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Don't Accept Teacher-Layoff Case, Court Urged

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The Clinton administration told the U.S. Supreme Court last week that it should not grant review of a much-debated affirmative action case involving a New Jersey school district that laid off a white teacher instead of an equally qualified black teacher to maintain faculty diversity.

The Department of Justice, in a long-anticipated legal brief in a case involving the Piscataway, N.J., district, argued that schools should be able to use affirmative action to maintain racially diverse faculties on a schoolwide basis. The department said a federal appeals court was fundamentally wrong to rule that schools cannot make race-based employment decisions unless those decisions seek to remedy past discrimination.

But the department urged the high court to wait for another case to explore the larger affirmative action questions that the case raises. The New Jersey case presents an atypical situation of closely qualified layoff candidates, and the school board sought to defend racial diversity down to the unusually detailed level of individual school departments, the brief said.

The administration's brief, filed June 5 in the case of Piscataway Township Board of Education v. Taxman (Case No. 96-679), is the latest twist in a case that has become a lightning rod in the national debate over affirmative action. In 1989, the district laid off Sharon Taxman, a white business teacher at Piscataway High School, instead of Debra Williams, a black teacher with equal tenure and similar qualifications.

The school board invoked its affirmative action policy to retain Ms. Williams, who was the only African-American in the 10-person business education department.

Under President Bush, the Justice Department sued the school board on Ms. Taxman's behalf, arguing that her race-based layoff violated Title VII of the Civil Rights Act of 1964. A federal district court agreed and awarded Ms. Taxman some $143,000 in back pay and other relief. She was rehired by the district in 1992 and now teaches in a classroom next to Ms. Williams'.

The case drew nationwide attention in 1994 when, under the Clinton administration and a new Justice Department civil rights chief, the federal government switched positions and defended race-based employment decisions designed to promote diversity.

The U.S. Court of Appeals for the 3rd Circuit ruled 8-4 last year that the board's decision violated Title VII, which prohibits employment discrimination on the basis of race and other factors. The court majority said an affirmative action plan must have a purpose of remedying past discrimination. There was no evidence of past job discrimination in Piscataway.

The school board appealed to the Supreme Court, which asked the Clinton administration for its views in January. The court could announce this month if it will hear the case.

In its brief last week, the Justice Department argued that the appeals court "incorrectly decided an issue of broad national significance" by ruling that Title VII prohibits all nonremedial affirmative action.

In general, the department defended school districts' use of race to maintain diverse faculties. "Children in the minority at a school may feel more welcome and able to learn when the staff is racially diverse," the department said.

Nonetheless, the department told the high court the Piscataway dispute would not make a good case for a broad ruling on affirmative action. Rarely do employment decisions involve the near-equal job tenure and qualifications at issue in the case, it said. "This court should await a case that is more representative of real-life experience," the department argued.

'At Odds With Itself'

The Justice Department's position represents something of a retrenchment in the administration's support for the Piscataway board. Observers suggested that one reason for that may be the departure in January of Deval L. Patrick as the department's assistant attorney general for civil rights. In 1994, he wrote a brief strongly defending the school board's decision to retain the black teacher over the white teacher.

David B. Rubin, the lawyer for the Piscataway board, said last week that the department's brief is "somewhat at odds with itself."

"They use some very forceful language in support of affirmative action, but they come up with this argument as to why it is not an appropriate case," he said. Mr. Rubin suggested that the Clinton administration is under pressure from civil rights groups not to let the Supreme Court use the case to further weaken the legal foundation of affirmative action programs.

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