FEINBERG, Circuit Judge:
Defendant Board of Examiners of the City of New York appeals from a preliminary
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,
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,
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,
330 F.Supp. at 223. The judge further found:
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:
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 opportunity to present evidence on the issue of job-relatedness. The record shows that the trial judge in the early stages of the case was skeptical of plaintiffs' ability to prove their claims, and thereafter proceeded cautiously, thoroughly and fairly before making any findings of fact. It is against that background that defendant's attack on his factual findings must be considered.
The district judge read the Survey to show that white candidates passed the various supervisory examinations, considered together, "at almost 1½ times the rate of Black and Puerto Rican candidates." 330 F.Supp. at 210. The court, however, found even more significant the fact that:
Id. The statistics for the latter two examinations were thought particularly significant "because they were taken by far more candidates than those taking any other examinations conducted in at least the last seven years," and "because the assistant principalship has traditionally been the route to and prerequisite for the most important supervisory position, Principal." Id. The judge reasoned that these examinations for assistant principal screened minority applicants out of a chance to become full principals, thus in effect magnifying the overall statistical differences between
Total No. % Black of % % Puerto and Puerto City Principals Black Rican Rican Detroit 281 16.7% -- 16.7% Philadelphia 267 16.7% -- 16.7% Los Angeles 1,012 8.0% 1.7% 9.7% Chicago 479 6.9% -- 6.9% New York 862 1.3% 0.1% 1.4% Total No. % Black of Asst. % % Puerto and Puerto City Principals Black Rican Rican Detroit 360 24.7% 0.2% 24.9% Philadelphia 225 37.0% -- 37.0% Los Angeles -- -- -- -- Chicago 714 32.5% -- 32.5% New York 1,610 7.0% 0.2% 7.2%
330 F.Supp. at 213. Thus, the percentages of New York City black and Puerto Rican principals and assistant principals (1.4% and 7.2%) were found to be substantially below those percentages for other large city school systems. The percentage of black and Puerto Rican principals in Detroit and Philadelphia (16.7%), for example, was 12 times higher than that in New York (1.4%).
Appellant Board offers a number of arguments challenging the court's use of these statistics. Focussing on the Survey, the Board claims that the pass rates for the racial groupings of candidates were not comparable because the black and Puerto Rican group was a disproportionately large percentage of the eligibility pool for that group and, therefore, included more less competent candidates than did the white group of applicants. This was apparently not the position the Board urged below, nor was substantial evidence introduced bearing on the assumptions upon which the argument is based. Absent such evidence, we would not say that the trial judge could not regard the respective pass rates as probative of discrimination. The Board also argues that the results of examinations for many different jobs could not be lumped together for purposes of analysis. However, plaintiffs' expert testified that this was quite proper and the judge was entitled to rely on that evidence. The Board also claims that the court erred in relying on comparative pass rates for all applicants instead of eliminating those who withdrew before completing the entire examination process. Here, too, the record contains expert evidence supporting the court's method. The Board also argues that the statistics are meaningless because the samples were not random but were self-selected since examinations were taken by individual choice. As we have already indicated, the trial judge had sufficient evidence before him to use the Survey statistics as he did.
The Board further objects to the court's findings that examinations for assistant principal in effect serve to screen out minority candidates from becoming principals and thus magnify the discriminatory impact of the examination system. This conclusion was based on the court's understanding that "the assistant principalship has traditionally been the route to and prerequisite for the most important supervisory position, Principal." 330 F.Supp. at 210. Relying on a September 1970 "Examination Announcement" for the November 1970 examination given for Principal of a Day Elementary School, the Board claims that the court misunderstood the requirements for becoming a principal.
Finally, the Board claims that the comparison of the percentages of black and Puerto Rican principals and assistant principals in New York City with the percentages in the four other largest school systems in the country is invalid because until recently at least the New York City education and experience eligibility requirements were higher than those in other cities. Thus, the Board argues, the smaller percentage of black and Puerto Rican supervisors in New York City was due to those requirements rather than to the examinations. But, regardless of what light this may throw upon the validity of the education and experience requirements, it still does not follow that the comparison is wholly invalid. The inference was open to the trial judge on the record before him that the difference in the percentages in the large cities was due to the type of examination apparently given only in New York.
The last argument points up the crucial nature of the fact finding process in a case like this. After all the technical statistical jargon like "one tail" or "two tail" tests and "Chi-Square Test (Yates-corrected)" as well as the less esoteric numbers and percentages were placed before the trial judge, it was his job to resolve the issues. Throughout the briefs of the Board and its supporters runs the argument that other reasons can be inferred from the record for the comparatively low numbers of blacks and Puerto Ricans in supervisory positions. That may very well be true. But the question before us is whether the trial judge on the record before him was required to accept those inferences, and it is quite clear that he was not. In sum, while not all of us might have made the same factual inferences of racially discriminatory effect from the statistical evidence, both documentary and oral, before the court, none of us can say with the firm conviction required that those factual findings were mistaken. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 788, 92 L.Ed. 1147 (1948).
The parties agree that the case did not end with the district court's finding that the examinations prepared and administered by the Board significantly and substantially discriminated against black and Puerto Rican applicants. The district court pointed out that "the existence of such discrimination, standing alone, would not necessarily entitle plaintiffs to relief." 330 F.Supp. at 214. The further question was whether the examinations
The district court pointed out that two generally accepted methods are used to determine whether a particular examination is job-related or reasonably constructed to measure what it purports to measure. One is "content validation," which requires the examiners to demonstrate that they have formulated examination questions and procedures based on an analysis of the job's requirements, usually determined through empirical studies conducted by experts. An examination has content validity, then, if it elicits "from the candidate information that is relevant to the job for which it is given." 330 F.Supp. at 216. The other method of evaluating job-relatedness is "predictive validation," which requires a showing that there is a correlation between a candidate's performance on the test and his actual performance on the job. Part of the controversy in the trial court was over which of these was the better method for evaluating the Board's examinations. Plaintiffs stressed "predictive validation" as the more relevant test, while defendant argued that "content validation" was the more useful criterion. The district court did not resolve the dispute
In reaching its finding the court had to choose between conflicting expert testimony covering the issue of job-relatedness. Defendant Board submitted affidavits of several respected leaders in the field of educational testing, who stated that on the information supplied them the Board was apparently following testing methods that reasonably assured content valid examinations. The Board also introduced several research reports written by its staff members as showing its efforts to insure job-relatedness. Against this evidence plaintiffs offered the affidavits of various experts who found the Board's examinations lacking in validity, whether content or predictive. In making his finding the trial judge obviously relied heavily on the expert evidence offered by plaintiffs. The judge noted that the "fatal weakness in the Board's system" lies in its failure to actually implement the "techniques and procedures adopted in principle and approved by independent experts." Id. He further found that the Board's research reports were either irrelevant to developing valid examinations or were grossly inadequate for that purpose. Finally, the court stated that its conclusion based on the expert testimony was "confirmed" by its own study of some of the examinations. The trial judge seems to have felt that, at least from a layman's perspective, the examinations placed more emphasis on measuring a candidate's ability to memorize than on his ability to perform as a supervisor. It should be pointed out, however, that the district court's finding of invalidity was limited to the written part of the examinations. The judge made "no finding as to the content validity of the oral examinations, standing alone." 330 F.Supp. at 222. The court also held that the evidence was insufficient to
The Board argues that the district court's finding that the written parts of the examinations were not shown to be sufficiently job-related is clearly erroneous. It claims that the court unreasonably rejected the opinions of the Board's experts and instead ignored the "plain import" of their testimony, and improperly relied on irrelevant evidence and on the court's own inexpert judgment. We are unpersuaded by these arguments. The justification for any written examination must at least be, as one of plaintiffs' experts pointed out, that using it is better than drawing names out of a hat.
330 F.Supp. at 223. We cannot say that the judge erred. It is clear, of course, that he was not required to accept the views of the Board's experts. In sum, what we said earlier applies here as well: While not all of us might have made the same factual finding on the question of job-relatedness as the district judge did, his finding was not clearly wrong.
We come, then, to the question whether the district court applied the proper constitutional standards in reaching its conclusions that (1) plaintiffs made out a prima facie case of racial discrimination, and (2) the Board, in turn, failed to meet its burden of demonstrating that the examinations are justified notwithstanding their discriminatory effect.
Concededly, this case does not involve intentionally discriminatory legislation, cf. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), or even a neutral legislative scheme applied in an intentionally discriminatory manner, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Nonetheless, we do not believe that the protection afforded racial minorities by the fourteenth amendment is exhausted by those two possibilities. As already indicated, the district court found that the Board's examinations have a significant and substantial discriminatory impact on black and Puerto Rican applicants. That harsh racial impact, even if unintended, amounts to an invidious de facto classification that cannot be ignored or answered with a shrug. At the very least, the Constitution requires that state action spawning such a classification "be justified by legitimate
The Board argues, however, that the statistical differences found by the district court are insufficient to meet the constitutional test of invidiousness and do not amount to a prima facie case of de facto discrimination. In particular, the Board notes that even according to the district court's analysis, on an overall basis white candidates passed at only one and one-half times the rate of black and Puerto Rican candidates. Such a difference, it is argued, is at most mere underrepresentation and hardly amounts to the gross unexplained disparity that is required for a prima facie case. See, e. g., Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). But as we previously indicated, the district court did not merely rely on the difference in overall pass rates. Of "greater significance" were the pass rates with respect to the assistant principal examinations and the magnifying effect that results from requiring candidates to pass the examinations seriatim. Moreover, an additional factor considered was the small percentge in New York City of minority principals and assistant principals in comparison with other large metropolitan school systems that do not have comparable examination requirements. We believe that on this and other evidence in the record the district court could properly conclude that plaintiffs had demonstrated a disparity of sufficient magnitude to amount to a prima facie case of invidious de facto discrimination.
We further believe that once such a prima facie case was made, it was appropriate for the district court to shift to the Board a heavy burden of justifying its contested examinations by at least demonstrating that they were job-related. First, since the Board is specifically charged with the responsibility of designing those examinations,
The Board maintains, however, that the district court applied an improper standard in determining whether the examinations had been justified notwithstanding their discriminatory impact. According to the Board, the district court "clearly erred" in applying the compelling interest standard rather than the rational relationship test customarily applied in equal protection cases.
Although state action invidiously discriminating on the basis of race has long called for the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944), the Supreme Court has yet to apply that stringent test to a case such as this, in which the allegedly unconstitutional action unintentionally resulted in discriminatory effects. See Dandridge v. Williams, 397 U.S. 471, 485 n. 17, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); cf. Whitcomb v. Chavis, supra, 403 U.S. at 149-160, 91 S.Ct. 1858, 29 L.Ed.2d 363. Manifestly, the question whether that test should be applied to de facto discriminatory classifications is a difficult one and is not to be resolved by facile reference to cases involving intentional racial classifications. We think, however, that the district court's decision may be upheld under the "more lenient equal protection standard" and so find it unnecessary to reach this most difficult question. Eisenstadt v. Baird, 405 U.S. 438, 447 n. 7, 92 S.Ct. 1029, 1035, 31 L. Ed.2d 349 (1972); see Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 24 L. Ed.2d 567 (1970).
The last issue before us is whether the district judge abused his discretion in issuing a preliminary injunction against the use of Board examinations and lists of eligibles based upon the results of those tests and in requiring the Board to allow appointment of "acting" supervisors. The judge concluded that there was a strong likelihood that plaintiffs would prevail on the merits at trial, a view we have already indicated we would not characterize as wrong. But that did not end the matter, as the judge recognized, because the impact of the interim order is sizeable. It temporarily prevents the use of outstanding lists of eligible licensed supervisory personnel and bars the issuance of new lists from recently completed examinations. We are dealing here not with abstractions but with people, some of whom have worked diligently for years to pass the Board examinations and rise to a more responsible job. If we needed any proof of that, it was furnished by the eloquent amicus brief and oral argument of one such teacher, Charles Wiener.
But the district judge was aware of these and other consequences of his order. He pointed out that those now on the lists would not be denied "an equal opportunity in the future to qualify under such examination procedures as are found to be constitutionally permissible" and meanwhile would still be eligible for appointments in "acting" capacities. 330 F.Supp. at 224. Based upon his findings, he also recognized that refusing the injunction would continue racial discrimination and deny plaintiffs and others like them any real opportunity for appointment until a final decision on the merits, by which time many positions would have been filled. Moreover, many minority group acting supervisors, already selected by local boards because of their ability to perform, might lose their positions.
We understand the fears of those individuals and groups that have filed
We cannot close this opinion without a word of appreciation to the lawyers for the parties who have labored long and well to present the issues to us. They are listed at the beginning of this opinion, and they have our appreciation.
Affidavit of defendant Examiner Gertrude E. Unser, dated Oct. 26, 1970, quoting 1923 statement of Superintendent of Schools, William Ettinger.
330 F.Supp. at 216.