United States v. Bd Ed Piscataway

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

8-8-1996

United States v. Bd Ed Piscataway

Precedential or Non-Precedential:

Docket 94-5090,94-5112

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 94-5090

___________

UNITED STATES OF AMERICA

SHARON TAXMAN, Plaintiff-Intervenor

vs.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY,

Appellant

___________

No. 94-5112

___________

SHARON TAXMAN,

Appellant

v.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY

___________

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 92-cv-00340)

___________

Argued

November 29, 1995

Before: SLOVITER,* Chief Judge,

MANSMANN and MCKEE, Circuit Judges.

___________

Reargued In Banc

May 14, 1996

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,

ALITO, ROTH, LEWIS, McKEE and SAROKIN,**

Circuit Judges.

(Filed August 8, 1996)

* The Honorable William D. Hutchinson was a member of the

original panel which heard argument in this appeal on January 24,

1995. He died on October 8, 1995, before the appeal was

resolved; Chief Judge Sloviter was designated to serve in his

place on the reconstituted panel.

** Judge Sarokin heard argument but retired from office

prior to the issuance of the opinion.

David B. Rubin, Esquire (ARGUED)

44 Bridge Street

P.O. Box 4579

Metuchen, NJ 08840

COUNSEL FOR BOARD OF EDUCATION

OF THE TOWNSHIP OF PISCATAWAY

Stephen E. Klausner, Esquire (ARGUED)

Klausner, Hunter, Cige & Seid

63 E. High Street

P.O. Box 1012

Somerville, NJ 08876

COUNSEL FOR SHARON TAXMAN

___________

OPINION OF THE COURT

__________

MANSMANN, Circuit Judge.

In this Title VII matter, we must determine whether the

Board of Education of the Township of Piscataway violated that

statute when it made race a factor in selecting which of two

equally qualified employees to lay off. Specifically, we must

decide whether Title VII permits an employer with a racially

balanced work force to grant a non-remedial racial preference in

order to promote "racial diversity".

It is clear that the language of Title VII is violated

when an employer makes an employment decision based upon an

employee's race. The Supreme Court determined in United

Steelworkers v. Weber, 443 U.S. 193 (1979), however, that Title

VII's prohibition against racial discrimination is not violated

by affirmative action plans which first, "have purposes that

mirror those of the statute" and second, do not "unnecessarily

trammel the interests of the [non-minority] employees," id. at

208.

We hold that Piscataway's affirmative action policy is

unlawful because it fails to satisfy either prong of Weber.

Given the clear antidiscrimination mandate of Title VII, a non-

remedial affirmative action plan, even one with a laudable

purpose, cannot pass muster. We will affirm the district court's

grant of summary judgment to Sharon Taxman.

I.

In 1975, the Board of Education of the Township of

Piscataway, New Jersey, developed an affirmative action policy

applicable to employment decisions. The Board's Affirmative

Action Program, a 52-page document, was originally adopted in

response to a regulation promulgated by the New Jersey State

Board of Education. That regulation directed local school boards

to adopt "affirmative action programs," N.J. Admin. Code Tit. 6 §

6:4-1.3(b), to address employment as well as school and classroom

practices and to ensure equal opportunity to all persons

regardless of race, color, creed, religion, sex or national

origin. N.J. Admin. Code Tit. 6 §§ 6:4-1.5, 6:4-1.6(a). In 1983

the Board also adopted a one page "Policy", entitled "Affirmative

Action - Employment Practices." It is not clear from the record

whether the "Policy" superseded or simply added to the "Program,"

nor does it matter for purposes of this appeal.

The 1975 document states that the purpose of the

Program is "to provide equal educational opportunity for students

and equal employment opportunity for employees and prospective

employees," and "to make a concentrated effort to attract . . .

minority personnel for all positions so that their qualifications

can be evaluated along with other candidates." The 1983 document

states that its purpose is to "ensure[] equal employment

opportunity . . . and prohibit[] discrimination in employment

because of [,inter alia,] race. . . ."

The operative language regarding the means by which

affirmative-action goals are to be furthered is identical in the

two documents. "In all cases, the most qualified candidate will

be recommended for appointment. However, when candidates appear

to be of equal qualification, candidates meeting the criteria of

the affirmative action program will be recommended." The phrase

"candidates meeting the criteria of the affirmative action

program" refers to members of racial, national origin or gender

groups identified as minorities for statistical reporting

purposes by the New Jersey State Department of Education,

including Blacks. The 1983 document also clarifies that the

affirmative action program applies to "every aspect of employment

including . . . layoffs . . . ."

The Board's affirmative action policy did not have "any

remedial purpose"; it was not adopted "with the intention of

remedying the results of any prior discrimination or identified

underrepresentation of minorities within the Piscataway Public

School System." At all relevant times, Black teachers were

neither "underrepresented" nor "underutilized" in the Piscataway

School District work force. Indeed, statistics in 1976 and 1985

showed that the percentage of Black employees in the job category

which included teachers exceeded the percentage of Blacks in the

available work force.

A.

In May, 1989, the Board accepted a recommendation from

the Superintendent of Schools to reduce the teaching staff in the

Business Department at Piscataway High School by one. At that

time, two of the teachers in the department were of equal

seniority, both having begun their employment with the Board on

the same day nine years earlier. One of those teachers was

intervenor plaintiff Sharon Taxman, who is White, and the other

was Debra Williams, who is Black. Williams was the only minority

teacher among the faculty of the Business Department.

Decisions regarding layoffs by New Jersey school boards

are highly circumscribed by state law; nontenured faculty must be

laid off first, and layoffs among tenured teachers in the

affected subject area or grade level must proceed in reverse

order of seniority. N.J. Stat. Ann. § 18A:28-9 et seq.

Seniority for this purpose is calculated according to specific

guidelines set by state law. N.J. Stat. Ann. § 18A:28-10; N.J.

Admin. Code Tit. 6 § 6:3-5.1. Thus, local boards lack discretion

to choose between employees for layoff, except in the rare

instance of a tie in seniority between the two or more employees

eligible to fill the last remaining position.

The Board determined that it was facing just such a

rare circumstance in deciding between Taxman and Williams. In

prior decisions involving the layoff of employees with equal

seniority, the Board had broken the tie through "a random process

which included drawing numbers out of a container, drawing lots

or having a lottery." In none of those instances, however, had

the employees involved been of different races.

In light of the unique posture of the layoff decision,

Superintendent of Schools Burton Edelchick recommended to the

Board that the affirmative action plan be invoked in order to

determine which teacher to retain. Superintendent Edelchick made

this recommendation "because he believed Ms. Williams and Ms.

Taxman were tied in seniority, were equally qualified, and

because Ms. Williams was the only Black teacher in the Business

Education Department."

While the Board recognized that it was not bound to

apply the affirmative action policy, it made a discretionary

decision to invoke the policy to break the tie between Williams

and Taxman. As a result, the Board "voted to terminate the

employment of Sharon Taxman, effective June 30, 1988. . . ."

At her deposition, Paula Van Riper, the Board's Vice

President at the time of the layoff, described the Board's

decision-making process. According to Van Riper, after the Board

recognized that Taxman and Williams were of equal seniority, it

assessed their classroom performance, evaluations, volunteerism

and certifications and determined that they were "two teachers of

equal ability" and "equal qualifications."

At his deposition Theodore H. Kruse, the Board's

President, explained his vote to apply the affirmative action

policy as follows:

A. Basically I think because I had been

aware that the student body and the community

which is our responsibility, the schools of

the community, is really quite diverse and

there -- I have a general feeling during my

tenure on the board that it was valuable for

the students to see in the various employment

roles a wide range of background, and that it

was also valuable to the work force and in

particular to the teaching staff that they

have -- they see that in each other.

Asked to articulate the "educational objective" served

by retaining Williams rather than Taxman, Kruse stated:

A. In my own personal perspective I believe

by retaining Mrs. Williams it was sending a

very clear message that we feel that our

staff should be culturally diverse, our

student population is culturally diverse and

there is a distinct advantage to students, to

all students, to be made -- come into contact

with people of different cultures, different

background, so that they are more aware, more

tolerant, more accepting, more understanding

of people of all background.

Q. What do you mean by the phrase you used,

culturally diverse?

A. Someone other than -- different than

yourself. And we have, our student

population and our community has people of

all different background, ethnic background,

religious background, cultural background,

and it's important that our school district

encourage awareness and acceptance and

tolerance and, therefore, I personally think

it's important that our staff reflect that

too.

B.

Following the Board's decision, Taxman filed a charge

of employment discrimination with the Equal Employment

Opportunity Commission. Attempts at conciliation were

unsuccessful, and the United States filed suit under Title VII

against the Board in the United States District Court for the

District of New Jersey. Taxman intervened, asserting claims

under both Title VII and the New Jersey Law Against

Discrimination (NJLAD).

Following discovery, the Board moved for summary

judgment and the United States and Taxman cross-moved for partial

summary judgment only as to liability. The district court denied

the Board's motion and granted partial summary judgment to the

United States and Taxman, holding the Board liable under both

statutes for discrimination on the basis of race. United States

v. Board of Educ. of Township Piscataway, 832 F. Supp. 836, 851

(D.N.J. 1993).

A trial proceeded on the issue of damages. By this

time, Taxman had been rehired by the Board and thus her

reinstatement was not an issue. The court awarded Taxman damages

in the amount of $134,014.62 for backpay, fringe benefits and

prejudgment interest under Title VII. A jury awarded an

additional $10,000 for emotional suffering under the NJLAD. The

district court denied the United States' request for a broadly

worded injunction against future discrimination, finding that

there was no likelihood that the conduct at issue would recur,

but it did order the Board to give Taxman full seniority

reflecting continuous employment from 1980. Additionally, the

court dismissed Taxman's claim for punitive damages under the

NJLAD.

The Board appealed, contending that the district court

erred in granting Taxman summary judgment as to liability. The

Board also contends, in the alternative, that the court erred in

awarding Taxman 100% backpay and in awarding prejudgment interest

at the IRS rate rather than under 28 U.S.C. § 1961. Taxman

cross-appealed, contending that the district court erred in

dismissing her claim for punitive damages. Subsequently, the

United States sought leave to file a brief as amicus curiae in

support of reversal of the judgment, representing that it could

no longer support the judgment of the district court. By order

of November 17, 1995, we denied the United States' request. We

treated the position of the United States at the original

argument before this court on January 24, 1995, as a motion to

withdraw as a party, which we granted. Thus, the only parties

before us on this appeal are the Board and Taxman.

This court has jurisdiction over the appeals under 28

U.S.C. § 1291. Our review of the district court's decision on

summary judgment is plenary. Waldron v. SL Industries, 56 F.3d

491, 496 (3d Cir. 1995).

II.

In relevant part, Title VII makes it unlawful for an

employer "to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment"

or "to limit, segregate, or classify his employees . . . in any

way which would deprive or tend to deprive any individual of

employment opportunities or otherwise affect his status as an

employee" on the basis of "race, color, religion, sex, or

national origin." 42 U.S.C. § 2000e-2(a). For a time, the

Supreme Court construed this language as absolutely prohibiting

discrimination in employment, neither requiring nor permitting

any preference for any group. Johnson v. Transportation Agency,

Santa Clara County, 480 U.S. 616, 643 (1987) (Stevens, J.,

concurring) (citing, inter alia, Griggs v. Duke Power Co., 401

U.S. 424, 431 (1971), and McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273, 280 (1976)).

In 1979, however, the Court interpreted the statute's

"antidiscriminatory strategy" in a "fundamentally different way",

id. at 644, holding in the seminal case of United Steelworkers v.

Weber, 433 U.S. 193 (1979), that Title VII's prohibition against

racial discrimination does not condemn all voluntary race-

conscious affirmative action plans. In Weber, the Court

considered a plan implemented by Kaiser Aluminum & Chemical

Corporation. Prior to 1974, Kaiser hired as craftworkers only

those with prior craft experience. Id. at 198. Because they had

long been excluded from craft unions, Blacks were unable to

present the credentials required for craft positions. Id.

Moreover, Kaiser's hiring practices, although not admittedly

discriminatory with regard to minorities, were questionable. Id.at 210.

As a consequence, while the local labor force was about

39% Black, Kaiser's labor force was less than 15% Black and its

crafts-work force was less than 2% Black. Id. at 198. In 1974,

Kaiser entered into a collective bargaining agreement which

contained an affirmative action plan. The plan reserved 50% of

the openings in an in-plant craft-training program for Black

employees until the percentage of Black craft-workers in the

plant reached a level commensurate with the percentage of Blacks

in the local labor force. Id. at 198. During the first year of

the plan's operation, 13 craft-trainees were selected, seven of

whom were Black and six of whom were White. Id. at 199.

Thereafter, Brian Weber, a White production worker,

filed a class action suit, alleging that the plan unlawfully

discriminated against White employees under Title VII. Relying

upon a literal reading of subsections 2000-3(2)(a) and (d) of

the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court's

decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. at

273, where the Court held that Title VII forbids discrimination

against Whites as well as Blacks, the plaintiffs argued that it

necessarily followed that the Kaiser plan, which resulted in

junior Black employees receiving craft training in preference to

senior White employees, violated Title VII. Id. at 199. The

district court agreed and entered a judgment in favor of the

plaintiffs; the Court of Appeals for the Fifth Circuit affirmed.

Id. at 200.

The Supreme Court, however, reversed, noting initially

that although the plaintiffs' argument was not "without force",

it disregarded "the significance of the fact that the Kaiser-USWA

plan was an affirmative action plan voluntarily adopted by

private parties to eliminate traditional patterns of racial

segregation." Id. at 201. The Court then embarked upon an

exhaustive review of Title VII's legislative history and

identified Congress' concerns in enacting Title VII's prohibition

against discrimination -- the deplorable status of Blacks in the

nation's economy, racial injustice, and the need to open

employment opportunities for Blacks in traditionally closed

occupations. Id. at 202-204. Against this background, the Court

concluded that Congress could not have intended to prohibit

private employers from implementing programs directed toward the

very goal of Title VII -- the eradication of discrimination and

its effects from the workplace:

It would be ironic indeed if a law triggered

by a Nation's concern over centuries of

racial injustice and intended to improve the

lot of those who had "been excluded from the

American dream for so long," 110 Cong. Rec.

6552 (1964) (remarks of Sen. Humphrey),

constituted the first legislative prohibition

of all voluntary, private, race-conscious

efforts to abolish traditional patterns of

racial segregation and hierarchy.

Id. at 204.

The Court found support for its conclusion in the

language and legislative history of section 2000e-2(j) of Title

VII which expressly provides that nothing in the Act requires

employers to grant racial preferences. According to the Court,

the opponents of Title VII had raised two arguments: the Act

would be construed to impose obligations upon employers to

integrate their work forces through preferential treatment of

minorities, and even without being obligated to do so, employers

with racially imbalanced work forces would grant racial

preferences. Id. at 205. Since Congress addressed only the

first objection and did not specifically prohibit affirmative

action efforts in section 2000e-2(j), the Court inferred that

Congress did not intend that Title VII forbid all voluntary race-

conscious preferences. Id. at 205-06. The Court further

reasoned that since Congress also intended in section 2000e-2(j)

"to avoid undue federal regulation of private businesses," a

prohibition against all voluntary affirmative action would

disserve this end by "augment[ing] the power of the Federal

government and diminish[ing] traditional management prerogatives.

. . ." Id. at 206-07.

The Court then turned to the Kaiser plan in order to

determine whether it fell on the "permissible" side of the "line

of demarcation between permissible and impermissible affirmative

action plans." Id. at 208. The Court upheld the Kaiser plan

because its purpose "mirror[ed] those of the statute" and it did

not "unnecessarily trammel the interests of the [non-minority]

employees":

The purposes of the plan mirror those of the

statute. Both were designed to break down

old patterns of racial segregation and

hierarchy. Both were structured to "open

employment opportunities for Negroes in

occupations which have been traditionally

closed to them." 110 Cong. Rec. 6548 (1964)

(remarks of Sen. Humphrey).

At the same time, the plan does not

unnecessarily trammel the interests of the

white employees. The plan does not require

the discharge of white workers and their

replacement with new black hires. Nor does

the plan create an absolute bar to the

advancement of white employees; half of those

trained in the program will be white.

Moreover, the plan is a temporary measure; it

is not intended to maintain racial balance,

but simply to eliminate a manifest racial

imbalance.

Id. at 208 (citation and footnote omitted).

In 1987, the Supreme Court decided a second Title VII

affirmative action case, Johnson v. Transportation Agency, Santa

Clara County, 480 U.S. at 616. There, the Santa Clara County

Transit District Board of Supervisors implemented an affirmative

action plan stating that "`mere prohibition of discriminatory

practices [was] not enough to remedy the effects of past

discriminatory practices and to permit attainment of an equitable

representation of minorities, women and handicapped persons.'"

Id. at 620. The plan noted that women were represented in

numbers far less than their proportion of the available work

force in the Agency as a whole and in the skilled craft worker

job category relevant to the case, and observed that a lack of

motivation in women to seek training or employment where

opportunities were limited partially explained the

underrepresentation. Id. at 621. The plan authorized the Agency

to consider as one factor the gender of a qualified candidate in

making promotions to positions with a traditionally segregated

job classification in which women were significantly

underrepresented. Id. at 620-21. The plan did not set quotas,

but had as its long-term goal the attainment of a work force

whose composition reflected the proportion of women in the area

labor force. Id. at 621-22. Acknowledging the practical

difficulties in attaining the long-term goal, including the

limited number of qualified women, the plan counseled that short-

range goals be established and annually adjusted to serve as

realistic guides for actual employment decisions. Id. at 622.

On December 12, 1979, the Agency announced a vacancy

for the promotional position of road dispatcher. At the time,

none of the 238 positions in the applicable job category was

occupied by a woman. Id. at 621. The Agency Director,

authorized to choose any of seven applicants who had been deemed

eligible, promoted Diane Joyce, a qualified woman, over Paul

Johnson, a qualified man. Id. at 624-25. As the Agency Director

testified: "`I tried to look at the whole picture, the

combination of her qualifications and Mr. Johnson's

qualifications, their test scores, their expertise, their

background, affirmative action matters, things like that . . . I

believe it was a combination of all those.'" Id. at 625.

Johnson sued, alleging that the Agency's employment

decision constituted unlawful sex discrimination under Title VII.

Evaluating the plan against the criteria announced in Weber, the

district court held that the plan did not satisfy Weber's

criterion that the plan be temporary. Id. at 625. The Court of

Appeals for the Ninth Circuit reversed, holding that since the

plan provided for the attainment, rather than the maintenance, of

a balanced work force, the absence of an express termination date

in the plan was not dispositive of its validity. Id. at 625-26.

The court of appeals further held that the plan had been adopted

"to address a conspicuous imbalance in the Agency's work force,

and neither unnecessarily trammeled the rights of other

employees, nor created an absolute bar to their advancement."

Id. at 626.

The Supreme Court affirmed. Declaring its prior

analysis in Weber controlling, the Court examined whether the

employment decision at issue "was made pursuant to a plan

prompted by concerns similar to those of the employer in Weber"

and whether "the effect of the [p]lan on males and nonminorities

[was] comparable to the effects of the plan in that case." Id.at 631.

The first issue the Court addressed, therefore, was

whether "consideration of the sex of applicants for Skilled Craft

jobs was justified by the existence of a `manifest imbalance'

that reflected underrepresentation of women in `traditionally

segregated job categories.'" Id. at 631 (quoting Weber, 433 U.S.

at 197). Although the Court did not set forth a quantitative

measure for determining what degree of disproportionate

representation in an employer's work force would be sufficient to

justify affirmative action, it made clear that the terms

"manifest imbalance" and "traditionally segregated job category"

were not tantamount to a prima facie case of discrimination

against an employer since the constraints of Title VII and the

Federal Constitution on voluntarily adopted affirmative action

plans are not identical. Johnson, 480 U.S. at 632. In this

regard, the Court further reasoned that requiring an employer in

a Title VII affirmative action case to show that it had

discriminated in the past "would be inconsistent with Weber's

focus on statistical imbalance, and could inappropriately create

a significant discentive for employers to adopt an affirmative

action plan". Id. at 633 (footnote omitted).

Reviewing Agency statistics which showed that women

were concentrated in traditionally female jobs and represented a

lower percentage in other jobs than would be expected if

traditional segregation had not occurred, the Court concluded

that the decision to promote Joyce was made pursuant to a plan

designed to eliminate work force imbalances in traditionally

segregated job categories and thus satisfied Weber's first prong.

Id. at 634. Moving to Weber's second prong, whether the plan

unnecessarily trammeled the rights of male employees, the Court

concluded that the plan passed muster because it authorized

merely that consideration be given to affirmative action concerns

when evaluating applicants; gender was a "plus" factor, only one

of several criteria that the Agency Director considered in making

his decision; no legitimate, firmly rooted expectation on the

part of Johnson was denied since the Agency Director could have

promoted any of the seven candidates classified as eligible; even

though Johnson was refused a promotion, he retained his

employment; and the plan was intended to attain a balanced work

force, not to maintain one. Id. at 638-40.

III.

We analyze Taxman's claim of employment discrimination

under the approach set forth in McDonnell Douglas v. Green, 411

U.S. 792 (1978). Once a plaintiff establishes a prima faciecase, the

burden of production shifts to the employer to show a

legitimate nondiscriminatory reason for the decision; an

affirmative action plan may be one such reason. Johnson v.

Transportation Agency, Santa Clara County, 480 U.S. 616, 626

(1987). When the employer satisfies this requirement, the burden

of production shifts back to the employee to show that the

asserted nondiscriminatory reason is a pretext and that the

affirmative action plan is invalid. Id.

For summary judgment purposes, the parties do not

dispute that Taxman has established a prima facie case or that

the Board's decision to terminate her was based on its

affirmative action policy. The dispositive liability issue,

therefore, is the validity of the Board's policy under Title VII.

IV.

Having reviewed the analytical framework for assessing

the validity of an affirmative action plan as established in

United Steelworkers v. Weber, 443 U.S. 193 (1979), and refined in

Johnson, 490 U.S. at 616, we turn to the facts of this case in

order to determine whether the racial diversity purpose of the

Board's policy mirrors the purposes of the statute. We look for

the purposes of Title VII in the plain meaning of the Act's

provisions and in its legislative history and historical context.

See Edward v. Aguillard, 482 U.S. 578, 594-95 (1987) (in

determining a statute's purpose, courts look to the statute's

words, legislative history, historical context and the sequence

of events leading to its passage).

A.

Title VII was enacted to further two primary goals: to

end discrimination on the basis of race, color, religion, sex or

national origin, thereby guaranteeing equal opportunity in the

workplace, and to remedy the segregation and underrepresentation

of minorities that discrimination has caused in our Nation's work

force.

Title VII's first purpose is set forth in section

2000e-2's several prohibitions, which expressly denounce the

discrimination which Congress sought to end. 42 U.S.C. § 2000e-

2(a)-(d),(l); McDonnell Douglas, 411 U.S. at 800 ("The language

of Title VII makes plain the purpose of Congress to assure

equality of employment opportunities and to eliminate those

discriminatory practices and devices which have fostered racially

stratified job environments to the disadvantage of minority

citizens."). This antidiscriminatory purpose is also reflected

in the Act's legislative history. In an interpretative

memorandum entered into the Congressional Record, Senators Case

and Clark, comanagers of the Senate bill, stated:

To discriminate is to make a distinction, to

make a difference in treatment or favor, and

those distinctions or differences in

treatment or favor which are prohibited by

section 704 are those which are based on any

five of the forbidden criteria: race, color,

religion, sex, and national origin. Any

other criterion or qualification for

employment is not affected by this title.

* * *

. . . [Title VII] expressly protects the

employer's right to insist that any

prospective applicant, Negro or white, must

meet the applicable job qualifications.

Indeed the very purpose of Title VII is to

promote hiring on the basis of job

qualifications, rather than on the basis of

race or color.

110 Cong. Rec. 7213, 7247 (1964), quoted in Price Waterhouse v.

Hopkins, 490 U.S. 228, 243 (1989).

Title VII's second purpose, ending the segregative

effects of discrimination, is revealed in the congressional

debate surrounding the statute's enactment. In Weber, the Court

carefully catalogued the comments made by the proponents of Title

VII which demonstrate the Act's remedial concerns. Weber, 433

U.S. at 202-04. By way of illustration, we cite Senator Clark's

remarks to the Senate:

The rate of Negro unemployment has gone up

consistently as compared with white

unemployment for the past 15 years. This is

a social malaise and a social situation which

we should not tolerate. That is one of the

principal reasons why the bill should pass.

Id. (quoting 110 Cong. Rec. at 7220) (statement of Sen. Clark).

Likewise, Senator Humphrey spoke of the Nation's need "`to open

employment opportunities for Negroes which have been

traditionally closed to them,'" and to assist those who have

"`been excluded from the American dream for so long[.]'" Id.(quoting 110

Cong. Rec. at 6548, 6552) (statements of Sen.

Humphrey).

The significance of this second corrective purpose

cannot be overstated. It is only because Title VII was written

to eradicate not only discrimination per se but the consequencesof prior

discrimination as well, that racial preferences in the

form of affirmative action can co-exist with the Act's

antidiscrimination mandate.

Thus, based on our analysis of Title VII's two goals,

we are convinced that unless an affirmative action plan has a

remedial purpose, it cannot be said to mirror the purposes of the

statute, and, therefore, cannot satisfy the first prong of the

Weber test.

We see this case as one involving straightforward

statutory interpretation controlled by the text and legislative

history of Title VII as interpreted in Weber and Johnson. The

statute on its face provides that race cannot be a factor in

employer decisions about hires, promotions, and layoffs, and the

legislative history demonstrates that barring considerations of

race from the workplace was Congress' primary objective. If

exceptions to this bar are to be made, they must be made on the

basis of what Congress has said. The affirmative action plans at

issue in Weber and Johnson were sustained only because the

Supreme Court, examining those plans in light of congressional

intent, found a secondary congressional objective in Title VII

that had to be accommodated -- i.e., the elimination of the

effects of past discrimination in the workplace. Here, there is

no congressional recognition of diversity as a Title VII

objective requiring accommodation.

Accordingly, it is beyond cavil that the Board, by

invoking its affirmative action policy to lay off Sharon Taxman,

violated the terms of Title VII. While the Court in Weber and

Johnson permitted some deviation from the antidiscrimination

mandate of the statute in order to erase the effects of past

discrimination, these rulings do not open the door to additional

non-remedial deviations. Here, as in Weber and Johnson, the

Board must justify its deviation from the statutory mandate based

on positive legislative history, not on its idea of what is

appropriate.

B.

The Board recognizes that there is no positive

legislative history supporting its goal of promoting racial

diversity "for education's sake", and concedes that there is no

caselaw approving such a purpose to support an affirmative action

plan under Title VII. "[T]he Board would have [us] infer the

propriety of this purpose from fragments of other authority."

Board of Educ. of Township of Piscataway, 832 F. Supp. at 845.

The Board first attempts to meet its obligations with

respect to Title VII by arguing that Congress meant to cover the

situation presented here "when it amended Title VII in 1972 to

cover academic institutions public and private." A review of a

Senate Committee's explanation for recommending the amendment,

however, reveals that Congress neither addressed nor embraced the

racial diversity purpose before us. Instead, Congress pursued,

in Title VII's 1972 amendment with regard to the nation's

schools, the same purposes it had pursued in 1964 when enacting

the original statute with respect to other employers, namely, the

elimination of discriminatory employment practices and the

abolition of discrimination's invidious effects:

The presence of discrimination in the

Nation's educational institutions is no

secret. . . . This discrimination, however,

is not limited to the students alone.

Discriminatory practices against faculty,

staff, and other employees is also common.

As in other areas of employment,

statistics for educational institutions

indicate that minorities and women are

precluded from the more prestigious and

higher-paying positions, and are relegated to

the more menial and lower-paying jobs. While

in elementary and secondary school systems

Negroes accounted for approximately 10% of

the total number of positions in the higher-

paying and more prestigious positions in

institutions of higher learning, blacks

constituted only 2.2% of all positions, most

of these being found in all-black or

predominantly black institutions. Women are

similarly subject to discriminatory patterns.

Not only are they generally under-represented

in institutions of higher learning, but those

few that do obtain positions are generally

paid less and advanced more slowly than their

male counterparts. Similarly, while women

constitute 67% of elementary and secondary

school teachers, out of 778,000 elementary

and secondary school principals, 78% of

elementary school principals are men and 94%

of secondary school principals are men.

. . . There is nothing in the

legislative background of Title VII, nor does

any national policy suggest itself, to

support the present exemption. In fact, the

Committee believes that the existence of

discrimination in educational institutions is

particularly critical. It is difficult to

imagine a more sensitive area than

educational institutions, where the youth of

the Nation are exposed to a multitude of

ideas and impressions that will strongly

influence their future development. To

permit discrimination here would, more than

in any other area, tend to promote existing

misconceptions and stereotypical

categorizations which in turn would lead to

future patterns of discrimination.

S.Rep. 415, 92nd Cong., 1st Sess. 12 (1971). See Johnson, 480

U.S. at 627-28 n.6 ("While public employers were not added to the

definition of `employer' in Title VII until 1972, there is no

evidence that this mere addition to the definitional section of

the statute was intended to transform the substantive standard

governing employer conduct.").

We find the Board's reliance on Fourteenth Amendment

caselaw misplaced as well. We are acutely aware, as is the

Board, that the federal courts have never decided a "pure" Title

VII case where racial diversity for education's sake was advanced

as the sole justification for a race-based decision. The Board

argues that in deciding just such a case, we should look to the

Supreme Court's endorsement of diversity as a goal in the Equal

Protection context. This argument, however, is based upon a

faulty premise.

In relying on Equal Protection cases to support its

diversity goal, we understand the Board to reason as follows:

The Supreme Court observed in Johnson that "the statutory

prohibition [in Title VII] with which an employer must contend

was not intended to extend as far as that of the Constitution",

480 U.S. at 628 n.6. Accordingly, a purpose which survives

constitutional strict scrutiny necessarily passes muster under

Title VII's permissible purpose test -- since the Court has

endorsed the concept of diversity in Equal Protection cases, it

would approve the Board's diversity purpose in this Title VII

case, where the limitations on purpose are less stringent.

We are convinced, however, that Johnson's footnote six,

480 U.S. at 627-28 n.6, in which the Court contrasted the reach

of Title VII with that of the Constitution, does not speak to the

purposes that may support affirmative action under the former but

not the latter. We read the Court's observation to relate,

instead, to the factual predicate that employers must offer to

prove the need for remedial efforts in Title VII as contrasted

with Equal Protection affirmative action cases.

In Johnson, the Court held that the legality of the

Santa Clara County Transportation Agency's plan under Title VII

must be guided by the Court's determination in Weber that

affirmative action is lawful if an employer can point to a

"`manifest imbalance . . . in traditionally segregated job

categories.'" 480 U.S. at 630-32 (quoting Weber, 433 U.S. at

197). In Wygant v. Jackson Board of Education, 476 U.S. 267

(1986), by contrast, the Court determined that under the

Constitution a public employer's remedial affirmative action

initiatives are valid only if crafted to remedy its own past or

present discrimination; that is, societal discrimination is an

insufficient basis for "imposing discretionary legal remedies

against innocent people." Id. at 274-76. In the plurality's

words, affirmative action must be supported by "a factual

determination that the employer had a strong basis in evidence

for its conclusion that remedial action was necessary." Id. at

277.

When the Court in Johnson observed that Title VII's

statutory prohibition does not extend as far as the Constitution,

it was addressing one of Justice Scalia's arguments in dissent

that since obligations under Title VII and the Constitution are

identical, a public employer's adoption of an affirmative action

plan in a Title VII case should be governed by the prior

discrimination standard set forth in Wygant. Johnson, 480 U.S.

at 627-28 n.6.

While the Supreme Court may indeed at some future date

hold that an affirmative action purpose that satisfies the

Constitution must necessarily satisfy Title VII, it has yet to do

so.

Were we to accept that equal protection standards may

be imported into Title VII analysis, we are still unpersuaded

that the Equal Protection caselaw validates the Board's asserted

goal of racial diversity. We cannot agree with the Board that

the racial diversity purpose is supported by both the Supreme

Court's holding and the dissenting opinions in Wygant. The Court

in Wygant, although divided, agreed that under the Equal

Protection Clause, racial classifications in the context of

affirmative action must be justified by a compelling state

purpose and the means chosen to effectuate that purpose must be

narrowly tailored; that societal discrimination alone will not

justify a racial classification; that evidence of prior

discrimination by an employer must be presented before remedial

racial classifications can be employed; and that the "role model"

theory proposed by the employer as a basis for race-conscious

state action was unacceptable because it would have allowed

discriminatory hiring and layoff well beyond the point necessary

for any remedial purpose and did not bear any relationship to the

harm caused by prior discrimination. Id. at 270-78; id. at 284-

93 (O'Connor, J., concurring in part and concurring in the

Court's judgment); id. at 294-95 (White, J., concurring in the

Court's judgment). The dissenting Justices believed that the

Constitution would allow a public employer to preserve the

integration it had achieved through a legitimate affirmative

action hiring plan by thereafter apportioning layoffs between

minority and nonminority groups. Id. at 306 (Marshall, J.,

dissenting, joined by Brennan and Blackmun, JJ.); id. at 267-68

(Stevens, J., dissenting).

We are also unpersuaded by the Board's contention that

Equal Protection cases arising in an education context support

upholding the Board's purpose in a Title VII action. These Equal

Protection cases, unlike the case at hand, involved corrective

efforts to confront racial segregation or chronic minority

underrepresentation in the schools. In this context, we are not

at all surprised that the goal of diversity was raised. While we

wholeheartedly endorse any statements in these cases extolling

the educational value of exposing students to persons of diverse

races and backgrounds, given the framework in which they were

made, we cannot accept them as authority for the conclusion that

the Board's non-remedial racial diversity goal is a permissible

basis for affirmative action under Title VII. See, e.g., Wygant,

476 U.S. at 267 (Marshall, J., dissenting) (noting that the

racially-conscious layoff provision at issue was aimed at

preserving the faculty integration achieved by the Jackson,

Michigan Public Schools in the early 1970s through affirmative

action; minority representation went from 3.9% in 1969 to 8.8% in

1971); Columbus Board of Education v. Penick, 443 U.S. 449, 467

(1979) (condemning intentional segregation and the creation of

racially-identifiable schools practiced by the Columbus, Ohio

Board of Education); Regents of the University of California v.

Bakke, 438 U.S. 265, 272 (1978) (Powell, J., announcing the

judgment of the Court) (observing that the 1968 class of the

Medical School of the University of California at Davis contained

three Asians, no Blacks, no Mexican-Americans and no American

Indians); Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1 (1971) (observing that 14,000 Black pupils in the

Charlotte-Mecklenburg, North Carolina school system attended 21

schools that were at least 99% Black); Kromnick v. School Dist.

of Philadelphia, 739 F.2d 894, 897 (3d Cir. 1984) (recognizing

that "[t]he Philadelphia School System has long suffered from defacto

segregation by race of students and faculty"), cert.denied, 469 U.S. 1107

(1985).

More specifically, two Supreme Court cases upon which

the Board relies, Bakke, 438 U.S. at 265, and Metro Broadcasting

Inc. v. FCC, 497 U.S. 547 (1990), are inapposite. Bakke involved

a rejected White applicant's challenge under the Constitution and

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to a

special admissions program instituted by the Medical School of

the University of California at Davis which essentially set aside

16 places for minority candidates. Justice Powell, whose vote

was necessary both to establish the validity of considering race

in admission decisions and to invalidate the racial quota before

the Court, was of the opinion that the attainment of a "diverse

student body" is a constitutionally permissible goal for an

institution of higher education. Justice Powell pointed out that

the academic freedom that has been viewed as a "special concern"

of the First Amendment includes "the freedom of a university to

make its own judgments as to the selection of its student body"

and that "[t]he atmosphere of `speculation, experiment and

creation' -- so essential to the quality of higher education --

is widely believed to be promoted by a diverse student body."

Bakke, 438 U.S. at 312 (footnote omitted). He then agreed with

Davis' assertion that its interest in diversity implicated First

Amendment concerns:

Thus, in arguing that its universities

must be accorded the right to select those

students who will contribute the most to the

"robust exchange of ideas," [Davis] invokes a

countervailing constitutional interest, that

of the First Amendment. In this light,

petitioner must be viewed as seeking to

achieve a goal that is of paramount

importance in the fulfillment of its mission.

Id. at 313.

Davis' reservation of a specified number of seats in

each class for individuals from preferred ethnic groups to

further its diversity purpose, however, was unacceptable because,

according to Justice Powell, it misconceived the nature of the

state interest that would justify consideration of race or ethnic

background:

It is not an interest in simple ethnic

diversity, in which a specified percentage of

the student body is in effect guaranteed to

be members of selected ethnic groups, with

the remaining percentage an undifferentiated

aggregation of students. The diversity that

furthers a compelling state interest

encompasses a far broader array of

qualifications and characteristics of which

racial or ethnic origin is but a single

though important element. Davis' special

admissions program, focused solely on ethnic

diversity, would hinder rather than further

attainment of genuine diversity.

Id. at 315 (footnote omitted).

Bakke's factual and legal setting, as well as the

diversity that universities aspire to in their student bodies,

are, in our view, so different from the facts, relevant law and

the racial diversity purpose involved in this case that we find

little in Bakke to guide us.

Likewise, statements regarding the value of programming

diversity made by the Court in Metro Broadcasting when it upheld

two minority preference policies adopted by the Federal

Communications Commission, 497 U.S. at 547, have no application

here. The diversity interest the Court found sufficient under

the Constitution to support a racial classification had nothing

whatsoever to do with the concerns that underlie Title VII.

Citing Bakke, the Court concluded that "[j]ust as a `diverse

student body' contributing to a `robust exchange of ideas' is a

`constitutionally permissible goal' on which a race-conscious

university admissions program may be predicated, the diversity of

views and information on the airwaves serves important First

Amendment values." Id. at 568 (citation omitted).

Finally, we turn to the Board's argument that the

diversity goal underlying its application of the affirmative

action policy was endorsed in Justice O'Connor's concurring

opinion in Wygant and in Justice Stevens' concurring opinion in

Johnson. We find that these statements are slender reeds indeed

and any bearing that they may have in the situation presented

here is minimal. While Justice O'Connor did refer favorably to

Bakke and the notion of racial diversity in institutions of

higher learning, Wygant, 480 U.S. at 286 (O'Connor J.

concurring), just one year later in Johnson, a Title VII case,

she rejected Justice Steven's expansive view of the purposes that

may underlie affirmative action, stating: "[C]ontrary to the

intimations in JUSTICE STEVENS' concurrence, this Court did not

approve preferences for minorities `for any reason that might

seem sensible from a business or social point of view.'"

Johnson, 480 U.S. at 649 (O'Connor, J., concurring in the Court's

judgment). As for Justice Stevens' concurrence in Johnson, while

he clearly pondered the idea of "forward-looking" affirmative

action where employers do not focus on "`purg[ing] their own past

sins of discrimination'", id. at 647 (Stevens, J., concurring),

his comments are not controlling.

V.

Since we have not found anything in the Board's

arguments to convince us that this case requires examination

beyond statutory interpretation, we return to the point at which

we started: the language of Title VII itself and the two cases

reviewing affirmative action plans in light of that statute. Our

analysis of the statute and the caselaw convinces us that a non-

remedial affirmative action plan cannot form the basis for

deviating from the antidiscrimination mandate of Title VII.

The Board admits that it did not act to remedy the

effects of past employment discrimination. The parties have

stipulated that neither the Board's adoption of its affirmative

action policy nor its subsequent decision to apply it in choosing

between Taxman and Williams was intended to remedy the results of

any prior discrimination or identified underrepresentation of

Blacks within the Piscataway School District's teacher workforce

as a whole. Nor does the Board contend that its action here was

directed at remedying any de jure or de facto segregation. Butsee

Piscataway Township Bd. of Educ. v. Burke, 386 A.2d 439 (N.J.

Super. Ct. App. Div.), appeal dismissed, 401 A.2d 230 (N.J.

1978). Even though the Board's race-conscious action was taken

to avoid what could have been an all-White faculty within the

Business Department, the Board concedes that Blacks are not

underrepresented in its teaching workforce as a whole or even in

the Piscataway High School.

Rather, the Board's sole purpose in applying its

affirmative action policy in this case was to obtain an

educational benefit which it believed would result from a

racially diverse faculty. While the benefits flowing from

diversity in the educational context are significant indeed, we

are constrained to hold, as did the district court, that inasmuch

as "the Board does not even attempt to show that its affirmative

action plan was adopted to remedy past discrimination or as the

result of a manifest imbalance in the employment of minorities,"

832 F. Supp. at 845, the Board has failed to satisfy the first

prong of the Weber test. United States v. Board of Educ. of

Township of Piscataway, 832 F. Supp. 836, 848 (D.N.J. 1993).

We turn next to the second prong of the Weber analysis.

This second prong requires that we determine whether the Board's

policy "unnecessarily trammel[s] . . . [nonminority] interests.

. . ." Weber, 433 U.S. at 208. Under this requirement, too, the

Board's policy is deficient.

We begin by noting the policy's utter lack of

definition and structure. While it is not for us to decide how

much diversity in a high school facility is "enough," the Board

cannot abdicate its responsibility to define "racial diversity"

and to determine what degree of racial diversity in the

Piscataway School is sufficient.

The affirmative action plans that have met with the

Supreme Court's approval under Title VII had objectives, as well

as benchmarks which served to evaluate progress, guide the

employment decisions at issue and assure the grant of only those

minority preferences necessary to further the plans' purpose.

Johnson, 480 U.S. at 621-22 (setting forth long-range and short-

term objectives to achieve "`a statistically measurable yearly

improvement in hiring, training and promotion of minorities and

women . . . in all major job classifications where they are

underrepresented'"); Weber, 433 U.S. at 193 (reserving for Black

employees 50% of the openings in craft-training programs until

the percentage of Black craftworkers reflected the percentage of

Blacks in the available labor force). By contrast, the Board's

policy, devoid of goals and standards, is governed entirely by

the Board's whim, leaving the Board free, if it so chooses, to

grant racial preferences that do not promote even the policy's

claimed purpose. Indeed, under the terms of this policy, the

Board, in pursuit of a "racially diverse" work force, could use

affirmative action to discriminate against those whom Title VII

was enacted to protect. Such a policy unnecessarily trammels the

interests of nonminority employees.

Moreover, both Weber and Johnson unequivocally provide

that valid affirmative action plans are "temporary" measures that

seek to "'attain'", not "maintain" a "permanent racial . . .

balance." Johnson, 480 U.S. at 639-40. See Weber, 433 U.S. at

208. The Board's policy, adopted in 1975, is an established

fixture of unlimited duration, to be resurrected from time to

time whenever the Board believes that the ratio between Blacks

and Whites in any Piscataway School is skewed. On this basis

alone, the policy contravenes Weber's teaching. See Cunico v.

Pueblo School Dist. No. 60, 917 F.2d 431, 440 (10th Cir. 1990)

(holding that the school district's layoff decision aimed at

ensuring the employment of the district's only Black

administrator was "outright racial balancing" in violation of

Weber's second prong).

Finally, we are convinced that the harm imposed upon a

nonminority employee by the loss of his or her job is so

substantial and the cost so severe that the Board's goal of

racial diversity, even if legitimate under Title VII, may not be

pursued in this particular fashion. This is especially true

where, as here, the nonminority employee is tenured. In Weberand Johnson,

when considering whether nonminorities were unduly

encumbered by affirmative action, the Court found it significant

that they retained their employment. Weber, 433 U.S. at 208

(observing that the plan did not require the discharge of

nonminority workers); Johnson, 480 U.S. at 638 (observing that

the nonminority employee who was not promoted nonetheless kept

his job). We, therefore, adopt the plurality's pronouncement in

Wygant that "[w]hile hiring goals impose a diffuse burden, often

foreclosing only one of several opportunities, layoffs impose the

entire burden of achieving racial equality on particular

individuals, often resulting in serious disruption of their

lives. That burden is too intrusive." Wygant, 476 U.S. at 283

(footnote omitted).

Accordingly, we conclude that under the second prong of

the Weber test, the Board's affirmative action policy violates

Title VII. In addition to containing an impermissible purpose,

the policy "unnecessarily trammel[s] the interests of the

[nonminority] employees." Weber, 430 U.S. at 208.

VI.

The district court did not analyze Taxman's claims

based on the New Jersey Law Against Discrimination and we need

not do so in detail here. The parties have agreed that the legal

analysis required by the state statute is essentially the same as

that undertaken in Title VII cases. While the New Jersey Supreme

Court has yet to consider a voluntarily adopted affirmative

action plan in light of the NJLAD, it is undisputed that the

NJLAD has been interpreted to parallel Title VII. In Peper v.

Princeton Univ. Bd. of Trustees, 389 A.2d 465, 478 (N.J. 1978),

the Supreme Court of New Jersey wrote that "where [Title VII]

standards are useful and fair, it is in the best interests of

everyone concerned to have some uniformity in the law."

Given that statement, we predict that the New Jersey

Supreme Court would follow the analytical directive of Weber and

Johnson. Analysis of this case under the NJLAD would, therefore,

lead to the same result as that which we have reached under Title

VII. Sharon Taxman is entitled to summary judgment on her claim

made under the NJLAD.

VII.

Having found the Board liable under Title VII, we turn

our attention to the issue of damages, addressing first the

district court's order that Taxman be awarded one hundred percent

backpay for the entire period of her layoff. The Board argues

that where a backpay award is appropriate, the court's goal

should be to restore "`the conditions and relationships that

would have been had there been no'" unlawful discrimination.

Teamsters v. United States, 431 U.S. 324, 371 (1977) (quoting

Franks v. Bowman Transportation Co., 424 U.S. 747, 769 (1976)).

According to the Board, the district court's award of one hundred

percent backpay was plainly unfair. Had it not invoked the

affirmative action plan, the Board would have followed its usual

procedure, using a coin toss or other random process to break the

seniority between Williams and Taxman. Taxman, therefore, would

have stood no more than a fifty percent chance of keeping her job

had there been no unlawful discrimination."

We disagree. In deciding backpay issues, a district

court has wide latitude to "locate `a just result'" and to

further the "make whole remedy of Title VII in light of the

circumstances of a particular case." Albemarle Paper Co. v.

Moody, 422 U.S. 405, 424-25 (1975). While Taxman cannot be

returned to the position that she held prior to her layoff -- one

of virtually precise equality with Williams in terms of the

factors relevant to the decision -- she can be returned to a

position of financial equality with Williams through a one

hundred percent backpay award. We are convinced that this award

most closely approximates the conditions that would have

prevailed in the absence of discrimination.

We find an additional basis for our holding in the

analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228

(1989). In that case, the Supreme Court held that where an

employee proves that discrimination played a role in an

employment decision, the employer will not be found "liable if it

can prove that, even if it had not taken [race] into account it

would have come to the same decision regarding a particular

person." Id. at 242. Here, Taxman has clearly established that

the Board is liable and that she was not paid during the relevant

period. Under the logic of Hopkins, the Board cannot avoid a one

hundred percent backpay award unless it can establish, by a

preponderance of the evidence, that Taxman would have received

some lesser amount had the Board not taken race into account.

This, of course, the Board cannot do.

Given the law and the circumstances presented in this

case, we are convinced that the district court's analysis with

respect to backpay reflects the sound exercise of judicial

discretion and we will affirm the award.

The Board further contends that the district court

erred in calculating prejudgment interest using the IRS adjusted

prime rate. According to the Board, the district court should

have applied the post-judgment rate set forth in 28 U.S.C. §

1961(a). This argument is meritless.

The matter of prejudgment interest is left to the

discretion of the district court. Although a court "may" use the

post-judgment standards of 28 U.S.C. § 1961(a), Sun Ship, Inc. v.

Matson Navigation Co., 785 F.2d 59, 63 (3d Cir. 1986), it is not

compelled to do so. E.E.O.C. v. Wooster Brush Co. Employees

Relief Ass'n., 727 F.2d 566, 579 (1984). The adjusted prime

rate, established periodically by the Secretary of the Treasury

and codified in 26 U.S.C. § 6621, has been used regularly by

district courts to calculate prejudgment interest. See, e.g.,

E.E.O.C. v. Erie County, 751 F.2d 79, 82 (1984) (trial court did

not abuse its discretion in using adjusted prime rate to

calculate the amount of prejudgment interest to be paid on

backpay award under the Equal Pay Act).

We thus hold that the district court's calculation of

pre-judgment interest was consistent with the sound exercise of

judicial discretion.

Finally, in her cross-appeal, Taxman asks that we find

that the district court erred in dismissing her claim for

punitive damages under the NJLAD.

At a January 5, 1994 proceeding devoted to the issue of

damages, the district court reaffirmed a decision made at a

pretrial conference to "strike the punitive damages claim" on the

ground that "there is no evidence to support [it]." (App. at

209). The court made the following comment with respect to

punitive damages:

I didn't say I felt the board -- I may have

said that the board acted in good faith, but

I think what I did say is that there's no

evidence that would support any claim for

punitive damages. And I struck the punitive

damages claim.

There's absolutely no evidence that the board

acted willfully, wantonly, outrageously or in

any other way than trying its best to make

the best of a very unhappy situation.

The New Jersey Supreme Court has established a high

threshold requirement which must be met before an award of

punitive damages can be sustained. Punitive damages are to be

awarded only "`when the wrongdoer's conduct is especially

egregious.'" Rendine v. Pantzer, 141 N.J. 292, 313, 661 A.2d

1201, 1215 (1995). "To warrant a punitive award, the defendant's

conduct must have been wantonly reckless or malicious. There

must be an intentional wrongdoing in the sense of an `evil-

minded' act accompanied by a wanton and willful disregard to the

rights of another. . . . The key to the right to punitive

damages is the wrongfulness of the intentional action." Id.

"[The New Jersey] case indicates that the requirement [of

willfulness or wantonness] may be satisfied a showing that there

has been a deliberate act or omission with knowledge of a high

degree of probability of harm and reckless indifference or

consequences.'" Id. (citation omitted). "[The New Jersey courts

have] stated that proof of actual malice [is] "`a condition

precedent to a punitive damages award.'" Id. (citation omitted).

Having examined the record evidence in this case

against the background of the New Jersey punitive damages

standard, we agree with the district court that the evidence

would not support a finding that the Board acted willfully,

wantonly or outrageously in dismissing Taxman. We conclude,

therefore, that Taxman's claim for punitive damages was properly

dismissed.

VIII.

While we have rejected the argument that the Board's

non-remedial application of the affirmative action policy is

consistent with the language and intent of Title VII, we do not

reject in principle the diversity goal articulated by the Board.

Indeed, we recognize that the differences among us underlie the

richness and strength of our Nation. Our disposition of this

matter, however, rests squarely on the foundation of Title VII.

Although we applaud the goal of racial diversity, we cannot agree

that Title VII permits an employer to advance that goal through

non-remedial discriminatory measures.

Having found that the district court properly concluded

that the affirmative action plan applied by the Board to lay off

Taxman is invalid under Title VII, and that the district court

did not err in calculating Taxman's damages or in dismissing her

claim for punitive damages, we will affirm the judgment of the

district court.

TAXMAN v. BD. OF EDUC. OF THE TWP. OF PISCATAWAY,

Nos. 94-5090, 94-5112

STAPLETON, Circuit Judge, Concurring:

I agree that the Board's non-remedial affirmative

action decision is unlawful because non-remedial affirmative

action employment decisions cannot pass muster under Title VII.

It is unnecessary, however, for the court to decide whether the

Board's actions unnecessarily trammel Taxman's interests.

Accordingly, I would express no opinion on that issue. I join

the remainder of the court's opinion.

United States of America, Sharon Taxman, Plaintiff-Intervenor

v. Bd. of Education of the Township of Piscataway,

Sharon Taxman, Appellant v. Bd. of Education of the Township of

Piscataway, Nos. 94-5090, 94-5112

SLOVITER, Chief Judge, dissenting, with whom Judges Lewis and

McKee join.

In the law, as in other professions, it is often how

the question is framed that determines the answer that is

received. Although the divisive issue of affirmative action

continues on this country's political agenda, I do not see this

appeal as raising a broad legal referendum on affirmative action

policies. Indeed, it is questionable whether this case is about

affirmative action at all, as that term has come to be generally

understood -- i.e. preference based on race or gender of one

deemed "less qualified" over one deemed "more qualified." Nor

does this case even require us to examine the parameters of the

affirmative action policy originally adopted in 1975 by the Board

of Education of the Township of Piscataway (School Board or

Board) in response to a state regulation requiring affirmative

action programs or the Board's concise 1983 one-page Affirmative

Action policy.

Instead, the narrow question posed by this appeal can

be restated as whether Title VII requires a New Jersey school or

school board, which is faced with deciding which of two equally

qualified teachers should be laid off, to make its decision

through a coin toss or lottery, a solution that could be expected

of the state's gaming tables, or whether Title VII permits the

school board to factor into the decision its bona fide belief,

based on its experience with secondary schools, that students

derive educational benefit by having a Black faculty member in an

otherwise all-White department. Because I believe that the area

of discretion left to employers in educational institutions by

Title VII encompasses the School Board's action in this case, I

respectfully dissent.

The posture in which the legal issue in this case is

presented is so stripped of extraneous factors that it could well

serve as the question for a law school moot court. I emphasize

at the outset issues that this case does not present. We need

not decide whether it is permissible for a school to lay off a

more qualified employee in favor of a less qualified employee on

the basis of race, because that did not happen here. Nor need we

consider what requirements Title VII may impose on unwilling

employers, or how much racial diversity in a high school faculty

may be "enough."

Significantly, although the School Board is a public

employer, this case does not place before us for decision the

limits on race-conscious action imposed on public entities by the

Constitution because we are presented with no constitutional

claim. Therefore, we must measure the Board's actions under the

restraints imposed by Title VII rather than the more demanding

ones imposed on government action by the Equal Protection Clause.

In this respect the case is similar to that presented in Johnson

v. Transportation Agency, Santa Clara County, 480 U.S. 616

(1987), where the Supreme Court noted that even though the

defendant was a public employer it would decide the case only

under Title VII because no constitutional issue was raised or

addressed below. See id. at 620 n.2. The Court also made clear

that for purposes of Title VII, the same standard applies to

public and private employers, stating that "[t]he fact that a

public employer must also satisfy the Constitution does not

negate the fact that the statutory prohibition with which that

employer must contend was not intended to extend as far as that

of the Constitution." Id. at 628 n.6. This was an express

rejection of Justice Scalia's contention "that the obligations of

a public employer under Title VII must be identical to its

obligations under the Constitution." Id. at 627 n. 6; see alsoid. at 649

(O'Connor, J., concurring). Thus it is important to

keep in mind that we must measure the Board's action in this case

against the same standard we would apply to a private school.

I.

When in May 1989 the School Board was faced with the

disagreeable necessity of reducing by one the teaching staff in

the Business Department of Piscataway High School, it recognized

that reference to the applicable New Jersey law, which provides

the roadmap in terms of seniority, would not suffice here because

the two teachers had equal seniority. The Board, which has the

responsibility of gauging the educational requirements of the

students under its charge, would have to resort to its own

experience as there were no other prescribed guidelines. It did

not then turn to the affirmative action policy to make the

decision based on race. There was no built-in quota, expressed

or implied, for minority faculty, and Taxman does not so suggest.

On the contrary, the Board next considered a variety of

undoubtedly relevant factors, any one of which might have tipped

the scales in favor of laying off one teacher or the other. Had

Taxman been deemed a better teacher than Williams, that alone

could have pointed the arrow in her direction. Or, had Williams

participated in volunteer activity while Taxman spent her spare

time in other activities, that alone could have accounted for

Williams' retention. The deposition testimony of several board

members who participated in the decision indicates that before

the affirmative action policy was considered, a number of other

criteria were discussed to break the tie, including work

performance, certifications, evaluations, teaching ability, and

volunteerism. The two teachers with the least seniority, Taxman

and Williams, were determined to be equal with respect to each of

these other criteria.

The Board's Vice President, Paula Van Riper, testified:

[T]he seniority and the person's

qualifications came into play first. If one

was more senior than the other, it would have

ended right there, if they were of like

seniority. From that point it was based on

their work performance and their evaluations

. . . . There was some consideration given

. . . to the various other activities that

they did . . . . But certainly the weight

would be given to their performance in the

classroom. At that point we were told that

these are two teachers of equal ability,

equal qualifications, I should say. They

. . . both[] had good evaluations, they were

good teachers, they were supportive of the

school district, volunteered in various ways

and they . . . had similar certification or

like certification and their seniority was

the same so therefore they were equal.

Da179-80.

The equal position of both teachers in light of all

relevant criteria was also stressed by the Director of Personnel,

Gordon Moore, who explained: "we . . . concluded that work

history or performance criteria [were] not going to be usable in

breaking the tie, because there was no distinction that could be

made." Da177.

In its opinion, the majority declares the School

Board's affirmative action policy unlawful. An examination of

the so-called affirmative action policy reveals that it does

nothing more than place before the School Board the need to

consider minority personnel among other equally qualifiedcandidates for

employment decisions. Da5, 53. That this was a

necessary reminder in 1975 when the policy was formed can hardly

be gainsaid. I believe that it also was a useful reminder in

1989, when this School Board was faced with this decision, and

perhaps even today.

A review of the record makes clear that the Board did

not view itself as bound to select Williams for retention by the

1975 affirmative action policy, which speaks only of

recommendations, but after discussion and consideration the Board

made a discretionary decision to select Williams for retention to

further the educational goal of a diverse faculty. Da72, 94.

The Board members described their purpose in using the

goal of diversity underlying the previously adopted affirmative

action policy as a factor in the layoff decision as reflecting

the "general feeling . . . that it was valuable for the students

to see in the various employment roles a wide range of

background[s]," Da74, and "the desire to have a diverse teaching

staff in the school district." Da175-76. It was also intended

to send "a very clear message that we feel that our staff should

be culturally diverse [for the benefit of the students]" and to

"encourage awareness and acceptance and tolerance [of people of

all backgrounds]." Da75. Thus, the Board took into

consideration that if Williams were laid off, the Business

Department faculty at the school would be all White. Da94, 110,

168, 175-176.

II.

It was the Board's decision to include the desire for a

racially diverse faculty among the various factors entering into

its discretionary decision that the majority of this court brands

a Title VII violation as a matter of law. No Supreme Court case

compels that anomalous result. Notwithstanding the majority's

literal construction of the language of Title VII, no Supreme

Court case has ever interpreted the statute to preclude

consideration of race or sex for the purpose of insuring

diversity in the classroom as one of many factors in an

employment decision, the situation presented here. Moreover, in

the only two instances in which the Supreme Court examined under

Title VII, without the added scrutiny imposed by the Equal

Protection Clause, affirmative action plans voluntarily adopted

by employers that gave preference to race or sex as a

determinative factor, the Court upheld both plans.

In its 1979 decision in United Steelworkers v. Weber,

443 U.S. 193 (1979), the Court held that an agreement between a

private company and a union that sought to remedy the historical

exclusion of Blacks from skilled craft unions by reserving half

the openings in an in-house training program for Blacks did not

violate Title VII. A scarce decade later, it reached a similar

decision in Johnson v. Transportation Agency, Santa Clara County,

480 U.S. 616 (1987), where the plan that the Court upheld

authorized consideration of the gender of a qualified applicant

as one of various factors for promoting employees into jobs in

which women had been significantly underrepresented.

The majority presents Weber and Johnson as if their

significance lies in the obstacle course they purportedly

establish for any employer adopting an affirmative action

program. But, as the Justices of the Supreme Court recognized,

the significance of each of those cases is that the Supreme Court

sustained the affirmative action plans presented, and in doing so

deviated from the literal interpretation of Title VII precluding

use of race or gender in any employment action. As Justice

Brennan explained in Weber, "It is a 'familiar rule that a thing

may be within the letter of the statute and yet not within the

statute, because not within its spirit nor within the intention

of its makers.'" Weber, 443 U.S. at 201 (quoting Holy Trinity

Church v. United States, 143 U.S. 457, 459 (1892)). The Justices

dissenting in those cases noted and vigorously objected to the

departure. See, e.g., Weber, 443 U.S. at 222, 228 (Rehnquist,

J., dissenting) (asserting that the majority "eludes the clear

statutory language" and that Kaiser's affirmative action plan is

"flatly prohibited by the plain language of Title VII"); Johnson,

480 U.S. at 670 (Scalia, J., dissenting) ("It is well to keep in

mind just how thoroughly Weber rewrote the statute it purported

to construe . . . Weber disregarded the text of the statute,

invoking instead its 'spirit'").

While the majority in this case views the Supreme

Court's articulation of the factors that rationalized its

upholding of the affirmative action plans in those cases as

establishing boundaries, no language in either Weber or Johnsonso states

and, in fact, there is language to the contrary. The

majority draws the line at the factors used in those cases. In

both Weber and Johnson, the Court inquired whether consideration

of race in the employment decision was justified by a permissible

purpose, and then examined the effect on nonminorities to

ascertain whether the action taken "unnecessarily trammel[ed] the

interests of the white employees." Weber, 443 U.S. at 208;

Johnson, 480 U.S. at 630.

However, it does not follow as a matter of logic that

because the two affirmative action plans in Weber and Johnsonwhich sought

to remedy imbalances caused by past discrimination

withstood Title VII scrutiny, every affirmative action plan that

pursues some purpose other than correcting a manifest imbalance

or remedying past discrimination will run afoul of Title VII.

Indeed, the Court in Weber explicitly cautioned that its holding

in that case should not be read to define the outer boundaries of

the area of discretion left to employers by Title VII for the

voluntary adoption of affirmative action measures. The Court

stated:

We need not today define in detail the line

of demarcation between permissible and

impermissible affirmative action plans. It

suffices to hold that the challenged Kaiser-

USWA affirmative action plan falls on the

permissible side of the line. The purposes

of the plan mirror those of the statute.

Both were designed to break down old patterns

of racial segregation and hierarchy. Both

were structured to "open employment

opportunities for Negroes in occupations

which have been traditionally closed to

them."

Weber, 443 U.S. at 208. See also id. at 215-16 (Blackmun, J.,

concurring)(noting that Kaiser plan "is a moderate one" and that

"the Court's opinion does not foreclose other forms of

affirmative action").

The majority opinion in Johnson made no attempt to draw

the line that Weber left undefined. See Johnson, 480 U.S. at 642

(Stevens, J., concurring) ("I write . . . to . . . emphasize that

the opinion does not establish the permissible outer limits of

voluntary [affirmative action] programs"). Although Justice

O'Connor's concurring opinion argued that permissible purposes

under Title VII were limited to those that served to remedy past

discrimination, Johnson 480 U.S. at 649, her vote was the sixth

in favor of the majority's holding and therefore not crucial to

the outcome of the case. It follows that her narrow reading

should not be read as constituting the view of the Court. SeeMarks v.

United States, 430 U.S. 188, 193 (1977).

The majority here has taken the language of Weber where

the Court observed that the plan's purposes "mirrored" those of

the statute, and has elevated it to a litmus test under which an

affirmative action plan can only pass muster under Title VII if

particular language in the text or legislative history of the

statute can be identified that matches the articulated purpose of

the plan. Nothing in Weber suggests that the Court intended by

its "mirroring" language to create such a rigid test.

In Weber, when the Court found that the purposes of the

plan were consistent with those of Title VII, it did so by

reference not only to the language of the legislative history,

but to the historical context from which the Act arose as well.

Id. at 201. In Johnson, the Court made no attempt at all to

identify language in the legislative history paralleling the

particular objectives of the plan it sustained. Thus, even in

those cases the Court did not demonstrate the kind of close fit

between the plan and the statutory history demanded of the Board

in this case.

In Weber, the Court's examination into the purposes of

Title VII led it to the conclusion that the Act was designed to

promote "the integration of blacks into the mainstream of

American society," Weber, 443 U.S. at 202, and the breakdown of

"old patterns of racial segregation and hierarchy," id. at 208.

The Kaiser affirmative action plan was consistent with these

sweeping, broadly stated purposes and hence was sustained.

Of course, I do not disagree with the majority that

"Title VII was written to eradicate not only discrimination per

se but the consequences of prior discrimination," but I do not

believe that in doing so, Congress intended to limit the reach of

Title VII to remedying past discrimination, thereby turning a

blind eye toward those social forces that give rise to future

discrimination. Title VII, which was a part of the Civil Rights

Act of 1964, was fundamentally forward-looking legislation, and

that purpose should not be ignored.

The effort to remedy the consequences of past

discrimination (such as the "patterns of segregation and

hierarchy" referred to in Weber, 443 U.S. at 208), cannot be

isolated from the statute's broader aim to eliminate those

patterns that were potential causes of continuing or future

discrimination. The causal relationship is illustrated by the

industry at issue in Weber, where the Court noted that the

ongoing imbalance in the hiring of craftworkers had its roots in

a history of discrimination that had excluded Blacks from craft

unions and thus prevented them from acquiring the necessary

qualifications. Id. at 198. In describing the overarching goal

toward which the Civil Rights Act was aimed, the House Report

spoke of the need to "eliminat[e] all of the causes and

consequences of racial and other types of discrimination against

minorities." H.R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, at

18 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393 (emphasis

added).

Thus, using the approach taken in Weber and Johnson as

a springboard, actions consistent with and in furtherance of the

broad statutory goal of eliminating the causes of discrimination

are not per se proscribed by Title VII. This generation of young

people may not recall that in 1964 racial homogeneity in schools

was viewed as among the most fundamental and pernicious aspects

of the social pattern undergirding the system of discrimination

that the Civil Rights Act sought to dismantle. In the years

leading up to the Act's passage, school integration was one of

the focal points of the civil rights movement. The Senate Report

accompanying the 1972 amendments to Title VII, when it was

expanded to cover state and local governments, noted the

connection between racial homogeneity in schools and attitudes

that lead to discrimination:

It is difficult to imagine a more

sensitive area than educational

institutions where the youth of the

Nation are exposed to a multitude of

ideas and impressions that will strongly

influence their future development. To

permit discrimination here [among

faculty and staff] would, more than in

any other area, tend to promote existing

misconceptions and stereotypical

categorizations which in turn would lead

to future patterns of discrimination.

S. Rep. No. 415, 92nd Cong., 1st Sess. 12 (1971)).

In other contexts, the Court has repeatedly recognized

racial diversity in the classroom as an important means of

combatting the attitudes that can lead to future patterns of

discrimination. As Justice Stevens observed in Wygant:

In the context of public education, it is

quite obvious that a school board may

reasonably conclude that an integrated

faculty will be able to provide benefits to

the student body that could not be provided

by an all-white, or nearly all-white,

faculty. For one of the most important

lessons that the American public schools

teach is that the diverse ethnic, cultural

and national backgrounds that have been

brought together in our famous "melting pot"

do not identify essential differences among

the human beings that inhabit our land. It

is one thing for a white child to be taught

by a white teacher that color, like beauty,

is only "skin deep"; it is far more

convincing to experience that truth on a day-

to-day basis during the routine ongoing

learning process.

476 U.S. at 315 (Stevens, J., dissenting). See also Johnson, 480

U.S. at 647 (Stevens, J., concurring) (noting educational benefit

to be derived from racial diversity, "'by dispelling for black

and white students alike any idea that white supremacy governs

our social institutions'" (quoting Sullivan, The Supreme Court--

Comment, Sins of Discrimination: Last Term's Affirmative Action

Cases, 100 Harv.L.Rev. 78, 96 (1986))); Washington v. Seattle

School Dist. No. 1, 458 U.S. 457, 473 (1982) ("Attending an

ethnically diverse school may help . . . prepar[e] minority

children 'for citizenship in our pluralistic society,' while, we

may hope, teaching members of the racial majority 'to live in

harmony and mutual respect' with children of minority

heritage."(citations omitted)); Columbus Bd. of Educ. v. Penick,

443 U.S. 449, 461, 467 (1979) (disapproving policies that

"deprive black students of opportunities for contact with and

learning from white teachers, and . . . deprive white students of

similar opportunities to meet, know and learn from black

teachers"); Kromnick v. School District of Philadelphia, 739 F.2d

894, 905 (3d Cir. 1984)("Schools are great instruments in

teaching social policy [from which students learn] from the

images and experiences that surround them . . . a spirit of

tolerance and mutual benefit."), cert. denied, 469 U.S. 1107

(1985).

It is "ironic indeed" that the promotion of racial

diversity in the classroom, which has formed so central a role in

this country's struggle to eliminate the causes and consequences

of racial discrimination, is today held to be at odds with the

very Act that was triggered by our "Nation's concern over

centuries of racial injustice." Weber, 443 U.S. at 204. Nor

does it seem plausible that the drafters of Title VII intended it

to be interpreted so as to require a local school district to

resort to a lottery to determine which of two qualified teachers

to retain, rather than employ the School Board's own educational

policy undertaken to insure students an opportunity to learn from

a teacher who was a member of the very group whose treatment

motivated Congress to enact Title VII in the first place. In my

view, the Board's purpose of obtaining the educational benefit to

be derived from a racially diverse faculty is entirely consistent

with the purposes animating Title VII and the Civil Rights Act of

1964.

The majority criticizes the Board's use of caselaw

construing the Equal Protection Clause in this Title VII case,

notwithstanding the Supreme Court's explicit statement in Johnsonthat

Title VII's constraint on affirmative action was "not

intended to extend as far as that of the Constitution." 480 U.S.

at 628 n.6. Nothing in the Court's language in the Johnsonfootnote

suggests that we confine it to the particular factual

context in which it was made, and the Court is certainly

sufficiently articulate to limit its language when so inclined.

Nor is the Johnson footnote the only place where the Court

signified its understanding that Title VII imposes fewer

limitations on employers' voluntary affirmative action than does

the Constitution. In Weber, the Court spoke of the "narrowness

of [its] inquiry" since the plan did not involve state action and

hence did not present an alleged violation of the Equal

Protection Clause, Weber, 443 U.S. at 200, and later stated that

"Title VII . . . was not intended to incorporate and

particularize the commands of the Fifth and Fourteenth

Amendments." Id. at 206 n.6 (quoted in Johnson, 480 U.S. at 627

n.6). The latter statement was not made in a discussion that had

to do with the "factual predicate" for demonstrating the need for

remedial affirmative action, as the majority would confine the

similar language in Johnson.

In any event, ultimately it is the Supreme Court rather

than this one that will decide whether Title VII allows an

employer more discretion to implement race-conscious employment

policies than does the Constitution in the employer's effort to

promote the underlying goals of the Act. But, in the absence of

any dispositive precedent, I believe it would be shortsighted for

us to disregard the Supreme Court's statements regarding the

advantages of diversity in an educational context when examining

the limited use to which diversity was used as a factor in the

Board's decision here. In Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), where the Court

considered a University of California affirmative action program

for student admissions, Justice Powell, who announced the

judgment of the Court, recognized that a diverse student body

leads to a "robust exchange of ideas," id. at 312 (quoting

Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)), and

noted that the "essential" elements of academic freedom include

the ability not only to select the student body but to determine

"who may teach," id. (quoting Sweezy v. New Hampshire, 354 U.S.

234, 263 (1957)).

In Wygant v. Jackson Board of Education, 476 U.S. 267

(1986), the Court held that preferential protection against

layoffs afforded to minority teachers by the public school

board's affirmative action plan could not be sustained, because

the school board's proffered justification for the plan -- that

minority teachers were needed to provide role models for minority

students -- was not sufficiently compelling to withstand the

strict scrutiny to which it was subject under the Fourteenth

Amendment. Id. at 274-276 (Powell, J., joined by Burger, C.J.,

Rehnquist, J. and O'Connor, J.); id. at 288 (O'Connor, J.,

concurring); id. at 295 (White, J., concurring). However,

Justice O'Connor, in her concurring opinion which was the

decisive vote in the Court's holding, specifically distinguished

the goal of providing role models from "the very different goal

of promoting racial diversity among the faculty," explicitly

leaving open the possibility that the latter goal might be

sufficiently compelling to pass constitutional muster. Id. at

288 n.*. She also made a favorable reference to Justice Powell's

endorsement of diversity in the classroom in Bakke, stating,

"although its precise contours are uncertain, a state interest in

the promotion of racial diversity has been found sufficiently

'compelling,' at least in the context of higher education, to

support the use of racial considerations in furthering that

interest." Id. at 286. Her position, plus that of the four

dissenting justices, (Marshall, J., dissenting, joined by Brennan

& Blackmun, JJ.) (seeking "to achieve diversity and stability for

the benefit of all students" through faculty integration is a

constitutionally sufficient purpose); id. at 315 (Stevens, J.,

dissenting) ("'recognition of the desirability of multi-ethnic

representation on the teaching faculty'" is a "completely sound

educational purpose" (citation omitted)), meant there were five

justices in Wygant who approved in general terms the concept that

the educational benefit derived from diversity in the classroom

can constitute an acceptable justification for affirmative

action. See also Britton v. South Bend Community School Corp.,

819 F.2d 766, 773 n.1 (7th Cir.) (en banc) (Flaum & Bauer, JJ.,

concurring) ("Remedying past discrimination is not necessarily

the only government purpose sufficiently compelling to justify

the remedial use of race. Providing faculty diversity may be a

second."), cert. denied, 484 U.S. 925 (1987); Zaslawsky v. Board

of Education of Los Angeles, 610 F.2d 661, 664 (9th Cir. 1979)(in

equal protection context, purpose of "enhanc[ing] the educational

opportunities available to the students by achieving better

racial balance in the teaching faculty . . . has been well

recognized and approved by the Supreme Court").

I therefore respectfully disagree with the majority,

both in its construction of Weber and Johnson as leaving no doors

open for any action that takes race into consideration in an

employment situation other than to remedy past discrimination and

the consequential racial imbalance in the workforce, and in what

appears to be its limited view of the purposes of Title VII. I

would hold that a school board's bona fide decision to obtain the

educational benefit to be derived from a racially diverse faculty

is a permissible basis for its voluntary affirmative action under

Title VII scrutiny.

III.

It is undeniable that, in the abstract, a layoff

imposes a far greater burden on the affected employee than a

denial of promotion or even a failure to hire. In this case,

however, it cannot be said with any certainty that Taxman would

have avoided the layoff had the Board's decision not been race-

conscious. If a random selection had been made, Taxman would

have had no more than a fifty-percent chance of not being laid

off. Thus, this was not a situation where Taxman had a

"legitimate and firmly rooted expectation" of no layoff.

Johnson, 480 U.S. at 638; cf. Mackin v. City of Boston, 969 F.2d

1273, 1278 (1st Cir. 1992) (where, even in absence of affirmative

action scheme, White applicants "could not reasonably have felt

assured that they would be appointed," plan did not disturb any

legitimate expectations), cert. denied, 113 S.Ct. 1043 (1993).

This differs from the situation of an employee who is

next in line for a promotion by the objective factor of

seniority. Taxman's qualifications were merely equal to those of

her competitor for this purpose. In Johnson the Court held that

because there were six other employees who also met the

qualifications for the job, Johnson had no "entitlement" or

"legitimate firmly rooted expectation" in the promotion, even

though he had scored higher than the others on the qualifying

test. See Peightal v. Metropolitan Dade County, 940 F.2d 1394,

1408 (11th Cir. 1991) (affirmative action plan valid under Title

VII where it never requires hiring unqualified person over

qualified person), cert. denied, 502 U.S. 1073 (1992); cf. United

States v. Paradise, 480 U.S. 149, 177-78 (same under equal

protection). Moreover, just as the plaintiff in Johnson remained

eligible for promotion in the future, 480 U.S. at 638, Taxman

retained recall rights after her layoff, and did in fact regain

her job.

The majority relies in part on Wygant, where the

Supreme Court found that the use of faculty layoffs to meet

affirmative action goals in a public school system imposed too

heavy a burden on White employees. Wygant, 476 U.S. at 282-83.

However, the Court's holding that the Wygant plan was not

"narrowly tailored" for purposes of an equal protection challenge

is not dispositive of the present inquiry as to whether a plan

"unnecessarily trammels" the rights of White employees for Title

VII purposes. Not only was a different legal standard applicable

but Wygant is also distinguishable because the Wygant plan caused

nonminority teachers with more seniority to be laid off in order

to retain minority teachers with less seniority. Wygant, 476

U.S. at 282. The Wygant plan actually caused teachers to be laid

off who, in the absence of the plan, would have had no risk of

layoff. That burden -- increasing the chance of layoff from zero

to one hundred percent -- is significantly heavier than that

imposed on Taxman, who would have had a substantial chance of

being laid off even absent any consideration of diversity.

Only three members of the Court subscribed to language

in the plurality opinion in Wygant suggesting that the use of

layoffs to accomplish affirmative action goals will never survive

strict scrutiny. See 476 U.S. at 284. The two concurring

justices did not go that far. See id. at 293 (O'Connor, J.,

concurring) ("[n]or is it necessary, in my view, to resolve the

troubling question[] whether any layoff provision could survive

strict scrutiny"); id. at 295 (White, J., concurring) (confining

his conclusion to the specifics of the layoff policy at issue).

Therefore I do not read Wygant to hold that no race-conscious

layoff decision will survive Title VII scrutiny.

The majority gives a similarly narrow reading to Weberand

Johnson, construing these cases to impose a wooden,

"unequivocal" requirement that all affirmative action plans must

be explicitly temporary in order to be valid. Majority

Typescript at 40. In fact, the Johnson plan itself "contain[ed]

no explicit end date," Johnson, 480 U.S. at 639, and the Court

indicated that only certain plans that are particularly

burdensome on nonminorities in other respects need necessarily be

expressly temporary. "Express assurance that a program is only

temporary may be necessary if the program actually sets aside

positions according to specific numbers." Johnson, 480 U.S. at

639-40 (emphasis added). The Supreme Court's references to the

temporary duration of the plans at issue in Weber and Johnson are

more accurately construed as an understandable effort to assure

that race does not become a permanently embedded consideration in

employment decisions. The significant consideration is whether

there has been an effort "to minimize the effect of the program

on other employees," not whether the underlying policy is set to

run a specified number of years. Johnson, 480 U.S. at 640.

In the situation before us, I see ample basis from

which to deduce an effort to minimize the effect of the Board's

affirmative action policy on non-minority employees. One such

aspect is the discretionary nature of the policy. The Board is

free not to apply the policy, even to break a tie. Also

significant is the infrequency with which the Board has resorted

to the policy. Although it may be of little comfort to Taxman,

the fact that this is the first time in the twenty years since

the policy was adopted that it has been applied to a layoff

decision demonstrates the minimum impact on White teachers as a

whole. And since, by its own terms, it only applies in the rare

instances in which two candidates are of different races but

equal qualifications and the department in question is not

already diverse, it is likely that it will continue to be

infrequently applied. See District Court's Final Judgment and

Contingent Order, entered February 15, 1994 at 2 (denying request

for broad injunction because "[t]here is, in the court's view, no

likelihood that the conduct at issue in this case will recur").

In this connection, I deem it further evidence of the

Board's interest in minimizing any adverse effect on non-

minorities that it has not defined diversity by any specific

numerical goal. Although the majority regards that as a major

concern, I view the lack of any such figure as an indication that

the Board's plan does not impose a fixed quota with the rigidity

attendant thereto.

It is not the province of this court to intrude into

what is essentially an educational decision. Once we have

determined that promoting faculty diversity for educational

purposes can be a valid justification for an appropriately

limited race-conscious action, it is not our role to second-guess

the judgment of educators as to the level of diversity that

produces the educational environment they deem appropriate.

The Board's action is an attempt to create an educational

environment that will maximize the ability of students to address

racial stereotypes and misconceptions born of lack of

familiarity. I find it difficult to believe that an Act that was

given birth by the tensions of the civil rights era precludes it

from doing so under the facts before us here. Given the record

before us, the consequence of the narrow reading that the

majority gives Weber and Johnson is the very irony that the

Supreme Court said would result from interpreting this civil

rights statute in a manner divorced from its historic context.

As the Court noted in Weber:

[i]t would be ironic indeed if a law triggered by a

Nation's concern over centuries of racial injustice and

intended to improve the lot of those who had "been

excluded from the American dream for so long," 110

Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey),

constituted the first legislative prohibition of all

voluntary, private, race-conscious efforts to abolish

traditional patterns of racial segregation and

hierarchy.

Weber, 443 U.S. at 204.

I return to the question raised at the outset: whether

Title VII requires that the Board toss a coin to make the layoff

selection between equally situated employees. In his opinion for

the majority in Weber, Justice Brennan noted the distinction made

by Congress between requiring and permitting affirmative action

by employers. See Weber, 443 U.S. at 205-06. He deemed it

important that, while Congress explicitly provided that Title VII

should not be interpreted to require any employer to grant

preferential treatment to a group because of its race, Congress

never stated that Title VII should not be interpreted to permitcertain

voluntary efforts.

In this case, the majority gives too little

consideration to the tie-breaking method that its holding will

impose on the Board. It points to no language in Title VII to

suggest that a lottery is required as the solution to a layoff

decision in preference to a reasoned decision by members of the

School Board, some of whom are experienced educators, that race

of a faculty member has a relevant educational significance if

the department would otherwise be all White. While it may seem

fairer to some, I see nothing in Title VII that requires use of a

lottery.

Because I cannot say that faculty diversity is not a

permissible purpose to support the race conscious decision made

here and because the Board's action was not overly intrusive on

Taxman's rights, I would reverse the grant of summary judgment

for Taxman under Title VII and direct that summary judgment be

granted to the School Board.

Taxman v. Bd. of Educ. of the Twp. of Piscataway, 94-5090/5112

SCIRICA, Circuit Judge, dissenting, with whom Chief Judge

Sloviter joins.

While I find much with which I agree in the majority's

opinion, I am constrained to express my disagreement because I

believe education presents unique concerns.

In University of California Regents v. Bakke, 438 U.S.

265 (1978), Justice Powell recognized that "the 'nation's future

depends upon leaders trained through wide exposure' to the ideas

and mores of students as diverse as this Nation of many peoples."

Id. at 313 (citation omitted). As he noted, in the university:

"[A] great deal of learning occurs . . . through interactions

among students of both sexes, of different races, religions, and

backgrounds . . . ." Id. at 312-13 n.48 (citation omitted).

Eighteen years later, the wisdom of this statement resonates as

strongly as ever. When added to a university's high academic

standards, this exposure constitutes a formidable educational

experience.

In this case, the Piscataway Board of Education

concluded that a diverse faculty also serves a compelling

educational purpose; namely, it benefits students in the business

department by exposing them to teachers with varied backgrounds.

The Board implemented a program that, in limited circumstances,

allows consideration of race as a factor in school employment

decisions. The Board did not countenance the layoff of a more-

qualified teacher in the place of a less-qualified one. It did

not prefer teachers junior in seniority to those with more

experience. Rather it concluded that when teachers are equal in

ability and in all other respects--and only then--diversity of

the faculty is a relevant consideration.

I do not believe Title VII prevents a school district,

in the exercise of its professional judgment, from preferring one

equally qualified teacher over another for a valid educational

purpose.

Accordingly, I respectfully dissent.

United States v. Bd. of Educ. of the Twp. of Piscataway

Sharon Taxman v. Bd. of Educ. of the Twp. of Piscataway

Nos. 94-5090 and 94-5112

LEWIS, Circuit Judge, with whom Judge McKee joins, dissenting.

I join in Chief Judge Sloviter's dissent, as well as

those of each of my dissenting colleagues.

I would only add that we should be mindful of the

effects the majority's approach will impose upon legitimate,

thoughtful efforts to redress the vestiges of our Nation's

history of discrimination in the workplace and in education;

efforts which, in seeking to achieve pluralism and diversity,

have helped define and enrich our offices and institutions, and

which were intended to open, and keep open, the doors of

opportunity to those who have "been excluded from the American

dream for so long." See 110 Cong. Rec. 6552 (1964) (excerpted

from Sen. Humphrey's remarks). This, after all, is what I had

always thought Title VII was intended to accomplish. More

importantly, as Chief Judge Sloviter notes, these goals are

plainly supported by the statute's legislative history. Thus,

while the majority holds that Title VII only allows race to be

considered in remedying a history of intentional discrimination

or a "manifest imbalance," I believe this conclusion is

fundamentally at odds with the overriding goals of the statute.

And the real-life impact of the majority's unprecedented

construction of Title VII is readily apparent when one

contemplates the myriad of difficult decisions that employers

across the nation face everyday.

Somewhere out there in the real world, for example,

there is a law firm with a racial make-up (a workforce) akin to

Piscataway High School's; a firm which lacks a history of

intentional discrimination in hiring but, due to economic

concerns, must decide between retaining one of two attorneys --

the first and only black associate to work in its prestigious

anti-trust department, or his equally qualified white

counterpart. The firm's management committee may decide that to

lay-off the black associate would be an unwise and potentially

damaging business decision because it would negate the large

investment of time, effort and money spent trying to recruit and

retain minority lawyers. In other words, the firm may believe

that diversity would be good for business and good for itself,

so, everything else being equal, it decides to lay-off the white

associate.

In a situation such as this, the firm's reliance upon

race as one among many factors in making its decision is the type

of management prerogative which is totally consistent with the

goals and underlying purpose behind Title VII. See Weber, 443

U.S. at 206 (noting that Title VII's legislative history

demonstrates that the statute was not intended to place

unnecessary limits upon "management prerogatives"). After it

reads the majority's decision, however, it seems clear that the

firm will be forced to disregard its own better business

judgment, forsake its recent recruiting successes among

minorities and, I suppose, flip a coin on its own future as well

as the young associates', all in order to avoid the specter of

Title VII liability and an enormous damage award.

At times, a private college, with a handful of

minorities on its faculty and with no history of intentional

discrimination in hiring, is faced with the unenviable task of

deciding which of two young associate professors with

indistinguishable records to grant tenure in a particular

department. The only difference between the two is that one is

white and the other is Latino. After reviewing all of the other

factors and finding them in equipoise, the tenure committee may

decide to offer the position to the Latino associate professor

because there has never been a tenured Latino professor in any

department at the college, and because it believes his presence

at the college will be a significant benefit to the entire

student body. As with the law firm, this decision is entirely

consistent with Title VII because it is motivated by some of the

same concerns that lead Congress to enact the statute. SeeWeber, 443 U.S.

at 208 (noting that the plan was valid under

Title VII in part because the "purposes . . . mirror those of the

statute").

But again, the majority's rationale will thwart the

college's ability to rely upon its independent judgment in

deciding what is in the best interests of the students whom it is

charged with educating. Instead, according to the majority, that

important judgment is better exercised (in this case may only be

exercised) by resorting to a coin-flip.

One could cite countless other examples of the

significant and ultimately counterproductive effects of the

majority's narrow construction of Title VII, but suffice it to

say that in my view, Title VII was not enacted to prevent the

thoughtful, deliberative processes employed by such a law firm or

college. I believe that in this case the school board's decision

to consider race, among other factors, in an attempt to ensure a

diverse faculty for its students was in furtherance of Title

VII's goal of breaking-down "existing misconceptions and

stereotypical categorizations which in turn lead to future

patterns of discrimination." See S. Rep. No. 415, 92nd Cong.,

1st Sess. 12 (1971). Accordingly, its decision was as legal as

it was laudable.

I believe the majority's decision eviscerates the

purpose and the goals of Title VII. I respectfully

dissent.Taxman v. Board of Education of the Twp. of Piscataway

Nos. 94-5090 & 94-5112

McKEE, Circuit Judge, dissenting, with whom SLOVITER, Chief Judgeand

LEWIS, Circuit Judge join.

I join each the opinions of my dissenting colleagues,

but write only to elaborate upon what I consider to be important

considerations in our analysis. "The prohibition against racial

discrimination in §§ 703(a) and (d) of Title VII must [ ] be read

against the background of the legislative history of Title VII

and the historical context from which the Act arose." United

Steelworkers v. Weber, 443 U.S. 193, 201 (1979).

We have now come full circle. A law enacted by Congress

in 1964 to move this country closer to an integrated society and

away from the legacy of "separate but equal" is being interpreted

as outlawing this Board of Education's good faith effort to teach

students the value of diversity. The selection of Ms. Williams

meant that the business department would retain the only Black

teacher tenured in that department in anyone's memory. Board

President Theodore H. Kruse testified that it was his "general

feeling . . . that it was valuable for the students to see in the

various employment roles a wide range of background[s]" and that

diversity "was also valuable to the work force and in particular

to the teaching staff." Da74. Kruse further explained that "by

retaining Mrs. Williams it was sending a very clear message that

we feel that our student population is culturally diverse and

there is a distinct advantage to students . . . to be made . . .

more aware, more tolerant, more accepting, more understanding of

people of all background[s]." Da75. I can not believe that

Title VII was intended to strike down such an action.

As Chief Judge Sloviter points out, the majority's

ruling is based upon an interpretation of United Steelworkers v.

Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency,

480 U.S. 616 (1987) that conflicts with the language used in

those cases. See Typescript at 10-11 (Sloviter, C.J.,

dissenting). The majority's conclusion that affirmative action

plans not limited to attempts to remedy past discrimination run

afoul of Title VII simply ignores the legislative history that

Weber and Johnson require us to consider.

Given the interpretation of [Title VII] the

Court adopted in Weber, I see no reason why

the employer has any duty, prior to granting

a preference to a qualified minority

employee, to determine whether his past

conduct might constitute an arguable

violation of Title VII. Indeed, in some

instances the employer might find it more

helpful to focus on the future. Instead of

retroactively scrutinizing his own or

society's possible exclusions of minorities

in the past to determine the outer limits of

a valid affirmative-action program -- or

indeed, any particular affirmative-action

decision -- in many cases the employer will

find it more appropriate to consider other

legitimate reasons to give preferences to

members of under-represented groups.

Statutes enacted for the benefit of minority

groups should not block these forward-looking

considerations.

480 U.S. at 646-47 (Stevens, J., concurring). This is

particularly true in the field of education where young people

are developing opinions and beliefs that will determine their

attitudes as citizens, and this country's future. Under such

circumstances, the School Board considered Ms. Williams' race as

a factor that was weighed in the balance with all other factors

in making a very difficult choice between two equally fine

teachers.

Similar consideration of an employee's sex has been

upheld in Johnson. There, the Court stated:

We therefore hold that the Agency

appropriately took into account as one factor

the sex of [the employee] in determining that

she should be promoted to the road dispatcher

position. The decision to do so was made

pursuant to an affirmative action plan that

represents a moderate, flexible, case-by-case

approach to effecting a gradual improvement

in the representation of minorities and women

in the Agency's work force. Such a plan is

fully consistent with Title VII, for it

embodies the contribution that voluntary

employer action can make in eliminating the

vestiges of discrimination in the workplace.

480 U.S. at 641-42. Thus, I disagree with the majority's

conclusion that "there is no congressional recognition of

diversity as a Title VII objective requiring accommodation."

Maj. Op. at 24.

To be sure, I can understand the majority's concern

over allowing race to be a factor in any decision. History

loudly proclaims the evil that can spring from such practices,

and it is sometimes all too easy to simply ignore that evil when

the practice appears to be driven by a benign purpose. However,

I do not believe that what the Board of Education was attempting

to do here, nor the individualized manner in which it was

attempting to do it, runs afoul of a Congressional enactment

cloaked in the legislative history recounted herein, and in the

opinions of my colleagues.

Not that long ago the President's Commission on Civil

Disorders (the "Kerner Commission") warned that "[o]ur nation is

moving toward two societies, one black, one white -- separate and

unequal." Report of The National Advisory Commission on Civil Disorders,

at

1 (March 1, 1968). Some may view the Board's efforts here as yet

another push in that direction. Indeed, if we were writing upon a

clean slate that would no doubt be true. But of course, we do

not do that. The shadows and images that moved Congress to enact

Title VII in 1964 are already etched into our slate, and they

define the reality that should guide our analysis. The Board has

responded to those shadows with an action that is a narrow,

individualized and reasoned attempt to foster respect for

diversity. Because that is consistent with the purposes of Title

VII, I respectfully dissent.