Fed. Court: NYC Board of Education Discriminated Against Black, Latino Teachers

On February 5, 2012, a U.S. District Court ruled that the New York City Board of Education discriminated against black and Latino educators. This case dealt with certification exams and dismissals of teachers in the 1990s. This case does not deal with the steep decline in percentage of black and Latino teachers in the last decade under mayor Michael Bloomberg and the Board's successor, the Department of Education. Here is the story, covered in Thomson Reuters, reported December 5, 2012, by Nate Diamond: NYC discriminated against black, Latino teachers: court

NEW YORK, Dec 5 (Reuters) - New York City's Board of Education discriminated against black and Latino teachers by requiring them to pass a standardized test that wasn't properly validated to become licensed to teach in the city's schools, a U.S. judge ruled on Wednesday.

The decision by U.S. District Judge Kimba Wood in Manhattan came in a long-running class action. The ruling permits the plaintiffs to seek the appointment of a monitor to evaluate whether the current version of the test has any of the invalid provisions in place from 1996 to 2000.

At the same time, Wood decertified the class of plaintiffs insofar as it was seeking back pay. The decision follows a landmark 2011 ruling by the U.S. Supreme Court in Wal-Mart Stores Inc v. Dukes, which limited the ability of plaintiffs to group together in class actions.

Lawyers for the plaintiffs said Wood's ruling left the door open for teachers who took the test and number in the hundreds if not thousands to seek damages individually or for the court to certify smaller classes.

Wednesday's ruling marked the latest instance of a federal judge taking issue with New York City employment tests. A federal judge in Brooklyn in March ordered the city to pay up to $128.7 million after finding New York City Fire Department exams had "discriminatory effects" on minority applicants from 1999 to 2007.

"These are two major federal court decisions invalidating public employment tests," said Baher Azmy, the legal director at the Center for Constitutional Rights, which represents the plaintiffs in both cases.

Eamonn Foley, a lawyer with the New York City Law Department, in a statement said the judge was correct to decertify the class with regard to its back pay and injunctive relief demands and that the city didn't break the law with regard to its use of an earlier test.

"The city is reviewing its options with regard to the remaining portions of the decision," he said.

FOUR TEACHERS

The lawsuit was filed in 1996 by four teachers -- three black and one Latina -- who claimed that the testing practices of the New York State Education Department and the New York City Board of Education were discriminatory.

To gain permanent licenses, the teachers had to pass the National Teacher Core Battery exam, which the state began using in 1984, and its successor, the Liberal Arts and Sciences Test, introduced in 1993. A newer version of the LAST has been in place since 2000 and wasn't at issue, the decision said.

The lawsuit claimed that white teachers passed at a higher rate than blacks and Latinos and that the exam had a disparate impact. First-time black and Latino takers of the LAST passed at 57.9 percent and 55.1 percent, compared to a 90.25 percent pass rate for whites, the plaintiffs said in a 2003 filing.

Those who failed the exam lost their conditional licenses. As a result, they could only work as substitute teachers and had lower salaries, benefits and seniority, the plaintiffs said.

About 8,000 to 15,000 teachers have suffered demotion, termination, reduced pay and other losses because they failed the tests, according to the Center for Constitutional Rights. The center's Web site did not provide a time frame for that statistic.

The city contended the exam was job-related, but Wood found that the test wasn't properly validated.

In granting the motion to decertify the class related to monetary damages for back pay, Wood said the class could remain intact for the purpose of seeking a court finding that the board violated Title VII of the Civil Rights Act of 1964.

Damages could, though, still be in play, said Joshua Sohn, a lawyer at DLA Piper working pro bono for the plaintiffs. How the damages would be determined will be the subject of a response from the plaintiffs the court requested by Dec. 13.

"(The decision) leaves the possibility to certify subclasses for damages, or we could propose some other framework to get there," Sohn said.

A status conference is scheduled for Jan. 10.

Since the case was filed, it has wound its way through the courts and passed through four judges.

A class of plaintiffs was certified in 2001 by former U.S. district judge Constance Baker Motley in Manhattan, the second judge to oversee the case after receiving it from Judge Deborah Batts. Following a five-month bench trial in 2003, the judge found the city and state's use of the exam did not violate Title VII.

In 2006, the 2nd U.S. Circuit Court of Appeals reversed Motley's findings. The appeals court tossed the teachers' claims against the state, leaving just the city as a defendant.

Motley died in 2005 before the 2nd Circuit ruled, so the case was later reassigned to Judge Sydney Stein. It was then transferred again, this time to Wood in 2009.

The case is Gulino v. Board of Education, U.S. District Court, Southern District of New York, No. 96-08414.

For Gulino: Joshua Sohn, DLA Piper.

For the New York City Board of Education: Eamonn Foley, New York City Law Department.

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SIGNIFICANCE FOR ACTION GOING FORWARD The JD Journal reported December 7 that the decision opens the way for inquiries as to whether current exams contain invalidated portions:

Though the ruling came in favour of the plaintiffs in a class action, and it allows the plaintiffs ways to evaluate whether the current version of the test still contains the invalid provisions used from 1996 to 2000, the judge decertified the class, because it was seeking back pay.

The story in NY1.com.

CITY ON THE HOOK FOR NEARLY $0.5 BILLION
The Bed-Stuy Patch reported December 7 that New York City could be on the hook for $455 million:
"City on Hook For $455M After Judge Rules Bias on Teacher Exam: The city will pay about $455 million in damages to over 2,000 victims."

The affected teachers – anywhere from 2,000 to 3,500 – will not be entitled to back-pay, the judge also ruled.

During a court hearing on Jan. 10, the teachers are expected to discuss the filing of a separate action to seek compensation from the city.

The $445 million payout, a figure projected by the DOE in a 2011 fiscal report, would be more than triple the $128 million that the city will be paying out to minority FDNY applications, stemming from a similar case of entrance-exam discrimination.