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ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS v. CALIF

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


September 17, 1996

The ASSOCIATION OF MEXICAN-AMERICAN EDUCATORS ("AMAE"), the CALIFORNIA ASSOCIATION FOR ASIAN-PACIFIC BILINGUAL EDUCATION ("CAFABE"), OAKLAND ALLIANCE OF BLACK EDUCATORS, ("OABE"), on behalf of themselves, their members, and all others similarly situated; SARA MACNEIL BOYD; SAM GENIS; MARTA LECLAIRE; ANTOINETTE WILLIAMS; DIANA KWAN; TOUA YANG, ROBERT WILLIAMS; and AGNES HAYNES, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
The STATE OF CALIFORNIA and The CALIFORNIA COMMISSION ON TEACHER CREDENTIALING, Defendants.

The opinion of the court was delivered by: ORRICK

OPINION AND ORDER

 To have the privilege of teaching in a public school in California, a person must pass a test in reading, writing, and mathematics known as the California Basic Educational Skills Test ("CBEST"), given by the California Commission on Teacher Credentialing ("CTC"). The CBEST was mandated by the California legislature in response to a public outcry about the perceived incompetence of many public school teachers.

 Plaintiffs, representing a class of minority would-be teachers consisting of African-Americans, Latinos, *fn1" and Asians, bring this action against the State of California ("State") and the CTC under Titles VI and VII of the Civil Rights Act of 1964, claiming that they are discriminated against by the insistence of defendants that they take and pass the CBEST before becoming public schoolteachers.

 For the reasons set forth in this Opinion, which constitutes the Court's findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure, the Court rules in favor of defendants. *fn2"

 I.

 Plaintiffs are the Association of Mexican-American Educators ("AMAE"), the California Association for Asian-Pacific Bilingual Education, the Oakland Alliance of Black Educators, and eight individuals. In this class action, they challenge the use of the CBEST as a requirement for certification to teach in the California public schools. Plaintiffs contend that the CBEST requirement violates Titles VI *fn3" and VII of the Civil Rights Act of 1964 because it has a disparate impact on African-Americans, Latinos, and Asians. Defendants, while conceding that the CBEST results in some adverse impact on the plaintiff class, argue that the test is valid because it tests job-related skills and is justified by business necessity. This case began thirteen years ago, shortly after the CBEST was first administered in December 1982. *fn4"

 Effective February 1, 1983, the State legislature barred the CTC from issuing "any credential, permit, certificate, or renewal of an emergency credential to any person to serve in the public schools unless the person has demonstrated proficiency in basic reading, writing, and mathematics skills." Cal. Educ. Code § 44252(b). The legislature authorized the Superintendent of Public Instruction ("Superintendent") to "adopt an appropriate state test to measure proficiency in these basic skills." Id. § 44252(c). The CBEST was the result. *fn5"

 The CBEST is a pass-fail examination. It contains three sections -- reading, writing, and mathematics. The reading and mathematics sections each contain 40 multiple-choice questions. *fn6" The writing portion consists of two essay questions. The CBEST has undergone one major revision: The "higher order" math skills, such as geometry, were removed from the mathematics subtest prior to the first administration of the revised CBEST in August 1995.

 A passing score on the CBEST is required for elementary school teachers, who hold multiple-subject credentials, and for secondary school teachers, who hold single-subject credentials in the areas of agriculture, art, business, English, foreign languages, health science, home economics, industrial and technology education, mathematics, music, physical education, science, and social science. See Cal. Educ. Code §§ 44256, 44257, 44259. The CBEST is also required for numerous nonteaching positions, including administrators, id. § 44270, school counselors or "pupil personnel services" positions, id. § 44266, librarians, id. § 44269, and school nurses, id. § 44267.5.

 The CBEST is administered six times a year, and there is no limit on the number of times a candidate may sit for the examination. Furthermore, a candidate keeps his or her best score on any given section and need only retake the failed sections; once the candidate has accumulated a passing score on all three sections, the candidate has passed the CBEST. See id. § 44252.5(d).

 In this case, the plaintiff class was certified by the Court as follows:

 

All Latinos, African Americans and Asians who have sought or are seeking California public school credentials and certificated positions who have been, are being, or will be adversely affected in their ability to obtain credentials and certificated positions by California Basic Educational Skills Test results.

 (See Mem. Decision & Order filed July 19, 1994, at 22, as amended by Order filed Oct. 7, 1994.)

 The eight individual plaintiffs in this lawsuit are all members of minority groups, seeking teaching or administrative credentials, who contend they were discriminated against as a result of the CBEST requirement. Each individual plaintiff has taken and failed the CBEST one or more times. Three of the plaintiffs eventually passed the CBEST.

 Plaintiff Sara MacNeil Boyd ("Boyd"), an African-American woman, took and failed the CBEST four times. Boyd received her bachelor's degree in commerce from North Carolina Central University in 1955. She has credentials for secondary education and counseling/pupil personnel services. She completed both a master's degree in education and an administrative credentialing program at San Jose State University, but was unable to get an administrative credential because she could not pass the CBEST. By obtaining annual CBEST waivers from the CTC, however, Boyd was able to serve as a vice-principal from 1988 until her retirement in 1995.

 Plaintiff Sam Genis ("Genis"), a Latino man, took and failed the CBEST four times. Genis earned his associate's degree from East Los Angeles College in 1976. He then obtained a bachelor's degree in Spanish from California State University, Los Angeles in 1979. From 1980 to 1983, he taught at Rio Vista Elementary School in the El Rancho Unified School District, but was unable to continue there because he had not passed the CBEST. He has since worked in private schools.

 Plaintiff Agnes Haynes ("Haynes"), an African-American woman, took and failed the CBEST six times between 1991 and 1993, but subsequently passed. Haynes received a bachelor's degree in secondary education from Grambling College in Louisiana in 1964. She completed a master's degree in educational administration and an administrative credentialing program at San Francisco State University in 1995. By obtaining CBEST waivers, Haynes worked as an eighth-grade English and social studies teacher for two years in the Ravenswood City School District. She subsequently lost her teaching position because she had not passed the CBEST. She has since passed the test.

 Plaintiff Diana Kwan ("Kwan"), an Asian woman, took and failed the CBEST four times. Kwan obtained an associate's degree from the City College of San Francisco in 1988 and a bachelor's degree in liberal studies from San Francisco State University in 1991. She has not entered a teacher preparation program because the program of her choice requires passage of the CBEST for admittance. *fn7" Kwan currently works as a flight attendant for United Air Lines.

 Plaintiff Marta Leclaire ("Leclaire"), who is Latina, took and failed the CBEST four times. Leclaire received an associate's degree from City College of San Francisco in 1972. She earned her bachelor's degree at San Francisco State University in developmental psychology in 1976. She completed a teacher credentialing program in multiple subjects/elementary education at San Francisco State University in 1978, but could not obtain a multiple-subject credential because she has not passed the CBEST. Leclaire does possess a general school services credential, which allows her to teach in child centers.

 Plaintiff Antoinette Williams, an African-American woman, took the CBEST once in 1992 and failed it. She received her bachelor's degree in sociology from Fontbonne College in Missouri in 1979. She seeks a substitute teaching credential but has not been able to obtain one because she has not passed the CBEST.

  Plaintiff Robert Williams ("Williams"), an African-American man, took the CBEST ten times and passed all three sections by August 1994. Williams obtained a bachelor's degree in physical education from Linfield College in Oregon in 1974. In 1975, he earned a master's degree in physical education from Stanford University and obtained a credential to teach physical education. Williams later completed an administrative credentialing program at California State University, Hayward, but was unable to obtain an administrative credential from the CTC until he passed the CBEST in 1994. Williams has worked in the San Leandro Unified School District since 1986, first as a physical education teacher, later as an assistant principal for two years, and most recently as a teacher on special assignment in human relations for the district.

 Plaintiff Toua Yang ("Yang"), an Asian male, took and failed the CBEST seventeen times between 1991 and 1995. He has since passed the test. Yang received an associate's degree from Merced College in 1989. He earned a bachelor's degree in liberal studies from California State University, Sacramento in 1992. He also completed a teacher credentialing program at California State University, Sacramento, but was not credentialed because he did not pass the CBEST test (until 1995). Yang has served as a substitute teacher in the Sacramento City Unified School District since 1994.

 The Court conducted the trial in two phases. The first phase consisted of the testimony of fact witnesses and took place over five days in February and March 1996. The second phase, during which expert testimony was presented, took place from June 3 to June 19, 1996.

 II.

 A.

 1.

 

"The direction in which education starts a man will determine his future life." Plato, The Republic bk. IV, 425-B.

 Teachers occupy a special position of trust in our society. They are entrusted with the education of our children, the importance of which one would be hard-pressed to exaggerate. A child's education is crucial not only to that child's individual prospects; in the aggregate, the education of all children has a profound effect on the future of the state, and indeed the country, in which we live. "A teacher affects eternity; he can never tell where his influence ends." Henry Brooks Adams, The Education of Henry Adams (1907).

 As has often been observed, a teacher's job involves far more than simply instruction by rote. Teachers have the power to inspire in their students a love of learning and of knowledge, even a will to achieve and to fulfill their potential. "In shaping the students' experience to achieve educational goals, teachers by necessity have wide discretion over the way course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring." Ambach v. Norwick, 441 U.S. 68, 78, 60 L. Ed. 2d 49, 99 S. Ct. 1589 (1979).

 At the same time, however, the importance of the basic skills cannot be ignored. Teachers are also role models. Students learn not only what they are taught directly, but also what they observe. "Part of a teacher's responsibility is to set an example for his students and to act as a role model, a responsibility made necessary by the fact that students spend more time with their teachers than with any persons other than immediate family members and closest friends." Hoagland v. Mount Vernon Sch. Dist. No. 320, 23 Wash. App. 650, 597 P.2d 1376, 1382 (Wash. App. 1979) (Dore, J., dissenting), aff'd, 95 Wash. 2d 424, 623 P.2d 1156 (Wash. 1981). Schoolteachers who use improper grammar or spelling, or who make mistakes in simple calculations, model that behavior to their students -- much to the detriment of their education. The same can be said for school principals, librarians, and guidance counselors.

 Given the significance of the teacher's role, the State has an obligation to the public "to maintain the highest standards of fitness and competence for the weighty task of educating young impressionable students." Id. As the Supreme Court has observed:

 

Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his own training is [inadequate].

 McLaurin v. Oklahoma State Regents for Higher Educ., 339 U.S. 637, 641, 94 L. Ed. 1149, 70 S. Ct. 851 (1950). What was true nearly fifty years ago remains true today, and has perhaps become even more urgent. Our economy has largely evolved from one driven by manual labor to one driven by mental labor, and literacy -- of all kinds -- has grown increasingly critical.

 2.

 

"If you improve a teacher, you improve a school." Willie v. Commissioner, 57 T.C. 383, 389 (1971).

 Against this backdrop, the Court must consider the CBEST. The Court is called upon to decide whether teachers in California's public schools -- all of whom have college degrees -- should be required to pass a test of precollege level skills before they are allowed to teach.

 Though the precise grade-level of the items on the CBEST is subject to some debate, it is nonetheless clear that it tests at most secondary-level, precollege skills. For example, the most difficult mathematics question on the August 1995 CBEST -- judged the most difficult because the most examinees answered it incorrectly -- was as follows:

 

How many students at a school can be served a half-pint of milk from 5 gallons of milk? *fn8"

 

A. 80

 

B. 60

 

C. 40

 

D. 20

 

E. 10

 The CBEST is self-evidently a test of basic skills in reading, writing, and mathematics.

 As will be discussed in detail in this Opinion, the Court finds that plaintiffs have met their burden of proving that the CBEST has an adverse impact on the plaintiff class. Defendants, however, have successfully rebutted plaintiffs' case by showing that the CBEST is a valid, job-related test for the teaching and nonteaching positions in the public schools for which it is a requirement. In response, plaintiffs have failed to show the existence of an alternative selection device that would adequately replace the CBEST.

 The CBEST is not a cure-all for the ills of California's public schools, but it is not meant to be. It is simply a threshold measure. *fn9" The State is entitled to ensure that teachers and others who work in the public schools possess a minimal level of competency in basic reading, writing, and math skills before they are entrusted with the education of our children.

 B.

 Plaintiffs contend that the CBEST has an adverse impact on the minority groups represented in the plaintiff class: African-Americans, Latinos, and Asians. According to plaintiffs, the CBEST is not a valid, job-related measure of all the teaching and nonteaching jobs for which it is required.

 "In enacting Title VII, Congress required 'the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.'" Dothard v. Rawlinson, 433 U.S. 321, 328, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971)). *fn10" Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." *fn11" Griggs, 401 U.S. at 431. Thus, in a disparate impact case such as this one, plaintiffs need not show that defendants intended to discriminate against them; they need only prove that a facially neutral employment practice, viz., the CBEST, has had a significant adverse impact on groups protected by Title VII. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986-87, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). Nevertheless, "nothing in [Title VII] precludes the use of testing or measuring procedures; obviously they are useful." Griggs, 401 U.S. at 436. *fn12"

 As a threshold matter, the Court must consider the appropriate standard for the parties' respective burdens of proof. Over the years, the burdens of proof applicable to Title VII disparate impact cases have changed.

 Prior to the Supreme Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989), the allocation of proof in a disparate impact case such as this was described by the Ninth Circuit as follows. *fn13" First, the plaintiff "must establish that a facially neutral employment practice produces a significant adverse impact on a protected class." Clady v. County of Los Angeles, 770 F.2d 1421, 1427 (9th Cir. 1985), cert. denied, 475 U.S. 1109, 89 L. Ed. 2d 915, 106 S. Ct. 1516 (1986). If the plaintiff meets that burden, then "the burden shifts to the employer to validate the selection device, that is, to show that it has 'a manifest relationship to the employment in question.'" Id. at 1427 (quoting Griggs, 401 U.S. at 432).

 If the employer fails to meet its burden, then the employer's "use of the selection device will be deemed a Title VII violation." 770 F.2d at 1428. If the employer succeeds in validating the selection device, however, the plaintiff may nonetheless "rebut the defendant's evidence by showing that although job-related, the test does not constitute a business necessity because an alternative selection device exists which would have comparable business utility and less adverse impact." Id.

 In Wards Cove, the Supreme Court repudiated the widespread assumption that the burden of proof shifts entirely to the defendant during the second phase of a disparate impact case. Instead, the Court held that "the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff." 490 U.S. at 659. In addition, the Court appeared to reduce the defendant's burden by requiring only a showing of "business justification," viz., that "a challenged practice serves, in a significant way, the legitimate employment goals of the employer," id. at 658-59 (emphasis added), rather than a showing of "business necessity " as required under Griggs. 409 U.S. at 431 (emphasis added). The Court emphasized that "there is no requirement that the challenged practice be 'essential' or 'indispensable' to the employer's business for it to pass muster." Wards Cove, 490 U.S. at 659.

 Though the Supreme Court characterized its decision as a mere clarification of existing law, see id. at 659-60, it came as a surprise to the lower federal courts and was widely viewed as increasing the plaintiff's burden in disparate impact cases. See, e.g., Graffam v. Scott Paper Co., 870 F. Supp. 389, 392 & n.4 (D. Me. 1994), aff'd, 60 F.3d 809 (1st Cir. 1995); Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 321 & n.20 (N.D. Cal. 1992); see also Wards Cove, 490 U.S. at 661 (Blackmun, J., dissenting); id. at 668-72 (Stevens, J., dissenting).

 Partly in response to the Wards Cove decision, Congress passed the Civil Rights Act of 1991 ("1991 CRA"), which became effective on November 21, 1991. The 1991 CRA restored the proof allocation generally applied in disparate impact cases prior to Wards Cove. The statute describes the burdens of proof as follows:

 

An unlawful employment practice based on disparate impact is established . . . only if --

 

(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

 

(ii) the complaining party [makes a showing of] an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

 42 U.S.C. § 2000e-2(k)(1)(A) (1994).

 In this case, defendants' conduct, which began in late 1982 and continues into the present, spans all three eras: (1) pre-Wards Cove from 1982 to 1989, (2) Wards Cove, from June 5, 1989, to November 21, 1991, and (3) the 1991 CRA, from November 21, 1991, to the present. The case, however, was filed on September 23, 1992, well after the 1991 CRA's effective date. Thus, the Court must determine whether to apply the burdens of proof established by the 1991 CRA to this case.

 Although the Supreme Court considered the issue of the 1991 CRA's retroactivity in Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), that case is distinguishable. The only provision at issue in Landgraf was § 102, which provides a right to recover compensatory and punitive damages and a right to jury trial. The Court held that those sections did not apply to a case that was on appeal when the 1991 CRA became effective.

 Landgraf thus did not reach the issue of whether the burden of proof provisions of the 1991 CRA apply retroactively. The federal courts have divided on the issue. A few courts have refused to apply the 1991 CRA, reasoning that the burden of proof provisions "affect the liability of defendants" and therefore "cannot be retroactively applied in cases . . . where alleged discriminatory conduct occurred prior to" the 1991 CRA's effective date. Matthews v. Runyon, 860 F. Supp. 1347, 1355 (E.D. Wis. 1994); see also Houghton v. Sipco, Inc., 38 F.3d 953, 959 (8th Cir. 1994) (holding that burden of proof under Wards Cove, not 1991 CRA, applies to case filed before effective date of 1991 CRA).

 One court even interpreted Landgraf to stand for the blanket proposition that no provision of the 1991 CRA applies retroactively. Jones v. Pepsi-Cola Metropolitan Bottling Co., 871 F. Supp. 305, 309 n.11 (E.D. Mich. 1994). Such a reading cannot be reconciled with the language of Landgraf itself, however, in which the Supreme Court explained:

 

There is no special reason to think that all the diverse provisions of the Act must be treated uniformly for [retroactivity] purposes. To the contrary, we understand the instruction that the provisions are to "take effect upon enactment" to mean that courts should evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and pre-enactment conduct.

 114 S. Ct. at 1505; see also id. at 1494-95.

 Other courts, including this Court, have concluded that the burden of proof provision does apply to cases that were pending at the time of or filed after the effective date of the 1991 CRA. See Graffam, 870 F. Supp. at 393-94; Housey v. Carini Lincoln-Mercury, 817 F. Supp. 762, 766-68 (E.D. Wis. 1993); Stender, 780 F. Supp. at 1308.

 The Court finds that the allocation of proof provision of the 1991 CRA applies to this case because the provision effected a procedural change, rather than a change in substantive rights. As the Court explained in Landgraf :

 

Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. . . . Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.

 114 S. Ct. at 1502. The central policy underlying the presumption against statutory retroactivity -- "the unfairness of imposing new burdens on persons after the fact" -- is absent here. Id. at 1500. This is not a case in which there exist "concerns of unfair surprise and upsetting expectations," id. at 1506 n.35, or where "predictability and stability are of prime importance." Id. at 1500. The applicable burden of proof does not affect parties' conduct prior to litigation. To the contrary, a burden of proof is implicated only at trial, long after the conduct has taken place. *fn14" Nor does the burden of proof affect defendants' liability in a substantive way: "It does not make unlawful conduct that was lawful when it occurred," id. at 1506, and it does not "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at 1505. Therefore, the Court will follow the general rule that "a court is to apply the law in effect at the time it renders its decision." Id. at 1496 (quoting Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974)).

 In any event, it makes no difference which standard of proof the Court employs in this case. The Court's determination that the 1991 CRA burdens of proof apply has no effect on the outcome of the suit. Even under the heavier burden of proof imposed by the 1991 CRA, defendants prevail. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117-18 (11th Cir. 1993).

 C.

 Plaintiffs bear the burden of proving that the CBEST produces "a significant adverse impact" on the plaintiff class. Clady, 770 F.2d at 1427 (citing Teal, 457 U.S. at 446). Plaintiffs can meet this burden through reliable statistics. Id. The Court finds that plaintiffs have met their burden of showing adverse impact.

 Both parties in this case have used the so-called "80-percent rule" prescribed by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. pt. 1607 (1978) ("Uniform Guidelines"), which were promulgated jointly by the EEOC, the Civil Service Commission, the Department of Labor, and the Department of Justice. 29 C.F.R. § 1607.1(A). The Uniform Guidelines are not binding on the Court, but they do have some persuasive force. Bouman v. Block, 940 F.2d 1211, 1225 (9th Cir.), cert. denied, 502 U.S. 1005, 116 L. Ed. 2d 658, 112 S. Ct. 640 (1991).

 Under the Uniform Guidelines, "[a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate" is considered a showing of adverse impact. 29 C.F.R. § 1607.4(D). Thus, under the 80-percent rule, plaintiffs must show a selection rate (or pass rate) for each of the groups represented by the plaintiff class that is less than 80 percent of the selection rate for non-Latino Caucasians ("whites"), *fn15" who (as a group) have the highest pass rates on the CBEST. For example, suppose that ethnic group A, the highest-scoring group on a test, has a pass rate of 50 percent. Applying the 80-percent rule, 80 percent of 50 percent (group A's selection rate) equals 40 percent. Thus, ethnic group B can show adverse impact if less than 40 percent of the group passes the test.

 The undisputed evidence presented at trial by both parties showed that, under the 80-percent rule, an adverse impact exists with respect to first-time CBEST-takers who are grouped according to the class definition: Latinos, African-Americans, and Asians. Therefore, plaintiffs have made their prima facie case.

 Defendants do not quarrel with the statistics; nevertheless, they argue that the CBEST does not have an adverse impact on all members of the plaintiff class. Defendants contend that a few subgroups, particularly English-fluent Asians, perform as well or better than whites on certain parts of the CBEST. Defendants also contend that cumulative, as opposed to first-time, pass rates should be used, and that these rates show no adverse impact for any group in the plaintiff class.

 Plaintiffs object to defendants' approach to assessing adverse impact. They argue that all Asians are properly treated as a single group, whether they are fluent in the English language or not, and whether they are, for instance, Chinese, Filipino, Hmong, or Pacific Islander. According to plaintiffs, the appropriate analysis considers first-time pass rates of the CBEST as a whole by each of the three groups defined in the plaintiff class (African-Americans, Latinos, and Asians) as compared to whites. The Court agrees.

 Defendants have cited no authority for the proposition that the plaintiff class should be subdivided differently from the way in which the groups are defined by the Court's order certifying the class, viz., African-Americans, Latinos, and Asians. What little guidance the Court could discover in this area supports grouping class members by race or ethnicity rather than by other characteristics (e.g., English fluency). For example, the Uniform Guidelines provide that employers should keep records on "the following races and ethnic groups: Blacks (Negroes), . . . Asians (including Pacific Islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), [and] whites (Caucasians) other than Hispanic." 29 C.F.R. § 1607.4(B). The definition of the plaintiff class conforms to this standard.

 Moreover, even if the Court were to adopt defendants' proposed subgroups, the Court would still find that the CBEST has an adverse impact on the entire plaintiff class. As discussed below, adverse impact is appropriately measured by the first time a candidate sits for the CBEST and fails it. Using that standard, defendants' proposed subgroups show an adverse impact under the 80-percent rule.

 Defendants also argue that adverse impact is properly determined with respect to the pass rate of each subpart of the test, rather than pass rate on the CBEST as a whole. For this contention, defendants cite Connecticut v. Teal, 457 U.S. 440, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982). Teal does not support defendants' argument.

 In Teal, the plaintiffs alleged that the defendant's written examination, which employees were required to pass in order to become permanent supervisors, had a disparate impact on African-Americans. In taking the next step and determining which of the employees who had passed the test should in fact be promoted, however, the defendant -- on the eve of trial -- adopted a kind of affirmative-action program and promoted a greater percentage of Blacks than whites. At trial, the defendant argued that "this 'bottom-line' result, more favorable to blacks than to whites, . . . should be adjudged to be a complete defense" to the plaintiffs' disparate impact claim. 457 U.S. at 444.

 The Supreme Court rejected the so-called "bottom-line" defense. In doing so, the Court emphasized that "Title VII prohibits 'procedures or testing mechanisms that operate as "built-in headwinds" for minority groups,'" and that "Congress' primary purpose was the prophylactic one of achieving equality of employment 'opportunities' and removing 'barriers' to such equality." Id. at 448-49. Under this standard, the Court concluded that "the examination given to [the plaintiffs] in this case surely constituted such a practice and created such a barrier." Id. at 449. As such, it was actionable under Title VII.

 Reviewing its precedents, the Supreme Court noted that it had "consistently focused on employment and promotion requirements that create a discriminatory bar to opportunities. This Court has never read [Title VII] as requiring the focus to be placed instead on the overall number of minority . . . applicants actually hired or promoted." Id. at 450. "The suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual [plaintiffs] the opportunity to compete equally with white workers on the basis of job-related criteria." Id. at 451. The Supreme Court in Teal thus held that a defendant employer cannot excuse the use of a nonjob-related barrier by showing that the promotional process as a whole resulted in a proportionally greater number of minority promotions than white promotions.

 Though Teal does not speak directly to the issue of whether each subpart of a test should be considered separately in analyzing disparate impact, Justice Brennan's opinion implied that a test should be viewed as a whole: "[The plaintiffs'] claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination . . . ." Id. at 452 (emphasis added).

 Here, as in Teal, the barrier imposed by defendants is the requirement that plaintiffs take and pass all three sections of a pass-fail examination. One must pass the whole CBEST in order to be eligible for employment or promotion. Thus, the selection occurs when a candidate passes or fails the CBEST as a whole. Id. How different groups perform on each subpart of the examination is therefore not directly relevant to the issue of adverse impact.

 The legislative history of the 1991 CRA also supports this finding:

 

When a decision-making process includes particular, functionally-integrated practices which are components of the same criterion, standard, method of administration, or test, . . . the particular, functionally-integrated practices may be analyzed as one employment practice.

 137 Cong. Rec. S15276 (daily ed. Oct. 25, 1991) (interpretive memorandum), reprinted in 1991 U.S.C.C.A.N. 549, 767.

 It is true, as defendants argue, that a candidate retains her highest score on each subpart every time she sits for the CBEST, and that the candidate may retake the test an unlimited number of times, as often as six times a year. Nonetheless, a candidate cannot obtain a job unless and until she has passed the CBEST -- and she does not pass the CBEST unless and until she passes not just one or two subtests, but all three sections. Each time that a candidate fails to pass the examination as a whole, that candidate is deprived of an employment or advancement opportunity. Kirkland v. New York State Dep't of Correctional Servs., 520 F.2d 420, 425 (2d Cir. 1975), reh'g denied, 531 F.2d 5 (2d Cir. 1975), cert. denied, 429 U.S. 823, 50 L. Ed. 2d 84, 97 S. Ct. 73 (1976); Richardson v. Lamar County Bd. of Educ., 729 F. Supp. 806, 815 (M.D. Ala. 1990), aff'd, 935 F.2d 1240 (11th Cir. 1991); see also Teal, 457 U.S. at 452; Bouman, 940 F.2d at 1225 (analyzing pass rates on three-part written examination as a whole); Clady, 770 F.2d at 1429 (analyzing pass rates on written examination as a whole as "a discrete selection device").

 Finally, defendants contend that adverse impact should be assessed in light of cumulative, rather than first-time, pass rates. *fn16" As the Court has just explained, however, the harm to a candidate occurs, if at all, each and every time the candidate sits for the CBEST and fails it. Each time the candidate does not pass, she is barred from an opportunity to become a teacher or to advance, for instance, to an administrative position. As this Court has noted once before, passing the CBEST "is the sine qua non of employment in California's public schools." Association of Mexican-American Educators v. California, 836 F. Supp. at 1551 (hereinafter "AMAE "). *fn17" Therefore, it is basically irrelevant to the issue of adverse impact that some, most, or nearly all of those who take the CBEST eventually pass. The loss of an employment opportunity occurs each and every time a candidate fails the test. See Teal, 457 U.S. at 452.

 The Court turns now to the evidence. Plaintiffs' expert, Dr. John Poggio, concluded that the first-time pass rates were as follows: Asians 53.0% African-Americans 37.7 Latinos 49.4 Whites 73.4

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