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

The United States will address the following questions:

    1. Whether petitioner's layoff decision imposed an
unnecessary and unjustified burden on respondent and
therefore constituted impermissible discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-
2(a).
    2. Whether Title VII prohibits all non-remedial, race-
conscious employment decisions.

(1)

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TABLE OF CONTENTS

Page

Interest of the United States . . . . 1
Statement . . . . 2
Summary of argument . . . . 7
Argument:
    I. Petitioner's layoff decision imposed unneces-
       sary and unjustified burden on respondent and
       therefore constituted impermissible discrimina-
       tion under  Title VII . . . . 10
  II. Title VII does not prohibit all non-remedial,
       race-conscious employment decisions . . . . 9
Conclusion . . . . 30

TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Pens, 515 U. S. 200
(1995) . . . . 1, 18, 19, 29
Baker v. City of St. Petersburg, 400 F.2d 294 (5th
Cir. 1968) . . . . 20
Barhold  v. Rodriguez, 863 F.2d 233(2d Cir. 1988) . . . . 20
Board of Educ. v. Harris, 444 U.S. 130(1979) . . . . 27
Bolling  v. Shave, 347 U. S. 497 (1954) . . . . 24
Brown v. Board of   Educ., 347 U. S. 483(1954) . . . . 23
Columbus Bd. of Educ. v. Penick, 443 U. S. 449
(1979) . . . . 22
Detroit Police Officers' Ass'n v. Young, 608 F.2d 671
(6th Cir. 1979), cert. denied, 452 U.S. 938 (1981) . . . . 20
Firefighters Local Union No. 1784 v. Slotts,
467 U.S. 561 (1984) . . . . 13, 14
Fizpatrick  v. Bitzer, 427 U.S. 445(1976) . . . . 25
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) . . . . 24
Gibson v. Mississippi, 162 U. S. 565 (1896) . . . . 24
Griggs v. Duke Power Co., 401 U. S. 424(1971) . . . . 24

(III)

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IV

Cases Continued

Page

Jacobson v. Cincinnati  Bd. of  Educ., 961  F.2d  100
(6th Cir.), cert. denied, 506   U.S 830 (1992) . . . . 21
Johnson Y. Transportation   Agency,  480 U.S. 616
(1987) . . . .  10, 11, 12, 14,  16, 19, 24, 25
Kromnick v. School Dist. of Philadelphia, 789
F.2d 894 (3d Cir. 1984), cert. denied, 469 U.S.
1107 (1985) . . . . 21
Local 28 of Sheet Metal Workers' Int'l   Ass'n v.
EEOC, 478 U.S. 4231 (1986) . . . . 12, 13, 14
McLaughlin  v. Florida,  379 U.S. 184 (1964) . . . .  23-24
Minnick  v. California  Dep't   of Corrections,  157  Cal.
Regents. 260 (Ct.   APP. 1979),   cert.   dismissed, 452 U.S.
105 (1981) . . . . 21
Regents of  Univ. of California v. Bakke, 438 U.S.
265 (1978) . . . . 16, 23, 24, 25
Swann v. Charlotte-Mecklenburg Bd.. of    Educ.,,
402 U.S. 1 (1971) . . . . 21
Talbert v. City of Richmond, 648 F.2d 926 (4th Cir.
1981), cert. denied, 454 U.S. 1145 (1982) . . . . 20
United States v. Paradise,  480 U.S. 149 (1987) . . . . 12, 14
United Steelworkers. v. Weber, 443 U.S. 193
(1979) . . . . 9, 10, 11, 14, 28
Washington v. Davis, 426 U.S.  229. (1976) . . . . 24
Washington v. Seattle Sch. Dist No. 1, 468 U.S.
457 (1982) . . . . 21
Wittmer  v. Peters, 87  F.3d  916   (7th  Cir. 1993),  Cert.
denied, 117 S.  949 (1997) . . . .  16, 20, 21
Wygant  v. Jackson Bd. of  Educ., 476   U.S. 267
(1986)  . . . . 13, 14, 15, 16, 22, 23, 24
Zaslawsky  v. Board of Educ., 610 F.2d 661
(9th Cir. 1979) . . . . 21

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V

Constitution and statutes:           Page

U.S. Const. Amend. XIV . . . . 9, 25
 1 (Equal Protection Clause ) . . . . 13, 24
 5 . . . . 9, 25
Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:
Tit. VI, 42 U.S.C. 2000d et seq . . . . 9, 24, 25
Tit. VII, 42 U.S.C. 2000e  et seq . . . . passim
  42 U.S.C. 2000e-2 . . . . 4
  42 U.S.C. 2000e-2(a)(l) . . . . 5, 23
  42 U.S.C. 2000e-2(a)(2) . . . . 24
  42 U.S.C. 2000e-2(e)(l) . . . . 29
  42 U.S.C. 2000e-5(f)(l) . . . . 1
Emergency School Aid Act, Pub. L. No. 92-318,
Tit. VII, 86 Stat. 354 . . . . 27

Miscellaneous:
H.R. Rep. No. 238, 92d Cong., 1st Sess. (1971) . . . . 26
Office of Legal Counsel Memorandum to General
Counsels, Re: Adarand (June 28, 1995) . . . . 2, 16, 18
S. Rep. No. 415, 92d Cong., 1st Sess. (1971) . . . . 26

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

BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE
SUPPORTING  AFFIRMANCE

INTEREST OF THE UNITED STATES

    This case raises questions concerning the extent to
which Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., permits employers to take race into account
in employment decisions in order to further non-remedial
objectives. The Attorney General has responsibility for
enforcing Title VII against state and local employers. 42
U.S.C. 2000e-5(f)(l).  The decision in this case will affect
that responsibility.  The United States was a plaintiff
in this action in the district court, but withdrew as a
party in the court of appeals.  Subsequently, and following
the decision in Adarand Constructors, Inc. v. Pena, 515
U.S. 200 (1995), the Department of Justice engaged in an
extensive examination of when it is permissible to engage

(1)

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2

in race-conscious government action. After that examina-
tion, the Department of Justice issued a memorandum to
federal agencies on that issue,.  See Office of Legal Coun-
sel Memorandum to General Counsels, Re: Adarand (June
28, 1995) (available on Westlaw at 1995.  DLR 125 d33]. In
response to the Court's invitation, the United States filed
a brief as amicus curiae petition stage in this ease
suggesting that the petition for a writ of certiorari be
denied,

STATEMENT

    1. In May 19 1989,  the Board of Education of the Township
of Piscataway (petitioner), decided to eliminate a position
in the -Business Education Department of the Piscataway
High School, Pet. App. 12a.  At that time, there were ten
teachers in the Business Education Department, all of
whom had tenure. Def. CA. App. 110, 133, 172.  Under New
Jersey law, petitioner was required to lay off tenured
faculty in reverse order of seniority except in the case of
a tie. Pet, App. 12a.  The two least senior teachers in the
Business Education Department were respondent Sharon
Taxman, who is white, and Debra Williams, who is black.
Respondent and Wi11iams had begun their employment
with petitioner in the same academic year and therefore
had equal seniority. Ibid.  Williams was the only minority 
teacher in the Business Education Department. Ibid 
    Petitioner had discretion under New Jersey Law to
select any lawful method to break the seniority tie. Def.
C.A. App. 85 (41).  In prior layoffs, petitioner had broken
seniority ties through random selection. Pet. App. 12a-
13a.  This time, petitioner's Superintendent of Schools,
Burton Edelchick, recommended to petitioner that the
decision whether to retain Williams or respondent should
be based on petitioner's affirmative action policy. Id at

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13a.  That policy,  which was adopted in 1975 and modified in
1983, specified that:

    In all cases, the most qualified candidate will be recom-
    mended for appointment.  However, when candidates
    appear to be of equal qualification, candidates meet-
    ing the criteria of the affirmative action program will
    be recommended.

Id. at 11a.  The policy was applicable to "every aspect of
employment including * * * layoffs," and blacks were
among those "meeting the criteria of the affirmative
action program."  Ibid.  The policy was not adopted
with the intent of remedying prior discrimination or of
eliminating any manifest imbalance in petitioner's
teaching force. Ibid. At the time of the policy's adoption,
there was no evidence that petitioner had ever inten-
tionally discriminated against black applicants for employ-
ment, and there was no imbalance between the percentage
of blacks in petitioner's work force and the percentage of
blacks in the qualified labor pool. Id. at 94a.
    According to Superintendent Edelchick, he made his
recommendation to resolve the layoff decision on the basis
of petitioner's affirmative action policy because he believed
that Williams and respondent "were tied in seniority, were
equally qualified, and because Ms. Williams was the only
Black teacher in the Business Education Department."
Pet. App. 13a.  Petitioner voted 5-0 to accept the Superin-
tendent's recommendation to break the seniority tie by
relying on its affirmative action policy and to terminate
respondent's employment.  Ibid.
    When petitioner discharged respondent, it did not act
with the intent of remedying any prior discrimination, and
if petitioner had retained respondent rather than Williams,
there would not have been any imbalance in petitioner's
work force as a whole. Pet. App. 99a.  The last analysis

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conducted by petitioner before respondent's discharge
showed that blacks constituted 5.8% of the relevant labor
pool and  9.5% of the educational professionals in 
petitioner's work force. Id at  96a.
    In a letter- respondent, petitioner explained its layoff
decision as follows:

    [T]he board of education has decided to relay on its
    commitment to affirmative action as measure. 
    ing the tie in seniority entitlement in the secretarial
    studies category.  As a result, the board, at its regular
    meeting on the evening o f  May 22, 1989, acted to abol-
    ish one teaching position and to terminate your em-
    ployment as a teaching staff member effective June 30, 
    1989.   

Pet. App. 98a-99a. In her deposition, Paula Van Riper, who
was petitioners Vice-President at the time of the layoff
decision, explained her vote to retain Williams rather than
respondent as follows:                                   
    
    In my own personal perspective I believe by retaining
    Mrs. Williams it was sending a very clear message
    that we feel that 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 under-
    standing of people of all background.

Id at 14a.           
    2. After respondent was laid off, she filed a charge with 
the Equal Employment Opportunity Commission, alleging
that she had been subjected to discrimination, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-2  Pet App. 15a.  In relevant part, Title VII makes

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it unlawful for an employer "to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of such individual's race." 42 U.S.C. 2000e-2(a)(l). The
charge was referred to the Department of Justice, and the
United States filed a Title VII suit against petitioner in
which respondent intervened.  Pet. App. 15a.
    On cross-motions for summary judgment, the district
court found that petitioner had violated Title VII.  Pet.
App. 88a-124a.  The court held that petitioner's asserted
purpose of promoting faculty diversity for educational
reasons is not a permissible basis for the use of race under
Title VII. Id. at 109a, l16a-l17a.  The court also held that
petitioner's affirmative action policy was ''overly intrusive
to the rights of nonminorities," id. at 123a, because it
applied to layoffs and lacked a termination point, id. at
117a-123a.  The court awarded respondent $144,014.62 in
monetary relief and retroactive seniority. Id. at 16a.  By
the time of the district court's remedial order, respondent
had been rehired, so there was no need for an order
reinstating her.  Ibid.
    When petitioner appealed, the United States sought
leave to file a brief as amicus curiae supporting reversal of
the judgment. Pet. App. 16a.  The court of appeals denied
the United States leave to participate as amicus curiae.
Instead, it treated the United States' motion as `a request
to withdraw as a party, which it granted.  Ibid.
    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 purposes that mirror
those of the statute," and (2) do not "unnecessarily tram-
mel the interests" of nonminority employees.  Id. at 9a.

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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
***  was to obtain an educational benefit," and
that petitioner's policy 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 concluded that-petitioner violated Title VII
when it laid off respondent.  Ibid.  The court rejected peti-
tioner's reliance on cases addressing the constitutionality 
of non-remedial, race-conscious decisions. Id. at 34a-43a.
The court 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 also concluded that petitioner's
policy "unnecessarily trammels [nonminority] interests."
Pet. App. 44a-47a.  The court noted that the policy failed
to address "what degree of racial diversity * * * is
sufficient" (id. at 45a); the court perceived the policy to be
"an established fixture of unlimited duration" (ibid); and
the court was "convinced that the harm imposed upon a
nonminority employee by the his 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. Id.. at 53a.
Four judges dissented. Pet. App. 53a-83a.  Chief Judge.
Sloviter (joined by Judges Lewis and McKee) concluded
that race-conscious employment decisions can be permis-
 sible under Title VII not only  when they remedy prior

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employment discrimination, but also when they further
Title VII's broader goal of eliminating "the causes of
discrimination." Id. at 63a.  Judge Sloviter noted that
racial diversity in the classroom is "an important means of
combating 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 permissi-
ble basis for its voluntary affirmative action under Title
VII." Id. at 69a.
    Judge Sloviter also concluded that petitioner's layoff
decision did not "unnecessarily trammel" respondent's in-
terests. Pet. App. 69a-74a.  Because respondent 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 expectation of no layoff." Id.
at 69a (internal quotation marks omitted).  Judes Scirica,
Lewis, and McKee filed separate dissenting opinions. Id.
at  75a-83a.

SUMMARY OF ARGUMENT

    The court of, appeals erred in holding that Title VII
precludes all non-remedial, race-conscious employment
decisions.  This case, however, does not provide a suitable
vehicle for resolving that extraordinarily broad issue.
The court of appeals' judgment should be affirmed on
the ground that petitioner's layoff decision unnecessarily
trammeled respondent's interests, and the broader ques-
tion should be reserved for a case in which its resolution is
necessary to the outcome and in which the employer's use
of race is more representative of the kind of actions taken
by state and local governments and by private employers
nationwide.
    I. Unlike the cases in which this Court has upheld
race-conscious training, hiring, and promotion decisions,

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petitioner considered a factor in a layoff decision.
This Court's cases reflect a special concern about the
use of race in layoffs.  That concern rests on the under:
standing that layoffs generally impose more significant
burdens on. those adversely affected than other forms of 
race-conscious employment decisions.  An employer who
takes race into account in making a layoff decision there
fore has an especially heavy burden of justification.
    Petitioner failed to satisfy that burden.  Petitioner
seeks to justify its layoff decision on a single ground: that
retaining a minority faculty member rather than respon-
dent was necessary to promote diversity in the Business
Education Department of the Piscataway High School.  A
simple desire to promote diversity for its own sake,
however, is not a permissible basis for taking race into
account under Title VII.  And petitioner failed to intro
duce any evidence to show that promoting diversity in the
Business -Education Department was necessary further
any compelling educational objective.  Petitioner's layoff
decision therefore unnecessarily trammeled respondent's
interests in violation of Title VII, and the judgment up-
holding the award to respondent of monetary relief should
be affirmed that ground.
    II.  Should the Court reach the broader question, it
should hold that., when a public employer takes race into
account in a way that is narrowly tailored to further a
compelling, non-remedial purpose, and therefore satisfies
constitutional standard Title VII erects no additional
barrier to the employer's action.
    There are some circumstances presented by this
case-in which an employer should be permitted to
demonstrate that taking race into account for non
remedial purposes is narrowly tailored to further a
compelling interest, For example, if an undercover officer
is needed to infiltrate a racially homogeneous gang, a  law

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enforcement agency must have the flexibility to assign an
officer of the same race to that task.  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.  Prison
institutions may find it impossible to cope with racial
tensions without an integrated work force.  And school
districts may responsibly conclude that a diverse faculty
is essential to dispel students' stereotypes and promote
mutual understanding and respect.  The careful, tailored
use of race to serve similarly compelling goals would
satisfy the Constitution's strict scrutiny standard.
    If an employer can satisfy the constitutional standard,
Title VII does not erect any additional barrier to the
employer's action.  Prior to the enactment of Title VII,
this Court had referred to the Constitution as containing
a prohibition against  "discrimination" on the basis of race.
And this Court has interpreted the prohibition against
"discrimination" on the basis of race in Title VI to incor-
porate the constitutional standard.  It is therefore rea-
sonable to conclude that practices that satisfy the Con-
stitution's most rigorous equal protection standard do not
constitute "discrimination" within the meaning of Title
VII. The 1972 amendments to Title VII, which extended
Title VII to state and local government employers, re-
inforce that conclusion.  In enacting those amendments,
Congress relied on its power under Section 5 of the Four-
teenth Amendment, and its principal goal was to provide
federal administrative assistance to public employees who
were subjected to discrimination that violated consti-
tutional standards.
    The court of appeals' reliance on United Steelworkers v.
Weber, 443 U.S. 193 (1979), to reach the conclusion that
Title VII precludes all non-remedial, race-conscious
employment decisions is misplaced.  The Court noted in

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Weber that the plan upheld in that case had a remedial
purpose.  In sustaining a plan with such a purpose,
however, the Court made clear that it was not intending to
describe the entire universe of permissible race-conscious
employment decisions.  The court of appeals erred in
transforming a description of the plan at issue in Weber
into a legal requirement for all race-conscious em-
ployment decisions.

ARGUMENT

    I. PETITIONER'S LAYOFF DECISION IMPOSED
       AN UNNECESSARY AND UNJUSTIFIED BUR-
       DEN ON RESPONDENT  AND  THEREFORE  CON-
       STITUTE- IMPERMISSIBLE DISCRIMINATION
       UNDER TITLE VII

In United Steelworkers v. Weber 443 U.S. 193, 208-209
(1979), the Court held that Title VII does not prohibit
a private employer from taking race into account in
its employment decisions when the purpose of doing so is
to eliminate " a manifest racial imbalance" in " tradition-
ally segregated job categories " and when the decisions do
not " unnecessarily trammel the interests of the white
employees." In Johnson v. Transportation Agency, 480
U.S. 616,627 n.6 631 (1987), the Court held that Title VII
permits public employers to take race into account in like
circumstances.
    The court of appeals understood Weber and Johnson to
hold that TitleVII precludes all non-remedial, race-
conscious employment decisions.  For reasons explained
in Part II of our brief, the court of appeals erred in reach-
ing that conclusion.  When a non-remedial, race-conscious
employment decision is narrowly tailored to further a
compelling interest and therefore satisfies equal protec-
tion standards, it also satisfies Title VII.  This case, how-
ever, does not present a suitable occasion for resolving

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that issue because petitioner failed to show that using
race in a single layoff decision in its Business Education
Department was necessary to serve any compelling objec-
tive. Petitioner there fore failed to satisfy both the Consti-
tution's narrow tailoring requirement and the parallel
requirement in Title VII that a race-conscious employ-
ment decision may not unnecessarily trammel the inter-
ests  of those affected by the decision. Because the court of
appeals' judgment should be affirmed on that basis alone, it
is both unnecessary and inadvisable to reach the broader
issue of whether Title VII ever permits the use of race for
non-remedial purposes.
    A. Weber and Johnson illuminate the requirement
that race-conscious employment decisions may not "un-
necessarily trammel" the interests of those adversely
affected.  In Weber, an employer set aside 50% of the
positions for a craft training program for black employees
until such time as the percentage of blacks in craft
positions matched the percentage of blacks in the local
labor pool. 443 U.S. at 198.  In holding that the plan did not
unnecessarily trammel the interests of white employees,
the Court noted that the plan did not "require the dis-
charge of white workers and their replacement with new
black hirees," did not "create an absolute bar to the
advancement of white employees," and was a "temporary
measure * * * not intended to maintain racial balance,
but simply to eliminate a manifest racial imbalance." Id.
at 208-209.
    In Johnson, a public employer established long-term
goals for the promotion of women into traditionally segre-
gated job categories, and authorized sex to be taken
into account as one factor in making promotion decisions.
480 U.S. at 621-622.  The Court held that there was no
unnecessary trammeling, since (1) no person was "auto-
matically excluded from consideration" for a position, (2)

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denial of a promotion did not unsettle any "firmly rooted
expectation," (3) a person denied a promotion "retained his
employment with the Agency, at the same salary and
with the same seniority, and remained eligible for other
promotions," and (4) the plan was intended to attain a
balanced work force, not to maintain one." Id at 638-639.
    The consideration bearing on the "unnecessarily
trammel" inquiry largely overlap with those examined
when race-based action is challenged under the Consti-
tution as insufficiently narrowly tailored.  The decisions
applying the narrow tailoring requirement to race-based
employment decisions therefore shed further light on
the appropriate Title inquiry, See Johnson, 480 U.S.
at 638, 640 (relying on constitutional cases discussing nar-
row tailoring in finding no unnecessarily trammeling).
    In United States v. Paradise, 480 U.S. 149 (1987), the
Court upheld the constitutionality of a district court
remedial order requiring that, for a period of time, 50% of
stale trooper promotions go to qualified black troopers.
The plurality opinion explained that the order satisfied the
narrow tailoring requirement because it was unlikely
that there was "any other effective remedy: id. at 177,
the order was "flexible, waivable, and temporary in appli-
cation," id. at 178, the order bore an adequate relationship
to the qualifled labor pool, id. at 179-180, and the order "did
not impose an unacceptable burden" on those adversely
affected, id. at 182.  In discussing the latter point, the
plurality noted that the order did not "require the layoff
and discharge of white employees." Id. at 182-183 Citing
the same factors, Justice Powell agreed that the order was
narrowly tailored. Id. at 187-189,
    In Local 28 of Sheet Metal Workers' International
Association v. EEOC, 478 U.S. 421 (1986), the Court
upheld as narrowly tailored a district court remedial
order imposing a minority membership good for admission

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13

to a union.  The plurality explained that the goal was
"necessary" to end discriminatory practices and that the
goal would "have only a marginal impact on the interests
of white workers." Id. at 481.  The plurality specifically
noted that the order would not "disadvantage existing
union members," and that the court's order did not "stand
as an absolute bar to the admission of [whites]." Ibid.  For
substantially the same reasons, Justice Powell concluded
that the membership goal satisfied the narrow tailoring
requirement. Id. at 486-489.

    B. In contrast to the cases discussed above, petitioner
considered race as a factor in a layoff decision.  This
Court's Title VII and Equal Protection Clause cases
reflect a special concern about the use of race in layoffs.
In the only two cases in which race-conscious layoffs were
directly at issue, the Court found them to be invalid.  In
Wygant v. Jackson Board of Education, 476 U.S. 267
(1986), a layoff provision in a collective bargaining agree-
ment for teachers provided that those with the most
seniority would be retained except that layoffs could not
result. in - a reduction in the percentage of minority
teachers.  In operation; the layoff provision required the
school board to release white teachers with greater
seniority than minority teachers who were retained. Id.
at 270-271 (plurality opinion).  The court held in several
separate opinions that the layoff provision did not satisfy
the narrow tailoring requirement. Id. at 282-284 (plurality
opinion); id. at 293-294 (O'Connor, J., concurring in part
and concurring in the judgment); id. at 294-295 (White, J.,
concurring in the judgment).  In Firefighters Local Union
No. 1784 v. Stotts, 467 U.S. 561 (1984), a district court
order required that layoffs not reduce the percentage
of minority firefighters, and the effect of the order was
to require layoffs of nonminority employees with more
seniority than minority employees who were retained.

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    The Court held that the layoff provision did not comply
with Title VII. Id. at 578-579.  Equally significant in all
the cases discussed above in which race-based employment
decisions were upheld, an important factor was that the
decisions did not involve the layoff or discharge of existing
employees.  Johnson, 480 U.S. at (noting that, - while
petitioner had been denied a promotion, he retained
his employment Paradise, 480 U.S. at 182 (plurality
opinion) (noting that the order upheld did not require
discharge or layoff of existing employees); Sheet Metal         
Workers, 478 U.S. at 479 (plurality opinion) (noting that
the order upheld did not affect existing employees); Weber,
443 U.S. at 208 (noting that the plan did not require the
discharge of white workers and their with  
new black hires).
    The Court's special sensibility to the use of race
in layoffs is based on the understanding- that layoffs
generally impose more significant burdens on those
adversely affected than other forms of race-conscious em-
ployment decisions.  Layoffs burden identified individuals
and often seriously disrupt their lives.  Wygant, 476 U.S.
at 283 (plurality opinion). " Even a temporary layoff may
have adverse financial as well as psychological effects."
Ibid, In contrast, the use of race in hiring or promotions
poses less serious concerns.  The burden is more likely
to be "diffused" and "[d]enial of a future employment oppor-
tunity is not as intrusive as loss of an existing job." Id. at
282-283 (plurality opinion) (hiring); see also Paradise, 480
U.S. at 182-183 (plurality  opinion) (promotion).
    Despite the special concerns associated with the use of
race in layoffs, the Court has never announced a per se
rule against taking race into account in layoffs.  An
employer who takes race into account in making a layoff
decision, however,. has a "heavy burden of justification."
Wygant, 476 U.S. at 282 n.10 (plurality opinion. And race

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15

may not be used in layoffs when "[o]ther, less intrusive
means `of accomplishing similar purposes-such as the
adoption of  hiring goals-are available." Id. at 283-284
(plurality opinion).
    C. Petitioner has failed to satisfy the heavy burden
of justification applicable to the use of race in layoff
decisions.
    1. Petitioner does not seek to justify its layoff decision
as a remedy for past discrimination.  As petitioner has
stated (Pet. 5n.2), "[i]t is undisputed that the Board had
never discriminated against black employees, and that
they were not underrepresented in the professional staff
as a whole when compared with their availability in the
relevant labor market."
    2. Nor does petitioner seek to justify its layoff decision
as a narrowly tailored means of obtaining the important
educational benefits of school-wide faculty diversity.  See
pp. 21-23, infra (school-wide diversity can further the
compelling educational goal of dispelling students' racial
stereotypes and fostering mutual understanding and
respect).  There are also means less burdensome than
layoffs to ensure that students obtain those benefits.  For
example, prior to the decision at issue here, petitioner
sometimes took race into account in assigning a teacher to
one school rather than another in order to ensure that the
faculties at each of its schools would be racially diverse.
Def. C.A. App. 70-71.  Because petitioner could rely on
hiring and assignment practices to provide its students
with the educational benefits of school-wide diversity,
petitioner did not need to resort to the use of race in
layoffs to further that objective.
    3. Petitioner seeks to justify its layoff decision on a
single ground: that retaining Williams rather than respon-
dent was necessary to promote diversity in the Business
Education Department of the Piscataway High School.

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16

Pet. 5. A simple desire to maintain diversity for its own
sake, however, is not a permissible basis for taking race
into account under Title VII. Johnson, 480 U.S. at  639, any 
more than it is a permissible basis for taking race into
account under the Constitution, Regents of Univ Of
California Bakke, 438 U.S. 265, 307 (1978) (plurality
opinion).  When used to foster diversity, an 
employer. "must seek some further objective, beyond
the mere achievement of diversity itself  Office of
Legal Counsel. Memorandum to General Counsels, Re:
Adarand 16 (June 28, 1995) (OLC Mem.) (available on
Westlaw at 1995 DLR d33).  Equally important, an 
employer must produce convincing evidence demonstrat-
ing a connection between diversity and the objective
sought to be furthered; such a connection may not merely
be asserted Wygant, 476 U.S. at 277 (plurality opinion);
Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996), cert.
denied, 117 S. Ct. 949 .(19%').  Petitioner was therefore
required to supply a convincing factual predicate for
the conclusion that diversity in the-Business Education
Department itself serves distinct and compelling educa
tional objectives that could not otherwise be achieved.
    Petitioner failed to do that, The evidence relied on by
petitioner. (Pet.. 5-7) to justify its layoff decision consists
largely of generalized assertions, and those statements
at most demonstrate a basis for seeking school-wide
faculty diversity.  Petitioner's evidence does address
why diversity in the Business Education Department
specifically, as well as diversity in the school generally, is
important.  In particular, petitioner adduced no evidence
that, despite the presence of a diverse faculty overall, it
nonetheless Was necessary to retain diversity in the
Business Educational department in order to ensure that
students would "come into contact with people of different
cultures." Pet. .App. 14a.

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17

    Nor is this a case in which sub-unit diversity is so
obviously necessary for compelling educational reasons
that a more particularized showing is unnecessary.  The
Business Education Department is not a self-contained
academic program: students who take business courses
also take courses in other departments. Van Riper Dep.
84. There may well be circumstances which diversity in
a particular high school department serves vital educa-
tional purposes. Petitioner, however, has failed to show
that promoting faculty diversity in the Business Educa-
tion Department in the Piscataway High School is any
more or less educationally important than promoting such
diversity in the various corridors of that building.
    Significantly, before the decision at issue here, peti-
tioner had never asserted an interest in departmental
diversity.  Although petitioner invoked its affirmative
action policy in making the layoff decision at issue here,
that policy did not state that its purpose was to promote
diversity, much less diversity in particular departments.
Pet. App. 11a.  That policy's stated purpose was to
"ensure[] equal employment opportunist y for all persons
and prohibit[] discrimination in employment because of
sex, race, color, creed, religion, handicap, domicile, marital
status, or national origin." Id. at 95a.  Petitioner's af-
firmative action reports analyzed the racial composition of
the work force as a whole; they did not analyze the racial
composition of particular departments.  Van Riper Dep.
129-130.  Petitioner never sought from its administrative
staff information breaking down the teacher work force by
department. Id. at 130.  And prior to the decision in this
case, petitioner never considered the racial composition of
a department as a factor in the hiring, assignment, trans-
fer, or termination of a teacher. Id. at 131.
The inescapable conclusion is that petitioner did not
satisfy the heavy burden of justification necessary to

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18

permit race-conscious layoffs. Petitioner's layoff decision
thus unnecessarily trammeled respondent's interests in
violation of Title VII.  The court of appeals' judgment
upholding the award to respondent of monetary relief
should be affirmed on that ground. 1

___________________(footnotes)

    1 The brief the United States attempted to file in the Third Circuit
concluded that petitioner had established a sufficient justification for
its layoff decision. Subsequently, and following this Court's decision
in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the
Department of Justice undertook an extensive examination of the
question of when it is permissible to engage in race-conscious govern-
mental action.  Following that examination, the Department issued a
memorandum to federal agencies on that issue. OLC Mem., supra.
The memorandum offered three important guiding principles drawn
from the decisions of this Court and lower courts concerning the use of
race to promote non-remedial objectives.  First, to the extent that race
is used to foster diversity, the government must seek some further
objective, beyond the mere achievement of diversity itself. OLC Mere.
16.  Second, in come settings, a government entity may have a compel-
ling need for a diverse work force that justifies the use of racial consid-
erations. 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 a broad assertion of need is insufficient. Id. at 23.  In light of
the extensive analysis contained in the OLC Memorandum, we have
arrived at a different conclusion on the correct disposition of this case
from that stated in the Third Circuit brief.  We continue, however, to
adhere to that brief's main argument-that Title VII does not preclude
all non-remedial, race-conscious employment decisions.

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19

    II. TITLE VII DOES NOT PROHIBIT ALL NON-
        REMEDIAL, RACE-CONSCIOUS EMPLOYMENT
        DECISIONS

    Because the judgment below should be affirmed on the
ground discussed above, this Court need not and should not
resolve in this case the broad question whether Title VII
ever permits an employer to take race into account for
non-remedial purposes.  That important question should be
reserved for a case in which its resolution is necessary
to the outcome, and in which the non-remedial use of
race is more representative of the non-remedial actions of
employers nationwide.
    Should the Court nonetheless reach the issue, it should
hold that Title VII does not erect a per se bar to all non-
remedial, race-conscious employment decisions.  Title VII
does not permit "preferences for minorities `for any rea-
son that might seem sensible from a business or a social
point of view.'" Johnson, 480 U.S. at 649 (O'Connor, J.,
concurring in the judgment).  But when a public employer
takes race into account in a way that is narrowly tailored
to further a compelling, non-remedial purpose, and there-
fore satisfies constitutional standards, Adarand Con-
structors, Inc. v. Pena, 515 U.S. 200, 227 (1995), Title VII
erects no additional barrier to the employer's action.
    We discuss below some of the circumstances in which an
employer may be able to demonstrate that taking race into
account for non-remedial purposes is narrowly tailored to
further a compelling interest, thereby satisfying consti-
tutional standards.  We then show why Title VII does not
prohibit non-remedial employment decisions that satisfy
the Constitution's strict scrutiny standard.
    A. 1. As several courts have held, local law enforce-
ment agencies can demonstrate a compelling need for a
diverse work force that justifies the carefully tailored use

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20

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) Baker v. City of St. Petersburg, 400
F.2d 294, 301 n.10 (5th Cir. 1968) For example, if an
undercover officer is needed to infiltrate a racially homo-
geneous gang, a law enforcement agency must have the
flexibility to assign an officer of  the same race to that
task. Baker, 400 F.2d at 301 n.10.
    In addition, 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; Baker,
400 F.2d at 301 n.10. That view is not based on the stereo-
typical assumption that individuals communicate better
with persons of their own race or on the unacceptable
notion that a police department should cater to public
prejudice.  Young, 608 F.2d at 696. Rather, it is based
on the empirically supported judgment that, when racial
tensions smolder, the existence of a visibly integrated
police force can instill public confidence and respect in law
enforcement institutions in a way an all-white or an
all-black force cannot., Ibid.
    2. Prison institutions may also be able to establish a
compelling need for a diverse work force that can justify
a narrowly tailored use of race in employment decisions,
For example, in Wittmer, 87 F.3d at 919-921, the Seventh-
Circuit held that the warden of a boot camp prison had a
compelling interest in using race as one factor in hiring
a lieutenant when the prison camp bad no black super-
visors, the  prison population was 70% black the staff was
"expected to treat the inmates with the same considerate e-
ness or rather lack of considerateness, that a marine

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21

sergeant treats recruits at Parris Island," and expert
testimony established that black inmates were "unlikely
to play the correctional game of brutal drill sergeant and
brutalized recruit unless there [were] some blacks in
authority in the camp." Id. at 920.  The court was careful
to note that the record would not support an effort to make
the racial composition of the security staff mirror that
of the inmate population.  Ibid.  And it also made clear
that prison authorities are not "entitled to yield to
extortionate demands from prisoners for guards of their
own race." Ibid.  The court held only that, "on the record
compiled in the district court, the preference that the
administration of the Greene County boot camp gave a
black male applicant for a lieutenant's job on the ground of
his race was not unconstitutional." M. at 921; see also
Minnick v. California Dep't of Corrections, 157 Cal. Rptr.
260, 264, 268-269 (CL App. 1979) (prison authorities may
use race as one factor in transfer, promotion, and
assignment decisions in light of the evidence that diverse
work force was essential to "reduce[] severe racial conflict
and violence within the State prison system"), cert,
dismissed, 452 U.S. 105 (1981).
    3. Educational institutions may also be able to estab-
lish a compelling interest justifying a tailored use of race
in employment decisions.  For example, a school district
can have a compelling interest in obtaining the educational
benefits of a racially diverse faculty at each of its schools,
and may permissibly use narrowly tailored means, such
as using race as one factor in assignment or transfer deci-
sions, to achieve that goal.  See, e.g., Jacobson v. Cin-
cinnati Bd. of Educ., 961 F.2d 100, 102-103 (6th Cir.), cert.
denied, 506 U.S. 830(1992); Kromnick v. School Dist. of
Philadelphia, 739 F.2d 894, 905-906 (3d Cir. 1984), cert.
denied, 469 U.S. 1107 (1985); Zaslawsky v. Board of Educ.,
610 F.2d 661,663-664 (9th Cir. 1979).

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22

    Swann v. Charlotte-Mechdenburg Board of Education,
402 U.S. 1,16 (1971), supports that conclusion.  There, this
Court stated unanimously that, "in order to prepare stu-
dents to live in a pluralistic society school authorities
have discretion under the Constitution to integrate their
student bodies by making race-conscious student assign-
ments. Ibid.  That statement reflects an understanding that
integrated schools afford important educational benefits to
students of  all races in schools with integrated student
bodies, children can begin to learn how "to function" in a
multiracial society, as well as how "to live in harmony and
mutual respect," Washington v. Seattle Sch. Dist. No. 1,
458 us. 457,472-473 (1932).
    A diverse faculty can further the same compelling goals.
Exposing students to a diverse faculty on a daily basis can
dispel stereotypes and misconceptions and foster mutual
understanding and respect in a much more powerful and
lasting way than imparting those lessons through words
alone.  Wygant, 476 U.S. at 315 (Stevens, J., dissenting).
Like a diverse student body, a diverse faculty also benefits
all students. The lesson that "the diverse ethnic, cultural,
and national backgrounds that have been brought together
in our famous 'melting pot' do not identify essential differ-
ences among the human beings that inhabit our land" is
one that is critical for students of all races to learn.  Ibid.

    [T]he fact that persons of different races do, indeed,
    have differently colored skin, may give rise to a belief
    that there is some significant difference between such
    persons.  The inclusion of minority teachers in the
    educational process inevitably tends to dispel that
    illusion whereas their exclusion could only tend to
    foster it. 
     
Id. at 316 (Stevens, J., dissenting). See also Columbus Bd.
of Educ. v. Pence, 443 U.S. 449, 467 (1979) (when student

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23

bodies and faculties are segregated, black and white
students are deprived of opportunity "to meet, know and
learn from" teachers of other race). 2
    B. As discussed above, there are some limited situa-
tions in which an employer's use of race for non-remedial
objectives can be narrowly tailored to further a compelling
interest and therefore satisfy constitutional standards.
When a public employer can make such a showing, Title
VII does not erect any additional barrier to the employer's
race-conscious action.  The court of appeals therefore
erred in holding that Title VII contains a per se pro-
hibition against the use of race to further non-remedial
objectives.
    1. Title VII prohibits employment-decisions that "dis-
criminate against any individual * * * because of such
individual's race."  42 U.S.C. 2000e-2(a)(l). Title VII
nowhere defines "discriminate," and that term is suscepti-
ble to varying interpretations. Bakke, 438 U.S. at 284
(opinion of Powell, J.). Prior to (and contemporaneous
with) the enactment of Title VII, decisions of this Court
referred to the Constitution as forbidding "discrimina-
tion" on the basis of race. E.g., McLaughlin v. Florida,

___________________(footnotes)

    2 Using faculty diversity to advance the compelling educational
goal of dispelling racial stereotypes is quite different from the role
model theory rejected in Wygant.  See 476 U.S. at 288 n.* (O'Connor,
J., concurring in part and concurring in the judgment).  The role model
theory rested on the view that black students are better off with black
teachers and, when carried to its logical extreme, could have led to the
very system rejected in Brown v. Board of Education, 347 U.S. 483
(1954).  See Wygant, 476 U.S. at 276 (plurality opinion).  The need
for faculty diversity rests on the very different understanding that
students of all races are better off when they have the opportunity to
learn from an integrated teaching staff because exposure to such an
integrated faculty inevitably tends to dispel the notion that there are
essential differences between the races.

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24

379 U.S. 184, 192 (1964); Bolling v, Sharpe, 347 U.S. 497,
499 (1954) Gibson v. Mississippi, 162 US. 565,591 (1896).
And, while Title VII originally was directed to private
rather than public action, it was animated by some of
the same concerns that animated the Equal Protection
Clause. General Elec. Co. v. Gilbert, 429 U.S. 125, 133
(1976).  It is therefore reasonable to conclude that the
(Congress-that enacted Title VII did not consider practices
that satisfy the Constitution's most rigorous equal pro-
tection standard to prohibited "discrimination." 3
This Court's treatment of the same issue under Title
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.,
further supports that conclusion Title VI, which was
enacted by the same Congress that enacted Title VII,
prohibits "discrimination"  in federally funded programs.
In Bakke, the Court held that Title VI does not bar race-
conscious action that satisfies constitutional standards.
438 U.S. at 284-287 (opinion of  Powell, J.); id at 328-341

___________________(footnotes)

    3 Title VII is not completely coextensive with the Constitution.
Title VII prohibits employment practices that "adversely affect"
employment status, 42 U.S.C. 2000e-2(a)(2) and therefore it reaches
employment practices that have a disproportionate impact on minority
employees and are not justified by business necessity. Griggs v. Duke
Power Co., 401 U.S. 424, 431 (1971).  In contrast, the Constitution
prohibits only practices undertaken with a discriminatory intent.
Washington v. Davis, 426 U.S. 229, 238-239 (1976). In addition, this
Court has held that, in light of the crucial role that voluntary affirma-
tive action plays in furthering Title VII's purpose of eliminating the
effects of discrimination in the workplace, the evidentiary burden of
showing a lawful remedial purpose is less demanding under Title VII
than under the Constitution.  Johnson, 480 U.S. at 627 n.6, 630 & n.8.
Title VII requires a showing of manifest racial imbalance in a tradi-
tionally segregated job category, id. at 830, while the Constitution
requires strong basis in evidence for believing that the employer
itself has engaged in prior discrimination, Wygant, 476 U.S. at 277
(plurality opinion).

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25

(Brennan, White, Marshall, and Blackmun, JJ., concurring
in the judgement in part and dissenting in part) (same).
As the controlling opinions in that case explain, the
legislative history of TitleVI shows that Congress
equated discrimination under Title VI with the Consti-
tution's similar prohibition. Ibid.  Because there are some
significant differences between Title VI and Title VII,
they cannot be read in para materia for all purposes.
Johnson., 480 U.S. at 627 n.6.  But there is no sound basis
for interpreting them differently with respect to the
question whether they permit race-conscious decisions
that satisfy the Constitution's strict scrutiny equal
protection standard.
    2. The 1972 amendments to Title VII, which extended
Title VII to state and "local government employers,
reinforce the conclusion that Title VII does not bar race-
conscious decisions that satisfy constitutional standards.
In enacting those amendments, Congress relied on its
authority under Section 5 of the Fourteenth Amendment.
Fitzpatrick v. Bitzer, 427 U.S. 445,452-453 & n.9 (1976).
As explained in the House Report, Congress's principal
purpose in extending Title VII to state and local govern-
ment employers was to provide federal administrative
assistance to public employees who were subjected to
discrimination that violated constitutional standards.
     
       The Constitution is as imperative in its prohibition
    of discrimination in state and local government em-
    ployment as it is in barring discrimination in Federal
    jobs.  The courts have consistently held that discrimi-
    nation by state and local governments, including job
    discrimination, violates the Fourteenth Amendment
    and is prohibited.

    While an individual has a right of action in the
appropriate court if he has been discriminated against,

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26

    the adequacy of protection against employment
    discrimination by state and local governments has
    been severely impeded by the failure & the Congress to
    provide Federal administrative machinery to assist the
    aggrieved employee.

H.R. Rep No. 238,-WI Cong., 1st Sess. 18 (1971) (footnote
omitted). It is fully consistent with the purpose of the
1972 amendments to permit a public employer to consider
race as factor in an employment decision, so long as the
employer does in a way that satisfies the Constitution's
strict scrutiny standard.
    Nothing in the legislative history of the 1972 amend-
ments suggests that Congress intended to limit permis
sible race-conscious actions to those that are intended
to remedy prior employment discrimination.  To the con-
trary, that legislative history shows that Congress was
concerned not only with the effects that discrimination has
on those seeking state employment opportunities, 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 parti-
cular community, but also creates mistrust, alienation,
and all too often hostility toward the entire process of
government ." S. Rep. No. 415, 92d Cong., 1st Sess. 10
(1971).  Congress also concluded that "[t]o permit dis-
crimination [in educational institution] 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."  Id. at 12. Race-
conscious action that is designed to instill trust in law
enforcement and to break down racial stereotypes and

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27

misconceptions in educational institutions is therefore
fully consistent with the goals of  Title VII
    3. Legislation enacted contemporaneously with the
1972 amendments to Title VII also refutes any suggestion
that Congress intended to prohibit all race-conscious em-
ployment decisions except those designed to remedy prior
employment discrimination.  In 1972, Congress enacted
the Emergency School Aid Act (ESAA), Pub. L. No. 92
318, Tit. VI 86 Stat. 354, an act that has since been
repealed.  ESAA made federal funds available to schools for
use in eliminating de facto as well as de jure segregation.
Board of Educ. v. Harris, 444 U.S. 130, 141-142 (1979).
ESAA reflected Congress's view that, regardless of its
cause, racial isolation harms the education of students. Id.
at 132.
    Consistent with ESAA's purposes, Congress required
school districts receiving ESAA funds to assign teachers
in such a way as to ensure that faculties at their schools
would not be racially identifiable. 444 U.S. at 138, 140-141,
148. Since Congress obviously did not intend for school
districts to take action under ESAA that would violate
Title VII, the only reasonable conclusion is that Congress
did not view Title VII as an absolute bar to all non-
remedial, race-conscious employment decisions.
    4. In holding that Title VII bars all non-remedial uses
of race, the court of appeals relied on this Court's decision
in Weber.  The court of appeals understood that decision to
hold that, in order for consideration of race as a factor in
an employment decision to be valid under Title VII, the
purpose of the decision must "mirror" a purpose of Title
VII. Pet. App. 9a. And the court further concluded that
only a remedial purpose can mirror the purposes of Title
VII. Id. at 29a. That reasoning is flawed.
    This Court stated in Weber that, the purposes of the
plan at issue in that case "mirror[ed] those of the statute"

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28

in that both "were designated to break down old patterns
of racial segregation and hierarchy," and both "were
structured to open employment opportunities for Negroes
in occupations which have been traditionally closed to
them." 443 U.S. at 208 (internal quotation marks omitted),
The Court made clear, however, that it was not there-
by intending to define "the line of demarcation between
permissible and impermissible affirmative action." Ibid.
Because the plan at issue in Weber did mirror Title VII's
remedial purpose, the Court had no reason to consider
whether other forms of race-conscious action could also be
consistent with Title VII.
    For the reasons set forth above, the kind of plan upheld
in Weber is not the only form of race-conscious action that
is consistent, with Title VII.  Title VII permits race to be
used for any purpose that is sufficiently "compelling" to
satisfy equal protection standards, as long as the means
chosen to further that purpose are narrowly tailored.  The
court of appeals erred in transforming a description of the
plan at issue in Weber into a legal requirement for all
race-conscious employment decisions.
    The court of appeals also defined too narrowly the
purposes of  Title. VII. Although the principal purposes
of  Title VII are to "break down old patterns of racial
segregation and hierarchy," and to "open employment
opportunities for Negroes in occupations which have been
traditionally closed to them," those are not its only pur-
poses.  The Court explained in Weber that one important
purpose of Title VII was to preserve "management pre-
rogatives" to  "the greatest extent possible" consistent
with achieving Congress's ''ultimate statutory goals." 443
U.S. at 206-207.  And, as discussed above, Title VII was
also designed to assist in the task of restoring trust in law
enforcement and breaking down racial stereotypes and
misconceptions in educational institutions.  When a public

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29

employer is permitted to further those compelling goals
through narrowly tailored, race-conscious means, Title
VII purposes are furthered. 4

___________________(footnotes)

    4 Title VII permits employers to use religion, sex, or national
origin, but not race, in employment decisions, if such a criterion is a
"bona fide occupational qualification [BFOQ] reasonably necessary
to the normal operation of that particular business or enterprise."
42 U.S.C. 2000e-2(e)(l). Interpreting Title VII to permit non-remedial,
race-conscious employment decisions that satisfy strict scrutiny is not
inconsistent with Congress's failure to create a BFOQ for race. Under
the Constitution, it is not enough that the use of race be "reasonably
necessary " to advance a " normal " operational need; instead the use of
race must be narrowly tailored to a compelling purpose. Adarand, 515
U.S. at 227.  There was no need to create a BFOQ-like exception from
Title VII for race-conscious employment decisions that satisfy that
constitutional standard, because Congress did not view such decisions
as prohibited "discrimination" in the first place.  The notion that the
failure to create a BFOQ for race precludes all non-remedial uses of
race also proves too much.  Acceptance of that notion would mean, for
example, that a law enforcement agency could not use race to assign a
black officer to infiltrate an all-black gang. Any sensible reading of
Title VII must allow for some non-remedial uses of race, and the real
question is how to draw the line.  The constitutional standard best
fulfills that function.

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30

CONCLUSION

    The judgment of the court of appeals should be affirmed
RespectfulIy submitted.

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

AUGUST 1997