Chance v. Board of Examiners

Decision Date05 April 1972
Docket NumberDocket 71-2021.,No. 464,464
Citation458 F.2d 1167
PartiesBoston M. CHANCE, Louis C. Mercado et al., Plaintiffs-Appellees, v. The BOARD OF EXAMINERS, Defendant-Appellant, and The Board of Education of the City of New York et al., Defendants.
CourtU.S. Court of Appeals — Second Circuit

Saul Z. Cohen, New York City (Kaye, Scholer, Fierman, Hays & Handler, Mark A. Jacoby, Richard E. Hershenson, New York City, on the brief), for defendant-appellant.

Elizabeth B. DuBois, New York City (Jack Greenberg, Jonathan Shapiro, George Cooper, Michael O. Finkelstein, New York City, on the brief), for plaintiffs-appellees.

Charles Wiener, Brooklyn, N. Y., pro se, amicus curiae.

Oscar Gottlieb, Brooklyn, N. Y., pro se, amicus curiae.

Frankle & Greenwald, Max H. Frankle, Leonard Greenwald, New York City, for amicus curiae Council of Supervisors and Administrators of the City of New York, Local 1, School Administrators and Supervisors Organizing Committee, AFL-CIO.

Willkie, Farr & Gallagher, Kenneth J. Bialkin, Jack H. Halperin, Arnold Forster, Paul Hartman, New York City, for amici curiae Anti-Defamation League of B'nai Brith, Council of Jewish Organizations in Civil Service, Inc., and the Catholic Teachers Assn. of the Diocese of Brooklyn.

Eugene M. Kaufman, Stephen A. Perelson, New York City, for amicus curiae United Federation of Teachers, Local 2, A.F.T., AFL-CIO.

Burton K. Gordon, Golenbock & Barell, Leonard W. Wagman, Arthur M. Handler, Arlene R. Silverman, New York City, for amicus curiae Public Education Assn.

Charles McCready Pratt, Jose A. Cabranes, New York City, for amicus curiae Aspira of America, Inc.

Robert D. Joffe, R. John Cooper, New York City, for amicus curiae New York Assn. of Black Educators.

Before FEINBERG and TIMBERS, Circuit Judges, and THOMSEN, District Judge.*

FEINBERG, Circuit Judge:

Defendant Board of Examiners of the City of New York appeals from a preliminary injunction granted by Walter R. Mansfield, J.,1 in the United States District Court for the Southern District of New York at the instance of plaintiffs Boston M. Chance and Louis C. Mercado, suing on behalf of themselves and others similarly situated.2 The named plaintiffs, who are respectively black and Puerto Rican, sued the Board of Examiners under federal civil rights laws, 42 U.S.C. §§ 1981, 1983. Plaintiffs claimed that competitive examinations given by the Board to those seeking permanent appointment to supervisory positions in the City's schools discriminated against blacks and Puerto Ricans and violated the Equal Protection Clause of the fourteenth amendment.3 Judge Mansfield, after making extensive findings of fact, found sufficient merit in plaintiffs' case to preliminarily enjoin the Board from using the examinations. The judge wrote two opinions, one in July 1971, reported at 330 F.Supp. 203 (1971), and the other, an unpublished Memorandum, in September 1971. A preliminary injunction was entered shortly thereafter. In February 1972, we heard the appeal, after receiving a sizeable number of amicus briefs because of the sensitive nature of the issues raised, the effect of their resolution on the contending parties, and the understandable intensity with which positions have been taken. Despite the extensive—and in some instances emotional—briefing and argument, the ultimate issues before us are simple to state: Were Judge Mansfield's findings of fact clearly erroneous, and did he commit any errors of law? We discuss the issues of fact in Parts II and III of this opinion and the questions of law in Parts IV and V. Finding the answer to both basic questions in the negative, we affirm.


The appeal comes to us in an unusual posture. Since plaintiffs attacked the method used to fill supervisory positions in the school system of the City of New York, one would surmise that their primary opposition would come from those in charge of that system, the Board of Education of the City of New York and its Chancellor, Harvey B. Scribner,4 both named as defendants in this action. However, although the Board of Education appeared below, it did not actively oppose the motion for a preliminary injunction and has not appealed from the district court's order. The Chancellor has done even less. In a memorandum to the Board of Education, quoted by Judge Mansfield in his opinion, Mr. Scribner stated that to defend against plaintiffs' case

would require that I both violate my own professional beliefs and defend a system of personnel selection and promotion which I no longer believe to be workable.

330 F.Supp. at 219-220. The Board of Examiners, however, vigorously opposed plaintiffs' motion in the trial court and has appealed. Supported by some of the amici,5 it offers a number of arguments why the district court's order should be reversed. Before examining them, we will briefly recite the facts as found by Judge Mansfield or as they appear in the record.

To obtain a permanent supervisory job in the New York City school system an applicant must not only meet State requirements but also obtain a City license. This dual qualification is in effect in New York State only in Buffalo and New York City; elsewhere in the State, certification by State authorities alone is enough. Moreover, only the New York City School District maintains a Board of Examiners. The Board of Examiners was established by the State legislature near the turn of the century as an independent body to conduct examinations to be used in selecting New York City school system professional personnel. The Board of Education and the Chancellor prescribe the minimum education and experience requirements for supervisors, but the Board of Examiners prepares and administers the examinations. The examination process itself may take as long as two years to complete. If a candidate successfully completes the examination, his name is placed on a list of those eligible for the particular supervisory post; he may then be selected by an appropriate school governing authority to fill an open position for which he is certified. If he is not appointed within four years after being placed on the list, his name is dropped and will not be re-listed until he again passes the examination.

For many hopefuls, the stumbling block to a permanent supervisory position has been the examination prepared by defendant Board of Examiners. That is true for plaintiffs Chance and Mercado, who have necessary State certificates and who meet the educational and experience requirements established by the City Board of Education. Chance has been employed in the New York City public school system for 15 years, Mercado for 12. They are now serving as acting principals of elementary schools in New York City, selected for those positions by their local community school boards. Unless they pass the Board's examination, however, they are foreclosed from being appointed permanent principals. They brought this suit to challenge that obstacle as racially discriminatory and, therefore, unconstitutional.

Before reaching the merits of plaintiffs' claim, the district court ordered the parties to develop a survey procedure to determine comparative pass rates of the different ethnic groups who had taken various supervisory examinations in recent years. The Survey was completed and is described more fully below. Despite the splendidly motivated genesis of the Board of Examiners,6 its examinations, according to the district court, have led to unintentional racial discrimination. After receiving extensive statistical evidence, Judge Mansfield found that:

The examinations prepared and administered by the Board of Examiners for the licensing of supervisory personnel, such as Principals and Assistant Principals, have the de facto effect of discriminating significantly and substantially against Black and Puerto Rican applicants.

330 F.Supp. at 223. The judge further found:

Such a discriminatory impact is constitutionally suspect and places the burden on the Board to show that the examinations can be justified as necessary to obtain Principals, Assistant Principals and supervisors possessing the skills and qualifications required for successful performance of the duties of these positions. The Board has failed to meet this burden.

Id. Because he believed that there was a strong likelihood that plaintiffs would ultimately prevail on the merits at trial and that the balance of the equities rested with plaintiffs, the judge enjoined any further examinations and licensing based upon previous examinations until "determination" of the action or until the Board of Examiners had satisfactorily revised its examination procedures.


Arguing that the injunction now in effect should be reversed, defendant Board of Examiners raises a number of issues on appeal, some primarily factual, others questions of law. In the former category, the Board claims that the statistics before the trial judge had little probative value and were used by him improperly and that the judge's finding that the Board's supervisory examinations were not job-related was clearly erroneous. In opposing plaintiffs' motion for injunctive relief in the district court, the Board itself had argued that:

If statistics have any relevancy in determining the claim of discrimination, the only meaningful statistic would be a comparison of the pass-fail ratio of whites with those of black and Puerto Rican applicants.7

As already indicated, the court thereafter ordered the parties to develop a Survey to determine comparative pass rates of different ethnic groups in recent years. The Survey took several months to complete and covered 50 supervisory examinations given during the last seven years, involving approximately 6,000 applicants. After both sides submitted affidavits of experts and briefs, there was an evidentiary hearing directed to the relevance and significance of the tabulations. The parties were then given a further...

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