Henock v. Bergtraum Brief of Intervenors-Respondents

    To be argued by
ELIZABETH B. DuBOIS (20 Minutes)

NEW YORK SUPREME COURT 
Appellate Division - Second Department

In the Matter of the Application 
of

SAUL HENOCK,. JACOB FLEISHER, DONALD DE SENI,
JACK TRANES, ROBERT D. JENKIN, DANIEL GOLDBERG, 
MORTON A. OSTROWSKY, MARTIN H. SIMON, IVAN RUBIN, 
MORTON LIPPEL, GARRET KERMAN, .HUGH F. HAUGHEY, 
DAVID SPIWAK, HARVEY L. COHEN,. JACK GOLDENBERG, 
ALLAN SACKS, GILBERT H. MARIN, ROD MACKENZIE,IDA NEWMAN,

Petitioners-Appellants,
-against-

MURRAY BERGTRAUM, SEYMOUR P. LACHMAN, MARY E. MEADE, ISAIAH E. ROBINSON, JR. and JOSEPH 
MONSERRAT, comprising the Board of Education 
of the City of New York, NATHAN BROWN, Acting 
Superintendent of Schools of the City of New 
York, and THEODORE H. LANG, Deputy Superinten­dent of Schools of the City of New York,

Respondents-Respondents,
and

OCEY L. SANDIFER, EVERSLEY VAUGHAN,
Intervenors-Respondents.

BRIEF OF INTERVENORS-RESPONDENTS

JACK GREENBERG 
ELIZABETH B. DuBOIS STEPHEN G. YOUNG 

10 Columbus Circle New York, N.Y. 10019 
Tel.: 586-8397

Attorneys for Intervenors-Respondents



TABLE OF CONTENTS
Page

Facts..........................................  1

Questions Presented............................  6
Pertinent Constitutional and
Statutory Provisions.........................  8

Point I
The court below correctly found that 
the Legislature's amendment to Section 
2573 subdivision 10 of the Education 
Law was a valid exercise of legislative 
authority under Article V Section 6 of 
the New York State Constitution, be­
cause it was neither arbitrary nor 
unreasonable...........................  18

Point II
The court below correctly found that 
petitioners had no vested right to 
have appointments, on a ranked competi­
tive basis or otherwise, and that the 
legislative change in Section 2573 
subdivision 10 had no retroactive 
effect.................................  34

Point III
The court below correctly found that 
petitioners lost none of their rights 
to veterans' preferences as a result either of the change in Section 2573 
subdivision 10 or in the actions of 
the Board of Education.................  37

Point IV
The court below correctly found that 
petitioners were deprived of no contractual rights as a result of 
any action by the Legislature or the 
Board of Education......... ............  39

Conclusion 40



FACTS

Having ascertained that the public school 
system of New York City was in serious difficulty, the 
New York Legislature, commencing in 1967, enacted a 
series of reform measures. Three major bills were

1/passed during the course of three consecutive sessions. 
Taken together, these measures effected a step-by-step 
major restructuring and decentralizing of the system's 
operations. A key focus of this legislation was person­
nel practices: particularly, the licensing and appoint­
ing of teachers and supervisors. It is fair to say that 
this aspect of decentralization was among the most con­
troversial, particularly in view of the altercations 
which came to surround the Ocean Hill-Brownsville 
experimental district. Indeed, the extent to which 
this issue was subject to public scrutiny can hardly 
be understated.

Thus, it was in the context of the developing 
controversy over decentralization that the Board of 
Examiners announced on April 8, 1968, an examination
for assistant principal of junior high school, to commence

1/ Laws of 1967, Chapter 484; Laws of 1968, Chapter 568; 
Laws of 1969, Chapter 330.



2

the following September 3. This announcement (A. 58) 
did not specify whether the examination would result in 
a ranked competitive list, or simply qualifying ones. 
Indeed, the portion of the announcement dealing with 
grading dealt with only the criteria for passing the 
examination. The appellants and intervenors-appellees 
herein were among those admitted to the examination.

The conduct of the examination was completed 
in or about early 1969, and a list of successful candi­
dates pursuant thereto was promulgated by the Board of 
Examiners on July 15, 1969. On July 25, 1969, respondent
Theodore H. Lang, Deputy Superintendent of Schools for 
Personnel, sent a letter to all those on the list (A. 61) 
informing them, inter alia, that names thereon were pub­
lished in ranked order and therefore that appointments 
would be made according to relative standing. However, 
on November 19, 1969, respondent Lang sent a subsequent
letter to all such persons informing them that, pursuant 
to a communication from the Corporation Counsel, the list 
would be a Qualifying Eligible List rather than a Ranked 
Competitive one. Because both these letters ware written 
long after the examination itself had been completed,

2/

2/ Numbers in parentheses, unless otherwise indicated, 
refer to pages in appellants' appendix.



3

neither of them had any effect either on the execution 
of the examination or upon the obligations of the Board 
of Education. Nor can it be said that candidates relied 
upon these letters in their conduct in the examination.

After the examination had been completed, but 
before the list had been promulgated, the Legislature 
had passed, and the Governor had approved, Chapter 330 
of the Laws of 1969, popularly known as the Decentrali­
zation Law. This Act, inter alia, amended Section 2573 
subdivision 10 of the Education Law by deleting the 
supervisory service of the New York City public schools 
from the class from which appointments must be made from 
lists on a ranked competitive basis. Also, the Act added 
§§ 2590-j(4)(b) and (d) to the Education Law to make clear
that supervisory appointments would be made from qualify-

2/ing eligible lists under the new decentralized system.
Petitioners-appellants subsequently brought 

this action, contending that the amendment to said Section 
2573 subdivision 10 violated Article V Section 6 of the

3/ A ranked competitive list is one in which the names 
■thereon are listed in an order corresponding to the nu­
merical scores achieved by the candidates. Under Sec. 2573 Subd. 10, prior to its amendment in 1969, appointments to 
supervisory positions were required to be from among the top 
three names on the list. A qualifying eligible is one in 
which there is no ranked listing, so that an appointee may 
be anyone on the list.



4

New York State Constitution. Said Article V Section 6 
mandates that appointments and promotions in the civil 
service be made on the basis of merit and fitness to be 
determined, as far as practicable, by examination which, 
as far as practicable, is to be competitive. Petitioners- 
appellants also contended that this statutory change was 
being applied retroactively by respondent Board of Education, 
and questioned the propriety of such alleged application.

Petitioners-appellants further contended that 
certain of their number were entitled to veterans' pre­
ferences in the grading of the examination under Article V 
Section 6 of the New York State Constitution, and that the 
statutory amendment to Section 2573 subdivision 10 of the 
Education Law, and respondent Board of Education's imple­
mentation of same, were depriving such petitioners of 
these preferences.

Intervenors-respondents are two individuals 
whose names appear on the list but who opposed the peti­
tion. They were granted intervention on the date of oral 
argument in the court below, April 2, 1970.

The court below, in a factually detailed and 
well reasoned opinion (A. 10-21) rejected the petition 
on every point. It held that the amendment to Section 2573 
subdivision 10 was a valid exercise of legislative power 
(A. 16); and that it in no way affected any rights of



5

petitioners (A. 17). The court also ruled that none of 
petitioners had lost their rights to use veterans bonus 
on civil service examinations (A. 19); and the petitioners 
paying of an examination fee did not give rise to any 
contractual rights (A. 19).



6

QUESTIONS PRESENTED

1. Does the amendment to Section 2573 subdivision 
10 of the Education Law, which removed the supervisory- 
service of the New York City public school system from 
the category of positions in such system for which re­
commendation for appointment must be from the first three 
persons on appropriate ranked competitive lists, violate 
the provisions of Article V Section 6 of the New York 
State Constitution? The court below answered in the 
negative.
2. Did appellants gain any right to an appoint­
ment, on a competitive basis or otherwise, to the posi­
tion of junior high school assistant principal, by 
virtue of their having taken and passed an examination 
for such position? The court below answered in the 
negative.
3. Did appellants lose any rights to veterans' 
preferences, as provided in Article V Section 6 of the 
New York State Constitution, either by the amendment to 
Section 2573 subdivision 10 of the Education Law, or by 
any action of any of respondents herein pursuant thereto? 
The court below answered in the negative.
4. Were appellants deprived of any contractual



rights as a result of the amendment to Section 2573 
subdivision 10 of the Education Law or by any action 
of any of respondents herein pursuant thereto? The 
court below answered in the negative.

7



8

PERTINENT CONSTITUTIONAL AND 
STATUTORY PROVISIONS________

Article V Section 6 of the Constitution
of the State of New York reads as follows:

"§6. [Civil service'; veteran's preference.] - Appointments and 
promotions in the civil service 
of the state and all of the civil 
divisions thereof, including 
cities and villages, shall be 
made according to merit and fit­
ness to be ascertained, as far as practicable, by examination 
which, as far as practicable, 
shall be competitive; provided, 
however, that any member of the 
armed forces of the United States 
who served therein in time of 
war, who is a citizen and resident 
at the time of his entrance into 
the armed forces of the United States and was honorably discharged 
or released under honorable circum­
stances from such service, shall be 
entitled to receive five points additional credit in a competitive 
examination for original appoint­
ment and two and one-half points additional credit in an examination 
for promotion or, if such member 
was disabled in the actual perform­
ance of duty in any war, is receiv­
ing disability payments therefor 
from the United States veterans administration, and his disability 
is certified by such administration 
to be in existence at the time of his application for appointment or 
promotion, he shall be entitled to 
receive ten points additional credit 
in a competitive examination for



9

original appointment, and five 
points additional credit in an 
examination for promotion.Such additional credit shall be 
added to the final earned rating 
of such member after he has 
qualified in an examination and 
shall be granted only at the 
time of establishment of an eligible 
list. No such member shall receive 
the additional credit granted by 
this section after he has received 
one appointment, either original entrance or promotion, from an 
eligible list on which he was al­
lowed the additional credit granted by this section."



10

Prior to the amendment of April 30, 1969,
Section 2573, subdivision 10 of the Education Law of
the State of New York read in part as follows:

"10. In a city having a population 
of one million or more, recommendations 
for appointment to the teaching and supervising service, except for the 
position of superintendent of schools, 
associate superintendent or assistant 
superintendent, or director of a 
special branch, principal of or teacher 
in a training school, or principal of 
a high school, or administrative assistant in a high school, or 
assistant administrative director, 
shall be from the first three persons 
on appropriate eligible list prepared 
by the board of examiners."

Section 2573, subd. 10 of the Education Law 
as amended, Laws of 1969, Chapter 330, reads in part as 
follows:

"10. In a city having a population 
of one million or more, recommenda­
tions for appointment to the teaching 
service shall be from the first three 
persons on appropriate eligible lists 
prepared by the board of examiners...."



11

" The interim board of education 
shall prepare a tentative district­
ing plan defining the boundaries 
of the community districts and the 
number of members on each community 
board. No community district shall 
contain less than twenty thousand 
pupils in average daily attendance 
in the schools under its jurisdiction nor shall the boundaries of any such 
district cross county lines, provided 
however, that residents of the county 
of New York in school district ten as 
it existed prior to the implementation of this paragraph, shall continue to 
remain in school district ten as such 
district is comprised pursuant to the 
implementation of this paragraph.
There shall be no less than thirty 
nor more than thirty-three community 
districts."

Education Law Section 2590-b 2(b)



12

Education Law Section 2590-j subd. 4

"(b) The chancellor shall appoint and 
assign all supervisory personnel for all 
schools and programs under the jurisdic­
tion of the city board from persons on qualifying eligible lists.

"(d) Each community board shall appoint 
and assign all supervisory personnel 
for all schools and programs under its 
jurisdiction from persons on qualifying eligible lists.

"(e) All persons on an existing competi­
tive eligible list for elementary school 
principal shall be appointed to such 
position prior to April first, nineteen hundred seventy.

"(f) All future eligible lists estab­lished pursuant to this section 
shall remain in force and effect for 
a period of four years, and no appoint­ments shall be made from any eligible 
list unless every such list promulgated prior thereto shall be exhausted or 
expired, whichever first occurs."



13

Education Law Section 2590-e

"Each community board shall have 
all the powers and duties, vested by law in, or duly delegated to, 
the local school board districts 
and the board of education of the 
city district on the effective 
date of this article, not incon­
sistent with the provisions of 
this article and the policies es­
tablished by the city board, with 
respect to the control and operation 
of all pre-kindergarten, nursery, kindergarten, elementary, interme­diate and junior high schools 
and programs in connection there­
with in the community district...."



14

Civil Service Law provisions 
Section 35:

"The civil service of the state 
and each of its civil divisions 
shall be divided into the 
classified and unclassified ser­
vice. The unclassified service 
shall comprise the following:...
(g) All persons employed by any 
title whatsoever as members of 
the teaching and supervisory staff 
of a school district, board of cooperative educational services 
or county vocational education 
and extension board, as certified 
to the state commission by the commissioner of education. The 
commissioner of education shall 
prescribe qualifications for 
appointment for all classes of 
positions so certified by him, 
and shall establish specifications 
setting forth the qualifications 
for and the nature and scope of the 
duties and responsibilities of such 
positions."

Section 50:
" Application fees, (a) Every appli­
cant for examination for a position 
in the competitive or non-competitive 
class, or in the labor class when 
examination for appointment is required, shall pay a fee to the civil service 
department or appropriate municipal 
commission at a time determined by it. 
Such fees shall be dependent on the 
minimum annual salary announced for 
the position, as follows: (1) on
salaries of less than three thousand 
dollars per annum, a fee of two dollars; 
(2) on salaries of more than three 
thousand dollars per annum, a fee of 
three dollars; (3) on salaries of more



15

than four thousand dollars and not 
more than five thousand dollars per 
annum, a fee of four dollars; and (4) 
on salaries of more than five thousand 
dollars per annum, a fee of five 
dollars. If the compensation of a 
position is fixed on any basis other than an annual salary rate, the appli­
cant shall pay a fee based on the 
annual compensation which would other­
wise be payable in such position if the 
services were required on a full time 
annual basis for the number of hours per 
day and days per week established by law 
or administrative rule or order. Fees 
paid hereunder by an applicant whose 
application is not approved may be 
refunded in the discretion of the state 
civil service department 01 of the 
appropriate municipal commission.
"(b) Notwithstanding the provisions of 
paragraph (a) of this subdivision, the 
state civil service department, subject 
to the approval of the director of the 
budget, a municipal commission, subject 
to the approval of the governing board 
or body of the city or county, as the 
case may be, or a regional commission 
or personnel officer, pursuant to 
governmental agreement, may elect to 
waive application fees, or to abolish 
fees for specific classes of positions 
or types of examinations or candidates, 
or to establish a uniform schedule or 
reasonable fees different from those 
prescribed in paragraph (a) of this 
subdivision, specifying in such schedule 
the classes of positions or types of 
examinations or candidates to which such 
fees shall apply; provided, however, 
that only the civil service department, 
with the approval of the director of the 
budget, shall have authority to waive 
application fees or establish a different 
schedule of fees for any examinations



16

prepared and rated by the civil 
service department for positions 
under the jurisdiction of a munici­pal commission."

Section 85, subd. 4.:
"Use of additional credit.
"(a) Except as herein otherwise 
provided, no person who has received 
a permanent original appointment or 
a permanent promotion in the civil 
service of the state or of any city 
or civil division thereof from an 
eligible list on which he was allowed 
the additional credit granted by this 
section, either as a veteran or dis­
abled veteran, shall thereafter be 
entitled to any additional credit 
under this section either as a veteran or a disabled veteran.
"(b) Where, at the time of establish­
ment of an eligible list, the position 
of a veteran or disabled veteran on such list has not been affected by the 
addition of credits granted under this 
section, the appointment or promotion 
of such veteran or disabled veteran, 
as the case may be, from such eligible 
list shall not be deemed to have been 
made from an eligible list on which he 
was allowed the additional credit granted by this section.'(c) If, at the time of certification of names fron an eligible list, a vet­
eran or disabled veteran is reached for 
certification and certified in the same 
relative standing among the eligibles 
whose names then remain on such list as 
if he had not been granted the addition­
al credits provided by this section, his 
appointment upon such certification shall 
not be deemed to have have been made from 
an eligible list on which he was allowed such additional credits.



17

"(d) Where a veteran or disabled 
veteran has been originally ap­
pointed or promoted from an eli­
gible list on which he was allowed 
additional credit, but such appoint­
ment or promotion is thereafter 
terminated either at the end of 
the probationary term or by resig­
nation at or before the end of the 
probationary term, he shall not be 
deemed to have been appointed or 
promoted, as the case may be, from 
an eligible list on which he was allowed additional credit, and 
such appointment or promotion shall 
not effect his eligibility for 
additional credit in other examina­tions . "



18

POINT I

THE COURT BELOW CORRECTLY FOUND 
THAT THE LEGISLATURE'S AMENDMENT 
TO SECTION 2573 SUBDIVISION 10 
OF THE EDUCATION LAW WAS A VALID 
EXERCISE OF LEGISLATIVE AUTHORITY 
UNDER ARTICLE V SECTION 6 OF 
THE NEW YORK STATE CONSTITUTION, 
BECAUSE IT WAS NEITHER ARBITRARY 
NOR UNREASONABLE.

The essence of appellants' constitutional 
claim is that the Legislature violated Article V 
Section 6 of the New York State Constitution when 
it altered the method of appointing personnel to the 
supervisory service of the New York City public schools. 
The alteration consisted of changing the nature of 
civil service lists for these positions from 'ranked 
competitive' to 'eligible qualifying'. The effect of 
the change was that, whereas previously any appointee 
to a vacancy had to be one of the top three persons on 
a list, now such appointee could be anyone on a list.

Article V Section 6 mandates that appoint­
ments and promotions in the civil service be made on 
the basis of merit and fitness, to be determined, as 
far as practicable, by examination, which, as far as 
practicable, is to be competitive. As far back as 
1898, four years after this provision was adopted - 
originally as Article V Section 9 of the 1894 Consti-



19

tution, the Court of Appeals set forth its meaning in
People ex rel. Sweet v. Lyman, 157 N.Y. 368 at 375:

"It then declares that merit and 
fitness shall be ascertained by 
examinations, and also the extent 
to which examinations are to control 
is declared to be only so far as 
practicable. This language clearly 
implies that it is not entirely 
practicable to fully determine them 
in that way. it was the purpose of 
its framers to declare those two 
principles, and leave their appli­
cation to the discretion of the 
Legislature." (Emphasis added.)

Some years later, in discussing this constitu­
tional provision, Judge Cardozo commented that what it 
requires is that the Legislature act reasonably in clas­
sifying civil service positions. He stated in Ottinger 
v. Civil Service Commission, 204 N.Y. 435 and pp.440-441

"...It [the Legislature] may adopt 
some other agency, and even classify 
for itself, if its classification 
can reasonably be regarded as genuine 
endeavor to extend the constitutional 
test to the limit of the practicable 
...The Legislature retains the power 
among means appropriate to the end, 
but choice depends upon reason, not caprice."
In Meenagh v. Dewey, 286 N.Y. 292, 306 (1941), 

the Court of Appeals upheld the classification, by the 
State Civil Service Commission and the Governor, of 
certain positions in the New York County District 
Attorney's Office in the exempt and non-competitive



20

classes:
"Such rule or regulation may be 
set aside by the courts, if at 
all, only in an appropriate pro­
ceeding upon proof that the rule 
or regulation is without ration­
al basis and wholly arbitrary."(Id. at 306, 307)
In Barnett v. Fields, 196 Misc. 339, (Sup.Ct.

N.Y. Co.-1949) aff'd 276 App. Div. 903, aff'd 301, N.Y.
543, the court declared:

"Legislative classification of a 
position in the non-competitive 
class will not be overruled in 
the absence of proof that same was 
clearly arbitrary and unreason­
able." (196 Misc. at 343.)

Accord, Craig v. Board of Education, 173 Misc. 
969, 982 (Sup. Ct. N.Y. Co.-1940), aff'd 262 App. Div. 
706; Fuchs v. Board of Education, 143 N.Y.S. 2d 788,
789 (Sup. Ct. Kings. Co.-1955), motion for leave to 
appeal denied 1 A.D. 2d 892.

The discretion granted to the Legislature by 
Article V Section 6 has been specifically recognized as 
it pertains to Section 2573 subdivision 10 of the Educa­
tion Law, the very same subdivision at issue herein. In 
Maloff v. Board of Education, 143 N.Y.S. 2d 792 (Sup. Ct. 
Kings Co.-1955), appeal dismissed 1 N.Y. 2d 668 (1956), 
a dispute between the Board of Education and the Board 
of Examiners as to the proper classification for a



21

particular supervisory position was ultimately settled 
by the Legislature's amending said Section 2573 subdi­
vision 10 by placing the disputed position in the 
non-competitive class. The court held:

"Against this background it would 
appear that there is fair and reason— 
akle ground for difference of opinion 
among the intelligent and conscien­tious officials of the Board of 
Examiners and the Board of Education of the City of New York as to the 
proper mode of filling the position 
of [high school] administrative assistant... in these circumstances 
the placing of the position cf admini­
strative assistant in the non-competi­
tive class was a reasonable and valid exercise by the Legislature of its 
power to classify positions in the 
public service as it is authorized to 
do under Article V Section 6 of the 
Constitution of the State of New York "(143 N.Y.S. 2d at 796.)

Thus, the Legislature can be said to have acted 
unconstitutionally in amending Section 2573 subdivision 
10 and adding Sections 2590-j 4(b) and (d) only if its 
decision can be said to have been arbitrary or unreason­
able. Intervenors-appellees respectively submit that an 
examination of the facts and circumstances surrounding 
the legislative enactment demonstrates conclusively that 
no such characterization is applicable.

The court below correctly took cognizance of 
the extensive legislative history which preceded the



22

statutory change (A. 13-15). Chapter 330 of the Law of
1969, which embodies these changes, was the third in a
series of three Acts, passed by the Legislature over
three consecutive sessions, which mandated fundamental
alterations in the structure of the New York City public
school system. The first of these Acts, Chapter 484 of
the Laws of 1967, inter alia, directed the Mayor of the
City of New York to prepare a report on decentralizing
the system. Pursuant thereto, the Mayor's Advisory Panel
on Decentralization of the New York City Schools issued
a study entitled Reconnection for Learning, popularly
known as the Bundy Report. In discussing the supervisory
service, the Report urged changes beyond those ultimately
adopted by the Legislature:

"For a process which had great 
protective value in an earlier 
time is now a critical limitation 
upon the ability of the school 
system of New York to reverse the 
current trend toward disaster. Cen­
tralized examinations with numbered 
rank lists are wholly inconsistent 
with the requirements of effective 
decentralization. The urgent need 
for decentralization, the dramatic reversal of the balance between the 
supply and demand of qualifying per­sonnel, and the drastic change in 
the requirements for educational 
leadership today, all persuade us 
that it is the time to abandon the present examining system." (Bundy 
Report, p. 51; emphasis added.)



23

During the following legislative session, the
State Commissioner of Education, with Board of Regents
endorsement, also recommended abolishing the Board of
Examiners system altogether. In assessing the need for
reform, the Commissioner urged prompt action in view of
the deteriorating educational situation:

"With every passing day the tensions, 
the pressures, the confusion, mount in the ghettos of New York City. It 
is unnecessary to emphasize the import­
ance of education in this situation 
both for its results and for the sig­
nificance it has come to have in the 
minds and attitudes of the people.
"I recognize the extreme difficulties 
of dealing with the overwhelming com­
plexities of New York City and the 
awesome responsibility of decisions 
which will affect the education of one 
million children, the careers of fifty 
thousand teachers and other profes­
sionals and the fate of the nation's 
largest city, but I believe that fur­ther delay in taking action...will 
provoke still deeper bitterness and 
resistance that will heighten tension 
already at the explosion point.
"... I would urge that the Regents use 
the full force and influence of their 
office to secure the enactment of 
legislation that will carry out the 
proposals outlined in this statement." 
(Recommendations of the Commissioner of 
Education to the Board of Regents Con­
cerning Decentralization of the City 
School District of the Cxty of New York,
March 27, 1968, approved by the Board 
of Regents, March 29, 1968; p. 26, 27.)



24

In response the Legislature enacted Chapter 
568 of the Laws of 1968, providing for an interim decen­
tralization program pending a final enactment at the fol­
lowing session. Meanwhile, a suit had been filed based on 
Article V Section 6 challenging the appointment of acting 
principals of demonstration elementary schools, thus, by-pas­
sing a ranked competitive list, pursuant to the 1967 Act.
In upholding the appointments, the Court of Appeals made it 
explicit that Legislative changes in the personnel practices 
of the school system must be permitted the flexibility 
needed to deal with grim reality. The court declared in 
Council of Supervisory Associations v. Board of Education,
23 N.Y. 2d 458 (1969) at pp. 463-4:

" It became obvious the traditional 
public school teaching was not suc­
ceeding in imparting to a very sub­
stantial segment of children the 
basic educational tools needed for 
ultimate economic usefulness. This 
failure to teach what is indispens­
able to any single person operating 
in present day life had two conse­
quences: it tended to compel the
child as he grew up to remain in the 
dismal and ghetto-like conditions of 
an economically underprivileged com­
munity and to solidify the alienation 
of that community with fateful con­sequences; and it aroused in the non­
white community a quite reasonable 
demand that public school teaching 
methods be recast to give its child­
ren the necessary essential skills...



25

No one had an adequate answer 
but the strongest demands of good 
sense called for a solution. The area was one in which experimenta­
tion, the testing of new ideas 
inductively, pointed to an obvious 
direction for public policy. It 
is with this background that Chapter 
484 of the Laws of 1967 must be 
read. The statute did not spring up 
in a vacuum." (Emphasis added.)

And the court significantly concluded, (at
p. 469):

"The explanation which is the basis of this proceeding may not solve 
the problem but it is not being 
solved by rigid adherence to past 
techniques. The Legislature and the 
responsible educational officers of 
the state and city have seen experi­
mentation as a possibility of improv­
ing the education of children in slum 
areas. The court ought to give it a 
reasonable chance of success."
(Emphasis added.)

Ultimately, in response to the crisis described 
by the Bundy Report, the Commissioner of Education, and 
the Court of Appeals, among others, the Legislature 
enacted Chapter 330 of the Laws of 1969, the Community 
School District System for the City of New York. In 
view of the many prominent persons and groups who had 
extensively studied and reported on these matters; in 
view of the constant flow of publicity and events sur­
rounding the issues, including the teachers' and super­
visors' unions' strikes in 1968; and in view of the ex­
tensive length of time over which the Legislature con­
sidered this extremely complex problem, it cannot reason­



26

ably be concluded that the changes effected by the 1969 
Act were simply arbitrary or capricious. The Legisla­
ture, though effecting significant changes in selecting 
supervisory personnel, did not go nearly as far as 
either the Bundy Report or the Education Commissioner, 
among others, had recommended. Instead it struck the 
careful balance which is at issue herein, and its judg­
ment is entitled to be sustained by the courts in accord­
ance with the standards established in Sweet, Ottinger, 
Meenagh, Barnett, Maloff and the other precedents cited 
heretofore.

In their brief, however, appellants contend 
that the Legislature has not made a showing that all 
supervisory positions cannot be filled on competitive 
basis, and that therefore its amendment to § 2573 sub­
division 10 is unconstitutional. (Appellants' Brief 
p. 26.) First, in view of the legislative history that 
has been detailed heretofore, intervenors thoroughly 
reject the contention that the Legislature had shown no 
reason why the method of appointing supervisory personnel 
was in dire need of reform.

Second, appellants' argument assumes that the 
burden is on the Legislature to prove its enactments' 
constitutionality. In fact, the opposite is true: Any
statute is to be accorded a presumption of constitution­



27

ality and validity, Klipp v. New York State Civil Service 
Commission, 247 N.Y.S. 2d 632, 636 (Second Dept.-1964), 
and legislative classifications of positions in the non­
competitive class will not be overruled in the absence of 
proof that the classifications were clearly arbitrary and 
unreasonable, Barnett v. Fields, supra.

Appellants further contend that the Legislature 
cannot constitutionally remove an entire category of 
positions from the non-competitive category without showing 
impracticability to conduct competitive examinations for 
each such position (Appellants’ Brief p. 26). Actually, 
appellants have no standing to raise such a claim except 
as to the one position which concerns them. Nevertheless, 
the court below correctly found that the deliberations 
leading up to the decentralization act of 1969 contemplated 
all supervisory positions, and that the amendment to Sec­
tion 2573 subdivision 10, not being arbitrary or capricious, 
therefore constituted a valid exercise of legislative 
power (A. 14-16).

In fact, exemption from competitive requirements 
of whole categories of positions is quite common. In 
Felder v. Fullen, 27 N.Y.S. 2d 699 (Sup. Ct. N.Y.Co.-1941), 
aff'd 263 A.D. 986, aff'd 289 N.Y. 658, the constitutiona­
lity of a statute which placed in the non-competitive 
class all employees of privately owned subways taken over



28

by the City of New York was upheld. In Application of 
Hagan, 239 N.Y.S. 2d 913 (Sup. Ct. N.Y.Co.-1963), aff'd 
19 A.D. 2d 862, aff'd 250 N.Y.S. 2d 55, the legislative 
enactment that precluded examinations for any rank higher 
than captain in the New York City Police Department, 
was upheld.

The situation in the education field is even 
more salient. By statute, all teaching and supervisory 
positions in public schools throughout the State are in 
the "unclassified" service. (Civil Service Law Sec.35(g)). 
Jobs in the unclassifed service are excluded from the 
merit system in the absence of any other statutory provi­
sion providing merit testing for specific positions.
Thus, it is only because of certain sections of the Edu­
cation Law - such as 2569, 2573 and 2590 - that pedagogi­
cal positions in the City Schools Districts of New York 
and Buffalo are subject to a merit system. The Legisla­
ture has, across the board, exempted the staff of all 
other public school districts throughout the state from 
any testing, competitive or non-competitive, and this 
has always been true since the civil service system was 
introduced into the State in 1883. Such personnel are 
naturally subject to miniumu certification requirements 
of the State Education Commission, and the Regents (Civil 
Service Law, Sec. 35(g)), but the Legislature has in



29

effect found, pursuant to Article V Section 6 of the 
State Consitution, that further specific testing is 
not practicable in the determination of merit and fit­
ness. It has of course done this without considering 
every particular teaching and supervisory position in 
every department. Thus, the assertion of appellants 
that the Legislature must do so is contrary to the 
entire history of education and civil service in this 
State. A ruling that it must do so would raise the 
potential for severe disruption of public school sys­
tems throughout the State.

In addition, an order requiring a ranked 
competitive list for any or all supervisory positions 
would substantially destroy the decentralization program 
for the New York City schools. Pursuant to § 2590-b2(b) 
of the Education Law, thirty-three community school dis­
tricts have been created, each with a popularly elected 
board. Various administrative and policy-making powers 
formerly in the domain of the City Board and its Superin­
tendent, have been delegated to the community boards, though 
it is probably fair to say that the City Board retains 
substantial power and control. However, perhaps the most 
significant authority which community boards have been 
granted is contained in § 2590-j 4(d):



30

"Each community board shall 
appoint and assign all super­
visory personnel for all schools 
and programs under its juris­
diction from persons on quali­
fying eligible lists."

In general, the terms "all schools and programs" means 
pre-kindergarten, nursery, kindergarten, elementary, 
intermediate and junior high schools (§ 2590-e). The 
basic thesis of the Legislature being that more community 
board authority is necessary to improve a very troubled 
school system, let us examine what the effects would be 
if a key provision of that reform effort - the eligible 
qualifying list concept for supervisory appointments - 
were scrapped.

The subject of this litigation, the list for 
junior high school assistant principal is presently in 
effect and contains over 600 names. Suppose District F 
in Brooklyn wished to fill a vacancy in one of its junior 
high schools. Assume it followed all the proper advertis­
ing procedures giving all persons on the list an opportu­
nity to apply, and that it received some number of res­
ponses. The community board and its community superinten­
dent would then interview and evaluate all prospective 
candidates, paying particular attention to their experience 
with and responses to, the particular problems plaguing 
that school: let us say, high drop-out rates, substantial
vandalism and drug abuse. Upon completion of this process



31

the board would select a candidate whom it honestly felt 
was most experienced with, sensitive to, and prepared to 
deal with, such problems. Let us also assume that the 
selectee turned out to be number 550 on the list, and 
that several hundred persons above that number had not 
yet been selected for positions.

The consequences of returning to the ranked 
competitive concept are obvious. Even though the elected 
community board chose the person it felt most qualified, 
its efforts would be futile. For only until 447 persons 
above the selectee were appointed to positions throughout 
the city could their choice be effected. Since there are 
only 150 junior high and intermediate schools, and since 
the list has only a four year life (§ 2590-j 4(f)), the 
chance of this ever occurring would be very slight. At 
best, substantial delay would be involved, whereas the 
position was in immediate need of being filled.

Worse still, the use of the ranked competitive 
list might lead to widespread abuses. For, in a situation 
such as described above, enormous pressure could very well 
develop to "find" jobs for those ranked on the list between 
the lowest numbered person who had received an appointment, 
and the choice of a particular community, so that the 
latter selection could be effected.

What is true of the list for junior high school



32

assistant principal, is also true for the other super­
visory positions. That is why the Legislature placed 
appointment procedures for all such procedures on a 
qualifying list basis. After having found a decentralization 
program necessary for public education in New York City, 
it found competitive examinations impracticable for the 
supervisory service. This it is clearly entitled to do 
under Article V Section 6 of the New York State Constitu­
tion and its decision should not be distrubed.

None of the cases cited by appellants contra­
dicts this view: Friedman v. Finegan, 268 N.Y. 93 (1935),
(Appellants' Brief pp. 18,20), concerned a statutory in­
terpretation issue, and simply held that the Civil 
Service Law was meant to apply to clerks and deputy 
clerks of the Municipal Court of the City of New York. In 
that case, however, the court reiterated that the Legis­
lature can classify positions in the non-competitive 
class but must not act unreasonably or arbitrarily in 
doing so. (Id. at 98). Martin v. Burke, 25 Misc. 2d,
1042, 1047, (1960), (Appellants' Brief pp. 19, 20) was
another statutory interpretation decision, where the judg­
ment of the Municipal Civil Service Commission of the 
Utica that the Director of Urban Renewal was not in the 
exempt category, was upheld. Matter of Carow v. Board



33

of Education, 272 N.Y. 341, 347, 348 (1936), (Appel­
lants' Brief p. 19) simply upheld the right of the Legis­
lature to decide under Article V Section 6 that teachers' 
lists for New York City can practicably be ranked compe­
titive even though such positions are in the unclassified 
service. That case does not simply say that Article V 
Section 6 applies to all civil service positions, as 
appellants contend. Its actual ruling is as follows 
Id. at p. 344:

"[Art. V Sec. 61 applies to every 
position in the Civil Service of 
the state but within the limits 
which we have attempted to define 
in other cases, the Legislature 
may determine either its practi­
cability to ascertain merit and 
fitness for a particular position 
by competitive examination, or, 
indeed, by any examination.
(Emphasis added.)

Similarly, Babylon v. Stengel, 43 Misc. 2d 
196, 198 (1964), (Appellants' Brief p. 19), in which 
petitioner sought to have the position of assistant 
public welfare officer placed in the exempt category, 
explicitly reiterated the standards set forth in Ottinger 
supra, p. 19.



34

THE COURT BELOW CORRECTLY FOUND 
THAT PETITIONERS HAD NO VESTED 
RIGHT TO HAVE APPOINTMENTS, ON 
A RANKED COMPETITIVE BASIS OR 
OTHERWISE, AND THAT THE LEGIS­
LATIVE CHANGE IN SECTION 2573 
SUBDIVISION 10 HAD NO RETRO­
ACTIVE EFFECT.

POINT II

Appellants claim that under the circumstances 
of this case, the law entitles them to appointment on 
a ranked competitive basis (Appellants' Brief p. 27).
This contention is based on their assertion that res­
pondent Board of Education considered the examination 
to be a competitive one throughout the examination 
process, and that this entitles petitioners to have the 
examination treated as such.

Appellants however are in error on the facts.
As intervenors-respondents have pointed out herein 
(supra, p. 2), nothing in the examination announcement 
(A. 58) stated that the examination was to be a ranked 
competitive one. Furthermore, there is absolutely no 
indication that the method of administering or otherwise 
"treating" the examination would have in any way differed 
based on whether the ultimate list promulgated therefrom 
were ranked or unranked. The fact that respondent 
Theodore Lang wrote a letter long after the examination 
was completed, stating that the list would be ranked,



35

confers on petitioners absolutely no right to appoint­
ment on a ranked basis.

As the court below correctly pointed out (A. 17), 
Section 2573 subdivision 10 deals only with appointments. 
Petitioners gained no right to appointment by taking and 
passing an examination. Appointments to the position in 
question, as noted heretofore, are the exclusive power of 
community school boards (§ 2590-j 4(d)). Thus, as the 
court below correctly found, the fact that the statute 
prescribed appointments on a ranked basis at the time 
of the examination, endowed petitioners with no right to 
actual appointments being made on such a basis. But 
even under the old statute, an appointment need only be 
made from among one of the top three. Even the first 
name on the list could continually be passed over. Thus 
appointments were never guaranteed, even under the ranked 
competitive system. Nor did the former statute preclude 
the Legislature from altering the method of appointment 
in the future.

"There can in the nature of things 
be no vested right in an existing 
law which precludes its change or 
repeal nor a vested right in the omission to legislate on a particu­
lar subject. In no case is there an 
implied promise on the part of the 
State to protect its citizens against 
incidental injury ordered by changes 
in the law." Kornbluth v. Reavy, 261 
A .D. 60, 63, motion for leave to 
appeal denied, 285 N.Y. 859.



36

Thus, even if the examination had been announced 
as a ranked competitive one, this would in no wise preclude 
the Legislature from validly amending the statute as it 
did.

Appellants contend further, however, that the 
statutory change was applied retroactively in violation 
of their vested rights (Appellants' Brief p. 33). Since 
it has already been established that they had no such 
vested rights, such retroactive application could not 
aggrieve petitionevs. Howe^r, as the court below cor­
rectly noted (A. 17), the statutory change was not applied 
retroactively, because it dealt only with appointments 
and was passed by the Legislature before the list was 
promulgated. For all these reasons, appellants' citations 
of cases (Appellants' Brief pp. 34-36) dealing with the un­
constitutionality of taking away vested rights retroactively 
by legislative or administrative action, are inapposite.



37

THE COURT BELOW CORRECTLY FOUND 
PETITIONERS LOST NONE OF THEIR 
RIGHTS TO VETERANS' PREFERENCES 
AS A RESULT EITHER OF THE CHANGE 
IN SECTION 2573 SUBDIVISION 10 
OR IN THE ACTIONS OF THE BOARD 
OF EDUCATION.

POINT III

Appellants assert that some of their number 
have in effect been deprived of veterans1 credits due 
them under Article V Section 6 of the New York State 
Constitution because they applied them to the assistant 
principal's list at issue herein in order to raise 
their relative standing on a ranked competitive list; 
but, having so applied their credits, they could not 
apply them to any other civil service list because of 
the one-time limit in said Article V Section 6, whereas 
their application to the assistant principal's list 
became worthless since the list was ultimately an un­
ranked one (Appellants' Brief pp. 38-40).

This alleged grievance can be disposed of in 
short order. As the court below correctly noted, Section 
85 subdivision 4 of the Civil Service Law provides that 
where the additional veterans' credits do not affect a 
candidate's relative standing where the list is published 
or names therefrom certified, the candidate is deemed 
not to have used the credits. Moreover, both Section 85



subdivision 5 of the Civil Service Law, and the 
official policy of the Board of Examiners (A. 92), 
make it clear that such bonus points can be withdrawn 
by the candidate prior to actual appointment, and 
hence used at a later time. Thus, none of appellants 
has suffered a grievance with regard to veterans'

38

bonus credits.



39

POINT IV

THE COURT BELOW CORRECTLY FOUND 
THAT PETITIONERS WERE DEPRIVED OF 
NO CONTRACTUAL RIGHTS AS A RESULT 
OF ANY ACTION BY THE LEGISLATURE 
OR THE BOARD OF EDUCATION.

Appellants contend that the retroactive 
application of the amendment to Section 2573 subdivi­
sion 10 violated the terms and conditions of an alleged 
contract which had come into effect when they paid a 
fee to take an examination which had been announced by 
the Board of Examiners. They cite no authority for 
this proposition. Even if there were a contract, none 
of its terms were violated in that, as heretofore noted, 
the examination announcement (A. 59) mentioned nothing 
about competitive appointments.

In fact, however, the fee is a charge which 
may be instituted at the discretion of the agency (Civil 
Service Law, § 50 subd. 5(b)), and is analogoug to a 
user fee or special assessment to offset the cost of 
the service provided. The court below thus correctly 
found that payment of this fee created no rights other 
than the right to be admitted to the examination (A. 19)



40

CONCLUSION

The judgment appealed from should be upheld 
and the petition dismissed.
Dated:

Respectfully submitted,

JACK GREENBERG ELIZABETH B. DuBOIS 
STEPHEN G. YOUNG

for intervenors-RespondentsAttorneys