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Volume 9 Numbers 2-3 SUPREME COURT AGREES TO REVIEW THE PISCATAWAY SCHOOL DISTRICT'S AFFIRMATIVE ACTION PLAN
Over the contrary advice of the Department of Justice (DOJ), on June 27, 1997, the U.S. Supreme Court granted review of the now-famous case, Piscataway Board of Education v. Taxman, No. 96-679, in which a New Jersey school board faced the need t o 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. One is white and the other the only black (or other mino rity) teacher in that department. It chose to apply its affirmative action program and policy for the first time in 18 years and therefore laid off the white teacher. (The alternative, previously utilized but in situations without this racial element, w as a coin toss.) On a Title VII charge (employment discrimination) filed with the U.S. Equal Employment Opportunity Commission (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 th e 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 course and sought leave to file a brief in support of reversal of the lower court judgment, asserting that "on further r eview, 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 befor e 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 an amicus brief in support of reversal and t reated 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 thir d oral argument took place, and by a vote of 8 to 4 the en banc court affirmed the judgment of the lower court in favor of Sharon Taxman.
A petition for certiorari was 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. (For a discussion of the positions of the majority and dissent in the Third Circuit, and of the parties on the petition, see CIVIL RIGHTS MONITOR, vol. 9, no.1.)
THE DOJ BRIEF
On June 5, 1997, the Department of Justice filed a Brief for the United States as Amicus Curiae, arguing that this case is not an appropriate vehicle for deciding whether Title VII prohibits all non-remedial affirmative action in employment, and thus t he Court "should await a case that presents the question of the validity of nonremedial affirmative action in a more typical Title VII context." The government's brief outlines the Department of Justice's understanding of when non-remedial affi rmative action can be constitutional:
1. When affirmative action is used to foster racial and ethnic diversity, the government must seek some further objective beyond the mere achievement of diversity itself.
2. A government entity may have a compelling need for a diverse workforce that justifies the use of racial considerations.
3. To justify the use of race, there must be a convincing factual basis for the conclusion that the use of race is needed to promote the government's mission; a broad assertion of operational need is insufficient.
When these standards are met, DOJ asserts that narrowly tailored, non-remedial affirmative action can be constitutional, and also complies with Title VII:
"The court of appeals' interpretation of Title VII is seriously flawed. This Court has held that Title VII and the Constitution do not always impose identical standards for judging the validity of affirmative action....But to the extent that the re are differences, this Court's decisions suggest that the Constitution imposes greater restraints on affirmative action than Title VII, rather than the other way around....Thus, affirmative action that satisfies the Constitution's most rigorous standard should even more readily satisfy Title VII."
Finally, the brief argues that review should be denied because there is no conflict in the circuits as to whether Title VII permits non-remedial affirmative action and that question should be considered by the Court in an "appropriate" case, which this case is not:
"...[F]actual complications make it an inappropriate vehicle for resolving the question whether Title VII permits non-remedial affirmative action. In particular, this case is encumbered by two factors that make it an unrepresentative example of n on-remedial affirmative action in employment and that could divert attention from the main issue. Those factors are petitioner's assertion without more of an interest in department (as compared to school-wide) diversity and petitioner's use of race in a layoff decision to further that interest. Each factor independently calls into question the suitability of this case as a vehicle for resolving the validity under Title VII of non-remedial affirmative action; the two factors in combination decisively arg ue against review.
As always, a petition for certiorari is granted when at least four justices so vote, and neither their names nor their reasons ordinarily accompany the grant. Oral argument will be scheduled for late fall or early winter.
  
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