The opinion of the court was delivered by
Conford, P. J. A. D.
(temporarily assigned). Trenton State College (“College”) 'appeals, on grant of certification, 75 N. J. 529 (1977), from a judgment of the Appellate Division affirming a decision of the Division on Civil Bights finding the College guilty of sex discrimination in having denied a tenure-reappointment to Joyce B. Oountiss, an instructor in physical education. The decision granted Oountiss damages for lost earnings and ordered her to be restored to the faculty at the College with tenure. At the end of her second year as an instructor (June 1972) Oountiss had been informed by the administration that she would not be granted tenure at the conclusion of her third year because of lack of a “terminal [doctorate] degree or any extraordinary compensatory qualities.”
The rationale of Countiss’s purported case of sex discrimination is based upon the following assertions of fact. She was engaged in 1970, and, in addition to some teaching, she was designated coach of the women’s basketball and softball teams at the College. Coaches of team sports were accorded “released time” from a uniform teaching load of 12 credits a semester for their coaching duties. By virtue of administrative policy all men’s teams were coached by men and women’s teams by women. During the time-frame here pertinent, 1970-1971 and 1971-1972, women coaches re[593]*593ceived release time credit for coaching on a quarterly basis and men on a semester basis. The women coaches complained about this as discriminatory, and the system was made uniform (on a semester basis) after Countiss was terminated. The practical operation of the system insofar as coaches of men’s and women’s basketball teams was concerned was that the men received five credits a semester (during the entire semester) for basketball even though the coaching duties did not occupy the whole of ¡either the fall or the spring semester. The women (Countiss) received four credits, but only during the second and third quarters of the school year, this on the supposed basis that women’s basketball coaching duties required time only during those quarters. Thus, on an averaged annual basis, the men were receiving reléased time credit of ten hours and women only four hours.1 Claiming that the overall expenditure of time in coaching and incidental duties (recruiting, scouting, etc.) did not vary substantially as between men and women coaches, Countiss asserts that allowing the men’s basketball coaches ten credits of released time a year and her only four such credits was discriminatory. Erom that position, the asserted thesis is that the time left to pursue graduate work was insufficient to enable Countiss to make the “significant progress” toward the doctorate by the end of her second teaching year which the administration indicated would have been required to qualify her for tenure.
Countiss made alternative contentions of sex discrimination. One was that on a national basis only one-third of all holders of doctorates in health and physical education were women; the other, that in the college’s department there were in 1972 thirteen male coaches, of whom eleven were tenured and seven female coaches, of whom four were tenured. None of the tenured .coaches had doctorates. We dismiss both of these allegations of sex discrimination sum[594]*594marily as without even prima facie merit. Cf. Pace College v. Com’n Hum. Rts., etc., 38 N. Y. 2d 28, 377 N. Y. S. 2d 471, 478, 339 N. E. 2d 880, 884 (Ct. App. 1975); Townsend v. Nassau County Medical Center, 558 F. 2d 117, 120 (2 Cir. 1977), cert. den. 434 U. S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 759 (1978). We need only note, in connection with the latter contention, that the administrative policy for requiring doctorates or substantial progress thereto began to develop only in 1970. Further, the fact that four women coaches were previously tenured without doctorates tends to show the College had no prior sex bias in awarding tenure.
I
The College’s defense at the hearing in the Division of the differences in allocating release time as between men and women coaches was that men coaches had more time-consum-ming responsibilities in scouting other teams and in recruiting student-athletes than the women coaches and that the men’s sports seasons were longer. However, no evidence was offered in these regards except for basketball coaches and seasons. Moreover, it was established that the men’s season was only two weeks longer than the women’s and that Countiss was required to coach both the women’s junior varsity and the varsity basketball teams in her second year and attend all their games while the men coaches had assistant coaches for the men’s junior varsity team. Although the men’s team played more regular season games, the women’s played post-season championship games which required Countiss’s attendance.
The College offered in evidence responses to questionnaires submitted by men and women basketball coaches as to the amount of time actually entailed by coaching duties. Countiss’s response was 421 hours while each of the two men coaches returned figures in excess of 1200 hours. These responses covered only a single year and were obtained for purposes of meeting a-U. S. Labor Department investigation [595]*595prompted by Countiss’s complaint concerning the disparate release time system. There was only generalized corroboration of these unsworn figures; they could easily have been exaggerated, and the hearing officer was warranted in giving them limited weight.
Among other findings of fact by the hearing officer in the Division was one that “discrimination was * * * perpetrated * * * in creating adverse work schedules for women.” In similar vein, the Director of the Division found that Countiss was discriminated against in respect of the heavier work load under the policy on release time. We agree with the Appellate Division that consideration of the record as a whole justifies the conclusion that there was sufficient credible evidence to sustain the finding of the Division that Countiss was discriminated against in respect of work load because of the disparate rules as to release time for men and women coaches. Jackson v. Concord Co., 54 N. J. 113, 117-118 (1969). Although there was no finding of discriminatory intent on the part of the college, and the differences in release time were purported to bp related to the sex of the teams rather than of the coaches, the fact remains that all coaches were of the same sex as the athletes coached and that all women coaches were subjected to the discriminatory quarterly system of release time as compared with the more favorable semester system for the men. The degree of disparate treatment was not shown to be justified by any educational (“business”) considerations, and the “impact” of the disparate treatment is such as to categorize the resulting discrimination as based on sex regardless of absence of invidious intent. See Int'l Brotherhood of Teamsters v. United States, 431 U. S. 324, 335, n. 15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Peper v. Princeton University, 77 N. J. 55 (1978).
II
Notwithstanding our holding in I, above, we are unable to agree with the consequential, decision of the [596]*596Division, affirmed by the Appellate Division, that the College be ordered to reinstate Countiss with tenure.
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The opinion of the court was delivered by
Conford, P. J. A. D.
(temporarily assigned). Trenton State College (“College”) 'appeals, on grant of certification, 75 N. J. 529 (1977), from a judgment of the Appellate Division affirming a decision of the Division on Civil Bights finding the College guilty of sex discrimination in having denied a tenure-reappointment to Joyce B. Oountiss, an instructor in physical education. The decision granted Oountiss damages for lost earnings and ordered her to be restored to the faculty at the College with tenure. At the end of her second year as an instructor (June 1972) Oountiss had been informed by the administration that she would not be granted tenure at the conclusion of her third year because of lack of a “terminal [doctorate] degree or any extraordinary compensatory qualities.”
The rationale of Countiss’s purported case of sex discrimination is based upon the following assertions of fact. She was engaged in 1970, and, in addition to some teaching, she was designated coach of the women’s basketball and softball teams at the College. Coaches of team sports were accorded “released time” from a uniform teaching load of 12 credits a semester for their coaching duties. By virtue of administrative policy all men’s teams were coached by men and women’s teams by women. During the time-frame here pertinent, 1970-1971 and 1971-1972, women coaches re[593]*593ceived release time credit for coaching on a quarterly basis and men on a semester basis. The women coaches complained about this as discriminatory, and the system was made uniform (on a semester basis) after Countiss was terminated. The practical operation of the system insofar as coaches of men’s and women’s basketball teams was concerned was that the men received five credits a semester (during the entire semester) for basketball even though the coaching duties did not occupy the whole of ¡either the fall or the spring semester. The women (Countiss) received four credits, but only during the second and third quarters of the school year, this on the supposed basis that women’s basketball coaching duties required time only during those quarters. Thus, on an averaged annual basis, the men were receiving reléased time credit of ten hours and women only four hours.1 Claiming that the overall expenditure of time in coaching and incidental duties (recruiting, scouting, etc.) did not vary substantially as between men and women coaches, Countiss asserts that allowing the men’s basketball coaches ten credits of released time a year and her only four such credits was discriminatory. Erom that position, the asserted thesis is that the time left to pursue graduate work was insufficient to enable Countiss to make the “significant progress” toward the doctorate by the end of her second teaching year which the administration indicated would have been required to qualify her for tenure.
Countiss made alternative contentions of sex discrimination. One was that on a national basis only one-third of all holders of doctorates in health and physical education were women; the other, that in the college’s department there were in 1972 thirteen male coaches, of whom eleven were tenured and seven female coaches, of whom four were tenured. None of the tenured .coaches had doctorates. We dismiss both of these allegations of sex discrimination sum[594]*594marily as without even prima facie merit. Cf. Pace College v. Com’n Hum. Rts., etc., 38 N. Y. 2d 28, 377 N. Y. S. 2d 471, 478, 339 N. E. 2d 880, 884 (Ct. App. 1975); Townsend v. Nassau County Medical Center, 558 F. 2d 117, 120 (2 Cir. 1977), cert. den. 434 U. S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 759 (1978). We need only note, in connection with the latter contention, that the administrative policy for requiring doctorates or substantial progress thereto began to develop only in 1970. Further, the fact that four women coaches were previously tenured without doctorates tends to show the College had no prior sex bias in awarding tenure.
I
The College’s defense at the hearing in the Division of the differences in allocating release time as between men and women coaches was that men coaches had more time-consum-ming responsibilities in scouting other teams and in recruiting student-athletes than the women coaches and that the men’s sports seasons were longer. However, no evidence was offered in these regards except for basketball coaches and seasons. Moreover, it was established that the men’s season was only two weeks longer than the women’s and that Countiss was required to coach both the women’s junior varsity and the varsity basketball teams in her second year and attend all their games while the men coaches had assistant coaches for the men’s junior varsity team. Although the men’s team played more regular season games, the women’s played post-season championship games which required Countiss’s attendance.
The College offered in evidence responses to questionnaires submitted by men and women basketball coaches as to the amount of time actually entailed by coaching duties. Countiss’s response was 421 hours while each of the two men coaches returned figures in excess of 1200 hours. These responses covered only a single year and were obtained for purposes of meeting a-U. S. Labor Department investigation [595]*595prompted by Countiss’s complaint concerning the disparate release time system. There was only generalized corroboration of these unsworn figures; they could easily have been exaggerated, and the hearing officer was warranted in giving them limited weight.
Among other findings of fact by the hearing officer in the Division was one that “discrimination was * * * perpetrated * * * in creating adverse work schedules for women.” In similar vein, the Director of the Division found that Countiss was discriminated against in respect of the heavier work load under the policy on release time. We agree with the Appellate Division that consideration of the record as a whole justifies the conclusion that there was sufficient credible evidence to sustain the finding of the Division that Countiss was discriminated against in respect of work load because of the disparate rules as to release time for men and women coaches. Jackson v. Concord Co., 54 N. J. 113, 117-118 (1969). Although there was no finding of discriminatory intent on the part of the college, and the differences in release time were purported to bp related to the sex of the teams rather than of the coaches, the fact remains that all coaches were of the same sex as the athletes coached and that all women coaches were subjected to the discriminatory quarterly system of release time as compared with the more favorable semester system for the men. The degree of disparate treatment was not shown to be justified by any educational (“business”) considerations, and the “impact” of the disparate treatment is such as to categorize the resulting discrimination as based on sex regardless of absence of invidious intent. See Int'l Brotherhood of Teamsters v. United States, 431 U. S. 324, 335, n. 15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); Peper v. Princeton University, 77 N. J. 55 (1978).
II
Notwithstanding our holding in I, above, we are unable to agree with the consequential, decision of the [596]*596Division, affirmed by the Appellate Division, that the College be ordered to reinstate Countiss with tenure.
Preliminarily, there has been no evidence in this case, nor any finding, that the responsible authorities had not in good faith arrived at the conclusion by the spring of 1972 that either a doctorate or significant progress' thereto was an important factor for consideration in passing upon an award of tenure to any instructor in the health and physical education department of the College as to whom the doctorate would be the terminal degree.2 There is uncontroverted evidence in the record that this policy was applied without any discrimination as to sex in and after 1972. The fact that a formal declaration of that policy was not published until 1973 is immaterial. So is the fact that Countiss was not expressly notified of the policy when engaged. The evidence is clear that the policy was publicized during her tenure and she could properly be expected to have put herself on inquiry of it. In sum, it is indisputable that the denial of tenure to Countiss was on the merits of her application and not based on her sex.
Consequently, we are confronted with the unassailable fact that when the decision as to tenure for Countiss was made in June 1972 she was not in compliance with a major requisite for tenure, absent other extraordinary professional qualities or activities which she was deemed by the Administration not to possess. The Division of Civil Rights found that the ■discriminatory policy as to release time had “made it more difficult for the Complainant to meet the significant progress toward a doctorate’ standard” of the College than it would have been for male coaches. We regard this as an immaterial finding in relation to the propriety of an award by the Division of a tenure reinstatement.
Two considerations are very significant in this regard: (1) the declaration of entitlement to tenure is a highly discre[597]*597tionary determination vested in the boards of trustees of the educational institutions involved. N. J. S. A. 18A:60-1; 18A:64-6; 18A:64-7; Assoc. of N. J. State Col. Fac. v. Dungan, 64 N. J. 338, 355 (1974); and (2) no substantial causal relation was established by Countiss between her teaching and coaching load and her failure to have achieved significant progress toward a doctorate by the end of her second teaching year.
Dealing with the first of the foregoing considerations, and in particular with the statutory authority of the Director of the Division in an appropriate case to take affirmative action in an employment discrimination situation, such as "reinstatement or upgrading of employees, with or without back pay * * see N. J. S. A. 10:5-17, it is obvious that different considerations would apply in relation to a college instructor denied tenure from those pertinent as to one discharged from an ordinary job in private employment. Reinstating the latter would offend no counter consideration in the public interest. But granting tenure to a college teacher found not qualified therefor by the responsible administrative authorities is plainly contrary to sound educational administration. See Donaldson v. Bd. of Ed. of No. Wildwood, 65 N. J. 236, 241 (1974); Zimmerman v. Board of Education of Newark, 38 N. J. 65, 73 (1962), cert. den. 371 U. S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). In a closely comparable ease Chief Judge Breitel, speaking for the New York Court of Appeals, had the following observations:
Neither the commission nor the courts should invade, and only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion and tenure, especially in institutions of higher learning (cf. New York Inst. of Technology v. State Div. of Human Rights, 48 A. D. 2d 132, 368 N. Y. S. 2d 207, mot. for lv. to app. granted 37 N. Y. 2d 709. 375 N. Y. S. 2d 1028, 338 N. E. 2d 330; Faro v. New York Univ., 2 Cir., 502 F. 2d 1229, 1231-1232). Schools of higher learning are not “businesses” where employees are all fairly fungible unskilled or semiskilled workers (see, e. g., State Div. of Human Rights v. Kilian Mfg. Corp., 35 N. Y. 2d 201, 209, 360 N. Y. S. 2d 603, 608, 318 N. E. 2d 770, 773, supra). In a professional or aca[598]*598demic milieu subjective judgments necessarily have a proper and legitimate role * * *,
Pace College v. Com'n on Hum. Rts., etc., supra, 377 N. Y. S. 2d at 478-479, 339 N. E. 2d at 885.
It is not necessary for us here to decide that reinstatement with tenure could never constitute an appropriate remedy in a college discrimination ease. We may leave for determination in a pertinent case a situation, for example, of direct denial of a tenure appointment to an apparently qualified applicant because of race, sex, etc. Cf. Endress v. Brookdale Community College, 144 N. J. Super. 109, 118, 129-131 (App. Div. 1976); Johnson v. University of Pittsburgh, 435 F. Supp. 1328, 1353, 1371 (W. D. Pa. 1977); Keddie v. Pennsylvania State University, 412 F. Supp. 1264, 1270 (M. D. Pa. 1976); Francis v. Ota, 356 F. Supp. 1029, 1033 (D. Haw. 1973).
In the present case the tenuousness of the asserted connection between the claim of inability to qualify for tenure and the discrimination visited upon Countiss in respect of work load, taken together with the proven solid foundation for the College’s requirement of significant progress toward a doctorate for tenure seekers and Countiss’s lack thereof, strongly spell out a clearly mistaken exercise of judgment by the Division in awarding Countiss a tenure reinstatement.
It is notable that, taken in absolute terms (rather than by comparison with the favorable treatment of men coaching faculty), the teaching and coaching load imposed on Coun-tiss, equating to 12 class hours or the equivalent, has not been attacked as excessive — certainly not as rendering it impossible for her to have taken graduate courses. The burden of working toward a graduate degree while teaching is a heavy one for all aspirants to tenure, not peculiar to the case of this complainant. Countiss did manage to take six hours of graduate classes during one semester, after notification of denial of tenure, despite carrying the same teaching and coaching load as before. Although she could have achieved six credits in each of the pre-summer sessions of [599]*5991971 and 1972, she earned only three credits in 1972 and none in 1971. Of substantial significance is her attribution of these deficiencies to lack of finances, rather than lack of time. She also failed to take courses in the summer of 1971 and in the fall of 1970 and 1971, at each of which times up to six credits could have been earned.
We conclude there was no substantial factual basis in the credible proofs for the findings in the Division that Countiss’s teaching and coaching load (conceding discriminatorily favorable treatment of men coaches) was a substantial factor in her failure to achieve the graduate work which would have enabled her to qualify for tenure.
In the stated circumstances, and for the reasons set forth hereinabove, it was a plainly mistaken exercise of discretion for the Division to have directed reinstatement of Countiss with tenure (assuming the power so to act existed at all). By the same token, the award of damages for the differential in earnings between salary as a tenured instructor and other earnings must be vacated.3
Judgment reversed; no costs.