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Problems in Piscataway

Affirmative Action Defenders Wrongly Fail to Embrace a Case

By David F. Browne

Sharon Taxman, who is white, and Debra Williams, who is black, both worked in the business department of a Piscataway, N.J., high school. Fiscal hardship required the school to trim the business department by one position. Although Taxman and Williams had equal seniority, the school decided to retain Williams, arguing that she lent racial diversity to the faculty.

The Justice Department under President Bush brought suit against the Piscataway Board of Education for having violated Title VII of the Civil Rights Act of 1964, which prohibits race-conscious employment decisions. Citing Title VII, a Federal Appeals Court ruled that Piscataway's practices were illegal insofar as they did not remedy any actual discrimination that Williams had suffered. The decision was appealed all the way to the Supreme Court.

Interpreted literally, Title VII prevents firms from considering race as a factor in hiring. Created to protect minorities from discrimination, this provision of the Civil Rights Act has therefore not been invoked against affirmative action programs that favor minorities. Affirmative action supporters feared that with political tides in the United States shifting to the right, the Taxman case would give the court the opportunity to codify this shift--eradicating the widespread use of affirmative action policies.

Anticipating that a conservative court would at the very least find Taxman's dismissal unjust, defenders of affirmative action implored the justices to confine their judgment to the case at hand. In essence, trying to cut their losses, many liberals urged the court to strike down affirmative action as it affected Taxman and Williams but to withhold judgment on racial preferences as a whole. As time passed, civil rights groups grew increasingly uneasy. In November, a coalition of such groups agreed to finance a settlement, effectively making the case and its constitutional dilemmas disappear for the time being.

These civil rights groups were not alone in their reluctance to defend affirmative action as practiced in Piscataway. The Clinton Administration (leery of the abolition of a system the President had pledged "to mend, not end") had expressed hope that the consideration of the Taxman case would not include a decision on the "extraordinarily broad issue" of affirmative action. Likewise, pundits who usually enthusiastically support affirmative action shied away from this case. New York Times Columnist Bob Herbert labeled Piscataway v. Taxman "the wrong case." Herbert argued that the case was unrepresentative of affirmative action, contending that Williams was better qualified, independent of race: Williams has a master's degree in business education, whereas Taxman boasts no advanced degree. Yet, while it may be true that Piscataway could have avoided affirmative action, the fact remains that the school district did utilize racial preferences.

The Piscataway case is a clear example of affirmative action backers abandoning their convictions when confronted with real-world battles. Whether they saw it as a lost cause or simply could not stomach the harsh repercussions affirmative action can have for some, conceding the case undermined their credibility. Defenders of affirmative action would do well to embrace cases like this one.

Any affirmative action supporter accepts race as a factor in an application process. Minorities should then be given an edge in the admissions processes of schools and the personnel decisions of firms. To illustrate the sincerity of their commitment, affirmative action activists generally admit that minority candidates (provided they have met certain standards) will be accepted in lieu of whites with what have traditionally been considered better credentials. Race, any defender of affirmative action would agree, can compensate for the relative shortcomings that are both the vestiges of past discrimination and the result of current inequality.

The corollary to the idea that race can override deficiencies is that if all other things are equal, the minority candidate should be chosen. This eminently defensible case, in which race is a mere tiebreaker and not a be-all-and-end-all that wakes conservatives in a cold sweat, is the Taxman case. Seniority being equal, the Piscataway School Board chose the woman who lent diversity in addition to business savvy.

Even without a decision from the Supreme Court, we in favor of affirmative action need to engage our critics in debate. But a fruitful debate will only come to pass when we in the affirmative action lobby realize that cases such as Taxman are consistent with our philosophy--when we recognize them as defensible implementations and not as aberrations.

Those who would defend the Taxman case in theory but who sought a settlement for political purposes can claim but a modest victory. By burying Taxman, affirmative action supporters only succeeded in postponing their day of reckoning before the high court. Despite their deep pockets, civil rights groups will eventually have to engage their opponents in debate instead of paying them off with a handsome settlement.

David F. Browne '01 lives in Wigglesworth Hall.

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