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BOARD OF EDUC. OF NEW YORK v. CALIFANO

February 11, 1981

BOARD OF EDUCATION OF the CITY OF NEW YORK and Irving Anker, Chancellor of City School District, Plaintiffs,
v.
Joseph A. CALIFANO, Secretary of the Department of Health, Education and Welfare, the Department of Health, Education and Welfare; Ewald Nyquist, Commissioner of Education of the State of New York; New York State Division of Human Rights: Melvin Barman, Noah Gelfond and Daniel Gavrin, on behalf of themselves and on behalf of all male Health and Physical Education Teachers, etc., Claire Cohen, Cynthia Crawford and Joyce Silversmith, etc., Defendants



The opinion of the court was delivered by: LASKER

I.

The Board of Education of the City of New York and Irving Anker, the Chancellor of the New York City School District (collectively, the Board), brought this action in April 1977 against the Department of Health, Education and Welfare and its Secretary, Joseph Califano, (collectively, HEW), the Commissioner of Education of the State of New York and the New York State Division of Human Rights (collectively, the state defendants), and certain male and female physical education teachers in the New York City School system, both individually and as representatives of classes of male and female teachers respectively. The Board sought declaratory and injunctive relief to resolve allegedly disparate determinations by the state defendants and HEW as to the legality of a proposed merger of seniority lists for male and female physical education teachers and to uphold the legality of the proposed merger.

Until 1973 the Board gave separate examinations for male and female physical education teachers, and consequently maintained separate lists for eligible candidates for appointment and for seniority, since the lists were based in part on the results of those examinations. On October 5, 1976, the State Commissioner of Education ordered the Board to merge the seniority lists on the grounds that the maintenance of separate lists constituted unlawful sex discrimination. While the Board was preparing to comply with the Commissioner's order, *fn1" a representative of HEW informed the Board that HEW was considering whether the proposed merger would violate Title IX, 20 U.S.C. §§ 1681 et seq.

 The Board filed this action to obtain a resolution of the apparently conflicting positions of the State Commissioner and HEW.

 The male teachers counterclaimed that the maintenance of separate seniority lists for male and female teachers constituted sex discrimination and that the layoffs of male teachers in 1975 based on separate lists were unlawful. They seek back pay and other benefits which they allege they would have received had they not been laid off.

 On December 15, 1977, HEW's motion to dismiss was granted on the grounds that there was no case or controversy between the Board and HEW since HEW had not made a formal determination as to the legality of the proposed merger or to withhold funds. On November 17, 1979, the state defendants' motion for summary judgment was granted on the grounds that there was no controversy between the Board and the state defendants since both parties agreed that the lists should be merged.

 The male teachers now move for summary judgment on their counterclaim. *fn2" They contend that in 1975, they were laid off while the Board retained female teachers who were hired after they were. They claim that this action violated their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., New York Executive Law §§ 296, 297 (McKinney 1972 & Supp.1980-1981), and the equal protection clauses of the Fourteenth Amendment and the New York Constitution.

 The Board raises several defenses to the motion. First, it contends that there is a material question of fact as to whether the maintenance of separate seniority lists for men and women constitutes a "bona fide" seniority system as that term is used in Section 703(h), 42 U.S.C. § 2000e-2(h). If it were "bona fide" it would be valid as a matter of law under that section. Second, the Board contends that the layoffs do not constitute discrete acts occurring after the effective date of Title VII, as hence are not actionable. Third, the Board argues that according to the considerations set forth in Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978), the male teachers are not entitled to retroactive relief. Fourth, the Board contends that Title IX did not require the merger of the lists until 1978, and that the failure to merge the lists earlier was a reasonable response to a letter from an HEW representative which indicated that the merger might violate the rights of the female students under Title IX. Finally, the Board argues that as to the claim under the Fourteenth Amendment, there is no evidence of intent to discriminate as required by Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).

 II.

 A. Title VII

 1. Bona Fide Seniority System

 Section 703(h) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(h), provides in part:

 
"Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin."

 We agree with the Board that there is a material question of fact as to whether its prior maintenance of separate seniority lists for men and women constituted a "bona fide" seniority system within the meaning of the statute. The construction of the term was discussed in Acha v. Beame, 570 F.2d 57, 64 (2d Cir. 1978). Women police officers of the New York City Police Department claimed that the layoff of female police officers pursuant to a "last-hired, first-fired" seniority policy constituted illegal sex discrimination. The court, affirming the district court's decision to vacate a partial summary judgment, reviewed the principles applicable to a determination whether a seniority system is "bona fide:"

 
"Section 703(h) of the Act immunized only "bona fide' seniority systems. Bona fides, in the context of the statute requires, at least in part, that the seniority system be applied fairly and impartially to all employees, that it not have its "genesis in (unlawful) discrimination,' and that it be maintained free from illegal purposes.... A ...

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