# Caulfield v. Board of Ed. of City of New York

> District Court, E.D. New York · August 27, 1979 · 486 F. Supp. 862

URL: https://www.frixlaw.com/law-library/cases/1753674

## Case

- **Full name:** William CAULFIELD Et Al., Plaintiffs, Albert Shanker Et Al., Intervenors-Plaintiffs, Theodore Elsberg Et Al., Intervenors-Plaintiffs, v. the BOARD OF EDUCATION OF the CITY OF NEW YORK Et Al., Defendants, the Coalition of Concerned Black Educators Et Al., Intervenors-Defendants, Ronald Ross, Intervenor-Defendant
- **Court:** District Court, E.D. New York
- **Decided:** August 27, 1979
- **Citations:** 486 F. Supp. 862; 24 Fair Empl. Prac. Cas. (BNA) 1418; 21 Empl. Prac. Dec. (CCH) 30,389; 1979 U.S. Dist. LEXIS 10176
- **Precedential status:** Published
- **Opinion:** Opinion by Weinstein
- **Judges:** Weinstein
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1753674

## Opinion text

MEMORANDUM
WEINSTEIN, District Judge:
TABLE OF CONTENTS
I. Background of the Litigation 867
A. Events Leading to the Memorandum of Understanding 867
B. The Related ESAA Funding Controversy 869
C. Prior Litigation in This Case 871
D. Litigation Regarding ESAA Fund Ineligibility 872
II. Parties, Issues and Standard of Review in this Litigation 875
III. Preliminary Issues 878
A. Standing 878
B. Jurisdiction 878
1. Title VI of the Civil Rights Act 878
2. Title IX of the Education Amendments 882
*866
IY. Evidence 885
A. Background 886
1. Statutory Framework 886
a. Prior to Decentralization 886
b. Following Decentralization 886
2. Historical Backdrop of Criticism 887
3. Board Procedures for Assigning Teachers 893
a. Prior to Decentralization 894
1. Elementary Schools 894
2. Junior High and High Schools 895
b. During Interim Period 895
c. Following Decentralization 895
1. Elementary and Junior High Schools 895
2. High Schools 897
d. The Problem of Assignment Declination Following the Budget
Crisis 897
4. Demographic Changes in Student Population 897
B. OCR’s Charges and Evidence 898
1. Racially discriminatory selection and testing procedures and racially identifiable employment pools 898
a. racially identifiable employment pools 898
b. racially discriminatory selection and testing procedures 901
1. “pass-fail score” 902
2. “numerical score above passing” — rank order 903
3. “date of examination” 906
2. Assignment of teachers in a manner that has created, confirmed
and reinforced the racial or ethnic identifiability of the system’s schools 908
3. Assignment of teachers with less experience, lower average sal-
aries and fewer advanced degrees to schools with higher percentages of minority students 913
4. Denial to women of equal access to positions as principals and assistant principals throughout the system 916
C. Rebuttal Evidence 919
V. Summary and Conclusions 923
This is yet another chapter in the challenge to the September 7, 1977 “Memorandum of Understanding” (“agreement”) between the New York City Board of Education (“Board”) and the Office for Civil Rights of the United States Department of Health, Education and Welfare (“OCR”). The agreement purports to remedy alleged violations by the Board of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d
et seq.,
and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681
et seq.,
with respect to hiring and assignment of teachers, and hiring of supervisory personnel. Alleging that OCR had no jurisdiction to investigate what they deem “employment” practices under either Title VI,
see
42 U.S.C. § 2000d-3, or Title IX, and that the agreement itself violates Title VI, Title IX, and the fifth and fourteenth amendments, plaintiffs and intervenorplaintiffs seek injunctive and declaratory relief voiding the agreement. For the reasons indicated below, no relief is warranted.
Following a bench trial, this Court delivered an oral opinion and filed written findings of fact and conclusions of law. This Memorandum elaborating on the Court’s oral opinion may be of assistance on the appeals.
*867
I.
Background of this Litigation
A. Events Leading to the Memorandum of Understanding
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title IX of the Education Amendments of 1972, in similar language, prohibits discrimination on the basis of sex in “any education program or activity” receiving federal funds. Each federal department and agency is charged with assuring compliance with these provisions in the programs and activities under its jurisdiction; each must adopt regulations toward this end.
See
42 U.S.C. § 2000d-l; 20 U.S.C. § 1682 .
See, e. g.,
45 C.F.R. §§ 80.1-80.13 (Title VI regulations of Department of Health, Education and Welfare); 45 C.F.R. §§ 86.1-86.71 (Title IX regulations of Department of Health, Education and Welfare). In addition to requiring initial assurances of nondiscrimination in every application for federal assistance,
see, e. g.,
45 C.F.R. § 80.4 , federal departments are required to conduct periodic compliance reviews and to investigate and resolve individual or class complaints of discrimination arising under any federally assisted program they supervise. See, e.
g.,
45 C.F.R. § 80.7 ;
see also Brown v. Weinberger,
417 F.Supp. 1215 (D.D.C.1976) (requiring expeditious compliance investigations and enforcement proceedings by HEW under Title VI). In the event that efforts to achieve voluntary compliance fail, a federal department must terminate or with-' hold federal funding to programs in violation of the statutes,
see
42 U.S.C. § 2000d-1(1), or seek compliance by other means authorized by law, see
id.
§ 2000d-l(2).
The Department of Health, Education and Welfare supervises various programs of federal aid to the New York City school system. On November 9, 1976, OCR Director Martin Gerry sent a letter to the Chancellor of the New York City Schools' specifying alleged areas of noncompliance by the school system with Titles VI and IX. The letter focused on the “employment” phase of OCR’s review of the system. It charged that the Board had, in violation of Title VI, discriminated on the basis of race and national origin by,
(1) den[ying] minority teachers full access to employment opportunity through the use of racially discriminatory selection and testing procedures and through the use of racially identifiable employment pools in a manner that discriminatorily restricts the placement of minority teachers;
(2) assigning] teachers, assistant principals and principals in a manner that has created, confirmed and reinforced the racial and/or ethnic identifiability of the system’s schools; and
(3) assigning] teachers with less experience, lower average salaries and fewer advanced degrees to schools which have higher percentages of minority students.
It also charged that the Board had, in violation of Title IX, discriminated on the basis of sex by,
(1) denypng] females equal access to positions as principals and assistant principals throughout the system;
(2) providpng] a lower level of financial support for female athletic coaching programs; and
(3) deprivpng] female teachers of seniority rights and other compensation through failure to eliminate the effects of past discriminatory leave policies.
The letter ordered the Board to submit a plan within ninety days to “remedy the discrimination and provide corrective action where individual cases of discrimination are identified.” It noted that OCR’s goal was “to end discrimination not to cut off federal funds.”
After receipt of the November 9, 1976 letter, the Chancellor appointed Deputy Chancellor Bernard Gifford to serve as chairperson of an internal Board committee to review and evaluate OCR’s specific dis
*868
crimination allegations. The result of this review, a report entitled Race, Ethnicity and Equal Employment Opportunity: An Investigation of Access to and Assignment of Professional Personnel in New York City’s Public Schools (June 1977) (“Gifford Report”) (Def.-Int. Ross’ Ex. 106), substantiatéd and confirmed many of OCR’s findings, though it denied any discriminatory intent on the part of the Board.
See Caulfield v. Board of Education of the City of New York,
583 F.2d 605 , 609 & n. 5 (2d Cir. 1978). On April 22, 1977, the Board submitted its response to the OCR allegations; it suggested affirmative efforts to equalize employment opportunities:
[wjithout admitting any violation of law, [the response] expressed [the Board’s] determination to rectify “disparate employment opportunities” and proposed an equal employment opportunity plan to “insure equality of opportunity and avoidance of discrimination.” [The plan] suggested affirmative efforts to increase the number of minority teachers, to improve integration of the teaching staff, and to correct disparities of experience, salary and educational level in the distribution of personnel. The plan also advocated goals for integration of faculty based upon a numerical index, legislative replacement of rank order lists with qualifying lists for teacher selection, and a new system of teacher certification and selection.
Caulfield v. Board of Education of the City of New York, supra,
583 F.2d at 608 .
OCR rejected this compliance plan. Further negotiations during July and August resulted in the promulgation of the September agreement, which is challenged in this lawsuit. The agreement calls for the implementation of a three year plan to eliminate alleged discrimination in the selection and assignment of teachers and supervisors in the City’s public schools. The terms, which OCR accepts as compliance with Titles VI and IX as to matters covered, include the following, designed gradually to equalize minority and non-minority teacher distribution throughout the school system and to increase minority hiring and appointment of women supervisors through affirmative action:
1. Not later than September of 1979, the teacher corps of each District in the system will reflect, within a range of five percent, the racial-ethnic composition of the system’s teacher corps as a whole for each educational level and category, subject only to educationally-based program exceptions.
2. Not later than September of 1980, each individual school in the system will reflect, within a range of five percent, the racial-ethnic composition of the system’s teacher corps as a whole for each educational level and category, subject only to educationally-based program exceptions.
3. The Board of Education will demonstrate to the Office for Civil Rights, subject to prescribed review, that’any failure to meet the commitments set forth in paragraphs one and two hereof results from genuine requirements of a valid educational program. In addition, the Board will demonstrate that it has made and is continuing to make special efforts to overcome the effects of educationally-based program exceptions through effective use of such mechanisms as recertification, recruitment and special assignment of teachers.
4. The Board . . . will adopt and implement the following affirmative action procedures, and will sponsor and actively support state legislation at the next session of the Legislature where necessary to accomplish these ends.
(a) Any test used henceforth to determine whether a person is qualified for a teaching position in the system shall be validated prior to its being administered; except that in cases of demonstrable educational necessity ... a test may be used prior to its validation for temporary assignments, provided that validation shall be accomplished as soon as practicable. .
(b) All existing eligibility lists by license shall be combined, and the names of all persons contained thereon shall be
*869
merged with the names of any persons who have passed any new tests, without regard to the dates of examinations.
(c) Rank ordering of persons who have passed examinations for the system shall be abolished.
(d) In employing and assigning teachers pursuant to these modified standards and procedures, the Board . . . will implement affirmative action mechanisms found to be appropriate, such as, for example, giving hiring preferences to all eligible persons with prior experience in the system.
5. The Board . . . agrees that, in the event that the above-described legislation is not adopted so as to govern employment decisions for the 1978-79 school year, the Board will seek appropriate litigation in support of the agreed objectives.
6. The Board agrees, as soon as practicable to have performed a study of the relevant qualified labor pool by race, ethnicity and sex by an independent expert acceptable to the parties and pursuant to methodology and standards agreed to by the parties. Through the adoption and implementation of the affirmative action procedures and legislation provided in paragraph 4 . and other efforts . the Board commits that by September of 1980, the levels of minority participation in the teaching and supervisory service will be within a range representative of the racial and ethnic composition of the relevant qualified labor pool.
It is understood that this commitment shall not require the Board to lay off any teacher currently employed by the Board or to hire any teacher who has not met appropriate requirements for employment, not inconsistent with this agreement. It is further understood that the commitment made herein does not establish quotas. Failure to meet this commitment shall not be considered a violation of this agreement if the Board demonstrates that it has implemented the provisions of this agreement in a good faith effort to meet the commitment made herein.
[A footnote to this portion of the agreement stated that “The commitment herein is subject to applicable standards of law. (see
Hazelwood School Dist. v. United States
[ 433 U.S. 299 ], 97 S.Ct. 2736 [ 53 L.Ed.2d 768 ].”]
8. The Board . . . commits itself to pursue a program of affirmative action to increase the number of women in the supervisory service, including a plan to reach a systemwide level of participation by women within a range representative of the pool of available qualified women by a date to be agreed upon . The Board further agrees that it will establish a procedure whereby no person shall be appointed to a supervisory position until an affirmative action officer in the central personnel administration has studied the file of applicants for the particular position and determined that the appointment process demonstrates good faith compliance with the affirmative action plan. . . .
B. The Related ESAA Funding Controversy
In January, 1977 — two months after receiving OCR’s letter alleging violation of Titles IY and IX — the Board, along with various local school boards, submitted applications for funding under the Emergency School Aid Act, 20 U.S.C. § 1601
et seq.,
to the Department of Health, Education and Welfare. The funds sought were to provide services for an estimated 40,000 students. In April, 1977, the Board, as instructed by HEW staff, submitted a revised application; HEW officials then informed the Board that the educational programs described in the April, 1977 applications met all HEW programmatic and fiscal requirements and were approved as to content and amount, subject only to a determination that no other legal impediments to funding existed.
In early June, 1977, the applicant school boards were informed that ESAA funding
*870
would be denied for the 1977-78 school term. HEW based this decision upon the conclusions stated in the November 9, 1976 létter from OCR to the Board. Subsequently, HEW modified its position: ESAA funding would be denied solely on the ground of discrimination in assignment of teachers in the City’s public schools. But a compromise resulted in ESAA funding being allowed to all the local school district applicants with the exception of District 11; the other local districts had agreed to reassign teachers to eliminate racial disparities in the schools within their control. Pursuant to ESAA regulations,
see
45 C.F.R. § 185.46 , District 11 and the Board were given an opportunity at an administrative show cause hearing to contest the determination of ESAA funding ineligibility. After the hearing — and one week after the agreement was entered into by the Board and OCR — HEW informed District 11 and the Board that the evidence presented at the hearings had not caused HEW to reconsider its decision. The boards then submitted evidence to HEW in support of waivers oí ineligibility,
see
20 U.S.C. § 1605 (d)(1), 45 C.F.R. § 185.44 , but to no avail.
A similar dispute arose with respect to ESAA funding for 1978-1979. Again HEW denied the Board’s application for reasons of segregated teaching staffs.
C. Prior Litigation in this Case
On October 31, 1977, plaintiffs — local school board officials, school boards, supervisors, teachers and parents — filed this action seeking declaratory and injunctive relief voiding the agreement between the Board and OCR. They alleged that, by requiring teacher assignment on the basis of race, the agreement violated Title VI, Title VII,
see
42 U.S.C. § 2000e-2, and the fifth and fourteenth amendments. The Council of Supervisors and Administrators (CSA), the United Federation of Teachers (UFT) and various local school boards were permitted to intervene as plaintiffs. Defendants — HEW and the Board — asserted that Titles VI and IX empowered them to reach such an agreement which protects, rather than violates, the constitutional and statutory rights of New York City residents. Further, HEW — along with intervenor-defendant Ronald Ross (a black New York City School teacher), and amici, the Coalition of Concerned Black Educators, the Public Education Association, and the American Civil Liberties Union — contended that the Board had carried out and maintained a discriminatory and illegally segregated system of teacher hiring and assignment which required the remedial action undertaken by the-agreement.
Noting that the parties had presented “substantial substantive questions,”
see Caulfield v. Board of Education of the City of New York,
449 F.Supp. 1203, 1206 (E.D. N.Y.1978), this Court addressed what it identified as a “preliminary matter of transcendent importance.”
Id.
at 1206 . It found that because the procedures HEW followed did not provide for some form of public participation by those whose rights were so directly affected, HEW had failed to comply with the procedural requirements of Title VI itself, which the Court read as mandating that “drastic governmental action of this nature . . . cannot result solely from secret, informal negotiations conducted exclusively by a handful of government officials.”
Id.
at 1206-07 . As this Court noted:
[The primary issue is] due process and the right to a hearing before important administrative action affecting the rights of individuals and institutions is taken. The huge power concentrations in the bureaucracies of our governments must not be permitted to be exercised secretly and arbitrarily. No matter how benign and well-intentioned, those government officials who can, in practical effect, turn on or off the source of hundreds of millions of dollars, must conduct themselves with scrupulous regard for procedural protections. Not only must the result be just, but, if the people are to retain their faith in their government, the means used to achieve the result must be fair.
Id.
at 1206 . The court found that although the UFT had been consulted with respect to the specific terms of the agreement prior to
*871
its adoption, the other parties in the litigation had not been; rather, along with the public, they had been “presented with an accomplished fact.”
Id.
at 1212 .
See also id.
at 1212-13 (describing interests of intervenors-plaintiffs and intervenors-defendants and lack of consultation with them prior to agreement promulgation). This court summed up the nub of the procedural problem:
It is disingenuous to suggest . that the general discussions about discrimination in the City school system . obviated the need for a hearing on the particular terms of the Agreement. In point of fact, announcement of the Agreement came as a surprise to all those indirectly involved as well , as the public, save for the small coterie who actually participated in negotiating its terms. No one has ever denied that serious racial problems exist in the schools of the City of New York. The issue was— and is — what specific remedies are to be adopted. On this dispositive point of judgment and power there never was an opportunity for public participation of the kind minimally required. . . .We cannot ignore what every person involved in negotiations — labor, commercial or political — knows: it is the “details,” the precise “drafting,” not global principles, that are usually the bones of contention.
Id.
at 1213 . This court remanded the case to HEW to devise an appropriate procedural mechanism which would guarantee that those parties affected by the agreement would have at least “an opportunity to voice their opinions” before any agreement was ratified.
Id.
at 1227 .
On appeal, the Second Circuit reversed, approving the procedures followed by HEW in promulgating the agreement, and ruling that potentially aggrieved or concerned parties had no right to be heard.
See Caulfield v. Board of Education of the City of New York,
583 F.2d 605 (2d Cir. 1978). Rigidly applying the enforcement scheme set forth in 42 U.S.C. § 2000d-l, the court held that neither the statute, nor HEW regulations, “provide for public participation or a hearing when HEW acts informally.” 583 F.2d at 614 .
Because HEW did not seek compliance by fund termination, but rather by a voluntary agreement, HEW was not required to afford [plaintiffs or others] an opportunity to participate. The action taken here to effect compliance was precisely the type of action contemplated by Congress in using the phrase “voluntary means.”
Id.
In rejecting this court’s “totality of circumstances” approach, which had found the agreement something less than voluntary, the circuit court concluded:
Nevertheless, the district court held that participation was mandatory on the basis that the agreement was not voluntary. The principal reason for the . finding of involuntariness was that the City Board, along with the City as a whole, was in the midst of a fiscal crisis and presumably could not afford a fund termination while it litigated the issue of Title VI compliance. But the only fund termination sought by HEW related not to Title VI funds but to [ESAA] funds. To be sure, a threat of potential fund termination lurked in the background since without such leverage voluntary compliance might possibly never be achieved. And after all, if there is lack of compliance, HEW is obligated to enforce the statute ultimately by terminating funds. . . . Undoubtedly then there is a certain amount of coercion inherent in the enforcement scheme. . .
Undercutting any actual coercion, however, are several points. The City Board’s own study, the Gifford Report, confirmed the conditions cited in the November 9 letter from OCR. Moreover, the City Board’s press release indicated that the agreement had been reached in a spirit of cooperation. . . . The City Board’s commitments under the [agreement], despite its impact on teachers and supervisors, came about by the City Board’s decision to comply with OCR’s interpretation of Title VI, not by any fund-termination action by OCR. .
*872
In addition, there was ample opportunity to communicate with the City Board between the time the terms of the agreement became publicly known and the time of its ratification, but no party . sought to participate during that hiatus, although most parties were consulted in the interim.
In any event, the statutory scheme requires a hearing with notice only when HEW seeks fund termination. .
Id.
at 614-15 .
The Court of Appeals affirmed this court’s holding that it was appropriate for HEW and OCR to require the Board and local districts to furnish data on the racial or ethnic background of students, teachers and supervisors by individual schools. It held that in “the context of this OCR investigation . . . , the collection of racial and ethnic data is authorized by Title VI.”
Id.
at 611 .
Having characterized the agreement as voluntary both as contemplated by the statute and in fact, the circuit court remanded the challenge to its validity to this court. In so doing, it noted that it had not passed on plaintiffs’ contentions that HEW was without jurisdiction to take action upon allegations that employment practices discriminated against minorities, that the practices complained of in the OCR letter did not constitute illegal and unconstitutional discrimination against minorities, and that the agreement and the Board’s actions thereunder resulted in illegal “reverse discrimination” and deprived them of liberty and property without due process of law.
See Caulfield v. Board of Education of the City of New York,
583 F.2d 605 , 607 n. 1 (2d Cir. 1978). As noted below, it is this court’s view that by characterizing the agreement as voluntary in fact, the circuit court substantially defined the appropriate standard for review of the constitutional and statutory validity of the agreement upon remand.
See
Section II,
infra.
D. Litigation Regarding ESAA Fund Ineligibility
Following HEW’s denial to the Board and District 11 of ESAA funding for the 1977-78 school year, the Board filed suit alleging that the determination of ineligibility was arbitrary, capricious and illegal under the Administrative Procedure Act, 5 U.S.C. § 702
et seq.
The facts upon which HEW based its determination are, in certain major respects, identical to those underlying the agreement at issue in this case, for HEW initially based its ruling on the charges of Title VI violations resulting from teacher assignment practices outlined in the OCR letter to the Board. In addition, the resolution by this Court and the Second Circuit of the legal issues surrounding HEW’s ESAA determination bear, in some respects, on the legal issues raised in this case. For these reasons — although this court does not suggest that any of the factual determinations or results of the ESAA litigation are binding on the parties to this litigation — it is relevant to briefly review the ESAA litigation.
In
Board of Education v. Califano,
No.
771
C 1928 (E.D.N.Y., November 18, 1977), this court concluded that because HEW had failed to properly consider evidence proffered in rebuttal by the Board at the administrative show cause hearings held to review the ESAA ineligibility determination, it was necessary to remand the funding dispute to HEW for further administrative consideration.
First, the court concluded that the statistical data relied upon by HEW — data identical to that presented and relied on in part in this ease as to the teacher assignment issues — did “lend support to HEW’s finding that subsequent to 1972 there was a pattern of assigning teachers by the Central Board in a way that would tend to correlate the race of the teacher with the predominant race of the students in the school . [and supported] a direct correlation between the numbers of minority teachers and the percentage of minority students in the City’s schools when the schools are broken down into groups of low, medium and high minority school population.”
See id.
at pp. 16-20 .
*873
Second, the court concluded that the Board had presented substantial evidence at the administrative hearing that there was neither intentional discrimination nor a pattern or practice after 1972 of assigning teachers by race. This evidence — also presented in large part in this case — included a school-by-school analysis of the history of some forty high schools where the minority staff and student populations correlated, arguments that any disparities from an integrated staffing distribution were beyond Board control because caused by state law as to teacher appointment, demographic changes in the New York City public school student population, provisions in collective bargaining agreements, low availability of minority personnel in the available labor pool, and incidence and distribution of vacancies only in specific teacher license areas.
See id.
at pp. 25-33 . Similar rebuttal evidence — and challenge to the HEW statistics — was presented as to staffing of District 11 schools.
See id.
at pp. 33-38 .
Third, the court found that HEW had failed to properly consider the rebuttal evidence submitted by the Board. Instead, it had erroneously relied on an interpretation of the ESAA statute which permitted a statistical disparity alone to constitute a violation.
See id.
at pp. 39-41 ;
see also
45 C.F.R. § 185.43 (b)(2) (“no educational agency shall be eligible for assistance . if ... it has had or maintained in effect any practice, policy or procedure which results in discrimination including the assignment of teachers ... in such a manner as to identify any . . . schools as intended for students of a particular race . . .). The Court held that this interpretation of the statute was improper, for it created, in effect, an irrebuttable presumption that disparate ethnic statistics constituted discrimination in violation of the statute. While “statistical disparities alone [may] provide the basis for a rebuttable . presumption of discrimination [s]ome aspect of
mala fides,
no matter how remote or indirect, must be attributable to the [school authorities] before they can be found to have illegally racially discriminated.”
Id.
at 42, 44 . Thus, the court ruled that, in order to hold the Board ineligible for ESAA funds, HEW would have to make a finding either that
(1) the school board was maintaining an illegally segregated school system on June 23, 1972 and . . . took no effective steps to desegregate after that date or (2) . . . had a practice after [that date] that was segregative in intent, design, or foreseeable effect. It may rely on statistics alone to make this finding, but it may not ignore evidence tending to rebut the inferences drawn from the statistics.
Board of Education v. Califano,
77 C 1928 (E.D.N.Y., November 18,1977) at pp. 49-52. Because HEW had not fairly considered the rebuttal evidence, the court remanded the case to it for further consideration.
Id.
at 52 .
After remand, HEW determined that under the standard outlined by this court, the Board and District 11 were ineligible for ESAA funding. Applying the “substantial evidence” standard for review of administrative determinations,
see Board of Education v. Califano,
77 C 1928 (E.D.N.Y., November 18, 1977) at pp. 53-54, this court upheld HEW’s determination.
See Board of Education v. Califano,
584 F.2d 576 , 578 (2d Cir. 1978).
On appeal, the Second Circuit affirmed the determination that the Board and District 11 were ineligible for ESAA funding.
See Board of Education v. Califano,
584 F.2d 576 (2d Cir. 1978). It disagreed, however, as to the appropriate standard to be applied under the statute for purposes of determining whether unlawful discrimination had been shown. And more importantly for purposes of this case, in so doing the appellate court relied heavily on its interpretation of the appropriate standard under Title VI — the statute now at issue.
The circuit court first noted that 45 C.F.R. § 185.43 (b)(2) prohibited teacher assignment practices that served to identify schools as designed for students of a particular race.
Board of Education v. Califano,
*874
584 F.2d 576 , 578-81 (2d Cir. 1978). It then proceeded to review the manner in which teacher appointments and assignments are made in the City’s schools under New York law, finding that while decentralization and the examination procedures mandated by New York law in large part controlled the appointment of teachers,
[irrespective of how the teachers are appointed, ultimate control still remains with the Chancellor [and the Board], He retains the power to rescind illegal teacher assignments and to compel a local board’s compliance with all applicable provisions of law. In addition, he is vested with all powers and duties of the superintendent of schools of the city district, which include “the power to transfer teachers from one school to another.”
Id.
at 582 (footnotes omitted). The court then reviewed the statistics upon which HEW had based its initial finding of ineligibility:
Racial and ethnic statistics demonstrated that in school year 1975-76 62.6% of high school students were minority students whereas 8.2% of high school teachers were minority teachers. Seventy percent of minority high school teachers were assigned to high schools in which minority student enrollment exceeded 70%, even though these high schools employed only 48% of the system’s high school teachers. Conversely, in high schools in which there were proportionately a low number of minority teachers, minority student enrollments were below 40%.
Similar correlations between the racial/ethnic composition of the faculty of community school districts and the racial/ethnic composition of the student bodies within these school districts exist. For the same school year, 14.3% of the teachers and 69.7% of the students in elementary schools were minority, and 16.7% of the teachers and 70.1% of the junior high school students were minority. Quite clearly, the schools with minority student enrollments over 90% identifiably had the highest percentage of minority faculty by a substantial margin. Similarly, community school districts with minority student enrollments under 50% contained a disproportionately low percentage of minority faculty.
Id.
at 583-84 (footnotes containing additional statistical analysis omitted).
See also id.
at 584-85 (additional statistical data).
Declaring that neither the “substantial disproportions” nor the fact of statistical racial identifiability were contested by the Board, the circuit court proceeded to consider the sole issue before it: whether “the statute and regulation must be construed to require HEW to establish that the disparities resulted from purposeful or intentional discrimination in the constitutional sense.”
Board of Education v. Califano,
584 F.2d 576 , 587-88 (2d Cir. 1978). The court held that they did. not:
While appellants argue that HEW’s decision to deny ESAA funds relies solely on statistical evidence of disparate impact, contrary to the Supreme Court cases construing the Fourteenth Amendment, we need not reach the question whether the evidence supports a finding of purposive segregative intent. Because we are dealing with an act of Congress, as amplified by HEW regulations, and not with a judicial determination whether certain acts have produced a Fourteenth Amendment violation, it is permissible for Congress to establish a higher standard, more protective of minority rights, than constitutional minimums require. For example, Title VII cases have not required proof of discriminatory motive, at least where the employer is unable to demonstrate that requirements causing a disparate impact are sufficiently related to the job. .
Here, Congress intended to permit grant disqualification not only for purposeful discrimination but also for discrimination evidenced simply by an unjustified disparity in staff assignments. This conclusion seems clear from the statute which expressly requires that all ESAA “guidelines and criteria ... be applied uniformly . . . without regard to the origin or cause of such segregation.” .
Moreover, the ESAA proscrip
*875
tion against employment discrimination forbids discriminatory acts and practices which violate statutory civil rights provisions such as Title VI of the Civil Rights Act .
.
. . It is significant that Title VI findings of discrimination may be predicated on disparate impact without proof of unlawful intent.
Id.
at 587-89 (citations and footnotes omitted) (emphasis added). Applying this standard, the court held that HEW had properly concluded that
the Central Board failed to present a sufficient justification for the racial disparities in teacher and staff assignments. The proffered justifications for the substantial disparities . . . included (1) restrictions on the transfer of teachers written into the collective bargaining agreement, (2) the desirability of teaching assignments in [nonminority] schools, (3) the unwillingness of many nonminority teachers to teach in predominantly minority schools and (4) the unequal distribution of licenses in specific areas. None of these explanations is adequate to justify the racial disparities in staff assignments. The unequal distribution of licenses resulted from the very examinations which OCR previously determined had produced a raciálly significant disparate impact [in its November 9, 1976 letter to the Board at issue in this case]. . Leaving aside whether the remaining justifications are sufficient as a matter of law, they have not been supported by adduced facts appearing on the record.
Id.
at 589. The Supreme Court has granted certiorari.
See Board of Education v. Califano,
440 U.S. 905 , 99 S.Ct. 1211 , 59 L.Ed.2d 453 (1979).
A second wave of ESAA litigation involved New York City’s application for 1978-79 ESAA funding. Despite the fact that the City was presumably carrying out the agreement to eliminate any alleged discrimination in hiring and assignment of teachers and supervisors, HEW took the position that the Board was ineligible for aid since it “had in effect ... [a] practice, policy or procedure” of racial discrimination after June 1972. The Board’s request for discretionary waiver of ineligibility was denied on the ground that a waiver was not possible until all the effects of discrimination had been fully eliminated. This court held that HEW had an “unduly limited view of its statutory discretionary powers to grant a waiver.”
Board of Education of the City of New York v. Califano,
464 F.Supp. 1114 (E.D.N.Y.1979). Accordingly, it granted an injunction to protect the funds and remanded the application for a 1978-79 waiver to HEW for further consideration.
Id.
at 1127 . This case is presently on appeal to the Second Circuit.
II.
Parties, Issues and Standard of Review in this Litigation
It is against this complex administrative, procedural, and litigation background that this court considers plaintiffs’ challenges to the September, 1977 agreement. Not surprisingly, the posture of the litigation has caused confusion as to the precise issues before this Court, and a conflict — particularly among defendants — as to the appropriate stance to take in defense of the agreement. Perhaps in the most uncomfortable position has been the Board itself: striving to uphold the agreement as a voluntary action entered into to redress perceived inequalities and reform what it views, in large part, as outmoded and unjust teacher employment and assignment practices largely beyond its direct control, it has understandably been unwilling to admit that it has engaged in intentional or otherwise unlawful discriminatory practices. Instead, drawing a strong analogy to
United Steelworkers of America v. Weber,
443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), it has urged this court to validate the agreement as a reasonable, voluntary and permissive exercise of its pedagogic and administrative authority over the New York City public school system. The other defendants — HEW, intervenor-defendant black school teacher Ross, and the Coalition of Concerned Black Educators — urge the
*876
same result; they, however, would be quite satisfied (and have introduced evidence towards this end) to have this court declare the Board in violation of Title VI, Title IX, and the Constitution.
Plaintiffs (a local school board, teachers, parents, and school supervisors) along with intervenors-plaintiffs (the Council of Supervisors and Administrators and the United Federation of Teachers), of course take a diametrically different view. They seek to bring this case squarely within the parameters of
Regents of the University of California v. Bakke,
438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978). Thus, they argue that the agreement sets up what amounts to a quota system mandating the hiring and assignment of teachers and supervisors on the basis of race. And because, they urge, there has been no judicial or formal administrative finding of intentional discrimination by the Board in violation of the fourteenth amendment (a standard they view as applicable also to Titles VI and IX), and the evidence will not support such a finding,
Bakke
will not permit the remedial measures contemplated by the agreement. In addition, plaintiffs argue that under Titles VI and IX, HEW was without jurisdiction to investigate the employment practices of the Board, and thus to draw the Board into the statutory enforcement scheme which resulted in promulgation of the agreement.
Thus, the issues in this case emerge as follows: First, under Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, did HEW through OCR have jurisdiction to investigate and seek compliance with regard to the employment practices of the Board outlined in the November 9, 1976 letter from OCR to the Board? Second, if so, does the agreement entered into by the Board and OCR to resolve the allegations of statutory noncompliance result in impermissible “reverse discrimination” violative of plaintiffs’ rights under the equal protection clause of the fourteenth amendment, the implied equal protection principle of the fifth amendment, or under Titles VI and IX, or otherwise deprive plaintiffs of liberty or property without due process of law in violation of the fifth or fourteenth amendments?
For the reasons discussed in Section III,
infra,
HEW and OCR did have jurisdiction, under both Titles VI and IX, to investigate the employment practices challenged in the November 9, 1976 letter to the Board. While it is true that Title VI contains a provision exempting from its coverage employment practices except where employment is a “primary objective” of financial assistance,
see
42 U.S.C. § 2000d-3, and that Title IX has been read implicitly to include such a provision, there is no need to reach the issue of whether the financial assistance involved in this case had as a primary objective the provision of employment. Rather, under the particular facts and circumstances of this case, what has been termed the “infection” theory of jurisdiction applies: because those practices HEW and OCR investigated had or could have a discriminatory effect upon students, who are the direct beneficiaries of the financial aid, HEW action was appropriate.
In determining the appropriate standard of review, this court is bound by the Second Circuit’s determination in
Caulfield v. Board of Education of the City of New York,
583 F.2d 605 (2d Cir. 1978), that the agreement at issue must be deemed “voluntary” both as a matter of law under Titles VI and IX and as a matter of fact. Thus, in many respects, the analogy of this case to
United Steelworkers of America v. Weber,
443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), is a powerful one. Titles VI and IX encourage voluntary steps by federal and local governmental agencies to eliminate possible discrimination in programs receiving federal financial assistance; the statutes require attempts at conciliation before federal officials may initiate formal enforcement efforts.
See 42
U.S.C. § 2000d-1; 20 U.S.C. § 1682 .
See also Alabama NAACP State Conference of Branches v. Wallace,
269 F.Supp. 346 , 351—52 (M.D.Ala.1967) (three-judge court);
Citizens Legal Defense Alliance v. Department of Health, Education and Welfare,
No. CV
*877
76-1614 (C.D.Cal., June 24,1977) (upholding compliance agreement with regard to employment practices of Los Angeles school system). Since the Title VI and IX voluntary compliance scheme is initiated by federal government investigation and transmittal of evidence outlining specific allegations of statutory violations, there is added assurance that any voluntary remedial measures adopted will redress possible discriminatory practices on the part of the fund recipient itself (here, the Board). The argument for a plan designed to avoid future racial and sex discrimination is thus much stronger here than it was in either
Regents of the University of California v. Bakke,
438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978) or
United Steelworkers of America v. Weber,
443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979). It is inappropriate, as the Second Circuit has implicitly ruled in
Caulfield,
to require a formal administrative or judicial finding of discrimination, whether in violation of the Constitution or some lesser statutory standard, before such remedial action may be taken.
The agreement must be judged essentially by the standards applied in judicial review of class action settlements. The issue for determination is simply whether the parties entering into a Title VI or IX remedial plan had a reasonable basis for believing that the practices at issue might result in liability, and whether the remedial measures adopted are reasonable in view of the perceived liability.
Cf., e. g., Patterson v. Newspaper & Mail Deliverers’ Union of New York and Vicinity,
514 F.2d 767, 771 (2d Cir. 1975) (district judge must “satisfy himself that the settlement agreement was equitable to all persons concerned and in the public interest”);
Alaniz v. California Processors, Inc.,
73 F.R.D. 269, 278 (N.D. Cal.1976) (court must conclude settlement is fair, reasonable and adequate; “The most important factor to be considered is the strength of the plaintiff’s case. [but] the court should not endeavor to make a final determination of liability . .”);
Armstrong v. Board of School Directors of the City of Milwaukee,
471 F.Supp. 800 (E.D.Wis.1979) (approval of proposed plan to remedy pupil segregation) (same).
See generally
3B Moore’s Federal Practice, ¶ 23.80[4] at pp. 23-515—23-528. Any voluntarily agreed resolution of the dispute may not, of course, violate the rights of third parties.
As noted in Sections IV and V,
infra,
the extensive evidence presented at trial demonstrates that the Board and OCR had a reasonable basis for entering into the agreement and that it was reasonable for the Board to conclude (though it does not preclude a contrary conclusion) that had it gone to litigation (whether administrative, if OCR had been forced to initiate formal hearings to effect a fund cutoff,
see
42 U.S.C. § 2000d-l; 45 C.F.R. §§ 80.8 — 80.10, or judicial, had OCR elected to seek compliance by “any other means authorized by law,”
see
42 U.S.C. § 2000d-l(2)) it would have been found in violation of Title VI and Title IX. Moreover, the remedial measures embodied in the agreement represent a reasonable resolution of the charges of statutory violation levelled by OCR. First, they constitute a fair attempt to remedy the scope of the violations alleged. Second, they do not straightjacket the Board into an abdication of its primary pedagogic and administrative authority over the New York City school system, but rather provide for flexibility and consideration of the Board’s preeminent responsibility for assuring the best possible education of the city’s school population. Third, they represent measures which the Board could have chosen to initiate on its own in the exercise of its authority over the school system. Fourth, when viewed against what the Board could reasonably have believed would have been a judicial remedy had OCR elected to seek such a remedy, or had a class of private plaintiffs sought such a remedy, they emerge as a reasonable accommodation. And finally, because the remedial measures in fact establish goals and not rigid quotas, and because they do not restrict the opportunities of any of the plaintiffs (or any person) to seek or hold employment in the school system, they do not as presently structured impact in an unconsti
*878
tutional or statutorily violative fashion on plaintiffs’ rights.
III.
Preliminary Issues: Standing and Jurisdiction
A. Standing
At this stage of the litigation, defendant HEW and defendant-intervenor Ross question the standing of all plaintiffs to challenge the September, 1977 agreement and the jurisdictional appropriateness of OCR’s inquiry into the Board’s employment practices. It would be unjust to deny standing to these plaintiffs. They must be given their day in court.
First, in
Caulfield v. Board of Education of the City of New York,
449 F.Supp. 1203, 1221-23 (E.D.N.Y.),
aff’d in part and rev’d in part on other grounds,
583 F.2d 605 (2d Cir. 1978), this court considered, in some detail, the standing issue. It found that plaintiff teachers, supervisors and administrators might suffer “injury in fact” as a result of implementation of the agreement.
See
449 F.Supp. at 1222-23 . Even though one of the types of injury identified by the court — that resulting from possible forced transfers of teachers and administrators— may arguably not be ripe for consideration at this time, since the Board now takes the position that the agreement will not require it to execute such transfers, and the Board and OCR have agreed that the assignment provisions of the agreement will not apply to supervisors at least pending further negotiations, the other injuries identified by the court still remain. Plaintiffs have thus suffered “ ‘some threatened or actual injury resulting from the putatively illegal action.’ ”
Warth v. Seldin,
422 U.S. 490, 499 , 95 S.Ct. 2197, 2205 , 45 L.Ed.2d 343 (1975) (citing
Linda R.S. v. Richard D.,
410 U.S. 614, 617 , 93 S.Ct. 1146 , 35 L.Ed.2d 536 (1973)). Apart from this “minimum constitutional mandate,” 422 U.S. at 499 , 95 S.Ct. 2197 , plaintiffs have standing under the additional prudential considerations relevant to invocation of federal court jurisdiction. They do not present the court with a “ ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens,”
id.; cf. Schlesinger v. Reservists to Stop the War,
418 U.S. 208 , 94 S.Ct. 2925 , 41 L.Ed.2d 706 (1974). Rather, they have demonstrated sufficiently that “the challenged practices harm [them], and that [they] personally would benefit in a tangible way from the court’s intervention.”
Warth v. Seldin,
422 U.S. 490, 508 , 95 S.Ct. 2197, 2210 , 45 L.Ed.2d 343 (1975).
See also Caulfield v. Board of Education of the City of New York,
449 F.Supp. 1203, 1223 (E.D. N.Y.1978).
Second, policy considerations support standing. Because the Second Circuit has determined that plaintiffs had no right to be heard in the process that lead to the promulgation of the agreement,
see Caulfield v. Board of Education of the City of New York,
583 F.2d 605 (2d Cir. 1978), if plaintiffs are to be heard at all, they must be heard in this court. To deny such a hearing in the circumstances of this case would work an injustice: it would permit a federal agency and a local governmental agency, under the banner of “voluntarism”, to take far-reaching steps affecting vital societal institutions and substantial individual interests without question or challenge from directly effected parties.
See
Tribe,
Seven Pluralist Fallacies: A Reply to Mr. Justice Rehnquist,
38 U.Miami L.Rev. 43, 46-47 (1978).
Finally, it is at least implicit in the Second Circuit opinion in
Caulfield v. Board of Education of the City of New York,
583 F.2d 605 (2d Cir. 1978), that that court viewed plaintiffs here as possessing standing.
See id.
at 607 n. 1 (outlining issues for resolution on remand). Given the short shrift that court accorded concerns for plaintiffs’ participation in the process leading up to the promulgation of the agreement, it is hardly conceivable that had the Second Circuit perceived any serious standing issue in this case, it would have not have passed directly on the issue.
B. Jurisdiction
Plaintiffs argue that under Title VI and Title IX, HEW and OCR had no jurisdiction
*879
to investigate or seek compliance with re-. gard to the Board’s teacher and supervisory employment practices. In their Title VI argument, they proceed from the language of the statute. On the Title IX issue, they argue an implied exclusion. As to both, they urge that insofar as HEW regulations authorize investigation and action respecting employment practices, those regulations are invalid as beyond the scope of the authorizing statutes.
1. Title VI of the Civil Rights Act
Title VI, 42 U.S.C. § 2000d, provides that: No person . . . shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d-l sets forth the duty and requirements of federal agency enforcement of the § 2000d prohibition. 42 U.S.C. § 2000d-3 limits the scope of § 2000d-l:
Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer . . . except where a primary objective of the Federal financial assistance is to provide employment.
Plaintiffs argument against HEW and OCR jurisdiction proceeds directly from the language of § 2000d-3: they view OCR’s investigation, letter, and the agreement in this case as directed at the Board’s teacher and supervisory employment practices; because, they urge, almost none (if any) of the federal grants to the Board has as a “primary objective” the provision of employment, the statute itself barred OCR’s efforts.
Under the circumstances of this case, it is not necessary to address the issue whether any of the federal assistance to the Board had as a primary objective provision of employment. Nor is it a dispositive semantic consideration whether, under § 2000d-3, federal grants may have several primary objectives, or merely one; there is no need to consider whether “a primary objective” is to be read as “the primary objective.”
Cf.
Tr. at 744 (testimony of former OCR director Martin Gerry) (program of assistance may have several primary objectives);
id.
at 741 — 49, 960-65 (Gerry questioned by plaintiffs’ counsel as to primary objective of various federal grants to Board). OCR simply did not act under a theory that it could take action with regard to the Board’s employment practices because a primary objective, however defined, of the federal assistance was the provision of employment.
See
Tr. at 631-37, 741-49, 960-65 (testimony of Gerry).
Rather, OCR proceeded, in large part, under the authority of 45 C.F.R. § 80 .-3(c)(3), as outlawing discriminatory teacher employment practices which cause discriminatory effects on school children who are clearly intended as primary beneficiaries of federal largesse. It reads in part:
When a primary objective of the Federal financial assistance is not to provide employment,
but discrimination on the ground of race, color or national origin in the employment practices of the recipient . tends, on the ground of race, color or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies,
the foregoing provisions of this paragraph (c) shall apply to the employment practices of the recipient
... to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.
(emphasis added). In sum, the regulations provide that where oversight of a recipient’s employment practices is required to protect direct beneficiaries from discrimination — in other words, where discriminatory employment practices have a discriminatory effect upon direct beneficiaries — HEW and OCR may take action under Title VI to redress those practices and effects.
In this case, OCR has alleged, in summary, that the hiring and assignment practices of the Board — when viewed against the backdrop reality of a school system that,
de
*880
facto
or otherwise, contains a large number of schools populated predominantly by either majority or minority students — result in the bulk of minority staff being assigned to minority schools while majority schools have relatively few minority teachers. This, OCR contends, creates or reinforces a picture of schools in the system being designed for students of either majority or minority race. With specific regard to the Board’s hiring practices, OCR argues that those practices which rely on employment through examinations promulgated by the Board of Examiners have the effect of disproportionately excluding black and other minority teachers from the system. In addition, OCR points out that a result of the Board’s hiring and assignment practices has been to provide minority schools with less experienced, lower salaried teachers who have completed fewer graduate courses; this, OCR charges, has the effect of denying minority students equal educational opportunity.
In
United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966),
aff’d en banc,
380 F.2d 385 (5th Cir.),
cert. denied sub nom. Caddo Parish School Board v. United States,
389 U.S. 840 , 88 S.Ct. 67 , 19 L.Ed.2d 103 (1967), the court rejected the argument that 42 U.S.C. § 2000d-3 barred HEW from taking action under Title VI with regard to teacher hiring and assignment practices.
See
372 F.2d at 881-86 . After reviewing the legislative history of §§ 2000d and 2000d-3, Judge Wisdom concluded that,
In its broadest application [the argument that § 2000d-3 barred action with regard to teacher employment practices] would allow racial discrimination in the hiring, discharge, and assignment of teachers. In its narrowest application this argument would allow discrimination in hiring and discharging but not in assigning teachers, an inexplicable anomaly. There is no merit to this argument. . Faculty integration is essential to student desegregation. To the extent that teacher discrimination jeopardizes the success of desegregation, it is unlawful wholly aside from its effect upon teachers.
Congress did not, of course, intend to provide [in Title VI] a forum for the relief of individual teachers who might be discriminatorily discharged; Congress was interested in a general requirement essential to success of the program as a whole.
[§ 2000d-3] was never intended as a limitation on desegregation of schools. If the defendants’ view of [the statute] were correct the purposes of the statute would be frustrated, for one of the keys to desegregation is integration of faculty.
Id.
at 882-83.
The view that segregation in the allocation of faculty is part and parcel of the problem of school segregation, and that it must be remedied if the effects of segregation on students are to be ameliorated, finds strong support in a long line of Supreme Court and lower court decisions. Preeminent is
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 18 , 91 S.Ct. 1267, 1277 , 28 L.Ed.2d 554 (1971):
[W]here it is possible to identify a “white school” or a “Negro school” simply by reference to the racial composition of teachers and staff ... a
prima facie
case of violation of substantive constitutional rights under the Equal Protection Clause is shown.
See also Columbus Board of Education v. Penick,
443 U.S. 449 , 99 S.Ct. 2941, 2948 , 61 L.Ed.2d 666 (1979) (Court cites
Swann
with approval; adopts Court of Appeals’ conclusion that teacher segregation “[serves] to deprive black students of opportunities for contact with and learning from white teachers, and conversely to deprive white students of similar opportunities to meet, know and learn from black teachers. It also serve[s] as discriminatory, systemwide racial identification of schools,”
id.,
99 S.Ct. at 2951);
Dayton Board of Education v. Brinkman,
443 U.S. 526 , 99 S.Ct. 2971 , 61 L.Ed.2d 720 (1979) (Court reaffirms “relevance of segregated faculty assignments as one of the factors in proving the existence
*881
of a school system that is dual for teachers
and
students,”
id.,
99 S.Ct. at 2978 n. 9; cites fact that only after HEW intervened under Title VI did “faculty segregation disappear . . . completely,”
id.
at 2980 n. 11);
Milliken v. Bradley,
433 U.S. 267 , 97 S.Ct. 2749, 2758-59 , 53 L.Ed.2d 745 (1977) (Court reaffirms fact that faculty desegregation is critical to eliminating or ameliorating effects of student segregation),
aff’g
540 F.2d 229 , 247 (6th Cir. 1976) (faculty integration “helps to mitigate the fact that the majority of Detroit’s children are left in schools that are overwhelmingly one race [and] serves to provide . . . children with the maximum desegregation experience possible under the circumstances”);
Keyes v. School District No.
1, 413 U.S. 189, 196 , 93 S.Ct. 2686 , 37 L.Ed.2d 548 (1973) (segregative teacher assignment policies relevant in identifying segregated schools),
on remand,
521 F.2d 465 , 484 & nn. 23, 24 (10th Cir. 1975),
cert. denied,
423 U.S. 1066 , 96 S.Ct. 806 , 46 L.Ed.2d 657 (1976) (faculty desegregation crucial to successful integration plan; where percentage of minority teachers is low, disproportionate assignment to schools with predominantly minority students is faculty segregation);
Davis v. Board of School Commissioners,
402 U.S. 33, 35 , 91 S.Ct. 1289 , 28 L.Ed.2d 577 (1971) (Court reaffirms
Swann;
requires schools to have faculty ratio in each school substantially the same as in district as a whole);
United States v. Montgomery County Board of Education,
395 U.S. 225, 231-35 , 89 S.Ct. 1670, 1674 , 23 L.Ed.2d 263 (1969) (faculty desegregation “an important aspect of the basic task of achieving a public school system wholly free from racial discrimination”);
Bradley v. School Board, City of Richmond,
382 U.S. 103, 105 , 86 S.Ct. 224, 225 , 15 L.Ed.2d 187 (1965) (“no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plan is entirely speculative”; court must consider effect of faculty segregation);
Rogers v. Paul,
382 U.S. 198, 200 , 86 S.Ct. 358, 360 , 15 L.Ed.2d 265 (1965) (students have standing to sue on theory that “racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils”);
Otero v. Mesa County Valley School District,
568 F.2d 1312, 1314 (10th Cir. 1978) (students have standing to challenge, on Title VI grounds, discriminatory teacher hiring practices on basis of allegation that they have an adverse effect upon educational opportunity);
Morgan v. Kerrigan,
530 F.2d 431, 432-33 (1st Cir. 1976) (faculty hiring, promotion and transfer policies violate the rights of students),
cert. denied,
426 U.S. 935 , 96 S.Ct. 2648 , 49 L.Ed.2d 386 (1976),
aff’g
379 F.Supp. 410, 457-66 (D.Mass.1974) (faculty assignment practices resulted in less qualified, less experienced teachers in predominantly minority schools; right of students to equal educational opportunity violated);
Singleton v. Jackson Municipal Separate School District,
419 F.2d 1211, 1218 (5th
Cir.),.cert. denied,
396 U.S. 1032 , 90 S.Ct. 611, 612 , 24 L.Ed.2d 530 (1970) (faculty segregation must be remedied so that “in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students”).
If any further demonstration were necessary that, in the school context, HEW’s determination under 45 C.F.R. § 80.3 (c)(3) that discrimination in teacher employment practices on the grounds of race may result in discrimination against students who are the direct beneficiaries of federal assistance, it was provided by the testimony in this case of Dr. Kenneth Clark:
The period since 1954 has only served to reinforce the conclusions that I had advanced at that time, regarding the deleterious impact of segregated school systems and the positive value of an integrated system. My research, experience and reading in the field has led me to conclude that desegregation generally improves the quality and value of the educational experience for minority students. In a segregated school system where schools can be identified as and are perceived of as “black” or “white” the community as a whole and students in particular perceive of the quality of the education in the black schools as inferior. That
*882
perception becomes a self-fulfilling prophecy.
It is not minority students alone, who are injured by educational segregation. As I stated in the social science material that I prepared in connection with
Brown v. Board of Education,
segregation undermines the quality of education for white students as well as black. Public education serves a broader purpose than instruction in the basic academic skills. Education aims to free the human mind from irrational fears, superstition and hatred. It also functions to broaden cultural horizons and to eliminate stereotyped beliefs and behavior. Segregated education cannot perform these broader functions. . . . [T]he values and attitudes that are transmitted to our children by the continued existence of a segregated faculty are those of an unequal and racist society.
. . [T]he racial and ethnic segregative patterns which are pervasive throughout the New York City school system are clearly injurious to the intended beneficiaries of that system, the students. .
'When student segregation is reinforced, as it is by patterns of faculty segregation, the unfortunate impact of school segregation becomes that much more acute.
Affidavit of Dr. Kennth Clark (Def.-Int. Ross’ Ex. 124) at ¶¶ 14, 18, 19 (emphasis added);
see also
Tr. at 1798-99, 1804-05, 1836, 1839-41 (testimony of Dr. Clark).
Cf. Ambach v. Norwick,
441 U.S. 68 , 99 S.Ct. 1589, 1594-96 , 60 L.Ed.2d 49 (1979) (noting critical role of schools in our nation in transmitting basic values on which our democracy rests, and, in particular, importance of teachers as role models and value transmitters).
Other courts which have considered the propriety of HEW’s exercise of Title VI jurisdiction under circumstances analagous to those present in this case have upheld the jurisdiction, or indicated its validity.
See, e. g., United States v. El Camino Community College District,
454 F.Supp. 825 (C.D. Cal.1978);
Board of Public Instruction of Taylor County v. Finch,
414 F.2d 1068, 1078, 1079 (5th Cir. 1969) (dictum);
United States v. Frazer,
297 F.Supp. 319, 322 (M.D.Ala. 1968) (dictum);
Citizens Legal Defense Alliance v. HEW,
No. CV 76-1614 (C.D.Cal., June 24, 1977) (implication).
Cf. Brown v. Weinberger,
417 F.Supp. 1215 (D.D.C.1976) (requiring expeditious HEW compliance investigations and enforcement proceedings in pending cases, including that of New York school system);
Marable v. Alabama Mental Health Board,
297 F.Supp. 291 (M.D.Ala.1969) (equal protection violation in staff segregation at mental institutions by analogy to school segregation cases; implication that jurisdiction exists under Title VI).
Under the circumstances of this case, HEW and OCR had jurisdiction to investigate whether or not the Board’s employment practices were in compliance with Title VI and, upon concluding that they were not, to seek enforcement (whether through voluntary compliance or otherwise) of the statutory proscription. Discrimination by race in the hiring and assignment of teachers or supervisors, as a matter of law and of fact, constitutes discrimination against students. And because students are clearly the ultimate beneficiaries of federal assistance to school systems, HEW’s regulation 45 C.F.R. § 80.3 (c)(3), as applied to this case, constitutes a valid interpretation of the statutory mandate.
2. Title IX of the Education Amendments
Title IX, 20 U.S.C. § 1681 , provides: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance .
While the statute contains no specific employment exclusion provision comparable to that of Title VI of the Civil Rights Act of 1964,
see
42 U.S.C. § 2000d-3, the courts have been virtually uniform in implying
*883
such an exception to its mandate. They reason that (1) Title IX was modeled on Title VI, see
Cannon v. University of Chicago,
441 U.S. 677 , 99 S.Ct. 1946, 1951, 1956-57 , 60 L.Ed.2d 560 (1979); (2) Title IX was originally contemplated as an amendment to Title VI adding sex discrimination in educational programs to the prohibitory language; (3) Title IX was enacted as part of a broader package that included amendment of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e
et seq.,
to include prohibition of sex discrimination in employment and of the Equal Pay Act, 29 U.S.C. § 206 (d), to provide the Secretary of Labor jurisdiction to regulate discrimination in compensation in educational employment, and these latter statutes were designed to regulate employment; and (4) Title IX’s coverage exceptions,
see
20 U.S.C. § 1681 (a)(l)-(9), indicate a congressional intent to closely confine the statute’s coverage of discrimination against students, so that if Congress had intended the statute to cover employment discrimination, it would certainly have written those provisions to cover employment practices of the excluded programs.
See Romeo Community Schools v. HEW,
438 F.Supp. 1021, 1029-34 (E.D. Mich.1977).
See also Junior College Dist. of St. Louis v. Califano,
597 F.2d 119 (8th Cir., 1979),
aff’g
455 F.Supp. 1212 (E.D.Mo.1978);
Islesboro School Committee v. Califano,
593 F.2d 424 (1st Cir., 1979);
Board of Education of Bowling Green v. HEW,
19 F.E.P. Cases 457 (N.D.Ohio 1979);
Brunswick School Board v. Califano,
17 F.E.P. Cases 475 (D.Me.1978);
Seattle University v. HEW,
16 F.E.P. Cases 719 (W.D.Wash. 1978).
The only sex discrimination claim at issue in this case is OCR’s charge in the November 9, 1976 letter that the Board, on the basis of sex, has “denied females equal access to positions as principals and assistant principals throughout the system.” The agreement addresses this concern by requiring the Board to take affirmative action to increase the number of women in supervisory positions to approach their representation in the qualified labor pool, and by mandating review of supervisory appointments to insure that the process has conformed to the affirmative action plan.
See
Agreement, ¶ 8.
HEW regulations elucidating the scope of Title IX’s coverage of employment practices are extremely broad. As a general proposition, the department apparently takes the view that the statute does permit it to directly monitor a wide range of grantee employment practices.
See, e. g.,
45 C.F.R. § 86.51 (a)(1) (no covered grantee may discriminate on grounds of sex in employment or recruitment); 45 C.F.R. § 86.51 (b) (prohibited practices include discrimination in recruitment, hiring, promotion, rates of pay, assignments, fringe benefits, pregnancy leave, social events).
See also
45 C.F.R. § 86.6 (requirements of Title IX independent of those of Title VII of the Civil Rights Act and the Equal Pay Act).
It would be hard to sustain HEW’s Title IX jurisdiction in this case under the direct authority of the department’s “employment” regulations, 45 C.F.R. §§ 86.51-86.61 . As noted above, the cases considering the validity of these regulations have almost uniformly concluded that they are beyond the authority granted by the statute.
See Romeo Community Schools v. HEW,
438 F.Supp. 1021 (E.D.Mich.1977) (discrimination in pregnancy policies not reached by Title IX; 45 C.F.R. §§ 86.51
et seq.
invalid);
Junior College Dist. of St. Louis v. Califano,
597 F.2d 119 (8th Cir. 1979),
aff’g
455 F.Supp. 1212 (E.D.Mo.1978) (differential compensation claim not reached by Title IX; 45 C.F.R. §§ 86.51 , 86.54 invalid);
Islesboro School Committee v. Califano,
593 F.2d 424 (1st Cir., 1979) (pregnancy policies not reached by Title IX);
Board of Education of Bowling Green v. HEW,
19 F.E.P. Cases 457 (N.D.Ohio 1979) (compensation claim not reached by Title IX; 45 C.F.R. §§ 86.51 , 86.54 invalid);
Brunswick School Board v. Califano,
17 F.E.P. Cases 475 (D.Me.1978) (discrimination concerning marital, parental or family status not reached by Title IX; 45 C.F.R. § 86.57 (c) invalid);
Seattle University v. HEW,
16 F.E.P. Cases 719 (W.D.Wash. 1978) (compensation claim not reached by Title IX; 45 C.F.R. §§ 86.51
et seq.
invalid).
*884
In this case, however, it appears that HEW proceeded on another theory of Title IX jurisdiction. As former OCR director Martin Gerry (who presided over the investigation of the Board) testified:
I think it’s the same point [with regard to jurisdiction under Title VI] which was my view [that] the question of program activity and impact on beneficiaries are separate issues. Title VI [and IX] [in] my judgment [cover] any employment category where the person in the category has a direct or consequential contact with beneficiaries — students, so, therefore, it covers . . . principals, assistant principals, counselors, other personnel of this sort. . . . [The] principle objective [of the funding issue] is never reached because in fact the employment categories] themselves so directly bear on the rights of beneficiaries and treatment of beneficiaries that any person in those categories of employment are going to be reached through the students.
Tr. at 963-64.
See also
Tr. at 632.
To the extent that this jurisdictional theory proceeds on the generai assumption that wherever a grantee’s employee has substantial contact with a direct beneficiary, all the grantee’s employment practices with regard to that employee are subject to Title IX, it is overbroad under the teaching of the
Romeo
line of cases. But insofar as this theory proceeds by analogy to that accepted for reaching school employment practices under Title VI — that such practices may be reached where there is an arguable discriminatory impact on direct beneficiary students — it provides a colorable basis for the exercise of jurisdiction in this case.
Decisions by the United States Supreme Court involving allegations of sex discrimination violative of the fourteenth amendment have stressed, in large part, that the constitutional guarantee protects against legislative classifications, or state action, which rest on stereotypic, overbroad or archaic generalizations about the respective roles, qualities and fitness of the sexes.
See, e. g., Personnel Administrator of Massachusetts v. Feeney,
442 U.S. 256 , 99 S.Ct. 2282, 2296 , 60 L.Ed.2d 870 (1979) (dicta) (“keeping women in a sterotypic and predefined place” is impermissible legislative purpose);
Califano v. Webster,
430 U.S. 313 , 97 S.Ct. 1192, 1195 , 51 L.Ed.2d 360 (1977) (dicta) (“ ‘archaic and overbroad generalizations’ about women ... or . ‘the role-typing society has long imposed’ upon women . . . such as casual assumptions that women are ‘the weaker sex’ ” suspect);
Califano v. Goldfarb,
430 U.S. 199 , 97 S.Ct. 1021, 1026-27 , 51 L.Ed.2d 270 (1977) (classification forbidden “when supported by no more substantial justification than ‘archaic and overbroad’ generalizations ... or ‘old notions’ . that are more consistent with ‘the role-typing society has long imposed’ . than with contemporary reality”);
Craig v. Boren,
429 U.S. 190 , 97 S.Ct. 451, 457 , 50 L.Ed.2d 397 (1976) (“increasingly outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas’ [have been] rejected as loose-fitting characterizations incapable of supporting . . . statutory schemes that were premised upon their accuracy”);
Stanton v. Stanton,
421 U.S. 7 , 95 S.Ct. 1373, 1378 , 43 L.Ed.2d 688 (1975) (“No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and world of ideas. . . . Women’s activities and responsibilities are increasing and expanding. . . . The presence of women in business, in the professions, in government and, indeed, in all walks of life where education is a desirable, if not always a necessary, antecedent is apparent and a proper subject of judicial notice.”);
Weinberger v. Wiesenfeld,
420 U.S. 636 , 95 S.Ct. 1225, 1231 , 43 L.Ed.2d 514 (1975) (“ ‘archaic and overbroad’ generalization ‘not . . . tolerated under the Constitution’ ”).
Cf. Dothard v. Rawlinson,
433 U.S. 321 , 97 S.Ct. 2720, 2729 , 53 L.Ed.2d 786 (1977) (“it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterization of the sexes”).
*885
Allegedly discriminatory practices which intend or result in limited access of women to, and small numbers of women in, supervisory school positions may well retard' our society’s effort — as reflected in congressional legislation and Supreme Court cases construing the equal protection clause — to eradicate outdated and stereotypic notions about the proper role of women.
For
example, the Court takes judicial notice of the fact that historically in New York City, a large percentage of the teaching force, particularly at the lower school levels, has been composed of women. Fed.R.Evid., Rule 201. If, in fact, women are not appropriately represented in the higher levels of the school hierarchy, students — male and female — may well be presented with the notion that while women may teach, they are not suited, or qualified, to occupy positions of added authority and broader responsibility. Such an impression might well carry over to a view of the appropriate role of women in society as a whole. In considering the possible deleterious effect of allegedly sexually discriminatory school employment practices on students, one cannot ignore that,
[p]ublic education . . . ‘fulfills a most fundamental obligation of government to its constituency.’ The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by [Supreme Court] decisions . . These perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.
Ambach v. Norwick,
441 U.S. 68 , 99 S.Ct. 1589, 1594-95 , 60 L.Ed.2d 49 (1979) (citations omitted).
This is not to suggest that the possible effect of sexually discriminatory school employment practices on students is as clear or severe as that of racially discriminatory practices, nor that our society’s discrimination against women — often based on outmoded notions rather than animus — is as pernicious or historically ingrained in law and practice as that against blacks. All this court concludes is that HEW could reasonably proceed in this case under Title IX on a theory that school employment practices which involve systemic discrimination against women in access to supervisory positions had, or would have, a deleterious impact on students as direct beneficiaries of federal financial assistance. This conclusion is supported by dicta in those cases rejecting direct HEW purview over employment practices under Title IX indicating that, under different circumstances, the “infection” theory of jurisdiction would permit HEW to regulate certain such practices.
See, e. g., Islesboro School Committee v. Califano,
593 F.2d 424, 430 (1st Cir. 1979) (“[a] nexus between the discrimination against employment and its effects upon students must first be shown”);
Brunswick School Board v. Califano,
17 F.E.P. Cases 475, 481 (D.Me.1978) (practice must “ultimately have a discriminatory effect on students”).
IY.
Evidence
The evidence presented at trial supports the allegations made in the November 9, 1976 letter from OCR to the Board, and the remedial provisions of the September, 1977 agreement. There was a legal basis for OCR’s charges and the remedial measures. As emphasized in Section II,
supra,
it is both unnecessary and inappropriate to decide whether the Board practices in question would dictate a finding of discrimination — either under an “intent” standard or an “effects” standard, in violation of the Constitution or the statutes. Rather, the sole purpose of the presentation here is in connection with the issues of fact and law presented by this particular case: whether, given all the evidence, (1) the parties (and particularly the Board) could have reasonably believed a violation of the Constitution or the statutes could be shown; and (2) the measures adopted by the agreement represent a fair and reasonable effort to re
*886
solve any such reasonably perceived violations of law.
A. Background
In order to properly assess what would have been the Board’s reasonable belief as to the validity and effect of the charges leveled by OCR, and to put those charges in context, it is necessary first to understand (1) the legal framework under which the Board makes its teacher hiring and assignment decisions; (2) the historical backdrop of criticism of this framework and its effects; (3) the procedures the Board has used in making assignment decisions; and (4) the changing characteristics of the New York City school system’s student population.
1. Statutory Framework
Hiring and assignment of teachers in New York City schools is largely governed by New York Education Law. In recent years, that law has governed hiring and assignment in two different ways, a. Prior to Decentralization
Prior to 1969, hiring and assignment of teachers to schools was accomplished directly under the jurisdiction of the Board and its Superintendent. Pursuant to N.Y. Educ.Law § 2573 (10) teacher appointments in the city were made on a competitive basis. A Board of Examiners,
see
N.Y. Educ.Law § 2569 , developed and conducted competitive examinations for pedagogical positions. Candidates for permanent elementary school positions normally were licensed by a general examination (now known as “common branches”), and for kindergarten (“early childhood”). Candidates for appointment to junior high and high schools were licensed by examination in specific subject areas (e. g., “math, junior high school,” “English, high school”). The Board of Examiners set a passing score for each examination. Promulgated lists of eligible candidates were then given to the Board with passing candidates ranked in order of performance on the examination. The Board would then appoint, in order of their rank on the list, candidates as teachers and assign them to teaching positions in the city’s schools. Under the Education Law,
see
N.Y.Educ.Law § 2573(10), lists in a given area could not be “merged”; rather, the Board was required to offer appointment to all persons on a list from an earlier examination before it could offer appointment to any person on a list from a later examination, unless the earlier list’s statutory life had expired. The Education Law also permitted assignment of persons with substitute licenses to teaching positions where there were an insufficient number of regularly licensed teachers to fill vacancies. The eligible lists have never identified or described the race, color, or national origin of candidates for teacher assignment.
This “competitive” examination process was only mandated in the large cities of New York and Buffalo. In all other cities and school districts of the state, the legislature authorized school boards to appoint teachers who met minimum requirements set by the State Commissioner of Education and the Education Law; each board was free to set additional or higher qualifications and examine for them. Only in New York City was a separate, independent Board of Examiners required.
See
N.Y. Educ.Law §§ 2573 (9), (10), (10-a); 2569.
b. Following Decentralization
In 1969, jurisdiction over the city’s elementary and junior high schools was largely transferred to 32 Community School Districts.
See
N.Y.Educ.Law § 2590. Under the new law, hiring and appointment of teachers is accomplished in three ways.
First, for the city’s high schools, which remain under the jurisdiction of the Central Board and its Chancellor, the method is the same as under pre-decentralization law. Teachers are appointed from rank order examination lists by the Chancellor directly to the schools.
See
N.Y.Educ.Law §§ 2590-j(4)(a); 2590 — j(3)(a), (b).
Second, schools under the jurisdiction of the Community School Districts are divided for purposes of teacher appointment into two categories. Those schools with average reading scores above the 45th percentile citywide (non-45% schools), receive teacher
*887
appointments from rank order eligible lists, as prior to decentralization. The difference is that the Chancellor — rather than appointing teachers to schools directly as was formerly the case — assigns teachers from the rank order lists to the district, which then assigns teachers to individual schools within the district. While the districts must abide by the Chancellor’s designation, the law directs the Chancellor “[i]nsofar as practicable [to] . . . give effect to the requests for assignment of specific persons by the community board.” N.Y.Educ.Law § 2590 — j(4)(c); § 2590-j(3)(a), (b).
Third, those schools whose students rank in the lower 45% on the reading examination (the 45% schools), have available an alternate appointment method. For these schools, the district may appoint: (1) any person who has passed a Board of Examiners’ qualifying examination, or who appears on any existing competitive eligible list, without regard to that person’s rank order on the list (the “out of rank order” method); or (2) any person who has passed the National Teachers Examination administered by the Educational Testing Service at a pass mark equivalent to the average pass mark required by the five largest cities in the nation using this examination (the “NTE” method). These teachers, like all others, must of course meet the minimum requirement set by state law.
See
N.Y. Educ.Law § 2590 -j(5)(c). Districts may also appoint to their 45% schools via the regular appointment method.
See
N.Y. Educ.Law § 2590 -j(5)(d). In addition, where a teaching vacancy exists in a non-45% school, and no names appear on any appropriate eligible lists, the district may fill the vacancy through the NTE method. N. 5T.Educ.Law § 2590-j(6).
Finally, as the Second Circuit concluded in
Board of Education v. Califano,
584 F.2d 576 , 582 (2d Cir. 1978) (footnotes omitted):
Irrespective of how the teachers are appointed, ultimate control still remains with the Chancellor. He retains the power to rescind illegal teacher assignments and to compel a local board’s compliance with all applicable provisions of law. In addition, he is vested with all powers of the superintendent of schools of the city school district, which include “the power to transfer teachers from one school to another.”
2. Historical Backdrop of Criticism
The legislatively mandated competitive teacher appointment process — and the results that process, as implemented by the Board of Examiners and the Board of Education, has had on the allocation of teachers within the New York City school system — has historically been the subject of harsh criticism in academic, administrative, and judicial contexts. In order to assess what may be termed the “state of mind” of the Board with regard to the hiring and appointment system in general, and the OCR allegations in particular — both from a pedagogical and legal consequences point of view — it is useful to briefly outline this criticism.
In late 1954, in the wake of the Supreme Court’s landmark decision in
Brown v. Board of Education,
347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), the Board issued a policy statement which reaffirmed its commitment to equal educational opportunity for all students, and to quality integrated education. Even then, the Board noted the severe obstacles to fully realizing its goal of nondiscriminatory education:
In seeking to provide effective democratic education for all of the children of this city, the . . . Board . . . [is] faced with many real obstacles in the form of complex social and community problems. Among these problems are the existence of residential segregation which leads to schools predominantly of one race on the elementary and junior high school levels. In addition, prevailing racial attitudes and misinformation of some white and Negro parents reflect outworn patterns of segregation as well as limited educational and vocational horizons which make it difficult for them to accept school procedures contrary to their attitudes.
*888
In spite of these and other difficulties, the Board ... is determined to accept the challenge implicit in the language and spirit of the
[Brown
] decision . . We will seek a solution to these problems and take action with dispatch implementing the recommendations resulting from a systematic and objective study of the problem here presented.
“Preliminary Statement of Board of Education Resolution for Action,”
reprinted in
Toward the Integration of Our Schools: Final Report of the Commission on Integration 24-25 (1958) (Def.Bd.Ex. 30). The Board appointed a Commission on Integration to study the systemwide problem and recommend remedial action.
In its final report, which covered a broad range of education and related issues, the Commission noted earlier findings which had “sketched the steady deterioration during the preceding twenty years of the education available to [minority] children . . .” Def.Bd.Ex. 30 at 6. A major problem was the “disastrously rapid turnover of teachers in the ‘difficult’ segregated schools of the [minority] neighborhoods.”
Id.
The Commission found that
[t]he fact is . that [a minority] school, having greater problems to face in the execution of an educational program, and therefore needing a more experienced, stable and capable staff, is burdened additionally with inexperienced teachers and a more unstable staff than [a majority] school .
Id.
at 8. But it noted that “it is possible, by the quantitative and qualitative reassignment of school personnel in terms of the proportionate needs of the school populations involved, to reduce and eventually to overcome the present de facto discrimination against the minority groups,”
id.
at 9, “even if this should require modification of the present teacher assignment policies and/or the standards of the Board of Examiners.”
Id.
at 10-11;
see also id.
at 14. Towards this end, the Commission recommended: that all applicants for promotion to supervisory positions be required to serve a three-year period in minority schools; that teacher assignment be based on school needs rather than personal preferences of teachers and principals; that a ratio be established by which each school would have a similar proportion of experienced and substitute teachers; that the Board use its power of excessing to transfer teachers so as to equalize allocation of teacher experience; that all vacancies in minority schools be filled by transfer of regular experienced teachers from other schools until resources were equalized; and that all newly appointed teachers be assigned to non-minority schools for the first three years of teaching.
See id.
at 15 — 16. The Board was urged to “publicly declare and promote a policy of staff integration,”
id.
at 16. Finally, the Commission recommended “a reexamination by experts of the present procedures and techniques of the Board of Examiners,” because it was likely that those procedures had contributed to a loss to the system of qualified personnel to private industry.
Id.
The Board approved these recommendations in principle; it reserved, however, the prerogative to further study specific recommendations in light of complex administrative and other problems of implementation. It directed the Superintendent of Schools to take necessary action to carry out the intent and purposes of the Commission report.
See
Def.Bd.Ex. 30 at pp. 28-29.
In 1958, these problems were presented in an interesting context to a judicial forum. Parents of students assigned to heavily minority schools had refused to send their children to those schools on the ground that they offered inferior educational opportunity. They claimed this was due to two factors: the de facto racial segregation of student population, and the discriminatory teacher staffing policies of the Board, which resulted in inferior teachers being assigned to the predominantly minority schools. The Board brought neglect proceedings in New York State Family Court to compel the students’ attendance. But Judge Justine Wise Polier upheld the parents’ contentions.
See In the Matter of Skipworth,
14 Misc.2d 325 , 180 N.Y.S.2d 852 (Dom.Rel.Ct.1958).
*889
First, Judge Polier found extensive de facto pupil segregation in the city’s junior high schools. This, however, was found to be due primarily to “residential segregation not attributable to any governmental action”; no malfeasance or nonfeasance on the part of the Board was responsible. 180 N.Y.S.2d at 863-64 . But the court found the Board guilty of discrimination in its teacher assignment policies. While it found that there was a drastic shortage of regularly licensed teachers for junior high schools throughout the City, it concluded that there was a “city-wide pattern of discrimination against [minority schools] as compared to [majority schools]: A far greater percentage of positions in the [minority] schools were not filled by regularly licensed teachers.”
Id.
at 867-68. And “no evidence [had been] submitted to show that the Board had adopted any procedure under which correction of the discriminatory imbalance . . . could be reasonably anticipated.”
Id.
at 869. Instead, despite the findings of the Commission on Integration, 180 N.Y.S.2d at 870-71 , no concrete remedial steps had been taken:
That the Board of Education is entirely responsible for the existing discrimination in teacher assignments, there is, in my opinion, not the slightest doubt. What the Board did was to let the teachers themselves establish the discriminatory process. . . . Having put the power of assignment in the hands of teachers by default, as far as their choosing or not choosing to teach in [a minority] school . . . the Board is bound by the acts of its servants.
The Board of Education can no more plead not guilty than could the Police Commissioner if he allowed patrolmen to choose not to accept dangerous or unpleasant assignments. . . . Yet, in effect, that is all the Board . . . has done so far, in limiting the exercise of its power of assignment to the assignment of newly appointed teachers to the [minority] schools.
180 N.Y.S.2d at 871, 872 . Judge Polier suggested possible measures the Board could take to alleviate the assignment disparity: compulsory assignment of veteran teachers to minority schools for a given number of years; financial incentives to induce teachers to volunteer for difficult schools; and added services and facilities at those schools to make them more attractive places to teach. Id.
Toward Greater Opportunity: A Progress Report from the Superintendent of Schools to The Board of Education Dealing With Implementation of Recommendations of the Commission on Integration (June, 1960) (Def.Bd.Ex. 31), indicates some of the steps taken by the Board to remedy the pattern of unequal allocation of teacher resources identified by the Commission on Integration (and Judge Polier’s opinion). The report points out that surveys of elementary schools, for example, had found inequalities in the proportion of licensed teachers serving in “special service” (normally, heavily minority) and regular schools.
Id.
at 102-OS. It pointed out that as of 1958, the Board had established an experience index (the ratio of regularly appointed positions to total actual positions); using this index “no appointments, transfers, or assignments of regular teachers were made to schools whose percentage of regularly appointed teachers equaled or exceeded” the citywide ratio.
Id.
at 104. After one year’s experience with this index, some progress was realized in equalization of the proportion of regularly appointed versus other teachers.
Id.
But this limited progress towards equalization, while addressing the regular teacher vs. substitute teacher inequality, did not address the broader problem indicated in the Commission report — that the minority schools were staffed by many more inexperienced teachers, even among the regular teachers. The progress report indicates that Commission recommendations to alleviate this disparity — such as excessing, transfer, initial service of newly appointed teachers in nonminority schools— had not been implemented. Rather, the Board had elected to defer such measures until “other possibilities ha[d] been tried
*890
and found wanting.” Id. at 109. The report does indicate the severe problems facing the Board in its efforts, including a continuing and increasing shortage of licensed teachers to fill ever-expanding vacancies and a high teacher declination rate for appointments to special service schools.
See id.
at 104-06. Finally, with respect to the Board of Examiners, the report concludes that there was no indication of an excessive time period between examination and appointment, and that the Board of Examiners made a “constant effort . to reexamine and reevaluate its procedures and its techniques.”
Id.
at 113-14.
In September, 1963, the Superintendent of Schools issued a “Plan for Integration in New York City Schools” (Def.Bd.Ex.26). It “propose[d] to embark on a new series of endeavors” to “hasten the day when our city is completely integrated and all . children will enjoy equal educational opportunity.”
Id.
at 1275. Included among the measures called for were “[rjecruitment of more Negro and Puerto Rican teachers [and] [intensified efforts to attract minority group candidates, both within the City and outside”; “Effort to increase the number of Negro and Puerto Rican Supervisors”,
see id.
at 1276; and “[administrative devices to improve and equalize quality of teachers in all schools.”
Id.
at 1280. The report suggested a “census of teachers, in order to determine the over-all distribution of ethnic groups.”
Id.
No other specifics in these areas were outlined. The Board approved these proposals.
See id.
at 1282.
In interim reports', Progress Toward Integration (September 1 — November 30, 1963) and Plans for the Immediate Future (December, 1963) (Def.Bd.Ex. 25), the Superintendent outlined the continued need, despite evidence of improvement, for recruitment of more minority teachers. The report indicates that the Board had begun to take steps to recruit such teachers outside the New York City metropolitan area, particularly in Southern colleges. On this front, it was concluded, “[i]t is evident that efforts should be continued and expanded to secure a greater number of Negro and Puerto Rican teachers and supervisors, and to distribute them within the school system for better integration.”
See
Def.Bd.Ex. 25 at 14-15. The Board’s Personnel Division was directed to “give added attention to the recruitment . . and distribution of Negro teachers and supervisors.”
Id.
at 26.
Again, in a Statement of Policy — Excellence for the Schools of New York City (April 28, 1965) (Def.Bd.Ex. 28), the Board recognized the continuing need for additional action to equalize teacher resources:
In order to insure excellence of instruction in all schools, the talents of the staff must be spread so as to reach all schools. This requires a procedure for guaranteeing a fair share of experience and competence in every school. Since voluntary movement of the staff has not resulted in such equitable distribution, the Superintendent has been directed to prepare a plan for the assignment of experienced teachers to be put into effect in September 1966. This might well be patterned on the use of the appointment index as a basis for assignment to schools in order of need.
Def.Bd.Ex. 28 (mimeo.) at p. 5. In an accompanying report, Implementation of Board Policy on Excellence for the City’s Schools (April 28,1965) (Def.Bd.Ex. 29), the Superintendent outlined steps to be taken to implement this renewed directive: requesting the Personnel Division to develop a plan “for the assignment of experienced teachers and supervisors to all the schools of the city to assure equality of instructional and supervisory experience and competency for all children,” with “the procedures to be used in this assignment but not the right of assignment . . . subject to negotiation with the teachers’ representatives,” Def.Bd.Ex. 29 at pp. 12-13; appointment of elementary school teachers from eligible lists in “equitable fashion to all schools regardless of standing on lists,”
id.
at 13; and directing the Personnel Division to “devise procedures which will improve the integration of the staffs of all schools . . . .”
Id.
*891
A census of the racial distribution of teachers was apparently undertaken in 1966. The report found a substantially disproportionate distribution of black teachers:
A summary of school positions, exclusive of school secretaries [indicates that] [t]here is marked variation in the proportion of Negro personnel serving in both regular and substitute positions from district to district. Thus, in Districts 20 and 21, fewer than one percent of the teachers assigned as regulars are Negroes; in Districts 4 and 6, more than 20 percent of the regular teachers are Negroes. When persons serving in acting capacities are studied, much the same situation holds true. In some districts, none of the individuals who are assigned in an acting capacity are Negroes; in others, the proportion of Negroes so assigned exceeds 25 percent.
Def.Govt.Ex. 149 at 3. The report on the census concluded with the following recommendations to improve the racially disparate teacher distribution:
Analysis of the ethnic data by district indicates wide variations in the distribution of Negro teachers among the districts . . . . It is evident that much remains to be done if a satisfactory staff ethnic balance is to be achieved. It is recognized that there are legal, contractual and other restrictions which make it difficult to effect change. Nevertheless the present situation is far from satisfactory and must be improved. The following recommendations are therefore made: The Board of Education policy with reference to staff integration should be made clear to all school officials and made a part of all appropriate training activities. Administrative action should be taken in order to secure improved staff integration. When necessary, the United Federation of Teachers and the Council of Supervisory Associations should be consulted, and agreement obtained if required. There should be a constant review of the practice of assignment of student teachers so as to insure promotion of integration and improvement of staffing of the schools heavily populated by disadvantaged children.
Voluntary plans to improve staff integration, consistent with the merit system, should be encouraged. The merit system effectively administered is a prime protection for all applicants for teaching and supervisory positions. Staff ethnic census should be taken biennially as a basis for evaluation of action taken and as a guide to further improvement.
Id.
at 8-9.
But, as far as can be determined from the record, no steps which would have involved compulsory transfer of teachers either to improve experiential or racial distribution were ever implemented. The Board did, however, implement a policy — use of the “experience index” — to equalize the ratio of regularly licensed to substitute personnel at least in the elementary schools. As the Deputy Director of the Board’s Office of Personnel testified:
The question of voluntary transfers that was mentioned was implemented. . As far as forcing experienced teachers, I do not think that was ever implemented. I’m sure it was never implemented.
Q. The school experience index . would never be able to effect an equitable distribution of teachers on the ground of experience [in] minority schools because those schools were constantly losing teachers?
A. If the teachers did stay — the concept was, if you put them in and they stayed, you are hitting those schools, but I agree with you that there was attrition and that wouldn’t solve the problem.
Tr. at 1572-73.
During the mid-1960’s, in addition to utilizing the experience index in assigning new teachers to some schools, the Board also negotiated with the United Federation of Teachers a contractual transfer plan designed to stabilize the work force and confront the problem of high teacher turnover in “difficult” schools and districts. Under this contractual plan — which is still in full effect, see Pl.-Int. UFT Ex. 102 — if a school
*892
is below the city-wide index for teacher experience level, there is an absolute limit on the number of experienced teachers (more than five years of service) who may transfer out of that school, but there is no limit on the number of teachers with more than five year’s experience who may transfer in. Conversely, where the experience index is above the city-wide average, there is a limit on the number of teachers who may transfer into the school, but no limit on the number of transfers out of the school to a school with a lower experience index.
See id.
at pp. 64-66. The plan has apparently had a positive effect, greatly limiting the number of experienced teachers transferring out of difficult schools.
See
Tr. at 96-98, 141-43, 1537-41, 1717. The UFT and the Board’s Office of Personnel have also engaged in continuous efforts to convince newly appointed teachers to accept assignment to “difficult to staff” schools.
See
Tr. at 496-97.
In 1969, when the New York State Legislature began considering drastic reorganization of the City school system through decentralization, the Board’s proposed decentralization plan called for a complete overhaul of the method of hiring teachers. It would have permitted the City the flexible hiring approach authorized in the majority of school districts in the state, and abolish the mandated competitive, ranked examination procedure of the Board of Examiners. Plan for the Development of a Community School District for the City of New York 16-17 (January 29, 1969) (Def.Bd.Ex. 23). See
also
Def.Bd.Ex. 22 (proposed legislation implementing Board’s decentralization plan). Among other things, the Board criticized the competitive examination process as ignoring the reality that the initial years of teaching are “essentially training years for which [a general] examination for appointment . . . but not a competitive examination, is appropriate.” Def.Ex. 23 at p. 18. After this training period, the Board viewed “examination for a tenured teaching appointment by a probationary teacher’s principal . . . [or] any other relevant member of his supervisory staff . superior to any traditional competitive examination.”
Id.
But as pointed out in Section IV(A)(l)(b),
supra,
the Legislature largely ignored the Board's recommendations in this area; except for the “alternate” hiring method approved for 45% schools, the competitive examination system was left largely intact.
Extensive public hearings regarding the Board’s teacher hiring practices were held in 1971 by the New York City Commission on Human Rights.
See
Trachtenberg, Selection of Teachers and Supervisors in Urban School Systems: A Transcript of Public Hearings Held Before the New York City Commission on Human Rights (1972) (Def.Int. Ross’ Ex. 107);
see also
Affidavit of Prof. Paul Trachtenberg (Def.-Int. Ross’ Ex. 121). The Commission concluded that the Board of Examiners and its competitive licensing system should be abolished; this was “crucial if a narrow concept of merit, based largely on written proficiency tests of questionable validity, is to be replaced by a more realistic appraisal of merit.” Def.-Int. Ross’ Ex. 107 at 722. It criticized the system in six principal areas: first, it was “ antiquated, outmoded, and inconsistent with-both contemporary educational requirements and the concept of decentralized schools,”
id.
at 712 (quoting testimony of then-Chancellor Harvey B. Scribner); second, it caused delay in appointments— causing the City to lose qualified applicants to other systems — and deterred many (particularly minorities) from applying,
see id.;
third, it caused rigidity — its “emphasis on formalistic training, formalistic requirements, long periods of service” partially explained the system’s low percentage of minority professionals,
id.
(quoting testimony of then-Board President Murray Bergtraum); fourth, the system had a high dollar cost, and created many patronage jobs,
id.
at 712-13; fifth, there was strong evidence of test invalidity and bias,
id.,
at 713-15; and sixth, it was inconsistent with meaningful decentralization, since it foreclosed local school boards, in most instances, from having flexibility in hiring decisions,
id.
at 715. In summary, the Commission declared:
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The current Examiners’ system is costly, cumbersome, and regardless of intent, restricts the opportunities available to many who might contribute ably to the education of this city’s school children, especially inner-city children. Such professionals and aspirants include members of minority groups and, as the testimony revealed, many others as well. .
The New York City school system — like virtually all other school districts in New York State and the rest of the country— should rely on state certification for initial screening of professional staff. Community boards should have the ultimate responsibility for the second and crucial stage in the employment process — actual selection of staff based upon sound and objective selection criteria and procedures geared to the needs of individual boards.
Id
at 722-23.
See also
Tr. at 510, 536, 543-45 (testimony of Dr. Frank Arricale, former Board Director of Personnel) (indicating he had consistently urged reform of Board of Examiners system, primarily on ground that it served as a serious impediment to recruiting teachers, particular minorities).
In sum, dating back to 1951, virtually every commission, agency and consultant firm that has reviewed the Board of Examiners system has called either for its substantial reform or abolition.
See
Def.-Int. Ross’ Ex. 123 at ¶¶ 3-5 (supp. affidavit of Prof. Paul Trachtenberg). A chief reason for this criticism has been that the system tended to discourage minority teachers from applying and to screen them out.
Finally, certain aspects of the Board of Examiners system have been the subject of extensive litigation under the federal civil rights laws. In
Chance v. Board of Examiners,
330 F.Supp. 203 (S.D.N.Y.1971),
aff’d,
458 F.2d 1167 (2d Cir. 1972) (preliminary injunction upheld); 496 F.2d 820 (2d Cir. 1974) (affirming modification of relief); 534 F.2d 993 (2d Cir. 1976),
cert. denied,
431 U.S. 965 , 97 g.Ct. 2920, 53 L.Ed.2d 1060 (1977) (reversal of related relief); 561 F.2d 1079 (2d Cir. 1977) (opinion on modification of consent judgment), black and hispanic plaintiffs secured preliminary injunctive relief, and eventually obtained a consent judgment, with regard to their claims that the system as it related to supervisory appointments was racially discriminatory and not job-related. The relief in
Chance
worked major changes in the procedures for hiring and appointing school supervisors.
Similarly, minority plaintiffs are currently pressing, on Title VII grounds, a challenge to the Board of Examiners system as it relates to teacher hiring.
See Rubinos v. Board of Examiners,
No. 74 C 2240 (S.D.N. Y.). While preliminary injunctive relief has apparently been denied in that case, plaintiffs have secured a preliminary determination that the testing process has a sufficient discriminatory impact to justify hearings on the job-relatedness issues.
See
Def.-Int. Ross’ Ex. 42 (transcript of
Rubinos
hearing, February 15, 1977);
see also
Def.Bd.Ex. 42 (full transcript of Rubinos testimony).
3. Board Procedures for Assigning Teachers
The Board’s policies and practices for assigning teachers from eligible lists to schools and local districts have varied considerably over the period 1961 to date. Perhaps the most dramatic change has come about as a result of the system’s decentralization in 1969. But changes have also been made in response, at least in part, to the problems and inequalities perceived by the Board, and others, in the system over the years. In addition, the Board has been forced to react to such phenomena as periods of severe teacher shortage (both in general, and in specific license areas); periods of budgetary crisis and' declining student population; and problems of teacher attrition and high rate of declination for certain types of teaching assignments. In formulating and implementing its policies, the Board has doubtless often walked a tightrope over a roiling sea of conflicting interests. Moreover, to a great extent, it has doubtless seen itself as severely confined by the competitive examination system and its attendant requirements as mandated by state law. In order to grapple with this appointment-assignment problem,
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a partial exploratory descent into the convoluted bureaucratic complexities of the system is necessary.
a. Procedures Prior to Decentralization
1. Elementary Schools
During the period from September, 1961 to shortly prior to the effective date of the 1969 decentralization law, appointments to elementary schools were made largely on the basis of three mechanisms: the city wide and school personnel indices (CPI and SPI); the “double preference” procedure; and the borough of teacher residence. Over this period, of course, there were some technical and minor changes in Board procedure, and there were also doubtless ways in which individual schools desiring appointment of particular individuals could evade the formal requirements.
See
Tr. at 1546-47 (Board’s deputy director of personnel testifies that there were individual compliance problems). Board policy during this era was designed to equalize the ratio of regularly appointed to substitute and other teachers across the system, and to provide for staff stability by appointing additional regular teachers to needy schools.
See
Def. Bd.Ex. 1 at 2.
First, under the “double preference” procedure, where a teacher was serving as a regular substitute or student teacher in a special service school (Title I), pair (integration plan) school, or was to be assigned to teach handicapped students,
and
the school principal requested the regular appointment of that teacher when he or she appeared on the eligible list, the teacher could be appointed to remain in the school.
See
Def. Bd.Ex. 3, ¶ 6; Def.Bd.Ex. 7, § (B)(l)-<2). At some points during this period, all principals were also permitted to request appointment as regular teachers of eligibles who served as substitutes in their schools.
Compare
Def.Bd.Ex. 8, § (A)(1) (circular of October, 1966),
with
Def.Bd.Ex. 5 (circular of December, 1974) (no such appointments permissible). In addition, eligibles could request appointment to special service schools; if also requested by the school principal, they would receive an appointment.
See
Def.Bd.Ex. 3 (appointment procedure) (indicating that this rule was applicable at least during 1963-65). While these procedures were operative, schools could receive appointments under them regardless of the effect of the personnel index system described below.
Second, after “double preference” appointments, all further appointments from eligible lists were largely governed by the citywide personnel index. The CPI was the ratio of regularly (licensed) appointed teachers actively serving in the system to total authorized positions in the system. For each school, a school personnel index was calculated — the ratio of regularly appointed teachers in the school to authorized positions. According to the Board, any school having a SPI over the CPI did not receive new appointments of regularly licensed teachers or transfers of such teachers; rather, such appointments were made only to schools with SPI’s below the CPI, with special attention to schools with SPI’s considerably below the CPI.
See
Def. Bd.Ex. 1 (summary of hiring history); Def. Bd.Exs. 2-5 (appointment policy circulars).
Third, the available vacancies, as determined by use of the SPI and CPI, were filled initially on a borough basis. Under this system, eligibles living in a borough were assigned to schools within their borough, at least until there were no further vacancies in that borough; the Board would determine the “cut-off” score on the eligible lists by looking at the number of eligibles from and vacancies within each borough. Those below the cut-off score would be assigned to vacancies in other boroughs. Within each borough, the Board utilized, a ratio procedure to allot eligibles between special service and regular schools; the details of this procedure varied a bit over the years. At some points, the Board applied the rule that four of every five appointments were to special service schools. At other points, the Board would look to the ratio of vacancies under the CPI/SPI between special service schools and regular schools; appointments going down the eligible list were then made in line with that ratio.
See
Def.Bd.Ex. 1; Def.Bd.Ex. 3,
*895
¶¶ 10-12; Def.Bd.Ex. 7, § (B)(3); Def. Bd.Ex. 8, § (B); Tr. at 1493-94. One problem with this effort at equalization was that all appointment notices were sent out at the same time; thus, if eligibles declined appointments to special service schools at a higher rate than appointments to regular schools, the theoretical ratio would not be obtained in practice.
2. Junior High and High Schools
Junior high schools and high schools were staffed on a different basis from elementary schools. For these schools, assignments had to be made from eligible lists for specific subjects to correspond to vacancies in specific subject areas. Here, the Board asserts that there were severe shortages of eligible teachers, so that use of the personnel index or ratio appointment system was not practicable.
Instead, the Board basically filled vacancies with eligibles whenever they were available, again matching assignments to the borough of the eligible’s residence. School principals were permitted to request specific eligibles for assignment to their schools, especially where the eligible was a substitute or student teacher in that school. The Board attempted to distribute available eligibles to schools with the greatest number of vacancies, but “geographic location of the school in relation to the eligible’s home was always the major factor in appointment.” Def.Bd.Ex. 1 at 2. According to the Board, all teachers on eligible lists were reached for appointment during this period; the shortage was so critical that the Board regularly had to appoint substitutes to fill vacancies.
See
Def.Bd.Ex. 1 at 2; Tr. at 1496-97.
b. Procedures During Interim Period
From September, 1968 to the effective date of the 1969 decentralization law, some significant interim changes in appointment procedures were made. Most critically, the Board no longer made appointments directly to elementary and junior high schools; rather, the new focus was on the district: the Board appointed teachers to each district, which then was responsible for filling vacancies in its schools.
The double preference procedure was still in effect. Regular substitutes or student teachers in special service schools (now including junior high schools), could, if eligible, be appointed to their schools without regard to the index. Eligibles, on request, could also be appointed to any special service school. Eligible substitutes in regular schools could be appointed to their schools if they were below the CPI.
The special assignment ratio for appointment was no longer used. District needs were calculated to determine the number of regular teachers needed to bring its schools up to the CPI; and teachers were assigned to each district in proportion to that district’s needs. The district was then expected to assign the referred teachers to its schools on the basis of the index. As before, eligibles were sent to available openings in their borough of residence until no vacancies remained.
See
Def.Bd.Ex

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1753674. Public record. Not legal advice.