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A Rationale for Discrimination

Deval Patrick's handiwork.

11:00 PM, Feb 20, 2008 • By TERRY EASTLAND
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BARACK OBAMA IS GUILTY as charged by the Clinton campaign--of using without attribution words uttered by Deval Patrick during his successful run last year for the governorship of Massachusetts. Patrick, a friend of Obama's and one of his campaign chairmen, is hardly aggrieved about this, nor do Democratic primary voters seem to care. The "issue" is going nowhere.

But since Patrick's name has come up, it's worth recalling that while serving in the Clinton administration as assistant attorney general for the civil rights division, he embraced a truly radical view of civil rights law--one that would permit employment discrimination in the name of "racial diversity."

The issue arose in a case called Piscataway v. Taxman. The Piscataway (N.J.) Board of Education was faced with a decline in students in the high school's business ed department. It decided to lay off one of the ten teachers in the department, and the choice was between two equally qualified teachers, one, Barbara Taxman, who was white, and the other, Debra Williams, who was black. Not wanting to lay off Williams, as then there would be no black teachers in the unit, the board invoked the need for "racial diversity" in deciding to let Taxman go. Taxman then sued under Title VII of the Civil Rights Act of 1964, which forbids discrimination in employment. The Justice Department, first under George Bush and then under Bill Clinton, handled Taxman's complaint, winning in district court in early 1994.

But that was before Patrick was settled in as assistant attorney general. In one of his first decisions, he abandoned Taxman and, the school board having appealed, asked the Third Circuit whether he could file on behalf of the board. Patrick was widely criticized for the unusual move, by not only Republicans but also Democrats, and the Third Circuit wasn't amused, ending Justice's role as the plaintiff. The Third Circuit (with a certain Judge Alito joining the majority) sided with Taxman, whereupon the school board appealed to the Supreme Court. The Court wound up asking Justice for its view in the case, and Justice, with Patrick now gone and wiser heads prevailing, submitted a brief arguing on very narrow grounds for Taxman.

If you don't remember a Supreme Court ruling in Piscataway v. Taxman, there's a reason you don't: The Court never decided the case because it literally ceased to be a case. Fearful of a High Court decision in Taxman's favor, a hastily formed coalition led by Jesse Jackson and Kweisi Mfume (then president of the NAACP) dunned race-defensive corporations for the money necessary (more than $300,000) to engineer a settlement between Taxman and the Piscataway board.

The case stands as one of the more embarrassing exercises in governance during the Clinton administration. But of note remains Patrick's view of Title VII.

By its text and legislative history, Title VII is a colorblind statute: an employer may not use race in making employment decisions (including whom to lay off). In a 1979 case the Supreme Court donned an activist cap in rewriting Title VII to permit racial preferences in remedial circumstances. But the Piscataway board didn't follow that precedent--it denied, in fact, that there was anything to remedy--but instead invoked diversity in the sense that it wanted even a small subset of its faculty to reflect the racial diversity of the community and the student population. Patrick contended that this diversity rationale was available to the school board simply because the Supreme Court had never foreclosed it. "There is no case that anyone can point to that clearly says [the school board] did violate" Title VII, he told a congressional committee. For Patrick racial diversity encompassed all racial and ethnic groups, not just "traditionally segregated" or "underrepresented" groups. As he explained, "diversity doesn't favor one race over another but must be viewed "in the circumstances." Thus, "potentially, the same interest in faculty diversity could tip the balance in favor of a white teacher if the composition of a department would otherwise have included no white teacher."

Bill Clinton agreed with Patrick's view of Title VII. During a 1994 press conference, he said that "As long as 'the rationale' runs both ways, or all ways, I support [Patrick's] decision. That is, [if] there are other conditions in which . . . there were only one white teacher on the faculty in a certain area and there were two teachers [who] were equally qualified, and the school board . . . decided to keep the white teacher also to preserve racial diversity." That would mean, of course, that such a board would lay off the non-white teacher. In the example of Piscataway, that would have been the black teacher, Debra Williams.