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Appeals Court Upholds N.Y.C. Liability Over Teacher Test

A federal appeals court has upheld a lower-court ruling that a teacher-certification test used by New York state was not properly validated and that the New York City school system could be held liable under federal civil-rights law for the test's racially disparate impact on black and Latino test-takers.

The Feb. 4 decision by a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, is the latest in a suit filed in 1996 challenging the Liberal Arts and Sciences Test (LAST), which the state began requiring teachers to pass in 1993 for licensure. Those teachers in the city school system who failed to pass the test were demoted to substitute-teacher status, for which they were received less pay and reduced benefits.

Given the complexity of the case, which has bounced up and down, from federal district court to the 2nd Circuit and even to the U.S. Supreme Court, which denied review in 2008, the latest appeals court decision is dispassionately short and to the point.

In the seven-page "summary order," a three-judge panel of the 2nd Circuit court unanimously upheld a 2012 decision by U.S. District Judge Kimba M. Wood that the New York City Board of Education is liable for the disparate-impact of the LAST under Title VII of the Civil Rights Act of 1964.

On this key issue of the latest appeal, the 2nd Circuit panel said that it had already ruled at an early stage that the mandates of state law were no barrier to Title VII liability for the city school system, which is the actual employer of the teachers.

"That decision is now the law of the case," the 2nd Circuit court said in the latest decision in Gulino v. Board of Education of New York City"We see no injustice—let alone manifest injustice—in adhering to our prior decision."

The appeals court reiterated that "Title VII explicitly relieves employers from any duty to observe a state hiring provision 'which purports to require or permit' any discriminatory employment practice."

In a partial victory for the New York City board, the 2nd Circuit upheld Judge Wood's decision to decertify a broad class of black and Latino test-takers in the suit based on the Supreme Court's 2011 decision in Wal-Mart Stores Inc. v. Dukes, which limited certain forms of class actions.

In 2012, the Center for Constitutional Rights, a group backing the suit, said that Wood's decision on class status would not prohibit those harmed by the discriminatory exam from seeking individual damages or bar certification of a class for damages under a different federal class action procedure.

Thus, it seems this long-running suit is still far from over.

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