schools was decreased. Thus, black teachers were dismissed summarily, indicating that they were not hired as teachers in a school system, but rather as black teachers in a black school system. But in Newark, there is a fully integrated school population on the student and teacher level. There is no claim that a dual system exists in Newark. In fact, the record would indicate that most of the schools are predominantly populated by non-white children. In such a situation, and in light of the evidence adduced in court that the absence of meaningful representation on the administrative level was retarding the educational development of the school population, the action taken by the Board in this case can only be viewed as a legitimate function of the Board. Cf. Fuller v. Volk, 230 F. Supp. 25 (D.N.J. 1964), and same case, 250 F. Supp. 81; also, Olson v. Board of Education, 250 F. Supp. 1000 (E.D.N.Y. 1966). And this is especially so where the proofs fall short of showing that qualified white applicants were excluded from consideration or discriminated against.
Consideration will now be given to the appointments made by the Board on August 22, 1968. It must be stressed that these were only temporary or acting appointments. The person so appointed receives remuneration above that received before promotion ($75.00 to $100.00 a year above his normal salary), but his position does not become permanent until the Board takes further action. An acting position exists for a one year period. There was a great deal of testimony concerning the method by which these acting appointees were selected.
From the record it appears that the selection procedure began in late June or early July in 1968. The initial recommendations for the temporary or acting appointments were made by the Assistant Superintendents, and they covered positions on the junior high and high school level, as well as on the elementary level. These recommendations would then be discussed with the Deputy Superintendent of Schools and thereafter checked to see if the applicants were properly certificated. A list of the recommended persons would then be submitted to the Superintendent, defendant Titus, who would then make his recommendations to the Board, which took the necessary formal action of making the appointments. The record indicates that the Board members made no independent evaluation of the candidates recommended, but relied upon the expertise of the Superintendent and his staff in appointing those persons whose names were submitted.
As has already been indicated, defendants admit that one of the criteria used in making the appointments in the instant case was the color of the applicant's skin. However, this does not, in and of itself, demonstrate discrimination against white applicants. In fact, the record shows that the Board has no intention of limiting appointments to Negroes, or that consideration was given only to black applicants. The great preponderance of the evidence supports the contention of defendants that the persons recommended and eventually appointed were considered by the appointing authority to be the best qualified individuals for the available positions. Indeed, when the Board considered the recommendations of the Superintendent and his staff, some members of the Board were not even aware of the race of those whom they voted to appoint.
As previously stated the Board, on August 22, 1968, made 55 temporary or acting appointments.
Of that number, 35 positions were filled by white persons and 20 by Negroes. Especially relevant is the fact that on the secondary level, where no promotional lists existed, 31 white applicants and 13 Negroes were appointed. Plaintiffs urge the Court to ignore the appointments made on the secondary level and to only consider those made on the elementary level, where of the 11 appointments made, 7 went to Negroes. This the Court declines to do. Plaintiffs are challenging certain actions taken by the Board, which they claim is unlawful and discriminatory as to them. The Court is of the opinion that the action taken by the Board must be viewed as a whole in evaluating the charge of discrimination. If it was the intention of the Board to discriminate against white applicants, it would have been a simple matter to accomplish this in connection with the secondary level appointments, where no promotion lists existed. However, the appointments actually made, considered in light of the record, clearly rebuts any motivation or intention on the part of the Board to discriminate against qualified white persons in making promotions.
Relating the Board's action of August 22, 1968 to the plaintiffs, the record, taken as a whole, indicates clearly that they were not excluded from promotional positions because of their race. Plaintiffs argue that because they were not appointed to available elementary positions, and some Negroes were, the fact that race was considered by those making the recommendations for appointments, is proof of discrimination. To be sure, 7 Negroes were appointed to elementary positions, but so were 4 white persons. Surely, racial consideration did not affect the selection of these four individuals over plaintiffs. Moreover, the record reflects that plaintiffs Justin and Cohn were appointed to the administrative positions of Teacher to Assist Principal on August 22. The appointment of white applicants, some of whom appeared on promotion lists, and some of whom did not, and the failure to appoint other white applicants whose names appeared on promotion lists, might arguably lend support to the statements appearing in the record, that the examination system did not necessarily supply persons possessing the qualifications deemed essential for promotion by the Superintendent and his staff. Be that as it may, when the time comes for the Board to make permanent appointments to available administrative positions, those plaintiffs whose names appear on the promotional lists are assured of consideration under the "pool" provisions of the memorandum set forth in note 3 of this opinion. It cannot and will not be assumed that this pool procedure will be utilized in such manner as to discriminate against those persons who have been placed in the pool because of their standing on prior examinations.
As to those plaintiffs whose names do not appear on existing promotional lists, there is nothing in the record to cause the Court to assume that future promotions will not be made on the basis of merit. It is true that the criteria for appointments to promotional positions had not yet been established when this case was heard, but it is the Court's understanding that such criteria will be worked out by the Superintendent and his staff and representatives of the Newark Teachers' Association. There is no reason to believe that when such criteria are established, appointments will not be made in a manner that will provide the Newark school system with persons best qualified to perform their respective tasks. It is not the function of this Court to determine the educational soundness of the action taken by the Board in this case. It is sufficient to state that the Board had the authority to take such steps as it deemed necessary and proper to promote the educational welfare of the Newark school community. Of course, in taking such steps, the Board could not infringe upon the right of white teachers to be free from discrimination because of race. Cf. Shelton v. Tucker, 364 U.S. 479, 485, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960); Kemp v. Beasley, 389 F.2d 178, 189 (8 Cir. 1968); 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, 208-210, 297 N.Y.S.2d 547 (1969). On the basis of the record in this case, the Court finds that plaintiffs have not established by a preponderance of the evidence that racial discrimination was intended or practiced against them. This finding makes it unnecessary for the Court to consider the evidence presented by the intervenors in an attempt to show that, in the past, the promotional examinations were conducted in such a way as to discriminate against Negroes. The Court makes no finding on this issue.
It might not be amiss to make some reference to that phase of plaintiffs' prayers for relief wherein they ask for an injunction to prohibit defendants "from taking any punitive measures against the plaintiffs on account of their race or for enforcing their civil rights under this action." There is no need for any such injunction. Plaintiffs had every right to bring this action. Any reprisal for doing so would subject the persons responsible to severe penalties. See Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966). This Court does not for one moment believe that defendants will take any such punitive measures.
For the reasons stated herein, the complaint will be dismissed with prejudice, but without costs. Counsel for defendants will please submit an appropriate order consented to as to form by counsel for plaintiffs and intervenors or bring on a motion for settlement or form of order to be entered, on notice.
This opinion shall constitute the Court's findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure.