Discrimination in the Name of Diversity

Preoccupied with the political conventions, the press has paid scant notice to another loss in the courts for racial preferences. The Clinton campaign should be pleased that word of the Aug. 8 ruling by the U.S. 3rd Circuit Court of Appeals in the Piscataway case has not traveled fast. For this is the case that belies the notion that President Clinton has steered a middle course on affirmative action.

The case dates to 1989, when the Piscataway (N.J.) Board of Education decided to lay off one of the 10 teachers in the high school’s business education department. The board narrowed its choice to two equally qualified teachers with the same seniority: Sharon Taxman, who is white, and Debra Williams, who is black. To break the tie, the board invoked its affirmative action plan, which gives preference to blacks and other minorities. Thus was Williams retained and Taxman laid off.

Taxman complained that the board violated Title VII of the Civil Rights Act, which prohibits employment discrimination. In 1992, the Bush Justice Department took up her case. The Clinton Justice Department continued it, winning a judgment in 1994. But when the school board appealed to the circuit court, the department withdrew as the plaintiff representing Taxman and sought permission to file as a friend of the court, in support of the board. It is hard to imagine a colder shoulder than the one Justice gave Taxman, but this was an administration on a mission.

Fortunately, in late 1995, the 3rd Circuit refused to let Justice reenter the case. Its 8-4 decision now has affirmed that the board discriminated against Taxman.

The original intent of Title VII is crystal clear: An employer may not use race in making any employment decision. Over the years, the Supreme Court has rewritten Title VII to allow the use of race in remedial circumstances. The legal problem that Taxman’s complaint created for Piscataway is that its layoff decision could not be justified in remedial terms. The board had not itself discriminated against blacks. And it could not say that laying off Taxman cured “societal discrimination,” since the percentage of blacks teaching in the high school exceeded that of blacks in the area.

So the board tried to justify its decision by invoking “diversity”: Had a race-neutral means been used to break the tie, and Williams been the one laid off, there would have been no blacks in the small business education unit, and thus insufficient racial diversity. In its friend-of-the-court filing, the Clinton administration likewise argued that diversity considerations may justify racial preferences.

This argument had little chance of prevailing in the lower federal courts, since no Supreme Court majority has ever held, much less been asked to hold, that Title VII permits consideration of race in furtherance of diversity. The school board’s need to defend itself helps explain why it made the argument. But the Justice Department labored under no such necessity. Only a strongly felt desire to create new affirmative action law through the courts can explain the department’s attempt to reenter the case.

Of course, it is the province of Congress, not the courts, to create the law. But the administration’s effort in Piscataway demonstrates not only its belief in judicial activism but also its commitment to a quite radical view of affirmative action. Consider that if preferences are confined to a remedial context, they have an end point. But if preferences are grounded in “diversity,” there can be no end to them, for there will always be the need to regulate a work force so that it adequately reflects the desired racial composition. Inevitably, diversity-based affirmative action will become a quest for proportional representation by race. At risk will be individuals, precisely whose rights Title VII was enacted to protect against decisions predicated on race.

President Clinton is not bothered by this threat to individual rights. Indeed, he has embraced it in terms that should disturb minorities. Commenting on his administration’s position in Piscataway, Clinton has said that if racial diversity had been threatened by the layoff of the white teacher, the school board could have decided to lay off the black teacher.

The Democratic platform, vague on the details of affirmative action, says nothing about the administration’s commitment to diversity-based affirmative action, much less its revealing labor in the Piscataway case. But a good question for the Clinton campaign is whether, in a second term, the Justice Department would again seek to argue in the courts that Title VII permits preferential treatment--and therefore discrimination--in the name of diversity.