At the conclusion of what federal judge Constance Baker Motley described as
an "epic trial," discrimination claims brought against New York City's
Board of Education and the New York State Education Department by black and Latino teachers and potential teachers were dismissed during the opening week of the school year.
The class action was brought in the United States District Court for the Southern District of New York by Elsa Gulino, Mayling Ralph, Peter Wilds and Nia
Green on behalf of themselves and an unspecified number of individuals estimated
by plaintiff's counsel to be between 3,500 and 5,000. The lawsuit challenged
tests introduced in 1991 as part of new state legislation mandating that anyone
who did not already hold a full New York City license had to obtain state certification.
One aspect of certification entailed passing a two-part test. Plaintiffs had
met all other requirements, including attaining master's degrees, but could not
receive full teaching certification without passing the tests.
The lawsuit charged that the tests did not accurately measure ability or predict
classroom success, and were not necessary for the teaching positions, thereby
rendering the tests and the use of the tests invalid. The claims of discrimination
were that white applicants passed in far greater numbers than blacks and Latinos
due to cultural bias in the tests and inconsistent grading. The tests, they argued,
had a disparate or adverse impact on black and Latino candidates for permanent
certification to teach in New York City public schools. Without certification
even people who were already teaching, some for as many as ten years, became
ineligible for full licenses; others lost their temporary licenses. Some never
made it into the school system. Those who did retain permanent substitute positions
nevertheless experienced reduction of employment and promotion opportunities,
and as much as a 30 percent decrease in salary and benefits.
"Disparate impact" in employment discrimination litigation, requires
the plaintiffs to prove that the tests had an adverse effect on a protected class,
the racial and ethnic groups of which they are members, i.e., black and Latino
teachers and teaching candidates. They had to establish that "a particular
employment practice (in this case the tests) caused a disparate impact on the
basis of race, color, religion, sex or national origin."
In fact, plaintiffs did establish this claim.
In her 34-page Findings of Fact and Conclusions of Law, Judge Motley -- who half
a century ago, along with Thurgood Marshall, was counsel to the plaintiffs in
Brown v Topeka Kansas Board of Education, a landmark in civil rights and education
law -- found that disparity was demonstrated in this case, known as Gulino, for
the first named plaintiff. The pass rates by whites was greater in a statistically
significant way than that for test takers in other groups. Expert testimony showed
that if blacks and Latinos had achieved pass rates equivalent to whites, their
representation in the teacher workforce would have been greatly increased.
"The tests," said Barbara Olshansky, of the Center for Constitutional
Rights, who represents the plaintiffs, "had a staggering effect on screening
out teachers of color."
But the case did not end with the finding of disparate impact on members of a
In the second part of her analysis, Judge Motley concluded that the defendant
employers overcame the disparate impact because the tests have a "manifest
relationship" to the employment and legitimate connection to the goals of
the teaching function.
The test contained multiple choice questions in mathematics, science and the
liberal arts, and a short essay, which counted for 20 percent of the total grade.
Some of the plaintiffs had passed the essay portion but not the short answers,
others had lost ground on the essay. Judge Motley's decision focused on the essay.
"Defendants' decision to exclude those who are not in command of written
English is in keeping with the educational goal of teaching students to write
and speak with fluency. It should go without saying that New York City teachers
should be able to communicate in both spoken and written English. Teachers who
are unable to write a coherent essay without a host of spelling and grammar errors
they pass on that deficiency to their students, both in commenting on and grading
the work they turn in."
The decision did not address those who have not passed the test but continue
to be employed as full-time permanent teachers and what it means to the student
body that they continue to teach. Thomas Ryan, executive director of the city’s
Division of Human Resources, testified that when he decided to permit these teachers
to continue teaching full-time after their licenses had been revoked, he "did
not believe that the teachers were harming the students in any way."
Once the court found that the tests were sufficiently job related to overcome
the disparate impact, the burden shifted back to the plaintiffs, to present another
practical, cost effective alternative to the tests. The plaintiffs, who had argued
that the tests were invalid and unreliable, put forward a "portfolio" concept
in which teachers would work with mentors and be judged on their actual performance
and what it would predict about their future performance. While the court was
impressed with the possibilities of that approach, suggesting that perhaps it
could be used in conjunction with testing, she rejected it as an alternative.
Marie DeCanio, a Board of Education witness, testified at trial, "A test
does not a teacher make. Performance is obviously the best test of whether a
teacher is qualified to teach ... . On the job performance is the best way." The
judge, however, disagreed.
While Judge Motley found that defendants had made an insufficient showing of
the validity of the tests, she held that the test in use since 1993 "was
properly validated according to professional guidelines and standards, and that
they had shown that according to education professionals, of all the skills required
of teachers, the ability to write a coherent essay was most important."
Plaintiffs are planning an appeal. The spokeswoman for Corporation Counsel which
represented the city, refused to comment, saying she was "too busy to discuss
this case." The state was represented by the Office of the Attorney General.
Emily Jane Goodman is a New York State Supreme Court Justice
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