By Nate Raymond
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
"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.
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 A newer version of the LAST has been in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
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
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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