Gulino v. Bd. of Educ. of the City Sch. Dist. of N.Y.

• Citation: 907 F.Supp.2d 492
• Decision Date: 28 January 2013
• Docket Number: No. 96 CV 8414 (KMW).,96 CV 8414 (KMW).
• Parties: GULINO, et al., Plaintiffs, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

907 F.Supp.2d 492

GULINO, et al., Plaintiffs,

v.The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, Defendant.

No. 96 CV 8414 (KMW).

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

Dec. 5, 2012.

Opinion Granting Motion To Certify Appeal Granted Jan. 28, 2013.

Barbara J. Olshansky, Stanford Law School Center for Internet & Society, Stanford, CA, Joshua Samuel Sohn, DLA Piper U.S. LLP, New York, NY, for Plaintiffs.

Bryan David Glass, New York State United Teachers, Eamonn F. Foley, The New York City Law Department, New York, NY, for Defendant.

OPINION & ORDER

WOOD, District Judge.

Plaintiffs, who represent a class of African–American and Latino teachers in the New York City public school system, brought the above-captioned action in 1996. Plaintiffs allege that the Board of Education of the City School District of the City of New York (“the Board”), currently a Defendant, and former Defendant the New York State Education Department (“SED”) discriminated against Plaintiffs in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Specifically, Plaintiffs claim the Board engaged in discrimination by requiring Plaintiffs to pass certain standardized tests—the National Teacher Core Battery exam (“Core Battery exam”) and the Liberal Arts and Sciences Test (“LAST”), the successor to the Core Battery exam—in order to be licensed to teach in New York City public schools. In 2001, Judge Constance Baker Motley, before whom this case was originally pending, certified the class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).

In 2003, after five month bench trial, Judge Motley entered judgment in favor of the Board and SED, finding that their use of the Core Battery exam and the LAST did not violate Title VII. In 2006, the Second Circuit Court of Appeals vacated the District Court's judgment with respect to the LAST, and remanded the case. The Second Circuit also dismissed all claims against SED, leaving the Board as the sole defendant. While the case was pending before the Court on remand, the Board moved to decertify the class in light of the Supreme Court's decision in Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).

This Opinion (1) first considers the Board's decertification motion, and then addresses the three remaining post-remand issues pertaining to the Board's Title VII liability: (2) whether the Board can be subject to Title VII liability for its use of the LAST; (3) whether the Board violated Title VII by requiring Plaintiffs to pass the LAST in order to receive a teaching license; and (4) whether the Board violated Title VII by reducing Plaintiffs' salaries, benefits, and seniority if they failed to pass the Core Battery exam and the LAST.

For the reasons set forth below, the Court holds that: (1) the Board's decertification motion should be granted—and the class decertified—with respect to all of Plaintiffs' requests for relief except a declaratory judgment as to the Board's liability under Title VII and injunctive relief benefitting the class as whole; (2) the Board can be subject to Title VII liability for its use of the LAST; (3) the Board violated Title VII by requiring Plaintiffs to pass the LAST because it was not properly validated; and (4) the Board did not violate Title VII by reducing Plaintiffs' salaries, benefits, and seniority if they failed to pass the Core Battery exam.

I. BACKGROUND

A. Licensing of New York City Teachers

In order to teach in New York State's public school systems, teachers must be certified by the state. Trial Tr. 1668–69. SED, which supervises the state public school system, is responsible for state certification of teachers. Until 1991, the Board was responsible for setting licensing requirements for teachers in the New York City (“City”) school system. Although the State and the City used different terminology (“certificate” versus “license”), both State certification and City licensing serve the same purpose: to ensure that new teachers met certain requirements, primarily with respect to education and experience, deemed necessary for successful teaching. In order to comply with state law, City licensing standards had to be “substantially equivalent” to state certification standards. Bd. Ex. N. This meant that the Board had to adopt any certification requirements imposed by SED. Trial Tr. 230–33. SED reviewed and approved the licensing requirements set by the Board to ensure equivalence. Bd. Ex. N; Trial Tr. 243–44, 1005, 1725.

City teachers could receive conditional teaching licenses if they passed a licensing exam and met certain minimal requirements.¹ A conditional license lasted for five years and became a permanent license if the teacher met additional licensing requirements within those five years. Trial Tr. 230, 238, 868; Pls. Ex. 1. A teacher with a conditional license could teach full time in a City public school; after a probation period, the teacher received tenure, with a higher salary and more generous benefits and seniority rights. Pls. Ex. 1. If, however, the teacher failed to meet the requirements for a permanent license within five years, her conditional license could be revoked. Pls. Ex. 1. Once the conditional license was revoked, the teacher could teach only as a substitute; substitutes were permitted to meet less stringent licensing requirements. Pls. Ex. 1. Because of teacher shortages, many substitute teachers worked full time; however, substitute teachers had lower salaries, fewer benefits, and no seniority rights. SED Ex. 58(c).

In 1984, SED issued a new regulation that required teachers to pass the Core Battery exam in order to receive state certification. SED Ex. 17. The Core Battery exam was a set of standardized tests that measured teachers' communication skills; general knowledge of social studies, math, science, literature, and the fine arts; and knowledge of pedagogy. Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., No. 96 Civ. 8414, 2003 WL 25764041, at *13 ¶ 69 (S.D.N.Y. Sept. 4, 2003) (Motley, J.) (“ Gulino III ”).

Around the time that SED introduced the Core Battery exam, SED informed the Board that, in order for City licensing standards to be equivalent to state standards, City teachers must also pass the Core Battery exam. Trial Tr. 1006–07, 2349, 3483–84. SED and the Board agreed, however, that the Board could phase in the Core Battery exam requirement gradually: beginning in 1985, City teachers would be required to pass the Core Battery exam in order to receive a permanent license; eventually, the Board would make the Core Battery exam a requirement to obtain a conditional license. Pls. Ex. 30; 31. City teachers who received permanent licenses prior to 1985 were not required to take the exam. SED Ex. 17.

Under this plan, the Board continued to issue conditional licenses to teachers who had not passed the Core Battery exam, and, because of teacher shortages and administrative problems, the Board gave many teachers with conditional licenses more than five years to pass the Core Battery exam. Pls. Exs. 1, 273. Many teachers, therefore, were able to continue teaching in fulltime, non-substitute positions with a conditional license, even though they did not satisfy the permanent licensing requirements (including passing the Core Battery exam) within five years.

In 1991, the New York State legislature passed a new law standardizing licensing requirements across the state, including a mandate that all New York teachers—including City teachers—obtain state certification. SED Ex. 58(c). Pursuant to this law, the Board could not issue a conditional license until the teacher obtained state certification, which required passing the Core Battery exam. Trial Tr. at 925. Teachers who had not passed the Core Battery exam could still teach in full-time, non-substitute positions by obtaining a state temporary license, Trial Tr. 925–26, which could be renewed yearly for up to three years, or longer in certain circumstances. Trial Tr. 889. Even after the 1991 law came into force, teachers who obtained conditional licenses prior to 1991 could continue teaching with those licenses, subject, as before, to the condition that they pass the Core Battery exam within five years. Trial Tr. 242–44.

To ensure compliance with the 1991 law, SED pressured the Board to enforce the Core Battery exam requirement and to revoke the conditional and temporary licenses of teachers who had not passed the exam within five years. Trial Tr. 979–80, 2350. Accordingly, after 1991, the Board began informing delinquent teachers that their conditional or temporary licenses would be revoked if they did not pass the Core Battery exam by a certain date. Many teachers who were unable to pass the Core Battery exam subsequently lost their conditional and temporary licenses, and could work only as substitutes. Due to continuing teacher shortages, however, many of these substitutes remained in the same classrooms and continued to teach full time, but at a lower salary, with a reduced benefit level, and without seniority.

Beginning in 1993, SED phased out the Core Battery exam and phased in the LAST, a new test developed by a professional test development company, National Evaluation Systems (“NES”). Trial Tr. at 2316. It was one of several new requirements to obtain a permanent teaching license, which also included requiring teachers to obtain a master's degree, gain two years of teaching experience, and pass content-specific tests. Trial Tr. At 1710–2315. ² From that point forward, most new teachers were required to pass the LAST in order to obtain state certification or a conditional license, and teachers with a conditional license had to pass either the Core Battery exam or the LAST in order to receive a permanent license. Trial Tr. at 2316. By 1996, SED had completely eliminated the Core Battery exam, and all teachers had to...