United States v. Board of Education of the Township of Piscataway Motion for Leave to File Brief Amicus Curiae

    Nos. 94-5090, -5112

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff,

V.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY,
Defendant-Appellant/ 
Cross-Appellee

SHARON TAXMAN,
Plaintiff-Intervenor/
Cross-Appellant

V.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY,
Defendant/Cross-Appellee

Appeal from the United States District Court 
for the District of New Jersey

MOTION FOR LEAVE TO FILE BRIEF zlM/C/ CURIAE 

The Lawyers’ Committee for Civil Rights Under Law and the NAACP Legal 

Defense & Educational Fund, Inc. respectfully move that this Court permit the filing of this 

short brief am/cz curiae, out of time, in order to bring to the Court’s attention a significant 

issue arising on these appeals which, so far as we have been able to determine, has not 

been raised by any of the parties.



;  W v =î A> i : ^ ' i  Ai''

Proposed amici are non-profit organizations which provide legal services to the 

victims of racial and other invidious discrimination. Each has represented litigants in such 

matters before this Court.’ Proposed amici are deeply concerned by the sweeping, 

categorical nature of the district court’s opinion in this case on matters of great complexity 

and profound national significance: the permissible justifications for and scope of race­

conscious, affirmative action. We believe that the lower court erred fundamentally in 

suggesting that a school system may never take affirmative action to promote faculty 

diversity, and that there are no circumstances in which race may permissibly be considered 

in making a reduction in force.”

However, a careful examination of the parties’ briefs in this matter that were 

available to us, and of the Appendix on this appeal, compels the conclusion that those 

issues should not be decided by this Court in the circumstances of the present appeals. As 

outlined in the accompanying brief, the important questions arising in this case were 

decided below on a purely abstract, hypothetical basis when the district court granted 

summary judgment in favor of the plaintiff and plaintiff-intervenor without making a 

determination whether there were disputed material facts that should have been resolved 

by a trial. In our view, this was a serious legal error requiring that the judgment below be

'For example, they have jointly served among counsel for the plaintiff class in Hoots v. 
Commonwealth o f Pennsylvania, No. 91-3318 (3d Cir. March 3, 1992).

Th^ Brief for the United States as Amicus Curiae that has been tendered to this 
Court oudines some of the appropriate legal principles to be applied in examining the 
permissibility of affirmative action by school systems seeking to promote diversity on its 
faculties and staffs. We do not seek to duplicate that discussion in our proposed filing.

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vacated and the case remanded for further proceedings but, as noted above, it has not been 

raised by any of the parties to these appeals.

The legal authority which supports this suggested disposition is succinctly outlined 

in the accompanying brief. Defendant-Appellant/Cross-Appellee Board has consented to 

its filing; Plaintiff-Intervenor/Cross-Appellant has not, consistent with her uniform denial 

of consent to proposed amicus filings in support of either party’s position. Accordingly, 

proposed amici request, pursuant to Fed. R. App. P. 29, that this Court grant leave for its 

submission.

Respectfully submitted.

V t Q,<.
ELAINE R. JON 
Director-Counsel

THEODORE M. SHAW 
NORMAN J. CHACHKIN 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, N.Y. 10013 
(212) 219-1900

BARBARA R. ARNWINE 
Executive Director

THOMAS J. HENDERSON 
RICHARD T. SEYMOUR 
Lawyers’ Committee for 

Civil Rights Under Law 
1450 G Street, N.W.,

Suite 400
Washington, D.C. 20005 
(202) 662-8600

Attorneys for proposed Amici Curiae

September 28, 1994

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Nos. 94-5090. -5112

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff,

V.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY,
Defendant-Appellant/ 

________________Cross-Appellee
SHARON TAXMAN,

Plaintiff-Intervenor/
Cross-Appellant

V.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY,
________________Defendant/Cross-Appellee

Appeal from the United States District Court 
for the District of New Jersey

BRIEF FOR
THE LA^VYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW

AND THE
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

AS AMICI CURIAE

ELAINE R. JONES 
Director-Counsel

THEODORE M. SHAW 
NORMAN J. CHACHKIN 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, I6th fl. 
New York, N.Y. 10013 
(212) 219-1900

September 28, 1994

BARBARA R. ARNWINE 
Executive Director

THOMAS J. HENDERSON 
RICHARD T. SEYMOUR 
Lawyers’ Committee for 

Civil Rights Under Law 
1450 G Street, N.W.,

Suite 400
Washington, D.C. 20005 
(202) 662-8600

Attorneys for Amici Curiae



Table of Contents

Page

Table of Authorities ..................................................................................................................i

Interest ol Amici Curiae .............................................................................................................1

Issue Presented for Review ..................................................................................................1

Statement of the C a s e ................................................................................................................. 2

ARGUMENT ............................................................................................................................. 4

C onclusion...................................................................................................................................11

Certificate of Service..................................................................................................................13

Table of Authorities

Cases'.

Bingham, Ltd. v. United States, 724 F.2d 921 (11th Cir. 1984)......................................... 8

City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989) ..................................  10

Davidson v. Stanadyne, Inc., 718 F.2d 1334 (5th Cir. 1983) ............................................. 8

Geraghty v. U.S. Parole Commission, 579 F.2s 238 (3d Cir. 1978), 
vacated, 445 U.S. 388 (1980), on remand, 552 F. Supp.
276 (M.D. Pa. 1982), affd, 719 F.2d 1199 (3d Cir. 1983),
cert, denied, 465 U.S. 1103 (1984) ............................................................................... 5

Green v. County School Board of New Kent County, 391 U.S. 430 (1968) .................  10

Hayes v. North State Law Enforcement Officers Association.
10 F.3d 207 (4th Cir. 1993) ..........................................   7

Johnson v. Transportation Agency, Santa Clara County,
480 U.S. 616 (1987)................................................................................................. 7, 10

United States v. Board of Education of Piscataway, 832
F. Supp. 836 (D.N.J. 1993) .................................................................... 2n, 3, 4, 6, 7

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Table of Authorities (continued)

Page

Cases (continued):

United States v. Paradise, 480 U.S. 149 (1987) ....................................................................9

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) ....................................  9, 11

Statutes'.

Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.............................3, 5, 6, 8

New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.................................... 3, 4

Rules:

Fed. R. Civ. P. 5 6 (c ) ................................................................................................. 2, 4, 6, 11

Other Authorities:

lOA Charles A. Wright, Arthur R. Miller & Mary K. Kane,
Federal Practice & Procedure (1 9 8 3 )...............................................................  5, 6, 8

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INTEREST OF AMICI CURIAE

The Lawyers’ Committee for Civil Rights Under Law is a nonprofit organization 

established in 1963 at the request of the President of the United States to involve leading 

members of the bar throughout the country in a national effort to ensure civil rights to all 

Americans. Through its national office in Washington, D.C., and its several affiliate 

Lawyers’ Committees, the organization has over the past 31 years enlisted the services of 

thousands of members of the private bar in addressing the legal problems of minorities and 

the poor in voting, education, employment, housing, municipal services, the administration 

of justice, and law enforcement.

The NAACP Legal Defense and Educational Fund, Inc. (LDF) is a private, 

nonprofit organization founded in 1940 by the National Association for the Advancement 

of Colored People. For more than 35 years it has been entirely separate from the 

Association. LDF is a tax-exempt charitable organization providing specialized legal 

assistance in cases involving civil rights issues; that is, cases dealing with discrimination 

against blacks, other minorities, and the poor in education, housing, employment, and other 

areas of American life. LDF has been approved by the Appellate Division of the Supreme 

Court of the State of New York to function as a legal aid organization "for the purpose of 

providing legal services in the area of civil rights and poverty law."

ISSUE PRESENTED FOR REVIEW

Amici suggest that the appropriate issue to be resolved by this Court, and the only 

matter that need be adjudicated on this appeal, is whether the district court erred in

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granting summary judgment pursuant to Fed. R. Civ. P. 56(c), and announcing sweeping, 

per se determinations of questions of law, without first making a determination that there 

were no genuine issues of material fact in dispute as to the basis on which the Board took 

the actions alleged in the complaint to have been wrongful.

STATEMENT OF THE CASE

The briefs of the parties and of the United States, as amicus curiae, have provided 

the Court with a discussion of the proceedings and record below. A complete restatement 

of these matters or of the facts is not necessary for purposes of this submission. Amici 

therefore direct the attention of the Court only to those matters not addressed by the 

parties and to the critical procedural issue that arises on the record.’

This case involves the application of an affirmative action plan to a reduction in 

force at Piscataway High School, operated by the Board of Education of the Township of 

Piscataway ("Board"). Specifically, in determining which of two teachers with equal 

seniority would be laid off, the Board detennined to break the tie by applying its 

affirmative action plan, rather than by flipping a coin.-

’Indeed, amici have had the opportunity to review only the opening briefs of the parties 
and of the United States, the Appendix of the Defendant-Appellant, and the Plaintiff- 
Intervenor’s Appendix.

^ e  plan provided that "when candidates appear to be of equal qualification, 
candidates meeting the criteria of the affirmative action program [i.e.. minority group 
candidates] will be recommended." United Slates v. Board of Education of Piscataway, 832 
F. Supp. 836, 838 (D.N.J. 1993). There is no dispute that the Board decided, in this 
instance, to apply this principle to a layoff.

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The result of this determination was that Sharon Taxman, a white teacher, was laid 

off and Debra Williams, an African-American teacher, was retained.

The United States initiated this action pursuant to Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. §§ 2000e et seq., claiming that Taxman’s layoff constituted unlawful race 

discrimination (I Da 232). Taxman intervened in the suit, asserting this and additional 

claims under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et 

seq., including claims for compensatory and punitive damages {See II Da 236.) The Board 

responded that because the personnel action was taken pursuant to a lawful affirmative 

action plan, race had been considered for a permissible purpose.

Following discovery and the parties’ stipulation to certain facts, cross-motions for 

summary judgment were filed. A disputed factual issue central to the summaiy judgment 

proceedings was the question whether the Board had decided to utilize its affirmative 

action plan as the "tie breaker" on educational grounds; that is, for the purpose of 

maintaining diversity among the faculty and staff of the school. United States v. Board of 

Education of Piscatuway, 832 F. Supp. 836, 848-49 n.9 (D.N.J. 1993).'^

In an opinion dated September 10, 1993, the district court entered summary 

judgment against the Board as to liability. Id. at 851. Specifically, the court held that it 

did not need to determine whether deposition testimony and other materials submitted with 

the cross-motions "create[d] a genuine issue of material fact" as to the purpose with which 

the Board acted. Id. at 848-49 n.9. Instead, the court premised summaiy judgment on

^Plaintiff-intervenor Taxman also asserted, and the Board denied, that the apparent 
seniority "tie" was the result of intentional manipulation of the layoff categories by school 
officials.

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sweeping declarations that "faculty diversity ‘for education’s sake’ is not a permissible 

purpose" for race-conscious affirmative action, id. at 848, and that the Board’s plan 

"‘unnecessarily trammel[ed]’ the rights of nonminorities" because of its use in connection 

with a layoff, id. at 851.

Subsequently, the district court determined the amount of a back-pay award to 

Taxman, and a jury trial was held on Taxman’s claims under the NJLAD. The court ruled, 

however, that Taxman could not present her NJLAD manipulation claims for punitive 

damages to the jury and the jury therefore awarded only compensatory damages.

ARGUMENT

Summary judgment is available only as authorized in Fed. R. Civ. P. 56(c), which 

provides (emphasis supplied):

Motion and Proceedings Thereon. The motion shall be served at least 
10 days before the time fixed for the hearing. The adverse party prior to the 
day of hearing may serve opposing affidavits. The judgment sought shall be 
rendered foi thwith if the pleadings, depo.sition.s, an.swers to interrogatories, and 
admissions on file, together with the affidavits, if any, show that there Ls no 
genuine issue as to any material fact and that the moving party is entitled to a 
judgment as a matter o f law. A summary judgment, interlocutory in character, 
may be rendered on the issue of liability alone although there is a genuine 
issue as to the amount of damages.

The Rule requires a two-step process: first, a determination that there are no genuine 

disputes over material facts whose resolution would affect the outcome, and second, 

adjudication of the parties’ legal claims in the light of the relevant and material facts that 

are undisputed. Neither prong of the inquiry can be omitted. The language italicized 

above, "which is the veiy heart of the summary judgment procedure, demonstrates that the 

principal judicial inciuiiy required by Rule 56 is whether a genuine issue of material fact



exists." lOA Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and 

Procedure § 2725, at 75 (1983) (emphasis supplied). See, e.g., Geraghty v. United States 

Parole Commission, 579 F.2d 238, 267 (3d Cir. 1978) ("Nonetheless, since the Commission 

intimates elsewhere in its answer that, in fact, it engages in individualized consideration of 

prisoners similar to that which it undertook before the guidelines went into effect, there 

appears to be a controverted issue of material fact, and on such issue, the case is 

inappropriate for summary judgment"), vacated on other grounds, 445 U.S. 388 (1980), on 

remand, 552 F. Supp. 276 (M.D. Pa. 1982), aff’d, 719 F.2d 1199 (3d Cir. 1983), cert, denied, 

465 U.S. 1103 (1984).

The difficulties that ensue when a court does not follow the procedure outlined in 

the Rule are well illustrated by the present case. The plaintiff-intervenor teacher alleged 

that she had been selected for layoff (required by a reduction in force) because of her race, 

in violation of Title VII. The Board admitted that race was considered in order to break 

the seniority tie between plaintiff-intervenor and an African-American teacher;'* but it 

asserted that taking race into account in this manner was permissible, because it had been 

done pursuant to a lawful affirmative action plan for the purpose of educational diversity 

within the Business Department.

The Board’s responsive factual assertions were disputed, however. The district court 

recognized that "plaintiff and Taxman also contend that this purported justification 

[educational diversity] should be rejected as without factual foundation . . . [that] there is

'‘It is undisputed that New Jersey law requires that layoffs necessitated by a reduction 
in force be conducted in reverse order of seniority.

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no evidence that the Board, in fact, acted for that purpose." 832 F. Supp. at 848 n.9. 

Plaintiff-intervenor further denied that there was a true seniority "tie" in the first place; 

rather, she claimed that the situation had been manipulated by school officials to create the

"tie."

Nevertheless, the district court granted summary judgment for plaintiff and plaintiff- 

intervenor without resolving these factual disputes. The court said that the question 

whether genuine issues of material fact existed "need not be decided" because, it had 

concluded, even if the Board’s version of the facts were correct, as a matter of law its 

actions violated Title VII. 832 F. Supp. at 848-49 n.9.

The district court explicitly failed to adhere to the requirements of Fed. R. Civ. P. 

56(c) by ignoring its obligation to determine whether genuine issues of material fact existed. 

Thus, the district court failed to make the "principal Judicial inquiry required by Rule 56." 

This is the principal inquiry because only if the court determines that no genuine issues of 

material fact exist can the court proceed to determine if a party is entitled to judgment as 

a matter of law. "Before the court can apply the law, it must have an adequate factual basis 

for doing so." lOA Federal Practice & Procedure § 2725, at 85. If such factual disputes 

exist, they are to be determined at trial.

Necessarily, therefore, in reaching its legal judgments the district court assumed a 

hypothetical status quo: namely, that the Board’s assertion of its purpose (educational 

diversity), although contested, had been established. Equally apparent, the court’s failure 

to allow genuine issues of material fact to be resolved only after full exploration in an 

evidentiary proceeding left it free to conduct its own expedition through the jurisprudence

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of affirmative action and to pronounce a judgment supported by the most sweeping general 

principles that it could devise. Thus, the Court flatly stated that "faculty diversity ‘for 

education’s sake,’ is not a permissible purpose" for affirmative action, id. at 848, and that 

the Board’s affirmative action plan unnecessarily trammelled the rights of non-minority 

faculty because, inter alia, "in contrast to Johnson [v. Transportation Agency, Santa Clara 

County, 480 U.S. 616 (1987)], where the plan pertained to promotions, the Board’s minority 

preference applies to layoff decisions," id. at 849.

The district court’s error in failing to follow Rule 56(c) had enormous consequences. 

Had the court confronted the factual disputes among the parties and found that the Board 

failed to present sufficient evidence to raise a genuine issue on the issue of purpose, it 

would not have haci to embark upon its interpretive voyage. The Fourth Circuit held, in 

similar circumstances:

Without deciding whether achieving a greater racial diversity within 
the police department is a compelling state interest that might justify 
awarding promotions on the basis of race, when not directed at past 
discrimination, we agree with the district court that the evidence offered by 
the City to establish the benefits of such diversity is not sufficient to create 
the genuine issue of material fact necessary to survive summary judgment.

Hayes v. North State Law Enforcement Officers Association, 10 F.3d 207, 213 (4th Cir. 1993).

On the other hand, a trial on the disputed issues — if it resulted in a ruling that the

Board ^  act for the purpose of educational diversity -  would have provided the district

court with additional information about the characteristics and operation of the Board’s

affirmative action plan. In turn, the district court’s legal ruling about the Board’s plan,

informed by that more extensive factual development, could be quite different from the

broad hypothetical conclusions set forth in the opinion below. See, e.g., Davidson v.

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Stanadyne, Inc., 718 F.2d 1334, 1340 (5th Cir. 1983) (emphasis in original and footnotes 

omitted):

There is nothing in the summary judgment record which is inconsistent with 
Davidson’s being able to produce additional evidence, not contradictory to 
that before the district court, in support of her claim, and we are unable to 
conclude that a reasonable jury could not draw conflicting inferences from 
all of the facts and circumstances of this case as it might be so developed and 
that none of those inferences would support her theories of recovery.

See also Bingham, Ltd. v. United Slates, 724 F.2d 921, 924-26 (11th Cir. 1984); lOA Federal

Practice & Procedure § 2725, at 85 ("In some situations, a fuller development of the facts

may serve to clarify the law or help the court determine its application to the case").

Finally, a trial might produce a finding by the court that plaintiff-intervenor had

proved her assertions that the existence of a "seniority tie" resulted from manipulations by

the Board or its employees even before the affirmative action plan came into play, and a

consequent judgment in her favor that had nothing to do with the question whether the

Board’s plan is consistent with Title VII.

The preceding discussion underscores the importance in this case of the general 

approach that the Supreme Court has taken in these matters. In decision after decision, 

a majority of the Court has emphasized the need to go slowly in developing the common 

law of voluntary affirmative action under Title VII and the Fourteenth Amendment, and 

to decide only those issues which cannot be avoided. The Court’s rulings indicate that 

advisory opinions are particularly inappropriate when seeking to delineate the permissibility 

of voluntary affirmative action.

In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), for example, the 

Court struck down the particular use of affirmative action in layoffs at issue, but it did not

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hold that all consideration of race in layoffs is necessarily impermissible.^ United States v.

Paradise, 480 U.S. 149 (1987), provides another useful example. Although four cities as

amici urged that the Court should recognize the operational need of police departments

to have officers from all minority groups as a sufficient basis for affirmative action (it is

obviously difficult to mount an undercover operation without officers of the same race or

ethnic group as that of the persons being investigated), Justice Brennan’s plurality opinion

declined to reach ihat question, stating: "We need not decide if either the generalized

governmental interest in effective law enforcement or the more j)articularized need to

overcome any impediments to law enforcement created by perceptions arising from the

egregious discriminatory conduct of the Department is compelling." 480 U.S. at 167 n.l8.

Similarly, Justice Stevens concurred in Johnson, 480 U.S. at 642:

to explain my view of this case’s position in our evolving antidiscrimination 
law and to emphasize that the opinion does not establish the permissible 
outer limits of voluntary programs undertaken by employers to benefit 
disadvantaged groups.

^Part IV of Justice Powell’s opinion in that case, joined by Chief Justice Burger and 
then Justice Rehnquist, held that "the Board’s layoff plan is not sufficiently narrowly 
tailored," but the footnote appended to that statement "recognized, however, that in order 
to provide make-whole relief to the actual, identified victims of individual discrimination, 
a court may in an appropriate case award competitive seniority." 476 U.S. at 284 & n.l2. 
It is obvious that such a course might residt in layoffs of non-minority workers in the event 
of a reduction in force occurring after competitive seniority had been awarded to the 
victims of an employer’s discrimination. The same result would follow if seniority were 
awarded to the beneficiaries of an affirmative action plan.

Justice O’Connor wrote that it was unnecessary "to resolve the troubling questions 
of whether any layoff provisions could sui-vive strict scrutiny or whether this particular 
layoff provision could, when considered without reference to the hiring goal it was intended 
to further, pass the onerous ‘narrowly tailored’ requirement." 476 U.S. at 293. The four 
dissenting Justices in IVygant, of course, would have sustained the layoffs at issue.

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Part V of Justice O’Connor’s plurality opinion in City of Richmond v. J.A. Croson 

Company, 488 U.S. 469, 509 (1989) reflected similar caution. While striking down 

Richmond’s minority contractor set-aside ordinance, the opinion was careful to note that 

it was not intended to bar all race-conscious set-aside plans and, in fact, it described the 

types of plans that could pass muster. The opinion indicated that the justification for a 

permissible plan was not limited to remedying a jurisdiction’s own past discrimination; 

rather, such a plan could be based on evidence that the white contractors with whom the 

jurisdiction did business were themselves discriminatorily excluding minority subcontractors 

from jobs.

In other words, the approach to affirmative action cases that the Supreme Court has

taken parallels that in the school desegregation area:

There is no universal answer to the complex problems of desegregation; there 
is obviously no one plan that will do the job in eveiy case. The matter must 
be assessed in light of the circumstances present and the options available in 
each instance.

Green v. County School Board of New Kent County, 391 U.S. 430, 439 (1968).

Here, the district court utterly failed to limit its assessment of affirmative action to

the particular circumstances of this case, either by making factual findings or by

determining that there were no genuine, material disputes about the facts. The lower

court’s disregard of its obligations under Fed. R. Civ. P. 56(c) effectively disables this Court

from carrying out its appellate function: determining whether the trial court correctly

applied the law to the facts. Cf Wygant, 476 U.S. at 277:

[T]he trial court must make a factual determination that the employer had 
a strong basis in evidence for its conclusion that remedial action was 
necessary. . . unless such a determination is made, an appellate court

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reviewing a challenge to remedial action by nonminority employees cannot 
determine whether the race-based action is justified as a remedy for prior 
discrimination.

CONCLUSION

For the foregoing reasons, amici respectfully suggest that the judgment below should 

be vacated and the case remanded with instructions to the district court to comply with the 

requirements of Fed. R. Civ. P. 56(c) by determining whether genuine disputes as to 

material facts exist and, if so, by thereafter conducting the necessary evidentiary 

proceedings to resolve those disputes.

Respectfully submitted.

ELAINE R. JONES 
Director-Counsel

THEODORE M. SHAW 
NORMAN J. CHACHKIN 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th fl. 
New York, N.Y. 10013 
(212) 219-1900

BARBARA R. ARNWINE 
Executive Director

THOMAS J. HENDERSON 
RICHARD T. SEYMOUR 
Lawyers’ Committee for 

Civil Rights Under Law 
1450 G Street, N.W.,

Suite 400
Washington, D.C. 20005 
(202) 662-8600

Attorneys for Amici Curiae

September 28, 1994

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Certificate of Service

I hereby certify that on this 28th day of September, 1994, the foregoing Motion for 

Leave to File Brief y4/n/d Curiae and the Brief for the Lawyers’ Committee for Civil Rights 

Under Law and the NAACP Legal Defense & Educational Fund, Inc. was served upon 

counsel for the parties to these appeals, by facsimile transmission and by depositing two 

copies thereof in the United States mail, first-class postage prepaid, addressed as follows:

Stephen E. Klausner, Esq. 
Klausner, Hunter, Cige & Seid 
63 E. High Street 
P. O. Box 1012 
Somerville, New Jersey 08876

David B. Rubin, Esq.
Rubin, Rubin, Malgran, Kaplan 

& Kuhn 
501 Hoes Lane 
Piscataway, New Jersey 08854

Norman J. Chacpkin

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