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Case Name Gulino v. New York City Board of Education EE-NY-0260
Docket / Court 1:96-cv-08414-KMW ( S.D.N.Y. )
State/Territory New York
Case Type(s) Equal Employment
Special Collection Post-WalMart decisions on class certification
Attorney Organization Center for Constitutional Rights
Case Summary
On November 8, 1996, a group of African American and Latino teachers in the New York City Public School System filed this class action 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 (Board) and the New ... read more >
On November 8, 1996, a group of African American and Latino teachers in the New York City Public School System filed this class action 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 (Board) and the New York State Education Department (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 two allegedly discriminatory tests developed and administered by the defendants: the National Teacher Examination Core Battery (NTE), and its successor, the Liberal Arts & Sciences Test of the New York State Teacher Certification Examination (LAST). Represented by the Center for Constitutional Rights, the Center for Internet and Society at Stanford Law School, and private counsel, the plaintiffs sought declaratory, injunctive, and monetary relief, as well as class certification.

The defendants had required teachers to pass one of the tests in order to receive their licenses and receive teaching appointments. The plaintiffs claimed that the tests 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), Title VII of the Civil Rights Act of 1964 (Title VII), and various state laws.

Class Certification and Definition
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 [teachers] 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.” 201 F.R.D. 326 (S.D.N.Y. 2001). The Court certified the class under Federal Rule of Civil Procedure 23(b)(2) for injunctive relief.

The lawsuit continued for several years and in 2011 the Supreme Court issued an opinion in Wal-Mart v. Dukes, 564 U.S. 338 that overruled the Second Circuit’s test for class certification. The Supreme Court held that for class members to obtain individualized monetary relief, the putative class must satisfy the requirements of Rule 23(b)(3) and could not avoid its additional requirements by seeking certification under Rule 23(b)(2). The defendants argued that because the plaintiffs had been certified under Rule 23(b)(2) but sought both monetary damages and individualized injunctive relief, the class certification was not valid and the class must be decertified.

On December 4, 2012, the Court (Judge Kimba M. Wood) granted the decertification motion in part and denied it in part. Relying on Rule 23(c)(4), which allows the court to bifurcate proceedings, the court decertified the class with respect to the plaintiffs’ claims for individual injunctive relief but maintained the class with respect to the declaratory judgment of the Board's liability under Title VII and injunctive relief benefiting the class as a whole. 907 F. Supp. 2d 492. The Board appealed the decision.

On August 29, 2013, the Court granted the plaintiff’s motion to certify a damages class under Rule 23(b)(3). After administering the NTE exam, the Board had administered two iterations of the LAST exam, LAST-1 from 1993-2004 and LAST-2 from 2004-2012. The damages class, as amended on June 18, 2014, included those affected by the LAST-1 exam and was defined as: “all African-American and Latino individuals employed as New York City public school teachers by Defendant, on or after June 29, 1995, who failed to achieve a qualifying score on an administration of the LAST-1 given on or before February 13, 2004, and as a result either lost or were denied a permanent teaching appointment.” 2013 WL 4647190.

On February 25, 2014, the Circuit Court (Judges Robert A. Katzmann, Richard C. Wesley, and Raymond J. Lohier, Jr.) held that the Board’s challenge to the District Court’s class action decertification decision was moot because when the District Court certified the damages class, it had addressed the relief that the Board sought on appeal—namely, a determination of whether the predominance and superiority requirements of Federal Rule of Civil Procedure 23(b)(3) were met. 555 F. App'x 37.

The parties then litigated the validity of the LAST-2 test, and ultimately the Court held that the LAST-2 also violated Title VII. On October 7, 2016, the Court granted the plaintiffs' motion to amend the damages class definition. The class definition was expanded to include:
“All African American and Latino individuals Employed as New York City public school teachers by Defendant, on or after June 29, 1995, who failed to achieve a qualifying score on any administration of the LAST, and as a result either last or were denied a permanent teaching appointment.” 2016 WL 9777081.

Defendant’s Crossclaim
On September 20, 2000, the Board of Education filed a crossclaim against the State Education Department for indemnification and contribution, arguing that because the Department had required the Board to administer the NTE and LAST, the Board should be indemnified. By 2003, all the plaintiffs’ claims against the Department had been dismissed, but the Board’s indemnification claims remained.

On June 25, 2009, the District Court (Judge Kimba M. Wood) dismissed the crossclaim, finding that the cross-claim failed as a matter of law because there is no right to indemnification or contribution under Title VII.

The District Court Summary Judgment Decisions
On November 25, 2002, the Court (Judge Motley) granted the plaintiffs' and the defendants' summary judgment motions in part and denied them in part. Specifically, the court decided the following issues:
1. Procedural claims: The Court denied the defendant’s motions for summary judgment, holding that the plaintiffs' suit was not barred under res judicata, the Rooker-Feldman Doctrine, the statute of limitations, or the plaintiffs’ failure to file a timely notice of claim.
2. Failure to state a claim: The court found that because prior to January 1, 1991, New York City was endowed with independent licensing authority, the plaintiffs could not state a claim against the Department for actions taken prior to that date. The court granted the Department's motion for summary judgment on this issue.
3. Lack of jurisdiction: The court denied the Department’s motion for summary judgment on the theory that the court lacked jurisdiction due to the plaintiffs' failure to sue the right party (the New York State Board of Regents). The Court found that the Board of Regents was not a necessary party and that the Department’s argument was a mistaken apprehension of the law.
4. Title VII employer liability: The court denied both defendants' motions for summary judgment that had sought a release from liability on the basis that they were not Title VII employers. The court granted the plaintiffs' motion for summary judgment on the issue and held that both defendants were employers under Title VII.
5. Title VI claims: The court granted the defendants' motions for summary judgment, finding that there was no private right of action under Title VI.
6. Disparate impact claim: The court denied the plaintiffs' motion for summary judgment, finding that that the plaintiffs had failed to establish a prima facie case of disparate impact.
7. Misuse of the tests: Both parties had moved for summary judgment as to whether the tests were appropriately used to demote some of the plaintiffs. The court denied both motions, finding that there were issues of fact remaining.
236 F. Supp. 2d 314.
On November 27, 2002, the court denied the Education Department's request for certification of an interlocutory appeal with respect to the ruling that the Education Department could be liable as an employer under Title VII (issue 4 above). 234 F. Supp. 2d 324. On December 26, 2002, the court reversed its summary judgment ruling for the Department as to actions taken before January 1, 1992 (issue 2 above). The court found that an issue of fact still remained as to whether the Department played a significant role in the licensing of teachers before that date. 2002 WL 31887733.

Trial
Subsequently, the parties had a number of discovery disputes resolved in front of the court. The case went to a bench trial before Judge Motley beginning on December 11, 2002 to address the Title VII disparate impact claims and remaining issues of fact. The court recessed from January 27, 2002 until April 7, 2003, and the trial concluded on April 24, 2003. In total, the trial lasted over eight weeks.

After the bench trial, the court ruled in favor of the defendants on September 4, 2003, and issued a judgment accordingly. The court 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 both tests were job-related, a defense to the plaintiffs' disparate impact showing. 2003 WL 25764041.

The plaintiffs appealed the decision to the Court of Appeals for the Second Circuit. The Education Department filed a cross-appeal, but the appeal was later dismissed in March 2004 for lack of standing (documents unavailable).

Court of Appeals Decision
On August 17, 2006, the Circuit Court (Circuit Judges Reena Raggi and Richard C. Wesley, and District Judge Christopher F. Droney) affirmed the lower court's ruling in part, vacated it in part, and remanded the case back to the trial court. The Circuit Court held that the Department was not a Title VII employer and that the District Court had applied the wrong standard and erred in finding that the Department was subject to Title VII liability. The Circuit Court dismissed the Title VII claims against the Department accordingly. On the other hand, the Circuit Court affirmed that the Board was a proper Title VII employer and that its act of following state laws requiring teachers to pass the tests was not an act of business necessity that would exempt it from Title VII liability. 460 F.3d 361.

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 Court 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 Court vacated the lower court's ruling with respect to the LAST, and remanded the case. The Circuit Court noted that although it had found both legal and factual errors in the holding for the defendants, it was not convinced that judgement for the plaintiff appellants on the Title VII claim was warranted as a matter of law, either. 460 F.3d 361. The Board filed a petition for writ of certiorari to the U.S. Supreme Court, but it was denied on June 23, 2008.

Events after Remand
Judge Motley passed away in 2005, and on remand, the case was reassigned to Judge Sidney H. Stein. The case was then reassigned to Judge Kimba M. Wood in February 2009 (pursuant to a memorandum issued by a case processing assistant). The remaining issues included: (1) whether the LAST was properly validated, and thus job related, and (2) whether the Board misused the NTE and the LAST exams to make decisions regarding the plaintiffs’ employment.

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, the Court (Judge Wood) denied all three entities' motions but granted them the right to participate in the action as amici curiae. 2009 WL 2972997. The Department, the Regents, and the Commissioner appealed the denial to the Circuit Court, but later withdrew the appeal.

On December 5, 2012, the court held that the Board did not misuse the NTE to make decisions regarding conditions of experienced teachers' employment. However, the court found that the Board violated Title VII by requiring the 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.

On January 28, 2013, the court granted the Board's motion for certification of an interlocutory appeal of the decision, finding that the issue of whether the Board’s compliance with a facially neutral state licensing requirement that has a disparate impact on members of a protected class may be subject to Title VII liability met the requirements for an interlocutory appeal. However, the court declined to stay proceedings pending the appeal due to the age of the case.

On July 2, 2013, the court ordered the Board to show cause why it should not issue an injunction enjoining the Board from further use of the LAST. On February 24 2014, the Circuit Court affirmed the District Court judgment.

In May 2014, the court appointed a Special Master to oversee litigation and make reports and recommendations to the court. On November 24, 2014, the court issued an injunction enjoining the Board from using the LAST exam administered on or before February 13, 2004 as a benchmark for any employment decisions for the class members. The court also established criteria that would enable class members to be deemed certified by the State of New York to teach.

The court appointed a neutral expert to evaluate whether the LAST-2 exam (administered from 2004-2012) also had a disparate impact on African American and Latino test takers and whether it violated Title VII. The expert concluded that it did. The court held on June 5, 2015 that the Board violated Title VII by requiring the plaintiffs to pass the LAST-2 exam in order to receive a permanent teaching license. 113 F. Supp. 3d 663. The court subsequently granted a motion to amend the class definition to account for the holding. 2016 WL 9777081.

However, by the time the court reached its decision regarding the LAST-2 exam, the State Education Department had retired the exam and implemented a new test called the Academic Literacy Skills Test (ALST). The parties litigated over the validity of the ALST, and on August 7, 2015, the court held that the Board’s administering of ALST and the State Education Department’s requirement that all licensed teachers pass the ALST did not violate Title VII. The Court found that the content of the exam was related to the job of teaching in state public schools, the content of the exam reflected the content of a teacher’s job, and the developers used reasonable competence in constructing the exam. 122 F. Supp. 3d 115.

The parties continued to litigate over the content of the injunction and over specific claimants’ inclusion or dismissal from the class. In 2016 the court dismissed the case with respect to paraprofessionals employed by the defendants and claimants who had worked as per diem substitute teachers. On December 14, 2018, the court issued an order adopting the Special Master’s Report on Classwide Conclusions of Law, Stipulation of Classwide Facts and Procedures, and Stipulation of the Admissibility of Exhibits. The Report provided a guide to compute damages for claimants. The court has issued judgements for several individual claimants against the Board. The case remains open as the court continues to determine these individual judgements.

Emma Bao - 08/05/2013
Sara Stearns - 04/09/2019


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Issues and Causes of Action
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Issues
Content of Injunction
Monitor/Master
Monitoring
Defendant-type
Elementary/Secondary School
Discrimination-area
Hiring
Pay / Benefits
Seniority
Testing
Discrimination-basis
Race discrimination
General
Disparate Impact
National Origin/Ethnicity
Hispanic
Plaintiff Type
Private Plaintiff
Race
Black
Causes of Action State law
Title VI, Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Title VII (including PDA), 42 U.S.C. § 2000e
Defendant(s) New York City Board of Education
New York State Department of Education
Plaintiff Description A class of Latino and African American teachers in the New York City public school system required to pass certain tests in order to receive or retain their licenses and appointments to teach.
Indexed Lawyer Organizations Center for Constitutional Rights
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Mixed
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Damages
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filing Year 1996
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Understanding Gulino: A Legal Perspective
ERIC Institute of Educational Sciences
Date: April 2017
By: Michelle Croft (ACT Working Paper Series)
[ Detail ] [ External Link ]

  The Meacham and Gulino Rulings: Remnants of the Wards Cove Era
Cite Seer X
Date: April 2008
By: Art Gutman, Eric Dunleavy (The Industrial-Organizational Psychologist)
[ Detail ] [ External Link ]

Docket(s)
03-9062-Cv (S.D.N.Y.)
EE-NY-0260-9000.pdf | Detail
Date: 10/16/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint (1996 WL 33683281)
EE-NY-0260-0010.pdf | WESTLAW | Detail
Date: 11/08/1996
Source: Westlaw
Opinion (201 F.R.D. 326) (S.D.N.Y.)
EE-NY-0260-0011.pdf | WESTLAW| LEXIS | Detail
Date: 07/13/2001
Source: Westlaw
Opinion and Order (236 F.Supp.2d 314) (S.D.N.Y.)
EE-NY-0260-0009.pdf | WESTLAW| LEXIS | Detail
Date: 11/25/2002
Source: Westlaw
Memorandum Opinion and Order (234 F.Supp.2d 324) (S.D.N.Y.)
EE-NY-0260-0008.pdf | WESTLAW| LEXIS | Detail
Date: 11/27/2002
Source: Westlaw
Memorandum Opinion and Order (2002 WL 31887733) (S.D.N.Y.)
EE-NY-0260-0007.pdf | WESTLAW | Detail
Date: 12/26/2002
Source: Westlaw
Memorandum Opinion and Order (2003 WL 41997) (S.D.N.Y.)
EE-NY-0260-0006.pdf | WESTLAW | Detail
Date: 01/06/2003
Source: Westlaw
Memorandum Opinion and Order (2003 WL 1191349) (S.D.N.Y.)
EE-NY-0260-0005.pdf | WESTLAW | Detail
Date: 03/13/2003
Source: Westlaw
Memorandum Opinion and Order (2002 WL 32068971) (S.D.N.Y.)
EE-NY-0260-0004.pdf | WESTLAW | Detail
Date: 03/31/2003
Source: Westlaw
Opinion (2003 WL 1858160) (S.D.N.Y.)
EE-NY-0260-0003.pdf | WESTLAW | Detail
Date: 04/09/2003
Source: Westlaw
Opinion (2003 WL 1878235) (S.D.N.Y.)
EE-NY-0260-0002.pdf | WESTLAW | Detail
Date: 04/11/2003
Source: Westlaw
Opinion (2003 WL 25764041) (S.D.N.Y.)
EE-NY-0260-0001.pdf | WESTLAW | Detail
Date: 09/04/2003
Source: Westlaw
Opinion (460 F.3d 361)
EE-NY-0260-0016.pdf | WESTLAW| LEXIS | Detail
Date: 08/17/2006
Source: Google Scholar
Order [ECF# 234] (S.D.N.Y.)
EE-NY-0260-0012.pdf | Detail
Date: 06/25/2009
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 237] (2009 WL 2972997) (S.D.N.Y.)
EE-NY-0260-0013.pdf | WESTLAW | Detail
Date: 09/17/2009
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 321] (907 F.Supp.2d 492) (S.D.N.Y.)
EE-NY-0260-0014.pdf | WESTLAW| LEXIS | Detail
Date: 12/04/2012
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 386] (2013 WL 4647190) (S.D.N.Y.)
EE-NY-0260-0017.pdf | WESTLAW | Detail
Date: 08/29/2013
Source: PACER [Public Access to Court Electronic Records]
Summary Order (555 Fed.Appx. 37)
EE-NY-0260-0028.pdf | WESTLAW| LEXIS | Detail
Date: 02/04/2014
Source: Westlaw
Interim Recommendation and Interim Report [ECF# 516] (2014 WL 10447206)
EE-NY-0260-0018.pdf | WESTLAW | Detail
Date: 10/24/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 530] (S.D.N.Y.)
EE-NY-0260-0019.pdf | Detail
Date: 11/24/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 587] (2015 WL 1636434) (S.D.N.Y.)
EE-NY-0260-0020.pdf | WESTLAW | Detail
Date: 04/13/2015
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 662] (122 F.Supp.3d 115) (S.D.N.Y.)
EE-NY-0260-0021.pdf | WESTLAW| LEXIS | Detail
Date: 08/07/2015
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 674] (2015 WL 5603020) (S.D.N.Y.)
EE-NY-0260-0022.pdf | WESTLAW | Detail
Date: 09/21/2015
Source: PACER [Public Access to Court Electronic Records]
Interim Report and Recommendation [ECF# 791] (2016 WL 7320775)
EE-NY-0260-0024.pdf | WESTLAW | Detail
Date: 07/18/2016
Source: Westlaw
Opinion and Order [ECF# 800] (2016 WL 4129111) (S.D.N.Y.)
EE-NY-0260-0023.pdf | WESTLAW | Detail
Date: 08/03/2016
Source: PACER [Public Access to Court Electronic Records]
Substituted Interim Report and Recommendation [ECF# 826] (2016 WL 9777081)
EE-NY-0260-0025.pdf | WESTLAW | Detail
Date: 10/07/2016
Source: Westlaw
Order [ECF# 863] (2017 WL 1294557) (S.D.N.Y.)
EE-NY-0260-0026.pdf | WESTLAW | Detail
Date: 04/04/2017
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 1008] (2018 WL 6583844) (S.D.N.Y.)
EE-NY-0260-0027.pdf | WESTLAW | Detail
Date: 12/14/2018
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Katzmann, Robert A. (Second Circuit) show/hide docs
EE-NY-0260-0028
Lohier, Raymond Joseph Jr. (Second Circuit) show/hide docs
EE-NY-0260-0028
Motley, Constance Baker (S.D.N.Y.) show/hide docs
EE-NY-0260-0001 | EE-NY-0260-0002 | EE-NY-0260-0003 | EE-NY-0260-0004 | EE-NY-0260-0005 | EE-NY-0260-0006 | EE-NY-0260-0007 | EE-NY-0260-0008 | EE-NY-0260-0009 | EE-NY-0260-0011
Wesley, Richard C. (State Trial Court, State Appellate Court, Second Circuit) show/hide docs
EE-NY-0260-0016 | EE-NY-0260-0028
Wood, Kimba Maureen (S.D.N.Y.) show/hide docs
EE-NY-0260-0012 | EE-NY-0260-0013 | EE-NY-0260-0014 | EE-NY-0260-0017 | EE-NY-0260-0018 | EE-NY-0260-0019 | EE-NY-0260-0020 | EE-NY-0260-0021 | EE-NY-0260-0022 | EE-NY-0260-0023 | EE-NY-0260-0024 | EE-NY-0260-0025 | EE-NY-0260-0026 | EE-NY-0260-0027 | EE-NY-0260-9000
Monitors/Masters Siffert, John (New York) show/hide docs
EE-NY-0260-0018 | EE-NY-0260-0024 | EE-NY-0260-0025
Plaintiff's Lawyers Gill, Anthony David (New Jersey) show/hide docs
EE-NY-0260-9000
Olshansky, Barbara J. (New York) show/hide docs
EE-NY-0260-9000
Samant, Anjana (New York) show/hide docs
EE-NY-0260-9000
Sohn, Joshua Samuel (New York) show/hide docs
EE-NY-0260-9000
Stevens, Rachel (New York) show/hide docs
EE-NY-0260-9000
Defendant's Lawyers Banks, Steven (New York) show/hide docs
EE-NY-0260-9000
Blanchette, Antoinette W (New York) show/hide docs
EE-NY-0260-9000
Conrad, Jane (New York) show/hide docs
EE-NY-0260-9000
Enloe, Charles Ethan (New York) show/hide docs
EE-NY-0260-9000
Foley, Eamonn Francis (New York) show/hide docs
EE-NY-0260-9000
Fraenkel, William S.J. (New York) show/hide docs
EE-NY-0260-9000
Glass, Bryan D. (New York) show/hide docs
EE-NY-0260-9000
Kim, Grace Diane (New York) show/hide docs
EE-NY-0260-9000
Lieberman, Frederic L. (New York) show/hide docs
EE-NY-0260-9000
Mangum, Ryan Todd (New York) show/hide docs
EE-NY-0260-9000
McHale, Bruce Burton (New York) show/hide docs
EE-NY-0260-9000
Osmond, Mark Andrew (New York) show/hide docs
EE-NY-0260-9000
Schowengerdt, John Stephen (New York) show/hide docs
EE-NY-0260-9000
Stockman, Benjamin E. Mr. (New York) show/hide docs
EE-NY-0260-9000
Welikson, Benjamin (New York) show/hide docs
EE-NY-0260-9000

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