Federal court allows NYC custodians to challenge discriminatory consent decree

Washington, D.C. – In a case with important implications for consent decrees involving racial and gender preferences, a federal appeals court ruled on Friday that New York City school custodians be allowed to challenge preferential employment and hiring policies for female and minority custodians. The custodians will argue that the preferences, which are part of a consent decree, are unwarranted and result in discrimination against males and non-minorities, which violates both the Constitution’s equal protection clause and federal civil rights laws.

The case, Brennan v. New York City Board of Education, began with a lawsuit brought by the Clinton Justice Department, charging that the Board of Education’s practices and civil service exams had a discriminatory impact on recruitment, hiring, and promotion of female and minority custodians and custodian engineers. A settlement agreement resulted, in which the Board was to give women and minorities retroactive seniority, as well as preferences in promotions and test preparation.

Despite more than 300 objections, a federal district court accepted the agreement after denying a request by three white male custodians to intervene in the suit. The three custodians, represented by the Center for Individual Rights (CIR), appealed to the U.S. Court of Appeals for the Second Circuit. On Friday, the Second Circuit reversed the denial of intervention, noting that “the entire burden of the settlement . . . is upon individuals like appellants.” The appeals court remanded the entire case back to the district court, ruling that the three custodians must be allowed “an opportunity for discovery and the presentation of evidence as a party to the action.”

On remand, the custodians will show that neither New York City nor the U.S. identified any specific discriminatory recruiting practices, nor alleged intentional discrimination of any kind. Instead, the allegations use factors such as poor minority performance on the exams and a lack of female job applicants as supposed evidence of discriminatory impact. Such factors alone provide no legal justification for discrimination, so the custodians will ask the court to rescind its consent decree and reject the preferences.

“Allowing this consent decree to stand 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.”