Piscataway Township Board of Education v. Taxman Brief for Respondent

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No. 9£-679 ’
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HOARD O E 
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SHARON TAXMAN,

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O/i 11 i n  o f Certiorari to the United States ?4.
Court ,'/ Appeals fo r  the Third Circuit

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BRIEE I OR RESPONDENT u-

SAMUEL. ESI REK HER 
New York Univeisity 
School of 1 aw

STEPHEN E. KLAUStfER v ^
Counsel o f  Record ’ ’K $FV ': Vef.*

STEPHEN B. HUNTER f ll te *  >%
40 Washington S.juare South KLAUSNER & HUNTER \ tiw L .

63 East High Street}- ktyi!1 £js$aii 
P.0 Box 1012 ' • 4* f..

NewYoik.N)  10012 
(212)998-6220

Someiville.NJ 08876 
(008) o85 1552

jor Respond: 'ii



1

This case presents a narrow question: whether a local school 
board with an admittedly racially diverse faculty can, consistent 
with Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 
el seq. (“Title VII"), and analogous state law, use race to lay off a 
white teacher in order to ensure “diversity” in its ten-person high 
school business education department.

OPINIONS BELOW
The in banc opinion of the United States Court of Appeals for 

the Third Circuit, filed on August 8, 1996, appears in Appendix C 
to the petition, Pet. App. 7a-83a, and is reported at 91 F.3d 1547 
(3d Cir. 1996). The opinion of the United States District Court for 
the District of New Jersey, dated September 9, 1993, appears in 
Appendix E to the petition, Pet. App. 88a-124a, and is reported at 
832 F. Supp. 836 (D.N.J. 1993). On August 21, 1996, the Court of 
Appeals issued an order amending the caption to delete reference 
to the United States of America, the original plaintiff in this action.1

STATEMENT OF JURISDICTION
The judgment of the Court of Appeals for the Third Circuit 

was Filed on August 8, 1996 and amended on August 21, 1996. 
This Court has jurisdiction pursuant to 28 U.S.C. § 1254( 1).

STATUTORY PROVISIONS INVOLVED
The statutes involved are Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. § 2000e el seq., and the New Jersey 
Law Against Discrimination, N.J. Stat. Ann. 10:5-1, et seq. These 
provisions appear at Pet. App. 127a.

1 Shortly before its brief was due in the Court of Appeals, the United
Slates sought leave to appear as amicus curiae in support of reversal__a
request which was denied. However, after reconsidering its position in light 
of Adarand Constructors. Inc. v. Pena. 515 U.S. 200 (1995), the United 
Slates has Tiled an amicus curiae brief in this Court in support of affirmance. 
See Br. for the United States as Amicus Curiae Supporting Affirmance ("Br. 
for United States”) at 2 (referencing Office of Legal Counsel Memorandum 
to General Counsels, Re: Adarand (June 28, 1995) (available on Wesllaw at 
1995 DLR 125, p. d33))



2

STATEMENT OF THE CASE
In May 1989, facing the need to reduce its teaching staff by 

one. Petitioner School Board of Education for the Township of 
Piscataway, New Jersey (“Petitioner” or “Board”) decided that — 
as between two tenured teachers of secretarial skills in the 10-person 
business education department of Piscataway High School — it 
would retain Debra Williams, an African-American, and lay off 
Sharon Taxman, a Caucasian, because of the difference in their race. 
Petitioner claimed that it took this action in the interest of 
educational “diversity” because Taxman and Williams were deemed 
otherwise equal in seniority and teaching ability2 * and Ms. Williams 
was the only black in that particular department.

Petitioner invoked this depanmental “diversity" rationale for 
the first (and onlv) time in the May 1989 termination. It is 
undisputed that the Board did not act for the purpose of remedying 
past violations or rectifying any imbalance between its professional 
staff and the availability of African-Americans in the general 
workforce or the county pool of qualified school teachers or to 
redress some other violation of federal law. Rather, Petitioner’s 
purpose was to justify terminating a tenured white teacher in order 
to ensure the continued employment of a black teacher in a particular

2. At the lime of the decision lo lay off Taxman in 1989, Taxman and 
Williams each had nine years’ experience in the "seniority categories" of 
Typewriting and Secretarial Studies. In other respects, however, their records 
differed. Taxman had nine years of experience in General Business and 
Bookkeeping and Accounting, whereas Williams had only 4 years and three 
months in those "seniority categories". Joint Appendix (“J A.”) 65a; also id.
155a- 156a. (Seniority categories are determined pursuant to N.J.A.C. 6:3- 
5.1(b) and 6:3-5.1 (l)( 17)). Taxman taught a broader range of courses, 
including advanced courses such as computer systems; Williams principally 
taught basic courses such as typing and secretarial studies. J.A. 53a-54a; 
also Cem> Depos., pp. 48-56 Taxman also had performed extra-curricular 
or co-cumcular activities for many years (J.A. 106a-107a, 123a (Interrogatory 
No. .35 and Petitioner’s response)), while Williams during the relevant period 
had not provided these services (id. 87a-88a & 96a (Interrogatory Nos. 24, 
26-27 and Petitioner’s response referencing personnel files showing no such 
activities by Williams)).

department, a small subset of a concededly racially-diverse faculty.'' 
The Board has stipulated that had Williams been terminated in lieu 
of Taxman, “ it would not have resulted in blacks being 
underrepresented in Defendant’s teaching workforce as a whole, 
when compared with the representation of blacks in the teacher 
workforce of Middlesex County” (where Petitioner is located). J.A 
67a.

After Taxman was laid off, she filed a charge with the Equal 
Employment Opportunity Commission, alleging she had been 
subjected to discrimination on account of her race in violation of 
Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e-2. Pet. 
App. 15a. The charge was referred to the U.S. Department of Justice, 
and the United States filed a Title VII suit against Petitioner in 
which Taxman intervened. Id.

On cross-motions for summary judgment, the District Court 
found that Petitioner had violated Title VII. 832 F. Supp. 836 (D.N.J. 
1993); Pet. App. 88a-124a. The trial court held that Petitioner’s 
asserted “nonremedial purpose of promoting racial diversity ‘for 
education’s sake’ or ‘as an educational goal’ in a department, but 
not in the Board's teacher work force” was not a permissible basis

3. Petitioner's high school professional teaching staff at the lime 
included 14 African-Americans, 2 Hispanics and one Asian American. The 
black teachers (identified by name because of Ihe tendency to obscure the 
fact that individuals, not members of groups, are involved) were: Eddie 
Alexander (Vice-Principal), Walter Atwater (Special Education), Juanita 
Blowe (English), Verdelle Freeman (English). Saundrah Grevious (English), 
Lisa Hollis (Special Education), Diana Holmes (Social Studies/History), 
Alexander Jones (Special Education), Edward Lane (Guidance Counselor), 
Lawrence Lester (Health/Phys. Ed ), Frances Moore (Fine Arts). Priscilla 
Tucker (Math), Robert Warwick (Science/Supervisor), and Debra Williams 
(Business). See Lodging App. (New Jersey Dept, of Educ.. Bur. of Information 
Resources Management, Final Listing of 1988/89 Certificated Staff, District 
Report, School: 050 Piscataway Twp. High, dated January 30. 1989). Many 
ol these teachers taughi mandatory subjects that (unlike business education, 
an elective) all students had to take in order to graduate. See N.J.A.C. 6:8- 
7.1(c) (required courses include English, math, social studies/U.S. history, 
sciences, phys. ed., and one year of "fine, practical, and/or performing arts").



4

for the use of race under Title VII. 832 F. Supp. at 845- Pet Ann 
109a, 116a-117a.

As an alternative ground, the court held that even if Petitioner’s 
affirmative action policy had been established for a permissible 
purpose under Title VII, the policy was not narrowly tailored to 
achieve that purpose without “unnecessarily trammelfling] the 
interests of the white employees,” United Steelworkers v. Weber, 
443 U.S. 193, 208 (1979). The court presented four reasons in 
support of its alternative ground. First, "the Board’s minority 
preference applies to layoff decisions.” 832 F. Supp. at 849; Pet. 
App. 118a. Second, unlike the plans sustained in this Court’s 
decisions in Weber and Johnson v. Transportation Agency, 480 U.S. 
616 (1987), “the Board does not even suggest that its plan is 
temporary and there is no indication that the plan is to be reassessed
with any regularity or, for that matter, at all___ If the goal o f the
plan is to enrich the educational experience of students by 
employing a more diverse faculty, this goal will be achieved at 
some point. What the point will be, however, is wholly unclear for 
the ’diversity’ which is sought is nowhere defined.” 832 F. Supp. at 
850; Pet. App. 120a-121a. Third, even if Petitioner had defined its 
“diversity” objective, its plan “does not indicate that it will end 
when diversity is achieved.” The plan thus posed the potentially 
significant burden on nonminorities of a “limitless plan, harkening 
back to the Supreme Court’s rejection in Wygant [v. Jackson Bd. of 
Educ., 476 U.S. 267, 276 (1986),] of measures which are ‘timeless 
in their ability to affect the future.' ’’ Id:, Pet. App. 121a. Finally, 
“[conspicuously absent here is evidence that the Board has tried 
or considered alternative and less burdensome means to achieve 
diversity in its faculty.” 832 F. Supp. at 851; Pet. App. 122a. Judge 
Barry concluded: "even if faculty diversity were a purpose on which 
a race-conscious plan could be based, the plan presented here would 
be struck down as overly intrusive to the rights of nonminorities ” 
Id: Pet. App. 123a.

The court awarded Taxman $ 144,014.62 in backpay and other 
monetary relief as well as retroactive seniority. By this time, Taxman 
had been rehired and thus there was no need for an order reinstating 
her. Pet. App. 16a.

'5

On appeal, Petitioner challenged only the trial court’s legal 
conclusions, and did not take issue with any of its factual 
determinations.4 The Court of Appeals, sitting in banc, affirmed 
the judgment of the District Court. 91 F.3d 1547 (3d Cir. 1996); 
Pet. App. 7a-83a. The court held that “affirmative action plans” are 
valid under Title VII only when they (1) “have purposes that mirror 
those of the statute,” and (2) do not “unnecessarily trammel the 
interests” of nonminority employees. Id. at 1550; Pet. App. 9a. 
The court concluded that Petitioner’s policy did not satisfy either 
requirement.

With respect to the first requirement, the court stated that 
“unless an affirmative action plan has a remedial purpose, it cannot 
be said to mirror the purposes of the statute" 91 F.3d at 1557; Pet. 
App. 29a. Given Petitioner’s repeated acknowledgment that its 
affirmative action policy was not adopted for a remedial purpose 
of any kind, the court had no occasion to spell out all conceivable 
remedial purposes permissible under Title VII. It simply noted that 
Petitioner’s “sole purpose in applying its affirmative action policy 
. . . was to obtain an educational benefit which it believed would 
result from a racially diverse faculty," and that the Board did not 
even attempt to show that its plan was adopted "to remedy past 
discrimination or as the result of a manifest imbalance in the 
employment of minorities." Id. at 1563; n"t. App. 44a (quoting 
District Court’s opinion).

As for the second requirement, the appeals court concluded 
that even if faculty diversity were a permissible objective. 
Petitioner’s policy "unnecessarily trammels (nonminority] 
interests." 91 F.3d at 1565; Pet. App. 44a-46a. First, the court noted 
that the Board’s policy suffered from an “utter lack of definition 
and structure”; it was thus bereft of objectives and benchmarks 
which serve “to evaluate progress, guide the employment decisions 
at issue and assure the grant of only those minority preferences

4 See Ur of Defendant-Appellant Board of F.ducation of the Township 
of Piscaiaway, on appeal. Nos. 94-5090 & -5112 (3d Cir ), pp. 1-2 (“As to 
each issue presented on this appeal, the Board contends thal the District 
Court erred in formulating or applying a legal precept to facts not in dispute ").



6

necessary to further the plan[’s] purpose.” Id. at 1564; Pet. App. 
45a. Whereas these safeguards were present in the plans upheld in 
Weber and Johnson, here “the Board’s policy, devoid of goals and 
standards, is governed entirely by the Board’s whim, leaving the 
Board free, if it so chooses, to grant racial preferences that do not 
promote even the policy’s claimed purpose.” Id. Second, the Board’s 
policy constituted a form of “ ‘outright racial balancing' in violation 
of Weber's second prong” because the policy “adopted in 1975, is 
an established fixture of unlimited duration, to be resurrected from 
time to time whenever the Board believes that the ratio between 
Blacks and Whites in any Piscataway School is skewed.” Id:, Pet. 
App. 45a-46a. Finally, the court stressed the detrimental impact of 
racial preferences for allocating layoffs: “we are convinced that 
the harm imposed on a nonminority employee by the loss of his or 
her job is so substantial and the cost so severe that the Board’s goal 
of racial diversity, even if legitimate under Title VII, may not be 
pursued in this particular fashion,” especially “where, as here, the 
nonminority employee is tenured" Id:, Pet. App. 46a.s

STATEMENT OF FACTS
A. The Affirmative Action Plan

As the District Court noted. Petitioner stipulated that it has 
never engaged in racial discrimination and that the percentage of 
blacks and other minorities on its teaching staff and overall 
workforce compares favorably with the minority composition of 
the available labor market. 832 F. Supp. at 838-39; Pet. App. 94a- 
96a; J.A. 59a-64a, 67a.

Petitioner’s Affirmative Action Program (“ 1975 Program”) was 
adopted in December 1975 in response to a directive from the New 
Jersey State Board of Education requiring each school district “to 
develop a policy of equal education opportunity” and adopt two 
affirmative action plans, one pertaining to classroom practices and 
one to employment practices. N.J.A.C. 6:4-1.3(a)-(b). Petitioner’s 
1975 Program contained the following “STATEMENT OF 
PURPOSE”:

5. Judge Stapleton filed a concurring opinion, id. at 1567; Pet. App. 
53a, and four judges dissented, id. at 1567-79; Pet. App. 53a-83a.

The basic purpose of the program is to make 
a concentrated effort to attract women 
candidates for administrative and supervisory 
positions and minority personnel for all 
positions so that their qualifications can be 
evaluated along with other candidates. In all 
cases, the most qualified candidate will be 
recommended for appointment. However, 
when candidates appear to be o f equal 
qualification, candidates meeting the criteria 
o f the Affirmative Action Program will be 
recommended. 6

J.A. 57a-58a (emphasis supplied).
As the District Court found, “the Board’s purpose in adopting 

this language was to grant a preference in hiring to minority 
candidates, hence the directive that in cases in which two or more 
candidates are equally qualified, the minority candidate is to be 
selected " 832 F. Supp. at 838; Pet App. 93a.7

I he 1975 Program was not adopted in response to prior 
discrimination or even statistical imbalance:

No charges of race based discrimination had 
been filed with any state or federal agency

6. The phrase " 'candidates meeting the criteria of the affirmative action 
program . means all individuals identified as minorities for statistical 
purposes by the New Jersey Department of Education,” 832 F. Supp. at 838; 
Pet. App. 93a, i.e., blacks, Hispanics, Asians, American Indians and females 
(J.A. 58a).

7 As Petitioner’s personnel director Gordon Moore testified:
Q. * * * Was it the intention of the Board in using 
the word will in that sentence, to make that mandatory 
in board personnel actions?

A. Yes If people were of equal qualifications, it 
would be mandatory for the superintendent, through 
the administrative process, to recommend the minority 
candidate.”

Moore Depos., p 207 (emphasis supplied)

'  7



8

against the Board or any of its employees 
prior to the adoption of the 1975 Affirmative 
Action Program. Indeed, there is not even a 
suggestion that the Board has ever 
intentionally discrim inated against any 
employee or applicant for employment on the 
basis of race. Moreover, at the time the 
Affirmative Action Program was adopted, the 
statistical reports required by the New Jersey 
Department of Education showed no 
underrepresentation of black employees in the 
reporting categories required by the State.

832 F. Supp. at 838-39; Pet. App. 94a.
In 1976, the Board added an “Employment Practices 

Addendum" to the 1975 Program, which contained an analysis of 
minority and female employment across various job categories in 
the Piscataway school system. In this document, the Board found 
that it was not underutilizing minorities in any job category. 
Specifically, “with respect to the job category of ‘professionals,’ 
which includes teachers, the statistics listed in the document indicate 
that while minorities comprised 7.4% of the statewide pool of 
persons with the requisite skills for the professional positions, 10% 
of the Board’s work force in this category were minorities.” 832 F. 
Supp. at 839; Pet. App. 94a (citation omitted).

In April 1983, the Board adopted a policy entitled "Affirmative 
Action — Employment Practices” (“ 1983 Policy”), which used 
essentially the same language as the 1975 Program — including 
the directive that "when candidates appear to be of equal 
qualification, candidates meeting the criteria of the affirmative 
action program will be recommended.” J.A. 61a. Here, too, the 
Board was not acting in response to past wrongdoing or statistical 
imbalance;

As was the case in 1975, when the Board 
adopted this policy in 1983 it had no 
knowledge or evidence of any past 
or continuing discrimination against blacks

"9

with respect to the employment of teachers. 
Sim ilarly, it had not conducted a new 
statistical analysis of its work force and had 
no inform ation indicating any under­
utilization or underrepresentation of blacks 
in its teacher work force.

832 F. Supp. at 839; Pet. App. 95a; see also J.A. 61a-62a.
Finally, in January 1985, the Board issued a second addendum 

to its 1975 Program, which contained an analysis dividing the 
workforce into ten categories and comparing utilization of 
minorities and females in these categories with the availability of 
these groups in the Middlesex County labor force. No discrimination 
or underutilization was found:

The comparison of the percentages in the job 
category of “Educational Professionals,” 90% 
of which were teachers, revealed that while 
5.8% of the available labor market in Middlesex 
County was black, 9.5% of the educational 
professionals employed by the Board were 
black. Moreover, the addendum’s analysis of 
underutilization in each of the job categories 
by race, national origin, and sex indicated that 
because the percentage of black educational 
professionals employed by the Board exceeded 
the percentage of blacks in the Middlesex 
County labor market, there was no 
underutilization o f blacks in the Board’s 
teacher work force. Thus, the Board did not 
establish any goal with respect to hiring 
additional black teachers. [This] was the last 
such analysis prior to the termination of 
Taxman in 1989.

832 F. Supp. at 839; Pet. App. 96a (emphasis supplied); see also 
J.A. 62a-64a.



10

B. The Decision to Lay Off Taxman
In the Spring of 1989, Burton Edelchick, Petitioner’s 

Superintendent of Schools, recommended to the Board that, because 
of declining student enrollment in business courses, it should reduce 
the teaching staff in its 10-person business education department. 
By letter dated April 24. 1989, Gordon Moore, the Board's Director 
of Personnel, wrote to Taxman, advising her that the Board would 
be discussing “a reduction in the number of business teachers for 
the 1989-90 school year” at a private session on Thursday, April 
27, 1989. It advised Taxman: because “you are tied with one other 
teacher [i.e., Debra Williams] as the least tenured teacher of business 
education,” the board discussion could result in a recommendation 
to “terminate your employment.” J.A. 151a.®

The Board discussed Edelchik’s recommendation at private 
sessions on April 27 and May 18, 1989. At the latter meeting, it 
also discussed various methods of breaking the deemed tie in 
seniority between Williams and Taxman. Although ties had been 
broken in the past by drawing lots, the Board agreed with Edelchik’s 
recommendation that, as the District Court noted, “it use the 1983 
Affirmative Action policy as a tiebreaker knowing that Williams 
was black and Taxman was white and that application of the policy 
would result in the termination of Taxman and the retention of 
Williams.” 832 F. Supp. at 840; Pet. App. 98a. Edelchik’s 
recommendation was based on his belief that Taxman and Williams 
were tied in seniority and equally qualified, and that it was desirable 
to retain Williams as the only black in the business education 
department. Id.\ Pet. App. 98a. At its public meeting on May 22, 
1989, the Board formally voted to abolish one teaching position in

8 Under N.J.S.A. 18A:28-9, dismissals pursuant to reductions in force 
must be made on the basis of seniority. 832 F. Supp. at 840 n.4; Pet. App. 
97a n.4. Petitioner apparently had determined, as of the April 24, 1997 
letter, that Taxman and Williams were equal in seniority, even though the 
position designated for reduction appeared to be that of a “teacher of business 
education," J.A. 151 a, and Taxman had considerably more years of experience 
than Williams in the seniority categories of “General Business” and 
“Bookkeeping and Accounting". J.A. 65a.

' l l

the business education department and use the 1983 Policy as the 
basis for terminating Taxman.9 10

As the District Court noted, ”[i]t is undisputed that when the 
Board terminated Taxman in May, 1989, it had no specific intent to 
remedy any prior discriminatory act, practice, or pattern. It is 
similarly undisputed that had Taxman been retained and Williams 
been terminated, no underrepresentation of blacks in the teaching 
work force as a whole would have resulted.” 832 F. Supp. at 840- 
41; Pet. App. 99a.

The Board’s stated reason for applying the 1983 Policy to lay 
off Taxman was its concern over having an all-white business 
education department. Yet, the Board had never previously focused 
on the issue of departmental racial diversity. The Board’s president, 
Paula Van Riper, testified at her deposition that she could not 
remember previous reports to the Board of “anything specifically 
broken down by department” (J.A. 132a); that she could not recall 
the Board ever requesting the administrative staff to prepare a 
breakdown of teacher employment by race by department (id. 133a); 
and that she could not recall any previous employment decision in 
which the racial composition of a given department was one of the 
factors considered (id.).'0

9. In his May 22, 1989 letter to laxman, Gordon Moore described the 
Board s reasons for its actions differently from the proposed decision outlined 
in his letter of April 24, 1989 to her. In the April letter, the position proposed 
to be abolished was a “teacher of business education,” J.A. 151 a — a category 
as to which Taxman could with considerable merit argue she had greater 
seniority than Williams, see id. 65a. In the May letter, however, Moore 
stated that the Board “has decided to rely on its commitment to affirmative 
action as a means of breaking the tic in seniority entitlement in the secretarial 
studies category," id. 153a — a category in which Taxman and Williams 
were indisputably tied, see id. 65a.

10. Q Can you recall any instance while you have been a 
member of the school board, other than this Taxman 
matter, where the composition of a department or a grade 
has been filled by race, by gender, by national origin,
[or] has been the basis or a factor in the decision by the

(Corn’d)



12

The May 1989 decision to lay off Taxman in the pursuit of 
departmental diversity had not been preceded by any report of 
special operational problems in the business education department 
requiring the retention of a black instructor despite the presence of 
an admittedly racially diverse faculty. Moreover, Van Riper 
conceded in her deposition that business education students interact 
with other students and take courses in other departments." She 
also candidly acknowledged that the race of the teacher does not 
make a difference in the material presented to students or even in 
the level of student interest in the course.12 When asked what 
“educational objective” was furthered by retaining Williams over 
Taxman, Board president Van Riper spoke only of “sending a . .. 
message” of cultural diversity:

(Corn'd)
board as lo whether to hire or transfer or terminate a 
particular teacher?
A No

J.A. 133a-1 ?4a.

11. Q. Students who take business courses, do they take 
courses in other departments?
A. Certainly

Van Riper Depos., p. 84. Petitioner's personnel director Moore confirmed, 
in his deposition testimony, that Piscataway’s two adjacent high school 
buildings are “divided by grade levels rather than subject areas" and that 
“students move back and forth". Moore Depos., p. 144.

12. Q Does the race of the teacher make any difference in 
the nature of the material presented in a given class?
A. No, I don't believe so.
Q. Does it make any difference in the performance of 
students in any given class?
A. No.
Q Does it make any difference in student sign-up for 
any particular course or in the department as a whole?

A It's not a factor.

Van Riper Depos.. p 82.

In my own personal perspective I believe by 
retaining Mrs. Williams it was sending a very 
clear message that we feel that our staff 
should be culturally diverse, our student 
population is culturally diverse, and there is 
a distinct advantage to students, to all 
students, to be made — come into contact 
with people of different cultures, different 
background, so that they are more aware, 
more to lerant, more accepting, more 
understanding of people of all background.

Van Riper Depos., p. 83.
SUMMARY OF ARGUMENT

For several independently sufficient reasons. Petitioner’s use 
of a racial preference in May 1989 to decide that Taxman should 
be laid off instead of Williams violated Taxman’s rights under Title 
VII to have the merits of her situation considered irrespective of 
her race.

I.
The plain meaning of the statute, as confirmed by the legislative 

history, is that race neutrality is required in the American workplace. 
Section 703(a) bars employers from making adverse employment 
decisions “because o f ’ an individual’s race. The language is 
categorical, admitting of no exceptions. Indeed, Congress pointedly 
excluded race from the list of otherwise prohibited classifications 
that might constitute “a bona fide occupational qualification” under 
§ 703(e). Moreover, Title VII’s protections protect white workers 
from racial discrimination in favor of black workers.

This Court in its Weber and Johnson i clings carved out a limited 
exception from Title VII’s command of race neutrality to allow 
employers some latitude to use racial preferences for remedial 
purposes. In Weber, an employer was permitted to use a racial 
preference in its training program in order to increase the number 
of qualified black workers, and thus redress widespread “exclusion 
from crafts on racial grounds,” judicial findings for which were so 
numerous that the proposition was accepted as a matter of judicial

* 13



14

notice. This racial preference was thought to be consonant with 
Title VII because the employer was acting “to abolish traditional 
patterns of racial segregation and hierarchy.” Johnson broadened 
somewhat the remedial predicate for racial preferences, in allowing 
employers to redress “a conspicuous . . . imbalance in traditionally 
segregated job categories.” An important element of the Court’s 
judgment in Johnson was an irrefutable “statistical disparity” 
between the California agency’s utilization of women in craft 
positions (“an inexorable zero”) and the availability of skilled 
female craft workers in the local labor market.

The limits placed by the Court on its holdings in both Weber 
and Johnson reflect the Court’s awareness that the narrow and 
remedial exceptions from race neutrality it was prepared to 
recognize cut against the grain of the shared understandings of 
both Title VII’s supporters and opponents alike in Congress.

II.
Under both statutory and constitutional standards, a school 

board with a racially diverse faculty lacks adequate justification 
for using racial preferences in its employment decisions. Petitioner 
concedes that its layoff decision was not animated by any remedial 
concern, given the fact that the minority composition of its faculty 
exceeded the percentage of qualified minorities in the local labor 
market. Rather, it argues that Title VII permits the use of race to 
advance nonremedial operational objectives — here, the pursuit of 
departmental diversity “for education’s sake". Yet, this contention 
cannot be squared with Congress’ considered judgment that racial 
classifications are so problematic that employers must be denied 
any resort to a race-based BFOQ under Title VII. The absence of a 
race-based BFOQ, we submit, precludes any argument that racial 
preferences can be employed for nonremedial purposes.

Even if the Court were prepared to recognize a judicially 
crafted, implied BFOQ for truly exigent circumstances, this is not 
such a case. Whatever the benefits of retaining a black teacher in a 
10-person high school department may be, the undisputed facts 
here do not present a situation where the employer’s mission could 
not be performed on a race-neutral basis.

'  15

Moreover, on the assumption arguendo that the Court were 
willing to find that, in appropriate circumstances, racial preferences 
for education s sake might satisfy such an implied race-based 

BFOQ, the Board in this case nevertheless violated Title VII because 
its use of a racial preference — after having already achieved a 
racially diverse faculty — constitutes a “deliberate attempt to 
maintain a racial balance,’ which both Weber and Johnson make 
clear violates the statute.

Aware of these problems of defending its action under 
customary 1 itle VII analysis, Petitioner invites the Court to import 
into Title VII strict scrutiny" analysis from the equal protection 
arena. The invitation should be rejected, first and foremost, because 
not only was this theory not raised below, but the very opposite 
view was urged on the District Court and maintained on appeal. 
The strict scrutiny” interpretation, moreover, poorly fits the 
language and structure of Title VII, and would require either holding 
public employers to a different standard than private firms, or 
transposing inapposite constitutional standards to private employers.

Even if we assume that “strict scrutiny” applies, the scrutiny 
cannot be strict in theory, but feeble in fact”. Accordingly, even if 
racial diversity for education’s sake” might be considered a 
sufficiently “compelling” purpose in some situations, the Board 
has failed to “clearly articulate! ] the need and basis for a racial 
classification in this case. “Diversity” as a justification for racial 
preferences often embodies dubious assumptions about the saliency 
of race as a predictor of behavior and attitudes — requiring, we 
believe, a considerable degree of skepticism from the reviewing 
court. It is undisputed that the Board established neither that there 
were special operational problems in the business education 
department necessitating the use of a racial preference, nor that 
students in the department needed special instruction in tolerance 
capable of being provided only by a black instructor serving in 
that department.

Even if these determinations were made and had reasonable 
bases in the facts — not true in this case — racial diversity “for 
education’s sake” is not a compelling justification for employment



16

terminations. Petitioner's situation differs from that confronting 
universities that must assess the merits of thousands of admissions 
applications. The Board can lay no claim to a special tradition of 
academic freedom safeguarded by the first amendment. Nor did it 
have a legitimate basis for using race as a proxy for relevant 
characteristics, when it had available to it concrete, direct experience 
with the individuals targeted for the layoff decision and could 
evaluate their respective individual merits; and if unable to make 
distinctions could cast lots (as had been its previous practice).

III.
The Court can, if it wishes, pretermit entirely the thicket of 

issues concerning the reach of Title VII in the context of 
nonremedial racial preferences, the applicability of the “strict 
scrutiny” test under Title VII, and the status of racial diversity “for 
education’s sake" under the “compelling interest” component of 
“strict scrutiny" analysis.

As the courts below recognized, Petitioner’s racial preference 
policy fails the “narrowly tailored” requirement of Title VII under 
Weber and Johnson. The Court of Appeals gave four independent 
reasons for its conclusion: (1) the absence of a well-defined plan 
for achieving diversity; (2) the unlimited duration of the Board’s 
policy; (3) the failure to consider alternatives to racial preferences 
as a means to promote diversity; and (4) the unique burden imposed 
on nonminorities of using race as a basis for terminating an 
employee. Each of these grounds — none of which the Board 
adequately refutes — provides an independent basis for the 
judgment below.

IV.
Petitioner offers no reason to overturn the District Court’s 

exercise of discretion that “make whole” relief in Taxman’s case 
required that she be given backpay and restorative seniority for the 
period she was laid-off on account of her race. Absent such an 
award, Taxman would be locked behind Williams in seniority and 
remain the next candidate for a layoff in her department solely 
because she was not the designated beneficiary of the Board’s

'17

affirmative action program. Only restoring Taxman to a plane of 
equality with Williams cures the Title VII violation.

ARGUMENT
I. TITLE V II’S LANGUAGE AND LEGISLATIVE 
HISTORY MAKE CLEAR THAT ANY DEPARTURE 
FROM RACE NEUTRALITY IN EMPLOYMENT 
DECISIONS MUST BE FIRMLY GROUNDED IN THE 
LANGUAGE AND PURPOSES OF THE STATUTE OR 
THE REQUIREMENTS OF OTHER FEDERAL LAW.

This case turns entirely upon the proper construction of 
§ 703(a) of Title VII, which must be drawn from the statutory 
language, structure and legislative history. In dealing with the 
factual setting before it — the use of race to allocate layoffs without 
a remedial objective — we believe that the Court of Appeals below 
was entirely correct in requiring that any departure from the 
statutory norm of race neutrality be firmly grounded in the language 
and purposes of the Civil Rights Act of 1964 or the requirements 
of other federal law." As the lower court stated, ”[h]ere, as in Weber 13

13. Pelilioner charges that the ruling below would undermine 
compliance with other noncmploymcnl-related provisions of the 1964 law, 
such as Titles IV and VI. See Br. lor Petitioner 7-22. Petitioner did not raise 
this point below, and under this Court’s precedents it should not be considered 
here. See. e g., Price Waterhouse v. Hopkins, 490 U.S. 228, 240 n.5 (1989) 
(plurality op ); Johnson, 480 U.S. at 620 n.2. In any event, (he charge is 
mistaken. Since the Court of Appeals was addressing a racial preference in 
the employment context, it understandably emphasized the need for 
employers to establish a remedial predicate in their employment practices 
for any race-based preference program. However, there is nothing in the 
Court of Appeals’ remedial-purpose interpretation that would limit the latitude 
of employers to use racial preferences, in appropriate circumstances, to deal 
with past nonemployment based discrimination or potentially discriminatory 
nonemp! >yinent practices as evidenced by statistical or other showings of 
“manifest imbalance".

Thus, for example, the court quoted from (and left undisturbed) its 
earlier ruling in Kromnick v. School Dist. o f Philadelphia, 739 F.2d 894 (3d 
Cir. 1984), cert, denied. 469 U.S. 1107 (1985). See 91 F.3d at 1561; Pet.

(Cont’d)



18

and Johnson, the Board must justify its deviation from the statutory 
mandate based on positive legislative history, not on its idea of 
what is appropriate." 91 F.3d at 1558; Pet. App. 30a.
A. Statutory Language

We begin with the language of § 703 of Title VII. Section 
703(a) provides:

(a) It shall be an unlawful employment 
practice for an employer —

(1) to fail or refuse to hire or to 
discharge any individual, or otherwise 
to discriminate against any individual 
with respect to his compensation, 
terms, conditions, or privileges of 
em ploym ent because o f such 
individual's race, color, religion, sex, 
or national origin; or
(2) to limit, segregate, or classify his 
employees or applicants for 
employment in any way which would 
deprive or tend to deprive any individual 
of employment opportunities or

(Corn'd)
App. 38a. In Kromnick. the Third Circuit upheld a policy of the Philadelphia 
school board that sought to maintain a faculty ratio at each school in the 
system of between 75% and 125% of the system-wide proportions of white 
and black teachers. The court explained that this policy was an appropriate 
remedial response to correct the effects of past discrimination:

In the context of repeated court and administrative 
orders to eliminate the racial identifiability of schools, 
the School District’s plan to further this end by 
integrating a faculty must be considered remedial as 
a vital part of an ongoing effort to achieve a unitary 
school system."

Id. at 905 (emphasis supplied). The Kromnick court emphasized, moreover, 
that the teachers reassigned pursuant to the policy retained their jobs and 
accumulated seniority at their new schools. Id. at 907.

*19

otherwise adversely affect his status as 
an employee, because o f such 
individual's race, religion, sex, or 
national origin.

42 U.S.C. § 2000e-2 (emphasis supplied). When Congress 
amended Title VII in 1972 to include governments within the 
covered class of employers, it made no change in “the substantive 
standards governing employer conduct." Johnson, 480 U.S. at 627- 
28 n.6.

Section 703’s prohibition against race-based discrimination is 
categorical, on its face admitting of no exceptions. Congress 
pointedly excluded race from the types of classifications in § 703(e) 
that might constitute "a bona fide occupational qualification 
reasonably necessary to the normal operation of [the] particular 
business or enterprise.. . .” 42 U.S.C. § 2000e-2(e). (See pp. 30- 
31, infra).

The protections of § 703(a) clearly extend to nonminorities, 
like Taxman, complaining of discrimination because of their race. 
See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 
(1976) (Title VII “prohibits all racial discrimination in employment, 
without exception for any group of particular employees”) 
(emphasis in original); also Griggs v. Duke Power Co., 401 U.S. 
424, 431 (1971) (“[discriminatory preference for any group, 
minority or majority, is precisely and only what Congress has 
proscribed”); Fumco Construction Corp. v. Waters, 438 U.S. 567, 
579 (1978) (“the obligation imposed by Title VII is to provide an 
equal opportunity for each applicant regardless of race, without 
regard to whether members of the applicant’s race are already 
proportionately represented in the work force”) (emphasis in 
original).

This Court in Weber adopted a nonliteral reading of § 703(a) 
— departing from the plain meaning of the statute as confirmed by 
the legislative history — but it did so solely in order to afford some 
allowance for employers to use racial preferences in the remedial 
context. The Court reasoned that, in light of the failure expressly 
to provide that Title VII does not “permit racially preferential



20

integration efforts” 443 U.S. at 205 (emphasis in original) and the 
strong emphasis Congress placed on encouraging voluntary 
compliance. Title VII would not be interpreted as “the first 
legislative prohibition of all voluntary, private, race-conscious 
efforts to abolish traditional patterns o f racial segregation and 
hierarchy.” Id. at 204 (emphasis supplied).

Without defining the outer limits of affirmative action for 
remedial purposes, the Weber Court held that the purposes of the 
plan in that case did “mirror those of the statute," in that they were 
“designed to break down old patterns of racial segregation and 
hierarchy," id. at 208. The plan sought to increase the number of 
qualified black craft workers available to the employer and thus 
redress the persisting effects of widespread "exclusion from crafts 
on racial grounds. . . [judicial findings of which were] so numerous 
as to make such exclusion a proper subject for judicial notice," id. 
at 198 n.l (emphasis supplied).

Johnson extended the approach in Weber by permitting race- 
based measures to redress “a ‘conspicuous . . . imbalance in 
traditionally segregated job categories.' " 480 U.S. at 630 (quoting 
Justice Blackmun’s concurrence in Weber, 443 U.S. at 209) 
(emphasis supplied). Justice Brennan noted for the Court, however, 
that “[t]he requirement that the ‘manifest imbalance' relate to a 
‘traditionally segregated job category' provides assurance both that 
sex or race will be taken into account in a manner consistent with 
Title VII’s purpose of eliminating the effects of employment 
discrimination, and that the interests of those employees not 
benefiting from the plan will not be unduly infringed.” 480 U.S. at 
632 (emphasis supplied).M

14 In her opinion concurring in the judgment, Justice O’Connor 
insisted that "an affirmative action program . . . that can be equated with a 
permanent plan of ‘proportionate representation by race and sex,’ would 
violate Title VII." 480 U.S. at 656. On the facts of the case before the Court, 
Justice O'Connor was satisfied that "respondents had a firm basis for adopting 
an affirmative action program." Id. She noted that "at the time the plan was 
adopted, there were no women in its skilled craft positions," even though it 
was conceded that "women constituted approximately 5% of the local labor

(Cont’d)

21

B. Legislative History
The limitations placed by the Court on its holdings in both 

Weber and Johnson reflect the Court's awareness that the exceptions 
from race neutrality it was prepared to recognize cut against the 
grain of the shared understanding of Title VII’s Congressional 
supporters and opponents alike. An examination of the legislative 
history of Title VII confirms that Congress meant what it said in 
§ 703, and left little room, if any, for employers to discriminate on 
account of an individual’s race for nonremedial, operational 
purposes.* 15 16

As the Court noted in Weber, Title VII’s opponents raised “two 
related arguments against the bill. First, they argued that the Act 
would be interpreted to require employers with racially imbalanced 
work forces to grant preferential treatment to racial minorities in 
order to integrate. Second, they argued that employers with racially 
imbalanced work forces would grant preferential treatment to racial 
minorities, even if not required to do so by the Act.” 443 U.S. at 
205 (emphasis in original).

Weber found that Congress clearly addressed the first objection 
by enacting § 703(j), 42 U.S.C. § 2000e-2(j).lt’ No change was

(Corn'd)
pool of skilled crali workers in 1970. . . . Thus, when compared to the 
percentage of women in the qualified work force, the statistical disparity 
would have been sufficient for a prima facie Title VII case brought by 
unsuccessful women job applicants." Id. (Emphasis in original).

15. We note that — aside from a variety of policy arguments to the 
effect that covered employers might find it useful to use racial preferences 
for hiring and assigning workers, whether as a means of “preventing future 
violations of Title VII" (Br. for Petitioner 23) or promoting “the understanding 
and tolerance that derive from educating children in a racially and culturally 
diverse environment” (id. at 28) — Petitioner points to no specific Title VII 
legislative history in support of its “nonremedial" interpretation.

16. Section 703(j) provides in relevant part that: "(njolhing contained 
in [Title VII] shall be interpreted to require any employer . . .  to grant 
preferential treatment to any individual . . .  because of the race . . .  of such 
individual" merely because of a statistical imbalance between utilization

(Cont'd)



22

needed, however, to respond to the second objection raised by 
opponents — that employers would react to Title VII’s directive by 
engaging in race-based hiring and promotion decisions — because, 
as Title VII’s supporters repeatedly emphasized, Title VII itself would 
prohibit such discrimination.

Early in the House’s consideration of H.R. 7152 — the bill 
that would become the Civil Rights Act of 1964 — Representative 
Celler, chair of the Judiciary Committee and the individual 
responsible for introducing the legislation in that chamber, 
emphasized that “[t]he bill would do no more than prevent . . . 
employers [from] discriminating against or in favor of workers 
because of their race, religion, or national origin.” 110 Cong. Rec. 
1518 (1964) (emphasis supplied).

In the extensive debate over the bill in the Senate, H.R. 7152’s 
supporters returned again and again to the theme that Title VII 
required race neutrality in employment decisions. Senator 
Humphrey, the majority whip and perhaps the bill’s prime moving 
force in the Senate, responded to a political advertisement’s charge 
that the word “discrimination” in the bill would come to mean 
requirements of racial balance:

[Title VII] does not limit the employer's 
freedom to hire, fire, promote or demote for 
any reasons — or no reasons — so long as 
his action is not based on race. . . . [T]he 
meaning of racial or religious discrimination 
is perfectly clear. . . . [I]t means a distinction 
in treatment given to different individuals

(Corn'd)
and availability of individuals of that race. As Senator Humphrey explained 
during the debates over Title VII, § 703(j) was added to make clear that Title 
VII did not require an employer “to achieve any sort of racial balance in his 
work force by giving preferential treatment to any individual or group. . . . 
This subsection does not represent any change in the substance of the title. It 
does state clearly and accurately what we have maintained all along about 
the bill's intent and meaning.” 110 Cong. Rec. 12723 (1964) (emphasis 
supplied).

23

because of their different race, religion, or 
national origin. . . .

110 Cong. Rec. 5423 (1964).
When the formal Senate debate on H.R. 7152 began on March 

30, 1964, supporters of the bill selected Senator Humphrey and 
Senator Kuchel, the minority whip, as bipartisan managers for the 
entire civil rights bill. Senators Clark and Case were the bipartisan 
captains responsible for Title VII.17

In his opening remarks at the start of the formal Senate debate, 
Senator Humphrey addressed Title VII’s opponents, stating 
unequivocally that the legislation would not permit discrimination 
in favor of any racial group:

Contrary to the allegations of some 
opponents of this title, there is nothing in it 
that will give any power to the Commission 
or any court to require hiring, firing or 
promotion of employees in order to . . . 
achieve a certain racial balance.

That bugaboo has been brought up a dozen 
times; but it is nonexistent. In fact, the very 
opposite is true. Title VII prohibits 
discrimination. In effect, it says that race, 
religion and national origin are not to be used 
as the basis for hiring and firing.

110 Cong. Rec. 6549 (1964) (emphasis supplied).
It is claimed that the bill would require racial 
quotas for all hiring, when in fact it provides 
that race shall not be a basis for making 
personnel decisions.

Id. at 6553.
Senator Kuchel pressed the same view in his first major speech 

on the bill:

17. See Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L. 
Rev. 431,444-45 (1966).



24

Employers and labor organizations could not 
discriminate in favor o f or against a person 
because of his race, his religion, or his 
national origin. In such matters . . .  the bill 
now before us . . .  is color blind.

Id. at 6564 (emphasis supplied).
A few days later, Senators Clark and Case jointly submitted 

their interpretative memorandum:
It has been suggested that the concept of 
discrimination is vague. In fact it is clear 
and simple and has no hidden meanings. To 
discriminate is to make a distinction, to make 
a difference in treatment or favor, and those 
distinctions or differences in treatment or 
favor which are prohibited by [§ 703] are 
those which are based on any five [sic] of 
the forbidden criteria: race, color, religion, 
sex, and national origin. Any other criterion 
or qualification for employment is not 
affected by this title.

There is no requirement in title VII that an 
employer maintain a racial balance in his work 
force. On the contrary, any deliberate attempt 
to maintain a racial balance, whatever such a 
balance may be, would involve a violation of 
title VII because maintaining such a balance 
would require an employer to hire or to refuse 
to hire on the basis of race. It must be 
emphasized that discrimination is prohibited as 
to any individual.

Id. at 7213 (emphasis supplied).18

18. See also Senator Williams' response to the view that employers 
would be coerced into granting racial preferences to minorities:

Those opposed to H R. 7152 should realize that to
(Corn’d)

'2 5

On May 25, Senator Humphrey took the floor again to address 
the issue of preferential treatment:

The title does not provide that any 
preferential treatment in employment shall 
be given to Negroes or to any other persons 
or groups. It does not provide that any quota 
systems may be established to maintain racial 
balance in employment. In fact, the title 
would prohibit preferential treatment for any 
particular group, and any person, whether 
or not a member of any minority group, 
would be permitted to file a complaint of 
discriminatory employment practices.

Id. at 11848 (emphasis suppled).
Ultimately, a bipartisan coalition was formed, resulting in the 

substitution of the so-called Dirksen-Mansfield amendment for the 
House-passed bill. The substitute bill was introduced on May 26. 
It contained a number of clarifying amendments, including § 703(j), 
but left untouched the basic prohibitory language of § 703(a).

(Cont’d)
hire a Negro solely because he is a Negro is racial 
discrimination, just as much as a "while only" 
employment policy. Both forms of discrimination are
prohibited by title VII of this bill___Some people
charge that H R. 7152 favors the Negro, at the expense 
of the white majority. But how can the language of 
equality favor one race or one religion over another? 
Equality can have only one meaning, and that meaning 
is self-evident to reasonable men. I hose who say that 
equality means favoritism do violence to common 
sense.

110 Cong. Rec. 8921 (1964) (emphasis supplied).



26

C. Congress’ Interest in Preserving “Local Decisionmaking” 
But Only to the Extent Consistent with the Antidiscrimination 
Command of Title VII

Two labor organizations have filed an amicus brief in this Court 
that, while disclaiming support for either party, suggests that 
Congress left resolution of the racial-preference issue in Title VII 
for local decisionmaking. See Br. of the AFL-CIO and the American 
Federation of Teachers 12-22. Their argument is based on (1) the 
fact that § 703(j) does not expressly prohibit voluntary racial 
preferences; (2) the assertion that ”[f|rom the date of § 703(j)’s 
introduction forward, no Senator suggested that Title VII forbade 
voluntary employer race-conscious programs to eliminate a racial 
imbalance,” id. at 17 (emphasis omitted); and (3) legislators’ 
statements that Congress sought to preserve employer and union 
autonomy “to the greatest extent possible" consistent with Title 
VII objectives (see pp. 28-29).19

19. Petitioner adds to the mix references to Title IV of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000d, and the 1972 Emergency School Aid Act, 
Pub. L No. 92-318, tit. VII, 86 Slat. 354, to suggest that somehow these 
limited measures shed light on the proper interpretation of Title VII’s ban on 
racial discrimination in employment Unlike Title VII, the fourth title of the 
1964 legislation expressly excludes racial balancing from the “desegregation" 
efforts the measure seeks to promote, see 42 U.S.C. § 2000c(b) 
(" desegregation’ shall not mean the assignment of students to public schools 
in order to overcome racial balance"). Title IV otherwise indicates nothing 
about the permissible limits of remedial desegregation. As Senator Douglas, 
a leading proponent, insisted: “|T]here is nothing in this title dealing with 
so-called racial imbalance in the public schools.” 110 Cong. Rec. 6820(1964).

Equally puzzling is Petitioner's reliance on the 1972 Emergency School 
Aid Act (ESAA) for the proposition that Congress sought to fund school 
boards that made race-conscious faculty assignments "regardless of whether 
the school system's prior assignments were free of any discriminatory motive. 
Board of Education. New York City v. Harris, 444 U.S. 130 (1979).” Br. for 
Petitioner 31. As the Court's decision in Harris makes clear, the ESAA
incorporates a “disparate-impact test in [§ 706(d)( I )(B) that] is rebuttable___
That burden perhaps could be earned by proof of ‘educational necessity,’ 
analogous to the ‘business necessity'justification applied under Title V II.. .

(Cont’d)

27

This fragmentary evidence (coupled with the emphasis 
throughout the debates on voluntary compliance) may have 
provided support for the Court’s judgment in Weber and Johnson 
that employers have some leeway to pursue race-based remedies 
to redress “manifest imbalance”. But it does not support Petitioner’s 
contention that Title VII permits employers to use racial preferences 
for nonremedial purposes — in this case, to pursue departmental 
racial balance, in the interest of “educational diversity,” when the 
faculty as a whole was representative of the racial composition of 
the local labor market. We offer several reasons for discounting 
the proffered evidence of legislative intent —

First, § 703(j), while addressing a central objection of Title 
VII’s critics, was not intended to work any substantive change in 
the reach of § 703(a).20 Given the repeated assurances of Title VII’s 
principal proponents that the bill already banned racial preferences, 
an express provision was plainly unnecessary.

Second, it is simply not the case that the theme of race- 
neutrality was abandoned after § 703(j)’s introduction. Thus, for 
example. Senator Muskie, in defending the Dirksen-Mansfield 
substitute, emphasized that the opposition’s

torrent of words . . . cannot obscure this 
basic, simple truth: Every American citizen 
has the right to equal treatment — not favored 
treatment, not complete individual equality 
— just equal treatment.

*  *  *

(Cont’d)
444 U.S. at 151. Even if we put aside the questions whether what Congress 
chooses to fund in measures like the ESAA and what Congress chooses to 
regulate should be presumed to be coextensive, and whether what actions 
Congress took in 1972 on unrelated legislation properly informs the 
interpretation of a 1964 law (the substantive prohibitions which were left 
undisturbed in 1972), the ESAA’s restriction on funding is consistent with 
the Third Circuit's holding that demonstrable statistical imbalance can serve 
as a predicate for race-based remedial action.

20. See note 16, supra.



28

[Title VII] seeks to afford to all Americans 
equal opportunity in employment without 
discrimination. Not equal pay. Not “racial 
balance." Only equal opportunity.

110 Cong. Rec. 12614, 12617 (1964) (emphasis supplied). 
Senator Saltonstal 1, chair of the group of Republican senators 
involved in the drafting of the Dirksen-Mansfield amendment, 
agreed that the substitute bill “provides no preferential treatment 
for any group of citizens. In fact, it specifically prohibits such 
treatment." Id. at 12691 (emphasis supplied).

Finally, it is true that Congress intended to leave “management 
prerogatives and union freedoms . . .  undisturbed to the greatest 
extent possible.” H R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, 
p. 29 (1963) (“Additional Views” of Republican sponsors). But as 
this language from the House Judiciary Committee Report —- which 
was issued in 1963 well before the Senate debate on H R. 7152 
and the addition of § 703(j) — makes clear in its next sentences: 

Internal affairs of employers and labor 
organizations must not be interfered with 
except to the limited extent that correction is 
required in discrimination practices. [Title 
VII’s] primary task is to make certain that 
the channels of employment are open to 
persons regardless o f their race and that jobs 
in companies or membership in unions are 
strictly Filled on the basis of qualification.

Id. (emphasis supplied).
II. UNDER BOTH STATUTORY AND CONSTITUTIONAL 
STANDARDS, A SCHOOL BOARD WITH A RACIALLY 
DIVERSE FACULTY LACKS ADEQUATE JUSTIFI­
CATION FOR CONTINUING TO USE RACIAL 
PREFERENCES IN ITS TERMINATION DECISIONS.

We address here whether Petitioner’s race-based layoff decision 
— made when the minority composition of its teaching staff 
reflected (and indeed exceeded) the availability of minority teachers

' 2 9

in its recruiting area — was premised on a permissible justification 
either under the statutory standard of Title VII relied upon by the 
Court of Appeals below or the constitutional “strict scrutiny” 
standard here offered for the first time by Petitioner. In Part III, we 
assume arguendo that the Board’s racial diversity “for education’s 
sake" rationale satisfies the justification requirement, and show that 
the means it chose in 1989 were not “narrowly tailored” to achieve 
a permissible objective.
A. Taxman was Laid-off “Because of” Her Race in Violation 
of Title VII.

1. A Race-Conscious Adverse Employment Decision
It is clear from the preceding discussion of Title VII’s language 

and legislative history that Sharon Taxman has suffered 
discrimination in her employment conditions “because o f ’ her race 
within the meaning of § 703(a). The impact on her employment 
status is indisputable: Absent the District Court’s ruling, Taxman 
after her rehiring would have been deprived of back pay and 
seniority credit for the period of her separation from the school 
district. Should any layoff be required in her department in the 
future, she would be treated as the most junior member of the 
department, perpetually behind Williams who started the same day 
but was the beneficiary of the Board’s 1983 Affirmative Action 
Policy.21 Similarly, the racial thrust of the Board’s policy cannot be 
controverted. If both Taxman and Williams had the same skin 
color,22 * * Petitioner would have (1) at the least, adhered to its then-

21. Sec Lichtnuin v. Ridgewood Boat.' f  Education, 93 N .J .362 (1983) 
(requiring a pro rala calculation of scniorily based on Ihc total accumulated 
service in a specific category).

22. As Petitioner's personnel director Moore acknowledged:
Q And why would il be Mrs. Williams was retained 
and Mis Taxman terminated if the affirmative action 
policy was employed?
A. Because by the usual definitions Mrs Williams 
is a minority, Mrs. Taxman not.

J.A 147a.



30

unbroken past practice of casting lots to decide whom to terminate; 
(2) avoided finding a tie in the relevant seniority category2’; or (3) 
found some means of breaking any “perceived” tie through a 
nuanced consideration of the respective qualifications and teaching 
records of the two individuals.

2. The Absence of a Race-Based BFOQ
Since Petitioner concedes that its use of race was not animated 

by any remedial objective, either to address past intentional 
discrimination or even to correct statistical imbalance, Petitioner 
cannot come within the narrow exception to the literal reach of 
§ 703 that this Court recognized in Weber and Johnson. Petitioner 
urges the Court, however, to carve out an additional exception for 
"nonremedial” race-based measures crafted to meet supposed 
operational needs of covered employers.

Petitioner’s claim, however, carries an especially heavy burden 
because Congress took pains in 1964 to exclude “race” from the 
categories of discrimination that, by virtue of § 703(e), might 
constitute “a bona fide occupational qualification [“BFOQ”] 
reasonably necessary to the normal operation of [the] particular
business or enterprise-----" 42 U.S.C. § 2000e-2(e).24 Petitioner’s
proffered “operational needs” exception thus would seem foreclosed 
by the judgment of Congress that racial classifications were so 
problematic that race could never be a “BFOQ.”

3. The Absence of Exigent Circumstances
Even if, as the Government suggests in its amicus brief 

(p. 20), the Court were prepared to recognize a judicially created 
exception for cases of demonstrated exigency, this is not such a 
case. The Government’s hypothetical — black undercover agents 
used to infiltrate a black gang or black guards needed to quell 
explosive prison conditions involving black inmates — identify

23. See notes 2 & 9, supra.

24. See 110 Cong. Rec. 2550 (1964) (House’s rejection by voice vote 
of an amendment offered by Congressman Williams (D. Miss.) to add race 
and color as factors that could constitute “bona fide occupational 
qualification(s)" for employment).

'31

situations where arguably the public employer’s mission is 
incapable of being successfully performed on a race-neutral basis.23 
We suspect, however, that public employers in most cases will be 
able to count on the good sense and cooperation of its personnel 
for short-term racial assignments without need for a license to 
establish enduring race-designated jobs.25 26 In any event, Petitioner

25. Any such showing by a government employer would have to rise 
considerably above the "business necessity" defense to disparate-impact 
liability. For as Congress made explicit, in the course of codifying the theory 
of disparate-impact discrimination in the 1991 amendments to the Civil Rights 
Act of 1964: "a demonstration that an employment practice is required by 
business necessity may not be used as a defense against a claim of intentional 
discrimination under this subchapler.” 42 U.S.C. § 2000e-2(k)(2) (emphasis 
supplied). It is precisely because lohnson Controls used an overt sex-based 
classification that this Court rejected the “business necessity" defense in 
UAW v. Johnson Controls, Inc., 499 U S. 187, 199-200 (1991):

Whether an employment practice involves disparate 
treatment through explicit facial treatment does not 
depend on why the employer discriminates but rather 
on the explicit terms of the discrimination. In (Phillips 
v.) Martin Marietta [400 U S. 542 (1971)], the motives 
underlying the employer’s express exclusion of 
women did not alter the intentionally discriminatory 
character of the policy. Nor did the arguably benign 
motives lead to consideration if a business necessity 
defense. . . . The beneficence of an employer's policy 
does not undermine the conclusion that an explicit 
gender-based policy is sex discrimination under 
§ 703(a) and thus may be defended only as a BFOQ.

26. The lower courts have rejected a race-based BFOQ in circumstances 
analogous to the Government’s hypotheticals. See, e g., Segar v. Civiletti, 
508 F. Supp. 690, 7 1 3 (D.D C. 1981), affirmed in ret part sub nom, Segar v. 
Smith, 738 F.2d 1249 (D C. Cir. 1984) (“pattern of disparate assignments” 
of black agents to undercover work). Racial job assignments — premised on 
the view that only minority group members can effectively serve 
predominantly minority communities — reflect either ( I) an impermissible 
stereotype that “blacks work better with blacks," Knight v. Nassau County 
Civil Service Comm’n, 649 F.2d 157, 162 (2d Cir. 1981) (transfer of black

(Cont'd)



32

here presented no such exigent circumstances for its race-based 
layoff of Sharon Taxman in May 1989; and accordingly, this 
question can be left for another day.

4. The Board's "Deliberate Attempt to Maintain a Racial
Balance"
The Board violated Title VII even if the Court were inclined 

to find greater latitude for race-based measures responsive to the 
operational needs of employers, than afforded by a possible 
allowance for truly exigent circumstances. The Board’s pursuit in 
this case of racial diversity at the departmental level, despite its 
already having achieved a racially diversified faculty, constitutes a 
“deliberate attempt to maintain a racial balance”. On this ground 
alone, the Board’s actions exceed the proper bounds of racial 
preference programs under Weber and Johnson.

Mindful of the unmistakable message of the Clark-Case 
interpretative memorandum that “any deliberate attempt to maintain 
a racial balance, whatever such a balance may be, would involve a 
violation of title VII,” 110 Cong. Rec. 7213 (1964), the Court 
emphasized in Weber that "the plan is a temporary measure; it is 
not intended to maintain racial balance, but simply to eliminate a 
manifest racial imbalance.” 443 U.S. 208. The majority in Johnson 
similarly noted that "the Agency’s Plan was intended to attain a 
balanced work force, not to maintain one.” 480 U.S. at 639 
(emphasis in original).

Under Weber and Johnson, once Petitioner achieved a racially 
diversified workforce in the relevant category of teaching

(Corn’d)
from agency’s test development division to recruitment division for the 
purpose of recruiting minnntv applicants), or (2) the “erroneous belief that 
it is proper to base employment decisions on customer preferences where 
the customers in question are black,” Rucker v. Higher Educational Aids 
Board, 669 F.2d 1179, 1182 (7th Cir. 1982) (alleged nonretention of white 
counselor because of opposition from black community group). See generally 
Browne, Nonremedial Justifications for Affirmative Action in Employment: 
A Critique of the Justice Department Position, 12 Lab. Law. 451 (1997).

professionals,27 28 it may not lawfully continue to use racial 
preferences to maintain that racial balance, even if it chooses now, 
for purposes of evaluating its diversity record, to subdivide its 
workforce into smaller and smaller units each of which must ensure 
the requisite level of minority-group representation. Whatever the 
employer’s stated justification — Petitioner’s interest in avoiding 
an all-white business education department, a law firm’s interest 
in avoiding an all-white antitrust department, a law school’s interest 
in avoiding an all-white corporate law faculty, and so on — the 
attainment of a balance between utilization and availability of 
qualified minorities in the labor market marks the outer limit of 
race-based preferences permissible under Title VII.

For Title VII to be read now to allow racial preferences to 
continue to inform employment decisions after a diversified 
workforce has been achieved is to invite not an end to racism but 
the entrenchment of race-based employment practices that over 
time will unravel the decades of racial progress that are Title VII’s 
proudest legacy.2"

33

27 We underscore that Petitioner never made repons to the relevant 
state authorities analyzing its racial composition at the department level; 
never maintained records ol its departmental hiring and termination decisions 
by race; and on no previous occasion (save for the Taxman layoff) considered 
the racial composition of a department in its employment decisions. J.A. 
132a-134a; pp 1112, supra (Van Riper Depos ). New Jersey does not even 
maintain statistical records of the racial composition of the staff of high 
school departments or even of high schools themselves, J.A. 149a; rather, 
statistics are maintained only for "each school district” as a unitary whole, 
id at 64a.

28. As Morris Abram has observed: "In the absence of any neutral 
decisionmaking mechanisms, the attempt to end discrimination through color­
conscious remedies must inevitably degenerate into a crude political struggle 
between groups seeking favored status. Once we have abandoned the 
principles of fair procedure, equal opportunity, and individual rights in favor 
of the advancement of a particular group, we have opened wide the door to 
future abuses of all kinds." Abram, Affirmative Action: Fair Shakers and 
Social Engineers, 99 Harv. L. Rev. 1312, 1321 (1986).



34

B. The Board Lacked a “Compelling Interest” tor its Race- 
Based Layoff Decision.

Petitioner invites the Court to import into Title VII the “strict 
scrutiny" test applicable under the Equal Protection Clause (Br. 
for Petitioner 8-9). However, this invitation faces serious threshold 
difficulties. First, Petitioner argued below the contrary proposition 
— that the trial judge “gave undue weight to recent Supreme Court 
interpretations of the Fourteenth Amendment, applicable only to 
public bodies and not enough to Congress’ intent when it amended 
Title VII in 1972 to cover academic institutions public and 
private. 29 On this basis alone, Petitioner’s invitation should be 
declined. Second, to read the “strict scrutiny” test into Title VII 
would create the anomaly of either holding public employers to a 
different standard than private employers under the same law, or 
transposing to the private sector a standard whose provenance is 
the Fourteenth Amendment’s limits on governmental action.30

29. Br. of Defendant-Appellant Board of Education of the Township 
of Piscataway. on appeal, Nos., 94-5050 & -5112 (3d Cir.), p. 12 n 12. At an 
earlier stage in this litigation, the Board affirmatively sought “a ruling that 
the evidence in this case will be judged by Title VII standards as reflected in 
Weber and Johnson and not the ‘strict scrutiny' equal protection analysis of 
Croson " United States v. Board o f Education o f Township o f Piscataway, 
Civil Action No. 92-340 (D.N.J.), Order and Opinion filed Aug. 4, 1992, pp. 
13-14; also Suneply Br. of Defendant Board of Education of the Township 
of Piscataway, Civ. No. 92-340 (D.N.J.), p. 2.

30. The Court stated in Johnson, 480 U S. at 627-28 n.6 (emphasis in 
original):

The fact that a public employer must also satisfy the 
Constitution does not negate the fact that the statutory 
prohibition with which that employer must contend 
was not intended to extend as far as that of the 
Constitution.

The statement is dictum because the plaintiff in that case did not preserve 
any constitutional issue. See id. at 620 n.2. In any event, the Court was 
referring to the fact that the remedial predicate for race-conscious action is 
somewhat less stringent under Title VII than under the Constitution (see Br.

(Corn'd)

35

Even if we disregard these dispositive impediments and 
assume, for the sake of discussion, that “strict scrutiny" is the 
appropriate test under Title VII at least for public employers, it is 
clear on this record that the Board lacked a “compelling interest” 
for its race-based layoff of Sharon Taxman.

1. The Board Failed to "Clearly Articulate[] the Need and
Basis for a Racial Classification"
The Court, if it wishes, need not decide the thorny question 

whether government can ever have a compelling interest in using 
racial preferences to promote diversity “for education’s sake”. In 
this case. Petitioner plainly failed to “clearly articulate! ) the need 
and basis for a racial classification,” as the Court has required even 
of Congressional programs in Adarand Constructors, Inc. v. Pena, 
515 U.S. 200, 229 (1995), quoting Fullilove v. Klutznick, 448 U.S. 
448, 545 (1980) (Stevens, J., dissenting).31 As Justice Powell stated 
in his plurality opinion in lVygant v. Jackson Board of Educ., 476 
U.S. 267,277 (1986), “a public employer like the Board must ensure 
that . . .  it has convincing evidence that remedial action is 
warranted.” The Board has this burden irrespective of which party 
has the ultimate burden of persuasion in the event the proof is in

(Corn'd)
lor United Slates 24 n.3). It is certainly not the case that Title VII's 
requirements generally are less demanding than the Constitution's. Just as 
Congress in Title VII has imposed disparate-impact liability on covered 
employers exceeding constitutional requirements, see Washington v. Davis, 
426 U.S. 229 (1976), so, too, Congress has barred nonremedial use of racial 
preferences, even to the extent of withholding from covered employers a 
race-based BFOQ.

Similarly, there is no reason to believe, as Petitioner urges (Br. for 
Petitioner, pp.8, 22), that Title VI and Title VII must be read as coterminous 
in their reach. This is plainly not the law. Compare Washington, supra, with 
Guardians Assn. r. Civil Science Comm, of the City o f New York, 463 U.S. 
582 (1983); Lau v. Nichols, 414 U.S. 563 (1974).

31. Petitioner also failed to establish that it narrowly "tailor|ed] the 
classification to its justification.. . Adarand, 500 U.S at 229. This point 
is addressed in Part III below.



36

equipoise (which is plainly not true in the instant case)” : “But 
unless such a determination is made, an appellate court reviewing 
a challenge by nonminority employees to remedial action cannot 
determine whether the race-based action is justified. . . Id. at 278.

It is undisputed that Petitioner made no determination that there 
were special operational problems in its business education 
department requiring the use of a racial preference. No 
determination was made that the students in that department had a 
special need for instruction in racial tolerance somehow 
necessitating that the instructor be of a particular race. All we have 
is the generalized assertion of Board president Van Riper (see pp. 
12-13 & note 12, supra) of a need to send “a very clear message 
that we feel that our staff should be culturally diverse. . . .” (Van 
Riper Depos., p. 83).33 If this showing is sufficient, then “diversity" 32

32. Even undei Ihe "intermediate scrutiny” standard that extends to 
government use of gender classifications, “lt)he burden of justification is 
demanding and it rests entirely on the Slate. . . . The State must show ‘at 
least that the (challenged) classification serves important governmental 
objectives and that the discriminatory means employed are substantially 
related to the achievement of those objectives.’ " United States v. Virginia, 
116 S Cl. 2264,2275 (1996) (internal quotations omitted; emphasis supplied).

3.3. Petitioner complains that it "offered admissible evidence that it 
acted to assure faculty diversity and thus to confer what it asserted were 
educational benefits on students," which the District Court improperly 
discounted. Br. for Petitioner 35. The complaint is belied by the fact that 
Petitioner cross-moved for summary judgment In any event, what Petitioner 
sought to introduce (at the eleventh hour in its sui-reply brief) was a 
conclusory and essentially self-serving affidavit from Board member 
Theodore H. Kruse embellishing his equally unilluminating deposition 
testimony. The Kruse affidavit states in relevant part:

Based on my experience as a university professor and 
a long-time Piscataway Township Board of Education 
member, I had come to the conclusion by May 1989 
that a racially and culturally diverse faculty and 
student body promoted a more enriching educational 
environment for students. During my tenure on the 
Board beginning in approximately 1983, we have

(Cont’d)

will in short order become the new talisman for maintaining racial 
preferences in our society. Cf. note 38, infra.

“Strict scrutiny,” the Court in Adarand made clear, is not 
“ ‘strict in theory, but fatal in fact.’ ” 500 U.S. at 237. Neither can 
it be “strict in theory, but feeble in fact.” “The purpose of strict 
scrutiny is to ‘smoke out’ illegitimate uses of race.. ..” City of 
Richmond v. J.A. Croson Co., 488 U.S. 469,493 (1989) (O’Connor, 
J., plurality op.). Governments employing racial preferences “can 
survive that intense scrutiny only if [they] show that they are 
motivated by a truly powerful and worthy concern and that the 
racial measure that they have adopted is a plainly apt response to 
that concern. They must show that they had to do something and 
had no alternative to what they did. The concern and the response, 
moreover, must he substantiated and not merely asserted." Wittmer 
v. Peters, 87 F.3d 916, 918 (7th Cir. 1996), cert, denied, 117 S. Ct. 
949 (1997) (emphasis supplied). The requisite substantiation is 
plainly missing in this case.

2. Racial Diversity "For Education's Sake" is not a
Compelling Justification fo r  Employment Termination
Decisions.
Even if Petitioner had carried its burden of substantiation, we 

question whether “diversity" — shorn of other pressing operational 
considerations — can provide an adequate constitutional foundation 
for the use of race in terminations, especially when the overall 
workforce in the relevant position of teaching professionals reflects 
(Corn’d)

taken various steps in the School District in 
furtherance of that goal. As an educator and school 
board member, I see this objective as distinct from 
fostering equitable labor relations; the former is for 
the students’ benefit, the latter for the employees’.”
Certification of Theodore H. Kruse, p.2, annexed to 
Surreply Br. of Defendant Board. Civ. No. 92-340 
(MTB) (D.N.J.).

We submit that this showing — even if taken at face value — is, as the courts 
below found, legally insufficient. In any event, Petitioner had ample 
opportunity to develop the record in a timely manner. See Hayes v. North 
State Law Enf. Officers Ass'n, 10 F.3d 207, 215 (4lh Cir. 1993).

'  37



38

(and indeed exceeds) the availability of qualified minorities in the 
local labor market.

The “diversity” justification subsumes a host of problematic 
assumptions — that only black instructors can teach black students, 
that only black policemen can instill confidence and evoke a 
cooperative spirit in black neighborhoods, that tolerance and the 
virtues of cultural diversity can be communicated only by persons 
of the requisite skin color.14 “[T]he Constitution provides that the 
Government may not allocate benefits and burdens among 
individuals based on the assumption that race or ethnicity 
determines how they act or think.” Metro Broadcasting, Inc. v. FCC, 
497 U.S. 547,602 (1990) (O’Connor, J., dissenting). In the instant 
case, the “diversity” rationale was used to confer racial preferences 
beyond what was needed to avoid “manifest imbalance”. Such “a 
use of a racial characteristic to establish a presumption that the 
individual also possesses other, and socially relevant, characteristics 
exemplifies, encourages, and legitimizes the mode of thought and 
behavior that underlies most prejudice and bigotry in modern 
America.” ” 34 35

34. Racial preferences for remedial purposes do not embody such race- 
based assumptions about how people think and act. See generally Volokh, 
Diversity, Race as Proxy, and Religion as Proxy, 43 U.C.L.A. L. Rev. 2059 
(1996).

35. Posner, The DeFunis Case and the Constitutionality of Preferential 
Treatment of Racial Minorities, 1974 Sup. Ct. Rev. 1,12. As the Court (per 
Justice Kennedy) observed in Miller v. Johnson, 515 U.S. 900, I 15 S. Ct. 
2475, 2486 (1995) (internal citations omitted):

When the State assigns voters on the basis of race, it 
engages in the offensive and demeaning assumption 
that voters of a particular race, because of their race,
"think alike, share the same political interests, and 
will prefer the same candidates at the polls.” Race- 
based assignments "embody stereotypes that treat 
individuals as the product of their race, evaluating their 
thoughts and efforts —their very worth as citizens — 
according to a criterion barred to the Government by

(Cont’d)

'3 9

Let us assume, again for argument’s sake, that racial diversity 
may provide a compelling interest for some kinds of decisions. 
(We question this proposition if, as Petitioner urges, the "diversity” 
justification serves as a predicate for racial preferences even when 
the workforce in question does not underutilize an available, 
qualified minority labor pool.)

Perhaps, as Justice Powell believed in his opinion in Regents 
of the University o f California v. Bakke, 438 U.S. 265 (1978), 
universities have a special need to consider race as one of many 
factors relevant to their individualized assessment of thousands of 
admissions applications. For Justice Powell, “a diverse student 
body” could be “a constitutionally permissible goal for an institution 
of higher education.” Id. at 311-12. His reasoning was deeply 
informed by the values of “academic freedom” that long have been 
viewed as “a special concern of the First Amendment. The freedom 
of a university to make its own judgments as to education includes 
the selection of its student body.” Id. at 312.

In this regard universities are strikingly different from public 
high schools. The public schools are not enclaves of autonomy 
specially protected from state regulation. Indeed, they are required 
by law to admit all students in the community, and state law dictates 
which courses must be taken if students are to graduate. See 
N.J.A.C. 6:8-7.1(c). No constitutionally sanctioned tradition of 
unregulated academic freedom insulates their decisions from 
customary constitutional scrutiny.

University admissions decisions also differ critically from local 
school boards’ employment decisions. Unlike the nuanced, multi-

(Cont'd)
history and the Constitution." They also cause society 
serious barm.

“Classifying persons according to their race is more likely to reflect racial 
prejudice than legitimate public concerns; the race, not the person, dictates 
the category.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984). "By treating 
free-thinking individuals as 'intellectual captives of their skin color,' race- 
based affirmative action traps hue diversity within a racial straitjacket.” Chen, 
Diversity and Damnation, 43 U.C.L.A. L. Rev. 1839, 1894 (1996).



40

faceted decisionmaking process that many universities employ in 
deciding which students to admit36 * * — a process that arguably defies 
the standard “underutilization” analysis of employment 
discrimination law — school boards like other employers are able 
to determine whether their employment decisions have an adverse 
impact on available, qualified members of minority groups without 
resorting to racial preferences.

Finally, universities making admissions decisions arguably may 
have some need for proxies in lieu of individualized determinations 
whereas school boards in their termination decisions plainly do 
not. The latter have no legitimate interest in using race as a proxy 
for unknowable but desired characteristics because they have 
available to them direct personal experience with the individuals 
targeted for the layoff; they should therefore be able to make 
judgments based entirely on the known pefformance records and 
other relevant characteristics of those individuals.

Hence, however the Court is inclined to resolve the validity 
vel non of the “diversity for education’s sake" rationale. Petitioner 
plainly lacked the requisite justification for its use of a racial 
preference in terminating Sharon Taxman in May 1989.
III. IN ANY EVENT, PETITIONER FAILED TO 
NARROWLY TAILOR ITS MEANS TO ITS CLAIMED 
“DIVERSITY” PURPOSE AND “UNNECESSARILY  
TRAMEL[LED] NONMINORITY INTERESTS.”

The Court can, if it wishes, utilize the approach of the plurality 
in Wygant, 476 U.S. at 278, and pretermit entirely the thicket of 
issues concerning the reach of Title VII in the context of 
nonremedial racial preferences, the applicability of “strict scrutiny” 
under Title VII, and the status of "diversity for education’s sake” 
under the “compelling interest” test. The Court of Appeals rested

36. Note that Justice Powell look special care to distinguish "genuine 
diversity" from strictly “ethnic diversity," and exhorted university
administrators "to consider all pertinent elements of diversity in light of the
particular qualifications of each applicant.” 438 U.S. at 315. Needless to 
say, in the instant case. Petitioner did not use this broader, inclusive notion 
of “genuine diversity".

'41

its judgment on the sufficient independent ground that Petitioner’s 
race-based decision to lay off Sharon Taxman failed the “narrowly 
tailored” means test of Weber and Johnson.”
A. The Absence of a Well-Defined Plan for Achieving 
Diversify

The Board’s 1983 Policy — which does not refer to “diversity" 
at all and was ostensibly promulgated for the purpose of making 
“a concentrated effort to attract women candidates. . . and minority 
personnel for all positions,” J.A. 57a — worked in practice as a 
wholly discretionary racial preference system, triggered “when 
candidates appear to be of equal qualification .. . .” Id. at 61a 
(emphasis supplied). As the appeals court ruled, the policy did not 
“define ‘racial diversity’ ” and did not “determine what degree of 
racial diversity in the Piscataway School is sufficient.” 91 F.3d at 
1564; Pet. App. 44a-45a. The court correctly determined that under 
Weber, 443 U.S. at 193, and Johnson, 480 U.S. at 621-22, affirmative 
action plans even for educational diversity purposes must have 
“objectives, as well as benchmarks . . .  to evaluate progress, guide 
the employment decisions at issue and assure the grant of only 
those minority preferences necessary to further the plans’ purposes." 
91 F.3d at 1564; Pet. App. at 45a. Absent these safeguards, the 
policy “is governed entirely by the Board’s whim, leaving the Board 
free, if it so chooses, to grant racial preferences that do not promote 
even the policy’s claimed purpose.” Id.

37. As Justice O’Connor noted in her opinion for the Court in Adarand, 
515 U.S. at 236 (emphasis supplied), quoting Fullilove v. Klutinick, 448 
U.S. 448, 533-35 & 537 (1980) (Stevens, J., dissenting) (citations omitted): 

But we agree with JUSTICE STEVENS that, "because 
racial characteristics so seldom provide a relevant 
basis for disparate treatment, and because 
classifications based on race are potentially so harmful 
to the entire body politic, it is especially important 
that the reasons for any such classification be clearly 
identified and unquestionably legitimate," and that 
"racial classifications are simply too pernicious to 
permit any but the most exact connection between 
justification and classifications."



42

Definitions and criteria for assessing progress are critical when 
government employers use “diversity” as a justification for 
preferring members of one group over another, especially in the 
absence of past discrimination or statistical imbalance. “Is a diverse 
faculty one which is 10% minority, 20% minority, or 50% 
minority?” 832 F. Supp. at 850; Pet. App. 121a. The pursuit of 
diversity in the absence of preestablished, ascertainable limits 
harkens back to Wygant's rejection of measures which are “timeless 
in their ability to affect the future." 476 U.S. at 276 (plurality op.).18

Petitioner's only response here is that the numerical goals in 
Johnson “had little, if any, operational significance" (Br. for 
Petitioner 37). This may have been true of the California agency's 
long term goals but the reference to a well-defined, justifiable short­
term goal for women in “Skilled Craft” positions was an essential 
element. See Johnson, 480 U.S. at 636 (majority op.); id. at 655-56 
(O’Connor, J., concurring).
B. The Unlimited Duration of the Board’s Policy

As the appeals court determined, “(t]he Board’s policy, adopted 
in 1975, is an established fixture of unlimited duration to be 
resurrected from time to time whenever the Board believes that the 
ratio between Blacks and Whites in any Piscataway School is 
skewed.” 91 F.3d at 1564; Pet. App. 45a-46a. “Even if ‘diversity’ 
were defined, the plan does not indicate that it will end when 
diversity is achieved.” 832 F. Supp. at 850; Pet. App. 121a. Such a 
policy does not involve a “temporary” measure that seeks to “attain”

38. Indeed, the departmental-diversity rationale invoked by Petitioner 
in this case bears a close resemblance to the "role model” theory rejected as 
a constitutionally insufficient justification for race-based layoff decisions in 
Wygant. Both theories purport to allow race-based preferences without any 
reference to a problem that the employer has with its employment 
decisionmaking process or its utilization of available qualified minorities in 
the labor market. Both theories offer a limitless plan for ongoing racial 
preferences because of putative educational benefits for students. Indeed, 
some commentators have characterized “diversity" as a 1990s “stand-in for 
’role models’ ” -type justifications. Power, Affirmative Action and Judicial 
Incoherence. 55 Ohio St. L.J. 79, 105 n. 72 (1994).

'43

rather than "maintain” a “permanent racial .. . balance." Johnson, 
480 U.S. at 639-40; Weber, 443 U.S. at 208.

Petitioner’s response here is twofold: (1) the "Harvard Plan” 
discussed in Bakke “had no termination date”; and (2) if educational 
diversity provides a compelling justification, “it would make no 
sense [for the Court] to declare its actions unlawful because the 
Board had failed to determine in advance whether it would act in 
the same manner if presented with similar circumstances in the 
future." (Br. for Petitioner 37 & n.44).

Neither point withstands scrutiny. The “Harvard Plan” was 
simply not at issue in Bakke, even if Justice Powell’s opinion did 
not represent only his views and somehow could be attributed to 
other members of the Court.19 Moreover, for the reasons given 
above, university admissions decisions are fundamentally different 
from a school district’s layoff decisions. Petitioner’s second point 
concedes, we believe, that the “diversity” rationale for race 
preferences precisely because it is not tied to past discrimination 
or statistical imbalance — promises the perpetuation of race 
consciousness in this country well into the next century.39 40 *
C. The Failure to Consider Alternatives to Racial Preferences 
as a Means to Promote Diversity

Whereas Congress in Metro Broadcasting v. FCC, 497 U.S. 
547 (1990) (overruled in Adarand), endorsed minority preferences 
“only after long study and painstaking consideration of all available 
alternatives,” 497 U.S. at 584, here there is no “evidence that the

39. But see 91 F.3d at 1562 n. 13; Pet. App. 41a n. 13; Hopwood v. 
Texas, 78 F.3d 932, 944 (5th Cir.), cert, denied, 116 S. Ct. 2580 (1996).

40. As Petitioner acknowledged below:
A plan designed to be remedial is no longer such once 
the condition has been remedied. Temporariness 
would be irrelevant or even antagonistic to other non- 
remedial (yet equally valid) purposes where successs 
is not defined in terms of overcoming a specific 
historical obstacle.

Brief of Defendant-Appellant, supra note 4, p. 37 (emphasis supplied).



44

Board has tried or considered alternative or less burdensome means 
to achieve diversity in its faculty.” 832 F. Supp. at 851; Pet. App. 
122a.

Even if we assume arguendo that (i) the Board’s finding of a 
seniority tie was inescapable; (ii) its determination that Sharon 
Taxman and Debra Williams “appear to be” (J.A. 61a) “of equal 
perceived merit" (id. 147a) in teaching ability and all other job­
relevant respects is unassailable; and (iii) the Board could not have 
found some other way to avoid a layoff altogether41 — there is not 
a shred of evidence in the record that the Board even considered 
non-racial means of promoting “diversity for education’s sake” in 
its high school business education department. See pp. 11-13, supra\ 
Van Riper Depos., pp. 84-85. The Board did not consider to what 
extent the business education students took courses or otherwise 
interacted with the 14 black teachers on its high school staff, or 
whether, for instance, the high school’s black vice-principal Eddie 
Alexander could have directed a special effort to instill values of 
cultural pluralism. (This assumes that there was a problem in the 
business education department, and one that could be addressed 
only by a black teaching professional.) Rather, the Board simply 
engaged in an opportunistic use of race, seizing a chance to apply 
its 1983 policy for the stated purpose of "sending” a “message” 
that it did not tolerate an all-white 10-person business education 
department.
D. Even if Title VII Permits Nonremedial Use of Race in 
Some Settings, Racial Preferences Cannot Be Used to 
Determine Job Terminations.

Finally, if we put all else aside, and we assume that (i) Title 
VII permits nonremedial use of race; (ii) the Board had a well- 
defined, preestablished plan with clear definitions of “diversity” 
and criteria for assessing progress; and (iii) the Board adequately 
considered non-racial alternative means of promoting diversity —

41. Cf. Burke & Chase, Resolving the Seniority/Minorily Layoffs 
Conflict: An Employer Targeted Approach, 13 Harv. Civ. Rts.-Civ. Libs. L. 
Rev. 81 (1978) (advocating “full payroll" approach to avoid racial preferences 
to determine layoff decisions even in the remedial context).

nevertheless under Title VII (and certainly in the circumstances of 
this case) government may not terminate someone’s employment 
because of his or her race.

The burden of racial preferences, whatever their social utility 
may be, cannot be visited entirely on innocent nonminority (or 
minority) group individuals. The Court in Weber, as part of its 
“narrowly tailored” inquiry, emphasized:

At the same time the plan does not 
unnecessarily trammel the interests of the 
white employees. The plan does not require 
the discharge of white workers and their 
replacement with new black hirees.

443 U.S. at 208. So, too, in Johnson:
(D)enial of the promotion unsettled no 
legitimate, firmly rooted expectation on the 
part of petitioner. Furtherm ore, while 
petitioner in this case was denied a 
promotion, he retained his employment with 
the Agency, at the same salary and with the 
same seniority, and remained eligible for 
other promotions.

480 U.S. at 638. It was only because of these facts that the Court 
could conclude that the California agency’s racial preference 
program “visits minimal intrusion on the legitimate expectations 
of other employees.” Id. at 640.

Race-based layoff decisions are particularly problematic in 
the case of tenured employees, as here.42 It was Congress’ much-

'  45

42. Indeed, the use of race to lay off tenured teachers is forbidden 
under New Jersey law. Although N.J.S.A. 18A:28-9 authorizes a board of 
education to abolish positions, N.J.S.A. I8A:28-I0 forbids the use of race 
as a reason for termination:

Dismissals resulting from any such reduction shall 
not be made by reason of . . . race . , but shall be 
made on the basis of seniority according to standards

(Corn’d)



46

debated, considered judgment in § 703(h) of Title VII, 42 U.S.C. 
§ 2000e-2(h), that seniority-based expectations must be protected 
even where employers have been guilty of pre-Title VII intentional 
discrimination or their seniority systems have the effect of 
perpetuating the effects of past discrimination. See Teamsters v. 
United States, 431 U.S. 324 (1977); United Air Lines v. Evans, 431 
U.S. 553 (1977); American Tobacco Co. v. Patterson, 456 U.S. 63 
(1982). Thus, in the context of fashioning remedies for post-Act 
intentional discrimination by employers, § 703(h) limits the award 
of remedial seniority to “rightful place" seniority; even proven 
victims of discrimination cannot use their remedial seniority to 
displace innocent nonminorities but must await vacancies as they 
arise. Teamsters, 431 U.S. at 330 n.4, 371-76; Franks v. Bowman 
Transp. Co., 424 U.S. 747, 770-72 (1976).

Certainly, then, in this case, where Petitioner insists there had 
been no past discrimination and it did not need to address a problem 
of underutilization of available, qualified minorities, the use of race 
to determine layoff decisions violates Title VII. Even the Court’s 
earliest proponent of the “diversity" justification for racial 
preferences (at least in the context of university admissions 
decisions) drew the line at layoffs:

While hiring goals impose a diffuse 
burden, often foreclosing only one of several 
opportunities, layoffs impose the entire 
burden of achieving racial equality on 
particular individuals, often resulting in

(Corn'd)
to be established by the commissioner with the 
approval of the state board.

SeeBierman v. Board o f Education of the Borough o f Glen Rock, 1980S.L.D. 
809. 823 (N.J. Comm'r of Educ., July 17, 1980) (“The Commissioner finds 
nothing in the goals established for Affirmative Action programs or in the 
rules and regulations that establish standards to be applied as guidelines in 
the situation of a reduction in force that refute or delimit the seniority status 
earned by tenured teaching staff members"), affirmed, 1981 S.L.D. 1391 
(N.J. Board of Educ., Dec. 2, 1981), affirmed, 1983 S.L.D. 1552 (N.J. Super. 
Cl .App. Div., May 4, 1983).

47

serious disruption of their lives. That burden 
is too intrusive. We therefore hold that, as a 
means of accom plishing purposes that 
otherwise may be legitimate, the Board’s 
layoff plan is not sufficiently narrowly 
tailored.

Wygant, 476 U.S. at 283 (Powell, J., plurality op.) (citations 
omitted).

Employers do not need racial preferences in layoff and 
termination decisions in order to achieve diversity in their 
workforces.41 In layoff and termination decisions, employers are 
dealing with the known qualities of the individuals under review; 
they have no legitimate interest in the use of race as a proxy for 
desired qualities. Title VII should not, and does not, tolerate the 
use of racial proxies in the layoff-termination context.43 44

43. See Br. for the Equal Employment Advisory Council as Amicus 
Curiae in Support of Neither Party (omitting any reference to need to use 
race in layoff or termination decisions).

44. Petitioner offers no defense of the layoff decision as such, except 
to suggest that, unlike the situation in Wygant where the school board (despite 
its economic straits) theoretically could have used hiring goals to pursue its 
role-model objective, here hiring goals would have been inadequate because 
“the only diversity that mattered was diversity during the period before the 
position in question was restored." Moreover, without record support. 
Petitioner adds that "if Williams was laid off and took another permanent 
job, the Board w ould have had substantial difficulty replacing her with another 
black teacher." (Br. for Petitioner 38).

Petitioner's contention falters in view of its repeated admissions that 
the school district had no underutilization problem, as reflected in the racial 
composition of its faculty; and the clear opportunities available to students 
in the business education department to interact with its black vice-principal 
and other black teachers, if requisite skin color were thought essential to 
promote the “message” of cultural diversity and racial tolerance.

Petitioner’s lall-back position that race was used merely as a tic-breaker 
to choose among equally qualified tenured teachers is legally irrelevant. 
Taxman had a statutory and constitutional right to have the merits of her

(Corn'd)



« ‘ >

IV. THE BACKPAY AWARD — A MATTER COMMITTED 
TO THE DISTRICT COURT’S DISCRETION — WAS 
FULLY JUSTIFIED.

Petitioner takes issue with the Court of Appeals’ judgment 
sustaining the District Court’s discretion to award Sharon Taxman 
100% backpay and restorative seniority credit, claiming a conflict 
with Dougherty v. Barry, 869 F.2d 605 (D.C. Cir. 1989). In 
Dougherty, the District of Columbia was found to have engaged in 
race discrimination in promoting two black firefighters to deputy 
fire chief positions, and was ordered to allocate the monetary value 
of the two promotions among several white employee victims of 
the discriminatory policy on a pro rata basis. The D.C. Circuit in 
Dougherty explained that the back-pay liability of the District could 
not be greater than the value of the two promotional opportunities 
that had been denied unlawfully, and that a pro rata recovery was 
appropriate because the trial court could not determine which two 
of the several white candidates would have obtained the promotions 
in question/5

In the instant case, by contrast, there was one discriminatory 
layoff decision, and the monetary value of the lost job was allocated 
to the one victim. Seniority in New Jersey is based on years of 
service. If Taxman had been awarded only fifty percent of the 
backpay award, then under New Jersey law she would have received 
seniority credit for only one year out of two years lost because * * 45 *

48

(Corn'd)
situation considered wiihout regard to her race. Moreover, if the “tie-breaker" 
defense were legitimated, public employers could without difficulty construct 
"ties” in order to pursue their racial-preference objectives. Cf. notes 2 & 9, 
supra-, Johnson, 480 U.S. at 623-24.

45. Dougherty involves an allocation issue among the victims of the 
discriminatory act. In resolving the damages issue, the Dougherty court did 
not include the beneficiaries of the discriminatory act. The court’s rationale 
was to make the victims of the discrimination collectively whole. That is
precisely what the courts below required.

seniority would be calculated on the basis of time worked.44 Absent 
100% restorative relief, Taxman would forever be junior to Williams 
in secretarial studies and typing classifications because of her race. 
In the event of a future staff reduction in the business education 
department. Taxman would be the least senior member and would 
be the first to be laid-off. Only equality between Williams and 
Taxman could rectify Petitioner’s discriminatory layoff decision 
in 1989.

Petitioner complains that it now has to pay twice — salary 
and seniority credit for Williams and salary and seniority credit for 
the discriminatee Taxman. This was also true in Dougherty, and is 
the inevitable consequence of a liability finding any time an 
individual who has lost a job on account of her race is ordered 
reinstated by the Title VII court. It was Petitioner’s reflexive use of 
race in May 1989 that caused this dilemma; and the burden of 
uncertainty (as to what would have happened if Petitioner had not 
discriminated in 1989) should be borne by the discriminator, not 
the innocent victim, Sharon Taxman. See Price Waterhouse v. 
Hopkins, 490 U.S. 328 (1989).

The District Court below had “broad equitable discretion" to 
fashion appropriate “make whole” relief, Franks, 424 U.S. at 763 
— a duty of “recreating the past [that] will necessarily involve a 
degree of approximation and imprecision,” Teamsters, 431 U.S. at 
372. Petitioner thus has offered no sound basis for finding an abuse 
of discretion.

CONCLUSION
This case is not about affirmative action, the problem of racial 

inequality, university admissions decisions, or the use of black 
undercover agents to infiltrate a black gang. It is about an abuse of 
the concept of affirmative action — racial preferences used to ensure 
the racial composition of a small high school department even 
though the school board has repeatedly asserted, in this litigation 
and in reports to government authorities, that it has experienced no

46. See Lichtman r. Ridgewood Board of Education, 93 N.J. 362 (1983) 
(requiring pro rata calculation of seniority based upon the total accumulated 
service in a specific category).



»

past discrimination and has no problem of underutilization of 
available minority teachers. Petitioner’s faculty was racially diverse; 
and alternative nonracial means were readily available to “send” a 
“message” that the school board took seriously the values of 
tolerance and cultural diversity. If this fact pattern were presented 
to Representative Celler and Senators Humphrey, Case and Clark 
and Title VII’s other supporters in Congress in 1964, there can be 
no doubt what their answer would have been: absent a remedial 
justification,Title VII requires race neutrality in employment 
decisions.47

The judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

STEPHEN E. KLAUSNER 
Counsel of Record 
STEPHEN B. HUNTER 
KLAUSNER & HUNTER 
63 East High Street 
P.O. Box 1012 
Somerville, NJ 08876 
(908)685-1552

SAMUEL ESTREICHER 
New York University 
School of Law 
40 Washington Square South 
New York, NY 10012 
(212) 998-6226

Attorneys for Respondent

50

47. Finally, we reject Petitioner's request for a remand (Br. for 
Petitioner, p. 41). This record needs no elaboration, as evidenced by the fact 
that both sides moved for summary judgment in the District Court. Regardless 
of the standard employed, on this record the Court of Appeals’ Judgment 
must be affirmed.