School custodians case poised for oral argument

On August 3, 2009, CIR filed the final set of briefs in its mammoth case on behalf of New York City school custodian (school building superintendent) John Brennan. The next step is oral argument before a three-judge panel of the Second Circuit Court of Appeals.

The case began some years ago, when the U.S. Justice Department sued the City of New York because there were not “enough” school building superintendents in its employ who were not white males. Despite the lack of evidence that this “imbalance” resulted from discrimination, the city quickly agreed to a settlement with the federal government under which temporary female and minority superintendents would get permanent status and retroactive seniority — at the expense of white male custodians such as soon-to-be CIR client John Brennan. Represented by CIR, Brennan moved to make himself a party in the case in order to challenge the idea that race discrimination is a permissible response to mere numerical imbalances.  We have hopes this case will go to the next level, becoming the vehicle by which  the Supreme Court will fill in some significant blanks it left in its recentRicci firefighters decision.

Perhaps a measure of the importance of this case (or just its breadth and difficulty) is that the Second Circuit has been unusually slow in setting a date for oral argument. Every week we expect the order setting that date, and every week (so far) we’ve been disappointed. Never mind; whenever the court is ready, so are we.