Wednesday, December 12, 2007

Board of Education of The New York City School District of The City of New York v. Gulino, No. 07-270

On Monday, December 3, 2007, the Supreme Court invited the Solicitor General to file a brief in this case expressing the views of the United States. If the Court takes this case, it could have a dramatic effect on the ability of public school systems to administer competency tests to incumbent and aspiring teachers. The case is filled with ironies.

First, the Second Circuit, Judge Wesley writing for the panel, reversed the Southern District of New York's holding that the test at issue was job-related and that accordingly the Plaintiff class of African-American and Latino teachers challenge to the test on disparate impact grounds failed. The District Judge who issued that decision was none other than the now deceased, revered icon of the Civil Rights Movement, the Honorable Constance Baker Motley. A reading of the Second Circuit's reversal of Judge Motley underscores that the Court well understood that it was finding, with some temerity, that an African-American female Federal District Judge who for decades had been on the front lines of the Civil Rights jurisprudential revolution, had erred. Repeatedly, in his opinion, Judge Wesley genuflects to the legacy of Judge Motley. Nonetheless, the Second Circuit reverses her.

The second irony is that, among other lawyers representing the Plaintiff class, was a law firm that normally aligns itself in employment cases with management, DLA Piper Rudnick Gray Cary US LLP.

The decision of Judge Motley is reported at 2003 U.S. Dist. LEXIS 27325 (S.D.N.Y., Sept. 4, 2003). The decision of the Second Circuit reversing is found at 460 F.3d 361 (2d Cir. 2006) and the New York City Board of Education's petition for cert was filed on August 27, 2007 (2007 WL 2456185). And the Court's Order inviting the Solicitor to file a brief can be found at 2007 U.S. LEXIS 12762 (U.S., Dec. 3, 2007).

In its simplest terms, the case involves the imposition by the New York State Education Department upon the New York City Board of Education (BOE) of a requirement that all teachers and all aspiring teachers pass a test called the Liberal Arts and Sciences Test (LAST). The test is referred to as a New York State teacher certification examination. The class of African-American and Latino teachers and aspiring teachers sued both the BOE and the New York State Education Department (SED). They argued before Judge Motley that the SED could be considered to be an employer within the meaning of Title VII, arguing that the so-called interference theory, first enunciated by the D.C. Circuit in 1973 in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973). The Defendants argued that, for the purposes of this case, neither should be considered to be an employer within the meaning of Title VII.

The SED argued that the Second Circuit had never adopted, and should not adopt, the Sibley interference theory. This theory reads Title VII to cover entities that interfere with a direct employment relationship. The District Court found that the State's involvement was sufficient to bring the SED within the scope of the interference test. The Second Circuit reversed that finding, and ironically dismissed the party directly responsible for the creation of the LAST. The Second Circuit adopted the dissent of Judge Gould of the Ninth Circuit in Association of Mexican-American Educators v. California, 231 F.3d 572 (9th Cir. 2000)(en banc)("AMAE"). In AMAE, the en banc majority had endorsed the D.C. Circuit's Sibley test. Judge Gould, in dissent in AMAE, rejected the Sibley test as contrary to a natural reading of Title VII. So, the Second Circuit, now turned its attention to the BOE, and Judge Motley's decision finding that while the BOE was an employer within the meaning of Title VII, the LAST, although it had disparate impact, was lawful because, according to Judge Motley, the Supreme Court in Watson v. Forth Worth Bank & Trust, 487 U.S. 977 (U.S. 1988), had lowered the bar for employers in disparate impact cases. Judge Motley specifically found that Watson resulted in the Second Circuit's more onerous test in disparate impact cases first enunciated in Guardians Association of New York City Police Department v. Civil Service Commission of City of New York, 630 F.2d 79 (2d Cir. 1980) as no longer being good law. The Second Circuit disagreed with Judge Motley, finding that Watson did not undermine Guardians.

Judge Motley, in approving the Essay Section of the LAST noted: "It should go without saying that New York City Teachers should be able to communicate effectively in both spoken and written English. Teachers who are unable to write a coherent essay without a host of spelling and grammar errors may pass on that deficiency to their students, both in commenting upon and grading the work they turn in. Defendants' decision to exclude those who are not in command of written English is in keeping with the legitimate educational goal of teaching students to write and speak with fluency." While the Second Circuit thought Judge Motley's observation to me eminently reasonable, it found the EEOC's Uniform Guidelines on Employee Selection Procedures (29 C.F.R. Sections 1607.1 - 1607.18(2006)) perhaps to be the most important source of guidance, calling them "the primary yardstick by which we measure defendants' attempt to validate the LAST." And so, after a convoluted, esoteric discussion of "content" and "construct" validity, the panel found the LAST did not survive scrutiny under the EEOC's Guidelines and Guardians.

None of this complex Title VII jurisprudence is presented to the Supreme Court for further elaboration. The debate as to whether cases like Sibley and AMAE are correct continues, and will have to be resolved at a later date. And, the debate regarding the Supreme Court's holding in Watson, the 1991 Civil Rights Act disparate impact provisions, what level of deference, if any, to accord to EEOC's Uniform Guidelines on Employee Selection Procedures and the continuing vitality of Guardians will remain unresolved.

The issue before the Court is whether, for the purposes of this case, the BOE should be considered for all purposes to be acting as an employer. The BOE argues that it is obliged to comply with State licensing requirements, and its obeisance to the State-mandated licensing activity does not give rise to a cause of action under Title VII. The BOE relies upon a string of appellate decisions finding, in various contexts, including teachers, that Title VII does not apply to State certification examinations. See Fields v. Hallsville Independent School District, 906 F.2d 1017 (5th Cir. 1990) (Title VII does not apply to State certification exam administered to Texas teachers); George v. New Jersey Bd. Of Veterinary Medical Examiners, 794 F.2d 113 (3d Cir. 1986) (Title VII does not apply to New Jersey veterinary license); Haddock v. Bd. Of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir. 1985) (Title VII “is not intended to apply to the kind of licensing activity in which the Board [of Dental Examiners] engages”; “history [of bill deleting from Title VII exemption for state government employers] is barren of any reference to state licensing agencies or the many persons licensed by them”); Woodard v. Virginia Bd. Of Bar Examiners, 598 F.2d 1345 (4th Cir. 1979) (Title VII does not apply to bar examination); Tyler v. Vickery, 517 E2d 1089 (5th Cir. 1975) (Title VII does not apply to the Georgia bar examination); see also Camacho v. Puerto Rico Ports Authority, 369 F.3d 570, 578 (1st Cir. 2004) (“under … Title VII,…state licensing and regulatory agencies generally are not regarded as employers vis-รก-vis those whom they license and regulate”). Challenges to state licensing tests arise solely under 42 U.S.C. § 1983 and the Fourteenth Amendment. See, e.g., Haddock, supra, 777 F.2d 462 (9th Cir. 1985).

One can only imagine the debate going on within the federal establishment regarding what position the Solicitor General should take. We can be certain that EEOC is arguing for the point of view enunciated by the Second Circuit. Presumably, later historians will discover what position the Civil Rights Division of DOJ takes, much less the back and forth between the agencies over this question. Should the Court take the case, and find that this is a licensing, and not an employment case, and that therefore Title VII does not apply, then presumably Plaintiff's only remedy would be a Section 1983 claim, which does not permit disparate impact analysis, and can only be based on a showing of discriminatory intent. Potentially, the end result of such a Supreme Court holding would be far more latitude on the part of public schools to test incumbent and aspiring teachers for competence in liberal arts and sciences.

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