Supreme Court Is Asked to Pass on Race Bias Case

Hoping to avoid a showdown on the continuing legality of affirmative action in the workplace, the Clinton administration urged the Supreme Court on Thursday to deny review of a closely watched New Jersey case that outlawed the use of race as a basis for workplace decisions.

The dispute over the 1989 layoff of Sharon Taxman, a white schoolteacher, has proved to be a political and legal hot potato for the administration. It could also make for a landmark decision if the Supreme Court issues a written ruling siding with Taxman.

In recent years, a more conservative Supreme Court generally has barred the government from using race as a deciding factor in awarding contracts, jobs or scholarships. But the justices have not reconsidered earlier rulings that allowed employers broad leeway to use affirmative action.

Now, that issue is before the court in an appealed case (Piscataway Township Board of Education vs. Taxman, 96-679).

The case asks whether employers may “take race into account for purposes other than remedying past discrimination.” A U.S. appeals court in Philadelphia said no.

The Civil Rights Act of 1964 bars employers from discriminating based on race and gender. Given “this clear anti-discrimination mandate,” wrote Judge Carol Mansmann for an 8-4 majority of the U.S. 3rd Circuit Court of Appeals, “a non-remedial affirmative action plan, even one with a laudable purpose, cannot pass muster.”

The decision upheld a $144,000-damage award given to Taxman, who had been laid off when the school board needed to eliminate one business teacher. Rather than flip a coin, the board decided to lay off Taxman and retain a black teacher, Debra Williams, with the same seniority. Both had started work on the same day.

Although the school district had a racially mixed faculty, the board president said that retaining the black business teacher “was sending a very clear message that we feel that our staff should be culturally diverse.”

But Taxman sued, alleging that she was a victim of illegal race bias. This somewhat unusual case now has split two administrations, as well as the lower courts.

Bush administration lawyers took Taxman’s side. The Clinton administration, upon taking office in 1993, switched sides and backed the school board.

But the strong rejection of affirmative action by the appeals court has raised the possible stakes and led to a prolonged internal debate within the administration.

The justices are likely to decide within a month whether to review the case.

If they do, it would set the stage for a ruling that could greatly limit affirmative action in the workplace.

However, if the court denies review--as the administration hopes--its action would set no national precedent. It would, however, outlaw most workplace affirmative action in Pennsylvania, New Jersey and Delaware, the states covered by the 3rd Circuit Court.

In the Piscataway case, the appeals court ruling is “seriously flawed,” Solicitor General Walter Dellinger told the court. It would forbid police departments or school boards to hire minority employees to better serve their communities, he said.

But the facts in the teacher’s case are unusual and unlike “the real world,” he added. “This court should await a case that is more representative of real-life experience.”