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A lawsuit alleging that New York state and New York City discriminated against black and Latino teachers with the imposition of a new testing regime in the 1990s has been certified as a class action. Federal Judge Constance Baker Motley of the U.S. District Court for the Southern District of New York said on Tuesday that plaintiffs, a class of thousands of people who either lost their teaching licenses or were prevented from obtaining a license because of the tests, could sue both the city’s Board of Education and the New York state Education Department. The class, Motley said, consists of those who, by virtue of “disparate passing rates on the certification tests, have had their licenses terminated, been demoted to the position of per diem substitute teachers, had their salaries cut by more than 30 percent, had their pension credits frozen, and had their seniority and retention rights revoked, despite being retained in their original teaching positions with the same course loads.” The suit, Gulino v. The Board of Education of the City School District of the City of New York, 96 Civ. 8414, challenges two tests, the National Teacher Core Battery Exam (NTE), and its successor, the Liberal Arts and Sciences Test of the New York state Teacher Examination (LAST). The plaintiffs obtained teaching licenses between 1986 and 1991 after completing the requirements set out by the New York City Board of Examiners. When the board was abolished in 1991, all applicants for a city teaching license and a permanent, full-time appointment were required to pass the NTE given by the state Education Department. The department phased out the NTE in 1993 and replaced it with LAST. “Neither the NTE or LAST was designed to measure teaching proficiency, test pedagogical theory, or assess a teacher’s knowledge of specific subject areas,” Judge Motley said. “They were intended to be used to assess young teaching program applicants for whom no other indicia of means of assessment were available.” And Motley said that Educational Testing Service, the company that developed the NTE, designed the tests only 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,” she said. In their complaint, the plaintiffs charged that white test-takers passed the NTE at an average rate of 83.7 percent, while the pass rate of blacks and Latinos was half that rate. On LAST, an average of 93 percent of whites passed, compared with between 50 and 56.4 percent of blacks and Latinos. Motley found that, under the four criteria for class certification set forth in Rule 23(a) of the Federal Rules of Civil Procedure, the plaintiffs could be certified as a class because they were large enough in number, had questions of law and fact in common, had claims that arose out of the same event or course of conduct, and had class representatives who could fairly and adequately protect the interests of the class. Motley then turned to Rule 23(b)(2), which states that certification is warranted where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as whole.” Motley said Rule 23(b)(2) is “appropriate where plaintiffs have been injured by conduct based on policies and practices of the defendants which are applicable to the entire class, and where defendants have engaged in a pattern of discriminatory conduct against the class.” The state and the city had contended that Rule 23(b)(2) certification was inappropriate because individual monetary issues predominated over the plaintiffs’ claims for declaratory and injunctive relief. But this argument was rejected by Motley because “in the present case, plaintiffs have dropped their claims for compensatory and punitive damages.” The state and city had also claimed that the 2nd U.S. Circuit Court of Appeals’ Government Operations Doctrine makes class certification in this case superfluous because it involved an action against government agencies seeking declaratory and injunctive relief — a doctrine articulated in Galvan v. Levine, 490 F.2d 1255 (1973) and its progeny. But Judge Motley said “defendants’ reliance on the Government Operations Doctrine and the Galvan line of cases is misplaced.” “The Galvan rule is narrow and only applies to those specific cases in which plaintiffs suing a governmental agency seek only prospective relief,” she said. NO ASSURANCES Moreover, “the defendants have offered no assurances that they would grant individual relief based upon the ruling of a single action,” she said. “To the contrary, defendants have argued that the class definition is amorphous and overbroad.” Finally, Motley said, “unlike the circumstances of Galvan, the denial of class certification here will adversely affect the plaintiffs’ ability to litigate this case effectively from discovery through enforcement.” Barbara J. Olshansky of the Center for Constitutional Rights is lead counsel for the plaintiffs. Assistant Corporation Counsel Bryan E. Glass represented New York City. Assistant Attorney General Frederic L. Lieberman represented New York state.

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