Massive Bias Damages for NYC Teachers Affirmed by 2nd Circuit

Upholding the first set of awards to Black and Latino teachers who were given a racially biased literacy test, the Second Circuit found that the trial court did not abuse its discretion in calculating individual damages.  

New York Mayor Bill de Blasio leaves New Bridges Elementary School after observing pandemic-related safety procedures on Aug. 19, 2020, in the Brooklyn, New York. (AP Photo/John Minchillo)

MANHATTAN (CN) — A discrimination case that has been ongoing for 25 years hurdled an appeals court detour Thursday over the first round of awards to New York City teachers.

The damages stem from U.S. District Judge Kimba M. Wood’s ruling in 2012 that found the city’s use of a literacy test for giving prospective teachers caused qualified Black and Latino applicants to lose jobs, wages, benefits and seniority status. 

Even after the Second Circuit affirmed liability in 2014, however, the city’s Board of Education appealed again over the findings of the court-appointed special master who determined individual damages for hundreds of teachers.

At oral arguments earlier this month, the board said that it would have been fairer to use an algorithm because, as it stands now, the city is set to pay out hundreds of millions of dollars.

The Second Circuit sided with the teachers again Thursday, affirming the awards for a group of 347, out of a total of more than 4,500, slated to receive the first payments. 
Class-wide, rather than individual, assessments of monetary relief are the exception, not the rule, the three-judge panel held in an unsigned order. 

“Accordingly,” the decision states, “the district court’s decision to individually determine whether a class member would have been hired, as well as that class member’s counterfactual end date, was an application of the default rule that ‘[w]here possible, there should be a determination on an individual basis as to which class members are entitled to recovery and the amount of such recovery.’

“Contrary to BOE’s suggestion, application of this default rule here was not an abuse of discretion,” the 10-page order continues, penned by U.S. Circuit Judges Robert Katzmann, Raymond Lohier and Susan L. Carney. 

While damages for the over 90% of the plaintiffs still need to be calculated, the awards going out to just this first group total more than $170 million in back pay and other relief, plus pension liability. 

During oral arguments and in his brief, Richard Dearing, assistant corporation counsel for New York City, argued on behalf of the BOE that the full amount will yield a “large and unjustified windfall” to the teachers, violating Title VII’s goal of making victims whole.

Using a statistical model would have smoothed out the complexity of calculating damages, made more difficult by the fact that the plaintiff teachers by now have accumulated more than two decades of work history, since the suit was filed in 1996. 

Dearing proposed basing a model off the city’s hiring and attrition rates for teachers: The city did not hire 25% of comparable prospective teachers who passed the biased literacy test, and 50% of those hired left their jobs within 10 years. 

He cautioned against “mucking around through this quagmire for some period of time,” as Dearing said would happen in determining case-by-case awards. 

However, that position contradicts the BOE’s earlier stand, the appellate judges wrote in Thursday’s order. 

While opposing remedy-phase class certification, BOE had said calculating class-wide damages would be impractical, since determining backpay, and specifically start and end dates, is highly individualized.

“Although BOE’s prior position does not formally preclude its arguments here, its about-face confirms that, at the very least, reasonable minds may disagree about the practicality of assessing appointment and attrition probabilities on an individualized basis in this case,” the circuit judges wrote. “Under abuse of discretion review, this is fatal to BOE’s argument.” 

Responding to Dearing’s concerns of a windfall award, the appellate judges wrote: “There is no reason to assume that the 347 damages awards appealed in the tandem cases before us are necessarily representative of those that the remaining class members will receive.”

Joshua Sohn, an attorney for the teachers, noted during oral arguments that 357 plaintiffs were not awarded back pay, out of 1,738 judgments entered so far. Of the plaintiffs awarded back pay, 46% did not receive the full pay accrual through the date of judgment, said Sohn, of the firm Stroock & Stroock & Lavan. 

Nick Paolucci, a spokesman for the city’s law department, said in response to the ruling that the city is evaluating its legal options, including asking for reviews by the full Second Circuit and the U.S. Supreme Court.

“We believe the court committed a grave error,” Paolucci said, noting that the city was not involved in developing the state certification test that was the city was required to use it in its teacher-hiring process.

New York replaced what was known as the Core Battery exam in 1993 with the Liberal Arts and Sciences Test before discontinuing that one as well a decade later.

“The court also used a flawed method to calculate individual awards which unfairly burdens the City with costly court judgments,” Paolucci added.

Sohn was not available to comment for this article.

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