The Leadership Conference on Civil and Human Rights

Volume 9 Number 1

This is the now-famous case, Piscataway Board of Education v. Taxman, No. 96-679 in which a New Jersey school board faced the need to reduce the teaching staff in its high school business education department by one person. The Board found that it had a choice between two tenured teachers equal in seniority and qualifications but one white and the other the only black (or other minority) teacher in that department. It chose to apply its affirmative action program and policy and therefore laid off the white teacher. (The alternative, previously utilized but in situations without this racial element, was a coin toss.) On a charge filed with the EEOC by the white teacher, the United States filed suit in federal district court in New Jersey alleging a violation of Title VII of the l964 Civil Rights Act, and the white teacher (Taxman) intervened as a plaintiff, complaining under Title VII and also under a comparable state law. (There was no claim of violation of the 14th Amendment's Equal Protection Clause, and any such claim was by then time-barred.)

The district court, acting upon stipulated facts and without a trial, found violations of both Title VII and the New Jersey statute. (There were also disputes between the two sides over damages and the appropriate rate of pre-judgment interest, but the MONITOR will discuss only the liability issue, i.e. the permissibility of the affirmative action application here.)

On appeal to the Third Circuit Court of Appeals, the case was assigned to a panel of three judges. The United States then reversed cause and sought leave to file a brief in support of reversal of the lower court judgment, asserting that "on further review, the United States believes that the district court announced an unduly narrow interpretation of the permissible bases for affirmative action under Title VII, and that the court's opinion conflicts with the Supreme Court's decisions". Shortly before scheduled reargument of the appeal before the panel which had been reconstituted because one of its members had died before the panel reached a decision, the court denied the United States' request to file the amicus brief in support of reversal and treated the position of the United States at the original argument as a motion to withdraw as a party, which the court granted. After reargument by the two remaining parties, the full court of appeals spontaneously decided to hear the case en banc, a third oral argument took place, and by a vote of 8 to 4 the en banc court affirmed the judgment of the lower court.

A petition for certiorari has been filed by the School Board, supported by briefs amicus curiae of the New Jersey and National School Boards Associations, and opposed by Taxman. On January 21, 1997, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States. The Court is expected to act on the petition after receiving the United States' brief later this spring. The positions of the majority and dissent in the Third Circuit, and of the parties on the petition, are set forth below.

The Third Circuit

The majority concluded that the Piscataway plan was non-remedial (was not adopted to address past or present discrimination) and that a non-remedial affirmative action plan cannot justify conduct that would otherwise be proscribed as discriminatory by Title VII. The majority ruled that the Piscataway plan did not satisfy either of the Supreme Court cases (see below) that have upheld affirmative action plans against Title VII challenge, which the majority took as setting the outer limits of permissible affirmative action under Title VII. The opinion states: "The parties have stipulated that neither the Board's adoption of its affirmative action policy nor its subsequent decision to apply it in choosing between [the two teachers] was intended to remedy the results of any prior discrimination or identified underrepresentation of Blacks within the School District's teacher workforce as a whole" (It is undisputed that blacks were not underrepresented within that workforce as a whole). The majority opinion found also that the plan was devoid of benchmarks or standards for determining whether a goal of diversity was met, was not of limited duration and, finally, that the harm imposed upon Taxman by her layoff "unnecessarily trammel[led]" her interests.

The two Supreme Court cases in question are United Steelworkers v. Weber and Johnson v. Transportation Agency, Santa Clara County, the first decided in 1979 and the second in 1987.

In Weber, the Court for the first time upheld a voluntary race-conscious affirmative action plan challenged under Title VII. The plan, a product of collective bargaining, sought to remedy a plant's traditional pattern of racially segregated jobs by instituting a temporary in-plant craft training program in which 50 percent of the openings were reserved for blacks until the percentage of black craft workers in the plant reached that of blacks in the local labor force. The Court upheld the plan, finding that the plan's purpose "mirrored those of the statute", the Court found that Congress in enacting Title VII did not intend to bar its voluntary adoption (the "first prong" of Weber), and that the plan did not "unnecessarily trammel" the interests of the white employees" who retained their jobs and could apply again for the training program (the "second prong" of Weber).

Eight years later, in Johnson, the Court again approved a voluntary affirmative action plan under Title VII, this one adopted by a public employer. The gender-conscious plan in Johnson was intended to remedy underrepresentation of women in "traditionally segregated job categories" by taking gender into account as a plus factor in making employment and promotional decisions until balance was attained. The plan was approved to offer a promotion to a woman who had a slightly lower score on the paper and pencil test than a man. The plan as described was held acceptable under Weber.

Three judges on the Third Circuit dissented, in an opinion written by Chief Judge Sloviter. The Chief Judge began by stating the narrow question posed by the appeal as "whether Title VII requires a New Jersey school or school board, which is faced with deciding which of two equally qualified teachers should be laid off, to make its decision through a coin toss or lottery...or whether Title VII permits the school board to factor into the decision its bona fide belief, based on its experience with secondary schools, that students derive educational benefit by having a Black faculty member in an otherwise all-White department." She answered that the School Board was permitted to follow the second route:

"An examination of the so-called affirmative action policy reveals that it does nothing more than place before the School Board the need to consider minority personnel among other equally qualified candidates for employment decisions.... It was the Board's decision to include the desire for a racially diverse faculty among the various factors entering into its discretionary decision that the majority of this court brands a Title VII violation as a matter of law. No Supreme Court case compels that anomalous result.... [N]o Supreme Court case has ever interpreted the statute to preclude consideration of race or sex for the purpose of insuring diversity in the classroom as one of the factors in an employment decision, the situation presented here."

Then, emphasizing that in both Weber and Johnson the Court had approved the race- and sex-conscious plans considered, the Chief Judge pointed out that the majority treated both cases as if their significance lay "in the obstacle course they purportedly establish for any employer adopting an affirmative action program. But, as the Justices of the Supreme Court recognized, the significance of each of those cases is that the Supreme Court sustained the affirmative action plans presented, and in doing so deviated from the literal interpretation of Title VII precluding use of race or gender in any employment action." (Emphasis in original.) The dissenters in those cases had strongly objected to the departure.

Further, while the Third Circuit majority saw the Supreme Court's "articulation of the factors that rationalized its upholding" of the plans in those cases as establishing limits, the dissent argues that "no language in either Weber or Johnson so states and, in fact, there is language to the contrary." For example, in Weber the Court stated, "We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans."

In short, Weber and Johnson do not stand for the proposition that every affirmative action plan that has a purpose other than remedying past discrimination or correcting a manifest imbalance is barred by Title VII.

The dissent then turned to its positive argument for acceptance of the School Board's action here as "permissible" under Title VII. That argument, in a nutshell, is that Title VII is forward- as well as, indeed, even more than, backward-looking. By the term "forward-looking" Judge Sloviter means that the statute's chief aim is to eliminate patterns of conduct that are "potential causes of continuing or future discrimination." Thus, taking the approach of Weber and Johnson as a springboard, the Chief Judge concluded that actions consistent with and in furtherance of the broad statutory goal of eliminating the causes of discrimination are not pro se proscribed by Title VII, among which actions she would include a school board's honest decision to obtain the educational benefit to be derived from a racially diverse faculty. Taxman's layoff was therefore not to be faulted unless it impermissibly trammeled her legitimate interests. Though a layoff is plainly more burdensome for the affected employee than refusal of hiring or promotion, in the circumstances here Taxman did not have a reasonable expectation that she would retain her employment over a person with equal seniority and qualifications. Compare the situation and outcome for the male applicant and complainant in Johnson.

Petition for Certiorari and the Opposition

Emphasizing a conflict in the lower courts as to what is permissible voluntary affirmative action, the petition urged the Court to take this case to answer four questions: