Chance v. Board of Examiners Brief for Defendant-Appellant Board of Examiners
Public Court Documents
January 1, 1971

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Brief Collection, LDF Court Filings. Chance v. Board of Examiners Brief for Defendant-Appellant Board of Examiners, 1971. 24d72631-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/48b7d15f-1a86-4844-a72a-ecce8b398629/chance-v-board-of-examiners-brief-for-defendant-appellant-board-of-examiners. Accessed July 10, 2025.
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HuttpS States (Earn at Apprals l^or the Second Cii-cuit N o. 71-2021 BOSTON M. CHANCE, LOUIS C. M ERCAD O , « «rf, again, THE b o a r d o f e x a m i n e r s , an£ Defendant-Appellant, THE B O A R D OF EDU CATION OF TH F C ITY OF NEW YO R K , et al, Defendants. A ppeal from an Order of the United stattc r> ° m s * " ™ E SoOTH™ D istrict op New v ™ ? " BRIEF hOR DEFENDANT-APPELLANT b o a r d o f e x a m i n e r s Saul Z. M ark A . A fZ V J 1 a ickjman, mays & I-Ian i Z r a f ,E fa ^ Z dm'-Am ,'aa 425 Park Avenue Cohen ^ cw ^ or >̂ N ew York 10022 Jacoby of Counsel TABLE OF CONTENTS PAGE Preliminary Statement ................................................ 1 Statement of the Issues Presented for Review .......... 2 Statement of the C a s e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . *. * . . 3 A rgument : P oint I—The court below applied an erroneous con stitutional standard to an invalid statistical analysis and, accordingly, clearly erred in holding that the statistical data established a prima facie case of racial discrimination................................... 7 A. The lower court erroneously compared pass rates for racial groupings of candidates which clearly were noncomparable samples ............. 10 1. The data actually show that the examina tions have no discriminatory effect .......... 10 2. Application of a test for determining whether there is a statistically significant difference between pass rates yields a mean ingless result when the samples are not comparable ...................................................... 14 B. Numerous other statistical and factual errors permeated the lower court’s evaluation of the data ........................................................... 15 1. Testing for a statistically significant dif ference from perfect equality is inappro priate since perfect equality is attainable only through the use of an explicit quota system ............................................................. 15 11 PAGE 2. It is logically impermissible to conclude from aggregate data that any or all of the diverse and discrete supervisory examina tions have a discriminatory e ffe ct ............. 17 3. The lower court fashioned a wholly in valid hypothetical projection of supposed cumulative discriminatory e ffect................. 18 4. Since the data show that the small per centages of black and Puerto Rican prin cipals and assistant principals in New York were caused by factors other than the super visory examinations, the comparison to the percentages in other cities is of no probative value ............................................................... 20 C. The equal protection clause does not demand that all governmental classifications yield racial quotas of the applicant population; to establish a prirna facie case of racial discrimination there must be gross unexplainable statistical dis parities combined with additional evidence probative of purposeful discrimination............. 21 P oixt II— The court below clearly erred in holding that none of the supervisory examinations is job- related ........................................................................ 26 P oixt III— The court below applied an erroneous constitutional standard in reviewing the examina tion procedures ....................................................... 36 Poixt IY—Issuance of the unprecedented sweeping preliminary injunction was a serious abuse of discretion .............................................................................. 42 Coxclttsiox .............................................................................. 48 m Table of Authorities Cases: PAGE Armstead v. Starkville Municipal Separate School District, 325 F. Supp. 560 (N.D. Miss. 1971) . . . 24, 40 Arrington v. Mass. Bay Transp. Co., 306 F. Supp. 1355 (D. Mass. 1969) ............................................ 25,40 Baker v. Columbus Municipal Separate School District, 329 F. Supp. 706 (N.D. Miss. 1971) . . . 24,40 Bolling v. Sharpe, 347 U.S. 497 (1954)................. 38 Brown v. Allen, 344 U.S. 443 (1953) ..................... 9 Brown v. Board of Education, 347 U.S. 483 (1954) 8, 39 Carter v. Gallagher, 3 FEP Cases 692 (D. Minn. 1971), aff’d in part, 3 FEP Cases 900 (8th Cir. 1971) ....................................................................... 25,40 Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970) .................................................... 9 Cassell v. Texas, 339 U.S. 282 (1950) ................. 22 Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967), cert, denied, 390 U.S. 1011 (1968) 39 Clairol, Inc. v. Gillette Co., 389 F. 2d 264 (2d Cir. 1968) ....................................................................... 42 Dandridge v. Williams, 397 U.S. 471 (1970). .37, 38, 39, 47 Foundry Services, Inc. v. Beneflux Gorp., 206 F.2d 214 (2d Cir. 1953).................................................. 43 Gayle v. Browder, 352 U.S. 903 (1956) ................. 8 Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . 25 Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) ............................................................. 38,40 IV PAGE Int’l Cont. Transp. Corp. v. New York Ship’g Ass’n, 426 F.2d 884 (2d Cir. 1970) ..................... 43 Johnson v. New York State Education Department, Dkt. No. 71-1006, slip p. 4645 (2d Cir. Aug. 13, 1971) ........................................................ 37,38,39,40,47 Jones v. Georgia, 389 U.S. 24 (1967) ..................... 23 Korematsu v. United States, 323 U.S. 214 (1944) 38 Labine v. Vincent, 401 U.S. 532 (1971) ................. 47 Loving v. Virginia, 388 U.S. 1 (1967) ................. 8,38,39 McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892) .............................................. 39 Neal v. Delaware, 103 U.S. 370 (1880) ................. 9 Norris v. Alabama, 294 U.S. 587 (1935)................. 9 Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968) ............. 9 Oyler v. Boles, 36S U.S. 448 (1962) ..................... 8 Penn v. Stumpf, 308 F. Supp. 123S (N.D. Cal. 1970) ...................................................................... 40 People v. Chestnut, 26 N.Y. 2d 481, 311 N.Y.S. 2d 853 (1970) ............................................................. 9 Powell v. Power, 436 F.2d 84 (2d Cir. 1970) ___ 8 Reed v. Reed, — U.S. —, 40 U.S. Law Week 4013 (Nov. 22, 1971) .................................................... 38 Shapiro v. Thompson, 394 U.S. 618 (1969) .......... 38 Simmons v. United States, 406 F.2d 456 (5th Cir. 1969), cert, denied, 395 U.S. 982 (1969) .......... 22 Sims v. Georgia, 389 U.S. 404 (1967) ................. 23 Sims v. Greene, 161 F.2d 87 (3d Cir. 1947).......... 43 v PAGE Smith v. Tesas, 311 U.S. 128 (1940) ..................... 9 Societe Comptoir v. Alexander’s Dep’t Stores, Inc., 299 F.2d 33 (2d Cir. 1962) ......................... 43 Strauder v. West Virginia, 100 U.S. 303 (1879) .. 39 Swain v. Alabama, 380 U.S. 202 (1965) ..........8, 9, 22, 24 Turner v. Fouche, 396 U.S. 346 (1970) ................. 10, 23 United States v. Criminal Court of the City of New York, 442 F.2d 611 (2d Cir. 1971) ..........30,35,41,47 Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292 (3d Cir. 1940) .............................................. 46 Western Addition Community Organization v. Ali- oto, 330 F. Supp. 536 (N.D. Cal. 1971) ............. 25,40 Wliitus v. Georgia, 385 U.S. 545 (1967) .............9,10,23 Wiggins v. Haynes, 439 F.2d 848 (5th Cir. 1971) 23 Yick Wo v. Hopkins, 118 U.S. 356 (1886)............. 9 S tatutes: 28 U.S.C. § 1292(a) .................................................. 1 42 U.S.C. §§ 1931 and 1983 ...................................... 4 N.Y. Const., Art. V, $ 6 .......................................... 3 N.Y. Education Law, §2573, subd. 1 ( b ) ............... 44 N.Y. Education Law, § 2590, et seq........................ 3 N.Y. Education Law, § 2590-e................................. 4 N.Y. Education Law, § 2590-j, subd. 2 ................... N.Y. Education Law, § 2590-j, subd. 3 (b ) (2 ) ........ 4 I I IN THE © t a t o (Em trl a f A p p eals For the Second Circuit N o. 71-2021 Boston M. Change, Louis C, Mercado, et ah, Plaintiffs-Appellees, against T he B oard of E xaminers, Defendant-Appellant, and T he B oard of E ducation of the City of New Y ork, et al., Defendants. ----------------------o---------------------- BRIEF FOR DEFENDANT-APPELLANT BOARD OF EXAMINERS Preliminary Statement This is an appeal pursuant to 2S U.S.C. § 1292(a) from an order of the Honorable Walter It. Mansfield entered in the District Court for the Southern District of New York on September 20, 1971 granting preliminary injunctive relief against governmental agencies of the State of New York. The order (257a) was based upon findings and conclusions set forth in an Opinion (179a) filed on July 14, 1971 (reported at 330 F. Supp. 203) and in a Memo randum (251a) filed together with the preliminary injunc tion. The order effectively blocks the defendants from administering a statutorily mandated examination program for the qualification of school supervisory personnel accord- 2 ing to merit and fitness. The appeal involves important questions concerning the scope of the equal protection clause of the Constitution and the exercise of equitable discretion by a Federal district court in matters of peculiar importance to the State. Statement of the Issues Presented for Review Plaintiffs brought suit in September 1970 to challenge the constitutionality under the Fourteenth Amendment of the licensing examinations for supervisory positions in the New York City school system administered by defendant Board of Examiners. Although intentional discrimination was neither alleged nor shown, the court concluded—merely on the basis of varying differences in relative pass rates for blacks and Puerto Ricans as compared with whites and without regard to evident differences between the racial candidates groupings—that the supervisory examinations had a “ substantial and significant” de facto discriminatory impact on blacks and Puerto Ricans amounting to a prima facie case of racial discrimination. Furthermore, while approving of defendant’s examina tion procedures in theory, the court held—in the face of overwhelming expert opinion to the contrary—that the defendants had not satisfied the heavy burden of making a “ strong showing” that the examinations are “ truly job- related” . Finally, purporting to balance the equities so as to maintain the status quo pendente lite, the court issued its far-reaching order invalidating all prior and current examinations and effectively blocking the examining process for supervisory personnel mandated by State law. Accordingly, the questions presented on this appeal are: (1) Whether the District Court applied an erro neous constitutional standard to an invalid statistical analysis in holding that the statistical data estab lished a prima facie case of racial discrimination; (2) Whether the District Court erred in holding that none of the supervisory examinations is job- related ; 3 (3) Whether the District Court applied an erro neous constitutional standard in reviewing the exam ination procedures; and (4) Whether, in any event, the District Court seriously abused its discretion in granting the un precedented sweeping preliminary injunction. Statement of the Case Defendant Board of Examiners (hereinafter referred to occasionally as the “ Examiners” ) was established in 1898 by the State legislature to conduct examinations for the qualification of New York City school system pro fessional personnel, and thereby effectuate the State con stitutional mandate that appointments and promotions be made according to “ merit and fitness to be ascertained, as far as practicable, by examination. . . . ” N.Y. Const. Art. V, § 6. The Board of Examiners was conceived as an independent body “ designed to do away with abuses, real or supposed, arising from the appointment and promotion of teachers in the several parts of the city on a basis of social and religious favoritism and of political patronage” (43a). Examinations presently are conducted for over 1,200 teaching and supervisory licenses and certificates of com petency. The subject of attack in the present action are the diverse examinations for the nearly 200 different super visory licenses which cover such positions as department chairmen, supervisors, directors, principals, assistant prin cipals, etc. There are approximately 4,000 such supervisory positions in the school system, which positions pay approx imately $20,000 to $32,000 per year (44a). Thus, the annual salary roll for supervisory positions is in the vicin ity of $100,000,000. Prior to the enactment in 1909 of the “ Decentralization Law” (N.Y/- Edue. Law, ̂2590, et seq.), the Board of Examiners was required to conduct open-competitive exam inations for supervisory positions and promulgate ranked 4 eligible lists of successful candidates for each position. Appointments to vacant supervisory positions throughout the school system were made by the defendant Board of Education on the basis of the ranked eligible lists. Under decentralization, authority to make appointments to almost all local supervisory positions was transferred from the central Board of Education to the 31 newly-created com munity school boards. N.Y. Educ. Law, § 2590-e. As part of the delicate balance struck by the State legislature in formulating the decentralization plan, exam inations for supervisory positions now were to be con ducted on an “ open-qualifying” basis, so that community school boards could choose, from amongst the entire group of listed eligibles, supervisory personnel suitable to the needs of the local community. N.Y. Educ. Law, § 2590-j, subd. 3(b)(2). The present suit was commenced in September 1970 by two named plaintiffs,* * Chance and Mercado, on behalf of themselves and an alleged class, primarily to block an ex amination for the position of elementary school principal scheduled to begin with a written test on November 3, 1970 (148a). Messrs. Chance and Mercado had just been assigned to acting principalships, though they lacked li censes, because the last eligible list for the position had been exhausted. The complaint asserted claims under Fed eral civil rights laws (42 U.S.C. 1981 and 1983) and ancillary State claims. In essence, plaintiffs contended that the supervisory examinations were “ biased” against blacks and Puerto Bicans, and were the “ major factor” account ing for the low percentage of black and Puerto Rican super visory personnel (149a). Plaintiffs sought a declaratory judgment as to the alleged violation of their equal protec tion rights and preliminary and permanent injunctive relief (153a). The Board of Examiners opposed plaintiffs’ motion for preliminary injunctive relief and also sought dismissal of the complaint on the ground that plaintiffs had failed to * Six additional named plaintiffs were added five months later (144a). o state a Federal claim for relief (Examiners’ Memo, of Law, p. 35). The Board of Education joined in opposition to the preliminary injunction (95a) but left to the inde pendent Board of Examiners the defense of its examina tion procedures. The Examiners submitted evidence in dicating that the small numbers of licensed black and Puerto Rican supervisory personnel were due primarily to the small numbers who in the past had met the education and experience requirements established by the Board of Education necessary to enter the supervisory examinations (92a). The Examiners also furnished the court with a detailed description of its examination procedures and the independent opinions of four distinguished experts who had reviewed the Examiners’ procedures and sample exam inations and unanimously attested to the validity, reliability and objectivity of the examinations and examination pro cedures (55a, 67a, 71a, 75a, 83a, A. Ex. 1-9). Despite the tenuous nature of plaintiffs’ claim and sup porting proof, the court issued a temporary restraining order on November 4, 1970, pending determination of the preliminary injunction, which barred the Examiners from promulgating further eligible lists for supervisory posi tions but permitted the Examiners to continue administer ing examinations. On November 19, 1970, further oral argument was held at the request of the court. Although the court was extremely critical of the material submitted by the plaintiffs in support of their asserted claim of discrimination,* it chose not to deny the motion for a * The following remarks are illustrative of the court’s criticism o f plaintiffs’ p ro o f: “ When you come in and ask for preliminary injunctive relief in this court, you have to submit evidence, not speculation, not v^gue opinion, not suppositions, hypotheses” . * * * “ Frankly, in looking over this mass of data you have submit ted, which seems to have a complete disregard for the rules of evidence,-you seem to think that by putting speculation in, by having somebody say that, well, he was told by somebody that somebody else had a belief or opinion that some examination tended to discourage blacks from even applying to take the examination, that somehow or other that is proof” . (Tr., Nov. 19, 1970, pp. 3-4.) G preliminary injunction. Instead, it ordered sua sponte that the defendants develop a survey procedure to identify the race of thousands of past examinees and provide the court with pass-fail data for blacks and Puerto Ricans as compared with whites on the surveyed examinations. The court maintained the TRO for the expressed purpose of applying “ pressure” upon the defendants to come up with a survey procedure (Tr., Nov. 19, 1970, pp. 17-18), and subsequently continued the TRO to insure that the defend ants not delay in implementing that procedure (Tr., Dec. 18, 1971, p. 42). Implementation of the racial survey procedures took more than four more months as nearly 6,000 examinees were to be identified by race through individual affidavits and a mail and telephone survey. After the data were tabulated, the parties filed further papers and the court requested a hearing, held on May 21, 1971, at which two statisticians gave oral testimony. Again the Examiners and the Board of Education urgently requested the court to lift the TRO because of the acute need to fill vacant supervisory positions with regular appointments before the following school year (Tr., May 21, 1971, p. 113), but the court declined to do so and permitted the plaintiffs to file additional affidavit testimony to which the Examiners responded. On July 14, 1971 the court finally rendered its Opinion granting the motion for a preliminary injunction. An interim injunction (237a) was settled shortly there after to permit consultation on terms of a preliminary in junction. The preliminary injunction itself was entered on September 20, 1971. While the bulk of this Brief is necessarily devoted to the substantial errors committed by the lower court in dealing with the contrived constitutional theory advanced by the plaintiffs, we must emphasize at the outset that, without regard to the merits, the court below seriously abused its discretion in granting the unprecedented pre liminary injunction under the circumstances presented. As more fully developed in Point IV, infra, the court’s asser tion that this extraordinary remedy merely preserves the 7 status quo pendente lite is an absolute myth. The injunc tion did nothing less than abort the entire State statutory scheme for the qualification of school supervisory personnel on the basis of merit and fitness in the enormous New Yoi’k City school system. It did so on the basis of alleged irrep arable harm to the plaintiffs which turns out to be noth ing more than that which every plaintiff who walks through the courthouse door can claim—the harm which he suffers from having to wait for the defendant to receive due process of law. And it did so in the most sweeping terms possible on a record in which the good faith of the defenci- ants was not even in issue. Moreover, the preliminary injunction came on the eve of a major breakthrough in dissipating the present racial imbalance among licensed supervisory personnel being brought about through the joint efforts of the State legis lature, the Board of Education and Board of Examiners. The preliminary injunction constitutes a gross interference with State functions in a highly sensitive area which already has done irreparable harm and which will con tinue to do irreparable harm unless it is promptly vacated. A R G U M E N T P O I N T I The court below applied an erroneous constitutional standard to an invalid statistical analysis and, accord ingly, clearly erred in holding that the statistical data established a prima facie case of racial discrimination. The State and Federal governments classify their citi zens for a variety of purposes. From the classifications created, varying benefits or burdens may flow. Taxation, military conscription, civil service, public financial aid— indeed, virtually all legislative programs—require that such distinctions be drawn. The equal protection clause of the Fourteenth Amendment, of course, requires that these 8 necessary classifications be made within the bounds of reasonableness. bile no constitutional deprivation results from such a governmental classification if it is rationally related to a legitimate state objective, deliberate unequal treatment on racial grounds does constitute a denial of the equal protection of the laws which the Fourteenth Amend ment commands. The court below, however, proceeded on the basis of a novel and unwarranted interpretation of the equal protection clause—namely, that any governmental classification system which fails to yield a racial quota of those applying is presumptively unconstitutional. Since the decision turned on this extraordinary postulate, it is essential to point out the fundamental error in the legal premise before turning to the major deficiencies in the statistical analysis. Explicit racial classifications, embodied in statutes or regulations, have long been regarded as constitutionally “ suspect” . Such classifications are prima facie racially discriminatory and will be struck down unless the State can provide a compelling justification for differentiating among its citizens according to racial factors. S'ee, e.g., Brown v. Board of Education, 347 U.S. 483 (1954); Gagle v. Browder, 352 U.S. 903 (1956); Loving v. Virginia, 3S8 U.S. 1 (1967). Here, however, both the operative statutory provisions and the Examiners’ own rules and procedures are completely colorblind. Indeed, the underlying principle upon which the statutory scheme was founded is the elimination of such extraneous factors as race, religion and political patronage in the appointment and promotion of public employees. Of course, racially neutral laws and regulations have been misused, on occasion, by those called upon to ad minister a statutory program. The Supreme Court has held, however, that only a purposefully discriminatory administrative application of a racially neutral statute violates the equal protection clause. Sivain v. Alabama, 380 U.S. 202, 204-5 (1965); Oyler v. Boles, 368 U.S. 44S (1962). Cf. Poivell v. Power, 436 F.2d 84, 88 (2d Cir. 1970). And the burden is on the plaintiff to prove the existence of 9 such purposeful discrimination. Whitus v. Georgia, 385 U.S. 545, 550 (1967). Ordinarily, racial discrimination by public officials would be established through proof of their specific conduct, or through proof of the infection of the governmental activity with overt private racial discrimination. Cf. Nonvalk CORE v. Nonvalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). However, statistical evidence also may be used to show an intent to discriminate. An early classic example was the Supreme Court decision in Yick Wo v. Ilopldns, 118 U.S. 356 (1886). There, licenses for the operation of laundries had been denied to all 200 Chinese applicants and granted to all but one of 80 non-Chinese applicants. The court found the conclusion irresistible that hostility to race had produced this statistical anomaly. Statistical disparities have been used most widely as evidence of purposeful discrimination in the selection of juries. This area is particularly susceptible to statistical treatment because the jury selection process is expected to produce a random or “ truly representative” cross-section of the eligible populace. Carter v. Jury Commission of Greene County, 396 U.S. 320, 330 (1970). In a long line of decisions, the Supreme Court has overturned criminal con victions when it was found that members of the defendant’s race had been virtually excluded from service upon grand or petit juries in the jurisdiction in which the conviction was secured. See, e.g., Neal v. Delaware, 103 U.S. 370 (1880); Norris v. Alabama, 294 U.S. 587 (1935); Smith v. Texas, 311 U.S. 128 (1940). However, mere underrepresentation— as distinguished from effective exclusion—is not sufficient to make out a prima facie case of racial discrimination violative of the equal protection clause. See, e.g., Swain v. Alabama, 380 U.S. 202 (1965); Brown v. Allen, 344 U.S. 443 (1953); People v. Chestnut, 26 N.Y. 2d 481, 488, 311 N.Y.S. 2d 853, 858 (1970). Only when the statistical disparities are gross, and they are accompanied by additional elements probative of purposeful discrimination, is a prima facie case of racial 10 discrimination established. See, e.g., Whitus v. Georgia, supra; Turner v. Fouche, 396 U.S. 346 (1970). In the instant case, the lower court ignored the con trolling precedent and followed a racial quota approach to the equal protection clause. Although purposeful discrimi nation had been neither alleged nor shown, it scoured the data looking for differences in the pass rates. Based on such differences as it did find—and erroneously inferring that each difference was due to racial bias (196a)—the court held that all of the supervisory examinations had a substantial and significant discriminatory effect amounting to a prima facie case of racial discrimination violative of the equal protection clause. The Opinion of the court below is remarkable for its heavy reliance on statistical rather than legal analysis. Entering a field in which it lacked expertise, the lower court committed a number of conceptual and factual mis takes which led it to draw wholly untenable inferences from the statistical data. These shall be considered first before considering the data in the light of controlling legal precedent, A. The lower court erroneously compared pass rates for racial groupings of candidates which clearly were non comparable samples. 1. The data actually show that the examinations have no discriminatory effect. In evaluating the statistical data for the 50 prior 4 supervisory examinations surveyed, the court below focused exclusively on pass rate differences between the racial groupings of candidates without regard to other differences between those groupings. It relied primarily on a com parison of the average pass rates computed from the aggre gate data—i.e., the sum of the data for the 50 diverse examinations—and comparisons of the pass rates on the 2 largest examinations covered by the survey, a 1968 junior high school assistant principal examination and a 1965 elementary school assistant principal examination. The 11 aggregate grouping of black and Puerto Bican candidates passed at an average rate of 36.5% (257/704) as compared with 49.5% (2257/4562) for the aggregate white grouping.* On the 1968 examination, 61.8% (644/1042) of the white candidates passed while 35.4% (64/181) of the black and Puerto Bican candidates passed (A. Ex. 25, PF-43). And on the 1965 examination, 65.2% (718/1101) of the white candidates passed while 47.8% (129/270) of the black and Puerto Bican candidates passed (A. Ex. 25, PF-03). It is a truism of statistical inference that a comparison of pass rates for two different groupings can be indicative of bias only if it is also shown that the respective groupings are comparable samples from their respective populations. Although neither the statisticians nor the court below reached this issue in their analyses, the data demon strate that the respective racial groupings were not com parable samples. Since the black and Puerto Biean super visory candidate groupings were disproportionately large in relation to the eligible population, and therefore less select samples than the white candidate groupings to which they were compared, any racially unbiased examination * The court below quoted somewhat different percentage figures— 31.4% for the aggregate black and Puerto Rican grouping and 44.3% for the aggregate white grouping (190a). It used figures arrived at by dividing the number of passing candidates by the total number of original applicants which included those who applied but did not appear for examinations and those who commenced examinations but withdrew prior to completion. Yet the court had previously found that no significance could be attached to the data for those who did not appear or withdrew (231a, n. 15). Obviously, applicants who do not appear or withdraw do so for a variety of reasons. Accordingly, in figuring the pass rates, only pass and fail figures should have been included. « 'The failure to exclude those who did not appear or with drew distorted all o f the data, percentages and ratios cited in the Opinion. For example, the court asserted that the ratio between the aggregate pass rates was one and one-half to one (190a). When the-correct pass rate percentages are used, however, the ratio indicated is one and one-third to one (49 .5% /3 6 .5% ). Corrected figures are used throughout this Brief. 12 would be expected to pass a lower percentage of the can didates in the less select sample. This is precisely what occurred here. If one computes the percentage of blacks and Puerto Iiicans in the aggregate supervisory candidate population and their percentage in the aggregate passing population, one finds that blacks and Puerto Ricans made up 13.4% (704/5266) of the total candidate population and 10.2% (257/2514) of the total passing population (A. Ex. 25). Row compare these two percentages with the percentage of blacks and Puerto Ricans in the teacher population from which the supervisory candidates were almost exclusively drawn. Data introduced by the plaintiffs showed that blacks and Puerto Ricans made up 9.8% of the teacher population in New York City (PI. Memo, of Law, p. 4). The fact that 13.4% of the total supervisory candidate population was black and Puerto Rican as compared with 9.8% of the teacher population indicates that blacks and Puerto Ricans took these examinations in considerably greater numbers than would be expected from their pro portion of the teacher population. Leaving aside possible differences in education and experience, both the white teacher population and the black and Puerto Rican teacher population can be expected to have comparable distribu tions of competence. Since there is no reason to believe that black and Puerto Rican teachers are inherently more qualified than white teachers to serve as supervisors, the logical inference to be drawn from these percentages is that the disproportionately large minority candidate group ing was a less select sample of their teacher population than the white candidate grouping, because the dispropor tionately large grouping would include a greater proportion of persons from the lower end of the distribution of com petence. It is to be expected that a racially unbiased examination would therefore pass a lower percentage of the candidates comprising the less select minority sample. We know from the pass rates that this occurred. In fact, the resulting aggregate passing population was found to be 10.2% black 13 and Puerto Rican, which is very close to their 9.8% repre sentation in the teacher population. The proper conclusion to be drawn from the aggregate statistical data, then, is precisely the opposite of what the lower court found. The supervisory examinations are not racially biased against blacks and Puerto Ricans. Indeed, they yield racial pro portions of successful candidates remarkably close to those in the teacher population. The same conclusion is reached if one examines the teacher population versus candidate sample proportions for the two large examinations relied upon by the court below. On the 1968 examination, blacks and Puerto Ricans made up 14.8% (1S1/1223) of the candidate population and 9.0% (64/708) of the passing population. Comparison of these two percentages with the 9.8% representation of blacks and Puerto Ricans in the teacher population indi cates again that the disproportionately large minority can didate sample was less select than the white candidate sam ple, but that blacks and Puerto Ricans achieved relatively equal proportional representation in the passing popula tion. The figures on the 1965 elementary school assistant principal examination are even more compelling. Blacks and Puerto Ricans made up 19.7% (270/1371) of the candi date population and 15.2% (129/847) of the passing popu lation. Thus, blacks and Puerto Ricans achieved signifi cantly greater representation in the passing population on this examination than would be expected from their propor tion of the teacher population. Finally, it must be noted that in using as a reference figure the 9.8%. representation of blacks and Puerto Ricans in the teacher population, we are in fact considerably over estimating the percentage of blacks and Puerto Ricans in the eligible population, i.e., those eligible to enter the ex aminations. 9.8% was the black and Puerto Rican repre sentation in the teacher population shown by the 1969 Board of Education ethnic survey. Yet the examinations covered -by the survey were given from 1964 to 1969. The average percentage of black and Puerto Rican teachers during the period of these examinations was certainly be low 9.8%. Furthermore, the actual percentage of blacks 14 and Puerto Ricans in the eligible populations for these examinations would be even smaller than that in the teacher population, since blacks and Puerto Ricans, first entering the teaching ranks during this period would not have met the high education and experience requirements for super visory positions in effect at that time (92a). Accordingly, blacks and Puerto Ricans actually achieved a much greater representation in the supervisory candidate passing populations than one would anticipate from their representation in the population of those eligible to enter the examinations. In sharp contrast to the lower court’s conclusion, then, the logical inference to be drawn from the statistical data is that the examinations have no dis criminatory impact whatsoever upon blacks and Puerto Ricans. 2. Application of a test for determining whether there is a statistically significant difference between pass rates yields a meaningless result when the samples are not comparable. The court relied heavily on the results reached by two statisticians in applying certain tests of statistical signifi cance to the pass-fail data for the 50 examinations. The statistical analysis was limited to computing the answer to a single narrow question: was there a statistically signifi cant difference from perfect equality between the pass rates for a given white candidate grouping and a given black and Puerto Rican candidate grouping? Both experts raised a number of technical objections to the analysis employed by the other because of differing assumptions which each made.* Yet neither the court nor the experts focused on the fundamental question of whether the applica * Dr. Jaspen, the Examiners’ statistician, found a statistically significant difference between the pass rates on only 3 of the SO examinations, 2 in which the white grouping passed at a higher rate and 1 in which the minority grouping passed at a higher rate (A . Ex. 23, 24). By making certain arbitrary assumptions, Dr. Cohen, the plaintiffs’ statistician, excluded the 1 in favor of the minority grouping and found 3 additional examinations meeting the minimum accepted 5% level of significance in which the whites passed' at a higher rate. Dr. Cohen also found that the aggregate pass rates showed a statistically significant difference (A . Ex. 26). 15 tion of these tests of statistical significance to the respec tive racial candidate populations actually could yield any meaningful information in view of the evident noncom parability of the samples. The purpose of testing for a statistically significant difference between the data yielded by two samples is to determine whether the observed difference for the samples represents any true difference however small. Standard statistical procedures require that one use random samples drawn from the larger populations. The data analyzed in the present suit, however, came from self-selected sam ples—i.e., the candidate groupings were composed of per sons from the eligible population who chose to apply. All such self-selected samples are necessarily non-random, and therefore the data which they yield must be distorted. In the present suit, we need not speculate about the nature of the distortion. The data themselves dem onstrate that the black and Puerto Rican supervisory candi date groupings were disproportionately large, and there fore less select samples of the eligible populations. If we apply a test to determine whether the observed difference in pass rates for such samples is statistically significant, the test will always indicate a probability approaching certainty that there is a “ true” difference. Therefore, the probabilities on the order of one million to one calculated for the two large examinations (191a), which obviously impressed the court, only confirm the logical inference that the observed difference in pass rates between the candi date samples reflects an actual difference in the extent to which the samples represent their respective populations. These probabilities are absolutely meaningless insofar as the question of racial bias is concerned. B. Numerous other statistical and factual errors per meated the lower court’s evaluation of the data. 1. Testing for a statistically significant difference from perfect equality is inappropriate since perfect equality is attainable only through the use of an explicit quota system. A test of ‘ ‘ statistical significance ’ ’ is one which simply measures the extent to which a phenomenon occurs beyond 1C what would normally be expected to happen through pure chance. The term may be illustrated with reference to the tossing of coins. In 100 tosses of a completely unbiased coin, the expected frequencies are 50 heads and 50 tails. However, an actual 50-50 split will not invariably occur. Splits of 49-51, 51-49, 48-52, etc. will result by chance when the experiment is performed repeatedly. I f one obtains a split of 40 heads and 60 tails, statisticians will tell us that the difference is “ statistically significant” at the generally accepted 5% level—i.e., there is a 95% probability that this great a discrepancy would not occur simply by chance. As one increases the samplo size—by throwing the coin 500 times, 1000 times, etc.—any true difference from equal ity of heads and tails will be revealed as statistically sig nificant at a level of probability which increases to cer tainty. Of course, it is physically impossible to construct a coin and toss it in such a manner that repeated tosses will not eventually show a statistically significant difference favoring heads or tails. Since there will always be some true difference, it will be revealed by the statistical test if a sufficiently large sample is observed. Moreover, as one continues to increase the sample size, the probability of there being some difference indicated by the statistical test will approach certainty. It is because perfection is un attainable that all practical specifications are written on the basis of tolerable limits rather than on the basis of exact measurements. Similarly, no examination can be developed which will not have some bias favoring one race or another. Nor, for that matter is it possible to develop an examination which does not have some bias as between blue-eyed candidates and brown-eyed candidates, tall candidates and short candi dates, or any other categories which may be used to dichotomize the candidate population. If the sample is suf ficiently large, the test must show a statistically significant difference since there will always be some true difference however small. A test of statistical significance may be useful in analyz ing the extent of discriminatory impact only if tolerable 17 limits are provided by the law. Once those limits are fur nished, the application of statistical analysis (to compar able samples) then can tell us whether the observed differ ence exceeds those limits. The concept of perfect equality could be attained here only through the use of an explicit quota system—-i.e., by arbitrarily passing some precise per centage of blacks and Puerto Ricans who apply, without regard to competence. The Constitution does not command that perfect equality be achieved. In fact, only gross unexplainable statistical disparities have been regarded as probative of racial discrimination violative of the equal protection clause. 2. It is logically impermissible to conclude from aggregate data that any or all of the diverse and dis crete supervisory examinations have a discriminatory effect. The court below made a blanket finding of racial bias for all supervisory examinations based on aggregate data be cause it ruled in favor of the plaintiffs’ expert on the tech nical dispute between the statisticians over the matter of overlap (i.e., candidates taking more than one examination) (195a). It did so despite the fact that (a) on 7 examina tions the black and Puerto Rican grouping passed at a higher rate than whites; (b) on 21 examinations there was no difference in pass rates or no candidates in one racial grouping or the other; and (c) on the vast majority of the remaining 22 examinations on which the whites passed at a higher rate there was not even a statistically significant difference in the pass rates (193a).* Yet in focusing on a technical dispute, the court ignored the fundamental reason why analysis of aggregate data may not properly be used here in making findings of discriminatory impact. * The aggregate figures represent a summing up of fig ures on 50 diverse examinations (each administered only * Exclusion o f those candidates who did not appear or withdrew (see supra, p. 11) would eliminate 3 of the 25 examinations cited by the court (A . Ex. 25, PF-22, 45, 47). 18 once) for nearly 50 different supervisory positions rang ing from Chairman of Home Economics to Director of Art to Supervisor of Health Education to Administrator of the Bureau of Child Guidance. As detailed by the court below, the examinations themselves are discrete competi tions of widely varying scope and content depending upon the position involved, which are prepared by separate com mittees composed of experts and practitioners from the re spective fields and administered by separate teams of examination assistants (211a). Adding up the pass-fail data for these 50 discrete exam inations is like adding apples and oraiiges. The same is true for relying on any group of examinations or even one examination to attempt to prove racial bias in others. Re- turning to our coin tossing analogy, let us assume that 100 tosses of a penny minted in Philadelphia yielded 20 heads and 80 tails while a dime minted in Denver came up 48 heads and 52 tails. Surely it would be absurd to reject the dimes minted in Denver simply because the sum of the data for the two experiments was 68 heads and 132 tails. Similarly, in the present suit, the question of whether there was any racial bias in any one examination can be deter mined only by looking at that one examination. 3. The lower court fashioned a wholly invalid hypo thetical projection of supposed cumulative discrimina tory effect. While a comparison of pass rates on one examination should have no significance beyond that one examination, the court nevertheless proceeded to construct a hypothetical projection to predict a supposed cumulative effect of alleged discrimination. The court projected that an initial popu lation 9.1% (100/1100) black and Puerto Rican which was screened by successive examinations for assistant principal and principal would yield a passing population for the principal examination 2.5.% (6.25/250) black and Puerto Rican (192a). The projection was built on the erroneous premise that licensing as an assistant principal is a pre requisite to licensing as a principal (192a). In point of 19 fact, this is not so. The eligibility requirements for exami nation and licensing as an elementary school principal require only one year’s experience in any supervisory position (acting or regular) or a college-supervised in ternship (A. Ex. 3). Therefore, the supposed cumulative effect is entirely spurious. The court’s hypothetical projection was in fact com pletely disproved by the actual pass-fail data on the 1970 elementary school principal examination which was ad ministered and completed during the pendency of the pre liminary injunction motion (249a) *: 1970 E lementary School Principal E xamination A l l C an didates A ll C an did ates Id en tified C an did ates Id en tified a s B la c k e r P u e r to R ic a n C an did ates Id en tified as White Pass 1,584 1,094 224 870 Fail 519 170 55 115 Total Passing 2,103 1,264 279 985 Percentage 75.3 86.5 80.3 88.3 These figures dramatically demonstrate the fallacy of the court’s hypothetical projection, and explode the thesis that a difference in pass rates on one examination may be used to justify an injunction directed at another exami nation. The data on this examination are most significant because of the exceedingly high proportion of blacks and Puerto Ricans—20.5% (224/1094)—in the identified pass ing population. Thus, their representation among those who would be listed is more than double their representa tion in the teacher population. The proportion of blacks and Puerto Ricans in the actual identified passing popula tion was 8 times that predicted by the lower court! * A complete racial survey of the candidates on this examina tion had not been made since the examination was still in progress at the time-the original survey was ordered by the court. Neverthe less, pass-fail data were tabulated after the examination was com pleted for those candidates who could be identified from the court- ordered survey covering prior examinations. 20 4. Since the data show that the small percentages of black ayid Puerto llican principals and assistant principals in New York were caused by factors other than the supervisory examinations, the comparison to the percentages in other cities is of no probative value. While the court below relied principally upon differ ences in pass rates for its ultimate finding of de facto discrimination, it also gave weight to a comparison of the percentages of black and Puerto Rican principals and assistant principals in the five largest city school systems in the country—Los Angeles, New York, Chicago, Detroit and Philadelphia—which showed New York with the lowest percentages (198a). Such a statistical comparison clearly has no probative value as to the alleged discriminatory impact of the Examiners’ supervisory examinations. In deed, reliance on this comparison is inconsistent with the court’s own rejection of a similarly unpersuasive com parison of the percentage of licensed principals and as sistant principals to the percentage of black and Puerto Rican students currently in the school system (199a). Here, of course, the data demonstrate that the exam inations were not the cause of the smaller percentages in New York. For example, on the last elementary school principal examination, administered in 1964, there were no Peurto Rican candidates, and only 8 black candidates, 6 of whom passed (A. Ex. 25, PF-01). Even if every black and Puerto Rican candidate on all prior examinations for principal passed, the percentage in New York would not approach that for any of the other cities. The reason for the small number of licensed black and Puerto Rican prin cipals in New York was the small number of black and Puerto Rican educators who met the education and experi ence requirements established by the Board of Education. In point of fact, until 1969 education and experience eligibility requirements for principals and other super visory positions were significantly higher in the New York 21 City school system than in many other cities (92a). Consistent with the entire decentralization scheme, the education and experience requirements were substantially lowered by the Board of Education in 1969, in part, to accelerate the movement of minority groups into the super visory staff (243a). Similarly, the Board of Examiners has now revised its standards to provide larger pools of licensed personnel from which the community school boards can choose supervisors meeting their local needs (244a). The dramatic impact of this combined effort by the legislature, the Board of Education and the Board of Examiners is revealed by the statistical data tor the 19*0 elementary school principal examination—the first large examination to be completed following the changes brought about by decentralization—which shows that a minimum of 224 blacks and Puerto Ricans would be licensed immediately were it not for the preliminary injunction (supra, p. 19). This represents a larger number of blacks and Puerto Ricans who would be eligible for appointment as elementary school principals in the New York City school system than the combined total of black and Puerto Rican principals in Detroit, Philadelphia, Los Angeles and Chicago (198a)! C. The equal protection clause does not demand that all governmental classifications yield racial quotas of the ap plicant population; to establish a prima facie case of racial discrimination there must be gross unexplainable statistical disparities combined with additional evidence probative of purposeful discrimination. In seeking to develop its elaborate statistical analysis, the court below evidently fell victim to that analysis for it never reached the basic legal issues posed. While we have clearly demonstrated that the court committed a number of conceptual and factual errors which vitiate the entire statistical analysis, the court erred even more funda mentally in misapplying the controlling constitutional prin ciples to its own statistical findings. As Justice Frank- furter-once noted: “ The Civil War Amendments did n ot. . . turn matters that are inherently incommensurable into 22 mere matters of arithmetic.” Cassell v. Texas, 339 U.S. 2S2, 291 (1950) (concurring opinion). First, finding statistically significant differences be tween a few pass rates simply is not determinative of the ultimate finding which the court entered that there was sub stantial and significant de facto discrimination. A statisti- callij significant difference between pass rates is not a legally significant difference, and it is certainly not a sub stantial difference. What is “ substantial and significant” can be determined only by evaluating the data in the light of legal precedent. Even accepting the lower court’s plainly er roneous statistical findings, it is clear from the statistical differences in other pertinent decisions that the putative differences here are in no event sufficient to meet the legal test of substantiality. Nor, in turn, would such an ultimate finding alone make out a prima facie case of racial discrim ination. As noted earlier, even where a substantial unex plained statistical disparity is shown, there must be some additional evidence probative of purposeful discrimination to establish a denial of equal protection. The court’s gross error in finding a violation of the Fourteenth Amendment based on a mere departure from precise equality is clear from the controlling authorities. Consider first the Supreme Court decision in Swain v. Alabama, 3S0 U.S. 202 (1965). There, 26% of those eli gible for selection to grand and petit juries in the county were black while only an average 10% to 15% of the jury panels were black during the prior decade. Yet there was “ no evidence that the commissioners applied different standards” to blacks than they did to whites, and no showing that the same proportion of blacks “ qualified under the standards being administered by the commis sioners.” With the representation of blacks on the jury rolls averaging less than half that in the eligible popula tion, but with no additional evidence of purposeful discrim ination, the court held that a prima facie case had not been shown. The statistical proof also has been found wanting in several Circuit Court decisions. See, e.g., Simmons v. 23 United States, 406 F.2d 456 (5th Cir. 1969), cert, denied, 395 U.S. 982 (1969) (20.48% of population was black while 15.77% of jury wheel was black); Wiggins v. Haynes, 439 F.2d 848 (5tli Cir. 1971) (37% of voter list was black while 26% of traverse jury list and 24% of grand jury list was black). Contrast these decisions with those in which the equal protection claim has been sustained. For example, in Turner v. Fouche, 396 U.S. 346 (1970), the district court had found that prior to the suit blacks had been “ sys tem atically excluded from the grand juries through token inclusion,” but had concluded that a grund jury list drawn during the pendency of tlie uction was not unconstitutional. 396 U.S. at 352. Although the population of the county was 60% black, this newly constituted jury list was only 37% black. The Supreme Court reversed, relying upon the fact that in preparing this jury list, 17S citizens had been disqualified for lack of “ intelligence” or “ uprightness” on the basis of the subjective judgment of the jury commis sioners, and 171 of these 178 disqualified citizens were black. Similarly, in Whitus v. Georgia,.385 U.S. 545 (1967), it had been shown that 45% of the county’s population and 27.1% of the taxpayers were black; but that only 3 of the 33 prospective and 1 of the 19 actual grand jurors and 7 of the 90 prospective and none of the actual petit jurors were black. Since these gross disparities were supple mented by proof that prospective jurors were selected from a tax digest maintained on a racially segregated basis, the court found a “ prima facie case of purposeful dis crimination.” 385 U.S. at 551. See, also, Jones v. Georgia, 389 U.S. 24 (1967) (19.7% of. taxpayers were black but only 5% of jury list); Sims v. Georgia, 389 U.S. 404 (1967) (24.4% of taxpayers were black but only 4.7% of grand jurors and 9.8% of petit jurors). While no mathematical standards have evolved from the controlling authorities, it seems clear that the kind of statistical differences relied upon by the court below fall well below the level of substantiality required by these 24 decisions. Certainly, more than a statistically significant difference from equality is required to support a prima facie case. And if this is true for jury selection cases where a strong public policy demands that those selected should be a random selection of the eligible population, a fortiori it is true where the controlling policy is not random selection but selection of the “ best qualified super visors” (201a). Thus, even before discounting the difference in pass rates here because of the statistically demonstrable differ ence in the character of the respective candidate groupings (supra, pp. 11-14), it is clear that the figures reflect “ no studied attempt to include or exclude” blacks or Puerto Ricans. Swain v. Alabama, 380 U.S. at 209. Moreover, the present record is completely devoid of any additional evi dence probative of purposeful discrimination, nor do plain tiffs allege any such purposeful conduct. In fact, the Examiners’ procedures have been expressly designed to minimize the possible intrustion of any personal bias (infra, pp. 34-35). Both gross statistical disparities and additional evi dence of purposeful discrimination also were present in the several recent district court decisions granting perma nent relief upon claims of racial discrimination in employ ment testing by public employers. For example, in Armstead v. Starkville Municipal Separate School District, 325 F. Supp. 560 (N.D. Miss. 1971), the school board first instituted an examination requirement for teachers in 1970 following entry of a Federal court order to desegregate its dual school system. Analysis of examination results for students at Mississippi colleges and universities revealed that 77% of the whites exceeded the cutoff score of 750 established by the school board as compared with only 17% of the blacks. The same essential facts were present in Baker v. Columbus Municipal Separate School District, 329 F. Supp. 706 (N.D. Miss. 1971), where examination results revealed that about 90% of the college students at predominantly white institutions achieved the cutoff score of 1000 adopted 25 by the school board for the standardized examination employed as compared with only 11% of the students at tending predominantly black institutions. And in Carter v. Gallagher, 3 FEP Cases 692 (D. Minn. 1971), aff’d in part, 3 FEP Cases 900 (8th Cir: 1971), as part of an affirma tive action decree to correct a 25 year pattern of pur poseful discrimination in recruiting and employment by the all-white Minneapolis fire department, the district court directed that there be a review of the civil service fire fighter examination, in part, because results over a 20 year period had shown that 54% of 2,404 total examinees had passed as compared with only 27% of the 22 identifiable minority examinees. See also Arrington v. Mass. Bay Transp. Co., 306 F. Supp. 1355 (D. Mass. 1969) (75% of whites ranked in top 1,000 on examination for bus driver and fare collector posi tions as compared with 20% of blacks); Western Addition Community Organization v. Alioto, 330 F. Supp. 536 (N.D. Cal. 1971) (35% of applicants passed written test for fireman position as compared with 12% of blacks). Cf. Griggs v. Duke Bower Co., 401 U.S. 424, 430 n. 6 (1971) (58% of whites passed battery of standardized aptitude tests as compared with 6% of blacks). In sum, the lower court applied a patently erroneous constitutional standard in ruling that a prima facie case of racial discrimination is established when a governmental classification process fails to achieve a racial quota of the applicant population. The equal protection clause requires racial neutrality, not precise racial equality which can be attained only through the use of explicit racial quotas. The record here indicates that the Examiners’ procedures are designed to minimize any possible influence of personal bias and, in fact, purposeful discrimination was neither filleged nor shown. The differences in some pass rates for racial candidate groupings upon which the court below based its conclusion are not the kind of gross unexplained disparities which have been regarded in other circumstances as indicative of purposeful discrimination and do not support the court’s blanket finding of substantial discriminatory effect. More 26 over, the fact that blacks and Puerto Ricans have achieved equal or greater representation in the passing populations on the supervisory examinations as compared with their representation in the teacher population indicates that the examinations have no discriminatory effect whatsoever upon these minority groups. Thus, at the moment when a primary aim of decentralization to accelerate the move ment of blacks and Puerto Ricans into the ranks of school administrators was about to be fulfilled within the context of a merit system, the lower court has aborted the statutory plan by interdicting the supervisory examinations—which the data show have not been the cause of the present racial imbalance. P O I N T II The court below clearly erred in holding that none of the supervisory examinations is job-related. While the District Court erroneously found that a denial of equal protection had been established from the statistical data, it also ruled that the prima facie case would be over come if the Board of Examiners made a “ strong showing” that the examinations are “ required to measure abilities essential to performance” of the respective supervisory positions (204a)—a standard which it derived from the “ compelling necessity” test applied in a strictly limited class of equal protection cases. We submit in Point III, infra, that the low'er court applied an erroneous constitu tional standard in reviewing the examination procedures. Nevertheless, even based on the standard which the lower court purported to apply, its findings were clearly errone ous on the evidence presented. As explained in the Opinion below, the Board of Exam iners applies content validation methodology in the devel opment of its supervisory examinations—a generally accepted technique for insuring the job-relatedness of pro ficiency examinations such as those administered by the Examiners (as distinguished from general aptitude tests). The method involves: first, making an analysis of the 27 particular position to determine the duties to be per formed; second, formulating test questions to examine the knowledges and skills necessary to perform an appropriate sample of the more significant duties of the position; and, finally, preparing detailed criteria for use by examiners to enable them to make reliable measurements of test per formance (206a, 211a). In reaching the conclusion that the examination pro cedures used by the Examiners were sound, at least in theory, the court purported to credit the affidavit testi mony of four respected experts in the field of educational testing whose iiidepondoiit opinions wore .solicited by the Examiners in opposing the prdlitnifrflfy injunction motion (212a). Faced with this substantial body of independent professional opinion buttressing the Examiners’ procedures —and obliged to confess its own inexpertise—the court below paused only briefly to pay lip service to the proposi tion that it should defer to the expertise of the govern mental agency involved (213a). Thereupon, it immediately embarked upon a layman’s analysis leading to its ultimate finding that “ the Board [of Examiners] has not in practice achieved the goals of constructing examination procedures that are truly job-related” (223a). To reach this conclusion, the court first had to dispose of the independent opinions presented by the Board of Examiners in support of its examinations and procedures. This hurdle was overcome simply by ignoring cheir plain import. The court credited the testimony only as it bore on the theory of the Examiners’ procedures (213a), when, in fact, the experts had reviewed the Examiners’ pro cedures in 'practice (212a). As part of their review, the experts had evaluated the procedures actually em ployed, reviewing sample statements of the “ duties of .positions” , sample examinations, sample rating guidelines, directions to examination assistants, etc. (e . g A. Ex. 4, 5, 6), and they also obtained further details verbally. This evaluation was reflected in their testimony. Consider, for example, the testimony of Dr. Robert L. Thorndike (a noted expert in the field of educational testing whose professional 2S writings were cited both by the plaintiffs and by the court below in its Opinion): “ The closeness of match between the tasks as set forth in the examination and the duties of the job as set forth by the supervisory personnel in the city system can be evaluated only by informed judgment, not by statistics or manipulation of numbers. It is a judgment arrived at by examining the statement of requirements and by looking carefully at the questions together with the procedures set up for evaluating answers to those questions. In general, the Board of Examiners appears to have made a conscientious and informed attempt to develop test tasks that do correspond to selected ones of the specifications set forth by the supervisory persons who set out the requirements for the job. Obviously, it is possible in any limited period of time to test only some of the requirements even if all of them could be reduced to a paper-and-pencil test or to an interview situation. Necessarily, any test represents a sampling of job duties and rep"- resents a sampling from among those that can be reduced to a paper-and-pencil or interview testing situation. Within these limits, the tasks that are represented in the test items appear to me to be reasonable tasks as representing selected ones of the job requirements.” (68a). (Emphasis added.) Thus, the court below committed plain error in silently rejecting this “ informed judgment” in favor of its own in expert views. Instead of deferring to the Board of Exami ners’ own expertise or, at least, properly crediting the testi mony of the distinguished professionals who approved the Examiners’ procedures both in theory and practice, the court substituted its own viewpoint based not on hard facts or expert opinion but on patently irrelevant evidence. Con sider the insubstantial elements upon which the lower court relied: The Strauss affidavit. The court first cites as proof of the Examiners’ failure to achieve content validity the affidavit testimony of Peter 29 J. Strauss, a lay member of a community school board who attended a single consultation meeting with the Exam iners’ staff (214a). Mr. Strauss offered the opinion in his affidavit that this meeting proved fruitless (105a). The meeting had been mentioned in an earlier affidavit of Dr. Murray Rockowitz, a member of the Board of Examiners, as an example of the kind of broad input which the Exam iners attempt to utilize in developing examinations and examination procedures (61a). Even if it were true that the meeting in question was fruitless, this would hardly raise an inference that one or iillOlliat' of the supervisory examinations was not valid. Since each examination is prepared by a panel of experts and practitioners in the particular field (211a), such additional consultation meetings—while hopefully useful— are by no means a requisite part of the test construction process. Indeed, it would be quite surprising if every such meeting yielded a specific tangible result. Moreover, Mr. Strauss’ claim that this meeting was fruitless happens to be false. In fact, it contributed to a specific, identifiable change in the elementary school prin cipal examination. In the 1964 elementary school principal examination (the last such examination prior to 1970), the written test was given twice the weight of the oral interview test. In the 1970 examination, the written test and oral interview test were weighted equally. This change was made partly in response to the contention, expressed by some of those who attended the meeting in question, that minority groups do less well on written examinations than on oral presentation (244a, 247a). Chancellor Scribner’s position paper. The second element relied upon by the court below was an unsworn, out-of-court “ position paper” of the present Chancellor dated October 13, 1970 (215a, A. Ex. 18). We shall leave aside the question of the admissibility in evi dence of this document, noting only that an opportunity to cross-examine Dr. Scribner, who had arrived in New 30 York to assume the position of Chancellor only a few weeks earlier, would have doubtless revealed that he had little or no personal knowledge of the examination pro cedures employed by the Examiners. More significantly, Dr. Scribner’s statement does not actually bear at all on the validity or job-relatednes of the supervisory examinations. Dr. Scribner’s opinion was that the statutorily mandated system of personnel selection and promotion was not “ workable” . It was his view, at least as expressed in this paper, that there should be no inde pendent body to establish minimum qualifications of merit and fitness, but that local community school boards should be essentially unrestricted in selecting supervisory per-' sonnel for their schools (A. Ex. 18). Whatever merit this view may have, it obviously has no bearing on the validity of the actual examinations ad ministered by the Examiners pursuant to State law. The court’s reliance on Dr. Scribner’s statement makes it clear that what is involved in this lawsuit is not a question of constitutional rights but of State education policy. “ Sitting as a federal court reviewing a state system,” however, the district court is “ not at liberty to impose upon the State of New York [its] own views on which method [it] believe[s] to be the ideal. . . . ” United States v. Criminal Court of the City of New York, 442 F.2d 611, 615 (2d Cir. 1971). Con stitutional adjudications must be based on hard evidence, not political rhetoric. The Examiners’ internal research studies. The third point made by the court below in support of its ultimate conclusion was that the Examiners’ position “ does not appear to be supported by most of the research reports submitted by it as demonstrating the content validity of its supervisory examinations” (215a). There followed in the court’s Opinion a superficial critique of several research reports prepared by members of the Ex aminers’ professional staff. Since content validity is not achieved by doing research but by using proper test construction techniques (as the 31 court itself had previously explained), the entire question of the efficacy of the research performed under the Exam iners’ auspices is a red herring. The research reports can neither prove nor disprove whether the supervisory examinations possess content validity. In fact, no one claimed that they are comprehensive validity studies, al though it was pointed out that all such research contributes to the validity of the examinations. The Board of Exam iners could conduct absolutely no research of its own and still achieve content validity and thorough job-relatedness for its examinations. By simply following current test development and administration preeeduras=^as tbo four independent experts found to be the case—the Examiners achieve validity in the accepted sense of the term. Since the superficial criticism leveled at the research is plainly irrelevant, it is unnecessary to burden this Court with a detailed rebuttal of the court’s comments concerning the reports. It is sufficient to point out that the research performed by the Examiners’ professional staff is not done to prove validity in a court of law, but to “ make practical recommendations on ways to improve testing techniques” (168a). It is part of an ongoing effort to improve the objectivity, reliability and validity of the examinations. The examinations themselves. On the basis of the foregoing three elements—each exceedingly tangential and disputed on a paper record— and with a further acknowledgment of its own inexpertise —the court below concluded that “ while the Board [of Examiners] has adopted procedures designed for content validity, it does not appear in practice to have achieved this goal” (217a). Apparently unsatisfied with the plainly insubstantial evidence cited to support this sweep ing finding, the court proceeded to seek and find “ con firmation” in its own review of some written test questions and in advice to test takers dug out of a 1966 commercial review book. The court’s review of the written tests was reflected in the Opinion by quotation of a handful of general back ground short answer questions (232a)—a most atypical form of question found on only a handful of examinations for supervisory positions which require classroom obser vation of teaching in a broad range of subject matter. The court further asserted that the essay questions “ appear to be aimed at testing the candidate’s ability to memorize rather than the qualities normally associated with a school administrator” (217a). The court did not substantiate this assertion with even a single illustration, but only cited the fact that a 1966 commercial review book for principal and assistant principal examinations advocated the memo rization of mnemonic devices (217a, A. Ex. 21). Of course, the mere fact that the author of a commercial review book advocates the use of mnemonic devices hardly constitutes evidence that the examinations are not valid or job-related. First, such hearsay advice certainly is not admissible as evidence in a court of law. Second, for virtually every educational or licensing examination ever administered, one can find commercial review books ad vocating the use of mnemonic devices. In truth, it is hardly possible to construct any such examination wherein none of the questions lends itself to analysis through the use of mnemonic devices. But the mere contention that such devices may be useful in answering some questions on an examination does not bear at all on the issue of the examination’s validity. The lower court was unable to cite a single examination —or even a single essay question—to support its charge that the questions are aimed solely at the ability to memo rize duties. It plainly ignored question by question break downs of two sample examinations—the 1968 high school principal examination and the 1964 elementary school prin cipal examination—furnished by the Examiners to illus trate their thorough job-relatcdness by relating each ques tion to the duties involved (A. Ex. 8, 9). It could be seen from these analyses that each examination served to measure knowledges and skills related to the performance of an appropriate sample of significant duties of the re spective positions. 33 And had the court considered specifically the 1970 ele mentary school principal examination—the primary focus of the plaintiffs’ lawsuit—it would have been hard pressed to justify its wholesale finding and sweeping injunction. A brief review of the contents of that examination is sug gestive of its thorough job-relatedness and currency" (A. Ex. 16): The first question on the written test places the exam inee in the position of a newly appointed principal and asks him to deal in an essay with such problems as (1) use of an overcrowded school facility and portable units; (2) assignment of an inexperienced staff; (3) community antagonism with racial overtones due to low achievement in reading and mathematics and numerous pupil suspen sions for disruptive behavior; (4) divisiveness among teachers and high turnover; and (5) strife within the Parents Association. The second question consists of one hundred short an swer questions all of which deal with such areas as ad ministration of the instructional program, community rela tions, staff supervision and similar matters. The third question asks the examinee to analyze in essay form a series of ten typical day-to-day problems faced by an elementary school principal including (1) an incident of vandalism; (2) a conference with the parent of a failing student; (3) an insubordinate teacher; (4) racial imbalance in special reading classes; (5) a disciplinary situation involving an educational assistant; (6) narcotics traffic in the vicinity of the school; (7) supervision of teacher train ing; (8) a teacher unpopular with her students; (9) a grievance meeting with the teachers’ union committee concerning student discipline; and (10) administration of the school bus program. i ■ Similarly, the structured oral interview test selections for this examination are extraordinarily job-related (A. Ex. 17). They deal with such problems as (1) assignment and supervision of paraprofessionals; (2) supervisory observa tion reporting procedures; (3) reacting to and implement ing suggestions made by parents relating to the instruc 34 tional program; (4) administering a program for children with retarded mental development; and (5) teacher train ing. Thus, the court made an unsupported sweeping indict ment of the job-relatedness of all the supervisory examina tions administered in the past, in the present and those to he given in the future on the basis of a record which could only support a contrary conclusion. Indeed, the statistical survey actually covered 50 supervisory examinations for nearly 50 different supervisory positions. 15 of the 50 ex aminations were for the position of department chairman in a particular subject area and 26 more were for supervisor, assistant director or director in a particular subject area (A. Ex. 24). The scope and content of the examinations vary widely in accordance with widely varying knowledges and skills necessary to the performance of the duties of each position, and each examination is jmepared by a dif ferent panel of experts and practitioners in the field. To make a wholesale finding applicable to all without any sup port in the record constitutes clear error. Turning from the matter of the “ validity” of the Ex aminers’ supervisory examinations to the matter of their “ objectivity” —i.e., the extent to which the influence of an individual examiner’s bias or opinion is eliminated—-the court observed that “ adequate precautions appear to have been taken by the Board [of Examiners] to assure objectiv ity in the conduct of the written examination” (220a). That much had been conceded by the plaintiffs in the court below. In fact, the Board of Examiners scrupulously ob serve accepted procedures for minimizing the influence of individual bias on the written tests: (1) test questions for each examination are submitted by a number of experts on a number of topics; (2) test papers are coded so that the examinee’s name is not known to the test scorer; (3) short answer questions are machine scored; (4) extremely de tailed, objective rating guidelines are prepared and used in the rating of essay questions; (5) essay questions are rated by different committees so that no one individual is respons ible for the rating of an examinee’s entire test paper; (6) rating guidelines are made available for use on appeal by unsuccessful candidates; etc. (57a, A. Ex. 4, 5). As for the objectivity of the oral interview tests, the court only observed that all of the members of the Board of Examiners are white * and the examination assistants are predominantly white. It also noted again that the over all examination results showed whites passing at a higher rate than blacks and Puerto Bicans. In the court’s view, this raised a “ ‘ serious and substantial question’ as to whether discrimination against blacks and Puerto Ricans is not being unconsciously practiced by white interview ex aminers” (221a). Such bootstrap analysis built on pure speculation cannot raise a “ serious and substantial question” justifying inter vention with the operation of a governmental agency. This Court only recently reaffirmed that Federal judicial inter ference with a state system may not be based on “ mere speculation and hypothesis.” To overthrow a state statu tory scheme there must be “ objective and reliable proof of partiality” . United States v. Criminal Court of the City of New York, 442 F.2d 611, 616 (2d Cir. 1971). Unless the Constitution commands that candidates be examined exclu sively by members of their own race, this is surely not a basis for challenging the Examiners’ procedures. Again, the only hard evidence in the record as to the objectivity of the oral interview tests indicates that the Examiners carefully observe recognized procedures to in sure objectivity: (1) interview examiners use an objective rating scale; (2) they do not interview persons known to them; (3) panels of three experts are generally used to pro vide for a pooling of judgment; (4) the interviews are electronically recorded to provide a record for possible ap peal; etc. (58a, A.Ex. 6). Thus, for the court below to con clude that a substantial question has been raised as to the objectivity of the interview tests in the face of uncontro verted evidence to the contrary is to manufacture a con stitutional claim out of thin air. * Not even this statement is accurate. The Chancellor’s designee on the Board of Examiners is black. 36 In sum, the court below committed plain error in making a wholesale finding that none of the supervisory examina tions are job-related. No evidence was presented which would cast doubt on the job-relatedness of even a single examination. The independent experts in the field of edu cational testing who reviewed the examination procedures in theory and practice for the purposes of this motion con cluded that proper content validation methodology was be ing employed. The court ignored these opinions, and based its finding upon a few exceedingly tangential and disputed elements having no actual bearing on the validity of the examinations. It relied further upon some advice in a com mercial review book and its own unsubstantiated impres sion of the examinations, an impression plainly contra dicted by the samples before the court. Finally, the court spun out a simplistic hypothesis that examination assistants of one race may not be able to conduct fair oral interview tests for examinees of another race, a claim not even raised by the plaintiffs. The court’s ultimate conclusion that the examinations are not job-related lacks any support in the record and is clearly erroneous. P O I N T I I I The court below applied an erroneous constitu tional standard in reviewing the examination pro cedures. As previously noted, the court below ruled that there could be no violation of the equal protection clause if a “ strong showing” was made that the examinations were “ required to measure abilities essential to performance” of the respective supervisory positions (204a). In essence, the court contended that its statistical findings rendered the examinations “ constitutionally suspect” and shifted the burden to defendants to provide a compelling necessity for the examinations—a higher standard of review than that customarily applied in equal protection cases (203a). An 37 alysis of controlling authorities in this Court and the Supreme Court indicates that the lower court clearly erred in not applying the conventional “ rational relationship” test. Moreover, it is equally clear from these decisions that the evidence presented (as discussed in Point II, supra) was more than sufficient to satisfy even the higher standard. Quite recently, this Court had occasion to consider the standards governing review of state imposed classifications challenged under the equal protection clause. Johnson v. New Yorli State Education Department, Dkt. No. 71-1006, slip p. 4643 (2d Cir. Aug. 13,1971) involved an attack upon statutory provisions which authorize State financial assist ance for the purchase of textbooks for grades 7 through 12 only. The plaintiffs charged that the statute invidiously discriminated against indigent children in lower grades. In delineating the applicable standard of review, the court observed that: “ Any state-created classification which is at tacked as a denial of equal protection must be exam ined against either of two constitutional standards: (A) that the classification is rationally related to a legitimate state end [citing cases] ; or (B) that the classification is justified by a compelling state in terest.” Id. at 4653. Decisions which apply the more stringent compelling in terest test were found to be “ strictly limited in their scope” , all dealing with a state-created impediment to the exercise of some “ fundamental right” . Id. at 4661. “ Al though education is no doubt an area of fundamental importance” , the Court concluded, “ the Supreme Court has made clear its view that in the area of social welfare, the ‘ compelling state interest’ theory does not apply even though basic needs may bo involved.” Id. at 4661-62. Indeed, the Supreme Court had reaffirmed this point only recently. In Dandridge v. Williams, 397 U.S. 471 (1970), Maryland’s maximum grant regulation limiting public welfare aid to large families was challenged under the equal protection clause. While recognizing the 3S “ dramatically real factual difference” between the busi ness regulation cases enunciating the traditional “ rational relationship” test and the case at bar—which involved “ the most basic economic needs of impoverished human beings” —the court held that there nevertheless Avas “ no basis for applying a different constitutional standard.” 397 TT.S. at 485. Pertinent to the present suit is the Supreme Court’s further comment that the conventional standard “ has consistently been applied to state legislation restricting the availability of employment oppor tunities. [citing cases.] And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no poAver to impose upon the States their views of what constitutes wise economic or social policy” . 397 U.S. at .485-S6. In the instant case, the court beloAv escheAved the “ ra tional relationship” test on the ground that it had been applied in cases involving only “ commercial or economic harm,” a putative distinguishing factor rejected by this Court in Johnson and by the Supreme Court in Dandridge. Cf. Reed v. Reed, — U.S. —, 40 U.S. LaAv Week 4013 (Noâ . 22, 1971). Nevertheless, the district court claimed support for its application of the more stringent standard in tAvo lines of authority: one in Avhich the exercise of fundamental rights had been impaired by state statute— e.g., Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), and Shapiro v. Thompson, 394 U.S. 618 (1969)—and the other involving explicit statutory racial classifications—e.g., Bolling v. Sharpe, 347 U.S. 497 (1954); Korematsu v. United States, 323 U.S. 214 (1944); and Loving v. Virginia, 388 U.S. 1 (1967). The so-called “ fundamental right” eases, recently dis tinguished by this Court in Johnson, supra, at 4661-62, offer no support to the plaintiffs here. In Harper, the funda mental right to vote Avas found to be unconstitutionally impeded by the State’s imposition of a poll tax. And in Shapiro, it Avas held that a one year residency requirement 39 for public Avelfare assistance unconstitutionally impaired the citizen’s right to travel from state to state. AVhile constitutional laAV has passed beyond Justice Holmes’ epi gram that no one has a “ constitutional right to be a police man” (McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892)), it has not moved so far as to make qualification for promotion a “ fundamental right.” Cf. Chaney v. State Bar of California, 386 F.2d 962, 964 (9th Cir. 1967), cert, denied, 390 U.S. 1011 (1968). Nor does the second line of cases involving explicit statutory racial classifications—historically deemed con stitutionally “ suspect” —furnish authority for applying the more stringent standard to a case involving alleged nonpurposeful discriminatory effect. When a state de liberately classifies its citizens according to race, a com pelling justification must be shoAvn because the racial classification is regarded as a “ brand” upon the minority group, “ an assertion of their inferiority.” Strauder v. West V irginia, 100 U.S. 303, 30S (1S79); Brown v. Board of Education, 347 L.S. 483, 494 (1954). HoAvever, it is only state statutes “ draAvn according to race” Avhich are re quired to bear this “ very heavy burden of justification” . Loving v. Virginia, 3SS U.S. at 9. The supervisory examinations are no more constitu tionally suspect than the maximum public Avelfare grant regulation challenged in Dandridge v. Williams, supra, or the school book financing system attacked in Johnson v. New York State Education Department, supra. Though both statutory schemes undoubtedly had a greater adverse impact on some racial groups than others, the customary rational relationship test Avas applied in each case. Indeed, it is inevitable that various state imposed classifications aviII have a varying impact on different racial groups. The effect of the lower court’s ruling here—in subjecting the supervisory examinations to an inordinately high standard of review—-is to render presumptively unconstitutional any state classification Avhich does not have a precisely propor tioned impact on all racial groups. Virtually every form of 40 classification—not just all licensing examinations, but draft laws, scholarship aid, welfare aid, etc.—doubtless would be deemed constitutionally suspect under such an unwarranted approach. The equal protection clause, however, does not mandate a racial quota system for all state created classifi cations. Unless the state draws distinctions on the basis of race, the Federal court’s role is restricted to “ declaring whether there is a reasonable basis for [the] classifica tion” . Johnson v. New York State Education Department, supra, at 4655. The few lower court decisions which have dealt with employment testing by public employers do not support tho application of an extraordinary standard of review. In Armstead v. Starkville School District, supra, and Baker v. Columbus School District, supra, it was conceded that the examinations which were first adopted following desegrega tion orders were neither designed nor intended for teacher selection. In Carter v. Gallagher, supra, the district court had found that the “ general achievement” examination utilized for the position of fire fighter was “ culturally biased” because it used a “ formal English vocabulary,” irrelevant for a fireman. 3 FEP Cases at 696. While the district court in Arrington v. Mass. Bay Transp. Co., supra, thought a “ compelling justification” must be furnished by the state in view of the discriminatory impact shown (on the authority of Harper v. Virginia Board of Elections, supra), it was conceded that the general aptitude test battery administered there had no apparent relationship to the abilities important to job performance as a bus driver or fare collector. On the other hand, two district court judges in the Northern District of California held that a “ reasonable relationship” between the general aptitude tests used in screening applicants for the position of fire fighter and policeman, respectively, would immunize the tests from constitutional infirmity. Western Addition Community Organization v. Alioto, supra, at 539; Penn v. Stumpf, 308 F.Supp. 1238, 1242 (N.D. Cal. 1970). Thus, none of these decisions provide any reasoned basis for repudiating the conventional “ rational relationship” test. 41 An analogous claim under the Fourteenth Amendment involving racial underrepresentation on a grand jury was considered by this Court last Term in United States v. Criminal Court of the City of New York, 442 F.2d 611 (2d Cir. 1971). The grand jury which indicted the petitioners there was drawn from a grand jury list which was 1.65% black as compared with 24% of the total adult population of the county. Despite the gross statistical disparity in racial representation on the grand jury list, this Court rejected petitioners’ equal protection claim because there was no evidence that the disparity “ represented purpose- Ivti and intentional discrimination” . 442 F.2d at 6l7.“ The court found a “ rational” basis for the jury selec tion system employed in that volunteer grand jurors could be expected to perform their obligations more conscien tiously than jurors compelled to serve. 442 F.2d at 617. In response to petitioners’ argument that a compelling justifi cation must be shown to support a de facto discriminatory system, the Court observed—without deciding whether as a matter of law such a justification was required—that the “ presumably greater conscientiousness of volunteer jurors . . . sufficiently justifies New York’s voluntary selection technique.” 442 F.2d at 618. It is noteworthy that, this Court regarded the pre sumption of greater conscientiousness as a sufficient justifi cation for the de facto discriminatory system employed there. Unlike the approach taken by the court below in the present suit, the State was not required to establish the validity of this presumption beyond a reasonable doubt. The supervisory examination program challenged here is manifestly justified by the State’s desire to insure that supervisory personnel in the vast New York City school system be promoted on the basis of merit and fitness. That compelling state interest is effectuated by the Board of Examiners through the use of appropriate testing methodo logy. Thus, it is clear that the Examiners’ procedures meet either standard of review under the equal protection clause. 42 P O I N T I V Issuance of the unprecedented sweeping prelimi nary injunction was a serious abuse of discretion. With the facile justification that its preliminary injunc tion was necessary to “ preserve the status quo until the issues are resolved” , the court helow issued an unprece dented order prohibiting the Board of Examiners from continuing to administer a statutorily prescribed examina tion program for the qualification of educational super visory personnel in the New York City school system, which effectuates a State constitutional mandate for the promo tion of public employees on the basis of merit and fitness. The sweeping order invalidates all outstanding eligible lists of licensed supervisory personnel and bars the issuance of any new lists from recently completed examinations, without regard to whether such list was based on a discrimi natory examination and without regard to whether the examination was job-related. Furthermore, it bars the Board of Examiners from conducting or administering any future examinations without prior court approval. The order even prohibits the Examiners from grading recently administered examinations despite the absence of any con ceivable harm to the plaintiffs from such internal pro cedures (257a). The issuance of such an all-embracing preliminary in junction against a state agency commands the most careful scrutiny by this appellate court. Fundamental principles of Federal equity jurisprudence require that a Federal district court not tamper with a state statutory scheme intended to serve a highly valued state objective absent a clear showing that the plaintiffs are being deprived of constitutional rights and will be irreparably harmed while the questions are being finally adjudicated. The traditional requirement that plaintiffs make a showing of probable success on the merits to sustain the grant of preliminary injunctive relief has been established by countless authorities in this and other courts. See, e.g., Clairol Inc. v. Gillette Co., 389 F.2d 264 (2d Cir. 1968); 43 Societe Comptoir v. Alexander’s Dep’ t Stores, Inc., 299 F.2d 33, 35 (2d Cir. 1962). Indeed, the absence of this showing alone is a sufficient ground for reversing the is suance of a preliminary injunction. Int’l Cont. Transp. Corp. v. New York Ship’g A ss’n, 426 F.2d 884 (2d Cir. 1970). As explained in Points I, II and III, supra, the lower court proceeded on the basis of a novel and unwarranted equal protection theory which led it to apply erroneous constitutional standards and thereby reach invalid ulti mate findings. We have demonstrated that when the proper constitutional standards are applied to the allega tions and proof, a denial of equal protection was not and could not be established. Accordingly, the motion for a preliminary injunction should have been denied and the second amended complaint dismissed. Moreover, even a finding of substantial probability of success on the merits alone is not sufficient to warrant issuance of tin* extraordinary remedy of a preliminary injunction. Plaintiffs also are required to demonstrate that unless preliminary relief is granted they will suffer irreparable injury, and further, that such harm to them significantly outweighs the harm to the defendants and others which would result from the grant of preliminary relief. Foundry Services, Inc. v. Bencflux Corp., 206 F.2d 214, 216 (2d Cir. 1953); Sims v. Greene, 161 F.2d 87, 89 (3d Cir. 1947). The court below cited but two factors suggestive of possible interim harm to plaintiffs in the absence of pre liminary relief: (1) plaintiffs and others similarly situ ated would be deprived of an equal opportunity for licens ing and permanent appointment as supervisors; and (2) the continued employment of those holding acting appoint ments would be threatened since permanent appointments from eligible lists are required by State law (224a). Neither point involves “ irreparable injury” and, in fact, the potential interim harm to plaintiffs and others similarly situated is quite minimal. Assuming arguendo that there is a proper class * and that the potential interim harm to this undefined class may be given weight, the group of persons arguably harmed obviously does not include all black and Puerto Rican supervisory candidates. Only those who failed, or would fail, a “ discriminatory” examination but could pass a “ valid” examination may even claim interim harm. Even this narrow group would not suffer “ irreparable” harm. School supervisory personnel no longer earn tenure in their positions, so that all newly appointed supervisory personnel serve at the pleasure of their respective school boards. N. Y. Educ. Law, § 2573, subd. 1(b). In any event, vacancies regularly occur. Thus, plaintiffs will be in the same position to compete for regular appointment to super visory positions at the end of the litigation with or without preliminary relief. The mere delay in vindicating alleged rights required to afford the defendants the due process of a full trial is not a harm which the law deems “ irrep arable” . To stretch the concept to cover such a case would mean that the plaintiff in every lawsuit could properly claim irreparable injury. The second possible harm suggested by the court— the threat to the continued employment of those holding “ acting appointments” —is still more illusory. No threat to continued employment occurs when a person is reas signed from an acting position to his regular position; an acting assignment is, by definition, an interim assignment made only when the appropriate eligible list has been exhausted and a succeeding list has yet to be issued. Those serving in acting positions at the time the court below issued its preliminary injunction were merely fortuitous beneficiaries. They would suffer no legally protectable harm, let alone an irreparable harm, were they reassigned. * Although plaintiffs had moved to have the action declared a class action, the court did not rule on the motion prior to filing its Opinion or issuing the preliminary injunction. After the present notice o f appeal was filed, the court filed a Memorandum Decision in which it deferred action on the class action motion pending this appeal (Memorandum Decision, Oct. 29, 1971). 45 Finally, denial of preliminary injunctive relief actually would have minimal adverse impact on those presently holding acting appointments who are desirous of being licensed and regularly appointed. In fact, many are being harmed by the order. The statistical data for the 1970 elementary school principal examination revealed that of 46 persons listed as acting elementary school principals, 39 took and completed the examination and 37 passed (250a). Thus, the potential harm here is limited to only 2 persons who may or may not have been discriminated against, while the other 37 persons are being denied the benefits of regular appointment. Undoubtedly, a substantial proportion of those 37 acting principals whose licensing and regular appointments have been held up are, in fact, black or Puerto Rican. 5\ bile treely speculating as to the possible harm to plaintiffs and others similarly situated, the court below was unable to discern any substantial harm to the State, the public school system, and other individuals from the grant ot preliminary relief. Consider first the harm to literally thousands of persons desirous of promotion to almost 200 kinds of supervisory positions. There are those whose names appeared on numerous eligible lists outstand ing at the time the preliminary injunction was issued and who had not yet received an appointment. These persons had qualified and been licensed after passing examinations administered up to several years ago—before plaintiffs instituted this action—yet they now are deprived of an opportunity to be regularly appointed for the indefinite future. Then there are the several thousand supervisory candi dates for more than 20 different supervisory licenses whose examinations were in progress during the pendency of the preliminary injunction motion (A. Ex. 22). Ironically, this group includes large numbers of blacks and Puerto Ricans who for the first time—were eligible to take supervisory examinations under the liberalized education and experience requirements established by the Board of Education and 4G who could expect rapid appointment under decentraliza tion. For example, release of the eligible list from the 1970 elementary school principal examination would result in a minimum of 224 identified blacks and Puerto Ricans being licensed and made eligible for regular appointment to principalships (249a). Thus, on the eve of a break through in making opportunities for supervisory positions available to large numbers of blacks and Puerto Ricans within the context of a merit system, the court below has broadly blocked the administration of that system to the detriment of all those qualified who seek supervisory ap pointment. This enormous harm to thousands of individuals—of all racial and ethnic backgrounds—was casually brushed aside by the court below with the remarks that they all can be licensed under examinations administered following a final adjudication and are, in the meantime, eligible for acting assignments as supervisors (224a). The court com pletely ignored the direct and immediate harm in terms of loss of substantial monetary benefits, responsibility and promotional opportunity for these thousands of supervisory candidates who have qualified or would qualify under the merit system. The suggestion that they are eligible for acting assignment reflects an enormous naivete as to their actual chances of being selected on the basis of merit from amongst tens of thousands of other professionals in the school system without being on a published list of qualified eligibles. The preliminary injunction granted clearly does not preserve the status quo pendente life but establishes an entirely new status. Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292 (3d Cir. 1940). Even more significantly, the court below also brushed aside the substantial harm to the State and the public from the grant of such preliminary injunctive relief. For this point, the court again relied on the Chancellor’s unsworn, out-of-court statement that he believed the present system for personnel selection to be unworkable (225a). In doing so, the court disregarded the sworn testimony of Murry Bergtraum, the then President of the co-defendant Board 47 of Education, who submitted an affidavit in opposition to the preliminary injunction urging that such relief would be disruptive to the entire school system (95a). Mr. Bergtraum stated that the preliminary injunction would be injurious to the school system and the children in attendance by depriving the schools of primary and intermediate leadership in supervision, in administration, curriculum direction, and relationship with parents and the community. Acting supervisory personnel, he noted, are not in a position to act with the continuity, authority and assurance that come with regular appointment. Such primary and intermediate leadership is essential during the difficult period of transition from an essentially central ized school system administration to a decentralized one (9Sa). Simply because one or more individuals would prefer a different system of personnel selection does not give a Federal court the right to overturn the State’s choice. Preliminary injunctive relief does substantial and irrep arable harm to the explicit statutory scheme for promo tional advancement in the Xew York City school system, which provides a role in the selection process for the Chancellor, the independent Board of Examiners, and the local school boards. This statutory scheme represents a careful balance of competing interests designed to insure that the State constitutional mandate for appointment on merit and fitness is fulfilled in this enormous school system while allowing broad flexibility to local authorities in select ing supervisory personnel suitable to the particular needs of a given community within the City. “ So delicate, com plex and fair a political balance should not be the subject of rearrangement by the federal courts” . Johnson v. New York State Education Department, supra, at 4659, n. 6. ; A. Federal district court is not a super-legislature, and it ought to step very cautiously in such matters of great concern to the State. “ The Federal Constitution does not give [tlm court] the power to overturn the State’s choice under the guise of constitutional interpretation. . . . ” Labine v. Vincent;, 401 U.S. 532, 537 (1971). See also Dandrige v. Williams, 397 U.S. 471, 483-87 (1970); United 48 States v. Criminal Court of the City of New York, 442 F.2d 611, 615 (2d Cir. 1971). The District Court seriously abused its discretion in granting preliminary injunctive relief broadly interfering with the statutory scheme on the basis of an erroneous legal theory and demonstrably insufficient evidence. Moreover, the interim relief granted was unprecedented and unjustified. CONCLUSION For all of the reasons stated above, this Court should reverse the District Court, vacate the prelimi nary injunction and remand the case with instructions to dismiss the second amended complaint. Respectfully submitted, K aye, Scholer, F ierman, H ays & H andler Attorneys for Defendant-Appellant Board of Examiners Saul Z. Cohen Mark A. Jacoby of Counsel