Setting the stage for a significant ruling on affirmative action in education, the U.S. Supreme Court has agreed to review whether a New Jersey school board violated federal law when it laid off a white high school teacher instead of an equally senior black teacher in order to promote staff diversity.
The high court disregarded the advice of the Clinton administration late last month when it accepted the appeal of the Piscataway, N.J., school district. The district sought to maintain racial diversity in the business education department of Piscataway High School in 1989 by retaining the department’s only black teacher while dismissing a white peer.
The Clinton administration, which once strongly defended the district’s actions, recently told the high court in a brief that the much-debated case was too idiosyncratic to provide the basis for a major ruling on affirmative action. (See Education Week, June 11, 1997.)
Affirmative action critics interpreted the court’s June 27 acceptance of Piscataway Township Board of Education v. Taxman (Case No. 96-679) as likely to lead to a ruling restricting race-based employment actions that are not designed to remedy past discrimination. They pointed out that the conservative-dominated court has grown increasingly skeptical of race-conscious government action.
“Racial preferences as a form of affirmative action are definitely on their way out,” said Linda Chavez, a conservative commentator and the president of the Washington-based Center for Equal Opportunity, a Washington think tank. “I think people see the handwriting on the wall.”
Ms. Chavez, who headed the U.S. Commission on Civil Rights under President Reagan, said she was happy to see the high court take the case even though she agreed with lower courts, which ruled that the district’s layoff decision violated Title VII of the Civil Rights Act of 1964. Title VII bars employment discrimination on the basis of race and other factors.
Gwendolyn H. Gregory, the deputy general counsel of the National School Boards Association, said the case should yield important guidance for schools about when they can take race into account in employment decisions. The NSBA filed a brief urging the high court to uphold race-based employment decisions meant to foster diversity in public schools.
“From an educational perspective, we really need diversity among teachers,” Ms. Gregory said.
No Coin Toss
The case involves the Piscataway board’s decision eight years ago to reduce the positions in the business education department at Piscataway High from 10 to nine. Faced with a choice between laying off the white teacher, Sharon Taxman, or a black teacher, Debra Williams, with equal seniority and similar qualifications, the board invoked its affirmative action policy for the first and only time. In past layoffs involving workers with equal qualifications, board members had flipped a coin.
The Department of Justice under President Bush sued on behalf of Ms. Taxman, arguing that the race-based layoff violated Title VII because it was not tied to any past employment discrimination in the district. A federal district court ruled for Ms. Taxman and awarded her $143,000 in back pay and other relief.
Ms. Taxman was rehired by the district in 1992 and now teaches in a classroom next to Ms. Williams’. In 1994, while the case was pending before the U.S. Court of Appeals for the 3rd Circuit, the Clinton administration drew criticism by switching sides in the case and defending the goal of racial diversity on school faculties.
The appeals court later dismissed the federal government from the case and ruled 8-4 last year to uphold the damages award for Ms. Taxman. (See Education Week, Dec. 13, 1995, and Sept. 4, 1996.)
Stephen E. Klausner, the lawyer for Ms. Taxman, said his client was disappointed the high court accepted the school board’s appeal. “She wanted it over,” he said. “This isn’t a philosophy debate over affirmative action as far as she is concerned.”
David B. Rubin, the lawyer for the Piscataway district, said board members " are concerned about their ability to do things that they think are in the best interest of the children.”
“They also want to get free of a money judgment they don’t think should have been entered against them,” he said.
The high court is likely to hear arguments in the case in late fall, with a ruling by July of next year.
A version of this article appeared in the July 09, 1997 edition of Education Week