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Federal Court Rejects NYS Effort to Dismiss Race Discrimination Case Brought by NYCLU on Behalf of High-Minority Public Schools

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ———————– ALGIER CEASER, JR., et al., Plaintiffs, 98 iv. 8532 (LMM) – against – MEMORANDUM AND ORDER GEORGE E. PATAKI, Governor of the State of New York; THE NEW YORK STATE BOARD OF REGENTS; CARL T. HAYDEN, Chancellor of the Board of Regents; THE NEW YORK STATE EDUCATION DEPARTMENT; RICHARD P. MILLS, President of the University of the State of New York and Commissioner of the State Education Department; and the STATE OF NEW YORK, Defendants. ———————– MCKENNA, D.J. Plaintiffs, representing a proposed class of nearly 80,000 students attending high-minority public schools 1 in New York, excluding schools in New York City 2, commenced this disparate impact action against the State of New York and related defendants, alleging violation of regulations promulgated under Title VI of the Civil Rights Act of 1964. Plaintiffs seek “injunctive relief to remedy the unlawful discrimination that pervades the education that New York state officials are providing” the proposed class. (Compl. ¶ 1.) Now before the Court are defendants’ motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12 (b) (6) and plaintiffs’ motion for class certification under Fed. R. Civ. P. 23 (b) (2). For the reasons set forth below, defendants’ motion is denied, while plaintiffs’ motion is granted. I. PLAINTIFFS’ COMPLAINT Plaintiffs are 33 students attending high-minority schools and their parents or guardians. (See Compl. ¶ 8-62.) Defendants are state entities and officials “legally responsible for the operation of the New York State educational system and are legally required to assure that its operation complies with relevant federal law.” (Compl. ¶ 69.) Defendant State of New York receives federal funding to assist with the operation of this system. (See id. ¶ 78.) Plaintiffs point out that the New York Legislature has passed laws which require defendants Board of Regents (the “Board”) and the Commissioner of the State Education Department (the “Commissioner”) to, inter alia, “monitor the provision of educational services to plaintiffs; take actions to assure compliance with legal mandates pertaining to the provision of educational services to the plaintiffs; and assure that the plaintiffs are being taught by properly certified teachers.” (Id. ¶ 79.) Plaintiffs also point out that the Board and theCommissioner have themselves promulgated regulations requiring, inter alia, the following: the provision of remedial services for children who score below specified levels on standardized tests administered by the State; suitable and adequate buildings and grounds; access to appropriate libraries; the opportunity for students to take courses in preparation for Regents examinations and the opportunity to earn Regents diplomas; and that defendants monitor the provision of educational services and assure compliance with relevant law. (See id. ¶ 80.) The Complaint goes on to cite “data published by the State Education Department (demonstrating) that the academic achievement of students in high-minority public schools in New York state but outside of New York City is significantly lower than that of students in low-minority schools in the state.” (Id. ¶ 92.) 3 The data evidences disparities in student performance on state-administered standardized tests, including the Pupil Evaluation Program (PEP) Test, which is administered to elementary school students, (see id. ¶ 94-100); the Regents Competency Test, which is administered to middle- and high-school students, (see id. ¶ 101-04); and the Regents Examination, which is available to high school students, (see id. ¶ 105-07). Plaintiffs also cite data demonstrating disparity in the awarding of Regents Diplomas, (see ids ¶ 108-11), and drop-out rates, (see ¶ 112-15). The Complaint then alleges that high-minority schools “have far fewer educational resources than do low-minority schools,” (Id. ¶ 116), and attribute this to “a variety of methods of administration the defendants employ in their operation of the New York educational system that have specific discriminatory, disparate impacts upon students in high-minority schools,” (Id. ¶ 117). These methods of administration, according to plaintiffs:

include the discriminatory manner in which they comply with and enforce the mandates [1] that all teachers be certified, [2] that students receive remedial instruction, [3] that students have access to suitable and appropriate buildings and grounds, [4] that students have access to appropriate libraries, [5] that students have the opportunity to take Regents courses and to earn Regents diplomas, and [6] that educational services be monitore and provided in a specified manner.

(Id. ¶ 118.) “This lawsuit seeks to enjoin these methods of administration.” (Id.) The Complaint then goes on to specify the defendants’ failures to enforce and assure compliance with the legal requirements mentioned above. (See id. ¶¶ 119-28 (certified teachers), 129-39 (remedial instruction), 140-49 (school facilities and grounds), 150-57 (libraries), 158-69 (regents courses and diplomas), 170-78 (monitoring and enforcement).) The sixth area noted by plaintiffs, monitoring and enforcement, essentially reiterates defendants’ alleged nonenforcement of the first five areas. (See id. ¶ 170-78.) The Complaint later details the lamentable conditions in eleven high-minority schools. (See id. ¶ 212-34.) 4 In their request for relief, plaintiffs’ ask that the Court “[i]ssue a permanent injunction directing the defendants . . . to cease violating the plaintiffs’ rights and to take any and all action necessary to assure that the plaintiffs are receiving the educational services to which they are entitled in a nondiscriminatory manner as required by the laws of the United States.” (See id. Request for Relief at (4).) II. DISCUSSION A. DEFENDANTS’ MOTION TO DISMISS Under Rule 12 (b)(6), a complaint will be dismissed if there is a “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12 (b) (6). The Court must read the complaint generously accepting the truth of and drawing all reasonable inferences from well-pleaded factual allegations. Mills v. Polar Molecular Corp, 12 F.3d 1170, 1174 (2d Cir. 1993). A court should dismiss a complaint only “if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Section 601 of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d, “prohibits any recipient of federal financial assistance from discriminating on the basis of race, color, or national origin in any federally funded program.” Sandoval v Haoan, 197 F.3d 484, 501 (11th Cir. 1999). 5 The Supreme Court has held that Section 601 itself “only prohibits intentional discrimination, not actions that have a disparate impact upon minorities.” New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (citing Guardians Assn v. Civil Serv. Comm’n, 463 U.S. 582, 610-11 (1983) (opinion of Powell, J., in which Burger, C.J. and Rehnquist, J. joined); id at 612 (opinion of O’Connor, J.); id at 641-42 (opinion of Stevens, J., in which Brennan and Blackmun, JJ., joined)). However, the Court also concluded in Guardians “that Title VI delegated to federal agencies the authority to promulgate regulations incorporating a disparate impact standard.” Urban League, 71 F.3d at 1036 (citing Guardians, 463 U.S. at 584 (opinion of White, J.); id. at 623 n.15 (opinion of Marshall, J.); id. at 643 (opinion of Stevens, J., in which Brennan and Blackmun, JJ., joined)); see also Alexander v. Choate, 469 U.S. 287, 293 & nn.8-9 (1985). Title VI delegates such authority through Section 602, which “`authorize[s) and direct[s1′ federal departments and agencies that extend federal financial assistance to particular programs or activities `to effectuate the provisions of section 2000d [Section 601] . . . by issuing rules, regulations, or orders of general applicability.”‘ Powell v. Ridge, 189 F.3d 387, 392-93 (3d Cir. 1999) (quoting 42 U.S.C. § 2000d-1). Here, plaintiffs’ claim of disparate impact is based on a regulation promulgated by the former Department of Housing, Education and Welfare (“HEW”), predecessor to the current Department of Education, which provides that:

A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.

34 C. F. R. § 100.3 (b) (2) . 1. Private Right of Action Under Title VI Regulations As a preliminary matter, the Court notes that the Second Circuit has not yet decided the issue of whether a private right of action exists for disparate impact claims brought under Title VI regulations. Just recently, the Second Circuit noted that the issue was an unresolved one, yet declined to address it. See New York City En vtl. Justice Alliance v Giuliani, 214 F.3d 65, 73 (2d Cir. 2000). In Justice Alliance, the court noted that the Eleventh and Third Circuits have held that a private right of action does indeed exist under such regulations. Id. (citing Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) & Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999)). The court then went on to state that “it may be difficult for a plaintiff to establish that Congress intended to create a private right of action under 602 of Title VI, [but] this is an issue that we need not and do not reach.” Id. Though defendants do not argue that no private right of action exists under the HEW regulations, they do point out in a footnote of their brief that “[t]here is a `serious question’ whether a private right of action exists for disparate impact claims under the Title VI regulations.” (Defs.’ Br. at 6 n.3 (quoting South Bronx Coalition for Clean Air Inc. v. Conroy, 20 F. Supp. 2d 565, 572 (S.D.N.Y. 1998)).) 6 Though the issue has not been briefed by the parties, the Court finds the reasoning of the Third Circuit in Powell v. Ridge, 189 F.3d at 397-400, to be especially persuasive on this issue, and holds that a private right of action under the HEW regulations does exist. a. “Criteria or Method of Administration” To ultimately prevail on a claim under Title VI regulations:

A plaintiff . . . must make a prima facie showing that the alleged conduct [has] a disparate impact. Once such a showing has been made, the burden shifts to the defendant to demonstrate the existence of a substantial legitimate justification for the allegedly discriminatory practice. If the defendant sustains this burden, the plaintiff may still prove his case by demonstrating that other less discriminatory means would serve the same objective.

New York Urban League. Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (internal citations and quotations omitted). However, for a disparate impact claim to survive the current motion to dismiss, “all that the plaintiff must do is plead that a facially neutral practice’s adverse effects fall disproportionately on a group protected by Title VI.” Powell v. Ridge, 189 F.3d at 394. Defendants argue that plaintiffs’ motion must be dismissed because plaintiffs have failed to allege any actionable criteria or method of administration employed by the defendants which has a disparate impact on minorities. Indeed,

[t]he Regulations are not violated by proof that the educational services provided by a school system are disproportionately less beneficial to members of one race than another unless the reason for that disparate impact is that the [defendant] selected discernable administrative policies that, although facially neutral, are the functional equivalent of purposeful racial discrimination.

Grimes v. Sobol, 832 F. Supp. 704, 710 (S.D.N.Y. 1993), a ‘d, 37 F.3d 857 (2d Cir. 1994) (emphasis added). A method of administration or discernible administrative policy may involve a policy of inaction as easily as affirmative conduct. The Complaint adequately alleges that defendants have adopted a policy of nonenforcement of legal mandates evident in five specified areas: certified teachers, remedial instruction, school facilities and grounds, libraries, and regents courses and diplomas. The Complaint also adequately alleges that this policy has had a disparate impact on high-minority schools. “To survive a motion to dismiss, plaintiffs need merely plead sufficient allegations to put the defendants on notice of what they intend to prove at trial.” Powell v. Ridge, 189 F.3d at 397. Plaintiffs have done so. Whether defendants’ alleged policy of nonenforcement indeed exists and, if so, is justified by the circumstances, financial or otherwise, is a question for a later stage of the proceedings. B. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Plaintiffs seek certification of a class defined as follows:

all children attending the approximately 150 New York State public schools located outside New York City that the New York State Education Department classifies as “high-minority” by virtue of the fact that more than 80% of the students in the school are African-American, Latino, or otherwise non-Caucasian.

(Pls.’ Br. at 1; see also Compl. ¶ 81.) The party seeking certification bears the burden of establishing that the requirements of Rule 23 are satisfied. Sharif v. New York Ed. Dep’t, 127 F.R.D. 84, 87 (S.D.N.Y. 1989). This Court may grant certification only after a “rigorous analysis” of whether the Rule 23 requirements have been satisfied. General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). At the same time, plaintiffs’ allegations are accepted as true, and the Court must “refrain from conducting an examination of the merits when determining the propriety of class certification.” Weigmann v. Glorious Food. Inc., 169 F.R.D. 280, 284 (S.D.N.Y. 1996). “[B]ecause courts are given discretion to tailor the scope of the class later in the litigation, liberal consideration of the requirements for class certification is permitted in the early stages of the litigation.” Id. Indeed, “if an error is to be made with respect to class certification, it is to be `in favor and not against the maintenance of a class action.”‘ Sharif, 127 F.R:D. at 87 (quoting Gordon v. Hunt, 98 F.R.D. 573, 577 (S.D.N.Y. 1983)). For their class to be certified, plaintiffs must satisfy all of the requirements of Rule 23 (a) and must fit within one of the three categories of Rule 23 (b). See Marisol v. Giuliani, 126 F.3d 372, 375-76 (2d Cir. 1997). Plaintiffs seek certification under Rule 23 (b)(2). 1. Rule 23(a) Requirements Under Rule 23(a):

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

a. Numerosity Defendants do not challenge the numerosity requirement, which is clearly satisfied by the proposed class of over 80,000 students attending high-minority schools outside New York City. b. Commonality The purpose of the requirement of commonality, as well as of typicality, is “to ensure that `maintenance of a class action is economical and [that] the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.”‘ Marisol, 126 F.3d at 376 (quoting Falcon, 457 U.S. at 157 n.13). “The commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact.” Id. Plaintiffs identify a common question of law as “whether the defendants’ failure to enforce and to assure compliance with various mandates pertaining to the provision of educational services is having a disparate impact on high minority schools so as to violate Title VI.” (Pls.’ Br. at 17.) They also identify common questions of fact as to “whether the defendants in fact are failing to enforce and assure compliance with those mandates and whether such failure is having a disparate impact upon highminority schools.” Id. Defendants argue that there is no common question of law because “[p]laintiffs appear not to assert one theory of liability, but at least five, and there are genuine questions as to which of these five theories of liability would properly be applicable to which of the proposed 80,000 class members.” (Defs.’ Br. at 13). Defendants also argue that, as to common questions of fact, “certification would require fact-specific inquiries concerning the differential status and conditions of an estimated 80,000 plaintiffs attending more than 150 high minority schools, in order to determine whether all or even most of those schools can be appropriately included in the class.” (Id. at 10-11.) This Court disagrees. As plaintiffs note, the pinpointing of five specific areas of defendants’ alleged policy of nonenforcement, or the possibility that that policy does not affect every high-minority school, “does not undermine the commonality of their claim that defendants have a unitary policy of not enforcing and complying with certain educational mandates,” (Pls.’ Reply Br. at 6), in violation of the HEW regulations. This Court finds ample support in the Second Circuit’s decision in Marisol. There, the district court certified a class of children challenging the administration of the New York City child welfare system. The plaintiffs not only challenged various aspects of the welfare system, but also brought claims under “different statutory, constitutional and regulatory schemes.” Marisol, 126 F.3d at 376-77. The Second Circuit, in affirming certification, noted the district court’s reasoning that:

The unique circumstances of each child do not compromise the common question of whether, as plaintiffs allege, defendants have injured all class members by failing to meet their federal and state law obligations. Indeed, as plaintiffs argue, the actions or inactions of defendants are not isolated or discrete instances but, rather, form a pattern of behavior that commonly affects all of the proposed class members.

Id. at 377 (quoting 929 F. Supp. 662, 690-91 (S.D.N.Y. 1996)). The commonality noted in Marisol is strikingly similar to the commonality which plaintiffs in this case have noted. Indeed, this case presents an even stronger case for certification, as we deal only with a single claim under the Title VI regulations. Thus, the commonality requirement is met. c. Typicality “Typicality . . . requires that the claims of the class representatives be typical of those of the class, and `is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.'” Marisol, 126 F.3d at 376 (quoting In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992)). The Court finds that the typicality requirement is satisfied for substantially the same reasons the commonality requirement is met: the State’s alleged nonenforcement of legal mandates provides the relevant course of events, and each named plaintiff makes the similar legal argument that this nonenforcement has a disparate impact on high-minority schools. Defendants contest typicality because plaintiffs “do not aver or establish that all or most of the named plaintiffs or all or most of the 24 schools they attend suffer from the five specific forms of inadequacy that are said to characterize high minority schools generally.” (Defs.’ Br. at 7.) Plaintiffs need make no such showing. As the Third Circuit has recognized:

cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims Actions requesting declaratory and injunctive relief to remedy conduct directed at the class clearly fit this mold.

Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) (internal citations omitted). In this case, plaintiffs sufficiently allege that defendants nonenforcement disparately impacts high-minority schools and that each of the named plaintiffs attends a high minority school. (See Compl. ¶ 8-62.) The court sees no need at this point for an inquiry into the specific conditions at every high-minority school attended by a named plaintiff. d. Adequacy or Representation “To establish adequacy of representation, plaintiffs must show (1) that plaintiffs’ counsel is competent to handle the case and (2) that there are no conflicts of interests among the class members.” Weigmann v. Glorious Food. Inc., 169 F.R.D. 280, 286 (S.D.N.Y. 1996). Defendants do not challenge the competency of plaintiffs’ counsel. They do, however, argue that conflicts likely exist between class members because “it is reasonable to anticipate that class members who are students at a high minority school particularly suffering in one regard, but not in another, may have remedial interests that conflict with other class members who, by reason of a different prevalent deficiency at their school, favor quite a different remedy.” (Defs.’ Br. at 14.) As did the district court in Marisol, this Court “is inclined to take a much broader view of the relief sought in the instant case.” 929 F. Supp. at 692, aff’d, 126 F. 3d 372 (2d Cir. 1997). In Marisol, Judge Ward reasoned that:

[A]ll [plaintiffs] seek declaratory and injunctive relief which would require defendants to comply with federal and state law. Plaintiffs do not ask this Court to adjudicate individual claims or to establish policies with respect to any particular situation. Rather, plaintiffs allege systemic failures which, if remedied, would result in defendants providing plaintiffs with services appropriate their individual situations and regardless of outcome. The Court fails to see how institutional reform such as this raises potential conflicts among class members such that certification should be denied.

Id. at 692. Likewise, in the present case plaintiffs’ claim can fairly be characterized as seeking systemic injunctive relief which would benefit all class members. Thus, there are no conflicting interests which prevent certification. 2. 23 (b) (2) Rule 23 (b) (2) demands that:

the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

Fed. R. Civ. P. 23 (b) (2). The Second Circuit has noted that “pattern of racial discrimination cases for injunctive relief against state or local officials for injunctive relief are the `paradigm’ of [Rule] 23 (b) (2) class action cases.” Comer v. Cisneros, 37 F.3d 775, 796 (2d Cir. 1994) . Here, plaintiffs have adequately alleged that defendants’ policy of nonenforcement is generally applicable to the proposed class. 3. Defendants’ Other Objections to Certification In addition to challenging requirements set forth by Rule 23, defendants offer other arguments against the proposed class First, they argue that the proposed class is under-inclusive because it excludes students from high-minority schools in New York City. (See Defs.’ Br. at 20-21.) Defendants argue that plaintiffs must justify this exclusion, though they provide no specific reason why such a justification is necessary. As plaintiffs note, “[t] hat the putative class excludes highminority schools-in New York City has no bearing on whether the defendants have acted on grounds generally applicable to the class, as required by section (b) (2) of Rule 23.” (Pls.’ Reply Br. at 9.) The Court also rejects Defendants’ further argument that the class is overbroad simply because it includes students from Yonkers city schools, which are already subject to federal court supervision under United States v. Yonkers Bd. of Educ., 80 Civ. 6761 (LBS) (S.D.N.Y.). (See Defs.’ Br. at 22.) However, the Court does note that the class appears to be overbroad in a sense not noted by defendants, in that the proposed class includes all students attending high-minority schools. In a disparate impact claim such as this, it would seem more appropriate that the class include only minority students attending those schools. The class is thus accordingly limited. 7 Finally, defendants argue that certification is unnecessary because, if plaintiffs are successful on their claim, any relief will “benefit the entire class of students in New York State schools, even without certification.” (Id. at 22-23.) However, certification here allows for the continuation of this case in light of the likelihood that the named plaintiffs’ claims will become moot before the conclusion of this litigation. See, e.g., Finberg v. Sullivan, 634 F.2d 50, 64 (3d Cir. 1980) (en banc) (noting that in light of mootness concerns, certification ensured that the claims of the “unnamed class members present live controversies.”). For the above reasons, then, the Court holds that class certification is proper. III. CONCLUSION In sum, (1) Defendants’ motion to dismiss the complaint is denied; and (2) The following class if hereby certified: All African-American, Latino, or otherwise non-Caucasian children attending New York State public schools located outside New York City that the New York State Education Department classifies as “high-minority” by virtue of the fact that more than 80% of the students in the school are African-American, Latino, or otherwise non-Caucasian. SO ORDERED. LAWRENCE M. McKENNA U.S.D.J. DATED: August 17, 2000 New York, New York (1) “High-minority” public schools are defined as those with over 80 percent minority enrollment. ( Compl. ¶ 2.) (2) Students from high-minority schools in New York City are currently seeking relief in state court. See Campaign for Fiscal Equity. Inc. v. State, Index No. 93-111070 (NY. Co. Sup. Ct.). (3) “Low-minority” schools are those with less than 20 percent minority enrollment. (Compl. ¶ 2.) (4) The Complaint also alleges that defendants’ system for financing education is discriminatory. (See Compl. 179-211.) However, in their brief in opposition to defendants’ motion to dismiss, plaintiffs concede that the Complaint “does not include any Title VI claim against the defendants’ finance system.” (See Pls.’ Br. at 22.) (5) Section 601 of Title VI provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. (6) Defendants contend that in this case, “as in South Bronx, the Court need not decide the question `because plaintiff’s allegations are insufficient to support even a prima facie case of “disparate impact” discrimination under Title VI.”‘ (Defs.’ Br. at 6 n.3 (citing South Bronx, 20 F. Supp. 2d at 572).) This Court disagrees with that proposition, as section A.2. of this opinion explains. (7) This issue was not briefed by either party. If there should be reason to modify the class definition approved herein, that can be done.

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