The opinion
RIVES, Circuit Judge,
concurring in part, dissenting in part:
While I concur with the majority insofar as they affirm the judgment below, 1 I am compelled to dissent from the partial reversal.
I find no justification for reversing the district court’s holding that the Starkville School District cannot require of its teachers a Master’s Degree or an A A Teaching Certificate. (“An A A Teaching Certificate indicates that the teacher has satisfied, inter alia, the requirements for a Master’s Degree.” (325 F.Supp. at 564, 565.)) Since Mississippi State University is the only university in Starkville, it is, as the district court found, “the natural resort for teachers” who seek to obtain a Master’s Degree or to take the courses necessary to satisfy the requirements for an AA Certificate. Moreover, since in order to gain “regular admission” to MSU an applicant must have a GRE score of 900, or to gain “provisional admission” a score of 700, the effect of imposing a Degree or Certificate requirement is to require by indirection a GRE cut-off score which is essentially equivalent to that required in Policy 13-69.
The inconsistency of striking only that part of Policy 13-69 which imposes a GRE cut-off is exemplified by the following hypothetical situation. Suppose a teacher currently employed in the Starkville system who possesses neither an AA Certificate nor a Master’s Degree took the GRE and scored a 650. If Policy 13-69 were left undisturbed, that teacher would be entitled to retention. But in light of the majority’s view he would be fired (since he has neither a Master’s Degree nor a Teaching Certificate). Furthermore, having obtained only a 650 on the GRE, he could not gain admission to MSU in order to satisfy the alternative requirements of Policy 13-69 left intact by the majority. That result simply will not do.
I find persuasive the following part of the district court’s opinion:
“The provisions of Policy 13-69 allowing in-service teachers to qualify *282 for reemployment by obtaining a Master’s Degree or an AA Teaching Certificate, as a practical matter, do not constitute a meaningful alternative to achieving the required minimum score on the GRE because similar or higher GRE scores were required for admission to graduate school at Mississippi State University.
“As a practical matter, the provisions of Policy 13-69 allowing applicants for teaching positions to qualify by obtaining a Master’s Degree [or] an AA Teaching Certificate do not offer college seniors and recent college graduates a meaningful alternative to obtaining the required minimum score on the GRE; nor in terms of expense and time are these provisions a meaningful alternative to those for qualification by making the required score on the GRE.”
(325 F.Supp. at 565.)
Having so reasoned, the district court had no need to take evidence on the issue whether a Master’s Degree or an AA Teaching Certificate is a reliable and valid tool for measuring one’s abilities to serve as a primary or secondary school teacher. However, if it were demonstrated that one could obtain a Master’s Degree or an AA Teaching Certificate without indirectly having to satisfy or exceed the GRE cut-off score declared invalid by the court below, this case would be different. In those circumstances the initial burden would be on plaintiffs to show that requiring a degree or a certificate serves to disqualify a disproportionate number of blacks. If that burden were carried, then defendants would have to show that the requirements at issue are properly related to job performance. Again, I emphasize that in the context of this case proof on the relevance of a Master’s Degree or an AA Certificate was inappropriate since it was shown that either requirement indirectly serves to implement an invalid GRE cut-off.
Of course Starkville has every right to upgrade its faculty, even if in doing so black teachers are disproportionately excluded. Such a proper motive must however be effectuated by valid, constitutional means — means which are here absent.
Accordingly, I concur in part and dissent in part.
. In a special concurrence, I think it not inappropriate to make reference to the Supreme Court’s recent pronouncement in Griggs v. Duke Power Co., 1971, 401 U.S. 424 , 91 S.Ct. 849 , 23 L.Ed.2d 158 , with respect to the rationale in support of the district court’s injunction against the implementation of a GRE cut-off score. Griggs involved a challenge to employment practices brought pursuant to Title Til of the Civil Rights Act. Nonetheless its teachings are relevant to this Fourteenth Amendment challenge. In Griggs, Chief Justice Burger spoke for a unanimous court:
“[Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
“* * * [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.
“ * * * [A]ny given requirement must have a manifest relationship to the employment in question.”
401 U.S. at 431, 432 , 91 S.Ct. at 853, 854 . Similarly, I would conclude that the GRE has no “manifest relationship” with one’s ability to teach at the primary and secondary school levels.