Sharif By Salahuddin v. New York State Educ. Dept.

• Decision Date: 07 February 1989
• Docket Number: No. 88 Civ. 8435 (JMW).,88 Civ. 8435 (JMW).
• Citation: 709 F. Supp. 345
• Parties: Khadijah SHARIF, by her mother and next friend, Amida SALAHUDDIN, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK STATE EDUCATION DEPARTMENT; and Thomas Sobol, Commissioner of Education, in his official capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

709 F. Supp. 345

Khadijah SHARIF, by her mother and next friend, Amida SALAHUDDIN, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK STATE EDUCATION DEPARTMENT; and Thomas Sobol, Commissioner of Education, in his official capacity, Defendants.

No. 88 Civ. 8435 (JMW).

United States District Court, S.D. New York.

February 3, 1989.

As Amended February 7, 1989.

COPYRIGHT MATERIAL OMITTED

Isabelle Katz Pinzler, Kary Moss, Deborah Ellis, Joan Bertin, Women's Rights Project, American Civil Liberties Union Foundation, (Helen Hershkoff, John A. Powell, of counsel, American Civil Liberties Union), Vivenne W. Nearing, Robert Lewin, Madelaine R. Berg, Elizabeth A. Sherwin, Lisa Rosenthal, Mary S. Feinstein, Regan A. Shulman, Stroock & Stroock & Lavan, Robert M. Levy, New York Civil Liberties Union, New York City, for plaintiffs.

Marion R. Buchbinder, Anne B. Ehrenkranz, Asst. Attys. Gen., New York City, for defendant.

Richard Hamburger, Block, Amelkin & Hamburger, Smithtown, N.Y., for amicus Hewlett School Dist.

John F. Cannon, Edward W. Keane, Henry Christensen III, Sullivan & Cromwell, New York City, Howard P. Willens, Christopher R. Lipsett, Edward J. Janger, Michael S. Rabb, Wilmer, Cutler & Pickering, Washington, D.C., for amici College Bd. and Educational Testing Service.

OPINION AND ORDER

WALKER, District Judge:

This case raises the important question of whether New York State denies female students an equal opportunity to receive prestigious state merit scholarships by its sole reliance upon the Scholastic Aptitude Test ("SAT") to determine eligibility. To the Court's knowledge, this is the first case where female students are seeking to use the federal civil rights statute prohibiting sex discrimination in federally-funded educational programs to challenge a state's reliance on standardized tests. This case also presents a legal issue of first impression: whether discrimination under Title IX can be established by proof of disparate impact without proof of intent to discriminate.

After careful consideration, this Court finds that defendants are discriminating against female plaintiffs and their putative class in violation of Title IX and the equal protection clause of the U.S. Constitution. For the reasons set forth below, this Court enjoins the State Education Department and its Commissioner from awarding the merit scholarships at issue solely on the basis of the SAT.

I. The Present Action

In November, 1988, plaintiffs — ten high school students, individually and behalf of all others similarly situated, and two organizational plaintiffs¹ — brought an action for declaratory and injunctive relief against the State Education Department ("SED") and Commissioner of Education Thomas Sobol, in his official capacity, alleging that New York's exclusive reliance on the SAT to award Empire and Regents scholarships discriminates against female students in violation of the equal protection clause of the Fourteenth Amendments to the U.S. Constitution, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., as amended by the Civil Rights Restoration Act of 1987, Pub.L. 100-259, and the regulations pursuant to Title IX, 34 CFR Part 106. Plaintiff's proposed class is composed of "all female high school seniors in New York State who are or will be applicants for Regents College Scholarships and Empire State Scholarships of Excellence." Am. Complaint at ¶ 4.²

In essence, plaintiffs contend that the SED's reliance upon the SAT disproportionately impacts female students without advancing the legislature's purpose of recognizing and awarding superior high school achievement. Plaintiffs argue: "(1) the SAT was not designed to measure academic performance and achievement, and cannot appropriately be put to that use, (2) but even if it did, the SAT discriminates against female applicants for scholarships, because it underpredicts academic performance for females as compared to males." P.Mem. at 5.

On December 21, 1988, plaintiffs filed an order to show cause as to why this Court should not issue a preliminary injunction enjoining SED's practice of exclusive reliance on SAT scores in awarding Regents and Empire scholarships. On that date, in a conference before this Court, defendants represented that, to cover the possibility of an adverse decision that would require the use of grade point averages (variously "GPAs") to determine scholarship eligibility, the SED would commence collection of GPAs immediately.

On January 12, 1989, defendants submitted a cross-motion for an order dismissing the complaint on the grounds that the Court lacks subject matter jurisdiction, that venue is improper, and that the complaint fails to state a claim on which relief can be granted.

On January 23, 1989, at a hearing, the Court accepted amici briefs of the Educational Testing Service ("ETS") and the College Entrance Board, and the Hewlett School District, and heard the testimony of educational testing experts, college deans of admission, and SED administrators with knowledge of the SED's programs of scholarship and testing practices. The Court has carefully examined the submissions of the parties, assessed the credibility of the witnesses and reviewed word by word the hearing transcript.

II. Background

A. Evolution of New York State Scholarship Awards

New York State, in one of the most extensive merit scholarship programs in the country, each year makes 26,000 academic achievement awards to New York's high school graduates. In order to understand the program's current purpose, a brief recitation of the program's evolution is appropriate.

1. Reliance Upon College Entrance Diplomas and Special Regents Examinations

New York State's scholarship program began in 1913, when the legislature first awarded 750 Regents Scholarships in the amount of $100 a year for a period of four years. Act approved Apr. 16, 1913, ch. 292, 1913 N.Y. Laws, § 527. At that time, the $100 stipend was sufficient to cover the tuition charged at most colleges in the State.³ Thus, the award was in the nature of a full scholarship which would promote excellence in education by enabling "the most deserving and meritorious students ... to obtain a college or university training, many of whom would be deprived of such education were it not for the wisdom of the State in providing these scholarships."⁴

The 1913 law authorized the State Board of Regents to make all rules governing the award of the scholarships. Ch. 292, 1913 N.Y. Laws § 72. From 1913 until 1944, the State determined scholarship winners based upon the results of general high school Regents examinations, which also were the basis for granting the college entrance diploma. Lott, T. 64.⁵

By 1944, the SED recognized that it could no longer rely solely upon general high school Regents examinations and college entrance diplomas in awarding Regents Scholarships. First, it was hard to rank students based upon the college entrance diploma because it was "difficult under the statute to know just what subjects to take into account in computing the averages of pupils."⁶ Second, the nature of the high school general Regents exams had changed. Instead of measuring levels of achievement in the variety of courses taught in high school, the general Regents exams became a test of the bare minimum that a student needed to know to graduate from high school, and thus was a poor method for sorting students at the top of the spectrum. Lott T. at 73. Faced with these difficulties, in 1944 the SED developed a separate, more challenging Regents scholarship examination. Meno Aff. ¶ 2. The examination, in use for the next twenty years, was divided into two equal parts — aptitude and achievement — and was six hours long. Lott T. at 68.

In 1974, New York State's scholarship program changed dramatically following a revaluation by a Select Committee on Higher Education. At the time the Regents scholarship program provided an annual award of $1,000 to a limited number of highly qualified students. The Committee found that the legislature's goal of substantially funding students' college educations as an incentive for select students to attend college was no longer being met.⁷ The Committee found that the Regents scholarship examinations "can be criticized for actually rewarding the family background and upbringing that enables students to study and perform well, rather than an objective kind of merit."⁸

Prompted by these concerns, the legislature restructured its awards, creating two types of awards: first, "general awards" which provide substantial monetary assistance, and second, "academic performance awards" which recognize achievement. Act of 1974, ch. 942, N.Y. Laws §§ 604, 605. Classifying Regents Scholarships as "academic performance awards," the legislature reduced the awards to a stipend of $250, and increased the number of awards to 25,000 to be allocated by county of residence. The legislature created additional awards for the least competitive high schools to enable them to receive at least one for every graduate from that school in the preceding year. Ch. 942, 1974 N.Y. Laws § 605(1).

In the "general awards" category, the legislature created a Tuition Assistance Program ("TAP") to fund college students based upon financial need. The legislature made TAP awards available to all students enrolled in approved programs and are given to those who demonstrate the ability to complete such program's courses, and who satisfy financial need requirements established by the Commissioner of Education. Ch. 942, 1974 N.Y. Laws § 604; N.Y. Educ. Law. § 667(1) and (4) (McKinney 1988 & Supp.1989).

2. Reliance Upon the SAT

In 1977, as a cost-cutting measure, the legislature eliminated its funding for the Regents scholarship examinations. P.App. I, Ex. 3. Instead, the legislature directed that the scholarships be awarded on the basis of "nationally established competitive...