High Court Asks Justice Dept. for Comment on Racial Layoff Case
By Joan Biskupic
Acting in the high-profile case of a white teacher who was laid off while a black colleague with equal credentials was retained, the Supreme Court yesterday asked the Justice Department for its views on whether such actions violate federal law.
The case, out of Piscataway, N.J., has gained national prominence and brought renewed attention to the issue of whether employers can take race into account in order to foster diversity in the work force. Although the Supreme Court has not yet decided whether to hear the case, asking the Justice Department to weigh in may be a signal that the court is inclined to accept the case later this year.
How the case is decided could affect the race-based policies of all employers, including private companies with voluntary affirmative action programs. A lower court ruled against the Piscataway school board, saying employers could not consider a worker's race in such employment decisions, except to compensate for past discrimination.
Yesterday's order forces the administration into the center of the politically difficult case. During George Bush's presidency and in the early months of Clinton's, the Justice Department sided with the white teacher and was a party to the bias lawsuit she filed against the school board. But during Clinton's first term, the department switched sides to favor the board and arguments for racial diversity.
The Justice Department was unable to fully argue its position the second time around and since then, through personnel changes and responses to separate high court decisions, the administration's overall affirmative action stance has been moderated. The department's submission in Board of Education of Piscataway v. Taxman, which could reawaken internal conflicts over race-based policies, will clarify the administration's position.
The Justice Department was not given a deadline for its response, and a spokesman said yesterday it could take months.
The case began in 1989 when the Piscataway school board needed to lay off a teacher, and chose Sharon Taxman, who is white, over a black teacher, Debra Williams, with the same amount of seniority and strikingly similar credentials. Both were on the high school business teaching staff in the small, central New Jersey town.
When the board, paring the business department, chose to keep Williams over Taxman, it acknowledged that it was not trying to remedy any past discrimination or compensate for the underrepresentation of minorities. It said it wanted to provide business students with a racially diverse teaching staff. School officials have said Taxman and Williams were equally qualified.
Joined at the time by the Justice Department, Taxman contended that the board's policy violated Title VII of the Civil Rights Act of 1964, which protects public and private employees from race discrimination. A federal district court ruled for Taxman and awarded her $144,000 in back pay. Then, as the school board was appealing the case in 1994, the Justice Department switched sides to defend affirmative action programs aimed at racial diversity.
The department's civil rights division, led by Deval L. Patrick, argued that nothing in Title VII prevented the board from considering that Williams was the only black teacher in the business department and that there was some value in keeping her on because of her race.
But the U.S. Court of Appeals for the 3rd Circuit denied the Justice Department's request to submit a "friend of the court" brief and considered the Justice Department's move a motion to withdraw as a party (on the side of Taxman). The appeals court ordered the government removed from the case.
When the 3rd Circuit ruled for Taxman last year, the majority's broadly worded opinion said the benefits of diversity in education are not significant enough to justify consideration of race except "to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities."
In appealing, the Piscataway school board called the case a "lightning rod in a stormy national debate" over interpretations of Title VII. "It also raises the important question of whether education presents unique concerns when fashioning rules limiting consideration of race in employment generally."
The board's lawyer, David B. Rubin, said yesterday that if the 3rd Circuit ruling stands or is adopted by the Supreme Court, it would dramatically limit affirmative action as it is known today.
Stephen E. Klausner, who represents Taxman, however, maintains that she can win the case without great disruption to affirmative action nationwide, so long as any high court decision focuses only on layoffs, rather than other hiring decisions.
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