Appeal by the Board of Examiners from a judgment of the U.S. District Court for the Southern District of New York (Pollack, J.), which modified a final judgment on consent (Mansfield, J.), and a plan pursuant thereto approved by the District Court (Tyler, J.), for qualification of supervisory personnel in the New York City educational system. The court of appeals held that since either the plan approved by Judge Tyler or the plan approved by Judge Pollack facially met federal constitutional standards, the question to be resolved was whether the Modified Plan was in conformity with New York State law and that in view of uncertainty on that question and the lack of a presently acute federal question, the complaint would be dismissed and the parties permitted to litigate their respective plans in the state courts. The judgment is reversed except for interim relief as stated in the opinion.
Gurfein and Meskill, Circuit Judges, and John O. Newman, District Judge.*fn*
A child who was in the first grade when this action was begun is now ready to enter junior high school. The case is on appeal to this court for the fourth time.*fn1 In the intervening seven years, the U.S. District Court for the Southern District has been engaged in the intermittent monitoring of the selection of principals and assistant principals of schools in New York City. The issue as it has narrowed on this appeal turns largely on an interpretation of the New York State Constitution and provisions of the New York Education Law. The federal question of racial discrimination in the selection of supervisory personnel as the cardinal issue has, at this juncture, receded.
The Board of Examiners ("Examiners")*fn2 appeals from a judgment of the U.S. District Court for the Southern District of New York (Pollack, J.), entered on July 7, 1976, which modified a Final Judgment on Consent entered July 12, 1973 (Mansfield, J., as District Judge), and a plan pursuant thereto approved by the District Court (Tyler, J.), by order entered March 25, 1975.
This action was commenced in September 1970 by the filing of a complaint alleging that prior examinations prepared and administered by defendant Board of Examiners for selection and licensing of supervisors*fn3 in the New York City school system discriminated against blacks and persons of Puerto Rican descent in violation of the Fourteenth Amendment and failed to accord with the requirements of New York State law.*fn4 Title VII was not then applicable to governmental bodies.*fn5 The complaint, a class action, sought to enjoin the Board of Examiners from giving examinations to determine the " merit and fitness" of applicants ". . . which had not been prepared and validated in accordance with the latest standards of professional psychological testing . . .," and with the requirements of New York law.
On plaintiffs' motion for a preliminary injunction, the District Court found that no purposeful or intentional discrimination was being practiced. However, on the basis of statistical data concerning the comparative pass-fail rate for supervisory positions of blacks, Puerto Ricans and whites during the preceding seven years, 330 F. Supp. 203, 209, the court found a substantial disparity in the examination performances of blacks and Puerto Ricans compared to whites, and held that there was a substantial likelihood that this disparity evidenced a prima facie case of unintentional discrimination. Judge Mansfield (then District Judge) concluded that the Examiners*fn6 had failed to meet their "heavy burden" of making a "strong showing" that the tests were job-related, and issued a preliminary injunction barring the administration of any examination until the Examiners revised their tests to meet the standards articulated in the court's decision. 330 F. Supp. 203.
On appeal, this court affirmed the entry of the preliminary injunction, 458 F.2d 1167 (April 5, 1972). Basically, we agreed with the District Court's legal analysis that there was a prima facie case of de facto discrimination, and concluded that the District Court was not clearly erroneous with respect to its factual findings and conclusions and had not abused its discretion.
Both Judge Mansfield in his decision on the preliminary injunction (330 F. Supp. at 224) and this court in its affirmance (458 F.2d at 1179) expressed the expectation that new examinations would be speedily developed.
Following this court's 1972 decision, the Board of Examiners moved in the District Court on June 1, 1972, to modify the preliminary injunction to permit the development and administration of new examinations pursuant to a proposal submitted therewith. On the return date, Judge Mansfield, stating that the parties were more knowledgeable than the court about the creation of future test procedures, urged both sides to make a serious effort to reach agreement on a plan for new examinations, which he envisaged as requiring "specific examination procedures for numerous positions."
Thereafter, the parties commenced settlement discussions which, almost one year later, led to the execution of a Stipulation of Settlement by plaintiffs and defendant Board of Examiners and the Chancellor of the City School District. Pursuant to its terms, a final Judgment on Consent was entered on July 12, 1973 after notice to the class, with respect to defendant Board of Examiners and Chancellor (the "Consent Judgment"). Simultaneously, the District Court entered a parallel order with respect to defendant Board of Education ("the Board") which had refused to agree to the settlement.*fn7
The Consent Judgment established a two-part plan. Part One provided for an "interim" system for the selection and licensing of supervisors, essentially through on-the-job performance evaluations conducted by the Board of Examiners. Thus, supervisors appointed on an acting basis in accordance with the preliminary injunction could expeditiously be evaluated and obtain licenses without passing the customary plenary examination.*fn8
Part Two was an undertaking by the parties to establish by agreement,
" . . . a new comprehensive supervisory selection system for the New York City School System which will provide for the selection of supervisors in the future on the basis of 'merit and fitness' and without unlawful discrimination. . . ."
The Consent Judgment expressly provided that within six months, the "interim" system would be phased out and replaced by a permanent plan ultimately to be incorporated as part of the Consent Judgment.
Thereafter, the parties did submit to the District Court a Permanent Plan which was acknowledged to have been agreed to by all parties, except for two unresolved issues which the parties submitted to the court for resolution.*fn9 During the proceedings to resolve the two open issues, the parties continued to acknowledge their general acquiescence in the Permanent Plan.
On March 25, 1975, the District Court (Tyler, J.), entered an "Order Modifying Final Judgment and Order" (the "Tyler Order") which approved the Plan submitted by the parties in May 1974 (with additions relating solely to the two previously unresolved issues), incorporated it as part of the Consent Judgment, and authorized the defendants to prepare and administer examinations pursuant to it and thereafter to issue licenses based upon the results of such examinations.*fn10
Under the Tyler Order, as modified, the permanent licensing of supervisors was to consist of a Step 1 "Test" and a Step 2 "evaluation procedure" designed to effect "non-discriminatory personnel selection policies without abandoning the essential elements of a merit system." The Step 1 "Test" involved the issuance of provisional licenses to those who passed a plenary examination developed by the Examiners based upon a job analysis of the supervisory positions prepared by the Board of Education; the Step 2 evaluation procedure involved the issuance of permanent licenses to those who serve on the job in a position for one year and who pass a "Step 2" on-the-job performance evaluation by the Examiners.
It will be seen that this plan, to which all parties - including the Board of Education - consented, provided as a minimum prerequisite for provisional licensure some kind of examination, administered by the Examiners, designed to test for the job requirements established by the Board. It was assumed that the Examiners would develop the examination on the basis of the criteria set forth in the State Constitution and statutes discussed below. It was Judge Tyler's view that "the Community is entitled to the competitive examination licensing procedure, which its legislature has determined appropriate, as soon as possible. The Community is also entitled to a system which satisfies constitutional standards." Opinion of April 1, 1975.
In the two years after the judgment was entered, the Board did not give the Examiners the job analysis criteria needed for the preparation of examinations. Although the Board had been furnished with three prototype job analyses by its consultant, the American Institute for Research by the Spring of 1975, the analyses were not turned over to the Examiners on the express ground that the Board believed them to be inadequate.
In January, 1976, the Examiners complained to the District Court at a pre-motion conference that the Board of Education was not diligently proceeding to carry out its responsibilities under Step 1 of the Plan. On the representation that more time was necessary, a six-week adjournment was granted. In March, 1976, at a second pre-motion conference, the Examiners moved to implement the original Plan. But instead of furnishing the job analyses required by the Plan, the Board moved to substitute a "modified" plan for supervisory selection and licensing which would eliminate entirely the requirement that job analyses be prepared. Under the "modified" plan, provisional licenses would be issued to every applicant who satisfied the minimum educational and experience requirements prescribed by the State Commissioner with such additional requirements as might be established by the City Chancellor.*fn11 The role of the Examiners was to be limited to verification of the resumes submitted by applicants to ensure that the minimum qualifications set by the Chancellor were met. The Examiners were also to prepare and "evaluate and comment on" a written essay examination to demonstrate skills in written expression about matters relating to the position. The appointing power, as it related to elementary and junior high schools, would reside in the Community School Boards. The "modified" plan further provided that permanent licenses would be issued to those deemed qualified by on-the-job performance, as determined by the Community School Boards.
As proposed by the Board and the plaintiffs, the modified plan did not assign to the Examiners the role of assessing the on-the-job performance. However, Judge Pollack, recognizing that state law had to be ...