Gulino v. Board of Education

201 F.R.D. 326, 2001 U.S. Dist. LEXIS 9871, 86 Fair Empl. Prac. Cas. (BNA) 878, 2001 WL 830832
CourtDistrict Court, S.D. New York
DecidedJuly 13, 2001
DocketNo. 96CIV.8414(CBM)
StatusPublished
Cited by11 cases

This text of 201 F.R.D. 326 (Gulino v. Board of Education) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulino v. Board of Education, 201 F.R.D. 326, 2001 U.S. Dist. LEXIS 9871, 86 Fair Empl. Prac. Cas. (BNA) 878, 2001 WL 830832 (S.D.N.Y. 2001).

Opinion

OPINION

1VEOTLEY, District Judge.

Plaintiffs, Elsa Gulino, Mayling Ralph, and Peter Wilds,1 on behalf of themselves and all other persons similarly situated, filed this racial employment discrimination action against the New York State Education Department (“SED”) and the Board of Education of the City School District of the City of New York (“BOE”) pursuant to Title VII, the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) on November 8, 1996. Plaintiffs allege that the two tests used by the BOE and SED to determine qualification for teacher licenses have a disparate impact on African-American and Latino teachers in the New York City public schools.

Plaintiffs filed a motion for class certification on February 26, 2001. On May 10, 2001, after hearing the parties’ oral arguments, this court granted plaintiffs’ motion for the reasons discussed below.

I. FACTUAL ALLEGATIONS OF UNDERLYING SUIT

Plaintiffs are teachers in the New York City public school system who have either lost their teaching licenses or have been prevented from obtaining a teaching license because of the requirement that they achieve a satisfactory score on one of the two challenged tests: the National Teacher Core Battery (“NTE”) or the Liberal Arts and Sciences Test of the New York State Teacher Certification Examination (“LAST”), the successor to the NTE.2 Plaintiffs allege that the use of the tests as a requirement for obtaining permanent teaching certificates has an impermissible disparate impact on African-American and Latino teachers in New York City public schools.

From 1986 through 1991, the named plaintiffs and class members were awarded New York City teaching licenses in their individual fields after they completed all of the requirements established by the New York City Board of Examiners (“Board of Examiners” or “BOE”), the division of the BOE that oversaw professional licensing. The Board of Examiners requirements in part included:

1) passing initial written, oral, and performance tests administered by the Board of Examiners to those applying for first-time teaching positions;
2) fulfilling field work requirements (full-time teaching experience in the classroom for at least two years);
3) passing a Board of Examiners’ test in the applicant’s area of teaching specialty;
4) completing a Masters degree in education;
5) completing additional course work in human relations, child abuse, and other required subjects; and
6) successfully completing a three-year probationary period in an appointed position during which the applicant was observed and evaluated.

In 1991, by virtue of state legislation, the Board of Examiners was abolished and all persons seeking to obtain a City license and a permanent full-time teaching appointment were required to pass the NTE given by defendant SED. The NTE was a test given mainly to college students planning to enter the teaching profession and it essentially measured the test-taker’s knowledge of [329]*329American college liberal arts courses, such as English, American history, math, science, art, and music.

In 1993, SED began phasing out its use of the NTE and replaced it with another similar test, the LAST. Defendants stopped using the NTE in September 1996. Neither the NTE or LAST was designed to measure teaching proficiency, test pedagogical theory, or assess a teacher’s knowledge of specific subject areas. They were intended to be used to assess young teaching program applicants for whom no other indicia of means of assessment were available.

Plaintiffs allege that the NTE and LAST have had a severe and disparate impact on minorities. The most successful test-takers are young persons currently in college; persons with masters and Ph.D. degrees fail the NTE and LAST at substantially higher rates than those with less education, regardless of race. This is because these tests measure only what is learned in general college courses. Plaintiffs maintain that Educational Testing Service (“ETS”), the company that developed the NTE, only validated the test to measure preparation of applicants for initial teaching positions or licenses, not for decisions regarding retention or termination. Plaintiffs intend to prove that use of the NTE and LAST to make retention and termination decisions violates relevant professional standards and Title VII decisional authority.

Plaintiffs allege that white test-takers passed the NTE at an average rate of 83.7% while African American and Latino test-takers passed at rates of 40.3-43.9%. Plaintiffs also allege that white test-takers passed the LAST at an average rate of 93% while African American and Latino test-takers passed at rates of 50-56.4%. As for New York City public school teachers, 78% of white teachers who took the NTE passed compared to 42% of African-Americans and 34.9% of Latinos. With respect to the LAST, 79.1% of white teachers who took the exam passed compared to 37.5% of African-Americans and 28.3% of Latinos.

When defendants began enforcing the SED test requirement in late 1994, thousands of experienced teachers credentialed by the City in the 1980s and early 1990s failed the test. However, rather than terminating these teachers, the BOE, with the knowledge and approval or the SED, allowed those who failed to attain qualifying scores on the NTE or the LAST to continue to teach in the City public school system. Most of those in the plaintiff class were retained in the same teaching positions with the same course loads. However, defendants revoked plaintiffs’ and class members’ City licenses, demoted them to substitute status, reduced their salaries by as much as 30-40%, froze their pensions, and revoked their seniority and retention rights. Even when these teachers subsequently passed one of the two tests, defendants refused to place them in the position they had acquired prior to 1995, instead of treating them as newly licensed teachers. Those who have passed the tests have not had their pre-1995 salaries or their pension or seniority credits restored.

A. Individual Named Plaintiffs

1. Elsa Gulino

Ms. Gulino is a Latina woman who was employed in the New York City public school system from 1983 through 2000. She served as a regular full-time substitute teacher from 1983 until her permanent appointment as a licensed teacher of Bilingual Special Education in 1988. Ms. Gulino has a Master of Science degree in education.

Ms. Gulino was appointed as a bilingual special education teacher at Public School 159 in the Bronx in October 1988. On October 25, 1991, she was notified by the BOE that she had completed her three-year probationary period.

In late December 1994, BOE notified Ms. Gulino that she was required to pass either the NTE or LAST by June 30, 1995 to maintain her license. Ms. Gulino failed both the NTE and the LAST. Ms. Gulino’s license was terminated and her pay was reduced to the salary level of a substitute teacher. Her salary was cut by more than 30%, her pension was frozen, and her seniority and retention rights were revoked.

[330]*330By June 1993, Ms.

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201 F.R.D. 326, 2001 U.S. Dist. LEXIS 9871, 86 Fair Empl. Prac. Cas. (BNA) 878, 2001 WL 830832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulino-v-board-of-education-nysd-2001.