by Art Gutman Ph.D., Professor, Florida Institute of Technology
In what is becoming a long-running saga, Judge Kimba M. Wood of the Southern District of New York issued the latest of a series of rulings relating to certification of teachers in New York City [2012 U.S. Dist. LEXIS 172687, decided on December 5, 2012]. These rulings are rich in tradition and somewhat complex. Bear with me.
As a starting point, 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.
In Act I [2001 U.S. Dist. LEXIS 9871], District Court Judge Constance Baker Motley certified the class in accordance with Federal Rules 23(a) (numerosity, commonality, typicality, and adequacy of representation) and 23(b)(2). Originally, the plaintiffs sued for injunctive and declaratory relief, back pay and seniority, and compensatory and punitive damages. The plaintiffs then dropped their claim for damages and, as a result, Judge Motley ruled the remaining monetary claims did not predominate over the claims for injunctive and declaratory relief, a requirement of Rule 23(b)(2). More on that later.
In Act II [2003 U.S. Dist LEXIS 27325], Judge Motley, after listening to (among other things) a battle of well-known experts, favored the SED and the Board, ruling that the Core Battery was job related and consistent with business necessity in accordance with five criteria outlined by the 2nd Circuit in Guardians v. Civil Service (1980), including:
(1) suitable job analysis
(2) reasonable competence in test construction
(3) test content related to job content
(4) test content representative of job content
(5) scoring systems selecting applicants that are better job performers.
Interestingly, Judge Motely found that the LAST did not satisfy the Guardian criteria, but found that it satisfied the “alternative standard” in Watson v. Fort Worth Bank (1988), deeming it "manifestly related to legitimate employment goals."
In Act III [460 F.3d.361, 2006], the 2nd Circuit upheld Judge Motley’s ruling with respect to the Core Exam, but 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 have the class decertified 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.
It is against this background that we now have Act V, involving Judge Wood’s rulings on both content validity of the Last test and class certification. The validity ruling is easier to understand. Stated simply, Judge Wood ruled that the LAST failed each of the five criteria from Guardians, and therefore, is not content valid.
The class certification is a bit more complicated. Part of it is easy. Quoting directly from Dukes, Judge Wood ruled that class certification is justified under Rule 23(b)(2) if there is “an indivisible injunction benefitting all its members at once”, but not when individual class members “would be entitled to a different injunction or declaratory judgment against the defendant.” She also wrote “In order to obtain individualized relief, a putative class must satisfy the requirements of Rule 23(b)(3), which includes greater procedural protections, such as notice and an opportunity to opt out of the litigation.” Thus, the class was decertified as far as Rule 23(b)(2) is concerned.
Now the complex part. Readers familiar with Rule 23(b)(2) for injunctions and Rule 23(b)(3) for monetary claims, may not be as familiar with 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).
Interesting. For sure, there are going to be more acts in this play. There may also be grounds here for a potential Supreme Court ruling someday.
February 14, 2013