High Court Will Rule On Merits Of Diversity

Piscataway Schools decided to layoff Sharon Taxman in 1989 instead of her equally-qualified black co-worker. With this single case, the Supreme Court may make a pivotal ruling on affirmative action this year.

The American Council on Education (ACE), along with 24 related organizations, asked the Court in a recent brief to confine the scope 'of its decision to the virtually unknown New Jersey school district-and far away from university admissions committees.

But many fear the Court may not heed these pleas. Recent court cases and new state laws nationwide have challenged affirmative action and with it the ability of colleges and universities to use race as a criteria in admissions.

The Court sanctified race as an admissions factor in 1978 in the landmark University of California v. Bakke decision. Piscataway Board of Education V. Taxman threatens to overturn Bakke.

The case is on appeal from the Third Circuit, which ruled that the board could never use diversity as a reason for making employment decisions based on race. The brief asks the Court to "reject the unnecessarily broad pronouncement" made by the lower court.

The Court could rule at one of three levels of scope, from very narrow to quite broad. It could limit its decision to the Piscataway Board of Education; rule on the employment issues in the case; or speak at the most general level about affirmative action.

Proponents of racial preferences are fearful the Court will choose the second or third option. Last year, the U.S. Third District Court decided in Hopwood v. the University of Texas that the quota system employed by the Texas Law School was illegal, but it didn't stop there. The Third District judge also ruled that all racial preferences in admissions are unconstitutional.

The Supreme Court refused to hear that case, leaving the Hopwood ruling as the law of the land in three states. Because a different standard existed in the rest of the country, many theorized that the Court was waiting for a better case with which to make a definitive ruling on affirmative action.

"If I had to express a hunch, the fact that the Court took it suggests that some of the justices want to resolve these issues," said Daniel Steiner, an adjunct lecturer in public policy at the Kennedy School of Government and a former Harvard general counsel.

Steiner wrote a significant portion of the renowned amicus curiae brief in Bakke, using Harvard's admissions procedure as an example of how diversity can play a role in higher education. The brief so impressed the Court that Harvard was cited in the majority decision as an example of how diversity can be used appropriately as a criteria.

"I am not extremely hopeful that we're going to come out very well on all of this. I hope I'm wrong," Steiner said.

The associations present a forked argument, at once asking the Court not to consider diversity broadly while continuing to argue for diversity's benefits.

This tension reflects an anxiety many feel over this case, several attorneys and Court observers said.

"The Piscataway case is not a great case-it's a lousy case," Steiner said. "You urge the Court to support the state's position but it's essential to say, 'Be careful how you decide against them because there are some important values we want to preserve here.'"

Most of the brief is spent advocating the merits of diversity in higher education.