Affirmative Action Special Report
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Fired for Being White

By Nat Hentoff
Saturday, October 5 1996; Page A23

Sometime this fall the Supreme Court will decide whether to review an affirmative action decision by the 3rd Circuit Court of Appeals that has far-reaching consequences for faculty diversity in public schools.

In 1989, the board of education in Piscataway, N.J., decided that one of the business teachers had to be let go for budgetary reasons. The choice was between two teachers – Sharon Taxman and Debra Williams. They had been hired on the same day nine years before, and both were equally qualified. Sharon Taxman, white, was dismissed. Debra Williams, black, kept her job.

The chairman of the school board, Theodore Kruse, said that "by retaining Mrs. Williams, the board was sending a very clear message that our staff should be culturally diverse."

A federal district court essentially agreed with Sharon Taxman that the board had discriminated against her when it fired her for being white.

Moreover, there had been no showing of past discrimination against blacks in the school. Indeed, as Taxman's lawyer, Stephen Klausner, pointed out, "The percentage of black teachers employed by the Piscataway Board of Education is approximately twice that of the applicable labor pool."

The Clinton Justice Department was involved for a time in the case – eventually supporting the Piscataway Board of Education – but there were strong disagreements in the Justice Department as to whether the board actually had a credible case. Nonetheless, the assistant attorney general for civil rights, Deval Patrick – backed by President Clinton – vigorously claimed that nothing in Title VII of the 1964 Civil Rights Act "prevented the Piscataway board members from making the choice they did."

Last month, the 3rd Circuit Court of Appeals thumpingly disagreed – 8 to 4 – with Patrick and with the president in Sharon Taxman v. Board of Education of the township of Piscataway.

Judge Carol L. Mansmann, speaking for the majority of the court, made clear that the desire for diversity, although admirable, could not all by itself justify the firing of a teacher because she is of the wrong race.

The decision is based on statutory, not constitutional, grounds. But because it further clarifies the boundaries of Title VII's antidiscrimination provisions in this area, the decision – if affirmed by the Supreme Court – could affect many more people than judicial decisions concerning law school admissions.

Judge Mansmann pointed out that the board of education admitted it did not insist on diversity in this case "to remedy the effects of prior employment discrimination . . . or underrepresentation of blacks within the Piscataway School District's teacher work force as a whole."

Accordingly, Title VII of the Civil Rights Act, said the court, has indeed been violated. As Marcia Coyle noted in the National Law Journal, this 3rd Circuit decision holds that "employers' affirmative action plans do not run afoul of Title VII's antidiscrimination mandate when they respond to a history of racial discrimination or a manifest racial imbalance in the work force. But lacking these two purposes, even a plan 'with a laudable purpose,' such as to promote racial diversity, will violate the statute."

One of the dissenters, Judge Theodore McKee, spoke of the importance to students of a culturally diverse faculty because it makes students "more understanding of people of all backgrounds."

But when the students see a teacher being removed from the faculty solely because of his or her race, what lesson does that teach the students?

Sharon Taxman, as it turned out, was later rehired because a business teacher resigned, but if Title VII is expanded to allow racial preference even when there is no past or present discrimination, students may become less – rather than more – "understanding of people of all backgrounds."

Because of the compelling references to Supreme Court case law in the 3rd Circuit majority opinion, I did not think the Piscataway Board of Education would appeal the decision. Yet, by a 9 to 0 vote, it has voted to do just that.

If the Supreme Court grants review, this may intensify the national debate on the definition of affirmative action. Particularly, the difference between hiring for diversity and, for the same "laudable purpose," firing people – who have established jobs – because of their skin color.

The latter action, as the Supreme Court has said in a previous case, "imposes the entire burden of racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive."

© Copyright 1996 The Washington Post Company

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