```

[Congressional Record Volume 141, Number 85 (Monday, May 22, 1995)]
[Senate]
[Pages S7117-S7118]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                          THE PISCATAWAY CASE

  Mr. DOLE. Mr. President, as President Clinton continues his review of 
Federal affirmative action policies, one of his top priorities should 
be to take a very close look at the Justice Department's brief in the 
Piscataway Board of Education case. This case is now pending before the 
third circuit court of appeals.
  In Piscataway, the Justice Department has taken the position that, 
when an employer is laying off employees, a worker can be fired from 
her job because of her race. That's right: Our Nation's top law 
enforcement agency says that it is perfectly legal, as a way to 
preserve workforce diversity, to tell a person that she can no longer 
keep her job because she happens to have the wrong skin color.
  This position is even too much for the editorial writers at USA 
Today, normally staunch defenders of affirmative action, who argue in a 
powerful editorial that the Justice Department's actions in Piscataway 
are ``a tale of values misplaced.''
  Unfortunately, President Clinton has publicly embraced the Justice 
Department's misguided position. Hopefully, the President will rethink 
this position before he completes his affirmative action review.
  Mr. President, I ask unanimous consent that the USA Today editorial 
be reprinted in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                            [From USA Today]

            Firing Based on Race Not Real Affirmative Action

       Can you legally lose your job because of your race?
       The answer seems obvious: No. That's why we have civil 
     rights laws. But for high school teacher Sharon Taxman, the 
     answer was a cavalier yes. And therein lies a tale of values 
     misplaced.
       Six years ago, a financially squeezed school board in 
     Piscataway, N.J., laid Taxman off, citing her race, white, as 
     the sole reason. She sued, and the case has been marching 
     toward the Supreme Court ever since. A ruling by the U.S. 
     Court of Appeals, the last interim step, is due any day.
       By next year, the case could affect affirmative action 
     policies nationwide and even influence the presidential 
     election.
       Taxman's story offers a clear-cut lesson in the rights and 
     wrongs of affirmative action--a story of two teachers linked 
     by fate and separated by race.
       It began on the first day of school in 1980 when Taxman and 
     Debra Williams, who is black, went to work as business 
     teachers in Piscataway. Both worked hard and earned high 
     marks for performance. They even won tenure the same day.
       Then came 1989. The school board, under financial pressure, 
     needed to downsize, as so many governments and businesses 
     across the nation have in recent years. The business 
     education department was required to cut 
     [[Page S7118]] one teacher, and the choice came down to 
     Taxman or Williams, whose qualifications amounted to a flat-
     footed tie.
       What to do? By the board's own rules and past practice, 
     ties were to be broken by a coin flip. But the board wanted 
     to preserve racial diversity, and Williams was the 
     department's first and only black teacher. So Taxman got the 
     pink slip. And she sued.
       Her case was seen as so important by the U.S. Justice 
     Department that it jumped in to help, suing the school board 
     for violating the 1964 Civil Rights Act, which prohibits 
     racial and other discrimination.
       The courts agreed. But last year the Clinton Justice 
     Department did something extraordinary. It switched sides, 
     defending the school board's choice of Williams as a 
     legitimate affirmative action.
       As the controversy over affirmative action has grown, the 
     administration has scrambled to downplay its role, fearing 
     reprisal at the polls. And well it should.
       Far from helping affirmative action, approaches like 
     Piscataway's put sensible affirmative action at risk.
       Unlike affirmative action complaints about hiring and 
     promotion--inevitably complex and arbitrary decisions--this 
     one has a clear, identifiable victim.
       Furthermore, all sides agree the school board was under no 
     pressure to remedy any previous discrimination or to correct 
     any imbalance in minority employment--the starting point for 
     affirmative action. In fact, the school exceeded state goals 
     for minority representation on its teaching staff.
       Most importantly, the board could have achieved its goal 
     without violating anyone's rights. It could have come up with 
     a more creative redeployment of teachers to achieve the same 
     results. Or it simply could have offered a financial 
     inducement to Taxman. That's a common practice, and she was 
     willing to accept.
       Instead, as its first resort, it chose to lay Taxman off 
     solely because of her race. And that is wrong, no matter what 
     race it is.
       Polls show almost no public support for such action. And 
     the courts have upheld the rights of employers to make 
     choices based on race alone only to remedy previous 
     inequities.
       Taxman, who spurns interviews, never intended to become a 
     landmark test of firing as an affirmative action tool. She 
     just wanted to teach. When Piscataway offered to reinstate 
     her in the business education department in 1993, she gladly 
     returned.
       But the ruckus didn't need to happen. The school board's 
     well-intentioned ends didn't justify its means.
       For too many years, millions of women and minorities were 
     denied equal opportunity and pay because of discrimination in 
     education and in the workplace. Affirmative action has done 
     much to remedy that.
       Firing Sharon Taxman righted no wrong. It created one. That 
     is not justice by any reasonable definition.
     

                          ____________________
```