1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-8-1996

United States v. Bd Ed Piscataway

Precedential or Non-Precedential:

Docket 94-5090,94-5112

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Recommended Citation

"United States v. Bd Ed Piscataway" (1996). 1996 Decisions. Paper 84.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 No. 94-5090 

 ___________ 

 UNITED STATES OF AMERICA 

 SHARON TAXMAN, Plaintiff-Intervenor 

 vs. 

 BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY, 

 Appellant 

 ___________ 

 No. 94-5112 

 ___________ 

 SHARON TAXMAN, 

 Appellant 

 v. 

 BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY 

 ___________ 

 

 Appeal from the United States District Court 

 for the District of New Jersey 

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

 ___________ 

 

 Argued 

 November 29, 1995 

 Before: SLOVITER,* Chief Judge, 

 MANSMANN and MCKEE, Circuit Judges. 

 ___________ 

 Reargued In Banc 

 May 14, 1996 

 Before: SLOVITER, Chief Judge, BECKER, STAPLETON, 

 MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, 

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

 Circuit Judges. 

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

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

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

resolved; Chief Judge Sloviter was designated to serve in his 

place on the reconstituted panel. 

** Judge Sarokin heard argument but retired from office 

prior to the issuance of the opinion. 

David B. Rubin, Esquire (ARGUED) 

44 Bridge Street 

P.O. Box 4579 

Metuchen, NJ 08840 

 COUNSEL FOR BOARD OF EDUCATION 

 OF THE TOWNSHIP OF PISCATAWAY 

Stephen E. Klausner, Esquire (ARGUED) 

Klausner, Hunter, Cige & Seid 

63 E. High Street 

P.O. Box 1012 

Somerville, NJ 08876 

 COUNSEL FOR SHARON TAXMAN 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 In this Title VII matter, we must determine whether the 

Board of Education of the Township of Piscataway violated that 

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

equally qualified employees to lay off. Specifically, we must 

decide whether Title VII permits an employer with a racially 

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

order to promote "racial diversity". 

 It is clear that the language of Title VII is violated 

when an employer makes an employment decision based upon an 

employee's race. The Supreme Court determined in United 

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

VII's prohibition against racial discrimination is not violated 

by affirmative action plans which first, "have purposes that 

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

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

208. 

 We hold that Piscataway's affirmative action policy is 

unlawful because it fails to satisfy either prong of Weber. 

Given the clear antidiscrimination mandate of Title VII, a nonremedial affirmative action plan, even one with a laudable 

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

grant of summary judgment to Sharon Taxman. 

I. 
 In 1975, the Board of Education of the Township of 

Piscataway, New Jersey, developed an affirmative action policy 

applicable to employment decisions. The Board's Affirmative 

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

response to a regulation promulgated by the New Jersey State 

Board of Education. That regulation directed local school boards 

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

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

practices and to ensure equal opportunity to all persons 

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

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

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

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

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

nor does it matter for purposes of this appeal. 

 The 1975 document states that the purpose of the 

Program is "to provide equal educational opportunity for students 

and equal employment opportunity for employees and prospective 

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

minority personnel for all positions so that their qualifications 

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

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

opportunity . . . and prohibit[] discrimination in employment 

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

 The operative language regarding the means by which 

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

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

be recommended for appointment. However, when candidates appear 

to be of equal qualification, candidates meeting the criteria of 

the affirmative action program will be recommended." The phrase 

"candidates meeting the criteria of the affirmative action 

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

groups identified as minorities for statistical reporting 

purposes by the New Jersey State Department of Education, 

including Blacks. The 1983 document also clarifies that the 

affirmative action program applies to "every aspect of employment 

including . . . layoffs . . . ." 

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

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

remedying the results of any prior discrimination or identified 

underrepresentation of minorities within the Piscataway Public 

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

neither "underrepresented" nor "underutilized" in the Piscataway 

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

showed that the percentage of Black employees in the job category 

which included teachers exceeded the percentage of Blacks in the 

available work force. 

 A. 

 In May, 1989, the Board accepted a recommendation from 

the Superintendent of Schools to reduce the teaching staff in the 

Business Department at Piscataway High School by one. At that 

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

seniority, both having begun their employment with the Board on 
the same day nine years earlier. One of those teachers was 

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

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

teacher among the faculty of the Business Department. 

 Decisions regarding layoffs by New Jersey school boards 

are highly circumscribed by state law; nontenured faculty must be 

laid off first, and layoffs among tenured teachers in the 

affected subject area or grade level must proceed in reverse 

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

Seniority for this purpose is calculated according to specific 

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

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

to choose between employees for layoff, except in the rare 

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

eligible to fill the last remaining position. 

 The Board determined that it was facing just such a 

rare circumstance in deciding between Taxman and Williams. In 

prior decisions involving the layoff of employees with equal 

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

which included drawing numbers out of a container, drawing lots 

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

the employees involved been of different races. 

 In light of the unique posture of the layoff decision, 

Superintendent of Schools Burton Edelchick recommended to the 

Board that the affirmative action plan be invoked in order to 

determine which teacher to retain. Superintendent Edelchick made 

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

Taxman were tied in seniority, were equally qualified, and 

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

Education Department." 

 While the Board recognized that it was not bound to 

apply the affirmative action policy, it made a discretionary 

decision to invoke the policy to break the tie between Williams 

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

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

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

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

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

recognized that Taxman and Williams were of equal seniority, it 

assessed their classroom performance, evaluations, volunteerism 

and certifications and determined that they were "two teachers of 

equal ability" and "equal qualifications." 

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

President, explained his vote to apply the affirmative action 

policy as follows: 

 A. Basically I think because I had been 

 aware that the student body and the community 

 which is our responsibility, the schools of 

 the community, is really quite diverse and

 there -- I have a general feeling during my 

 tenure on the board that it was valuable for 

 the students to see in the various employment 

 roles a wide range of background, and that it 

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

 have -- they see that in each other. 

 Asked to articulate the "educational objective" served 

by retaining Williams rather than Taxman, Kruse stated: 

 A. In my own personal perspective I believe 

 by retaining Mrs. Williams it was sending a 

 very clear message that we feel that our 

 staff should be culturally diverse, our 

 student population is culturally diverse and 

 there is a distinct advantage to students, to 

 all students, to be made -- come into contact 

 with people of different cultures, different 

 background, so that they are more aware, more 

 tolerant, more accepting, more understanding 

 of people of all background. 

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

 culturally diverse? 

 A. Someone other than -- different than 

 yourself. And we have, our student 

 population and our community has people of

 all different background, ethnic background, 

 religious background, cultural background,

 and it's important that our school district 

 encourage awareness and acceptance and 

 tolerance and, therefore, I personally think 

 it's important that our staff reflect that

 too. 

 B. 

 Following the Board's decision, Taxman filed a charge 

of employment discrimination with the Equal Employment 

Opportunity Commission. Attempts at conciliation were 

unsuccessful, and the United States filed suit under Title VII 

against the Board in the United States District Court for the 

District of New Jersey. Taxman intervened, asserting claims 

under both Title VII and the New Jersey Law Against

Discrimination (NJLAD). 

 Following discovery, the Board moved for summary 

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

summary judgment only as to liability. The district court denied 

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

United States and Taxman, holding the Board liable under both 

statutes for discrimination on the basis of race. United States 

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

(D.N.J. 1993). 

 A trial proceeded on the issue of damages. By this 

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

reinstatement was not an issue. The court awarded Taxman damages 

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

prejudgment interest under Title VII. A jury awarded an 

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

district court denied the United States' request for a broadly 
worded injunction against future discrimination, finding that 

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

but it did order the Board to give Taxman full seniority 

reflecting continuous employment from 1980. Additionally, the 

court dismissed Taxman's claim for punitive damages under the 

NJLAD. 

 The Board appealed, contending that the district court 

erred in granting Taxman summary judgment as to liability. The 

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

awarding Taxman 100% backpay and in awarding prejudgment interest 

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

cross-appealed, contending that the district court erred in 

dismissing her claim for punitive damages. Subsequently, the 

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

support of reversal of the judgment, representing that it could 

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

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

treated the position of the United States at the original 

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

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

before us on this appeal are the Board and Taxman. 

 This court has jurisdiction over the appeals under 28 

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

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

491, 496 (3d Cir. 1995). 

 II. 

 In relevant part, Title VII makes it unlawful for an 

employer "to discriminate against any individual with respect to 

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

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

way which would deprive or tend to deprive any individual of 

employment opportunities or otherwise affect his status as an 

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

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

Supreme Court construed this language as absolutely prohibiting 

discrimination in employment, neither requiring nor permitting 

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

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

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

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

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

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

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

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

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

racial discrimination does not condemn all voluntary raceconscious affirmative action plans. In Weber, the Court 

considered a plan implemented by Kaiser Aluminum & Chemical 

Corporation. Prior to 1974, Kaiser hired as craftworkers only 

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

long been excluded from craft unions, Blacks were unable to 

present the credentials required for craft positions. Id. 

Moreover, Kaiser's hiring practices, although not admittedly 
discriminatory with regard to minorities, were questionable. Id.at 210. 

As a consequence, while the local labor force was about 

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

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

Kaiser entered into a collective bargaining agreement which 

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

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

employees until the percentage of Black craft-workers in the 

plant reached a level commensurate with the percentage of Blacks 

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

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

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

 Thereafter, Brian Weber, a White production worker, 

filed a class action suit, alleging that the plan unlawfully 

discriminated against White employees under Title VII. Relying 

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

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

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

273, where the Court held that Title VII forbids discrimination 

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

necessarily followed that the Kaiser plan, which resulted in 

junior Black employees receiving craft training in preference to 

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

district court agreed and entered a judgment in favor of the 

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

Id. at 200. 

 The Supreme Court, however, reversed, noting initially 

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

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

plan was an affirmative action plan voluntarily adopted by 

private parties to eliminate traditional patterns of racial 

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

exhaustive review of Title VII's legislative history and 

identified Congress' concerns in enacting Title VII's prohibition 

against discrimination -- the deplorable status of Blacks in the 

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

employment opportunities for Blacks in traditionally closed 

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

concluded that Congress could not have intended to prohibit 

private employers from implementing programs directed toward the 

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

its effects from the workplace: 

 It would be ironic indeed if a law triggered 

 by a Nation's concern over centuries of 

 racial injustice and intended to improve the 

 lot of those who had "been excluded from the 

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

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

 constituted the first legislative prohibition 

 of all voluntary, private, race-conscious 

 efforts to abolish traditional patterns of

 racial segregation and hierarchy. 

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

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

VII which expressly provides that nothing in the Act requires 

employers to grant racial preferences. According to the Court, 

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

would be construed to impose obligations upon employers to 

integrate their work forces through preferential treatment of 

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

with racially imbalanced work forces would grant racial 

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

first objection and did not specifically prohibit affirmative 

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

Congress did not intend that Title VII forbid all voluntary raceconscious preferences. Id. at 205-06. The Court further 

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

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

prohibition against all voluntary affirmative action would 

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

government and diminish[ing] traditional management prerogatives. 

. . ." Id. at 206-07. 

 The Court then turned to the Kaiser plan in order to 

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

of demarcation between permissible and impermissible affirmative 

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

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

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

employees": 

 The purposes of the plan mirror those of the 

 statute. Both were designed to break down

 old patterns of racial segregation and 

 hierarchy. Both were structured to "open 

 employment opportunities for Negroes in 

 occupations which have been traditionally 

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

 (remarks of Sen. Humphrey). 

 At the same time, the plan does not 

 unnecessarily trammel the interests of the

 white employees. The plan does not require 

 the discharge of white workers and their 

 replacement with new black hires. Nor does 

 the plan create an absolute bar to the 

 advancement of white employees; half of those 

 trained in the program will be white. 

 Moreover, the plan is a temporary measure; it 

 is not intended to maintain racial balance, 

 but simply to eliminate a manifest racial 

 imbalance. 

Id. at 208 (citation and footnote omitted). 

 In 1987, the Supreme Court decided a second Title VII 

affirmative action case, Johnson v. Transportation Agency, Santa 

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

Transit District Board of Supervisors implemented an affirmative 
action plan stating that "`mere prohibition of discriminatory 

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

discriminatory practices and to permit attainment of an equitable 

representation of minorities, women and handicapped persons.'" 

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

numbers far less than their proportion of the available work 

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

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

motivation in women to seek training or employment where 

opportunities were limited partially explained the 

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

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

making promotions to positions with a traditionally segregated 

job classification in which women were significantly 

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

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

whose composition reflected the proportion of women in the area 

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

difficulties in attaining the long-term goal, including the 

limited number of qualified women, the plan counseled that 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 announced a vacancy 

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

none of the 238 positions in the applicable job category was 

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

authorized to choose any of seven applicants who had been deemed 

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

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

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

combination of her qualifications and Mr. Johnson's

qualifications, their test scores, their expertise, their 

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

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

 Johnson sued, alleging that the Agency's employment 

decision constituted unlawful sex discrimination under Title VII. 

Evaluating the plan against the criteria announced in Weber, the 

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

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

Appeals for the Ninth Circuit reversed, holding that since the 

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

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

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

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

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

and neither unnecessarily trammeled the rights of other 

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

Id. at 626. 

 The Supreme Court affirmed. Declaring its prior 

analysis in Weber controlling, the Court examined whether the 

employment decision at issue "was made pursuant to a plan 

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

and whether "the effect of the [p]lan on males and nonminorities 
[was] comparable to the effects of the plan in that case." Id.at 631. 

The first issue the Court addressed, therefore, was

whether "consideration of the sex of applicants for Skilled Craft 

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

that reflected underrepresentation of women in `traditionally 

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

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

measure for determining what degree of disproportionate 

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

justify affirmative action, it made clear that the terms 

"manifest imbalance" and "traditionally segregated job category" 

were not tantamount to a prima facie case of discrimination 

against an employer since the constraints of Title VII and the 

Federal Constitution on voluntarily adopted affirmative action 

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

regard, the Court further reasoned that requiring an employer in 

a Title VII affirmative action case to show that it had 

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

focus on statistical imbalance, and could inappropriately create 

a significant discentive for employers to adopt an affirmative 

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

 Reviewing Agency statistics which showed that women 

were concentrated in traditionally female jobs and represented a 

lower percentage in other jobs than would be expected if 

traditional segregation had not occurred, the Court concluded 

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

designed to eliminate work force imbalances in traditionally 

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

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

unnecessarily trammeled the rights of male employees, the Court 

concluded that the plan passed muster because it authorized 

merely that consideration be given to affirmative action concerns 

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

of several criteria that the Agency Director considered in making 

his decision; no legitimate, firmly rooted expectation on the 

part of Johnson was denied since the Agency Director could have 

promoted any of the seven candidates classified as eligible; even 

though Johnson was refused a promotion, he retained his 

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

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

 III. 

 We analyze Taxman's claim of employment discrimination 

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

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

burden of production shifts to the employer to show a 

legitimate nondiscriminatory reason for the decision; an 

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

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

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

of production shifts back to the employee to show that the 

asserted nondiscriminatory reason is a pretext and that the 

affirmative action plan is invalid. Id. 

 For summary judgment purposes, the parties do not 
dispute that Taxman has established a prima facie case or that 

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

affirmative action policy. The dispositive liability issue, 

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

 IV. 

 Having reviewed the analytical framework for assessing 

the validity of an affirmative action plan as established in 

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

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

order to determine whether the racial diversity purpose of the 

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

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

provisions and in its legislative history and historical context. 

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

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

words, legislative history, historical context and the sequence 

of events leading to its passage). 

 A. 

 Title VII was enacted to further two primary goals: to 

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

national origin, thereby guaranteeing equal opportunity in the 

workplace, and to remedy the segregation and underrepresentation 

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

force. 

 Title VII's first purpose is set forth in section 

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

discrimination which Congress sought to end. 42 U.S.C. § 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 eliminate those 

discriminatory practices and devices which have fostered racially 

stratified job environments to the disadvantage of minority 

citizens."). This antidiscriminatory purpose is also reflected 

in the Act's legislative history. In an interpretative 

memorandum entered into the Congressional Record, Senators Case 

and Clark, comanagers of the Senate bill, stated: 

 To discriminate is to make a distinction, to 

 make a difference in treatment or favor, and 

 those distinctions or differences in 

 treatment or favor which are prohibited by

 section 704 are those which are based on any 

 five of the forbidden criteria: race, color, 

 religion, sex, and national origin. Any 

 other criterion or qualification for 

 employment is not affected by this title. 

 * * * 

 . . . [Title VII] expressly protects the 

 employer's right to insist that any 

 prospective applicant, Negro or white, must 

 meet the applicable job qualifications. 
 Indeed the very purpose of Title VII is to

 promote hiring on the basis of job 

 qualifications, rather than on the basis of 

 race or color. 

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

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

 Title VII's second purpose, ending the segregative 

effects of discrimination, is revealed in the congressional 

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

carefully catalogued the comments made by the proponents of Title 

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

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

remarks to the Senate: 

 The rate of Negro unemployment has gone up

 consistently as compared with white 

 unemployment for the past 15 years. This is 

 a social malaise and a social situation which 

 we should not tolerate. That is one of the 

 principal reasons why the bill should pass. 

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

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

employment opportunities for Negroes which have been 

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

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

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

Humphrey). 

 The significance of this second corrective purpose 

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

to eradicate not only discrimination per se but the consequencesof prior 

discrimination as well, that racial preferences in the 

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

antidiscrimination mandate. 

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

we are convinced that unless an affirmative action plan has a 

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

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

Weber test. 

 We see this case as one involving straightforward 

statutory interpretation controlled by the text and legislative 

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

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

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

legislative history demonstrates that barring considerations of 

race from the workplace was Congress' primary objective. If 

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

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

issue in Weber and Johnson were sustained only because the 

Supreme Court, examining those plans in light of congressional 

intent, found a secondary congressional objective in Title VII 

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

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

no congressional recognition of diversity as a Title VII 
objective requiring accommodation. 

 Accordingly, it is beyond cavil that the Board, by 

invoking its affirmative action policy to lay off Sharon Taxman, 

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

Johnson permitted some deviation from the antidiscrimination 

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

discrimination, these rulings do not open the door to additional 

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

Board must justify its deviation from the statutory mandate based 

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

appropriate. 

 B. 

 The Board recognizes that there is no positive 

legislative history supporting its goal of promoting racial 

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

caselaw approving such a purpose to support an affirmative action 

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

propriety of this purpose from fragments of other authority." 

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

 The Board first attempts to meet its obligations with 

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

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

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

Senate Committee's explanation for recommending the amendment, 

however, reveals that Congress neither addressed nor embraced the 

racial diversity purpose before us. Instead, Congress pursued, 

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

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

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

elimination of discriminatory employment practices and the 

abolition of discrimination's invidious effects: 

 The presence of discrimination in the

 Nation's educational institutions is no 

 secret. . . . This discrimination, however, 

 is not limited to the students alone. 

 Discriminatory practices against faculty, 

 staff, and other employees is also common.

 As in other areas of employment, 

 statistics for educational institutions 

 indicate that minorities and women are 

 precluded from the more prestigious and 

 higher-paying positions, and are relegated to 

 the more menial and lower-paying jobs. While 

 in elementary and secondary school systems

 Negroes accounted for approximately 10% of

 the total number of positions in the higher- 

 paying and more prestigious positions in 

 institutions of higher learning, blacks 

 constituted only 2.2% of all positions, most 

 of these being found in all-black or 

 predominantly black institutions. Women are 

 similarly subject to discriminatory patterns. 
 Not only are they generally under-represented 

 in institutions of higher learning, but those 

 few that do obtain positions are generally

 paid less and advanced more slowly than their 

 male counterparts. Similarly, while women

 constitute 67% of elementary and secondary

 school teachers, out of 778,000 elementary

 and secondary school principals, 78% of 

 elementary school principals are men and 94% 

 of secondary school principals are men. 

 . . . There is nothing in the 

 legislative background of Title VII, nor does 

 any national policy suggest itself, to 

 support the present exemption. In fact, the 

 Committee believes that the existence of 

 discrimination in educational institutions is 

 particularly critical. It is difficult to

 imagine a more sensitive area than 

 educational institutions, where the youth of 

 the Nation are exposed to a multitude of 

 ideas and impressions that will strongly 

 influence their future development. To 

 permit discrimination here would, more than 

 in any other area, tend to promote existing 

 misconceptions and stereotypical 

 categorizations which in turn would lead to 

 future patterns of discrimination. 

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

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

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

evidence that this mere addition to the definitional section of 

the statute was intended to transform the substantive standard 

governing employer conduct."). 

 We find the Board's reliance on Fourteenth Amendment 

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

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

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

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

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

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

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

faulty premise. 

 In relying on Equal Protection cases to support its 

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

The Supreme Court observed in Johnson that "the statutory 

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

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

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

constitutional strict scrutiny necessarily passes muster under 

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

endorsed the concept of diversity in Equal Protection cases, it 

would approve the Board's diversity purpose in this Title VII 
case, where the limitations on purpose are less stringent. 

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

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

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

purposes that may support affirmative action under the former but 

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

instead, to the factual predicate that employers must offer to 

prove the need for remedial efforts in Title VII as contrasted 

with Equal Protection affirmative action cases. 

 In Johnson, the Court held that the legality of the 

Santa Clara County Transportation Agency's plan under Title VII 

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

affirmative action is lawful if an employer can point to a 

"`manifest imbalance . . . in traditionally segregated job 

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

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

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

Constitution a public employer's remedial affirmative action 

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

present discrimination; that is, societal discrimination is an 

insufficient basis for "imposing discretionary legal remedies 

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

words, affirmative action must be supported by "a factual 

determination that the employer had a strong basis in evidence 

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

277. 

 When the Court in Johnson observed that Title VII's 

statutory prohibition does not extend as far as the Constitution, 

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

that since obligations under Title VII and the Constitution are 

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

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

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

at 627-28 n.6. 

 While the Supreme Court may indeed at some future date 

hold that an affirmative action purpose that satisfies the 

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

so. 

 Were we to accept that equal protection standards may 

be imported into Title VII analysis, we are still unpersuaded 

that the Equal Protection caselaw validates the Board's asserted 

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

the racial diversity purpose is supported by both the Supreme 

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

in Wygant, although divided, agreed that under the Equal 

Protection Clause, racial classifications in the context of 

affirmative action must be justified by a compelling state 

purpose and the means chosen to effectuate that purpose must be 

narrowly tailored; that societal discrimination alone will not 

justify a racial classification; that evidence of prior 

discrimination by an employer must be presented before remedial 

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

theory proposed by the employer as a basis for race-conscious 
state action was unacceptable because it would have allowed 

discriminatory hiring and layoff well beyond the point necessary 

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

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

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

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

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

Constitution would allow a public employer to preserve the 

integration it had achieved through a legitimate affirmative 

action hiring plan by thereafter apportioning layoffs between 

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

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

(Stevens, J., dissenting). 

 We are also unpersuaded by the Board's contention that 

Equal Protection cases arising in an education context support 

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

Protection cases, unlike the case at hand, involved corrective 

efforts to confront racial segregation or chronic minority 

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

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

wholeheartedly endorse any statements in these cases extolling 

the educational value of exposing students to persons of diverse 

races and backgrounds, given the framework in which they were 

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

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

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

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

racially-conscious layoff provision at issue was aimed at 

preserving the faculty integration achieved by the Jackson, 

Michigan Public Schools in the early 1970s through affirmative 

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

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

(1979) (condemning intentional segregation and the creation of 

racially-identifiable schools practiced by the Columbus, Ohio 

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

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

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

Medical School of the University of California at Davis contained 

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

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

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

Charlotte-Mecklenburg, North Carolina school system attended 21 

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

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

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

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

(1985). 

 More specifically, two Supreme Court cases upon which 

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

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

a rejected White applicant's challenge under the Constitution and 

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

special admissions program instituted by the Medical School of 

the University of California at Davis which essentially set aside 
16 places for minority candidates. Justice Powell, whose vote 

was necessary both to establish the validity of considering race 

in admission decisions and to invalidate the racial quota before 

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

student body" is a constitutionally permissible goal for an 

institution of higher education. Justice Powell pointed out that 

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

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

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

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

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

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

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

Davis' assertion that its interest in diversity implicated First 

Amendment concerns: 

 Thus, in arguing that its universities 

 must be accorded the right to select those

 students who will contribute the most to the 

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

 countervailing constitutional interest, that 

 of the First Amendment. In this light, 

 petitioner must be viewed as seeking to 

 achieve a goal that is of paramount 

 importance in the fulfillment of its mission. 

Id. at 313. 

 Davis' reservation of a specified number of seats in 

each class for individuals from preferred ethnic groups to 

further its diversity purpose, however, was unacceptable because, 

according to Justice Powell, it misconceived the nature of the 

state interest that would justify consideration of race or ethnic 

background: 

 It is not an interest in simple ethnic 

 diversity, in which a specified percentage of 

 the student body is in effect guaranteed to 

 be members of selected ethnic groups, with

 the remaining percentage an undifferentiated 

 aggregation of students. The diversity that 

 furthers a compelling state interest 

 encompasses a far broader array of 

 qualifications and characteristics of which 

 racial or ethnic origin is but a single 

 though important element. Davis' special 

 admissions program, focused solely on ethnic 

 diversity, would hinder rather than further 

 attainment of genuine diversity. 

Id. at 315 (footnote omitted). 

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

diversity that universities aspire to in their student bodies, 

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

the racial diversity purpose involved in this case that we find 

little in Bakke to guide us. 

 Likewise, statements regarding the value of programming 
diversity made by the Court in Metro Broadcasting when it upheld 

two minority preference policies adopted by the Federal 

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

here. The diversity interest the Court found sufficient under 

the Constitution to support a racial classification had nothing 

whatsoever to do with the concerns that underlie Title VII. 

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

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

`constitutionally permissible goal' on which a race-conscious 

university admissions program may be predicated, the diversity of 

views and information on the airwaves serves important First 

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

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

diversity goal underlying its application of the affirmative 

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

opinion in Wygant and in Justice Stevens' concurring opinion in 

Johnson. We find that these statements are slender reeds indeed 

and any bearing that they may have in the situation presented 

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

Bakke and the notion of racial diversity in institutions of 

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

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

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

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

intimations in JUSTICE STEVENS' concurrence, this Court did not 

approve preferences for minorities `for any reason that might 

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

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

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

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

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

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

his comments are not controlling. 

 V. 

 Since we have not found anything in the Board's 

arguments to convince us that this case requires examination 

beyond statutory interpretation, we return to the point at which 

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

reviewing affirmative action plans in light of that statute. Our 

analysis of the statute and the caselaw convinces us that a nonremedial affirmative action plan cannot form the basis for 

deviating from the antidiscrimination mandate of Title VII. 

 The Board admits that it did not act to remedy the 

effects of past employment discrimination. The parties have 

stipulated that neither the Board's adoption of its affirmative 

action policy nor its subsequent decision to apply it in choosing 

between Taxman and Williams was intended to remedy the results of 

any prior discrimination or identified underrepresentation of 

Blacks within the Piscataway School District's teacher workforce 

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

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

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

Super. Ct. App. Div.), appeal dismissed, 401 A.2d 230 (N.J. 
1978). Even though the Board's race-conscious action was taken 

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

Business Department, the Board concedes that Blacks are not 

underrepresented in its teaching workforce as a whole or even in 

the Piscataway High School. 

 Rather, the Board's sole purpose in applying its 

affirmative action policy in this case was to obtain an 

educational benefit which it believed would result from a 

racially diverse faculty. While the benefits flowing from 

diversity in the educational context are significant indeed, we 

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

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

action plan was adopted to remedy past discrimination or as the 

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

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

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

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

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

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

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

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

Board's policy is deficient. 

 We begin by noting the policy's utter lack of 

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

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

cannot abdicate its responsibility to define "racial diversity" 

and to determine what degree of racial diversity in the 

Piscataway School is sufficient. 

 The affirmative action plans that have met with the 

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

as benchmarks which served to evaluate progress, guide the 

employment decisions at issue and assure the grant of only those 

minority preferences necessary to further the plans' purpose. 

Johnson, 480 U.S. at 621-22 (setting forth long-range and shortterm objectives to achieve "`a statistically measurable yearly 

improvement in hiring, training and promotion of minorities and 

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

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

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

the percentage of Black craftworkers reflected the percentage of 

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

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

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

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

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

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

affirmative action to discriminate against those whom Title VII 

was enacted to protect. Such a policy unnecessarily trammels the 

interests of nonminority employees. 

 Moreover, both Weber and Johnson unequivocally provide 

that valid affirmative action plans are "temporary" measures that 

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

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

208. The Board's policy, adopted in 1975, is an established 
fixture of unlimited duration, to be resurrected from time to 

time whenever the Board believes that the ratio between Blacks 

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

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

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

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

ensuring the employment of the district's only Black 

administrator was "outright racial balancing" in violation of 

Weber's second prong). 

 Finally, we are convinced that the harm imposed upon a 

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

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

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

pursued in this particular fashion. This is especially true 

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

when considering whether nonminorities were unduly 

encumbered by affirmative action, the Court found it significant 

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

(observing that the plan did not require the discharge of 

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

the nonminority employee who was not promoted nonetheless kept 

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

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

foreclosing only one of several opportunities, layoffs impose the 

entire burden of achieving racial equality on particular 

individuals, often resulting in serious disruption of their 

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

(footnote omitted). 

 Accordingly, we conclude that under the second prong of 

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

Title VII. In addition to containing an impermissible purpose, 

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

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

 VI. 

 The district court did not analyze Taxman's claims 

based on the New Jersey Law Against Discrimination and we need 

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

analysis required by the state statute is essentially the same as 

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

Court has yet to consider a voluntarily adopted affirmative 

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

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

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

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

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

everyone concerned to have some uniformity in the law." 

 Given that statement, we predict that the New Jersey 

Supreme Court would follow the analytical directive of Weber and 

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

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

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

made under the NJLAD. 
 VII. 

 Having found the Board liable under Title VII, we turn 

our attention to the issue of damages, addressing first the 

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

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

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

should be to restore "`the conditions and relationships that 

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

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

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

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

percent backpay was plainly unfair. Had it not invoked the 

affirmative action plan, the Board would have followed its usual 

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

seniority between Williams and Taxman. Taxman, therefore, would 

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

had there been no unlawful discrimination." 

 We disagree. In deciding backpay issues, a district 

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

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

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

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

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

of virtually precise equality with Williams in terms of the 

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

position of financial equality with Williams through a one 

hundred percent backpay award. We are convinced that this award 

most closely approximates the conditions that would have 

prevailed in the absence of discrimination. 

 We find an additional basis for our holding in the 

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

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

employee proves that discrimination played a role in an 

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

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

would have come to the same decision regarding a particular 

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

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

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

hundred percent backpay award unless it can establish, by a 

preponderance of the evidence, that Taxman would have received 

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

This, of course, the Board cannot do. 

 Given the law and the circumstances presented in this 

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

respect to backpay reflects the sound exercise of judicial 

discretion and we will affirm the award. 

 The Board further contends that the district court 

erred in calculating prejudgment interest using the IRS adjusted 

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

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

1961(a). This argument is meritless. 

 The matter of prejudgment interest is left to the 

discretion of the district court. Although a court "may" use the 
post-judgment standards of 28 U.S.C. § 1961(a), Sun Ship, Inc. v. 

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

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

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

rate, established periodically by the Secretary of the Treasury 

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

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

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

not abuse its discretion in using adjusted prime rate to 

calculate the amount of prejudgment interest to be paid on 

backpay award under the Equal Pay Act). 

 We thus hold that the district court's calculation of 

pre-judgment interest was consistent with the sound exercise of 

judicial discretion. 

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

that the district court erred in dismissing her claim for 

punitive damages under the NJLAD. 

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

damages, the district court reaffirmed a decision made at a 

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

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

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

punitive damages: 

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

 said that the board acted in good faith, but 

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

 evidence that would support any claim for 

 punitive damages. And I struck the punitive 

 damages claim. 

 There's absolutely no evidence that the board 

 acted willfully, wantonly, outrageously or in 

 any other way than trying its best to make

 the best of a very unhappy situation. 

 

 The New Jersey Supreme Court has established a high 

threshold requirement which must be met before an award of 

punitive damages can be sustained. Punitive damages are to be 

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

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

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

conduct must have been wantonly reckless or malicious. There 

must be an intentional wrongdoing in the sense of an `evilminded' act accompanied by a wanton and willful disregard to the 

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

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

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

willfulness or wantonness] may be satisfied a showing that there 

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

degree of probability of harm and reckless indifference or 

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

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

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

 Having examined the record evidence in this case 
against the background of the New Jersey punitive damages 

standard, we agree with the district court that the evidence 

would not support a finding that the Board acted willfully, 

wantonly or outrageously in dismissing Taxman. We conclude, 

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

dismissed. 

 VIII. 

 While we have rejected the argument that the Board's 

non-remedial application of the affirmative action policy is 

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

reject in principle the diversity goal articulated by the Board. 

Indeed, we recognize that the differences among us underlie the 

richness and strength of our Nation. Our disposition of this 

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

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

that Title VII permits an employer to advance that goal through 

non-remedial discriminatory measures. 

 Having found that the district court properly concluded 

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

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

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

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

district court. 

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

Nos. 94-5090, 94-5112 

STAPLETON, Circuit Judge, Concurring: 

 I agree that the Board's non-remedial affirmative 

action decision is unlawful because non-remedial affirmative 

action employment decisions cannot pass muster under Title VII. 

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

Board's actions unnecessarily trammel Taxman's interests. 

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

the remainder of the court's opinion. 

United States of America, Sharon Taxman, Plaintiff-Intervenor 

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

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

Piscataway, Nos. 94-5090, 94-5112 

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

McKee join. 

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

the question is framed that determines the answer that is 

received. Although the divisive issue of affirmative action 

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

appeal as raising a broad legal referendum on affirmative action 

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

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

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

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

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

affirmative action policy originally adopted in 1975 by the Board 
of Education of the Township of Piscataway (School Board or 

Board) in response to a state regulation requiring affirmative 

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

Action policy. 

 Instead, the narrow question posed by this appeal can 

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

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

qualified teachers should be laid off, to make its decision 

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

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

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

based on its experience with secondary schools, that students 

derive educational benefit by having a Black faculty member in an 

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

of discretion left to employers in educational institutions by 

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

respectfully dissent. 

 The posture in which the legal issue in this case is 

presented is so stripped of extraneous factors that it could well 

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

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

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

more qualified employee in favor of a less qualified employee on 

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

consider what requirements Title VII may impose on unwilling 

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

may be "enough." 

 Significantly, although the School Board is a public 

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

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

Constitution because we are presented with no constitutional 

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

restraints imposed by Title VII rather than the more demanding 

ones imposed on government action by the Equal Protection Clause. 

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

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

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

defendant was a public employer it would decide the case only 

under Title VII because no constitutional issue was raised or 

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

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

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

public employer must also satisfy the Constitution does not 

negate the fact that the statutory prohibition with which that 

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

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

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

a public employer under Title VII must be identical to its 

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

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

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

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

 

I. 
 When in May 1989 the School Board was faced with the 

disagreeable necessity of reducing by one the teaching staff in 

the Business Department of Piscataway High School, it recognized 

that reference to the applicable New Jersey law, which provides 

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

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

responsibility of gauging the educational requirements of the 

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

experience as there were no other prescribed guidelines. It did 

not then turn to the affirmative action policy to make the 

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

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

On the contrary, the Board next considered a variety of 

undoubtedly relevant factors, any one of which might have tipped 

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

Taxman been deemed a better teacher than Williams, that alone 

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

participated in volunteer activity while Taxman spent her spare 

time in other activities, that alone could have accounted for 

Williams' retention. The deposition testimony of several board 

members who participated in the decision indicates that before 

the affirmative action policy was considered, a number of other 

criteria were discussed to break the tie, including work 

performance, certifications, evaluations, teaching ability, and 

volunteerism. The two teachers with the least seniority, Taxman 

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

these other criteria. 

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

 [T]he seniority and the person's 

 qualifications came into play first. If one 

 was more senior than the other, it would have 

 ended right there, if they were of like 

 seniority. From that point it was based on 

 their work performance and their evaluations 

 . . . . There was some consideration given 

 . . . to the various other activities that 

 they did . . . . But certainly the weight

 would be given to their performance in the

 classroom. At that point we were told that 

 these are two teachers of equal ability, 

 equal qualifications, I should say. They 

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

 good teachers, they were supportive of the

 school district, volunteered in various ways 

 and they . . . had similar certification or 

 like certification and their seniority was

 the same so therefore they were equal. 

Da179-80. 

 The equal position of both teachers in light of all 

relevant criteria was also stressed by the Director of Personnel, 

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

history or performance criteria [were] not going to be usable in 
breaking the tie, because there was no distinction that could be 

made." Da177. 

 In its opinion, the majority declares the School 

Board's affirmative action policy unlawful. An examination of 

the so-called affirmative action policy reveals that it does 

nothing more than place before the School Board the need to 

consider minority personnel among other equally qualifiedcandidates for 

employment decisions. Da5, 53. That this was a 

necessary reminder in 1975 when the policy was formed can hardly 

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

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

perhaps even today. 

 A review of the record makes clear that the Board did 

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

1975 affirmative action policy, which speaks only of 

recommendations, but after discussion and consideration the Board 

made a discretionary decision to select Williams for retention to 

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

 The Board members described their purpose in using the 

goal of diversity underlying the previously adopted affirmative 

action policy as a factor in the layoff decision as reflecting 

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

to see in the various employment roles a wide range of 

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

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

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

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

"encourage awareness and acceptance and tolerance [of people of 

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

consideration that if Williams were laid off, the Business 

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

168, 175-176. 

 II. 

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

racially diverse faculty among the various factors entering into 

its discretionary decision that the majority of this court brands 

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

compels that anomalous result. Notwithstanding the majority's 

literal construction of the language of Title VII, no Supreme 

Court case has ever interpreted the statute to preclude 

consideration of race or sex for the purpose of insuring 

diversity in the classroom as one of many factors in an 

employment decision, the situation presented here. Moreover, in 

the only two instances in which the Supreme Court examined under 

Title VII, without the added scrutiny imposed by the Equal 

Protection Clause, affirmative action plans voluntarily adopted 

by employers that gave preference to race or sex as a 

determinative factor, the Court upheld both plans. 

 In its 1979 decision in United Steelworkers v. Weber, 

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

private company and a union that sought to remedy the historical 

exclusion of Blacks from skilled craft unions by reserving half 

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

violate Title VII. A scarce decade later, it reached a similar 
decision in Johnson v. Transportation Agency, Santa Clara County, 

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

authorized consideration of the gender of a qualified applicant 

as one of various factors for promoting employees into jobs in 

which women had been significantly underrepresented. 

 The majority presents Weber and Johnson as if their 

significance lies in the obstacle course they purportedly 

establish for any employer adopting an affirmative action 

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

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

sustained the affirmative action plans presented, and in doing so 

deviated from the literal interpretation of Title VII precluding 

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

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

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

statute, because not within its spirit nor within the intention 

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

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

dissenting in those cases noted and vigorously objected to the 

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

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

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

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

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

mind just how thoroughly Weber rewrote the statute it purported 

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

invoking instead its 'spirit'"). 

 While the majority in this case views the Supreme 

Court's articulation of the factors that rationalized its 

upholding of the affirmative action plans in those cases as 

establishing boundaries, no language in either Weber or Johnsonso states 

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

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

both Weber and Johnson, the Court inquired whether consideration 

of race in the employment decision was justified by a permissible 

purpose, and then examined the effect on nonminorities to 

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

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

Johnson, 480 U.S. at 630. 

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

because the two affirmative action plans in Weber and Johnsonwhich sought 

to remedy imbalances caused by past discrimination 

withstood Title VII scrutiny, every affirmative action plan that 

pursues some purpose other than correcting a manifest imbalance 

or remedying past discrimination will run afoul of Title VII. 

Indeed, the Court in Weber explicitly cautioned that its holding 

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

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

voluntary adoption of affirmative action measures. The Court 

stated: 

 We need not today define in detail the line 

 of demarcation between permissible and 

 impermissible affirmative action plans. It 

 suffices to hold that the challenged Kaiser- 
 USWA affirmative action plan falls on the 

 permissible side of the line. The purposes 

 of the plan mirror those of the statute. 

 Both were designed to break down old patterns 

 of racial segregation and hierarchy. Both

 were structured to "open employment 

 opportunities for Negroes in occupations 

 which have been traditionally closed to 

 them." 

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

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

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

affirmative action"). 

 The majority opinion in Johnson made no attempt to draw 

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

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

the opinion does not establish the permissible outer limits of 

voluntary [affirmative action] programs"). Although Justice 

O'Connor's concurring opinion argued that permissible purposes 

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

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

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

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

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

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

 

 The majority here has taken the language of Weber where 

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

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

affirmative action plan can only pass muster under Title VII if 

particular language in the text or legislative history of the 

statute can be identified that matches the articulated purpose of 

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

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

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

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

reference not only to the language of the legislative history, 

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

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

identify language in the legislative history paralleling the 

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

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

between the plan and the statutory history demanded of the Board 

in this case. 

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

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

promote "the integration of blacks into the mainstream of 

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

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

The Kaiser affirmative action plan was consistent with these 

sweeping, broadly stated purposes and hence was sustained. 

 Of course, I do not disagree with the majority that 

"Title VII was written to eradicate not only discrimination per 

se but the consequences of prior discrimination," but I do not 
believe that in doing so, Congress intended to limit the reach of 

Title VII to remedying past discrimination, thereby turning a 

blind eye toward those social forces that give rise to future 

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

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

that purpose should not be ignored. 

 The effort to remedy the consequences of past 

discrimination (such as the "patterns of segregation and 

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

isolated from the statute's broader aim to eliminate those 

patterns that were potential causes of continuing or future 

discrimination. The causal relationship is illustrated by the 

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

ongoing imbalance in the hiring of craftworkers had its roots in 

a history of discrimination that had excluded Blacks from craft 

unions and thus prevented them from acquiring the necessary 

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

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

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

consequences of racial and other types of discrimination against 

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

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

added). 

 Thus, using the approach taken in Weber and Johnson as 

a springboard, actions consistent with and in furtherance of the 

broad statutory goal of eliminating the causes of discrimination 

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

people may not recall that in 1964 racial homogeneity in schools 

was viewed as among the most fundamental and pernicious aspects 

of the social pattern undergirding the system of discrimination 

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

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

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

accompanying the 1972 amendments to Title VII, when it was 

expanded to cover state and local governments, noted the 

connection between racial homogeneity in schools and attitudes 

that lead to discrimination: 

 It is difficult to imagine a more 

 sensitive area than educational 

 institutions where the youth of the 

 Nation are exposed to a multitude of 

 ideas and impressions that will strongly 

 influence their future development. To 

 permit discrimination here [among 

 faculty and staff] would, more than in 

 any other area, tend to promote existing 

 misconceptions and stereotypical 

 categorizations which in turn would lead 

 to future patterns of discrimination.

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

 In other contexts, the Court has repeatedly recognized 

racial diversity in the classroom as an important means of 

combatting the attitudes that can lead to future patterns of 

discrimination. As Justice Stevens observed in Wygant: 
 In the context of public education, it is 

 quite obvious that a school board may 

 reasonably conclude that an integrated 

 faculty will be able to provide benefits to 

 the student body that could not be provided 

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

 faculty. For one of the most important 

 lessons that the American public schools 

 teach is that the diverse ethnic, cultural

 and national backgrounds that have been 

 brought together in our famous "melting pot" 

 do not identify essential differences among 

 the human beings that inhabit our land. It 

 is one thing for a white child to be taught 

 by a white teacher that color, like beauty, 

 is only "skin deep"; it is far more 

 convincing to experience that truth on a day- 

 to-day basis during the routine ongoing 

 learning process. 

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

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

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

and white students alike any idea that white supremacy governs 

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

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

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

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

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

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

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

harmony and mutual respect' with children of minority 

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

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

"deprive black students of opportunities for contact with and 

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

similar opportunities to meet, know and learn from black 

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

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

teaching social policy [from which students learn] from the 

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

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

(1985). 

 It is "ironic indeed" that the promotion of racial 

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

this country's struggle to eliminate the causes and consequences 

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

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

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

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

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

resort to a lottery to determine which of two qualified teachers 

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

policy undertaken to insure students an opportunity to learn from 

a teacher who was a member of the very group whose treatment 
motivated Congress to enact Title VII in the first place. In my 

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

be derived from a racially diverse faculty is entirely consistent 

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

1964. 

 The majority criticizes the Board's use of caselaw 

construing the Equal Protection Clause in this Title VII case, 

notwithstanding the Supreme Court's explicit statement in Johnsonthat 

Title VII's constraint on affirmative action was "not 

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

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

suggests that we confine it to the particular factual 

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

sufficiently articulate to limit its language when so inclined. 

Nor is the Johnson footnote the only place where the Court 

signified its understanding that Title VII imposes fewer 

limitations on employers' voluntary affirmative action than does 

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

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

hence did not present an alleged violation of the Equal 

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

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

particularize the commands of the Fifth and Fourteenth 

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

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

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

remedial affirmative action, as the majority would confine the 

similar language in Johnson. 

 In any event, ultimately it is the Supreme Court rather 

than this one that will decide whether Title VII allows an 

employer more discretion to implement race-conscious employment 

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

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

any dispositive precedent, I believe it would be shortsighted for 

us to disregard the Supreme Court's statements regarding the 

advantages of diversity in an educational context when examining 

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

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

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

considered a University of California affirmative action program 

for student admissions, Justice Powell, who announced the 

judgment of the Court, recognized that a diverse student body 

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

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

noted that the "essential" elements of academic freedom include 

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

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

234, 263 (1957)). 

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

(1986), the Court held that preferential protection against 

layoffs afforded to minority teachers by the public school 

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

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

minority teachers were needed to provide role models for minority 
students -- was not sufficiently compelling to withstand the 

strict scrutiny to which it was subject under the Fourteenth 

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

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

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

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

decisive vote in the Court's holding, specifically distinguished 

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

of promoting racial diversity among the faculty," explicitly 

leaving open the possibility that the latter goal might be 

sufficiently compelling to pass constitutional muster. Id. at 

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

endorsement of diversity in the classroom in Bakke, stating, 

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

the promotion of racial diversity has been found sufficiently 

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

support the use of racial considerations in furthering that 

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

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

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

the benefit of all students" through faculty integration is a 

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

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

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

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

justices in Wygant who approved in general terms the concept that 

the educational benefit derived from diversity in the classroom 

can constitute an acceptable justification for affirmative 

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

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

concurring) ("Remedying past discrimination is not necessarily 

the only government purpose sufficiently compelling to justify 

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

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

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

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

opportunities available to the students by achieving better 

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

recognized and approved by the Supreme Court"). 

 I therefore respectfully disagree with the majority, 

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

open for any action that takes race into consideration in an 

employment situation other than to remedy past discrimination and 

the consequential racial imbalance in the workforce, and in what 

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

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

educational benefit to be derived from a racially diverse faculty 

is a permissible basis for its voluntary affirmative action under 

Title VII scrutiny. 

 III. 

 It is undeniable that, in the abstract, a layoff 

imposes a far greater burden on the affected employee than a 

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

however, it cannot be said with any certainty that Taxman would 
have avoided the layoff had the Board's decision not been raceconscious. If a random selection had been made, Taxman would 

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

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

"legitimate and firmly rooted expectation" of no layoff. 

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

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

action scheme, White applicants "could not reasonably have felt 

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

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

 This differs from the situation of an employee who is 

next in line for a promotion by the objective factor of 

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

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

because there were six other employees who also met the 

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

"legitimate firmly rooted expectation" in the promotion, even 

though he had scored higher than the others on the qualifying 

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

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

VII where it never requires hiring unqualified person over 

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

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

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

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

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

her job. 

 The majority relies in part on Wygant, where the 

Supreme Court found that the use of faculty layoffs to meet 

affirmative action goals in a public school system imposed too 

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

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

"narrowly tailored" for purposes of an equal protection challenge 

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

"unnecessarily trammels" the rights of White employees for Title 

VII purposes. Not only was a different legal standard applicable 

but Wygant is also distinguishable because the Wygant plan caused 

nonminority teachers with more seniority to be laid off in order 

to retain minority teachers with less seniority. Wygant, 476 

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

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

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

to one hundred percent -- is significantly heavier than that 

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

being laid off even absent any consideration of diversity. 

 Only three members of the Court subscribed to language 

in the plurality opinion in Wygant suggesting that the use of 

layoffs to accomplish affirmative action goals will never survive 

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

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

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

troubling question[] whether any layoff provision could survive 

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

his conclusion to the specifics of the layoff policy at issue). 
Therefore I do not read Wygant to hold that no race-conscious 

layoff decision will survive Title VII scrutiny. 

 The majority gives a similarly narrow reading to Weberand 

Johnson, construing these cases to impose a wooden,

"unequivocal" requirement that all affirmative action plans must 

be explicitly temporary in order to be valid. Majority 

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

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

indicated that only certain plans that are particularly 

burdensome on nonminorities in other respects need necessarily be 

expressly temporary. "Express assurance that a program is only 

temporary may be necessary if the program actually sets aside 

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

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

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

more accurately construed as an understandable effort to assure 

that race does not become a permanently embedded consideration in 

employment decisions. The significant consideration is whether 

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

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

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

 In the situation before us, I see ample basis from 

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

affirmative action policy on non-minority employees. One such 

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

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

significant is the infrequency with which the Board has resorted 

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

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

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

decision demonstrates the minimum impact on White teachers as a 

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

instances in which two candidates are of different races but 

equal qualifications and the department in question is not 

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

infrequently applied. See District Court's Final Judgment and 

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

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

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

 In this connection, I deem it further evidence of the 

Board's interest in minimizing any adverse effect on 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 indication that 

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

attendant thereto. 

 It is not the province of this court to intrude into 

what is essentially an educational decision. Once we have 

determined that promoting faculty diversity for educational 

purposes can be a valid justification for an appropriately 

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

the judgment of educators as to the level of diversity that 

produces the educational environment they deem appropriate. 

The Board's action is an attempt to create an educational 
environment that will maximize the ability of students to address 

racial stereotypes and misconceptions born of lack of 

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

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

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

before us, the consequence of the narrow reading that the 

majority gives Weber and Johnson is the very irony that the 

Supreme Court said would result from interpreting this civil 

rights statute in a manner divorced from its historic context. 

As the Court noted in Weber: 

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

 Nation's concern over centuries of racial injustice and 

 intended to improve the lot of those who had "been 

 excluded from the American dream for so long," 110 

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

 constituted the first legislative prohibition of all 

 voluntary, private, race-conscious efforts to abolish 

 traditional patterns of racial segregation and 

 hierarchy. 

Weber, 443 U.S. at 204. 

 I return to the question raised at the outset: whether 

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

selection between equally situated employees. In his opinion for 

the majority in Weber, Justice Brennan noted the distinction made 

by Congress between requiring and permitting affirmative action 

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

important that, while Congress explicitly provided that Title VII 

should not be interpreted to require any employer to grant 

preferential treatment to a group because of its race, Congress 

never stated that Title VII should not be interpreted to permitcertain 

voluntary efforts. 

 In this case, the majority gives too little 

consideration to the tie-breaking method that its holding will 

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

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

decision in preference to a reasoned decision by members of the 

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

of a faculty member has a relevant educational significance if 

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

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

lottery. 

 Because I cannot say that faculty diversity is not a 

permissible purpose to support the race conscious decision made 

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

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

for Taxman under Title VII and direct that summary judgment be 

granted to the School Board. 

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

SCIRICA, Circuit Judge, dissenting, with whom Chief Judge 

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

opinion, I am constrained to express my disagreement because I 

believe education presents unique concerns. 

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

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

depends upon leaders trained through wide exposure' to the ideas 

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

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

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

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

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

Eighteen years later, the wisdom of this statement resonates as 

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

standards, this exposure constitutes a formidable educational 

experience. 

 In this case, the Piscataway Board of Education 

concluded that a diverse faculty also serves a compelling 

educational purpose; namely, it benefits students in the business 

department by exposing them to teachers with varied backgrounds. 

The Board implemented a program that, in limited circumstances, 

allows consideration of race as a factor in school employment 

decisions. The Board did not countenance the layoff of a morequalified teacher in the place of a less-qualified one. It did 

not prefer teachers junior in seniority to those with more 

experience. Rather it concluded that when teachers are equal in 

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

the faculty is a relevant consideration. 

 I do not believe Title VII prevents a school district, 

in the exercise of its professional judgment, from preferring one 

equally qualified teacher over another for a valid educational 

purpose. 

 Accordingly, I respectfully dissent. 

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

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

Nos. 94-5090 and 94-5112 

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

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

those of each of my dissenting colleagues. 

 I would only add that we should be mindful of the 

effects the majority's approach will impose upon legitimate, 

thoughtful efforts to redress the vestiges of our Nation's 

history of discrimination in the workplace and in education; 

efforts which, in seeking to achieve pluralism and diversity, 

have helped define and enrich our offices and institutions, and 

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

opportunity to those who have "been excluded from the American 

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

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

always thought Title VII was intended to accomplish. More 

importantly, as Chief Judge Sloviter notes, these goals are 
plainly supported by the statute's legislative history. Thus, 

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

considered in remedying a history of intentional discrimination 

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

fundamentally at odds with the overriding goals of the statute. 

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

construction of Title VII is readily apparent when one 

contemplates the myriad of difficult decisions that employers 

across the nation face everyday. 

 Somewhere out there in the real world, for example, 

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

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

intentional discrimination in hiring but, due to economic 

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

the first and only black associate to work in its prestigious 

anti-trust department, or his equally qualified white 

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

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

damaging business decision because it would negate the large 

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

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

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

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

associate. 

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

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

of management prerogative which is totally consistent with the 

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

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

demonstrates that the statute was not intended to place 

unnecessary limits upon "management prerogatives"). After it 

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

firm will be forced to disregard its own better business 

judgment, forsake its recent recruiting successes among 

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

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

Title VII liability and an enormous damage award. 

 At times, a private college, with a handful of 

minorities on its faculty and with no history of intentional 

discrimination in hiring, is faced with the unenviable task of 

deciding which of two young associate professors with 

indistinguishable records to grant tenure in a particular 

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

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

factors and finding them in equipoise, the tenure committee may 

decide to offer the position to the Latino associate professor 

because there has never been a tenured Latino professor in any 

department at the college, and because it believes his presence 

at the college will be a significant benefit to the entire 

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

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

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

at 208 (noting that the plan was valid under 

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

 But again, the majority's rationale will thwart the 

college's ability to rely upon its independent judgment in 

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

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

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

exercised) by resorting to a coin-flip. 

 One could cite countless other examples of the 

significant and ultimately counterproductive effects of the 

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

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

thoughtful, deliberative processes employed by such a law firm or 

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

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

diverse faculty for its students was in furtherance of Title 

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

stereotypical categorizations which in turn lead to future 

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

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

it was laudable. 

 I believe the majority's decision eviscerates the 

purpose and the goals of Title VII. I respectfully

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

Nos. 94-5090 & 94-5112 

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

LEWIS, Circuit Judge join. 

 I join each the opinions of my dissenting colleagues, 

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

considerations in our analysis. "The prohibition against racial 

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

against the background of the legislative history of Title VII 

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

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

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

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

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

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

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

meant that the business department would retain the only Black 

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

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

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

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

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

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

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

we feel that our student population is culturally diverse and 

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

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

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

Title VII was intended to strike down such an action. 

 As Chief Judge Sloviter points out, the majority's 

ruling is based upon an interpretation of United Steelworkers v. 
Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 

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

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

dissenting). The majority's conclusion that affirmative action 

plans not limited to attempts to remedy past discrimination run 

afoul of Title VII simply ignores the legislative history that 

Weber and Johnson require us to consider. 

 Given the interpretation of [Title VII] the 

 Court adopted in Weber, I see no reason why 

 the employer has any duty, prior to granting 

 a preference to a qualified minority 

 employee, to determine whether his past 

 conduct might constitute an arguable 

 violation of Title VII. Indeed, in some 

 instances the employer might find it more 

 helpful to focus on the future. Instead of 

 retroactively scrutinizing his own or 

 society's possible exclusions of minorities 

 in the past to determine the outer limits of 

 a valid affirmative-action program -- or 

 indeed, any particular affirmative-action 

 decision -- in many cases the employer will 

 find it more appropriate to consider other 

 legitimate reasons to give preferences to 

 members of under-represented groups. 

 Statutes enacted for the benefit of minority 

 groups should not block these forward-looking 

 considerations. 

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

particularly true in the field of education where young people 

are developing opinions and beliefs that will determine their 

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

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

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

in making a very difficult choice between two equally fine 

teachers. 

 Similar consideration of an employee's sex has been 

upheld in Johnson. There, the Court stated: 

 We therefore hold that the Agency 

 appropriately took into account as one factor 

 the sex of [the employee] in determining that 

 she should be promoted to the road dispatcher 

 position. The decision to do so was made 

 pursuant to an affirmative action plan that 

 represents a moderate, flexible, case-by-case 

 approach to effecting a gradual improvement 

 in the representation of minorities and women 

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

 fully consistent with Title VII, for it 

 embodies the contribution that voluntary 

 employer action can make in eliminating the 

 vestiges of discrimination in the workplace. 

 

 480 U.S. at 641-42. Thus, I disagree with the majority's 
conclusion that "there is no congressional recognition of 

diversity as a Title VII objective requiring accommodation." 

Maj. Op. at 24. 

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

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

loudly proclaims the evil that can spring from such practices, 

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

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

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

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

attempting to do it, runs afoul of a Congressional enactment 

cloaked in the legislative history recounted herein, and in the 

opinions of my colleagues. 

 Not that long ago the President's Commission on Civil 

Disorders (the "Kerner Commission") warned that "[o]ur nation is 

moving toward two societies, one black, one white -- separate and 

unequal." Report of The National Advisory Commission on Civil Disorders, 

at 

1 (March 1, 1968). Some may view the Board's efforts here as yet 

another push in that direction. Indeed, if we were writing upon a 

clean slate that would no doubt be true. But of course, we do 

not do that. The shadows and images that moved Congress to enact 

Title VII in 1964 are already etched into our slate, and they 

define the reality that should guide our analysis. The Board has 

responded to those shadows with an action that is a narrow, 

individualized and reasoned attempt to foster respect for 

diversity. Because that is consistent with the purposes of Title 

VII, I respectfully dissent.