Full opinion text
OPINION AND ORDER MOTLEY, District Judge. The facts of this case were recited in depth in this court’s decision certifying the class and familiarity with that ruling is presumed. Gulino v. Board of Education of City School District of New York, 201 F.R.D. 326 (S.D.N.Y.2001) (“Gulino”). Briefly, the plaintiff class is comprised of African American and Latino educators in the New York City public school system (“Teachers”) who have either lost their teaching licenses or have been prevented from obtaining a full teaching license because of the requirement that they achieve a satisfactory score on one of the challenged tests, the National Teacher Core Battery Exam (“NTE”) or the Liberal Arts and Sciences Test of the New York State Teacher Certification Examination (“LAST”), the successor to the NTE. The tests were developed and administered by defendant State Department of Education (“SED” or “the Department”). Plaintiffs allege that the use of the tests as a requirement for obtaining permanent teaching certificates has an impermissible disparate impact on African-American and Latino teachers in New York City public schools, in violation of Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq., Plaintiffs allege that white test-takers passed both tests at a rate that is statistically significantly higher than the rates for African Americans and Latinos. Plaintiffs further allege that the tests in question were misused and do not measure whether the test-takers are qualified to be teachers. Many of the plaintiffs have remained employed as teachers with defendant New York City Board of Education (“BOE” or “the Board”), some in the same classrooms teaching the same subjects. They assert, however, that they have suffered harm in that-they have had their salaries reduced and have been denied employment opportunities, rights and benefits. Both defendants have filed a Motion for Summary Judgment on various grounds, seeking that some or all of the claims be dismissed and that they each be declared not liable as employers. Plaintiffs have filed a Motion for Partial Summary Judgment, seeking a declaration that both defendants are in fact employers under the Title VII, that the tests were misused and that they have established a prima facie case of disparate impact. For the reasons that follow, both defendants’ and plaintiffs’ motions are GRANTED IN PART and DENIED IN PART. LEGAL STANDARDS Summary Judgment Summary judgment should only be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4, 91 L.Ed.2d 265 (1986). “[Gjenuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff “may not rest upon the mere allegations or denials of the pleading[s],” but must by affidavit or otherwise “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Twin Labs, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). In this vein, the Second Circuit has noted that “conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). Of course, this standard applies with equal force in discrimination cases as it would in any other case in the federal courts. See Ashton v. Pall Corp., 32 F.Supp.2d 82, 87 (E.D.N.Y.1999) (“'the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation’”). Thus, courts within the Second Circuit “have not hesitated to grant defendants summary judgment in such cases where ... plaintiff has offered little or no evidence of discrimination.” Scaria v. Rubin, 1996 WL 389250, 1996 U.S. Dist. LEXIS 9659, at *14 (S.D.N.Y.1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir.1997). In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). When parties have filed cross motions for summary judgment, each has the burden of presenting evidence in support of its motion. See Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party “must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (internal quotations and citations omitted) (alteration in original). DISCUSSION I. Plaintiff’s claims are barred neither by Res JudiCata nor by the Rooker-Feldman Doctrine. In 1996-97 a group of teachers who had lost their licenses because of their failure to pass the NTE joined their union President, Sandra Feldman (in her capacity as President) in bringing a State court proceeding under Article 78 to review the revocation of their licenses (“Feldman Proceeding”). Sullivan Decl. Ex. L (“Feldman Petition”). They alleged: 1) a violation of due process; 2) that they were not provided sufficient notice of the test requirements in advance; and 3) that the mis-use of the tests (which had not been validated for the uses to which they were put) was arbitrary and capricious. Id., ¶ l. New York Supreme Court Justice Herbert Kramer dismissed their action, holding that the decision to revoke their licenses was not arbitrary and capricious (Weingarten Aff. Ex. C (“Feldman Final Order”) at 6), “given [that] an appropriate and validated test, such as the NTE” was used to make the decision. Id. at 5. Based on that state court judgment, both defendants argue that the claim before the court is barred under the doctrine of res judicata, or, in the alternative, under the Rooker-Feldman doctrine. The court disagrees. A. Res Judicata Under New York law, the doctrine of res judicata, or claim preclusion, applies “to the parties in a litigation and those in privity with them.... ” Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 486, 414 N.Y.S.2d 308, 386 N.E.2d 1328 (1979). Defendants argue that although the named plaintiffs in this case were not actually involved in the prior litigation, they are in privity with the teacher’s union, (“the UFT”, or “the Union”), which was a plaintiff. As a preliminary matter, it is not clear to the Court that the Union was in fact subject to the Feldman Order. There is no dispute that Sandra Feldman, in her capacity as President of the UFT, was an original petitioner. See Feldman Petition. That does not settle the question, however, since Justice Kramer denied petitioner’s claims for class certification (Weingar-ten Aff. Ex. B (“Feldman Order 10/7/96”), at 9), which plaintiffs argue had the effect of dismissing the Union from the case altogether: Weingarten Aff., ¶ 12. By the time the case was resolved, it does not appear that Justice Kramer even contemplated Ms. Feldman (or the UFT) as a petitioner; his final order curiously omits any reference to the Union or its President, opening: “Upon the foregoing papers in this Article 78 proceeding, petitioners Jennifer Jones, Brenda Parsons-English and Jose Drunker filed a petition, dated January 11.... ” Feldman Final Order at 2. On the next page, Justice Kramer refers to “both petitioners herein.” Id. at 3. Finally, his holding seems not directed at the Union at all: “The court finds that respondents’ action in terminating the licenses of petitioners Parsons-English and Jacoby-Raglievich ... is not arbitrary and capricious.... ” Id. at 5. Even if the UFT was a party at the end of the Feldman proceeding, however, to establish that Gulino et al. were in privity with the Feldman petitioners, defendants must show that “the interests of the non-party [in the instant case, Gulino et al.] can be said to have been represented in the prior [Feldman] proceeding.” Green v. Santa Fe Indus., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105 (1987). Additionally, that representation must have been adequate and without conflicts of interest. Evergreen Bank v. Dashnaw, 246 A.D.2d 814, 668 N.Y.S.2d 256, 258 (3d Dept.1998). Even in the absence of a relationship between the parties, privity may exist when a non-party controlled the conduct of the prior litigation. Tamily v. General Contracting Corp., 210 A.D.2d 564, 566, 620 N.Y.S.2d 506 (3d Dept.1994). Defendants argue that individual members of the UFT (and all teachers in New York City are required to join the Union (see Sullivan Decl. Ex. N, (Wilds Dep.) at 20)) are automatically in privity with the Union. For that proposition, they rely on Monahan v. New York City Dep’t of Corrections, 214 F.3d 275 (2d Cir.2000), in which the Second Circuit held that union members could not relitigate an issue that had been settled by consent judgment between the President of the Union (in his capacity as President) and the Department of Corrections. Monahan, however, is inapposite both legally and factually. First, it did not involve an application of New York law on res judicata-it was a federal question case from start to finish and, as noted, supra at note five, it is New York law that must be applied in the instant case. Second, the issue in Monahan-restrictions on sick leave-was much less complicated than the one involved here, and the representational capacity of the Corrections Officers Union (COU) as a plaintiff was much greater than the UFT’s. In terms of sick leave, all members of the COU were in the same position; in the case at bar, where only black and latino members have brought this Title VII action, it is clear that the UFT, whose members are largely white, does not adequately represent their position. Had the Union brought a claim sounding in discrimination based on race, it would have incurred a conflict with the white members it was representing. Thus, Evergreen Bank’s privity requirements are not met. 668 N.Y.S.2d at 258 Finally, plaintiffs supply an affidavit of Randi Weingarten, current president of the UFT, who served as general counsel to the Union at the time of the Feldman proceeding (in which capacity she oversaw the litigation), explaining that neither the class representatives in the present case nor their attorneys had any role in the Feldman Proceeding. Weingarten Aff., ¶¶ 5-7. While defendant BOE notes that three of the putative class members in the case at bar were named as petitioners in the Feldman proceeding (Sullivan Decl. Ex. P (Shapiro Decl.)), it does not contend that the plaintiffs here played any role in directing that proceeding. Thus, Tamily’s privity requirements for a non-party are not met. 210 A.D.2d at 566, 620 N.Y.S.2d 506. In its Reply, Defendant BOE submits that it does not matter if the UFT was not considered in the Feldman Final Order, since the unity of interests between the plaintiffs in that case and the plaintiffs here is manifest. For this proposition they cite Chase Manhattan Bank v. Celotex Corp., 56 F.3d 343, 346 (2d Cir.1995): “Res judicata may bar non-parties to earlier litigation not only when there was a formal arrangement for representation in, or actual control of, the earlier action but also when the interests involved in the prior litigation are virtually identical to those in later litigation.” On one level, the plaintiffs here and the petitioners in the Feldman Proceeding are united — they would both have been pleased with a ruling that struck down the use of the tests at issue and that awarded them back pay from the time of their demotion for failure to pass said tests. The alignment of interests ends there, however, since the Union brought the initial Feldman action on behalf of all of its members who held valid teaching certificates but had failed the tests. Amended Petition, ¶¶ 78, 84, 90, 96. As noted above, since many of those members were white, an employment discrimination claim based on race (either under Title VII or New York State or City Human Rights Law (N.Y.HRL)) was not available to the Union, at least not without creating a conflict with many of the members it was representing. For that reason, the Feldman petitioners did not bring a discrimination claim. Moreover, the plaintiffs here were barred from doing so (had they sought to intervene) since they had not yet received their Right to Sue Letters from the EEOC. See Lieberman Decl. Ex. A (Complaint), ¶ 20 (Right to Sue letter issued on or about October 11, 1996); Feldman Order denying class certification issued October 7, 1996. See also, Bracey v. Safir, 1999 WL 672564 (declining to apply preclusion doctrine when plaintiffs could not have brought Title VII claim in earlier action because they had not yet received right to sue letters). B. The Rooker-Feldman Doctrine Under the Rooker-Feldman doctrine developed from two Supreme Court cases with those names, a federal district court lacks jurisdiction over cases that effectively seek direct or indirect review of state court judgments. Only the United States Supreme Court can hear appeals from state court judgments; federal district courts may not consider claims to reverse or modify state court holdings, as well as claims “inextricably intertwined with” prior state court determinations. Feldman, 460 U.S. at 483 n. 16, 103 S.Ct. 1303. Defendants submit that in the prior proceeding, the question of whether the NTE was a valid test was litigated, and the state court held that it had been properly validated. Since plaintiffs’ claim here is predicated on the invalidity of the exams in question, defendants argue that the claims are sufficiently intertwined with the earlier litigation. According to defendants, in other words, if this court were to find for the plaintiffs after trial, that ruling would, in effect, work a reversal of the state court’s holding in the prior litigation. In effect, this is a collateral estoppel argument; if the entire proceeding is not barred by res judicata (claim preclusion), then, say defendants, at least the issue of whether the NTE is valid is precluded. An examination of the relevant case law reveals flaws in defendants’ argument. First, application of the Rooker-Feldman doctrine requires that “the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.” Bracey v. Safir, 1999 WL 672564, *3 (citing Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir.1995)); see also, Giles v. City of New York, 41 F.Supp.2d 308, 312 (S.D.N.Y.1999)(“[B]ecause preclusion rules target the party who seeks to relitigate identical claims or issues, a party faces preclusion only if it had a sufficiently full and fair opportunity to litigate the dispute in the prior proceeding” (citation and internal quotations omitted)). Even if the issue of validation of the NTE was litigated fully and fairly in the Feldman proceeding (and, again, based on the ten word “finding” in the Feldman Final Order, that is not at all clear), based on the reasons enunciated above, it does not appear that the Gulino et al. played any role in the earlier litigation. Further, the Second Circuit has raised the issue (without deciding it) of whether certain Article 78 proceedings are sufficiently rigorous to support an application of issue preclusion. Put simply, the connection between the instant plaintiffs and the petitioners in the Feldman Proceeding is tenuous at best. Additionally, this court has doubts about the nature and scope of the Feldman Final Order, including which parties it may have bound and exactly what level of validation the court found for the NTE. Given these uncertainties, an application of the res judicata or Rooker-Feldman doctrines is inappropriate. Cf. Richards v. Jefferson County, Alabama, 517 U.S. 793, 797-98, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996) (“extreme applications of the doctrine of res judicata may be inconsistent with a federal right that is fundamental in character.... [T]he general consensus in Anglo-American jurisprudence [is] that one is not bound by a judgment in personam in a litigation in which he is not designated as a party.... This rule is part of our deep rooted historic tradition that everyone should have his day in court”) (citations and internal quotations omitted). In Richards, the Court declined to find a second challenge to a taxation scheme barred by res judicata, noting: “In Hansberry v. Lee, 311 U.S. 32, 37, 61 S.Ct. 115, 85 L.Ed. 22 (1940), we held that it would violate the Due Process Clause of the Fourteenth Amendment to bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented.” Richards, 517 U.S. at 794, 116 S.Ct. 1761. This court is not convinced that Gulino et al. were in privity with the parties in the Feldman Proceeding, nor that their interests were adequately represented. Accordingly, defendants’ motion for summary judgment based on res judicata and/or the Rooker-Feldman doctrine is DENIED. II. Plaintiffs Claims are barred neither BY THE STATUTE OF LIMITATIONS NOR BY THEIR failure TO FILE A NOTICE OF CLAIM. Both defendants urge this court to dismiss some or all of plaintiffs’ claims as time-barred. The Department, facing only Title VII claims, argues that any claims which had to be asserted prior to August 27, 1995 are barred, since that is the cutoff date established by counting back 240 days from April 23, 1996, the date on which the named plaintiffs filed their charges of discrimination. The Board joins in that argument with respect to the Title VII claims and argues further that plaintiffs’ State and City Human Rights Laws (N.Y.HRL) claims are barred both by the statute of limitations and by plaintiffs’ failure to file a notice of claim. See N.Y. Educ. Law § 3813. A. Statute of Limitations The first question is whether any claims at all are time-barred. Plaintiffs urge this court to apply the continuing violations doctrine developed over many years by the Second Circuit. Under that doctrine, when a plaintiff alleges a continuing violation of Title VII, as opposed to discrete violations, “the plaintiff is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period.” Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994); see also, Gomes v. Avco, 964 F.2d 1330, 1333 (“[T]he normal statute of limitations rules under Title VII do not apply where ‘employees are hired or refused employment [or promotion] pursuant to a continuous pattern or policy of discrimination’ ” (quoting Miller v. International Tel. & Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); Association Against Discrimination v. City of Bridgeport, 647 F.2d 256, 274 (2d Cir.1981) (“When a Defendant has engaged in a continuous policy of discrimination, acts in furtherance of that policy are not viewed in isolation ... [and] if the charge has been filed no later that 300 days after the last act by the Defendant pursuant to its policy, the Plaintiff may recover for earlier acts as well”). It is certain that the policy in question qualifies as “continuing” by the Second Circuit’s definition. See Association Against Discrimination, 647 F.2d at 275 (“There can be no doubt that the continuous-policy principle governs the present case ... [which involved] the giving of the 1975 exam that was not job related and had discriminatory impact. ...”). In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court invalidated at least part of the Ninth Circuit’s continuing violation doctrine. The relevant questions now before this court are whether the Court invalidated the doctrine altogether, and, if not, whether the Second Circuit’s doctrine has survived in whole or in part. In Morgan, the Court noted: In the Ninth circuit, a plaintiff can establish a continuing violation that allows recovery for claims filed outside of the statutory period in one of two ways. First, a plaintiff may show “a series of related acts one or more of which are within the limitations period.” Ibid [Morgan v. National R.R. Passenger Corp., 232 F.3d 1008 (9th Cir.2000) aff'd in part, rev’d in part, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“Morgan”) ]. Such a “serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period.” Ibid. Second, the plaintiff may establish a continuing violation if he shows a systematic policy or practice of discrimination that operated, in part, within the limitations period — a systemic violation. Id. at 1015-16. Morgan, 536 U.S. at -, 122 S.Ct. at 2069. In Morgan, the Court was faced only with the first type of continuing violation, as the facts make clear. Plaintiff Abner Morgan, an African American man, claimed that he was “consistently harassed and disciplined more harshly than other employees on account of his race.” Id. at 2068 (citation omitted). Specifically, he alleged, inter alia, that over the course of five years, he: (1) was given lesser jobs than white employees (Morgan, 232 F.3d at 1011) (2) was disciplined more harshly than white employees (id. at 1101-12); (3) was denied training which white employees were given (id. at 1012); (4) suffered an assault (id.); (5) suffered retaliation for complaining to his congresswoman (id. at 1011); (6) was exposed to racial slurs (id. at 1013); and finally (7) was fired. Id. There was no allegation of a systemic policy, but rather allegations of a series of discrete acts. The Ninth Circuit declared that “[i]n light of the relatedness of the incidents, we find that Morgan has sufficiently presented a genuine issue of disputed fact,” and thus reversed the district court’s grant of partial summary judgment in favor of defendant. Id. at 1017. In reversing that part of the circuit court’s decision, the Supreme Court distinguished between “discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire [which] are easy to identify,” and a “hostile [work] environment,” which “cannot be said to occur on any particular day. It occurs over a series of days or perhaps year’s and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. at 2073. The Court held that each in the series of acts which comprised the continuous violation in Morgan was discrete. Id. Further, the Court ruled that “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’ Morgan can only file a charge to cover discrete acts that ‘occurred’ within the appropriate time period.” Id. (footnote omitted). In other words, the Court struck down the continuing violations doctrine as applied to serial violations. Explicitly, however, the Court did not reach certain types of continuing violations: “We have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.” Id. at 2073 n. 9. The Court’s disclaimer is curious, since the second type of continuous violation included in the Ninth Circuit’s doctrine — the systemic violation — encompasses more than just “pattern-or-practice” cases. Pattern-or-practice cases involve intentional discrimination by defendants. See, e.g., Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.2001) (“To succeed on a pattern-or-practice claim, plaintiffs must prove ... that intentional discrimination was the defendant’s ‘standard operating procedure’ ”) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). The Second Circuit has used the terms “policy and practice” or “policy or practice” in referring to cases involving a policy, which, while neutral on its face, has a disparate impact on a protected group. See Association Against Discrimination, 647 F.2d at 275; Robinson, 267 F.3d at 160; Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 111 (2d Cir.2001). The Morgan Court was not faced with a systemic violation either in the form of a pattern-or-practice case, or in the form of a “policy or practice” case. Accordingly, the court assumes that the continuing violations doctrine, still in effect for pattern-or-practice cases, also remains in force for “policy or practice” cases. The allegedly unlawful acts in this case are on-going in nature. Beginning in 1991, New York City teachers were not allowed to apply for a City license until they had passed the tests at issue. See Pl.s’ Facts, ¶ 74 (City School District of the City of New York Chancellor’s Regulation C-265). The policy in place thus affected them each day after they failed the test, until they took it again and passed. If they failed again, the policy continued to affect them. They were not allowed to apply for a City license each day after they failed the test and every day thereafter until they eventually passed. In contrast to a plaintiff who is fired or demoted and can seek to be rehired or re-promoted, plaintiffs here are locked into their substitute statuses because of an on-going policy which prohibits them from seeking a full City license. To conclude, the court finds that the Second Circuit’s continuing violations doctrine remains in effect with respect to “policy or practice” cases such as this one; the Morgan holding does not apply to the instant case. Accordingly, plaintiffs may challenge the on-going conduct related to the NTE or the LAST, including that ongoing conduct that would not have been actionable within the 300 day period prior to filing with the Equal Employment Opportunity Commission (EEOC). The relevant part of each defendant’s motion for summary judgment is therefore DENIED. Further, it is well settled that “New York courts require the same standard of proof for claims brought under [the analogous parts of] the Human Rights Law as for those brought under Title VII” (Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d. Cir.1998)), and thus the court “can analyze these claims in tandem.” Id. See, e.g., Miller Brewing Co. v. St. Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1985). Accordingly, that part of BOE’s motion arguing the same issue with respect to the claims under New York State and City Human Rights Laws (N.Y.HRL) is likewise DENIED. B. Plaintiffs’ Failure To File a Notice of Claim Defendant BOE argues that plaintiffs’ NYHRL claims are barred because they did not follow state statutory procedures which require that they file a notice of claim. Plaintiffs concede that, generally, bringing a NYHRL claim requires that a notice of claim be filed. New York Educ. Law § 3813. They argue that they are excused from that requirement, however, by the New York Court of Appeals’s decision in Mills v. County of Monroe, 59 N.Y.2d 307, 311, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983), which held: “[A]ctions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action.” The Board cites a different case, Doyle v. Board of Education of Deer Park Union Free School District, 230 A.D.2d 820, 646 N.Y.S.2d 842 (2d Dep’t 1996), which held that the claim of a group of employees who brought a discrimination action under NYHRL seeking retirement benefits they had been denied was barred by their failure to timely file a notice of claim. Defendant BOE submits that the case is directly on point and urges this court to adopt the position that when employees seek retirement benefits (as Gulino et al. do here) or any other monetary damages, the plaintiffs’ interest in the claim cannot trump the State’s interest in receiving notice of the action. The court rejects this argument for four reasons. First, Doyle is distinguishable from the case before the court since it was not class action and thus less likely to result in a benefit for a large group. Second, while it is true that the plaintiffs here are seeking monetary damages as one part of their claim, should they win the injunction they also seek (against using the tests) that will have much larger and public ramifications. Third, Doyle was an intermediate appellate decision, whereas the cases cited by plaintiffs come from the highest court. Fourth, Doyle is less than one page and thus difficult to assess how factually similar to the instant matter. Finally, in a lengthy, thorough opinion, Union Free School District No. 6 et al. v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859 (1974), the New York Court of Appeals addressed the facts quite similar to the case at bar and rejected the argument asserted by the Board here: It is true, of course, that this proceeding was triggered by the complaint of ... one teacher and that the relief granted below will redound to the benefit of that teacher as well as to the benefit of other teachers similarly situated. Such circumstances cannot be allowed, however, to obscure the fact that advantages which accrue to these teachers stem not from their rights of contract or other individual entitlement but rather flow as an appropriate and intended consequence of the vindication ... of the public’s interest in the elimination of discrimination based on sex — a public interest duly declared by legislative enactment. Id. at 380, 362 N.Y.S.2d 139, 320 N.E.2d 859. The public’s interest in the elimination of discrimination based on race, alleged in the instant case, is as great and has likewise been duly declared by legislative enactment. See Title VII, 42 U.S.C. § 2000e et seq. In light of the foregoing, that part of BOE’s motion for summary judgment seeking to have plaintiffs’ NYHRL claims dismissed owing to their failure to file a notice of claim is DENIED. III. Both defendants are employers under Title VII Plaintiffs seek summary judgment declaring both defendants liable as employers under Title VII. Defendants, for their part, seek summary judgment declaring them not liable as employers under Title VII, but for different reasons. Defendant SED claims that it is not truly involved in employing teachers and its administration of the tests in question is a licensing function pursuant to its police power, which courts have held to be outside the Title VII definition of an employer. The Board, on the other hand, argues that since SED required that teachers pass these tests, it had no discretion regarding whether to de-certify the teachers who fail and thus cannot be held accountable for having done so. For the reasons that follow, the court rejects defendants’ arguments and grants plaintiffs’ motion for summary judgment on this issue. A. State Education Department Defendant SED argues that the certification of teachers is an exercise of the State’s police power and thus is analogous to the licensing of doctors, dentists, accountants, lawyers and other professionals. Title VII applies only to employers, SED argues, and the Department’s role in licensing does not make it an employer. There is a long line of federal appellate case law (from other jurisdictions — this question has not been addressed by the Second Circuit, yet) supporting the proposition that a State exercising its police power licensing function is not subject to Title VII. See Fields v. Hallsville Independent School District, 906 F.2d 1017 (5th Cir.1990) (Texas Department of Education not subject to Title VII by virtue of its licensing of teachers); see also, George v. New Jersey Board of Veterinary Medical Examiners, 794 F.2d 113 (3d Cir.1986) (veterinary licensing board not an employer under Title VII); Haddock v. Board of Dental Examiners of California, 777 F.2d 462 (9th Cir.1985) (dental licensing board not an employer under Title VII); Woodard v. Virginia Board of Bar Examiners, 598 F.2d 1345 (4th Cir.1979) (Virginia Board of Bar Examiners not subject to Title VII); Tyler v. Vickery, 517 F.2d 1089 (5th Cir.1975) (Title VII does not apply to the Georgia State Bar Examiners). In the Eastern and Southern Districts, courts have agreed that licensing pursuant to police powers is outside of Title VII. United States v. New York State Dept. of Motor Vehicles, 82 F.Supp.2d 42, 49-52 (E.D.N.Y.2000) (“DMV”) (bus driver licensing was exercise of police power and thus not subject to Title VII); Mikhail v. Bentley, 1997 WL 225799, 1997 U.S. Dist. Lexis 6136 (S.D.N.Y.1997) (medical licensing not subject to Title VII). Plaintiffs, however, contend that a teaching certificate is entirely different from a license that is required for lawyers, doctors and other professionals in order to practice. Those occupations are wholly regulated by the state — one cannot practice as a lawyer or a doctor if one does not have a state license. Teaching, by contrast, is done by many without the license. Private school teachers are not licensed, for example, and, more tellingly, most members of the plaintiff class in this case were still teaching without their licenses at the time the class was certified. See Gulino v. Board of Education of City School District of New York, 201 F.R.D. 326, 329 (S.D.N.Y.2001) (“Gulino”). Thus, argue plaintiffs, the exams at issue here are much closer to civil service exams, passage of which is required in order for promotion. In other words, teacher certification is an exercise of the proprietary power (not the police power) of the state in its capacity as employer, used to evaluate employees and set salaries, which is subject to Title VII. There are only two federal appellate decisions addressing the specific question of whether teacher certification tests are subject to Title VII and they are in conflict. In Fields v. Hallsville Independent School District, 906 F.2d 1017 (5th Cir.1990), the Fifth Circuit concluded that tests were not subject to Title VII; in Association of Mexican-American Educators v. State of California, 231 F.3d 572 (9th Cir.2000)(en banc) (“AMAE”), the Ninth Circuit held that they were. Unhappily for defendants, AMAE is more recent, more thorough and more on-point. In short, it is simply more persuasive than Fields. It considered the relevant case-law, including the cases relied on by the defendants. Rather than rehashing the Ninth Circuit’s reasoning, an extended quote is in order: The cases on which Defendants rely [Fields, George, Haddock, Woodard, Tyler, supra ] are not controlling for two reasons. First, the state’s high level of involvment in the operation of local public schools distinguishes this case from those that Defendants cite. In those cases, licensing was the entire connection between the plaintiffs and the defendants; here, the CBEST [the challenged certification test in the case] is but one aspect of pervasive state control. Second, the CBEST is not merely an ordinary licensing examination; it applies only to public school employees. In other words, the State of California is acting pursuant to its proprietary, as well as its police, power. There is no overarching “licensing” exception to Title VII. The cases that Defendants cite stand for a related but narrower proposition' — -that Title VII does not apply when the only connection among the licensing agency, the plaintiff, and the universe of prospective employees is the agency’s implementation of a general licensing examination. AMAE, 231 F.3d at 582-83 (emphasis in original). The court’s reasoning applies equally in the instant case. First, defendant SED has a similarly “high level of involvement in the operation of local public schools,” as plaintiffs demonstrate: SED provides curriculum and curriculum-based state-wide tests for virtually all public schools (Pl.s’ Facts, ¶ 197); the State requires students to take and pass Regents examinations in order to progress from grade to grade and then to graduate and uses the results of these tests to evaluate schools and school-districts (id., ¶ 198); SED has assisted the Board in recruiting teachers for New York City schools (id., ¶ 202) and maintains a Teacher Recruitment Clearinghouse databank, which is used by school districts to recruit teachers (id., ¶ 203); SED’s Commissioner’s regulations delineate professional development requirements for public school teachers (8 N.Y.C.R.R. § 80-3.6), regulate incidental teaching positions (8 N.Y.C.R.R. § 80-5.3) and regulate substitute teaching in public schools (8 N.Y.C.R.R. § 80-5.3) (Pl.s’ Facts, ¶ 207); SED’s Commissioner’s regulations set the maximum required number of teaching periods (8 N.Y.C.R.R. § 100.2(i.)) (SED Response to Pl.s’ Facts, ¶ 222). The list goes on, but these facts suffice to show that SED plays a significant role in the operation of local schools, as well as in the employment of teachers. The Fields opinion was based on the fact that “[t]he only evidence presented by [plaintiffs] suggesting control is the Texas State Board of Education’s administration of the TECAT exam [the challenged certification test in the case] and its ability to decertify teachers who fail the exam.” Fields, 906 F.2d at 1019 (emphasis in original). Plaintiffs in that case apparently made no effort, prior to the appeal, to demonstrate that the State was involved in the operation of schools, and the court declined to examine the evidence offered at that late stage. Id. at 1019 n. 3; the panel even suggested that, had plaintiffs presented evidence of the state’s larger role in their initial case to the district court (rather than waiting until the appeal) the outcome might have been different. Id. at 1019-20. In the instant case, as noted supra, plaintiffs have made such a showing. Second, as in AMAE, the certification exams in the instant case are required only for public, not private, school teachers. See Educ. Law § 3001. Furthermore, the undisputed facts of this case demonstrate that certification for teachers is not the same as licensing for other professionals, like lawyers and doctors. Many plaintiffs who were unable to pass the tests are still teaching, most of them in the same classroom; the consequences they suffered were demotions to substitute status and the attendant reductions in salary and benefits. If the state were truly acting exclusively pursuant to its police power — the essence of which is “protecting the public,” in this case, presumably, from unqualified teachers — the plaintiffs would not have been allowed to remain in the same classroom for years after failing the tests. No one contends that lawyers and doctors are allowed to practice indefinitely after failing the bar exam or the medical boards, respectively. Since the current practice with regard to teachers who fail the certification exams cannot be said to grounded exclusively in the need to protect the public, AMAE’s reasoning applies here: teacher certification “is not solely an exercise of the state’s police power. Rather, it is an exercise of both the state’s police power and its proprietary power; and it is the exercise of proprietary power that subjects the state to the coverage of Title VII in this case.” AMAE, 231 F.3d at 584 (emphasis in original). There are three tests used to determine whether an entity qualifies as an employer in the Title VII context: 1) whether the defendant affirmatively interfered with or affected the plaintiffs direct employment or access to employment opportunities; 2) whether the defendant can be considered a “single” or “joint” employer together with the direct employer under standards borrowed from the National Labor Relations Board; and 3) whether the direct employer is merely an agent or instrumentality of the defendant for the purposes of the discriminatory practice. Plaintiffs assert that SED satisfies all three tests (even though it need satisfy only one). The court agrees that SED qualifies as an employer under the first, “interference” test and so it need not reach the second or third. It is well-settled that an entity that is not a direct employer of a Title VII plaintiff nevertheless may be liable it if interferes with or “significantly affects access of ... [plaintiffs] to employment opportunities.” Spirt v. Teachers Insurance and Annuity Ass’n, 691 F.2d 1054 (2d Cir.1982), vacated and remanded on other grounds, 463 U.S. 1223, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983)). The origin of this test can be found in Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973). In Sibley the plaintiff was a male nurse who claimed gender discrimination because the hospital where he worked referred female nurses to both male and female patients who requested a private nurse, but referred only female nurses to female patients. Thus, even though the hospital was not directly employing Sibley (because patients paid private nurses directly), it was held to be interfering with his access to employment opportunities. The D.C. Court of Appeals held that the hospital, while not the direct employer of a private nurse, could be held liable under Title VII because it was able to “foreclose, on invidious grounds, access by an individual to employment opportunities otherwise available to him.” Id. at 1341. In AMAE, the Ninth Circuit applied the Sibley test and concluded that the State of California was liable to teachers under Title VII, even though it was not a direct employer. AMAE, 231 F.3d at 582. According to the court, the State of California, in requiring that teachers pass the CBEST in order to be certified, in effect “dictates whom the districts may and may not hire.” Id. at 582. In other words, according to the en banc panel, defendants in AMAE “interfered with Plaintiffs’ employment opportunities with local school districts in California by requiring, implementing, and administering the CBEST.” Id. at 581 (citation and internal punctuation omitted). In the case at bar, SED, by requiring passage of the NTE or LAST, similarly interferes with plaintiffs’ employment opportunities and thus satisfies the Sibley interference test. In reaching its holding, however, the AMAJE required a connection between plaintiffs and defendants beyond mere “interference”; the court also noted the “peculiar degree of control that the State of California exercises over local school districts.” Id. at 581. While SED’s level of control may or may not rise to California’s, by its own admission, “the New York Constitution requires the legislature to make available a sound basic education; ... the State regulates education and ... local school districts are legislative creations .... ” SED Mem. in Opp’n at 7 (citations omitted). Further, the state plays a significant role in determining curriculum, required subjects and graduation requirements. See, e.g., 8 N.Y.C.R.R. 3.35(a)(1) (SED Commissioner’s regulation denying State funding to schools which do not “submit[ ] all required reports, main-taint ] an approved course of study” or do not “make[ ] use of the Regents examinations in the high school grades”). Combined with the facts recited supra with reference to the licensing issue, there is considerable evidence that the State has a sufficient control over the operation of local schools to bring it within Title VII’s definition of an employer. In addition, in a variety of ways, SED has a direct hand in the employment of City teachers: it participates in recruitment (see Pl.s’ Ex. 44 (Aff. of Charles C. Mackey, Jr.), ¶¶ 18, 23 (SED inserts recruitment flyers encouraging employment in City schools in all teaching certificates, and SED maintains Teacher Recruitment Clearinghouse database for use by local school districts)); it closely regulates professional development (see 8 N.Y.C.R.R. § 80-3.6); it even sets maximum hours teachers can be required to teach on a daily basis (see 8 N.Y.C.R.R. § 100.2(i)). In light of the foregoing, the court finds that there exists no genuine issue of material fact as to whether defendant SED qualifies as an employer under Title VII. Accordingly, that part of SED’s motion seeking a declaration that it is not a Title VII employer is DENIED, and plaintiffs’ motion seeking the reverse declaration is GRANTED. B. The City Board of Education Defendant BOE submits that it cannot be held liable as an employer under Title VII since it was merely following the mandates of state law as articulated in the relevant statutes and regulations. The Board should not be a defendant, it contends, “because plaintiffs are not challenging any employment practice over which the City Board had any discretion.... ” BOE Mem. in Support at 9. This argument is without merit. As the Board concedes, “[p]rior to the 1991 law [which imposed the state requirements for all new teachers], a person could teach in New York City with only a City license; State certification was not required.” BOE Mem. in Supp. at 7. What the Board neglects to mention in its papers is that the relevant law contained a “grandfather” clause, wherein all teachers who had applied for or received their license prior to January 1, 1991 — the effective date of the new requirements — were unaffected by the new legislation. Laws of 1990, ch. 650, §§ 11,13. Thus, the decision to de-certify those teachers who had applied for or received City licenses prior to 1991 because they did not pass the NTE or the LAST was the Board’s. Over 700 putative class members were protected by the “grandfather” clause and thus were subject to the discretion of defendant Board, which exercised it by de-certifying them and demoting them to substitute status. See Pl.s’ Ex. 43 (Soule Decl.), Class 1 List (showing that 779 Class 1 members received a regular teaching appointment on or before December 1,1990). Furthermore, even if the Board had been acting only under state pressure, that would not suffice to shield it from liability under Title VII. The cases cited by the Board for the proposition that state actors acting pursuant to state law are not hable are, with only two exceptions, distinguishable from the instant case since they were brought pursuant to 42 U.S.C. § 1983, which has a much more stringent standard for liability than Title VII. Section 1983 jurisprudence is simply inapplicable to a Title VII case; the latter, as an anti-discrimination statute, has a much broader standard of liability. See 42 U.S.C. § 2000e(b) (“Employer”) defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person ....” (emphasis added); but see Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (Section 1983 case in which Court held that a municipality is not vicariously liable for the actions of an employee unless the employee acted pursuant to a custom or policy); see also Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir.1995)(elarifying that liability under anti-discrimination law is much broader than under § 1983). The Board does offer two cases which were not brought exclusively under § 1983. In the first, African American Legal Defense Fund, Inc. v. New York State Department of Education, 8 F.Supp.2d 330, 333-34 (S.D.N.Y.1998), the court a dismissed Title VI claim against the Board after determining that “plaintiffs’ complaint alleges causes of actions only against the State.” Id. at 334. That case involved a challenge to the State’s formula for funding schools, however, and the plaintiffs had included the Board as a defendant only to ensure that the court would have more options in fashioning a remedy. Id. As such, it bears no resemblance to the case before the court in which there is no question that defendant BOE played a significant role in the actions taken against plaintiffs. The only Title VII case the Board cites, Andreucci v. City of New Haven, 117 F.Supp.2d 123 (D.Conn.1999), like African American Legal Defense Fund, supra, provides no support for the Board’s position; it is so factually dissimilar from the case before this court that BOE’s decision to cite it is perplexing. In a prior lawsuit seeking a declaratory order, a Connecticut trial court (sustained on appeal) ordered the New Haven Fire Department to change its promotional procedures, since they violated both the city’s charter and civil service regulations. Andreucci, 117 F.Supp.2d at 124 (citing New Haven Firebird Society v. Board of Fire Commissioners of New Haven, et al., 32 Conn.App. 535, 630 A.2d 131, cert. denied 228 Conn. 902, 634 A.2d 295 (1993)). As a result of that order, a number of white firefighters had their promotions vacated and so brought a Title VII action in Andreucci. A close reading of that case reveals that the court granted defendants’ motion for summary judgment because “the promotional process for New Haven firefighters has been rigorously tested by virtue of the state litigation and clearly meets the bona fide seniority or merit system exemption from Title VII.” Id. at 125. The court did not hold, as the Board contends, that the defendant was shielded from liability because it was acting pursuant to a court order, but rather that the plaintiffs failed to meet their evidentiary burden in making out a prima facie case. Accordingly, Andreucci has no persuasive value at all. The Board is unable to cite case-law in support of its position because it does not exist. It is well-settled that Title VII preempts any state laws in conflict with it. See, e.g., Guardians Association v. Civil Service Commission, 630 F.2d 79, 104-05 (2d Cir.1980) (“Guardians I”) (“Title VII explicitly relieves employers from any duty to observe a state hiring provision ‘which purports to require or permit’ any discriminatory employment practice”); Kirkland v. New York State Dept. of Correctional Serv., 552 F.Supp. 667, 675-76 (S.D.N.Y.1982) (“[i]t is clear that state law must yield to federal law in a Title VII case”); Hill v. Berkman, 635 F.Supp. 1228, 1239 (E.D.N.Y.1986) (“[i]t is clear that state legislation in conflict with Title VII is void under the Supremacy Clause”), overruled on other grounds by, Roper v. Department of Army, 832 F.2d 247 (2d Cir.1987); Quinones, 58 F.3d at 277 (“A discriminatory state law is not a defense to liability [for a municipal agency] under federal law; it is a source of liability under federal law” (emphasis in original)). In light of the foregoing, that part of defendant Board’s motion for summary judgment that seeks a release from liability under Title VII’s definition of employer is DENIED. Since there is no doubt that the Board is a traditional employer, as well as one under Title VII (see facts recited supra at note 22), plaintiffs’ cross motion seeking the opposite is GRANTED. IV. The Board of Regents is not a necessary party. Defendant SED urges the court to grant summary judgment on the theory that this court lacks jurisdiction inasmuch as plaintiffs have failed to sue the New York State Board of Regents (“BOR” or “the Regents”). The Department asserts that it is merely an administrative appendage of the Regents: an impotent functionary, a cog in an educational policymaking machinery which is programmed and operated solely by the Regents. The Department argues that it is endowed with no discernible policy making authority. In addition, it cannot waive the Regents’ regulatory requirements that plaintiffs must pass a test to become provisionally certified to teach in the New York public schools. Even if it truly wanted to, defendant SED suggests, it could not effectuate an order of this court with respect to the existence, use and/or administration of the tests in question. Whereas the plaintiffs, the Department asserts, have sued the wrong party, the court is bereft of jurisdiction and this entire case must be dismissed. The Department’s “jurisdictional” argument fails insofar as it is both borne out of a mistaken apprehension of the law and predicated upon a misleading apprehension of the facts which inhere in this case. First, as plaintiffs correctly observe, the question of whether the Department is a proper defendant in this litigation is not dependant upon the inclusion or exclusion of the BOR as a defendant. In short, the argument that “[bjecause plaintiffs ... have not named ... the ... Regents [as a party in this case], the Court has no jurisdiction” is a non sequitur: Regardless of the Regents’ status as a party in this action, the Department, inasmuch as it is a qualified employer pursuant to Title VII, see discussion supra at III.A., is a proper defendant, subject to plaintiffs claims under that statute. Second, since it is an employer under Title VII, and since plaintiffs may accordingly pursue claims against it, regardless of the presence of BOR in this action, it both can and must give effect to an order issued by this court granting any or all relief requested by plaintiffs. Injunctive relief ordered by a federal court is binding on all those in privity with the defendant. See Fed.R.Civ.P. Rule 65(d). Commenting on this rule in Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 65 S.Ct. 478, 89 L.Ed. 661 (1945) the Supreme Court noted: The Federal Rules of Civil Procedure provide [in Rule 65(d) ] that: “Every order granting an injunction and every restraining order is binding only upon the parties to the action their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” This is derived from the common law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in “privity” with them, represented by them or subject to their control. Id. at 14, 65 S.Ct. 478. The record, even as provided in the Department’s somewhat disingenuous description of the substantive significance of the chain of command between SED and BOR, pellucidly reflects that SED and BOR are in privity with respect to the architecture and day-to-day functioning of the educational policy-making apparatus in New York. If the Department is subject to, for example, an injunctive order of this court, so are the Regents. As the Supreme Court observed in Regal Knitwear, “[i]n essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.” Id. at 14, 65 S.Ct. 478. Neither the SED nor the BOR can avoid the reach of the injunctive powers of this court, regardless of whether plaintiff pursues the BOR as a defendant in this action. Plaintiffs have identified a proper defendant and have properly pleaded a case against it under Title VII. Although- the foregoing is sufficient to dispose of the Department’s motion, the court would like to underscore that the Department’s portrayal of its role vis-a-vis the Board of Regents regarding the formulation and administration of policy is misleading. A few examples, in addition to the litany cited in plaintiffs motion papers, suffice to establish the broad policy making authority enjoyed by the Department in relation to the Regents. See, e.g., Ed. Law § 3004 (“The commissioner shall prescribe, subject to the approval of the regents, regulations governing the examination and certification of teachers employed in all public schools of the state.... ”). To the extent that § 3004 makes it abundantly clear that the commissioner writes the rules at issue in this litigation, an order of this court is properly directed at the Department. Defendant’s attempt to seize upon language such as “subject to the approval of the Regents” pursuant to its “jurisdictional” argument is a non-starter in light of Fed.R.Civ.P. 65(d). Since the Regents are in privity with the Department, they would be bound by an order of this court directed at the activity of the Department. Perhaps even more compelling an example of the Department’s authority is described in Ed. Law § 3004-c, which states: “When the commissioner determines that a certification should be denied, the applicant shall be afforded notice and the right to be heard and offer proof in opposition in accordance with the regulations of the commissioner.” This provision is interesting in at least two relevant respects. First, it makes explicit reference to regulations promulgated by the commissioner. Again, perhaps the Regents ultimately adopt, formally or otherwise, the regulations which come across their table; it is clear, however, that the Department is developing, articulating and issuing the substantive rules in this area. In addition, and of especial significance, Section 3004-c is remarkable for what it does not say: that is, the provision is silent with respect to the approval of the Board regarding the denial an applicant’s certification. According to Section 3004-c, SED’s commissioner is in charge here. He or she decides who is in and who is out. In light of the foregoing, the relevant part of the Department’s motion for summary judgment is DENIED. V. Actions prior to January 1,1991 The Department further argues that plaintiffs fail to state a claim against SED for any actions taken prior to January 1, 1991. Prior to that date, the Department claims, New York City teachers were not required to satisfy state certification requirements. Plaintiffs’ own statement of undisputed facts reflects that the Department is correct. See Pl.’s Facts, ¶¶ 60, 61, 74-76. Passage of a licensing examination has been required for provisional certification for most state teachers since 1984. 8 NYCRR § 80.2(q); Ed. Law § 3001. This requirement did not apply to the New York City School District, however, until 1991. Ed. Law §§ 2554, 2673; see also Matter of Chavich, 23 A.D.2d at 59, 258 N.Y.S.2d 677. Until 1991, the City was endowed with independent licensing authority. See Pl.’s Facts, ¶¶ 60, 61. Accordingly, it was allowed to determine its own licensing requirements, so long as they were at least substantially equivalent to those used by the State. See Mackey Decl., ¶¶ 16-17. In 1990, the Legislature abolished the Board of Examiners and decided that the State’s requirements for teacher certification would henceforth be applicable to all teacher candidates, even in the City. See Laws of 1990, ch. 650; Ed. Law § 2569; Pl.s’ Fa