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Court Questions Race-Conscious Pact on School Custodians

By Mark Walsh — May 08, 2011 2 min read

A federal appeals court has returned to a lower court a race- and gender-conscious settlement plan covering testing, recruiting, and seniority of custodians in the New York City school system.

The court said the plan, which stems from a discrimination lawsuit brought in 1996 by President Bill Clinton’s administration, must be analyzed by a federal district judge under a 2009 U.S. Supreme Court decision that backed a reverse-discrimination suit by white and Hispanic firefighters in New Haven, Conn.

“The city defendants’ race- and gender-conscious actions are a poor fit for the wrongs they seek to redress,” said the opinion for a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in United States v. New York City Board of Education.

The 139-page opinion addressed numerous complex issues raised by the 16-year-old lawsuit, which claimed that the city school system used tests that discriminated against blacks and Hispanics and recruiting practices that were biased against blacks, Hispanics, Asians, and women for custodian and custodian engineer positions.

Court papers say that in the years before the suit was filed, 99 percent of such jobs were filled by men, and 92 percent were held by whites. The government alleged that the school system’s practices had a disparate impact on women and minorities in violation of Title VII of the Civil Rights Act of 1964.

The parties reached a settlement of the suit in 1999, but it was later rejected by the 2nd Circuit court. Meanwhile, the school system implemented some aspects of the settlement, providing retroactive seniority to certain minority workers. This prompted a challenge from the incumbent custodians, whose seniority rights were covered by a collective-bargaining agreement.

In its May 5 decision, the 2nd Circuit panel reviewed several rulings by the district judge in the case. The rulings upheld race- and gender-based remedies for some groups of minority and female custodians and applicants.

The 2nd Circuit said those rulings must be reconsidered in light of the Supreme Court’s 2009 decision in Ricci v. DeStefano. In that case, involving promotional tests in the New Haven Fire Department, the high court held that before an employer may engage in intentional discrimination to remedy an unintentional disparate impact (for race or gender, for example), it must have a “strong basis in evidence” to believe it will be subject to disparate-impact liability if it doesn’t take the race- or gender-based action. (I blogged here about the decision and its relevance for schools.)

The 2nd Circuit said the district judge mistakenly applied legal tests for employer affirmative-action plans, when the custodian settlement is not really such a plan but a form of “make-whole” relief for specific individuals injured by the school system’s policies.

The panel said the district court faced a tall task.

“It will, of course, be impossible for the district court to fashion a remedy that makes everyone happy, much less whole,” the court said. “To the extent that the city defendants’ employment practices were discriminatory, there were too many victims to count.”

But some of the white custodians were victims of reverse discrimination, too, the appeals court said.

Judge Reena Raggi concurred in the outcome but said she felt the majority’s “extended discussion” of the issues was not necessary for the remand and could “confuse future judgments actually based on Ricci.”

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A version of this news article first appeared in The School Law Blog.

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