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MERCADO v. BOARD OF EXMRS.

July 14, 1971

Boston M. CHANCE and Louis C. Mercado, individually and on behalf of all others similarly situated, Plaintiffs,
v.
The BOARD OF EXAMINERS AND the BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Defendants



The opinion of the court was delivered by: MANSFIELD

The fairness and validity of competitive examinations, once described by Gilbert and Sullivan as the means of attaining "a Duke's exalted station," *fn1" have frequently been challenged in courts and elsewhere. E. g., Griggs v. Duke Power Company, 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Louisiana v. United States, 380 U.S. 145, 85 S. Ct. 817, 13 L. Ed. 2d 709 (1965); Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-239, 77 S. Ct. 752, 1 L.Ed .2d 796 (1957); Armstead v. Starkville Municipal Separate School District, 325 F.Supp. 560 (N.D. Miss. April 7, 1971). We are here called upon to decide whether those examinations which have been prescribed and administered by the Board of Examiners of the City of New York (the "Board" herein) to candidates seeking licenses for permanent appointment to supervisory positions in the City's school system (principals, assistant principals, administrative assistants, etc.) are unconstitutional. We conclude that a sufficient showing has been made of violation of the Equal Protection Clause of the Fourteenth Amendment to warrant the issuance of preliminary injunctive relief.

The two named plaintiffs, who are respectively Black and Puerto Rican, have brought this purported class action on behalf of themselves and all other persons similarly situated pursuant to federal civil rights laws, 42 U.S.C. §§ 1981 *fn2" and 1983. *fn3" They allege that the competitive examinations, which must be passed by a candidate before he or she can qualify for licensing and appointment, discriminate against persons of Black and Puerto Rican race, and have not been validated or shown fairly to measure the skill, ability and fitness of applicants to perform the duties of the positions for which the examinations are given, with the result that success on the examination does not indicate in any way that the candidate will succeed as a supervisor. This racial discriminatory effect, coupled with lack of justification or predictive value as measurements of abilities required to perform the jobs involved, is alleged to violate not only plaintiffs' federal constitutional rights but also (based on pendent jurisdiction) Art. 5, § 6 of the New York State Constitution, *fn4" and §§ 2590-j(3) (a) (1), *fn5" 2569 (1), *fn6" and 2573 (10) *fn7" of the New York Education Law, McKinney's Consol.Laws, c. 16.

Plaintiffs seek a preliminary injunction under Rule 65, F.R.Civ.P., prohibiting the alleged violations of these laws. They also seek declaratory relief *fn8" pursuant to 28 U.S.C. § 2201. We have jurisdiction under 28 U.S.C. §§ 1331 and 1343(3).

 The Board of Education has not actively opposed the motion for preliminary injunction, and it agrees that plaintiffs have presented triable issues of fact. The Board of Examiners ("Board" herein), however, has vigorously opposed the motion.

 In reaching our decision we have had the benefit of a plethora of lengthy affidavits and exhibits, a hearing at which oral testimony was taken, a series of arguments, and extensive briefing of the law and facts by the parties. In addition the following organizations have appeared as amici and filed briefs supporting plaintiffs: New Association of Black School Supervisors and Administrators, *fn9" ASPIRA of America, Inc., *fn10" and the Public Education Association. *fn11"

 An applicant for permanent appointment to a supervisory position in the New York City School System must, in addition to meeting state requirements for the position, obtain a New York City license. *fn12" First, each such candidate must have met minimum education and experience requirements established by the City's Board of Education and the Chancellor, Harvey B. Scribner, who is the Chief Administrator of the School District of the City of New York. For instance, a candidate for principal of a day elementary school must, among other things, have had (1) four years' experience teaching in day schools under regular license and appointment as a teacher, and (2) two years' experience of supervision in day schools under license and appointment, or meet various alternative experience requirements.

 Next the candidate must pass an examination procedure prepared and administered by the Board for the particular type or classification of supervisory post desired, which may take as long as two years to complete. If the candidate successfully completes the testing procedure, he or she is granted a license and placed on a list of those eligible for assignment to the type of supervisory position involved. The appropriate school governing authority-either a central board of education or a community school board under New York City's present decentralized system-then selects the person it wishes from the eligible list to fill an open position. Since appointments of permanent supervisory personnel in the New York City School System must be made from lists of eligibles who have passed examinations, the Board from time to time announces and conducts examinations for particular supervisory posts (of which there are more than 50 different types) following which the number of persons eligible for appointment are supplemented by promulgation of lists of those who passed the latest examination. If a successful candidate, after being listed as eligible for appointment, is not appointed within four years, he or she is dropped from the list and must again pass the qualifying examinations to be listed as eligible.

 Only in the cities of Buffalo and New York does state law provide for examinations in addition to state certification, N.Y.Education Law § 2573(10-a), and only the New York City School District maintains a Board of Examiners and the specific examination and licensing procedure here under attack. The Board has described itself as "a highly select group with broad professional background in education and related fields chosen through the most objective and impartially searching examination given under civil service." (Ex. 10, Item 10, attached to 5/28/71 aff. of Richard S. Barrett)

 Were it not for New York City's special examination and licensing procedure, plaintiffs Chance and Mercado would have been appointed permanent elementary school principals. Both have been certified by the state for that position, and both are specially trained to be principals, having graduated from a year-long Fordham University Instructional Administrators and Principals Internship Program in Urban Education.

 Plaintiff Boston M. Chance has been employed in the New York City public school system for the last 15 years and is acting principal of P.S. 104, an elementary school in the Bronx. Chance, who is of the Black race, possesses all of the basic qualifications of education and experience established by law and by the Board of Education and the Chancellor of the New York City School District for the position of principal of an elementary school. However, he lacks a city license as elementary school principal and therefore is barred at present from securing a permanent position as principal. In September, 1968, Chance took the examination given by the Board for the position of Assistant Principal, Junior High School, but he failed it and thus was not placed on the eligibility list and was not issued a license entitling him to permanent appointment.

 Plaintiff Louis Mercado, a Puerto Rican who also holds a New York State license as a principal, has been serving the New York City school system for the last 12 years. He is presently acting principal of P.S. 75, an elementary school in Manhattan, but he is barred from permanent appointment because he does not have a New York City license as an elementary school principal. Mercado is in a somewhat different position from Chance in that he does not allege that he has ever taken the relevant Board of Examiners' Supervisory Examination. While the present motion was pending-and while the parties were collecting statistical information pursuant to our order-the Board conducted their November, 1970 series of examinations for elementary school principal. Mercado withdrew from this examination and refused to take it on the grounds that the "Board of Examiners is not the appropriate agency for qualifying school personnel" and "the examination is not relevant * *." *fn13"

 Both Chance and Mercado were selected for their present acting principalships by their respective community school boards, in accordance with New York City's decentralized system. See generally, Council of Supervisory Associations, etc. v. Board of Education, 23 N.Y.2d 458, 297 N.Y.S.2d 547, 245 N.E.2d 204 (1969). In some instances such local school boards found, after interviewing licensed principals listed as eligible by the Board, that persons not so licensed were more qualified to serve as principals than those interviewed and that they performed their duties in a superior manner. (See Aff. of Peter J. Straus, 9/22/70).

 There are approximately 1,000 licensed Principals of New York public schools of varying levels (e. g., elementary day, junior high school, high school, etc.), of whom some act as the heads of schools and others function in administrative positions. Of the 1,000 only 11 (or approximately 1%) are Black and only 1 is Puerto Rican. Furthermore, of the 750 licensed Principals of New York elementary schools only 5 (or less than 1%) are Black, and none is Puerto Rican. Of the 180 high school administrative assistants, none is Black or Puerto Rican.

 Of the 1,610 licensed Assistant Principals of New York City junior high and elementary schools, only 7% are Black and only .2% are Puerto Rican. When the list for the position of Principal, elementary school, was originally promulgated, only 6 out of the 340 persons (or about 1.8%) were Black and none was Puerto Rican; and when the list for Principal, high school, was promulgated, none of the 22 licensed people was Black or Puerto Rican. The promulgated list of licensed Assistant Principals for junior high schools reveals that only 55 out of 690 persons (or 8%) were Black and none was Puerto Rican.

 Plaintiffs contend that the written and oral examinations of the Board are the major factor accounting for this extremely low percentage of Black and Puerto Rican supervisors in a school system where 55% of the students are Black or Puerto Rican. Plaintiffs summarize their basic argument as follows:

 
"[These] tests place a premium on familiarity with organizational peculiarities of the New York City school system which, while having little to do with educational needs, are largely gained through coaching and assistance from present, predominately white, supervisory personnel.
 
"The testing procedures do not indicate a candidate's ability to do the job being tested for. There is no evidence that they measure merit or fitness, they have never been validated, and they are unreliable psychological instruments." Amended Complaint para. para. 22, 23.

 Rather than risk the endless delay that would be encountered while the parties obtained this essential evidence through pretrial discovery procedures, we directed the parties, in view of the importance of the issue, to use their best efforts to agree on a procedure whereby the Board of Examiners and the Board of Education would compile the necessary racial statistics. All parties cooperated fully and at considerable effort in working out almost all of the details of the procedure to be followed. Such differences as existed were resolved by court order. *fn14" The result has been that after months of research we have been presented with the pass-fail statistics for the relevant racial and ethnic groupings of candidates for 50 supervisory examinations given over the past few years. In view of plaintiffs' claims that the examinations had a "chilling effect" inhibiting Black and Puerto Ricans from becoming candidates, this statistical survey ("the Survey") also includes figures as to those candidates who "Did Not Appear" to take the written test, which commenced the examination process, or who "Withdrew," i. e., took the written test but did not appear for subsequent parts of the examination. *fn15"

 All parties and amici have submitted briefs as to the relevance of the statistics thus adduced and the inferences that may be drawn from them. The parties also submitted affidavits by statistical experts. A hearing was held, at which each side's expert testified and was subject to cross-examination; and we heard more oral argument on the statistical data. After declining the opportunity to examine and cross-examine any other witnesses, including those presented by affidavit, both sides rested on the record thus adduced. *fn16"

 Upon the evidence thus presented we find that the examinations and testing procedures prepared and administered by the Board for the purpose of determining which candidates will be licensed as supervisory personnel have the effect of discriminating against Black and Puerto Rican candidates.

 The Survey reveals that out of 6,201 candidates taking most of the supervisory examinations given in the last seven (7) years, including all such examinations within the last three (3) years, 5,910 were identified by race. Of the 5,910 thus identified, 818 were Black or Puerto Rican and 5,092 were Caucasian. Analysis of the aggregate pass-fail statistics for the entire group reveals that only 31.4% of the 818 Black and Puerto Rican candidates passed as compared with 44.3% of the 5,092 white candidates. *fn17" Thus on an overall basis, white candidates passed at almost 1 1/2 times the rate of Black and Puerto Rican candidates. These overall figures, however, tell only part of the story. Of greater significance are the results of two examinations which had by far the largest number of candidates, those for Assistant Principal of Day Elementary School and Assistant Principal of Junior High School, which revealed the following: Thus white candidates passed the examination for Assistant Principal of Junior High School at almost double the rate of Black and Puerto Rican candidates, and passed the examination for Assistant Principal of Day Elementary School at a rate one-third greater than Black and Puerto Rican candidates. The gross disparity in passing rates on these two examinations is of particular significance not only because they were taken by far more candidates than those taking any other examinations conducted in at least the last seven years, resulting in licensing of the largest number of supervisors, but also because the assistant principalship has traditionally been the route to and prerequisite for the most important supervisory position, Principal. To the extent that Black and Puerto Ricans are screened out by the examination for Assistant Principal they are not only prevented from becoming Assistant Principals but are kept out of the pool of eligibles for future examinations for the position of Principal as well. The fact that the process involves a series of examinations and that to reach the top one must pass several examinations at different times in his or her career serves to magnify the statistical differences between the white and non-white pass-fail rates. For instance, if we take a group of 100 Black and Puerto Rican candidates, on the one hand, and 1,000 white candidates, on the other, and assume a passing rate of 25% for the former and of 50% for the latter on a given assistant principal's examination (as was approximately the case in the examination for Assistant Principal of Junior High School), the results would be as follows: Black & Puerto Rican 25% x 100 = 25 Licensed Assistant Principals White 50% x 1000 = 500 The group of 525 licensed assistant principals would then form the pool of eligibles for the related principal's examination. Assuming the same relative pass rates, we have the following results: Black & Puerto Rican 25% x 25 = 6.25 Principals White 50% x 500 = 250

 Thus the true resulting difference between the Black and Puerto Rican versus the white pass rates would be even more substantial: only 6.25% of the Blacks and Puerto Ricans would pass the two successive examinations as against 25% of the whites.

 When we look at all 50 examinations which were the subject of the Survey, we find that only 34 were taken by at least one member of both the white and Black-Puerto Rican racial groups. One of these examinations (Assistant Administrative Director, given Dec. 1967, PF-17) was passed by everyone taking it. Another (Director, Bureau for Children with Retarded Mental Development, given Jan. 1968, PF-18) was not completed successfully by anyone taking it. *fn18" There remain 32 examinations where one or the other of the two main racial groups -Black and Puerto Rican in one group and white in the other-had a larger percentage passing than did the other group. Of these 32 examinations the white group had a larger percentage passing in 25 examinations and the non-white group had a larger percentage passing in only 7 examinations. Thus the whites passed at a proportionately higher rate in ...


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