United States v. State of South Carolina

ORDER

This is a decision in a bifurcated trial before a three-judge court. Pursuant to a prior Order of the court, only issues of constitutional and federal law with respect to liability were considered at the first three-judge hearing. Procedural issues with respect to the alleged plaintiff class and all issues with respect to the availability or amount of damages were reserved for later determination. 1

The United States brought this action on September 15, 1975, against the State of South Carolina, the South Carolina State Board of Education, the South Carolina State Retirement System, the South Carolina Budget and Control Board, and three local school boards in their individual capacities and as representatives of a defendant class of all local school boards in the State. The defendants are charged with violations of the Fourteenth Amendment to the Constitution of the United States and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., (1970), through the use of minimum score requirements on the National Teacher Examinations (hereinafter “NTE”) to certify and determine the pay levels of teachers within the State.

On September 17, 1975, the South Carolina Education Association (SCEA), the National Education Association (NEA), and nine named individuals as class plaintiffs brought another suit against the same defendants in their official and individual capacities, seeking substantially the same relief sought by the U. S. Attorney General’s suit, basing their actions also upon the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964, as amended; and, in addition, alleging violations of Sections 1981 and 1983 of Title 42 of the United States Code.

These plaintiffs moved to intervene in the Attorney General’s action. This motion was granted on January 6, 1976, and they became the plaintiff-intervenors, and their separate action was stayed.

For over thirty years the State of South Carolina and its agencies have used scores on the NTE to make decisions with respect to the certification of teachers and the amount of state aid payable to local school districts. Local school boards within the State use scores on the NTE for selection and compensation of teachers. From 1969 to 1976, a minimum score of 975 was required by the State for its certification and state aid decisions. In June, 1976, after an *1098 exhaustive validation study by Educational Testing Service (ETS), and, after a critical review and evaluation of this study by the Board of Education’s Committee on Teacher Recruitment, Training and Compensation and the Department Staff, the State established new certification requirements involving different minimum scores in various areas of teaching specialization that range from 940 to 1198. The court holds that these regulations are properly before it since the plaintiffs 2 were undoubtedly aware that the validity study by ETS upon which these regulations were based was well under way when the suits were filed.

The local boards are required by the State to hire only certified teachers, S.C. Code §§ 21-45, 21-371, 21-375, but there are no uniform standards with respect to test scores used by the local school boards in selecting from among the pool of certified applicants.

Plaintiffs challenge each of the uses of the NTE. They contend that more blacks than whites historically have failed to achieve the required minimum score, and that this result creates a racial classification in violation of the constitutional and statutory provisions cited in their complaints. Each complaint seeks declaratory and injunctive relief with respect to the use of the minimum score requirement in certifying and determining the pay levels of teachers, injunctive relief to upgrade the certification levels of teachers adversely affected by the minimum score requirement, and monetary relief for alleged financial losses of teachers, together with costs. Plaintiff-intervenors also asked for attorneys’ fees.

Preliminary matters: There are three preliminary matters pending before this court which should be decided at the outset. By the court’s order of June 17, 1976, rulings on the objections of all parties to the admissibility of certain evidence, and the determination of whether to certify the defendant class were reserved to the three-judge panel. At oral argument before the three-judge panel, plaintiffs moved for a review of the court’s prior order permitting the defendants to conduct redirect examination of one witness by written questions.

Admissibility of evidence: We have considered all of the evidence offered by the parties and the objections thereto. In view of the fact that the court itself is the finder of fact, we admit and consider all of the evidence offered by all parties, and base our findings on the weight and probative value to be accorded the evidence in light of objections made by counsel.

Certification of the defendant class : Plaintiffs sought to bring their actions against a defendant class of all local school boards within the State, and by timely motion sought to certify the class under Rule 23, Federal Rules of Civil Procedure. The motion to certify is denied. The defendant class sought by plaintiffs does not meet the requirements of the Rule since they have failed to establish that there are questions of law or fact common to the class. Each of the 92 school districts involved apparently has different policies with respect to the hiring, salary and tenure of teachers. It appears that some districts hire only teachers with professional certificates plus additional credentials; some hire on the basis of professional certificates alone; others are willing to consider warrant holders. Some districts provide a local salary supplement for nearly all positions; while others provide such supplements for a few classes of positions or none at all. Further, the plaintiffs have made no proper showing that the three school districts named as class representatives have defenses that are typical of the class, and that they will fairly and adequately protect the interests of the class. Thus another requirement of the Rule has not been met by plaintiffs. It is therefore concluded that plaintiffs have failed to carry their necessary burden to establish that their action falls within any of the provisions of Rule 23 in order to justify the court’s certifying it as a class action as sought by them.

Review of the Order permitting examination by written questions : Plaintiffs asked *1099 the three-judge panel to review and overturn the order entered by the district judge (acting for the three-judge panel in all preliminary and prehearing matters) granting a motion by the State defendants to make certain written questions propounded during discovery and the answers thereto a part of the record.

This dispute arose during the deposition of Dr. Winton H. Manning, a Vice President of ETS which administers the NTE. The plaintiffs deposed Dr. Manning for several days resulting in nearly 2000 pages of transcript. ETS being concerned with plaintiffs’ inability -to conclude the deposition of this senior officer offered to answer written questions in lieu of continuing the deposition by oral questioning. 3 Plaintiffs agreed and submitted 188 written questions on cross-examination. ETS answered these questions promptly. Thereafter, Dr. Manning submitted to another day of oral cross-examination. Defendants then submitted 174 written questions in lieu of redirect examination by oral questions. ETS answered those questions. Plaintiffs then submitted 54 written questions in lieu of oral re-cross examination which ETS answered.

Plaintiffs objected to the admission into evidence of the answers to the questions on redirect examination. They urge that the procedure is not permitted by the Federal Rules, or authorized by any agreement of the parties. We hold that the agreement of the parties did not give plaintiffs the exclusive right to use written questions in this regard, and such agreed to procedure is not inconsistent with the Federal Rules, and did not adversely affect the plaintiffs. It would be unfair to deny the defendants the same opportunity to use written questions as was afforded to plaintiffs. Plaintiffs’ motion is therefore denied.

I. CONSTITUTIONAL ISSUES

We first consider whether the use by the State and its Board of Education of a minimum score requirement on the NTE violates the equal protection clause of the Fourteenth Amendment. 4

We conclude as a preliminary matter that the plaintiff-intervenors’ causes of action under the Fourteenth Amendment against the State and the three State agencies are barred by the Eleventh Amendment. 5 The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 (1970), does not explicitly authorize suits against states and therefore cannot be used to circumvent the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The claims for monetary and injunctive relief under the Fourteenth Amendment are barred because a state is not divested of its immunity “on the mere ground that the case is one arising under the Constitution or laws of the United States.” Parden v. Ter *1100 minal R. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 1209, 12 L.Ed.2d 233 (1964), quoting Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The state agencies, by the nature of their responsibilities, function as an arm or “alter ego” of the State and are, therefore, protected by the State’s immunity. Brennan v. University of Kansas, 451 F.2d 1287, 1290 (10th Cir. 1971).

We also dismiss the plaintiff-intervenors’ causes of action under Sections 1981 and 1983 against all defendants except the members and officers of the institutional defendants. 6 States are immune from suit by virtue of the Eleventh Amendment on the basis of 42 U.S.C. § 1983. Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974), cert, den. 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); Percy v. Brennan, 384 F.Supp. 800, 809 (S.D.N.Y.1974); Francis v. Davidson, 340 F.Supp. 351, 370 (D.Md.1972), aff’d, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). None of these defendants are “persons” within the meaning of Section 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 5. Ct. 2222, 37 L.Ed.2d 109 (1973); Fitspatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Similarly, none of these defendants are subject to suit under Section 1981. Arunga v. Weldon, 469 F.2d 675 (9th Cir. 1972); Black Brothers Combined v. City of Richmond, 386 F.Supp. 147 (E.D.Va.1974); Bennett v. Gravelle, 323 F.Supp. 203, 216-17 (D.Md.), aff’d, 451 F.2d 1011 (4th Cir. 1971), cert. dismissed 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972).

In disposing of the remaining constitutional claims, separate consideration must be given to the State’s use of the test scores to certify teachers and to determine the amount of state aid for local school districts. Plaintiffs allege that the disparate racial impact of defendants’ certification and compensation systems creates a racial classification in violation of the Fourteenth Amendment. In order to sustain that allegation, the Supreme Court’s decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), requires plaintiffs to prove that the State intended to create and use a racial classification. If plaintiffs fail to prove intent (or defendants adequately rebut that proof), then we must evaluate this classification under the rational relationship standard required by the Fourteenth Amendment as to all such classifications.

A. Discriminatory Intent

Because of its paramount importance under Washington v. Davis, we look first at whether the plaintiffs have proved that any of the challenged decisions of defendants were motivated by an intent to discriminate. The purpose or intent that we must assess is the purpose or intent that underlies the particular act or acts under review. In its decision in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Supreme Court suggested that evidence as to several factors might have probative value in proving intent; historical background, the sequence of events leading up to the challenged decision (including substantive and procedural departures from the norm), legislative his *1101 tory, and testimony from officials. 429 U.S. at 264-268, 97 S.Ct. 555. With these factors in mind, we look separately at the defendants’ actions with respect to the use of the NTE for certification purposes and those relating to its use for state aid purposes.

1. Certification

South Carolina requires persons who teach in the public schools to hold a certificate issued by the State Board of Education. S.C.Code § 21-354. From 1945 to the present the State has had four certification systems, each requiring prospective teachers to take the NTE. Candidates are able to take the NTE an unlimited number of times. (The tests are given by the State three or four times each year).

The record before us indicates that during this period, the racial composition of the South Carolina teacher force has closely paralleled the racial composition of the State’s population. The 1950 census estimated that 61.1% of the population was white and 38.8% was black. In 1953-54, the State employed a teacher force that was 58% white and 42% black. The 1960 census showed a population that was 65.1% white and 34.9% black. In 1966-67, the teacher force was 65.6% white and 34.4% black. The 1970 census showed a population that was 69.5% white and 30.5% black. In 1975-76, the teacher force was 70.1% white and 29.3% black.

From 1945 through 1968, the State issued four grades of certificates: A, B, C and D. From 1945 through 1956, candidates were awarded certificates based on their relative standing with respect to test scores of all candidates in the State for the year: A certificates went to the top 25%; B certificates to the middle 50%; C certificates to the next 15%; and D certificates to the bottom 10%. Under this system, every candidate who met the other requirements was licensed.

In 1957, a new system of absolute, rather than relative, requirements was instituted. Under this system, a score of 500 or more on the Common Examinations portion of the NTE 7 was required for an A certificate; a score of 425 to 499 for a B certificate; a score of 375 to 424 for a C certificate; and a score of 332 to 374 for a D certificate. Those with scores below 332 were not licensed. During the academic year 1967-68, that restriction eliminated less than 1% of the candidates from predominantly white colleges and approximately 3% of the candidates from predominantly black colleges. The reason for these low percentages is that the 332 minimum score, when placed on the NTE score scale of 300 to 900 points, is very near the lowest attainable score.

In 1969, the certification system was further revised by replacing the four-tiered system with two types of certificates: the professional certificate and the warrant. The minimum score requirement was set at 975 for the professional certificate, including a score of at least 450 on the Common Examinations and at least 450 on the applicable Area Examination; and 850 for the warrant, including a score of at least 400 on the Common Examinations and 400 on the applicable Area Examination. Those who attained scores below 400 were not licensed. In the academic year 1969-70, the maximum score requirement of 400 on the Common Examinations eliminated approximately 41% of the graduates of predominantly black colleges and less than 1% of the graduates of predominantly white colleges. Similar results were obtained in succeeding years, despite the fact that a score of 400 is usually below the 11th percentile nationally, *1102 and almost 90% of the candidates who take these tests get a higher score.

In 1976, the certification system was again revised, the two-tiered system being replaced with a single certificate with separate minimum score requirements in each of the 18 fields of teaching specialty replacing the single minimum score requirement. These combined scores on both Common Examinations and Area Examinations ranged from 940 in Agriculture to 1178 in Library and Media Specialties; and are set forth in detail hereinafter. There are no statistics in the record indicating the impact of the new score requirements because they will be applied first to the class of 1977; however, plaintiffs predict that, under these requirements, the disparate impact may be even greater.

Plaintiffs have asserted four acts by the State indicating discriminatory intent: (1) The decision in 1945 to institute an NTE requirement; (2) The decision in 1956, effective in 1957, to institute an absolute rather than relative score requirement; (3) The decision in 1969 to revise the absolute score requirement to include the Area Examinations as well as the Common Examinations and raising the previous required scores; and (4) The decision in 1976 to change the single composite score requirement to separate composite score requirements for each teaching field, and in all but one case raising the required scores again. We conclude for the following reasons that such actions by the State were not motivated by an intent to discriminate because of race.

The 1945 decision : In 1941, a committee was appointed by the General Assembly to review the certification and compensation of teachers. The committee recommended that a thorough study of the certification system be made and suggested that the use of an NTE score requirement be explored because of the great variation in teacher training institutions. The State Board undertook a two-year study that resulted in a four-volume report, made available in 1944. That report recommended four different teacher credentials based on relative NTE scores. On the basis of the report, the State Board adopted the four-tiered system described above under which no candidate was denied licensing. At that time, South Carolina maintained a dual public school system with segregated student bodies and faculties. After the decision to institute the new certification system, but before its effective date, the State Board tested 50% of the teachers in the State, which revealed that 90% of the white teachers, and only 27% of the black teachers, would qualify for A or B certificates (the two top grades). The remaining candidates — 10% of the whites and 73% of the blacks — would receive C and D certificates. After receiving these data, the State Board did not rescind its decision to institute the new certification system.

We are unable to find any discriminatory intent from these facts. Although the historical background of segregated schools might provide some basis for the inference urged by plaintiffs, any such inference has been rebutted. The committee based its recommendation concerning the NTE in part on its conclusion that the tests “can be scored objectively and impartially and their use would not be subject to the accusation that they are used for purposes of discrimination.” 8 The Board’s extensive study is viewed as an earnest effort in its time, and provided reasonable support for its decision to institute an NTE requirement. The Board’s knowledge of differential impact, without more, does not support a finding of discriminatory intent.

The 1956 decision: From 1945 through 1956, the'State Board received from ETS statistical summaries of the test scores of South Carolina candidates showing that blacks as a group had lower average scores than whites as a group. In 1954 and 1955, the Supreme Court handed down its historic decisions in Brown v. Board of Education, *1103 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), which announced the end of the “separate but equal” rationale for segregated school systems. South Carolina did not thereafter integrate its schools, but instead adopted policies which maintained its dual school system until well into the 1960’s. In 1956, the School Board adopted the absolute score system without a professional study relating the scores to effective teaching or academic achievement in the teacher preparation program.

Again, we find nothing in the record to support a finding of discriminatory intent. Plaintiffs have not persuaded the court that the State’s reluctance to integrate its schools infected its decisions on teacher certification. The minimum score requirement of 332 was so low as to preclude us from presuming or even inferring that this was the case. Only 3% of the candidates from black colleges (and 1% of the candidates from white colleges) were denied certificates under this system during the last year it was in effect; and its effect in earlier years was not substantially different. The State Board did not move to change the system when it discovered that very few blacks were excluded, and significantly, this system was maintained for over 11 years.

The 1969 decision: From 1957 through 1969, the State Board continued to receive from ETS statistical data indicating disparate impact by race. During this period, the State continued to maintain its essentially dual school system through a variety of administrative measures. 9 In 1968, the State Board received a report from a committee formed in 1967 to study the certification system. The committee included black and white members who were educators, teachers, state administrators and others. The committee had before it, inter alia, two documents, one which was critical of the NTE as a predictor of performance in student teaching, and the other which set out the ETS position that the test scores should not be used as a sole criterion for certification if other measures were available. The committee reviewed the academic programs and admission requirements at the State’s 25 teacher training institutions and determined that not all had the same resources and strengths. The committee recommended that the minimum score levels be raised to 975 for professional certificates and 850 for warrants. From the data supplied by ETS, the committee would have been able to predict the impact of its recommendations on black teacher candidates as a group and on white candidates as a group (although it is unclear that such a prediction was ever made). The State Board adopted the committee’s recommen1 dations.

We are unable to find any intent to discriminate with respect to this decision. Plaintiffs offer no direct evidence of such an intent, even though one obvious source, the black members of the committee, was apparently available to them. The State’s authority to re-define minimal competence from time to time cannot reasonably be questioned.

The 1976 decision: ETS urged that the State validate its cut-off score adopted in 1969. In 1971, ETS issued Guidelines that made its position clear. In the absence of any affirmative response by the State, in 1974 ETS announced its intention to cease the reporting of scores to South Carolina. In 1975, a three-judge court issued an interim decision in the ease styled United States v. North Carolina, 400 F.Supp. 343 (E.D.N. C.1975), vacated 425 F.Supp. 789 (E.D.N.C. 1977) which required objective proof by the State of a rational relationship between the minimum score requirement on the NTE and the State’s objective of certifying only minimally competent teachers. Shortly thereafter, the State Board authorized an extensive validity study which was conduct *1104 ed by ETS over a period of three months. The results of the study are set out in a two-volume, 300-page report, which was delivered to the State Board in January, 1976. The Board adopted the study report’s recommendation that there be separate minimum score requirements by teaching field, and set new higher score levels based on the data produced by the study.

The 1976 decision carries a separate importance inasmuch as a finding with respect to it is the only basis for injunctive relief. Intent with respect to prior decisions is relevant only to damages. Plaintiffs offer no additional proof with respect to the defendants’ alleged intent to discriminate in establishing the new certification requirements in 1976. They apparently rely on the cumulative historical background and the imminence of litigation with regard to the prior system. Even if we had found intent to discriminate with respect to one of the State’s earlier decisions, this cumulative history would be without probative value as to the 1976 decision.

While historical circumstances may illuminate the purpose of a particular State action, recent events are far more probative than distant events. With the exception of the 1969 adoption of minimum cutoff scores, the “history” relied on by plaintiffs occurred over 20 years ago. Plaintiffs’ elaborate web of historical circumstances, from which the court is being asked to infer discriminatory purpose, is noticeably silent about recent events. Significantly, the cases relied on by the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, and by plaintiffs in this case (for the proposition that historical circumstances do bear upon invidious purpose) involved events occurring within four years of the state act or decision under review.

With respect to the constitutional challenge to South Carolina’s use of the NTE for certification purposes, we conclude that the plaintiffs have not demonstrated the required discriminatory intent with respect to any of the specific decisions setting certification standards based on NTE scores. This is especially true in connection with the State’s 1976 change in requirements where there is no indication whatsoever that the State and its officers were motivated by anything more than a desire to use an accepted and racially neutral standardized test to evaluate the teacher applicants competing for relatively few jobs in South Carolina.

The NTE are developed and administered by ETS, an independent non-profit organization of recognized professional reputation. ETS recommends that minimum score requirements not be used as a sole determinant of certification decisions where other appropriate information or criteria are available.

In this case, the. plaintiffs have come forth with no other reasonably appropriate criteria upon which certification may be properly based.

Neither have plaintiffs been able to establish any defect in the NTE indicating that the examinations themselves discriminate on the basis of race. The choices as to subject matter and question format are reasonable and well-documented on the record, and although other subject matters or other examination forms might be possible or even preferable, there is no proof of any inherent discrimination. The inference that plaintiffs would have us draw from the statistics which indicate that blacks as a group have lower average scores than whites is rebutted by the evidence with respect to the construction of the tests and their content validity. Since we find that the NTE create classifications only on permissible bases (presence or absence of knowledge or skill and ability in applying knowledge), and that they are not used pursuant to any intent to discriminate, their use in making certification decisions by the State is proper and legal.

2. Pay Scales

Plaintiffs raise a separate constitutional challenge to South Carolina’s use of the NTE as a partial determinant of the salaries paid to public school teachers. The use *1105 of the NTE for salary purposes is distinct from, and, in significant ways, unrelated to the use of the NTE for certification purposes. Accordingly, we must again examine plaintiffs’ proof with respect to intent.

Public school teachers are hired and paid by local school boards in each of the 92 school districts within the State. Each year since 1942 the Legislature has provided state funds for use by the local school districts in paying teacher salaries. This state aid is provided in accordance with a'schedule, enacted into law annually. The schedule is the formula by which the amount of state aid for each school district is calculated. In some districts, teachers are paid only the amount available through state aid. In most districts there is a local supplement. The formula for state aid with respect to each teacher’s salary takes into account the number of years of college or post-graduate training, the number of years of teaching experience, and the type of teaching credential held (professional certificate, warrant, or A, B, C, or D graded certificate). 10

Plaintiffs challenge the state-aid formula insofar as it uses as one criterion the type of teaching credential and thus, indirectly, NTE scores. 11 Plaintiffs claim that the formula creates a racial classification and was so intended by the State.

In this instance we have approximately 34 separate annual decisions by the Legislature to enact the state aid schedule and to appropriate funds pursuant to that schedule. However, there are two turning points with respect to our inquiry into intent: the decision in 1945 to relate eligibility for state aid to certification requirements and thereby incorporate NTE scores into salary decisions; and the decision in 1969 to retain as a basis for the state aid formula the four-tiered certification system with its built-in NTE score requirements. With respect to each of these decisions, we find as follows:

The 1945 decision: Before 1940, South Carolina had a dual pay system in which black teachers were paid less than white teachers; both having the same credentials and responsibilities. In 1940, a similar dual pay system maintained by the State of Virginia was held unconstitutional. Alston v. School Board, 112 F.2d 992 (4th Cir.), cert, denied, 311 U.S. 693, 61 S.Ct. 75, 85 L.Ed. 448 (1940). There was no consideration, in that case, of South Carolina’s pay system, but the Court’s view of the legality of any dual pay system was made clear. In 1941, a committee appointed by the General Assembly began to examine the salary system, and that work was carried on by the State Board which produced in 1944 a recommendation for a unitary system. The dual pay system thus survived until 1945 when the Legislature enacted a unitary system of state aid applicable to all teachers. That system was based in part on the certification grading system adopted by the Board of Education in that year.

At the time the Legislature acted, it had access to the results of the November, 1944, administration of the NTE to about half of the teachers in the State. Those results indicated that 32% of the white candidates would be classified as A certificate holders while only 2% of the black candidates would be so classified. At the other end of the scale, 1% of the whites and 37% of the blacks would be classified as D certificate holders. In between, 67% of the whites and 61% of the blacks would be entitled to B and C certificates. This meant that although blacks and whites would have equal access to salary incentives for college and graduate work and salary rewards for longevity, the amount of those salary supple *1106 ments would be affected by the grade of the certificate held, with the highest supplements available to the A certificate holders and the lowest supplements available to the D certificate holders.

The difference in supplements available to the holders of various grades of certificates was not uniform between each of the four tiers of the system. This differential was generally highest, in absolute terms, between D and C certificates, somewhat less between C and B certificates, and lowest between B and A certificates. Under this system, the Legislature provided to the holders of D certificates the greatest monetary incentive for improvement of the grade of the certificate. The other incentives to acquire additional education or rewards for longevity while holding the same certificate were to some extent independent of the incentives to improve the grade of the certificate.

Soon after this salary system was put into effect, it was challenged on Fourteenth Amendment grounds. The federal district court (Judge Waring) found that, although the prior dual pay system was arbitrary and could not be sustained, the new system had “eliminate[d] entirely any danger of disparity or discrimination by reason of race or color.” Thompson v. Gibbes, 60 F.Supp. 872, 878 (E.D.S.C.1945).

We are unable to find a discriminatory intent from these facts, even though the historical background of a dual pay system and a delay in implementing a unitary system after the Fourth Circuit struck down a similar system in another state provide some support for such an inference. Such inference is adequately rebutted by the evidence with respect to what the Legislature actually did. The unitary pay system was based in part on the amount of educational training and years of teaching experience possessed by each teacher. Plaintiffs make no claim that the use of either of these factors was motivated by discriminatory intent, and it is evident that the monetary rewards available through these avenues alone, without regard to the grade of certificate, were significant. The link between the new unitary pay system and the new certification system is not without a reasoned basis. It was important to the State to use its limited resources to improve the quality of the teacher force and to put whatever monetary incentives were available in the salary schedule to that task. As before stated, we have found that no discriminatory intent has been established with respect to the decision in 1945 to adopt a certification system based in part on NTE scores; and, therefore, without independent proof, there is no associated discriminatory intent in linking the certification and salary systems.

The only independent proof offered by plaintiffs is the availability of statistics provided by ETS showing differential performance by race and the presumption that the Legislature knew of this impact when it enacted the salary system. Statistics indicating differential impact are without independent constitutional significance, Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), therefore knowledge of such statistics is similarly unpersuasive.

The 1969 decision: In July 1969, the State Board replaced the old A-B-C-D certificates (prospectively only) with a professional certificate and a warrant. At the same time the Legislature retained the state-aid formula based on the A-B-C-D classifications. Holders of professional certificates and warrants were paid at the rates applicable to holders of A certificates. 12 Some changes tinkering with the *1107 system had been made over the years and was reflected in the system retained in 1969.

From 1945 through 1969, statistical data was made available indicating that the percentage distribution of teachers among the four categories of teaching credentials was not uniform by race. Significant numbers of blacks qualified each year for A and B certificates, but a relatively higher percentage of blacks were in the C and D categories. Similarly, although it could be predicted that significant numbers of blacks would achieve professional certificates, a relatively higher percentage of blacks would hold warrants.

Plaintiffs urge that the Legislature was motivated by an intent to discriminate because the state aid schedule provided fewer benefits and incentives for two classifications of teachers in which there were relatively more blacks than whit