GULINO V. BOARD OF EDUCATION NYC: ACT VI

This case started in 1996 when Black and Hispanic teachers brought action in 1996 against both the State Education Department (SED) and the New York City Board of Education (the Board) claiming adverse impact based on two licensing tests, the National Teach Core Battery Exam (Core Exam), and its successor, the Liberal Arts and Sciences Test (LAST). Let’s examine the pieces. An Alert posted on 2/13/13 detailed five prior rulings (or acts) in this case, and now comes Act VI, a ruling delivered on 8/29/13 by Judge Kimba M. Wood of the Southern District of New York [2013 U.S. Dist. LEXIS 123948]. The prior five acts are briefly summarized below followed by the most recent ruling.

In Act I [2001 U.S. Dist. LEXIS 9871] the class was certified under Federal Rules 23(a) (numerosity, commonality, typicality, and adequacy of representation) and 23(b)(2). The plaintiffs dropped their claim for damages and the ruling was that the remaining monetary claims did not predominate over the claims for injunctive and declaratory relief, a requirement of Rule 23(b)(2).

In Act II [2003 U.S. Dist LEXIS 27325], the ruling favored the SED and the Board, in that the Core Battery was deemed job related and consistent with business necessity in accordance with criteria outlined by the 2nd Circuit in Guardians v. Civil Service (1980). However, even though the LAST did not satisfy the Guardians criteria, it satisfied a supposed “alternative standard” in Watson v. Fort Worth Bank (1988); that it was "manifestly related to legitimate employment goals." However, in Act III, [460 F.3d.361, 2006], the 2nd Circuit upheld the ruling on the Core Exam and vacated and remanded the ruling on the LAST, rejecting the notion that the Watson case contained an alternative standard.

In Act IV, as the case was pending, the Board moved to decertify in light of the Supreme Court’s ruling in Wal-Mart v. Dukes (2011) that Rule 23(b)(2) cannot be used because the monetary claims predominated over the claims for injunctive and declaratory relief.

Then in Act V [2012 U.S. Dist. LEXIS 172687], Judge Wood ruled that the LAST failed each of the Guardians criteria and therefore, is not content valid, but the class was decertified under Rule 23(b)(2) because it contained member for who failed only the Core Battery (deemed valid) as well as members who failed the LAST (deemed invalid). However, the court held out hope for the LAST member based on the rarely used Rule 23(c)(4)(A), which provides that “When appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Judge Wood ruled that Rule 23(c)(4)(A) was not mentioned in Dukes, and that it is well established in 2nd Circuit case law to “bifurcate proceedings by first certifying an ‘injunctive’ class under (c)(4) to determine liability, and then certifying a "remedial" class under (b)(3) to determine damages. Therefore, she ruled that the plaintiffs may seek recertify under Rule 23(c)(4)(A). That they did, and that brings us to Act VI.

In a nutshell, Judge Wood ruled the new class (LAST members only) satisfied Rule 23(a) (totally expected), and that it also passed the criteria for Rule 23(b)(3) by satisfying the requirements of predominance (common questions predominate over individual issues) and superiority (class action superior to individual actions). Thus, the class may pursue damages it could not have pursued under Rule 23(b)(2), and it includes:

All African-American and Latino individuals employed as New York City public school teachers by Defendant, on or after June 29, 1995, who failed to achieve a qualifying score on LAST-1 before the end of the 2001/2002 school year, and as a result either lost or were denied a permanent teaching appointment.

There you have it --- expect Act VII.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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