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U.S. Justice Department’s Supreme Court Amicus Brief in Taxman Flip Flops on Affirmative Action But Argues for Diversity

James C. Sharf

Aon Consulting

 

The April ‘97 issue of TIP [34(4), 57-68], reprinted the Clinton Administration’s amicus argument before the U.S. Court of Appeals for the Ninth Circuit in which they unsuccessfully sought to overturn California’s Proposition 209 banning the state’s use of racial preferences in public employment, public education, and public contracting. The Administration’s latest idea of how "to mend, but not end" affirmative action under Title VII is the U.S. Department of Justice’s amicus brief filed with the U.S. Supreme Court in August and reprinted below.

In 1989, the Piscataway, New Jersey, school board decided to downsize the staff in the high school’s business department. Invoking their "commitment to affirmative action" in choosing between two teachers with equal seniority, they kept Debra Williams because she was Black and fired Sharon Taxman because she was White. The Bush Administration supported Ms. Taxman’s successful challenge in which the Federal District Court awarded her back pay and reinstatement. The school board’s appeal of that decision coincided with President Clinton’s election in 1992. When the Clinton Administration sought the Court of Appeals’ permission to reverse the government’s position in order to support the school board’s affirmative action argument, the Court refused, but allowed the Administration to withdraw from the case. Upon losing again, school board appealed.

Piscataway Township Board of Education v. Taxman is now before the U.S. Supreme Court. At first, the Clinton Administration unsuccessfully sought to convince the Supreme Court not to hear the case. Then on August 22, the Administration filed the following amicus brief rejecting the school board’s affirmative action rationale in favor of a more nebulous "diversity" rationale. The Supreme Court decided not to hear Taxman. So the Court of Appeals’ decision stands.

is now before the U.S. Supreme Court. At first, the Clinton Administration unsuccessfully sought to convince the Supreme Court to hear the case. Then on August 22, the Administration filed the following brief rejecting the school board’s affirmative action rationale in favor of a more nebulous "diversity" rationale. The Supreme Court decided to hear . So the Court of Appeals’ decision stands.

 

U.S. Department of Justice Brief

"Questions Presented by the Department of Justice:

1. Whether petitioner’s layoff decision imposed an unnecessary and unjustified burden on respondent and therefore constituted impermissible discrimination under Title VII

2. Whether Title VII prohibits all non-remedial, race-conscious employment decisions.

This case raises questions concerning the extent to which Title VII permits employers to take race into account in employment decisions in order to further non-remedial objectives. The Attorney General has responsibility for enforcing Title VII against state and local employers. The decision in this case will affect that responsibility. The United States was plaintiff in this action in the district court, but withdrew as a party in the Court of Appeals. Subsequently, and following the decision in Adarand Constructors v. Pena, the Department of Justice engaged in an extensive examination of when it is permissible to engage in race-conscious government action. After that examination, the Department of Justice issued a memorandum to federal agencies on that issue. In response to the Court’s invitation, the United States filed a brief as amicus curiae at the petition stage in this case suggesting that the petition for a writ of certiorari be denied.

 

Statement

1. In May 1989, the Board of Education of the Township of Piscataway (petitioner) decided to eliminate a position in the Business Education Department of the Piscataway High School. At that time, there were 10 teachers in the Business Education Department, all of whom had tenure. Under New Jersey law, petitioner was required to lay off tenured faculty in reverse order of seniority except in the case of a tie. The two least senior teachers in the Business Education Department were respondent Sharon Taxman, who is White, and Debra Williams, who is Black. Respondent and Williams had begun their employment with petitioner in the same academic year and therefore had equal seniority. Williams was the only minority teacher in the Business Education Department.

Petitioner had discretion under New Jersey Law to select any lawful method to break the seniority tie. In prior layoffs, petitioner had broken seniority ties through random selection. This time, petitioner’s Superintendent of Schools recommended to petitioner that the decision whether to retain Williams or respondent should be based on petitioner’s affirmative action policy. That policy, which was adopted in 1975 and modified in 1983, specified that:

      In all cases, the most qualified candidate will be recommended for appointment. However, when candidates appear to be of equal qualifications, candidates meeting the criteria of the affirmative action program will be recommended.

The policy was applicable to ‘every aspect of employment including…layoffs,’ and Blacks were among those ‘meeting the criteria of the affirmative action program.’ The policy was not adopted with the intent of remedying prior discrimination or of eliminating any manifest imbalance in petitioner’s teaching force. At the time of the policy’s adoption, there was no evidence that petitioner had ever intentionally discriminated against Black applicants for employment, and there was no imbalance between the percentage of Blacks in petitioner’s work force and the percentage of Blacks in the qualified labor pool.

According to the Superintendent, he made his recommendation to resolve the layoff decision on the basis of petitioner’s affirmative action policy because he believed that Williams and respondent ‘were tied in seniority, were equally qualified, and because Ms. Williams was the only Black teacher in the Business Education Department.’ Petitioner voted 5-0 to accept the Superintendent’s recommendation to break the seniority tie by relying on its affirmative action policy and to terminate respondent’s employment.

When petitioner discharged respondent, it did not act with the intent of remedying any prior discrimination, and if petitioner had retained respondent rather than Williams, there would not have been any imbalance in petitioner’s work force as a whole. The last analysis conducted by petitioner before respondent’s discharge showed that Blacks constituted 5.8% of the relevant labor pool and 9.5% of the educational professionals in petitioner’s work force.

In a letter to respondent, petitioner explained its layoff decision as follows:

      (T)he board of education has decided to rely on its commitment to affirmative action as a means of breaking the tie in seniority entitlement in the secretarial studies category. As a result, the board, at its regular meeting on the evening of May 22, 1989, acted to abolish one teaching position and to terminate your employment as a teaching staff member effective June 30, 1989.

In her deposition, …, petitioner’s Vice President at the time of the layoff decision, explained her vote to retain Williams rather than respondent as follows:

      In my own personal perspective I believe by retaining Mrs. Williams it was sending a very clear message that we feel that our staff should be culturally diverse; our student population is culturally 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.

2. After respondent was laid off, she filed a charge with the Equal Employment Opportunity Commission, alleging that she had been subjected to discrimination, in violation of Title VII. In relevant part, Title VII makes it unlawful for an employer ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race.’ The charge was referred to the Department of Justice, and the United States filed a Title VII suit against petitioner in which respondent intervened.

On cross-motions for summary judgment, the district court found that petitioner had violated Title VII. The Court held that petitioner’s asserted purpose of promoting faculty diversity for educational reasons is not a permissible basis for the use of race under Title VII. The Court also held that petitioner’s affirmative action policy was ‘overly intrusive to the rights of nonminorities,’ because it applied to layoffs and lacked a termination point. The Court awarded respondent $144,014 in monetary relief and retroactive seniority. By the time of the district court’s remedial order, respondent had been rehired, so there was no need for an order reinstating her.

When petitioner appealed, the United States sought leave to file a brief and amicus curiae supporting reversal of the judgment. The Court of Appeals denied the United States leave to participate as amicus curiae. Instead, it treated the United States’ motion as a request to withdraw as a party, which it granted.

3. The Court of Appeals, sitting en banc, affirmed the judgment of the district court. The Court held that ‘affirmative action plans’ are valid under Title VII only when they (1) ‘have purposes that mirror those of the statute,’ and (2) do not ‘unnecessarily trammel the interests of nonminority employees.’ The Court concluded that petitioner’s policy did not satisfy either requirement.

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.’ The Court noted that petitioner’s ‘sole purpose in applying its affirmative action policy…was to obtain an educational benefit,’ and that petitioner’s policy was not adopted ‘to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities.’ The Court therefore concluded that petitioner violated Title VII when it laid off respondent. The Court rejected petitioner’s reliance on cases addressing the constitutionality of non-remedial, race-conscious decisions. The Court 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.’

The Court of Appeals also concluded that petitioner’s policy ‘unnecessarily trammels (nonminority) interests.’ The Court noted that the policy failed to address ‘what degree of racial diversity…is sufficient;’ the Court perceived the policy to be ‘an established fixture of unlimited duration;’ 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) goals of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion.’ Judge Stapleton filed a concurring opinion.

Four judges dissented. Chief Judge Sloviter (joined by Judges Lewis and McKee) concluded that race-conscious employment decisions can be permissible under Title VII not only when they remedy prior employment discrimination, but also when they further Title VII’s broader goal of eliminating ‘the causes of discrimination.’ Judge Sloviter noted that racial diversity in the classroom is ‘an important means of combating the attitudes that can lead to future patterns of discrimination.’ 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.’

Judge Sloviter also concluded that petitioner’s layoff decision did not ‘unnecessarily trammel’ respondent’s interests. Because respondent 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 expectation of no layoff.’ Judges Scirica, Lewis, and McKee filed separate dissenting opinions.

 

Summary of Argument

The Court of Appeals erred in holding that Title VII precludes all non-remedial, race-conscious employment decisions. This case, however, does not provide a suitable vehicle for resolving that extraordinarily broad issue. The Court of Appeals’ judgment should be affirmed on the ground that petitioner’s layoff decision unnecessarily trammeled respondent’s interests, and the broader question should be reserved for a case in which its resolution is necessary to the outcome and in which the employer’s use of race is more representative of the kind of actions taken by state and local governments and by private employers nationwide.

I. Unlike the cases in which this Court has upheld race-conscious training, hiring, and promotion decisions, petitioner considered race as a factor in a layoff decision. This Court’s cases reflect a special concern about the use of race in layoffs. That concern rests on the understanding that layoffs generally impose more significant burdens on those adversely affected than other forms of race-conscious employment decisions. An employer who takes race into account in making a layoff decision therefore has an especially heavy burden of justification.

Petitioner failed to satisfy that burden. Petitioner seeks to justify its layoff decision on a single ground: that retaining a minority faculty member rather than respondent was necessary to promote diversity in the Business Education Department of the Piscataway High School. A simple desire to promote diversity for its own sake, however, is not a permissible basis for taking race into account under Title VII. And petitioner failed to introduce any evidence to show that promoting diversity in the Business Education Department was necessary to further any compelling educational objective. Petitioner’s layoff decision therefore unnecessarily trammeled respondent’s interests in violation of Title VII, and the judgment upholding the award to respondent of monetary relief should be affirmed on that ground.

II. Should the Court reach the broader question, it should hold that, when a public employer takes race into account in a way that is narrowly tailored to further a compelling, non-remedial purpose, and therefore satisfies constitutional standards, Title VII erects no additional barrier to the employer’s action.

There are some circumstances—not presented by this case—in which an employer should be permitted to demonstrate that taking race into account for non-remedial purposes is narrowly tailored to further a compelling interest. For example, if an undercover officer is needed to infiltrate a racially homogeneous gang, a law enforcement agency must have the flexibility to assign an officer of the same race to the task. 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. Prison institutions may find it impossible to cope with racial tensions without an integrated work force. And school districts may responsibly conclude that a diverse faculty is essential to dispel students’ stereotypes and promote mutual understanding and respect. The careful, tailored use of race to serve similarly compelling goals would satisfy the Constitution’s strict scrutiny standard.

If an employer can satisfy the constitutional standard, Title VII does not erect any additional barrier to the employer’s action. Prior to the enactment of Title VII, this Court had referred to the Constitution as containing a prohibition against ‘discrimination’ on the basis of race. And this Court has interpreted the prohibition against ‘discrimination’ on the basis of race in Title VII to incorporate the constitutional standard. It is therefore reasonable to conclude that practices that satisfy the Constitution’s most rigorous equal protection standard do not constitute ‘discrimination’ within the meaning of Title VII. The 1972 amendments to Title VII, which extended Title VII to state and local government employers, reinforce that conclusion. In enacting those amendments, Congress relied on its power under Section 5 of the Fourteenth Amendment, and its principal goal was to provide federal administrative assistance to public employees who were subjected to discrimination that violated constitutional standards.

The Court of Appeals’ reliance on United Steelworkers v. Weber to reach the conclusion that Title VII precludes all non-remedial, race-conscious employment decision is misplaced. The Court noted in Weber that the plan upheld in that case had a remedial purpose. In sustaining a plan with such a purpose, however, the Court made clear that it was not intending to describe the entire universe of permissible race-conscious employment decisions. The Court of Appeals erred in transforming a description of the plan at issue in that the plan upheld in that case had a remedial purpose. In sustaining a plan with such a purpose, however, the Court made clear that it was not intending to describe the entire universe of permissible race-conscious employment decisions. The Court of Appeals erred in transforming a description of the plan at issue in Weber into a legal requirement for all race-conscious employment decisions.

 

Argument

I. Petitioner’s layoff decision imposed an unnecessarily and unjustified burden on respondent and therefore constituted impermissible discrimination under Title VII.

In United Steelworkers v. Weber, the Court held that Title VII does not prohibit a private employer from taking race into account in its employment decisions when the purpose of doing so is to eliminate ‘a manifest racial imbalance’ in ‘traditionally segregated job categories’ and when the decisions do not ‘unnecessarily trammel the interests of the White employees.’ In Johnson v. Transportation Agency, the Court held that Title VII permits public employers to take race into account in like circumstances.

The Court of Appeals understood Weber and Johnson to hold that Title VII precludes all non-remedial, race-conscious employment decisions. For reasons explained in Part II of our brief, the Court of Appeals erred in reaching that conclusion. When a non-remedial, race-conscious employment decision is narrowly tailored to further a compelling interest and therefore satisfies equal protection standards, it also satisfies Title VII. This case, however, does not present a suitable occasion for resolving that issue because petitioner failed to show that using race in a single layoff decision in its Business Education Department was necessary to serve any compelling objective. Petitioner therefore failed to satisfy both the Constitution’s narrow tailoring requirement and the parallel requirement in Title VII that a race-conscious employment decision may not unnecessarily trammel the interests of those affected by the decision. Because the Court of Appeals’ judgment should be affirmed on that basis alone, it is both unnecessary and inadvisable to reach the broader issue of whether Title VII ever permits the use of race for non-remedial purposes.

A. Weber and Johnson illuminate the requirement that race-conscious employment decisions may not ‘unnecessarily trammel’ the interests of those adversely affected. In Weber, an employer set aside 50% of the positions for a craft training program for Black employees until such time as the percentage of Blacks in craft positions matched the percentage of Blacks in the local labor pool. In holding that the plan did not unnecessarily trammel the interests of White employees, the Court noted that the plan did not ‘require the discharge of White workers and their replacement with Black hirees,’ did not ‘create an absolute bar to the advancement of White employees,’ and was a ‘temporary measure…not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.’

In Johnson, a public employer established long-term goals for the promotion of women into traditionally segregated job categories and authorized sex to be taken into account as one factor in making promotion decisions. The Court held that there was not unnecessary trammeling, since (a) no person was ‘automatically excluded from consideration’ for a position, (b) denial of a promotion did not unsettle any ‘firmly rooted expectation,’ (c) a person denied a promotion ‘retained his employment with the Agency, at the same salary and with the same seniority, and remained eligible for other promotions,’ and (d) the plan ‘was intended to attain a balanced work force, not to maintain one.’

The considerations bearing on the ‘unnecessarily trammel’ inquiry largely overlap with those examined when race-based action is challenged under the Constitution as insufficiently narrowly tailored. The decisions applying the narrow tailoring requirement to race-based employment decisions therefore shed further light on the appropriate Title VII inquiry. See Johnson (relying on constitutional cases discussing narrow tailoring in finding no unnecessary trammeling).

In United States v. Paradise, the Court upheld the constitutionality of a district court remedial order requiring that for a period of time, 50% of state trooper promotions go to qualified Black troopers. The plurality opinion explained that the order satisfied the narrow tailoring requirement because it was unlikely that there was ‘any other effective remedy,’ the order was ‘flexible, waivable, and temporary in application,’ the order bore an adequate relationship to the qualified labor pool, and the order ‘did not impose an unacceptable burden’ on those adversely affected. In discussing the latter point, the plurality noted that the order did not ‘require the layoff and discharge of White employees.’ Citing the same factors, Justice Powell agreed that the order was narrowly tailored.

In Local 28 of Sheet Metal Workers’ International Association v. EEOC, the Court upheld as narrowly tailored a district court remedial order imposing a minority membership for admission to a union. The plurality explained that the goal was ‘necessary’ to end discriminatory practices and that the goal would ‘have only a marginal impact on the interests of White workers.’ The plurality specifically noted that the order would not ‘disadvantage existing union members,’ and that the Court’s order did not ‘stand as an absolute bar to the admission of (Whites).’ For substantially the same reasons, Justice Powell concluded that the membership goal satisfied the narrow tailoring requirement.

B. In contrast to the cases discussed above, petitioner considered race as a factor in a layoff decision. This Court’s Title VII and Equal Protection Clause cases reflect a special concern about the use of race in layoffs. In the only two cases in which race-conscious layoffs were directly at issue, the Court found them to be invalid. In Wygant v. Jackson Board of Education, a layoff provision in a collective bargaining agreement for teachers provided that those with the most seniority would be retained except that layoffs could not result in a reduction in the percentage of minority teachers. In operation, the layoff provision required the school board to release White teachers with greater seniority than minority teachers who were retained. The Court held in several separate opinions that the layoff provision did not satisfy the narrow tailoring requirement. In Firefighters Local Union No 1784 v. Stotts, a district court order required that layoffs not reduce the percentage of minority firefighters, and the effect of the order was to require layoffs of nonminority employees with more seniority than minority employees who were retained. The Court held that the layoff provision did not comply with Title VII. Equally significant, in all the cases discussed above in which race-based employment decisions were upheld, an important factor was that the decisions did not involve the layoff or discharge of existing employees. Johnson (noting that, while petitioner had been denied a promotion, he retained his employment); Paradise (noting that the order upheld did not require discharge or layoff of existing employees); Sheet Metal Workers (noting that the order upheld did not affect existing employees); Weber (noting that the plan did not require the discharge of White workers and their replacement with new Black hires).

The Court’s special sensitivity to the use of race in layoffs is based on the understanding that layoffs generally impose more significant burdens on those adversely affected than other forms of race-conscious employment decisions. Layoffs burden identified individuals and often seriously disrupt their lives. Wygant: ‘Even a temporary layoff may have adverse financial as well as psychological effects.’ In contrast, the use of race in hiring or promotions poses less serious concerns. The burden is more likely to be ‘diffused’ and ‘(d)enial of a future employment opportunity is not as intrusive as loss of an existing job.’

Despite the special concerns associated with the use of race in layoffs, the Court has never announced a per se rule against taking race into account in layoffs. An employer who takes race into account in making a layoff decision, however, has a ‘heavy burden of justification.’ And race may not be used in layoffs when ‘(o)ther, less intrusive means of accomplishing similar purposes—such as the adoption of hiring goals—are available.’

C. Petitioner has failed to satisfy the heavy burden of justification applicable to the use of race in layoff decisions.

1. Petitioner does not seek to justify its layoff decision as a remedy for past discrimination. As petitioner has stated, ‘(i)t is undisputed that the Board had never discriminated against Black employees, and that they were not underrepresented in the professional staff as a whole when compared with their availability in the relevant labor market.’

2. Nor does petitioner seek to justify its layoff decision as a narrowly tailored means of obtaining the important educational benefits of school-wide faculty diversity (school-wide diversity can further the compelling educational goal of dispelling students’ racial stereotypes and fostering mutual understanding and respect). There are also means less burdensome than layoffs to ensure that students obtain those benefits. For example, prior to the decision at issue here, petitioner sometimes took race into account in assigning a teacher to one school rather than another in order to ensure that the faculties at each of its schools would be racially diverse. Because petitioner could rely on hiring and assignment practices to provide its students with the educational benefits of school-wide diversity, petitioner did not need to resort to the use of race in layoffs to further that objective.

3. Petitioner seeks to justify its layoff decision on a single ground: That retaining Williams rather than respondent was necessary to promote diversity in the Business Education Department of the Piscataway High School. A simple desire to maintain diversity for its own sake, however, is not a permissible basis for taking race into account under Title VII any more than it is a permissible basis for taking race into account under the Constitution. When race is used to foster diversity, an employer ‘must seek some further objective, beyond the mere achievement of diversity itself.’ Equally important, an employer must produce convincing evidence demonstrating a connection between diversity and the objective sought to be furthered; such a connection may not merely be asserted. Petitioner was therefore required to supply a convincing factual predicate for the conclusion that diversity in the Business Education Department itself serves distinct and compelling educational objectives that could not otherwise be achieved.

Petitioner failed to do that. The evidence relied on by petitioner to justify its layoff decision consists largely of generalized assertions, and those statements at most demonstrate a basis for seeking school-wide diversity. Petitioner’s evidence does not address why diversity in the Business Education Department specifically, as well as diversity in the school generally, is important. In particular, petitioner adduced no evidence that, despite the presence of a diverse faculty overall, it nonetheless was necessary to retain diversity in the Business Education Department in order to ensure that students would ‘come into contact with people of different cultures.’

Nor is this a case in which sub-unit diversity is so obviously necessary for compelling educational reasons that a more particularized showing is unnecessary. The Business Education Department is not a self-contained academic program: Students who take business courses also take courses in other departments. There may well be circumstances in which diversity in a particular high school department serves vital educational purposes. Petitioner, however, has failed to show that promoting faculty diversity in the Business Education Department in the Piscataway High School is any more or less educationally important than promoting such diversity in the various corridors of that building.

Significantly, before the decision at issue here, petitioner had never asserted an interest in departmental diversity. Although petitioner invoked its affirmative action policy in making the payoff decision at issue here, that policy did not state that its purpose was to promote diversity, much less diversity in particular departments. That policy’s stated purpose was to ‘ensure equal employment opportunity for all persons and prohibit discrimination in employment because of sex, race, color, creed, religion, handicap, domicile, marital status, or national origin.’ Petitioner’s affirmative action reports analyzed the racial composition of the work force as a whole; they did not analyze the racial composition of particular departments. Petitioner never sought from its administrative staff information breaking down the teacher work force by department. And prior to the decision in this case, petitioner never considered the racial composition of a department as a factor in the hiring, assignment, transfer, or termination of a teacher.

The inescapable conclusion is that petitioner did not satisfy the heavy burden of justification necessary to permit race-conscious layoffs. Petitioner’s layoff decision thus unnecessarily trammeled respondent’s interests in violation of Title VII. The Court of Appeals’ judgment upholding the award to respondent of monetary relief should be affirmed on that ground.

 

II. Title VII does not prohibit all non-remedial, race-conscious employment decisions.

Because the judgment below should be affirmed on the ground discussed above, this Court need not and should not resolve in this case the broad question whether Title VII ever permits an employer to take race into account for non-remedial purposes. That important question should be reserved for a case in which its resolution is necessary to the outcome, and in which the non-remedial use of race is more representative of the non-remedial actions of employers nationwide.

Should the Court nonetheless reach the issue, it should hold that Title VII does not erect a per se bar to all non-remedial, race-conscious employment decisions. Title VII does not permit ‘preferences for minorities for any reason that might seem sensible from a business or a social point of view.’ Johnson. But when a public employer takes race into account in a way that is narrowly tailored to further a compelling, non-remedial purpose, and therefore satisfies constitutional standards, Adarand Constructors v. Pena, Title VII erects no additional barrier to the employer’s action.

We discuss below some of the circumstances in which an employer may be able to demonstrate that taking race into account for non-remedial purposes is narrowly tailored to further a compelling interest, thereby satisfying constitutional standards. We then show why Title VII does not prohibit non-remedial employment decisions that satisfy the Constitution’s strict scrutiny standard.

A.1. As several courts have held, local law enforcement agencies can demonstrate a compelling need for a diverse work force that justifies the carefully tailored use of race in employment decisions…. For example, if an undercover officer is needed to infiltrate a racially homogeneous gang, a law enforcement agency must have the flexibility to assign an officer of the same race to that task.

In addition, 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. That view is not based on the stereotypical assumption that individuals communicate better with persons of their own race or on the unacceptable notion that a police department should cater to public prejudice. Rather, it is based on the empirically supported judgment that, when racial tensions smolder, the existence of a visibly integrated police force can instill public confidence and respect in law enforcement institutions in a way that an all-White or an all-Black force cannot.

2. Prison institutions may also be able to establish a compelling need for a diverse work force that can justify a narrowly tailored use of race in employment decisions. For example…the Seventh Circuit held that the warden of a boot camp prison had a compelling interest in using race as one 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 considerateness, that a marine sergeant treats recruits at Parris Island,’ and expert testimony established that Black inmates were ‘unlikely to play the correctional game of brutal drill sergeant and brutalized recruit unless there (were) some Blacks in authority in the camp.’ The Court was careful to note that the record would not support an effort to make the racial composition of the security staff mirror that of the inmate population. And it also made clear that prison authorities are not ‘entitled to yield to extortionate demands from prisoners for guards of their own race.’ The Court held only that, ‘on the record compiled in the district court, the preference that the administration of the Greene County boot camp gave a Black male applicant for a lieutenant’s job on the ground of his race was not unconstitutional.’ See also Minnick v. California Dep’t of Corrections… (prison authorities may use race as one factor in transfer, promotion, and assignment decisions in light of the evidence that diverse work force was essential to ‘reduce severe racial conflict and violence within the State prison system’).

3. Educational institutions may also be able to establish a compelling interest justifying a tailored use of race in employment decisions. For example, a school district can have a compelling interest in obtaining the educational benefits of a racially diverse faculty at each of its schools, and may permissibly use narrowly tailored means, such as using race as one factor in assignment or transfer decisions, to achieve that goal…

Swann v. Charlotte-Mecklenburg Board of Education supports that conclusion. There, the Court stated unanimously that, ‘in order to prepare students to live in a pluralistic society,’ school authorities have discretion under the Constitution to integrate their student bodies by making race-conscious student assignments. That statement reflects an understanding that integrated schools afford important educational benefits to students of all races: in schools with integrated student bodies, children can begin to learn how ‘to function’ in a multiracial society, as well as how ‘to live in harmony and mutual respect.’

supports that conclusion. There, the Court stated unanimously that, ‘in order to prepare students to live in a pluralistic society,’ school authorities have discretion under the Constitution to integrate their student bodies by making race-conscious student assignments. That statement reflects an understanding that integrated schools afford important educational benefits to students of all races: in schools with integrated student bodies, children can begin to learn how ‘to function’ in a multiracial society, as well as how ‘to live in harmony and mutual respect.’

A diverse faculty can further the same compelling goals. Exposing students to a diverse faculty on a daily basis can dispel stereotypes and misconceptions and foster mutual understanding and respect in a much more powerful and lasting way than imparting those lessons through words alone… Like a diverse student body, a diverse faculty also benefits all students. The lesson that ‘the diverse ethnic, cultural, and national backgrounds that have been brought together in our famous ‘melting pot’ do not identify essential differences among the human beings that inhabit our land’ is one that is critical for students of all races to learn.

      (T)he fact that persons of different races do, indeed, have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it.

See also Columbus Bd. of Educ. v. Penick (when student bodies and faculties are segregated, Black and White students are deprived of opportunity ‘to meet, know and learn from’ teachers of other races).

B. As discussed above, there are some limited situations in which an employer’s use of race for non-remedial objectives can be narrowly tailored to further a compelling interest and therefore satisfy constitutional standards. When a public employer can make such a showing, Title VII does not erect any additional barrier to the employer’s race-conscious action. The Court of Appeals therefore erred in holding that Title VII contains a per se prohibition against the use of race to further non-remedial objectives.

1. Title VII prohibits employment decisions that ‘discriminate against any individual… because of such individual’s race.’ Title VII nowhere defines ‘discriminate,’ and that term is susceptible to varying interpretations… Prior to (and contemporaneous with) the enactment of Title VII, decision of this Court referred to the Constitution as forbidding ‘discrimination’ on the basis of race… And, while Title VII originally was directed to private rather than public action, it was animated by some of the same concerns that animated the Equal Protection Clause… It is therefore reasonable to conclude that the Congress that enacted Title VII did not consider practices that satisfy the Constitution’s most rigorous equal protection standard to be prohibited ‘discrimination.’

This Court’s treatment of the same issue under Title VI of the Civil Rights Act of 1964 further supports that conclusion. Title VI, which was enacted by the same Congress that enacted Title VII, prohibits ‘discrimination’ in federally funded programs. In Bakke, the Court held that Title VI does not bar race-conscious action that satisfies constitutional standards…. As the controlling opinions in that case explain, the legislative history of Title VI shows that Congress equated discrimination under Title VI and Title VII, they cannot be read in para materia for all purposes. Johnson. But there is no sound basis for interpreting them differently with respect to the question of whether they permit race-conscious decisions that satisfy the Constitution’s strict scrutiny equal protection standard.

2. The 1972 amendments to Title VII, which extended Title VII to state and local government employers, reinforce the conclusion that Title VII does not bar race-conscious decisions that satisfy constitutional standards. In enacting those amendments, Congress relied on its authority under Section 5 of the Fourteenth Amendment…. As explained in the House Report, Congress’s principal purpose in extending Title VII to state and local government employers was to provide federal administrative assistance to public employees who were subjected to discrimination that violated constitutional standards.

      The Constitution is as imperative in its prohibition of discrimination in state and local government employment as it is in barring discrimination in Federal jobs. The Courts have consistently held that discrimination by state and local governments, including job discrimination, violates the Fourteenth Amendment and is prohibited.

      While an individual has a right of action in the appropriate court if he has been discriminated against, the adequacy of protection against employment discrimination by state and local governments has been severely impeded by the failure of the Congress to provide Federal administrative machinery to assist the aggrieved employee.

It is fully consistent with the purpose of the 1972 amendments to permit a public employer to consider race as a factor in an employment decision, so long as the employer does so in a way that satisfies the Constitution’s strict scrutiny standard.

Nothing in the legislative history of the 1972 amendments suggests that Congress intended to limit permissible race-conscious actions to those that are intended to remedy prior employment discrimination. To the contrary, that legislative history shows that Congress was concerned not only with the effect that discrimination has on those seeking state employment opportunities, 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 mistrust, alienation, and all too often hostility toward the entire process of government.’ ...Congress also concluded that ‘(t)o permit discrimination (in educational institutions) would, more that in any other area, tend to promote existing misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination.’ Race-conscious action that is designed to instill trust in law enforcement and to break down racial stereotypes and misconceptions in educational institutions is therefore fully consistent with the goals of Title VII.

3. Legislation enacted contemporaneously with the 1972 amendments to Title VII also refutes any suggestion that Congress intended to prohibit all race-conscious employment decisions except those designed to remedy prior employment discrimination. In 1972, Congress enacted the Emergency School Aid Act…, an act that has since been repealed. ESAA made federal funds available to schools for use in eliminating de facto as well as de jure segregation… ESAA reflected Congress’s view that, regardless of its cause, racial isolation harms the education of students.

Consistent with ESAA’s purposes, Congress required school districts receiving ESAA funds to assign teachers in such a way as to ensure that faculties at their schools would not be racially identifiable… Since Congress obviously did not intend for school districts to take action under ESAA that would violate Title VII, the only reasonable conclusion is that Congress did not view Title VII as an absolute bar to all non-remedial, race-conscious employment decisions.

4. In holding that Title VII bars all non-remedial uses of race, the Court of Appeals relied on this Court’s decision in Weber. The Court of Appeals understood that decision to hold that, in order for consideration of race as a factor in an employment decision to be valid under Title VII, the purpose of the decision must ‘mirror’ a purpose of Title VII. And the Court further concluded that only a remedial purpose can mirror the purposes of Title VII. That reasoning is flawed.

This Court stated in Weber 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 opportunities for Negroes in occupations which have been traditionally closed to them.’ The Court made clear, however, that it was not thereby intending to define ‘the line of demarcation between permissible and impermissible affirmative actin.’ Because the plan at issue in Weber did mirror Title VII’s remedial purpose, the Court had no reason to consider whether other forms of race-conscious action could also be consistent with Title VII.

For the reasons set forth above, the kind of plan upheld in Weber is not the only form of race-conscious action that is consistent with Title VII. Title VII permits race to be used for any purpose that is sufficiently ‘compelling’ to satisfy equal protection standards, as long as the means chosen to further that purpose are narrowly tailored. The Court of Appeals erred in transforming a description of the plan at issue in Weber into a legal requirement for all race-conscious employment decisions.

The Court of Appeals also defined too narrowly the purposes of Title VII. Although the principal purposes of Title VII are to ‘break down old patterns of racial segregation and hierarchy,’ and to ‘open employment opportunities for Negroes in occupations which have been traditionally closed to them,’ those are not its only purposes. 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 ‘ultimate statutory goals.’ And, as discussed above, Title VII was also designed to assist in the task of restoring trust in law enforcement and breaking down racial stereotypes and misconceptions in educational institutions. When a public employer is permitted to further those compelling goals through narrowly tailored, race-conscious means, Title VII purposes are furthered."4

 

Conclusion

The judgment of the Court of Appeals should be affirmed.

The brief the United States attempted to file in the Third Circuit concluded that petitioner had established a sufficient justification for its layoff decision. Subsequently, and following this Court’s decision in Adarand Constructors v. Pena, the Department of Justice undertook an extensive examination of the question of when it is permissible to engage in race-conscious governmental action. Following that examination, the Department issued a memorandum to federal agencies on that issue. The memorandum offered three important guiding principles drawn from the decision of this Court and lower courts concerning the use of race to promote non-remedial objectives. First, to the extent that race is used to foster diversity, the government must seek some further objective, beyond the mere achievement of diversity itself. Second, in some settings, a government entity may have a compelling need for a diverse work force that justifies the use of racial considerations. 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; a broad assertion of need is insufficient. In light of the extensive analysis…we have arrived at a different conclusion on the correct disposition of this case from that stated in the Third Circuit brief. We continue, however, to adhere to the brief’s main argument—that Title VII does not preclude all non-remedial, race-conscious employment decisions.

Using faculty diversity to advance the compelling educational goal of dispelling racial stereotypes is quite different from the role model theory rejected in Wygant. The role model theory rested on the view that Black students are better off with Black teachers and, when carried to its logical extreme, could have led to the very system rejected in Brown v. Board of Education… The need for faculty diversity rests on the very different understanding that students of all races are better off when they have the opportunity to learn from an integrated teaching staff, because exposure to such an integrated faculty inevitably tends to dispel the notion that there are essential differences between the races.

Title VII is not completely coextensive with the Constitution. Title VII prohibits employment practices that ‘adversely affect’ employment status… and therefore it reaches employment practices that have a disproportionate impact on minority employees and are not justified by business necessity. Griggs v. Duke Power Co. In contrast, the Constitution prohibits only practices undertaken with a discriminatory intent. Washington v. Davis. In addition, this Court has held that, in light of the crucial role that voluntary affirmative action plays in furthering Title VII’s purpose of eliminating the effects of discrimination in the workplace, the evidentiary burden of showing a lawful remedial purpose is less demanding under Title VII than under the Constitution. Johnson. Title VII requires a showing of manifest racial imbalance in a traditionally segregated job category, while the Constitution requires a strong basis in evidence for believing that the employer itself has engaged in prior discrimination, Wygant.

4 Title VII permits employers to use religion, sex, or national origin, but not race, in employment decisions, if such a criterion is a ‘bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise.’ Interpreting Title VII to permit non-remedial, race-conscious employment decisions that satisfy strict scrutiny is not inconsistent with Congress’s failure to create a BFOQ for race. Under the Constitution, it is not enough that the use of race be ‘reasonably necessary’ to advance a ‘normal’ operational need; instead the use of race must be narrowly tailored to a compelling purpose. Adarand. There was no need to create a BFOQ-like exception from Title VII for race-conscious employment decisions that satisfy that constitutional standard, because Congress did not view such decisions as prohibited ‘discrimination’ in the first place. The notion that the failure to create a BFOQ for race precludes all non-remedial uses of race also proves too much. Acceptance of that notion would mean, for example, that a law enforcement agency could not use race to assign a Black officer to infiltrate an all-Black gang. Any sensible reading of Title VII must allow for some non-remedial uses of race, and the real question is how to draw the line. The constitutional standard best fulfills that function.

Title VII permits employers to use religion, sex, or national origin, but not race, in employment decisions, if such a criterion is a ‘bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise.’ Interpreting Title VII to permit non-remedial, race-conscious employment decisions that satisfy strict scrutiny is not inconsistent with Congress’s failure to create a BFOQ for race. Under the Constitution, it is not enough that the use of race be ‘reasonably necessary’ to advance a ‘normal’ operational need; instead the use of race must be to a There was no need to create a BFOQ-like exception from Title VII for race-conscious employment decisions that satisfy that constitutional standard, because Congress did not view such decisions as prohibited ‘discrimination’ in the first place. The notion that the failure to create a BFOQ for race precludes all non-remedial uses of race also proves too much. Acceptance of that notion would mean, for example, that a law enforcement agency could not use race to assign a Black officer to infiltrate an all-Black gang. Any sensible reading of Title VII must allow for some non-remedial uses of race, and the real question is how to draw the line. The constitutional standard best fulfills that function.