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  • Supreme Court Report

  •   Administration Shifts Stand on Diversity Case

    By Joan Biskupic and Peter Baker
    Washington Post Staff Writers
    Friday, June 6, 1997; Page A01

    Shifting positions in a high-profile affirmative action case, the Clinton administration yesterday urged the Supreme Court not to take up the case of a New Jersey school board being sued for laying off a white teacher to keep a black teacher with equal qualifications.

    The White House said it dropped its initial support for the school board strictly for tactical reasons, fearing it would lead to a defeat at the high court that would then become binding precedent for the entire nation. But the decision nonetheless puts President Clinton in the awkward position of encouraging the high court to leave in place a ruling the administration doesn't agree with.

    That ruling, by the 3rd U.S. Circuit Court of Appeals, found that employers cannot favor minorities simply to maintain racial diversity in the workplace.

    David B. Rubin, a lawyer for the school board, said: "We're disappointed. But we never relied on them [the administration] for help anyway. We can't say they are turning their back on us. But one can only wonder how they can write a brief that says the court `incorrectly' decided a case, then say the Supreme Court cannot correct that."

    Yesterday's action comes just a week before Clinton plans to unveil a major initiative aimed at fostering racial reconciliation in the country. By refusing to take a strong stand at the court, Clinton passed on what aides once considered a prime opportunity to embrace affirmative action through a case that embodies many of the most troubling and unresolved racial issues in America.

    The case from Piscataway, N.J., has captured national attention, in part because it starkly pits a white teacher against a black colleague, but also because it touches on the highly emotional question: Can someone be laid off simply for being the wrong color? Its potential significance is also broad because the dispute involves a federal law that covers both public and private employers.

    In deciding whether to recommend that the Supreme Court hear the Piscataway school board's appeal, administration officials said they consulted and won the approval of civil rights groups. Jesse L. Jackson, who last week sent Clinton a letter complaining about the administration's enforcement of civil rights laws, yesterday declined through a spokeswoman to comment on the Piscataway case.

    The justices are likely to announce by the end of June whether they will review the 3rd Circuit ruling, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands. That ruling found that Title VII of the 1964 Civil Rights Act prohibits any consideration of race in layoffs, except to remedy past discrimination. The school board argued that it laid off the white teacher in the interest of creating a more racially diverse staff.

    While the administration has urged the court to reject the case, it also emphasized that the 3rd Circuit "incorrectly decided an issue of broad national significance." Throughout the filing, Justice Department lawyers said employers still should be able to take race into account in trying to maintain a diverse workplace.

    "[E]xposing students to a diverse faculty on a daily basis can dispel stereotypes and misconceptions and foster mutual understanding and respect," the administration said in its filing, noting that the same principle applies in other workplaces.

    But the administration said the Piscataway facts are unique and the school board had not established a record of a need for diversity in the particular high school department.

    "A majority of the court might conclude that, independent of whether [federal law] permits non-remedial affirmative action, [the school board] has not sufficiently justified the use of race in this instance," the administration said in its filing in Piscataway Township Board of Education v. Taxman.

    The case began in 1989 when the Piscataway school board, facing budget cuts, decided to eliminate a position in the high school's business education department. It was deciding whether to lay off Sharon Taxman, who is white, or Debra Williams, who is black. Both had started teaching on the same day nine years earlier and had similar qualifications.

    Saying there was value in a diverse faculty in the business department, the board deliberately chose Williams over Taxman, rather than flip a coin. Taxman sued under Title VII for reverse discrimination.

    The Bush administration, siding with Taxman, filed a complaint against the school board. But in 1993, after Clinton won the presidency, the administration switched sides and began favoring the school board. The 3rd Circuit, however, refused to allow the government to enter the case on the school board's side and said it would treat the government's action as a request to withdraw from the case.

    Administration lawyers said that given the court's increased scrutiny of race-based policies, in government contracting, for example, they do not want it to take a case in which the facts were not favorable for them. They also noted that while the court has endorsed affirmative action in prior cases, it has not approved it in the difficult area of layoffs.

    "On the one hand, the president continues to be strongly in favor of affirmative action in the employment area," said White House counsel Charles F. C. Ruff, "but this is not a vehicle that was suitable."

    © Copyright 1997 The Washington Post Company

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