Posted on September 18, 2006

Constitutional Custodians

New York Sun, September 15, 2006

Finally, some justice for New York’s public school custodians and a Utah senator. Those custodians, a small group of white men who were disadvantaged by an illegal settlement between the city and the Clinton justice department in 1999, are the big winners in this week’s ruling barring the city from tinkering with seniority in respect of layoff decisions.

The significance of this ruling extends beyond the five boroughs. Senator Hatch, as chairman of the judiciary committee in the 1990s, took all kinds of flak from the left for his unwillingness to confirm Bill Lann Lee as the head of the Clinton justice department’s civil rights division. Mr. Hatch and his Republican colleagues opposed Mr. Lee’s nomination on the grounds that Mr. Lee had shown himself to be an unreliable interpreter of Supreme Court precedents in respect of affirmative action. Mr. Lee’s confirmation never made it through the Senate, leading Mr. Clinton to place Mr. Lee in the job through one of the administration’s most controversial recess appointments.

Now a federal judge in Brooklyn has swept some of the unconstitutional affirmative action debris out of the custodian settlement between Mr. Lee’s civil rights office and the city. The judge, Frederic Block, was himself a Clinton appointee, but in a recent ruling he evinced little sympathy for a key aspect of the deal. The case, launched in 1994 by Deval Patrick, then assistant attorney general for civil rights, had alleged that a civil service exam administered to job applicants effectively discriminated against minorities and women.

The settlement, eventually signed by Mr. Lee, granted retroactive seniority to most of the 59 minority and female employees covered in the agreement. Because seniority plays a role in pay scale, building assignment, and layoffs, the settlement had the effect of discriminating all over again, this time against white men who had been on the job already.

Judge Block ruled that, while the settlement is acceptable in respect of building assignments and pay grades, it’s clearly illegal in effectively basing lay-off decisions on race. Judge Block determined that previous courts have already struck down such lay-off affirmative action as running afoul of both the Civil Rights Act and the 14th Amendment. The ruling should have been foreseen.


At the time Mr. Lee’s confirmation was scuttled, the New York Times editorialized that Mr. Hatch and colleagues had “acted with contempt for civil rights and the rights of Senate colleagues.” Mr. Lee had run afoul of Mr. Hatch, the Times went on to say,”simply because he favors upholding the law.”

This week’s ruling in the New York case points up which side in the confirmation fight actually understood the law, and guess what — it wasn’t Mr. Lee. The Times’s pick trammeled the constitutional rights of school custodians and helped to threaten New Yorkers with a massive tax increase. Mr. Hatch deserves credit for being more attuned than the Times editors to the interests of New Yorkers.