The case before the court, Taxman v. Board of Education of Piscataway, New Jersey arises out of a disagreement of the implementation of an affirmative action policy created by the township's school board in 1975. The conflict presented here is over whether the policy was properly implemented in May of 1989 while the school board was deciding which teacher's employment to retain in the high school's business department.
Piscataway's affirmative action policy of 1975 "made a concentrated effort to try to attract minority personnel"1 in the school district. However, the school board's policy did not have any remedial purpose because it was not shown that minorities were underrepresented in the school system.
In May 1989, the school board had to terminate the employment of a teacher in the business department. Two teachers, Sharon Taxman and Debra Williams were of equal seniority and qualifications, the only difference between the two, apparently being that Williams was African-American. After deciding between Taxman and Williams, the school board decided they had a tie and used race as the deciding factor in choosing which teacher to retain. Activating their affirmative action policy, the school board terminated Taxman's employment. The school board justifies their actions on the basis that the business department is all Caucasian except for Williams, and contend that retaining Williams' employment would convey a message to the students that the school acknowledges the importance of diversity in teaching.
The United States Government expresses interest in the case of Taxman v. Board of Education of Township of Piscataway because of the debate it has created over affirmative action in layoff decisions by a public agency, and the importance of delineating proper situations in which to implement an affirmative action program.
Affirmative action was created to ensure nondiscriminatory practices in the workplace and to foster remedial action for past wrongdoings. It has been illustrated in the past that African-Americans and other minorities have not had the chance afforded to Caucasians to excel in occupational opportunities. It is in that tradition that The United States favors continuance of affirmative action, but has recognized a violation of proper ways to use it that will be further explained in our brief. Affirmative action was created in order to help minorities acquire employment opportunities never before granted to them and to aid in their promotion. This administration does not, however, favor its use in layoff decisions. The use of this plan in this type of employment decision clearly violates Title VII of the Civil Rights Act of 1964.
In outlining this argument, The United States intends to discuss three key points. First, this administration argues that the Board of Education of Piscataway, New Jersey violated Title VII of the Civil Rights Act of 1964 when it used race as the deciding factor in its layoff decision. The United States feels that the Board of Education of Piscataway's actions were in no way consistent with the mission of the Civil Rights Act of 1964 to end discrimination on the basis of race and to remedy prior acts of discrimination.
The second argument is that this action was in violation of the test the court adopted and still holds as precedent in United Steel Workers v. Weber, 443 U.S. 193, (1979). The test contains two prongs. The first is that the action taken by the employer must have a remedial purpose (in the case before us Piscataway evidently did not.) The second is that the action must not unnecessarily trammel the rights of the nonminority. The firing of Taxman did indeed trammel her rights because the school board's decision was not arrived at through guidelines or goals.
Finally, we will disprove the school board's argument that diversity is justified as a proper goal in the employment termination of the nonminority instructor, and to also show that diversity as a goal in layoff decisions have never been upheld by the court.
The United States first examines the statute itself under which Sharon Taxman claims her rights were violated. Title VII of the Civil Rights Act of 1964 was enacted to foster two goals: To end all acts of discrimination based on race in employment decisions and also to remedy prior acts of discrimination that have resulted in segregation and discrimination in this country's work force2. The United States contends, by a literal reading of this document, that the School Board's Affirmative Action Policy was not in accord with proper use of affirmative action as has been seen fit by the court over the years.
First, Title VII was enacted to end discrimination in the workplace. This provision forbids: "any employment decision including layoffs whatever based on race." As held in many cases over the years regarding affirmative action programs: "Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination."
3In this regard we bring your attention to Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). This case dealt with the collective bargaining agreement between the school board and the teachers' union where the policy was to layoff nonminority school teachers' first in order to eliminate the disparity of minority student to faculty ratio. This was not held to be viable under the Equal Protection clause of the 14th amendment because the last hired should be the first fired. The court reversed the decision of the district and appeals court holding that "a school board is not acting in accord with equal protection clause when it extends preferential protection against layoffs to some of its employees because of race or national origin."4 (The Equal Protection Clause of the Fourteenth Amendment parallels the purposes of Title VII in the spirit of forbidding all types of discrimination in the workplace.)
The court has also recognized that employment decisions based on race are not permissible in McDonald v. Santa Fe, Trail Transportation Company, 427 U.S. 273 (1976). In McDonald, two white employees were fired for misappropriating cargo but their accomplice, a black person was not. The white petitioners argued that they were unlawfully discriminated against and that the Transportation Company violated Title VII which prohibits the discharge of any individual because of such individual's race.
5In McDonald, the court held that discrimination based on race was not permissable. In the case before the court the final decision to dismiss Taxman was based solely on race and is therefore necessary to overturn.
The United States feels, for the reasoning in the cases above, that Title VII was violated by the School Board of Piscataway, New Jersey because it discriminated against Sharon Taxman when they dismissed her from employment because of her race.
The second goal of Title VII is to remedy prior discrimination or any consequences of it. The Supreme Court has upheld the implementation of affirmative action cases when the case has been shown to be remedial in hiring and promotional practices. We attract your attention to three cases: United Steelworkers v. Weber (1979), Johnson v. Transportation Agency, Santa Clara.(1987), and United States v. Paradise (1987).
In United Steelworkers v. Weber, 443, U.S. 193, (1979) the affirmative action plan used by Kaiser Aluminum & Chemical Corporation was upheld because it proved to be effective in breaking down patterns of discrimination in the plant and neighboring community, a purpose concordant with Title VII. The Kaiser plan also allowed equal chance for both African- Americans and Caucasians to participate in the training program. The Board of Education of Piscataway Township's Affirmative Action Plan does not attempt to remedy prior segregation in the work force and has not proven any. Additionally, there was not equal probability given to both blacks and whites in its layoff decision.
In Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 646 (1987) the court upheld the use of a promotion based on minority status. The transportation agency's affirmative action program was utilized in reaction to an obvious underrepresentation of women in the dispatch occupation (the school board has not proven underrepresentation of blacks in the teaching field of Piscataway.) In this case, the majority opinion followed Weber. The Agency proved that women were significantly "underrepresented in the Skilled Craft job category, since none of the 238 positions was occupied by a woman..."6
Comparing Johnson to the case before the court, notice that the Agency's action was properly used: all applicants had a chance to get the promotion and those that did not still held on to their jobs whereas in this case, Williams singly got the benefits of retaining her job, while Taxman lost her job and did not receive any chance for future benefits.
In United States v. Paradise, 480 U.S. 149 (1987) the Supreme Court upheld the affirmative action program used by Alabama Department of Public Safety because it was designed to remedy extreme acts of discrimination. The court found that the Alabama Department of Public Safety had "systematically excluded black troopers from promotion". The court ordered that the state troopers had to promote on a one (white) for one (black) basis until the ratio of black officers was not dissimilar from that in the related work force. As a result of the programs implementation, 8 whites and 8 blacks were promoted to corporal. The program was approved in addition to being remedial because the program was flexible and would end if there weren't any qualified black troops. Also, the ratio was narrowly tailored to remedy the effects of discrimination and that it did not burden the majority because the order was temporary and does not necessarily have to be used again.7
When Paradise is compared to Taxman, note that Paradise used employment considerations based on race due to serious past discrimination, whereas, once again, none has been proven in Piscataway Township. The program used by Paradise had a set of conditions and guidelines, where the decision in Piscataway was "governed by the board's whim".
8These reasons stated above are why the Board of Education of the Township of Piscataway, New Jersey conducted their affirmative action plan in conflict with Title VII.
As a result of United Steelworkers v. Weber, 443 U.S. 193, (1979) the court has adopted a two part test to measure if an affirmative action plan is satisfactory. The United States accepts the Weber test and now applies it to the case before the court.
The Weber test arose from a case where there was purported wrongful discrimination in a training program designed to eliminate a racial imbalance in skilled craft positions at a steel working plant. The plant thought that the proportion of blacks holding skilled craft positions should resemble that of the work force in the surrounding community. In accordance with that goal, the Kaiser plant reserved 50% of its training class for blacks and 50% for whites thus giving both races equal chance of entering the training program. This plan was shown to be designed to remedy past discrimination for blacks, not because of the fact of discrimination at the plant, but because of social factors that prevented their advancement.
In Taxman v. Piscataway, Sharon Taxman was dismissed on the basis of her skin color even though the school board had not shown a history of a racially segregated employee population. Employment decisions based on race are only justifiable if they are remedial. This action is clearly non-remedial and in conflict with the findings of Weber.
The Kaiser plan also gave an equivalent amount of openings to whites as it did to blacks. Neither race had a better chance of gaining entry into the training program. Thus, the Kaiser plan did not unnecessarily trammel the rights of the nonminority. However, in the case before the court, race was used as a deciding factor in a layoff decision. The United States feels that when affirmative action is utilized as a determining factor in layoffs, it can tend to trammel the rights of an individual.
Kaiser's plan was also in congruence with Title VII because the action "was temporary and not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance"9. This reasoning was unlike Piscataway's, who tried to maintain "diversity" by firing one of its employees and did not prove that it was correcting a racial imbalance in the work force.
The Weber Test was used to uphold an affirmative action case in Johnson v. Transportation Agency, Santa Clara, 480 U.S. 616 (1986). Holding true under the first prong, "Given the obvious imbalance in the Skilled Craft category, and given the Agency's commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency to determine that it was appropriate to consider as one factor the sex of...."10 Also held legitimate under the second prong, the court stated "No persons are excluded from consideration, all are able...while the petitioner was denied a promotion, he retained his employment with the Agency...and remained eligible for other promotions."11 Finally, the court approved of the plan's goals to achieve an integrated work force and not to maintain one.
Thus, the Board of Education of Piscataway Township has failed to satisfy either prong of the Weber test. There has been no proof of remedial action by the school board, and also the firing of an employee using race as a decisive factor trammeled the rights of Sharon Taxman.
The School Board's justification for acting on their affirmative action plan was their desire for a diverse faculty. Theodore H. Kruse, the president of the school board explained that "it was valuable for the students to see in the various employment roles a wide range of background".12 He also went on to state that "I believe that by retaining Mrs. Williams it was sending a very clear message...our staff should be culturally diverse...there is a distinct advantage to students."13Although well meaning in nature, the goal of diversity has never been supported by the courts. The idea that minority students respond better to a role-model type teacher, and that all students benefit from a diverse faculty was rejected in Wygant v. Jackson. "Role model theory does not bear relationship with harm caused by prior discriminatory hiring practices."
14"Promoting racial diversity for education's sake is not an objective of Title VII; no positive legislative history supported such a goal and Congress did not address such goal in amending Title VII."15
Diversity, when weighed with job loss, is the lesser of the two in matters of importance. "While hiring goals impose diffuse burden...layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in disruption of their lives."16 The goal of diversity is better attained in hiring/acceptance practices, not firing practices. Recall in Regents of University of California v. Bakke 438, U.S. 265 (1978) that a "program focused solely on ethnic diversity would hinder rather then further attainment of genuine diversity."17 The court prefers diversity attained by many other possible non-racial factors of what the individual can bring to the employer or institution. (Intelligence for example.)
Finally, The United States feels that hiring and promotional practices to use affirmative action policies are permissible. However, for the reasons stated above, gaining diversity through firing is not acceptable and should never be considered.
The United States suggests, that the as a result of the case, the two teachers should be again placed on equal grounds. We appreciate the fact that indeed, the school board did review many characteristics of the instructors teaching styles before choosing to dismiss Taxman. The problem is that the school board should have held to those only but they did not. Once the board discovered the teachers to be of equal ability they gave Sharon Taxman unfair odds by choosing to utilize affirmative action to dismiss her over Mrs. Williams. Debra Williams had 100% of keeping her job but Sharon Taxman only had 0%. A method using random chance such as a lottery would have been a better way to base the decision.
The United States feels that the court should rule in favor of Sharon Taxman because of the facts that The Board of Education of Piscataway, New Jersey has not acted in accord with the goals of Title VII, failed to satisfy either prong of the Weber test in choosing to activate an affirmative action program and that diversity is not a valid reason to pursue a layoff decision. As a result, The United States feels that the school board should choose between the two teachers using a random method such as a coin toss or lottery in deciding which teacher to retain, and in the future use affirmative action only that conforms to Title VII specifications.