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. e du/thir dc ir c uit_1996/84UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 94-5090

___________

UNITED STATES OF AMERICA

SHARON TAXMAN, Plaintiff-Intervenor

vs.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISC ATAWAY,

Appellant

___________

No. 94-5112

___________

SHARON TAXMAN,

Appellant

v.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISC ATAWAY

___________

Appeal from the United States District Co urt for the District of New Jersey (D.C. Civil No. 92-cv-00340)

___________

Argued November 29, 1995 Before: SLOVITER,* Chief Judge, MANSMANN and MCKEE, Circuit Judges.

___________

Reargued In Banc May 14, 1996

Before: SLOVITER, Chief Judge, BECKER, STA PLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, ** Circuit Judges.

(Filed August 8, 1996)* The Honorable William D. Hutchinson was a member of the

original panel which heard argument in this appeal on January 24, 1995. He died on October 8, 1995, before the appea l was resolved; Chief Judge Sloviter was designated to se rve in his place on the reconstituted panel.

** Judge Sarokin heard argument but retired f rom office prior to the issuance of the opinion.

David B. Rubin, Esquire (ARGUED) 44 Bridge Street

P.O. Box 4579 Metuchen, NJ 08840

COUNSEL FOR BOARD OF EDUCATION

OF THE TOWNSHIP OF PISCATAWAY

Stephen E. Klausner, Esquire (ARGUED) Klausner, Hunter, Cige & Seid 63 E. High Street

P.O. Box 1012 Somerville, NJ 08876

COUNSEL FOR SHARON TAXMAN

___________

OPINION OF THE COURT

__________

MANSMANN, Circuit Judge. In this Title VII matter, we must determin e whether the Board of Education of the Township of Piscataway vi olated that statute when it made race a factor in selecting whi ch of two equally qualified employees to lay off. Specifical ly, we must decide whether Title VII permits an employer with a racially balanced work force to grant a non-remedial racial preference in order to promote "racial diversity". It is clear that the language of Title VII is violated when an employer makes an employment decision basedupon an employee's race. The Supreme Court determined in U nited Steelworkers v. Weber, 443 U.S. 193 (1979), however , that Title VII's prohibition against racial discrimination is not violated by affirmative action plans which first, "have purp oses that mirror those of the statute" and second, do not "un necessarily trammel the interests of the [non-minority] employe es," id. at

208. We hold that Piscataway's affirmative acti on policy is unlawful because it fails to satisfy either prong o f Weber.

Given the clear antidiscrimination mandate of Title VII, a nonremedial affirmative action plan, even one with a l audable purpose, cannot pass muster. We will affirm the di strict court's grant of summary judgment to Sharon Taxman.

I.In 1975, the Board of Education of the Tow nship of

Piscataway, New Jersey, developed an affirmative ac tion policy applicable to employment decisions. The Board's Af firmative Action Program, a 52-page document, was originally adopted in response to a regulation promulgated by the New Jer sey State Board of Education. That regulation directed local school boards to adopt "affirmative action programs," N.J. Admin. Code Tit. 6 § 6:4-1.3(b), to address employment as well as school and classroom practices and to ensure equal opportunity to all pe rsons regardless of race, color, creed, religion, sex or national origin. N.J. Admin. Code Tit. 6 §§ 6:4-1.5, 6:4-1. 6(a). In 1983 the Board also adopted a one page "Policy", entitle d "Affirmative Action - Employment Practices." It is not clear fr om the record whether the "Policy" superseded or simply added to the "Program," nor does it matter for purposes of this appeal. The 1975 document states that the purpose of the Program is "to provide equal educational opportunit y for students and equal employment opportunity for employees and prospective employees," and "to make a concentrated effort to a ttract . . . minority personnel for all positions so that their qualifications can be evaluated along with other candidates." The 1983 document states that its purpose is to "ensure[] equal emplo yment opportunity . . . and prohibit[] discrimination in employment because of [,inter alia,] race. . . ." The operative language regarding the means by which affirmative-action goals are to be furthered is ide ntical in the two documents. "In all cases, the most qualified c andidate will be recommended for appointment. However, when cand idates appear to be of equal qualification, candidates meeting th e criteria of the affirmative action program will be recommended. " The phrase "candidates meeting the criteria of the affirmative action program" refers to members of racial, national orig in or gender groups identified as minorities for statistical rep orting purposes by the New Jersey State Department of Educ ation, including Blacks. The 1983 document also clarifies that the affirmative action program applies to "every aspect of employment including . . . layoffs . . . ." The Board's affirmative action policy did not have "any remedial purpose"; it was not adopted "with the int ention of remedying the results of any prior discrimination o r identified underrepresentation of minorities within the Piscat away Public School System." At all relevant times, Black teach ers were neither "underrepresented" nor "underutilized" in t he Piscataway School District work force. Indeed, statistics in 1976 and 1985 showed that the percentage of Black employees in th e job category which included teachers exceeded the percentage of Blacks in the

available work force.

A. In May, 1989, the Board accepted a recomme ndation from the Superintendent of Schools to reduce the teachin g staff in the Business Department at Piscataway High School by on e. At that time, two of the teachers in the department were of equal seniority, both having begun their employment with the Board onthe same day nine years earlier. One of those teac hers was

intervenor plaintiff Sharon Taxman, who is White, a nd the other was Debra Williams, who is Black. Williams was the only minority teacher among the faculty of the Business Departmen t. Decisions regarding layoffs by New Jersey school boards are highly circumscribed by state law; nontenured f aculty must be laid off first, and layoffs among tenured teachers in the affected subject area or grade level must proceed i n reverse order of seniority. N.J. Stat. Ann. § 18A:28-9 et seq. Seniority for this purpose is calculated according to specific guidelines set by state law. N.J. Stat. Ann. § 18A :28-10; N.J. Admin. Code Tit. 6 § 6:3-5.1. Thus, local boards l ack discretion to choose between employees for layoff, except in t he rare instance of a tie in seniority between the two or m ore employees eligible to fill the last remaining position. The Board determined that it was facing ju st such a rare circumstance in deciding between Taxman and Wi lliams. In prior decisions involving the layoff of employees w ith equal seniority, the Board had broken the tie through "a random process which included drawing numbers out of a container, drawing lots or having a lottery." In none of those instances, however, had the employees involved been of different races. In light of the unique posture of the layo ff decision, Superintendent of Schools Burton Edelchick recommen ded to the Board that the affirmative action plan be invoked i n order to determine which teacher to retain. Superintendent Edelchick made

this recommendation "because he believed Ms. Willia ms and Ms. Taxman were tied in seniority, were equally qualifi ed, and because Ms. Williams was the only Black teacher in the Business Education Department." While the Board recognized that it was not bound to apply the affirmative action policy, it made a disc retionary decision to invoke the policy to break the tie betw een Williams and Taxman. As a result, the Board "voted to termi nate the employment of Sharon Taxman, effective June 30, 198 8. . . ." At her deposition, Paula Van Riper, the Bo ard's Vice President at the time of the layoff, described the Board's decision-making process. According to Van Riper, a fter the Board recognized that Taxman and Williams were of equal s eniority, it assessed their classroom performance, evaluations, volunteerism and certifications and determined that they were "t wo teachers of equal ability" and "equal qualifications." At his deposition Theodore H. Kruse, the B oard's President, explained his vote to apply the affirmat ive action policy as follows: A. Basically I think because I had been aware that the student body and the commun ity which is our responsibility, the schools o f the community, is really quite diverse and there -- I have a general feeling during m y tenure on the board that it was valuable f or the students to see in the various employm ent roles a wide range of background, and that it

was also valuable to the work force and inparticular to the teaching staff that they

have -- they see that in each other. Asked to articulate the "educational objec tive" served by retaining Williams rather than Taxman, Kruse sta ted: A. In my own personal perspective I beli eve by retaining Mrs. Williams it was sending a very clear message that we feel that our staff should be culturally diverse, our student population is culturally diverse a nd there is a distinct advantage to students, to all students, to be made -- come into cont act with people of different cultures, differe nt background, so that they are more aware, m ore tolerant, more accepting, more understandi ng of people of all background.

Q. What do you mean by the phrase you us ed, culturally diverse?

A. Someone other than -- different than yourself. And we have, our student population and our community has people of all different background, ethnic backgroun d, religious background, cultural background, and it's important that our school distric t encourage awareness and acceptance and tolerance and, therefore, I personally thi nk it's important that our staff reflect that

too.

B. Following the Board's decision, Taxman fil ed a charge of employment discrimination with the Equal Employm ent Opportunity Commission. Attempts at conciliation w ere unsuccessful, and the United States filed suit unde r Title VII against the Board in the United States District Cou rt for the District of New Jersey. Taxman intervened, asserti ng claims under both Title VII and the New Jersey Law Against Discrimination (NJLAD). Following discovery, the Board moved for s ummary judgment and the United States and Taxman cross-mov ed for partial summary judgment only as to liability. The distric t court denied the Board's motion and granted partial summary judg ment to the United States and Taxman, holding the Board liable under both

statutes for discrimination on the basis of race. United States v. Board of Educ. of Township Piscataway, 832 F. Su pp. 836, 851 (D.N.J. 1993). A trial proceeded on the issue of damages. By this time, Taxman had been rehired by the Board and thus her

reinstatement was not an issue. The court awarded Taxman damages in the amount of $134,014.62 for backpay, fringe be nefits and prejudgment interest under Title VII. A jury award ed an additional $10,000 for emotional suffering under th e NJLAD. The district court denied the United States' request fo r a broadlyworded injunction against future discrimination, fi nding that

there was no likelihood that the conduct at issue w ould recur, but it did order the Board to give Taxman full seni ority reflecting continuous employment from 1980. Additi onally, the court dismissed Taxman's claim for punitive damages under the

NJLAD. The Board appealed, contending that the di strict court erred in granting Taxman summary judgment as to lia bility. The Board also contends, in the alternative, that the c ourt erred in awarding Taxman 100% backpay and in awarding prejud gment interest

at the IRS rate rather than under 28 U.S.C. § 1961. Taxman cross-appealed, contending that the district court erred in dismissing her claim for punitive damages. Subsequ ently, the United States sought leave to file a brief as amicu s curiae in support of reversal of the judgment, representing t hat it could no longer support the judgment of the district cour t. By order of November 17, 1995, we denied the United States' request. We treated the position of the United States at the or iginal argument before this court on January 24, 1995, as a motion to withdraw as a party, which we granted. Thus, the o nly parties before us on this appeal are the Board and Taxman. This court has jurisdiction over the appea ls under 28

U.S.C. § 1291. Our review of the district court's decision on summary judgment is plenary. Waldron v. SL Industr ies, 56 F.3d 491, 496 (3d Cir. 1995).

II. In relevant part, Title VII makes it unlaw ful for an employer "to discriminate against any individual wi th respect to his compensation, terms, conditions, or privileges of employment" or "to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any indi vidual of employment opportunities or otherwise affect his st atus as an employee" on the basis of "race, color, religion, s ex, or national origin." 42 U.S.C. § 2000e-2(a). For a t ime, the Supreme Court construed this language as absolutely prohibiting discrimination in employment, neither requiring nor permitting any preference for any group. Johnson v. Transport ation Agency, Santa Clara County, 480 U.S. 616, 643 (1987) (Steve ns, J., concurring) (citing, inter alia, Griggs v. Duke Pow er Co., 401 U.S. 424, 431 (1971), and McDonald v. Santa Fe Trai l Transp. Co., 427 U.S. 273, 280 (1976)). In 1979, however, the Court interpreted th e statute's "antidiscriminatory strategy" in a "fundamentally d ifferent way", id. at 644, holding in the seminal case of United S teelworkers v. Weber, 433 U.S. 193 (1979), that Title VII's prohib ition against

racial discrimination does not condemn all voluntar y raceconscious affirmative action plans. In Weber, the Court considered a plan implemented by Kaiser Aluminum & Chemical Corporation. Prior to 1974, Kaiser hired as craftw orkers only those with prior craft experience. Id. at 198. Be cause they had long been excluded from craft unions, Blacks were u nable to present the credentials required for craft position s. Id. Moreover, Kaiser's hiring practices, although not a dmittedlydiscriminatory with regard to minorities, were ques tionable. Id.at 210.

As a consequence, while the local labor force was a bout 39% Black, Kaiser's labor force was less than 15% B lack and its

crafts-work force was less than 2% Black. Id. at 1 98. In 1974, Kaiser entered into a collective bargaining agreeme nt which contained an affirmative action plan. The plan res erved 50% of the openings in an in-plant craft-training program for Black employees until the percentage of Black craft-worke rs in the plant reached a level commensurate with the percent age of Blacks in the local labor force. Id. at 198. During the first year of the plan's operation, 13 craft-trainees were select ed, seven of

whom were Black and six of whom were White. Id. at 199. Thereafter, Brian Weber, a White productio n worker, filed a class action suit, alleging that the plan u nlawfully discriminated against White employees under Title V II. Relying upon a literal reading of subsections 2000-3(2)(a) and (d) of the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court's decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. at 273, where the Court held that Title VII forbids di scrimination against Whites as well as Blacks, the plaintiffs ar gued that it necessarily followed that the Kaiser plan, which re sulted in junior Black employees receiving craft training in preference to senior White employees, violated Title VII. Id. at 199. The district court agreed and entered a judgment in fav or of the plaintiffs; the Court of Appeals for the Fifth Circ uit affirmed.

Id. at 200. The Supreme Court, however, reversed, noti ng initially that although the plaintiffs' argument was not "wit hout force", it disregarded "the significance of the fact that t he Kaiser-USWA plan was an affirmative action plan voluntarily ado pted by private parties to eliminate traditional patterns o f racial segregation." Id. at 201. The Court then embarkedupon an exhaustive review of Title VII's legislative histor y and identified Congress' concerns in enacting Title VII 's prohibition against discrimination -- the deplorable status of Blacks in the nation's economy, racial injustice, and the need to open employment opportunities for Blacks in traditionall y closed occupations. Id. at 202-204. Against this backgro und, the Court concluded that Congress could not have intended to prohibit private employers from implementing programs direct ed toward the very goal of Title VII -- the eradication of discri mination and its effects from the workplace: It would be ironic indeed if a law trigger ed by a Nation's concern over centuries of racial injustice and intended to improve t he

lot of those who had "been excluded from t he American dream for so long," 110 Cong. Rec

. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibit ion of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

Id. at 204.The Court found support for its conclusion in the

language and legislative history of section 2000e-2 (j) of Title VII which expressly provides that nothing in the Ac t requires employers to grant racial preferences. According to the Court, the opponents of Title VII had raised two arguments : the Act would be construed to impose obligations upon emplo yers to integrate their work forces through preferential tr eatment of minorities, and even without being obligated to do so, employers with racially imbalanced work forces would grant ra cial preferences. Id. at 205. Since Congress addressedonly the first objection and did not specifically prohibit a ffirmative action efforts in section 2000e-2(j), the Court inf erred that Congress did not intend that Title VII forbid all v oluntary raceconscious preferences. Id. at 205-06. The Court f urther reasoned that since Congress also intended in secti on 2000e-2(j) "to avoid undue federal regulation of private busin esses," a prohibition against all voluntary affirmative actio n would disserve this end by "augment[ing] the power of the Federal government and diminish[ing] traditional management prerogatives.

. . ." Id. at 206-07. The Court then turned to the Kaiser plan i n order to determine whether it fell on the "permissible" side of the "line of demarcation between permissible and impermissibl e affirmative action plans." Id. at 208. The Court upheld the K aiser plan because its purpose "mirror[ed] those of the statut e" and it did not "unnecessarily trammel the interests of the [no n-minority] employees": The purposes of the plan mirror those of t he statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which have been traditionally closed to them." 110 Cong. Rec. 6548 (196 4) (remarks of Sen. Humphrey).

At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not requir e the discharge of white workers and their replacement with new black hires. Nor doe s the plan create an absolute bar to the advancement of white employees; half of th ose trained in the program will be white. Moreover, the plan is a temporary measure; it

is not intended to maintain racial balance

, but simply to eliminate a manifest racial

imbalance.

Id. at 208 (citation and footnote omitted). In 1987, the Supreme Court decided a secon d Title VII affirmative action case, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. at 616. There, the Santa Cl ara County Transit District Board of Supervisors implemented a n affirmativeaction plan stating that "`mere prohibition of disc riminatory

practices [was] not enough to remedy the effects of past discriminatory practices and to permit attainment o f an equitable representation of minorities, women and handicappedpersons.'" Id. at 620. The plan noted that women were represe nted in numbers far less than their proportion of the avail able work force in the Agency as a whole and in the skilled c raft worker job category relevant to the case, and observed tha t a lack of motivation in women to seek training or employment where opportunities were limited partially explained the underrepresentation. Id. at 621. The plan authori zed the Agency to consider as one factor the gender of a qualifiedcandidate in making promotions to positions with a traditionally segregated job classification in which women were significantl y underrepresented. Id. at 620-21. The plan did not set quotas, but had as its long-term goal the attainment of a w ork force whose composition reflected the proportion of women in the area labor force. Id. at 621-22. Acknowledging the pra ctical difficulties in attaining the long-term goal, inclu ding the limited number of qualified women, the plan counsel ed that shortrange goals be established and annually adjusted to serve as realistic guides for actual employment decisions. Id. at 622. On December 12, 1979, the Agency announceda vacancy for the promotional position of road dispatcher. A t the time, none of the 238 positions in the applicable job cat egory was occupied by a woman. Id. at 621. The Agency Direc tor, authorized to choose any of seven applicants who ha d been deemed eligible, promoted Diane Joyce, a qualified woman, over Paul Johnson, a qualified man. Id. at 624-25. As the A gency Director testified: "`I tried to look at the whole picture, the combination of her qualifications and Mr. Johnson's qualifications, their test scores, their expertise, their background, affirmative action matters, things like that . . . I

believe it was a combination of all those.'" Id. a t 625. Johnson sued, alleging that the Agency's e mployment

decision constituted unlawful sex discrimination un der Title VII. Evaluating the plan against the criteria announced in Weber, the district court held that the plan did not satisfy W eber's criterion that the plan be temporary. Id. at 625. The Court of Appeals for the Ninth Circuit reversed, holding tha t since the plan provided for the attainment, rather than the m aintenance, of a balanced work force, the absence of an express te rmination date in the plan was not dispositive of its validity. I d. at 625-26. The court of appeals further held that the plan hadbeen adopted "to address a conspicuous imbalance in the Agency's work force, and neither unnecessarily trammeled the rights of o ther employees, nor created an absolute bar to their adv ancement."

Id. at 626. The Supreme Court affirmed. Declaring its prior analysis in Weber controlling, the Court examined w hether the employment decision at issue "was made pursuant to a plan prompted by concerns similar to those of the employ er in Weber" and whether "the effect of the [p]lan on males and nonminorities[was] comparable to the effects of the plan in that case." Id.at 631.

The first issue the Court addressed, therefore, was whether "consideration of the sex of applicants for Skilled Craft jobs was justified by the existence of a `manifest imbalance' that reflected underrepresentation of women in `tra ditionally segregated job categories.'" Id. at 631 (quoting W eber, 433 U.S. at 197). Although the Court did not set forth a qu antitative measure for determining what degree of disproportio nate representation in an employer's work force would be sufficient to justify affirmative action, it made clear that the terms "manifest imbalance" and "traditionally segregated job category" were not tantamount to a prima facie case of discri mination against an employer since the constraints of Title VII and the Federal Constitution on voluntarily adopted affirma tive action plans are not identical. Johnson, 480 U.S. at 632. In this regard, the Court further reasoned that requiring a n employer in

a Title VII affirmative action case to show that it had discriminated in the past "would be inconsistent wi th Weber's focus on statistical imbalance, and could inappropr iately create a significant discentive for employers to adopt an affirmative action plan". Id. at 633 (footnote omitted). Reviewing Agency statistics which showed t hat women were concentrated in traditionally female jobs and represented a lower percentage in other jobs than would be expect ed if traditional segregation had not occurred, the Court concluded that the decision to promote Joyce was made pursuan t to a plan designed to eliminate work force imbalances in trad itionally segregated job categories and thus satisfied Weber' s first prong. Id. at 634. Moving to Weber's second prong, whethe r the plan unnecessarily trammeled the rights of male employee s, the Court concluded that the plan passed muster because it au thorized merely that consideration be given to affirmative a ction concerns when evaluating applicants; gender was a "plus" fac tor, only one of several criteria that the Agency Director consid ered in making his decision; no legitimate, firmly rooted expectat ion on the part of Johnson was denied since the Agency Directo r could have promoted any of the seven candidates classified as eligible; even though Johnson was refused a promotion, he retainedhis employment; and the plan was intended to attain a b alanced work force, not to maintain one. Id. at 638-40.

III. We analyze Taxman's claim of employment di scrimination under the approach set forth in McDonnell Douglas v . Green, 411 U.S. 792 (1978). Once a plaintiff establishes a pr ima faciecase, the burden of production shifts to the employer to showa legitimate nondiscriminatory reason for the decisio n; an affirmative action plan may be one such reason. Jo hnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626 (1987). When the employer satisfies this requireme nt, the burden of production shifts back to the employee to show t hat the asserted nondiscriminatory reason is a pretext and that the affirmative action plan is invalid. Id. For summary judgment purposes, the parties do notdispute that Taxman has established a prima facie c ase or that

the Board's decision to terminate her was based on its affirmative action policy. The dispositive liabili ty issue, therefore, is the validity of the Board's policy un der Title VII.

IV. Having reviewed the analytical framework f or assessing the validity of an affirmative action plan as estab lished in United Steelworkers v. Weber, 443 U.S. 193 (1979), and refined in Johnson, 490 U.S. at 616, we turn to the facts of t his case in order to determine whether the racial diversity pur pose of the Board's policy mirrors the purposes of the statute. We look for the purposes of Title VII in the plain meaning of t he Act's provisions and in its legislative history and histo rical context. See Edward v. Aguillard, 482 U.S. 578, 594-95 (1987 ) (in determining a statute's purpose, courts look to the statute's words, legislative history, historical context and the sequence of events leading to its passage).

A. Title VII was enacted to further two prima ry goals: to end discrimination on the basis of race, color, rel igion, sex or national origin, thereby guaranteeing equal opportu nity in the workplace, and to remedy the segregation and underr epresentation

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

force. Title VII's first purpose is set forth in section 2000e-2's several prohibitions, which expressly den ounce the discrimination which Congress sought to end. 42 U. S.C. § 2000e2(a)-(d),(l); McDonnell Douglas, 411 U.S. at 800 (" The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to elimina te those discriminatory practices and devices which have fos tered racially stratified job environments to the disadvantage of minority citizens."). This antidiscriminatory pur pose is also reflected in the Act's legislative history. In an interpreta tive memorandum entered into the Congressional Record, S enators Case and Clark, comanagers of the Senate bill, stated: To discriminate is to make a distinction, to make a difference in treatment or favor, a nd

those distinctions or differences in treatment or favor which are prohibited by

section 704 are those which are based on a ny five of the forbidden criteria: race, col or, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title.

* * *

. . . [Title VII] expressly protects the employer's right to insist that any prospective applicant, Negro or white, mus t meet the applicable job qualifications.Indeed the very purpose of Title VII is to

promote hiring on the basis of job qualifications, rather than on the basis o f

race or color.

110 Cong. Rec. 7213, 7247 (1964), quoted in Price W aterhouse v. Hopkins, 490 U.S. 228, 243 (1989). Title VII's second purpose, ending the seg regative effects of discrimination, is revealed in the congr essional debate surrounding the statute's enactment. In Web er, the Court carefully catalogued the comments made by the propo nents of Title

VII which demonstrate the Act's remedial concerns. Weber, 433 U.S. at 202-04. By way of illustration, we cite Se nator Clark's

remarks to the Senate: The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is

a social malaise and a social situation wh ich

we should not tolerate. That is one of th e principal reasons why the bill should pass

.

Id. (quoting 110 Cong. Rec. at 7220) (statement of Sen. Clark). Likewise, Senator Humphrey spoke of the Nation's ne ed "`to open employment opportunities for Negroes which have bee n traditionally closed to them,'" and to assist those who have "`been excluded from the American dream for so long [.]'" Id.(quoting 110 Cong. Rec. at 6548, 6552) (statements of Sen. Humphrey). The significance of this second corrective purpose cannot be overstated. It is only because Title VII was written to eradicate not only discrimination per se but the consequencesof prior discrimination as well, that racial preferences in the

form of affirmative action can co-exist with the Ac t's

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

we are convinced that unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the p urposes of the statute, and, therefore, cannot satisfy the first p rong of the

Weber test. We see this case as one involving straight forward statutory interpretation controlled by the text andlegislative history of Title VII as interpreted in Weber and Jo hnson. The statute on its face provides that race cannot be a factor in employer decisions about hires, promotions, and lay offs, and the legislative history demonstrates that barring consi derations of race from the workplace was Congress' primary objec tive. If exceptions to this bar are to be made, they must be made on the basis of what Congress has said. The affirmative a ction plans at issue in Weber and Johnson were sustained only beca use the Supreme Court, examining those plans in light of co ngressional intent, found a secondary congressional objective i n Title VII that had to be accommodated -- i.e., the eliminatio n of the effects of past discrimination in the workplace. H ere, there is no congressional recognition of diversity as a Titl e VIIobjective requiring accommodation.

Accordingly, it is beyond cavil that the B oard, by invoking its affirmative action policy to lay off S haron Taxman,

violated the terms of Title VII. While the Court i n Weber and Johnson permitted some deviation from the antidiscr imination

mandate of the statute in order to erase the effect s of past discrimination, these rulings do not open the door to additional non-remedial deviations. Here, as in Weber and Joh nson, the Board must justify its deviation from the statutory mandate based on positive legislative history, not on its idea of what is appropriate.

B. The Board recognizes that there is no posi tive legislative history supporting its goal of promotin g racial diversity "for education's sake", and concedes that there is no caselaw approving such a purpose to support an affi rmative action plan under Title VII. "[T]he Board would have [us] infer the propriety of this purpose from fragments of other a uthority." Board of Educ. of Township of Piscataway, 832 F. Su pp. at 845. The Board first attempts to meet its oblig ations with respect to Title VII by arguing that Congress meant to cover the situation presented here "when it amended Title VII in 1972 to cover academic institutions public and private." A review of a Senate Committee's explanation for recommending the amendment, however, reveals that Congress neither addressed no r embraced the racial diversity purpose before us. Instead, Congr ess pursued, in Title VII's 1972 amendment with regard to the na tion's schools, the same purposes it had pursued in 1964 w hen enacting the original statute with respect to other employer s, namely, the elimination of discriminatory employment practices and the

abolition of discrimination's invidious effects: The presence of discrimination in the

Nation's educational institutions is no secret. . . . This discrimination, howeve r, is not limited to the students alone. Discriminatory practices against faculty, staff, and other employees is also common.

As in other areas of employment,

statistics for educational institutions

indicate that minorities and women are precluded from the more prestigious and higher-paying positions, and are relegated to the more menial and lower-paying jobs. Wh ile in elementary and secondary school systems Negroes accounted for approximately 10% of the total number of positions in the highe r- paying and more prestigious positions in institutions of higher learning, blacks constituted only 2.2% of all positions, mo st of these being found in all-black or predominantly black institutions. Women a re similarly subject to discriminatory patter ns.Not only are they generally under-represen ted

in institutions of higher learning, but th ose few that do obtain positions are generally paid less and advanced more slowly than th eir male counterparts. Similarly, while women constitute 67% of elementary and secondary school teachers, out of 778,000 elementary and secondary school principals, 78% of elementary school principals are men and 9 4% of secondary school principals are men.

. . . There is nothing in the legislative background of Title VII, nor d oes any national policy suggest itself, to support the present exemption. In fact, t he

Committee believes that the existence of

discrimination in educational institutions is particularly critical. It is difficult to imagine a more sensitive area than educational institutions, where the youth of the Nation are exposed to a multitude of ideas and impressions that will strongly influence their future development. To permit discrimination here would, more tha n in any other area, tend to promote existin g misconceptions and stereotypical categorizations which in turn would lead t o future patterns of discrimination.

S.Rep. 415, 92nd Cong., 1st Sess. 12 (1971). See J ohnson, 480 U.S. at 627-28 n.6 ("While public employers were no t added to the definition of `employer' in Title VII until 1972, t here is no

evidence that this mere addition to the definitiona l section of

the statute was intended to transform the substanti ve standard governing employer conduct.").

We find the Board's reliance on Fourteenth Amendment caselaw misplaced as well. We are acutely aware, a s is the Board, that the federal courts have never decided a "pure" Title VII case where racial diversity for education's sak e was advanced as the sole justification for a race-based decision . The Board argues that in deciding just such a case, we shouldlook to the Supreme Court's endorsement of diversity as a goal in the Equal Protection context. This argument, however, is bas ed upon a faulty premise. In relying on Equal Protection cases to su pport its diversity goal, we understand the Board to reason a s follows: The Supreme Court observed in Johnson that "the sta tutory prohibition [in Title VII] with which an employer m ust contend

was not intended to extend as far as that of the Co nstitution", 480 U.S. at 628 n.6. Accordingly, a purpose which survives constitutional strict scrutiny necessarily passes m uster under Title VII's permissible purpose test -- since the C ourt has endorsed the concept of diversity in Equal Protecti on cases, it would approve the Board's diversity purpose in this Title VIIcase, where the limitations on purpose are less str ingent.

We are convinced, however, that Johnson's footnote six, 480 U.S. at 627-28 n.6, in which the Court contrast ed the reach of Title VII with that of the Constitution, does no t speak to the purposes that may support affirmative action under the former but

not the latter. We read the Court's observation to relate, instead, to the factual predicate that employers mu st offer to prove the need for remedial efforts in Title VII as contrasted with Equal Protection affirmative action cases. In Johnson, the Court held that the legali ty of the Santa Clara County Transportation Agency's plan und er Title VII must be guided by the Court's determination in Webe r that affirmative action is lawful if an employer can poi nt to a "`manifest imbalance . . . in traditionally segrega ted job categories.'" 480 U.S. at 630-32 (quoting Weber, 4 33 U.S. at 197). In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), by contrast, the Court determined that unde r the Constitution a public employer's remedial affirmati ve action initiatives are valid only if crafted to remedy its own past or present discrimination; that is, societal discrimin ation is an insufficient basis for "imposing discretionary lega l remedies against innocent people." Id. at 274-76. In the p lurality's words, affirmative action must be supported by "a f actual determination that the employer had a strong basis in evidence

for its conclusion that remedial action was necessa ry." Id. at

277.

When the Court in Johnson observed that Ti tle VII's statutory prohibition does not extend as far as the Constitution, it was addressing one of Justice Scalia's arguments in dissent that since obligations under Title VII and the Cons titution are identical, a public employer's adoption of an affir mative action plan in a Title VII case should be governed by the prior discrimination standard set forth in Wygant. Johns on, 480 U.S.

at 627-28 n.6.

While the Supreme Court may indeed at some future date hold that an affirmative action purpose that satisf ies the Constitution must necessarily satisfy Title VII, it has yet to do

so. Were we to accept that equal protection st andards may be imported into Title VII analysis, we are still u npersuaded that the Equal Protection caselaw validates the Boa rd's asserted goal of racial diversity. We cannot agree with the Board that the racial diversity purpose is supported by both t he Supreme Court's holding and the dissenting opinions in Wyga nt. The Court in Wygant, although divided, agreed that under the Equal Protection Clause, racial classifications in the co ntext of affirmative action must be justified by a compellin g state purpose and the means chosen to effectuate that pur pose must be narrowly tailored; that societal discrimination alo ne will not justify a racial classification; that evidence of p rior discrimination by an employer must be presented bef ore remedial racial classifications can be employed; and that th e "role model" theory proposed by the employer as a basis for race -consciousstate action was unacceptable because it would have allowed

discriminatory hiring and layoff well beyond the po int necessary for any remedial purpose and did not bear any relat ionship to the harm caused by prior discrimination. Id. at 270-78 ; id. at 284- 93 (O'Connor, J., concurring in part and concurring in the Court's judgment); id. at 294-95 (White, J., concur ring in the Court's judgment). The dissenting Justices believe d that the Constitution would allow a public employer to prese rve the integration it had achieved through a legitimate af firmative action hiring plan by thereafter apportioning layof fs between minority and nonminority groups. Id. at 306 (Marsh all, J., dissenting, joined by Brennan and Blackmun, JJ.); i d. at 267-68 (Stevens, J., dissenting). We are also unpersuaded by the Board's con tention that Equal Protection cases arising in an education cont ext support upholding the Board's purpose in a Title VII action . These Equal Protection cases, unlike the case at hand, involvedcorrective efforts to confront racial segregation or chronic m inority underrepresentation in the schools. In this contex t, we are not at all surprised that the goal of diversity was rai sed. While we wholeheartedly endorse any statements in these case s extolling the educational value of exposing students to perso ns of diverse races and backgrounds, given the framework in which they were made, we cannot accept them as authority for the co nclusion that the Board's non-remedial racial diversity goal is a permissible basis for affirmative action under Title VII. See, e.g., Wygant, 476 U.S. at 267 (Marshall, J., dissenting) (noting that the racially-conscious layoff provision at issue was ai med at preserving the faculty integration achieved by the Jackson, Michigan Public Schools in the early 1970s through affirmative action; minority representation went from 3.9% in 1 969 to 8.8% in 1971); Columbus Board of Education v. Penick, 443 U .S. 449, 467 (1979) (condemning intentional segregation and the creation of racially-identifiable schools practiced by the Colu mbus, Ohio Board of Education); Regents of the University of C alifornia v. Bakke, 438 U.S. 265, 272 (1978) (Powell, J., announ cing the judgment of the Court) (observing that the 1968 cla ss of the Medical School of the University of California at D avis contained three Asians, no Blacks, no Mexican-Americans and n o American Indians); Swann v. Charlotte-Mecklenburg Board of E ducation, 402 U.S. 1 (1971) (observing that 14,000 Black pupils i n the Charlotte-Mecklenburg, North Carolina school system attended 21 schools that were at least 99% Black); Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 897 (3d Cir. 1984) ( recognizing that "[t]he Philadelphia School System has long suf fered from defacto segregation by race of students and faculty"), cert .denied, 469 U.S. 1107 (1985). More specifically, two Supreme Court cases upon which the Board relies, Bakke, 438 U.S. at 265, and Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990), are inapposite. Bakke involved a rejected White applicant's challenge under the Co nstitution and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to a special admissions program instituted by the Medica l School of the University of California at Davis which essenti ally set aside16 places for minority candidates. Justice Powell, whose vote

was necessary both to establish the validity of con sidering race

in admission decisions and to invalidate the racial quota before the Court, was of the opinion that the attainment o f a "diverse student body" is a constitutionally permissible goa l for an institution of higher education. Justice Powell po inted out that the academic freedom that has been viewed as a "spe cial concern"

of the First Amendment includes "the freedom of a u niversity to make its own judgments as to the selection of its s tudent body" and that "[t]he atmosphere of `speculation, experim ent and creation' -- so essential to the quality of higher education -- is widely believed to be promoted by a diverse stud ent body." Bakke, 438 U.S. at 312 (footnote omitted). He then agreed with Davis' assertion that its interest in diversity imp licated First

Amendment concerns: Thus, in arguing that its universitie s must be accorded the right to select those

students who will contribute the most to t he "robust exchange of ideas," [Davis] invoke s a countervailing constitutional interest, th at of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its missi on.

Id. at 313. Davis' reservation of a specified number o f seats in each class for individuals from preferred ethnic gr oups to further its diversity purpose, however, was unaccep table because, according to Justice Powell, it misconceived the na ture of the state interest that would justify consideration of race or ethnic background: It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed t o be members of selected ethnic groups, with the remaining percentage an undifferentiat ed aggregation of students. The diversity th at furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of whic h racial or ethnic origin is but a single though important element. Davis' special admissions program, focused solely on ethn ic diversity, would hinder rather than furthe r attainment of genuine diversity.

Id. at 315 (footnote omitted). Bakke's factual and legal setting, as well as the diversity that universities aspire to in their stud ent bodies, are, in our view, so different from the facts, rele vant law and the racial diversity purpose involved in this case that we find little in Bakke to guide us. Likewise, statements regarding the value o f programmingdiversity made by the Court in Metro Broadcasting w hen it upheld

two minority preference policies adopted by the Fed eral Communications Commission, 497 U.S. at 547, have no application here. The diversity interest the Court found suffi cient under the Constitution to support a racial classification had nothing

whatsoever to do with the concerns that underlie Ti tle VII. Citing Bakke, the Court concluded that "[j]ust as a `diverse student body' contributing to a `robust exchange of ideas' is a `constitutionally permissible goal' on which a race -conscious university admissions program may be predicated, th e diversity of views and information on the airwaves serves import ant First Amendment values." Id. at 568 (citation omitted). Finally, we turn to the Board's argument t hat the diversity goal underlying its application of the af firmative action policy was endorsed in Justice O'Connor's co ncurring opinion in Wygant and in Justice Stevens' concurrin g opinion in

Johnson. We find that these statements are slender reeds indeed and any bearing that they may have in the situation presented

here is minimal. While Justice O'Connor did refer favorably to Bakke and the notion of racial diversity in institu tions of higher learning, Wygant, 480 U.S. at 286 (O'Connor J. concurring), just one year later in Johnson, a Titl e VII case, she rejected Justice Steven's expansive view of the purposes that may underlie affirmative action, stating: "[C]ontr ary to the intimations in JUSTICE STEVENS' concurrence, this C ourt did not approve preferences for minorities `for any reason that might seem sensible from a business or social point of vi ew.'" Johnson, 480 U.S. at 649 (O'Connor, J., concurring in the Court's judgment). As for Justice Stevens' concurrence in Johnson, while he clearly pondered the idea of "forward-looking" a ffirmative action where employers do not focus on "`purg[ing] their own past sins of discrimination'", id. at 647 (Stevens, J., concurring), his comments are not controlling.

V. Since we have not found anything in the Bo ard's arguments to convince us that this case requires ex amination beyond statutory interpretation, we return to the p oint at which we started: the language of Title VII itself and t he two cases reviewing affirmative action plans in light of that statute. Our analysis of the statute and the caselaw convinces u s that a nonremedial affirmative action plan cannot form the ba sis for deviating from the antidiscrimination mandate of Ti tle VII.

The Board admits that it did not act to re medy the effects of past employment discrimination. The par ties have stipulated that neither the Board's adoption of its affirmative action policy nor its subsequent decision to apply it in choosing between Taxman and Williams was intended to remedy the results of any prior discrimination or identified underreprese ntation of Blacks within the Piscataway School District's teac her workforce

as a whole. Nor does the Board contend that its ac tion here was directed at remedying any de jure or de facto segre gation. Butsee Piscataway Township Bd. of Educ. v. Burke, 386 A.2d439 (N.J. Super. Ct. App. Div.), appeal dismissed, 401 A.2d 2 30 (N.J.1978). Even though the Board's race-conscious acti on was taken

to avoid what could have been an all-White faculty within the Business Department, the Board concedes that Blacks are not underrepresented in its teaching workforce as a who le or even in the Piscataway High School. Rather, the Board's sole purpose in applyi ng its affirmative action policy in this case was to obtai n an educational benefit which it believed would result from a racially diverse faculty. While the benefits flowi ng from diversity in the educational context are significan t indeed, we are constrained to hold, as did the district court, that inasmuch as "the Board does not even attempt to show that it s affirmative action plan was adopted to remedy past discriminati on or as the result of a manifest imbalance in the employment of minorities," 832 F. Supp. at 845, the Board has failed to satisf y the first prong of the Weber test. United States v. Board of Educ. of Township of Piscataway, 832 F. Supp. 836, 848 (D.N. J. 1993). We turn next to the second prong of the We ber analysis. This second prong requires that we determine whethe r the Board's policy "unnecessarily trammel[s] . . . [nonminority ] interests. . . ." Weber, 433 U.S. at 208. Under this require ment, too, the Board's policy is deficient. We begin by noting the policy's utter lack of

definition and structure. While it is not for us t o decide how much diversity in a high school facility is "enough ," the Board cannot abdicate its responsibility to define "racia l diversity" and to determine what degree of racial diversity in the Piscataway School is sufficient. The affirmative action plans that have met with the Supreme Court's approval under Title VII had object ives, as well as benchmarks which served to evaluate progress, gu ide the employment decisions at issue and assure the grant of only those minority preferences necessary to further the plans ' purpose. Johnson, 480 U.S. at 621-22 (setting forth long-ran ge and shortterm objectives to achieve "`a statistically measur able yearly improvement in hiring, training and promotion of mi norities and women . . . in all major job classifications where they are underrepresented'"); Weber, 433 U.S. at 193 (reserv ing for Black employees 50% of the openings in craft-training pro grams until the percentage of Black craftworkers reflected the percentage of Blacks in the available labor force). By contrast, the Board's policy, devoid of goals and standards, is governed entirely by the Board's whim, leaving the Board free, if it so chooses, to grant racial preferences that do not promote even t he policy's claimed purpose. Indeed, under the terms of this p olicy, the Board, in pursuit of a "racially diverse" work forc e, could use affirmative action to discriminate against those wh om Title VII was enacted to protect. Such a policy unnecessaril y trammels the interests of nonminority employees. Moreover, both Weber and Johnson unequivo cally provide that valid affirmative action plans are "temporary" measures that seek to "'attain'", not "maintain" a "permanent rac ial . . . balance." Johnson, 480 U.S. at 639-40. See Weber, 433 U.S. at 208. The Board's policy, adopted in 1975, is an es tablishedfixture of unlimited duration, to be resurrected fr om time to

time whenever the Board believes that the ratio bet ween Blacks and Whites in any Piscataway School is skewed. On this basis alone, the policy contravenes Weber's teaching. Se e Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431, 440 (10th Cir. 1990) (holding that the school district's layoff decision aimed at ensuring the employment of the district's only Blac k administrator was "outright racial balancing" in vi olation of Weber's second prong). Finally, we are convinced that the harm i mposed upon a nonminority employee by the loss of his or her job is so

substantial and the cost so severe that the Board's goal of racial diversity, even if legitimate under Title VI I, may not be pursued in this particular fashion. This is especi ally true where, as here, the nonminority employee is tenured . In Weberand Johnson, when considering whether nonminorities were unduly encumbered by affirmative action, the Court found i t significant that they retained their employment. Weber, 433 U. S. at 208 (observing that the plan did not require the discha rge of nonminority workers); Johnson, 480 U.S. at 638 (obs erving that the nonminority employee who was not promoted nonet heless kept his job). We, therefore, adopt the plurality's pro nouncement in Wygant that "[w]hile hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layo ffs impose the entire burden of achieving racial equality on parti cular individuals, often resulting in serious disruption of their lives. That burden is too intrusive." Wygant, 476 U.S. at 283 (footnote omitted). Accordingly, we conclude that under the se cond prong of the Weber test, the Board's affirmative action poli cy violates Title VII. In addition to containing an impermissi ble purpose, the policy "unnecessarily trammel[s] the interests of the [nonminority] employees." Weber, 430 U.S. at 208.

VI. The district court did not analyze Taxman' s claims based on the New Jersey Law Against Discrimination and we need not do so in detail here. The parties have agreed that the legal analysis required by the state statute is essential ly the same as

that undertaken in Title VII cases. While the New Jersey Supreme Court has yet to consider a voluntarily adopted aff irmative action plan in light of the NJLAD, it is undisputedthat the NJLAD has been interpreted to parallel Title VII. In Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d 465, 478 (N.J. 1978), the Supreme Court of New Jersey wrote that "where [ Title VII] standards are useful and fair, it is in the best in terests of everyone concerned to have some uniformity in the l aw." Given that statement, we predict that the New Jersey Supreme Court would follow the analytical directive of Weber and Johnson. Analysis of this case under the NJLAD wou ld, therefore,

lead to the same result as that which we have reach ed under Title VII. Sharon Taxman is entitled to summary judgment on her claim

made under the NJLAD.VII.

Having found the Board liable under Title VII, we turn our attention to the issue of damages, addressing f irst the

district court's order that Taxman be awarded one h undred percent backpay for the entire period of her layoff. The B oard argues that where a backpay award is appropriate, the cour t's goal should be to restore "`the conditions and relations hips that

would have been had there been no'" unlawful discri mination. Teamsters v. United States, 431 U.S. 324, 371 (1977 ) (quoting Franks v. Bowman Transportation Co., 424 U.S. 747, 769 (1976)). According to the Board, the district court's award of one hundred percent backpay was plainly unfair. Had it not inv oked the affirmative action plan, the Board would have follo wed its usual procedure, using a coin toss or other random proces s to break the seniority between Williams and Taxman. Taxman, the refore, would have stood no more than a fifty percent chance of k eeping her job

had there been no unlawful discrimination." We disagree. In deciding backpay issues, a district court has wide latitude to "locate `a just result'" and to further the "make whole remedy of Title VII in ligh t of the circumstances of a particular case." Albemarle Pap er Co. v. Moody, 422 U.S. 405, 424-25 (1975). While Taxman c annot be returned to the position that she held prior to her layoff -- one of virtually precise equality with Williams in term s of the

factors relevant to the decision -- she can be retu rned to a position of financial equality with Williams throug h a one hundred percent backpay award. We are convinced th at this award most closely approximates the conditions that wouldhave prevailed in the absence of discrimination.

We find an additional basis for our holdin g in the analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the Supreme Court held that where an employee proves that discrimination played a role i n an employment decision, the employer will not be found"liable if it can prove that, even if it had not taken [race] int o account it would have come to the same decision regarding a pa rticular person." Id. at 242. Here, Taxman has clearly est ablished that the Board is liable and that she was not paid durin g the relevant period. Under the logic of Hopkins, the Board cann ot avoid a one hundred percent backpay award unless it can establi sh, by a preponderance of the evidence, that Taxman would ha ve received

some lesser amount had the Board not taken race int o account. This, of course, the Board cannot do. Given the law and the circumstances presen ted in this case, we are convinced that the district court's an alysis with respect to backpay reflects the sound exercise of j udicial

discretion and we will affirm the award.

The Board further contends that the distri ct court erred in calculating prejudgment interest using the IRS adjusted prime rate. According to the Board, the district c ourt should have applied the post-judgment rate set forth in 28 U.S.C. § 1961(a). This argument is meritless. The matter of prejudgment interest is left to the discretion of the district court. Although a court "may" use thepost-judgment standards of 28 U.S.C. § 1961(a), Sun Ship, Inc. v.

Matson Navigation Co., 785 F.2d 59, 63 (3d Cir. 198 6), it is not compelled to do so. E.E.O.C. v. Wooster Brush Co. Employees Relief Ass'n., 727 F.2d 566, 579 (1984). The adjus ted prime rate, established periodically by the Secretary of the Treasury and codified in 26 U.S.C. § 6621, has been used reg ularly by district courts to calculate prejudgment interest. See, e.g., E.E.O.C. v. Erie County, 751 F.2d 79, 82 (1984) (tr ial court did not abuse its discretion in using adjusted prime ra te to calculate the amount of prejudgment interest to be paid on backpay award under the Equal Pay Act).

We thus hold that the district court's cal culation of pre-judgment interest was consistent with the soundexercise of judicial discretion. Finally, in her cross-appeal, Taxman asks that we find that the district court erred in dismissing her cla im for punitive damages under the NJLAD. At a January 5, 1994 proceeding devoted to the issue of damages, the district court reaffirmed a decision m ade at a pretrial conference to "strike the punitive damages claim" on the ground that "there is no evidence to support [it]." (App. at 209). The court made the following comment with re spect to punitive damages: I didn't say I felt the board -- I may hav e said that the board acted in good faith, b ut I think what I did say is that there's no evidence that would support any claim for punitive damages. And I struck the puniti ve damages claim.

There's absolutely no evidence that the bo ard acted willfully, wantonly, outrageously or in any other way than trying its best to make the best of a very unhappy situation.

The New Jersey Supreme Court has establish ed a high threshold requirement which must be met before an a ward of punitive damages can be sustained. Punitive damage s are to be awarded only "`when the wrongdoer's conduct is espe cially egregious.'" Rendine v. Pantzer, 141 N.J. 292, 313 , 661 A.2d 1201, 1215 (1995). "To warrant a punitive award, t he defendant's conduct must have been wantonly reckless or malicio us. There must be an intentional wrongdoing in the sense of a n `evilminded' act accompanied by a wanton and willful dis regard to the rights of another. . . . The key to the right to p unitive damages is the wrongfulness of the intentional acti on." Id. "[The New Jersey] case indicates that the requireme nt [of willfulness or wantonness] may be satisfied a showi ng that there has been a deliberate act or omission with knowledg e of a high degree of probability of harm and reckless indiffer ence or consequences.'" Id. (citation omitted). "[The NewJersey courts have] stated that proof of actual malice [is] "`a c ondition precedent to a punitive damages award.'" Id. (cita tion omitted). Having examined the record evidence in thi s caseagainst the background of the New Jersey punitive d amages

standard, we agree with the district court that the evidence would not support a finding that the Board acted wi llfully, wantonly or outrageously in dismissing Taxman. We conclude, therefore, that Taxman's claim for punitive damages was properly

dismissed.

VIII. While we have rejected the argument that t he Board's non-remedial application of the affirmative action policy is consistent with the language and intent of Title VI I, we do not reject in principle the diversity goal articulated by the Board. Indeed, we recognize that the differences among us underlie the richness and strength of our Nation. Our dispositi on of this matter, however, rests squarely on the foundation o f Title VII. Although we applaud the goal of racial diversity, w e cannot agree that Title VII permits an employer to advance that goal through non-remedial discriminatory measures. Having found that the district court prope rly concluded that the affirmative action plan applied by the Boa rd to lay off Taxman is invalid under Title VII, and that the dis trict court did not err in calculating Taxman's damages or in d ismissing her claim for punitive damages, we will affirm the judg ment of the

district court.

TAXMAN v. BD. OF EDUC. OF THE TWP. OF PISCA TAWAY, Nos. 94-5090, 94-5112 STAPLETON, Circuit Judge, Concurring:

I agree that the Board's non-remedial affi rmative

action decision is unlawful because non-remedial af firmative action employment decisions cannot pass muster unde r Title VII. It is unnecessary, however, for the court to decide whether the Board's actions unnecessarily trammel Taxman's inte rests. Accordingly, I would express no opinion on that iss ue. I join the remainder of the court's opinion. United States of America, Sharon Taxman, Plaintiff- Intervenor v. Bd. of Education of the Township of Piscataway, Sharon Taxman, Appellant v. Bd. of Education of the Township of Piscataway, Nos. 94-5090, 94-5112

SLOVITER, Chief Judge, dissenting, with whom Judges Lewis and McKee join. In the law, as in other professions, it is often how the question is framed that determines the answer t hat is received. Although the divisive issue of affirmati ve action continues on this country's political agenda, I do not see this appeal as raising a broad legal referendum on affir mative action policies. Indeed, it is questionable whether this case is about affirmative action at all, as that term has come to be generally understood -- i.e. preference based on race or gend er of one deemed "less qualified" over one deemed "more quali fied." Nor does this case even require us to examine the param eters of the affirmative action policy originally adopted in 197 5 by the Boardof Education of the Township of Piscataway (School Board or

Board) in response to a state regulation requiring affirmative action programs or the Board's concise 1983 one-pag e Affirmative Action policy. Instead, the narrow question posed by this appeal can be restated as whether Title VII requires a New Jer sey school or school board, which is faced with deciding which of two equally qualified teachers should be laid off, to make its decision through a coin toss or lottery, a solution that cou ld be expected of the state's gaming tables, or whether Title VII permits the

school board to factor into the decision its bona f ide belief, based on its experience with secondary schools, tha t students derive educational benefit by having a Black facult y member in an otherwise all-White department. Because I believe that the area of discretion left to employers in educational inst itutions by Title VII encompasses the School Board's action in this case, I respectfully dissent. The posture in which the legal issue in th is case is presented is so stripped of extraneous factors that it could well serve as the question for a law school moot court. I emphasize at the outset issues that this case does not presen t. We need not decide whether it is permissible for a school t o lay off a more qualified employee in favor of a less qualifie d employee on the basis of race, because that did not happen here . Nor need we consider what requirements Title VII may impose on unwilling employers, or how much racial diversity in a high s chool faculty may be "enough." Significantly, although the School Board i s a public employer, this case does not place before us for de cision the limits on race-conscious action imposed on public e ntities by the Constitution because we are presented with no const itutional claim. Therefore, we must measure the Board's acti ons under the restraints imposed by Title VII rather than the mor e demanding ones imposed on government action by the Equal Prot ection Clause. In this respect the case is similar to that present ed in Johnson v. Transportation Agency, Santa Clara County, 480 U .S. 616 (1987), where the Supreme Court noted that even tho ugh the defendant was a public employer it would decide the case only

under Title VII because no constitutional issue was raised or

addressed below. See id. at 620 n.2. The Court al so made clear that for purposes of Title VII, the same standard a pplies to public and private employers, stating that "[t]he f act that a public employer must also satisfy the Constitution does not negate the fact that the statutory prohibition with which that employer must contend was not intended to extend as far as that

of the Constitution." Id. at 628 n.6. This was an express rejection of Justice Scalia's contention "that the obligations of a public employer under Title VII must be identical to its obligations under the Constitution." Id. at 627 n. 6; see alsoid. at 649 (O'Connor, J., concurring). Thus it is important t o keep in mind that we must measure the Board's actio n in this case against the same standard we would apply to a priva te school.

I.When in May 1989 the School Board was face d with the

disagreeable necessity of reducing by one the teach ing staff in the Business Department of Piscataway High School, it recognized that reference to the applicable New Jersey law, wh ich provides the roadmap in terms of seniority, would not suffic e here because the two teachers had equal seniority. The Board, w hich has the responsibility of gauging the educational requireme nts of the students under its charge, would have to resort to its own experience as there were no other prescribed guidel ines. It did not then turn to the affirmative action policy to m ake the decision based on race. There was no built-in quot a, expressed or implied, for minority faculty, and Taxman does n ot so suggest. On the contrary, the Board next considered a variet y of undoubtedly relevant factors, any one of which migh t have tipped the scales in favor of laying off one teacher or th e other. Had Taxman been deemed a better teacher than Williams, that alone could have pointed the arrow in her direction. Or, had Williams participated in volunteer activity while Taxman spe nt her spare time in other activities, that alone could have acc ounted for Williams' retention. The deposition testimony of s everal board members who participated in the decision indicates that before the affirmative action policy was considered, a num ber of other criteria were discussed to break the tie, including work performance, certifications, evaluations, teaching ability, and

volunteerism. The two teachers with the least seni ority, Taxman and Williams, were determined to be equal with resp ect to each of

these other criteria. The Board's Vice President, Paula Van Ripe r, testified: [T]he seniority and the person's qualifications came into play first. If o ne was more senior than the other, it would h ave ended right there, if they were of like seniority. From that point it was based o n their work performance and their evaluatio ns . . . . There was some consideration give n . . . to the various other activities tha t they did . . . . But certainly the weight would be given to their performance in the classroom. At that point we were told tha t these are two teachers of equal ability, equal qualifications, I should say. They . . . both[] had good evaluations, they we re good teachers, they were supportive of the school district, volunteered in various wa ys and they . . . had similar certification or like certification and their seniority was the same so therefore they were equal.

Da179-80. The equal position of both teachers in lig ht of all relevant criteria was also stressed by the Director of Personnel, Gordon Moore, who explained: "we . . . concluded t hat work history or performance criteria [were] not going to be usable inbreaking the tie, because there was no distinction that could be

made." Da177. In its opinion, the majority declares the School Board's affirmative action policy unlawful. An exa mination of the so-called affirmative action policy reveals tha t it does nothing more than place before the School Board the need to consider minority personnel among other equally qua lifiedcandidates for employment decisions. Da5, 53. That this was a necessary reminder in 1975 when the policy was form ed can hardly be gainsaid. I believe that it also was a useful r eminder in 1989, when this School Board was faced with this de cision, and perhaps even today.

A review of the record makes clear that th e Board did

not view itself as bound to select Williams for ret ention by the 1975 affirmative action policy, which speaks only o f recommendations, but after discussion and considera tion the Board made a discretionary decision to select Williams fo r retention to further the educational goal of a diverse faculty. Da72, 94. The Board members described their purpose in using the goal of diversity underlying the previously adoptedaffirmative action policy as a factor in the layoff decision as reflecting the "general feeling . . . that it was valuable for the students to see in the various employment roles a wide range of background[s]," Da74, and "the desire to have a div erse teaching

staff in the school district." Da175-76. It was a lso intended to send "a very clear message that we feel that our staff should be culturally diverse [for the benefit of the stude nts]" and to "encourage awareness and acceptance and tolerance [ of people of all backgrounds]." Da75. Thus, the Board took int o consideration that if Williams were laid off, the B usiness Department faculty at the school would be all White . Da94, 110, 168, 175-176.

II.

It was the Board's decision to include the desire for a racially diverse faculty among the various factors entering into its discretionary decision that the majority of thi s court brands a Title VII violation as a matter of law. No Supre me Court case compels that anomalous result. Notwithstanding the majority's literal construction of the language of Title VII, no Supreme Court case has ever interpreted the statute to prec lude consideration of race or sex for the purpose of ins uring diversity in the classroom as one of many factors i n an employment decision, the situation presented here. Moreover, in the only two instances in which the Supreme Court e xamined under Title VII, without the added scrutiny imposed by th e Equal Protection Clause, affirmative action plans volunta rily adopted by employers that gave preference to race or sex as a determinative factor, the Court upheld both plans.

In its 1979 decision in United Steelworker s v. Weber, 443 U.S. 193 (1979), the Court held that an agreeme nt between a private company and a union that sought to remedy t he historical exclusion of Blacks from skilled craft unions by re serving half the openings in an in-house training program for Bl acks did not violate Title VII. A scarce decade later, it reach ed a similardecision in Johnson v. Transportation Agency, Santa Clara County,

480 U.S. 616 (1987), where the plan that the Court upheld authorized consideration of the gender of a qualifi ed applicant as one of various factors for promoting employees i nto jobs in which women had been significantly underrepresented

. The majority presents Weber and Johnson as if their significance lies in the obstacle course they purpo rtedly establish for any employer adopting an affirmative action program. But, as the Justices of the Supreme Cour t recognized, the significance of each of those cases is that the Supreme Court sustained the affirmative action plans presented, a nd in doing so deviated from the literal interpretation of Title V II precluding use of race or gender in any employment action. As Justice Brennan explained in Weber, "It is a 'familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within t he intention of its makers.'" Weber, 443 U.S. at 201 (quoting H oly Trinity Church v. United States, 143 U.S. 457, 459 (1892)). The Justices dissenting in those cases noted and vigorously obje cted to the departure. See, e.g., Weber, 443 U.S. at 222, 228 (Rehnquist, J., dissenting) (asserting that the majority "elude s the clear statutory language" and that Kaiser's affirmative a ction plan is "flatly prohibited by the plain language of Title V II"); Johnson, 480 U.S. at 670 (Scalia, J., dissenting) ("It is we ll to keep in mind just how thoroughly Weber rewrote the statute it purported to construe . . . Weber disregarded the text of the statute, invoking instead its 'spirit'"). While the majority in this case views the Supreme

Court's articulation of the factors that rationaliz ed its upholding of the affirmative action plans in those cases as establishing boundaries, no language in either Webe r or Johnsonso states and, in fact, there is language to the contrary. T he majority draws the line at the factors used in thos e cases. In both Weber and Johnson, the Court inquired whether consideration of race in the employment decision was justified by a permissible purpose, and then examined the effect on nonminorit ies to ascertain whether the action taken "unnecessarily t rammel[ed] the interests of the white employees." Weber, 443 U.S. at 208; Johnson, 480 U.S. at 630. However, it does not follow as a matter of logic that because the two affirmative action plans in Weber a nd Johnsonwhich sought to remedy imbalances caused by past discrimination withstood Title VII scrutiny, every affirmative act ion plan that pursues some purpose other than correcting a manife st imbalance or remedying past discrimination will run afoul of Title VII. Indeed, the Court in Weber explicitly cautioned tha t its holding

in that case should not be read to define the outer boundaries of the area of discretion left to employers by Title V II for the voluntary adoption of affirmative action measures. The Court

stated: We need not today define in detail the lin e of demarcation between permissible and impermissible affirmative action plans. I t suffices to hold that the challenged Kaise r-USWA affirmative action plan falls on the

permissible side of the line. The purpose s of the plan mirror those of the statute. Both were designed to break down old patte rns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which have been traditionally closed to

them." Weber, 443 U.S. at 208. See also id. at 215-16 (Bl ackmun, J., concurring)(noting that Kaiser plan "is a moderate one" and that "the Court's opinion does not foreclose other forms of affirmative action"). The majority opinion in Johnson made no at tempt to draw the line that Weber left undefined. See Johnson, 4 80 U.S. at 642 (Stevens, J., concurring) ("I write . . . to . . . emphasize that the opinion does not establish the permissible oute r limits of voluntary [affirmative action] programs"). Althoug h Justice O'Connor's concurring opinion argued that permissib le purposes

under Title VII were limited to those that served t o remedy past discrimination, Johnson 480 U.S. at 649, her vote w as the sixth in favor of the majority's holding and therefore no t crucial to

the outcome of the case. It follows that her narro w reading should not be read as constituting the view of the Court. SeeMarks v. United States, 430 U.S. 188, 193 (1977).

The majority here has taken the language o f Weber where the Court observed that the plan's purposes "mirror ed" those of the statute, and has elevated it to a litmus test u nder which an affirmative action plan can only pass muster under Title VII if particular language in the text or legislative hist ory of the

statute can be identified that matches the articula ted purpose of the plan. Nothing in Weber suggests that the Court intended by its "mirroring" language to create such a rigid tes t. In Weber, when the Court found that the pu rposes of the plan were consistent with those of Title VII, it di d so by reference not only to the language of the legislati ve history,

but to the historical context from which the Act ar ose as well. Id. at 201. In Johnson, the Court made no attempt at all to identify language in the legislative history parall eling the particular objectives of the plan it sustained. Th us, even in

those cases the Court did not demonstrate the kind of close fit between the plan and the statutory history demandedof the Board

in this case. In Weber, the Court's examination into the purposes of

Title VII led it to the conclusion that the Act was designed to promote "the integration of blacks into the mainstr eam of American society," Weber, 443 U.S. at 202, and the breakdown of "old patterns of racial segregation and hierarchy," id. at 208. The Kaiser affirmative action plan was consistent w ith these sweeping, broadly stated purposes and hence was sus tained. Of course, I do not disagree with the majo rity that "Title VII was written to eradicate not only discri mination per se but the consequences of prior discrimination," b ut I do notbelieve that in doing so, Congress intended to limi t the reach of

Title VII to remedying past discrimination, thereby turning a blind eye toward those social forces that give rise to future discrimination. Title VII, which was a part of the Civil Rights Act of 1964, was fundamentally forward-looking legi slation, and that purpose should not be ignored. The effort to remedy the consequences of p ast discrimination (such as the "patterns of segregatio n and hierarchy" referred to in Weber, 443 U.S. at 208), cannot be

isolated from the statute's broader aim to eliminat e those patterns that were potential causes of continuing o r future discrimination. The causal relationship is illustr ated by the industry at issue in Weber, where the Court noted t hat the ongoing imbalance in the hiring of craftworkers hadits roots in a history of discrimination that had excluded Black s from craft unions and thus prevented them from acquiring the n ecessary qualifications. Id. at 198. In describing the ove rarching goal toward which the Civil Rights Act was aimed, the Ho use Report spoke of the need to "eliminat[e] all of the causes and consequences of racial and other types of discrimin ation against minorities." H.R. Rep. No. 914, 88th Cong., 1st Se ss., pt. 1, at 18 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 239 3 (emphasis
added). Thus, using the approach taken in Weber an d Johnson as a springboard, actions consistent with and in furth erance of the broad statutory goal of eliminating the causes of d iscrimination are not per se proscribed by Title VII. This gener ation of young people may not recall that in 1964 racial homogenei ty in schools was viewed as among the most fundamental and pernic ious aspects of the social pattern undergirding the system of di scrimination that the Civil Rights Act sought to dismantle. In the years leading up to the Act's passage, school integration was one of the focal points of the civil rights movement. The Senate Report accompanying the 1972 amendments to Title VII, when it was expanded to cover state and local governments, note d the connection between racial homogeneity in schools an d attitudes

that lead to discrimination: It is difficult to imagine a more

sensitive area than educational institutions where the youth of the Nation are exposed to a multitude of ideas and impressions that will stron gly influence their future development. To permit discrimination here [among faculty and staff] would, more than i n any other area, tend to promote exist ing misconceptions and stereotypical categorizations which in turn would l ead to future patterns of discrimination. S. Rep. No. 415, 92nd Cong., 1st Sess. 12 (1971)). In other contexts, the Court has repeatedl y recognized racial diversity in the classroom as an important m eans of combatting the attitudes that can lead to future pa tterns of discrimination. As Justice Stevens observed in Wyg ant:In the context of public education, it is

quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits t o the student body that could not be provide d by an all-white, or nearly all-white, faculty. For one of the most important lessons that the American public schools teach is that the diverse ethnic, cultural and national backgrounds that have been brought together in our famous "melting po t" do not identify essential differences amon g the human beings that inhabit our land. I t is one thing for a white child to be taugh t by a white teacher that color, like beauty

, is only "skin deep"; it is far more convincing to experience that truth on a d ay- to-day basis during the routine ongoing learning process. 476 U.S. at 315 (Stevens, J., dissenting). See als o Johnson, 480 U.S. at 647 (Stevens, J., concurring) (noting educa tional benefit to be derived from racial diversity, "'by dispellin g for black and white students alike any idea that white suprem acy governs our social institutions'" (quoting Sullivan, The Su preme Court-- Comment, Sins of Discrimination: Last Term's Affirm ative Action Cases, 100 Harv.L.Rev. 78, 96 (1986))); Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 473 (1982) ("Atte nding an ethnically diverse school may help . . . prepar[e] minority children 'for citizenship in our pluralistic societ y,' while, we may hope, teaching members of the racial majority ' to live in harmony and mutual respect' with children of minori ty heritage."(citations omitted)); Columbus Bd. of Edu c. v. Penick, 443 U.S. 449, 461, 467 (1979) (disapproving policie s that "deprive black students of opportunities for contac t with and learning from white teachers, and . . . deprive whi te students of similar opportunities to meet, know and learn from black teachers"); Kromnick v. School District of Philadel phia, 739 F.2d 894, 905 (3d Cir. 1984)("Schools are great instrume nts in teaching social policy [from which students learn] from the images and experiences that surround them . . . a spirit of tolerance and mutual benefit."), cert. denied, 469 U.S. 1107 (1985). It is "ironic indeed" that the promotion o f racial diversity in the classroom, which has formed so cen tral a role in this country's struggle to eliminate the causes andconsequences of racial discrimination, is today held to be at od ds with the very Act that was triggered by our "Nation's concer n over centuries of racial injustice." Weber, 443 U.S. at 204. Nor does it seem plausible that the drafters of Title V II intended it to be interpreted so as to require a local school d istrict to resort to a lottery to determine which of two quali fied teachers to retain, rather than employ the School Board's ow n educational policy undertaken to insure students an opportunity to learn from a teacher who was a member of the very group whose treatmentmotivated Congress to enact Title VII in the first place. In my

view, the Board's purpose of obtaining the educatio nal benefit to be derived from a racially diverse faculty is entir ely consistent with the purposes animating Title VII and the Civil Rights Act of

1964. The majority criticizes the Board's use of caselaw construing the Equal Protection Clause in this Titl e VII case, notwithstanding the Supreme Court's explicit statem ent in Johnsonthat

Title VII's constraint on affirmative action was "n ot

intended to extend as far as that of the Constituti on." 480 U.S. at 628 n.6. Nothing in the Court's language in the Johnsonfootnote suggests that we confine it to the particular factu al context in which it was made, and the Court is cert ainly sufficiently articulate to limit its language when so inclined. Nor is the Johnson footnote the only place where th e Court signified its understanding that Title VII imposes fewer limitations on employers' voluntary affirmative act ion than does the Constitution. In Weber, the Court spoke of the "narrowness of [its] inquiry" since the plan did not involve st ate action and hence did not present an alleged violation of the E qual Protection Clause, Weber, 443 U.S. at 200, and late r stated that "Title VII . . . was not intended to incorporate an d particularize the commands of the Fifth and Fourtee nth Amendments." Id. at 206 n.6 (quoted in Johnson, 48 0 U.S. at 627 n.6). The latter statement was not made in a discu ssion that had to do with the "factual predicate" for demonstratin g the need for remedial affirmative action, as the majority would confine the similar language in Johnson. In any event, ultimately it is the Supreme Court rather

than this one that will decide whether Title VII al lows an employer more discretion to implement race-consciou s employment policies than does the Constitution in the employer 's effort to promote the underlying goals of the Act. But, in t he absence of any dispositive precedent, I believe it would be sh ortsighted for us to disregard the Supreme Court's statements rega rding the advantages of diversity in an educational context w hen examining the limited use to which diversity was used as a fa ctor in the Board's decision here. In Regents of the Universit y of California v. Bakke, 438 U.S. 265 (1978), where the Court considered a University of California affirmative a ction program for student admissions, Justice Powell, who announc ed the judgment of the Court, recognized that a diverse st udent body leads to a "robust exchange of ideas," id. at 312 ( quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1 967)), and

noted that the "essential" elements of academic fre edom include the ability not only to select the student body but to determine "who may teach," id. (quoting Sweezy v. New Hampshi re, 354 U.S. 234, 263 (1957)). In Wygant v. Jackson Board of Education, 4 76 U.S. 267 (1986), the Court held that preferential protection against layoffs afforded to minority teachers by the public school board's affirmative action plan could not be sustai ned, because the school board's proffered justification for the plan -- that minority teachers were needed to provide role model s for minoritystudents -- was not sufficiently compelling to with stand the

strict scrutiny to which it was subject under the F ourteenth Amendment. Id. at 274-276 (Powell, J., joined by B urger, C.J., Rehnquist, J. and O'Connor, J.); id. at 288 (O'Conn or, J., concurring); id. at 295 (White, J., concurring). H owever, Justice O'Connor, in her concurring opinion which w as the decisive vote in the Court's holding, specifically distinguished the goal of providing role models from "the very di fferent goal of promoting racial diversity among the faculty," e xplicitly leaving open the possibility that the latter goal m ight be sufficiently compelling to pass constitutional must er. Id. at

288 n.*. She also made a favorable reference to Ju stice Powell's endorsement of diversity in the classroom in Bakke, stating, "although its precise contours are uncertain, a sta te interest in the promotion of racial diversity has been found su fficiently 'compelling,' at least in the context of higher edu cation, to support the use of racial considerations in further ing that interest." Id. at 286. Her position, plus that of the four dissenting justices, (Marshall, J., dissenting, joi ned by Brennan & Blackmun, JJ.) (seeking "to achieve diversity andstability for the benefit of all students" through faculty integr ation is a constitutionally sufficient purpose); id. at 315 (S tevens, J., dissenting) ("'recognition of the desirability of m ulti-ethnic representation on the teaching faculty'" is a "comp letely sound educational purpose" (citation omitted)), meant the re were five justices in Wygant who approved in general terms th e concept that the educational benefit derived from diversity in t he classroom can constitute an acceptable justification for affi rmative action. See also Britton v. South Bend Community S chool Corp., 819 F.2d 766, 773 n.1 (7th Cir.) (en banc) (Flaum & Bauer, JJ., concurring) ("Remedying past discrimination is not necessarily the only government purpose sufficiently compelling to justify the remedial use of race. Providing faculty divers ity may be a second."), cert. denied, 484 U.S. 925 (1987); Zasla wsky v. Board of Education of Los Angeles, 610 F.2d 661, 664 (9th Cir. 1979)(in equal protection context, purpose of "enhanc[ing] t he educational opportunities available to the students by achievin g better racial balance in the teaching faculty . . . has b een well recognized and approved by the Supreme Court"). I therefore respectfully disagree with the majority,

both in its construction of Weber and Johnson as le aving no doors open for any action that takes race into considerat ion in an employment situation other than to remedy past disc rimination and the consequential racial imbalance in the workforce , and in what appears to be its limited view of the purposes of T itle VII. I

would hold that a school board's bona fide decision to obtain the educational benefit to be derived from a racially d iverse faculty is a permissible basis for its voluntary affirmativ e action under Title VII scrutiny.

III. It is undeniable that, in the abstract, a layoff imposes a far greater burden on the affected employ ee than a denial of promotion or even a failure to hire. In this case, however, it cannot be said with any certainty that Taxman wouldhave avoided the layoff had the Board's decision no t been raceconscious. If a random selection had been made, Ta xman would have had no more than a fifty-percent chance of not being laid off. Thus, this was not a situation where Taxman h ad a "legitimate and firmly rooted expectation" of no la yoff. Johnson, 480 U.S. at 638; cf. Mackin v. City of Bos ton, 969 F.2d 1273, 1278 (1st Cir. 1992) (where, even in absence of affirmative action scheme, White applicants "could not reasonab ly have felt assured that they would be appointed," plan did not disturb any legitimate expectations), cert. denied, 113 S.Ct. 1 043 (1993). This differs from the situation of an empl oyee who is next in line for a promotion by the objective facto r of seniority. Taxman's qualifications were merely equ al to those of her competitor for this purpose. In Johnson the Co urt held that because there were six other employees who also met the qualifications for the job, Johnson had no "entitle ment" or "legitimate firmly rooted expectation" in the promo tion, even though he had scored higher than the others on the qualifying test. See Peightal v. Metropolitan Dade County, 94 0 F.2d 1394, 1408 (11th Cir. 1991) (affirmative action plan vali d under Title VII where it never requires hiring unqualified pers on over qualified person), cert. denied, 502 U.S. 1073 (199 2); cf. United States v. Paradise, 480 U.S. 149, 177-78 (same unde r equal protection). Moreover, just as the plaintiff in Jo hnson remained eligible for promotion in the future, 480 U.S. at 6 38, Taxman retained recall rights after her layoff, and did in fact regain her job. The majority relies in part on Wygant, whe re the Supreme Court found that the use of faculty layoffs to meet affirmative action goals in a public school system imposed too heavy a burden on White employees. Wygant, 476 U.S . at 282-83. However, the Court's holding that the Wygant plan w as not "narrowly tailored" for purposes of an equal protec tion challenge is not dispositive of the present inquiry as to whe ther a plan "unnecessarily trammels" the rights of White employ ees for Title VII purposes. Not only was a different legal stand ard applicable but Wygant is also distinguishable because the Wyga nt plan caused nonminority teachers with more seniority to be laidoff in order to retain minority teachers with less seniority. W ygant, 476 U.S. at 282. The Wygant plan actually caused teach ers to be laid off who, in the absence of the plan, would have had no risk of layoff. That burden -- increasing the chance of la yoff from zero to one hundred percent -- is significantly heavier than that imposed on Taxman, who would have had a substantial chance of being laid off even absent any consideration of div ersity. Only three members of the Court subscribedto language in the plurality opinion in Wygant suggesting that the use of layoffs to accomplish affirmative action goals will never survive strict scrutiny. See 476 U.S. at 284. The two con curring justices did not go that far. See id. at 293 (O'Co nnor, J., concurring) ("[n]or is it necessary, in my view, to resolve the troubling question[] whether any layoff provision c ould survive strict scrutiny"); id. at 295 (White, J., concurrin g) (confining his conclusion to the specifics of the layoff polic y at issue).Therefore I do not read Wygant to hold that no race -conscious

layoff decision will survive Title VII scrutiny. The majority gives a similarly narrow read ing to Weberand Johnson, construing these cases to impose a wooden, "unequivocal" requirement that all affirmative acti on plans must be explicitly temporary in order to be valid. Majo rity Typescript at 40. In fact, the Johnson plan itself "contain[ed] no explicit end date," Johnson, 480 U.S. at 639, an d the Court indicated that only certain plans that are particul arly burdensome on nonminorities in other respects need necessarily be expressly temporary. "Express assurance that a pro gram is only temporary may be necessary if the program actually sets aside positions according to specific numbers." Johnson, 480 U.S. at 639-40 (emphasis added). The Supreme Court's refer ences to the temporary duration of the plans at issue in Weber a nd Johnson are more accurately construed as an understandable effo rt to assure that race does not become a permanently embedded co nsideration in employment decisions. The significant consideratio n is whether

there has been an effort "to minimize the effect of the program on other employees," not whether the underlying pol icy is set to run a specified number of years. Johnson, 480 U.S. at 640. In the situation before us, I see ample b asis from

which to deduce an effort to minimize the effect of the Board's affirmative action policy on non-minority employees . One such aspect is the discretionary nature of the policy. The Board is free not to apply the policy, even to break a tie. Also significant is the infrequency with which the Boardhas resorted to the policy. Although it may be of little comfor t to Taxman, the fact that this is the first time in the twenty years since the policy was adopted that it has been applied to a layoff decision demonstrates the minimum impact on White t eachers as a whole. And since, by its own terms, it only applie s in the rare

instances in which two candidates are of different races but equal qualifications and the department in question is not already diverse, it is likely that it will continue to be infrequently applied. See District Court's Final J udgment and Contingent Order, entered February 15, 1994 at 2 (d enying request for broad injunction because "[t]here is, in the co urt's view, no

likelihood that the conduct at issue in this case w ill recur"). In this connection, I deem it further evid ence of the Board's interest in minimizing any adverse effect o n nonminorities that it has not defined diversity by any specific numerical goal. Although the majority regards that as a major concern, I view the lack of any such figure as an i ndication that the Board's plan does not impose a fixed quota with the rigidity

attendant thereto. It is not the province of this court to in trude into what is essentially an educational decision. Once we have determined that promoting faculty diversity for edu cational purposes can be a valid justification for an approp riately limited race-conscious action, it is not our role t o second-guess the judgment of educators as to the level of divers ity that produces the educational environment they deem appr opriate. The Board's action is an attempt to create an educa tionalenvironment that will maximize the ability of stude nts to address

racial stereotypes and misconceptions born of lack of familiarity. I find it difficult to believe that a n Act that was given birth by the tensions of the civil rights era precludes it from doing so under the facts before us here. Give n the record before us, the consequence of the narrow reading th at the majority gives Weber and Johnson is the very irony that the Supreme Court said would result from interpreting t his civil rights statute in a manner divorced from its histor ic context.

As the Court noted in Weber: [i]t would be ironic indeed if a law trigg ered by a

Nation's concern over centuries of racial injustice and intended to improve the lot of those who h ad "been

excluded from the American dream for so lo ng," 110 Cong. Rec. 6552 (1964) (remarks of Sen. Hu mphrey), constituted the first legislative prohibit ion of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

Weber, 443 U.S. at 204. I return to the question raised at the out set: whether Title VII requires that the Board toss a coin to ma ke the layoff selection between equally situated employees. In h is opinion for the majority in Weber, Justice Brennan noted the di stinction made by Congress between requiring and permitting affirm ative action by employers. See Weber, 443 U.S. at 205-06. He d eemed it important that, while Congress explicitly provided that Title VII should not be interpreted to require any employer t o grant preferential treatment to a group because of its ra ce, Congress never stated that Title VII should not be interpret ed to permitcertain voluntary efforts. In this case, the majority gives too littl e consideration to the tie-breaking method that its h olding will impose on the Board. It points to no language in T itle VII to suggest that a lottery is required as the solution to a layoff decision in preference to a reasoned decision by me mbers of the School Board, some of whom are experienced educator s, that race of a faculty member has a relevant educational sign ificance if the department would otherwise be all White. While it may seem fairer to some, I see nothing in Title VII that req uires use of a lottery. Because I cannot say that faculty diversit y is not a permissible purpose to support the race conscious d ecision made here and because the Board's action was not overly intrusive on Taxman's rights, I would reverse the grant of summa ry judgment for Taxman under Title VII and direct that summary judgment be granted to the School Board. Taxman v. Bd. of Educ. of the Twp. of Piscataway, 9 4-5090/5112

SCIRICA, Circuit Judge, dissenting, with whom Chief Judge Sloviter joins.While I find much with which I agree in th e majority's

opinion, I am constrained to express my disagreemen t because I believe education presents unique concerns. In University of California Regents v. Bak ke, 438 U.S. 265 (1978), Justice Powell recognized that "the 'na tion's future depends upon leaders trained through wide exposure' to the ideas

and mores of students as diverse as this Nation of many peoples." Id. at 313 (citation omitted). As he noted, in the university: "[A] great deal of learning occurs . . . through in teractions among students of both sexes, of different races, r eligions, and backgrounds . . . ." Id. at 312-13 n.48 (citation omitted). Eighteen years later, the wisdom of this statement resonates as strongly as ever. When added to a university's hig h academic standards, this exposure constitutes a formidable e ducational experience. In this case, the Piscataway Board of Educ ation concluded that a diverse faculty also serves a comp elling educational purpose; namely, it benefits students i n the business department by exposing them to teachers with variedbackgrounds. The Board implemented a program that, in limited ci rcumstances,

allows consideration of race as a factor in school employment decisions. The Board did not countenance the layof f of a morequalified teacher in the place of a less-qualified one. It did not prefer teachers junior in seniority to those wi th more experience. Rather it concluded that when teachers are equal in ability and in all other respects--and only then--d iversity of the faculty is a relevant consideration. I do not believe Title VII prevents a scho ol district, in the exercise of its professional judgment, from preferring one equally qualified teacher over another for a valid educational

purpose. Accordingly, I respectfully dissent.

United States v. Bd. of Educ. of the Twp. of Piscat away Sharon Taxman v. Bd. of Educ. of the Twp. of Piscat away Nos. 94-5090 and 94-5112

LEWIS, Circuit Judge, with whom Judge McKee joins, dissenting. I join in Chief Judge Sloviter's dissent, as well as those of each of my dissenting colleagues. I would only add that we should be mindful of the effects the majority's approach will impose upon le gitimate, thoughtful efforts to redress the vestiges of our N ation's history of discrimination in the workplace and in e ducation; efforts which, in seeking to achieve pluralism and diversity, have helped define and enrich our offices and insti tutions, and which were intended to open, and keep open, the doo rs of opportunity to those who have "been excluded from t he American dream for so long." See 110 Cong. Rec. 6552 (1964) (excerpted from Sen. Humphrey's remarks). This, after all, is what I had always thought Title VII was intended to accomplish . More importantly, as Chief Judge Sloviter notes, these g oals areplainly supported by the statute's legislative hist ory. Thus,

while the majority holds that Title VII only allows race to be considered in remedying a history of intentional di scrimination or a "manifest imbalance," I believe this conclusio n is fundamentally at odds with the overriding goals of the statute. And the real-life impact of the majority's unpreced ented construction of Title VII is readily apparent when one contemplates the myriad of difficult decisions that employers across the nation face everyday. Somewhere out there in the real world, for example, there is a law firm with a racial make-up (a workfo rce) akin to Piscataway High School's; a firm which lacks a hist ory of intentional discrimination in hiring but, due to ec onomic concerns, must decide between retaining one of two attorneys -- the first and only black associate to work in its p restigious anti-trust department, or his equally qualified whi te counterpart. The firm's management committee may d ecide that to lay-off the black associate would be an unwise and potentially damaging business decision because it would negate the large investment of time, effort and money spent trying t o recruit and retain minority lawyers. In other words, the firm may believe that diversity would be good for business and good for itself, so, everything else being equal, it decides to lay- off the white

associate. In a situation such as this, the firm's re liance upon race as one among many factors in making its decisi on is the type of management prerogative which is totally consiste nt with the goals and underlying purpose behind Title VII. See Weber, 443 U.S. at 206 (noting that Title VII's legislative hi story demonstrates that the statute was not intended to p lace unnecessary limits upon "management prerogatives"). After it reads the majority's decision, however, it seems cl ear that the firm will be forced to disregard its own better bus iness judgment, forsake its recent recruiting successes a mong minorities and, I suppose, flip a coin on its own f uture as well as the young associates', all in order to avoid the specter of Title VII liability and an enormous damage award. At times, a private college, with a handfu l of minorities on its faculty and with no history of in tentional discrimination in hiring, is faced with the unenvia ble task of deciding which of two young associate professors wi th indistinguishable records to grant tenure in a part icular department. The only difference between the two is that one is white and the other is Latino. After reviewing all of the other factors and finding them in equipoise, the tenure c ommittee may decide to offer the position to the Latino associat e professor because there has never been a tenured Latino profe ssor in any department at the college, and because it believes his presence at the college will be a significant benefit to the entire student body. As with the law firm, this decision is entirely

consistent with Title VII because it is motivated b y some of the same concerns that lead Congress to enact the statu te. SeeWeber, 443 U.S. at 208 (noting that the plan was valid under Title VII in part because the "purposes . . . mirro r those of thestatute").

But again, the majority's rationale will t hwart the college's ability to rely upon its independent judg ment in deciding what is in the best interests of the stude nts whom it is charged with educating. Instead, according to the majority, that important judgment is better exercised (in this cas e may only be exercised) by resorting to a coin-flip. One could cite countless other examples of the significant and ultimately counterproductive effect s of the majority's narrow construction of Title VII, but su ffice it to say that in my view, Title VII was not enacted to p revent the thoughtful, deliberative processes employed by such a law firm or college. I believe that in this case the school bo ard's decision to consider race, among other factors, in an attemp t to ensure a diverse faculty for its students was in furtherance of Title VII's goal of breaking-down "existing misconception s and stereotypical categorizations which in turn lead to future patterns of discrimination." See S. Rep. No. 415, 92nd Cong., 1st Sess. 12 (1971). Accordingly, its decision was as legal as

it was laudable. I believe the majority's decision eviscera tes the purpose and the goals of Title VII. I respectfully dissent.Taxman v. Board of Education of the Twp. of Piscataway

Nos. 94-5090 & 94-5112

McKEE, Circuit Judge, dissenting, with whom SLOVITE R, Chief Judgeand LEWIS, Circuit Judge join. I join each the opinions of my dissenting colleagues, but write only to elaborate upon what I consider to be important considerations in our analysis. "The prohibition a gainst racial discrimination in §§ 703(a) and (d) of Title VII mu st [ ] be read against the background of the legislative history o f Title VII

and the historical context from which the Act arose ." United Steelworkers v. Weber, 443 U.S. 193, 201 (1979).

We have now come full circle. A law enacte d by Congress in 1964 to move this country closer to an integrate d society and away from the legacy of "separate but equal" is bei ng interpreted as outlawing this Board of Education's good faith e ffort to teach students the value of diversity. The selection of Ms. Williams meant that the business department would retain the only Black teacher tenured in that department in anyone's memo ry. Board

President Theodore H. Kruse testified that it was h is "general feeling . . . that it was valuable for the students to see in the various employment roles a wide range of background [s]" and that diversity "was also valuable to the work force and in particular to the teaching staff." Da74. Kruse further expla ined that "by retaining Mrs. Williams it was sending a very clear message that we feel that our student population is culturally d iverse and there is a distinct advantage to students . . . to be made . . . more aware, more tolerant, more accepting, more und erstanding of people of all background[s]." Da75. I can not bel ieve that

Title VII was intended to strike down such an actio n. As Chief Judge Sloviter points out, the ma jority's ruling is based upon an interpretation of United St eelworkers v.Weber, 443 U.S. 193 (1979), and Johnson v. Transpor tation Agency,

480 U.S. 616 (1987) that conflicts with the languag e used in those cases. See Typescript at 10-11 (Sloviter, C. J., dissenting). The majority's conclusion that affirm ative action plans not limited to attempts to remedy past discri mination run afoul of Title VII simply ignores the legislative h istory that Weber and Johnson require us to consider. Given the interpretation of [Ti tle VII] the Court adopted in Weber, I see n o reason why the employer has any duty, prio r to granting a preference to a qualified min ority employee, to determine whether his past conduct might constitute an arg uable

violation of Title VII. Indeed , in some instances the employer might fi nd it more helpful to focus on the future. Instead of retroactively scrutinizing his own or society's possible exclusions o f minorities in the past to determine the ou ter limits of a valid affirmative-action prog ram -- or indeed, any particular affirmat ive-action decision -- in many cases the e mployer will find it more appropriate to con sider other legitimate reasons to give pref erences to members of under-represented gr oups. Statutes enacted for the benefi t of minority groups should not block these f orward-looking

considerations. 480 U.S. at 646-47 (Stevens, J., concurri ng). This is particularly true in the field of education where y oung people are developing opinions and beliefs that will deter mine their attitudes as citizens, and this country's future. Under such circumstances, the School Board considered Ms. Will iams' race as a factor that was weighed in the balance with all o ther factors in making a very difficult choice between two equal ly fine

teachers. Similar consideration of an employee's sex has been upheld in Johnson. There, the Court stated: We therefore hold that the Agen cy appropriately took into account as one factor the sex of [the employee] in de termining that she should be promoted to the r oad dispatcher position. The decision to do s o was made pursuant to an affirmative acti on plan that represents a moderate, flexible , case-by-case approach to effecting a gradual improvement in the representation of minori ties and women in the Agency's work force. Suc h a plan is fully consistent with Title VII , for it

embodies the contribution that voluntary employer action can make in eli minating the vestiges of discrimination in t he workplace.

480 U.S. at 641-42. Thus, I disagree wit h the majority'sconclusion that "there is no congressional recognit ion of

diversity as a Title VII objective requiring accomm odation." Maj. Op. at 24. To be sure, I can understand the majority' s concern over allowing race to be a factor in any decision. History loudly proclaims the evil that can spring from such practices, and it is sometimes all too easy to simply ignore t hat evil when the practice appears to be driven by a benign purpo se. However,

I do not believe that what the Board of Education w as attempting to do here, nor the individualized manner in which it was attempting to do it, runs afoul of a Congressional enactment cloaked in the legislative history recounted herein , and in the opinions of my colleagues. Not that long ago the President's Commissi on on Civil Disorders (the "Kerner Commission") warned that "[o ]ur nation is moving toward two societies, one black, one white - - separate and unequal." Report of The National Advisory Commissi on on Civil Disorders,

at 1 (March 1, 1968). Some may view the Board's effor ts here as yet another push in that direction. Indeed, if we were writing upon a

clean slate that would no doubt be true. But of co urse, we do not do that. The shadows and images that moved Con gress to enact Title VII in 1964 are already etched into our slate , and they define the reality that should guide our analysis. The Board has responded to those shadows with an action that is a narrow, individualized and reasoned attempt to foster resp ect for diversity. Because that is consistent with the pur poses of Title VII, I respectfully dissent.