Court Knocks Justice Dept. Out of Race-Bias Case
A federal appeals court has ousted the Clinton administration from the closely watched case of a white Piscataway, N.J., teacher whose discrimination lawsuit has become part of the national debate over affirmative action.
The case attracted attention when the Department of Justice, in a highly unusual move, reversed its position after winning a federal district court ruling that the teacher, Sharon Taxman, was laid off in violation of federal civil-rights law.
On Nov. 29, a three-judge panel heard a reargument of an appeal stemming from the Piscataway school board's 1989 decision to retain a black teacher of equal seniority and qualifications over Ms. Taxman when faced with the need to reduce one position in the business-education department at Piscataway High School. The board cited its desire to preserve racial diversity in the 10-member department.
The reargument was necessary because one of the judges who heard the appeal last January died before a ruling was issued. In connection with the reargument, the panel from the U.S. Court of Appeals for the 3rd Circuit issued an order denying the federal government's request to switch sides in the case.
The request caused a firestorm because it was the Justice Department that sued the Piscataway board in the first place--during the Bush administration. At that time, the department contended that the use of race as the basis for laying off Ms. Taxman was a violation of Title VII of the Civil Rights ACT of 1964, which bars racial discrimination in employment. The suit was pending when President Clinton took office, with Justice Department lawyers maintaining the position that the Piscataway board's affirmative-action plan was unlawful because it was not created to remedy past discrimination.
In September 1993, U.S. District Judge Maryanne Trump Barry of Newark ruled that the affirmative-action plan "unnecessarily trammels the rights of nonminorities." She awarded Ms. Taxman $133,000 in back pay and damages.
When Deval L. Patrick took office as President Clinton's assistant attorney general for civil rights in the summer of 1994, he ordered the Justice Department to change course in the Piscataway case.
The district court ruling "could jeopardize voluntary affirmative action," and reversing it is "important to protecting the ability of schools and other employers to initiate voluntary efforts to create workplace diversity," the department said in a statement last fall. (See Education Week, Sept. 14, 1994.)
The appeals court panel declined until last month to comment on the Justice Department's new position. However, at the original oral argument, one judge called the flip-flop "at best, unseemly."
In October, U.S. Circuit Judge William D. Hutchinson, a member of the original panel, died. In preparation for rehearing the case, the court on Nov. 17 denied the federal government's motion to become a "friend of the court" on the school board's side. It further said that it would treat the government's request as "a motion to withdraw as a party, which motion is granted."
The court's action pleased Ms. Taxman's lawyer, who had argued that it was unethical for the Justice Department to switch sides.
"I gave them access to my client," said Stephen E. Klausner. "If I as a private lawyer had done what they did, I would have been before the ethics committee trying to keep my license."
Myron Marlin, a Justice Department spokesman, said the government's involvement with the case is over.
"We filed our motion, and the court rejected it," he said. "We consider that the end of it."