Chance v. Board of Examiners Brief for Defendant-Appellant Board of Examiners

    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