# Petition — Buffalo Teachers Federation v. Arthur

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1259

## Text

Office -Supremne Court, U.S.

FILED
3 rs
83-665 se tk cal
ALEXANDER L. STEVAS,
CLERK
No.
IN THE

Supreme Court of the United States
October Term, 1983

GEORGE ARTHUR, ET AL.,
Plaintiffs-Appellees,

—and—

COMMUNITY ADVISORY BOARD FOR BILINGUAL
EDUCATION OF BUFFALO, ET AL.,
Plaintiffs-Intervenors-Appellees,

Vv.

EWALD P. NYQUIST, Individually and as Commissioner
of Education of the State of New York, et al.,
Defendants-Appellees,

BUFFALO TEACHERS FEDERATION, ET AL.,
Defendants-Appellants.

On Writ of Certiorari to The United States Court of
Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT D. CLEARFIELD, Esquire
Attorney for Petitioners

NEA/New York

217 Lark Street

Albany, New York 12210
(518)462-6451

i
Questions Presented for Review

1. Can a federal court grant increased job security to junior
minority teachers who were not victims of the acts of past
discrimination, by supressing a bona fide statute requiring
layoffs by seniority to the detriment of senior non-minority
teachers then terminated out of seniority order?

2. Does the order of United States Court of Appeals for the
Second Circuit, affirming the judgment of the district court,
constitute an impermissible and unjustified instrusion upon a
valid state statute (New York Education Law §2585, §2573.10a;
McKinney, 1981)?

3. Was the Court below correct in abrogating the rights of
majority teachers who were found by the lower court to be
“innocent bystanders’’ not party to the past discrimination of
the employer and in not penalizing the employer in any way?

4. Does the Second Circuit's decision conflict with its prior
holding in Chance v. Board of Examiners, 534F . 2d 993 (2d Cir.
1976), cert. denied 431 U.S. 965 (1977) and with the decision of
the Sixth Circuit in Oliver v. Kalamazoo, 706F. 2d 757 (6th Cir.
1983)?

ii
The Parties in the Court Below

IN THE
UNITED STATES COURT OF APPEALS
For the Second Circuit

Court of Appeals Docket No. 82-7802

GEORGE K. ARTHUR, NAACP, Buffalo Branch,
CITIZENS COUNCIL FOR HUMAN RELATIONS,
Plaintiffs-Appellees,

COMMUNITY ADVISORY BOARD FOR BILINGUAL
EDUCATION OF BUFFALO, LOURDES AGOSTO,
individually and on behalf of her minor children Samuel Jose
& Pablo Agosto, Jr. and ELSA CRUZ, individually and on
behalf of her minor child Monica Cruz, ANNETTE Y.
BROWN, as Parent of James C. Satterwhite, a child presently
enrolled in the Buffalo City School System, as a trainable,
mentally retarded student on behalf of herself and other
parents of trainable mentally retarded students in the City of
Buffalo School System,

Plaintiffs-Intervenors,

PUERTO RICAN LEGAL DEFENSE AND EDUCATION
FUND, CITIZENS FOR QUALITY EDUCATION, JOHN
BUSHEY,

Plaintiffs-Intervenors-Appellees,
v.

EWALD P. NYQUIST, Individually and as Commissioner of
Education of the State of New York, THE BOARD OF
REGENTS OF THE STATE OF NEW YORK, THOMAS M.
BLACK, CARL H. PFORZHEIMER, JR., AALEXANDER J.
ALLAN, JR., JOSEPH C. INDELICATO, M.D., KENNETH
B. CLARK, HAROLD E. NEWCOMB, WILLARD A.
GENRICH, EMLYN I. GRIFFITH, GENEVIEVE S. KLEIN,

WILLIAM JOVANOVICH, MARY ALICE KENDALL,
JORGE L. BATISTA, LOUIS E. YAVNER, MARTIN C.
BARELL, and LAURA BRADLEY CHODOS, individually
and as Members of the Board of Regents of the State of New
York JOSEPH MANCH, individually and as Superintendent
of Schools of the City of Buffalo, EUGENE T. REVILLE,
individually and as Superintendent of Schools of the City of
Buffalo, THE BOARD OF EDUCATION OF THE CITY OF
BUFFALO, FLORENCE E. BAUGH, SAMUEL E. SACCO,
JOSEPH E. MURPHY, MOZELLA RICHARDSON, DR.
JOSEPH D. HILLERY and MARILYN P. KAVANAGH,
individually and as Members of the Board of Education of the
City of Buffalo, JAMES GRIFFIN, Mayor of the City of
Buffalo, and DELMAR L. MITCHELL, RAYMOND
LEWANDOWSKI, GUS FRANCZYK, ALFREDA W.
SLOMINSKI, WILLIAM J. DAURIA, JOSEPH S. FORMA,
MICHAEL McCARTHY, WILLIAM B. HOYT, GEORGE K.
ARTHUR, RICHARD R. OKONIEWSKI, HORACE C.
JOHNSON, JOHN A. RAMUNNO, ANTHONY M.
MASIELLO, DANIEL J. HIGGINS, and WILLIAM A.
PRICE, constituting the members of the Common Council of
the City of Buffalo,

Defendants,

CITY OF BUFFALO, BOARD OF EDUCATION and ITS
MEMBERS EUGENE T. REVILLE, Superintendent of
Schools, JAMES GRIFFIN, Mayor of Buffalo, COMMON
COUNCIL OF THE CITY OF BUFFALO,
Defendants-Appelices,

BUFFALO TEACHERS FEDERATION, CAROL BAUDA,
MARJORIE AVERSANO, THEODORE ANNAS,
Additional Defendants-Appellants.

Questions Presented for Review
The Parties in the Court Below
Table of Contents

Appendices to Petition
Table of Authorities
Opinions Below

Jurisdictional Statement
Constitutional and Statutory Provisions Involved
Statement of Case
Reasons for Allowance of Writ

iv

TABLE OF CONTENTS

Petitioners With Seniority And Tenure Under
The State Statute Are Innocent Bystanders. Their
Rights Should Not be Abrogated in Favor of
Individuals Who Are not Victims of Past

SEE OFT OPES OPE CEE

The District court Exceeded Its Authority Since Its
Remedy Bore No Reasonable Relationship To the

Scope of The Constitutional Violations. ....---.

The Decision Here Conflicts With An Earlier
Second Circuit Decision And With The Recent
Decision Of The Sixth Circuit In Oliver v.
Kalamazoo Board of Education, 796 F. 2d 757 (6th

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Appendices to Petition:
Appendix I - Opinion of the United States Court of

Appeals for the Second Circuit and filed July 22, 1983,
eS Pr errr ety rT tte

Appendix II - Judgment of the United States Court of
Appeals for the Second Circuit dated and filed July 22,
SEED arate ab chara nonaas aah olugen Bre oaths We ck eek aol

Appendix III - Mandate of the United States District
Court of the Western District of New York, per John T.
Curtin, Chief United States District Judge, dated July
22, 1983, and filed September 6, 1983 ................

Appendix IV - Opinion of the United States District
Court for the Western District of New York, per John
T. Curtin, dated and entered August 21, 1982, and
reported at 520 F. Sup. 961 (W.D.N.Y. 1981) ..........

Appendix V - New York Education Law Section 2585 .

Appendix VI - New York Education Law Section
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vi

Page
TABLE OF AUTHORITIES
Cases:
American Tobacco Co. v. Patterson,456 U.S.63 (1982) ...... 7
Arthur v. Nyquist, 520 F. Supp. 961 (W.D.N.Y. 1981) ....... 5
Brown v. Neeb, 644 F. 2d 551 (6th Cir. 1981) .............. 12

Chance v. Board of Examiners and Board of Education etc.,
534 F. 2d 933 (2d Cir. 1976) cert. den., 431 U.S. 965 (1977) .. i,11
Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) . 8

Fullilove v. Klutznick, 448 U.S. 448 (1980) ................ 9
Hills v. Gautreaux, 425 U.S. 284, 293 (1976) ............4. 10
Milliken v. Bradley, 418 U.S. 717, 744(1974) ............. 10
Oliver v. Kalamazoo Board of Education, 706 F. 2d 757

Se Mes be be ecb ube dies 0 oe i, 12,13
Pasedena v. Spangler, 427 U.S. 424(1976) ............055- 10
Steelworkers v. Weber, 433 U.S. 193 (1979) ............. 9,11

Stotts v. Memphis Fire Dept., 679 F. 2d 541 (6th Cir. 1982) .. 12
Swann v. Charlotte Mecklenburg Board of Education,

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International Brotherhood of Teamsters v. United States,

431 U.S. 324(1977) ........ CEES EIA DP ee ae Be oem rpnge 7,8
Washington v. Davis, 426 U.S. 244 (1976) ............+5- 7,8

Federal Statutes:
Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e, et seq. .. 7
State Statutes:

New York Education Law Section 2573.10(a) ....... i,4,5,6,7
New York Education Law Section 2585 .......... i, 4,6,7,8,9
Constitution:

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

GEORGE ARTHUR, ET AL.,
Plaintiffs-Appellees,

—and—

COMMUNITY ADVISORY BOARD FOR BILINGUAL
EDUCATION OF BUFFALO, ET AL.,

Plaintiffs-Intervenors-Appellees,

Vv.

EWALD P NYQUIST, Individually and as Commissioner
of Education of the State of New York, et al.,

Defendants-Appellees,
BUFFALO TEACHERS FEDERATION, ET AL.,

Defendants-Appellants.

On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

2

Opinions Below
The opinion dated July 22, 1983, of the United States Court

of Appeals for the Second Circuit is reported at 712 F. 2d 816,
and is reproduced in the Appendix at page la.

The opinion dated August 21, 1981, of the United States
District Court for the Western District of New York per Curtin,
Ch. J., is reported at 520 F. Supp. 468 and is reproduced in the
Appendix at page 22a.

Jurisdictional Statement

The Judgment of the United States Court of Appeals for the
Second Circuit sought to be reviewed was dated July 22, 1983,
and was entered on the same day in the Office of the Clerk of
said Court.

The Mandate was filed in the United States District Court for
the Western District of New York on September 8, 1983.

No application was made by any party for rehearing by the
Court of Appeals; and no order was granted respecting
rehearing.

Jurisdiction is conferred on the Supreme Court of the United
States to review the Judgment below of the United States Court
of Appeals for the Second Curcuit by Writ of Certiorari by Title
28 USCA §1254(1), and pursuant to article III, §§1 & 2 of the
Constitution of the United States.

Constitutional and Statutory Provisions Involved

Constitutional Provisions
“Article I.
“Section. 1. All legislative Powers herein granted shall be
vested in Congress of the United States, which shall consist of a
Senate and a House of Representatives."’

“Article. II.

“Section. 1. The executive Power shall be vested in a
President of the United States..."’

“Article. III.

“Section. 1. The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish...”’

“AMENDMENT [IX.]

“The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by

the people.”’
“AMENDMENT [X.]

“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”

“AMENDMENT [V.]

‘No person shall be...deprived of life, liberty, or property
without due process of law;..."

“AMENDMENT [XIV.}

“Section. 1. ... No State shall ... deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.”

FEDERAL STATUTORY PROVISIONS
42 U.S.C. 2000

NEW YORK STATUTORY PROVISIONS
Education Law §2573.10a

Education Law §2585

5

Statement of Case

The original action in this matter was brought in state court
as a writ of mandamus by the Buffalo Teachers Federation
(hereinafter ‘‘Federation”’) union representing teachers against
the Board of Education (hereinafter ‘‘Board) for the Buffalo
Public School System (hereinafter “‘BPSS'’). At the time the
state court proceeding was commenced, there was already in
progress an ongoing matter involving desegregation in the
BPSS. The Board removed the state mandamus action to the
Federal desegregation proceedings. A motion to remand back
to state court was denied. [477F. Supp. 691 (W.D.N.Y., 1979)].
Thereafter, the Federation was made an additional defendant
in the original desegregation case.*

The facts giving rise to the original action are as follows. In
August of 1979 the Board, believing apparently that it was not
in compliance with a prior order of the District Court
concerning its professional teaching staff, announced and
effected a series of changes in hiring and layoff policy. These
changes were made unilaterally and in violation of state law
and the collective bargaining agreement between the Board
and the Federation. The Federation took the matter to state
court, arguing that the Board had violated Section 2573.10(a)
of the New York State Education Law by not appointing as
probationary teachers those individuals who satisfied all the
requirements stipulated in state law, 1.¢., who were state
certified and had passed a teacher's test administered by the
Board pursuant to the state law. The long standing practice of
the Board was to appoint such individuals as probationary
teachers dependent on their rank order on an eligibility list
based on test scores. Section 2573.10 (a) makes it mandatory for
the Superintendent of Schools to administer the test and form
the eligibility lists. Essentially the Board ignored the
eligibility lists in making both probationary and temporary

* In 1976 the District Court held that the BPSS had been intentionally
segregated (415 F. Supp. 904). This holding was affirmed by the Second
Circuit (573 F. 2d 134, 1978).

appointments. Probationary appointments must be used
under state law to fill permanent vacancies. Temporary
appointments are used to replace permanent teachers who are
on leaves of absence, for example, maternity or sabbatical
leave.

The state court action also alleged generally that there were
duly negotiated clauses in a collective bargaining agreement
between the Board and the Federation which had been
negotiated pursuant to a “bona fide seniority system" of which
temporary teachers are an intrinsic part. Petitioners generally
argue that these temporary teachers have rights under the
bargaining agreement and have had such rights since at least
1969, the year these clauses first appeared in the collective
bargaining agreement. In summary, these rights are that
temporary teachers must be hired in rank order from the
eligibility lists created pursuant to Section 2573.10(a) and that
where lists have expired (or are not in existence), prior
satisfactory service entitles a teacher to the temporary position
in issue.

During litigation of this case the question of seniority on
layoffs arose, a question crucial to this petition. The Board's
position was that layoffs governed by Section 2585 of the
Education Law of New York would not occur consistent with
state law because it was going to maintain the ratios of
majority to minority teachers.

Under the affirmative action and retention plan finally
adopted by the District Court layoffs will occur to maintain the
majority/minority ratios notwithstanding seniority, although
contract teachers may not be displaced by probationary or
temporary teachers.* The District Court also relieved

* Section 2585 is a classic ‘‘last in first out" seniority clause which contains
provisions for recall rights. The District Court ruled that once a teacher is
laid off and placed on a recall list or preferred eligibility list (Section 2585.5 of
the New York Education Law) he or she will be subject to “one for one”
hiring. The Second Circuit found that the recall aspect of the remedial plan
was excessively harsh and remanded for entry of an order conducting recall in
accordance with the statute. 570 F. 2d 816, A at 17a.

minorities from taking the teacher's test (which governs
eligibility for original appointments) although there is
nothing in the record on the test at all, much less a finding that
the test is discriminatory.

Reasons for Allowance of the Writ

Petitioners argue that there is reversible error in not
honoring seniority in layoffs, especially since the minorities
who are being favored were not past victims of discrimination.
New York Education Law Section 2585 represents a bona fide
seniority system which has never been declared
unconstitutional. The disputed order exceeds the remedial
authority of the court and denies petitioners equal protection
of law. Petitioners further argue that although this is a
Fourteenth Amendment rather than a Title VII (Civil Rights
Act of 1964) case, there should be no difference in result since
historically the cases have held that the standards are more
onerous for those seeking redress under the Fourteenth
Amendment than under Title VII. Washington v. Davis, 426
U.S. 244 (1976). Under the Title VII cases, petitioners would
clearly prevail on the lay off issue. American Tobacco Co. v.
Patterson, 456 U.S. 63 (1982) and International Brotherhood of
Teamsters v. United States, 431 U.S. 324 (1977).

Moreover, there is no showing that the disputed order
satisfies any compelling need or meets any purposeful
objective without which the minority school children will be
further disadvantaged. There exists no justification at all for
this finding. The disputed order also vitiates the test required
by New York Education Law Section 2573.10(a) and unfairly
voids the rights of teachers who passed the test and were placed
on eligibility lists. The order now allows the test simply to
eliminate majorities who fail the test; it has no effect on
minorities. The record contained nothing to justify such an
absurd result.

The writ should be granted in order for the Supreme Court
to uphold in this case the seniority and statutory rights of

majority teachers who are victims of unconstitutional reverse
discrimination and totally innocent of any wrong doing.

Petitioners With Seniority And Tenure Under The State
Statute Are Innocent Bystanders. Their Rights Should
Not be Abrogated In Favor Of Individuals Who Are Not
Victims Of Past Discrimination.

Under the disputed orders, majority teachers with 20 years
seniority may be displaced by minority teachers with four years
seniority. The Second Circuit distinguished cases arising
under the Fourteenth Amendment from those arising under 42
U.S.C. Section 1981, 1983 as well as 42 U.S.C. Section 2000 e et
seq.. Petitioners believe such distinctions or those between
private and public sector employers are untenable.

Petitioners argue that the rationale of the Supreme Court in
Teamsters v. United States, 431 U.S. 324 (1977) and Franks v.
Bowman Transportation Co., 424 U.S. 747 (1976) is applicable
here. In Franks, supra, this Court ruled in favor of constructive
seniority for identified victims of discriminatory hiring
practices. However, where the disputed system was racially
neutral (although having the effect of locking minorities into
lower paid positions), the victims of past discrimination were
limited to seniority from the date of their individual
employment applications. In the instant case there is no
showing that the minority teachers were victims of past
discrimination.

This Court in Teamsters, supra, outlined criteria to
determine if a seniority system is bona fide. In measuring such
criteria against New York Education Law Section 2585, it is
clear that the section easily passes muster. It applies equally to
all groups; it is rational and in accord with most seniority
practices for public employees. It was not initiated to have a
racially discriminatory effect, nor has it been maintained for an
illegally discriminatory purpose. Id., at 355-356.

In Washington v. Davis, 426 U.S. 244 (1976) this Court noted
that in addressing legislation such as Section 2585, it was

9

necessary to find proof of discriminatory intent. Petitioners
argue that without proof of a racially discriminatory purpose
in the genesis of Section 2585, the Second Circuit should have
not found it unconstitutional as applied.

Petitioners also urge the consideration of the remedy
approved by the Supreme Court in Steelworkers v. Weber, 433
U.S. 193 (1979). A plan of affirmative hiring was upheld
because it did not unnecessarily defeat the present interests of
white employees and, in the words of Justice Brennan, ‘‘does
not vequire the discharge of white workers and their
replacement with black hires.’’ Jd., at page 201.

Justice Powell in Fullilove v. Klutznick, 448 U.S. 448 (1980)
at 5/6, stated that ‘‘the use of racial classifications, which are
fundamentally at odds with the ideals of a democratic society
implicit in the Due Process and Equal Protection Clauses,
cannot be imposed simply to serve transient social or political
goals, however, worthy they may be."’ The Second Circuit has
failed to heed Justice Powe!l's warning.

The District Court Exceeded Its Authcrity Since lis
Remedy Bore No Reasonable Releationship To the Scope
Of The Constitutional Violations.

When the Board of Education changed its policies in 1979, it
did not do so at its own expense. Indeed, in the context of this
case, the Board has hardly been inconvenienced. While senior
experienced competent teachers are out in the cold, their
rightful places assumed by minorities who as individuals were
not discriminated against in any way, the Board of Education
has assumed the stance of a stakeholder.

The Board argues that it could not increase minority
percentages because it was “hamstrung” by the collective
bargaining agreement and the various state statutes.

The District Court and the Second Circuit “bought into”
the Board's position and relied to a great extent on the
principle of law that “neither state law nor contract law may be
used as a defense when the result would impede a court-ordered

10

remedy for constitutional violations’’ 520 F. Supp. at 966
(A28a). This rationale obviously ‘‘begs the issue."’ ‘“The task is
to correct by a balancing of individual and collective interests,
the condition that offends the Constitution.” Swann v.
Charlotte Mecklenburg Board of Education, 402 U.S. 1, 15-16
(1971). This Court has made it clear that a remedy fashioned by
a federal court must be ‘‘carefully tailored to the scope of the
violation.” Milliken v. Bradley, 418 U.S. 717, 744 (1974).
Federal courts have broad equitable powers but such power “‘is
not plenary.”” Hills v. Gautreaux, 425 U.S. 284, 293 (1976).

In Milliken, supra, this Court commanded that the objective
of the remedy should be “to restore the victims of
discriminatory conduct to the position they would have
occupied in the absence of such conduct.”’ 433 U.S. at 280. Here
there has not been and can not be a showing that the favored
minority teachers are in any sense victims of past
discrimination. Nor has there been any showing of a need to
layoff majorities to accomplish any court ordered objective
related to the minority school children of the Buffalo Public
School System, keeping in mind the overriding principle that
the remedy is not permitted “‘to exceed the extent of the
violations."’ Swann, supra. Petitioners argue that the disputed
order creates a set of totally innocent victims who are likewise
entitled to constitutional protections and who have effectively
been denied such protections under the guise of ‘‘affirmative
retention.”

While it may be important to maintain the percentage of
minorities currently teaching in the system, the situation does
not justify doing so at the expense of petitioners. It is
impermissible for the Second Circuit to engage in ‘‘equating
racial imbalance with a constitutional violation calling for a
remedy.” Milliken, 418 U.S. at 741 n. 19. There exists no
“substantive constitutional right to a particular degree of
racial mixing or balancing.”’ Pasedena v. Spangler, 427 U.S.
424 (1976) at 433-434.

Obviously, the available pool of qualified minority teachers

il

changes from moment to moment. If the Board had recruited
minorities more aggressively in the past, petitioners would not
face the situation of having seniority rights voided
notwithstanding their blamelessness for the discriminatory
practices of the employer.

It is also totally unfair to penalize the innocent majority
teachers in this matter and not the Board of Education. The
Court order has imposed ‘“‘firings’’ based on color and not
seniority. Petitioners contend that the Court should have
ordered ‘‘no lay offs’ as the means of maintaining racial
balance thereby avoiding any issue of ‘“‘reverse
discrimination."’ The issue instead would be the economic
obligation of the wrongdoer, the Board. It is the wrongdoer
not the innocent teachers, who should bear responsibility for
remedying its wrongful deeds. Steelworkers v. Weber, 433 U.S.
193 (1979).

The Decision Here Conflicts With An Earlier Second
Circuit Decision And With The Recent Decision Of the
Sixth Circuit In Oliver v. Board Of Education 796 F 2d
757 (6th Cir. 1983).

In Chance v. Board of Examiners, 534 F. 2d 993 (2d Cir 1976)
cert denied, 431 U.S. 965 (1977), the Second Circuit held it was
“unconstitutional reverse discrimination” to ask senior more
experienced non-minorities to forfeit seniority rights to junior
less experienced minorities, 534 F 2d at 998,999. Here the
Second Circuit totally reverses its position but dismisses the
difference in a cursory footnote (712 F 2d 816 fn. 5, A 13a)
indicating Chance was premised on 42 U.S.C. 1981 and is
therefore inapplicable. The similarities between Chance and
the instant case are striking. Both involve the same statute,
Education Law 2585.4, and both involve large city school
districts with large minority student populations. Petitioners
respectfully submit that there is no perceptible distinction in
the two matters. The fact that the proceeding here is part of a
school desegregation case is irrelevant without a finding on the
record indicating some compelling reasons for the order from

12

the perspective of the minority school children. Nothing in the
record justifies such a finding.

When Oliver v. Kalamazoo Board of Education, 706 F 2d 757
(6th Cir. 1983) is read in conjunction with the instant case, it is
obvious that both courts applied different standards to the
same factual scenario. In Oliver the Sixth Circuit found that
the record did not demonstrate that “nullification of the
seniority and tenure rights of white teachers’’ was “‘necessary to
vindicate the student's constitutional rights.” ‘Indeed the
record is silent as to the actual effect of the layoffs on the
students."’ 706 F. 2d 757. In the instant proceeding the record is
also silent about the effect of the layoffs on the plaintiff
students.

The Sixth Circuit rule is that contract and statutory rights of
non-minorities must be enforced unless it is shown that the
plaintiff's constitutional rights have been infringed and
nullification of the contract and statutory rights of non-
minorities is necessary to vindicate the plaintiff's
constitutional rights. Oliver, supra; Stotts v. Memphis Fire
Dept., 679 F. 2d 541 (1982) at 569. In Brown v. Neeb, 644 F. 2d
551 (6th Cir., 1981) as well asin Oliver, supra, the Sixth Circuit
found the ‘“‘necessary"’ standard more appropriate than the
‘reasonable’ standard to protect the non-minority teachers’
expectations in seniority rights in this type of case. In Oliver,
supra, however, the Circuit Cour! overturned the district
court's order for lack of proof of necessity. The Second Circuit
herein said it was applying the Sixth Circuit's standards, but it
pointed to nothing in the record to support its finding that
nullification of seniority rights of non-minority teachers was
‘‘necessary’’ to vindicate the plaintiff students’ rights. In fact,
the Second Circuit finding does not even conform to the
“reasonable” standard.

Finally, in Oliver, supra, the Sixth Circuit cited with
approval earlier court action in its case and the decision in
Brown, supra, enjoining layoffs to maintain existing
percentages of minorities. The court pointed out that specific

13

compelling evidence existed in both cases relating the remedial
action directly to the vindication of constitutional rights. Yet
even in those cases, the Oliver court said, the courts did not
nullify seniority, contractual or statutory rights on non-
minoriues. Under Oliver, there is no record justification even
for a ‘no layoff remedy,’’ much less the remedy ordered herein.

Conclusion

This Court should review this case because of the conflict
and ambiguity which now exists in the Circuit Courts
concerning the appropriate circumstances for ordering the
nullification of statutory and contractual seniority rights of
non-minority “innocent bystanders.’’ This matter is of
substantial public importance and concern. For these reasons,
it is respectfully submitted that this Petition for a Writ of
Certiorari should be granted.

Respectfully submitted,

ROBERT D. CLEARFIELD, Esquire
Attorney for Petitioners

General Counsel

NEA/New York

217 Lark Street

Albany, New York 12210
(518)462-6451

APPENDIX I

Opinion of the United States Court of Appeals for the Second
Circuit and filed July 22, 1983, and reported at 712 F. 2d 816

George Arthur, Et Al.,
Plainuffs-Appellees,
—and—
Community Advisory Board For Bilingual

Education Of Buffalo, Et Al.,
Plaintiffs-Intervenors-Appellees,

_Vo

Ewald P. Nyquist, Individually and as Commissioner
of Education of the State of New York, Et Al.,

Defendants-Appellees,
Buffalo Teachers Federation, Et Al.,
Defendants-Appellants.

No. 962, Docket 82-7802

United States Court of Appeals,
Second Circuit.

Argued April 6, 1983
Decided July 22, 1983.

Robert D. Clearfield, Gen. Counsel, New York Educators
Association, Albany, N.Y., for defendants-appellants.

Thomas I. Atkins, Gen. Counsel, NAACP, Brooklyn, N.Y.
(David Gerald Jay, Buffalo, N.Y., on the brief), for plaintiffs-
appellees.
J. Edmund DeCastro, Jr., Buffalo, N.Y. (Jaeckle, Fleischmann
& Mugel, Buffalo, N.Y., on the brief), for plaintiffs-
intervenors-appellees.
Aubrey V. McCutcheon, Jr., Buffalo, N.Y. (James J.
McLoughlin, Acting Corp. Counsel, William E. Carey, Asst.
Corp. Counsel, Buffalo, N.Y., on the brief), for defendants-
appellees.
Before: Kaufman, Timbers, and Newman,

Circuit Judges.

3a
NEWMAN, Circuil Judge:

This appeal concerns primarily the degree to which a
district court can impair the seniority rights of teachers in
order to eliminate the vestiges of racial segregation within
the faculty of a public school system and to vindicate the
school children’s right to a desegregated education. The
Buffalo Teachers Federation (Federation) challenges a
remedial plan adopted by the District Court for the
Western District of New York (John T. Curtin, Chief
Judge) for the Buffalo school system. See 520 F. Supp.
961 (W.D.N.Y. 1981). As part of that plan, the Court
approved an elaborate remedy designed to achieve a goal
of twenty-one percent minority teachers in all teaching
areas through a race-conscious system for hiring and
laying off teachers. Although we find the District Court’s
plan to be basically sound, we conclude that in one
respect the Court's remedy is unnecessarily harsh. We
therefore affirm in part, reverse in part, and remand for
the entry of a modified order.

In April 1976, the District Court found the Buffalo
Board of Education responsible for intentionally causing
and maintaining a segregated school system. 415 F. Supp.
904 (W.D.N.Y. 1976), aff'd in relevant part, 573 F.2d 134
(2d Cir.), cert. denied sub nom. Manch v. Arthur, 439
U.S. 860 (1978). Among the Board’s discriminatory poli-
cies was a purposeful program “that has segregated, and
was intended to segregate, the teacher and administrative
staffs in the Buffalo public schools.” /d. at 946. Between
1967 and 1973, minority employees had held roughly ten
to twelve percent of all staff positions, even though the

4a

minority population of Buffalo was twenty-one percent,
according to the 1970 Census. /d. at 943-46. Moreover, a
disproportionate share of the minority staff was assigned
to schools with predominantly minority student bodies.
Id,

As an initial matter, the District Court left to the Board
of Education the task of developing a plan for desegregat-
ing its teaching and administrative staffs, but after nu-
merous meetings with the parties, the Court came to the
conclusion that judicial prodding would be necessary.
Accordingly, on March 26, 1979, the District Court issued
an order setting general guidelines for desegregating the
staff of the Buffalo school system. With this order, the
Court made two basic decisions: first, that the percentage
of minority teachers and administrators in every job
classification should be the same twenty-one percent that
minorities represented in the community at large, and,
second, that this twenty-one percent target should be
achieved through “one-to-one” hiring, whereby the Board
would have to hire one minority teacher for every major-
ity teacher hired.

A.

To appreciate the plan eventually devised to implement
the District Court’s order, as well as the Federation’s
objections to that plan, some understanding of New York
law and the Federation’s collective bargaining agreement
is necessary. In the Buffalo school system, there are three
types of teachers: tenured teachers, probationary
teachers, and temporary teachers. Probationary and per-
manent teachers are on the “tenure track” of the system.
When a tenured position becomes available, the Board
must appoint a probationary teacher. N.Y. Educ. Law

5370

5a

§ 2573(1)(a) (McKinney 1981). If satisfied with the ap-
pointee’s services after three years, the Board then makes
the teacher a tenured and therefore permanent member of
the faculty. /d. § 2573(1)(a), (5). Under New York law,
probationary appointments in the Buffalo system must be
made from an eligibility list containing the names of all
qualified applicants for a particular tenure area who have
passed an examination administered by the Board.' /d.
§ 2573(10)(a); see Serritella v. Board of Education, 58
A.D.2d 634, 396 N.Y.S.2d 57 (2d Dep’t 1977). Applicants
are ranked on the eligibility lists according to their per-
formance on the Board’s examination, and the Board is
supposed to offer probationary appointments to those at
the top of the relevant lists.

Outside the tenure track, the Buffalo system has a
considerable number of temporary teachers, who serve on
a year-to-year basis without any guarantee of being re-
hired. Temporary teachers fill positions left vacant by
permanent and probationary teachers on sabbaticals and
sick leave. Many temporary teachers in the Buffalo sys-
tem have served for a number of years. Typically, these
long-term “temporary” teachers have many qualifications
for permanent positions, but either have not passed the
Board’s examination for permanent employment or have
not placed high enough on the eligibility list to be offered
probationary positions. In selecting temporary teachers
for a new school year, the Board looks first to the current
eligibility list for qualified candidates. However, if the
eligibility lists are empty or if no one on the eligibility lists

' There is some question whether section 2573(10)(a) still applies to
the Buffalo school system because the section is limited to municipali-
ties with between 400,000 and 1,000,000 inhabitants. According to the
1970 Census, Buffalo fit within that category, but the 1980 Census
found that Buffalo had a population of less than 400,000.

6a

wishes to accept the temporary positions, then the Fed-
eration’s collective bargaining agreement requires that the
Board offer the positions to those who have held tem-
porary appointments in the past. In this way, the peren-
nial temporary teachers have a limited, but apparently
valuable, form of job security.

Under New York law, if the Board of Education elects
to reduce the number of tenured positions, it must lay off
teachers according to seniority. N.Y. Educ. Law
§ 2585(3). For example, if the Board had to eliminate
several full-tsme positions for mathematics teachers, it
would first discontinue the most junior probationary
teachers in that area and, when there were no more
probationary incumbents, begin to lay off permanent
teachers. Laid-off permanent and probationary teachers
(known in the statutory jargon as “excessed” teachers)
are placed on “preferred eligibility lists.” When new
full-time positions become available, the Board is sup-
posed to reinstate excessed teachers from these preferred
eligibility lists based on their seniority. /d. § 2585 (4).
Teachers on preferred eligibility lists also have a right of
first refusal for any temporary teaching positions that
become available.

Having no guarantee of reemployment from year to
year, long-term temporary teachers are not directly af-
fected by layoffs. However, these teachers are indirectly
affected. Layoffs create preferred eligibility lists and
prevent a decrease in the number of names on the regular
eligibility lists because fewer probationary appointments
are made. Since the Board must offer all temporary
positions to qualified teachers on both of these lists
before hiring anyone else, long-term temporary teachers
are less likely to be rehired when the Board reduces the
number of tenured faculty meinbers.

53°"2

7a

B.

The District Court’s March 26, 1979, order mandating
one-for-one hiring to reach a twenty-one percent minority
target placed the Board in a dilemma. At least for the
foreseeable future, the Board had no obvious means of
obeying the order without violating the seniority system
established by statute and collective bargaining agree-
ment. Under that system, a large group of predominantly
majority teachers was entitled to whatever new positions
become available. In 1978, fiscal difficulties and a declin-
ing student population had forced the Board to eliminate
many tenured positions. In 1979, these laid-off teachers,
most of them majority members, filled the preferred
eligibility lists. Further layoffs were expected in the near
future. Moreover, the normal eligibility lists were also
composed largely of majority applicants, who should
under state law have the second chance at job opportuni-
ties (after those on the preferred eligibility lists). The
paucity of minorities on the normal eligibility lists re-
sulted in part, the District Court concluded, from the fact
that minorities had been discouraged from seeking em-
ployment in the Buffalo school system because Buffalo
was one of only two municipalities in the state to require
applicants to pass a special examination after completing
the normal certification process. See 415 F. Supp. at 947
& n.42.

The Board’s first opportunity to respond to the District
Court’s order came in August 1979 as the Board prepared
for the 1979-1980 school year. Although the record is not
clear in every particular, at that time the Board apparently
took two steps to comply with the order in light of both
the established seniority system and the perceived short-
term unavailability of qualified minority applicants. First,

8a

the Board decided to engage in “block hiring,” whereby
the Board elected to hire as niany minority teachers as
possible in whichever job categories there were qualified
minority applicants. Second, the Board decided to hire
temporary rather than probationary teachers for certain
tenure-track positions. The record does not explain why
the Board took this action, but there may have been two
explanations. First, the Board may have decided that it
should not fill up tenure-track positions with majority
candidates, but rather should appoint temporary teachers
until qualified minorities could be found. The Board may
also have concluded that it would be easier to meet the
District Court’s one-for-one hiring quota through tem-
porary appointments, which carry less stringent qualifica-
tions than do tenured positions.

The Board’s initial efforts at compliance brought the
Federation into court. On September 5, 1979, the Federa-
tion filed suit in New York Supreme Court. The Federa-
tion alleged that the Board had violated New York law by
failing to fill permanent teaching vacancies with proba-
tionary appointments from the top of the appropriate
eligibility lists and that the Board had violated its collec-
tive bargaining agreement by failing to offer temporary
positions to teachers on eligibility lists and teachers with
experience in the Buffalo system. The Board successfully
moved to have the Federation’s case removed to federal
court under 28 U.S.C. § 1443(2) (1976). The District
Court subsequently consolidated that suit with the ongo-
ing school desegregation litigation and joined the Federa-
tion as a defendant. See 477 F. Supp. 691 (W.D.N.Y.
1979).

While the Federation’s claims were before the District
Court, the Board of Education and lawyers for the
plaintiffs agreed upon a formal plan for implementing the

Sa

Court's March 26, 1979, order. The District Court ac-
cepted this plan, with minor modifications, on August 8,
1980. At the same time, the District Court rejected the
Board’s use of block hiring on the ground that the
technique led to a disproportionate number of minority
teachers in elementary schools, thereby “concentrat{ing]
minority personnel in racially identifiable . . . schools.”*
The District Court thus interpreted its March 26, 1979,
order to require twenty-one percent minority representa-
tion in each tenure area.

The remedial plan, as adopted by the District Court,
called upon the Board to create three applicant lists for
every tenure area: a preferred eligibility list, consisting of
excessed probationary and permanent teachers; a current
eligibility list, containing candidates who have met all
state requirements and have passed the special Buffalo
examination; and a qualified applicant list, including
candidates who have not passed the Buffalo examination
but are otherwise qualified. When@ver any tenure-track
position becomes available, the Baard is first to deter-
mine whether it was a majority's or|a minority’s turn to
be hired, according to the District} Court’s one-to-one
formula. The Board should then scan the appropriate
applicant lists for the highest ranking candidate. The
Board should begin with the preferred eligibility list,
then, if necessary, proceed to the current eligibility list,

,

2 The District Court subsequently ruled that majority teachers injured
by block hiring were not entitled to relief through normal grievance
procedures because the Board developed the technique in good faith
compliance with the District Court's March 26, 1979, order. See 520 F.
Supp. at 966. The Federation now contents that the Board’s good
faith should not prevent injured teachers from receiving back pay and
lost seniority rights. In light of the complexity of this case and the
District Court's familiarity with the Board's efforts, we conclude that
it was within the Court's discretion to insulate the Board from liability
for block hiring.

10a

and finally look to the qualified applicant list. For those
tenure areas in which no minorities appear on any of the
three applicant lists, the Board is instrucied not to make
any probationary appointments so as not to violate the
Court's one-to-one hiring requirements. In such cases, the
Board was directed to make temporary appointments.’

The remedial plan called for temporary appointments
to be made in a similar fashion. First, the Board was to
determine whether the appointment goes to a majority or
a minority applicant. Then the Board looks down the
three applicant lists for a suitable candidate. If no name
appears on these lists, the Board can appoint a candidate
with an appropriate degree and eight credit hours in an
approved teacher program, or, if nobody is available with
those qualifications, a candidate with an appropriate
degree.

Layoff procedures were also included in the remedial
plan. Apparently, during the 1978-1979 cutbacks, the
Board had excessed tenure-track teachers based on senior-
itv and had thereby significantly reduced the ratio of
minority teachers in the system. To avoid the same result
in future layoffs, the plan called for force reductions
based on existing minority/majority percentages in each
tenure area. Before eliminating any positions, the Board
must calculate the minority percentage holding proba-
tionary positions in the affected tenure areas as well as
the minarity percentage holding permanent positions. As
long as these percentages fall beneath the twenty-one
percent target, layoffs should be made, first from proba-
tionary positions and then from permanent positions, so

’ The plan allows the Board to make probationary appointments in
violation of the one-to-one formula if the Board can “factually
demonstrate the unavailability” of qualified minority candidates. To
our knowledge, the Board has not taken advantage of this provision.

]

lla

as to maintain the then current percentages of minority
staffing.*

In subsequent proceedings, the Federation challenged
various aspects of the remedial plan. Ultimately, its entire
challenge to the plan, which had formed the basis of the
removed state court proceeding, was dismissed in a judg-
ment entered September 29, 1982. The Federation appeals
from that judgment, effectively bringing before this
Court its basic objections to the remedial plan.

te

The District Court’s remedial plan affects the contrac-
tual and statutory rights of the Federation’s majority
members in numerous ways. First, the plan denies some
long-term “temporary” teachers their contractual right to
be offered yearly appointments on the basis of their years
of experience within the school system. Second, the plan
abridges the rights of applicants on the current eligibility
lists by limiting the number of available probationary
positions and yearly temporary positions to which they
have statutory and contractual claims. Finally and most
seriously, the plan undercuts the job security of majority

probationary and permanent teachers. Under the plan,
these tenure-track teachers were more likely to be laid off

4 For example, assume that the Board has to eliminate ten permanent
positions for high school math teacher and that there were at the time
fifteen probationary teachers in this category, three minority and
twelve majority. Since minorities constitute twenty percent of these
probationary positions, only two of the ten firings could be minorities.
Consequently, even if the minority teachers had the least seniority in
the area, one minority would remain and more senior majority
teachers would be laid off. If the Board had to make another five
layoffs in the same area, the remaining five probationary teachers,
including the one remaining minority teacher, would lose their jobs.
That one minority probationary teacher would be laid off before any
of the permanent teachers’ jobs were put in jeopardy.

oa

12a

during force reductions because the plan overrode the
“last-in, first-out” seniority system created by statute. In
addition, once a majority tenure-track teacher is laid off,
the plan makes it more difficult for that teacher to be
rehired. Under statute and contract, excessed teachers on
preferred eligibility lists are entitled to whatever tem-
porary or tenure-track positions become available based
on seniority. Under the plan, however, all appointments to
temporary and permanent positions are to be made under
the one-to-one formula. Consequently, under the plan, an
excessed tenured majority member of the faculty, already
laid off in contravention of seniority, might be denied
reemployment in favor of a minority applicant with no
experience.

Il.

During the liability portion of this case, the District
Court found that the Board of Education had consis-
tently hired a disproportionately small percentage of
minority staff members, and had intentionally assigned
these minorities to schools with large minority student
bodies. See 415 F. Supp. at 943-48. Such discriminatory
policies are important indicia of a segregated school
system, see Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1, 18 (1971); Green v. County
School Board, 391 U.S. 430, 435 (1968), and the Supreme
Court has repeatedly encouraged district courts presiding
over school desegregation cases to remedy the effects of
these practices. See Milliken v. Bradley, 433 U.S. 267,
281-83 (1977) (Milliken I]; Davis v. Board of School
Commissioners, 402 U.S. 33, 35 (1971); United States v.
Montgomery Board of Education, 395 U.S. 225 (1969).
The question raised by this appeal is whether the District

13a

Court exceeded its equitable powers by the means chosen
to desegregate the faculty of the Buffalo school system.

The Federation argues that the District Court’s reme-
dial plan is invalid simply because it infringes upon
statutory and contractual rights of majority teachers who
played no role in the Board’s past practices of segrega-
tion. We reject this argument. In Milliken v. Bradley, 418
U.S. 717, 744 (1974) (Milliken IT), the Supreme Court
ruled that state laws cannot stand in the way of full
remedies for constitutional violations. Here, the fact that
the Federation has a seniority system should not be
allowed to prevent or inordinately delay the achievement
of a fully desegregated school system for the children of
Buffalo.

Nor was the District Court’s authority impaired, as the
Federation contends, by the Supreme Court’s decisions in
American Tobacco Co. y. Patterson, 456 U.S. 63 (1982),
and /nternational Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977). In those Title VII cases, the
Supreme Court ruled that bona fide seniority systems
must be honored unless there has been a finding of actual
intent to discriminate. See Civil Rights Act of 1964
§ 703(h), 42 U.S.C. § 2000e-2(h) (1976). Here, however,
the suit was brought to remedy violations of the Constitu-
tion rather than Title VII, and the District Court made a
finding of intentional discrimination in the Board’s main-
tenance of a segregated school system.‘ We therefore
agree with the District Court that it had the authority to

$ Similarly, this Court's decision in Chance v. Board of Examiners,
$34 F.2d 993 (2d Cir. 1976), cert. denied, 431 U.S. 965 (1977), is
inapplicable because that case, brought under 42 U.S.C. § 1981 (1976),
involved a layoff remedy adopted solely in the context of employment
discrimination. Chance was therefore analogous to a Title VII suit and
not a school desegregation case.

l4a

curtail the seniority rights of the Federation’s member-
ship in order to vindicate the constitutional rights of the
minority children in the Buffalo school system. See 520 F.
Supp. at 968-66; accord Morgan v. O’Bryant, 671 F.2d 23
(Ist Cir.). cert. denied, 103 S. Ct. 62 (1982); cf. Oliver v.
Kalamazoo Board of Education, 706 F.2d 757 (6th Cir.
1983) (acknowledging power to make such an order, but
reversing District Court's particular order). Once a local
board of education has been found to have employed
staff hiring practices that contribute to a racially segre-
gated school system, the District Court has the power to
remedy those practices and to override seniority systems
that perpetuate those practices.

However, a district court should not exercise this power
excessively. It must balance “individual and collective
interests.” See Swann vy. Charlotte-Mecklenburg Board of
Education, supra, 402 U.S. at 15-16. Moreover, “a fed-
eral court is required to tailor ‘the scope of the remedy’ to
fit ‘the nature and extent of the constitutional viola-
tion.’ ” Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976)
(quoting Milliken 7, supra, 418 U.S. at 744). In particular,
when a district court is shaping relief that will infringe
upon seniority rights, the court must take care that the
relief is necessary to correct constitutional violations. See
Oliver v. Kalamazoo Board of Education, supra, 706 F.2d
at 763.

Applying these standards, we find the District Court’s
remedial plan to be largely acceptable. Certainly the
District Court’s imposition of “one-to-one” hiring goals
was permissible. The Court set these goals only after the
Board failed to increase significantly the number of
minority teachers in the system. Indisputably, these goals
have the effect of delaying the appointment of some
majority candidates on the eligibility lists and preventing

l5a

certain long-term “temporary” teachers from being re-
hired. But the District Court was aware of these effects,
and nevertheless concluded that the plaintiffs’ interests in
having a fully desegregated faculty in the foreseeable
future justified the hardship to the teachers. We agree
with the District Court that the expectations of the
temporary teachers and the candidates on the eligibility
lists were not so strong as to preclude the use of “one-to-
one” hiring.

Similarly, it was not beyond the District Court’s discre-
tion to instruct the Board of Education to delay making
probationary appointments in those areas in which insuf-
ficient numbers of qualified minority candidates were
available to achieve “one-to-one” hiring. To allow
otherwise would permit the current shortage of minority
candidates to be reflected in the system's tenured faculty
for years to come. There is some risk that the Board,
preferring to appoint temporary teachers, might try to
take advantage of this provision of the plan, but the
District Court has offered the Federation adequate pro-
tection against this possibility. The Board is obliged to
undertake extensive recruiting efforts to find minority
candidates and members of the Federation may take their
cases to arbitration if they feel that the Board has taken
advantage of the District Court’s order to avoid making
probationary appointments, see 520 F. Supp. at 967.

A closer question is raised by the District Court's
decision to order that future layoffs be made on a
percentage basis to guarantee maintenance of the existing
ratio of minority to majority teachers. Strong interests lie
on both sides. Probationary and permanent teachers have
a statutorily established expectation that layoffs will be
based on seniority. However, the effect of such layoffs
would “onstitute a serious setback for desegregation of

l6a

the school system. Between 1976 and 1981, the percentage
of minority teachers in the Buffalo system increased from
eight percent to fourteen percent. Seniority based layofts
would erode much of this progress and put the system
even further away from the District Court’s twenty-one
percent target.” Faced with this conflict, the District
Court concluded tha: percentage layoffs presented an
equitable solution. Although some majority teachers who
would otherwise have retained their jobs might be fired
under the Court's plan, minority teachers would also bear
some burden during cutbacks, and no tenured faculty
members—either majority or minority—would be re-
leased until all probationary employees in the particular
area were fired. In this way, the children in the school
district would enjoy the benefits of a significantly, if not
wholly, integrated faculty.’

Considering the intractability of the problem before the
District Court, we find its use of percentage layoffs
acceptable. We agree wiih the First Circuit that percent-
age layoffs present a permissible means of achieving
constitutionally mandated objectives despite contractually
or statutorily established seniority systems during periods

6 The District Court's twenty-one percent target is not challenged on
this appeal, and we therefore do not rule on its validity, We note,
however, that other jurisdictions have been unwilling to approve
teacher quotas based on the percentage of minority students in a
school district or on minority population in a municipality. See, e.z.,
Oliver v. Kalamazoo Board of Education, supra.

In accepting percentage layoffs, the District Court rejected more
radical proposals that would have allowed the Board to progress
toward the twenty-one percent targets despite on-going layoffs. Other
jurisdictions have experimented with such remedies. See, e.g., Oliver v.
Kalamazoo Board of Education, 498 Ft. Supp. 732, 754 (W.D. Mich.
1980), rev'd, 706 F.2d 757 (6th Cir. 1983); ef. Morgan vy. O'Bryant,
supra, 671 F.2d at 25 n.3 (iaid-off minority teachers given absolute
preference in rehiring until targets met).

17a

of staff reduction. See Morgan v. O'Brvyant, supra. A\l-
though we sympathize with the individual teachers who
suffered because of percentage layoffs, theirs is a burden
that must be borne if we are to “eliminate root and
branch” the segregated school system that once existed in
Buffalo. Green v. County School Board, supra, 491 U.S.
at 438.

The District Court's plan, however, does seem need-
lessly harsh in its treatment of laid-off probationary and
permanent teachers. Under statute and collective bargain-
ing agreement, these excessed teachers should be placed
on preferred eligibility lists and given first chance, ac-
cording to their seniority, at whatever temporary or per-
manent positions become available. However, under the
District Court's scheme, these excessed teachers would be
entitled to these positions only within the constraints of
the Court's “one-to-one” hiring goals. While we can
appreciate the District Court's desire to continue to make
progress toward the twenty-one percent target even while
majority excessed teachers remain on the preferred eligi-
bility lists, we nevertheless find this aspect of the remedial
plan unjustified.

Although the District Court found the lack of minority
teachers to be a serious problem deserving a prompt
remedy, the Court did not determine that relief could or
should be instantaneous. For example, there is no reason
to think that, in the absence of layoffs, the District Court
would have ordered the Board to fire tenured majority
teachers and replace them with minority candidates. We
do not believe that the Court was justified in using firings
precipitated by fiscal crises to achieve the same result.
Without an explicit finding of demonstrable necessity, the
District Court should not have impaired the rehiring
rights of excessed probationary and tenured teachers.

i

18a

On remand, the District Court should modify its reme-
dial plan along the following lines. Layoffs may still be
conducted on a percentage basis for each tenure area, but
the laid-off teachers should be placed on preferred eligi-
bility lists as they are laid off. Excessed teachers on
preferred eligibility lists should then enjoy the same rights
to new temporary and permanent positions that they are
guaranteed by statute and collective bargaining agree-
ment. This modification should eventually establish per-
centage rehiring equivalent to the percentage layoffs
established in the District Court’s plan, although majority
excessed teachers with more seniority than minority ex-
cessed teachers will more quickly be rehired. We trust that
the parties will assist the District Court in making these
modifications.

The judgment of the District Court is affirmed in part
and reversed in part; the matter is remanded for the entry
of a modified order.

19a

APPENDIX II
Judgment of the United States Court of Appeals for the Second
Circuit dated and filed July 22, 1983
UNITED STATES COURT OF APPEALS
For The Second Circuit
Civ-1972-325C

Ata stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the twenty-second day of July, one
thousand nine hundred and eighty-three.

United States Court of Appeals
Second Circuit

Jul 22 1983

A. Daniel Fusaro, Clerk

Present:
HON: IRVING R. KAUFMAN
HON: WILLIAM H. TIMERS
HON: JOHN O. NEWMAN
Circuit Judges,

Filed

Sept 6 8:41 AM '83
U.S. District Court
W.D. of N.Y.

20a

APPENDIX II - Judgment of the United States Court of
Appeals for the Second Circuit dated and filed July 22, 1983

GEORGE ARTHUR, ET AL.,
Plaintiffs-Appellees,

and

COMMUNITY ADVISORY BOARD FOR BILINGUAL
EDUCATION OF BUFFALO, ET AL.,
Plaintiffs-Intervenors-Appellees,

Vv.

EWALD P. NYQUIST, ET AL.,
Defendants-Appellees,
BUFFALO TEACHERS FEDERATION, ET AL.,
Defendants-Appellants.

82-7802

Appeal from the United States District Court for the Western
District of New York.

This cause came on to be heard on the transcript of record from
the United States District Court for the Western District of New
York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the judgment of said
District Court be and it hereby is affirmed in part, reversed in
part and remanded to the said district court for further
proceedings in accordance with the opinion of this court.

A TRUE COPY A. Daniel Fusaro

A. DANIEL FUSARO, CLERK = Clerk

By FRANCIS X. GUNDHART EDWARD J. GUARDARO
Chief Deputy Clerk by: Edward J. Guardaro

2la

APPENDIX III

Mandate of the United States District Court of the Western
District of New York, per John T. Curtin, Chief United States
District Judge, dated July 22, 1983 and filed September 6, 1983

GEORGE ARTHUR, et al.,
Plaintiffs,

. v.

EWALD P. NYQUIST, et al.,
Defendants.

*

Civ- 1972-325

A certified copy of the mandate of the United States Court of
Appeals for the Second Circuit dated July 22, 1983, having
been filed in the office of the Clerk of this court on September 6,
1983, it is hereby

ORDERED, ADJUDGED AND DECREED that said
mandate be, and hereby is, made the judgment of this court.

JOHN T. CURTIN
John T. Curtin
Chief United States District Judge

Dated: Septebmer 8, 1983

22a
APPENDIX IV

Opinion of the United States District Court for the Western
District of New York, per John T. Curtin, dated and entered
August 21, 1982. Reported at 520 F. Sup. 961 (W.D.N.Y. 1981)

GEORGE ARTHUR, et al.,

Plaintiffs,
Vv.
EWALD P. NYQUIST, et al.,
Defendants.
Civ-1972-325
APPEARANCES:

JAY, KLAIF & MORRISON (DAVID G. JAY, ESQ., of
Counsel), Buffalo, New York, for Plaintiffs.

JOSEPH P. McNAMARA, ESQ., Corporation Counsel of the
City of Buffalo (AUBREY McCUTCHEON, ESQ., Special
Counsel, WILLIAM E. CAREY, ESQ, Assistant Corporation
Counsel, and JAMES P. CAHER, ESQ., Deputy Corporation
Counsel, of Counsel), Buffalo, New York, for Mayor James D.
Griffin, Superintendent of Schools Eugene T. Reville, The
Board of Education, and the Common Council of the City of
Buffalo, Defendants.

JAMES A. W. McLEOD, ESQ., Buffalo, New York, for
Plaintiff-Intervenor Citizens for Quality Education.

JAECKLE, FLEISCHMANN & MUGEL (J. EDMUND
deCASTRO, JR., ESQ., of Counsel) Buffalo, New York, for
Plaintiff-Intervenor Puerto Rican Legal Defense and
Education Fund.

SEROTTE, HARASYM & REICH (BRUCE A.
GOLDSTEIN, ESQ., of Counsel) Buffalo, New York, for
Plaintiff-Intervenor John Bushey.

ROBERT CLEARFIELD, ESQ., Buffalo, New York, for
Intervenor Buffalo Teachers Federation.

23a

In April of 1976, this court held that the Buffalo Board of
Education and the City of Buffalo were guilty of intentional
racial segregation of the Buffalo Public School System [BPSS].
The court’s findings of fact and conclusions of law are fully
reported in Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y.
1976), aff'd 573 F. 2d 134 (2d Cir. 1978), cert. denied Manch v.
Arthur, 439 U.S. 860 (1978). Numerous decisions have
followed the original liability finding in an attempt to fashion
a comprehensive and acceptable remedy. These decisions
include my orders of March 26, 1979 and August 8, 1980,
concerning staff hiring procedures adopted by the Board of
Education subsequent to the liability decision.

The original decision contained a finding that non-white
teachers, principals, and support staff were underrepresented
in the PBSS and that the Board's failure to increase the
minority teaching percentage was an intentional act of
discrimination Arthur v. Nyquist, supra at 944-48. In each of
my orders following this decision and at numerous meetings
among the parties, the court has expressed its concern that the
efforts of the Board to recruit and place minority teachers and
staff personnel have been inadequate.

The history of the efforts made by the court and the parties to
develop an affirmative action plan has been detailed in my
prior orders. See orders of May 4, 1977, March 14, 1978, and
February 23, 1979. The issue culminated finally in my order of
March 26, 1979, which imposed a one-for-one hiring and recall
goal upon the Board, to be continued until the ratio of
minority school personnel reflected the same ratio existing in
the general community. The defendants were ordered to
submit a plan which would comply with the following
guidelines:

[The defendants shall adopt] 21% as the long-term
percentage goal for the hiring and promotion of minority
administrators, professional staff, and other staff. This
figure shall be revised if necessary, when the results of the
1980 census have been tabulated.

The defendants shall determine the minority

24a

percentage of their full and part-time staff for each job
category (e.g., principals, elementary classroom teachers,
and custodians) and identify each category in which the
minority composition is less than 21%. In accordance
with their proposal, the defendants shall hire and
promote one minority for every non-minority in the
identified job categories until the long-range goal has
been achieved. The one-for-one interim goal shall also
apply to the rehiring of provisional teachers and to the
rehiring of non-tenured teachers who were laid off as a
result of the budget cutbacks instituted in July, 1978. See
the c: urt’s order of February 23, 1979.

In meeting these goals, the defendants shall not be
required to hire or promote any minority candidate who
is not qualified for the position, as the job qualifications
are currently defined by the Board. But defendants are
directed to continue reviewing their selection criteria in
order to minimize their impact on minority cai.didates
(see Board's ‘‘Statement of Commitment,”’ filed December
18, 1978) and to report to the court in writing on July 1,
1979 on their recommendations, if any, for changes in the
selection criteria.

The Board and the plaintiffs jointly submitted a plan which
complied with these guidelines. The plan was approved by the
court as modified on August 8, 1980, and supplements my
order of March 26, 1979. The Buffalo Teachers Federation
(BTF) has noted some objections to the plan.

The motion currently before me concerns hiring and
promotion practices adopted by the Board in August of 1979
and utilized during the 1979-80 school year. This motion was
originally brought in New York State Supreme Court by the
BTF in September of 1979. It was removed from the state court
and consolidated with this case by order of the court. 477 F.
Supp. 691 (W.D.N.Y. 1979).

In its motion, the BTF claims that the Board of Education
violated provisions of New York Education Law by its failure

25a

to appoint as probationary teachers certain qualified
individuals who met the requirements for appointment and
had been placed on the eligibility lists as mandated by state
law. In addition, the BTF alleges that the Board of Education
has breached the collective bargaining agreement existing
between them by its actions regarding the hiring of temporary
and probationary teachers and recall of teachers who had been
excessed. According to the BTF, both tenured teachers and the
individuals whose names were placed on the eligibility lists
have vested rights under the bona fide seniority system
established by the collective bargaining agreement, which
rights have been violated by the Board.

After the case was removed to this court, the BTF continued
to process the grievances of the individual teachers through the
grievance /arbitration procedures of the collective bargaining
agreement. These grievances were ripe for arbitration by April
of 1980. The Board requested a stay of the arbitration
proceedings from this court. The BTF meanwhile moved for
summary judgment on its complaint. The motion for
summary jdugement was denied. The Board’s request for a
stay of the arbitration proceedings was granted, but only
temporarily. Because many issues regarding the proper
construction of the collective bargaining agreement and state
education law were presented, the court concluded that it
would be advisable to have an arbitrator's interpretation of the
contractual provisions relating to seniority, excessing of
teachers and the applicable state education law relating,
especially to hiring of probationary and temporary teachers.
Accordingly, the parties were directed to present their
grievances before an arbitrator pursuant to the provisions of
the collective bargaining agreement. The arbitrator was
instructed to render his decision without regard to the March
26 order of this court. Order of August 8, 1980.

In compliance, a hearing was held on January 28, 1981,
before Arbitrator Thomas N. Rinaldo. Both the Board and the
BTF appeared at the hearing. Testimony was taken from Ms.
Edith Lewin, an Assistant to the President of the BTF, and Mr.

2fa

Frank Aquila, a UniServ Director of the BTF who testified
concerning the traditional hiring practices of the Board of
Education.

Arbitrator Rinaldo delineated the following questions as
those presented by the parties for resolution:

(1) Must the Board of Education fill permanent vacancies
with probationary appointments from teachers placed on
eligibility lists?

(2) Where a permanent teaching vacancy exists, is the Board
of Education required to make a probationary appointment?

(3) Must the Board of Education excess teachers in order of
seniority from tenure areas?

(4) What rights does an excessed teacher have?

(5) Is the Board of Education required to fill temporary
vacancies from eligibility lists?

After consideration of the applicable law, the Arbitrator
rendered his decision regarding each issue. A summary of his
findings follows:

The New York State Education Law clearly mandates
Boards of Education in a City School District with the
population of the City of Buffalo to fill permanent
vacancies with probationary appointments from teachers
pl-ced on eligibility lists. In the case of layoffs, the
Education Law has recognized seniority and mandates
that the least senior teacher in his tenure area is to be the
first to be excessed. Any excessed teacher is to be placed on
a preferred eligibility list in order of seniority based on
service in the system. Boards of Education cannot deviate
from the above mandated provisions of the State
Education Law. State courts have strictly construed the
provisions of the Education Law and invalidated actions
by Boards of Education which have attempted to
circumvent the law.

In the case of temporary appointments, it is only

27a

necessary to look at Article XII (A) and (D) and the past
practice of the parties to rule that the Board is required to
fill temporary vacancies from eligibility lists and where
eligibility lists and where eligibility lists have expired,
temporary appointments must be made from experienced
teachers who have satisfactory service with the Board.

The bottom line of the Arbitrator’s decision is that ‘‘[a] ny
hiring practices inconsistent with the above are either violative
of the collective bargaining agreement or the New York State
Education Law.” The court accepts the Arbitrator’s
conclusions and his interpretation of the relevant law. Given
that my order of March 26, as supplemented by the parties’
plan, is at variance with the rules that generally govern, the
question now before the court is what impact that order shall
have upon state law and the collective bargaining agreement?

My prior decisions demonstrate that it has been the goal of
the court as well as the parties to fashion a remedy which is
comprehensive yet is ‘‘carefully tailored to the scope of the
violation."’ Orders of February 23, 1979 and May 26, 1979; and
see Dayton Board of Education v. Brinkman, 433 U.S. 406
(1977); Milliken v. Bradley, 418 U.S. 717 (1974). In any case
involving violations of constitutional rights, the basic rule,
which has been reiterated time and time again, is that the
remedy for the violations must be designed to make whole the
victims of the actions. Brown v. Board of Education, 347 U.S.
483 (1954); Keyes v. School District No. 1, 413 U.S. 189 (1973);
Swann v. Charlotte-mechlenburg Board of Education, 402 U.S.
1 (1971). In formulating and effectuating such remedies, courts
must be guided by traditional equitable principles. As has
been stated by the United State Supreme Court,

a schoo! desegregation case does not differ fundamentally
from other cases involving the framing of equitable
remedies to repair the denial of a constitutional right.
The task is to correct, by a balancing of the individual and
collective interests, the condition that offends the
Constitution.

Swann, supra at 15-16 (1971).

28a

The court's order of March 26, 1979, was issued in response
to the Board's hiring and assignment policies, to redress the
constitutional violations flowing from these practices. From
the time of the first decision and in subsequent meetings and
orders, the court has emphasized that affirmative recruitment
and utilization of minority personnel for administrative,
instructional, and non-instructional positions are crucial
elements of the remedy. The court recognizes that the primary
responsibility for implementation of any school desegregation
order rests with the local school board. Brown v. Board of
Education, 349 U.S. 294 (1955) [Brown II}. When it became
obvious, however, that the Board had defaulted in its
obligation to proffer an acceptable remedy, the court was
nevertheless compelled to intervene with respect to faculty and
staff appointments. Swann v. Charlotte-Mechlenburg Board
of Education, supra.

The March 26 order was not decided with undue haste or
without adequate preparation. It was the product of most
careful consideration of all the evidence presented, of hearings
held, and of numerous public and private meetings among the
court and the parties. Asa vital part of the remedy, the order, as
supplemented by the plan, must be given effect. Applying
basic principles of constitutional law, neither state law nor
contract law may be used as a defense when the result would be
to impede a court-ordered remedy for constitutional
violations. Martin v. Hunter's Lessee, | Wheat. 304 (1816);
McCulloch vy. Maryland, 4 Wheat. 316 (1819); Bradley v.
Milliken, supra; Morgan v. Kerrigan, 530 F. 2d 431 (Ist Cir.),
cert. denied 423 U.S. 1066 (1976); United States v. Greenwood
Municipal Separate School District, 406 F. 2d 1086 (5th Cir.),
cert. denied 395 U.S. 907 (1969); Oliver v. Kalamazoo Board of
Education, 498 F. Supp. 732 (W.D. Mich. 1980). To the extent
the provisions of the New York State Education Law and the
collective bargaining agreement are in conflict with the
provisions of the court's order, they may not be enforced but
will be superseded by the order.

The position of the BTF is that the individual teachers have

29a

vested rights in their positions which cannot be denied to
them. The BTF characterizes these individuals as ‘innocent
bystanders’ who cannot be “displaced because of the
discriminatory conduct of an employer." Brief for BTF at 21.
The BTF relies heavily upon the facts that neither the union
nor its members were defendants in the original action and that
there has been no finding of discriminatory conduct on the
part of the BTF or its members. The Union has cited to the
court numerous decisions such as Regents of the University of
California v. Bakke, 438 U.S. 265 (1978); DeFunis v. Odegaard,
416 U.S. 312 (1974); Teamsters v. United States, 431 U.S. 324
(1977), which discuss the propriety of voluntary affirmative
action programs and the validity of collective bargaining
agreements. These cases, however, are not applicable to the
instant motion. The court's examination of the BPSS's
employment practices and the subsequent remedial orders
were undertaken to protect the rights of the plaintiffs in this
case: the minority school children and their parents. And,
while it is a matter for serious concern and careful
consideration, the expecttions of majority teachers must not be
allowed to interfere with the court-ordered remedy. Bakke,
supra at 300; Oliver v. Kalamazoo, supra at 752-55.

Thus, the provisions of the March 26 order and
supplemental plan will remain in effect. The Board shall
continue to adhere to its one-for-one hiring program,
regardless of a minority applicant's placement on the eligible
list, until the 21 percent goal established by the court has been
met or surpassed for each job title within the system. The
question remains, however, whether the Board may be liable to
some individuals who were not appointed as probationary
teachers for the school year 1979-80. The issue arises because
the technique employed for hiring for that particular schoci
year, called “block hiring,’ was ultimately rejected by the
court as an effective tool for desegration. Order of August 8,
1980.

The Board's policy of block hiring was devised during 1979.
The Board claimed that, because it was unable to achieve the 21

30a

percent goal in each instructional category, its plan was to hire
additional minority staff in the pre-Kindergarten through
Grade 6 classes, thus offsetting the lesser successes in other
grades and achieving the overall hiring objective. The policy
was communicated to BTF representatives at a meeting held
on August 25, 1979. The representatives were informed that
some probationary offers which had been issued to individuals
on the eligible lists were being withdrawn and that no further
probationary appointments would be made.

Block hiring was rejected by the court as an acceptable
affirmative action plan because it presented the danger that the
pre-Kindergarten through Grade 6 classes would contain the
vast majority of minority teachers and would become racially
identifiable while other job categories remained segregated.
Despite its ultimate rejection by the court, the Board's
implementation of the policy was undertaken in a good faith
effort to comply with the provisions of the March 26 order.
In August of 1979, when it undertook to implement the block
hiring policy, the Board was faced with the dilemma of
whether to hire teachers from the eligible lists which would
postpone or prevent attainment of the 21 percent hiring goal,
or whether to act not in accordance with state law and contract
law and hire away from the lists in favor of minority
applicants. It was clear to the Board from earlier opinions that
continued use of the lists would not be tolerated as an excuse
for the Board's failure to recruit and place adequate numbers of
minority staff. Orders of May 4, 1977, and March 26, 1979.
(While prior submission to the court of the Board's plan would
have been preferable, the Board nevertheless acted within the
spirit of the order, and the court finds that its actions were
reasonably undertaken in compliance with the order.
Accordingly, the Board is not liable to those individuals whose
names were passed over the eligibility lists and who were not
hired.)

A separate issue is presented by the Board's decision,
communicated to the BTF representatives at the same meeting,
to hire temporary teachers instead of probationary teachers

$la

where permanent vacancies existed. Arbitrator Rinaldo found
that this practice was a violation of New York Education Law
§2573 (10-a) which states:

10-a. In a city having a population of four hundred
thousand and less than one million it shall be the duty of
the superintendent of schools, at the direction of the
Board of Education, to hold examinations whenever
necessary, to examine all applicants who are required to
have their names placed upon eligible lists for
appointment in the schools of such cities and to prepare
ali necessary eligible lists. Eligible lists shall not be
merged and one eligible list shall be exhausted before
nominations are made from a list of subsequent date. No
eligible list shall remain in force for a longer period than
three years. Recommendations for appointment to the
instructional service, except for the position of
superintendent of schools, associate superintendent,
assistant superintendent, director, supervisor, principal,
head of department, executive assistant to the
superintendent, or any other office or position of the rank
of supervisor or above, shal] be from the first three persons
on an appropriate eligible list so prepared.

New York law is clear on the issue. Whenever a permanent
teaching vacancy exists, probationary appointment must be
made. Any other action, such as appointment of a per diem
substitute or temporary appointment, has been characterized
as an ‘‘unlawful attempt to evade the tenure law." Serritella v.
Board of Education of Westbury School District, 396 N.Y.S. 2d
57, 58; 58 A.D. 2d 645 (2d Dept. 1977). This court's decisions,
on the other hand, are silent on this issue. The March 26 order
states only that whenever probationary positions are available,
they must be filled on a one-for-one basis. The Board had no
reasonable basis for concluding that it was compelled by the
court's order to hire only temporary instead of probationary
teachers. Because the court's orders are not in contention with
and not intended to supersede the state law, New York
Education Law §2578 (10-a) remained in effect and should

$2a

have controlled the Board's actions.

Thus, the Board should have made _ probationary
appointments to fill permanent vacancies. To the extent that
the provisions of §2573 (10-a) were violated by the Board, the
remedies provided for by state law are appropriate except that
the Board shall not be responsible to any individual whose
placement on the staff as a probationary teacher would have
violated the one-for-one hiring order of March 26, 1979.

In summation, the court's order of March 26, 1979, will
remain in effect, and the Board is directed to continue the
policy of one-for-one hiring. The Board's actions in
implementing its block hiring policy were justified under the
circumstances and do not render the Board liable to
individuals whose names were on the eligible list. Individuals
who would have recieved probationary appointments
consistently with §2573 (10-a) and the provisions of the March
26 order but for the Board's actions are entitled to a remedy.
Arbitrator Rinaldo has retained jurisdiction over the
gricvances which were the source of the arbitration case, and
the case is hereby remanded to the Arbitrator for the
formulation of an appropriate remedy.

So ordered.

JOHN T. CURTIN
United States District Judge

Dated: August 21, 1981

33a

APPENDIX V
New York Education Law Section 2585

§2585. Continuation in office of boards, bureaus,
teachers, principals and other employees, et
cetera

1. Except as otherwise provided herein the boards, bureaus,
teachers, principals, supervisors, superintendents, heads of
departments, assistants to principals, examiners, supervisors
of lectures, directors and all other officers and employees of the
school systems or of boards of education of the several cities of
the state, lawfully appointed or assigned before June eighth,
nineicen hundred seventeen, shall continue to hold their
respe<tive positions for the term for which they were appointed
or until removed as provided in subdivision five of section
twenty-five hundred twenty-three® of this article.

2. Ifa board of education abolishes an office or position and
creates another office or position for the performance of duties
similar to those performed in the office or position abolished,
the person filling such office or position at the time of its
abolishment shall be appointed to the office or position thus
created without reduction in salary or increment, provided the
record of such person has been one of faithful, competent
service in the office or position he has filled.

3. Whenever a board of education abolishes a position
under this chapter, the services of the teacher having the least
seniority in the system within the tenure of the position
abolished shall be discontinued.

4. If an office or position is abolished or if it is consolidated
with another position without creating a new position, the
person filling such position at the time of its abolishment or
consolidation shall be placed upon a preferred eligible list of
candidates for appointment toa vacancy that then exists or that
may thereafter occur in an office or position similar to the one
which such person filled without reduction in salary or
increment, provided the record of such person has been one of

34a

faithful, competent service in the office or position he has
filled. The persons on such preferred list shall be reinstated or
appointed to such corresponding or similar positions in the
order of their length of service in the system.

L.1947, c. 820; formerly §2535; amended L. 1948, c. 287; L.1949,
c. 757; renumbered §2585, L.1950, c. 762, §2; and amended
L.1976, c. 521, §§1,2.

* Now section 2573.

35a

APPENDIX VI
New York Education Law Section 2573.10-a

10-a. In a city having a population of four hundred
thousand and less than one million it shall be the duty of the
superintendent of schools, at the direction of the board of
education, to hold examinations whenever necessary, to
examine all applicants who are required to have their names
placed upon eligible lists for appointment in the schools of
such cities and to prepare all necessary eligible lists. Eligible
lists shall not be merged and one eligible list shall be exhausted
before nominations are made from a list of subsequent date.
No eligible list shall remain in force for a longer period than
three years. Recommendations for appointment to the
instructional service, except for the position of superintendent
of schools, associate superintendent, assistant superintendent,
director, supervisor, principal, head of department, executive
assistant to the superintenent, or any other office or position of
the rank of supervisor or above, shall be from the first three
persons on an appropriate eligible list so prepared. The board
of education, on the recommendation of the superintendent of
schools, shall designate, subject to the other provisions of this
chapter, the kind and grade of licenses which shall be required
for any position of the teaching staff, together with the
academic and professional qualifications required for each
kind or grade of license. No person required to have a license
under the provisions of this chapter in order to be employed in
a position who does not have such license shall have any claim
for salary, except that a person who has been assigned to teach
in a subject or field not specifically covered in his license but on
the same rank or level of service shall be entitled to his salary.
Notwithstanding any other provisions of this chapter, the
superintendent of schools may establish continuing eligible
lists for any classes of teaching positions for which
examinations are required and for which he finds inadequate
numbers of well qualified persons available for recruitment.
Names of eligibles shall be inserted in such list from time to
time in the rank corresponding to their final ratings as they are

36a

tested and found qualified in examinations held at such
intervals as the superintendent of schools may prescribe.
Successive examinations shall, so far as practicable, be
constructed and rated so as to be equivalent tests of the merit
and fitness of candidates. The period of eligibility of successful
candidates on continuing eligible lists shall be in accordance
with the provisions of this paragraph.

37a

APPENDIX VII
Federal Statutory Provisions

6. 42 U.S.C. 2000e-2(h) of the Civil Rights Act of 1964 as
amended provides as follows, in pertinent part:

Notwithstanding any other provision of this title, it shall
not be an unlawful employment practice for an employer
to apply different standards of compensation, or different
terms, conditions or privileges of employment pursuant
to a bona fide seniority or merit system, or a system which
measures earnings by quantity or quality of production or
to employees who work in different locations, provided
that such differences are not the result of an intention to
discriminate because of race, color, religion, sex or
national origin; nor shall it be an unlawful employment
practice for an employer to give and to act upon the results
of any professionally developed ability test provided that
such tests, its administration or action upon the results is
not designed, intended, or used to discriminate because of
race, color, religion, sex, or national origin. It shall not be
an unlawful employment practice under this title for any
employer to differentiate upon the basis of sex in
determining the amount of the wages or compensation
paid or to be paid to employees of such employer if such
differentiation is authorized by the provisions of Section 6
(d) of the Fair Labor Standards Act of 1938 as amended (29
U.S.C. 206 (d)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1367%3A1. Public record. Not legal advice.