Constitutional Opinions: They Went Piscataway
Eastland, Terry
CONSTITUTIONAL OPINIONS by Terry Eastland They Went Piscataway On January 21, the Supreme Court asked Solicitor General Walter Dellinger to express the government's views on whether it should...
...the Court uses the solicitor almost as an extra, very senior law clerk...
...the Court doesn't act that way...
...But the call in this case (as well as all others) belongs to the president, and in this case the point is not merely theoretical...
...If you prefer that your name not be rented please check here...
...More than a few critics noted that, in switching sides, the administration's lawyers would wind up opposing a client they had earlier represented in the same matter—an ethical no-no in most cases...
...Indeed, one judge — a Clinton appointee—later remarked that the department's flip-flop in the case was "somewhat unseemly...
...Whether Clinton nominates someone who essentially agrees with Patrick on Title VII should interest Senator Hatch, not to mention Senator Lieberman, the Senate's most prominent New Democrat MOVING...
...The Piscataway school board did not justify its action in remedial terms —there was no history of the board's discriminating against blacks...
...The question is whether the administration will stay the course Patrick (who left in January) began nearly three years ago...
...Nor could it claim to be trying to overcome racial imbalance, for there was none...
...Shortly before the mid-term elections, George Stephanopoulos acknowledged to a group of reporters that Patrick's handling of Taxman was not, all in all, one of the administration's greatest moments...
...W ere it only Walter Dellinger's call, he probably would take a different view of Title VII, perhaps even the one the department advanced in the case before Patrick arrived...
...That is, [if] there are other conditions in which ...there were only one white teacher on the faculty in a certain area, and there were two teachers [who] were equally qualified, and the school board...decided to keep the white teacher also to preserve racial diversity...
...As Jeffrey Rosen of the New Republic reported, Dellinger—then the head of the Office of Legal Counsel and now the one who must brief the Court on whether it should take the case—disagreed with Patrick...
...The government's Title VII responsibility explains why, when people like Barbara Taxman have a justified complaint, it's often the government that sues to enforce the statute...
...That would please New Democrats at the Democratic Leadership Council, which sharply criticized Patrick's handling of Taxman in a 1995 memo...
...Name: (Please Print) Address: City: State: Zip: Date of change: L VCAFRM The American Spectator April 9 9 7 65...
...Court of Appeals for the Third Circuit in Piscataway Board ofEducation v. Taxman...
...At trial, the pre-Patrick civil rights division argued against this extension of the legal basis for preferential treatment, and Judge Mary Trump Barry agreed...
...The board kept Williams and let Taxman go...
...No need to step back into that mud, not before the election...
...In this particular case—given the department's past involvement— it would be astonishing...
...I Please write your new address in the space provided...
...Though unremarked in the press, the administration's absence was notable, inasmuch as the Clinton Justice Department had previously filed briefs urging the Court to take other high-profile cases in which the lower courts had ruled against preferential treatment...
...And just like that, the explosive, racially tinged case that many administration staffers hoped had gone away came back to life...
...Congress passed the Civil Rights Act in the first place...
...Taxman, however, is not a case about the use of racial preferences in these limited circumstances...
...In cases of "equal qualification," the plan authorized the board to pick the person "meeting the criteria of the affirmative action program" — i.e., being black, Hispanic, Asian-American, or Native-American...
...As one former Clinton aide recently told me, "It was one thing to mend affirmative action, but quite another thing to extend it...
...In doing so, however, the Court limited their use to instances in which there was a "manifest imbalance" in "traditionally segregated job categories" and only when they did not "unnecessarily trammel" the rights of non-minorities...
...it ought to take some interest in what the courts and the executive branch have done, and are trying to do, to that law...
...the percentage of blacks teaching in the high school exceeded that of blacks in the county...
...N ow the Court has invited the solicitor general to express the government's views, and he is likely to reply this spring...
...Amen ator Subscriber Service P.O...
...And the request is not unusual: Two or three dozen times a year, the Court asks the solicitor general for his views on whether to grant review in a case in which the government is not a party...
...Title VII, as written and originally understood, prohibits an employer from discriminating against anyone on the basis of race...
...In doing so, Patrick advanced a view of Title VII that would significantly expand the legal basis for preferential affirmative action...
...A flip-flop that backfired on the Clinton administration...
...2. Attach the mailing label from your most recent issue...
...But Taxman complained to the Equal Employment Opportunity Commission (EEOC), charging discrimination in violation of Title VII of the Civil Rights Act of 1964...
...Not only did it abandon Taxman, but it asked to re-enter the case as a friend of the court—on behalf of the board...
...The federal government (specifically the EEOC and the Justice Department) enforces Title VII upon public and private employers, and so it obviously has a strong interest in how the courts interpret the statute...
...In August 1996, the Third Circuit affirmed the district court's judgment by an 8-4 vote, meaning Barbara Taxman won again...
...Box 655, Mt...
...Just be sure to allow six weeks for your change to take effect...
...In due course, the civil rights division TERRY EASTLAND is editor of Forbes Media-Critic on line and a fellow at the Ethics and Public Policy Center...
...CONSTITUTIONAL OPINIONS by Terry Eastland They Went Piscataway On January 21, the Supreme Court asked Solicitor General Walter Dellinger to express the government's views on whether it should review the decision by the U.S...
...The board narrowed its choice to two equally qualified teachers with the same seniority—Barbara Taxman, who is white, and Debra Williams, who is black...
...TAS Address Changes Made Easy...
...Last fall, when the school board asked the Supreme Court to take its case, the solicitor general did not file a brief urging the Court to do so...
...Patrick's switch was controversial even within the administration...
...So did a few White House officials...
...The Clinton Justice Department continued the case, prevailing in the trial court in early 1994...
...The court gave no reasons for its decision, but it is not implausible to think that the irregularity and unfairness (and, indeed, effrontery) that marked Patrick's maneuver was simply too much for the judges to bear, notwithstanding that they would normally want to know the views of the United States in a Title VII case...
...If the president does not change his mind—always possible —the Justice Department will file a brief disagreeing with the Third Circuit's judgment that "Title VII does [not allow] an employer to advance [racial diversity] through non-remedial discriminatory measures" and contending for the opposite—a Title VII that permits diversity-based discrimination...
...Outside the administration, Patrick's critics included Democrats like Martin Peretz, editor-in-chief of the New Republic, and Albert Shanker, the late head of the American Federation of Teachers...
...And so, for that matter, is the response of the Senate to that nominee...
...In changing sides, Patrick's brief supported the school board's diversity argument, but took it a step further—"Diversity" doesn't necessarily favor one race over another, but must be viewed "in the circumstances": "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...
...No doubt Stephanopoulos was relieved that Taxman did not make news again untilthe fall of 1995, when the Third Circuit declined to let Justice re-enter the case...
...thus it invoked its affirmative-action plan...
...O Renew my subscription for one year (twelve issues—$35) CI Payment enclosed O Bill me later O At various times TAS rents its subscriber list to other organizations...
...Morris, IL 61054-8084 1-800-524-3469 ATTACH ADDRESS LABEL HERE IMPORTANT: Allow six weeks for address change...
...As long as it runs both ways, or all ways," he told reporters, "I support that decision...
...Instead the school board sought to justify Taxman's firing in terms of racial "diversity": It wanted a faculty that would reflect the racial composition of the community and the student population, even in a teaching unit as small as the high school's business education department...
...In 1989, a local New Jersey board of education, adjusting to a decline in enrollment, decided to lay off one of the ten teachers in Piscataway High's business education department...
...64 April 1997 • The American Spectator In any event, the request is entirely reasonable...
...But when the board appealed the ruling to the Third Circuit that summer, the civil rights division, now led by Deval Patrick, suddenly withdrew as a party from the case...
...The board wanted to retain Williams, because otherwise no black teachers would be in the business-education unit...
...The Court isn't trying to embarrass the administration by forcing it to confront its sorry record in the case...
...It appeared that the administration was content to let the Court decide quite on its own whether it should take the Piscataway case...
...What will the Clinton Justice Department advise...
...of the Justice Department (under George Bush) sued the school board...
...In 1979 and 1987, the Supreme Court wrote this prohibition out of the law by permitting racial preferences...
...That's all there is to it...
...His recent book, Ending Affirmative Action: The Case for Colorblind Justice, is now out in paperback from Basic Books...
...In other words, under Title VII, faculty diversity may justify the discriminatory lay-off of any teacher whenever there are too many of that teacher's race, whatever that might be...
...In 1994, the president signed off on what Patrick did and then publicly defended it...
...As a broad matter, it would be very odd for the solicitor general to fail to state the government's view of the decision being appealed...
...While the administration's filing in Taxman is worth watching for, so is Clinton's choice to succeed Patrick...
...3. Return this form to us at the address listed below...
Vol. 30 • April 1997 • No. 4
