No. 96-679	

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

PISCATAWAY TOWNSHIP BOARD OF EDUCATION,
PETITIONER

v.

SHARON TAXMAN

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

WALTER DELLINGER
Acting Solicitor General

ISABELLE KATZ PINZLER
Acting Assistant Attorney
General

SETH P. WAXMAN
Deputy Solicitor General

WILLIAM R. YEOMANS
Acting Deputy Assistant 
Attorney General

IRVING L. GORNSTEIN
Assistant to the Solicitor 
General

DAVID K. FLYNN
LESLIE A. SIMON
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202)514-2217

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QUESTIONS PRESENTED

    1. Whether Title VII prohibits all non-remedial,
race-conscious affirmative action in employment.
    2. Whether Title VII prohibits race-conscious af-
firmative action in employment that is designed to
foster diversity in the faculty of a department of a
high school.
    3. Whether Title VII prohibits the use of race as a
factor in a layoff decision when the purpose of using
race is to foster diversity in the faculty of a depart-
ment of a high school.
    4. Whether respondent was entitled to full back-
pay, when there was a 50% chance that she would have
been laid off if her race had not been considered.

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TABLE OF CONTENTS

Statement . . . . 1
Discussion . . . .8.
Conclusion . . . . 20

TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Pens, 115 S. Ct.
2097(1995) . . . . 9
Barhold v. Rodriguez, 863 F.2d 233(2d Cir.
1988) . . . . 10
Detroit Police Officers' Ass'n v. Young, 608
F.2d 671(6th Cir. 1979), cert. denied, 452 U.S.
938 (1981) . . . . 10
Firefighters  v. Stotts, 467 U. S. 561(1984) . . . . 17
General Elec. Co. v. Gilbert, 429 U. S.125 (1976) . . . . 13
Jacobson v. Cincinnati Bd. of Educ., 961 F.2d
100(6th Cir.), cert. denied, 506 U.S. 830(1992) . . . . 11
Johnson v. Transportation Agency, 480 U.S.
616 (1987) . . . . 7, 12, 17
Local 28 0f  Sheet Metal Workers' Int'l  Ass'n v.
EEOC, 478 U.S .421 (1986) . . . . 17
Metro Broadcasting, Inc. v. FCC, 497 U.S.
547(1990), overruled in part on other grounds,
Adarand Constructors, Inc. v. Pens, 115S. Ct.
2097 (1995) . . . . 5-6
Minnick v. California Dep't of Corrections, 157
Cal. Rptr. 260 (Ct. App. 1979), cert. dismissed,
452 U.S. 105 (1981) . . . . 10
Regents of the Univ. of Cal. v. Bakke, 438 U.S.
265 (1978) . . . . 5, 11-12, 14
Talbert v. City of Richmond, 648 F.2d 925
(4th Cir. 1981), cert. denied, 454 U.S. 1145
(1982) . . . . 10
United States v. Paradise, 480 U. S. 149(1987) . . . . 17
United Steelworkers v. Weber, 443 U.S. 193
(1979) . . . . 5, 13, 14, 17

(III)

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Cases-Continued              Page

Wittmer v. Peters, 87  F.3d 916 (7th Cir. 1996),
cert. denied, 117 S. Ct. 949 (1997) . . . . 11
Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1986) . . . . 12, 17
Zaslawsky v. Board -of Educ., 610 F.2d 661
(9th Cir. 1979) . . . . 11
Constitution and statutes:
U.S. Const. Amend. XIV (Equal Protection
Clause) . . . . 3
Civil Rights Act of 1964, 42 U.S.C. 2000a et seq
  Tit. VI, 42 U.S.C.  2000d . . . . 14
  Tit. VII, 42 U.S.C. 2000e . . . .  passim

Miscellaneous:

110 Cong. Rec. 6548  (1964) . . . . 13
Office of Associate Attorney General Memorandum
to General Counsels, Post-Adarand Guidance on
Affirmative Action in Federal Employment
(Feb. 29, 1996) . . . . 9
Office of Legal Counsel Memorandum to General
Counsels, Re: Adarand (June 28, 1995) . . . . 9
S. Rep. No. 415, 92d Cong., 1st Sess. (1971) . . . .  7-8, 14-15

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-679

PISCATAWAY TOWNSHIP BOARD OF EDUCATION,
PETITIONER

v.

SHARON TAXMAN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES
AS  AMICUS CURIAE

    This brief is submitted in response to the Court's
order inviting the Solicitor General to express the
views of the United States.

STATEMENT

    1. In May 1989, the Board of Education of the
Township of Piscataway (petitioner) decided to elimi-
nate a position in the Business Education Depart-
ment of the Piscataway High School. Pet. App. 12a.
Under New Jersey law, petitioner was required to lay
off tenured faculty in reverse order of seniority,
except in the case of a tie. Ibid. The two people with
the least seniority in the Business Education Depart-
ment were respondent Sharon Taxman, who is white,
and Debra Williams, who is black, and they had equal

(1)

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2

seniority.  Ibid. Williams was the only minority
teacher in the Business Education Department. Ibid.
    In prior layoffs, petitioner had broken seniority ties
through random selection. Pet App. 12a-13a. This
time, petitioner decided to invoke its affirmative
action plan. Id. at 13a. That plan specified

    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.

Id. at 11a. The plan was applicable to "every aspect of
employment including . . . layoffs," and blacks were
among those " meeting the criteria of the affirmative
action program." Ibid.
    After considering such factors as classroom per-
formance, evaluations, volunteerism, and certifica-
tions, petitioner determined that respondent and
Williams were equally qualified. Pet. App. 13a. At
that point, petitioner did not feel bound to make its de-
cision on the basis of the affirmative action plan. Ibid.
It made a discretionary decision to do so, however,
because it wanted to retain a minimum level of diver-
sity in the Business Education Department. Ibid.
Petitioner therefore laid off respondent and retained
Williams. Ibid. That was the first time petitioner
had used its affirmative action plan in making an
employment decision since the plan's adoption in 1975.
Def. C.A. APP, 191.
    When petitioner discharged respondent, the per-
centage of black teachers employed by petitioner ex-
ceeded the percentage of black teachers in the
qualified labor pool, Pet. App. 11a-12a, and petitioner
has never sought to justify its decision to lay off re-

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spondent rather than Williams as a remedial measure.
Pet. 5 & n.2.  Instead, petitioner has relied on the
educational benefits of a diverse faculty.  Pet. 5.
Petitioner's president articulated those benefits as
follows:

    In my own personal perspective I believe by retain-
    ing Mrs. Williams it was sending a very clear
    message that we feel that our staff should be
    culturally diverse, our student population is cul-
    turally 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.
Pet. App. 14a.

    2. After respondent was laid off, she filed a charge
with the Equal Employment Opportunity Commis-
sion, alleging that she had been subjected to dis-
crimination, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-2. Pet. App. 15a.
The charge was referred to the Department of
Justice, and the United States filed a Title VII suit
against petitioner. Ibid.  Respondent intervened
and also asserted a claim under Title VII. Ibid.
Respondent did not assert a claim under the Equal
Protection Clause of the Fourteenth Amendment. Id.
at 15a n.5 1.

___________________(footnotes)

    1 Respondent also asserted a claim under the New Jersey
Law Against Discrimination (NJLAD).  The lower courts con-
cluded that the NJLAD incorporates Title VII standards, Pet.
App. 47a, 99a n.5, and the petition does not raise any question
concerning the correctness of that conclusion.  We therefore do
not discuss respondent's NJLAD claim further.

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4

    On cross-motions for summary judgment, the
district court found that petitioner had violated Table
VII. Pet. App. 88a-124a.  The court held that peti-
tioner's asserted purpose of promoting diversity in a
department of a high school for educational reasons is
not a permissible basis for affirmative action under
Title VII. Id. at 109a, 116a-l17a.  The court also held
that, even if department diversity were a valid Title
VII goal, petitioner's affirmative action plan was
"overly intrusive to the rights of nonminorities," id.
at 123a, because it applied to layoffs and lacked a
termination point. Id. at l17a-123a.
    The court awarded  respondent  $123,240.57 in back-
pay, $10,774.05 for the costs of obtaining insurance
coverage, $10,000 in compensatory relief, and retro-
active seniority.  Pet.App. 85a-87a.  By the time of the
district court's remedial order, respondent had been
rehired, so there was no need for an order reinstating
her. Id. at 16a.  By then, petitioner was also in the
process of voluntarily abandoning its affirmative
action policy to the extent that it authorized the use
of race in making employment decisions. Def. Tr. Br.
2.  The district court therefore found "no likelihood
that the conduct at issue in this case will recur, and
thus * * * no need for an injunction." Pet. App. 85a
n.1. Petitioner formally abandoned its affirmative
action policy in 1994.  Resp. Br. in Opp. 6.
    Because petitioner was still subject to a money
judgment, it appealed.  The United States sought
leave to file a brief as amicus curiae supporting re-
versal of the judgment. Pet. App. 16a. That brief
stated (at 11) that, "[u]pon review of the position that
we took below, we have concluded that the United
States advocated-and the district court adopted-too
limited a view of the permissible scope of lawful

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5

affirmative action under Title VII."  The court of
appeals denied the United States' motion to partici-
pate as amicus curiae.  Instead, it treated the motion
as a request to withdraw as a party, which it granted.
Pet. App. 16a.
    3. The court of appeals, sitting en bane, affirmed
the judgment of the district court. Pet. App. 7a-83a.
The court held that affirmative action plans are valid
under Title VII only when they (1) "have pur-
poses that mirror those of the statute" and (2) do
not "unnecessarily trammel the interests" of non-
minority employees.  Id. at  9a (quoting United
Steelworkers v. Weber, 443 U.S. 193,208 (1979)).  The
court concluded that petitioner's policy did not satisfy
either requirement. Ibid.
    With respect to the first requirement, the court
stated that, "unless an affirmative action plan has a
remedial purpose, it cannot be said to mirror the
purposes of the statute." Pet. App. 29a.  The court
noted that petitioner's  "sole purpose in applying its
affirmative action policy in this case was to obtain an
educational benefit: and that petitioner's plan was
not adopted "to remedy past discrimination or as the
result of a manifest imbalance in the employment of
minorities." Id. at 44a.  The court therefore conc-
luded that petitioner violated Title VII when it
invoked its affirmative action plan to lay off respon-
dent.  Ibid.
    The court rejected petitioner's reliance on cases
addressing the constitutionality of non-remedial
affirmative action, such as Regents of University of
California v. Bakke, 438 U.S. 265, 311-315 (1978)
(Powell, J.), and Metro Broadcasting, Inc. v. FCC', 497
U.S. 547,568 & n.15 (1990), over ruled  in part on other
grounds by Adarand Constrictors, Inc. v. Pena, 115

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6

S. Ct. 2097 (1995). Pet. App. 34a-43a. The court of
appeals stated that, "[w]hile 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." Id.
at 36a-37a. The court of appeals was also "unper-
suaded that the Equal Protection case law validates
[petitioner's] asserted goal of racial diversity." Id. at
37a. 
    The court of appeals also concluded that peti-
tioner's affirmative action policy unnecessarily tram-
meled the interests of non-minorities.  Pet. App. 44a-
47a.  The court criticized the plan because it did not
address "what degree of racial diversity * * * is
sufficient" (id. at 45a); the court perceived the plan to
be "an established fixture of unlimited duration"
(ibid.); and the court was "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 [petitioner's] goal of racial diversity, even if
legitimate under Title VII, may not be pursued in this
particular fashion."  Id. at 46a.
    Judge Stapleton filed a concurring opinion, agree-
ing that "non-remedial affirmative action employment
decisions cannot pass muster under Title VII.  " Pet.
App. 53a.  He expressed no view,  however, on whether
petitioner's "actions unnecessarily trammel[led]
[respondent's] interests."  Ibid.
    Four judges dissented. Pet. App. 53a-83a.  Chief
Judge Sloviter (joined by Judges Lewis and McKee)
concluded that affirmative action is permissible under
Title VII not only when it remedies prior employment
discrimination, but also when it furthers Title VII's
broader  "goal of eliminating the causes of discrimina-
tion." Id. at 63a.  Judge Sloviter noted that racial

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7

diversity in the classroom is "an important means of
combatting the attitudes that can lead to future
patterns of discrimination." Id. at 64a.  She therefore
concluded that petitioner's "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."  Id. at
69a.
    Judge Sloviter also concluded that petitioner's
layoff decision did not unnecessarily trammel respon-
dent's interests. Pet. App. 69a-74a.  Because respon-
dent had "no more than a fifty-percent chance of not
being laid off; Judge Sloviter reasoned, respondent
did not have a "  legitimate  and  firmly rooted expecta-
tion' of no layoff." Id. at 69a (quoting Johnson v.
Transportation Agency, 480 U.S. 616, 638 (1987).
Judge Sloviter also found that petitioner's affirma-
tive action policy had a minimum impact on non-
minorities, because it applied only "in the rare
instances in which two candidates are of different
races but equal qualifications and the department in
question is not already diverse." Id. at 72a.
    Judge Scirica (joined by Chief Judge Sloviter)
concluded  that "education  presents unique concerns"
that permit a school district, "in the exercise of
its professional judgment," to prefer "one equally
qualified teacher over another for a valid educational
purpose." Pet. App. 75a-76a.  Judge Lewis (joined by
Judge McKee) concluded that petitioner'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 catego-
rizations which in turn lead to future patterns of
discrimination.'" Id. at 79a (quoting S. Rep. No. 415,

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8

92d Cong., 1st Sess. 12 (1971)). And Judge McKee
(joined by Chief Judge Sloviter and Judge Lewis)
concluded that petitioner had made a "narrow, indi-
vidualized and reasoned attempt  to foster  respect for
diversity" that was "consistent with the purposes of
Title VII."  Id. at 83a.

DISCUSSION

    By holding that Title VII prohibits all non-remedial
affirmative action in employment, the court of appeals
incorrectly decided an issue of broad national signifi-
cance.  This case, however, is not an appropriate
vehicle for resolving that issue.  Petitioner's asser-
tion of an interest in fostering diversity in a single
department of a high school and petitioner's use
of race in a layoff decision to further that interest
make this an unrepresentative case of non-remedial
affirmative action.  This Court should await a case
that presents the question of the validity of non-
remedial affirmative action in a more typical Title
VII context.
    The unusual facts of this case, along with the lack
of any factual record or findings on the need for
diversity in the particular department at issue, also
create a significant possibility that the Court could
conclude that the layoff decision in this particular
case was unjustified without deciding the broader
question whether Title VII permits non-remedial af-
firmative action.  Moreover, because petitioner imple-
mented its affirmative action plan only once in
approximately 18 years, and then voluntarily aban-
doned it, petitioner is not well positioned to present
the  question  whether Title VII permits non-remedial
affirmative action.  The petition for a writ of certio-
rari should therefore be denied.

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    1. Following this Court's decision in Adarand
Constructors, Inc. v. Pens, supra, the Department of
Justice issued an extensive memorandum to federal
agencies setting forth the standards that this Court
and lower courts have established for assessing the
constitutional limits on governmental affirmative
action.  Office of Legal Counsel Memorandum to
General Counsels, Re: Adarand (June 28, 1995) (OLC
Mere.).  That advice addressed the application of strict
scrutiny to non-remedial affirmative action and
offered three important guiding principles drawn
from the decisions of this Court and lower courts.
First, "to the extent affirmative action is used to
foster racial and ethnic diversity, the government
must seek some further objective, beyond the mere
achievement of diversity itself."  OLC Mere. 16.
Second, in some settings, in order to perform its
mission, a government entity may have a compelling
need for a diverse workforce that justifies the use of
racial considerations.  Id. at 18-23.  And third, to
justify the use of race, there must be a convincing
factual basis for the conclusion that the use of race is
needed to promote the government's mission; a broad
assertion of operational need is insufficient. Id. at 23.
If those prerequisites are satisfied, narrowly tailored,
non-remedial affirmative action can be constitutional.
Subsequent detailed guidance was provided to fed-
eral agencies concerning federal employment.  See
Office of Associate Attorney General Memorandum
to General Counsels, Post-Adarand Guidance on
Affirmative Action in Federal Employment (Feb.
29, 1996).  In our view, affirmative action that satisfies
the three prerequisites set forth above and is narrow-
ly tailored to further a compelling institutional
mission also complies with Title VII.

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The court of appeals in this ease held that Title VII
flatly prohibits all non-remedial affirmative action.
Pet. App. 9a-10a, 29a-30a. The court expressly re-
jected petitioner's contention that non-remedial
affirmative action that satisfies constitutional stan-
dards also satisfies Title VII, stating that, "[w]hile
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." Id. at 36a-37a.  Under that ruling,
even if an employer engages in affirmative action that
satisfies the prerequisites set forth above and is
therefore narrowly tailored to further a compelling
institutional  mission, it would violate Title VII.  That
holding incorrectly resolves an issue of recurring
nationwide importance.
    a. The cases that have upheld non-remedial
affirmative action under the Constitution demon-
strate the harmful consequences of the court of
appeals' holding.  Several courts have held that local
law enforcement agencies can have a compelling
operational need for a diverse workforce that justifies
the use of race in employment decisions. Barhold v.
Rodriguez, 863 F.2d 233,238 (2d Cir. 1988); Talbert v,
City of Richmond, 648 F.2d 925, 931-932 (4th Cir.
1981), cert. denied, 454 U.S. 1145 (1982); Detroit Police
Officers Ass'n V. Young, 608 F.2d 671, 695-696 (6th
Cir. 1979), cert. denied, 452 U.S. 938 (1981); Minnick
v. California Dep't of Corrections, 157 Cal. Rptr. 260,
268-269 (Ct. App. 1979), cert. dismissed, 452 U.S. 105
(1981).  That recognition is sound. Particularly
against the backdrop of racial unrest, a diverse police
force may be essential to secure the public support
and cooperation that is necessary for preventing and
solving crime. Young, 608 F.2d at 695-696. Yet the

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court of appeals' decision in this case would prevent
local law enforcement agencies from using race as
a factor in employment decisions, no matter how
pressing the law enforcement need.
    Prison institutions may also be able to establish a
compelling need for a diverse workforce.  For exam-
ple, in Wittmer v. Peters, 87 F.3d 916, 919-921 (1996),
cert. denied, 117 S. Ct. 949 (1997), the Seventh Circuit
recently held that the warden of a boot camp prison
had a compelling interest in using race as a factor in
hiring a lieutenant when the prison camp had no black
supervisors, the prison population was 70% black, the
staff was "expected to treat the inmates with the
same considerateness, or rather lack of con-
siderateness, that a marine sergeant treats recruits
at Parris Island," and expert testimony established
that black inmates were "unlikely to play the correc-
tional game of brutal drill sergeant and brutalized
recruit unless there [were] some blacks in authority
in the camp." Id. at 920.  Under the reasoning of the
decision below, the warden's hiring decision, although
narrowly tailored to further a compelling operational
need, would nonetheless violate Title VII.
    Courts of appeals have also held that a school
district may constitutionally seek to provide a
racially diverse faculty at each of its schools by using
race as a factor in deciding the particular school
to which a teacher is assigned. E.g., Jacobson v.
Cincinnati Bd. of Educ., 961 F.2d 100, 102-103 (6th
Cir.), cert. denied, 506 U.S. 830 (1992); Zaslawsky v.
Board  of  Educ., 610 F.2d 661, 663-664 (9th Cir. 1979).
Such policies can serve multiple educational objec-
tives: A faculty composed of persons with different
backgrounds and experiences is likely to offer a wider
array of educational perspectives. Regents of Univ.

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12

of Cal. v. Bakke, 438 U.S. 265, 314 (1978) (Powell, J.).
Children in the minority at a school may feel more
welcome and able to learn when the staff is racially
diverse.  And exposing students to a diverse faculty
on a daily basis can dispel stereotypes and mis-
conceptions and foster mutual understanding and
respect in a much more powerful and lasting way
than imparting those lessons through words alone.
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315
(1986) (Stevens, J., dissenting).  Under the court of
appeals' analysis, however, Title VII would operate
as an absolute bar to the achievement of those com-
pelling educational goals.
    b. The court of appeals' interpretation of Title VII
is seriously flawed.  This Court has held that Title
VII and the Constitution do not always impose identi-
cal standards for judging the validity of affirmative
action. Johnson v. Transportation Agency, 480 U.S.
616, 627 n.6 (1987).  But to the extent that there are
differences, this Court's decisions suggest that the
Constitution imposes greater restraints on affirma-
tive action than Title VII, rather than the other way
around. Ibid.  Thus, affirmative action that satisfies
the Constitution's most rigorous standard should
even more readily satisfy Title VII. 2

___________________(footnotes)

    2 We do not suggest that affirmative action must satisfy
the Constitution's most rigorous standard in order to satisfy
Title VII.  This Court has indicated that the evidentiary bur-
den of showing a lawful remedial purpose is not as demanding
under Title VII as under the Constitution, Johnson, 480 U.S. at
627 n.6, and the same may be true for non-remedial affirmative
action.  At the very least, however, if the constitutional
standard for non-remedial affirmative action is satisfied, Title
VII imposes no additional barrier.

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    In reaching a contrary conclusion, the court of
appeals reasoned that, in order for an affirmative
action plan to be valid under Title VII, its purposes
must "mirror" those of Title VII. Pet. App. 9a, And
the court further concluded that only a remedial
purpose can mirror the purpose of Title VII. Id. at
29a.  That reasoning is unpersuasive.
    This Court stated in United Steelworkers v.
Weber, 443 U.S.193 (1970), that the purposes of the
plan at issue in that case "mirror[ed] those of the
statute" in that both "were designed to break down
old patterns of racial segregation and hierarchy," and
both were "structured to `open employment opportu-
nities for Negroes in occupations which have been
traditionally closed to them.' "Id. at 208 (quoting 110
Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey))
The Court made clear, however, that it was not
thereby intending to define "the line of demarca-
tion between permissible and impermissible affirma-
tive action plans."  Ibid. Because the plan at issue in
Weber did mirror Title VII's remedial purpose, there
was no need to consider whether there might be other
forms of affirmative action that were also consistent
with Title VII.
    The text and background of Title VII support the
conclusion that non-remedial affirmative action that
satisfies strict scrutiny also satisfies Title VII.
Title VII prohibits "discrimination" in employment, a
term that this Court had used prior to the enact-
ment of Title VII to describe unconstitutional state
action. See General Elec. Co. v. Gilbert, 429 U.S. 125,
133 (1976).  There is therefore every reason to believe
that the Congress that enacted Title VII did not view
as "discrimination" the kind of practices that would
satisfy the Constitution's most rigorous equal pro-

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14

tection standard. This Court has already held that
Title VI, which was enacted at the same time as Title
VII and also contains a prohibition against "dis-
crimination," does not bar affirmative action that sat-
isfies constitutional standards.  Bakke, 438 U.S. at
287 (Powell, J.); id. at 352 (opinion of Brennan, White,
Marshall, and Blackmun, JJ.) (same).  There is no
sound basis for reaching a different conclusion with
respect to Title VII.
    In addition, non-remedial affirmative action that
satisfies constitutional standards also mirrors a pur-
pose of Title VII.  The Court explained in Weber that
one important purpose of Title VII was to preserve
"management prerogatives" to "the greatest extent
possible" consistent with achieving Congress's  "ulti-
mate statutory goals."  443 U.S. at 206-207.  That
purpose of  Title VII is served by interpreting it to
permit non-remedial affirmative action that is nar-
rowly tailored to accomplish a compelling institu-
tional need.
    The 1972 amendments to Title VII, which extended
Title VII to state employers, further reinforce that
conclusion.  The legislative history to those amend-
ments shows that Congress was concerned not only
with the effect that discrimination has on those
seeking employment opportunities with state em-
ployers, but also with the broader effects that such
discrimination has on the ability of state institutions
to carry out their missions fairly and effectively.  For
example, Congress concluded that the exclusion of
minorities from local law enforcement agencies "not
only promotes ignorance of minority problems in
that particular community, but also creates mis-
trust, alienation, and all too often hostility toward the
entire process of government."  S. Rep. No. 415, 92d

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15

Cong., 1st Sess. 10 (1971). And Congress concluded
that the exclusion of minority teachers from educa-
tional institutions profoundly affects the education of
children:
    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 fu-
    ture development. To permit discrimination here
    would, more than in any other area, tend to pro-
    mote existing misconceptions and stereotypical
    categorizations which in turn would lead to future
    patterns of discrimination.

Id. at 12. Affirmative action designed to instill trust
in law enforcement and to break down racial stereo-
types and misconceptions in educational institutions
therefore mirrors Title VII purposes.
In sum, non-remedial affirmative action that satis-
fies strict scrutiny is also lawful under Title VII.
The court of appeals' contrary view is based on a seri-
ous misreading of  Title VII and its purposes.
    2. There is no conflict in the circuits on the
question whether Title VII permits non-remedial af-
firmative action, and this Court's resolution of the
question might benefit from additional appellate con-
sideration of the issue.  Even in the absence of a con-
flict, however, the question resolved by the court of
appeals might be sufficiently important to warrant
this Court's review in an appropriate case.
    We recommend against certiorari in this case pri-
marily because factual complications make it an inap-
propriate vehicle for resolving the question whether
Title VII permits non-remedial affirmative action.  In
particular, this case is encumbered by two factors

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16

that make it an unrepresentative example of non-
remedial affirmative action in employment and that
could divert attention from the main issue.  Those
factors are petitioner's assertion without more of an
interest in department (as compared to school-wide)
diversity and petitioner's use of race in a layoff deci-
sion to further that interest.  Each factor indepen-
dently calls into question the suitability of this case
as a vehicle for resolving the validity under Title VII
of non-remedial affirmative action the two factors in
combination decisively argue against review.
    a. Petitioner does not seek to justify its decision
to discharge respondent rather than Williams on the
ground that releasing Williams would have threat-
ened its interest in school-wide diversity.  Instead,
petitioner seeks to justify that decision on the ground
that retaining Williams was necessary to foster di-
versity in the Business Education Department of the
Piscataway High School. Pet. 5 & n.2.  In essence,
petitioner asserts that there is a compelling interest
in using race to promote diversity in the department
of a high school.
    Such a claim has not been put forward in other
cases. The faculty diversity cases upon which peti-
tioner relies (Pet. 22-25) upheld policies that were
designed to achieve diversity in the public school as
a whole; none had as a separate goal the achievement
of a diverse faculty in a particular department. More-
over, petitioner's evidence did not address why di-
versity in the Business Education Department speci-
fically, as well as diversity in the school generally,
was needed to further educational goals.  Whatever
the reason for petitioner's failure to introduce such
evidence, the absence of a record suggesting a basis
for seeking diversity at the departmental level makes

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17

this case a poor vehicle for resolving questions
concerning the circumstances under which Title VII
permits non-remedial affirmative action.
    b. Petitioner's decision to apply its affirmative
action policy in the layoff context adds an additional
factor counseling against review.  This Court has ap-
proved affirmative action in training (Weber, supra),
hiring (Local 28 of Sheet Metal Workers' Int'l Ass'n
v. EEOC, 478 US. 421 (1986)), and promotions (John-
son, supra; United States v. Paradise, 480 U.S. 149
(1987)), but has disapproved race-based layoffs of em-
ployees with greater seniority than those retained.
Wygant, supra Firefighters Local Union No. 1784 v.
Stotts, 467 U.S. 561 (1984).  And while the Court has
not held that affirmative action is per se impermis-
sible in a layoff context, it has not approved affirma-
tive action in that context either.  See Johnson, 480
U.S. at 638 (noting that while petitioner had been
denied a promotion, he retained his employment);
Paradise, 480 U.S. at 182 (Brennan, J.) (noting that
the order upheld did "not require the layoff and dis-
charge of white employees"); Sheet Metal Workers,
478 U.S. at 479 (Brennan, J.) (noting that the order
upheld "did not require any member of the union to be
laid off"); Weber, 443 U.S. at 208 (noting that the plan
approved in that case did "not require the discharge of
white workers and their replacement with new black
hirees").
    Against that background, and because the use of
race in layoffs generally imposes a different and more
visible burden on those adversely affected than the
use of race at either the hiring or promotion level,
recent affirmative action has ordinarily  been
undertaken in the hiring and promotion context.  The
layoff feature of this case takes it even further away

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18

from typical non-remedial affirmative action and
makes it an even less suitable vehicle for deciding the
question whether Title VII operates as a bar to non-
remedial affirmative action.
    Petitioner argues (Pet. 27) that the general con-
cern about using race in layoffs does not apply in this
case, because respondent and Williams were tied in
seniority, they were equally qualified for the position,
and the only other way to distinguish between them
would have been through random selection.  That
argument, however, only highlights the unusual na-
ture of this case and its inappropriateness as a vehicle
for resolving any issue of broad significance.  Peti-
tioner and respondent stipulated (Pet. 2-3) that re-
spondent and Williams were equally qualified for the
position at issue in this case.  In the real world,
however, that kind of tie rarely, if ever, occurs.  The
stipulated record in this case may lay the foundation
for a "thought provoking" law school "hypothetical,"
as petitioner asserts. Pet. 15.  But this Court should
await a case that is more representative of real-life
experience.
    c. Petitioner's department diversity rationale and
its pursuit of that goal by using race in a layoff deci-
sion do not simply make the case an unusual one.  The
presence of those factors could also prevent the Court
from ever reaching the question whether Title VII
permits non-remedial affirmative action.
    A majority of the Court might conclude that, inde-
pendent of whether Title VII permits non-remedial
affirmative action, petitioner has not sufficiently
justified its use of race in this instance, and leave for
another day the more fundamental question.  The
Court might conclude, for example, that petitioner
has not provided sufficient support to justify its

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19

interest in Business Education Department diver-
sity, particularly in the context of a layoff decision. If
the Court were to reach such a conclusion, the judg-
ment in this case could be affirmed without pre-
senting to the Court an occasion for deciding whether
Title VII permits non-remedial affirmative action in
other circumstances.
    3. Finally, petitioner is not well positioned to
present the question whether Title VII permits non-
remedial affirmative action.  Petitioner applied its af-
firmative action policy only once in approximately 18
years, and petitioner was in the process of voluntarily
abandoning its policy prior to the issuance of the
district court's remedial order. Def. Tr. Br. 2.  Those
circumstances led the district court to conclude that
there was no likelihood that petitioner would again
use race in the manner it did in this case, and that no
specific injunction against such a use of race was
required. Pet. App. 85a n.1.  Petitioner has since for-
mally abandoned its affirmative action policy. Resp.
Br. in Opp. 6.
    Because there is an outstanding money judg-
ment against petitioner, this case is not moot. But
petitioner is now in the position of defending a com-
pelling interest in a policy it implemented once in 18
years, and then voluntarily abandoned.  The question
whether Title VII permits non-remedial affirmative
action would be better presented by an employer that
has had more extensive experience with affirmative
action and that has a continuing commitment to such
a policy.  3

___________________(footnotes)

    3 For the reasons set forth in respondent's brief in opposi-
tion (at 16-17), the fourth question presented by petitioner does
not warrant review.

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CONCLUSION

    The petition for a writ of certiorari should
denied.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

ISARELLE KATZ PINZLER
Acting Assistant Attorney
General

SETH P. WAXMAN
Deputy Solicitor General

WILLIAM R. YEOMANS
Acting Deputy Assistant
Attorney General

IRVING L. GORNSTEIN
Assistant to the Solicitor
General

DAVID K. FLYNN
LESLIE A. SIMON
Attorneys

JUNE 1997