Academic journal article Law & Society Review

Integration, Diversity, and Affirmative Action

Academic journal article Law & Society Review

Integration, Diversity, and Affirmative Action

Article excerpt

Orlando Patterson, The Ordeal of Integration: Progress and Resentment in America's "Racial" Crisis. Washington: Civitas/Counterpoint, 1997. Pp. xi & 231. $24.00.

Bill Ong Hing, To Be an American: Cultural Pluralism and the Rhetoric of Assimilation. New York: New York University Press, 1997. Pp. xv+205. $29.95.

The revelation that the Black Leadership Forum, a coalition of liberal civil rights groups, played a major role in the settlement in November 1997 of Piscataway Township Board of Education v. Taxman, just weeks before arguments were scheduled to begin before the U.S. Supreme Court is one of the most visible signs that the retrenchment of affirmative action is reaching a crisis point. At issue in the Piscataway case was the policy of the local board of education to prefer minority teachers over nonminority teachers in layoff decisions in circumstances where the teachers had the same qualifications and seniority. The principaljustification the board of education provided for this policy is that it serves the goal of promoting racial diversity. The Third Circuit Court ruled in 1996 that this policy violated Title VII in the case of a laid-off white teacher, Sharon Taxman. The Supreme Court in June 1997 agreed to hear the appeal. The settlement involved a payment of $433,500 in back pay, damages, and legal fees to Taxman. Significantly, the Black Leadership Forum agreed to raise $308,500 of that amount in order to avoid the Supreme Court's making a ruling based on this case, even though the Forum was not a party in the case (New York Times, 23 Nov. 1997, p. 1).

Although the idea of a third party paying 70% of a settlement is practically unheard of, the motives behind the Black Leadership Forum's actions are not difficult to discern. The first stems from the perception that the school board's case in Piscataway was extremely weak. The fear of civil rights groups was not simply that the decision of the Third Circuit would be upheld but that the Supreme Court would provide a general ruling against affirmative action programs based on the goal of diversity except when employers admitted to prior discriminatory practices. If the Supreme Court is going to consider such a move and, in effect, overturn the legal standards set in Regents of the University of California v. Bakke (1978), it would be better for civil rights groups if the case before the Court is a very strong one. The second motive is to buy time. Putting off a major ruling on affirmative action by the Supreme Court is significant in two important respects. First of all, it allows for the possibility of a change in personnel on the Supreme Court. Chief Justice Rehnquist will retire by 1999, creating the possibility for President Clinton or his successor to appoint a new justice as well as a new Chief Justice who may be more favorably inclined to rule in favor of affirmative action. Second, time allows civil rights groups and others to rethink the theoretical basis for affirmative action. The point, as settlement of the Piscataway case makes vividly clear, is that the next little while is critical in an effort to reestablish in the mind of the public why social justice requires the presence of affirmative action programs for visible minorities, especially African Americans, in the contemporary United States and how those programs conform to prevailing standards of fairness.

What the settlement in Piscataway bought, in other words, is a narrow window of opportunity to influence in a positive way how the Supreme Court justices view affirmative action. For the purposes of this review, I shall understand affirmative action to mean the following: "An affirmative action program seeks to remedy the significant underrepresentation of members of certain racial, ethnic, or other groups through measures that take group membership or identity into account" (Brest & Oshige 1995:856). The broader intellectual context is that conservative critics of affirmative action have achieved significant legal and political victories. …

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