No. 96-679 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 PISCATAWAY TOWNSHIP BOARD OF EDUCATION, PETITIONER v. SHARON TAXMAN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting Assistant Attorney General SETH P. WAXMAN Deputy Solicitor General WILLIAM R. YEOMANS Acting Deputy Assistant Attorney General IRVING L. GORNSTEIN Assistant to the Solicitor General DAVID K. FLYNN LESLIE A. SIMON Attorneys Department of Justice Washington, D.C. 20530-0001 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether Title VII prohibits all non-remedial, race-conscious affirmative action in employment. 2. Whether Title VII prohibits race-conscious af- firmative action in employment that is designed to foster diversity in the faculty of a department of a high school. 3. Whether Title VII prohibits the use of race as a factor in a layoff decision when the purpose of using race is to foster diversity in the faculty of a depart- ment of a high school. 4. Whether respondent was entitled to full back- pay, when there was a 50% chance that she would have been laid off if her race had not been considered. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Statement . . . . 1 Discussion . . . .8. Conclusion . . . . 20 TABLE OF AUTHORITIES Cases: Adarand Constructors, Inc. v. Pens, 115 S. Ct. 2097(1995) . . . . 9 Barhold v. Rodriguez, 863 F.2d 233(2d Cir. 1988) . . . . 10 Detroit Police Officers' Ass'n v. Young, 608 F.2d 671(6th Cir. 1979), cert. denied, 452 U.S. 938 (1981) . . . . 10 Firefighters v. Stotts, 467 U. S. 561(1984) . . . . 17 General Elec. Co. v. Gilbert, 429 U. S.125 (1976) . . . . 13 Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100(6th Cir.), cert. denied, 506 U.S. 830(1992) . . . . 11 Johnson v. Transportation Agency, 480 U.S. 616 (1987) . . . . 7, 12, 17 Local 28 0f Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S .421 (1986) . . . . 17 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547(1990), overruled in part on other grounds, Adarand Constructors, Inc. v. Pens, 115S. Ct. 2097 (1995) . . . . 5-6 Minnick v. California Dep't of Corrections, 157 Cal. Rptr. 260 (Ct. App. 1979), cert. dismissed, 452 U.S. 105 (1981) . . . . 10 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) . . . . 5, 11-12, 14 Talbert v. City of Richmond, 648 F.2d 925 (4th Cir. 1981), cert. denied, 454 U.S. 1145 (1982) . . . . 10 United States v. Paradise, 480 U. S. 149(1987) . . . . 17 United Steelworkers v. Weber, 443 U.S. 193 (1979) . . . . 5, 13, 14, 17 (III) ---------------------------------------- Page Break ---------------------------------------- Cases-Continued Page Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996), cert. denied, 117 S. Ct. 949 (1997) . . . . 11 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) . . . . 12, 17 Zaslawsky v. Board -of Educ., 610 F.2d 661 (9th Cir. 1979) . . . . 11 Constitution and statutes: U.S. Const. Amend. XIV (Equal Protection Clause) . . . . 3 Civil Rights Act of 1964, 42 U.S.C. 2000a et seq Tit. VI, 42 U.S.C. 2000d . . . . 14 Tit. VII, 42 U.S.C. 2000e . . . . passim Miscellaneous: 110 Cong. Rec. 6548 (1964) . . . . 13 Office of Associate Attorney General Memorandum to General Counsels, Post-Adarand Guidance on Affirmative Action in Federal Employment (Feb. 29, 1996) . . . . 9 Office of Legal Counsel Memorandum to General Counsels, Re: Adarand (June 28, 1995) . . . . 9 S. Rep. No. 415, 92d Cong., 1st Sess. (1971) . . . . 7-8, 14-15 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-679 PISCATAWAY TOWNSHIP BOARD OF EDUCATION, PETITIONER v. SHARON TAXMAN ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. STATEMENT 1. In May 1989, the Board of Education of the Township of Piscataway (petitioner) decided to elimi- nate a position in the Business Education Depart- ment of the Piscataway High School. Pet. App. 12a. Under New Jersey law, petitioner was required to lay off tenured faculty in reverse order of seniority, except in the case of a tie. Ibid. The two people with the least seniority in the Business Education Depart- ment were respondent Sharon Taxman, who is white, and Debra Williams, who is black, and they had equal (1) ---------------------------------------- Page Break ---------------------------------------- 2 seniority. Ibid. Williams was the only minority teacher in the Business Education Department. Ibid. In prior layoffs, petitioner had broken seniority ties through random selection. Pet App. 12a-13a. This time, petitioner decided to invoke its affirmative action plan. Id. at 13a. That plan specified In all cases, the most qualified candidate will be recommended for appointment. However, when candidates appear to be of equal qualification, candidates meeting the criteria of the affirmative action program will be recommended. Id. at 11a. The plan was applicable to "every aspect of employment including . . . layoffs," and blacks were among those " meeting the criteria of the affirmative action program." Ibid. After considering such factors as classroom per- formance, evaluations, volunteerism, and certifica- tions, petitioner determined that respondent and Williams were equally qualified. Pet. App. 13a. At that point, petitioner did not feel bound to make its de- cision on the basis of the affirmative action plan. Ibid. It made a discretionary decision to do so, however, because it wanted to retain a minimum level of diver- sity in the Business Education Department. Ibid. Petitioner therefore laid off respondent and retained Williams. Ibid. That was the first time petitioner had used its affirmative action plan in making an employment decision since the plan's adoption in 1975. Def. C.A. APP, 191. When petitioner discharged respondent, the per- centage of black teachers employed by petitioner ex- ceeded the percentage of black teachers in the qualified labor pool, Pet. App. 11a-12a, and petitioner has never sought to justify its decision to lay off re- ---------------------------------------- Page Break ---------------------------------------- 3 spondent rather than Williams as a remedial measure. Pet. 5 & n.2. Instead, petitioner has relied on the educational benefits of a diverse faculty. Pet. 5. Petitioner's president articulated those benefits as follows: In my own personal perspective I believe by retain- ing Mrs. Williams it was sending a very clear message that we feel that our staff should be culturally diverse, our student population is cul- turally diverse and there is a distinct advantage to students, to all students, to be made-come into contact with people of different cultures, different background, so that they are more aware, more tolerant, more accepting, more understanding of people of all background. Pet. App. 14a. 2. After respondent was laid off, she filed a charge with the Equal Employment Opportunity Commis- sion, alleging that she had been subjected to dis- crimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2. Pet. App. 15a. The charge was referred to the Department of Justice, and the United States filed a Title VII suit against petitioner. Ibid. Respondent intervened and also asserted a claim under Title VII. Ibid. Respondent did not assert a claim under the Equal Protection Clause of the Fourteenth Amendment. Id. at 15a n.5 1. ___________________(footnotes) 1 Respondent also asserted a claim under the New Jersey Law Against Discrimination (NJLAD). The lower courts con- cluded that the NJLAD incorporates Title VII standards, Pet. App. 47a, 99a n.5, and the petition does not raise any question concerning the correctness of that conclusion. We therefore do not discuss respondent's NJLAD claim further. ---------------------------------------- Page Break ---------------------------------------- 4 On cross-motions for summary judgment, the district court found that petitioner had violated Table VII. Pet. App. 88a-124a. The court held that peti- tioner's asserted purpose of promoting diversity in a department of a high school for educational reasons is not a permissible basis for affirmative action under Title VII. Id. at 109a, 116a-l17a. The court also held that, even if department diversity were a valid Title VII goal, petitioner's affirmative action plan was "overly intrusive to the rights of nonminorities," id. at 123a, because it applied to layoffs and lacked a termination point. Id. at l17a-123a. The court awarded respondent $123,240.57 in back- pay, $10,774.05 for the costs of obtaining insurance coverage, $10,000 in compensatory relief, and retro- active seniority. Pet.App. 85a-87a. By the time of the district court's remedial order, respondent had been rehired, so there was no need for an order reinstating her. Id. at 16a. By then, petitioner was also in the process of voluntarily abandoning its affirmative action policy to the extent that it authorized the use of race in making employment decisions. Def. Tr. Br. 2. The district court therefore found "no likelihood that the conduct at issue in this case will recur, and thus * * * no need for an injunction." Pet. App. 85a n.1. Petitioner formally abandoned its affirmative action policy in 1994. Resp. Br. in Opp. 6. Because petitioner was still subject to a money judgment, it appealed. The United States sought leave to file a brief as amicus curiae supporting re- versal of the judgment. Pet. App. 16a. That brief stated (at 11) that, "[u]pon review of the position that we took below, we have concluded that the United States advocated-and the district court adopted-too limited a view of the permissible scope of lawful ---------------------------------------- Page Break ---------------------------------------- 5 affirmative action under Title VII." The court of appeals denied the United States' motion to partici- pate as amicus curiae. Instead, it treated the motion as a request to withdraw as a party, which it granted. Pet. App. 16a. 3. The court of appeals, sitting en bane, affirmed the judgment of the district court. Pet. App. 7a-83a. The court held that affirmative action plans are valid under Title VII only when they (1) "have pur- poses that mirror those of the statute" and (2) do not "unnecessarily trammel the interests" of non- minority employees. Id. at 9a (quoting United Steelworkers v. Weber, 443 U.S. 193,208 (1979)). The court concluded that petitioner's policy did not satisfy either requirement. Ibid. With respect to the first requirement, the court stated that, "unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of the statute." Pet. App. 29a. The court noted that petitioner's "sole purpose in applying its affirmative action policy in this case was to obtain an educational benefit: and that petitioner's plan was not adopted "to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities." Id. at 44a. The court therefore conc- luded that petitioner violated Title VII when it invoked its affirmative action plan to lay off respon- dent. Ibid. The court rejected petitioner's reliance on cases addressing the constitutionality of non-remedial affirmative action, such as Regents of University of California v. Bakke, 438 U.S. 265, 311-315 (1978) (Powell, J.), and Metro Broadcasting, Inc. v. FCC', 497 U.S. 547,568 & n.15 (1990), over ruled in part on other grounds by Adarand Constrictors, Inc. v. Pena, 115 ---------------------------------------- Page Break ---------------------------------------- 6 S. Ct. 2097 (1995). Pet. App. 34a-43a. The court of appeals stated that, "[w]hile the Supreme Court may indeed at some future date hold that an affirmative action purpose that satisfies the Constitution must necessarily satisfy Title VII, it has yet to do so." Id. at 36a-37a. The court of appeals was also "unper- suaded that the Equal Protection case law validates [petitioner's] asserted goal of racial diversity." Id. at 37a. The court of appeals also concluded that peti- tioner's affirmative action policy unnecessarily tram- meled the interests of non-minorities. Pet. App. 44a- 47a. The court criticized the plan because it did not address "what degree of racial diversity * * * is sufficient" (id. at 45a); the court perceived the plan to be "an established fixture of unlimited duration" (ibid.); and the court was "convinced that the harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe that [petitioner's] goal of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion." Id. at 46a. Judge Stapleton filed a concurring opinion, agree- ing that "non-remedial affirmative action employment decisions cannot pass muster under Title VII. " Pet. App. 53a. He expressed no view, however, on whether petitioner's "actions unnecessarily trammel[led] [respondent's] interests." Ibid. Four judges dissented. Pet. App. 53a-83a. Chief Judge Sloviter (joined by Judges Lewis and McKee) concluded that affirmative action is permissible under Title VII not only when it remedies prior employment discrimination, but also when it furthers Title VII's broader "goal of eliminating the causes of discrimina- tion." Id. at 63a. Judge Sloviter noted that racial ---------------------------------------- Page Break ---------------------------------------- 7 diversity in the classroom is "an important means of combatting the attitudes that can lead to future patterns of discrimination." Id. at 64a. She therefore concluded that petitioner's "decision to obtain the educational benefit to be derived from a racially diverse faculty is a permissible basis for its voluntary affirmative action under Title VII scrutiny." Id. at 69a. Judge Sloviter also concluded that petitioner's layoff decision did not unnecessarily trammel respon- dent's interests. Pet. App. 69a-74a. Because respon- dent had "no more than a fifty-percent chance of not being laid off; Judge Sloviter reasoned, respondent did not have a " legitimate and firmly rooted expecta- tion' of no layoff." Id. at 69a (quoting Johnson v. Transportation Agency, 480 U.S. 616, 638 (1987). Judge Sloviter also found that petitioner's affirma- tive action policy had a minimum impact on non- minorities, because it applied only "in the rare instances in which two candidates are of different races but equal qualifications and the department in question is not already diverse." Id. at 72a. Judge Scirica (joined by Chief Judge Sloviter) concluded that "education presents unique concerns" that permit a school district, "in the exercise of its professional judgment," to prefer "one equally qualified teacher over another for a valid educational purpose." Pet. App. 75a-76a. Judge Lewis (joined by Judge McKee) concluded that petitioner's "decision to consider race, among other factors, in an attempt to ensure a diverse faculty for its students was in furtherance of Title VII's goal of breaking-down 'existing misconceptions and stereotypical catego- rizations which in turn lead to future patterns of discrimination.'" Id. at 79a (quoting S. Rep. No. 415, ---------------------------------------- Page Break ---------------------------------------- 8 92d Cong., 1st Sess. 12 (1971)). And Judge McKee (joined by Chief Judge Sloviter and Judge Lewis) concluded that petitioner had made a "narrow, indi- vidualized and reasoned attempt to foster respect for diversity" that was "consistent with the purposes of Title VII." Id. at 83a. DISCUSSION By holding that Title VII prohibits all non-remedial affirmative action in employment, the court of appeals incorrectly decided an issue of broad national signifi- cance. This case, however, is not an appropriate vehicle for resolving that issue. Petitioner's asser- tion of an interest in fostering diversity in a single department of a high school and petitioner's use of race in a layoff decision to further that interest make this an unrepresentative case of non-remedial affirmative action. This Court should await a case that presents the question of the validity of non- remedial affirmative action in a more typical Title VII context. The unusual facts of this case, along with the lack of any factual record or findings on the need for diversity in the particular department at issue, also create a significant possibility that the Court could conclude that the layoff decision in this particular case was unjustified without deciding the broader question whether Title VII permits non-remedial af- firmative action. Moreover, because petitioner imple- mented its affirmative action plan only once in approximately 18 years, and then voluntarily aban- doned it, petitioner is not well positioned to present the question whether Title VII permits non-remedial affirmative action. The petition for a writ of certio- rari should therefore be denied. ---------------------------------------- Page Break ---------------------------------------- 9 1. Following this Court's decision in Adarand Constructors, Inc. v. Pens, supra, the Department of Justice issued an extensive memorandum to federal agencies setting forth the standards that this Court and lower courts have established for assessing the constitutional limits on governmental affirmative action. Office of Legal Counsel Memorandum to General Counsels, Re: Adarand (June 28, 1995) (OLC Mere.). That advice addressed the application of strict scrutiny to non-remedial affirmative action and offered three important guiding principles drawn from the decisions of this Court and lower courts. First, "to the extent affirmative action is used to foster racial and ethnic diversity, the government must seek some further objective, beyond the mere achievement of diversity itself." OLC Mere. 16. Second, in some settings, in order to perform its mission, a government entity may have a compelling need for a diverse workforce that justifies the use of racial considerations. Id. at 18-23. And third, to justify the use of race, there must be a convincing factual basis for the conclusion that the use of race is needed to promote the government's mission; a broad assertion of operational need is insufficient. Id. at 23. If those prerequisites are satisfied, narrowly tailored, non-remedial affirmative action can be constitutional. Subsequent detailed guidance was provided to fed- eral agencies concerning federal employment. See Office of Associate Attorney General Memorandum to General Counsels, Post-Adarand Guidance on Affirmative Action in Federal Employment (Feb. 29, 1996). In our view, affirmative action that satisfies the three prerequisites set forth above and is narrow- ly tailored to further a compelling institutional mission also complies with Title VII. ---------------------------------------- Page Break ---------------------------------------- 10 The court of appeals in this ease held that Title VII flatly prohibits all non-remedial affirmative action. Pet. App. 9a-10a, 29a-30a. The court expressly re- jected petitioner's contention that non-remedial affirmative action that satisfies constitutional stan- dards also satisfies Title VII, stating that, "[w]hile the Supreme Court may indeed at some future date hold that an affirmative action purpose that satisfies the Constitution must necessarily satisfy Title VII, it has yet to do so." Id. at 36a-37a. Under that ruling, even if an employer engages in affirmative action that satisfies the prerequisites set forth above and is therefore narrowly tailored to further a compelling institutional mission, it would violate Title VII. That holding incorrectly resolves an issue of recurring nationwide importance. a. The cases that have upheld non-remedial affirmative action under the Constitution demon- strate the harmful consequences of the court of appeals' holding. Several courts have held that local law enforcement agencies can have a compelling operational need for a diverse workforce that justifies the use of race in employment decisions. Barhold v. Rodriguez, 863 F.2d 233,238 (2d Cir. 1988); Talbert v, City of Richmond, 648 F.2d 925, 931-932 (4th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); Detroit Police Officers Ass'n V. Young, 608 F.2d 671, 695-696 (6th Cir. 1979), cert. denied, 452 U.S. 938 (1981); Minnick v. California Dep't of Corrections, 157 Cal. Rptr. 260, 268-269 (Ct. App. 1979), cert. dismissed, 452 U.S. 105 (1981). That recognition is sound. Particularly against the backdrop of racial unrest, a diverse police force may be essential to secure the public support and cooperation that is necessary for preventing and solving crime. Young, 608 F.2d at 695-696. Yet the ---------------------------------------- Page Break ---------------------------------------- 11 court of appeals' decision in this case would prevent local law enforcement agencies from using race as a factor in employment decisions, no matter how pressing the law enforcement need. Prison institutions may also be able to establish a compelling need for a diverse workforce. For exam- ple, in Wittmer v. Peters, 87 F.3d 916, 919-921 (1996), cert. denied, 117 S. Ct. 949 (1997), the Seventh Circuit recently held that the warden of a boot camp prison had a compelling interest in using race as a factor in hiring a lieutenant when the prison camp had no black supervisors, the prison population was 70% black, the staff was "expected to treat the inmates with the same considerateness, or rather lack of con- siderateness, that a marine sergeant treats recruits at Parris Island," and expert testimony established that black inmates were "unlikely to play the correc- tional game of brutal drill sergeant and brutalized recruit unless there [were] some blacks in authority in the camp." Id. at 920. Under the reasoning of the decision below, the warden's hiring decision, although narrowly tailored to further a compelling operational need, would nonetheless violate Title VII. Courts of appeals have also held that a school district may constitutionally seek to provide a racially diverse faculty at each of its schools by using race as a factor in deciding the particular school to which a teacher is assigned. E.g., Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100, 102-103 (6th Cir.), cert. denied, 506 U.S. 830 (1992); Zaslawsky v. Board of Educ., 610 F.2d 661, 663-664 (9th Cir. 1979). Such policies can serve multiple educational objec- tives: A faculty composed of persons with different backgrounds and experiences is likely to offer a wider array of educational perspectives. Regents of Univ. ---------------------------------------- Page Break ---------------------------------------- 12 of Cal. v. Bakke, 438 U.S. 265, 314 (1978) (Powell, J.). Children in the minority at a school may feel more welcome and able to learn when the staff is racially diverse. And exposing students to a diverse faculty on a daily basis can dispel stereotypes and mis- conceptions and foster mutual understanding and respect in a much more powerful and lasting way than imparting those lessons through words alone. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315 (1986) (Stevens, J., dissenting). Under the court of appeals' analysis, however, Title VII would operate as an absolute bar to the achievement of those com- pelling educational goals. b. The court of appeals' interpretation of Title VII is seriously flawed. This Court has held that Title VII and the Constitution do not always impose identi- cal standards for judging the validity of affirmative action. Johnson v. Transportation Agency, 480 U.S. 616, 627 n.6 (1987). But to the extent that there are differences, this Court's decisions suggest that the Constitution imposes greater restraints on affirma- tive action than Title VII, rather than the other way around. Ibid. Thus, affirmative action that satisfies the Constitution's most rigorous standard should even more readily satisfy Title VII. 2 ___________________(footnotes) 2 We do not suggest that affirmative action must satisfy the Constitution's most rigorous standard in order to satisfy Title VII. This Court has indicated that the evidentiary bur- den of showing a lawful remedial purpose is not as demanding under Title VII as under the Constitution, Johnson, 480 U.S. at 627 n.6, and the same may be true for non-remedial affirmative action. At the very least, however, if the constitutional standard for non-remedial affirmative action is satisfied, Title VII imposes no additional barrier. ---------------------------------------- Page Break ---------------------------------------- 13 In reaching a contrary conclusion, the court of appeals reasoned that, in order for an affirmative action plan to be valid under Title VII, its purposes must "mirror" those of Title VII. Pet. App. 9a, And the court further concluded that only a remedial purpose can mirror the purpose of Title VII. Id. at 29a. That reasoning is unpersuasive. This Court stated in United Steelworkers v. Weber, 443 U.S.193 (1970), that the purposes of the plan at issue in that case "mirror[ed] those of the statute" in that both "were designed to break down old patterns of racial segregation and hierarchy," and both were "structured to `open employment opportu- nities for Negroes in occupations which have been traditionally closed to them.' "Id. at 208 (quoting 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey)) The Court made clear, however, that it was not thereby intending to define "the line of demarca- tion between permissible and impermissible affirma- tive action plans." Ibid. Because the plan at issue in Weber did mirror Title VII's remedial purpose, there was no need to consider whether there might be other forms of affirmative action that were also consistent with Title VII. The text and background of Title VII support the conclusion that non-remedial affirmative action that satisfies strict scrutiny also satisfies Title VII. Title VII prohibits "discrimination" in employment, a term that this Court had used prior to the enact- ment of Title VII to describe unconstitutional state action. See General Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976). There is therefore every reason to believe that the Congress that enacted Title VII did not view as "discrimination" the kind of practices that would satisfy the Constitution's most rigorous equal pro- ---------------------------------------- Page Break ---------------------------------------- 14 tection standard. This Court has already held that Title VI, which was enacted at the same time as Title VII and also contains a prohibition against "dis- crimination," does not bar affirmative action that sat- isfies constitutional standards. Bakke, 438 U.S. at 287 (Powell, J.); id. at 352 (opinion of Brennan, White, Marshall, and Blackmun, JJ.) (same). There is no sound basis for reaching a different conclusion with respect to Title VII. In addition, non-remedial affirmative action that satisfies constitutional standards also mirrors a pur- pose of Title VII. The Court explained in Weber that one important purpose of Title VII was to preserve "management prerogatives" to "the greatest extent possible" consistent with achieving Congress's "ulti- mate statutory goals." 443 U.S. at 206-207. That purpose of Title VII is served by interpreting it to permit non-remedial affirmative action that is nar- rowly tailored to accomplish a compelling institu- tional need. The 1972 amendments to Title VII, which extended Title VII to state employers, further reinforce that conclusion. The legislative history to those amend- ments shows that Congress was concerned not only with the effect that discrimination has on those seeking employment opportunities with state em- ployers, but also with the broader effects that such discrimination has on the ability of state institutions to carry out their missions fairly and effectively. For example, Congress concluded that the exclusion of minorities from local law enforcement agencies "not only promotes ignorance of minority problems in that particular community, but also creates mis- trust, alienation, and all too often hostility toward the entire process of government." S. Rep. No. 415, 92d ---------------------------------------- Page Break ---------------------------------------- 15 Cong., 1st Sess. 10 (1971). And Congress concluded that the exclusion of minority teachers from educa- tional institutions profoundly affects the education of children: It is difficult to imagine a more sensitive area than educational institutions, where the youth of the Nation are exposed to a multitude of ideas and impressions that will strongly influence their fu- ture development. To permit discrimination here would, more than in any other area, tend to pro- mote existing misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination. Id. at 12. Affirmative action designed to instill trust in law enforcement and to break down racial stereo- types and misconceptions in educational institutions therefore mirrors Title VII purposes. In sum, non-remedial affirmative action that satis- fies strict scrutiny is also lawful under Title VII. The court of appeals' contrary view is based on a seri- ous misreading of Title VII and its purposes. 2. There is no conflict in the circuits on the question whether Title VII permits non-remedial af- firmative action, and this Court's resolution of the question might benefit from additional appellate con- sideration of the issue. Even in the absence of a con- flict, however, the question resolved by the court of appeals might be sufficiently important to warrant this Court's review in an appropriate case. We recommend against certiorari in this case pri- marily because factual complications make it an inap- propriate vehicle for resolving the question whether Title VII permits non-remedial affirmative action. In particular, this case is encumbered by two factors ---------------------------------------- Page Break ---------------------------------------- 16 that make it an unrepresentative example of non- remedial affirmative action in employment and that could divert attention from the main issue. Those factors are petitioner's assertion without more of an interest in department (as compared to school-wide) diversity and petitioner's use of race in a layoff deci- sion to further that interest. Each factor indepen- dently calls into question the suitability of this case as a vehicle for resolving the validity under Title VII of non-remedial affirmative action the two factors in combination decisively argue against review. a. Petitioner does not seek to justify its decision to discharge respondent rather than Williams on the ground that releasing Williams would have threat- ened its interest in school-wide diversity. Instead, petitioner seeks to justify that decision on the ground that retaining Williams was necessary to foster di- versity in the Business Education Department of the Piscataway High School. Pet. 5 & n.2. In essence, petitioner asserts that there is a compelling interest in using race to promote diversity in the department of a high school. Such a claim has not been put forward in other cases. The faculty diversity cases upon which peti- tioner relies (Pet. 22-25) upheld policies that were designed to achieve diversity in the public school as a whole; none had as a separate goal the achievement of a diverse faculty in a particular department. More- over, petitioner's evidence did not address why di- versity in the Business Education Department speci- fically, as well as diversity in the school generally, was needed to further educational goals. Whatever the reason for petitioner's failure to introduce such evidence, the absence of a record suggesting a basis for seeking diversity at the departmental level makes ---------------------------------------- Page Break ---------------------------------------- 17 this case a poor vehicle for resolving questions concerning the circumstances under which Title VII permits non-remedial affirmative action. b. Petitioner's decision to apply its affirmative action policy in the layoff context adds an additional factor counseling against review. This Court has ap- proved affirmative action in training (Weber, supra), hiring (Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 US. 421 (1986)), and promotions (John- son, supra; United States v. Paradise, 480 U.S. 149 (1987)), but has disapproved race-based layoffs of em- ployees with greater seniority than those retained. Wygant, supra Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984). And while the Court has not held that affirmative action is per se impermis- sible in a layoff context, it has not approved affirma- tive action in that context either. See Johnson, 480 U.S. at 638 (noting that while petitioner had been denied a promotion, he retained his employment); Paradise, 480 U.S. at 182 (Brennan, J.) (noting that the order upheld did "not require the layoff and dis- charge of white employees"); Sheet Metal Workers, 478 U.S. at 479 (Brennan, J.) (noting that the order upheld "did not require any member of the union to be laid off"); Weber, 443 U.S. at 208 (noting that the plan approved in that case did "not require the discharge of white workers and their replacement with new black hirees"). Against that background, and because the use of race in layoffs generally imposes a different and more visible burden on those adversely affected than the use of race at either the hiring or promotion level, recent affirmative action has ordinarily been undertaken in the hiring and promotion context. The layoff feature of this case takes it even further away ---------------------------------------- Page Break ---------------------------------------- 18 from typical non-remedial affirmative action and makes it an even less suitable vehicle for deciding the question whether Title VII operates as a bar to non- remedial affirmative action. Petitioner argues (Pet. 27) that the general con- cern about using race in layoffs does not apply in this case, because respondent and Williams were tied in seniority, they were equally qualified for the position, and the only other way to distinguish between them would have been through random selection. That argument, however, only highlights the unusual na- ture of this case and its inappropriateness as a vehicle for resolving any issue of broad significance. Peti- tioner and respondent stipulated (Pet. 2-3) that re- spondent and Williams were equally qualified for the position at issue in this case. In the real world, however, that kind of tie rarely, if ever, occurs. The stipulated record in this case may lay the foundation for a "thought provoking" law school "hypothetical," as petitioner asserts. Pet. 15. But this Court should await a case that is more representative of real-life experience. c. Petitioner's department diversity rationale and its pursuit of that goal by using race in a layoff deci- sion do not simply make the case an unusual one. The presence of those factors could also prevent the Court from ever reaching the question whether Title VII permits non-remedial affirmative action. A majority of the Court might conclude that, inde- pendent of whether Title VII permits non-remedial affirmative action, petitioner has not sufficiently justified its use of race in this instance, and leave for another day the more fundamental question. The Court might conclude, for example, that petitioner has not provided sufficient support to justify its ---------------------------------------- Page Break ---------------------------------------- 19 interest in Business Education Department diver- sity, particularly in the context of a layoff decision. If the Court were to reach such a conclusion, the judg- ment in this case could be affirmed without pre- senting to the Court an occasion for deciding whether Title VII permits non-remedial affirmative action in other circumstances. 3. Finally, petitioner is not well positioned to present the question whether Title VII permits non- remedial affirmative action. Petitioner applied its af- firmative action policy only once in approximately 18 years, and petitioner was in the process of voluntarily abandoning its policy prior to the issuance of the district court's remedial order. Def. Tr. Br. 2. Those circumstances led the district court to conclude that there was no likelihood that petitioner would again use race in the manner it did in this case, and that no specific injunction against such a use of race was required. Pet. App. 85a n.1. Petitioner has since for- mally abandoned its affirmative action policy. Resp. Br. in Opp. 6. Because there is an outstanding money judg- ment against petitioner, this case is not moot. But petitioner is now in the position of defending a com- pelling interest in a policy it implemented once in 18 years, and then voluntarily abandoned. The question whether Title VII permits non-remedial affirmative action would be better presented by an employer that has had more extensive experience with affirmative action and that has a continuing commitment to such a policy. 3 ___________________(footnotes) 3 For the reasons set forth in respondent's brief in opposi- tion (at 16-17), the fourth question presented by petitioner does not warrant review. ---------------------------------------- Page Break ---------------------------------------- 20 CONCLUSION The petition for a writ of certiorari should denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General ISARELLE KATZ PINZLER Acting Assistant Attorney General SETH P. WAXMAN Deputy Solicitor General WILLIAM R. YEOMANS Acting Deputy Assistant Attorney General IRVING L. GORNSTEIN Assistant to the Solicitor General DAVID K. FLYNN LESLIE A. SIMON Attorneys JUNE 1997