Gulino v. The Board of Education of the New York City School District of the City of New York, No. 13-cv-1001 (2d Cir. Feb. 4, 2014): A recent decision by the Second Circuit Court of Appeals affirmed a ruling by the lower court that the New York City Board of Education (BOE) violated Title VII of the Civil Rights Act through its use of a discriminatory teacher certification exam that was not “job related” under the statute. With its decision, the Second Circuit added another chapter to long-running litigation involving efforts by a group of minority teachers to challenge the use of teacher certification tests that have allegedly had a detrimental effect on their careers. The lower court ruled that the test at issue had not been properly validated and was thus not “job related” under criteria established by the Second Circuit. Further, the lower court construed the Supreme Court of the United States’ ruling in Wal-Mart v. Dukes such that certification under Rule 23(b)(2) is justified where there is “an indivisible injunction benefitting all members at once,” but is not justified where individual class members “would be entitled to a different injunction or declaratory judgment against the defendant.” Despite that setback, the plaintiffs successfully moved to recertify the class under Rule 23(b)(3) for the purposes of determining damages and other remedies. The Second Circuit affirmed the lower court’s decision by, inter alia, rejecting the BOE’s argument that it could not be held liable for complying with a “facially neutral state licensing requirement.” Further, the Second Circuit affirmed the lower court’s ruling with respect to class certification because, while during the interim of the appeal, the lower court addressed the BOE’s arguments and correctly applied the Rule 23(b)(3) standard.

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