United States v. Nansemond County School Board

• Decision Date: 28 November 1972
• Docket Number: Civ. A. No. 392-70-N and 472-71-N.
• Citation: 351 F. Supp. 196
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, Plaintiff, v. NANSEMOND COUNTY SCHOOL BOARD et al., Defendants. Syvalius WALSTON, Jr., et al., Plaintiffs, v. COUNTY SCHOOL BOARD OF NANSEMOND COUNTY, Virginia, et al., Defendants.

351 F. Supp. 196

UNITED STATES of America, Plaintiff, v. NANSEMOND COUNTY SCHOOL BOARD et al., Defendants.

Syvalius WALSTON, Jr., et al., Plaintiffs, v. COUNTY SCHOOL BOARD OF NANSEMOND COUNTY, Virginia, et al., Defendants.

Civ. A. Nos. 392-70-N and 472-71-N.

United States District Court, E. D. Virginia, Norfolk Division.

November 28, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brian P. Gettings, U. S. Atty., Norfolk, Va., for United States.

James A. Overton, Portsmouth, Va., S. W. Tucker and Henry L. Marsh, III, Richmond, Va., for Walston, and others.

Joshua Pretlow, Suffolk, Va., and Frederick T. Gray, Chesterfield, Va., for Nansemond County School Board.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

The findings and conclusions herein pertain to both Civil Action No. 392-70-N and Civil Action No. 472-71-N, which were consolidated on December 8, 1971, for discovery and trial. The United States is seeking supplemental relief in its original school desegregation suit against the Nansemond County School Board, which was initiated pursuant to the provisions of 42 U.S.C. § 2000c-6, and 28 U.S.C. § 1345. The government asks the court to order the defendant school board to demonstrate that its hiring, firing, demotion, promotion, dismissal, and payment of its staff and faculty have been accomplished through reasonable objective standards. Additionally, the school operation plan for the 1971-72 school year was opposed, but that plan was approved on October 18, 1971, as effectively creating a unitary system in strict compliance with the law. The individual plaintiffs herein seek to invalidate the objective criteria used by the school board as being irrelevant and not uniformly applied, and thereby in violation of the due process and equal protection clauses of the Fourteenth Amendment. Their action is brought pursuant to 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. §§ 1981, 1983.

This case is interesting and deserves close attention in that it clearly defines the paradox which is currently facing the school boards and the district courts throughout our nation. On the one hand, the school board is admonished for using subjective standards in evaluating its teachers and is told that only objective standards are acceptable. Conversely, once the school board adopts a criteria which could hardly be more objective, protests are lodged because employment decisions are made without reference to some purely subjective standards. If we were required to invalidate both guidelines, the school board would find itself forced to adopt a quota system, disregarding the qualifications of the teachers involved. Such a result is the antithesis of the philosophy underlying much civil rights litigation.

Early in 1968, Robert A. Wood became the new Superintendent of the Nansemond County School System and, from the outset, he began to evaluate the system looking for the areas in which improvement was needed. As a part of this undertaking, an independent biracial evaluation committee of educational experts was appointed to survey the entire system and make a report of its findings. The committee submitted its findings (the Stahl report) in the spring of 1969 and, among other comments, reported that, while the teachers apparently knew their subject matter, they either lacked the ability to communicate and/or were drastically outdated in their teaching techniques.

The sense of urgency conveyed by the Stahl report reinforced Wood's concern over the faculty. Indeed, since taking over as school superintendent, he had initiated a uniform system-wide teacher evaluation form in an effort to have some common understanding by the principals as to what a particular rating connoted. However, such a form requires years to be adequately developed and a principal needs more than one years' experience as an evaluator to become completely reliable. There was evidence from the plaintiff's expert that the new criteria were, in fact, vague. Also, Nansemond County's supervisory staff was overworked to such an extent that they could not bear the necessary burden of close effective supervision.

For these reasons, other objective criteria were sought and eventually a test score of 500 on the Weighted Commons section of the National Teachers Exam (NTE) was adopted as a minimum requirement. This decision was not hastily made, as it was not approved until January 13, 1970. Before adopting the NTE requirement, other school systems which used the same test were contacted. They included the surrounding systems of Norfolk, Portsmouth, Virginia Beach, Chesapeake and Newport News, plus North Carolina which has a similar policy with regard to state-wide certification. There were some observations by school officials that many of the teachers whose work was unsatisfactory came from North Carolina, having failed to earn a teaching certificate in that state. A majority of these teachers were white. The Educational Testing Service (ETS) of Princeton, New Jersey, the originator of the NTE, was requested to send all information it had concerning the test. The decision to use the test was also made in light of additional studies reported in psychology journals, the fact that some of the area's colleges had open admission requirements, and also that there was no longer a dearth of qualified applicants but rather a surplus from which to choose.

From the information supplied to him by ETS, which was substantiated by the plaintiff's expert witness, James R. Deneen, Wood obtained evidence as to the nature and scope of the NTE. It is a test given several times each year by the ETS which is solely responsible for administering and grading the test and reporting the results. It has two sections; the Weighted Commons and the Teaching Area Examination. The latter is a test of an individual's command of a specific subject such as math, history, French, etc. The Weighted Commons section offers a general appraisal of a prospective teacher's basic professional preparation and general academic attainment. Since it is standardized nationally, it offers an opportunity for school boards to better interpret transcripts from colleges of varying qualities. The NTE is designed to test important aspects of professional studies—psychological foundations of education, societal foundations of education, teaching principles and practices—and it is updated every year to test the most current teaching philosophies and techniques.

While ETS does not recommend using NTE scores as a sole criteria, it readily admits that most school districts establish a local minimum, which must be met initially or within a specified period of time. Nansemond County adopted as a minimum requirement the submission of a score of 500 on the NTE, which would rank the applicant somewhere within the bottom 10 to 15 percentile. The school board did not require all the teachers in the system to take the NTE, but only teachers who were new to the county in 1970-71 and all subsequent applicants. Some teachers took the NTE more than once during the year in question. Those hired for 1970-71 were informed that the renewal of their contracts was conditioned on their receiving a score of at least 500 on the Weighted Commons. This provision was clearly set out in the teachers' contracts at the time of signing.

After adopting the NTE requirement, Nansemond County employed Dr. Roger L. Long to undertake a study of the test scores and the proper use thereof. Dr. Long has a Doctor of Education degree with heavy emphasis on testing and a high degree of familiarity with the NTE itself. It is because the school board implemented its decision before Dr. Long completed his empirical study that the plaintiffs object. During 1970-71 some teachers' contracts were not renewed because they failed to submit a score of 500 on the NTE.¹ There were also some individuals who were refused consideration for employment for 1971-72 because they received a sub-500 score. The test scoring, of course, was not under the control of the school board or its administration.

In Nansemond County for the school year 1969-70 the faculty was 59% black, and by 1971 the percentage black had dropped to 52%. One hundred three teachers left the school system in June 1971. Of these, only 25 were not offered new contracts. There were 510 applicants for positions for 1971-72; 391 white and 119 black. Only 20 of 119 blacks were denied consideration solely for failing to score 500. As for the remainder, most were refused positions for the reason that no vacancy existed for the position sought. Additionally, many failed to meet one or more of the other minimum standards—a completed application, a successful interview, and favorable references.²

A question has been raised concerning the United States' standing to seek supplemental relief for alleged abridgments of the employment rights of black teachers. Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, is not limited to relief in terms of placement of black students and teachers, but allows the Attorney General to seek "such relief as may be appropriate." The courts have recognized that racially free teacher employment practices are essential to an effective unitary school system. See Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211 (5 Cir., 1969). The United States apparently has standing to question the employment practices with respect to teachers, but this still leaves open the question of whether the government may properly ask for reinstatement, back wages and/or damages to remedy any individual discrimination. This question has been obviated for the most part by the fact that most individual plaintiffs are presently represented by counsel and have brought their own actions.

Throughout the evidence in this case there have been references to the failure of the school board to fully advise the plaintiffs of the reasons for their nonretention and to the absence of any hearing...