Piscataway Township Board of Education v. Taxman Brief Amici Curiae

    No. 96-679

In  T h e

Supreme Court of tfje Hmteb States;
O c to ber  Te r m , 1996

Pisc a t a w a y  T o w n sh ip  B o a r d  o f  E d u c a t io n ,
Petitioner,

v.
Sh a r o n  T a x m a n

On Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, NAACP 

LEGAL DEFENSE & EDUCATIONAL FUND, INC., AND 
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 
LAW AS AMICI CURIAE SUPPORTING PETITIONER

Elaine R. Jones 
D irector-Counsel

Theodore M. Shaw* 
Norman J. Chachkin 
Rachel D. Godsil 
David T. Goldberg 
Catherine Powell 
Paul K. Sonn 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

Marc L. Fleischaker 
Co-Chair 

Jack W. Londen 
Co-Chair

Barbara R. Arnwine 
Thomas J. Henderson 
Richard T. Seymour 
Lawyers' Committee for 

Civil Rights U nder Law 
1450 G Street N.W., Suite 400 
Washington, D.C. 20005 
(202) 662-8600

'Counsel of Record
Counsel for Amici Curiae



1

QUESTIONS PRESENTED FOR REVIEW

Amici address the following questions in their
brief:

1. Whether the courts below properly adhered to 
principles of judicial restraint and their responsibility to 
decide only those issues actually and necessarily present­
ed for decision in a case, when they determined that 
factual conflicts and ambiguities in the record were 
“immaterial” to a determination of the “substantive law 
being applied” and proceeded to the formulation of an 
unprecedented and sweeping rule of law on complex 
issues of great national importance.

2. Whether the courts below erred in interpreting 
Title VII of the Civil Rights Act of 1964, as amended in 
1972, and the intent of Congress, as absolutely precluding 
any non-remedial consideration of race in public school 
employment, including considerations that are integral to 
the content and delivery of instruction or aimed at 
combating the effects of racial isolation in public educa­
tion.

3. Whether the courts below erred in applying the 
proper legal standard to the facts presented in this case 
in determining whether Respondent's rights were 
“unnecessarily trammeled” in connection with the 
reduction in workforce.



TABLE OF CONTENTS

Questions Presented for Review.......................................  i

Table of Authorities.........................................................  iii

Interest of Amici Curiae..................................................  1

Facts and Proceedings Below ..............................................2

Summary of Argument......................................................... 9

Argument ....................................................................... 11

I. The Lower Courts Should Not Have
Issued Sweeping Constructions of Title 
VII in This Case, and on This 
Record.......................................................  11

A. The Decisions Below Went Far
Beyond the Needs of This 
Case,  Violat ing Basic 
Principles  o f  Judicial  
Restraint..................................... 11

B. Sweeping Constructions of
Title VII Should Be Based on 
a Full Record and Adequate 
Findings, Not on Summary 
Judgment and Stipulations......... 15

II. Title VII Does Not Sanction the Per
Se Rule Announced by the Courts 
Below .......................................................  18

11

Page



Ill

III. The Lower Courts Did Not Apply the 
Correct Legal Standard in 
Determining Whether Respondent's 
Rights Were “Unnecessarily 
Trammeled” ................................................ 27

Conclusion....................................................................... 29

TABLE OF AUTHORITIES

Cases:

Ambach v. Norwick,
441 U.S. 68 (1979)...........................................  17-18

Anderson v. Liberty Lobby, Inc.,
A ll U.S. 242 (1986)............................................  16

Arizonans for Official English v. Arizona,
111 S. Ct. 1055 (1997)..................................  13, 15

Ballard v. United States,
329 U.S. 187 (1946)..........................................  23

Booker v. Board of Educ. of Plainfield,
45 N.J. 161, 212 A.2d 1 (1965).................................. 5

Boys Markets v. Retail Clerks Union,
398 U.S. 235 (1970)............................................  27

Brown v. Board of Education,
349 U.S. 294, 301 (1955) ..................................... 24

Page



IV

City of Richmond v. J.A. Croson,
488 U.S. 469 (1989).............................................. 20

Freeman v. Pitts,
503 U.S. 467 (1992)..............................................  24

Georgia v. McCollum,
505 U.S. 42 (1992)................................................  23

Griffin v. County Sch. Bd. of Prince Edward Cty.,
i l l  U.S. 234 (1964)............................................... 24

Hayes v. North State Law
Enforcement Officers Ass ’n,
10 F.3d 207 (4th Cir. 1993) ................................  12

Hostetter v. Idlewild Bon Voyage Liquor Corp.,
i l l  U.S. 324 (1964)..............................................  27

Johnson v. Trans. Agency of Santa Clara Cty.,
480 U.S. 616 (1987)......................................... passim

Kennedy v. Silas Mason Co.,
334 U.S. 249 (1948)............................................... 16

Morgan v. Burke,
926 F.2d 86 (1st Cir. 1991).................................. 28

New York City Bd. of Educ. v. Harris,
444 U.S. 130 (1979)............................................... 25

Page

Cases (continued):



Cases (continued):

Pittsburgh & L. E. R. Co.
v. Railway Executives,
491 U.S. 490 (1989).............................................. 27

Rerme v. Geary,
501 U.S. 312 (1991).............................................. 13

Rogers v. Paul,
382 U.S. 198 (1965).............................................. 24

Singleton v. Jackson Mun. Sch. Dist.,
419 F.2d 1211 (5th Cir. 1969), 
rev’d on other grounds sub nom.
Carter v. West Feliciana Parish Sch. Bd.,
396 U.S. 296 (1970)..............................................  24

Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1 (1971)..................................................  17

Taxman v. Piscataway Township Bd. of Educ.,
91 F.3d 1550 (3d Cir. 1996) .......................passim

Taxman v. Piscataway Township Bd. of Educ.,
No. EDU 5063-89 (Office of Admin.
Law, May 2, 1990).....................................................4

Taxman v. Piscataway Township Bd. of Educ.
(Commissioner of Education, June 15, 1990) . . .  4

United States v. Montgomery County Bd. of Educ., 
395 U.S. 225 (1969).................................. 24



VI

Page

Cases (continued):

United States v. Bd. of Educ. of Piscataway,
798 F. Supp. 1093 (D.NJ. 1992)............................4

United States v. Bd. of Educ. of Piscataway,
832 F. Supp. 836 (D.NJ. 1992) .................. passim

U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership,
513 U.S. 18 (1994)................................................  13

U.S. Nat’l Bank of Oregon v.
Independent Ins. Agents of America,
508 U.S. 439 (1993).............................................. 13

United Steelworkers v. Weber,
443 U.S. 193 (1978)........................................ passim

Wittmer v. Peters,
87 F.3d 916 (7th Cir. 1996),
cert, denied, 117 S. Ct. 949 (1997).......................  14

Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986)...................................................8

Constitutional Provisions, Statutes and 
Regulations______________________

Constitution of the United States:

Equal Protection Clause of the Fourteenth



vu

Amendment ............................................................20

Page

Constitutional Provisions, Statutes and 
Regulations (continued'):___________

Civil Rights Act of 1964, Title VII,
as amended......................................................passim

42 U.S.C. § 2000e et seq............................................ 3
42 U.S.C. § 2000e-5(f)(l)........................................ 3

42 U.S.C. § 1983 ............................................................... 20

Emergency School Aid Act, Pub. L. No. 98-318,
20 U.S.C. §§ 3191-3207 (Supp. V 1981)
(repealed 1982)................................................  24-25

Education Amendments of 1972, Title IX,
20 U.S.C. § 1681(a) (1994)....................................... 5

New Jersey Law Against Discrimination (LAD):

N.J.S.A. 10:5:1 et seq............................................  3-4

New Jersey Regulations:

N.J.A.C. 6:3-1.10(b).................................................. 4
N.J.A.C. 6:4-l/3(b)(l) ..............................................5
NJ.A.C. 6:11-6.2....................................................... 4

Legislative History

H.R. Rep. No. 88-914, 88th Cong., 
1st Sess. (1963) ................



V1U

H.R. Rep. No. 92-238, 92d Cong.,
1st Sess. (1971) .....................................................22

H.R. Rep. No. 92-756, 92d Cong.,
1st Sess. (1971) ..................................................  25

H.R. Rep. No. 95-1137, 95th Cong.,
2d Sess. (1978) ..................................................... 25

S. Rep. No. 92-415, 92d Cong.,
1st Sess. (1971) .............................................. 22, 23

110 Cong. Rec. 6547, 6552 (1964)..................................  21

118 Cong. Rec. S789-90
(daily ed. Jan. 31, 1972)..................................  22-23

Rules of Procedure

Fed. R. Civ. P. 56(c).........................................................  16

Other Authorities

Amy Folsom Kett, Note, Race-Based Faculty 
Hiring and Layoff Remedies in School 
Desegregation Cases, 104 Harv . L. Rev .
1917 (1991).............................................................. 28

U. S. C o m m ’n  o n  Civ il  R ig h t s , F or  A ll t h e
Pe o pl e  . . .  By A ll  t h e  Peo ple  (1 9 6 9 ).........  23

Page

Legislative History (continued):



Other Authorities (continued):

U . S. C o m m ’n  o n  Civil  R ig h t s , M e x ic a n  A m er ic a n s  
a n d  t h e  A d m in ist r a t io n  o f  Ju stice  in  the  
So u t h w e st  (1970) .........................................................  23



INTEREST OF AMICI CURIAET

The National Association for the Advancement of 
Colored People (NAACP), established in 1909, is the 
nation's oldest civil rights organization. The mission of 
the NAACP is to promote equality as well as social and 
economic justice in this country for African Americans 
and other minority group citizens. Toward this end, the 
NAACP works to secure increased employment and 
economic opportunities for them according to their 
abilities. The NAACP and its attorneys have appeared 
before this Court in numerous important civil rights 
cases, as counsel of record, see Brown v. Board of Educ., 
347 U.S. 483 (1954); Griffin v. New Kent County School 
Board, 377 U.S. (1964); Nixon v. Herndon, 273 U.S. 536 
(1927), as amicus, e.g., Wygant v. Jackson Bd. of Educ., 
476 U.S. 267 (1986), Loving v. Virginia, 388 U.S. 1 (1967); 
and as a party, e.g., NAACP v. Alabama, 357 U.S. 559 
(1958).

The Lawyers' Committee for Civil Rights Under 
Law is a nonprofit organization established in 1963 at the 
request of the President to involve leading members of 
the bar throughout the country in a national effort to 
ensure civil rights to all Americans. Through its national 
office in Washington, D.C., and its several affiliate 
Lawyers' Committees, the organization has over the past 
34 years enlisted the services of thousands of members of 
the private bar in addressing the legal problems of 
minorities and the poor in voting, education, 
employment, housing, municipal services, the 
administration of justice, and law enforcement.

One of the issues with which the Lawyers’ 
Committee has been deeply concerned since its founding 
has been the proper scope of affirmative action. The 
Lawyers’ Committee has represented parties, or has filed

No counsel for any party had any role in authoring this brief, 
and no person or entity other than the named amici curiae or their 
counsel have made any monetary contribution to the preparation or 
submission of this brief.



2

amicus briefs, in the following illustrative cases: Adarand 
Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Metro 
Broadcasting, Inc. v. F.C.C., 497 U.S. 547 (1990); City of 
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Martin 
v. Wilks, 490 U.S. 755 (1989); lohnson v. Transportation 
Agency of Santa Clara County, 480 U.S. 616 (1987); United 
States v. Paradise, 480 U.S. 149 (1987); Local 28, Sheet 
Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 
and Local 93, Int’l Ass’n of Firefighters v.
Cleveland, 478 U.S. 501 (1986).

The NAACP Legal Defense and Educational 
Fund, Inc. (LDF), was chartered in 1940 for the purpose, 
inter alia, of providing legal services free of charge to 
"indigent NegToes denied their civil rights on account of 
race or color."” Its first Director-Counsel was Thurgood 
Marshall. Though established by the NAACP, the Legal 
Defense Fund has been an independent entity for four 
decades. See NAACP v. Button, 371 U.S. 415, 422 (1963) 
(noting LDF's “corporate reputation for expertness in 
presenting and arguing the difficult questions of law that 
frequently arise in civil rights litigation”).

Legal Defense Fund attorneys appeared as counsel 
of record in significant cases of this Court involving equal 
employment opportunity, see Griggs v. Duke Power Co., 
401 U.S. 424 (1971); Phillips v. Martin Marietta Corp., 400 
U.S. 542 (1970) (per curiam) and education, see Brown v 
Board of Educ., 347 U.S. 483 (1954), including Rogers v. 
Paul, 382 U.S. 198 (1965), which recognized public school 
students’ constitutional interest in a desegregated faculty. 
LDF has also participated in numerous cases arising from 
voluntary private and local government efforts to address 
our racial problems, see, e.g, Washington v. Seattle School 
District No. 1, 458 U.S. 457 (1982); United Steelworkers of 
America v. Weber, 443 U.S. 193 (1979).

FACTS AND PROCEEDINGS BELOW

This case arises from a single employment action: 
the 1989 layoff of Respondent, a teacher in the Business



3

Education Department of Piscataway High School, 
pursuant to a reduction in force. The Petitioner 
determined that a choice was to be made between 
Respondent, who is white, and Debra Williams, who is 
African-American. The proposed choice between 
Taxman and Williams was premised upon the school 
district's determinations: 1) that the reduction in force 
should be accomplished by laying off a teacher in the 
Business Education Department, rather than through a 
layoff elsewhere and transfer out of that department; 2) 
that the reduction in force should occur among teachers 
of “secretarial studies” rather than “business education”; 
3) that both had precisely equal seniority; and 4) that 
both were of precisely equal qualifications. To break the 
“tie” between the two, the Superintendent proposed and 
the Board invoked an “affirmative action policy,” which 
provided that:

In all cases, the most qualified candidate will be 
recommended for appointment. However, when 
candidates appear to be of equal qualification, 
candidates meeting the criteria of the Affirmative 
Action program will be recommended.

Accordingly, Taxman was informed that her employment 
was terminated.1

In 1992, the United States instituted this action 
alleging that Petitioner's layoff of Taxman was unlawful 
employment discrimination in violation of § 703(a) of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e 
et seq. Respondent intervened under 42 U.S.C. § 2000e- 
5(f)(1), filing a complaint asserting claims under the New 
Jersey Law Against Discrimination (LAD), NJ.S.A.

'Prior to the layoff, the Department employed ten teachers, in­
cluding Taxman and Williams, then its only African-American teach­
er and, apparently, the first nonwhite person to have taught in the 
Department.



4

10.5.1 et seq., as well as Title VII. No constitutional 
claim was raised.

In challenging the Board's decision, Taxman 
asserted that: 1) the choice presented between her and 
Williams had been manufactured when the designation of 
the position to be eliminated was changed from “business 
education to secretarial studies”;2 3 2) her seniority was, 
in fact, greater than that of Williams under applicable 
state law; 3) that the Board did not act for the purpose 
of educational diversity”;4 4) the Board considered and 
could have accomplished the reduction in force by laying 
off a white teacher less senior than both Taxman and 
Williams and transferring another teacher out of the 
Business Education Department.5 Conflicting evidence 
on these issues was developed in discovery and the 
district court determined that it was in a position to 
decide state law questions bearing on the resolution of 
these claims.

As to the district's affirmative action policy, the

Taxman had been certified to teach all business education 
classes since her hire; Williams was initially certified to teach only 
secretarial studies" and "typing" until her certification in business 

education in 1985. See H79 (DA 93); 1186 (DA 95); N.J.A.C. 6:11-6.2.

3 Taxman maintained that Williams improperly had been credited 
with seniority for time absent for medical reasons, see N.J.A.C. 6:3- 
1.10(b). The district court held that prior administrative determina­
tion of the seniority question, see Taxman v. Piscataway Township Bd. 
OfEduc., No. EDU 5063-89 (Office of Administrative Law, May 2, 
1990), Taxman v. Piscataway Township Bd. Of Educ., (Commissioner 
of Education, June 15, 1990), would not be given preclusive effect in 
deciding this case. 798 F. Supp. 1093.

4 Taxman argued that there was no evidence that the Board acted 
for that purpose. 832 F. Supp. at 848 n.9.

5 Proffer, DA 212.



5

record discloses that the Board adopted a "program" in 
1975, pursuant to a New Jersey State Department of 
Education regulation requiring school districts to 
implement plans providing for “affirmative action” in 
both their employment and classroom practices, see 
N.J.A.C. 6:4-l/3(b)(l) (1997), promulgated to effectuate 
both a State mandate that localities not maintain racially 
isolated public schools, see Booker v. Board of Educ. of 
Plainfield, 45 N.J. 161, 212 A.2d 1 (1965); cf. (DA 70) 
and Congress's instruction, in Title IX of the Education 
Amendments of 1972, 20 U.S.C. § 1681(a) (1994), that 
educational institutions receiving federal funds not 
discriminate on the basis of sex. Notably absent from the 
1975 Program — despite its length and detailed attention 
to issues of minority and female participation in 
Petitioner's workforce — is any express recognition of 
gender or ethnic diversity as a consideration in 
employment decisions, of the importance of such diversity 
within particular departments of a school, or of the 
educational benefits students derive from being taught by 
a diverse departmental faculty.

In 1983, the Board adopted an additional one-page 
“policy,” (DA 53), which affirms a commitment to 
“ensure equal employment opportunity for all persons 
and prohibit discrimination in employment because of 
sex, race, color, creed, religion, handicap, domicile, 
marital status, or national origin,” and indicates that “this 
program of equal employment opportunity and 
affirmative action shall be an integral part of every aspect 
of employment, including. . .transfers, recruitment . . . 
layoffs . . . promotions and tenure.” Neither the lengthy 
1975 Program nor the brief 1983 sequel mentions 
“diversity.”

Beyond the text of the affirmative action plan, in 
excerpted deposition testimony made a part of the record, 
Board officials and employees explained how they 
understood affirmative action considerations to have 
affected the layoff decision. They understood their 
policies as prohibiting consideration of race or gender in



6

cases where one candidate was more qualified than the 
other, and that the decision whether to invoke the tie­
breaking provision in any particular instance was entirely 
within the Board's discretion. See, e.g., Deposition of 
Theodore Kruse (DA 75).

Reflecting on his participation in the decision, 
Theodore Kruse, a university professor and Board 
President at the time testified “ . .  . I believe by retaining 
Ms. 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 
tolerant, more accepting, more understanding of people 
of all background[s].” (DA 75).

After the close of discovery and a series of pretrial 
rulings by the district court, the parties filed cross­
motions for summary judgment. Notwithstanding the 
factual disputes on the several issues related to the 
personnel decision of the Board, discussed above, the 
parties sought summary judgment based largely on a set 
of stipulations set down in the district court pre-trial 
order.6

The district court did not examine nor consider 
any of the disputed factual issues, except for the dispute 
as to whether the Board’s asserted basis for its action — 
“educational diversity” — was, in fact, the basis on which 
it intended to act. The court found resolution of that

6 These include acknowledgment that “minorities” were not 
underrepresented in relevant job categories of Petitioner's work 

force at various times pertinent to the case; that the Board had not 
adopted its policies for “the purpose of remedying any prior 
discrimination [on its part], or for any remedial purpose” (11 64), and 
that Petitioner had not acted with a “specific intent to remedy any 
prior discriminatory act, practice, or pattern in the School District.”



7

factual dispute unnecessary “in light of the court's 
conclusion that the purpose asserted, even if factually 
supported, does not constitute a legal justification for the 
Board's” action. 832 F. Supp. at 848-49 n.9. The court 
determined that because this Court's decisions in United, 
Steelworkers v. Weber, 443 U.S. 193 (1978), and Johnson 
v. Transportation Agency of Santa Clara County, 480 U.S. 
616 (1987), went no further than approving affirmative 
action plans premised upon “manifest imbalance” in a 
traditionally segregated job category, see Johnson, 480 
U.S. at 631-32; Weber, 443 U.S. at 197, and in 
constitutional cases had rejected other asserted bases for 
affirmative action, “that the Board's plan [wals unlawful.” 
832 F. Supp. at 848.

The Third Circuit, sitting en banc, affirmed the 
judgment of the trial court on grounds no less sweeping 
than those relied on below.7 After summarizing the 
relevant facts of the Weber and Johnson cases, the appeals 
court undertook to decide whether, as had been the case 
with the Kaiser Aluminum and Santa Clara 
Transportation Agency plans, the purposes animating 
Petitioner's affirmative action policy could be said to 
“mirror” those of Congress in enacting Title VII. See 91 
F.3d at 1555 (quoting Weber, 443 U.S. at 208). Declaring 
that Title VII had been enacted to further two (but only 
two) “primary goals”: (1) “to end discrimination . . . 
thereby guaranteeing equal employment opportunity in 
the workplace, and [(2)] to remedy segregation and

’Apart from acknowledging that the case had been decided on 
summary judgment and submitted on stipulated facts, 91 F.3d at 1550 
n.l, and that, accordingly, “plenary” appellate review was indicated, 
the Third Circuit did not undertake to grapple with the conflicts and 
ambiguities in the record, cf. 91 F.3d at 1556 (“for summary judg­
ment purposes, the parties do not dispute that Taxman has estab­
lished a prima facie case or that the Board’s decision to terminate 
her was based on its affirmative action policy”), undertaking instead 
to resolve the case by formulating the broadest rule of law that the 
case arguably implicated.



8

underrepresentation of minorities that discrimination had 
caused in our Nation's work force,” the Court explained 
that it was only because of this “second corrective 
purpose” that “affirmative action can co-exist with the 
Act's antidiscrimination mandate,” 91 F.3d at 1557; see 
also id. at 1558 (that Board’s affirmative action violates 
the “terms of Title VII” is “beyond cavil”).8

Because Congress had not similarly recognized 
diversity as “a Title VII objective requiring 
accommodation,” the Court explained, a policy that seeks 
to advance diversity — or any other objective other than 
those upheld in Weber and Johnson — is a fortiori 
unlawful under Title VII, 91 F.3d at 1558; see also id. at 
1557 (“unless a plan has a remedial purpose, it cannot be 
said to mirror the purposes of the statute, and therefore, 
cannot satisfy the first prong of the Weber test”).

The Court then turned briefly to Weber's second 
requirement, that an employer's affirmative action policy 
not “unnecessarily trammel” nonminority interests, and 
held the Petitioner's policy deficient in this respect too. 
After criticizing the Board’s policy for its "lack of 
structure" when compared to the Weber and Johnson 
plans, the Court held, a layoff is “so severe that the 
Board's goal of racial diversity, even if legitimate under 
Title VII, may not be pursued in this fashion.” While the 
hiring and promotion goals upheld in Weber and Johnson 
“impose[d] 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 serious disruption of their lives.” Id. at 1564 
(citing Wygant v. Jackson Board of Education, 476 U.S. 
267, 283 (1986)).

Responding to the dissent's argument that “combatting the 
attitudes that can lead to future patterns of discrimination” is also 
consistent with Title VII, the majority said that would be a “dramatic 
rewriting of the goals of the statute.” 91 F.3d at 1558 n.9.



9

SUMMARY OF ARGUMENT

The lower courts issued sweeping, rigid, and 
unprecedented constructions of Title VII that went far 
beyond what was necessary to resolve the dispute before 
them, did so on an inadequate summary-judgment record 
that left critical questions unanswered, and resolved these 
complex issues as an alternative to resolving disputed 
factual questions that could well have made the lower 
courts' unprecedented rulings unnecessary.

Among these disputed questions were (1) whether 
the Petitioner actually did rely on educational diversity to 
justify its layoff of Respondent; (2) the weight of that 
interest, in the event that Petitioner were found to have 
relied on educational diversity; and (3) whether 
Respondent's claim that it would have been consistent 
with the seniority system to lay off a less senior white 
employee was correct, suggesting the absence of any 
discrimination on the basis of race.

The lower courts' approach violated the principles 
of judicial restraint and imposed on summary-judgment 
procedures a burden too weighty for them to bear. The 
result of their overreaching, unless reversed by this Court, 
will be to constrict public and private employers in 
essential functions never brought to the attention of the 
lower courts, regardless of the records that could be 
compiled in cases focused on those particular situations.

The lower courts erroneously interpreted United 
Steelworkers v. Weber, 443 U.S. 193 (1979), and Johnson 
v. Transportation Agency of Santa Clara County, 480 U.S. 
616 (1987), as determining the limits of permissible bases 
for affirmative action, where these cases expressly 
declined to define the outer bounds. Similarly, the courts 
below erroneously interpreted Title VII as imposing a 
more restrictive standard for the permissible 
consideration of race than even that of the Constitution, 
a proposition that goes further than would have the



10

dissent in Johnson, and one that is wholly without 
precedent in this Court’s cases.

There are strong indications in the legislative 
history of Title VII that Congress did not intend the 
broad conclusions reached by the district court. Title VII 
was not enacted in isolation, but as part of a 
comprehensive scheme that took into account the 
interrelationships between discrimination in employment 
and other forms of discrimination, and designed, as a 
whole, to accomplish the bringing of African-Americans 
into the American mainstream. The purposes of 
Congress are distorted by a holding that Title VII allows 
affirmative action only as a remedy for the employer's 
own discrimination.

Indeed, between the original enactment of Title 
VII in 1964 and the extension of Title VII to State and 
local employers — including public schools — in 1972, 
Congress enacted significant legislation designed to foster 
race-conscious teacher hiring and assignment decisions to 
cure racial isolation and de jure segregation in schools, 
not only in employment but for the benefit of students. 
It strains credulity to consider that the same Congress 
that would encourage such actions was simultaneously 
amending Title VII to end such actions.

Any race-conscious layoff plan must meet a 
standard of justification commensurate with the strength 
of the employer’s interest in preserving diversity and with 
the burden imposed by the layoff. That burden may be 
light or heavy, depending on the facts of the case. In all 
cases, the employer making use of a race-conscious layoff 
must show that it has considered, and has good reasons 
for rejecting, less onerous means. This graduated and 
flexible approach to race-conscious layoffs has in practice 
meant that they are rare, and will continue to guarantee 
their rarity.

The lower courts failed to recognize that race was 
not the only factor that affected the reduction-in-force



11

determination, and failed to weigh either the Board’s 
legitimate diversity interests or the extent to which they 
could be effectuated only through the means of a race- 
based layoff under the circumstances of this case. The 
conclusion that the Board’s action "unnecessarily 
trammeled" Respondent’s rights thus lacks an appropriate 
basis in essential factual findings and must be vacated.

The decision below should be vacated and the case 
remanded to the district court for the development of a 
proper record, the entry of findings on the factual issues, 
and the determination of any necessary legal questions on 
an appropriately narrow basis.

ARGUMENT

I. THE LOWER COURTS SHOULD NOT HAVE 
ISSUED SWEEPING CONSTRUCTIONS OF 
TITLE VII IN THIS CASE, AND ON THIS 
RECORD

A. THE DECISIONS BELOW WENT FAR 
BEYOND THE NEEDS OF THIS CASE, 
VIOLATING BASIC PRINCIPLES OF 
JUDICIAL RESTRAINT

The lower courts in this case have reached the 
sweeping conclusion that race-conscious employment 
decisions cannot be justified by any interest or basis other 
than to remedy manifest imbalance in job categories. 
They reached and resolved this question despite the 
district court's recognition that the question might not 
even be presented by this case. The district court noted 
the controversy as to whether there was any factual 
foundation for the Board's asserted reliance on 
educational diversity, but held that its broad construction 
of Title VII made it unnecessary to decide whether there 
was a genuine issue of material fact on this question. 832



12

F. Supp. at 848-49 n.9. The court of appeals did not 
advert to the question, but simply assumed that the 
school board had shown that it acted on the basis of 
educational diversity.

The approach of the lower courts was precisely the 
opposite of what it should have been. There were many 
grounds on which the case could have been decided 
without reaching a sweeping and inflexible construction 
of Title VII. First, the court should have determined 
whether there was sufficient evidence to support the 
Board's asserted justification of “educational diversity.” 
If the Board did not present evidence sufficient to show 
that it laid off Respondent because it relied on 
educational diversity, its layoff decision would have been 
unexplained and judgment could have been entered for 
the Respondent.

Second, even if the record were clear that the 
Board did in fact act on the basis of educational diversity, 
the court should have made findings on the strength of 
the interest asserted. In the absence of evidence 
establishing an appropriately weighty interest, the 
question of the legality of a properly-supported reliance 
on educational diversity could not arise. Hayes v. North 
State Law Enforcement Officers Association, 10 F.3d 207, 
210 (4th Cir. 1993), for example, rejected the City of 
Charlotte's contention that its interest in effective law 
enforcement justified the use of a race-based promotion 
policy to achieve diversity, because “the City has not 
provided sufficient evidence to survive summary judgment 
on its claim that racial diversity is essential to effective 
law enforcement and constitutes a compelling state 
interest.”

Basic principles of judicial restraint counsel against 
the issuance of a sweeping and inflexible construction of 
Title VTI where the question decided is not necessarily 
presented by the case and where there are numerous 
narrower grounds for decision. “In litigation generally, 
and in constitutional litigation most prominently, courts



13

in the United States characteristically pause to ask: Is this 
conflict really necessary?” Arizonans for Official English 
v. Arizona, 117 S. Ct. 1055, 1072 (1997) (footnote 
omitted).

While there is certainly a case and controversy 
between the parties, this does not mean that there is 
automatically a case or controversy between the parties 
on all issues. This Court has cautioned that not even a 
statute can authorize a Federal court to decide the merits 
of a legal question not posed in an Article III case or 
controversy. U.S. Bancorp Mortgage Co. v. Bonner Mall 
Partnership, 513 U.S. 18 (1994). In U.S. National Bank of 
Oregon v. Independent Insurance Agents of America, 508 
U.S. 439 (1993), this Court found that the court of 
appeals “had before it a real case and controversy 
extending to that issue.” (Emphasis supplied). In the 
context of holding that a Federal court has jurisdiction to 
determine whether the law creating the Federal question 
is in force, this Court sounded a caution that applies with 
equal force to the case at bar:

The contrary conclusion would permit litigants, by 
agreeing on the legal issue presented, to extract 
the opinion of a court on hypothetical Acts of 
Congress or dubious constitutional principles, an 
opinion that would be difficult to characterize as 
anything but advisory.

508 U.S. at 447.

“Concerns of justiciability go to the power of the 
federal courts to entertain disputes, and to the wisdom of 
their doing so.” Renne v. Geary, 501 U.S. 312, 316 
(1991). TTiey include consideration of the timing of 
judicial intervention. Id. at 320. Where the issues to be 
decided have “fundamental and far-reaching import,” 
they should not be decided upon an “amorphous and ill- 
defined factual record.” Id. at 324. “Rules of 
justiciability serve to make the judicial process a 
principled one. Were we to depart from those rules, our



14

disposition of the case would lack the clarity and force 
which ought to inform the exercise of judicial authority.”

These considerations are of particular importance 
here. The lower courts did not have before them a well- 
developed record exploring the importance of racial 
diversity in education, but chose to issue rulings that 
would bar all reliance on such diversity in education and 
in all other types of employment, no matter how well 
supported a particular program might be.

The Seventh Circuit has recently cautioned against 
such sweeping pronouncements, and has refused to apply 
the dicta in this Court's opinions in the manner chosen by 
the lower courts.

But there is a reason that dicta are dicta and not 
holdings, that is, are not authoritative. A judge 
would be unreasonable to conclude that no other 
consideration except a history of discrimination 
could ever warrant a discriminatory measure 
unless every other consideration had been 
presented to and rejected by him. The dicta on 
which the plaintiffs rely were uttered in cases that 
did not involve, by judges who had never had 
cases that involved, the racial composition of a 
prison's staff. Such cases were not, at least insofar 
as one can glean from the opinions, present to the 
minds of the judges when they considered and 
rejected other grounds for discrimination and 
expressed that rejection in the sweeping dicta that 
we have mentioned. The weight of judicial 
language depends on context, by these plaintiffs 
ignored.

Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996), cert, 
denied, 117 S. Ct. 949 (1997). The court focused its 
holding on the special context of penal “boot camps,” 
where “[t]he idea is to give the inmates an experience 
similar to that of old-fashioned military basic training, in



15

which harsh regimentation, including drill-sergeant abuse 
by correctional officers, is used to break down and 
remold the character of the trainee.” 87 F.3d at 917. 
The court held that, in the special circumstances shown 
by the record there and supported by expert testimony, it 
was as lawful for the defendants to promote an African 
American to the rank of lieutenant although he ranked 
lower on the promotional register than some white 
candidates, as it would have been to separate prisoners by 
race in a prison undergoing a race riot. Id. at 919.

For these reasons, we urge the Court to vacate the 
decisions below and to remand the case for resolution of 
the factual questions on which any proper interpretation 
of Title VII must depend, with instructions that the 
courts should decide the issues in this case on an 
appropriately narrow basis.

B. SWEEPING CONSTRUCTIONS OF 
TITLE VII SHOULD BE BASED ON A 
FULL RECORD AND ADEQUATE 
FINDINGS, NOT ON SUMMARY 
JUDGMENT AND STIPULATIONS

The district court handed down its broad 
constructions of Title VII based on its view that the 
factual issues “need not be decided” in light of these 
broad constructions. 832 F. Supp. at 848-49 n.9. The 
parties were largely responsible for the divorce between 
the decision of this case and a fully developed record; 
both parties filed cross-motions for summary judgment 
and agreed to stipulated facts. Just last Term, this Court 
warned Federal courts not to allow such ready 
agreements between parties to tempt them into issuing 
broad advisory opinions: “In advancing cooperation 
between Yniguez and the Attorney General regarding the 
request for and agreement to pay nominal damages, the 
Ninth Circuit did not home in on the federal courts’ lack 
of authority to act in friendly or feigned proceedings.” 
Arizonans for Official English, 117 S. Ct. at 1070.



16

This is not an appropriate use of Rule 56, Fed. R. 
Civ. P. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
255 (1986), this Court affirmed the power of a “trial 
court to deny summary judgment in a case where there is 
reason to believe that the better course would be to 
proceed to a full trial.” Kennedy v. Silas-Mason Co., 334 
U.S. 249, 257-58 (1948), stated that while the district 
court has the power to resolve issues on summary 
judgment, and while the use of that power may be 
“salutary where issues are clear-cut and simple,” summary 
procedures nonetheless “present a treacherous record for 
deciding issues of far-flung import, on which this Court 
should draw inferences with caution . . . .” As in 
Kennedy, the better course of action here would have 
been “to withhold decision of the ultimate questions 
involved in this case until this or another record shall 
present a more solid basis of findings based on litigation 
or on a comprehensive statement of agreed facts.” Id. at 
257.

As we have shown above, the record in this case 
— including the parties’ stipulations — reflects numerous 
factual problems, the resolution of which may have made 
any broad construction of Title VII unnecessary. If the 
lower courts had agreed with Respondent's claim that she 
was more senior than Williams,9 for example, the 
Petitioner's tie-breaker affirmative-action policy would 
have been inapplicable and the Respondent would have 
won her case on State-law grounds not requiring any 
broad constructions of Title VII. Conversely, if 
Respondent had succeeded in convincing the trial court 
of her claim that the reduction in force could have been 
carried out by laying off a less senior white teacher, she 
may have had a different claim but not a Title VII claim.

Moreover, the lower courts' combination of a thin 
record and lack of restraint have resulted in the worst

9 The Board itself had suggested that this question be referred to 
the State courts.



17

possible means of resolving a legal question. Because the 
employer here put on no substantial evidence of the 
variety of ways in which a diverse workforce can be 
important to employers and no substantial evidence of 
the intensity of such importance, the lower courts' 
summary judgment decision will tie the hands of both 
private and public employers in a wide variety of contexts. 
A police department covered by Title VII will, for 
example, remain able to investigate criminal gangs 
composed of members of a particular racial group by 
assigning undercover officers to infiltrate the gang, but 
will be unable to take the race of its officers into account 
in determining who will best be able to infiltrate the 
gang.

Similarly, the courts below pronounced this 
sweeping rule on a record all but devoid of evidence as 
to school districts' essential interest in determining 
matters affecting the content and delivery of instruction.

School authorities are traditionally charged 
with broad power to formulate and implement 
educational policy and might well conclude, for 
example, that in order to prepare students to live 
in a pluralistic society each school should have a 
prescribed ratio of Negro to white students 
reflecting the proportion for the district as a 
whole. To do this as an educational policy is 
within the broad discretionary powers of school 
authorities . . . .

Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1, 16 (1971). Just as Swann recognized that the 
assignment of students to the classroom is itself an 
element of the lesson being taught, so too the choice and 
deployment of teachers is integral to the instructional 
content, method, and delivery.

Within the public school system, teachers 
play a critical part in developing students' attitude 
toward government and understanding of the role



18

of citizens in our society. Alone among employees 
of the system, teachers are in direct, day-to-day 
contact with students both in the classrooms and 
in the other varied activities of a modern school. 
. .  . Thus, through both the presentation of course 
materials and the example he sets, a teacher has 
an opportunity to influence the attitudes of 
students toward government, the political process, 
and a citizen's social responsibilities. This 
influence is crucial to the continued good health 
of a democracy.

Ambach v. Norwick, 441 U.S. 68, 78-79 (1979). These 
considerations are too important to have been aecided in 
the summary fashion adopted by the lower courts.

II. TITLE VII DOES NOT SANCTION THE
PER SE RULE ANNOUNCED BY THE 
COURTS BELOW

The courts below did not question the existence of 
educational benefit to public school children of being 
exposed to a culturally diverse teaching force — to the 
contrary, they went out of their way to recognize the 
reality and importance of such benefit. Rather, 
purporting to rely on the "words, legislative history, [and] 
historical context" of Title VII, 91 F.3d at 1557, the Court 
of Appeals determined that Congress had failed to 
"recogn[izel" such diversity as a "Title VII objective" 
worthy of "accommodation." Id. at 1558. Indeed, the 
court held that no "nonremedial purpose" — that is to 
say, no employer objective other than the correction of 
manifest workforce imbalance that spurred the programs 
upheld in Weber and Johnson — may be reconciled with 
Title VII. In both its broad and its narrow formulations, 
and as a matter of "straightforward statutory 
interpretation," the rule announced by the Third Circuit 
is error.

The most evident mistake of the Court of Appeals 
was its reading of this Court’s decisions in Johnson and



19

Weber as delimiting the permissible bases for voluntary 
affirmative action under Title VII. While both cases 
announced principles governing challenges to remedial 
affirmative action, neither Johnson nor Weber provides 
any support for the appellate court’s conclusion that 
other bases for affirmative action are suspect, let alone 
illegitimate per se under the Act. To the contrary, the 
Weber opinion begins by declaring that "The only question 
before [the Court] is the narrow statutory issue of 
whether Title VII forbids private employers and unions 
from voluntarily agreeing upon bona fide affirmative 
action plans that accord racial preferences in the manner 
and for the purpose provided in the Kaiser-USWA plan," 
443 U.S. at 200,10 and concludes by declaring: "[w]e 
need not today define in detail the line of demarcation 
between permissible and impermissible affirmative action 
plans," id. at 208.

To the extent that Weber laid down rules that must 
guide determination of the issue presented, they are (1) 
that Title VII’s prohibition on "discrimination]" may not 
be read literally to bar an employer’s taking race into 
account,11 a holding to which the court below showed 
scant allegiance, and (2) that "the prohibition against 
racial discrimination in [the statute] must [instead] be 
read against the background of the legislative history of 
Title VII and the historical context from which the Act 
arose," 443 U.S. at 201, a rule that the lower court

10The recognition in Weber of the congressional policy favoring 
preservation of managerial prerogatives to take affirmative action 
consistent with the objectives of Title VII, see 443 U.S. at 205-06, is 
equally applicable to an employer’s interest in nonremedial 
objectives.

nSee also Johnson, 480 U.S. at 629 n.7 (noting Weber's 
“decisive rejection of the argument that the ‘plain language’ of the 
statute prohibits affirmative action," as well as subsequent 
congressional acquiescence); id. at 644 (Stevens, J., concurring) 
(Weber is "now an important part of the fabric of our law").



20

opinion quotes but does not follow. If a gender- or race­
conscious employment policy is (1) consistent with 
congressional purpose, and (2) avoids "unnecessarily 
trammel[ing]" the interests of nonbeneficiaries, 443 U.S. 
at 208, Weber and Johnson teach, it does not violate Title 
VII.12

The Court of Appeals' second basic error was its 
conclusion that the legislative history of the Civil Rights 
Act is barren of support for any other sort of 
nonremedial affirmative action. The majority announced 
that its review disclosed but two objectives in the 
legislative history of the 1964 Act and its 1972 
Amendments extending coverage to state and local 
government employers, the same two, not surprisingly 
that had been identified in Weber: the “primary purpose” 
of prohibiting discrimination and the secondary purpose

12The parties and decisions below similarly mistook the 
significance of the relationship between the constitutional and 
statutory standards. Whether the holding of Johnson, 480 U.S. at 627 
n.6, that Title VII is more permissive than the Constitution, applies 
only when the affirmative action program is remedial, as was 
suggested somewhat implausibly below, no opinion of this Court has 
contended that Title VII imposes a more stringent standard, see, e.g., 
Johnson, 480 U.S. at 651 (Scalia, J., dissenting)(arguing that Title VII 
and Equal Protection standards are the same); cf. id. at 630 n.8 
(answering dissent).

That, however, is what the decision below does: it held that 
a race-conscious decision is illegal, irrespective of whether it is 
narrowly tailored to advance a compelling government interest. On 
this reading, given the fact that public employees already may state 
claims under § 1983 and the Equal Protection Clause, the main 
purpose of Title VII would be to outlaw those practices that would 
be upheld under strict scrutiny. The Court should not lightly infer 
such an extraordinary congressional purpose, Le., one that disables 
States from achieving objectives of overriding importance 
(alternative, race-neutral solutions being inadequate to the task, by 
definition), see City of Richmond v. J^4. Croson Co., 488 U.S. 469, 507 
(1989)), especially in the absence of an exceedingly clear statement.



21

of countering the effects of past discrimination; nowhere 
in the “positive legislative history” was there support for 
the “racial diversity puipose” said to be advanced by 
Petitioner. This conclusion was doubly mistaken. First, 
it is untenable to say, as the court of appeals majority 
assumed, that Congress’ concern in 1964 was exclusively 
with the effects in employment of the traditional patterns 
of racial segregation and hierarchy,” 91 F.3d at 1557-58. 
Congress’ purpose, as Weber properly acknowledged, was 
the “integration of blacks into the mainstream of 
American society,” and it fully understood that doing so 
would require a comprehensive approach.

Thus, as Senator Humphrey asked, in words that 
echoed President Kennedy's message transmitting the 
original bill,

What good does it do a Negro to be able to eat in 
a fine restaurant if he cannot afford to pay the 
bill? What good does it do him to be accepted in 
a hotel that is too expensive for his modest 
income? How can a Negro child be motivated to 
take full advantage of integrated educational 
facilities if he has no hope of getting a job where 
he can use that education?

110 CONG. REC 6547 (1964).

Income from employment may be necessary to 
further a man’s education, or that of his children. 
If his children have no hope of getting a job, what 
will motivate them to take advantage of 
educational opportunities?

Id. at 6552.

The emphasis on the interrelationship of the 
effects of various sorts of discrimination, the recognition 
that discrimination in education could have effects on 
employment — and that overcoming discrimination in



22

employment would make equality in education or public 
accommodations meaningful — helped to convince 
Congress that a comprehensive approach was needed: the 
1964 Civil Rights Act, of which Title VII is one chapter, 
is the fruit of that central insight. To say, as the Third 
Circuit held, that an employer is entitled to take steps to 
overcome the effects of discrimination in employment, see 
Weber, 443 U.S. at 202; Johnson, 480 U.S. at 631 n.10, but 
not in education, would thus be to draw a distinction 
alien to the 88th Congress.

Of equal gravity is the disregard of the court below 
of a congressional purpose that permeates the legislative 
histoiy of the 1972 extension of the Civil Rights Act: its 
emphasis on the value of minority employees' 
“participation” in government, not only as a means of 
economic uplift, but for the purpose of assuring fair 
treatment of minority communities and enhancing the 
legitimacy of government institutions in those 
communities. Thus, while Congress surely did not 
endorse any rule of proportional representation, its belief 
that ensuring integrated workforces “in . . . government 
activities that are most visible to the minority 
communities (notably education, law enforcement, and 
the administration of justice),” H.R. REP. NO. 92-238, 
92d Cong., 1st Sess. 17 (1971), would prevent “ignorance 
of minority problems . . . [and] mistrust . . .of 
government,” S. REP. NO. 92-415, 92d Cong., 1st Sess., 10 

is evident throughout the legislative history.
us,

State and local government employees make many 
important policy and administrative decisions. If 
these are to be responsive to the needs and desires 
of the people it is essential that those making the 
decisions be truly representative of all segments of 
the population.



23

118 CONG. REC S789-90 (daily ed. Jan. 31, 1972)(Sen. 
Williams).13

For the Congress of the Kemer Commission 
Report, the importance of the noneconomic benefits of 
minority employment were hardly secondary. See also S. 
REP. NO. 415, 92d Cong., 1st Sess. 12 (1971) (noting 
danger that nonparticipation by minorities in education 
would “promote existing misconceptions and stereotypical 
categorizations which in turn would lead to future 
patterns of discrimination”).14

In addition to neglecting this evidence that 
Congress did not conceive Title VII's purposes as cabined 
to the economic or employment realm, the lower court

13These were also major themes of the two reports of the United 
States Commission on Civil Rights that had a strong influence on 
Congress's decision to extend Title VII to government. See For All 
the People . . .  By All the People 132 (1969)(“Minority group 
members must share the role of the civil servant on an equal basis 
and play a key part in the search for lasting solutions”); MEXICAN 
A mericans and  the A dministration of Justice in the 
SOUTHWEST 83 (1970)(noting widely held conviction that “increasing 
the number of Mexican American law enforcement officers at all 
levels of authority” would “significantly dispelf]” fear and distrust in 
Mexican-American community).

14Nor is this insight limited to Congress. See, e.g., Ballard v. 
United States, 329 U.S. 187, 193-94 (1946)("The truth is that the two 
sexes are not fungible; a community made up exclusively of one is 
different from a community composed of both; the subtle interplay 
of influence one on the other is among the imponderables. To 
insulate the courtroom from either may not in a given case make an 
iota of difference. Yet a flavor, a distinct quality is lost if either sex 
is excluded")(footnote omitted): Georgia v. McCollum, 505 U.S. 42, 
68 (1992) (O’Connor, J., dissenting) (peremptory challenges to secure 
minority representation on the jury may help to overcome bias, "for 
there is substantial reason to believe that the distorting influence of 
race is minimized on a racially mixed jury").



24

ignored an element of “historical background” that is 
even more pertinent to the case at hand. When Congress 
enacted legislation extending Title VII to State and local 
governments — and thus to public school teachers — it 
did so in the midst of the vast transformations in public 
education, both court-ordered and voluntary, undertaken 
in response to this Court's decisions in Brown v. Board of 
Educ., 349 U.S. 294, 301 (Brown II), (1955) and Griffin v. 
County School Bd. of Prince Edwara County, 377 U.S. 218, 
234 (1964)(“The time for mere ‘deliberate speed' has run 
out”), and to Congress' enactment of Title IV and Title 
VI of the Civil Rights Act. The Court had conclusively 
settled that faculty segregation was part of the 
constitutional injury to African-American students, 
see Rogers v. Paul, 382 U.S. 198 (1965)(per curiam), and 
that an end of “racially identifiable” school faculties was 
of primary remedial concern; see United States v. 
Montgomery County Bd. of Educ., 395 U.S. 225, 232 
(1969)(upholding numerical assignment of black and 
white teachers); see also Freeman v. Pitts, 503 U.S. 467, 
486 (1992)(approving court order providing for continued 
federal court supervision of racial composition of public 
school faculty). And the Fifth Circuit, with jurisdiction 
over the entire Deep South, had mandated racially 
proportional faculty assignments at all schools carrying 
out desegregation decrees, see Singleton v. lackson 
Municipal Separate School Dist., 419 F.2d 1211, 1218 (5th 
Cir. 1969)(en banc)(per curiam), rev'd and remanded on 
other grounds sub nom. Carter v. West Feliciana Parish 
School Bd., 396 U.S. 290 (1970)(per curiam).

Against this background, — and at the very same 
time that it was deciding whether to extend Title VII to 
public school teachers — Congress considered and 
ultimately enacted the Emergency School Aid Act 
(ESAA), Pub. L. 98-318, codified at 20 U.S.C. §§ 3191- 
3207 (Supp. V 1981)(repealed 1982), which provided local 
schools with federal funds for “eliminating or preventing 
minority group isolation and improving the quality of 
education of all children.” A stated purpose of the 
ESAA was “to meet the special needs incident to the



25

elimination of minority group segregation . . . among 
students and faculty in elementary and secondary 
schools,” id. § 703(a), and it was Congress' intention that 
such funding be available throughout the United States, 
without regard to whether segregation to be remedied 
was de jure or de facto, see § 703(a)-(b), New York City 
Bd. ofEduc. v. Harris, 444 U.S. 130 (19/9), and included 
faculty hiring as an authorized activity. § /07(a)(2). The 
Act defined an “integrated school” as either one with “a 
faculty and administrative staff with substantial 
representation from minority groups,” § 720(6) or, in 
school systems with more than 50% minority enrollment, 
one with:

a faculty which is representative of the minority

Eoup and nonminority group population of the 
rger community in which it is located, or, 

wherever, the Assistant Secretary [of HEW] 
determines that the local educational agency 
concerned is attempting to increase the 
proportions of minority group teachers, 
supervisors, and administrators in its employ, a 
faculty which is representative of the minority 
group and nonminority group faculty employed by 
the local educational agency.

§ 720(7).15 In sum, the same Congress that was

15In proposing the measure, President Nixon stated that 
desegregation not only would benefit the disadvantaged but would 
help “all children achieve the broad-based human understanding that 
increasingly is essential in today's world”), H.R. Rep. No. 92-756, 92d 
Cong., 1st Sess. 3 (1971), a sentiment echoed by the House 
Committee, see id. at 10. The next Congress amended the Act to 
make “absolutely clear” that “preventive activities are to be accorded 
the same importance as activities to eliminate or reduce segregation.” 
Cf. H.R. Rep. No. 95-1137, 95th Cong., 2d Sess. 93 (1978)(noting 
testimony of Assistant Secretary Tatel that ESAA compliance plans 
had resulted in 116 affirmative action plans leading to the hiring of 
300 teachers).



26

extending Title VII's coverage was providing funds for 
school districts, (1) irrespective of whether they had ever 
engaged in intentional discrimination, (2) on the express 
condition that they make race-conscious hiring and 
assignment decisions, (3) in order to confer an 
educational benefit on students — the precise purpose 
that the majority below confidently held that Congress 
could not have intended and, in fact, was seeking to 
outlaw.

The Third Circuit opinion in this case thus fails as 
a matter of “straightforward statutory interpretation,” 
judged on the very criteria that it announced for itself. 
There is no support in the legislative history of the Civil 
Rights Act for confining employment remedies to 
remedying the effects of employment discrimination only; 
there is abundant indication of a Congressional intention 
not discussed in Weber (a case involving a private sector 
employer's effort to remedy racial imbalance in its 
workforce) — that of increasing minority employment for 
the non-employment benefit of others (both to assure fair 
treatment and enhance legitimacy), and a specific record 
of requiring by law that federal fund recipients make 
race-conscious faculty employment decisions for the 
benefit of students. Only in light of this failure of 
statutory interpretation with respect to the very subject 
that it had in view — public school faculty employment
— does the full danger of the lower court's sweeping 
ruling, that all nonremedial affirmative action for any 
reason by any employer in any employment decision, 
come into view.

Even if it were less convincing evidence of 
Congress’ intention, however, the substantial and complex 
record of congressional activity with respect to the area 
of public school faculty employment would be a powerful 
argument against the unrestrained approach taken by the 
courts below. Issues involving law enforcement, the 
delivery of social services, the administration of justice 
and corrections — not to mention all private employment
— are no less sensitive or complex than those implicated



27

here, and it was plain error to seek to resolve them all in 
a single case arising from a single action of a local school 
board.

As a matter of statutory construction, the narrow 
focus of the court below on the status of diversity as a 
“recognized Title VII purpose,” combing only the 
legislative history of that Act, the ruling disrespects the 
requirement that courts construe statutes so as to 
harmonize their purposes with other important policies, 
both explicit and implicit and in light of the federal 
structure. See, e.g., Pittsburgh & L.E.R. Co. v. Railway 
Labor Executives’ Ass’n, 491 U.S. 490, 511 (1989)(policies 
of Railway Labor Act and Interstate Commerce Act); 
Boys Market v. Retail Clerks Union, 398 U.S. 235 
(1970)(relying on national policy favoring arbitration to 
craft exemption from absolute bar of Norris-LaGuardia 
Act). When important policies potentially conflict, 
accommodation may not come at the wholesale level, but 
rather at the fact-specific level, in the particular case. See 
Hostetter v. Bon Voyage Idlewild Liquor Corp., 377 U.S. 
324, 332 (1964)(rather than resolving conflict between 
Commerce Clause and Twenty-First Amendment at 
general level, “each must be considered in light of the 
other and in the context of the issues and interests at 
stake in any concrete case”). These principles do not 
change because the important government policy is not 
embodied in a single statute, see Boys Market.

III. THE LOWER COURTS DID NOT APPLY
THE CORRECT LEGAL STANDARD IN 
D E T E R M I N I N G  W H E T H E R  
RESPONDENT’S RIGHTS WERE 
"UNNECESSARILY TRAMMELED"

It is clear from the decisions of the courts below 
that their conclusion that Respondent’s interests were 
"unnecessarily trammeled" by the challenged employment 
decision, was inseparable from their erroneous ruling that 
Petitioner’s stated objectives were illegitimate per se 
under Title VII. Under this Court’s jurisprudence, the



28

"unnecessary trammeling" inquiry proceeds in two steps. 
First, a court must ascertain whether the employment 
decision was in fact made to advance a legitimate 
diversity interest, see Johnson, 480 U.S. at 266 
(analogizing reliance on bona fide affirmative action plan 
to "legitimate nondiscriminatory interest" that employer 
must advance in disparate treatment case).

The second stage should then entail inquiry into 
both the strength of an employer’s particular diversity 
interest — a school district with a history of racially 
isolated schools, for example, would have a particularly 
strong claim, as would one seeking to prevent reversion 
to an all-white department or job category16 — and the 
necessity of taking the particular action, in light of its 
effect on nonbeneficiaries.

In this case, whether laying off Taxman was the 
only means available to preserve diversity in the Business 
Education Department was explicitly not determined by 
the courts below, see supra p. 4, text at n.5; cf Amy 
Folsom Kett, Race-Based Faculty Hiring and Layoff 
Remedies in School Desegregation Cases, 104 HARV. L. 
R e v . 1917, 1934 (1991)(noting possibility of work­
sharing). Although the burden of a layoff is substantial, 
and more onerous than hiring or promotion measures, 
that does not mean a layoff automatically constitutes 
"unnecessary trammeling," especially here in light of the 
other factors affecting the reduction-in-force 
determination: seniority and qualifications (training and 
certification), and the use of race only where employees 
remain "tied" after consideration of these additional

16Of course, a school district that was still under court order to 
dismantle the vestiges of purposeful discrimination violative of the 
Fourteenth Amendment could take much stronger measures. See, 
e.g., Morgan v. Burke, 926 F.2d 86 (1st Cir. 1991)(upholding 
preferential layoff plan).



29

factors not usually taken into account.17 Under the 
Board’s affirmative action policy, race became a 
determinative factor only in that rare instance where no 
other education-related (Le., qualifications and 
experience) characteristic provided a basis for preferring 
one teacher over another.

Neither of the courts below engaged in the careful 
weighing of the interests and factors identified above, and 
which is an essential prerequisite to determining whether 
an employer’s action, even if taken for a legitimate 
purpose, "unnecessarily trammeled" the rights of third 
parties. The judgment below should therefore be vacated 
on this ground as well.

CONCLUSION

Federal courts are duty bound to pass only upon 
questions that emerge from concrete facts and are 
necessary to the disposition of the case. Because the 
lower courts here addressed questions that were neither 
necessary nor appropriate and because they decided those 
questions incorrectly, their determinations should be 
vacated and the matter remanded for resolution of the 
issues raised on a proper factual record.

The Board’s consistent practice where the diversity interest did 
not come into play was to toss a coin whenever there was a seniority 
tie rather than examine individual teachers’ qualifications. Thus the 
operation of the affirmative action policy in this case afforded a 
white teacher, such as Respondent, tied with another teacher as to 
seniority, an additional basis (qualifications) for retaining her job 
without depending upon the chance of a coin toss.



Respectfully submitted,

Elaine  R. Jones 
D irecto r-Counsel

Th e o d o r e  M. Sh a w ’ 
N or m a n  J. Chachkin  
Rachel  D. G odsil 
D a v id  T. G oldberg  
Cath er ine  Powell 
Pa u l  K. Sonn  
NAACP Legal  D efense  & 

Ed u c a tio n a l  Fu n d , In c . 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900 
’Counsel of Record

Ma r c  L. Fleischaker  
Co-Ch a ir  

Jack  W. Lo n d en  
Co-Ch a ir

Ba r ba r a  R. A rnw ine  
Thom as J. Hen d e r so n  
R ichard  T. Sey m o u r  
La w y er s' Com m ittee fo r  

Civil R ights U n d e r  Law  
1450 G Street N.W., Suite 
400
Washington, D.C. 20005 
(202) 662-8600

Counsel for Amici Curiae

Dated: August 25, 1997