The Justice Department's diversity and minority rights policies are under question. What did Joel Klein, now Chancellor of the New York City Department of Education, know about these questionable policies when he worked as assistant attorney general in the Justice Department's antitrust division?

A 1999 case between NYC minority school custodians and the Board of Education was settled, but then was abruptly changed by the Justice Department:

ACLU Defends NYC School Custodians After Justice Department Dumps Their Discrimination Case
October 23, 2002

NEW YORK-The American Civil Liberties Union today said that it is defending 20 New York City school custodians whose discrimination lawsuit was recently abandoned by the U.S. Department of Justice and who as a result now stand to lose their seniority, their benefits and their jobs.


FOR IMMEDIATE RELEASE

NEW YORK-The American Civil Liberties Union today said that it is defending 20 New York City school custodians whose discrimination lawsuit was recently abandoned by the U.S. Department of Justice and who as a result now stand to lose their seniority, their benefits and their jobs.

"The Justice Department may have abandoned our clients, but that doesn't mean our clients will stop seeking justice," said Emily Martin, a staff attorney with the ACLU's Women's Rights Project, which is today filing papers seeking to intervene in the case.


At a news conference in New York, nine school custodians, joined by ACLU Women's Rights Project attorneys Namita Luthra (second from left, front) and Emily Martin (back row, center), said they were fearful for their jobs and retirement plans after the Justice Department dropped its defense of their discrimination cases.

"Many of our clients turned down offers of permanent employment because they were told that the Justice Department would defend their job security under the settlement agreement," Martin added. "But the Justice Department didn't even have the courtesy to tell them that they had been dropped from the case."

At issue is a 1999 settlement agreement in U.S. v. New York City Board of Education on behalf of 59 women and minority custodians in New York City schools. The agreement ended a lawsuit in which the Justice Department had accused the Board of Education of employment discrimination on the basis of race and sex in its recruitment and hiring of permanent custodians and custodian engineers. The agreement awarded 59 women and minorities working as custodians retroactive seniority and permanent employment status. Custodians supervise and are responsible for the maintenance, repair and upkeep of public school buildings and grounds.

The ACLU sought to intervene in the case at the request of the custodians after the Department of Justice abruptly reversed itself last April and declined to defend the bulk of the agreement against a challenge brought by a group of white male custodians. The challengers have asked the court to immediately strip permanent employment status and retroactive seniority from all women, African-Americans, Hispanics, and Asians who received it under the settlement agreement.

"The Justice Department promised to stick by this agreement and now they have betrayed us," said Janet Caldero, the lead client in the ACLU litigation. "Because of this broken promise, I stand to lose seniority in my job, which directly affects my retirement plans, and some of us may lose our jobs."

Caldero, who works at P.S. 199 in Queens, was hired in 1992, shortly after the Justice Department began investigating the Board of Education for employment discrimination. But her employment -- and that of other women hired around this time -- was provisional, meaning they lacked civil service protections, did not accrue seniority, and were not eligible for various salary enhancing benefits.

Marianne Manousakis, a custodian engineer at P.S. 153 in Brooklyn, said she was disturbed that "the Justice Department couldn't even be bothered to call us and tell us it was no longer defending our rights. And when we called to find out what was going on, they gave us the runaround." Manousakis stands to lose her job if the settlement agreement is dissolved.

Martin noted that despite the Justice Department's reversal, even the Board of Education, the subject of the lawsuit, has not reneged on its promise to defend the settlement agreement. However, she added, "it is irresponsible of the Justice Department to leave the defense of women and minority custodians to the very institution that is responsible for the discrimination they experienced."

The dramatic underrepresentation of women and minorities in custodian jobs that led the Justice Department to sue the Board of Education is still prevalent today. According to papers filed by the Justice Department, in 1993, 92 percent of custodians employed by the Board of Education were white and 98.5 percent were men on a staff of 865. Today, over 96 percent of the approximately 800 custodians are men, and very few of them are minorities.

The ACLU noted that the custodian case is not the first time the Ashcroft Justice Department has reversed its position on important civil rights litigation. Last year, the department dropped its prosecution against the Philadelphia transit authority for using a physical fitness to discriminate against women applicants for police jobs. And in March, the Justice Department expressed its willingness to sign off on an early end to a settlement agreement in a notorious racial discrimination case against the Adam's Mark hotel chain. The department has also sought to end its involvement in several landmark cases involving police abuse reform.

The ACLU's request to intervene was filed today in U.S. District Court for the Eastern District of New York on behalf of 16 women and four men, all of them custodians employed by the Board of Education who received awards under the settlement agreement that are no longer being defended by the Justice Department.

The request involves two cases: the original lawsuit, U.S. v. New York City Board of Education, in which the women and minority custodians are seeking to become plaintiffs, and Brennan v. Ashcroft, in which the women and minority custodians are defendants against a lawsuit by the white male custodians.

Judges Robert Levy and Frederic Block, who are overseeing the cases, must approve the ACLU's request to enter the cases before its involvement in the lawsuit can proceed. The ACLU is asking that the request to participate in the lawsuit be discussed at a scheduled court conference on October 30.

The Complaint is available at: http://www.aclu.org/Files/OpenFile.cfm?id=11014

and other legal documents: http://www.aclu.org/news/NewsPrint.cfm?ID=11011&c=33