OPINION & ORDER
Plaintiffs, who represent a class of African-American and Latino teachers in the New York City public school system, brought the above-captioned action in 1996. Plaintiffs allege that the Board of Education of the City School District of the City of New York (“the Board”), currently a Defendant, and former Defendant the New York State Education Department (“SED”) discriminated against Plaintiffs in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Specifically, Plaintiffs claim the Board engaged in discrimination by requiring Plaintiffs to pass certain standardized tests — the National Teacher Core Battery exam (“Core Battery exam”) and the Liberal Arts and Sciences Test (“LAST”), the successor to the Core Battery exam — in order to be licensed to teach in New York City public schools. In 2001, Judge Constance Baker Motley, before whom this case was originally pending, certified the class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).
In 2003, after five month bench trial, Judge Motley entered judgment in favor of the Board and SED, finding that their use of the Core Battery exam and the LAST did not violate Title VII. In 2006, the Second Circuit Court of Appeals vacated the District Court’s judgment with respect to the LAST, and remanded the case. The Second Circuit also dismissed all claims against SED, leaving the Board as the sole defendant. While the case was pending before the Court on remand, the Board moved to decertify the class in light of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
This Opinion (1) first considers the Board’s decertification motion, and then addresses the three remaining post-remand issues pertaining to the Board’s Title VII liability: (2) whether the Board can be subject to Title VII liability for its use of the LAST; (3) whether the Board violated Title VII by requiring Plaintiffs to pass the LAST in order to receive a teaching license; and (4) whether the Board violated Title VII by reducing Plaintiffs’ salaries, benefits, and seniority if they failed to pass the Core Battery exam and the LAST.
For the reasons set forth below, the Court holds that: (1) the Board’s decertification motion should be granted — and the
I. BACKGROUND
A. Licensing of New York City Teachers
In order to teach in New York State’s public school systems, teachers must be certified by the state. Trial Tr. 1668-69. SED, which supervises the state public school system, is responsible for state certification of teachers. Until 1991, the Board was responsible for setting licensing requirements for teachers in the New York City (“City”) school system. Although the State and the City used different terminology (“certificate” versus “license”), both State certification and City licensing serve the same purpose: to ensure that new teachers met certain requirements, primarily with respect to education and experience, deemed necessary for successful teaching. In order to comply with state law, City licensing standards had to be “substantially equivalent” to state certification standards. Bd. Ex. N. This meant that the Board had to adopt any certification requirements imposed by SED. Trial Tr. 230-33. SED reviewed and approved the licensing requirements set by the Board to ensure equivalence. Bd. Ex. N; Trial Tr. 243-44, 1005, 1725.
City teachers could receive conditional teaching licenses if they passed a licensing exam and met certain minimal requirements.
In 1984, SED issued a new regulation that required teachers to pass the Core Battery exam in order to receive state certification. SED Ex. 17. The Core Battery exam was a set of standardized tests
Around the time that SED introduced the Core Battery exam, SED informed the Board that, in order for City licensing standards to be equivalent to state standards, City teachers must also pass the Core Battery exam. Trial Tr. 1006-07, 2349, 3483-84. SED and the Board agreed, however, that the Board could phase in the Core Battery exam requirement gradually: beginning in 1985, City teachers would be required to pass the Core Battery exam in order to receive a permanent license; eventually, the Board would make the Core Battery exam a requirement to obtain a conditional license. Pis. Ex. 30; 31. City teachers who received permanent licenses prior to 1985 were not required to take the exam. SED Ex. 17.
Under this plan, the Board continued to issue conditional licenses to teachers who had not passed the Core Battery exam, and, because of teacher shortages and administrative problems, the Board gave many teachers with conditional licenses more than five years to pass the Core Battery exam. Pis. Exs. 1, 273. Many teachers, therefore, were able to continue teaching in fulltime, non-substitute positions with a conditional license, even though they did not satisfy the permanent licensing requirements (including passing the Core Battery exam) within five years.
In 1991, the New York State legislature passed a new law standardizing licensing requirements across the state, including a mandate that all New York teachers — including City teachers — obtain state certification. SED Ex. 58(c). Pursuant to this law, the Board could not issue a conditional-license until the teacher obtained state certification, which required passing the Core Battery exam. Trial Tr. at 925. Teachers who had not passed the Core Battery exam could still teach in full-time, non-substitute positions by obtaining a state temporary license, Trial Tr. 925-26, which could be renewed yearly for up to three years, or longer in certain circumstances. Trial Tr. 889. Even after the 1991 law came into force, teachers who obtained conditional licenses prior to 1991 could continue teaching with those licenses, subject, as before, to the condition that they pass the Core Battery exam within five years. Trial Tr. 242-44.
To ensure compliance with the 1991 law, SED pressured the Board to enforce the Core Battery exam requirement and to revoke the conditional and temporary licenses of teachers who had not passed the exam within five years. Trial Tr. 979-80, 2350. Accordingly, after 1991, the Board began informing delinquent teachers that their ' conditional or temporary licenses would be revoked if they did not pass the Core Battery exam by a certain date. Many teachers who were unable to pass the Core Battery exam subsequently lost their conditional and temporary licenses, and could work only as substitutes: Due to continuing teacher shortages, however, many of these substitutes remained in the same classrooms and continued to teach full time, but at a lower salary, with a reduced benefit level, and without seniority.
Beginning in 1993, SED phased out the Core Battery exam and phased in the LAST, a new test developed by a professional test development company, National Evaluation Systems (“NES”). Trial Tr. at 2316. It was one of several new requirements to obtain a permanent teaching license, which also included requiring teachers to obtain a master’s degree, gain two
B. Procedural History
Plaintiffs represent a class of African-American and Latino teachers who were teaching in City public schools with temporary or conditional licenses (“experienced teachers”), but were unable to obtain permanent licenses or had their licenses revoked because they could not pass the Core Battery exam or the LAST. Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y.,
1. Initial District Court Proceedings
. This case was originally assigned to the Honorable Constance Baker Motley. In 2002, after extensive discovery, Defendants moved for summary judgment. SED argued that it was not subject to Title VII because it was not Plaintiffs’ employer, and the Board argued that it could not be held liable under Title VII because it was following the mandates of state law when it required teachers to pass the Core Battery exam and the LAST in order to receive a license. Judge Motley denied both of these motions, and held that SED was an employer for the purposes of Title VII. She then held that the Board could be liable under Title VII, regardless of whether it was following state law, because (1) the Board, not SED, had decertified teachers who failed to pass the Core Battery exam and the LAST; and (2) Title VII preempts any state laws in conflict with it. See Gulino v. Bd. of Ed. of City
The case proceeded to “an epic bench trial that lasted more than eight weeks and filled over 3,600 pages of trial transcript.” Gulino III,
Judge Motley held that two alternative standards existed to determine whether an employment exam is job related. Under the first standard, an exam is job related if the exam is properly “validated.” Gulino III,
Applying the Guardians test, Judge Motley held that Defendants had proven that the Core Battery exam was properly validated, and thus was job related. Id. at *30 ¶ 161. However, Judge Motley held that the LAST was not properly validated under the Guardians standard; there was insufficient documentary evidence in the record regarding validation of the LAST; and, because of this “pervasive lack of documentation,” Defendants had not met their burden of proving validation. Id. at *29 ¶ 153. However, applying the alternative Watson standard, Judge Motley held that the LAST was “manifestly related to legitimate employment goals” and thus was job related. Id. at *31 ¶ 163.
2. Second Circuit Proceedings
The parties cross-appealed. Judge Motley’s rulings. Defendants appealed Judge Motley’s decision that they could be subject to Title VII liability. SED renewed its argument that it was not an employer for the purposes of Title VII. Gulino v. N.Y. State Educ. Dep’t,
Plaintiffs appealed Judge Motley’s ruling that the LAST was job related.
The Second Circuit issued its opinion in 2006. First, the Second Circuit dismissed all claims against SED, finding that it was not an “employer” within the meaning of Title VII. Gulino IV,
Finally, the Second Circuit held that Judge Motley had erred in finding that the LAST was job related. The Second Circuit disagreed with Judge Motley’s reading of Watson, and held that the only standard for determining whether an employment exam is job related is whether the test was validated, assessed using the five-part Guardians test. Gulino IV,
3. Current Proceedings
On remand, the case was reassigned to Judge Sydney H. Stein, and then transferred to this Court in February 2009. In December 2009, the Court ordered the parties to brief the two issues remaining on remand: (1) whether the LAST was properly validated, and thus job related; and (2) whether the Board misused the LAST and the Core Battery exam to make decisions regarding the conditions of Plaintiffs’ employment. See Order dated Dec. 8, 2009 (Dkt. 241). Along with their briefs, the parties submitted all relevant trial evidence for the Court’s review. (Dkt. 247; Dkt. 276; Dkt. 253). SED, although no longer a party to the case, submitted an amicus brief arguing that the LAST was properly validated. Remand Mem. by Amicus Curiae N.Y. State Educ. Dep’t (Dkt. 251) (“SED Remand Mem.”); see also Order dated Sept. 17, 2009,
In these briefs, the Board and SED argue that (1) the LAST is not subject to challenge under Title VII because it is a licensing test, not an employment test; and (2) the Board was mandated by state law to use the LAST, and following state law is a “business necessity” that exempts the Board from Title VII liability. The Court notes that it did not ask the Board and SED to brief these issues on remand. However, because the Court understands the importance of these issues, it addresses them in this Opinion.
In July 2011, while the issues on remand were still pending, the Board moved to decertify the class based on the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, - U.S. -,
For the reasons set forth' below, the Court finds that: (1) the Board’s decertification motion should be granted — and the class decertified — with respect to all of Plaintiffs’ requests for relief except a declaratory judgment as to the Board’s liability under Title VII and injunctive relief benefiting the class as whole; (2) the Second Circuit has established that the LAST may be challenged under Title VII and that the Board is subject to Title VII liability; (3) the Board violated Title VII because the LAST was not properly validated; and (4) the Board did not misuse the Core Battery exam to make decisions regarding the conditions of Plaintiffs’ employment. Based on these findings, the Court holds that the Board violated Title VII by requiring Plaintiffs to pass the LAST in order to receive a permanent license.
II. CLASS CERTIFICATION ISSUE
Before considering the merits of Plaintiffs’ Title VII claims, the Court must first address the Board’s motion to decertify Plaintiffs’ class in light of Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
A. Class Certification Order
In 2001, pursuant to Rule 23, Plaintiffs sought to certify the class, defined as “All African-American and Latino individuals employed as New York City public school teachers by Defendants, on or after June 29, 1995, who failed to achieve a qualifying score on either the [Core Battery exam] or the LAST, and as a result either lost or were denied a permanent teaching appointment.” Gulino I,
Judge Motley held that the four requirements of Rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — were satisfied because, respectively: (1) the approximately 2,000-member class was numerous enough to render joinder impractical; (2) the class members had in common the legal question “at the heart of this suit” — that is,
Judge Motley then determined that the class should be certified under Rule 23(b)(2), which is satisfied where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Judge Motley held that Rule 23(b)(2) was invoked appropriately because Plaintiffs sought to enjoin Defendants from using the LAST to engage in an alleged pattern of discriminatory conduct that caused injury to the entire class. Gulino I, 201 F.R.D. at 333. Judge Motley further noted that “[w]here injunctive relief and damages are sought under Rule 23(b)(2), the injunctive relief must be the predominant issue,” id., and found that, because Plaintiffs had dropped their claims for compensatory and punitive damages, their “remaining claims for monetary relief [in the form of backpay] do not predominate over [their] claims for injunctive and declaratory relief.” Id. at 334.
The Board, joined by SED as amicus curiae, now moves to decertify the class based on Wal-Mart, arguing that the Supreme Court’s holding that individualized claims may not be certified under Rule 23(b)(2) precludes Plaintiffs from maintaining their class certification under that provision. Def. Letter dated July 8, 2011, at 2 (Dkt. 306).
B. Legal Standard
Pursuant to Rule 23(c)(1)(C), “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Fed.R.Civ.P. 23(c)(1)(C); see also Boucher v. Syracuse Univ.,
Decertification is an “extreme step,” particularly at a late stage in the litigation, “where a potentially proper class exists and can easily be created.” Woe v. Cuomo,
C. Analysis
Defendants contend that the Wal-Mart decision requires decertifying the Plaintiff
1. Class Certification Under Rules 23(b)(2) and 23(c)(1)
Rule 23(b)(2) authorizes class certification when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). The history of the Rule indicates that it was designed to address “civil rights cases against parties charged with unlawful, class-based discrimination,” where “a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart,
In Wal-Mart, the Supreme Court held that claims for non-incidental monetary relief, such as backpay, are not appropriate for certification under Rule 23(b)(2).
In so holding, the Supreme Court overruled the Second Circuit’s test for certification under Rule 23(b)(2), which had required only that classwide injunctive or declaratory relief predominate over individual relief. See Wal-Mart,
The Wal-Mart Court did not, however, address certification under Rule 23(c)(4)(A), which provides that “an action may be brought or maintained as a class action with respect to particular issues.” Fed.R.Civ.P. 23(c)(4)(A). In the Second Circuit, district courts are directed to “take full advantage of this provision to certify separate issues,” Robinson,
Further, using issue certification under (c)(4) to bifurcate class certification into liability and remedial phases, is “fully consistent with Wal-Mart [ ].” Vulcan III,
2. Application to Plaintiff’s Claims
Plaintiffs seek three types of relief: declaratory, monetary, and injunctive. Pls.’s Letter, dated Oct. 14, 2011 (Dkt. 320) (“Pls.’s Letter”). The Court will address each in turn.
a. Declaratory Relief
Plaintiffs seek declaratory relief as to Defendant’s liability — specifically, a finding that the Board violated Title VII by requiring teachers to pass the LAST in order to obtain teaching licenses, and a finding that the Board misused scores from the Core Battery exam and the LAST to rescind teaching licenses. Pls.’s Letter at 4. Questions of liability for acts that affected a group are inherently class-wide, and are commonly certified under Rules 23(b)(2) and (c)(4) for resolution at the liability phase of a trial. See Advisory Committee Note to Rule 23(c)(4) (“[T]he action may retain its ‘class’ character only through the adjudication of liability to the class; the members of the class may thereafter be required to come in individually and prove the amounts of their respective claims.”); see, e.g., Robinson,
The Court thus denies Defendant’s motion for decertification as to Plaintiffs’ request for declaratory relief.
b. Monetary Damages
Second, Plaintiffs request monetary relief in the form of backpay, on both a classwide and an individual basis. Pls.’s Letter at 7. After Wal-Mart, this type of relief unquestionably may be certified only under Rule 23(b)(3), and is inappropriate for certification under (b)(2). Wal-Mart,
However, Plaintiffs have proposed bifurcating the proceeding into two phases: a liability phase certified under Rule 23(b)(2) and (c)(4), and a remedial phase in which Plaintiffs will seek class certification under Rule 23(b)(3). Pls.’s Letter at 7. The Second Circuit has encouraged such bifurcation to promote judicial flexibility in managing complex class actions. E.g. Robinson,
The reasons for bifurcating liability from remedial issues apply with no less force now than they did prior to Wal-Mart, particularly since individual issues will arise “only if the class established] the employer’s liability.” Vulcan III,
c. Injunctive Relief
Finally, Plaintiffs seek three types of injunctive relief: (1) an injunction providing teaching certificates to class members who wish to be considered for permanent teaching positions in New York City public schools; (2) an injunction affording seniority rights and other non-monetary benefits to class members still teaching in New York, that they would have received had they not failed the allegedly discriminatory examination; and (3) the appointment of a monitor to ensure that Defendant’s crnrent testing and licensing procedures do not violate Title VII. Pls.’s Letter at 5-6.
The Supreme Court’s holding in WalMart requires decertification of the class as to the first and second injunctive remedies requested. Certification pursuant to Rule 23(b)(2) is not appropriate “when each member of the class would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart,
Although Plaintiffs characterize these requested injunctions as classwide, the injunctions they seek — including the provision of teaching certificates and seniority rights — are precisely the type of individualized relief the Supreme Court found to be outside the ambit of class certification under (b)(2).
However, the Plaintiffs’ third request for relief — asking for a monitor to ensure that the current version of the LAST excises the discriminatory portions of the old version — is “an indivisible injunction benefiting all [the class] members at once.” Wal-Mart,
The Court disagrees. First, the Board’s argument that it cannot be liable under Title VII because it played no role in developing the LAST, and just accepted the version of the test required by SED, has already been rejected by the Second Circuit. Gulino IV,
Second, Title VII provides the Court with “broad equitable powers” in order to provide victims of employment with “complete relief.” Loeffler v. Frank,
Finally, even if the Board is correct that the current version of the LAST is not discriminatory, voluntary cessation of illegal conduct moots an equitable claim only if the defendant can show that “(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Seidemann v. Bowen,
In short, the arguments the Board now offers to avoid the appointment of a monitor are identical to those the Second Circuit rejected in Gulino VI, and the Court rejects them. _ The Plaintiff class survives as to its request for a monitor to assess whether the current version of the LAST incorporates any of the invalid provisions of the version of the LAST used from 1996 to 2000 (the “Old LAST”). Although the Court previously held that evidence related to newer versions of the LAST is not admissible to prove Defendant’s liability with respect to the Old LAST, see December 8, 2009 Order at 3-4 (Dkt. 243), the Court finds that evidence relating to the current version of the LAST and its development are admissible insofar as they relate to crafting an appropriate remedy.
D. Conclusión
For the foregoing reasons, the Defendant’s motion to decertify the. class is granted in part and denied in part. The class action will proceed as to Plaintiffs’ request for declaratory relief, and as to Plaintiffs’ request for a monitor to ensure the Board’s current testing and licensing procedures do not. violate Title VII. The remainder of this Opinion addresses the Board’s liability under- Title VII; Plaintiffs are directed to address specifics of their requested injunctive relief in a submission to the Court concerning remedies. See infra Part VII.
III. OTHER PRELIMINARY ISSUES'
Before considering the parties’ main arguments, the Court must address whether Judge Motley’s findings are binding on this Court on remand.
On remand, a district court generally has discretion to reconsider rulings that it or another district court made in the same case, subject to two exceptions: district courts (1) must follow the decision of the appellate court “where issues have been explicitly or implicitly decided on appeal,” Burrell v. United States,
First, the Second Circuit did not affirm Judge Motley’s findings. With respect to the documentation (or lack thereof), the Second Circuit explained the types of evidence that a defendant might use to prove validation, and stated that documentary evidence was not necessarily required. See Gulino IV,
Second, Defendants did not forgo their right to appeal Judge Motley’s findings. If a party fails to challenge a particular decision on appeal, it is deemed to have waived the right to challenge the decision. See Cnty. of Suffolk v. Stone & Webster Eng’g Corp.,
Accordingly, on remand the Court is not bound by Judge Motley’s finding regarding the lack of documentation, nor by her factual findings regarding the development and use of the LAST. The Court notes, however, that because Judge Motley presided over this case through trial, she undoubtedly had a deep understanding of the facts. The Court thus gives deference to her findings so long as they are supported by the record. See Quintieri,
* ❖ í¡i * * *
The remainder of this Opinion addresses the merits of the issues remaining on remand: whether the Board is subject to Title VII liability; whether the LAST was validated; and whether the Board misused the LAST and the Core Battery exam to make employment decisions.
IV. APPLICABILITY OF TITLE VII
The Board and SED argue that: (1) the LAST cannot be subject to a Title VII challenge because it is a licensing exam, not an employment exam, and Title VII does not apply to licensing exams; (2) the Board cannot be liable under Title VII because it was required by state law to use the LAST, and following state law is a “business necessity” that exempts the Board from Title VII liability; and (3) the Supreme Court’s decision in Ricci v. DeStefano provides the Board with a defense to Title VII liability in this case. The Court rejects the Board’s and SED’s arguments.
The Second Circuit acknowledged that the LAST is a licensing exam, and that the Board is a licensor, but nonetheless held that the Board can be sued under Title VII for requiring Plaintiffs to pass the LAST, because the Board is both a licensor and Plaintiffs’ employer, and employers are subject to liability under Title VII. Gulino IV,
With respect to the Board’s and SED’s second argument, the Second Circuit clearly stated that the Board could be liable under Title VII even though it followed state law by requiring teachers to pass the LAST.
Finally, the Board argues that the Supreme Court’s decision in Ricci v. DeStefano, as interpreted by the Second Circuit in United States v. Brennan,
The Board’s argument is incorrect. The Second Circuit foreclosed this application of Ricci, and explicitly held that the “sound basis in evidence” standard does not apply to disparate impact claims. See Briscoe v. City of New Haven,
V. WHETHER THE LAST WAS PROPERLY VALIDATED
The Court finds that the LAST was not properly validated and thus is not job related.
A. Background: Development and Use of the LAST
In 1988, a New York State task force studying teacher qualifications determined that all teachers should have a basic understanding of the liberal arts and sciences in order to be competent to teach. The task force recommended that the state require teachers to pass a liberal arts and sciences exam prior to receiving state certification in order to prevent any harm to students that would be caused by having incompetent teachers in the classroom. SED Ex. 35 pp. 617-18; SED Ex. 800 p. 11. SED was responsible for implement
NES established two committees to assist with the test development process: the Bias Review Committee (“BRC”) and the Content Advisory Committee (“CAC”). Gulino III,
To create the LAST, NES first developed a draft framework. The framework identified five general areas that would be tested on the exam: (1) Scientific and Mathematical Processes; (2) Historical and Social Scientific Awareness; (3) Artistic Expression and the Humanities; (4) Communication Skills; and (5) Written Analysis and Expression. SED Ex. 395. For each area, NES developed four or five subtopics
The BRC and the CAC reviewed the draft framework and subtopics. Following this review, NES sent the framework and subtopics to eight hundred New York public school teachers and four hundred education college faculty members, asking these individuals to rate the importance of each subtopic on a scale from 1 to 5, with 1 being of “no importance” and 5 being of “very great importance.” SED Exs. 401, 406, 408-10. Five hundred and fifty-four teachers and two hundred and thirty faculty members responded. Each subtopic received a separate rating, with the lowest rating being a 3.08 and the highest a 4.51; the average importance rating for the subtopics was 3.83 (a 4 being of “great importance”). SED Ex. 410.
NES next developed a “question bank” of three hundred and fifty test questions relating to the subtopics; the BRC and the CAC reviewed a small sample of these questions. Trial Tr. 1157, 2612-15; SED Exs. 418-19, 412-30; Gulino III,
After the questions were refined by the above-described processes, NES and SED began administering the LAST to teacher candidates. The exam had eighty multiple choice questions (selected from the ques
The BRC and the CAC were charged with determining what should constitute a passing score on the LAST. To do so, committee members reviewed an early version of the LAST and estimated the percentage of test-takers that would answer each multiple-choice question correctly and the average essay score.
In 1997, the Commissioner decided to update the certification standards for public school teachers. From 1997 to 1998, SED and NES reviewed and updated the LAST, using procedures similar to those described above. In addition, a new committee of teachers reviewed the LAST to determine the appropriate passing score. The committee recommended raising the passing score to 44. SED Exs. 588-89, 591-93, 782, 810. Based on the committee’s recommendation, the Commissioner ultimately raised the passing score to 43. Gulino III,
At trial, Judge Motley found that Caucasian test-takers passed the LAST at a statistically significant higher rate than African-American and Latino test-takers. Id. at *9-10 ¶¶ 46^19. Accordingly, requiring teachers to pass the LAST in order to receive a City license had a disparate impact on African-American and Latino teachers. Id. at *11 ¶ 57. The Board did not challenge this ruling on appeal, and it is not at issue on remand.
B. Legal Standard for Validation
Under Title VII, an exam is job related — a statutory defense for an employer using an exam with a disparate impact — if it has been properly validated. Validation requires showing, “by professionally acceptable methods, [that the exam is] ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.’ ” Gulino IV,
The Second Circuit uses a five-part test for determining whether a content-related employment exam, such as the
Validation is technical and complex, and “not primarily a legal subject.” Guardians,
The defendant bears the burden of proving that a challenged employment exam is properly validated. See Albemarle Paper Co.,
The Guidelines state that a defendant must submit documentary evidence of the process used to develop a challenged exam in order to prove that the exam was properly validated. 29 C.F.R. § 1607.15(A)(3). As discussed above, however, the Second Circuit has stated that such documentary evidence is not required to prove validation. ' Gulino IV,
C. Application
Based on the evidence presented by the parties at trial and in their remand submissions, the Court finds that the LAST was not properly validated, because (1) the test-maker (NES) did not conduct a suitable job analysis; (2) the test-maker did not use reasonable competence in constructing the LAST; (3) the content of the LAST is not related to the content of teaching; (4) the content of the LAST is not representative of the content of teaching; and (5) the scoring system did not usefully select applicants who could better perform as teachers. See Guardians,
1. NES Did Not Conduct a Suitable Job Analysis
A job analysis is an “assessment ‘of the important work behaviors required for successful performance’ ” of the job in question and the “ ‘relative importance’ ” of these behaviors. Guardians,
The Board does not attempt to ’ argüe that NES performed the first two steps required by Guardians (identifying tasks involved in the job and determining the relative importance of those tasks). Without performing these crucial threshold steps, the Court doubts that NES could have performed a suitable job analysis. Nonetheless, the Board asserts the process NES used to develop the LAST’S subtopics constitutes a suitable job analysis, and argues that the knowledge identified in the subtopics is relevant to teachers’ jobs because: (1) NES developed the subtopics by reviewing teaching and education materials, and consulting with education experts; and (2) the BRC, the CAC, and the survey of teachers and college faculty members confirmed that the subtopics were important for teachers.
The Court agrees that NES made some effort to ensure that the LAST’S subtopics identify knowledge of the liberal arts and sciences, which is important to teaching. There are, however, several flaws in the way that NES developed and reviewed the subtopics that prevent Court from finding that the company conducted a suitable job analysis;
First, NES never created a list of the tasks teachers perform, nor determined whether the subtopics identify knowledge needed to perform those tasks. See 29 C.F.R. § 1607.14(C)(2); Gulino III,
Second, there is insufficient evidence in the record regarding the materials NES relied on to draft the subtopics. At trial, NES representatives testified that the company collected materials from schools and colleges throughout the state, interviewed deans and administrators of liberal arts programs at colleges and universities in New York, and consulted with education experts. The representatives, however, could not recall any details about the materials or interviews, and could not describe how the information collected was used or how it supported the choice of subtopics. See, e.g., Trial Tr. 1847:23-1848:4; Trial Tr. 416:3-6; 416:21^17:7; 799:4-7; 1868:9-1869:6; Trial Tr. 394-396; 1585-26; 1861-62. Absent such evidence, the Court has no basis to find that “pertinent abilities” have been selected for measurement. Compare M.O.C.H.A. Soc’y I,
The Board submitted little documentary evidence regarding this process, and NES did not maintain any of the materials it collected. There are no notes or summaries of information gathered from the faculty, teachers, and content experts, and there are no documents showing how their advice was incorporated into the subtopics. The Board cites repeatedly to a report by NES regarding the development of the LAST. SED Ex. 494. This report, however, provides only a broad summary of the steps NES took when drafting the subtopics; it offers no details on the materials or interviews. Id. at pp. 15-19. There is no expert testimony describing the information NES collected or explaining how that information supported the choice of subtopics. Without more specific evidence, the Court cannot determine whether NES relied on relevant information and expertise that identified knowledge about the liberal arts and sciences that is important to common teaching tasks. See Vulcan II,
It also appears that NES actually drafted the subtopics prior to collecting materials and conducting interviews. At trial, Plaintiffs introduced a draft of the framework and subtopics, dated March 12, 1991, Pis. Ex. 105, which is quite similar to the final version of the framework and subtopics, dated July 26, 1991, Pis. Ex. 126. NES did not begin collecting materials or conducting interviews until some time after March 18, 1991. Pis. Ex. 107. Although the content experts apparently reviewed the March 12 draft of the subtopics, there is no evidence that they were consulted while NES was developing the draft. This evidence suggests that NES developed the subtopics largely without the assistance of relevant materials or experts, and to the extent such materials
Accordingly, the Court finds that the Board has failed to establish that NES conducted a suitable job analysis when developing the LAST.
2. NES Did Not Use Reasonable Competence in Constructing the LAST
The second step of the validation test examines whether the employer “used reasonable competence in constructing the exam.” Guardians,
Although the LAST was developed by a professional test company, NES retained little specific documentation of the construction process. An NES representative testified at trial that NES employees drafted the exam questions; these employees reviewed relevant materials and consulted with experts when drafting questions; the questions were reviewed and revised by outside content experts; and the CAC and the BRC reviewed the final draft of the questions. Trial Tr. 1155-57, 1811-15. This testimony, however, provides only a broad and vague overview of the exam construction process. There is no evidence in the record regarding the materials NES employees relied on when drafting the questions; the names or experience of the experts consulted; or any advice, comments, or revisions provided by these experts. Compare Cuesta,
Accordingly, the Court finds that the Board has failed to establish that the LAST was competently constructed.
3. The Content of the LAST Is Not Directly Related to Teaching
The third Guardians requirement is that the content of the exam must be directly related to the content of the job. This requirement “reflects ‘the central requirement of Title VII’ that [an exam] be job-related.” Vulcan II,
As discussed above, the Board has failed to prove that NES performed an adequate job analysis or competently constructed the LAST, and has provided no evidence regarding what tasks teachers perform on the job, what knowledge of the liberal arts and sciences teachers need to perform these tasks, or how the LAST’S subtopics relate to this knowledge. Given these evidentiary gaps, the Board must present “convincing evidence” that the LAST is nonetheless related to teachers’ jobs. The Board has failed to present such evidence.
The Board argues that the LAST is job related because experts, including the New York state task force, have determined that all teachers should know about the liberal arts and sciences, and the LAST tests for knowledge related to the liberal arts and sciences. The Court does not question the experts’ judgment that the
There is no evidence in the record establishing the minimum level of knowledge about the liberal arts and sciences needed by all teachers. The task force did not make any recommendations regarding specific knowledge that should be tested for on the LAST. See SED Ex. 35 at 617. NES did not conduct a job analysis to determine what knowledge is important for all teachers in carrying out their daily tasks. The company also did not maintain the materials it consulted when drafting the LAST, which might have helped establish a core liberal arts and sciences curriculum that all teachers use when teaching. Finally, there was no testimony or expert opinion offered at trial regarding what teachers need to know about the liberal arts and sciences, or how the LAST tests for that knowledge. Without such evidence, the Court cannot find that the LAST is directly related to knowledge about the liberal arts and sciences that all teachers must possess in order to be competent.
Consequently, because of the flaws in the job analysis and exam construction process, and the Board’s failure to present “convincing evidence” of job relatedness, the Court finds that the Board has failed to establish that the LAST is directly related to teachers’ jobs.
4. The Content of the LAST Is Not a Representative Sample of Teaching
The fourth Guardians requirement is that the content of the exam must be “a representative sample of the content of the job.” Guardians,
The Court has already found that the Board has failed to establish what minimum knowledge about the liberal arts and sciences teachers need in order to be competent. The Board thus cannot demonstrate the extent to which the exam tests for this knowledge.
5. The Scoring Requirements on the LAST Do Not Usefully Select Individuals Who Would Be Better Teachers
In the fifth and final step of the Guardians test, a court must determine whether the exam is scored in a way that usefully selects those applicants who can better perform the job. Guardians,
SED and the Commissioner did make some effort to ensure that the LAST cutoff score was valid. Members of the BRC and the CAC reviewed the first version of the LAST administered and recommended cutoff scores; the Commissioner chose the BRC’s recommendation of 38. Gulino III,
There are, however, several flaws in the way that the cutoff scores were calculated that undermine their validity. First, there were three hundred and fifty exam questions in the question bank, all of which could be used in versions of the LAST administered to candidates, but the BRC and CAC reviewed only eighty of these questions. Id. at *28 ¶ 149. There was no independent review or estimation of passing rates for the other two hundred and seventy questions in the question bank. Id.; Trial Tr. 2865-67.
Second, it is not clear that the committee members used appropriate criteria to evaluate the cutoff score. Members of the committees were asked to imagine a hypothetical “minimally-competent teacher” and to predict the likelihood that this teacher would answer each question on the exam correctly. SED Ex. 468, pp. 19-21; Pis. Ex. 215. There is no evidence that the committees were given any guidance as to the definition of “minimally-competent,” or the definition of types of teachers might meet that standard. SED Ex. 468; Pis. Ex. 215; Trial Tr. 1338-39 (testimony from Plaintiffs’ expert indicating that, in his experience, individuals determining cutoff scores have difficulty understanding what constitutes minimum competence).
Finally, when the Commissioner decided to raise the cutoff score, he was presented with statistics showing that a higher score would disproportionately harm minority test-takers; at a score of 44, only 29% of African-Americans and 25% of Latinos would pass the exam, as compared to 78% of whites. Pis. Exs. 217, 218. At the same time, there was no evidence that higher scores on the LAST correlated with better teacher or student performance in the classroom.
Given the problems discussed above, the Court finds that the Board has failed to establish that the LAST cutoff scores accurately measured the minimum knowledge about the liberal arts and sciences that teachers need to be competent and avoid harming students.
Hs ‡ % %
In conclusion, the Court finds that the Board has failed to establish that the LAST was properly validated. Accordingly, the LAST is not job related, and the Board violated Title VII by requiring Plaintiffs to pass the exam in order to receive a teaching license.
VI. WHETHER THE BOARD MISUSED THE LAST AND THE CORE BATTERY EXAM
Plaintiffs also argue that the Board misused the Core Battery and the
Plaintiffs argue that, to the extent that the Core Battery exam was properly validated, it were validated only for the purpose of assessing whether inexperienced teacher candidates had the minimum knowledge necessary to begin teaching in the classroom. Plaintiffs assert that the exam was not intended to assess the qualifications of experienced teachers, or to make decisions regarding the salaries, benefits, and seniority of such teachers. Under this view, the Board violated Title VII by “misusing” the Core Battery exam to license experienced teachers, and by reducing their salaries, benefits, and seniority if they failed to pass the Core Battery exam within five years.
Under Title VII, the exam must be properly put to the use for which the employer intends it. See APA Standards 6.3, 11.5; Walston v. Cnty. Sch. Bd. of Nansemond Cnty., Virginia,
Judge Motley found that the Core Battery exam was properly validated for use as a licensing exam for all teachers who were not already permanently licensed, including teachers with temporary or conditional licenses. Gulino III,
Because it was appropriate for the Board to require these teachers to pass the Core exam, the Board also did not violate Title VII when it reduced the salary, benefits, and seniority of teachers who failed to pass the exam and thus became substitutes. Under state and City regulations, the Board was required to revoke the conditional or temporary licenses of teachers who could not obtain permanent licenses, and to demote those teachers to substitute status. Substitute teachers are paid less than licensed teachers, and have no seniority. It was appropriate for the Board to lower teachers’ pay and benefits to be consistent with their new positions as substitutes.
VII. CONCLUSION
For the reasons set forth above, the Court grants in part and denies in part Defendant’s motion to decertify the Plaintiff class. The class survives only as to the declaratory judgment of the Board’s liability under Title VII (contained in this Opinion), and injunctive relief benefiting the class as a whole. With respect to the Board’s liability, the Court finds that: (1) the Board may be subject to Title VII liability for its use of the LAST; (2) the Board violated Title VTI by requiring Plaintiffs to pass the exam in order to receive a permanent teaching license because the LAST was not properly validated; and (3) the Board did not violate Title VII by reducing Plaintiffs salaries, benefits, and seniority for failing to pass the Core Battery exam.
The Court will hold a status conference in this case on January 10, 2013, at 2:00 p.m. in Courtroom 18B. Plaintiffs are directed to submit a letter to the Court by December 13, 2012 identifying what steps need to be taken in the remedial phase of this action. Defendant is directed to reply to Plaintiffs submission by December 20, 2012.
SO ORDERED.
OPINION & ORDER
Plaintiffs, who represent a class of minority teachers in the New York City public school system, brought the above-captioned action in 1996. Plaintiffs alleged that the Board of Education of the City School District of the City of New York (“the Board”) discriminated against Plaintiffs in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. On December 5, 2012 this Court held that the Board had violated Title VII by requiring teachers to pass the Liberal Arts and Sciences Test (the “LAST”) in order to obtain a permanent teaching license. Gulino v. Bd. of Educ., No. 96 CV 8414,
The Board now requests the Court certify the December 5 Order for interlocutory appeal to the Second Circuit pursuant to 28 U.S.C. § 1292(b).
Section 1292(b) authorizes a district court to certify an issue for immediate interlocutory appeal if the issue presents a (1) “controlling question of law,” (2) “there is a substantial ground for difference of opinion” on the issue, and (3) such immediate appeal “may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Although interlocutory certification lies largely in the district court’s discretion, district courts should “exercise great care in making a § 1292(b) certification.” Westwood Pharm., Inc. v. Nat’l Fuel Gas Distrib. Corp.
The Court finds that the standard is met. First, the question is controlling on this case; if the Board cannot be subject to Title VII liability for its role in administering state law, then the case would be terminated. See Klinghoffer v. S.N.C. Ac-Mile Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria,
Second, the question of law at issue provides “a substantial ground for difference of opinion.” Although the Second Circuit noted that Title VII relieves employers from any duty to observe a state hiring provision “ ‘which purports to require or permit’ any discriminatory employment practice,” the opinion did not address whether or not employers must comply with facially neutral state statutes, such as the licensing requirements at issue in this case.
Finally, an immediate appeal would likely advance the termination of this litigation. This case has been pending for over seventeen years, and the case is poised to enter a protracted remedial phase, which will likely involve discovery to determine backpay for an as-yet-unascertained number of class members and will certainly involve continued doubt regarding the validity of New York state teacher certification requirements. This effort and expense could be spared if the Second Circuit determines the Court was incorrect in its determination that the Board is subject to Title VII liability.
For the foregoing reasons, the Board’s December 27, 2012 motion for certification of interlocutory appeal of the December 6, 2012 Opinion is GRANTED. Given the age of the case, the Court declines to stay proceedings pending resolution of the appeal.
SO ORDERED.
Notes
. A teacher could obtain a conditional license through two different methods. First, a teacher could pass the "open examination,” a series of exams and interviews intended to assess a teacher’s knowledge of relevant subjects. Alternatively, a teacher could begin teaching immediately as a substitute with a temporary certificate. The requirements for obtaining a temporary certificate were minimal, but the teacher received a lower salary and fewer benefits than a teacher with a conditional license and the certificate had to be renewed on a yearly basis. After teaching for two years, a teacher holding a temporary certificate could obtain a conditional license by passing the “closed examination,” which was essentially just an interview. See Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., No. 96 Civ. 8414,
. For more detailed background on the development and use of the LAST, see infra Part V.A.
. Plaintiffs did not appeal Judge Motley's opinion as to the validity of the Core Battery exam, so the Second Circuit did not address it and it is not at issue on remand.
. The Court left open the question of whether claims for ''incidental” monetary relief — or relief "flow[ing] directly” from injunctive or declaratory claims properly certified under Rule 23(b)(2) which "should not require additional hearings to resolve”' — could still be certified under Rule 23(b)(2). Wal-Mart,
. The Court did not address whether some individualized injunctive relief could proceed under (b)(2) as "incidental” to a classwide injunction. Cf. Wal-Mart,
. The Court asked the parties to address whether new evidentiary hearings were necessary in their remand briefings. The parties agreed that no new hearings were warranted, and the Court concurs.
The Board asked the Court to allow it to submit new evidence regarding the validation of the current version of the LAST (the "New LAST”), which took place from 2000-2004. As noted above, the Court denied this request on the ground that evidence related to the validation of the New LAST is irrelevant. Order dated Dec. 8, 2009 (Dkt. 243). Plaintiffs were required to pass the Old LAST — used prior to 2004 — and their claims are based entirely on that exam. The Court notes that the findings in this Opinion apply exclusively to the Old LAST.
. The Second Circuit stated
[t]he district court concluded that the LAST could not be properly validated under the Guardians standard at least in part because of a “pervasive lack of documentation.” Were we to agree, it might be appropriate to direct the entry of judgment on remand in favor of appellants. In fact, however, we are not convinced, as a matter of law, that such judgment is warranted in this case.
Gulino IV,
. The Second Circuit did review and overturn certain factual findings Judge Motley made regarding the essay portion of the LAST. Gulino IV,
. On remand, the Board and SED cite to a number of decisions holding that a state licensing authority cannot be liable under Title VII for requiring licensure candidates to take a licensing exam, even if the exam has a disparate impact. See Camacho v. Puerto Rico Ports Auth.,
The Board and SED have also provided the Court with an amicus brief submitted by the U.S. Solicitor General opposing the Board's petition for a writ of certiorari. See McHale Deck Ex. 3 (Dkt. 252). In addition to opposing the writ because of the case’s interlocutory posture, the Solicitor General argued that the Second Circuit had erred in finding that the Board could be liable under Title VII for requiring teachers to pass the LAST in order to receive a teaching license and suggested that Title VII does not apply to state licensing requirements. On remand, the Court follows the Second Circuit’s clear holding that the Board can be liable under Title VII.
. Indeed, the Board and SED admit that the Second Circuit addressed their argument in its decision, but argue that this Court should reconsider the Second Circuit's decision because it was only "two sentences long” and thus “conclusory.” The Court, however, will not ignore a clear decision by the Second Circuit simply because it was stated concisely.
In addition, the Court notes that the Board’s argument is not properly before the Court on remand. The Board argued before Judge Motley that it could not be held liable under Title VII because it was required by state law to use the LAST, but failed to raise this argument on appeal. On remand, the Court cannot consider an issue that was "ripe for review at the time of an initial appeal, but nonetheless forgone.” Quintieri,
. The parties use the word "objective” to indicate a subset of knowledge targeted by the examination. For clarity, the Court will use the word "subtopic” instead of "objective.”
. This method of determining a passing score is known as the "Modified Angoff Method.” Using this Method, committee members reviewed each multiple-choice question on the exam, and asked the question:
Imagine a hypothetical group of individuals who have the minimally acceptable level of knowledge and skills required to perform the job of an educator receiving a provisional certificate in New York State. What percent of this group would answer the item correctly?
For the essay question, the committee members asked a similar question to determine what score (1-4) a minimally-competent test-taker would receive on the essay. SED Ex. 494. The committees performed this analysis on only eighty questions; an Angoff analysis was never conducted on the remaining two hundred and seventy questions. Gulino,
. SED argues that the LAST is a "licensing exam," not an employment exam, and thus that the Court should modify the Guardians standard in this case. SED asserts that a licensing exam is different from an employment exam because a licensing exam is intended to assess whether a test-taker "has the knowledge or skills required of a minimally competent person in an occupation,” whereas an employment test is intended "to select from among [test-takers] those who can perform better." See SED Remand Mem., at 5. However, the Second Circuit noted that the LAST was a licensing exam, but explicitly stated that the Court should apply the Guardians test to the LAST on remand. Gulino IV,
. The Board also argues that NES went through similar procedures when it ''revalidated” the LAST in 1997, and that this revalidation process provides additional evidence that NES completed a suitable job analysis. However, the Board failed to offer any specific evidence regarding the revalidation process in 1997; the evidence presented on revalidation is very similar to the evidence presented for the initial development process. The Court finds this evidence unpersuasive.
. A task analysis would have been particularly useful in this case because the City’s public school teachers teach a range of subjects and many grades, from kindergarten to advanced high school science. There are similarities and differences in what these teachers do on a daily basis. The LAST, however, is intended to test for knowledge about the liberal arts and sciences that all teachers need in order to be competent in their jobs. A. task analysis could have helped
. Although NES did make some effort to conduct a job analysis, including the BRC and CAC reviews and the teacher/faculty survey, these efforts are insufficient to cure the weaknesses identified above. The BRC and CAC were not involved in developing the subtopics, they merely reviewed the subtopics after NES had already drafted them, and made only insubstantial changes to the draft subtopics they reviewed. This does not constitute the rigorous job analysis required by Guardians.
. These are standards for the development of professional and educational tests, developed by the American Psychological Association ("APA”). All parties to this case agree that the APA Standards represent reliable expert opinion on the validation process.
. As with the job analysis, the BRC's and the CAC’s reviews of the questions provide some assurance that the questions are relevant and accurate, but do not offset the lack of evi
. Indeed, Plaintiffs’ expert analyzed pass rates for the LAST and found that college seniors passed the exam at higher rates than test-takers with a Bachelor's or Master’s degree, or a Doctorate. Pis. Ex. 241, pp. 71-72.
. The Board argues that the teacher/faculty survey establishes that all of the LAST'S subtopics are important to the job of a teacher, and that the LAST tests for all of the subtopts. The Court agrees that the teacher/faculty survey provides some assurance that the subtopics are important for teaching. The Court has already found, however, that the survey
. The Board urges the Court to rely on a 2002 study published by two university researchers. SED Ex. 173. The study has no bearing on the matters under consideration in this Opinion. It is merely descriptive, as is recognized by its authors when they say that the study aims to "describe the sorting of teachers across schools" (i.e., the high proportion of poor, minority and low-performing students who are taught by "less qualified” teachers), and "does not test hypotheses for why this sorting occurs.” The study does not test whether incrementally higher scores on the LAST correlate with better student performance. For example, the study does not show — or even attempt to show — that students with a teacher who receives a score of 44 on the LAST perform better than students with a teacher who receives a score of 40. Moreover, the study was published in 2002, and thus could not have been the basis for the Commissioner’s decision to raise the passing score in 1998.
. Appellate jurisdiction may be available under 28 U.S.C. § 1291, which authorizes appellate review of "final decisions” of district courts. See Rabbi Jacob Joseph Sch. v. Province of Mendoza,
. The Court acknowledges that the Board may have waived this argument by failing to raise it on appeal. See Gulino v. Board of Educ. of City School Dist. of City of New York, 2012 WL 6043803, at *15 n. 10 (S.D.N.Y. Dec. 5, 2012); United States v. Quintieri,