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August 14, 1969

Victor Porcelli et al., Plaintiffs
Franklyn Titus et al., Defendants and Bertram Coppock et al., Intervenors

Augelli, Ch. J.

The opinion of the court was delivered by: AUGELLI

Plaintiffs, ten white teachers employed by the Newark Board of Education, bring this action under the Civil Rights Act, 42 U.S.C.A. § 1983, alleging that the defendants, in appointing elementary school principals and vice-principals, discriminated against them because of their race. This Court has jurisdiction under 28 U.S.C.A. § 1343.

 The basic facts are not in dispute and have been stipulated by plaintiffs and defendants. Many of the facts so stipulated have been accepted by the intervenors. It appears that on February 1, 1967, the Newark Board of Education entered into an agreement with the Newark Teachers' Association. This agreement, which was to run until February 1, 1970, in Article X thereof, dealing with promotions, provides:

A. The positions of principal, vice principal, head teacher, department chairman and counselor shall be filled in order of numerical ranking from the appropriate list, which ranking shall be determined by written and oral examinations. Appointments to the position of teacher to assist principal (formerly called Administrative Assistant) shall be made annually on a temporary basis if the Superintendent determines that such a position is necessary or desirable, and all appointments to such position shall be made in order of numerical ranking from the appropriate vice principal's list if such a list exists.
B. Such examination shall be given at regularly scheduled intervals and shall be adequately publicized in every school at least sixty (60) days in advance.

 On June 30, 1967, the Board of Education amended its rules and regulations to conform to the provisions of said agreement of February 1, 1967, and Article X thereof. Pursuant to the agreement and the amended rules and regulations, there was in existence, on May 28, 1968, a Principal's List and a Vice Principal's List which contained the names and ranks of persons eligible for promotion by virtue of the scores made by them in the promotional examinations. *fn1"

 On May 28, 1968, the Board adopted a resolution suspending all appointments from the existing lists, "pending an evaluation by the Board of Education of the present procedure for making such appointments, effective after October 1, 1968." At the same time, it was stated that "the examination for principals and vice principals would be held on June 8, 1968 as scheduled. However, no appointments would be made from the lists established by those examinations until the Board has decided how it wished to proceed." *fn2"

 Plaintiffs' complaint, in essence, is that defendants, acting under color of law, abolished the examination procedure for the purpose of appointing Negroes to positions for which they would not otherwise be eligible. They allege that appointments were made to these positions solely on the basis of race, and that plaintiffs were discriminated against solely because they are white. Plaintiffs seek damages in the sum of $500,000.00, and a "mandatory permanent injunction against the defendants herein, prohibiting them from taking any punitive measures against the plaintiffs on account of their race or for enforcing their civil rights under this action."

 It is the defendants' position that the abolition of the examination system was a legitimate governmental action taken by the Board of Education to improve promotional procedures, and that such step was not taken for the purpose of favoring or restricting promotional appointments to black educators. Defendants also contend that there is no support in the record for a conclusion that the Board discriminated against white educators in making promotional appointments. They further argue that even if the Court should find that the purpose behind the abolition of the examination system was to make available more Negroes for promotional appointments, this was a legitimate goal of the Board in light of the past racial imbalance that existed in the administrative ranks of the Newark school system. The intervenors join in these arguments. In addition, they argue that the Board had a positive and affirmative duty to appoint Negro administrators because the Board had, in the past, practiced racial discrimination to exclude Negroes from these administrative positions.

 The Civil Rights Act, pursuant to which plaintiffs assert a cause of action in this Court, prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complaining party to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. Basista v. Weir, 340 F.2d 74 (3 Cir. 1965). The Newark Board of Education is a body corporate, N.J.S.A. 18A:10-1, which may sue and be sued, N.J.S.A. 18A:11-2, and is amenable as a "person" to suit under 42 U.S.C.A. § 1983. School Board of City of Charlottesville v. Allen, 240 F.2d 59 (4 Cir. 1956).

 It is clear that racial discrimination in a state or municipal school system violates the equal protection clause of the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954). This proscription applies equally to the employment and assignment of teachers, as it does to pupil discrimination. Wall v. Stanly County Board of Education, 378 F.2d 275 (4 Cir. 1967); Smith v. Board of Education of Morrilton School District, 365 F.2d 770 (8 Cir. 1966). There is no reason to assume that it does not apply with equal force to the promotion of teachers to positions of principal and vice principal and other administrative posts. Cf. In the Matter of Council of Supervisory Associations of Public Schools of New York City, 23 N.Y.2d 458, 245 N.E. 2d 204, 297 N.Y.S.2d 547 (1969).

 It cannot be denied that the Newark Board of Education, under N.J.S.A. 18A:27-4, has the power to promulgate rules and regulations governing the promotion of teachers to administrative positions and to determine the criteria to be utilized in making such promotions, provided it does not practice racial discrimination. See decision rendered by the New Jersey Commissioner of Education on December 13, 1968, in Porcelli v. Titus, referred to in note 4 of this opinion. In Kemp v. Beasley, 389 F.2d 178 (8 Cir. 1968), the court noted that the primary responsibility for faculty selection must remain with the various Boards of Education and their officials, who have "broad and sensitive expertise" in the area. There appears to be no state law requiring that promotions to such positions as principal or vice principal be made on the basis of competitive examinations. This would seem to be solely a matter of contract between the Board and the teachers it employs. This Court, of course, is not concerned with any possible claim plaintiffs may have against the Board arising out of the contract of February 1, 1965. Similarly, the Court is not considering whether the Board had the power, in the abstract sense, to reconsider existing promotional procedures and alter them. *fn4" The sole question for ...

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