Chance v. BOARD OF EXAM. & BD. OF ED. OF CITY OF NEW YORK

• Decision Date: 14 July 1971
• Docket Number: No. 70 Civ. 4141.,70 Civ. 4141.
• Citation: 330 F. Supp. 203
• Parties: Boston M. CHANCE and Louis C. Mercado, individually and on behalf of all others similarly situated, Plaintiffs, v. The BOARD OF EXAMINERS AND the BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants.
• Court: U.S. District Court — Southern District of New York

330 F. Supp. 203

Boston M. CHANCE and Louis C. Mercado, individually and on behalf of all others similarly situated, Plaintiffs, v. The BOARD OF EXAMINERS AND the BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants.

No. 70 Civ. 4141.

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

July 14, 1971.

Jack Greenberg, Jonathan Shapiro, Elizabeth B. Dubois and Stephen G. Young, NAACP Legal Defense Fund, George Cooper, New York City, for plaintiffs.

J. Lee Rankin, Corp. Counsel, New York City, for defendant Board of Education; James Nespole, and Leonard Bernikow, New York City, of counsel.

Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendant Board of Examiners; Saul Z. Cohen, and Mark A. Jacoby, New York City, of counsel.

Robert D. Joffe, and R. John Cooper, New York City, for amicus curiae New York Ass'n. of Black School Supervisors and Administrators.

Charles McCready Pratt, New York City, for amicus curiae ASPIRA of America, Inc.

Burton K. Gordon, New York City, for amicus curiae Public Education Ass'n.

MANSFIELD, Circuit Judge.^*

The fairness and validity of competitive examinations, once described by Gilbert and Sullivan as the means of attaining "a Duke's exalted station,"¹ have frequently been challenged in courts and elsewhere. E. g., Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L. Ed.2d 709 (1965); Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Armstead v. Starkville Municipal Separate School District, 325 F.Supp. 560 (N.D. Miss. April 7, 1971). We are here called upon to decide whether those examinations which have been prescribed and administered by the Board of Examiners of the City of New York (the "Board" herein) to candidates seeking licenses for permanent appointment to supervisory positions in the City's school system (principals, assistant principals, administrative assistants, etc.) are unconstitutional. We conclude that a sufficient showing has been made of violation of the Equal Protection Clause of the Fourteenth Amendment to warrant the issuance of preliminary injunctive relief.

The two named plaintiffs, who are respectively Black and Puerto Rican, have brought this purported class action on behalf of themselves and all other persons similarly situated pursuant to federal civil rights laws, 42 U.S.C. §§ 1981² and 1983.³ They allege that the competitive examinations, which must be passed by a candidate before he or she can qualify for licensing and appointment, discriminate against persons of Black and Puerto Rican race, and have not been validated or shown fairly to measure the skill, ability and fitness of applicants to perform the duties of the positions for which the examinations are given, with the result that success on the examination does not indicate in any way that the candidate will succeed as a supervisor. This racial discriminatory effect, coupled with lack of justification or predictive value as measurements of abilities required to perform the jobs involved, is alleged to violate not only plaintiffs' federal constitutional rights but also (based on pendent jurisdiction) Art. 5, § 6 of the New York State Constitution,⁴ and §§ 2590-j(3) (a) (1),⁵ 2569 (1),⁶ and 2573(10)⁷ of the New York Education Law, McKinney's Consol.Laws, c. 16.

Plaintiffs seek a preliminary injunction under Rule 65, F.R.Civ.P., prohibiting the alleged violations of these laws. They also seek declaratory relief⁸ pursuant to 28 U.S.C. § 2201. We have jurisdiction under 28 U.S.C. §§ 1331 and 1343(3).

The Board of Education has not actively opposed the motion for preliminary injunction, and it agrees that plaintiffs have presented triable issues of fact. The Board of Examiners ("Board" herein), however, has vigorously opposed the motion.

In reaching our decision we have had the benefit of a plethora of lengthy affidavits and exhibits, a hearing at which oral testimony was taken, a series of arguments, and extensive briefing of the law and facts by the parties. In addition the following organizations have appeared as amici and filed briefs supporting plaintiffs: New Association of Black School Supervisors and Administrators,⁹ ASPIRA of America, Inc.,¹⁰ and the Public Education Association.¹¹

An applicant for permanent appointment to a supervisory position in the New York City School System must, in addition to meeting state requirements for the position, obtain a New York City license.¹² First, each such candidate must have met minimum education and experience requirements established by the City's Board of Education and the Chancellor, Harvey B. Scribner, who is the Chief Administrator of the School District of the City of New York. For instance, a candidate for principal of a day elementary school must, among other things, have had (1) four years' experience teaching in day schools under regular license and appointment as a teacher, and (2) two years' experience of supervision in day schools under license and appointment, or meet various alternative experience requirements.

Next the candidate must pass an examination procedure prepared and administered by the Board for the particular type or classification of supervisory post desired, which may take as long as two years to complete. If the candidate successfully completes the testing procedure, he or she is granted a license and placed on a list of those eligible for assignment to the type of supervisory position involved. The appropriate school governing authority — either a central board of education or a community school board under New York City's present decentralized system — then selects the person it wishes from the eligible list to fill an open position. Since appointments of permanent supervisory personnel in the New York City School System must be made from lists of eligibles who have passed examinations, the Board from time to time announces and conducts examinations for particular supervisory posts (of which there are more than 50 different types) following which the number of persons eligible for appointment are supplemented by promulgation of lists of those who passed the latest examination. If a successful candidate, after being listed as eligible for appointment, is not appointed within four years, he or she is dropped from the list and must again pass the qualifying examinations to be listed as eligible.

Only in the cities of Buffalo and New York does state law provide for examinations in addition to state certification, N.Y.Education Law § 2573(10-a), and only the New York City School District maintains a Board of Examiners and the specific examination and licensing procedure here under attack. The Board has described itself as "a highly select group with broad professional background in education and related fields chosen through the most objective and impartially searching examination given under civil service." (Ex. 10, Item 10, attached to 5/28/71 aff. of Richard S. Barrett)

Were it not for New York City's special examination and licensing procedure, plaintiffs Chance and Mercado would have been appointed permanent elementary school principals. Both have been certified by the state for that position, and both are specially trained to be principals, having graduated from a yearlong Fordham University Instructional Administrators and Principals Internship Program in Urban Education.

Plaintiff Boston M. Chance has been employed in the New York City public school system for the last 15 years and is acting principal of P.S. 104, an elementary school in the Bronx. Chance, who is of the Black race, possesses all of the basic qualifications of education and experience established by law and by the Board of Education and the Chancellor of the New York City School District for the position of principal of an elementary school. However, he lacks a city license as elementary school principal and therefore is barred at present from securing a permanent position as principal. In September, 1968, Chance took the examination given by the Board for the position of Assistant Principal, Junior High School, but he failed it and thus was not placed on the eligibility list and was not issued a license entitling him to permanent appointment.

Plaintiff Louis Mercado, a Puerto Rican who also holds a New York State license as a principal, has been serving the New York City school system for the last 12 years. He is presently acting principal of P.S. 75, an elementary school in Manhattan, but he is barred from permanent appointment because he does not have a New York City license as an elementary school principal. Mercado is in a somewhat different position from Chance in that he does not allege that he has ever taken the relevant Board of Examiners' Supervisory Examination. While the present motion was pending — and while the parties were collecting statistical information pursuant to our order — the Board conducted their November, 1970 series of examinations for elementary school principal. Mercado withdrew from this examination and refused to take it on the grounds that the "Board of Examiners is not the appropriate agency for qualifying school personnel" and "the examination is not relevant * *."¹³

Both Chance and Mercado were selected for their present acting principalships by their respective community school boards, in accordance with New York City's decentralized system. See generally, Council of Supervisory Associations, etc. v. Board of Education, 23 N.Y.2d 458, 297 N.Y.S.2d 547, 245 N.E.2d 204 (1969). In some instances such local school boards found, after interviewing licensed principals listed as eligible by the Board, that persons not so licensed were more qualified to serve as principals than those interviewed and that they performed their duties in a...