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A private right of action exists for disparate impact claims brought by minority students over allegedly substandard upstate New York schools under federal civil rights law, a Southern District judge has ruled. In a case of first impression, Judge Lawrence M. McKenna declined to dismiss an action brought by 33 students who allege that New York State discriminates against upstate schools with a high percentage of minority students. He also certified the suit, Ceaser v. Pataki, 98 Civ. 8532, as a class action. The lawsuit charges that New York State discriminates against as many as 80,000 students in more than 150 “high-minority schools” schools, where at least 80 percent of students are black, Latino, or otherwise non-Caucasian. The students allege that the State is violating Title VI of the Civil Rights Act of 1964 by providing far fewer resources to those schools and by failing to comply with legal mandates in a number of areas. As part of their complaint, the plaintiffs state that the “academic achievement of students in high-minority public schools in New York State but outside of New York City is significantly lower than that of students in low-minority schools in the State.” It attacks the method of administering State regulations that are meant to ensure that all teachers are certified; that students receive remedial instruction and have access to appropriate buildings, grounds, and libraries; and that students have the opportunity to take Regents courses and to earn Regents degrees. Seeking an injunction against these “methods of administration,” the students’ claim of disparate impact is grounded upon a regulation issued by the former Department of Housing, Education and Welfare, the predecessor to the Department of Education. The regulation, 34 C.F.R. Section 100.3(b)(2), forbids methods of administering the provision of services, financial aid, or other benefits that have the effect of discriminating against a person because of their race, color of national origin. McKenna said the 2nd U.S. Circuit Court of Appeals had yet to decide the issue of whether a private right of action exists for disparate impact claims brought under Title VI regulations, which apply to public educational facilities and other entities receiving federal funding. Under a claim of disparate impact, a plaintiff need only show that, statistically, a minority group suffers a harmful effect not shared by non-minorities. No showing of an intent to discriminate is required. But both the 11th and the 3rd Circuits have found that a private right of action does exist, McKenna said, adding that he was persuaded by the reasoning of the 3rd Circuit in P owell v. Ridge, 189 F3d 387. In Powell, the 3rd Circuit found that to survive a motion to dismiss, “all the plaintiff must do is plead that a facially neutral practice’s adverse effects fall disproportionately on a group protected by Title VI.” “A method of administration or discernible administrative policy may involve a policy of inaction as easily as affirmative conduct,” McKenna said. “The complaint adequately alleges that defendants have adopted a policy of non-enforcement of legal mandates evident in five specific areas: certified teachers, remedial instruction, school facilities and grounds, libraries, and Regents courses and diplomas.” “The complaint also adequately alleges that this policy has had a disparate impact on high-minority schools.” The class certified consists of all black, Latino, or otherwise non-Caucasian children attending New York State public schools located outside New York City that the New York State Education Department classifies as “high minority.” The State had argued that the application for class certification should fail because of a lack of commonality, saying there were no common questions of law because plaintiffs “appear not to assert one theory of liability, but at least five, and there are genuine questions as to which of these five theories of liability would properly be applicable to which of the proposed 80,000 class members.” The State also argued that certification would require “fact-specific inquiries concerning” the different status of thousands of plaintiffs in more than 150 high-minority schools at issue. But McKenna disagreed, saying, “As plaintiffs note, the pinpointing of five specific areas of defendants’ alleged policy of non-enforcement, or the possibility that the policy does not affect every high-minority school, ‘does not undermine the commonality of their claim that defendants have a unitary policy of not enforcing and complying with certain educational mandates.’ “ Christopher Dunn, Arthur Eisenberg, and Donald Shaffer of the New York Civil Liberties Union represent the plaintiffs. Assistant Attorney General Clement Colucci is lead counsel for the State.

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