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

At a Glance

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 Plaintiffs' 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.

Date Filed: 

November 8, 1996

Co-Counsel 

DLA Piper LLP, Mishcon de Reya New York LLP, Sam Miller

Client 

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 has been working 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, of which the disparate impact on minority teachers constitutes racial discrimination.

Elsa Gulino, Peter Wilds, Mayling Ralph, Nia Greene - all teachers of color -  charge 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 have passed content specialty exams, have completed other required course work and have 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 has never been 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

June 18, 2014
The Court amends the class definition.
June 18, 2014
The Court amends the 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
The Court issues an order appointing a Special Master to oversee the relief phase of the case.
May 20, 2014
The Court issues an order appointing a Special Master to oversee the relief phase of the case.
August 29, 2013
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.
August 29, 2013
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
The District Court issues a ruling that concludes that the Board of Education's certification exam is discriminatory and not job related in violation of Title VII, but deny Plaintiffs's 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 were no longer discriminatory. As for back pay, the ruling did not stand in the way of those harmed by the discriminatory exam from seeking individual damages or certifying the class for damages under a different class action procedure.
December 5, 2012
The District Court issues a ruling that concludes that the Board of Education's certification exam is discriminatory and not job related in violation of Title VII, but deny Plaintiffs's 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 were no longer discriminatory. As for back pay, the ruling did not stand in the way of those harmed by the discriminatory exam from seeking individual damages or certifying the class for damages under a different class action procedure.
December 8, 2009
The US District Court of the Southern District of NY sets up a briefing schedule through April 2010 to determine on any outstanding issues, and to determine if an evidentiary hearing is necessary.
December 8, 2009
The US District Court of the Southern District of NY sets up a briefing schedule through April 2010 to determine on any outstanding issues, and to determine if an evidentiary hearing is necessary.
2007
The defendants appeal the Court of Appeals decision to the Supreme Court, filing for a writ of certiorari.
2007
The defendants appeal the Court of Appeals decision to the Supreme Court, filing for a writ of certiorari.
August 18, 2006
The Court of Appeals rules in favor of the plaintiffs.
August 18, 2006
The Court of Appeals rules in favor of the plaintiffs.
The three-judge panel holds that the lower court applied the incorrect legal standard in judging the evidence before it. The case has now been remanded back to the lower court, where the evidence is to be assessed under the proper standard. Sadly the Honorable Judge Motley passed away during the appeals process, and the case is now awaiting the assignment of a new judge.
February 6, 2004
Plaintiffs' brief in support of their appeal was filed.
February 6, 2004
Plaintiffs' brief in support of their appeal was filed.
October 14, 2003
Plaintiffs filed their Notice of Appeal to the Second Circuit Court of Appeals.
October 14, 2003
Plaintiffs filed their Notice of Appeal to the Second Circuit Court of Appeals.
September 2003
Ruling
September 2003
Ruling
The Court ruled for the defendants. Noting that the test had not been properly validated, the Court found for the defendants on the basis of one portion of the test that appeared to relate to the job of public school teacher.
December 2002 through May 2003
Trial phase
December 2002 through May 2003
Trial phase
Trial was held in the case from December 11, 2002 through May 1, 2003. In May, June, and July the parties filed their proposed findings of fact and conclusions of law with the Court.
Summer, 2002
Judge rules against motions to dismiss
Summer, 2002
Judge rules against motions to dismiss
Discovery was finally completed in 2002. In the summer of 2002, defendants moved to dismiss the case on summary judgment, claiming that they are entitled to win based upon their legal theories that they were not the responsible parties and that plaintiffs' statistical analysis was defective. In November 2002, the judge agreed with CCR's position and ruled against the motions to dismiss in every important aspect.
July 31, 2001
Judge Motley certified the case as a class action
July 31, 2001
Judge Motley certified the case as a class action
Judge Motley certified the case as a class action, rejecting government arguments that the class representatives' claims were not sufficiently representative of the proposed classes. Judge Motley also rejected the defendants' claims that class actions were inappropriate to challenge government operations, because the government presumably will adhere to rulings in individual cases. The court found no evidence in this case that the governmental defendants would universally apply a positive ruling in individual cases.
May and June 2000
CCR, representing Mirtha Sebelen, one of the Gulino plaintiffs, challenges the National Evaluation Systems (NES) new exams.
May and June 2000
CCR, representing Mirtha Sebelen, one of the Gulino plaintiffs, challenges the National Evaluation Systems (NES) new exams.
CCR became 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 - recently began 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, appealed the State Education Department's determination. After requesting a handwriting sample from Sebelen for analysis, the department reinstated Sebelen's scores and agreed to expedite her certification.
May 31, 2000
The Parties argued the motions to dismiss as well as the plaintiffs' oral motion to compel discovery.
May 31, 2000
The Parties argued the motions to dismiss as well as the plaintiffs' oral motion to compel discovery.
After a long and somewhat complicated hearing, Judge Motley - in an unusual and unexpected move - issued a ruling from the bench. The judge found 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, were denied. The plaintiffs' request for a discovery schedule was granted. Finally, Judge Motley put in place a complete litigation schedule.
April 19, 2000
The case was reassigned to another judge.
April 19, 2000
The case was reassigned to another judge.
On April 19, 2000, the case was reassigned to another judge, the Honorable Constance Baker Motley, who has a long and distinguished record as a civil rights supporter. Judge Motley scheduled the parties to appear at a hearing to discuss all the motions that remained undecided.
1999
Discovery phase
1999
Discovery phase
While discovery was ongoing but slow due to the outstanding motions pending before the court, CCR attorney Barbara Olshansky worked 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 worked 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 of 1997
Both the Board of Education and the State Education Department filed motions to dismiss the lawsuit.
Spring of 1997
Both the Board of Education and the State Education Department filed motions to dismiss the lawsuit.
CCR filed 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 was forthcoming.
November 8, 1996
In November 1996, the complaint was filed in the U.S. District Court for the Southern District of New York.
November 8, 1996
In November 1996, the complaint was filed in the U.S. District Court for the Southern District of New York.