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  •   U.S. Shift on White Teacher's Firing Draws Mixed Reactions

    By Joan Biskupic
    Washington Post Staff Writer
    Saturday, August 23, 1997; Page A07

    Civil rights groups voiced mixed reactions yesterday to the Clinton administration's new legal stance against a New Jersey school board that laid off a white teacher to keep a black teacher of equal qualifications.

    The administration, in a legal brief filed yesterday, urged the Supreme Court to rule against the Piscataway, N.J., school board, a politically embarrassing shift for a White House that at first backed the school board.

    "Given the number of times the federal government has flip-flopped in this case, I don't know how much credibility the government's brief will have," said Chris Hansen, a lawyer with the American Civil Liberties Union. ". . . But the signal the brief sends is hostility toward affirmative action."

    Yet Theodore M. Shaw, a lawyer for the NAACP Legal Defense and Educational Fund, said the administration's overall endorsement of affirmative action contained in the brief was more important than its new denouncement of the school board's action.

    "I don't think the question from our standpoint is whether Sharon Taxman [the laid-off white teacher] should get the judgment," Shaw said. Rather, he contended, it is critical that the government give the high court "rationale about the value of diversity" in the workplace.

    A key question in the case is whether it is legal under Title VII of the 1964 Civil Rights Act for employers to use affirmative action in instances when there has not been past discrimination. A lower court ruled race-based policies can be used only to remedy past bias, but the Clinton administration wants to ensure that the high court leaves the door open to affirmative action plans aimed at diversifying the workplace and serving broad societal goals.

    Beyond the political complications of the case, Piscataway Township Board of Education v. Taxman is widely considered the most important dispute of the upcoming court term. A ruling could change how easy it is for public and private employers to invoke policies that favor racial minorities at a cost to white workers.

    In its filing, the Justice Department said an employer who invokes race as a factor in layoffs should have a heavy burden of justification. Unlike in a hiring or promotion, laying off an employee directly affects one person and as a result is more likely to violate individual rights.

    Taxman asserted that the school board acted illegally in 1989 when it forced her out of the high school business education department and kept teacher Debra Williams, who is black. Both women had been hired the same day nine years earlier and the school board considered their credentials equal. After Taxman sued, a lower court awarded her $144,000 in back pay and damages.

    The Clinton administration noted that the board justified the layoff on the grounds that keeping Williams (the only black in the business education department) was necessary to promote diversity. Yet at a time when the entire Piscataway high school was racially diverse, the board failed to show why diversity in the business department was necessary for any compelling educational objective, according to the brief signed by Solicitor General Walter E. Dellinger.

    The school board would have had an easier time defending the use of race, the administration asserted, if it had assigned a teacher to one school rather than another to ensure that the faculties at all schools were racially diverse. The administration cautioned overall that "a simple desire to maintain diversity for its own sake" should not be permitted. As an example of a permissible diversity, the brief cited the need for a mixed police force that could garner public support in an atmosphere of racial unrest.

    The new position in the Piscataway case flows from a 1995 administration memo reacting to a Supreme Court ruling requiring greater scrutiny of race-based policies. Overall, Justice Department lawyers believe that at a time of increased court scrutiny of affirmative action, they need to be discerning in their defense of it, lest they hurt their chances of winning court approval for any racial diversity policies.

    © Copyright 1997 The Washington Post Company

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