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SEE YOU IN COURT! - July/August 2009

July 21, 2009

Authors: Thomas B. Mooney

Bob Bombast was concerned. When he was Chair of the Policy Committee of the Nutmeg Board of Education a few years back, Bob oversaw the adoption of the district’s minority recruitment policy. However, since that time there has been very little change in the diversity of the work force of the Nutmeg Public Schools. To make matters worse, at the end of last year the Board had to layoff a large number of newly-hired teachers, undoing recent efforts to make the workforce more diverse.

Quite frustrated at this turn of events, Bob was convinced that decisive action was necessary. At the next meeting of the Board of Education, Bob challenged Mr. Superintendent in public session on how he was going to increase the diversity of the Nutmeg workforce. Quick on his feet, Mr. Superintendent announced a new initiative. “Of course, we always want the best qualified employee,” responded Mr. Superintendent. “But in this economy, there are many qualified employees. So I think that we should give preference to the minority candidate whenever his or her qualifications are comparable to the most qualified candidate. That way we can move to a more diverse workforce in accordance with Board policy.”

Some Board members were skeptical about what appeared to be an impulsive and ill-conceived reaction to Bob’s question, and Mrs. Chairperson asked: “Gee, Mr. Superintendent. Won’t that approach discriminate against non-minority candidates?”

“Of course,” admitted Mr. Superintendent. “But just a little. And for a good cause – to increase the diversity of the school district’s workforce. If there is a candidate whose credentials are far superior, he or she will be hired, because the minority candidate’s credentials would not be comparable. But if we don’t give minority candidates some edge, how will we ever meet our goals?”

Other Board members expressed similar reservations that this new approach might be discriminatory, and Nancy Newshound, ace reporter from the Nutmeg Bugle, scribbled furiously to get their comments down. After further debate, however, the Board members reluctantly amended the policy as proposed by Mr. Superintendent.

The headline in the Bugle the next day blared, “Board invites legal challenge!” and it did not take long for such a challenge to materialize. At its very next meeting, the Board voted to appoint a new principal, and sure enough, the successful candidate is a minority. Able Assistant, an assistant principal in another Nutmeg school, was one of the unsuccessful candidates, and she was convinced that she lost out on racial grounds. She immediately filed an FOI request, in which she demanded all documents that the Board considered regarding all of the applicants. She also filed a complaint with the Connecticut Commission on Human Rights and Opportunities.

Mr. Superintendent was upset that one of his administrators would have the temerity to challenge the Board’s action. He called her right up and told her that the district would not be releasing any of the documents she requested, because they contain personnel file information that is exempt from disclosure under the FOIA. He also told her that she was on thin ice in filing a complaint. He abruptly ended the conversation by telling Able that he “would not forget this . . . .”

Will the Board prevail in the complaint by Able Assistant? Do you see any other problems with the Board’s position? 

                                                * * *

As with so many legal issues, the answer to whether the Board may prevail is “it depends.” However, the Board will be on the defensive because its new policy gives preference on the basis of race. To make matters worse, Mr. Superintendent’s threatening comment may well cause more serious problems down the road.

Discrimination in employment on the basis of race is, of course, generally prohibited. However, for years the United States Supreme Court has struggled with the question of when efforts to promote diversity are permissible remedial actions and when they constitute illegal discrimination on the basis of race. For example, in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Court invalidated a layoff procedure that gave minority teachers special protection, because it had the effect of discriminating against non-minority teachers. However, in that case the nine justices of the United States Supreme Court issued six different opinions on the subject. In some later cases, the Court struck down race-based actions after applying the strict scrutiny standard, which authorizes such action only when there is a compelling governmental interest and no less intrusive way to achieve that interest. For example, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), a divided Court voted 5-4 to invalidate race-conscious school admission procedures because the districts did not meet the difficult strict-scrutiny standard.

Recently, the Court took another look at the issue of when race-based remedial actions are permissible, and sadly the picture remains murky. In Ricci v. DeStefano, __ U.S. __ (June 29, 2009), the Court considered whether the City of New Haven violated Title VII when it threw out the results of a promotional examination on which whites outperformed minority candidates. Under Title VII, employers may not use selection procedures that have a disparate impact on protected minorities unless the procedure is justified by business necessity (disparate impact prohibition). Citing its concern that unsuccessful candidates would bring a disparate impact claim, New Haven successfully defended its actions in both the federal district court and the appellate court. However, on a 5-4 vote (again), the Court ruled that race-based actions are permissible only if an employer has “a strong basis in evidence of disparate-impact liability.” Unless and until the Court adopts a different standard in a future case, employers may not make decisions based on race except in the rare circumstance that there is “strong evidence” that they would liable if they did not take such action.

Of course, it may be possible for Nutmeg to refute Able’s claim; the successful candidate may well be more qualified, which would make the Board’s policy irrelevant. However, the policy certainly puts the Board on the defensive. More significant, Mr. Superintendent violated a cardinal rule by threatening Able for filing a claim. Her action was protected by statute, and such retaliation is expressly prohibited; indeed the success rate for retaliation claims is higher than it is for discrimination complaints.

Finally, Mr. Superintendent was wrong to claim that all selection documents are confidential. The FOIA does permit public agencies to maintain the confidentiality of the identity of unsuccessful candidates for employment. However, other information, including qualifications such as education, training and experience, is subject to public disclosure as long as personally-identifiable information can be redacted.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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