At the conclusion of what federal judge Constance Baker Motley described as an "epic trial," discrimination claims brought against New York City's Board of Education and the New York State Education Department by black and Latino teachers and potential teachers were dismissed during the opening week of the school year.

The class action was brought in the United States District Court for the Southern District of New York by Elsa Gulino, Mayling Ralph, Peter Wilds and Nia Green on behalf of themselves and an unspecified number of individuals estimated by plaintiff's counsel to be between 3,500 and 5,000. The lawsuit challenged tests introduced in 1991 as part of new state legislation mandating that anyone who did not already hold a full New York City license had to obtain state certification.

One aspect of certification entailed passing a two-part test. Plaintiffs had met all other requirements, including attaining master's degrees, but could not receive full teaching certification without passing the tests.

The lawsuit charged that the tests did not accurately measure ability or predict classroom success, and were not necessary for the teaching positions, thereby rendering the tests and the use of the tests invalid. The claims of discrimination were that white applicants passed in far greater numbers than blacks and Latinos due to cultural bias in the tests and inconsistent grading. The tests, they argued, had a disparate or adverse impact on black and Latino candidates for permanent certification to teach in New York City public schools. Without certification even people who were already teaching, some for as many as ten years, became ineligible for full licenses; others lost their temporary licenses. Some never made it into the school system. Those who did retain permanent substitute positions nevertheless experienced reduction of employment and promotion opportunities, and as much as a 30 percent decrease in salary and benefits.

"Disparate impact" in employment discrimination litigation, requires the plaintiffs to prove that the tests had an adverse effect on a protected class, the racial and ethnic groups of which they are members, i.e., black and Latino teachers and teaching candidates. They had to establish that "a particular employment practice (in this case the tests) caused a disparate impact on the basis of race, color, religion, sex or national origin."

In fact, plaintiffs did establish this claim. In her 34-page Findings of Fact and Conclusions of Law, Judge Motley -- who half a century ago, along with Thurgood Marshall, was counsel to the plaintiffs in Brown v Topeka Kansas Board of Education, a landmark in civil rights and education law -- found that disparity was demonstrated in this case, known as Gulino, for the first named plaintiff. The pass rates by whites was greater in a statistically significant way than that for test takers in other groups. Expert testimony showed that if blacks and Latinos had achieved pass rates equivalent to whites, their representation in the teacher workforce would have been greatly increased.

"The tests," said Barbara Olshansky, of the Center for Constitutional Rights, who represents the plaintiffs, "had a staggering effect on screening out teachers of color."

But the case did not end with the finding of disparate impact on members of a protected group.

In the second part of her analysis, Judge Motley concluded that the defendant employers overcame the disparate impact because the tests have a "manifest relationship" to the employment and legitimate connection to the goals of the teaching function.

The test contained multiple choice questions in mathematics, science and the liberal arts, and a short essay, which counted for 20 percent of the total grade. Some of the plaintiffs had passed the essay portion but not the short answers, others had lost ground on the essay. Judge Motley's decision focused on the essay.

"Defendants' decision to exclude those who are not in command of written English is in keeping with the educational goal of teaching students to write and speak with fluency. It should go without saying that New York City teachers should be able to communicate in both spoken and written English. Teachers who are unable to write a coherent essay without a host of spelling and grammar errors they pass on that deficiency to their students, both in commenting on and grading the work they turn in."

The decision did not address those who have not passed the test but continue to be employed as full-time permanent teachers and what it means to the student body that they continue to teach. Thomas Ryan, executive director of the city’s Division of Human Resources, testified that when he decided to permit these teachers to continue teaching full-time after their licenses had been revoked, he "did not believe that the teachers were harming the students in any way."

Once the court found that the tests were sufficiently job related to overcome the disparate impact, the burden shifted back to the plaintiffs, to present another practical, cost effective alternative to the tests. The plaintiffs, who had argued that the tests were invalid and unreliable, put forward a "portfolio" concept in which teachers would work with mentors and be judged on their actual performance and what it would predict about their future performance. While the court was impressed with the possibilities of that approach, suggesting that perhaps it could be used in conjunction with testing, she rejected it as an alternative.

Marie DeCanio, a Board of Education witness, testified at trial, "A test does not a teacher make. Performance is obviously the best test of whether a teacher is qualified to teach ... . On the job performance is the best way." The judge, however, disagreed.

While Judge Motley found that defendants had made an insufficient showing of the validity of the tests, she held that the test in use since 1993 "was properly validated according to professional guidelines and standards, and that they had shown that according to education professionals, of all the skills required of teachers, the ability to write a coherent essay was most important."

Plaintiffs are planning an appeal. The spokeswoman for Corporation Counsel which represented the city, refused to comment, saying she was "too busy to discuss this case." The state was represented by the Office of the Attorney General.