In United States v. New York City Board of Education, LDF is defending the lawfulness of a 1999 settlement between the Board of Education and the U.S. Department of Justice (DOJ). In 1996, DOJ sued the Board of Education for employment discrimination. The evidence established that African-Americans, Latinos, Asian Americans, and women were disproportionately excluded by the Board’s hiring process for permanent school custodian positions, with the result that most could only obtain provisional employment. Provisional custodians do the same work as permanent custodians and are similarly qualified, but they lack many of the job benefits that permanent custodians enjoy. For instance, they can be fired at any time and have no ability to obtain transfers and promotions.
The Board of Education settled with DOJ in 1999. The Board agreed to give permanent positions with retroactive seniority to minority and female provisional custodians affected by its discriminatory hiring practices. When a group of white custodians challenged the lawfulness of the settlement, DOJ proposed revisions that would have dramatically reduced the remedies it had previously negotiated. In 2004, LDF intervened at the request of African-American and Hispanic custodians whose remedies could have been eliminated by DOJ’s change in position.
On September 11, 2006, New York Federal District Court Judge Frederic Block upheld key job benefits received by minority and female custodians in the New York City public schools. Judge Block held that the job benefits, including permanent civil service appointments and retroactive seniority, were a permissible remedy for the Board of Education’s past discrimination in the hiring of school custodians.
Following the District Court’s decision, the case was appealed to the U.S. Court of Appeals for the Second Circuit. LDF defended the settlement in the federal appellate court. There LDF argued that it is important that the original settlement be upheld not only to guarantee minority school custodians the job benefits they would have received but for the Board’s illegal practices, but also to defend the ability of employers to use of race-conscious measures as a way to remedy prior discrimination.