Gulino v. The Board of Education of the City of New York and the New York State Education Department

At a Glance

Date Filed: 

November 8, 1996

Current Status 

On December 5, 2012, the district court issued a ruling concluding that the Board of Education's certification exam was discriminatory and not job-related, but denied the teachers' request to proceed as a class under a particular class certification procedure in obtaining back pay for having been unjustly terminated. The court ruled that an independent monitor would nonetheless be necessary to ensure the certification exams were no longer discriminatory. On August 29, 2013, the court certified a class of plaintiffs who can seek individualized monetary and injunctive relief, and in May 2014, the court appointed a Special Master to oversee the relief phase.

Co-Counsel 

DLA Piper LLP
Mishcon de Reya New York LLP
Sam Miller

Client(s) 

Representing a class of African-American and Latino teachers in the New York City public school system

Case Description 

Gulino v. The Board of Education of the City of New York and the New York State Education Department is a class action lawsuit filed on behalf of public school teachers of color challenging the use of discriminatory test and licensing rules to deprive them of equal salaries, pensions, benefits, and seniority.

CCR worked closely with a support group of teachers, the Committee for a Fair Licensing Procedure, to challenge the Board's over-reliance on the National Teachers Examination (NTE) in terminating the regular licenses of experienced teachers. The disparate impact on minority teachers constituted racial discrimination.

Elsa Gulino, Peter Wilds, Mayling Ralph, and Nia Greene – all teachers of color – charged that when the State Education Department and the New York City Board of Education imposed the requirement that they take and pass the NTE, they lost their permanent teaching licenses, seniority, retention rights, and in some cases their tenured teaching positions, and had their salaries drastically reduced. They were, nonetheless, expected to keep teaching and maintain their current course load.

All of the teachers passed content specialty exams, completed other required course work, and consistently received satisfactory evaluations in their years of employment in the city schools. Class members proved that the NTE has never been validated for any use other than to assess entry-level teachers and that the exam has a disproportionate impact on teachers of color.

In addition to the NTE, the case challenged the use of the Liberal Arts and Sciences Test (LAST), another certification examination that was never validated for any professional teaching assessment. This test, too, shows a glaring gap in the passage rate between whites and African Americans and Latinos.

Estimates of the number of public school teachers who have suffered demotion, termination, and salary and other benefit losses now range from 8,000-15,000.

NOTICE: If you may be eligible to be a class member in the Gulino litigation, please visit www.gulinolitigation.com to get updates, access documents, and read further details.

 

Case Timeline

August 7, 2015
Court rules that new ALST exam is not discriminatory
August 7, 2015
Court rules that new ALST exam is not discriminatory
The court rules that the Academic Literacy Skills Test ("ALST"), the test that replaced the LAST, is job-related and thus does not violate Title VII.
June 5, 2015
Court rules that newer LAST exam violates Title VII
June 5, 2015
Court rules that newer LAST exam violates Title VII
The judge rules that the newer version of the LAST exam, referred to as the LAST-2 and administered from 2004-2012, was also not properly validated as job-related and is thus discriminatory in violation of Title VII.
March 31, 2015
Court issues injunction, allowing eligible class members to apply for teaching positions
March 31, 2015
Court issues injunction, allowing eligible class members to apply for teaching positions
The court issues an injunction on November 24, 2014, which is amended on March 31, 2015, preventing the Board of Education from using any class member's failure of the LAST exam prior to February 13, 2004 in an employment decision, and setting certification requirements for class members. These requirements allow eligible class members to be deemed certified and to finally apply for teaching positions with the NYC Board of Education.
September 2014
Claims process begins
September 2014
Claims process begins

If you may be eligible to be a class member in the Gulino litigation, please visit www.gulinolitigation.com to get updates, access documents, and read further details.

June 18, 2014
Court amends class definition
June 18, 2014
Court amends class definition

The court amends the class definition so that it includes African-American and Latino individuals employed as New York City public school teachers on or after June 29, 1995, who failed the Liberal Arts and Sciences Test ("LAST") given on or before February 13, 2004, and as a result either lost or were denied a permanent teaching appointment.

May 20, 2014
Court appoints special master to oversee relief phase of case
May 20, 2014
Court appoints special master to oversee relief phase of case
February 4, 2014
Second Circuit affirms district court decision in favor of teachers
February 4, 2014
Second Circuit affirms district court decision in favor of teachers
The Board of Education appeals each ruling of the district court decision to the Second Circuit, but the appeals court affirms the district court on all counts.
August 29, 2013
Court certifies plaintiff class for individualized monetary and injunctive relief
August 29, 2013
Court certifies plaintiff class for individualized monetary and injunctive relief
The court certifies a class of plaintiffs who can seek individualized monetary and injunctive relief as a result of the DOE's Title VII violation.
December 5, 2012
District court issues decision concluding that Board of Education's certification exam violates Title VII
December 5, 2012
District court issues decision concluding that Board of Education's certification exam violates Title VII
The district court rules that the Board of Education's certification exam is discriminatory and not job-related, in violation of Title VII, but denies the teachers' request to proceed as a class under a particular class certification procedure in obtaining back pay for having been unjustly terminated. The court rules that an independent monitor will be necessary to ensure the certification exams are no longer discriminatory. As for back pay, the ruling does not stand in the way of those harmed by the discriminatory exam seeking individual damages or certification of the class for damages under a different class action procedure.
December 8, 2009
U.S. District Court for Southern District of New York sets up briefing schedule through April 2010 to determine on any outstanding issues and to determine if evidentiary hearing is necessary
December 8, 2009
U.S. District Court for Southern District of New York sets up briefing schedule through April 2010 to determine on any outstanding issues and to determine if evidentiary hearing is necessary
The judge also rules that the defendants may not introduce additional evidence on remand regarding the LAST exam.
2007-2008
Defendants appeal Court of Appeals decision to U.S. Supreme Court, filing for writ of certiorari
2007-2008
Defendants appeal Court of Appeals decision to U.S. Supreme Court, filing for writ of certiorari
The petition is denied on June 23, 2008.
August 17, 2006
Court of Appeals rules in favor of plaintiffs
August 17, 2006
Court of Appeals rules in favor of plaintiffs
The three-judge panel holds that the lower court applied the incorrect legal standard in judging the evidence before it. The case is now remanded back to the lower court, where the evidence is to be assessed under the proper standard. Sadly, the Honorable Judge Motley had passed away during the appeals process, and the case now awaits the assignment of a new judge.
February 6, 2004
Plaintiffs file brief in support of appeal
February 6, 2004
Plaintiffs file brief in support of appeal
October 14, 2003
Plaintiffs file notice of appeal to Second Circuit Court of Appeals
October 14, 2003
Plaintiffs file notice of appeal to Second Circuit Court of Appeals
September 4, 2003
Ruling
September 4, 2003
Ruling
The court rules for the defendants. Noting that the test has not been properly validated, the court finds for the defendants on the basis of one portion of the test that appears to relate to the job of public school teachers.
December 2002 through May 2003
Trial phase
December 2002 through May 2003
Trial phase
Trial is held in the case from December 11, 2002 through May 1, 2003. In May, June, and July, the parties file their proposed findings of fact and conclusions of law with the court.
Summer through Fall 2002
Judge rules against motions to dismiss
Summer through Fall 2002
Judge rules against motions to dismiss
Discovery is finally completed in 2002. In the summer of 2002, defendants move to dismiss the case on summary judgment, claiming that they are entitled to win based upon their legal theories that they are not the responsible parties and that plaintiffs' statistical analysis is defective. In November 2002, the judge agrees with CCR's position and rules against the motions to dismiss in every important aspect.
July 31, 2001
Judge Motley certifies case as class action
July 31, 2001
Judge Motley certifies case as class action
Judge Motley certifies the case as a class action, rejecting government arguments that the class representatives' claims are not sufficiently representative of the proposed classes. Judge Motley also rejects the defendants' claims that class actions are inappropriate to challenge government operations, because the government presumably will adhere to rulings in individual cases. The court finds no evidence in this case that the governmental defendants would universally apply a positive ruling in individual cases.
May and June 2000

CCR, representing Gulino plaintiff Mirtha Sebelen, challenges new National Evaluation Systems (NES) exams

May and June 2000

CCR, representing Gulino plaintiff Mirtha Sebelen, challenges new National Evaluation Systems (NES) exams

CCR becomes aware of a new practice by the State Education Department that once again appears to affect teachers of color adversely. National Evaluation Systems (NES), the company that developed the new teacher certification examination - the Liberal Arts and Sciences Test - had recently begun implementing a test score voiding procedure. Under this procedure, teachers that pass the test have their scores voided if they have failed the examination in the past. When NES voids the scores, the State Education Department accepts the company's determination and notifies teachers that their scores have been voided. CCR, representing Mirtha Sebelen, one of the Gulino plaintiffs, appeals the State Education Department's determination. After requesting a handwriting sample from Sebelen for analysis, the department reinstates Sebelen's scores and agrees to expedite her certification.

May 31, 2000
Parties argue motions to dismiss as well as plaintiffs' oral motion to compel discovery
May 31, 2000
Parties argue motions to dismiss as well as plaintiffs' oral motion to compel discovery
After a long and somewhat complicated hearing, Judge Motley - in an unusual and unexpected move - issues a ruling from the bench. The judge finds for the plaintiffs on all aspects of the case before her. The motions to dismiss the lawsuit filed by the State Education Department and the City Board of Education, each alleging that they were not the true employers of the teachers and were not responsible for a discriminatory test, are denied. The plaintiffs' request for a discovery schedule is granted. Finally, Judge Motley puts in place a complete litigation schedule.
April 19, 2000
Case is reassigned
April 19, 2000
Case is reassigned
On April 19, 2000, the case is reassigned to another judge, the Honorable Constance Baker Motley, who has a long and distinguished record as a civil rights supporter. Judge Motley schedules the parties to appear at a hearing to discuss all the motions that remain undecided.
1999
Discovery phase
1999
Discovery phase
While discovery is ongoing but slow due to the outstanding motions pending before the court, CCR attorney Barbara Olshansky works closely with teachers who were adversely affected by the two agencies' policies to address their concerns about alternative temporary placement, certification in other states, unemployment insurance, and reinstatement upon passage of the examinations. In addition, CCR works with terminated teachers to develop a lobbying platform for the institution of more effective, accurate, and less discriminatory evaluation systems in the public schools.
Spring 1997
Both Board of Education and State Education Department file motions to dismiss lawsuit
Spring 1997
Both Board of Education and State Education Department file motions to dismiss lawsuit
CCR files its opposition on behalf of the plaintiffs in March 1997, with the papers fully submitted to the United States District Court for the Southern District of New York by April 1997, but no decision is forthcoming.
November 8, 1996
Complaint is filed
November 8, 1996
Complaint is filed
In November 1996, the complaint is filed in the U.S. District Court for the Southern District of New York.