Caulfield v. Board of Ed. of City of New York, No. 77 C 2155 (JBW).

CourtU.S. District Court — Eastern District of New York
Citation486 F. Supp. 862
Docket NumberNo. 77 C 2155 (JBW).
PartiesWilliam CAULFIELD et al., Plaintiffs, Albert Shanker et al., Intervenors-Plaintiffs, Theodore Elsberg et al., Intervenors-Plaintiffs, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants, The Coalition of Concerned Black Educators et al., Intervenors-Defendants, Ronald Ross, Intervenor-Defendant.
Decision Date27 August 1979

486 F. Supp. 862

William CAULFIELD et al., Plaintiffs, Albert Shanker et al., Intervenors-Plaintiffs,
Theodore Elsberg et al., Intervenors-Plaintiffs,
v.
The BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants,
The Coalition of Concerned Black Educators et al., Intervenors-Defendants,
Ronald Ross, Intervenor-Defendant.

No. 77 C 2155 (JBW).

United States District Court, E. D. New York.

August 27, 1979.


486 F. Supp. 863
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486 F. Supp. 864
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486 F. Supp. 865
Morris Weissberg, New York City, for plaintiffs

Gretchen White Oberman, Lewis, Greenwald & Oberman, New York City, for intervenors-plaintiffs Elsberg, et al.

James R. Sandner, New York City by Jeffrey S. Karp, New York City, of counsel, for intervenors-plaintiffs Albert Shanker, et al.

Allen G. Schwartz, Corp. Counsel of the City of New York, New York City by Deborah Rothman, Jane Hovde, Asst. Corp. Counsel, New York City, for defendant New York City Board of Education.

Edward R. Korman, U. S. Atty., E. D. N. Y., Brooklyn, N. Y. by Richard P. Caro, Asst. U. S. Atty., Brooklyn, N. Y., Lois Hochhauser, Albany, N. Y., for Department of Health, Education and Welfare.

James I. Meyerson, N.A.A.C.P., New York City, for intervenors-defendants Coalition of Concerned Black Educators, et al.

Arthur N. Eisenberg, New York Civil Liberties Union, E. Richard Larson, Bruce J. Ennis, American Civil Liberties Union, Jeanne R. Sielver, Public Education Ass'n, Carolyn L. Ziegler, New York City, for intervenor-defendant Ross.

Kenneth Pawson, New York State Dept. of Ed., Albany, N. Y., for State Commissioner of Education Gordon Ambach.

MEMORANDUM

WEINSTEIN, District Judge:

 TABLE OF CONTENTS
                 I. Background of the Litigation 867
                 A. Events Leading to the Memorandum of Understanding 867
                 B. The Related ESAA Funding Controversy 869
                 C. Prior Litigation in This Case 871
                 D. Litigation Regarding ESAA Fund Ineligibility 872
                 II. Parties, Issues and Standard of Review in this Litigation 875
                III. Preliminary Issues 878
                 A. Standing 878
                 B. Jurisdiction 878
                 1. Title VI of the Civil Rights Act 878
                 2. Title IX of the Education Amendments 882
                

486 F. Supp. 866
IV. Evidence 885 A. Background 886 1. Statutory Framework 886 a. Prior to Decentralization 886 b. Following Decentralization 886 2. Historical Backdrop of Criticism 887 3. Board Procedures for Assigning Teachers 893 a. Prior to Decentralization 894 1. Elementary Schools 894 2. Junior High and High Schools 895 b. During Interim Period 895 c. Following Decentralization 895 1. Elementary and Junior High Schools 895 2. High Schools 897 d. The Problem of Assignment Declination Following the Budget Crisis 897 4. Demographic Changes in Student Population 897 B. OCR's Charges and Evidence 898 1. Racially discriminatory selection and testing procedures and racially identifiable employment pools 898 a. racially identifiable employment pools 898 b. racially discriminatory selection and testing procedures 901 1. "pass-fail score" 902 2. "numerical score above passing" — rank order 903 3. "date of examination" 906 2. Assignment of teachers in a manner that has created, confirmed and reinforced the racial or ethnic identifiability of the system's schools 908 3. Assignment of teachers with less experience, lower average salaries and fewer advanced degrees to schools with higher percentages of minority students 913 4. Denial to women of equal access to positions as principals and assistant principals throughout the system 916 C. Rebuttal Evidence 919 V. Summary and Conclusions 923

This is yet another chapter in the challenge to the September 7, 1977 "Memorandum of Understanding" ("agreement") between the New York City Board of Education ("Board") and the Office for Civil Rights of the United States Department of Health, Education and Welfare ("OCR"). The agreement purports to remedy alleged violations by the Board of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., with respect to hiring and assignment of teachers, and hiring of supervisory personnel. Alleging that OCR had no jurisdiction to investigate what they deem "employment" practices under either Title VI, see 42 U.S.C. § 2000d-3, or Title IX, and that the agreement itself violates Title VI, Title IX, and the fifth and fourteenth amendments, plaintiffs and intervenor-plaintiffs seek injunctive and declaratory relief voiding the agreement. For the reasons indicated below, no relief is warranted.

Following a bench trial, this Court delivered an oral opinion and filed written findings of fact and conclusions of law. This Memorandum elaborating on the Court's oral opinion may be of assistance on the appeals.

486 F. Supp. 867

I.

Background of this Litigation

A. Events Leading to the Memorandum of Understanding

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Title IX of the Education Amendments of 1972, in similar language, prohibits discrimination on the basis of sex in "any education program or activity" receiving federal funds. Each federal department and agency is charged with assuring compliance with these provisions in the programs and activities under its jurisdiction; each must adopt regulations toward this end. See 42 U.S.C. § 2000d-1; 20 U.S.C. § 1682. See, e. g., 45 C.F.R. §§ 80.1-80.13 (Title VI regulations of Department of Health, Education and Welfare); 45 C.F.R. §§ 86.1-86.71 (Title IX regulations of Department of Health, Education and Welfare). In addition to requiring initial assurances of nondiscrimination in every application for federal assistance, see, e. g., 45 C.F.R. § 80.4, federal departments are required to conduct periodic compliance reviews and to investigate and resolve individual or class complaints of discrimination arising under any federally assisted program they supervise. See, e. g., 45 C.F.R. § 80.7; see also Brown v. Weinberger, 417 F.Supp. 1215 (D.D.C.1976) (requiring expeditious compliance investigations and enforcement proceedings by HEW under Title VI). In the event that efforts to achieve voluntary compliance fail, a federal department must terminate or withhold federal funding to programs in violation of the statutes, see 42 U.S.C. § 2000d-1(1), or seek compliance by other means authorized by law, see id. § 2000d-1(2).

The Department of Health, Education and Welfare supervises various programs of federal aid to the New York City school system. On November 9, 1976, OCR Director Martin Gerry sent a letter to the Chancellor of the New York City Schools specifying alleged areas of noncompliance by the school system with Titles VI and IX. The letter focused on the "employment" phase of OCR's review of the system. It charged that the Board had, in violation of Title VI, discriminated on the basis of race and national origin by,

(1) denying minority teachers full access to employment opportunity through the use of racially discriminatory selection and testing procedures and through the use of racially identifiable employment pools in a manner that discriminatorily restricts the placement of minority teachers;
(2) assigning teachers, assistant principals and principals in a manner that has created, confirmed and reinforced the racial and/or ethnic identifiability of the system's schools; and
(3) assigning teachers with less experience, lower average salaries and fewer advanced degrees to schools which have higher percentages of minority students.

It also charged that the Board had, in violation of Title IX, discriminated on the basis of sex by,

(1) denying females equal access to positions as principals and assistant principals throughout the system;
(2) providing a lower level of financial support for female athletic coaching programs; and
(3) depriving female teachers of seniority rights and other compensation through failure to eliminate the effects of past discriminatory leave policies.

The letter ordered the Board to submit a plan within ninety days to "remedy the discrimination and provide corrective action where individual cases of discrimination are identified." It noted that OCR's goal was "to end discrimination not to cut off federal funds."

After receipt of the November 9, 1976 letter, the Chancellor appointed Deputy Chancellor Bernard Gifford to serve as chairperson of an internal Board committee to review and evaluate OCR's specific discrimination

486 F. Supp. 868
allegations. The result of this review, a report entitled Race, Ethnicity and Equal Employment Opportunity: An Investigation of Access to and Assignment of Professional Personnel in New York City's Public Schools (June 1977) ("Gifford Report") (Def.-Int. Ross' Ex. 106), substantiated and confirmed many of OCR's findings, though it denied any discriminatory intent on the part of the Board. See Caulfield v. Board of Education of the City of New York, 583 F.2d 605, 609 & n. 5 (2d Cir. 1978). On April 22, 1977, the Board submitted its response to the OCR allegations; it suggested affirmative efforts to equalize employment opportunities
without admitting any violation of law, the response expressed the Board's determination to rectify "disparate employment opportunities" and proposed an equal employment opportunity plan to "insure equality of opportunity and avoidance of discrimination." The plan suggested affirmative efforts to increase the number of minority teachers, to improve integration of the teaching staff, and to correct disparities of experience, salary and educational level in the distribution of personnel. The plan also advocated goals for integration of faculty based upon a
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18 practice notes
  • Robinson v. Purkey, Case No. 3:17-cv-01263
    • United States
    • U.S. District Court — Middle District of Tennessee
    • October 16, 2018
    ...F. App'x 340, 341 (3d Cir. 2005), or widely known demographic facts about its workforce, see Caulfield v. Bd. of Educ. of City of N.Y., 486 F. Supp. 862, 885 (E.D.N.Y. 1979), aff'd, 632 F.2d 999 (2d Cir. 1980). Where appropriate, judicial notice may extend to indisputable realities of an ar......
  • Board of Ed. of City School Dist. of City of New York v. Harris, No. 1079
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 19, 1980
    ...advanced by the Caulfield plaintiffs were recently rejected by the district court in Caulfield v. New York City Board of Education, 486 F.Supp. 862 (E.D.N.Y. 1979) (Weinstein, 6 For the same reason, the related notion of exhaustion of administrative remedies is not appropriate to these circ......
  • Robinson v. Purkey, Case No. 3:17-cv-01263
    • United States
    • U.S. District Court — Middle District of Tennessee
    • June 11, 2018
    ...F. App'x 340, 341 (3d Cir. 2005), or widely known demographic facts about its workforce, see Caulfield v. Bd. of Educ. of City of N.Y., 486 F. Supp. 862, 885 (E.D.N.Y. 1979), aff'd, 632 F.2d 999 (2d Cir. 1980). Where appropriate, judicial notice may extend to indisputable realities of an ar......
  • Vuyanich v. Republic Nat. Bank of Dallas, No. CA-3-6982-G
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • October 22, 1980
    ...with the normal distribution. See Rich v. Martin Marietta Corp., 467 F.Supp. 587, 601 (D.Colo.1979); Caulfield v. Board of Education, 486 F.Supp. 862, 21 Empl. Prac.Dec. ? 30,389, at 13,195 (E.D.N.Y.1979). The Z-scores for other levels of significance may be determined by reference to the t......
  • Request a trial to view additional results
18 cases
  • Robinson v. Purkey, Case No. 3:17-cv-01263
    • United States
    • U.S. District Court — Middle District of Tennessee
    • October 16, 2018
    ...F. App'x 340, 341 (3d Cir. 2005), or widely known demographic facts about its workforce, see Caulfield v. Bd. of Educ. of City of N.Y., 486 F. Supp. 862, 885 (E.D.N.Y. 1979), aff'd, 632 F.2d 999 (2d Cir. 1980). Where appropriate, judicial notice may extend to indisputable realities of an ar......
  • Board of Ed. of City School Dist. of City of New York v. Harris, No. 1079
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 19, 1980
    ...advanced by the Caulfield plaintiffs were recently rejected by the district court in Caulfield v. New York City Board of Education, 486 F.Supp. 862 (E.D.N.Y. 1979) (Weinstein, 6 For the same reason, the related notion of exhaustion of administrative remedies is not appropriate to these circ......
  • Robinson v. Purkey, Case No. 3:17-cv-01263
    • United States
    • U.S. District Court — Middle District of Tennessee
    • June 11, 2018
    ...F. App'x 340, 341 (3d Cir. 2005), or widely known demographic facts about its workforce, see Caulfield v. Bd. of Educ. of City of N.Y., 486 F. Supp. 862, 885 (E.D.N.Y. 1979), aff'd, 632 F.2d 999 (2d Cir. 1980). Where appropriate, judicial notice may extend to indisputable realities of an ar......
  • Vuyanich v. Republic Nat. Bank of Dallas, No. CA-3-6982-G
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • October 22, 1980
    ...with the normal distribution. See Rich v. Martin Marietta Corp., 467 F.Supp. 587, 601 (D.Colo.1979); Caulfield v. Board of Education, 486 F.Supp. 862, 21 Empl. Prac.Dec. ? 30,389, at 13,195 (E.D.N.Y.1979). The Z-scores for other levels of significance may be determined by reference to the t......
  • Request a trial to view additional results

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