Gulino v. New York State Educ. Dept.

• Decision Date: 17 August 2006
• Docket Number: Docket No. 03-9062-CV.
• Citation: 460 F.3d 361
• Parties: Elsa GULINO, Mayling Ralph and Peter Wilds, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, Nia Greene, Plaintiff, v. NEW YORK STATE EDUCATION DEPARTMENT, Defendant-Cross-Defendant-Appellee, Board of Education of the New York City School District of the City of New York, Defendant-Cross-Claimant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

460 F.3d 361

Elsa GULINO, Mayling Ralph and Peter Wilds, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, Nia Greene, Plaintiff, v. NEW YORK STATE EDUCATION DEPARTMENT, Defendant-Cross-Defendant-Appellee, Board of Education of the New York City School District of the City of New York, Defendant-Cross-Claimant-Appellee.

Docket No. 03-9062-CV.

United States Court of Appeals, Second Circuit.

Argued: January 24, 2005.

Decided: August 17, 2006.

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Joshua Samuel Sohn, DLA Piper Rudnick Gray Cary U.S. LLP, New York, N.Y. (Barbara J. Olshansky, Center for Constitutional Rights, New York, NY, Steve Seliger, Seliger & Elkin, Ltd., Chicago, IL), for Plaintiffs-Appellants.

Michael S. Belohlavek, Deputy Solicitor General for the State of New York, New York, N.Y. (Eliot Spitzer, Attorney General for the State of New York, Melanie L. Oxhorn, Assistant Solicitor General, of counsel), for Defendant-Cross-Defendant-Appellee the New York State Education Department.

Mordecai Newman, Assistant Corporation Counsel of the City of New York, New York, N.Y. (Michael A. Cardozo, Corporation Counsel of the City of New York, Larry A. Sonnenshein, Assistant Corporation Counsel, Leonard Koerner, Assistant Corporation Counsel, of counsel), for Defendant-Cross-Claimant-Appellee the Board of Education of the New York City School District of the City of New York.

Before RAGGI and WESLEY, Circuit Judges, and DRONEY, District Judge.^*

RICHARD C. WESLEY, Circuit Judge.

Although this Court has long navigated "the complex realm of [employment] testing and test validation," Guardians Ass'n v. Civil Serv. Comm'n of New York, 630 F.2d 79, 82 (2d Cir.1980), once again, we find ourselves in uncharted territory. This case asks us to decide whether the general knowledge test component of New York State's public school teacher certification program is racially discriminatory in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17. Furthermore, where, as here, the plaintiffs are public employees, the delicate issues of federalism and state police powers come into play in answering the threshold question of which of the defendants, if any, can be considered an "employer" for the purposes of Title VII analysis.

Plaintiffs-appellants, Elsa Gulino, Mayling Ralph, and Peter Wilds, represent a class of African-American and Latino educators in the New York City (the "City") public school system. The essence of their claim is that the New York State Education Department ("SED") and the New York City Board of Education ("BOE") have discriminated against these aspiring teachers through the use of two standardized certification tests, the National Teachers Examination Core Battery ("Core Battery") and the Liberal Arts and Sciences Test ("LAST") of the New York State Teacher Certification Examinations. After a long trial, the district court (Motley, J.^**) found in favor of defendants, holding that, although the two certification tests had a disparate impact on the employment prospects of African-American and Latino candidates, defendants avoided Title VII liability because the tests are "job related."

We hold that the district court initially erred in holding that SED is subject to Title VII liability, but we affirm the district court's holding that BOE is subject to Title VII liability as appellants' employer. As to the merits of appellants' Title VII claim, we find both legal and factual errors in the district court's holding in favor of appellees. We are not convinced, however, that the judgment in favor of appellants is warranted as a matter of law. Consequently, we vacate the district court's judgment and remand for further proceedings in accordance with this opinion.

I

A

New York's Constitution imposes upon the State a duty to "provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." N.Y. CONST. ART. XI, § 1. This means that it is incumbent upon the State to provide, at a minimum, a "sound basic education" for the State's children. See Bd. of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 57 N.Y.2d 27, 48, 453 N.Y.S.2d 643, 439 N.E.2d 359 (1982); see also Campaign for Fiscal Equity, Inc. v. New York, 100 N.Y.2d 893, 905, 769 N.Y.S.2d 106, 801 N.E.2d 326 (2003) ("[A] sound basic education conveys not merely skills, but skills fashioned to meet a practical goal: meaningful civic participation in contemporary society."). To carry out this command, the State has given the Commissioner of Education broad authority to "prescribe . . . regulations governing the examination and certification of teachers employed in all public schools of the state." N.Y. EDUC. LAW § 3004.1; see also id. §§ 3001, 3002, 3005. Because the State government is, at bottom, responsible for a school's failure to provide a "sound basic education,"¹ oversight of the education system at the State level is to be expected.

However, this need for oversight must be balanced against the long-standing principle in New York State that public schools be controlled largely by local school boards. "[Article XI of the New York Constitution] enshrined in the Constitution a state-local partnership in which `people with a community of interest and a tradition of acting together to govern themselves' make the `basic decisions [of] . . . operating their own schools.'" Paynter v. New York, 100 N.Y.2d 434, 442, 765 N.Y.S.2d 819, 797 N.E.2d 1225 (2003) (quoting Levittown, 57 N.Y.2d at 46, 453 N.Y.S.2d 643, 439 N.E.2d 359). Thus, in each school district, the people of the district make "the basic decisions on funding and operating their own schools." Levittown, 57 N.Y.2d at 46, 453 N.Y.S.2d 643, 439 N.E.2d 359 (internal quotation marks omitted); see also N.Y. Civil Liberties Union v. New York, 4 N.Y.3d 175, 181, 791 N.Y.S.2d 507, 824 N.E.2d 947 (2005) (quoting Paynter, 100 N.Y.2d at 442, 765 N.Y.S.2d 819, 797 N.E.2d 1225).²

To insure this emphasis on local control, the New York legislature has, by statute, confided many of the public schools' operating decisions to the discretion of local school boards. For example, school boards approve yearly operating budgets,³ set tax rates, and collect taxes to fund public school budgets.⁴ See N.Y. REAL PROP. TAX LAW §§ 1302-1342; see also, e.g., N.Y. EDUC. LAW §§ 1608,1716, 1804,1906, 2503, 2554, 2601-a. School boards across the State negotiate labor agreements with unions representing district teachers and other school district employees, see N.Y. CIV. SERV. LAW §§ 200,201.11; N.Y. EDUC. LAW § 3011. This is also the case in New York City, where BOE and the United Federation of Teachers enter into collectively bargained agreements governing the employment of the City's public school teachers. See, e.g., Steven Greenhouse, In Contract Deal, Pay to Rise 10%, City Union Says, N.Y. TIMES, July 14, 2006, at A6; see also, e.g., Agreement Between The Board of Education of the City School District of the City of New York and United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, available at http://www.uft.org/member/contracts/teachers_contract/. Local school boards have also been given broad authorizations to purchase, maintain, and sell property on behalf of a school; to provide transportation to and from schools; to select and provide text books and other learning materials; and generally, "[t]o have in all respects the superintendence, management and control of the educational affairs of the district." N.Y. EDUC. LAW § 1604.30; see also generally §§ 1604, 1709. "Although the New York State Department of Education has substantial responsibility for education in the State, the local school districts maintain significant control over the administration of local school district affairs." Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 623, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

Most relevant to this appeal is that local school boards have been given the authority to "employ . . . as many legally qualified teachers as the schools of the district require" and "to determine the rate of compensation of each teacher." N.Y. EDUC. LAW § 1604.8; see also id. §§ 1709.16; 3012.1(a) (prescribing the teacher tenure process to be followed in certain school districts). This means that local school boards are also vested with the authority to enter into contracts with teachers that set forth "the details of the agreement between the parties, and particularly the length of the term of employment, the amount of compensation and the time when such compensation shall be due and payable." Id. § 3011.1. Thus, while some discretion has been taken from local school boards — e.g., the requirement that the teacher be "legally qualified" and that full-time teachers be given an opportunity for tenure — most of the day-to-day management of the affairs of public schools rests entirely with local school boards.⁵ Nowhere in the State has the principle of "giving citizens direct and meaningful control over the schools," Levittown, 57 N.Y.2d at 46, 453 N.Y.S.2d 643, 439 N.E.2d 359, been more meaningfully practiced than in the City of New York, where, until 1991, the establishment of teacher credentialing requirements fell largely on the BOE, see N.Y. EDUC. LAW §§ 2569-a to 2569-f (1990) (repealed by L.1990, c. 650, § 1, eff. Jan. 1, 1991).

B

For many years, the BOE was solely responsible for prescribing the credentialing requirements for City teachers. The minimum requirements were a four-year college degree, as well as passage of both a written and an oral examination administered by the City's own Board of Examiners. Once these minimum requirements were met, the candidate was granted a "temporary per diem certificate" (also referred to as an "initial certificate") allowing him or her to teach for one year. At the end of that year, the teacher could either apply for a renewal of the temporary...