Ron Fournier, the Associated Press White House correspondent, reports that “Bush himself has not decided what role, if any, the administration will play in the landmark case but several officials said Friday night he is unlikely to stay on the sidelines.”
The Justice Department is awaiting word from Bush on whether to file a brief of its own. At the least, Bush is expected to take a public stand on the matter and explain his position that racial quotas are not needed to foster diversity, officials said.
The article then stumbles badly in discussing an earlier controversial case:
Among the cases that would bolster their argument against the University of Michigan, officials said, is a 1997 affirmative action suit that supported a white high school teacher’s claim that she suffered reverse discrimination when laid off from her job. A black teacher was retained.
The Clinton administration argued that the school district’s affirmative action policy went too far and could not be justified merely by the notion that a diverse teacher corps is a worthy goal.
“A simple desire to promote diversity for its own sake … is not a permissible basis for taking race into account,” the government said then.
The brief was largely written by Walter Dellinger, former head of the Office of Legal Counsel and later the Clinton administration’s acting solicitor general.
Unless I am mistaken (it wouldn’t be the first time), the above discussion refers to the hot potato case of Taxman v. Piscataway. For those of you don’t recall, Sharon Taxman, a white teacher, and Debra Williams, who is black, were hired on the same day in 1980 to teach secretarial studies at Piscataway (New Jersey) High School. In 1989 budget cuts required one teacher to be let go. Since Williams was the only black in the business education department, Taxman was fired to protect “diversity” (even though there were twice as many blacks on the high school faculty overall as in the pool of minority teachers in the county, and there was no history of discrimination at the school).
With the support of the first Bush administration and later the Clinton administration, Taxman sued, and won in U.S. District Court. The school board appealed. At that point the Clinton administration switched sides. The new assistant attorney general for civil rights, Deval Patrick, filed a brief supporting the school board’s “diversity” defense that, according to Jeffrey Rosen writing in THE NEW REPUBLIC,
committed the Clinton administration to a vision of racial preference that fulfills the most extravagant fantasies of a conservative attack ad. (“You lost that job because you were white….”) Rather than honestly confronting the costs of affirmative action, Patrick has blithely endorsed the most extreme form of racialism. (Oct. 17, 1994, p. 25)
In an editorial, even the Washington Post commented that “Patrick’s brief represents affirmative action at its most intellectually bankrupt.” (“Dodging and Weaving on Affirmative Action,” March 3, 1995, p. A25)
The Third Circuit ruled in favor of Taxman, and the case was headed for a Supreme Court decision in 1997 when the diversity forces, fearing the Supremes would decide racial discrimination cannot be justified by the desire for diversity, raised enough money to pay Taxman to drop her complaint.
It is true, as Rosen reported, that “Assistant Attorney General Dellinger … argued strenuously against Patrick’s position,” but it is not true that his view prevailed inside the Clinton administration, which defended the proposition that diversity can justify, not taking race into account, but being itself sufficient reason to fire someone.
UPDATE [1/13/2003 9:00PM]- The Washington Post has just published a second article by AP White House correspondent Ron Fournier that repeats the fundamental misunderstanding of Piscataway v. Taxman, and especially the position the Clinton administration took on it, that I outlined in my original post.
ANOTHER UPDATE [1/15/20003 8:05PM] – Come on, you guys! Accusing someone else of screwing up the facts (a charge I’m not altogether, completely withdrawing), I screwed them up myself, at least some, and none of you corrected me! I even asked two worthies who should know.
Anyway, here’s the real deal on what happened. The Bush I Justice Dept. supported Taxman. The Clinton Justice Dept. did a 180, and Deval Patrick filed an atrocious brief supporting the Piscataway school board. (This is the position left out of both of Fournier’s articles.) It quickly became apparent to the Clintonistas, however, that the case was a sure loser, i.e., that the Supremes were likely to hold that diversity can never justify racial firing, and they might even word the result so that racial hiring would be invalidated as well. Fearful of that result, the Clinton Justice Dept. reversed its prior reversal and urged the Supremes to affirm the Third Circuit decision, i.e., rule against the school board, but to do so in the narrowest posssible way and to limit the decision to racial firing. Before the Supremes could decide, however, the NAACP and other civil rights groups, also fearing the likely result, raised well over $400,000, which they gave to Sharon Taxman to drop her complaint, which she did, mooting the case.
