OPINION AND ORDER
WALKER, District Judge:
This case raises the important question of whether New York State denies female students an equal opportunity to receive prestigious state merit scholarships by its sole reliance upon the Scholastic Aptitude Test ("SAT") to determine eligibility. To the Court's knowledge, this is the first case where female students are seeking to use the federal civil rights statute prohibiting sex discrimination in federally-funded educational programs to challenge a state's reliance on standardized tests. This case also presents a legal issue of first impression: whether discrimination under Title IX can be established by proof of disparate impact without proof of intent to discriminate.
After careful consideration, this Court finds that defendants are discriminating against female plaintiffs and their putative class in violation of Title IX and the equal protection clause of the U.S. Constitution. For the reasons set forth below, this Court enjoins the State Education Department and its Commissioner from awarding the merit scholarships at issue solely on the basis of the SAT.
I. The Present Action
In November, 1988, plaintiffs — ten high school students, individually and behalf of all others similarly situated, and two organizational plaintiffs
In essence, plaintiffs contend that the SED's reliance upon the SAT disproportionately impacts female students without advancing the legislature's purpose of recognizing and awarding superior high school achievement. Plaintiffs argue: "(1) the SAT was not designed to measure academic performance and achievement, and cannot appropriately be put to that use, (2) but even if it did, the SAT discriminates against female applicants for scholarships, because it underpredicts academic performance for females as compared to males." P.Mem. at 5.
On December 21, 1988, plaintiffs filed an order to show cause as to why this Court should not issue a preliminary injunction
On January 12, 1989, defendants submitted a cross-motion for an order dismissing the complaint on the grounds that the Court lacks subject matter jurisdiction, that venue is improper, and that the complaint fails to state a claim on which relief can be granted.
On January 23, 1989, at a hearing, the Court accepted amici briefs of the Educational Testing Service ("ETS") and the College Entrance Board, and the Hewlett School District, and heard the testimony of educational testing experts, college deans of admission, and SED administrators with knowledge of the SED's programs of scholarship and testing practices. The Court has carefully examined the submissions of the parties, assessed the credibility of the witnesses and reviewed word by word the hearing transcript.
A. Evolution of New York State Scholarship Awards
New York State, in one of the most extensive merit scholarship programs in the country, each year makes 26,000 academic achievement awards to New York's high school graduates. In order to understand the program's current purpose, a brief recitation of the program's evolution is appropriate.
1. Reliance Upon College Entrance Diplomas and Special Regents Examinations
New York State's scholarship program began in 1913, when the legislature first awarded 750 Regents Scholarships in the amount of $100 a year for a period of four years. Act approved Apr. 16, 1913, ch. 292, 1913 N.Y. Laws, § 527. At that time, the $100 stipend was sufficient to cover the tuition charged at most colleges in the State.
The 1913 law authorized the State Board of Regents to make all rules governing the award of the scholarships. Ch. 292, 1913 N.Y. Laws § 72. From 1913 until 1944, the State determined scholarship winners based upon the results of general high school Regents examinations, which also were the basis for granting the college entrance diploma. Lott, T. 64.
By 1944, the SED recognized that it could no longer rely solely upon general high school Regents examinations and college entrance diplomas in awarding Regents Scholarships. First, it was hard to rank students based upon the college entrance diploma because it was "difficult under the statute to know just what subjects to take into account in computing the averages of pupils."
In 1974, New York State's scholarship program changed dramatically following a revaluation by a Select Committee on Higher Education. At the time the Regents scholarship program provided an annual award of $1,000 to a limited number of highly qualified students. The Committee found that the legislature's goal of substantially funding students' college educations as an incentive for select students to attend college was no longer being met.
Prompted by these concerns, the legislature restructured its awards, creating two types of awards: first, "general awards" which provide substantial monetary assistance, and second, "academic performance awards" which recognize achievement. Act of 1974, ch. 942, N.Y. Laws §§ 604, 605. Classifying Regents Scholarships as "academic performance awards," the legislature reduced the awards to a stipend of $250, and increased the number of awards to 25,000 to be allocated by county of residence. The legislature created additional awards for the least competitive high schools to enable them to receive at least one for every graduate from that school in the preceding year. Ch. 942, 1974 N.Y. Laws § 605(1).
In the "general awards" category, the legislature created a Tuition Assistance Program ("TAP") to fund college students based upon financial need. The legislature made TAP awards available to all students enrolled in approved programs and are given to those who demonstrate the ability to complete such program's courses, and who satisfy financial need requirements established by the Commissioner of Education. Ch. 942, 1974 N.Y. Laws § 604; N.Y. Educ. Law. § 667(1) and (4) (McKinney 1988 & Supp.1989).
2. Reliance Upon the SAT
In 1977, as a cost-cutting measure, the legislature eliminated its funding for the Regents scholarship examinations. P.App. I, Ex. 3. Instead, the legislature directed that the scholarships be awarded on the basis of "nationally established competitive examinations." Act approved Apr. 12, 1977, ch. 63, 1977 N.Y. Laws § 1. The SED considered examinations, including: (1) the SAT; (2) the American College Testing Program ("ACT"); (3) the Preliminary Scholastic Aptitude Test ("PSAT"); and (4) a combination of Achievement Tests, individual tests given in particularized areas of study, including biology, chemistry and foreign languages. Lott T. at 66. While the Achievement Tests measured performance in a wide variety of courses in a high school curriculum, the SED chose not to use them because few students take the exams and the SED did not want to require them to do so for Regents scholarship purposes.
By process of elimination, then, the SED chose the SAT, the test taken by the greatest number of students.
In 1986, the legislature created the more selective Empire State Scholarships of Excellence carrying an annual stipend of $2000 to be awarded to the 1,000 highest ranking Regents Scholarship winners. Act approved and effective Apr. 18, 1986, ch. 56, 1986 N.Y. Laws. The Governor's approval memorandum to the legislative bill creating the Empire Scholarship stated the purpose of these new awards as follows:
1986 Legislative Annual, P.App. I, Ex. 3. Like the Regents scholarship, the Empire Scholarship is distributed by county of residence, and is renewable for five years. There is no minimum quota per high school for Empire State Scholarships.
3. Reliance Upon SATs and GPAs: The 1987 Experiment
In response to allegations that the SED's practice of relying solely upon the SAT in awarding Regents and Empire State Scholarships discriminated against females who consistently scored below males, the Board of Regents asked the Governor and legislature for $100,000 to develop a new scholarship achievement examination. The legislature declined to fund a special examination but, instead, amended the Education Law to require that the awards be based upon in part upon the student's grade point average ("GPA") as a measure of high school achievement. Senator Kenneth Lavalle, introducing the legislation, explained that the "statute intended to correct a gross inequity that pervaded the New York educational system caused by awarding of Regents College Scholarships and Empire State Scholarships of Excellence based solely on the results of a nationally administered
The new legislation, for the first time, expressly stated that awards are to be based on a measure of "high school performance." Act approved and effective Aug. 7, 1987, ch. 837, 1987 N.Y. Laws §§ 1, 2. In doing so, the legislature altered the criteria for scholarship eligibility — on a one-year, experimental basis — to require the SED Commissioner to base awards on a formula which at least includes a measure of high school performance, and which may include nationally established competitive examinations. The amendment also required the Commissioner to "complete a statistical review of the gender, racial and ethnic composition of students awarded such scholarships within sixty days of the announcement of such scholarship award." Id. The legislation included a sunset provision that provided that the amendment would automatically lapse after one year if it were not affirmatively extended.
In May 1987, the SED examined possible measures of high school performance that could be used to select scholarship winners equitably. May Hearing at 9. The SED surveyed high school principals for information concerning grade point averages and class rank. Id. at 4. The possibility of using class rank as a measure of high school performance was dropped for three reasons: (1) it is not used by all schools; (2) it adversely affects students in highly selective schools; (3) it cannot be used to compare students from schools of difference size. Id. at 19; Lott T. at 72.
The SED also found drawbacks to the use of grade point averages. Because of the volume of scholarship applications it receives yearly, approximately 100,000, the SED would be unable to individually evaluate the GPA information submitted for each candidate as is done by college admission committees. Byrne aff. ¶ 3; Sharrow T. at 133. Also, the SED concluded that it was difficult to convert grade point average information to a common scale because: (1) there is a lack of comparability in the substance of the courses for which grades are given; (2) school grading practices differ from district to district and different grading scales are utilized; (3) schools differ in their practice and philosophy regarding weighing grades in order to take into account course difficulty; and (4) reported grades may reflect grade inflation. Meno Aff. ¶¶ 2-5; Sharrow T. at 129; Meno T. at 140. On the other hand, the SED's survey indicated that there is a great deal of uniformity as to grading scales: 85 percent of the public schools and 73 percent of the private schools used a numerical score of 1-100. Results of High School Survey, P.App. I, Ex. 8.
Despite comparability difficulties, the SED chose to use GPAs as the best available measure of high school achievement. In awarding the Regents and Empire Scholarships for the 1988 graduates, the SED gave equal weight to students' SAT scores and GPAs, as the measure of high school performance. The SED, however, did not issue specific instructions to schools as to how grades should be reported.
In 1988, under the procedure using a combination of grades and SATs weighted equally women received substantially more Regents and Empire Scholarships than in all prior years in which the SAT had been the sole criterion. P.App. I, Ex. 2. In both 1987 and 1988, young women comprised approximately 54 percent of the applicant pool for the scholarship, yet the results in 1988 when grades and SATs were used were markedly different. The results are summarized as follows:
Winners of Empire State Scholarships Winners of Regents
of Excellence College Scholarships Males Females Males Females1988 62 38 51 49 1987 72 28 57 43
When GPAs were used in 1988, the mean GPAs were: 85 for females and 84.4 for males. P.App. I, Ex. 2.
In May 1988, the legislature held hearings to evaluate the new practice of using both GPAs and SATs. Although use of GPA information reduced the disparity between the number of males and females receiving Scholarships, Commissioner Sobol recommended that the practice be discontinued, as soon as a new scholarship exam was developed, because: (1) use of GPA information put an increased burden on school staff; (2) use of GPA did not provide an equitable way to compare students from different schools; and (3) use of GPA would encourage students to avoid more challenging courses in order to obtain better grades for Scholarship purposes. May Hearing at 17-18. Sobol requested funds for a new scholarship exam but also recommended that, until a separate Regents Scholarship examination could be established, GPAs continue to be used in conjunction with SAT scores. Id.
Despite Commissioner Sobel's recommendation, the legislature allowed to lapse the eligibility calculation "based on a formula which includes high school performance and which may include nationally competitive examinations." The standard thereby reverted to awards "on the basis of nationally established competitive examinations". In the 1988 legislative session, the SED received funds for a new scholarship examination, but has not yet received approval for a developed test. Meno Aff. ¶ 9. In September, 1989, the SED determined that it would award Regents and Empire Scholarships to 1989 high school graduates on the basis of SAT scores alone. It is the SED's sole reliance on SAT scores for 1989 graduates that plaintiffs complain denies them equal protection under the fourteenth amendment to the U.S. Constitution and violates Title IX of the Education Amendments of 1972.
B. Use of the SAT for Merit Scholarship Awards
1. ETS Recommendations and States' Practice
The Educational Testing Service ("ETS") developed the SAT in order to predict academic performance in college. Willingham Aff. at ¶¶ 5-6. The ability of the SAT to serve this purpose has been statistically "validated." Willingham Aff. at ¶¶ 16-19.
Both the ETS and the College Board, which administers the SAT, specifically advise against exclusive reliance upon the SAT, even for the purpose for which the SAT has been validated — predicting future college performance.
Notwithstanding ETS and NACAC guidelines recommending against using the SAT as the sole basis on which to award scholarships or offer admissions, the SED adopted such a policy in 1974. New York State is one of only two states in the nation to rely solely on SAT scores for the award of state-sponsored merit scholarships instead of factoring in other measurements, such as grade point average or high school rank. May Hearing at 54; Lee Aff. at ¶ 3. Most states rely, at least in part, upon GPAs. For instance, California's extensive merit scholarship program, which gives nearly 17,000 awards annually, relies upon self-reported GPAs. Moss Aff. at ¶¶ 1, 3, 5-6.
2. SAT as Measure of High School Performance
Both the Empire and Regents Scholarships are intended to reward past academic achievement of high school students, and to encourage those students who have demonstrated such achievement to pursue their educations in New York State. Lott T. at 91; Memo Aff. at ¶ 9. It is undisputed, however, that the SAT was developed and validated to serve a different purpose — predicting performance in college.
Professional standards governing educational testing require statistical analysis ("validation") to be undertaken to ensure that a test is properly used for its intended purpose. Shapiro T. at 51. For example, the American Psychology Association's Standards on Psychological Testing require that "evidence of validity should be presented for the major types of inferences for which the use of a test is recommended." P.App. I, Ex. 6, at 13. Similarly, the College Board requires that tests be validated periodically "to ensure that they
Notwithstanding the absence of validation studies, it is the SED's current position that the SAT provides a good measure of high school performance because it "measures skills and knowledge primarily developed in school." Byrne Aff. ¶ 17. The SED does not dispute that the SAT does not measure performance in all high school courses, but claims merely that the SAT partially tracks high school English and Math courses and thus tests achievement. Lott T. at 89.
3. Statistical Impact on Men and Women Statewide
Males have outscored females on the verbal portion of the SAT since 1972, with an average score differential of at least 10 points since 1981. Males have also consistently outscored females on the mathematics portion, with an average differential of at least 40 points since 1967.
Statisticians have attempted to explain the score differentials between males and females by removing the effect of "neutral" variables
As a result of the State's practice of basing scholarship awards solely upon SAT scores, males have consistently received substantially more scholarships than females. In 1987 for example, males were 47 percent of the scholarship competitors, but received 72 percent of the Empire State Scholarships and 57 percent of the Regents Scholarships.
A. Procedural Issues
At the outset, defendants argue that this Court should dismiss plaintiffs' complaint on three procedural grounds: first, this Court is without authority to issue the relief requested in this case because plaintiffs do not have standing to bring their claims; second, the Court lacks subject matter jurisdiction; and third, venue is improper. The Court will consider each of these arguments in turn.
In order to establish standing for the purposes of the constitutional "case or controversy" requirement, the general rule is that a plaintiff "must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury is "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Otherwise, the exercise of federal jurisdiction "would be gratuitous and thus inconsistent with the Article III limitation." Id. at 38, 96 S.Ct. at 1924.
More precisely, plaintiffs must demonstrate: (1) that the "interest sought to be protected is within the zone of interests protected or regulated by the statute or constitutional guarantee in question," Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), (2) "injury in fact," and (3) "causation in fact."
Plaintiffs have fulfilled the first standing requirement. The interest sought to be protected — freedom from discrimination in the award of state scholarships — is within the zone of interests to be protected by the fourteenth amendment and Title IX. Education Amendments of 1972, 20 U.S.C. § 1681.
The second requirement, injury in fact, is satisfied by a showing of a likelihood of harm, if not actual harm. In University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) the Supreme Court found that a student had standing to challenge a school's allegedly discriminatory admissions policy, not because he could establish that he would have been admitted were it not for the challenged policy, but rather because his chances for admission were reduced by the policy. Id. at 280-81 n. 14, 98 S.Ct. at 2743 n. 14 (Powell, J., concurring). See also, McCleskey v. Kemp, 481 U.S. 279, 295 n. 8, 107 S.Ct. 1756, 1766 n. 8, 95 L.Ed.2d 262 (1987); Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984); Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 115, 99 S.Ct. at 1615.
Plaintiffs here allege that their chances for winning a state merit scholarship are reduced by the SED's practice of basing such awards solely on SAT scores and that, therefore, they are less likely to receive benefits such as substantial public recognition, an enhanced ability to attract additional scholarships, and an increased opportunity to attend the college or university of their choice.
The final requirement, causation in fact, necessitates that the injury be both "fairly traceable" to the defendant and "redressable." Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984). As with injury in fact, causation in fact does not require a showing of complete certainty. In the Second Circuit:
Huntington Branch N.A.A.C.P. v. Town of Huntington, 689 F.2d 391, 394 (2d Cir. 1982) (emphasis added) (plaintiffs seeking funding to construct housing project had standing to challenge zoning ordinance, even though no federal housing money was presently available).
In the present case, plaintiffs allege that the SED's reliance upon the SAT is the direct cause of their injury. Injunctive relief compelling the SED to use an alternative procedure with a less discriminating effect would redress their grievance. Defendants argue that because variables other than sex might account for the disparate number of women receiving low SAT scores — and, consequently, not receiving scholarships — there is no causation. D.Mem. at 23. This, however, is a dispute on the merits of plaintiffs' claim. Standing does not depend on whether plaintiffs actually will prevail. See e.g., McCleskey, 481 U.S. 279, 107 S.Ct. 1756.
The fact that some of the named plaintiffs may not receive scholarships if the injunction is granted presents no barrier to this suit. The claim rests on the alleged discriminatory nature of the system as a whole. In analogous circumstances, the Supreme Court held that a black would-be resident had standing to challenge discriminatory zoning practices, because he intended to apply for housing, although he might not actually obtain it. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977). Here, as in Arlington, if the requested relief is granted, the plaintiffs would no longer suffer the injury complained of. See also Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99 L.Ed.2d 1 (1988) (landlords had standing to challenge rent control ordinance when there was a likelihood of enforcement of the ordinance and concomitant probability that rent would be reduced below what some landlords could afford); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) (standing to challenge act limiting liability in the event of a nuclear accident where "substantial likelihood" that construction of plants could not be completed without liability limit).
Defendants argue that this Court lacks subject matter jurisdiction over plaintiffs' equal protection claim against the SED. This argument is wholly meritless.
While it is true that the Eleventh Amendment bars suits against states, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984), the "important exception to this general rule [is that] a suit challenging the constitutionality of a state official's action is not one against the state." Id. at 102, 104 S.Ct. at 909. Moreover, Congress has specifically provided that a state shall not be immune from suit under Title IX. 42 U.S.C. § 2000d-7. Thus, this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).
Defendants also challenge the venue of this action. They argue that it is more properly brought in the Northern District of New York where the defendants are located. The Court finds this argument unpersuasive.
Venue in this case is governed by 28 U.S.C. § 1391(b), which provides:
Where the claim arose in more than one district, "a plaintiff may chose between those two (or conceivably even more) districts that with approximately equal plausibility—in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) — may be assigned as the locus of the claim." Leroy v. Great Western, 443 U.S. 173, 185, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979).
Applying the Leroy holding, in a similar case to this, Judge Sofaer, formerly of this district, held that state security employees could bring suit against state officials in the Southern District. Cheeseman v. Carey, 485 F.Supp. 203 (S.D.N.Y.1980). While the state decisions in question had been made in Albany, the court held that the Southern District had a "substantial relationship" to the claim and, thus, the claim "arose" in the Southern District as well the Northern District. Id. at 212. In Cheeseman, half of the plaintiff class is located in the Southern District and thus, the court concluded, the challenged practice had been "profoundly felt" in the district.
In this case, the effects of the SED's policy have similarly been profoundly felt in the Southern District. Female students attending New York City schools are harmed more than elsewhere by the SED's exclusive reliance on SAT scores because they are even less likely to qualify for their scholarships than their female counterparts throughout the state. Moreover, these students take the SAT in the Southern District. Thus, while plaintiffs' claims also arise in the Northern District, they arise in the Southern District as well.
The Southern District is at least an "equally plausible forum." New York City is more accessible for the many expert witnesses who live outside New York. Amici ETS and College Board have offices in the City. It is not overly burdensome for state officials to travel to New York. Defendants have not demonstrated that evidence would somehow be less accessible if this case is maintained in the Southern District.
Finally, the Court concludes that because speed of disposition is important in this case, the interests of justice weigh against a transfer. This Court is familiar with the detailed facts of the case, and substantial proceedings have already occurred before this Court. See e.g., Cheeseman, supra, 485 F.Supp. at 215. This is not a case where plaintiffs may have chosen their place of venue to harass defendants or to avoid precedents in the Northern District. It appears that plaintiffs merely have chosen
It is well-established that a plaintiff's choice of forum "is entitled to great weight and will not be disturbed except upon a clear-cut showing that convenience and justice for all parties demands that the litigation proceed elsewhere." Eastern Refractories v. Forty Eight Insulations, 668 F.Supp. 183, 187 (S.D.N.Y.1987), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Such a showing has not been made. Accordingly, accordingly defendants' venue motion is denied.
B. The Preliminary Injunction
The standard for reviewing a request for a preliminary injunction is well established.
The Video Trip Corporation v. Lightning Video, Inc., 866 F.2d 50, 52 (2d Cir.1989) (emphasis added), citing Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1987).
A court need not certify a class prior to granting a preliminary injunction. Defendants improperly rely upon Hurley v. Ward, 584 F.2d 609 (2d Cir.1978), to support their contention that any injunction must be limited to the individual named plaintiffs. Hurley is inapposite because it was brought by an individual plaintiff who did not even seek class certification and members of the purported class were not similarly situated.
Contrary to defendants' argument, courts have consistently granted relief that would have a class-wide effect without first certifying a class. Indeed, in this Circuit, courts have held that where a judgment would run to the benefit not only of the named plaintiffs but also of all others similarly situated, as it would here, class designation is "largely a formality." Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). See also Hurley, supra, 584 F.2d at 611-612.
Thus, this Court need not certify a class in this case before determining whether plaintiffs have demonstrated the requirements for a preliminary injunction: irreparable harm and a likelihood of success on the merits.
1. Irreparable Harm
Plaintiffs have demonstrated that if the SED is not enjoined from its current practices, they will suffer irreparable harm. Defendants do not dispute that Regents and Empire State scholarships are prestigious awards, and that students benefit from receiving such awards. Rather, they merely argue that Regents scholarships are worth less than Empire scholarships, and because it is unlikely that any of the named plaintiffs would receive Empire awards, plaintiffs have not shown irreparable harm. D.Mem. at 20. This is defendants' standing argument that was dismissed above. To reiterate: first, while named plaintiffs may not receive Empire awards, some members of the putative class would qualify for such awards; second, all plaintiffs' chances are reduced by the SED's actions; and third, defendants concede that at least three named plaintiffs will be harmed by the SED's acts. Byrne Aff. ¶ 10.
"When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury
2. Likelihood of Success on Merits
a. Title IX
Plaintiffs invoke the protections provided by Title IX, which prohibits sex discrimination in federally-funded educational programs.
Neither the Supreme Court nor any court in the Second Circuit has determined whether intent must be shown in Title IX cases.
In Guardians Association v. Civil Service Commission, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), the Supreme Court held that a violation of Title VI itself requires proof of discriminatory intent. However, a majority also agreed that proof of discriminatory effect suffices to establish liability when a suit is brought to enforce the regulations promulgated under Title VI, rather than statute itself. See also Alexander v. Choate, 469 U.S. 287, 293-294, 105 S.Ct. 712, 716, 83 L.Ed.2d 661 (1985); Latinos Unidos de Chelsea v. Secretary of Housing, 799 F.2d 774, 785 n. 20 (1st Cir.1986).
Plaintiffs' amended complaint explicitly alleges both violations of Title IX and its implementing regulations. This Court
Haffer, 678 F.Supp. at 539-540.
The Title IX implementing regulations, like the regulations promulgated under Title VI, to which Title IX is frequently compared, are consistent with this interpretation of the comprehensive reach of the statute. Several Title IX regulations specifically prohibit facially neutral policies. For example, the provision governing admissions procedures, 34 CFR § 106.21(b)(2), prohibits a recipient from
See also 34 C.F.R. §§ 106.22, 106.23(b), 106.34(d), 106.37(b), 106.52, and 106.53.(b).
Based upon a reading of the Title IX regulations, as well as the decisions that apply them, the Court finds that Title IX regulations, like the Title VI regulations at issue in Guardians, prohibit testing practices with a discriminatory effect on one sex. Consequently, plaintiffs need not prove intentional discrimination.
In Title VII testing cases, the Supreme Court developed a three-pronged formulation to analyze disparate impact claims. Under this scheme, plaintiffs first must show that a facially neutral practice has a disproportionate effect. After such a showing, the burden shifts to defendants to prove a substantial legitimate justification — a "business necessity" — for its practice. The plaintiff then may ultimately prevail by offering either an equally effective alternative practice which has a less of a discriminatory impact, or proof that the legitimate practices are a pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Sheehan v. Purolator, 839 F.2d 99, 104 (2d Cir.1988).
In educational testing cases, instead of requiring defendants to demonstrate a "business necessity," courts have required defendants to show an "educational necessity." For example, the Eleventh Circuit, in Georgia State Conf. of Branches of NAACP v. State of Georgia, 775 F.2d 1403 (11th Cir.1985), held that defendants had a burden of proving that their practices in question bore "a manifest demonstrable relationship to classroom education." Id. at 1418. See also Board of Education v. Harris, 444 U.S. 130, 151, 100 S.Ct. 363,
Applying the Title VII formulations to this Title IX case as modified to take into account "educational necessity," this Court finds that plaintiffs have demonstrated a likelihood of success on the merits. Plaintiffs have met their burden of establishing a prima facie case through persuasive statistical evidence and credible expert testimony that the composition of scholarship winners tilted decidedly toward males and could not have occurred by a random distribution. See Gray Aff. at ¶ 6; Shapiro T. at 29-30. Defendants have failed to attack plaintiffs' evidence of statewide disparate impact but have instead focused in an ad hoc fashion on individual schools and counties. In a case alleging statewide discrimination, such a focus does not rebut plaintiffs' statewide prima facie case.
Plaintiffs, moreover, have established that the probability, absent discriminatory causes, that women would consistently score 60 points less on the SAT than men is nearly zero. Gray Aff. at ¶¶ 5-7. Defendants concede that at least half of this differential cannot be explained away by "neutral" variables. Based upon the totality of evidence, then, this Court finds that plaintiffs have demonstrated that the State's practice of sole reliance upon the SAT disparately impacts young women.
Thus, to prevail, defendants must show a manifest relationship between use of the SAT and recognition and award of academic achievement in high school. The Court finds that defendants have failed to show even a reasonable relationship between their practice and their conceded purpose. The SAT was not designed to measure achievement in high school and was never validated for that purpose. Instead, in arguing that the SAT somehow measures high school performance, defendants rely upon anecdotal evidence that the SAT partially tracks what is generally learned in high school Math and English courses. This argument is meritless.
Plaintiffs have offered substantial evidence that the SATs do not mirror high school Math and English classes. The makers of the SAT describe the test as an "aptitude test;" it does not purport to measure what is learned in classrooms but to predict success in college. The testing format of the SAT measures students' ability to take tests at least as much as it measures substantive material. Defendants' claims that the SAT is an achievement test are contradicted by defendant Sobol's own recent pronouncement that SAT scores "are a measure of aptitude rather than achievement." Appeal of Yick Moon Lee (June 23, 1988), P. Reply Mem.Ex. 4.
Moreover, even if SATs provided a partial measurement of what is learned in high school Math and English, these two courses constitute only 20 percent of a high school student's studies. The SAT fails to provide any measure of what a student learns in foreign language, science, and social studies courses. Moreover, there can be no serious claim that a test given on one single morning can take into account a student's diligence, creativity and social development and work habits in that student's environment — all part of high school achievement. After a careful review of the evidence, this Court concludes that SAT scores capture a student's academic achievement no more than a student's yearbook photograph captures the full range of her experiences in high school.
Plaintiffs have offered an alternative to sole reliance upon the SAT: a combination of GPAs and SATs. The SED's use of this alternative in 1988 sharply reduced the disparate impact against females caused by the use of the SAT alone. A significantly greater number of female students received scholarships in 1988 than in each prior year in which the SED relied solely upon the SAT. P.App. I, Ex. 2. Defendants concede that females had a greater opportunity to receive scholarships under the combination system. Defendants also concede that grades are the best measure of high school achievement within the walls of a single school. Instead, they argue that since there is a disparity among
While a combination system — using both GPAs and SATs — is not a perfect alternative, it is the best alternative presently available. The SED is concerned that students in academically superior high schools not be disadvantaged by the use of GPAs. This concern is addressed by the combination system because in effect grades would be weighted by SATs. The SAT component which cannot properly itself measure achievement serves to balance the grade component that does. In this way, the SED's concern that use of grades alone will deprive good students in superior high schools of scholarships is ameliorated. Also, as a testing expert explained at the hearing, few students will be displaced if a combination system is used:
Shapiro T. at 36. More importantly, the combination system would be "fair" in the larger sense of the word, because it would better advance the state's goal of awarding high school performance and would better provide all students — not just male students or students from selective schools — with an equal opportunity to compete for prestigious state scholarships.
Like its fairness argument, the SED's feasibility argument lacks merit. The SED contends that if it uses GPAs in awarding scholarships, the GPAs will not be in hand until February 24, 1988, the awards process will extend 16 weeks thereafter and, thus, it will be difficult to inform winners prior to college acceptance dates. The Court rejects this argument. First, based upon evidence detailing the time that is necessary to process scholarship applications, the Court finds that the awards process can be completed in substantially less than 16 weeks.
The SED cannot justify its discriminatory practice because any alternative would be more difficult to administer. All states giving merit scholarships awards, with the exception of New York and Massachusetts, use GPAs, without concern for either administrative difficulties, grade inflation or the comparability of grades. Lee Aff., P. Reply Mem. Ex. 5; App. I, Ex. 14. Any administrative difficulties that the SED experienced in 1988, when it used a combination system, were attributable to the SED's own failure to implement and clarify specific guidelines for the collections of grades, and to provide any enforcement mechanisms to guard against cheating. While the Court, like the amici Hewlett School District, does not condone cheating or inaccuracies in grade reporting, it is not the Court's role to police the SED's
Faced with a conflict between the SED's administrative concerns on the one hand, and the risk of substantial discriminatory harm to plaintiffs on the other, the Court has little difficulty in concluding that the balance of hardships tips decidedly in plaintiffs' favor. See Mitchell v. Cuomo, 748 F.2d 804, 808 (2d Cir.1984). The Court finds that plaintiffs have offered a feasible alternative to sole reliance upon SATs. Accordingly, the Court finds that plaintiffs have demonstrated a likelihood of success on the merits of their Title IX claim and, thus, a preliminary injunction is warranted.
b. Equal Protection
Alternatively, a preliminary injunction is warranted because plaintiffs also have established a likelihood that they will succeed on their equal protection claim. The classification of scholarship applicants solely on the basis of SAT scores violates the equal protection clause of the Fourteenth Amendment because this method is not rationally related to the state's goal of rewarding students who have demonstrated academic achievement.
Under the lowest standard of equal protection review — the "rational relationship standard" — "[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446, 105 S.Ct. 3249, 3257, 87 L.Ed.2d 313 (1985). Although considerable deference is given to the decisions of legislators and state administrators under the rational basis test, the test "is not a toothless one." Baccus v. Karger, 692 F.Supp. 290, 298 (S.D.N.Y.1988) (invalidating New York bar rule that required applicants for bar admission to have commenced the study of law after their 18th birthday), citing Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1082, 67 L.Ed.2d 186 (1980). In a long line of cases, the Supreme Court has applied rational basis scrutiny to strike down legislation where the permissible bounds of rationality were exceeded. See e.g., Hooper v. Bernalillo County Assessor, 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985); Williams v. Vermont, 472 U.S. 14, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985); Metropolitan Life Insurance v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985); United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
For the reasons stated above, the SED's use of the SAT as a proxy for high school achievement is too unrelated to the legislative purpose of awarding academic achievement in high school to survive even the most minimal scrutiny. The evidence is clear that females score significantly below males on the SAT while they perform equally or slightly better than males in high school. Therefore, the SED's use of the SAT as the sole criterion for awarding Regents and Empire Scholarships discriminates against females and, since such a practice is not rationally related to the legislative purpose, it unconstitutionally denies young women equal protection of the laws and must be enjoined on that ground as well.
Defendants' practice of relying solely upon SAT scores in awarding Regents and Empire Scholarships deprives young women of the opportunity to compete equally for these prestigious scholarships in violation of both Title IX and the Constitution's equal protection clause. Defendants are hereby ordered to discontinue such discriminatory practices and, instead, to award Regents and Empire Scholarships in a manner that more accurately measures students' high school achievement. For the present year, the best available alternative is a combination of grades and SATs. The SAT component is justified, not as a measure of achievement, but to weight the GPA component. The Court, however, does not limit the SED's discretion to develop
Appendix: Mean SAT Scores for College-Bound Seniors
Verbal Math Males Females Males Females1988 435 422 498 455 1987 435 425 500 453 1986 437 426 501 451 1985 437 425 499 452 1984 433 420 495 449 1983 430 420 493 445 1982 431 421 493 443 1981 430 418 492 443 1980 428 420 491 443 1979 431 423 493 443 1978 433 425 494 444 1977 431 427 497 445 1976 433 430 497 446 1975 437 431 495 449 1974 447 442 501 459 1973 446 443 502 460 1972 454 452 505 461 1971 454 457 507 466 1970 459 461 509 465
20 U.S.C. § 1681(a). Recently, Congress broadened the scope of Title IX so that it applies institution-wide. Civil Rights Restoration Act, 20 U.S.C. § 1687 (became law on March 22, 1988). This Act directly reversed the Supreme Court's decision in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), which had limited the coverage of Title IX to specific programs or activities which actually receive federal funds.