October 5, 1997 in Nation/World

High Court To Shape Race Issues Affirmative Action To Undergo Supreme Test

John Aloysius Farrell Boston Globe
 

The Supreme Court will open its new term Monday with the issue of race in the case of a white teacher who was fired to promote “racial diversity” in a New Jersey high school.

Several of the court’s recent decisions have curbed affirmative action and a likely decision in favor of the teacher could further restrict the use of racial preferences in the United States, legal specialists say.

The court may also choose to rule on Proposition 209, last year’s California initiative that abolished public affirmative action programs in the state. A decision upholding Proposition 209 could deal a shattering blow to affirmative action, as some two dozen other states now contemplate similar initiatives.

“The biggest and most important cases looming on the docket are cases concerned with race,” said Steven Shapiro, national legal director for the American Civil Liberties Union. He said supporters of affirmative action face an uphill battle in both cases.

The issue of racial preferences dominates a term that otherwise would fall short of the drama that characterized the last session, in which the court handed down important decisions on gun control, the right to die, religious freedom, censorship of the Internet, and Paula Jones’ sexual harassment suit against President Clinton.

Yet the court will be accepting cases for several more months. In addition to the issue of affirmative action, the court may deal with questions such as: Can workers be sexually harassed by members of the same sex? Can broadcasters bar third-party or independent political candidates from participating in televised debates? Can the National Endowment for the Arts refuse money to “indecent” artists?

Douglas Kmiec, a professor at Notre Dame law school, said the New Jersey teacher case “is the headliner” of the docket for the 1997-98 term.

The Supreme Court ruled in a landmark 1995 case that affirmative action programs based on the equal protection clause of the 14th Amendment must meet a “compelling government interest” of redressing a proven history of discrimination and must be “narrowly tailored.”

The court, however, has not directly tackled the question of whether voluntary affirmative action plans based on Title VII of the 1964 Civil Rights Act - the kind adopted by many businesses and public organizations like the Piscataway, N.J., school board - are discriminatory if they try to provide “diversity” in the absence of a specific pattern of discrimination.

Holding the key role this year likely will be Justice Sandra Day O’Connor, who commands the center of a court split between liberals and conservatives on the issue. O’Connor’s votes have preserved the narrow legal grounds on which racial preferences now rest. This year she must decide if the law supports voluntary plans based on Title VII, and if referendums like Proposition 209 can do away with affirmative action altogether.

“Much of this, to be perfectly honest, is a battle for the heart and mind of Justice O’Connor,” said Shapiro. “The entire edifice she has largely constructed over the last decade and a half is in jeopardy.”

When the Piscataway school board decided to lay off Sharon Taxman in 1989, the school had an ample number of black teachers on the faculty - but only one, Debra Williams, in the business education department. Williams and Taxman had equal qualifications and seniority, and the board informed Taxman that she was being dismissed solely because she is white.

“The board of education has decided on its commitment to affirmative action as a means of breaking the tie in seniority,” the board said in a letter to Taxman.

“Had they flipped a coin they probably wouldn’t be here,” said Donald B. Ayer, a lawyer affiliated with the conservative Washington Legal Foundation, who said he expects a ruling in Taxman’s favor. “It is one thing to make a decision to add points to the score of a black applicant. When someone is laid off, that is a most severe trammeling of rights.”

Title VII prohibits any discrimination because of sex, race or religion in both public and private sector employment. The Supreme Court, however, reasoning that the purpose of the act was to help black Americans, ruled in 1979 and 1987 that employers could at times discriminate against white people when adopting affirmative action plans that address “under-representation” in the work force.

Since 1987 the court has shown markedly less enthusiasm for affirmative action. The justices have a chance with the Piscataway case to restrict use of Title VII in the same way they have recently curbed those affirmative action programs derived from the equal protection clause of the 14th Amendment.

The Bush administration in 1992 sued the Piscataway school board on Taxman’s behalf, charging that she was discriminated against under Title VII. The Clinton administration continued the lawsuit and won in federal court when the judge ruled that Taxman, like Williams, had “a legitimate entitlement to have the layoff decision made randomly rather than on the basis of race.”

But the Clinton administration changed its position and raised the political profile of the case. When the school board appealed the federal court’s ruling, the Justice Department told the Third Circuit Court of Appeals that Taxman’s firing was justified because diversity was a worthwhile goal that could require hiring or firing of employees of any race to provide a multicultural mix.

But the Third Circuit ruled in Taxman’s favor in 1996, and the Clinton administration changed its position again, urging the Supreme Court to let Taxman’s victory stand.

Though the administration still believed the school board acted properly, the Justice Department said the facts in this case were too unusual to make good law and the court should wait for a lawsuit “more representative of real-life experience.”

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KEY COURT CASE

The key case for this Supreme Court term involves the layoff of a white teacher in Picataway, N.J. The case is Piscataway Township Board of Education v. Taxman, 96-679.


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