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Gulino v. The Bd. of Educ. of the City Sch. Dist. of The City of New York

United States District Court, S.D. New York

June 5, 2015

GULINO, ET AL., Plaintiffs,
v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Defendant

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For Elsa Gulino, Mayling Ralph, Peter Wilds, Plaintiffs: Barbara J. Olshansky, LEAD ATTORNEY, Stanford Law School Center for Internet & Society, Stanford, CA USA; Joshua Samuel Sohn, LEAD ATTORNEY, Mishcon de Reya New York, LLP, New York, N.Y. USA; Anthony David Gill, DLA Piper U.S. LLP (NJ), Florham Park, N.J. USA.

For New York State Board of Regents, Richard Mills, New York State Commissioner of Education, Movants: Bruce Burton McHale, Office of New York State Attorney General, New York, N.Y. USA.

For New York State Education Department, Movant: Antoinette W Blanchette, LEAD ATTORNEY, New York State Office Of The Attorney General, New York, N.Y. USA; Bruce Burton McHale, Office of New York State Attorney General, New York, N.Y. USA.

For Board of Education of The New York City, School District of The City of New York, Defendant, Cross Claimant: Bryan David Glass, LEAD ATTORNEY, Glass Krakower, LLP, Valhalla, N.Y. USA; William Solomon Jacob Fraenkel, LEAD ATTORNEY, NYC Law Department, Office of the Corporation Counsel (NYC), New York, N.Y. USA; Benjamin Eldridge Stockman, Corporation Counsel Office City of New York, New York, N.Y. USA; Benjamin Welikson, The New York City Law Department, New York, N.Y. USA; Eamonn F. Foley, New York City Transit Authority, Brooklyn, N.Y. USA; Grace Diane Kim, John Stephen Schowengerdt, New York City Law Department, New York, N.Y. USA.

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OPINION & ORDER

KIMBA M. WOOD, United States District Judge.

From 1993 to 2012, New York City's Board of Education (the " BOE" ) required all applicants for public school teaching positions to pass a qualifying examination called the Liberal Arts and Sciences Test, often referred to as the " LAST." There were two incarnations of the exam: the LAST-1, administered from 1993-2004, and the LAST-2, a significantly revised version administered from 2004-2012. These tests were not intended to evaluate an applicant's mastery of the particular subject areas she might teach, or an applicant's capacity to respond to pedagogical challenges that might arise in the classroom--the BOE evaluated those abilities with separate qualifying examinations. Rather, as their full names suggest, the LAST-1 and LAST-2 were designed solely to test an applicant's understanding of the liberal arts and sciences.

Judge Motley of this court previously held that the BOE unfairly discriminated against African-American and Latino applicants, in violation of Title VII of the Civil Rights Act, by requiring them to pass the LAST-1.[1] Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 907 F.Supp.2d 492, 498 (S.D.N.Y. 2012) (Wood, J.) (" Gulino III " ), aff'd sub

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nom. Gulino v. Bd. of Educ. of New York City Sch. Dist. of City of New York, 555 Fed.Appx. 37 (2d Cir. 2014). Under Title VII, a plaintiff may make a prima facie showing of discrimination by demonstrating that a qualifying examination has a disparate impact on minority applicants. Plaintiffs made such a prima facie showing at trial in 2003 (before Judge Motley) by proving that African-American and Latino test takers passed the LAST-1 at significantly lower rates than other groups. Title VII permits a defendant, in turn, to defend against a prima facie showing of discrimination by proving that a qualifying examination was properly validated as job related--in other words, that the exam's designers used adequate procedures to ensure that it would test only the knowledge, skills, and abilities necessary for competent job performance. The BOE failed to defend the LAST-1 in this way at trial. Although some familiarity with the liberal arts and sciences is no doubt valuable for many teachers, the BOE did not demonstrate that the LAST-1's designers had employed procedures to identify the specific areas of the liberal arts and sciences that any competent teacher, regardless of grade level or subject area, would need to understand. Accordingly, in 2012, the Court held that Plaintiffs had prevailed under Title VII.

Exercising its broad remedial authority, the Court then appointed a neutral expert, Dr. James Outtz, who was acceptable to the parties, to evaluate whether the LAST-2 also had a disparate impact on African-American or Latino test takers -- and if so, whether the exam had been properly validated as job related. The Court permitted the BOE to submit a rebuttal expert report from Dr. Chad Buckendahl, and held a hearing during which both parties and the Court questioned the experts. Dr. Outtz concluded that the LAST-2 had a disparate impact on African-American and Latino test takers and had not been properly validated as job related. Dr. Buckendahl and the BOE did not dispute the exam's disparate impact, but they argued that the LAST-2 had been properly validated.

After reviewing all of the evidence offered by Dr. Outtz and the parties, including expert opinions and the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures, the Court holds that the BOE unfairly discriminated against African-American and Latino applicants by requiring them to pass the LAST-2. Like its predecessor, the LAST-2 had a disparate impact on African-American and Latino test takers. And like its predecessor, the LAST-2 was not properly validated as job related, because the exam's designers did not employ procedures to identify the specific areas and depth of knowledge of the liberal arts and sciences that any competent teacher would need to understand. The BOE's use of the LAST-2 was thus unfairly discriminatory under Title VII.

In reaching that conclusion, the Court does not suggest that it would be unhelpful or unwise for the BOE to test applicants' knowledge of the liberal arts and sciences with a properly validated exam. It may be the case that all teachers, whether they instruct kindergarteners or high school seniors, must understand certain areas of the liberal arts and sciences (separate and apart from the particular subject matter they teach) in order to be competent in the classroom. But the Court is not permitted to simply intuit that fact; test designers must establish it through adequate validation procedures. In that regard, both the LAST-1 and the LAST-2 were deficient, which renders them indefensible under Title VII.

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I. NEW YORK STATE'S TEACHER LICENSURE EXAMINATIONS[2]

The New York State Education Department (" the SED" ) requires the BOE to hire only New York City public school teachers who have been certified by the State. Gulino III, 907 F.Supp.2d at 498. If the BOE were to hire teachers who have not been certified by the State, New York City could lose as much as $7.5 billion a year in state funding. See (Oct. 23, 2014 Jt. Ltr. [ECF No. 515] at 2-3).

Beginning in 1993, the SED required teachers seeking certification to pass the LAST-1, a new test developed at the State's request by National Evaluation Systems (" NES" ),[3] a professional test development company. Id. at 499-500. The LAST-1 " include[d] questions related to scientific, mathematical, and technological processes; historical and social scientific awareness; artistic expression and the humanities; communication and research skills; and written analysis and expression." (Foley Decl., Ex. I (" Clayton Decl." ) [ECF No. 377-3] at ¶ 4).

In 2004, the SED phased out the LAST-1 and replaced it with the LAST-2. See (Dec. 8, 2009 Order [ECF No. 243] at 3). The LAST-2 was first used for teacher certification on February 14, 2004. ( Id. ) Prior to using the LAST-2, NES and SED documented the process by which they sought to validate the test as job related. See generally (Clayton Decl.).

At the time the LAST-2 was implemented, prospective teachers were required to pass two additional written exams: the Assessment of Teaching Skills -- Written (" ATS-W" ), and the Content Specialty Test (" CST" ) applicable to the teacher's subject area. See (BOE Ltr., Attachment A, [ECF No. 504-1]) (listing the different certification requirements mandated by the SED over time). According to Pearson, the ATS-W was " designed to assess pedagogical (teaching) skills that New York educators determined to be important to the adequate performance of the job of . . . public school teachers." (Pearson Ltr. [ECF No. 500] at 2). The CST was designed to " assess the specific knowledge and skills needed to teach specific subject matter in New York public schools, such as mathematics, physics, chemistry, American Sign Language, Cantonese, Japanese, etc." ( Id. ) A prospective teacher was required to pass the ATS-W, any applicable CST, and the LAST-2 in order to receive a teaching license. Applicants were not permitted to compensate for a poor score on one exam with a high score on another. See (Feb. 3, 2015 Ltr., Attach. I (" Outtz Report" ) [ECF No. 549-1] at 37).

II. PROCEDURAL HISTORY

The nineteen-year history of this case is long and winding, and has been set out in the Court's prior opinions, familiarity with which is assumed.[4] What follows is a condensed

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recounting of that history, as it relates to the current issues at bar.

A. The LAST-1

Plaintiffs, who represent a class of African-American and Latino applicants for teaching positions in the New York City public school system, originally alleged that the BOE had violated Title VII by requiring applicants to pass the LAST-1. Plaintiffs claimed that the exam had a disparate impact on African-American and Latino test takers, which was unfairly discriminatory because the exam was not job related.[5]

The case was initially assigned to the Honorable Constance Baker Motley in 1996. In 2003, following " an epic bench trial that lasted more than eight weeks and filled over 3,600 pages of trial transcript," Gulino I, 2003 WL 25764041, at *1, Judge Motley ruled that the BOE had not violated Title VII by adopting the SED's requirement that teachers pass the LAST-1[6] in order to receive a permanent license.[7] Id. at *30-31 ¶ ¶ 161-64. Although Judge Motley held that Plaintiffs had established a prima facie case of disparate impact, [WL] at *30 ¶ 160, she ultimately found that the LAST-1 was not unfairly discriminatory because it qualified as job related. Id. at *30-31 ¶ ¶ 161-63.

On appeal, the Second Circuit affirmed in part and reversed in part. Relevant to the instant proceedings, the panel held that Judge Motley had erred by not assessing the LAST-1's job-relatedness under the standard established in Guardians Association of New York City Police Department, Inc. v. Civil Service Commission of the City of New York (" Guardians " ), 630 F.2d 79 (2d Cir. 1980), and remanded so that the district court could apply that standard. Gulino II, 460 F.3d at 385, 388.

On remand, this Court held that the LAST-1 was not job related because it had not been properly validated by the State and NES. Accordingly, the Court concluded the BOE had violated Title VII by requiring prospective teachers to pass the test. Gulino III, 907 F.Supp.2d at 516-23.

B. The LAST-2

By the time the Court decided Plaintiffs' challenge to the LAST-1, the SED had retired the exam in favor of the LAST-2. Exercising its remedial authority to require that a " subsequent exam" comply with Title VII, Guardians, 630 F.2d at 109, the Court then sought to ensure that the LAST-2 was not unfairly discriminatory. The Court appointed Dr. Outtz to serve as a neutral expert and assess whether the LAST-2 had a disparate impact on African-American or Latino test takers--and if so, whether the exam qualified as job related. See (Apr. 29, 2014 Hearing Tr.

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[ECF No. 428] at 55); (Oct. 29, 2013 Hearing Tr. [ECF No. 403] at 4-8).

On February 3, 2015, Dr. Outtz concluded that the LAST-2 had a disparate impact on African-American and Latino test takers and did not qualify as job related, because it had not been properly validated. See generally (Outtz Report). In response, the BOE submitted the report of Dr. Buckendahl, which did not address the issue of disparate impact but argued that the LAST-2 had been properly validated. See generally (Buckendahl Response [ECF No. 592]). The SED also submitted a response, which asserted that Dr. Outtz's report was flawed and the LAST-2 had been properly validated.[8] See generally (SED Response [ECF No. 589]). The Court held a hearing on March 20, 2015, where both the Court and the parties questioned Dr. Outtz and Dr. Buckendahl about their opinions concerning the validity of the LAST-2.

III. LEGAL STANDARD

A. Title VII's Burden Shifting Framework

Under Title VII, a plaintiff can make out a prima facie case of discrimination with respect to an employment exam by showing that the exam has a disparate impact on minority candidates. See N.A.A.C.P., Inc. v. Town of E. Haven, 70 F.3d 219, 225 (2d Cir. 1995).

The defendant can rebut that prima facie showing by demonstrating that the exam is job related. Id. To do so, the defendant must prove that the exam has been validated properly. Validation requires showing, " by professionally acceptable methods, [that the exam is] 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" Gulino II, 460 F.3d at 383 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)).

In Guardians, the Second Circuit devised a five-part test for determining whether an employment exam, such as the LAST-2, has been properly validated and is thus job related for the purposes of Title VII:

(1) " the test-makers must have conducted a suitable job analysis" ;
(2) the test-makers " must have used reasonable competence in constructing the test" ;
(3) " the content of the test must be related to the content of the job" ;
(4) " the content of the test must be representative of the content of the ...

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