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Justice Dept. Faults Board in Affirmative Action Case

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Washington

The Clinton administration has done an about-face in a much-debated affirmative action case involving a New Jersey school district.

Administration lawyers told the U.S. Supreme Court in a brief filed late last month that the Piscataway, N.J., district violated federal law when it laid off a white high school teacher in 1989 to preserve the job of her black colleague.

That is a 180-degree turn from the position the administration took in 1994 when the case was pending before a federal appeals court. The Department of Justice argued then that maintaining racial diversity was a valid reason for the Piscataway school board to lay off a white teacher, Sharon Taxman, instead of a black teacher, Debra Williams, who had equal seniority and similar teaching qualifications.

The case has been a headache for the administration. It was the Justice Department under President Bush that sued the school board on the white teacher's behalf in 1992. The department argued, and a federal district judge agreed in 1993, that the board's race-conscious layoff decision violated Title VII of the Civil Rights Act of 1964, the main federal employment-discrimination law.

Cautious Path

But while the case was on appeal in 1994, the Clinton administration switched sides and backed the school board's affirmative action efforts. The president himself gave a cautious endorsement of the flip-flop during a press conference that year.

"Can trying to preserve some racial diversity on your faculty be a grounds for making a [layoff] decision as opposed to flipping a coin?" Mr. Clinton said. "As long as it runs both ways, or all ways, I support that decision."

The U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia, ruled last year that the district could not use layoffs to maintain racial diversity unless it was remedying past discrimination, which was not an issue in the Piscataway schools.

After the school board appealed that ruling to the Supreme Court, the Justice Department told the court last spring that the 3rd Circuit court was wrong to invalidate all affirmative action aimed at the goal of racial diversity.

But it urged the high court not to accept the Piscataway case for review because it turned on such an unusual set of circumstances. ("Don't Accept Teacher-Layoff Case, Court Urged," June 11, 1997.)

The justices ignored that advice and agreed to hear the case of Piscataway Township Board of Education v. Taxman (Case No. 96-679).

In its most recent brief, filed Aug. 22, the Clinton administration cuts a cautious path in favor of affirmative action generally. "School districts may responsibly conclude that a diverse faculty is essential to dispel students' stereotypes and promote mutual understanding and respect," the brief states.

But the administration no longer supports the Piscataway board's decision to use race as the key factor in a layoff. The board had sought to avoid laying off the only black teacher in the high school's business education department.

The school board "has failed to show that promoting faculty diversity in the business education department in the Piscataway High School is any more or less important than promoting such diversity in the various corridors of that building," the brief argues.

The case is likely to be argued in November or December.

Proposition 209 Update

Separately, the high court may be the next stop for another prominent affirmative action case.

The full U.S. Court of Appeals for the 9th Circuit, based in San Francisco, refused last month to rehear a challenge to the California ballot initiative known as Proposition 209.

The initiative, passed by the state's voters last year, prohibits state and local governments from granting preferential treatment based on race, sex, color, ethnicity, or national origin in three areas: employment, contracting, and education. A panel of the 9th Circuit court upheld the measure last spring. ("Calif. Measure Barring Racial Preferences Reinstated," April 16, 1997.)

The full appeals court allowed the measure to take effect Aug. 28. Opponents say they plan an appeal to the high court.

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