Affirmative Action Awash in Confusion: Backward-Looking-Future-Oriented Justifications for Race-Conscious Measures

The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, concluding that Title VII permits race-based decision-making only for the narrow purpose of remedying the present effects of past discrimination. This reading of Title VII strongly implies that Title VII may limit a public institution’s race-based decision-making beyond the limitations imposed by the Equal Protection Clause of the Fourteenth Amendment. Not one Supreme Court Justice has ever articulated this position before. In fact, the Court in Johnson v. Transportation Agency concluded that Title VII gave greater latitude to public employers to use race-based voluntary affirmative action measures than did the Equal Protection Clause. In Taxman, the Board of Education petitioned for certiorari, which the Supreme Court granted on June 26, 1997. The case, which was scheduled for oral argument in January, 1998, settled on November 21, 1997. In this article Professor McGinley concludes that if given the opportunity to decide an affirmative action case, the Supreme Court would not deal a mortal blow to affirmative action, but would arrive at a middle ground that opponent and proponents of affirmative action could accept. This article assumes that Taxman had not settled and that the Court had overturned the Third Circuit’s decision. Based on this assumption, Professor McGinley writes the Court’s opinion, overturning the Third Circuit Court of Appeals decision and any concurring or dissenting opinions based on how the Justices would decide the case. Professor McGinley also provides commentary explaining the choices she faced. The article explores questions concerning the facts of the case, the respective burdens of proof, summary judgment law, the proper interpretation of Title VII, the interplay between Title CII and the Equal Protection Clause, the various meaning of “remedial” purpose, whether a non-remedial purpose was sufficient for race-based decision making under Title VII, whether employment discrimination law differs in an educational setting, whether a layoff rather than a hiring decision would make a difference affecting the outcome, the changing political focus of the federal courts and institutional competence