UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 12, 1974.
BOSTON M. CHANCE, LOUIS C. MERCADO, CLARA BURGESS, FAITH RINGGOLD, SHIRLEY RANDALL, MARIA C. CESTERO, EDWARD BONNEMERE AND MARIA SANTOS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
THE BOARD OF EDUCATION OF THE CITY OF NEW YORK; MURRAY BERGTRAUM, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF THE BOARD OF EDUCATION; ISAIAH E. ROBINSON, JR., INDIVIDUALLY AND IN HIS CAPACITY AS VICE-PRESIDENT OF THE BOARD OF EDUCATION; MARY E. MEADE, SEYMOUR P. LACHMAN, AND JOSEPH MONSERRAT, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF EDUCATION, DEFENDANTS-APPELLANTS. THE BOARD OF EXAMINERS; GERTRUDE E. UNSER, INDIVIDUALLY AND IN HER CAPACITY AS CHAIRMAN OF THE BOARD OF EXAMINERS; JAY E. GREENE, MURRAY ROCKAWITZ AND PAUL DENN, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF EXAMINERS; HARVEY B. SCRIBNER, INDIVIDUALLY AND IN HIS CAPACITY AS CHANCELLOR OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; AND FREDERICK H. WILLIAMS, INDIVIDUALLY AND IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, DEFENDANTS-APPELLEES. CHARLES WIENER (PRO SE), PROPOSED DEFENDANT-INTERVENOR-APPELLANT
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.
FEINBERG, Circuit Judge:
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 built in a period of days or even of weeks.
In the meantime, the judge pointed out, the system of acting appointments had caused financial and morale problems
since acting personnel, a disproportionately high percentage of whom are Black and Puerto Rican, perform the same functions as regularly appointed supervisors but neither receive the same financial benefits nor enjoy the prestige and authority that go with performance.
He concluded that the settlement "would produce greater stability and confidence" in supervisors by allowing permanent appointments during the interim period until a new examination system was devised. Nevertheless, the judge conditioned his approval of the settlement upon the requirement that within six months
the parties shall either agree upon a plan for a permanent system for the selection of supervisors within the New York City School System, or any party shall be free to apply to the Court for modification of the judgment.
The judge also rejected the argument that the settlement violated New York State law. He noted that:
The proposed new procedure appears to be based on the principle of merit and fitness, with emphasis on eligibility standards, parent involvement in the selection process, interviews, evaluation of on-the-job performance, and developments of and adherence to other selection criteria. New York's Constitution does not rigidly mandate competitive examinations as the exclusive method of selection. It provides that merit and fitness shall be ascertained by such methods "as far as practicable." Indeed, except for Buffalo and New York City the State's constitutional requirement is satisfied elsewhere by a system of certification based on the candidate's academic training and professional experience without resort to competitive examinations.
On appeal, the Board of Education makes essentially the same arguments as in the trial court, asserting that Judge Mansfield's order violates statutory and constitutional law of New York State, and that the order goes beyond the limits of preliminary injunctive relief. Appellees respond that the Board has been guilty of laches, that the injunction does not conflict with state law, that state law would not control in any event, and that the order falls within the scope of proper preliminary relief.
We are thus again primarily faced with the question, as we were two years ago, whether Judge Mansfield abused his discretion in the order under attack. This time, the issues before us are narrower since they go only to the propriety of the interim relief granted. As to the legality of the preliminary injunction under state law, the order does not authorize the permanent licensing of school supervisors without any examination. If it did, it would probably run afoul of the decision of the New York Court of Appeals in Board of Educ. v. Nyquist, 31 N.Y. 2d 468, 341 N.Y.S.2d 441, 293 N.E.2d 819 (1973), construing N.Y. State Const., Art. V, § 6, and relief upon heavily by the Board of Education. We would then be faced with plaintiffs' argument that state law can and should be overridden, if necessary, to redress past discrimination unconstitutional under federal law. But, as we see it, we need not reach that issu. In Nyquist, a decision of which Judge Mansfield was aware,*fn6 there was a grant of a permanent license to an acting supervisor without any examination. Here, the settlement agreement contemplates an interim system of appointment which includes a full examination. Appointments may be made from three categories of persons, the first two of which have already presumably taken and passed examinations.*fn7 The Board's objections are limited to the third category, which consists of those "(a) who have been or will be appointed to a supervisory position . . . on an acting basis . . . and (b) who have completed or will complete at least 5 months' service in that position on an acting basis. . . ." As to this group, the settlement agreement goes on to provide:
Such persons shall be licensed only after their on-the-job performance in that position has been evaluated and examined by the Board of Examiners, in conjunction with the appointing authority and pursuant to criteria developed with the appointing authority. . . .
We agree with the district judge that, at least on this record, this appointment scheme appears to comply with New York State law. In the absence of a certification statute*fn8 we, like Judge Mansfield, can do no more than make an educated guess in a difficult area.*fn9 But the New York cases indicate that the appointment procedure, at least as now contemplated, is not illegal.*fn10 Charles Wiener, whose attempt to intervene is discussed below, asserts that the new procedure will be a sham and is designed to give an inside track to those already serving in an "acting" capacity. He alleges that race, political patronage, nepotism and favoritism will replace merit and fitness as the operative criteria for selecting supervisors. If that were true, we have no doubt that it would be improper under state law. But the district judge envisioned no such egregious result and we will assume that until a permanent examination procedure is adopted, the district court will carefully supervise the manner in which the settlement agreement is implemented to see that the reality accords with the promise.
The Board of Education also claims that authorizing appointment of supervisory personnel not simply pendente lite but on a permanent basis violates principles of equity jurisprudence. The argument is that, at least as to this appellant, the order is only a preliminary injunction. This being so, says the Board, the district court could do no more than protect the subject matter of the litigation until entry of a final judgment after joinder of issue and a full trial on the merits. Thus, until a permanent examination system is established either by judicial determination or by consent, no supervisor as a matter of equity law can receive a permanent appointment. We do not see why this should be so. Three and a half years have elapsed since the commencement of this lawsuit. A judgment has been rendered -- final as to the Board of Examiners and the Chancellor of the City School District and acceptable to the Board of Education*fn11 -- that the tests used in the past for supervisory school positions were discriminatory and unconstitutional. Until recently, however, the Board of Education has shown little interest in expediting the preparation of new and acceptable examinations. Meanwhile, hundreds of supervisors have been given acting appointments, but not the pay or the prestige that go with the permanent position. It was within the discretion of the district court to take all these matters into account in modifying its earlier injunction, and we so hold.*fn12
Finally, we must note that were the litigation to remain indefinitely in its unfinished state, the propriety of continuing to allow permanent appointments would be another matter. The interim tail would then be wagging the dog and the incentive for plaintiffs' class to obtain a permanent non-discriminatory testing system would diminish considerably and perhaps disapper. Indeed, we think too much time has already elapsed and we regret that the district court did not require the parties to adhere to the six-month time period it suggested in approving the settlement. Allowing another lengthy period of time to go by, thus creating further eligibles for permanent appointment as an "interim" measure, would approach an abuse of discretion. Accordingly, while we affirm the judgment of the district court, we suggest that the litigation be promptly brought to a close, either by judicial resolution of contested issues or by settlement.
There remains for consideration the appeal of Charles Wiener from the denial of his motion to intervene as a defendant-appellant. See note 4 supra. Wiener is a teacher who has apparently passed several of the written examinations covered by the preliminary injunction. He seeks to intervene both to challenge the finding of the probable unconstitutionality of those examinations and to attack the propriety of the order allowing permanent appointment of acting supervisors. We have already referred, at the end of Part II, supra, to the basis of the latter attack. Judge Mansfield denied Wiener's motion to intervene on the ground that he was adequately represented by the existing parties.*fn13 We cannot characterize this ruling as an abuse of discretion, and we affirm. Wiener himself seems to concede, and we find, that his views on the merits were vigorously represented by the Board of Examiners through the first appeal. He contends, however, that after remand the Board of Examiners abandoned its defense of the old system of examination and settled with the plaintiffs, leaving him unrepresented. We take a different view. In light of the district court's finding, which we upheld, that the prior tests were probably unconstitutional, the Board of Examiners benefited Wiener in negotiating a settlement under which he can obtain a principal's license on the basis of having passed the old written examinations. See note 7 supra and accompanying text. Moreover, as we have indicated, the Board of Education has changed its position on remand and has adequately represented Wiener's views on the propriety of the relief granted by the modified preliminary injunction. Finally, Wiener, although not a party, has been given and has taken advantage of several opportunities to present his arguments to Judge Mansfield and, on both appeals, to this court. These arguments have been carefully considered.*fn14
Accordingly, we affirm both the order modifying the preliminary injunction and the order denying Wiener's motion to intervene.*fn15