Supreme Court May Take Up New York City Teacher Exam

The Supreme Court is signaling that it may decide whether the teacher certification exam used by New York City illegally discriminates against minority applicants. Yesterday, the federal high court asked the Justice Department for its view on whether the court should take the case. The move doesn't necessarily mean that the Supreme Court will hear the dispute, but it is a sure sign that the justices are interested.

At issue is the Liberal Arts & Sciences Test, which teachers must pass in order to work full time in city schools. Although the city's Department of Education is the suit's defendant, the city actually has little to do with the test, which is controlled by the state. The suit, brought under Title VII of the Civil Rights Act of 1964, is on behalf of as many as 8,000 black and Hispanic current and former teachers, who stand to gain tens of millions of dollars in lost wages.

Last year, the 2nd U.S. Circuit Court of Appeals, which sits in Manhattan, allowed the suit to go forward. The city is asking the Supreme Court to review that decision. While claims that job tests can have a "disparate impact" among minority applicants are common, this case will test whether professional licensing examinations also can be struck down on those grounds.

What is bound to attract the interest of a wide range of employers is that the case also tests whether an employer can be sued for relying on a flawed but state-approved licensing exam. In this instance, the employer is the city's public school system, but Attorney General Cuomo argues that the 2nd Circuit decision also allows private employers to be sued in similar instances.

In one hypothetical, lawyers for Mr. Cuomo argue that the circuit decision "would permit a lawyer who failed the state bar exam to sue a private law firm because the bar exam has a disparate impact," according to a legal brief.

In an interview, a lawyer for the plaintiffs, Joshua Sohn at the firm DLA Piper, was dismissive of those concerns, saying, "We haven't seen those cases."

"Our case is exactly what Title VII was intended for: to protect against the use of a flawed instrument to make employment decisions," Mr. Sohn said.