Supreme Court Will Hear Affirmative-Action Case

Before adjourning for the summer, the Supreme Court announced Friday that it will reconsider the legality of most affirmative action in all workplaces.

In recent years, the conservative court has strictly limited the government’s authority to use race as a factor in its decision making.

Until now, however, private employers have had broad leeway to use race or gender as factors in hiring, promoting or laying off workers.

But an unusual case from New Jersey has given the justices a chance to reconsider that open-ended approach, and on Friday they took it.

In 1989, the Piscataway Township school board was faced with the need to lay off one of its two business teachers. Both started work the same day and therefore were deemed equally qualified.

Their only obvious difference was their race. The board decided to retain the black teacher and dismiss the white teacher.

The school system was not attempting to compensate for past discrimination, and its staff at the time reflected the racial makeup of the community. Nonetheless, the board president said the interest in “diversity” justified retaining the black teacher.

Sharon Taxman, the white teacher, sued under the terms of the Civil Rights Act of 1964, which makes it illegal for an employer to “refuse to hire or discharge” any person “because of such individual’s race, color, religion, sex or national origin.”

What makes the case unusual is the board’s admission that race was the deciding factor between two equally qualified workers.

U.S. District Judge Maryanne Trump Barry in Newark ruled that the white teacher was a victim of race discrimination and awarded her $144,000 in damages.

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The Clinton administration joined the case on the side of the school board but was rebuffed by the U.S. Court of Appeals in Philadelphia.

In an 8-4 opinion, its judges said the “clear antidiscrimination mandate” of the 1964 law protects whites as well as blacks.

An “affirmative-action plan, even one with a laudable purpose, cannot pass muster,” wrote Judge Carol Mannsmann of Pittsburgh, unless an employer is making up for past discrimination or a clear “underrepresentation” of minorities on its staff.

Lawyers for the school board then appealed to the Supreme Court. They asked a basic question: Does the Civil Rights Act of 1964 still “permit employers to take race into account for purposes other than remedying past discrimination?”

The Clinton administration’s legal policy on race issues has been confused and shifting, and the justices have seemed to pay it no heed.

Three weeks ago, the administration filed a brief saying the lower court ruling was “seriously flawed” but nonetheless should be allowed to stand.

The case is “an inappropriate vehicle” for deciding a potentially far-reaching issue, the administration said.

Ignoring that advice, the high court granted the appeal in Piscataway vs. Taxman, 96-679, and said it would rule on the question raised by the school board.

This may signal that the court’s five-member conservative majority wants to rein in affirmative action in the workplace.

Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas have voted as a bloc to prohibit the use of race as a “predominant factor” in government decisions, whether in handing out contracts, awarding college scholarships or drawing electoral district lines.

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But those rulings were interpretations of the Constitution and its guarantee of the “equal protection of the laws.”

The new case, to be heard in the fall, could have an even broader sweep because the Civil Rights Act of 1964 applies to all employers, private as well as public.

But O’Connor’s stand is uncertain. She has stopped short of closing the door to affirmative action.

In 1987, she cast a decisive vote in favor of a Santa Clara County affirmative-action order that promoted the first woman to the top position in the road maintenance unit.