Racial Hiring on Agenda for High Court Session

The Supreme Court, having repeatedly signaled its disdain for race-based affirmative action, may sound the death knell for the practice during the term that begins today.

In one case, Piscataway Township Board of Education vs. Taxman, 96-679, a New Jersey school board’s decision to lay off a white teacher instead of an equally qualified black colleague will test whether employers may ever prefer racial minorities to foster diversity in the workplace. If the court answers with a flat no, employers nationwide will be forced to reconsider their hiring and promotion policies.

In a second test of affirmative action, the court will consider whether California and other states can totally outlaw preferential treatment based on race or gender in public programs. That case, a challenge to Proposition 209, is pending on appeal.

The court will also explore the new legal frontier of workplace harassment.

A decade ago, the justices first ruled that a man’s sexual harassment of a female co-worker was illegal even if the woman did not suffer a direct job injury, such as a lost promotion. In this term, the justices will decide whether the same rules apply in the case of a male worker who was allegedly subjected to gross advances by two other men.

Taken together, the court’s decisions in the affirmative action and sexual-harassment cases could spell out rules for a new era of antidiscrimination law.

Over the past decade, the Supreme Court has repeatedly rejected “affirmative” discrimination, and some legal experts think that the Piscataway case gives the conservative majority a chance to ban it throughout the workplace.

The facts of the case are simple. In 1989, the Piscataway High School decided to lay off a business education teacher. Tied for the least seniority were Sharon Taxman and Debra Williams, who had started work the same day.

Rather than flip a coin, school officials invoked their affirmative action plan and laid off Taxman, who is white.

The school district had no documented history of racial discrimination, and its percentage of black teachers exceeded that of the local labor force. Instead, the school board president explained the decision as based on the positive value of a “culturally diverse” staff.

Taxman filed suit under the Civil Rights Act of 1964, which makes it illegal for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex or nationality.”

*

The case, due to be heard in January, revives a basic dispute about that landmark statute.

Conservatives say it means just what it says: Employers may not use race as a basis for job decisions. But for the past 20 years, liberals have insisted that the law should be interpreted according to its spirit and purpose, which were to benefit previously disadvantaged minorities.

In 1979, the high court, in an opinion by Justice William J. Brennan, upheld “voluntary affirmative action” by employers as a means to “break down old patterns of racial segregation.” In Weber vs. United Steelworkers, the court rejected the claim of a white worker from Louisiana who complained when half of the new apprenticeship slots were reserved for blacks.

Eight years later, the court ruled against a white worker who had been passed over for a promotion in favor of a slightly less qualified woman in the Santa Clara County road maintenance unit, which, until then, had no women in skilled jobs. In Johnson vs. Santa Clara County, Brennan said employers could use affirmative action to remedy “a manifest imbalance” in the gender or racial makeup of their work forces.

Most lawyers have cited those two precedents as giving employers broad leeway to use affirmative action.

However, the U.S. 3rd Circuit Court of Appeals in Philadelphia read them differently. Upholding a $144,000 damage verdict in favor of Taxman, the appeals court said employers are prohibited from using affirmative action except to remedy past discrimination or an extreme work-force imbalance.

“Given the clear antidiscrimination mandate [of the 1964 law], a non-remedial affirmative action plan cannot pass muster,” wrote Judge Carol Mansmann for the 8-4 majority.

Since Brennan’s retirement in 1990, the Supreme Court has rejected every affirmative action plan to come before it.

Led by Chief Justice William H. Rehnquist, the court has insisted that race not be a “deciding factor.” Justice Sandra Day O’Connor has joined each of those rulings, but she has also written separately to leave the door open to some affirmative action.

Most experts agree the court will side with Taxman and against the Piscataway school board. Even the Clinton administration, in its final brief, says Taxman should prevail.

*

Not so clear is whether the justices will issue a broad ruling banning most affirmative action in the workplace, or instead fashion a narrow decision, perhaps limited to layoffs.

“I don’t think they will go as far as the 3rd Circuit,” said Steven R. Shapiro, national legal director for the American Civil Liberties Union.

But Theodore B. Olson, a former Reagan administration lawyer, says the Rehnquist court may be ready to ban affirmative action across the board.

Olson successfully represented Cheryl Hopwood, a rejected white law school applicant whose lawsuit ended the race-based admissions policy at the University of Texas.

“I think this court is concerned about the Cheryl Hopwoods and the Sharon Taxmans, who are the victims of these decisions,” he said. “They didn’t discriminate against anyone, but they pay the price.”

Regardless of the outcome, some corporate lawyers say the Piscataway case may not have much impact on private businesses for several reasons.

*

First, rarely are two employees judged to have identical qualifications, and private employers typically do not reveal their precise reasons for choosing one over another. Further, affirmative action often involves merely seeking out minorities and women and encouraging their advancement, steps that the court’s decision would not prohibit.

However, a strong ruling against the explicit use of race or gender preferences would open the door to lawsuits from white males who believe that they were affected by illegal discrimination.

In the Proposition 209 case, proponents of affirmative action renewed their argument that the need to remedy past discrimination “might sometimes require the use of racial preferences.” Because the new state proposition prevents local and state agencies from adopting such “preferential treatment,” they say, it is unconstitutional.

In April, the U.S. 9th Circuit Court of Appeals upheld the measure and allowed it to take effect.

The appeal will come before the justices in several weeks. If a majority of the justices agrees with the 9th Circuit decision, the court may simply vote to deny the appeal.

Besides these battles, several interesting 1st Amendment disputes are pending before the court.

The justices will rule on whether minor candidates have a free speech right to appear on public TV debates.

They will also consider the free speech rights of so-called performance artists in a case stemming from a 1990 law instructing the National Endowment for the Arts to “take into consideration general standards of decency” when awarding grants.

Four such artists, led by Karen Finley, challenged this rule on 1st Amendment grounds. A federal judge in Los Angeles, in an opinion upheld by the 9th Circuit Court in San Francisco, struck down the “decency” standard.

The court will also rule this term on whether police can be sued for a high-speed pursuit that results in death, whether criminal defendants have a right to tell a jury they passed a lie detector test and whether people under investigation have a “right to lie” about their guilt.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Key Supreme Court Cases

CIVIL RIGHTS

* Can an employer prefer a black worker over a white one to promote diversity? No, said the U.S. appeals court in Philadelphia. (Piscataway Township Board of Education vs. Taxman, 96-679. Oral argument in January.)

* Does same-sex harassment violate the 1964 Civil Rights Act and its prohibition on sex discrimination? No, said the U.S. court of appeals in New Orleans. (Oncale vs. Sundowner Offshore Services, 96-568. Argument: Dec. 3.)

* Does a state violate the Constitution’s equal-protection guarantee by forbidding all “preferential treatment” based on race or gender? No, said the U.S. court of appeals in San Francisco, upholding California’s Proposition 209. (Appeal filed in Coalition for Economic Equity vs. Wilson, 97-369.)

1ST AMENDMENT

* Can a state-owned public TV network that sponsors a candidate debate exclude a fringe candidate with minimal support? No, said the U.S. court of appeals in St. Louis. (Arkansas Educational TV vs. Forbes, 96-779. Argument: Oct. 8.)

* Can Congress require federal arts administrators to consider “general standards of decency” before awarding new grants? No, said the U.S. court of appeals in San Francisco. (Appeal filed in NEA vs. Finley, 97-371.)

BUSINESS

* Can tax-exempt credit unions expand nationwide and enlist new members from a variety of occupations? No, said the U.S. court of appeals in Washington. (National Credit Union Administration vs. First National Bank, 96-843. Argument: Oct. 6.)

* Can manufacturers set a maximum retail price to be charged by retailers and distributors? No, said the U.S. court of appeals in Chicago, citing a 30-year precedent that is likely to be overruled. (State Oil Co. vs. Khan, 96-871. Argument: Oct. 7.)

* Can General Motors block a former company engineer from testifying against the auto maker in new lawsuits? Yes, said the U.S. appeals court in St. Louis. (Baker vs. GM, 96-653. Argument: Oct. 15.)

CRIME AND LAW ENFORCEMENT

* Can the police be sued for a pursuit of a fleeing vehicle that results in injury or death? Yes, said the U.S. court of appeals in San Francisco. (Sacramento County vs. Lewis, 96-1337. Argument: Dec. 9.)

* Can the government by law bar defendants from telling juries that they passed a polygraph test? No, said the U.S. court for military appeals. (U.S. vs. Scheffer, 96-1133. Argument: Nov. 3.)

* Can government employees who lie to investigators about their guilt be charged with making false statements? No, said the U.S. court of appeals in Washington. (King vs. Erickson, 96-1395. Argument: Dec. 2.)

* Can U.S. Customs agents seize all cash from an international traveler who fails to disclose amounts of more than $10,000? No, said the U.S. court of appeals in San Francisco. (U.S. vs. Bajakajian, 96-1487. Argument: Nov. 4.)

* Can a federal court reopen a death penalty case and block a state execution after it has rejected the convict’s final appeals? Yes, said the U.S. appeals court in San Francisco. (Calderon vs. Thompson. Argument: Dec. 9.)