Chance v. Board of Education of City of New York

• Decision Date: 12 April 1974
• Docket Number: No. 612,Dockets 73-2320,73-2476.,875,612
• Parties: Boston M. CHANCE et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants-Appellants, The Board of Examiners et al., Defendants-Appellees, Charles Wiener (Pro se), Proposed Defendant-Intervenor-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

496 F.2d 820 (1974)

Boston M. CHANCE et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants-Appellants, The Board of Examiners et al., Defendants-Appellees, Charles Wiener (Pro se), Proposed Defendant-Intervenor-Appellant.

Nos. 612, 875, Dockets 73-2320, 73-2476.

United States Court of Appeals, Second Circuit.

Argued March 18, 1974.

Decided April 12, 1974.

Edmund B. Hennefeld, New York City (Norman Redlich, Corp. Counsel, of the City of New York, Stanley Buchsbaum, New York City, on the brief) for defendant-appellant Bd. of Ed.

Charles Wiener, pro se, proposed intervenor-defendant-appellant.

George Cooper, New York City (Jack Greenberg, Jeffrey Mintz, Deborah M. Greenberg, Elizabeth B. DuBois, Legal Action Center of the City of New York, Inc., New York City, on the brief), for plaintiffs-appellees.

Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.

FEINBERG, Circuit Judge:

The New York City Board of Education appeals from an order of the United States District Court for the Southern District of New York, Walter R. Mansfield, J.,¹ that modified an earlier preliminary injunction dealing with examinations and eligibility lists for supervisory positions in the City school system.

That prior order was appealed to this court and affirmed in Chance v. Board of Examiners, 458 F.2d 1167 (1972). The Board of Education on this appeal claims that the modified injunction violates state law and settled principles of equity jurisprudence. Since we do not agree with either contention, we affirm the judgment of the district court. However, we urge the district court to expedite resolution of those matters left open by the judgment under attack.

I

We shall presume familiarity with our prior opinion in Chance, supra, which sets forth at some length the background of this litigation. Briefly, Judge Mansfield held in July 1971 that plaintiffs had sufficiently shown, for the purpose of preliminary relief, that various written examinations for supervisory positions in the City schools, prepared and administered by defendant Board of Examiners, were unconstitutional because they significantly discriminated against black and Puerto Rican applicants and were not sufficiently "job-related." D.C., 330 F.Supp. 203. The judge subsequently issued a preliminary injunction against use of these tests and eligibility lists based upon them.² His order also allowed the Board of Education and the Chancellor of the City School District, a co-defendant, to fill vacancies in supervisory positions on an acting basis. We affirmed that order, holding that on the facts the trial judge had not abused his discretion in exercising his equitable power to grant preliminary relief.

On the prior appeal, the contending adversaries were plaintiffs, who are black and Puerto Rican candidates for permanent supervisory positions, and the Board of Examiners. The Board of Education neither actively opposed the original motion for a preliminary injunction nor appealed from its grant. 458 F.2d at 1169. Thus, although there is a close relationship between the Board of Examiners and the Board of Education,³ the two entities are distinct and took different positions in the early stages of the litigation. On this appeal, some two years later, these two defendants continue to go their separate ways; each has reversed its legal posture. The Board of Examiners, far from objecting to the modified preliminary injunction, has consented to a final judgment incorporating its terms. The Board of Education, on the other hand, strongly opposes the modified preliminary injunction and urges us to reverse it. These changes in position took place after long settlement negotiations while the case was pending in the district court after remand. These began in the fall of 1972, and culminated in an agreement between plaintiffs and the Board of Examiners, discussed below. The Board of Education did not participate in these discussions, although it apparently had opportunities to do so. After plaintiffs and the Board of Examiners reached their settlement agreement the Board of Education informed the court that it opposed the settlement. Plaintiffs then moved for a default judgment against the Board of Education based upon its inaction in the proceedings up to that time. In May 1973, in an unpublished opinion, the district court approved the settlement and in July incorporated its terms in a final judgment against the Board of Examiners and the Chancellor. The court denied plaintiffs' motion for a default judgment against the Board of Education, but modified the preliminary injunction which was then in force against that defendant to require it, "pending final determination of the action," to adhere to the terms of the settlement with the Board of Examiners.⁴

II

We turn now to the settlement agreement. After the 1971 preliminary injunction, which prohibited continued use of various tests and eligibility lists, there nonetheless was a need to fill various supervisory positions as vacancies occurred. Until an acceptable examination system was developed, the need for the most part was met by a system of appointments of acting supervisors.⁵ The settlement agreement, among other things, changed the interim procedure to allow permanent, rather than just acting, appointments when certain criteria were met. This change is the focus of this appeal.

In the district court the Board of Education opposed the settlement on two grounds. The first was that the new interim procedure had no fixed termination date and might continue indefinitely, thus frustrating what should be the proper final disposition of the litigation: adoption of a constitutionally acceptable permanent examination procedure. The second basis of opposition was that the settlement violated a state requirement that appointments be based upon "merit and fitness." N.Y. State Const., Art. V, § 6; N.Y.Educ.Law § 2590-j, subd. 3(a)(1).

Judge Mansfield approved the settlement but paid careful attention to these arguments. As to the first, he agreed that "the ideal solution would be the immediate establishment of a new permanent appointment system," but observed that

such a system, which requires a careful study and analysis of numerous complex factors bearing on job relatedness, fairness and evaluation of performance, cannot be built in a period of days or even of weeks.

In the meantime, the judge pointed out, the system of acting appointments had caused financial and morale problems

since acting personnel, a disproportionately high percentage of whom are Black and Puerto Rican, perform the same functions as regularly appointed supervisors but neither receive the same financial benefits nor enjoy the prestige and authority that go with performance.

He concluded that the settlement "would produce greater stability and confidence" in supervisors by allowing permanent appointments during the interim period until a new examination system was devised. Nevertheless, the judge conditioned his approval of the settlement upon the requirement that within six months

the parties shall either agree upon a plan for a permanent system for the selection of supervisors within the New York City School System, or any party shall be free to apply to the Court for modification of the judgment.

The judge also rejected the argument that the settlement violated New York State law. He noted that:

The proposed new procedure appears to be based on the principle of merit and fitness, with emphasis on eligibility standards, parent involvement in the selection process, interviews, evaluation of on-the-job performance, and developments of and adherence to other selection criteria. New York\'s Constitution does not rigidly mandate competitive examinations as the exclusive method of selection. It provides that merit and fitness shall be ascertained by such methods "as far as practicable." Indeed, except for Buffalo and New York City the State\'s constitutional requirement is satisfied elsewhere by a system of certification based on the candidate\'s academic training and professional experience without resort to competitive examinations.

On appeal, the Board of Education makes essentially the same arguments as in the trial court, asserting that Judge Mansfield's order violates statutory and constitutional law of New York State, and that the order goes beyond the limits of preliminary injunctive relief. Appellees respond that the Board has been guilty of laches, that the injunction does not conflict with state law, that state law would not control in any event, and that the order falls within the scope of proper preliminary relief.

We are thus again primarily faced with the question, as we were two years ago, whether Judge Mansfield abused his discretion in the order under attack. This time, the issues before us are narrower since they go only to the propriety of the interim relief granted. As to the legality of the preliminary injunction under state law, the order does not authorize the permanent licensing of school supervisors without any examination. If it did, it would probably run afoul of the decision of the New York Court of Appeals in Board of Educ. v. Nyquist, 31 N.Y.2d 468, 341 N.Y.S.2d 441, 293 N.E.2d 819 (1973), construing N.Y.State Const., Art. V, § 6, and relied upon heavily by the Board of Education. We would then be faced with plaintiffs' argument that state law can and should be overridden, if necessary, to redress past discrimination unconstitutional under federal law. But, as we see it, we need not reach that issue. In Nyquist, a decision of which Judge Mansfield was aware,⁶ there was a grant of a permanent license to an acting supervisor without any examination. Here, the settlement agreement contemplates an interim system of appointment which includes a full examination. Appointments may be made from three categories of persons, the first two of which have already presumably taken and...