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Rights Chief Defends Teacher-Layoff Stance And Affirmative Action

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The Justice Department's civil-rights chief defended the agency's handling of a controversial teacher-layoff case during the first of a series of House hearings examining federal affirmative-action policies.

It was lawful for the Piscataway Township, N.J., school board to take race into account in deciding to lay off a white teacher rather than a black teacher, Assistant Attorney General Deval L. Patrick told the March 24 hearing of the House Subcommittee on Employer-Employee Relations.

"We never should have been in that case," he said of the Justice Department, "because there had been no violation of the law."

Initially brought by the department under President George Bush on behalf of the white teacher, the lawsuit attracted national attention when the Clinton Administration reversed the government's position and backed the board's decision. The case is now on appeal. (See Education Week, 9/14/94.)

The Piscataway case is "very hard for people to understand," said Rep. Harris H. Fawell, R.-Ill., the subcommittee chairman.

"We produce, out of the Civil Rights Act [of 1964], race and gender discrimination when the act was created to eliminate precisely that sort of discrimination," he said of affirmative-action policies. "This confuses the populace."

The hearings by Mr. Fawell's panel come as race- and gender-conscious policies in education, business, and other areas have become the subject of a growing public debate. (See Education Week, 3/29/95.)

'Recipe for Discrimination'

In the Piscataway case, the school board, faced with the need to reduce the size of a high school business-education department, chose to lay off the white teacher rather than the black teacher to preserve diversity on the faculty. Both women were hired the same day, and they had virtually identical evaluations and qualifications.

Mr. Patrick called the case "a unique, narrow case with potential for having broader implications."

"This is not about whether you or I could have cast a different vote," he told the lawmakers. "The question is whether the school board was free under the law to give expression to their interest in having a diverse faculty, and they were."

Rep. William Clay, D-Mo., said it was "a perfect example of why we need affirmative action." Blacks still tend to be the last hired and the first fired, he said.

But other witnesses were sharply critical of the department's stance.

Terry Eastland, a fellow at the Ethics and Public Policy Center in Washington who served as the agency's chief spokesman during the Reagan Administration, said the current Administration's stance means that an individual right to equal opportunity could be made to yield to considerations of diversity. This, he argued, is "a recipe for discrimination in the name of diversity."

Although President Clinton has ordered a review of federal affirmative-action programs, Mr. Patrick said, the Administration has no intention of retreating from its commitment to equal opportunity. He sought to reframe the debate about affirmative action by arguing that it broadens the pool of qualified people and is not a quota system.

"When you stop talking in hackneyed terms about affirmative action and preferences, and talk about outreach, recruitment, and opening opportunities," he said, "people seem to understand it and support it."

Dividing the Country?

The public needs to be steered away from the idea, he added, that "everything that happens to them is the result of someone else getting something they didn't deserve."

But Ward Connerly, a member of the board of regents of the University of California system, who has proposed abolishing affirmative action in admissions, contracting, and hiring, warned that the issue threatens to divide the country.

"Just as we cannot be a nation half free and half slave," he said, "we cannot be a nation with half of its people saying we are entitled to preferences and the other half standing on the sidelines seething with anger."

Glenn C. Loury, a professor of economics at Boston University, called affirmative action a "classic bait-and-switch game" that fails to address what he sees as the real problems of black Americans: poverty, single-parent households, and low educational attainment.

"What we haven't found is a way to develop the human capacities of a substantial portion of the population," Mr. Loury said.

"At the end of the day," he said, "unless the public schools get better and the number of African-Americans scoring off the charts of the [Law School Admissions Test] get larger, we will be back here 50 years from now," still arguing.

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