Chance v. Board of Examiners Brief of Plaintiffs-Appellees

    To be argued by 
ELIZABETH B. DuBOIS

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

BOSTON M. CHANCE, LOUIS C. MERCADO, et al.,
Plaintiffs-Appellees,

-against-
THE BOARD OF EXAMINERS,

Defendant-Appellant,
-and-

THE BOARD OF EDUCATION OF THE CITY OF NEW YORK 
and the CHANCELLOR OF THE CITY SCHOOL DISTRICT,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF OF PLAINTIFFS-APPELLEES

ELIZABETH B. DuBOIS (Legal Action Center of the 
City of New York, Inc.) 

271 Madison Avenue 
New York, New York 10016 
(212) 679-6502
GEORGE COOPER
435 West 116 Street
New York, New York 10027
JEANNE R. SILVER
20 West 40 Street
New York, New York 10018
JACK GREENBERG 
DEBORAH GREENBERG 
10 Columbus Circle New York, New York 10019
Attorneys for Plaintiffs-Appellees

Printinghouse Press — Bar Ass’n Steno Serv, (Appeals Section) 212-687-0384



CONTENTS
Page

INTRODUCTION AND SUMMARY..................................  2
ISSUES FOR R E V I E W .........................................13
COUNTER-STATEMENT OF THE CASE . . . . . . . . . . . . . . .  13

ARGUMENT
I. WASHINGTON V. DAVIS PROVIDES NO BASIS FOR REOPENING THE

ISSUES.RESOLVED BY THE FINAL CONSENT JUDGMENT OF 1973
AND RELIEVING DEFENDANT BOARD OF EXAMINERS OF THE 
CONSTRAINTS IT IMPOSED ................................
A. The Examiners’ Request that the 1973 Final Consent 

Judgment be Vacated and This Case Dismissed in Its 
Entirety is Precluded by the Doctrine of Res Judicata 24

B. Even Were the Court Free to Reopen the 1973 Final
Consent Judgment and Reconsider the Merits of This 
and the District Court's Earlier Decisions Granting 
Preliminary Relief, Washington v. Davis Would Not 
Authorize Vacation of the 1973 Judgment, and 
Dismissal of the Action Would in any Event Not be 
Permissible...................................... 27
(1) This Court’s 1972 decision upholding the grant

of preliminary relief was based on standards 
entirely consonant with Washington v. Davis . . 27

(2) Were the 1973 consent judgment to be vacated, 
the dismissal requested by the Examiners could 
not lawfully be granted; plaintiffs would be 
entitled to litigate the merits of their claims 32

C. The 1973 Final Consent Judgment Cannot be Vacated 
Pursuant to F.R.Civ.P. 60 Because the Constraints 
It Imposed simply Prohibit the Examiners from 
Administering an Unlawful Examination System, and
are therefore in No Way Inequitable or Oppressive. . 34
--- The requirements for relieving defendants of 

the constraints imposed by a final decree are 
especially stringent where, as here, the decree 
was entered by consent and extensive action has 
been taken in reliance on it, including action 
giving defendants the benefits of their bargain 40



ii

Page
II. THE DISTRICT COURT’S 1976 ORDER MODIFYING ITS 1975

ORDER AND APPROVING THE DEFENDANT BOARD OF EDUCATION'S 
MODIFIED PLAN FOR ESTABLISHMENT OF A PERMANENT SUPER­
VISORY SELECTION SYSTEM MUST BE AFFIRMED.............. 43
A. The Court had no Choice but to Approve the Modified 

Plan Since It had been Proposed by the Defendant 
Board of Education in the Exercise of Its Plenary 
Power over the City School System, and Agreed to by
Plaintiffs . . . . . . .  ................  . . . . .  46
--  The Examiners’ objections to the legality of

the Modified Plan are without merit
(1) State l a w ............ ..................51
(2) Federal l a w ............................ 60

B. In Any Event, the Court Clearly had Discretion,
Pursuant to F.R.Civ.P. 60, to Modify Its 1975 Order 
Approving the Original Plan and, since the Modified 
Plan was more likely to serve the Purposes of the 
1973 and 1975 Orders, that Discretion was Properly 
Exercised.......................... ..............61
(1) The stringent requirements for modification of 

certain final decrees were not applicable here. 63
(a) The modification here was designed to 

further rather than frustrate the purposes
of the earlier court o r d e r s ............ 63

(b) The 1975 Order approving the Original Plan
was not entered by consent and even if it 
had been, its modification involved no 
problems of fairness to the Examiners . . 65

(2) The modification here was appropriate since the 
evidence demonstrated that the Modified Plan was
was more likely than the Original Plan to produce a nondiscriminatory and job-related 
selection s y s t e m ...............................66

C. The Relief Requested by the Examiners Would in no 
Event be Appropriate -- the Examiners’ Motion to 
"Implement" Cannot be Granted ....................  68

CONCLUSION................................................... 71



1X1

TABLE OF AUTHORITIES 

Cases
page

Ackerman v. United States, 340 U.S. 193 (1950)........  35
Altman v. Lang, 44 Misc.2d 751, 255 N.Y.S. 2d 

284 (Sup.Ct. N.Y.Co. 1965), aff'dmem.,
23 A.D.2d 820, 259 N.Y.S. 2d 779 (1st Dept.
1965), aff'd mem., 17 N.Y.2d 464, 266 N.Y.S.2d
975, 214 N.E.2d 157 (1965).......................  56, 59

Armstead v. Starkville Municipal Separate
School District, 461 F.2d 276 (5th Cir. 1972)..,.. 29

Barnett v. Fields, 196 Misc.2d 339, 92 N.Y.S.2d 117 
Sup. Ct. N.Y.Co. 1949), 276 App. Div. 903,
94 N.Y.S.2d 904 (1st Dept. 1950), aff'd mem.
301 N.Y. 543, 93 N.E. 346 (1950). ,77777.777...... 57

Board of Education v. Nyquist, 31 N.Y.2d 468,
341 N.Y.S.2d 441, 293 N.E.2d 8i9 (1973)..........  53

Chrysler Corp. v. United States, 316 U.S. 556 (1942).... 66
Collins v. City of Wichita, 254 F.2d 837

(10th Cir. 1958)............... .................. 35
Conrad v. Goolsby, 350 F.Supp. 713

(N.D. Miss 1972). ............. .................. 29
Council of Supervisory Ass'ns of Public Schools

of New York v. Board of Education, 23 N.Y.2d
458, 297 N.Y.S.2d 547, 245 N.E.2d 204 (1969)..... 49

Equal Employment Opportunity Comm'n v. United 
Ass'n of Journeymen & Pipefitting Indus, 
of U.S. & Canada, Local Union No. 189,
438 F.2d 408 (6th Cir. 1971), cert, denied,
404 U.S. 832 (1971)................ .............. 66

Fort Motor Co. v. United States,
335 U.S. 303 (1949)......... ..................... 62

Foster v. Mobile County Hospital Board,
398 F.2d 227 (5th Cir. 1968).............. ...... 29

Gautreaux v, Chicago Housing Authority,
402 U.S. 922 (1971).................. ............ 70



IV

Humble Oil & Refining Co. v. American Oil Co.,
405 F.2d 803 (8th Cir. 1969), cert, denied,
395 U.S. 905 (1969)..........77777.777777.......  37

Jones v. Jones, 217 F.2d 239 (7th Cir. 1954)..........  68
Jones v. Schellenberger, 225 F.2d 784 

(7th Cir. 1955) cert, denied, -
350 U.S. 989 (1956177,777777..................... 24 , 25

King-Seeley Thermos Co. v. Aladdin Indus., Inc.,
418 F. 2d 31 (2d Cir. 1969).......................  66

Loucke v. United States, 21 F.R.D. 305
(S.D.N.Y. 1957)......... ......................... 35

Lubben v. Selective Service System
Local Bd. No. 27, 453 F.2d 645 (1st Cir, 1972)___ 35, 39

Matter of Appeal of Certain Members of the 
Board of Examiners, 34 State Dept. Rep
183 (1926)........................ . . 54

Matter of Appeal of the Board of Examiners,
73 State Dept. Rep. 20 (1952).............. 54

Matter of the Jurisdiction of the Board of
Examiners, 25 State Dept. Rep. 275 (1921)...... 48, 54, 55

Matter of Young v. Trussel, 42 Misc.2d 108,
247 N . Y . S. 2d 603 (1964)............... ........... 56, 57

McCone v. Crane, 174 F.2d 646 (5th Cir. 1949).........  25
Ottinger v. Civil Service Commission,

240 N.Y. 435, 148 N.E. 627 (1925)................  57
People ex rel Sweet v. Lyman, 157 N.Y. 368 (1898)..... 59
Pennsylvania v. Wheeling & Belmont Bridge Co.,

18 How. (59 U.S.) 421 (1856)..................... 37
Perrone v. Pennsylvania R.R. Co.,

143 F. 2d 168 (2d Cir. 1944).................... . 25
Rineri v. News Syndicate Co.,

385 F. 2d 818 (2d Cir. 1967) (Kaufman, J.)........  35
SEC v. Thermodynamics, Inc. 319 F.Supp. 1380 

(D. Co.o. 1970), aff'd, 464 F.2d 457 
(10th Cir. 1972), cert, denied,
410 U.S. 927 (1973)............. ................. 40

page



V

Semmes Motors, Inc. v. Ford Motor Co.,
429 F. 2d 1197 (2d Cir. 1970).....................  68

Sloat v. Board of Examiners,
274 N.Y. 367, 9 N.E.2d 12 (1937).................  58

page

Standard Newspapers, Inc, v. King,
375 F,2d 115 (2d Cir. 1967) )per curiam)...... . 68

Steven v. Campbell, 332 F.Supp. 102 (D. Mass, 1971)..,, 29
Stuyvesant Ins. Co. v. Dean Const. Co.,

254 F.Supp. 102 (S,D .N ,Y . 1966), aff'd sub nom,
Stuyvesant v. Kelley, 382 F.2d 991
(2d Cir. 1967).................... . 26

System Federation No. 91 v. Wright,
364 U.S. 642 (1961)....... ................... 38, 61, 66

Theriault v. Smith, 523 F.2d 601 (1st Cir. 1975)...... 37
Title v. United States, 263 F.2d 28 

(9th Cir. 1959), cert, denied,
359 U.S. 989 (1959).............................. 35

United States v. Armour & Co., 402 U.S. 673 (1971).... 41
United States v. Kerahalias, 205 F.2d 331

(2d Cir. 1953)................................ . . , 35
United States v. Lager Brewing Co., of

San Francisco, 209 F.Supp. 665 (D.C, Utah 1962.,,. 43
United States v. Swift & Co.,

286 U.S. 106 (1932)................. ............. 36, 39,
40, 64United States v. Swift, 189 F.Supp. 885 

(D.C. 111. 1960), aff'd per curiam,
367 U.S. 909 (196177777....777777, - . ______ 41

United States v. United Shoe Mach Corp.,
391 U.S. 244 (1968)....................... ....... 36, 62,

64, 66
Vulcan Society et al., v. Civil Service 

Commission et al., 490 F.2d 387
(2d Cir. 1973)............... . ............ ....... 44

Wagner v. Wamasch, 156 Tex 334,
295 S . W. 2d 890 (1956)........................ . 70



vi

Wallace Clark & Co. v. Aches.on Industries, Inc.,
394 F.Supp. 393 (S.D.N.Y. 1975), aff'd,
532 F. 2d 846 (2d Cir. 1976).....7TT77...........  26, 35

Washington v. Davis, 96 S.Ct. 2040 (1976).......... 3, 4, 13,
23, 24, 25, 
26, 27, 28, 
29, 30, 31, 
32, 35, 39

Wirtz v. Graham Transfer & Storage Co.,
322 F . 2d 650 (1963).................. ............ 40

Statutes and Regulations

E.E.O.C. Guidelines on Employee Selection
Procedures, 29 C.F.R. Part 1607 .......  60

Federal Rules of Civil Procedure 54 ..........  15
Federal Rules of Civil Procedure 60 ............... 27, 34, 35,

36, 38, 39, 
‘ 40, 61, 63

Federal Rules of Civil Procedure 70 ..... ............. 70
N.Y. Education Law §2254 .................................. 69
N.Y. Education Law §2552     47
N.Y. Education Law §2573(10) ....54, 60
N.Y. Education Law §2590-a(l) .... ......    47
N.Y. Education Law §2590-j (3) (b) (2)   57
Proposed Uniform Guidelines on Employee

Selection Procedures, 41 Fed. Reg. 29016 (1976)... 60
42 U.S.C. §1981. ............... . , ...................... 31, 33
42 U.S.C. §1983. ..................................... 13

page



V I 1

Other Authorities

page
Cooper and Sobel, Seniority and Testing

Under Fair Employment Laws: a General
Approach to Objective Criteria of 
Hiring and Promotion,
82 Harv. L. Rev. 1598 (1969).....................  61

Moore, Federal Practice (2d ed. 1974)........... 35
Wright & Miller, 11 Federal Practice and

Procedure (1973) /.............................. 35, 36,
39, 43, 

, 63, 6662



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

NO. 76-7348

BOSTON M. CHANCE, LOUIS C. MERCADO, et al.,
Plaintiffs-Appellees,

-against-
THE BOARD OF EXAMINERS,

Defendant-Appellant,
-and-

THE BOARD OF EDUCATION OF THE CITY OF NEW YORK 
and the CHANCELLOR OF THE CITY SCHOOL DISTRICT,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF OF PLAINTIFFS-APPELLEES

This is an appeal from an order of the district court 
entered July 7, 1976, modifying its previous order of March 25, 
1975.

Plaintiffs and the defendant Board of Education join in 
urging this Court to affirm the order below. The only appellant 
is the defendant Board of Examiners, a subordinate arm of the 
Board of Education.

The Board of Education joins with plaintiffs in the 
position set forth in this brief as indicated in the Board's 
Brief, with the limited exception therein described.



-2-

INTRODUCTION AND SUMMARY
The only issue on appeal is whether the district court 

(Pollack, J.) erred in approving a permanent system for the 
selection of school supervisors proposed by defendant-appellee 
Board of Education •—  the body responsible for administration 
of the City’s school system.

Since the Board of Education's proposed system has 
been consented to by plaintiffs, affirmance of the order below 
should finally end this litigation that has consumed the time of

c
the parties and the courts for over six years, resulting in

1/dozens of district court hearings, eight appeals to and four2/
decisions by this Court, and two petitions for certiorari in

3/
the United States Supreme Court.

Since the Board of Education's proposed system is 
capable of immediate implementation, it would accomplish the 
goal urged on the parties by this Court and the district court 
for many years -- establishment of a permanent selection system 
to replace the interim systems that have operated since the 
defendants' old examinations were preliminary enjoined in 1971.

The district court docket sheet is seventeen pages long.
Joint Appendix I-A-18a [hereinafter numbers followed by "a" 
refer to volume and page of the Joint Appendix].

2d Cir. Nos. 71-2021 [458 F.2d 1167 (1972)]; 73-2320, 73-2476 
[496 F.2d 820 (1974)]; 74-1334 [497 F.2d 919 (1974)(dismissed 
without opinion)]; 75-7161, 75-7164 [534 F.2d 993, 1007 (1976)]; 
76-7348 and 76-7470 (both pending).
—'f U.S. Sup. Ct. No. 73-7046 [Cert, denied, 95 S.Ct. 123 (1974)]; 
No. 76-344 (pending petition by CSA on excessing issue on which 
CSA was granted rights of limited intervenor).



-3-

And finally and most important, as Judge Pollack found 
at the hearing below, the Board’s proposed system appears de­
signed to remedy the evils of the old examination system which 
prompted this litigation, by providing for nondiscriminatory and 
job-related examinations, suited for the selection of school prin­
cipals and other supervisory personnel in this City’s school system.

Reversal on either of the grounds urged by defendant- 
appellant Board of Examiners [hereinafter the Examiners] would, 
by contrast, perpetuate this litigation without warrant and for 
no conceivable benefit.

The Examiners argue first that the Supreme Court's 
decision in Washington v. Davis. 96 S.Ct. 2040 (1976), requires 
vacation of the Final Consent Judgment entered in this case in 
1973, and dismissal of the case in its entirety. The 1973 Judg­
ment is not, of course, the judgment here on appeal, nor was its 
validity raised below. That Judgment resolved the basic issues 
regarding liability and plaintiffs' right to relief, enjoining 
administration of defendants’ old examination system and pro­
hibiting administration of any new system without court approval. 
Those issues were resolved in a manner entirely consistent with 
Davis. And the doctrine of res judicata precludes reopening the 
issues resolved by the 1973 Judgment in any event. Finally, 
the constraints imposed by the Judgment have in no way been 
transformed by the Davis decision into an "instrument of wrong," 
imposing the kind of hardship and oppression justifying modifica- 
of a final decree. Those constraints consist solely of prohibit­
ing the Examiners from re-instituting an examination system



-4-

concededly unlawful under present standards of law, and from 
instituting any allegedly new system without court approval.

But even if this Court could vacate the 1973 Judgment 
it could not grant the Examiners the relief sought -- dismissal 
of the action. The only relief appropriate would be to reopen 
the case and permit the parties to relitigate the legality of 
the old examination system —  a system that has been enjoined 
since 1971 and that is clearly unlawful. Dismissal would be 
impermissible not only because it would deny plaintiffs the 
chance to establish their right to relief, but it would deny 
others the chance to challenge the relief already granted. If 
the Examiners were right that Davis undermined the validity of 
the 1973 Final Consent Judgment, then the validity of the relief 
granted pursuant to that Judgment (and the previous preliminary 
injunction) is necessarily in question. That relief has involved 
the permanent licensing and/or placement of thousands of super­
visors. While the Examiners say they have no interest in unrav­
eling the relief granted to date (Brief p. 27 fn.**), those per­
sons who would have obtained licenses and jobs but for that relief 

3/may well. The Examiners cannot waive their rights. The case

4/— Over 1100 supervisors have received permanent licenses to date 
pursuant to the 1973 Final Consent Judgment (I-C-696a); many others 
have received appointment on an acting or provisional basis, or 
their placement has been effected by the district court's various 
orders regarding transfer and excessing rights of persons licensed 
pursuant to the old system as compared to others not so licensed.
See, e.g., 7 CCH Emp.Prac.Dec. 1[9084 (1973); 534 F.2d 993, 1007(1976)
—' Indeed this is illustrated by the fact that the supervisory 
union, the Council of Supervisors and Administrators [hereinafter 
CSA] f has petitioned the Supreme Court for certiorari (and filed 
appeal No.76-7470 in this Court) challenging this Court's previous 
decision regarding excessing rights, on behalf of its members.



-5-

would therefore have to be relitigated and for no purpose since, 
as demonstrated infra, there can be no doubt but that plaintiffs 
would prevail. It is exactly this kind of waste, as well as the. 
uncertainty and potential for chaos in the school system were the 
Examiners to prevail on this appeal, that the doctrine of res 
judicata was designed to prevent.

The Examiners' other argument is that the court below 
should have refused to approve the Board of Education's proposed 
plan for a permanent supervisory selection system [hereinafter 
the 1976 "Modified Plan"] and forced the Board to implement an 
earlier plan proposed by it together with the Examiners [herein­
after the 1975 "Original Plan"], (This is the nomenclature used 
below. The Examiners refer in their brief to the two plans as, 
respectively, the "Revised Plan" and the "Permanent Plan".)

This argument relates solely to a question of the relief 
found appropriate pursuant to the 1973 Judgment. Questions re­
garding relief are entrusted to the broad discretion of the dis­
trict court, and here there can be no question but that the court's 
exercise of discretion was appropriate.

The 1976 order approving the Modified Plan did not 
mandate defendants to do anything, any more than did the 1975 
order approving the Original Plan. Both orders simply permitted. 
defendants to develop a new permanent selection system. Clearly 
it was proper to permit the defendant Board of Education, which 
has plenary power over the City school system, to go forward with 
the plan that it had decided by 1976 was best designed to produce 
a nondiscriminatory and job-related selection system. Indeed it



-6-

would have been improper for the court to force the Board to im­
plement its earlier plan unless this appeared necessary to provide 
plaintiffs the relief to which they were entitled under the 1973 
Judgment. The only other question for the court was whether the 
Board's proposed plan violated state law as argued by the Board's 
subordinate .arm, the Examiners. The court below resolved any 
possible questions as to the plan's legality under state law by 
requiring that it be amended to ensure that the Examiners had com­
plete control over the design and administration of the examina­
tions called for by the Plan. As amended the plan was virtually 
identical to the interim examination system upheld by this Court 
on a previous appeal as satisfying state law requirements. The 
court then had no choice but to approve the plan. To do otherwise 
would have constituted unwarranted intervention by a federal court 
in a local board of education's affairs.

The 1976 Modified Plan provides for a two-step examina­
tion process. An "unassembled examination" at Step 1 will deter­
mine whether candidates satisfy certain education and experience 
requirements and are entitled to provisional appointment. An 
evaluation of actual performance on the job at Step 2 will deter­
mine whether candidates have in fact the qualities necessary for 
successful performance and are entitled to receive licenses and 
permanent appointments. This emphasis on on-the-job performance 
evaluation as the central and ultimate criterion of success or 
failure is the key to the Modified Plan, as it was to the Original 
Plan. (Significantly the Examiners ignore throughout their Brief



-7-

both the existence of the key Step 2 on-the-job evaluation, and 
the fact that Judge Pollack's amendment of the Plan gave them the 
full examining power at this as well as Step 1.)

Acceptance of the Examiners' argument that the Original 
Plan should be implemented would again totally undermine the goals 
of promptly ending this litigation and establishing a permanent 
and lawful selection system. The main difference between the 
Original and the Modified Plans is that the Original called for 
elaborate additional screening tests at Step 1, and for job analy­
ses to be conducted as a basis for developing these tests. It is 
difficulties in preparing these screening tests, which serve little 
real purpose in light of the ultimate on-the-job performance test, 
that stymied implementation of the Original Plan. The job anal­
yses developed by the Board of Education's experts pursuant to the 
Original Plan were found by the Board to he an invalid basis for 
developing legal Step 1 tests. Thus the Board of Education would 
have to begin anew to implement the Original Plan. Since that 
plan has been in effect since March, 1975 and has produced nothing 
to date, and the Board of Education does not believe that plan is 
capable of producing a viable system, it is difficult to believe 
that an order to implement it will be anything but futile. At 
best it would take several months to develop adequate new job 
analyses, and additional months to develop the elaborate Step 1 
tests called for by that plan. The Modified Plan would involve 
none of this delay.

And if the Original Plan were to be implemented there 
can be little doubt but that the examination system thereby



-8-

instituted would be the subject of the same kind of litigation 
that has engulfed the courts for the past six years. Indeed one 
of the Board of Education’s main reasons for proposing the Modi­
fied Plan was its concern that the Original Plan was not likely

6 /to produce a nondiscriminatory and job-related system, and
J Jtherefore that it would be subject to legitimate court challenge.

The Examiners’ appeal must be seen as simply a last
desperate attempt to reinstitute the kind of examination system
they seem inalterably wedded to -- a system which maximizes their
power and prestige but which has little to do with the selection

_8/of the most qualified supervisors. Virtually all those concerned

—^  Counsel for the Board stated at the hearing below:
...changed circumstances since March of 1975 have 
demonstrated that the original plan has little 
likelihood of achieving its primary goal, which is 
to develop a non-discriminatory and job-related 
supervisory selection system.

I-C-892a.
—  Counsel for the Board stated at the hearing below:

What we are trying to avoid is a repeat of years 
and years of litigation of the old system or 
similar systems to the old system..,.I-C-883a
It [the Board of Education] just can't allow the 
Board of Examiners to prepare exams in a vacuum and 
then, five years from now to have a new Chance 
lawsuit. I-C-886a.

See generally I-C-884-86a.
— ! As counsel for the Board of Education pointed out in the 
hearing below:

I think that it is true that under Step 1 we give 
them [the Examiners]...less jobs and probably less 
work to do than they would like, and I think that 

(footnote continued next page)



-9

with educational reform are agreed on the importance of reducing 
reliance on traditional written tests and making performance 
evaluation the major component of any supervisory selection system,

9jas it is in the Modified Plan. The Examiners clearly see this 
as a threat to their role, apparently because they are unable to 
conceive of any real tests other than the pen and paper tests . 
they have traditionally administered. Despite the Examiners' talk 
of a "new" system, the fact they condemn the Board of Education 
for its failure to adopt invalid job analyses as the basis for 
that new system demonstrates that they have not even begun to

(footnote continued)
is their basic problem here.

But I think that the City School District, its 
needs, the need to end this litigation -- that has 
to become and should be paramount and not the 
desire of the Board of Examiners to have a lot of 
jobs and prestige and work for themselves,I-C-891a.

_£/ See, e.g., "Memorandum Regarding Reform of Personnel Selec­
tion Procedures for New York Public School System by Establishment 
of a New Two-Step Performance-Based Certification System," Septem­
ber 15, 1973, prepared by the Public Education Association, pre­
viously submitted to this Court as Appendix A to plaintiff- 
appellees' brief on appeal No. 73-2320, This memorandum analyses 
more than a dozen authoritative studies of the City schools per­
sonnel selection system, made over the past twenty years, all of 
which called for substantial reform. It notes

...[0 ]n-the-job performance evaluation is a key 
element of the reform proposals urged in many of the 
major studies reviewed in...this memorandum. Perform­
ance evaluation should be a keystone in_whatever new 
system of selection, appointment, and licensing is to 
be enacted for the future.^ 29)

See also Tractenberg Aff., I-C-711a, 773a; Christen Aff. 132, 
I-C-965-66a.



-10-

understand or accept the necessity for change. The Examiners’ 
intransigence is further demonstrated by their request that the 
injunction prohibiting administration of their old examinations 
be lifted because it ’’would indefinitely enjoin defendants from 
pursuing methods of testing which are perfectly valid and legal.” 
(Examiners’ Brief p. 27).

It is significant in this connection that the Examiners 
have failed to reform the examinations used to select teachers, 
which are comparable in nature to the supervisory examinations 
outlawed in Chance. And the Office for Civil Rights of the 
Department of HEW has just recently informed the Board of Educa­
tion that the City School System's teacher selection procedures 
are racially discriminatory and non job-related, and therefore 
that the school system is in non-compliance with Title VI of the 
Civil Rights Act of 1964 (judged by standards identical to those

11Japplicable under Title VII),

— / Thus here as in the court below the Examiners condemn the 
Board for failing to adopt the job analyses developed by its con­
sultants as the basis for development of new supervisory examina­
tions. (Brief pp. 5-6, 14, 81) But the Board had concluded, by the 
very process of consultation mandated by the Original Plan, that 
those job analyses were inadequate and could not be used as the 
basis for developing a valid, job-related examination system. See 
p. 20 n. 20 infra.
11/ See generally report by letter of Martin H. Gerry, Director, 
Office for Civil Rights, to the Chancellor, dated November 9, 1976. 
That report, resulting from "the most comprehensive review ever 
undertaken by the Office for Civil Rights,” concludes that the New 
York City school system has "denied minority teachers full access 
to employment opportunity through the use of racially discrimina­
tory selection and testing procedures.” (p. 1) See also pp. 2, 4, 
5-6, Appendices C, D, G, H.

A federal lawsuit challenging the teacher tests as racially 
discriminatory and non job-related has also been filed. I-C-886a.



-11-

Judge Mansfield struck down the Examiners' old super­
visory examination system as totally unfit. He and two successive 
district court judges -- Judges Tyler and Pollack -- resisted 
attempts by the Examiners to reinstitute their old examination

111system, or allegedly "new" systems sharing its characteristics. 
This appeal must be seen as simply one in a series of similar 
attempts, and the Examiners* request that this Court reverse the 
district court's previous decisions denying such attempts must be 
rejected out of hand.

The Examiners stand alone in their resistance to devel­
opment of a reformed selection system, as they have throughout 
this litigation. When suit was filed, the Chancellor of the City 
School System stated that he would not defend because to do so:

...would require that I both violate my own profes­
sional beliefs and defend a system of personnel 
selection and promotion which I no longer believe 
to be workable.

458 F .2d 1167, 1169 (1972), 
quoting from 330 F.Supp. at 
219-20.

The Board of Education also failed to defend the old examination 
system either on the district court level or on appeal. Ibid. 
Counsel for the Board below characterized the Examiners' old

12J The Examiners' attempts to implement allegedly "new" or re­
formed examination systems were twice rebuffed by Judge Mansfield: 
II-251-55a; I-A-83-124a. The Examiners refused even to implement 
the on-the-job performance examinations mandated by the 1973 
consent judgment until forced to do so by Judge Tyler after plain­
tiffs had brought two separate motions for compliance. See plain­
tiffs' proposed order and supporting papers dated April 1 and 9, 
1974; Order dated April 15, 1974, modifying the July 12, 1973 
Orders; plaintiffs' motion for contempt and alternate relief and 
supporting memorandum, dated December 3, 1974; Dec. 17, 1974 
hearing, Tr. pp. 23-27.



-12-

system as "totally irrelevant to the needs of the school system" 
(I-C-885-86a), and made it clear that the reason for the Board of 
Education's Modified Plan was its concern that the Original Plan 
would simply allow the Examiners to perpetuate that kind of 
system. (I-C-883-86a)

The Board of Education has now assumed responsibility
that it had previously abdicated but that is its under state and
federal law -- that of determining the qualifications for which

13/supervisors are to be tested, and of assuring that its super­
visory selection system is nondiscriminatory and job-related. 
Pursuant to that responsibility it has developed a plan that 
promises finally to provide the City school system with a method 
designed to select the best qualified supervisors. Plaintiffs 
have consented to this system and the court below has found that 
it does in fact appear designed to remedy the evils inherent in 
the old system.

This Court's only role is to determine whether Judge 
Pollack's order approving the Board of Education plan, as amended 
to comply with state law, violates federal law or constitutes an 
abuse of a district court's discretion regarding relief. As dem­
onstrated below, the court's order comports with federal law and 
constitutes entirely appropriate relief.

— / One of the allegations in plaintiffs' complaint was that the old examination system violated state law because the Board 
of Education had failed to establish such qualifications and 
had unlawfully delegated its responsibility for the examination 
system to the Examiners. See Amended Complaint 28 and prayer 
for relief K (a) and (c) , II-152-54a.



-13-

ISSUES FOR REVIEW

1. Does the Supreme Court’s decision in Washington v. 
Davis, 96 S.Ct. 2040 (1976), require reopening the issue of liabil­
ity resolved by the Final Consent Judgment entered in 1973?

2. Does the district court’s 1976 order approving a 
plan for establishment of a permanent system for the selection of 
supervisors proposed by defendant Board of Education constitute 
an abuse of discretion regarding relief, where the Board of Edu­
cation is the body with plenary responsibility for that system, 
where the court modified that plan to ensure that it accorded the 
Board's subordinate agency, the Examiners, authority to design 
and administer the tests called for by that system, and where 
plaintiffs have consented to the order?

COUNTER-STATEMENT OF THE CASE

This suit was filed in September of 1970, Plaintiffs 
challenged the legality of the system of selecting school super­
visors administered by the defendant Board of Education and the 
defendant Examiners. The challenge was based on allegations,,
inter alia, that defendants' examinations were racially discrim-

*inatory and were not job-related but, rather, constituted an 
irrational method of selecting school supervisors, designed to 
prevent rather than promote selection of the best qualified. 
Plaintiffs charged that the system accordingly violated federal 
law (42 U.S.C. §§1981 and 1983), as well as state statutory and



-14-

constitutional provisions. See generally Amended Complaint, 
II-139-54a.

Plaintiffs' motion for preliminary relief resulted in
litigation on two of the issues raised -- (1) the discriminatory
impact of defendants' examinations, and (2) their rationality.

14/On the basis of an extensive record, then district Judge 
Mansfield granted preliminary relief in July of 1971, 330 F.Supp,
203 (1971); II-179a. He found that the examinations had a sig­
nificant discriminatory impact, were not job-related and accord­
ingly violated the Equal Protection Clause of the Fourteenth 
Amendment. He did not reach the other issues raised, including 
the state law claims. 458 F,2d 1167, 1169 n. 3 (1972).

Judge Mansfield entered a preliminary injunction (II- 
257-59a) prohibiting defendants from continuing to administer 
their old examination system, and providing that no new system 
could be implemented except upon order of the court, which order 
could be issued upon motion by "any party". The injunction also 
provided for an interim system whereby applicants for school 
supervisory positions who satisfied educational and experience 
qualifications established by the Board of Education could be 
appointed on an acting basis without regard to whether they held 
licenses granted pursuant to the old system.

— / The record on these issues was equivalent to that which 
would have been produced at trial, involving "a plethora of 
lengthy affidavits and exhibits, a hearing at which oral testi­
mony was taken, a series of arguments, and extensive briefing of 
the law and facts by the parties." 330 F.Supp at 207; II-183a.



15-

This Court (Feinberg, J.) upheld the grant of prelimi­
nary relief in April of 1972 on the ground that the old examina­
tion system failed to satisfy even the most lenient Equal Protec­
tion standard since it bore no rational relationship to any 
legitimate state purpose. 458 F,2d 1167 (1972). The Examiners 
did not petition for certiorari, nor did they request a trial on 
the merits.

Extensive negotiations led to a Stipulation of Settle­
ment (I-A-125a) and in July of 1973 to the Final Consent Judgment 
between plaintiffs and defendant Examiners (I-A-250a). This
Judgment settled the fundamental issue of liability and right to 

15/relief. It permanently enjoined defendants from administering
their old examination system (I-A-252-53a at H11), and it provided 
the plaintiff class with two other forms of relief: (1) a revised
interim selection system pursuant to which supervisory applicants 
would be licensed and appointed based on an evaluation of their 
on-the-job performance, pending establishment of a permanent new 
system (I-A-254-55a at Mill C, V); and (2) a prohibition against 
the institution of any permanent new system by defendants without 
their having first attempted to agree upon a system with plain­
tiffs and having obtained court approval.

The Judgment made clear that development of the perma­
nent new selection system was to be the subject of negotiations

15/ The Stipulation was "to finally resolve the issues raised in 
this action with respect to past supervisory examination pro­
cedures..." (I-A-128a). It provided that the judgment entered 
pursuant thereto would "be clothed with finality, pursuant to 
Rule 54(b)___" (I-A-137-38a).



-16-

by the parties and was ultimately subject to the further juris­
diction of the court. Thus the Stipulation of Settlement referred 
to the fact that plaintiffs and defendants had ’’established a task 
force consisting of their representatives to continue discussions 
aimed at developing and recommending a new comprehensive super­
visory selection system," and the settlement contemplated "the 
development of such a new comprehensive selection system" by this 
joint plaintiff-defendant task force. (I-A-127a, 128a) And the 
Judgment provided that if the parties were unable to agree upon a 
plan for a new permanent selection system, "any party" would be 
free to apply for an order permitting implementation of a new 
system, but only provided that first information had been exchanged 
and an attempt to reach agreement made, as had been required under 
the preliminary injunction. (See I-A-252-53a at IffII, IX-X;
Compare II-259a.)

The Board of Education objected to the Consent Judgment 
because of its concern with that Judgment's establishment of an 
interim licensing system. A modified preliminary injunction was 
entered binding the Board to all the provisions contained in the 
Consent Judgment. (I-A-260a), The Board appealed from that 
injmotion and this Court affirmed ruling, inter alia, that the 
on-the-job performance evaluations contemplated by the interim 
licensing system constituted examinations that satisfied all state 
law requirements. 496 F.2d 820 (1974).

The Board of Education subsequently agreed to be bound 
by the 1973 Final Consent Judgment (I-B-508-09a).



-17-

Negotiations regarding the future examination system • 
ensued but, contrary to the Examiners' claim (Brief pp. 10-11), 
the parties were not able to agree upon the nature of that system. 
They did agree to the outlines of a very general plan for the 
development of a new system. But plaintiffs made it clear that 
because the plan provided no guarantees as to the nature of the 
actual system that would emerge, they could only consent to the 
plan if the parties reached agreement on: (1) who was to perform 
certain key functions under the plan -- to-wit conduct of the job 
analyses and conduct of the validation studies; and (2) provisions 
relating to reporting, monitoring and court approval of the plan's 
implementation, that would enable plaintiffs and the court to 
determine whether the system that was developed complied with the 
requirements of law. The Examiners' characterization of these as 
issues of disagreement which "did not pertain to the nature and 
scope" of the future examination system (Brief p. 10 n.*) is a 
total distortion of the facts. They were a source of endless dis­
pute in negotiations, and at the time the Examiners submitted to 
the court, in May of 1974, the partial plan which omitted provi­
sions regarding these issues, plaintiffs made it clear as they had 
throughout the negotiations that their agreement to any other 
aspect of the plan was premised on reaching agreement on these 
issues. They specifically did not, as the Examiners falsely claim 
(Brief p. 10), agree to submit these issues to the court for



-18-

16J
resolution as a separate matter. Since agreement could not be
reached, the issue as to the nature of the plan for a future super
visory selection system had to be litigated. The defendants’ plan

17./was adopted over plaintiffs’ objection in March of 1975. It was 
therefore not a consent order nor was it ever, again contrary to 
the Examiners' claim, "incorporated...as part of the Consent * *

1 cj— - Thus at the May 1974 hearing before Judge Tyler, when the par­
tial plan was submitted, plaintiffs' counsel stated:

MRS. DU BOIS: ...It's plaintiff's position that this
is an agreed upon part of an overall package that we 
would like to agree to. But that that package would 
have to contain several elements that we consider es­
sential in any settlement. All that disturbed me was 
that your Honor seemed to imply that those three 
matters might be separable from this agreement.

THE COURT: No. If I said that, I beg your pardon.They have to be resolved.
MRS. DU BOIS: From our point of view, your Honor,

plaintiffs have agreed to that plan to the extent it 
exists only on the basis of their understanding or hope 
that we could reach agreement as to two matters we con­sider essential.

*  i' -k -k

THE COURT: I certainly would agree....
Nothing that has been set forth here is binding you to anything. I-A-276-78a.

The parties had made cross-motions, with plaintiffs' motion 
indicating once again that the plan submitted was satisfactory 
to plaintiffs only if the two outstanding issues were resolved 
as urged by plaintiffs, (I-B-344a, 348-52a). Thus plaintiffs 
argued that the provisions regarding consulting firms and report­
ing requirements contained in defendants' proposed plan -- that 
which was adopted essentially unchanged by the court -- "abrogate 
the conditions on which plaintiffs originally agreed upon the 
Plan and violate both the Plan's intention and the July 12, 1973 
Orders." (I-B-349a), After a hearing (I-B-459a-l-485a), the 
court granted defendants' motion and denied plaintiffs' (I-B- 
472a-85a; 487a, 508a). The Board of Education as well as plain­
tiffs made it clear below that the 1975 order was not entered by 
consent. See Christen Aff. |51 (I-B-600a) ; Silver Aff, f1[5,6 
(I-C-649-50a).



-19-

Judgment" (Examiners’ Brief p. 11), and indeed its language re­
flects the fact that it was the result of conflicting motions. 
(I-B-507-08a).

The plan approved by the court in 1975 -- the Original 
Plan -- provided for a two-step testing procedure. Job analyses 
conducted by outside consultants selected by the Board of Education 
were to determine the qualities to be tested for at Step 1. The 
Examiners were then to test for those qualities. The crucial 
element of the testing scheme however was Step 2, an on-the-job 
performance evaluation. Step 1 was designed solely to eliminate 
those who did not satisfy minimum qualifications, so as to allow 
community school boards maximum choice in selecting applicants on 
a provisional basis. The Step 2 test determined whether or not

18./persons who had served on a provisional basis were to be licensed.

The significance of the issues on which plaintiffs and 
defendants differed was confirmed by the Board's experience in 
attempting to implement the Original Plan. The very first step 
of the Original Plan -- the conduct of job analyses -- which was 
performed by consultants chosen over plaintiffs' objection, failed 
to produce analyses adequate for the development of valid Step 1 
tests. See n. 20 infra.

— / Thus under the 1975 Original Plan Step 1 was to "result in 
the provisional licensing of all eligible except those who fail 
to meet levels of minimum acceptable performance,"^(I-B-513a) 
its purpose being simply, "screening out the unqualified, con-^ 
sistent with the primary purposes of the Step 1 evaluation which 
are to ensure employing authorities the broadest possible choice 
among qualified applicants," I-B-527a. One of the major goals 
of the system was "to build in performance evaluation as a key 
component of the licensing process. " I-B-514a.



-20-

The Board of Education moved in April of 1976 to modify 
the 1975 order approving the Original Plan, to permit it to imple-

. . 1ifment a new selection system pursuant to a proposed Modified Plan. 
This motion was based on the grounds, inter alia, that (1) the
Original Plan was not likely to achieve the goal of a nondiscrimi-

20/natory and job-related supervisory selection system; and (2) the 
Modified Plan was not only capable of swifter and less costly

2jJimplementation, but was better suited to the task of selecting

19/ See generally I-B-~581-613a; I-C-647-66a; I-C-765-79a; 
I-C-795-867a; I-C-877-93a; I-C-911-19a.

20/ See generally I-B-596a, 1(24; I-C-660-61a; I-C-774-76a; I-C- 
796a; I-C-800a; I-C-863-65a; I-C-884-85a, 892a, The job analyses 
conducted pursuant to the Original Plan were, in the view of the 
Board’s experts and others who had the power to review them under 
the Plan, inadequate as a basis for the development of a valid 
examination system. (I-B-591a, 593a, 594-96a; I-C-648a, 654a, 
659a). Accordingly they had to be rejected by the Board which, 
under the Original Plan, had final authority to determine whether 
they were acceptable. (The Examiners had no authority in this 
regard. "The decision of the Board of Education... shall be final." 
I-B-517a.) Moreover experience in attempting to do the analyses 
had demonstrated that the Original Plan was inherently flawed so 
that new analyses conducted pursuant to its mandate would also 
prove inadequate.
21/ Thus the Modified Plan provided for a system capable of vir­
tually immediate implementation, whereas implementation of the 
Original Plan would have required the Board of Education to con­
duct new, time-consuming job analyses and then the Examiners to 
develop elaborate Step 1 examination procedures based on those 
analyses, a delay of many additional months and perhaps years, 
Christen Aff. H 6-8, 11(a), 12-24, 53, 55 at I-B-591a, 592-93a, 
594-96a, 600a, 601a; Silver Aff. If 11 at I-C-648a, 652a.

The enormous savings in costs represented by the Modified 
Plan was demonstrated by the Christen Aff. HU11(b), 22, 30-32 at 
I-B-591a, 593-94a, 506a, 507a; and the Silver Aff. 11[11-12 at 
I-C-648a, 652-53a.



-21-

the best qualified supervisors for the City's schools.

The Board's proposed Modified Plan (set forth at I-B- 
583-90a) retained the essential elements of the 1975 Original Plan, 
but simplified it significantly. Step 2 remained the crucial step, 
with on-the-job performance to determine licensure. Step 1 remain- 
ed designed to provide community boards with maximum choice among 
candidates satisfying basic qualifications. The key difference 
was that in the Modified Plan the Board of Education opted to 
define those Step 1 qualifications as the satisfactory fulfillment 
of certain objective educational and experience requirements, 
rather than the subjective requirements envisioned by Step 1 of
the Original Plan. Accordingly a less elaborate testing scheme 
was required at Step 1.

Judge Pollack, after exploring thoroughly at the hear­
ing below (X-C-867a-l-943a) the issues raised by the Examiners on 
this appeal, was persuaded that the Modified Plan was better 
designed than the Original Plan to accomplish the goals of the 
1973 Final Judgment and the 1975 Order--development of a non- 
discriminatory and job-related selection system. Because of 
his concern that the new system satisfy state law requirements, 
he modified the Board's proposed plan to ensure that the Examiners

22_/

22J See Christen Aff. 1fIf9—11, 24, 49, 54 at I-B-591a, 593a, 
596a, 597a, 600-01a; Silver Aff. KUO, 13-15 at I-C-648a, 652a, 
653-54a; Tractenberg Aff. 1(1(7-13, 1.6 at I-C-773-76a; 778-79a; 
Christen Aff. I-C~796a, 802a; Owens Aff. I-C-865-67a.



-22-

had full authority to design and administer the tests necessary 
to determine candidates' ability to perform at Step 2 as well as 
Step 1, thus eliminating the only possible question as to the 
new system's legality under state law. In his decision, which 
appears at I-C-929-31a, he found as follows:

The purposes of the 1975 order and judgment and the 
proposed modification are to assure a selection system 
free of discrimination in the determination of merit 
and fitness of candidates for school supervisors.
The conditions which brought on this protracted liti­

gation should, of course, not be perpetuated by slavish 
adherence to the methodology contained in the March 1975 judgment.
There exists a reasonable possibility that those 

conditions might be embraced in the implementation of 
the 1975 plan as written. Even if that 1975 judgment 
were consensual, and it so appears to be at least in 
hybrid character, if its underlying objectives are 
capable of attainment by simpler, more practical means, 
less susceptible of controversy and unwitting perpetua­
tion of past vices, the law allows* (see below) the 
Court in its discretion to order its modification.However, the state law allocates the function of 
examining candidates on the Chancellor's criteria to the Board of Examiners. They must be given the respon­
sibility on Step 2. The new plan allocates the adminis­
tration of Step 1 to the Examiners. Consequently if 
Step 2 as proposed is modified to give responsibility 
thereon to the Examiners, no legal prejudice inures to 
the Examiners from the change of the directives of the 
March 1975 judgment.
* See e.g., System Federation v, Wright, 364 U,S, 642

(1961); Chrysler Corp. v, United States, 316 U,S.
556 (1942). [footnote by the court]

I-C-930-31a.
The Examiners requested reargument and pressed again 

the points made on this appeal. In response Judge Pollack noted 
that in amending the Board's Modified Plan he had satisfied any 
state law problem by giving "entire control over the examination 
process to the Board of Examiners," and that the system as 
amended was comparable to the interim examination system approved



-23-

by this Court in the 1974 appeal in this case as satisfying the 
requirements of state law (496 F.2d 820 (1974), supra p, 16). 
(I-C-942a). Thus having heard reargument the court adhered to 
its original decision granting the Board’s motion for approval of 
the Modified Plan, as amended. I-C-931a, 942-43a, 945a.

On July 7, 1976 Judge Pollack entered his order approv­
ing the Modified Plan. The order and the Modified Plan it approv­
ed are set forth at I-C-947-58a. (The Examiners not only ignore 
entirely the changes made by Judge Pollack in the Board of Educa­
tion's proposed plan, but they also cite throughout to the plan as 
originally proposed rather than the Modified Plan as amended and 
approved in the order here on appeal.)

It is that order that is here on appeal.

ARGUMENT
I

WASHINGTON V. DAVIS PROVIDES NO BASIS FOR REOPENING 
THE ISSUES RESOLVED BY THE FINAL CONSENT JUDGMENT OF 
1973 AND RELIEVING DEFENDANT BOARD OF EXAMINERS OF 
THE CONSTRAINTS IT IMPOSED

Preliminarily it should be noted that the Examiners' 
entire first argument is directed to an issue not involved in 
this appeal. The validity of the 1973 Consent Judgment has no 
bearing on whether the court below was right in permitting the 
Board of Education to implement the Modified rather than the 
Original Plan. No question was raised below respecting the valid­
ity of the 1973 Judgment and the constraints it imposed. However



-24-

plaintiffs have briefed these issues so that this Court can 
finally dispose of them.

A - The Examiners' Request that the 1973 Final Consent 
Judgment be Vacated and~ This Case""Dismisse'd in Its 
Entirety is PrecludecT'by the Doctrine of Res Judicata

The Examiners' Argument I is written as if the 1973 
Final Consent Judgment had not been entered, and the doctrine of 
res .judicata did not exist. That Judgment, as noted supra p. 15 
and n. 15, finally settled the basic issue of liability and right 
to relief, and was "clothed with finality, pursuant to Rule 54(b)".

The Examiners discuss Davis as if this was the appeal 
from the preliminary injunction entered in 1971. They rely pri­
marily in their affirmative argument for vacation of the 1973 
Judgment (Brief pp. 16-25) on cases supporting the obvious pro­
position that new decisional law that comes down while an appeal

23/is pending is relevant to the appeal of the decision below.

The only other authorities cited by the Examiners also involve 
situations where there has never been any final adjudication of 
the issues raised. It is of course true that had Davis come

All the cases relied on by the Examiners are contained in 
their p. 17 footnote. All but the last three of these cases 
stand simply for the proposition contained in the text above, 
and are therefore demonstrably irrelevant to the issue here.
24/—  The last three cases cited in the Examiners' p. 17 footnote 
are misleadingly characterized by them as supporting the propo­
sition that "even though an appellate court may have previously 
decided an issue, if the law changed, it should reverse its 
initial decision during a subsequent appeal of the case," The 
cases themselves make clear that this is true only where the 
first appeal did not result in a final judgment granting or 
(footnote continued next page)



-25-

down while the appeal of the 1971 preliminary injunction was 
pending or otherwise prior to a final adjudication of the issues 
involved in that injunction, Davis would have been applicable to 
such an adjudication. (As demonstrated infra Arg. IB(1), Davis 
would not however have affected this Court's decision affirming 
the grant of preliminary relief since that decision was based on 
the very standards enunciated in Davis.)

(footnote continued)
denying relief. None provide support for opening up a final 
judgment simply because on appeal of another order in the case, 
new law has come down which arguably relates to the first judg­
ment. Thus in the first of these cases, Jones v, Schellenberger, 
225 F .2d 784 (7th Cir. 1955), cert, denied, 350 U.S. 989 (1956)7 
the Court of Appeals decided on a petition for rehearing that its 
previous decision had been erroneous. The previous decision had 
relied on an earlier appeal of an earlier order in the case as 
res judicata. The Jones court found that that earlier order was 
not final, since it was simply an early stage in an accounting 
proceeding and resulted in no affirmative relief but rather,
simply a maintenance of the status quo. (225 F.2d at 789) 
Moreover the court indicated that even had the earlier order been 
final in some sense it would not become res judicata with respect 
to a subsequent stage in the same proceeding whose ultimate pur­
pose was a final decree providing or denying relief. In Chance 
the 1973 Final Judgment obviously constituted the kind of decree 
that under Jones would be entitled to res judicata effect. The 
cases cited in Jones stand simply for the proposition that while 
a particular proceeding is sub judice in the sense that it is 
pending on appeal, new law is relevant to the appeal. In McCone 
v. Crane, 174 F.2d 646 (5th Cir. 1949), the second case relied 
on by the Examiners, there had never been a final judgment on the 
relief to be awarded. The circuit court had previously reviewed 
and remanded a decision denying relief. On the second appeal 
the circuit court modified its views as to the appropriate relief 
in light of a recent Supreme Court opinion and remanded again.
All the decisions were clearly part of one proceeding and the 
earlier circuit court opinion was described simply as the law 
of the case.” In Perrone v, Pennsylvania R.R. Co., 143 F.2d 618 
(2d Cir. 1944), the last case relied on by the Examiners, there 
had been no prior final judgment upheld on appeal. On the first 
appeal the court reversed. On the second appeal the court noted 
it was not bound by views on the law expressed on the first 
appeal since they constituted simply the law of the case.



-26-

However Davis is entirely irrelevant to this appeal.
This appeal involves simply the details of the relief to 
be accorded plaintiffs pursuant to the 1973 Judgment -- specifi­
cally, which of two proposed plans for new selection systems 
should have been approved for implementation by the court below in 
1976. Plaintiffs' right to relief, including an injunction against 
administration of the old examination system and a prohibition 
against institution of any new system without court approval, was 
finally determined by the 1973 Final Consent Judgment.

That Judgment is res judicata as to all issues resolved
25/therein. The only significant issue not there resolved was the

nature of the future selection system to be developed by the part­
ies and approved by the court.

The doctrine of res judicata demands that courts not 
open and reconsider final judgments in the light of any subse­
quent decision. The Examiners submit no authority —  and could 
not -- undermining this fundamental principle. „

25 /—  Consent judgments have full res judicata effect. See 
Stuvyesant Insurance Co. v. Dean Const. Co., 254 F.Supp. 102, 
110-11 (S.D.N.Y. 1966), aff'd sub nom. Stuyvesant Co. v. Kelly,
382 F .2d 991 (2d Cir. 1967):

These commendable principles of res judicata operate 
with equal force where constitutional questions are in­
volved. [citations omitted] And this is so even though 
the settlement culminating in the entry of judgment 
against Empire may have resulted from an erroneous view 
of the law by the parties, or indeed, from an incorrect 
decision....

See also Wallace Clark & Co. v. Acheson Industries, 394 F.Supp. 
393, 396 & n .6 (S.D.N.Y. 1975), aff'd, 532 F.2d 846 (2d Cir. 1976).



-27-

The only exceptions to the general rule respecting the 
finality of judgments are set forth in Rule 60 of the Federal 
Rules of Civil Procedure, which provides for modification under 
limited circumstances. Significantly the Examiners fail entirely 
even to mention this rule in their brief. Indeed the only Rule 
60 cases relied on in their Argument I are cited simply for the 
proposition that the Examiners' consent to the 1973 Judgment does 
not bar relief from that Judgment (Brief p. 25). But the Exam­
iners have nowhere established any reason to provide relief from 
that Judgment. The Examiners' failure to discuss Rule 60 is 
understandable since, as demonstrated in Arg. IC below, it pro­
vides no basis for modification in the instant case,

B. Even Were the Court Free to Reopen the 1973 Final Consent 
Judgment and Reconsider the Merits of This and the District 
Court's Earlier Decisions Granting Preliminary Relief, 
Washington v. Davis Would Not Authorize Vacation of the 
1973 Judgment, and Dismissal of the Action Would in any 
Event Not be Permissible

(1) This Court's 1972 decision upholding the grant of 
preliminary relief was based on standards entirely 
consonant with Washington v. Davis

The Examiners' bald assertion that Washington v. Davis 
held that the Chance decisions regarding preliminary relief "had 
been erroneously decided" and "effectively reversed," is simply 
wrong. (E.g,, Examiners' Brief p. 16)

The Supreme Court in Davis ruled only that insofar as 
various courts including this Court in Chance had "rested on or 
expressed the view” that disproportionate racial impact standing 
alone and without regard to discriminatory purpose triggered the



-28-

strict scrutiny Equal Protection test, the Court disagreed.
The Court did not rule that a finding of discriminatory purpose
was necessary to make out an Equal Protection violation -- simply
that it was necessary to trigger the strict scrutiny test. Where
there is no showing of discriminatory purpose state actions must
be judged by the more lenient rational relationship test. Thus
the Court made clear that the examinations upheld in Davis were
upheld specifically because the district court had found that
they were rationally related to a legitimate state purpose and

277accordingly satisfied that test. Indeed it is unimaginable

— / 96 S.Ct. 2040 at 2049-50 and n.12, 2051. Thus the Court's
opinion states:

Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial dis­
crimination forbidden by the Constitution. Standing 
alone, it does not trigger the rule, McLaughlin v.
Florida, 379 U.S. 184 (1964), that racial classifica- 
tions are to be subjected to the strictest scrutiny 
and are justifiable only by the weightiest of consid­
erations.

/V  / \  /V  /V  s\

Both before and after Palmer v. Thompson, however, various Courts of Appeals have held in several con­
texts, including public employment, that the sub­
stantially disproportionate racial impact of a 
statute or official practice standing alone and with­
out regard to discriminatory purpose, suffices to 
prove racial discrimination violating the Equal 
Protection Clause absent some justification going 
substantially beyond what would be necessary to 
validate most other legislative classifications.

96 S.Ct. at 2049-50.
(It was in this context that the court cited Chance and numerous 
other cases.)
27/ Thus the Court ruled;

..,[T]he test is neutral on its face and rationally 
may be said to serve a purpose the government is 
constitutionally empowered to pursue.

a- a- a- a- a-/V A  /\ <<\ /\

(footnote continued next page)



-29-

that the Davis Court could have intended, as the Examiners argue,
that examinations such as those involved in this case, which have
a discriminatory impact, must be upheld as constitutional unless
a discriminatory purpose is shown. In cases where there is no_
evidence of racial impact, state actions are held to violate
Equal Protection where they are not rationally related to a

28/legitimate state purpose. The fact that such actions may in
addition have a discriminatory impact cannot immunize them from 
constitutional scrutiny.

In the Chance preliminary relief decisions the examina­
tions at issue were found to bear no rational relationship to any 
legitimate state interest. On appeal this Court found that they 
failed to satisfy the most lenient Equal Protection test. Accord­
ingly those decisions -- were they open for reconsideration under 
Davis -- would have to be affirmed.

Plaintiffs had charged that defendants’ examinations 
were .without "any rational justification." (Amended Complaint

(footnote continued)
The District Court's accompanying conclusion that 

.Test 21 was in fact directly related to the require­
ments of the police training program was supported 
by a validation study, as well as by other evidence
of record.... 96 S.Ct. at 2051, 2053

—  ̂ Thus tests and other criteria used to determine public 
employment rights have traditionally been struck down as viola­
tive of Equal Protection where they are not rationally related
to the jobs at issue. See e , g. , Armstead v. Stg.rkville.Municipal
Separate School District, 461 F ,2d 276,279-80 (5th Cxr. 1972), 
Foster v Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 
1968) : Conrad v. Goolsby, 350 F,ST^pT7l3 (N D Miss. 1972); 
Steven v. Campbell, 332 F.Supp. 102 (D.Mass. 1971).



-30-

125, II-151a; see also 123, II-150a) Judge Mansfield held speci 
fically that the examinations' discriminatory impact was not 
sufficient to invalidate them if they appeared "reasonably con­
structive to measure knowledge, skills and abilities" needed -- 
language essentially identical to the standard applied by the 
Supreme Court in Davis (330 F,Supp at 214; II-201a). He found
that the examinations were in fact not job-related and therefore29/
did not satisfy that standard.

On appeal this Court agreed that the examinations were
without rational justification:

The justification for any written examination must 
at least be...that using it is better than drawing 
names out of a hat. Staying with that perhaps over 
simple idea for a moment, the use of a test should 
achieve much more than that. Judge Mansfield found 
that the tests at issue here did not.

458 F .2d~at 1175 
(emphasis added)

In considering the constitutional standards by which the examina 
tions should have been tested, this Court specifically found it 
unnecessary to reach the issue resolved in Davis -- whether the 
compelling state interest test was appropriate in a case where 
there was demonstration of racially discriminatory impact, but 
no discriminatory intent. Noting that the Supreme Court had not 
yet resolved that question, this Court ruled:

12/ See generally 330 F. Supp. at 219-22; 223-24; II-213-19a; 
II-223a. He noted, inter alia, that the only research report 
relating to the validity of the examinations "showed that there 
was little or no correlation between success on the tests and 
job success...." 330 F. Supp. at 220; II-216a,



-31-

••-the district court's decision may be upheld under the 'more lenient equal protection standard” and so~ [we] 
find it unnecessary to reach this most difficult 
question. [citations omitted] To be sure, the district 
court stated that the de facto classification found 
was "constitutionally suspect" and that the Board 
was required to make a "strong showing" that its 
examinations can be "justified as necessary." 330 
F.Supp. at 216, 223. Such language usually connotes 
application of the "compelling interest" test. But 
the court's actual analysis indicates that it never 
reached the point where' application of that test would 
bring a different result from application of the 
rational relationship test. It is true that the court 
placed a heavy burden of proof on the Board -- properly 
so, as we have already indicated. But the proposition 
to be proved was only that the Board's examinations 
were job-related. As to that, the court concluded 
that the Board's procedures for insuring the basic 
content validity of its tests were inadequately imple­
mented and that as a result the tests themselves did 
not measure what they purported to measure. In short 
the present examinations were not found to be job- 
related and thus are "wholly irrelevant to the achieve­
ment of a valid state objective." Turner v. Fouche. 
supra, 396 U.S. at 362, 90 S.Ct. at 541; see Reed v.
Reed, 404 U.S. 71, 76-76, 92 S.Ct. 251, 30 L.Ed.2d 
225 (1971). The court did not reach the issue 
whether--or even suggest that--if the written examina­
tions were job-related the Board would still be re­
quired to demonstrate that no less discriminatory 
means of obtaining its supervisory personnel were 
available. _[citations omitted] Had the court done 
that, the bite of the "compelling interest" test would 
apply....The Board, then, failed to meet its burden 
even under the rational relationship standard, which 
would be the least justification that the Constitution requires.

458 F .2d at 1177-78
(emphasis added)

Thus this Court upheld Judge Mansfield's decision by applying the 
very standards that Davis indicates are now appropriate.

What the Supreme Court did in Davis was simply to dis­
avow some of the dicta in the Chance preliminary relief decisions.
Review of the decisions themselves makes it clear that they would 
have to be upheld even if they were properly subject to review at 
this time under the Davis standards.



-32-

(2) Were the 1973 consent judgment to be vacated, the 
dismissal requested by the Examiners could not 
lawfully be granted; plaintiffs would be entitled 
to litigate the merits of their claims

Even if the 1973 Final Consent Judgment were to be 
vacated the Court could not provide the only relief requested by 
the Examiners in its Davis argument -- dismissal of the action. 
The parties would have to be placed in the positions they were in 
prior to entry of the Judgment and permitted to litigate the 
issues regarding the legality of defendants' old examination sys­
tem. And plaintiffs would clearly prevail at such a trial on any 
one of a number of theories. They would presumably prevail under 
the Davas standard. But in any event there is no doubt, based on
the district court's findings on the preliminary relief decision,

30/ fthat they would prevail under Title VII. Moreover plaintiffs

30 /—  In Davis the Supreme Court made it quite clear that under 
Title VII racial impact, without discriminatory purpose, is suf­
ficient to trigger a "vigorous standard" of review comparable to 
the strict scrutiny Equal Protection standard. 96 S,Ct. at 2050.

Plaintiffs would clearly have the right to amend their com­
plaint to make this a Title VII case, as they would have had 
defendants not entered into the Consent Judgment in 1973. Since 
negotiations regarding the Consent Judgment were culminating in 
1972-73, there appeared to be no need to amend the complaint to 
add a Title VII claim when Title VII was amended to cover public 
employers. Had negotiations broken down and the case gone to 
trial in 1973, plaintiffs would clearly have amended to add a 
Title VII claim. In considering plaintiffs' later claim for 
attorneys' fees Judge Tyler specifically noted that: "Even
though the complaint here was never amended to include a Title 
VII claim, it could have been.,.." 11 CCH Emp. Prac. Dec.
110,631 at 6648 (1975). (Judge Pollack's subsequent ruling 
granting plaintiffs attorneys' fees on reargument found that 
plaintiffs were not entitled at that time (February 11, 1976) to 
amend to make the case a Title VII case because they were not 
asking for substantive relief and because such relief would have 
been barred by the Consent Judgment. 11 CCH Emp, Prac. Dec. 
110,721 at 6998-99.)



-33-

made numerous claims in their complaint that it was not necessary 
to reach for purposes of the preliminary relief decision, but 
which would provide wholly independent bases for relief. Thus 
plaintiffs alleged intentional discrimination in the administra­
tion of the examinations, and Judge Mansfield noted that even the 
limited evidence on this issue presented "raises a 'serious and 
substantial question' as to whether discrimination against Blacks 
and Puerto Ricans is not being unconsciously practiced by white 
interview examiners." 330 F .Supp. at 223; 224; II-221a, 223a. 
Plaintiffs also alleged that defendants' selection system vio- - 
lated 42 U.S.C. §1981 and several provisions of state law which 
required, inter alia, "objective" examinations, designed to 
measure "merit and fitness," and which further required that the 
Examiners "periodically review the validity and reliability of 
examinations...." Amended Complaint ff 26-27, II-151a-52a; see 
generally 1[1, II-140a. There can be no doubt, again based on the 
preliminary relief decision findings, that the Examiners failed 
to satisfy the requirement that they review the "validity" Df 
their examinations.

Forcing the parties to go through the exercise of a 
trial which would necessarily result in a finding that the defen­
dants' old examination system was unlawful would be pointless.

There is neither authority nor justification for the 
Examiners' request that the action be dismissed. Their argument 
for dismissal amounts simply to an assertion that there is no 
need for injunctive restraints regarding implementation of their 
old examination system or any new one because they have allegedly



-34

changed their ways, (Examiners' Brief pp. 27-32). There is no
authority for the proposition that a case should be dismissed
because the defendants promise to change their unlawful ways.
Indeed even where defendants in fact change their ways as a
result of the filing of a lawsuit dismissal is not warranted.
Moreover here the evidence that the Examiners have not changed
their ways is all too clear. See pp. 7-10? supra. In any event
a decision regarding the need for an injunction would be for the

31/district court on a remand for further proceedings.

C. The 1973 Final Consent Judgment Cannot be Vacated
Pursuant to F.R,Civ.P. 60 Because the Constraints' 
It Imposed simply Prohibit the Examiners from 
Administering an Unlawful Examination System, and 
are therefore in No Way Inequitable or Oppressive

The only authority for obtaining relief from final judg­
ments is F.R.Civ.P. 60. As noted supra, the Examiners fail even 
to argue that they have satisfied the standards imposed by this 
Rule. Nor did they ever ask the district court for modification 
of the 1973 Judgment. Therefore this Court could not order that 
modification be provided, since modification of a final judgment 
is a matter for the district court in the first instance. If 
this Court sees any merit to a Rule 60 motion, the'most it can 
do is permit the motion to be filed in the district court.

31/
— 1 The two cases relied on by the Examiners for dismissal by an 
appellate court are totally inapposite. See Examiners' Brief 
pp. 31-32. Both involve simply appellate court affirmances of 
decisions below granting dismissals, under circumstances bearing 
no relation to the instant case.



-35-

It is, however, clear that there is no basis for
modification under Rule 60. The only conceivably applicable
provision is Rule 60(b)(5)'s authorization of relief if "it is
no longer equitable that the judgment should have prospective

32_/
application...."

32 /— • Rule 60(b)(5) also provides for relief if "a prior judgment 
upon which it is based has been reversed or otherwise vacated...." 
The Examiners' argument appears designed to cast the Chance Final 
Judgment within this framework. Thus they claim that it should 
be vacated because it was "based upon" the prior preliminary 
injunction decisions which they argue were effectively "reversed" 
by Davis. As demonstrated supra Arg. IB(1) those decisions are 
entirely consistent with Davis. But this provision of F.R.Civ.P. 
60(b)(5) is in any event inapposite. It applies only to judg­
ments directly based on a prior judgment "in the sense of res 
judicata or collateral estoppel. It does not apply merely be­
cause a case relied on as precedent by the court in rendering the 
present judgment has since been reversed."11 WRIGHT & MILLER 
§2863 at 204. See also id.at 203 and n. 94, 204 n. 95. See also 
7 Moore, Federal Practice 160,26(3) at 825:

[W]hile 60(b)(5) authorizes relief from a judgment 
on the ground that a prior judgment upon which it 
is based has been reversed or otherwise vacated, 
it does not authorize relief from a judgment on the 
ground that the law applied by the court in making 
its adjudication has been subsequently overruled or 
declared erroneous in another and unrelated pro­
ceeding . (emphasis added)

See also Wallace Clark & Co. v. Acheson Industries, Inc., 394 
F.Supp. 393, 395 n.4 (S.D.N.Y. 1975), aff'd, 532 F.2d 846 (2d Cir. 
1976'): Loucke v. United States, 21 F.R.D. 305, 307 (S.D.N.Y. 1957) 
Lubben v. Selective Service System Local Bd. No. 27, 453 F .2d 
645 65(1 n  st Cir. 1972): Title v. United States, 263 F.2d 28, 31
(9th Cir, 1959), cert. denied, 359 U .S, 989 (1959); Collins v.
City of Wichita, 254 F.2d 837 (10th Cir. 1958).

Rule 60(b)(6) is designed to provide relief in cases of extra­
ordinary injustice not covered by the other provisions of 60(b) 
and has no applicability here. 11 WRIGHT & MILLER, Federal 
Practice and Procedure (1973) [hereinafter WRIGHT & MILLER]
§2864 at 219 and n. 44. See, e.g., Ackermann v. United States,
340 U.S. 193, 198, 200, 202 (1950); Rineri v. News Syndicate 
Co., 385 F.2d 818, 822 (2d Cir. 1967) (Kaufman, J .); United 
States v. Kerahalias, 205 F.2d 331 (2d Cir. 1953) (Hand, J. 
describing the "extremely meagre" scope of 60(b)(6)); Loucke v . 
(footnote continued next page)



-36-

This provision is very restrictively interpreted where
defendants ask for modification to soften or eliminate injunctive
restraints to which they are subject, as opposed to situations
where modification is requested to further the remedial purposes

33/of an earlier decree. Where defendants are asking to be re­
lieved from an injunction, the issue is whether changed law or 
facts have transformed that injunction into an "instrument of 
wrong," United States v. Swift. 286 U.S. 106, 115 (1932). In the 

c case) whose holding Rule 60(b)(5) was designed to incorpo­
rate, the Supreme Court stated:

The inquiry for us is whether the changes are so 
important that dangers, once substantial, have 
become attenuated to a shadow. No doubt the defen­
dants will be better off if the injunction is 
relaxed, but they are not suffering hardship so 
extreme and unexpected as to justify us in saying 
that they are the victims of oppression. Nothing 
less than a clear showing of grievous wrong evoked 
by new and unforeseen conditions should lead us to change what was decreed after years of litigation 
with the consent of all concerned,

286 U.S. at 119.

(footnote continued)United States, 21 F.R.D. 305, 308 (S.D.N.Y. 1957) ("resort to 
the rule in order to obtain relief from a judgment is not justi­
fied merely because the judgment is erroneous or because the 
decisional law has been changed by a subsequent ruling.")
33/—  "These restrictions do not apply if, rather than defendant 
seeking relief from a judgment, it is plaintiff who asks to have 
it modified on the ground that it has not carried out its in­
tended effect." 11 WRIGHT & MILLER §2863 at 208 n.7, citing 
United States v. United Shoe Mach. Corp,, 391 U.S. 244 (1968). 
See pp. 63-64 , infra. This difference is significant in analyz­
ing the cases cited by the Examiners in support of their Argu­
ment II. As noted infra pp. 64-65 . all those cases involved 
unsuccessful attempts by defendants to escape restraints imposed 
on them. They all demonstrate the impropriety of vacating the 
1973 Judgment. However they have no bearing on the propriety of 
the 1976 modification of the 1975 order, since that was designed 
to further the remedial purposes of the court’s previous orders.



-37-

And in Humble Oil & Refining Co, v. American Oil Co., 405 F,2d
803, 813 (8th Cir. 1969), the court made it clear that under Swift
those subject to an injunction had a very heavy burden to satisfy
to justify modification;

Placed in other words, this means for us that 
modification is only cautiously to be granted; 
that some change is not enough; that the dangers 4
which the decree was meant to foreclose must 
almost have disappeared; that hardship and oppres­
sion, extreme and unexpected, are significant; and 
that the movants' task is to provide close to an 
unanswerable case.

The leading case exemplifying appropriate application 
of this doctrine where, as here, a change in the law is alleged as 
grounds for modification, is Pennsylvania v. Wheeling & Belmont 
Bridge Co., 18 How. (59 U,S.) 421 (1856). There a prior decree 
had found a bridge an unlawful obstruction to commerce and ordered 
its removal. Subsequently Congress passed a law declaring the 
bridge lawful. The Court held that while defendants remained 
liable for costs, the injunction requiring removal of the bridge 
should be modified since the bridge was now lawful. The two cases 
relied on by the Examiners as demonstrating that a change in the 
law can justify modification of a consent decree (Examiners' Brief 
at 25-27) are comparable. In both those cases changes in law 
meant that the injunctions at issue either prohibited conduct 
that a subsequent statute had declared lawful, or mandated con­
duct that was in direct conflict with the purpose of the appli­
cable statute, and accordingly subjected defendants to unjust



-38-

hardship. It is clear that the mere fact that the law on which 
a judgment is based may change subsequently does not warrant modi­
fication under Rule 60(b)(5) unless the change means that the pro­
spective injunctive relief at issue results in the kind of

34/

Thus in System Federation No. 91 v. Wright. 364 U.S. 642 
(1961), the consent decree at issue enjoined the defendant union 
from discriminating against the plaintiff employees for refusal to 
join the union. At the time the decree was entered, 1945, the 
Railway^Labor Act effectively prohibited such discrimination since 
it prohibited a union shop. Subsequently the Railway Labor Act 
was amended to permit a union shop, At issue was the union's 
motion to modify the consent decree to permit it to take advantage 
of the statutory change. The Court concluded that the injunction 
here had become an "instrument of wrong":

That provision was well enough under the earlier 
Railway Labor Act, but to continue it after the 1951 
amendment would be to render protection in no way 
authorized by the needs of safeguarding statutory 
rights at the expense oT~T privilege denied and 
deniable to no other union. (emphasis added)

364 U.S. at 648,
...[J]ust as the adopting court is free to reject agreed-upon terms as not in furtherance of statutory 
objectives, so must it be free to modify the terms of 
a consent decree when a change in law brings those 
terms in conflict with statutory objectives ...The 
court must ¥e free to continue to further the objectives 
of that Act when itsprovisions are amended. The 
parties have no power to require of the court continu­
ing enforcement of rights the statute no longer gives. 
(emphasis added) 364 U.S. at 651-52

The other case relied on by the Examiners is Theriault v. 
Smith, 519 F.2d 809 (1st Cir. 1975); 523 F.2d 601 (1st Cir. 1975). 
Theriault involved a consent decree which was entered in reliance 
on a recent decision by the First Circuit interpreting statutory 
language governing AFDC benefits. The decision relied on was sub­
sequently vacated. The decree provided that the defendants would 
"pursuant to 42 U.S.C. §602(a)(10) and 42 U.S.C. 606(a) grant AFDC 
benefits..,to otherwise eligible women...on behalf of their unborn 
children," See 523 F.2d at 602. Since the statute relied on in 
the decree itself had subsequent to the decree been conclusively 
interpreted as not authorizing such benefits, vacating the consent 
decree was clearly appropriate. Otherwise the state would have been 
forced to pay benefits in violation of the purpose of the decree 
and the applicable statute.



-39-

injustice and oppression described in these cases. The kind
of change in the law that would, under these cases, make the 1973 
Judgment subject to modification, would be passage by Congress of 
a statute permitting public employers to administer examinations 
that were racially discriminatory and non job-related. It could 
then be argued that it was "unjust” to prohibit the Examiners 
from giving such examinations when all other public employers 
could.

Davis cannot possibly be construed to make an injunc­
tion prohibiting the Examiners from administering their old 
examination system or any new system without court approval, in 
any way inequitable or oppressive. As indicated supra the decision 
enjoining the old system was upheld by this Court under standards 
consistent with Davis. Moreover the significant change in the law 
since this Court's 1972 decision is the passage of Title VII which 
clearly bars administration of the enjoined system. Insofar as

35./

35 /— See> e-K•> Lubben v. Selective Service System Local Bd. No.27, 453 F.2d 645 (1st Cir’ 1972). In Lubben^the judgment became final 
when the government stipulated to a dismissal of its appeal.
Shortly thereafter the Supreme Court reversed the precedents for 
the Lubben decision and the government moved to vacate the Lubben 
injunction. The motion to vacate was made less than three months’ 
after the judgment had been entered but the Court of Appeals held the motion properly denied:

The government has not met its burden of demon­
strating that inequity results from continued enforce­
ment of the injunction.,,. The [Supreme Court] decisions 
were not such subsequent events as to render continued 
application of the injunction inequitable.

453 F .2d at 651
36/

The Examiners' argument clearly constitutes an attack on 
the validity of the Consent Judgment itself. Their only pos­
sible argument as to why continuation of the injunction would 
be inequitable is the alleged invalidity of the Consent Judgment 
itself. But it is clear that modification of a final judgment 
cannot^be permitted where it would involve a reassessment or 
Reopening of the issues resolved by that judgment.(footnote continued next page)



-40-

prospective application of injunctive relief is concerned —  the 
only issue open under Rule 60(b)(5) -- there is no conceivable 
injustice or hardship and oppression involved in continuing an 
injunction that simply prohibits administration of an unlawful 
system, and requires court approval of any proposed new system

37/
to ensure that it will be lawful.

--  The requirements for relieving defendants of the constraints
imposed by a final decree are especially stringent where, as 
here, the decree was entered by consent and extensive action 
Has" been taken in reliance on it, including action giving-  
defendants the benefits of their bargain.

The fact that the 1973 Final Judgment was entered on 
consent means that a court should be additionally reluctant to

(footnote continued)
See, e g . , 11 WRIGHT & MILLER §2863 at 206-07; (Rule 60(b)(5) 

"does not allow relitigation of issues that have been resolved by 
the judgment. Instead it refers to some change in conditions 
that makes continued enforcement inequitable."); Swift, supra 
p. 36, 286 U.S. at 119 ("The injunction, whether right or wrong,
is not subject to impeachment in its application to the conditions 
that existed at its making, We are not at liberty to reverse 
under the guise of readjusting.")

See, e.g,, SEC v. Thermodynamics, Inc., 319 F.Supp. 1380 
(D. Colo. 1970),~aff'd, 464 F.2d 457 (10th Cir. 1972), cert, denied, 
410 U.S. 927 (1973) (rr. . . the defendant has merely been told to do 
what the law requires be done, and that is no hardship" 319 F.Supp. 
at 1384); Wirtz v. Graham Transfer & Storage Co,, 322 F.2d 650 
(5th Cir. 1963) (injunction mandating obedience to the law "is no 
hardship", and accordingly decision granting motion to vacate 
reversed).

The Examiners attempt to argue that there is no need to 
subject them to an injunction because they have changed their ways.
As noted supra pp. 7-10, the need for the injunction is clear. More­
over the Examiners misconceive the applicable standard, attempting 
to place on plaintiffs and the Board the burden of demonstrating 
that need. In fact the standard is whether the Examiners can 
demonstrate not only injustice and oppression, but also that the 
"dangers, once substantial, have become attenuated to a shadow.V See United States v. Swift, quoted supra p. 36. Even demonstrated, 
long-time compliance with an injunction and with the law is no 
ground for relief. See, e.g., SEC v. Therodynamics. Inc., supra 
n. 37, 319 F.Supp. at 1383-84; Wirtz v. Graham Transfer & Storage Co., supra, n 37 .



-41-

permit vacation. In United States v. Swift, 189 F.Supp. 885, 905 
(D.C.I11. 1060), aff'd per curiam, 367 U.S. 909 (1961), the court 
stated that the test regarding the limited circumstances in which 
injunctive decrees might be modified to remove restraints on 
defendants had generally been applied "vigorously to deny modifi­
cation of consent decrees."* * The Court noted that while consent 
does not deprive the court of the power to modify where appropriate, 
it made the task more complicated for reasons which mandate

38/against modifying such decrees except where absolutely necessary.

33/ The defendants' mistake in giving consent will remain 
beyond recall until the decree operates to oppress 
them in ways uncontemplated at its issuance, or until 
circumstances have so changed that the foundations of 
the decree, whether adequate or not, are completely 
undermined. The way of escape is narrow. A broader 
avenue would destroy the utility of consent_decrees.
If a composition reached after full and deliberate 
consideration may be set for nought simply because 
one of the parties on second thought believes he would 
have fared better at a trial, the decree becomes 
nothing more than a continuance or postponement of the 
trial, and the mutual benefits which induce this form 
of disposition will be lost.

* * * *The defendants can gain nothing from the recital in 
their stipulations to the decree -that they consented 
upon condition that its entry should not be considered 
an admission or the decree an adjudication that they 
had in fact violated any law of the United States. By 
their consent, they relinquished the right to insist 
that an offense be proved, and the right to show that 
no violation had been committed. Having accepted a 
decree drawn on the theory of a violation of the anti­
trust laws, they cannot now vacate or modify the 
decree on the ground that the theory was unsound.189 F.Supp. at 906-07.

See also United States v. Armour & Co., 402 U.S. 673, 681-82 
(1971),

All the cases cited by the Examiners for the proposition that 
the district court erred in modifying its 1975 Order approving 
the Original Plan because the parties had allegedly consented to 
that plan (Examiners’ Arg. II, pp. 39-42), are in direct conflict 
with their argument that the 1973 Consent Judgment should be



-42-

Among these reasons is the fact that where the final 
judgment is entered by consent there is no direct indication as 
to the principles of law on which the judgment was based; there 
is no way of telling what combination of factors entered into the 
parties' decision to agree to the judgment; and there is no reason 
to believe that the case would have come out differently had it 
been litigated even if there has been a change in the law. Accor­
dingly there is nothing unjust in holding the parties to their 
bargain, and every reason to do so. Thus in the instant case the 
Examiners' bald contention that the consent judgment was "based 
upon" the previous grant of preliminary relief (Brief pp. 24-25) 
simply cannot be supported. As noted above, at the time the 
consent judgment was agreed to, Title VII had been amended to cover 
public employers. Moreover the composition of the Board of 
Examiners had changed radically resulting in a new majority con­
sisting of two new provisional members appointed by the Chancellor, 
together with the Chancellor (a voting member of the Board of Exam­
iners). There is no way for a court to determine to what extent 
these and other factors entered into the Examiners' decision to 
agree to the 1973 Consent Judgment.

Courts are particularly reluctant to modify consent 
decrees where, as here, defendants are seeking to escape from a

(footnote continued)
modified so as to release them from any obligation under it. In 
all of these cases the courts refused to allow defendants to 
escape restraints embodied in consent judgments, noting^that strin­
gent standards were applicable to attempts at modification under 
these circumstances. These cases provide no support for the 
Examiners1 Argument II5 for the reasons set forth infra pp* 64-65.



-43-

bargain from which, they have reaped certain benefits. The 1973
Final Consent Judgment provided that persons on lists resulting
from the Examiners' old examinations would have an opportunity to
be licensed and granted permanent appointments, (f If III A and B,
I-A-253a) Had the case gone to trial and plaintiffs prevailed,
these lists would have been presumptively invalid. The Examiners
now seek to retain the benefits of their bargain by arguing that
the persons who obtained licenses and jobs from these lists should
retain same, but that plaintiffs should lose any form of restraint

_4Q/
over the Examiners’ conduct of unlawful examinations.

39/

II
THE DISTRICT COURT’S 1976 ORDER MODIFYING ITS 
1975 ORDER AND APPROVING THE DEFENDANT BOARD 
OF EDUCATION’S MODIFIED PLAN FOR ESTABLISHMENT 
OF A PERMANENT SUPERVISORY SELECTION SYSTEM 
MUST BE AFFIRMED

Both the 1975 Order and the 1976 Order modifying it 
involved simply the nature of the new supervisory selection system 
to be introduced as a result of the 1973 Final Judgment. Thus the

22/ See, e.g., United States v. Lucky Lager Brewing Co. of San 
Francisco/^  F.Supp. 665, 668 (D.C.Utah 1962), noting "the 
impropriety of merely relieving a party from the foreseeable 
detrimental consequences of its consent, after it has enjoyed or 
speculated upon its favorable consequences or possibilities by 
avoiding the litigation and the hazards of a less favorable 
outcome...."
— / The fact that significant actions have been taken in reliance 
on a judgment is itself strong reason to refuse a motion for 
modification. 11 WRIGHT & MILLER §2857 at 161 and n. 86, 162 
and n. 88.



-44-

issue on appeal relates only to the details of relief, a matter
clearly subject to the broad discretion of the district court, and
one that should be "almost the last to attract appellate interven- 

41/
tion." Here Judge Pollack’s decision clearly constituted an 
appropriate exercise of discretion.

The Modified Plan approved in the order here on appeal 
provides for a two-step examination system, (See I-C-950-58a; see 
generally pp.21-23 , supra.) At Step 1 candidates are to be eval­
uated by the Examiners to determine whether they satisfy certain

A?/objective criteria established by the Board of Education. Candi­
dates who satisfy the Step 1 evaluation are eligible to serve as

—  Vulcan Society et al. v. Civil Service Commission et al., 
490 P.2d 387, 399 (2d Cir. 1973).
— ! See generally Modified Plan at I-C-951-52a:

The Board of Examiners will determine candidates' 
compliance with training, experience and other re­
quirements established by the Chancellor pursuant 
to State Law. This examination an unassembled 
examination to be developed and administered by the 
Board of Examiners, will consist of a review, veri­
fication and analysis of record.

■k k k k
Candidates will also be required to participate 

in a written essay examination developed by the 
Board of Examiners and administered under proctored 
examination conditions by the Board of Examiners.
The essay will be designed to demonstrate skills in 
written expression about matters relating to the 
position for which application is made, and the Board 
of Examiners will evaluate and comment on the 
candidate's written communication skills.

The Board of Examiners will develop profiles of 
each candidate on the eligible list. The profile 
will contain the candidate's record and written 
essay, and the Board's reviews and analyses there­
of. These profiles shall be made available to all 
appointing authorities to which applicants wish to apply for positions.



-45

supervisors on a provisional basis. After one year's provisional 
service they are subject to the Step 2 evaluation to determine 
whether they satisfy the criterion of successful performance.
This evaluation is again left to the Examiners, pursuant to the 
change in the plan ordered by Judge Pollack. Only those candidates
who successfully complete Step 2 obtain licenses and are eligible

43/
for permanent appointment.

The Examiners contend that Judge Pollack's order
approving the Modified Plan must be reversed primarily because:
(1) the 1975 Original Plan constituted relief entered as part of 
a consent judgment and the requirements for modifying such a judg­
ment were not met. and (2) the Modified Plan contravened state 
law.

In considering the Examiners' arguments twTo points must 
be kept in mind. First they ignore entirely what is key to an 
understanding of the 1976 modification -- that it represents an 
agreement between plaintiffs and the chief defendant in this case, 
the Board of Education.

Secondly, the Examiners' description of the Modified 
Plan is a complete distortion. They ignore entirely the existence

43/ See generally Modified Plan at I-C-952-53a:
These [on-the-job-performance] evaluations will assess 
the candidates' performance in terms of the essential 
duties of the job as determined by the Chancellor pur­
suant to his authority under Section 2554(2) of the 
Education Law. Upon completion of on-the-job evalua- 
tions, the Board of Examiners shall certify to the Board 
of Education whether or not candidates have met the per­
formance requirements. Applicants who meet such require­
ments will be issued permanent licenses.



-46-

of Step 2 on-the-job performance evaluations -- the crucial aspect 
of the new examination process. And they make no reference to the 
fact that Judge Pollack amended the plan initially proposed by the 
Board of Education to ensure that the Examiners had full power to 
design and administer the Step 2 evaluations so that, as amended, 
the Modified Plan is virtually identical to the interim licensing 
system upheld by this Court in the 1974 appeal as satisfying state 
law requirements. See Examiners' Brief pp. 35, 66, 67-68.
Compare pp. 21-23 supra.

The case described by the Examiners bears no resemblance 
to the case before the Court.

A. The Court had no Choice but to Approve the Modified Plan 
Since It had been Proposed by the Defendant Board of 
Education in the Exercise of Its Plenary Power over the (
City School System, and Agreed to by Plaintiffs

The Examiners' entire argument reads as if the Court had 
ordered defendants to develop a certain kind of examination sys­
tem. What is crucial here is that neither the 1975 nor the 1976 
Orders mandate anything. They simply approve systems proposed by

44/defendants, and "authorize" them to implement those systems.

~  Thus the 1975 Order reads;
[The Original Plan]...is approved as herein modified, 
and...defendants are permitted and authorized to 
develop examinations for supervisory positions ... in 
accordance with that Plan. (emphasis added)

(I-B-509a)
The 1976 Order similarly reads:

[The Modified Plan]...is approved as herein modified, 
and...defendants are permitted and authorized to 
develop examinations for supervisory positions ... in_ 
accordance with said Modified Plan. (emphasis added)(I-C-948-49a)



-47-

And both systems were proposed by defendant Board of Education.
Clearly the Court had no obligation to force the Board 

of Education to stick to its 1975 Original Plan unless that was 
necessary to ensure that plaintiffs were provided the relief to 
which they were entitled under the 1973 Judgment. Given plain­
tiffs' consent to the Modified Plan the Court had no choice but 
to approve it, so long as the Board of Education had authority 
to propose it.

That authority cannot be questioned. The Board of
Education has plenary power over the administration of the City

41/school system. Included within that power is the power to
define the jobs of all school supervisors, and to define the 
qualifications that determine which supervisory candidates shall 
be selected. The Board of Examiners is a subordinate body, under 
the control and administration of the Board of Education. The

45/—  The Board of Education is required by law to "determine all 
policies of the city district," N.Y.Educ.Law §2590-a(l). It was 
previously described by this Court as "the body entrusted with 
the general management and control of educational affairs in the 
New York City School District. N.Y.Educ.Law §2552." 496 F.2d at 
822 n.3 (1974). On the powers of the Board of Education see 
generally Christen Aff. I-B-591a, 599-600a (ff46-49).
•̂6 /—  The Board of Examiners was previously described by this Court 
as "the professional examining arm of the Board of Education...." 
496 F . 2d at 822 n.3 (1974).

The State Commissioner of Education has described the rela­tionship between the two boards as follows;
The board of examiners of the city school district 
of New York is not an independent body. It exists 
as a part of the educational system of such district.
The jurisdiction of the board of education and of the 
superintendent of schools extends over it as over every 
other board or bureau of the system, subject only to

(footnote continued next page)



-48-

Examiners have no separate budget and are entirely dependent on 
the Board of Education for funding. Their function is simply to 
administer tests when required by the Chancellor (who is respon­
sible to the Board of Education), to determine whether candidates 
satisfy the qualifications established by the Board. See gener­
ally pp. 54-55 infra.

The Board of Education clearly had the power and respon­
sibility under state law to modify the Original Plan so as to pro­
duce a supervisory selection system that it had concluded was 
better suited to the needs of the City's schools and capable of 
producing more qualified supervisors. And it had an obligation 
to modify the Original Plan when it concluded that it was not 
likely to produce a nondiscriminatory and job related system.

Even if plaintiffs had consented to entry of the order 
approving the Original Plan, the Board had no obligation to adhere

(footnote continued)
the exclusive power and duty conferred by statute in 
the conduct of examinations and the preparation of
eligible lists .

* * * * *
The board of education may create such positions as may be necessary to enable the board of examiners to 
perform the duties imposed upon it. The employees of 
the board are to be appointed in the same manner as 
other employees of the educational system of the 
district and their compensation is to be fixed by the 
board of education. Such employees are subject to the 
supervisory control of the superintendent of schools 
in the same manner as other employees of the system.

Matter of the Jurisdiction of the 
Board of Examiners, 25 State Dept. 
Rep. 275, 28'5 "(1921).



-49-

to that plan so long as plaintiffs agreed to the Modified Plan, 
as they did.

Plaintiffs' consent to the Modified Plan left the court 
with virtually no choice but to approve it. The key reason that 
the court's approval was required was to protect plaintiffs' 
rights under the 1973 Consent Judgment. Absent this Judgment the 
Board of Education would have been free to implement whatever new 
system it found appropriate.

The only other appropriate area of inquiry for the court 
was into the relationship between the Board of Education and its 
subordinate agency, the Examiners, because of the Examiners' pro­
test against implementation of the Modified Plan. The court made 
that inquiry, satisfied itself that the Board of Education was 
properly exercising its powers under state law and, in an excess 
of caution, insisted that the plan proposed by the Board be 
amended to ensure that the Examiners' powers under state law to
administer'" tests were fully protected. As so amended the Modified 
Plan clearly protects all cognizable rights of the Examiners.
See pp. 51-59 infra.

Under these circumstances it would have been an abuse of 
discretion for the court to force the Board of Education to imple­
ment the Original Plan. Absent some overriding necessity not 
present here, a federal court has no business telling a local 
Board of Education which of many different permissible supervisory 
selection systems it should adopt.

An analagous issue was presented to the New York State 
Court of Appeals in Council of Supervisory Ass'ns of Public



-50-

Schools of New York City v. Board of Education, 23 N.Y,2d 458,
297 N.Y.S.2d 547 (1969), At issue there was the legality of the 
Board of Education’s establishment of Demonstration School Princi- 
palships as new positions, and its appointment to these positions 
of persons who had not passed the Examiners' tests for regular 
school principalships. The Board of Education's action was based 
on its determination that the Examiners' traditional tests did not 
test for qualities essential to running schools under a decentral­
ized system.

New York's highest court upheld the Board's action 
against a claim that it was in violation of the merit and fitness 
selection system. The court made it clear that the Board had the 
power to define quite specifically the qualities it wanted the 
Examiners to test for, and to decide whether or not tests 
conducted by the Examiners satisfied its needs. And the court
also made it clear that the Board of Education was entitled to

It was the board's judgment that the persons on the 
present principal list had not been examined for this 
added experience element in administration and hence 
the new position should be established with additional 
tests and standards for appointment.

297 N,Y.S.2d at 553
A  A  7V

The skills sought...for the position,...which will 
be tested in competitive examination for permanent 
appointment, as explained by Alfred Giardino, then 
president of the Board of Education, involve a "know­
ledge and relationship with disadvantaged communities, 
the cultural level there, the means and methods of 
securing increased parental involvement, the ability 
to stimulate them and the community to engage in a 
broader based educational project".297 N .Y .S.2d at 554-55.



-51-

great deference in such matters:
...the board, as a high-ranking and responsible 
public agency in charge of one of the world's 
largest educational systems, is entitled, as a 
minimum, to the presumption that its official acts 
are lawful and are honestly motivated.

297 N .Y .S.2d at 554.
A federal court should be if anything more reluctant to interfere 
with the Board's actions.

--The Examiners’ objections to the legality of
the Modified Plan are without merit

(1) State law

As noted above, the Board of Education is entitled to a 
strong presumption that its official acts are lawful, and a fed­
eral court should be reluctant to interfere with its relationship 
with its subordinate agency, the Examiners. Nonetheless, since
the Examiners deal at some length with their claim that the 
Modified Plan violates state law, we will address that issue.

Judge Pollack carefully considered the Examiners’ argu­
ments regarding state law and ordered that the Board of Education’s 
proposed Modified Plan be amended to provide the Examiners their 
full powers under state law.

As amended, the Modified Plan was identical in all rele­
vant respects to the interim examination system upheld on the

48/ See his decision and comments on reargument, quoted supra 
P- 22. See also I-C-929-30a; see generally I-C-867-943a„



-52-

1974 appeal in this case as satisfying state law requirements.
496 F .2d 820 (1974). That decision constitutes the law of the 
case and disposes of all arguments regarding the alleged illegal­
ity of the Modified Plan. Significantly, it is nowhere discussed 
in the Examiners' brief.

At issue on that appeal was the legality of the interim 
examination system established by the 1973 Consent Judgment. That 
system provided for the provisional appointment as supervisors of 
persons who satisfied education and experience criteria estab­
lished by the Board of Education. Decisions regarding licensure 
and permanent appointment were to be made on the basis of an eval­
uation by the Examiners, in conjunction with the appointing
authority and pursuant to criteria established by the appointing
authority, of the candidates' on-the-job performance during their

49./provisional appointments. 496 F.2d at 823, 824. The system 
called for by the Modified Plan approved b^Judge Pollack is 
virtually identical. See pp.44.45, supra. Indeed Judge

49/ I-A-250a., 253a, 254-55a. Parallel provisions were contained 
in the modified preliminary injunction entered in 1973 against 
the Board of Education. I-A-260a, 261-63a.50/—  The only significant difference is that the Examiners play a 
greater role than in the interim plan. Thus in Step 1 of the 
Modified Plan they determine whether the criteria established by 
the Board of Education are met through an "unassembled examina­
tion" procedure, administer a written test designed to determine 
skills in written expression, and prepare evaluative profiles of 
the candidates for use by the community boards in making provi­
sional appointments. (I-C-951-52a) And the Step 2 on-the-job 
performance evaluations are to be conducted pursuant to whatever 
procedures the Examiners determine appropriate in assessing per­
formance ability. (I-C-952~53a) The requirement that the Examin­
ers conduct these evaluations "in conjunction with the appointing 
authority" contained in the interim system (I-A-254a) has been 
eliminated.



-53

Pollack specifically noted that in amending the Modified Plan to
give the Examiners full examining authority at Step 2, he had
made the Plan comparable to the interim system upheld by this

51/Court in its 1974 decision.
In that decision this Court found that the interim 

system satisfied state law requirements, specifically noting that 
on-the-job performance evaluations constituted fully adequate exam­
inations, and distinguishing the Nyquist decision, on which the 
Examiners primarily rely. 496 F.2d at 823-24 and n.10. Thus this 
Court stated:

As to the legality of the preliminary injunction under 
state law, the order does not authorize the permanent 
licensing of school supervisors without any examination.
If it did, it would probably run afoul of the decision 
of the New York Court of Appeals in Board of Educ. v.
Nyquist, 31 N.Y.2d 468, 341 N.Y.S,2d 441, 293 N.E.2d 819 
(1973)...,In Nyquist,..there was a grant of a permanent 
license to an acting supervisor without any examination,
Here, the settlement agreement contemplates an interim 
system of appointment which includes a full examination.

496 F .2d at 823-24.
The "full examination" referred to was the on-the-job evaluation 
provided for by the interim system, (This Court’s major concern 
in 1974 was that it was dealing with an interim system, and a 
preliminary injunction rather than final judgment insofar as the

Thus Judge Pollack stated;
The Second Circuit has already held in this case 

under 496 Fed 2nd that... on-the-job evaluations by 
the Board of Examiners, which is really Step 2 in 
the modification, satisfy the requirements of the 
New York State Education Law and the Constitution^ 
regarding the role of the examiners in administering 
obiective examinations. I-C-942a.



-54

Board of Education was concerned. These issues are no longer 
problems.)

Independent analysis of state law clearly supports the 
conclusion that the Modified Plan appropriately divides responsi­
bility for the development and administration of a supervisory 
selection system between the Board of Education and the Examiners. 

The Board of Education has exclusive authority under
state law to determine the qualifications for which it wants super- 

52/
visors tested. The Examiners' function, once the Board has
prescribed qualifications, is simply "to determine whether appli-

,,53/cants for licenses possess such qualifications.
Moreover, the State Commissioner of Education has held 

that the power to prescribe qualifications includes the power to 
designate the general subjects to be covered by licensing

52/ State law provides that the Board has responsibility to 
"designate...the kinds and grades of licenses" required for posi­
tions in the educational service, "together with the academic and 
professional qualifications required for each kind or grade of 
license." N.Y.Educ. Law §2573(10)(Supp. 1975-76).

^ - Matter of the Jurisdiction of the Board of Examiners, 25
State Dept. Rep. 275, 282 (1921)(hereinafter the Jurisdiction 
Case). See also Matter of Appeal of the Board of Examiners, 73 
State Dept. Rep. 20"’ 21 (1952).The authorities relied on by the Examiners are entirely con­
sistent with this analysis. They indicate simply that the Exam­
iners have control over the limited task of ascertaining whether 
candidates possess those qualifications prescribed by the Board 
of Education. Examiners' Brief at 62-63. Moreover the Investiga- 
tion Case relied on by the Examiners and reproduced as Addendum B 
of their brief is an unpublished memorandum of questionable rele­
vance, given its genesis in a unique historical situation over 
fifty years ago, involving issues totally unrelated to the instant 
case. They are described in Matter of Appeal of Certain Members 
of the Board of Examiners, 34 State Dept. Rep. 183 (1926).



-55

examinations.
In the Modified Plan the Board of Education establishes 

the qualifications for which the Examiners are to test -- objec­
tive experience and educational qualifications at Step 1, and 
ability to perform as indicated by actual on-the-job performance 
at Step 2. This is fully within the Board's power to prescribe 
qualifications and its corollary power to designate the general 
subjects of examinations to screen for those qualifications, It 
in no way invades the role of the Examiners, who are left with

i.full power to design tests to measure the prescribed qualifica­
tions. The Examiners have no power under state law to insist on 
imposing their own qualifications as their request for implemen­
tation of the Original Plan would do,

54/

^ 7  The power to designate the academic and professional
qualifications required of an applicant for a license 
must include the power to prescribe the tests to be 
applied upon examinations of applicants for licenses.
The contention...that the power to designate such pro­
fessional and academic qualifications includes the 
power to designate the subjects to be covered by exam­
inations of applicants for licenses seems reasonable.
The board of superintendents may, thereforedeclare 
that the examinations leading to the issuance of certain 
licenses should be in certain specified subjects, for in 
no other way may the board of superintendents effectually 
exercise the power conferred of designating the academic 
and professional qualifications of applicants.Jurisdiction Case at 286-87

In this case the Commissioner held that the initial power to 
designate subjects of examinations lay with the superintendent of 
schools and the board of superintendents, as the executive author­
ities in the educational system, and the Board of Education desig­
nated subjects on their recommendation. Id. at 289._ Since that 
time, the city superintendent's office has been abolished and its 
powers transferred to the Chancellor and the Board, The authority 
to prescribe qualifications and the subjects of examinations now 
rests with them.



-56-

Step 1 of the Modified Plan changes the nature of the 
examination needed from that provided by the Original Plan, 
because the Board of Education has changed the nature of the qual­
ifications for which it wants supervisors tested. Under the 
Original Plan a subjective set of qualifications required a fairly 
elaborate examination system. In the Modified Plan the Board has 
established objective qualifications which can be measured with­
out an elaborate examination process. The procedure called for 
in Step 1 is what has traditionally been called an "unassembled 
examination" in New York. It has been used by the Examiners in
the past, and is currently used by the New York Civil Service

55/Commission in many situations. It has been repeatedly upheld 
by New York courts as satisfying state constitutional and statu­
tory requirements for "competitive" examinations, designed to pro­
duce lists of candidates ranked in order of relative competence,

_5_tfwith appointments made from the top of the list only. It

55/ See Christen Aff. 133 at I-C-802a.
56/ Unassembled examinations have been upheld in every state court 
decision dealing with their legality: A1tman v . Lang, 44 Misc.2d
715, 255 N.Y.S.2d 284, 287 (Sup.Ct.N.Y.Co.), aff'd mem., 23 A.D.2d- 
820, 259 N.Y.S.2d 779 (1st Dept.), aff’d mem., 17 N.Y.2d 464, 266 
N.Y.S.2d 975, 214 N.E.2d 157 (1965); and Matter of Young v. Trussel, 
42 Misc.2d 108, 247 N.Y.S.2d 603 (1964). Altman v. Lang upheld 
use of an "unassembled examination" for the competitive position 
of probation officer, defining this "method of testing" as "an 
evaluation of training and experience, obvia[ting] the necessity 
of applicants to assemble at a particular test site, on a day 
certain, for written or oral examinations." 255 N.Y.S.2d 286. The 
court noted that the law's requirement of a competitive merit and 
fitness examination "does not compel a perpetuation of traditional 
practices of personnel recruitment, such as the use of written or 
oral tests, which time and circumstances may render unfeasible 
and ineffective," and "cannot be transformed into a interdict 
(footnote continued next page)



-57-

clearly satisfies the less demanding requirements governing exami­
nations for school supervisors which are by law "qualifying” 
rather than "competitive", designed to produce eligibility lists
of all those satisfying minimum qualifications, with the appointing

12_/authority free to choose anyone on the list. The purpose of a 
qualifying examination has been described by the New York Court 
of Appeals as: "merely an assurance that along with personal qual­
ities or associations satisfactory to the appointing officer there 
shall also be the attainment of some standard of efficiency estab­
lished as a minimum." Ottinger v. Civil Service Commission, 240 
N.Y. 435, 443, 148 N.E. 627, 629 (1925).

And even if Step 1 did not in itself constitute an ade­
quate examination under state law, Step 2 clearly does, as this 
Court held on the 1974 appeal. And success in the Step 2 exami­
nation of ability to perform, as demonstrated by actual on-the- 
job performance, is a prerequisite to licensure and permanent 
appointment under the Modified Plan. The Board of Education's

(footnote continued)
against innovations such as the technique employed here, which may 
very well prove to be best or better adapted for the necessary 
demonstration of fitness and merit." 255 N.Y.S.2d at 287. Young 
v. Trussel similarly upholds an unassembled examination for the 
competitive position of psychologist.
57/— 7 N.Y.Educ.Law §2590-j-3(b)(2)(examinations for supervisory 
positions qualifying rather than competitive).
58/•— 7 See also Barnett v. Fields, 196 Misc.2d 339, 92 N.Y.S.2d 117 
(Sup.Ct.N.Y.CoT 1949), aff'd mem., 276 App.Div. 903, 94 N.Y.S.2d 
904 (1st Dept. 1950), aff’d mem., 301 N.Y. 543, 93 N.E. 346 (1950, 
in which a sufficient qualifying examination for school super­
visors was described as any "reasonable test of merit and fitness."



-58-

authority to designate actual ability to perform as a "qualifi­
cation" for a supervisor cannot seriously be questioned. Nor can 
the reasonableness of the Board's decision to make on-the-job 
performance evaluations determinative of licensure, given the 
difficulty of predicting ability to perform the varied and com­
plex duties of principals and other school supervisors on the 
basis of some kind of abstract test. The Examiners themselves 
have in the past often given examinations consisting essentially 
of performance evaluations. And the New York courts have pre­
viously indicated that on-the-job performance evaluations are not
only proper under New York law, but may well constitute the best

59/means of measuring actual ability to perform, Indeed the

59,
— ' Thus in Matter of Sloat v. Board of Examiners, 274 N.Y. 367 
(1937), the New York Court of Appeals upheld use of an "interview 
test" and a "teaching test" by the Examiners. The teaching test 
involved assessment of actual performance in a classroom situation. 
The Court said:

Indeed, in determining the merits of a substitute 
teacher and her fitness for appointment to a perma­
nent position, the "teaching test" in the class room 
would, it is evident, be particularly valuable. The 
mandate of the Constitution for the ascertainment of 
merit and fitness, so far as practicable, by competi­
tive examination, may not be transformed into an in­
terdict against the examinations which are best 
adapted for the demonstration of fitness.274 N.Y. at 374-73,

(footnote continued next page)



59-

difficulty of devising traditional tests to measure for the kinds
of "intangible factors" making for a successful supervisor, re-

60/cognized by Judge Mansfield at the outset of this litigation,

demonstrates the wisdom of the Board of Education's decision to 
look to actual performance. See pp. 8-9 and n. 9 supra.

(footnote continued)
In People ex rel Sweet v, Lyman, 157 N.Y. 368, 377, 381 (1898) , 
the court upheld a probationary period as a legitimate method of 
testing for merit and fitness under the New York Constitution, and 
indicated that it was in fact likely to be one of the best methods, 
given the limitations of traditional civil service examinations.
And in Altman v. Lang, supra, n,56 the court stated:

...the fact remains that any examination given to a 
candidate, even though competitive, be it written, oral 
of unassembled, as here, can serve to measure only the 
candidate's potential ability, unless the examination 
itself demands actual performance of the specific 
duties of the subject position,

255 N ,Y ,S.2d at 289.

60/
See 330 F.Supp. at 217:

At the outset of the hearings, being inexperienced in 
the field of examinations generally, we indicated doubt 
as to whether examinations could be constructed that 
would be valid for selection of Principals and other 
supervisory personnel, since we viewed their duties as 
being executive and complex in nature, with the success 
of a Principal in a given school depending not so much 
on his knowledge of duties and educational content of 
courses given by his subordinates as on such intangible 
factors as leadership skill, sensitivity to the feelings 
and attitudes of teachers, parents and children, and 
ability to articulate, to relate, to organize work, to 
establish procedures, to promote good community relations, 
to induce subordinates to accept directions, to work co­
operatively, to critize without creating unnecessary 
animosity or illwill, to analyze and evaluate administra­
tive problems, to take initiative and promote new programs, 
and to instill a feeling of confidence.



-60

(2) Federal Law
The only other issue as to the legality of the Modified 

Plan raised by the Examiners is that this Plan fails to comply 
with federal law requirements that tests be supported by job 
analyses. (Brief at pp. 70-73). However this argument simply 
fails to acknowledge that there is no longer any need for job 
analyses because there are no longer any preliminary screening 
tests which preclude possibly qualified persons from obtaining the 
jobs in question. Step 1 is now an objective evaluation of expe­
rience and educational credentials. Such credentials are job- 
related on their face and have never been and are not now chal­
lenged by plaintiffs or any other party as having discriminatory 
effects. Unless and until such requirements are challenged and 
actually shown to have discriminatory effects there is no legal
requirement that they be supported by job analyses or otherwise

61/validated. A Federal court has no more business insisting that 
job analyses be performed for these credential requirements than 
it would if this action had never been brought. Step 2 likewise 
has not been challenged by anyone as discriminatory. But even 
more important, it is absurd to even propose the idea of a job 
analysis to support Step 2. In Step 2 performance on the actual 
job is the standard of success. This indeed is the profound 
strength and value of the Modified Plan. It does away with the

See EEOC Guidelines on Employee Selection Procedures, 29 C.F.R. 
Part 1607 at I60/.3; Proposed Uniform Guidelines on Employee 
Selection Procedures, 41 Fed. Keg. 290T6j 2901/ at §3a (19 76).



-61-

need to worry if a test is adequately predicting performance 
abilities. And it does away with the need for burdensome and 
possibly intractable problems of job analyses for these complex 
management jobs, by allowing the job itself to be the test. The 
cases and regulations cited by the Examiners are inapposite 
because they all deal with situations where a preliminary test was 
given which denied persons the opportunity to actually prove them­
selves on the job. Where the job itself is the test, job analysis 

.62/is irrelevant.

B. In Any Event, the Court Clearly had Discretion, Pursuant to
F.R.Civ.P. 60, to Modify Its 1975 Order Approving the Original 
Plan and, since the Modified Plan was more likely to serve the 
Purposes of the 1973 and 1975 Orders, that Discrietion was 
Properly Exercised.

Since the Modified Plan represented an agreement between 
plaintiffs and the defendant with authority to propose it, the 
doctrines regarding modification of final orders over the opposi­
tion of either plaintiff or defendant are not even applicable, as 
demonstrated in Arg. II-A above.

Even assuming they were applicable, the district court 
clearly had the power to modify its 1975 Order under F.R.Civ.P. 
60(b)(5). Moreover the court's decision to modify was within its 
"wide discretion". System Fed'n No. 91 v. Wright, 364 U.S. 642, 
648 (1961).

— % Cf. Cooper and Sobel, Seniority and Testing Under Fair Employ­
ment Laws: A General Approach to Objective Criteria of Hiring and 
Promotion, 82 Harv. L. Rev. 1598, 1642 (1969).



-62-

The Examiners argue that the court below had no power 
to grant modification because it imposed substantial new burdens 
on them without their consent (Brief pp. 37-40).

This argument has no basis in fact. The two plans are 
quite similar in nature, the only difference being that under the 
Modified Plan theExaminers are no longer required to conduct the 
elaborate Step 1 tests called for in the Original Plan.

Moreover the Examiners have no support for the "doc­
trine" they cite to the effect that ’"consent decrees cannot be 
modified to impose new restrictions unless all parties agree to

m /such a change.
In fact the law is clear that final decrees can be modi-

64 /fied whether or not entered by consent, and whether or not they
£&/impose new restrictions. The power to modify, incorporated in

— ■ Examiners' Brief p. 38. The cases they cite at pp. 37-39 stand 
simply for the proposition that consent judgments are final (the 
Butler and Steingruber cases), or that under certain circumstances 
not here applicable courts should not grant modification. Thus in 
Ford Motor Co, v. United States, 335 U.S. 303 (1948), modification 
was found inappropriate because the government was trying to extend 
the burdens on a defendant without providing that defendant the 
benefits of its bargain and the defendant was suffering clear in­
justice. In the Savannah Cotton and Shubert cases, modification 
was denied because defendants had failed to satisfy the stringent 
standards applicable where defendants are trying to escape from 
injunctive restraints plaintiffs are"trying to maintain. Neither 
case is applicable here. See pp.63-65 infra.
64/— 'See generally 11 WRIGHT & MILLER §2961 at 611 and cases cited 
n. 78; see, e.g., System Federation v. Wright, 364 U.S. 642, 651 
(1961) ("The parties cannot, by giving each other consideration, 
purchase from a court of equity a continuing injunction...").

^  See, e.g.. United States v. United Shoe Mach. Corp., infra 
PP* 63-64.



-63-

F.R.Civ.P. 60(b)(5), stems from an equity court's continuing
66/

responsibility over its decrees -- here not only the 1975 but
67/

also the underlying 1973 decree. Here the requirements appli­
cable to the 1976 modification were clearly met.

(1) The stringent requirements for modification of certain 
final decrees were not applicable here
(a) The modification here was designed to further rather 

than frustrate the purposes of the earlier court 
orders

While the standards governing modification are restric­
tive when defendants are attempting to escape their obligations 
under an injunctive decree, they are not when modification is 
sought to further the remedial purposes of that decree. 11 WRIGHT 
& MILLER §2863 at 208 n. 7. See p. 36 and n. 33 supra.

In the United Shoe case the Supreme Court made clear the 
different standards applicable in these different situations.
There the government sought modification to impose more stringent 
limitations on defendants. The district court had denied modifi­
cation saying its power to modify was limited to cases involving

^  See generally 11 WRIGHT & MILLER §§2863, 2961.
6 7 ,
— ' The 1975 order itself constituted a modification of the 1973 
Final Judgment (I-B-506-09a). The 1975 order specifically notes 
the court's "continuing jurisdiction pursuant to Paragraph XIV 
of the Final Judgment of July 12, 1973" (I-B-511a), specifies 
that the Original Plan's requirements are "[f]or the purpose of 
determining or securing compliance with the Final Judgment" (I-B- 
535a, 537a), and that the provisions of the Final Judgment "shall 
continue in full force and effect.,.." (I-B-509a) . And If XIV of 
the 1973 Final Judgment provided for continuing jurisdiction for 
purposes of "modification...or otherwise for the construction or 
enforcement of the final judgment," (I-A~259a).



-64-

"(1) a clear showing of (2) grievous wrong (3) evoked by new and 
unforseen conditions." These were the factors that the Supreme 
Court had said governed the modification at issue in the case of 
United States v. Swift & Co., 286 U.S. 106 (1932), relied on here 
by the Examiners (Brief pp. 40-42), The Supreme Court explained 
in United Shoe that this Swift doctrine meant simply that a 
decree may not be "changed in the interests of the defendants if 
the purposes of the litigation as incorporated in the decree... 
have not been fully achieved." United States v. United Shoe Mach. 
Corp., 391 U.S. 244, 248 (1968). In United Shoe the Court made it 
clear that the situation was entirely different where modification
was designed to achieve those purposes; "The present case 
is the obverse of the situation in Swift if the Government's 
allegations are proved.... In Swift, the defendants sought relief 
not to achieve the purposes of the provisions of the decree, but 
to escape their impact..." 391 U.S. at 249. And the Court held 
that modification should be granted if appropriate to ensure that 
the original purposes of the injunction were being fulfilled in 
all respects. 391 U.S. at 247, 251-52.

Every case cited by the Examiners as supporting the 
application of "stringent" standards to a modification request 
(Brief pp. 40-42) involved a defendant trying to eliminate or 
reduce restraints that plaintiffs still felt were necessary. These 
standards are inapplicable where, as here, the defendant Board of 
Education is not trying to escape restraints sought by the plain­
tiffs but, rather, to further the remedial purposes of the earlier



-65-

decrees by establishing a nondiscriminatory and job-related 
selection system.

(b) The 1975 Order approving the Original Plan was not 
entered by consent and even if it had been, its 
modification involved no problems of fairness to 
the Examiners.

The Examiners' entire argument on the modification issue 
is based on the faulty premise that the Original Plan was part of 
a consent judgment. As demonstrated supra pp. 17-IS it was not.

Even had it been, the 1976 modification involved none 
of the problems of fairness that make courts reluctant to modify 
certain consent decrees. See pp. 42-43 supra. The 1975 Order was 
never implemented in any significant way. The only step taken 
under it was the development of invalid job analyses by the Board 
of Education. Plaintiffs therefore never gained any benefits from 
it as alleged by the Examiners (Brief pp. 73-75). (The Examiners 
try to confuse the issue by combining discussion of the 1973 Judg­
ment with the 1975 Order. Plaintiffs did obtain certain benefits 
from the 1973 Judgment as did the Examiners. See p. 43 supra.
But that has no bearing on the propriety of modifying the 1975 
Order.) Nor did the Examiners give up any of their powers by 
agreeing to the Original Plan. Had that plan never been approved 
by the Court, the Board of Education would have been able to move 
for approval of the Modified Plan pursuant to the 1973 Judgment.

* * * * *

Accordingly, the stringent requirements for modification 
applicable to the Examiners' request to vacate the 1973 Judgment 
are not applicable to the 1976 modification of the 1975 Order.



-66-

(2) The modification here was appropriate since the evidence 
demonstrated that the Modified Plan was more likely than 
the Original Plan to produce a nondiscriminatory and .job- 
related selection system.

The Supreme Court stated, in a case relied on by Judge 
Pollack in the decision below, that equitable orders require "a 
continuing willingness to apply [the court's] powers and processes 
on behalf of the party who obtained that equitable relief." System 
Fed'n No. 91 v. Wright, 364 U.S. 642, 647 (1961). The test, the 
Court said in another case relied on by Judge Pollack, "is whether 
the change served to effectuate or to thwart the basic purpose of 
the original consent decree." Chrysler Corp. v. United States, 316 
U.S. 556, 562 (1942). And in United Shoe, supra, the Supreme Court 
made clear that the issuing court has not only the power but the 
duty to modify an order for equitable relief if its principal 
objectives have not been met, and "to prescribe other, and if 
necessary more definitive, means to achieve the result." 391 U.S. 
244, 252 (1968). See generally 11 WRIGHT & MILLER §2961 at 600, 
603-04.

Modification can be based on changes in operative facts. 
And "the power of equity has repeatedly been recognized as exten­
ding also to cases where a better appreciation of the facts in 
light of experience indicates that the decree is not properly 
adapted to accomplishing its purposes." King-Seeley Thermos Co. 
v. Aladdin Indus., Inc., 418 F.2d 31, 35 (2d Cir. 1969). See also 
Equal Employment Opportunity Comm'n v. United Ass'n of Journeymen



-67-

& Apprentices, 438 F.2d 408, 414 (6th Cir. 1971), cert, denied, 
404 U.S. 832.

case.
These principles were clearly operative in the instant

The 1973 Consent Judgment settled the issue of liabil­
ity and granted plaintiffs the fundamental right to relief. Its 
provisions regarding relief were comparable to those that would 
have been included in a final judgment following an adjudication 
of liability in a typical employment discrimination case; they 
were also comparable to, although somewhat more detailed than, 
the provisions contained in the preliminary injunction which was 
of course the result of an adjudication. See, pp, 14, 15-16, supra 
A key aspect of the remedial relief envisioned by the 1973 Judg­
ment was the development of a new permanent selection system that 
was nondiscriminatory and job-related. And the stated purpose of 
the 1975 Original Plan was the development of such a system (I-B- 
513a).

The Board of Education demonstrated below, on the basis 
of its experience attempting to implement the Original Plan, that 
it was not likely to serve the purposes of the 1975 and the 1973 
orders -- development of a nondiscriminatory and job-related 
system -- whereas its proposed Modified Plan was. See pp,20-21, 
supra. And the court found that the Modified Plan was in fact
better suited to achieve those purposes. See pP- 21-22, supra.



-68-

Under these cirexamstances modification was clearly appropriate. 63/

C. The Relief Requested by the Examiners Would in no Event be 
Appropriate -- the Examiners' Motion to "Implement" Cannot 
be Granted

The Examiners have asked this Court to rule not only 
that Judge Pollack's approval of the Board of Education’s motion 
to modify be reversed, but also that the Examiners' motion to 
"implement" the 1975 order be granted. That motion to "implement" 
in fact constituted a request for radical modification, so as to 
grant to the Examiners responsibilities delegated under the 
Original Plan to the Board of Education for the development of 
job analyses. Those analyses were key to the Original Plan's 
Step 1 examinations (I-B-513-19a); and the requirement that the 
Board of Education prepare them was one of the most significant 
protections contained in that Plan against the Examiners simply 
continuing to administer a system with flaws substantially

68/—  The Examiners' argument regarding the court's failure to hold 
a full evidentiary hearing prior to entry of the 1976 order (Brief 
pp. 53-56) also is without merit. There is no doctrine such as 
that relied on by the Examiners. Courts need not hold evidentiary 
hearings prior to modifying an order but, rather, have discretion 
to determine the kind of hearing appropriate. See^ e. g ,, Standard 
Newspapers, Inc, v. King, 375 F.2d 115 (2d Cir, 1967) (per curiam); 
Semmes Motors, Inc.v. Ford Motor Co,, 429 F.2d 1197, 1205 and n.
11 (2d Cir7 1970); Jones v. Jones, 217 F,2d 239 (7th Cir. 1954). 
Moreover the Examiners not only fail to indicate here how they 
were prejudiced by the absence of oral testimony, but they never 
asked below for an opportunity to present such testimony. Rather 
they chose to proceed by way of affidavit. They are accordingly 
precluded from objecting to that procedure. Semmes Motors, Inc. 
v. Ford Motor Co., supra, 429 F.2d at 1205; Jones v. Jones, supra, 
217 F.2d at 242 (7th Cir. 1954).



69-

identical to those in the system originally challenged. Turning 
this responsibility over to the Examiners, ostensibly as a 
sanction for misconduct by the Board of Education, would there­
fore have the effect of vitiating the relief won by plaintiffs 
in this case. Moreover job analyses -- designed to assess the
qualifications needed to serve as supervisors -- are by law the

hi!responsibility of the Board of Education. Granting this res­
ponsibility to the Examiners would thus give them a freedom from 
any outside constraint in the development of examinations which 
they did not have prior to the institution of this suit, and 
which violates New York law.

Moreover the premise on which the Examiners' motion to 
"implement" was based is false, since the Board of Education had 
demonstrated no recalcitrance in complying with the terms of the 
Original Plan. In fact it was in large part the Board's very 
efforts to carry out that Plan that resulted in its conclusion 
the Plan should be modified. The Examiners' complaint is really 
with the fact that the Board apparently tried to comply with the 
Plan's requirements that the job analyses be reviewed to deter­
mine whether they provided a sound basis for developing valid 
examinations. Having determined they did not, the Board made a 
negative decision regarding their acceptability which decision,

— ! See N.Y.Educ.Law §2254 (Board of Education's responsibility 
regarding all positions to "define their duties"); see also N.Y. 
Educ.Law §2573.10 (Board of Education to "designate... the kind of 
grades and licenses which shall be required for service... to­
gether with the academic and professional qualifications required 
for each kind of grade or license.")



-70-

by the Plan's express requirements, "shall be final." (I-B-517a) 
Depriving the Board of Education of its responsibili­

ties under the Original Plan would be warranted only by contemp­
tuous defiance of the court's order clearly not present here.
This is plain from the two decisions relied on by the Examiners, 
both of which involved such conduct -- Gautreaux v. Chicago 
Housing Authority, 402 U.S. 922 (1971), and Wagner v. Warnasch, 
156 Tex. 334, 295 S.W.2d 890 (1956). And in neither of those 
cases did the courts grant the kind of extraordinary relief 
sought here. Rather they simply established precise deadlines 
for compliance.

Nor does F.R.Civ.P. 70, on which the Examiners rely, 
provide any support for the extraordinary relief requested. In 
providing that, where a party has refused to perform an act man­
dated by court order, the court may direct performance of the act 
"by some other person," that rule clearly contemplates appoint­
ment of an impartial third person, or a party to whom an express 
duty is owed (see Wagner v, Warnasch, supra). The Examiners 
satisfy neither criterion.

The essential purpose of the contempt power and of 
F.R.Civ.P.70 is to ensure that plaintiffs are provided the relief 
to which they are entitled under court orders. The Examiners are 
attempting to twist these remedies so as to vitiate the relief 
plaintiffs have won in this case.

Finally, the impropriety of the Examiners' motion is 
demonstrated by their admission that to carry out new job analy- 

or even patch up the old invalid ones which is clearlyses



-71-

their intent ---they would require funds which they could obtain 
only if the Court would order the Board of Education to turn them 
over. See I-C-927-28a; Examiners' Brief p. 82. Granting
the Examiners' motion to "implement" would involve improper in­
trusion by the federal courts into local educational affairs.

CONCLUSION

For the reasons stated above, the district court's 
order approving the Board of Education's Modified Plan for the 
selection of supervisors must be affirmed,

DATED: New York, New York i
November 19, 1976

Respectfully submitted,

ELIZABETH B. DuBOIS 
(Legal Action Center of the 

City of New York, Inc.) 
271 Madison Avenue 
New York, New York 10016 
(212) 679-6502
GEORGE COOPER
435 West 116 Street
New York, New York 10027
JEANNE R, SILVER
20 West 40 Street
New York, New York 10018
JACK GREENBERG 
DEBORAH GREENBERG 
10 Columbus Circle 
New York, New York 10019