Layoffs Based on Race Only Are Backed by Justice Dept. : Diversity: The stand reverses a position by Bush Administration. The case involves a white teacher who was dismissed while a black teacher was kept.

The Clinton Administration, in a switch from the government’s earlier position, said Tuesday that an employer can lay off a white worker and retain an equally qualified black worker to preserve the “diversity” of its work force.

In a legal brief filed in a federal appeals court, the Justice Department came to the defense of a New Jersey school district that had used that reasoning in 1989 when it dismissed a white high school teacher while preserving the job of a black teacher. The two teachers had been hired on the same day nine years earlier.

“The interest of the United States is integrating the work force,” said Assistant Atty. Gen. Deval Patrick, who heads the Justice Department’s civil rights division. “We do not support quotas, (but) affirmative action is a different animal.”

In the past, the Supreme Court has said that public employers can use affirmative action for hiring and promotions but not for layoffs and dismissals. But the court has not yet ruled on whether race can figure in a layoff decision among equally qualified workers.

The court has given private employers somewhat more leeway in using racial and ethnic preferences in making all employment decisions.

Patrick said that the New Jersey case presents a “quite narrow” legal question but that the issue nonetheless could prove politically explosive. Last week, when the Justice Department signaled it would change sides from the George Bush Administration view and support the black teacher over the white one, conservatives lambasted the new civil rights chief as a “quota king” in the Wall Street Journal.

Clint Bolick, a former Ronald Reagan Administration lawyer, accused the Clinton Administration of seeking a clear change in the law.

“The court has never accepted diversity as a justification for outright racial preferences. This could be the beginning of a whole new rationale” for affirmative action, Bolick said.

Two years ago, civil rights division lawyers in the Bush Administration filed a lawsuit on behalf of the white teacher, Sharon Taxman, contending that she was wrongly fired based on her race. They argued that employers may not use race in layoffs except to remedy past discrimination or to cure a “manifest imbalance” in the work force.

Last year, a federal judge in Newark agreed with the government’s argument and awarded Taxman $123,000 in back pay and $10,000 in damages for pain and suffering.

In her opinion, Judge Maryanne Trump Barry said that it was “impermissible” for a school district to use race in its layoff decisions if it had never discriminated in the past. Moreover, she said, the Piscataway school system had a higher percentage of black teachers on its staff than the percentage of qualified black teachers available in the local work force.

She also cited a 1986 ruling in which the Supreme Court, on a 5-4 vote, said that a Michigan school district violated the rights of veteran white teachers when it laid them off and retained less senior black teachers.

How then should a school board decide on whom to dismiss among the two equally qualified teachers? Flip a coin, the judge said.

The Piscataway school board voted to appeal that ruling to the U.S. appeals court in Philadelphia. Now, to its surprise, the board finds the Justice Department on its side. The new government brief said that Judge Barry’s decision should be overturned.

Stephen E. Klausner, Taxman’s attorney, said he was “piqued” by the government’s switch and “outraged” by Patrick seeking a 30-day extension to file his brief without telling him that it was at least “flirting” with the idea of reversing position.

Patrick, who did not take over the civil rights division until last April, said that the case came before him “in the normal course for a decision about what position we should take on appeal.” If the previous position were allowed to stand, “it could significantly curtail employers from implementing voluntary affirmative action plans,” department lawyers said.

Despite the asserted narrowness of their position--that it affects only voluntary plans where the employees have identical seniority, qualifications and performance--senior Justice Department officials went to unusual lengths Tuesday to emphasize that the case is not about “quotas” and to correct what they said had been “misleading and incomplete reporting.”

They took the rare step of calling a news conference on the filing of their brief, complete with a two-page sheet describing Justice Department actions in the case in addition to the 38-page brief. Patrick was joined by Associate Atty. Gen. John Schmidt, the department’s No. 3 official.