Affirmative Action to Get Ultimate Test

By Murray, Frank J. | The Washington Times (Washington, DC), June 28, 1997 | Go to article overview

Affirmative Action to Get Ultimate Test


Murray, Frank J., The Washington Times (Washington, DC)


The Supreme Court rejected a plea from the Clinton administration yesterday and docketed for fall argument an affirmative-action case that analysts say could wipe out workplace race preferences nationwide.

At issue is whether the Piscataway, N.J., school board violated the Constitution by laying off Sharon Taxman, who is white, so an equally qualified black teacher, Debra Williams, could continue teaching in a high school business education department.

Miss Taxman's lawyer, Stephen E. Klausner, said the court could confine itself to questions of race considerations in layoffs, but opponents fear the court will reach broader issues of the kind raised in the challenge to California's Proposition 209.

"The facts of my case are pristine pure. There's really no dispute and no claim of prior injustice, but I'm actually quite surprised they didn't wait for the 30-ton gorilla coming across from California," he said yesterday.

Courts say administrators should have flipped a coin since the women were equally qualified and identical in seniority.

A district judge ruled the school board wrong in a verdict upheld by a three-judge panel of the 3rd U.S. Circuit Court of Appeals that was sustained in August by an 8-4 vote of the full appeals court.

The high court, increasingly skeptical about all racial affirmative action, probably won't decide until next spring the case that became a symbolic focal point for congressional Republicans opposed to affirmative action.

"I assume by taking the case, particularly after the Justice Department asked them not to take it, that they are going to uphold the 3rd Circuit and probably put a big hole in whatever's left of affirmative action," said D.C. lawyer Lawrence Z. Lorber, who defends affirmative action in the case for the nation's school boards.

Miss Taxman has long since been rehired with retroactive seniority, and the case might be moot except that she was awarded $10,000 in compensatory damages, $123,240.57 in back pay and $10,774.05 for insurance.

The case focuses on broad race-preference policies, based on statistical or historical foundations, as opposed to correcting individual instances of racial discrimination. Most occur under a federal executive order that governs 225,000 contractors or Title VII of the 1964 Civil Rights Act.

"This is the granddaddy of affirmative action," said Mr. Lorber who worked on executive order issues in the Ford administration and now represents the National School Boards Association, American Association of School Administrators and an organization of public personnel managers. …

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