Stewart v. Hannon, 74 C 2466.

• Decision Date: 17 April 1979
• Docket Number: No. 74 C 2466.,74 C 2466.
• Citation: 469 F. Supp. 1142
• Parties: Ruth STEWART et al., Plaintiffs, v. Joseph HANNON et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

469 F. Supp. 1142

Ruth STEWART et al., Plaintiffs, v. Joseph HANNON et al., Defendants.

No. 74 C 2466.

United States District Court, N. D. Illinois, E. D.

April 17, 1979.

Richard F. Watt, Thomas D. Allison, Michael H. Slutsky, Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., for plaintiffs.

John E. Angle, David L. Carden, Kirkland & Ellis, Chicago, Ill., for defendant Educational Testing Service.

Michael J. Murray, Chicago, Ill., for all other defendants.

Memorandum

LEIGHTON, District Judge.

This is a suit to redress alleged racial discrimination in public employment. Jurisdiction of the court is invoked under 28 U.S.C. § 1343; 42 U.S.C. § 2000e-5; and the doctrine of pendent jurisdiction. The cause comes before the court on motions by all defendants under Rule 12(b)(6), Fed.R. Civ.P., to dismiss the amended complaint for failure to state a claim on which relief can be granted. For the following reasons, the motions are granted.

I.

The plaintiffs are the Chicago High School Assistant Principals Association ("CHSAPA") and seven of its members who are currently assistant principals in the Chicago Public School System and who have each tried unsuccessfully to become high school principals. Defendants are two members of the Board of Examiners of the Chicago Public School System, the Chicago Board of Education, its members as individuals, and Educational Testing Service ("ETS"), a non-profit corporation that develops and administers tests and does occupational and educational research.

In Count I plaintiffs allege that they have been deprived of their constitutional rights as secured by the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983; in Count II they allege a violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq.; and in Count III they allege a violation of a state statute, Ill.Rev. Stat. ch. 122, § 34-83, that mandates examination of the "character, scholarship, and general fitness" of candidates for principalships in the public schools of Illinois.

To become a principal in the Chicago Public School system, a candidate must meet certain requirements of education and experience. In addition, each candidate must pass the principalship examination set by the Board of Examiners by statutory mandate. This examination comprises two parts: a written portion, which is the portion challenged in this lawsuit, and an oral portion. A candidate may not take the oral portion unless he has attained the designated passing score on the written portion. Further, a candidate must pass both portions in order to be placed on the eligibility list, from which the Board of Education ultimately draws principals as openings occur.¹ Plaintiffs allege that the written portion of the examination is discriminatory because the passing score is set so that even "qualified" persons do not attain it and because fewer blacks and hispanics than whites attain the designated passing score.

With respect to ETS, plaintiffs allege that the Board of Education contracted with ETS to develop and grade the written portion of the principalship examination. ETS developed such an examination, variations of which were used in 1970 and 1974 and were to be used in 1978, the test plaintiffs sought to enjoin. Neither ETS nor the Board ever field-tested or otherwise validated the written portion for job relevance. What ETS did do was to meet with the Board to discuss the specifications for the test, specifically the passing grade the Board desired (80) and what the grade would mean in terms of the percentage of candidates who would pass the test. Further, ETS developed the form and mix of the test questions and the derivation and conversion of raw scores to the proper scale. ETS administered and scored the examinations, developed the manual of instructions, scored the examinations, sent a list of candidate numbers and scores to the Board of Examiners, and analyzed the results of the 1970 and 1974 examinations. All of this amounted, plaintiffs allege, to "ETS's taking over and exercising the examining functions imposed by statute on the Board of Examiners."

Defendants raise numerous arguments attacking the legal sufficiency of the allegations of Counts I and II of the amended complaint to state claims for relief under the Civil Rights Acts of 1866 and 1871 and Title VII. The court approaches the issues presented mindful of "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The court finds that the entire suit must be dismissed as to all parties for a variety of reasons.

II.

In Count I, the sole question is whether the Board of Examiners set the passing score in such a way as to violate the plaintiffs' constitutional right to be free from discrimination. Plaintiffs allege that the defendants, by setting the passing score "arbitrarily," unlawfully discriminated against them on the basis of race. As a result of the defendants' arbitrary action, they allege, competent candidates, including Blacks and Hispanics, are excluded from consideration for principalships. Plaintiffs allege further that there is a disparity between the passing rates of whites and minorities, and that the percentage of minority principals currently serving in the system (30%) is disproportionate when compared with two groups: the percentage of minority teachers (46%) and the percentage of minority students (75%). Even accepting all these allegations as true, which the court must for purposes of this motion, plaintiffs fail to state a claim on which relief can be granted.

Plaintiffs' amended complaint focuses on the fact that the results of the Board's score decision affect blacks and whites disproportionately; it does not contain any allegation, or even implication, that the Board's decision was motivated by an intent to exclude blacks and hispanics from the eligibility list. Such intent is required by the leading case on constitutionally based discrimination charges:

Our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, emphasis supplied is unconstitutional solely emphasis in original because it has a racially disproportionate impact. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976).

Later cases have made it clear that the Washington requirement of purposeful racial discrimination applies to cases brought under 42 U.S.C. §§ 1981 and 1983 as well as to cases based directly on the Constitution. See, e. g., United States v. City of Chicago, 549 F.2d 415, 435 (7th Cir.), cert. denied sub nom. Arado v. United States, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977); City of Milwaukee v. Saxbe, 546 F.2d 693, 705 (7th Cir. 1976).

Although the lack of an allegation of intent has alone been fatal to a cause of action, the question of disproportionate impact is not entirely irrelevant. As the court implies in Washington, impact alone may suffice to make out an adequate claim, but only if there is other strong evidence that the exclusion of the discriminated group was systematic (as in consistent exclusion of Blacks from juries). 426 U.S. at 241, 96 S.Ct. 2040. Not only do plaintiffs' allegations fail to present such evidence of systematic bias, their allegations directly refute such a factor: they allege that the choice of the passing score was in fact arbitrary. Moreover, the gist of their complaint is that the arbitrariness, and therefore the illegality, lay in rejecting competent candidates (impliedly of all races), not in rejecting competent blacks while accepting whites. The court in Washington addresses this point directly:

As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies "any person . . . equal protection of the laws" simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had plaintiffs, along with all others who had failed the employment test under attack, whether white or black, brought an action claiming that the test denied them equal protection of the laws as compared with those who had passed with high enough scores to qualify them . . . it is most unlikely that their challenge would have been sustained. 426 U.S. at 245, 96 S.Ct. at 2050.

Justice White continues by suggesting that it is legitimate to use tests of competency to try to upgrade or maintain a certain level of skill in an employee pool and that those who are less competent, as measured by such tests, cannot complain of discrimination vis-à-vis those who are more competent:

Plaintiffs, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by the test. That other Negroes also failed to score well would, alone, not demonstrate that plaintiffs individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective . . . recruits. 426 U.S. at 246, 96 S.Ct. at 2050-51.

That is exactly what plaintiffs in this action claim. They do not allege that those who achieve the requisite score of 80 are less competent in any way than those who fail; they do not allege that the test does not fairly sort out the more from the less competent. They do allege that the content of the test is biased against minorities, but their support for this is again the fact that some competent persons do not pass: that is not a function of the test content, but simply of the...