On November 8, 1996, African American and Latino teachers in the New York City Public School System filed a lawsuit in the U.S. District Court for the Southern District of New York against the Board of Education of the New York City School District and the New York State Education Department. This action was filed on behalf of themselves and all similarly situated African-American and Latino teachers in the system who were adversely affected by either of the two allegedly discriminatory tests developed and administered by the defendants, the National Teacher Examination Core Battery (NTE), and the Liberal Arts & Sciences Test of the New York State Teacher Certification Examination (LAST), the successor to the NTE. The plaintiffs, represented by an attorney from the Center for Constitutional Rights, an attorney from the Center for Internet and Society of Stanford Law School, and private counsel, sought declaratory, injunctive, and monetary relief as well as class certification.
The defendants required teachers to pass one of the tests in order to receive or retain their licenses and appointments to teach. The plaintiffs claimed that the tests in question were misused and not designed to measure whether the test-takers were qualified as teachers. They alleged that because African American and Latino teachers disproportionately failed the tests in contrast to White test-takers, the use of these tests had a disparate impact on them and violated Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq., Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., and various state laws.
On September 20, 2000, the Board of Education filed a crossclaim against the Education Department for indemnification and contribution. On July 13, 2001, the District Court (Judge Constance B. Motley) granted the plaintiffs' motion to certify this action as a class action on behalf of all African-American and Latino in the System who were employed by the defendants on or after June 29, 1995,failed either the NTE or the LAST, and had suffered adverse employment consequences. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 201 F.R.D. 326 (S.D.N.Y. 2001).
On November 25, 2002, the Court granted the plaintiffs' and the defendants' summary judgment motions in part and denied them in part. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 236 F. Supp. 2d 314 (S.D.N.Y. 2002). Judge Motley granted both defendants' motions for summary judgment regarding the Title VI claims, agreeing with the defendants that there was no private right of action under Title VI. She denied the motions for summary judgment that claimed that the plaintiffs' suit was barred under res judicata, Rooker-Feldman Doctrine, the statute of limitations, and their failure to file a notice of claim. Judge Motley further denied both defendants' motions for summary judgment that sought a release from liability on the basis that they were not Title VII employers, and granted the plaintiffs' summary judgment that sought the reverse.
Additionally, Judge Motley granted the Education Department's motion for summary judgment on the ground that the plaintiffs failed to state a claim against it for any actions taken prior to January 1, 1991, but she denied its summary judgment motion on the theory that the Court lacked jurisdiction due to the plaintiffs' failure to sue the right party, which was the New York State Board of Regents.
Judge Motley denied the plaintiffs' motion for summary judgment that argued they had established a prima facie case of disparate impact. She also denied both the Education Department's and the plaintiffs' motions for summary judgment with regard to whether the tests in question were appropriately used to demote the plaintiffs for factual disputes.
On November 27, 2002, the Court denied the Education Department's request for a certification of an interlocutory appeal with respect to the ruling that the Education Department could be liable as an employer under Title VII. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 234 F. Supp. 2d 324, 325 (S.D.N.Y. 2002). On December 26, 2002, the Court reversed its summary judgment ruling that the plaintiffs failed to state a claim against it for any actions taken prior to January 1, 1991 in the Education Department's favor. Gulino v. Bd. of Educ. of City of New York, 2002 WL 31887733 (S.D.N.Y. Dec. 26, 2002).
Subsequently, the parties had a number of discovery disputes resolved in front of the Court. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 2003 WL 41997 (S.D.N.Y. Jan. 6, 2003); 2003 WL 1191349 (S.D.N.Y. Mar. 13, 2003); 2002 WL 32068971 (S.D.N.Y. Mar. 31, 2003); 2003 WL 1858160 (S.D.N.Y. Apr. 9, 2003); 2003 WL 1878235 (S.D.N.Y. Apr. 11, 2003). Meanwhile, the case went to a bench trial before Judge Motley beginning on December 11, 2002. The Court then recessed from January 27, 2002 until April 7, 2003, when the trial resumed. The trial concluded on April 24, 2003.
After the bench trial, the Court ruled in favor of defendants on September 4, 2003, and issued a judgment accordingly. Gulino v. Bd. of Educ. of City Sch. Dist. of the City of N.Y., 2003 WL 25764041 (S.D.N.Y. Sept. 4, 2003). Judge Motley held that, although the two tests in question had a disparate impact on the employment prospects of African-American and Latino test-takers, the defendants had no Title VII liability because the tests were job-related, a defense to the plaintiffs' disparate impact showing. The plaintiffs appealed this decision to the 2nd Circuit Court. The Education Department filed a cross-appeal, but it was later dismissed for lack of standing.
On August 17, 2006, the 2nd Circuit Court affirmed the lower court's ruling in part, vacated it in part and remanded the case back to the trial court in an opinion by Judge Richard C. Wesley. Gulino v. New York State Educ. Dep't, 460 F.3d 361 (2d Cir. 2006). The Circuit Court held that the Education Department was not a Title VII employer, thus the District Court erred in holding that the Education Department was subject to Title VII liability. The Court dismissed the Title VII claims against the Education Department accordingly. On the other hand, the Circuit Court affirmed that the Board of Education was a proper Title VII employer, for its following state laws requiring teachers to pass the tests was not of business necessity that would exempt it from Title VII liability.
The Circuit Court also found both legal and factual errors in the District Court's Title VII claim ruling in the defendants' favor. The Circuit agreed with the lower court that the NTE was properly validated and job-related. However, it found that the lower court had applied the wrong legal standard in its determination that the LAST was job-related. The Circuit vacated the lower court's ruling with respect to the LAST, and remanded the case. Additionally, the Circuit Court noted that it was not convinced the judgment in favor of the plaintiffs as warranted as a matter of law. The Board filed a petition for writ of certiorari to the U.S. Supreme Court, but it was denied on June 23, 2008.
On remand, the case was reassigned to Judge Sidney H. Stein, and then Judge Kimba M. Wood. On June 25, 2009, the Court (Judge Wood) dismissed the Board's crossclaim for indemnification and contribution against the Department, for there is no right to indemnification or contribution under Title VII.
In the meantime, the Department, the New York State Board of Regents (the Regents) and the New York State Commissioner of Education (the Commissioner) sought to intervene in this action, seeking declaratory judgment from the Court against the plaintiffs under several theories. On September 17, 2009, Judge Wood denied the three entities' motion but granted them the right to participate in the action as amici curiae. Gulino v. Bd. of Educ., 2009 WL 2972997 (S.D.N.Y. Sept. 17, 2009). The Department, the Regents, and the Commissioner appealed the denial to the 2nd Circuit Court, but later withdrew the appeal.
While issues on remand were still pending, the Board moved to decertify the plaintiff class. On December 4, 2012, the Court granted the decertification motion in part and denied it in part. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 907 F. Supp. 2d 492 (S.D.N.Y. 2012). Judge Wood held that the class survived only as to the declaratory judgment of the Board's liability under Title VII and injunctive relief benefiting the class as a whole. With regard to the Board's liability, the Court found that the Board violated Title VII by requiring Plaintiffs to pass the LAST as a condition to receive teaching licenses, because the LAST was not properly validated and thus it was not job-related. However, the Board did not misuse the NTE to make decisions regarding conditions of experienced teachers' employment.
On January 28, 2013, the Court granted the Board's motion for certification of interlocutory appeal of the decertification decision. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 907 F. Supp. 2d 492 (S.D.N.Y. 2012), motion to certify appeal granted (Jan. 28, 2013). In addition, the Court declined to stay proceedings pending the appeal for the age of the case. On July 2, 2013, the Court ordered the Board to show cause why the Court should not issue an injunction enjoining it from further use of the LAST. The case is ongoing. Emma Bao - 08/05/2013