Justice Dept. Shifts Stance in Bias Case
By Joan Biskupic and John F. Harris
The Clinton administration has decided that the actions of a New Jersey school board are not legally defensible but will urge the Supreme Court to uphold the basic principle of affirmative action that caused the board to lay off a white teacher to keep an equally qualified black teacher.
The legal brief in the Piscataway, N.J., case, expected to be filed Monday, is the latest twist in a case that has tormented the administration for three years. While language in the brief was still being negotiated yesterday, Justice Department and other sources said the administration will reverse course and assert that the New Jersey school board failed to prove the need for racial diversity in a high school business education department.
The case is widely considered the most important one coming before the Supreme Court next term. The dispute could be used to set an important new standard for affirmative action in the workplace by laying out the circumstances under which employers, public and private alike, could use race-based policies.
The high-profile controversy began in 1989 when the Piscataway school board, in the midst of a financial crunch, told a teacher in its business department, Sharon Taxman, that she would be laid off so that the school could keep the only black teacher in the department, Debra Williams. Both women had been hired on the same day nine years earlier.
During the Bush administration, the federal government backed the white teacher, but then switched sides after President Clinton took office and supported the school board. Last June, the administration urged the Supreme Court not to take the case at all, a position that left the administration in the awkward position of supporting a lower court ruling that went against the school board.
Now, it appears ready to say that while broader principles of affirmative action should prevail, the school board's action is indefensible.
The impending change highlights what many current and former administration officials think was a mistake in the first place getting involved in what they believe is a case with facts that are unlikely to ever be repeated and in circumstances that are politically indefensible.
"Having a job is different than wanting a job. Being hired is different than being fired," said a former administration official.
Senior officials said yesterday that there has been no philosophical shift: The administration still supports the goals of achieving workplace diversity through affirmative action, just not in the way Piscataway officials went about it.
In essence, what the brief will try to do is present a way for the Supreme Court to rule narrowly on the case, rejecting the school board's actions but supporting the broad principles of affirmative action that lay behind it.
In the case of Piscataway, for example, the school never demonstrated what social goal would be achieved by having a diverse business education department. The lower court ruling at issue in the case said the 1964 Civil Rights Act allows race-based preferences only to redress past discrimination.
Solicitor General Walter Dellinger, who is writing the administration's brief, has contended that affirmative action can be justified not only as a remedy to past discrimination but as a route to racial diversity. In education, practices aimed at diversity could be justified for the enrichment of the academic experience. On police forces, it could be a better relationship with an integrated community.
But Dellinger, who along with White House counsel Charles F.C. Ruff has played a key role in determining the language of the brief, has long argued that the Piscataway layoff could not be defended, both because the school board had not formally justified its reasons for diversity at the departmental level and because race-based layoffs, as opposed to hiring or promotion decisions, require an especially heavy burden of justification.
David B. Rubin, a lawyer representing the Piscataway school board, said yesterday he was disappointed by information he had heard about the Justice Department backing away from his client's position. "I don't understand politically what they get doing that," he said. "This case has been an embarrassment for the administration. They are double-flip-flopping back again."
Justice Department lawyers face a court that has been increasingly suspicious of race-based policies, most recently in the creation of voting districts and public contracting programs. The high court has never ruled that affirmative action could be used only in the context of past discrimination, but the justices have set a higher bar for its use in layoffs. The court has distinguished between an employer's hiring a minority worker out of a large pool of applicants and laying off one particular white person to preserve a black person's job. The latter situation is much more likely to infringe on the white worker's rights.
In a key 1986 case, the court ruled unconstitutional an affirmative action plan voluntarily adopted by a school board, under which white teachers with more seniority were laid off to save the jobs of newly hired black teachers. The court said the plan was adopted without any showing that the school board had previously discriminated against black teachers.
Since they first became involved in the Piscataway case, administration officials have argued over its merits. The 1994 switch to support the school board was pushed by Deval L. Patrick, then assistant attorney general for civil rights. Now a lawyer in private practice in Boston, Patrick said yesterday that he still thinks the board position should be defended. "Sometimes you have to fight the battle you're in, not the battle you want it to be. If you believe that race can be a consideration when an employer is taking all factors into account, then you have to allow for the possibility that all other factors are going to be equal."
But a former administration official who was involved in deliberations in 1994 said yesterday, "It's the ultimate Vietnam story: You have to burn the case in order to save the policy."
© Copyright 1997 The Washington Post Company