Reverse discrimination challenged in federal court

New York City custodians ask court to reject racial and gender preferences

Washington, D.C. – In a case with far-reaching implications for the future of racial and gender preferences, a federal appeals court today scrutinized New York City’s adoption of preferential employment and hiring policies for female and minority school custodians. During oral argument in Manhattan this morning, Michael Rosman urged the U.S. Court of Appeals for the Second Circuit to reject a settlement agreement which includes the preferential practices. Rosman, General Counsel of the Center for Individual Rights (CIR), said the resulting reverse discrimination against white males violates both the Constitution’s equal protection guarantee and federal civil rights laws. Rosman argued on behalf of three New York custodians who oppose the settlement, which puts them at a competitive disadvantage.

New York’s preferential policies spring from a lawsuit against the city by the Clinton Justice Department. The suit charged the Board of Education with discrimination in recruitment, hiring, and promotion of female and minority custodians and custodian engineers. Specifically, Justice alleged in U.S. v. New York City Board of Education that the Board’s recruiting practices and civil service exams had a discriminatory impact. A settlement agreement resulted, in which the Board gives women and minorities preferential promotion and test preparation, as well as retroactive seniority. Despite more than 300 objections, a federal district court accepted the agreement after denying a request by CIR’s clients to intervene in the suit. Blocked from contesting the agreement’s legality, the three custodians appealed to the Second Circuit.

Although the racial and gender preferences might be legally justified if there were clear evidence of intentional past discrimination, there is no such evidence in this case. Rosman reminded the court today that neither the city nor the U.S. identified any specific discriminatory recruiting practices, nor alleged intentional discrimination of any kind. Instead, the parties point to factors such as poor minority performance on the exams and a lack of female job applicants as evidence of discriminatory impact. Because there is no legal justification for the reverse discrimination, Rosman asked the court today to reject the preferential promotion and seniority. Alternatively, he said the custodians should be allowed to intervene so they can challenge the preferences back in the district court.

“This settlement agreement would set a dangerous precedent,” explained Curt Levey, CIR’s Director of Legal & Public Affairs. “The government would be free to hand out racial and gender preferences anytime it feels like correcting a perceived disparity in test scores, workforce composition, or the job applicant pool.”