Constitutional Opinions/Clinton Justice in New Jersey
Eastland, Terry
CONSTITUTIONAL OPINIONS Clinton Justice in New Jersey by Terry Eastland ill Clinton's claim to be a New B Democrat has been contradicted most recently by the decision of his assistant attorney...
...As Justice now sees the law, diversity may govern all the way down to the smallest employment unit...
...DISCUSS how current policies will affect taxpayers...
...Plain as day, but left unsaid in the brief, is that for Deval Patrick individual rights—whether for whites or blacks or any persons—must yield to diversity as defined by government authorities, whether locally or, as is likely to be the case, in Washington...
...LEARN the secrets of success from pros in the local, state, and national taxpayer movement...
...Justice's switching sides—and dumping Sharon Taxman—is only slightly less interesting than its legal argument...
...It would be unethical, a gross violation of the attorney-client privilege, for a private lawyer to win a judgment for his client and then, on appeal, abandon his client and go work for the other party...
...I will attend National Taxpayers Conference '94 NAME ADDRESS Registration only $49 per person CLIP AND MAIL TO National Taxpayers Conference 325 Pennsylvania Avenue, SE Washington, DC 20003 CITY STATE ZIP L PHONE The American Spectator November 1994 65...
...And note that an employer could be guided by "diversity" not just in how he regards his staff as a whole...
...In fact, the administration is using Taxman to further its dangerous vision of what the law should be—in which "diversity" triumphs over individual rights...
...The choice was between Sharon Taxman, who is white, and Debra Williams, who is black...
...Or, mutatis mutandis, in favor of an Hispanic or an Asian or some other teacher...
...Twice it notes that the Bush Justice Department sued the school board—as though this case were entirely handled by its predecessor...
...Term Limits will assemble some of the nation's leading public policy figures and citizen activists for National Taxpayers Conference '94...
...No lawyer I talked to, nor any consulted in news accounts of the case, could recall another civil case in which, short of a change in the law, the Justice Department as a plaintiff won a judgment in district court only to refuse to defend it—indeed to argue against it—on appeal...
...Confirmed speakers include: Senator Phil Gramm, columnist Robert Novak, Mayor Bret Schundler, N.J...
...Unless, of course, she had played the role of an activist lower-court judge, willing to weave together strands of opinions in the case law in order to promulgate Patrick-approved doctrine that has yet to be embraced by the Supreme Court...
...In a letter to Taxman, the board explained its decision in terms of its commitment to "affirmative action...
...The situation in Taxman v. Piscataway (as the case is now called) is not precisely the same...
...Find out how they do it...
...Accompanying its brief is a summary of the department's efforts in the case...
...But even if narrow, it is not unimportant...
...That year, California will have on its ballot a proposition that would require the state and its subdivisions to make all decisions entirely without regard to race...
...T axman saw the decision for what it was—a naked racial preference lacking the kind of justifications courts have previously demanded...
...Justice's amicus brief positively invites judicial activism by the Third Circuit...
...A race-neutral method of deciding whether to lay off Taxman or Williams might have resulted in an all-white business-ed teaching staff, because Williams was the only black on the staff...
...It is a disingenuous document...
...And no prior political experience is necessary...
...Christine Whitman, Rep...
...Taxman is a case not about the entire teaching staff employed by Piscataway but about a small subunit—the ten-person business-ed teaching staff...
...The relevant facts in the case are"almost entirely undisputed," as Judge Barry remarked in her opinion...
...Seizing on the court's statement in Weber that it is not "today defin[ing] in detail the line of demarcation between permissible and impermissible affirmative action plans," the brief pulls from various opinions in a series of Supreme Court affirmative action cases, including Weber and Johnson, in order to expand the definition of permissible affirmative action...
...Potentially, the same interest in faculty diversity could tip the balance in favor of a white teacher if the composition of a department would otherwise have included no white teacher...
...It is hard to see how she could have ruled any other way...
...The case dates to 1989 when, for budgetary reasons, the Piscataway Board of Education decided to lay off a business teacher at Piscataway High School...
...On September 1, 1980, the board hired both Sharon Taxman and Debra Williams as business education teachers...
...CI Here comes the next TAX REVOLT...
...Court of Appeals for the Third Circuit...
...Taxman complained to the federal Equal Employment Opportunity Commission, and in 1992 the Justice Department sued the board on her behalf...
...You too can learn how to take back your government by joining us at National Taxpayers Conference '94 on November 18-20,1994...
...or even (if there is a relevant change in law) to change course in a case it has brought...
...Citizens like you are seizing power from career politicians...
...Not even the Reagan Justice Department, often accused by civil rights activists of "politicizing" the law, tried anything so brazen...
...Democratic Leadership Council president Al From has not yet taken a stand, preferring, as one aide tolds me, to speak in "broad brushstrokes...
...Still, Sharon Taxman herself intervened in the case as a plaintiff, adding a complaint under state law...
...Taxman was as close to being a client of the Justice Department as you can come...
...Though the case would not have arisen if not for Taxman's complaint, and though Justice sought relief for her specifically, the department had represented not Taxman but the United States in the district court (under the Civil Rights Act of 1964...
...Justice's argument would allow a public or private employer to use "diversity" criteria in all employment decisions—hiring, promoting, and laying off...
...Nor the right of an administration to switch sides in a case handled entirely by its predecessor...
...But, knowing the race of each, the board invoked its affirmative action program to break the tie...
...Find out how they did it...
...At some point, Bill Clinton, once a New Democrat, will have to advise the public whether he agrees with his Justice Department in Taxman—and whether he seeks an America in which individual rights yield to notions of diversity, and discrimination is the constant result...
...You'll also hear from successful activists like Don McIntire who fought back a sales tax in Oregon , Joel Fox, president of Howard Jarvis Taxpayers Association and defender of California's landmark Prop 13, David Stanley, whose 45,000-member Iowans for Tax Relief has repeatedly smashed attempts to raise state taxes, and Doug Bruce, who gave citizens the right to vote on tax increases...
...In a footnote, Justice observes that diversity doesn't favor one race over another but must be viewed "in the circumstances...
...Find out how they did it...
...The Clinton Justice Department could have withdrawn earliThe American Spectator November 1994 63 er, before it triumphed in court, and thus before Sharon Taxman had good reason to think the worst of it...
...Don't miss it...
...Dick Armey, Hon...
...In the past, such "seniority ties" had always been broken by drawing lots...
...But the Taxman case fits none of these categories...
...past July, Justice asked the court for additional time so that it could prepare an amicus brief—supporting Piscataway...
...Piscataway's affirmative action program had neither justification...
...Under this program, voluntarily adopted in 1975, when persons appear equally qualified, those "meeting the criteria of the affirmative action program"—i.e., blacks and other government-designated minorities—will be given the nod...
...And given that diversity, unlike past discrimination, is not, as Justice's brief admits, a "backward-looking" justification for a race preference but a "forward-looking" one, Justice is advocating a view of Title VII (and the Constitution) that would mean affirmative action is to be forever—and not temporarily, as its old advocates used to argue—with us...
...CONSTITUTIONAL OPINIONS Clinton Justice in New Jersey by Terry Eastland ill Clinton's claim to be a New B Democrat has been contradicted most recently by the decision of his assistant attorney general for civil rights, Deval Patrick, to change the government's position in a New Jersey affirmative-action case...
...A small band of volunteers added a landmark Taxpayers' Bill of Rights to the Colorado Constitution...
...In early September, with the filing of that brief, Justice completed an unprecedented about-face that could prove, as New Democrats well understand, a major political miscalculation...
...As it was, laying off Taxman left bus-ed without a Jewish teacher, an outcome of no "diversity" concern to Piscataway or Justice...
...It was not adopted to remedy past discrimination: until Taxman complained, no one had ever accused the school system of discrimination...
...If this becomes the settled law of Title VII and the Constitution (which, as is clear from its brief, Justice similarly misreads), the implications are momentous...
...As Michael Carvin, who served in the Civil Rights Division during Reagan's first term, points out, not once did the Reagan Justice Department refuse to defend a civil rights judgment it had won...
...The board chose to lay off Taxman, purely for reasons of "diversity"—which is to say, race...
...MEET the leading nation's most successful citizen activists from around the country...
...What's the biggest political action committee in Iowa politics...
...And make no mistake: it was the Clinton Justice Department that won the Taxman case, despite its attempts to muddy the issue...
...The school board appealed the decision to the U.S...
...Aware of a budding political problem, the Clinton administration now represents Taxman as a "narrow case...
...Wrong...
...Did you say the teacher's union...
...YES...
...In sum, affirmative SARKES TARZIAN INC Sarkes Tarzian Television Sarkes Tarzian Radio Broadcasters Making a Difference 64 The American Spectator November 1994 action—i.e., a racial preference—can lawfully be premised on the idea of ensuring diversity...
...On November 18-20, 1994 (Friday, 8:30 am—Sunday, 3:00 pm), National Taxpayers Union (NTU) and NTU Foundation, Citizens Against Government Waste, American Tax Reduction Movement, The Seniors Coalition, and U.S...
...But as this case draws more publicity, From and other New Democrats will have to join Peretz and Shanker in public opposition to the radical arguments Patrick is advancing—or else face accusations that the New Democrat movement is little more than an electoral charade...
...The summary omits the fact that the Clinton Justice Department continued the case through the critical stages in the second half of 1993, even winning $123,240.57 in back pay for Taxman...
...T here's more...
...Tim Penny and many more...
...Her attorney, Stephen E. Klausner, and the government workedclosely in preparing the case and shaping the ultimately successful argument...
...National Taxpayers Conference '94 will give you the information and advice you need to take power in your state...
...With the answer coming due this Terry Eastland is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center...
...It's Taxpayers United, which has the big spenders on the run...
...The Taxman case is bound to get more notice, especially if it goes to the Supreme Court for decision in 1996...
...The New Republic's Martin Peretz and Albert Shanker of the American Federation of Teachers have already denounced the move...
...When in 1989 the board decided to reduce the number of business-ed teachers, Taxman and Williams, who were deemed equally qualified, had the least seniority of the ten-person staff...
...Make no mistake—National Taxpayers Conference '94 will be THE SINGLE BIGGEST pro-taxpayer conference this year...
...A handful of Oregon taxpayers took on the legislature, the business community, and the entire state establishment and won...
...Lamar Alexander, Rep...
...Had race not been considered," Justice concedes in its brief, "Williams and Taxman had an equal chance of being laid off...
...A stunning new tax revolt—still largely unnoticed by the national media—is sweeping the nation...
...In September 1993, federal district judge Maryanne Trump Barry ruled that Piscataway had indeed discriminated against Taxman on the basis of race, in violation of Title VII of the Civil Rights Act of 1964...
...As it goes up to the Third Circuit, Taxman is not a quota case but one that squarely presents the issue of the right of an individual to be judged by govern-ment without regard to race...
...Under the leading Title VII cases—United Steelworkers of America v. Weber (1979) and Johnson v. Santa Clara (1986)—racial preferences pass legal muster if they are designed to remedy past discrimination or to correct "a manifest imbalance" in the workforce...
...Nor was the program undertaken to correct for "underrepresentation" of minorities: the most recent analysis of "underutilization" in the school system showed that blacks comprise 5.8 percent of the available labor market in Middlesex County, and 9.5 percent of the educational professionals employed by the board...
...N o one disputes the right of an administration to change in a lawful manner enforcement policies inherited from a predecessor...
...It is in the light of Weber and Johnson that Piscataway's affirmative action program was found invalid by Judge Barry...
...Judge Barry had it exactly right in her opinion: Taxman, like Williams, had "a legitimate entitlement to have the layoff decision made randomly rather than on the basis of race...
Vol. 27 • November 1994 • No. 11
