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Justice Dept. Flips Stand on Affirmative-Action Case

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Washington

In an unusual move, the Justice Department switched sides in a pending case last week to oppose a white teacher's challenge to her school district's affirmative-action plan.

In a friend-of-the-court brief filed last week in the U.S. Court of Appeals for the Third Circuit, the department contended that its own lawyers and a lower court had erred in holding that the Piscataway Township, N.J., school board could not decide to lay off a specific teacher based almost solely on the fact she is white.

If the lower court's "too limited" view of permissible affirmative action is allowed to stand, it could discourage other voluntary affirmative-action efforts, the Justice Department warned in its brief.

The flip-flop was especially stunning to observers because the same agency initially brought the suit against the district.

Deval L. Patrick, who recently took office as the assistant attorney general for civil rights, has argued that the department had to switch sides because the Bush Administration interpreted the law too narrowly and the Clinton Administration wishes to encourage affirmative-action efforts.

A statement from Mr. Patrick's office says that "Piscataway is not a quota case," and that the Clinton Administration remains opposed to race-based quota systems.

But Clint Bolick, the litigation director of the Institute for Justice, a Washington-based public-interest law firm, argued recently in The Wall Street Journal that the Justice Department's move does support racial quotas, and that the case suggests Mr. Patrick is taking civil-rights policy "in a radical new direction."

A Vote for 'Diversity'

The Justice Department had decided earlier this year to withdraw as a plaintiff in the case.

But Stephen E. Klausner, the lawyer for the furloughed teacher, Sharon Taxman, argued last week that the department should be barred from helping the other side because it has obtained privileged information from his client. Contrary to the department's assertions, much of the work on the case has been done under the Clinton Administration, he maintained.

David B. Rubin, a lawyer for the Piscataway Township school board said last week that he sees "no ethical problem" with the department's intervention and welcomes its help.

The case focuses on the board's 1989 decision to lay off Ms. Taxman in the face of declining enrollment in Piscataway High School's business-education department.

Ms. Taxman, who is white, and Debra Williams, who is black, were hired the same day, and were considered equals in qualifications and performance. Their relative lack of seniority within the 10-member department left both vulnerable when the board decided one position had to be cut.

If both teachers were white, the board would have chosen between them randomly, by drawing lots. But Ms. Williams was the department's only black teacher, and the board unanimously decided, citing its affirmative-action policy, to keep her for the sake of promoting "faculty diversity."

Interpreting Title VII

In January 1992, under the Bush Administration, the Justice Department filed suit alleging that the board's action violated Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination in employment.

The department argued that the board's action did not fall under the exceptions to Title VII allowed by the U.S. Supreme Court because it was not intended to remedy past discrimination--the district had never been found guilty of such--or to remedy racial imbalance in the district's workforce, which was well integrated over all.

The Bush Justice Department cited a 1986 Supreme Court decision striking down a school district's use of race-based layoffs in an effort to insure that minority students had same-race "role models." Following this logic, the High Court held, could result in black teachers being turned away from predominantly white schools.

A U.S. District Court ruled in September 1993 that Ms. Taxman's rights had been violated and awarded her $130,000 in back pay and compensatory damages.

When the board's appeal caused the Justice Department to revisit the case, Clinton Administration officials decided that the district court's decision was wrong. In its new brief, the department argues that the board's interest in promoting "faculty diversity" justified giving a black employee the edge, especially in an educational context.

Mr. Klausner argued last week that it is absurd to give "faculty diversity" such weight when dealing with a small department, especially one that handles subjects, such as keyboarding, that teachers of any background will likely handle much the same way.

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