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December 6, 2012, New York – In a long-standing civil rights lawsuit brought by the Center for Constitutional Rights and the firm of DLA Piper against the New York City Board of Education, a federal court found that a teaching certification exam was discriminatory and violated Title VII of the Civil Rights Act. As a result, the Board of Education will be subject to independent monitoring to ensure the current version of the exam does not continue to discriminate against minority teachers.
Said Center for Constitutional Rights Legal Director Baher Azmy, “After 16 years in the courts, the Board of Ed and the New York State Education Department are finally being held accountable for racially discriminating against qualified teachers of color in our city. At a time when high-stakes testing is a growth industry, the Court’s decision is an important reminder that such tests must remain fair.”

In 1993 and again in 1996, the State Education Department and the Board of Education mandated that all State and City teachers – entering and experienced teachers alike – pass written certification tests. Yet unlike new teachers entering the classroom, the teachers in this case had already earned master’s degrees, passed content specialty exams, completed other required course work, and received nothing but satisfactory evaluations in their many years of employment in the city schools. The men and women represented in this case lost their permanent teaching licenses, seniority, retention rights, and in some cases their tenured teaching positions, and had their salaries drastically reduced. The Board kept them teaching the same course load, with the same responsibilities, but without the same benefits.

The lawsuit, Gulino v. Board of Education, was filed in 1996 by the Center for Constitutional Rights on behalf of Elsa Gulino, a Latina public school teacher, and three of her African American colleagues. They charged that the certification test they were required to take (called the Liberal Arts & Sciences Test, or LAST), had a disparate racial impact and that the City and the State failed to demonstrate the test was actually related to relevant job requirements. After a series of appeals by the parties, a federal judge’s ruled yesterday that the test discriminated in violation of Title VII.

Said Joshua Sohn of DLA Piper, “This decision makes clear that the City’s use of the LAST both to deny permanent positions to teacher applicants and to cut salaries and benefits of in-service teachers was unlawful. The court recognized that the LAST provided no reliable information about the qualifications or abilities of the affected teachers.”

The court also ruled that the teachers would need to file a separate action to enforce any monetary damages resulting from the Board’s past use of a discriminatory exam. There will be a status conference in the case on January 10, 2013 to explore other forms of relief.

For more information, visit the Center for Constitutional Rights Gulino case page.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.
Gulino v. The Board of Education of the City of New York and the New York State Education Department

Federal Court Docket

Synopsis
Gulino v. The Board of Education of the City of New York and the New York State Education Department is a class action lawsuit filed on behalf of public school teachers of color who are challenging the use of discriminatory tests and licensing rules that have deprived them of equal salaries, pensions, benefits, and seniority.

Status
On December 5, 2012, the district court issued a ruling that concluded that the Board of Education’s certification exam was discriminatory and not job related in violation of Title VII, but denied Plaintiffs’ request to proceed as a class under a particular class certification procedure, in obtaining back pay for having been unjustly terminated. The Court ruled that an independent monitor would be necessary to ensure the certification exams were no longer discriminatory. As for back pay, the ruling does not stand in the way of those harmed by the discriminatory exam from seeking individual damages or certifying the class for damages under a different class action procedure.

Description
Gulino v. The Board of Education of the City of New York and the New York State Education Department is a case CCR filed in November 1996 on behalf of a class of public school teachers of color who are challenging the use of discriminatory tests that have had a detrimental effect on their careers.

With CCR's assistance, the teachers first filed complaints with the U.S. Equal Employment Opportunity Commission (EEOC) in June 1996. They were informed in October 1996 that the EEOC had a tremendous backlog of complaints and that they could initiate a federal suit.

Peter Wilds, Mayling Ralph, and Nia Greene, all Black teachers, and Elsa Gulino, a Latina teacher, charged that when the State Education Department and the New York City Board of Education imposed the requirement that they take and pass the National Teachers Examination (NTE), they lost their permanent teaching licenses, seniority, retention rights, and in some cases their tenured teaching positions, and had their salaries reduced drastically. Yet all were retained, on a per diem basis, in the same teaching positions with the same course load.

All of the teachers in the class have masters degrees, have passed content specialty exams, have completed other required course work and have received only satisfactory evaluations in their years of employment in the city schools (as long as 15 years). They charge that the NTE has never been validated for any use other than to assess entry-level teachers and that the exam has a disproportionate impact on teachers of color.

In the last two years, thousands of teachers have been demoted from their jobs as a result of enforcement of the requirement that they pass the NTE. In addition to the NTE, CCR is challenging the Liberal Arts and Sciences Test (LAST), another certification examination that has never been validated for any professional teaching assessment. This test, too, shows a glaring gap in the passage rate between whites and African Americans and Latinos. Estimates of the number of public school teachers who have suffered demotion, termination, and salary and other benefit losses now range from 8,000 to 15,000.

CCR has been working closely with a support group of teachers, the Committee for a Fair Licensing Procedure, which argues that the Board's reliance on the NTE to terminate the regular licenses of experienced teachers constitutes discrimination because the test has a disparate impact on minorities.
Timeline
In November 1996, the complaint was filed in the U.S. Distrcit Court for the Southern District of New York.

In the early spring of 1997, both the Board of Education and the State Education Department filed motions to dismiss the lawsuit. CCR filed its opposition on behalf of the plaintiffs in March 1997, with the papers fully submitted to the United States District Court for the Southern District of New York by April 1997, but no decision was forthcoming.

In 1999, while discovery was ongoing but slow due to the outstanding motions pending before the court, then-CCR Assistant Legal Director Barbara Olshansky worked closely with teachers who were adversely affected by the two agencies' policies to address their concerns about alternative temporary placement, certification in other states, unemployment insurance, and reinstatement upon passage of the examinations. In addition, CCR worked with terminated teachers to develop a lobbying platform for the institution of more effective, accurate, and less discriminatory evaluation systems in the public schools.

On April 19, 2000, the case was reassigned to another judge, the Honorable Constance Baker Motley, who has a long and distinguished record as a civil rights supporter. Judge Motley scheduled the parties to appear at a hearing to discuss all the motions that remained undecided.

On May 31, 2000, the parties argued the motions to dismiss as well as the plaintiffs' oral motion to compel discovery. After a long and somewhat complicated hearing, Judge Motley - in an unusual and unexpected move - issued a ruling from the bench. The judge found for the plaintiffs on all aspects of the case before her. The motions to dismiss the lawsuit filed by the State Education Department and the City Board of Education, each alleging that they were not the true employers of the teachers and were not responsible for a discriminatory test, were denied. The plaintiffs' request for a discovery schedule was granted. Finally, Judge Motley put in place a complete litigation schedule.

In May and June 2000, CCR became aware of a new practice by the State Education Department that once again appears to affect teachers of color adversely. National Evaluation Systems (NES), the company that developed the new teacher certification examination - the Liberal Arts and Sciences Test - recently began implementing a test score voiding procedure. Under this procedure, teachers that pass the test have their scores voided if they have failed the examination in the past. When NES voids the scores, the State Education Department accepts the company's determination and notifies teachers that their scores have been voided. CCR, representing Mirtha Sebelen, one of the Gulino plaintiffs, appealed the State Education Department's determination. After requesting a handwriting sample from Sebelen for analysis, the department reinstated Sebelen's scores and agreed to expedite her certification.

On July 13, 2001, Judge Motley certified the case as a class action, rejecting government arguments that the class representatives' claims were not sufficiently representative of the proposed classes. Judge Motley also rejected the defendants' claims that class actions were inappropriate to challenge government operations, because the government presumably will adhere to rulings in individual cases. The court found no evidence in this case that the governmental defendants would universally apply a positive ruling in individual cases.

Discovery was finally completed in 2002. In the summer of 2002, defendants moved to dismiss the case on summary judgment, claiming that they are entitled to win based upon their legal theories that they were not the responsible parties and that plaintiffs' statistical analysis was defective. In November 2002, the judge agreed with CCR's position and ruled against the motions to dismiss in every important aspect.

Trial was held in the case from December 11, 2002 through May 1, 2003. In May, June, and July the parties filed their proposed findings of fact and conclusions of law with the Court.

In September 2003, the Court ruled for the defendants. Noting that the test had not been properly validated, the Court found for the defendants on the basis of one portion of the test that appeared to relate to the job of public school teacher.

On October 14, 2003 the plaintiffs filed their Notice of Appeal to the Second Circuit Court of Appeals.

Plaintiffs' brief in support of their appeal was filed on February 6, 2004.

On August 18, 2006, the Court of Appeals ruled in favor of the plaintiffs. The three-judge panel held that the lower court had applied the incorrect legal standard in judging the evidence before it. The case has now been remanded back to the lower court, where the evidence is to be assessed under the proper standard. Sadly the Honorable Judge Motley passed away during the appeals process, and the case is now awaiting the assignment of a new judge.

In 2007, the defendants appealed the Court of Appeals decision to the Supreme Court, filing for a writ of certiorari.

December 8, 2009: The US District Court of the Southern District of NY set up a briefing schedule through April 2010 to determine on any outstanding issues, and to determine if an evidentiary hearing will be necessary. A decision is expected after the briefings are submitted.

Attached Files
12 08 2009 Gulino- Order.pdf
12.05.12 Title VII Order and Class Certification Decision.pdf