Appeal by defendant Board of Education from order of the United States District Court for the Southern District of New York, Walter R. Mansfield, J., sitting by designation, which modified preliminary injunction to permit permanent appointments to supervisory positions within school system.Appeal by proposed defendant Wiener from denial of motion to intervene. Affirmed.
Lumbard, Feinberg Mulligan, and Mulligan, Circuit Judges.
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.,*fn1 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.
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." 330 F. Supp. 203. The judge subsequently issued a preliminary injunction against use of these tests and eligibility lists based upon them.*fn2 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,*fn3 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 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.*fn4
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.*fn5 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 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 ...