the important question whether in passing upon applications for grants of Emergency School Aid Act (ESAA) 1 funds the Department of Health, Education and Welfare (HEW) must apply a constitutional standard of intentional discrimination as delineated by the Supreme Court 2 or whether the ESAA as supplemented by HEW regulations permits application of a disproportionate impact standard of discrimination. Appellants are respectively the Board of Education of the City School District of the City of New York (the Central Board) and the Community School Board (CSB) of Community School District 11 (District 11).
The two school boards sued to enjoin HEW from holding them ineligible for ESAA assistance. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, initially upheld HEW's denial of ESAA funds. But upon the Central Board's motion for reargument, the district court vacated its prior decision and remanded the matter to HEW for "further consideration" to determine if the school boards' disqualification resulted from unconstitutional discrimination as well as from violations of the applicable regulations. After remand the district court affirmed HEW's conclusion that substantial evidence warranted a finding of both unconstitutional discrimination and discrimination in violation of the ESAA. Accordingly, it entered a final order granting judgment in favor of HEW. We affirm the judgment on the basis that the standards of the statute and regulation have been satisfied.
On an annual basis, the ESAA provides special assistance to local educational agencies and other eligible organizations to achieve three basic statutory objectives:
(1) to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools;
(2) encourage the voluntary elimination, reduction, or prevention of minority group isolation in elementary and secondary schools with substantial proportions of minority group students; and
(3) to aid school children in overcoming the educational disadvantages of minority group isolation.
20 U.S.C. § 1601(b). Thus, the ESAA is a program purposefully designed "to aid in desegregating schools and support quality integrated schools." 3
Each year that an application for ESAA assistance is submitted, the application is evaluated and the eligibility of the applicant reviewed. ESAA funds are awarded to qualified applicants in the order in which their applications are ranked. The ranking depends on compliance with specified guidelines and criteria, the most important being "objective" in nature. 45 C.F.R. § 185.14(a), (b) & (c). 4 The ESAA program is competitive in nature since the amount appropriated by Congress is less than the total amount of the grants sought; only those applications which meet ESAA objectives to the greatest extent possible are the ones which receive the awards. Id. § 185.14(c)(4).
In addition to filing applications which are timely 5 and which meet the minimal technical/qualitative criteria, See 20 U.S.C. §§ 1605(a), 1606-09; 6 45 C.F.R. § 185.14, 7 the applicant must establish that it has not engaged in any of the four disqualifying acts, practices, policies or procedures condemned by the statutes and regulations. 20 U.S.C. § 1605(d)(1); 8 45 C.F.R. § 185.13(L ). 9 The Assistant Secretary for Education may not approve the application unless it is determined by the Secretary that the applicant is not ineligible. See 20 U.S.C. § 1605(d)(4). 10 While the statute itself forbids discrimination in the hiring, promotion or assignment of teachers, note 8 Supra, the pertinent regulation in this case is 45 C.F.R. § 185.43(b)(2). 11 In substance, the regulation makes ineligible for assistance an educational agency which after June 23, 1972, has utilized a procedure resulting, Inter alia, in the discriminatory "assignment of full- time classroom teachers to the schools of such agency in such a manner as to identify any of such schools as intended for students of a particular race, color, or national origin." 12
Teaching and supervisory appointments to public schools in New York City are now and have traditionally been made by the Chancellor of the Central Board. High School teachers are appointed by the Chancellor from a list of eligible candidates. 13 The list of eligible candidates is prepared by the Board of Examiners, which ranks each candidate on the basis of a competitive examination. 14
In 1969 the New York City school system was "decentralized" and thirty-two separate community school districts (CSDs) were established. Each CSD was vested with primary authority over the operation of the elementary and junior high schools within its district. 15 Although the Chancellor alone appoints high school teachers, elementary and junior high school teachers may be appointed in either of two ways. One of these is the traditional method of assignment by the Chancellor. The community school boards must abide by the Chancellor's designation. 16 However, the Chancellor "insofar as practicable . . . shall give effect to the requests for assignment of specific persons by the community board. 17 An alternative method is available for use only in those elementary and junior high schools whose students rank in the lower 45% On a comprehensive reading examination which is administered annually to students in schools within the jurisdiction of the local community districts. 18 The community school districts may directly appoint teachers to such "45% Schools" if the individual has passed either a qualifying examination prepared by the Board of Examiners or the National Teachers Examination. 19
Irrespective of how the teachers are appointed, ultimate control still remains with the Chancellor. He retains the power to rescind illegal teacher assignments and to compel a local board's compliance with all applicable provisions of law. 20 In addition, he is vested with all powers and duties of the superintendent of schools of the city district 21 which include "the power to transfer teachers from one school to another." 22
The ESAA applications here at issue were for grants in the 1977-78 school year. See note 34 Infra. To analyze whether there was compliance with the statute and regulations, HEW used 1975-76 data. Racial and ethnic statistics 23 demonstrated that in school year 1975-76 62.6% Of high school students were minority students whereas 8.2% Of high school teachers were minority teachers. 24 Seventy per cent of minority high school teachers were assigned to high schools in which minority student enrollment exceeded 70%, even though these high schools employed only 48% Of the system's high school teachers. Conversely, in high schools in which there were proportionately a low number of minority teachers, minority student enrollments were below 40%. 25
Similar correlations between the racial/ethnic composition of the faculty of community school districts and the racial/ethnic composition of the student bodies within those school districts exist. For the same school year, 14.3% Of the teachers and 69.7% Of the students in elementary schools were minority, and 16.7% Of the teachers and 70.1% Of the junior high school students were minority. Quite clearly, the schools with minority student enrollments over 90% Identifiably had the highest percentage of minority faculty by a substantial margin. 26 Similarly, community school districts with minority student enrollments under 50% Contained a disproportionately low percentage of minority faculty. 27
Upon the "remand" to HEW, HEW found that the racial assignment of faculty in the central school district was, as HEW put it, "strikingly illustrated by the absence of minority teachers" at certain academic, I.e., nonvocational high schools. Ten of these were demonstrated to have a disproportionately low number of full-time minority teachers in the 1975-76 school year. All ten of these schools were among the thirteen academic high schools 28 with full-time faculties having a percentage of black teachers at or below two standard deviations, 29 which was 1.2%; the mean of full- time black teachers in academic high schools systemwide was then 5.2%.
To take another example for the same school year, 8.2% Of academic high school teachers in the Central Board's employ were members of minority groups, black or Hispanic. Lafayette High School, for one, with a total of 166 teachers had only one minority teacher, even though it could have been expected based on systemwide statistics to have had fourteen minority teachers. Lafayette's proportion of minority students was 29.2%. 30 In contrast, for the same year Boys High School in Brooklyn had more than two and one-half times the number of full-time minority teachers than the expected rate; its student body was 99.9% Minority. 31
These substantial disproportions are not contested by the appellants, nor do they deny...
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