Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-1996

United States v. Bd Ed Piscataway
Precedential or Non-Precedential:

Docket 94-5090,94-5112




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Recommended Citation
"United States v. Bd Ed Piscataway" (1996). 1996 Decisions. Paper 84.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/84


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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                       No. 94-5090
                       ___________

UNITED STATES OF AMERICA

     SHARON TAXMAN, Plaintiff-Intervenor

                 vs.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY,

                                     Appellant


                       ___________

                       No. 94-5112
                       ___________

SHARON TAXMAN,

                 Appellant

     v.

BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY
                  ___________

 Appeal from the United States District Court
        for the District of New Jersey
         (D.C. Civil No. 92-cv-00340)
                  ___________

                     Argued
               November 29, 1995
        Before: SLOVITER,* Chief Judge,
      MANSMANN and MCKEE, Circuit Judges.
                  ___________

                  Reargued In Banc
                    May 14, 1996


Before: SLOVITER, Chief Judge, BECKER, STAPLETON,
  MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
     ALITO, ROTH, LEWIS, McKEE and SAROKIN,**
                 Circuit Judges.

             (Filed August 8, 1996)
*        The Honorable William D. Hutchinson was a member of the
original panel which heard argument in this appeal on January 24,
1995. He died on October 8, 1995, before the appeal was
resolved; Chief Judge Sloviter was designated to serve in his
place on the reconstituted panel.

**       Judge Sarokin heard argument but retired from office
prior to the issuance of the opinion.

David B. Rubin, Esquire (ARGUED)
44 Bridge Street
P.O. Box 4579
Metuchen, NJ     08840

         COUNSEL FOR BOARD OF EDUCATION
          OF THE TOWNSHIP OF PISCATAWAY

Stephen E. Klausner, Esquire (ARGUED)
Klausner, Hunter, Cige & Seid
63 E. High Street
P.O. Box 1012
Somerville, NJ 08876

         COUNSEL FOR SHARON TAXMAN
                           ___________

                       OPINION OF THE COURT
                            __________

MANSMANN, Circuit Judge.
         In this Title VII matter, we must determine whether the
Board of Education of the Township of Piscataway violated that
statute when it made race a factor in selecting which of two
equally qualified employees to lay off. Specifically, we must
decide whether Title VII permits an employer with a racially
balanced work force to grant a non-remedial racial preference in
order to promote "racial diversity".
         It is clear that the language of Title VII is violated
when an employer makes an employment decision based upon an
employee's race. The Supreme Court determined in United
Steelworkers v. Weber, 

(1979), however, that Title
VII's prohibition against racial discrimination is not violated
by affirmative action plans which first, "have purposes that
mirror those of the statute" and second, do not "unnecessarily
trammel the interests of the [non-minority] employees," 

         We hold that Piscataway's affirmative action policy is
unlawful because it fails to satisfy either prong of Weber.
Given the clear antidiscrimination mandate of Title VII, a non-
remedial affirmative action plan, even one with a laudable
purpose, cannot pass muster. We will affirm the district court's
grant of summary judgment to Sharon Taxman.

I.
         In 1975, the Board of Education of the Township of
Piscataway, New Jersey, developed an affirmative action policy
applicable to employment decisions. The Board's Affirmative
Action Program, a 52-page document, was originally adopted in
response to a regulation promulgated by the New Jersey State
Board of Education. That regulation directed local school boards
to adopt "affirmative action programs," N.J. Admin. Code Tit. 6 §
6:4-1.3(b), to address employment as well as school and classroom
practices and to ensure equal opportunity to all persons
regardless of race, color, creed, religion, sex or national
origin. N.J. Admin. Code Tit. 6 §§ 6:4-1.5, 6:4-1.6(a). In 1983
the Board also adopted a one page "Policy", entitled "Affirmative
Action - Employment Practices." It is not clear from the record
whether the "Policy" superseded or simply added to the "Program,"
nor does it matter for purposes of this appeal.
         The 1975 document states that the purpose of the
Program is "to provide equal educational opportunity for students
and equal employment opportunity for employees and prospective
employees," and "to make a concentrated effort to attract . . .
minority personnel for all positions so that their qualifications
can be evaluated along with other candidates." The 1983 document
states that its purpose is to "ensure[] equal employment
opportunity . . . and prohibit[] discrimination in employment
because of [,inter alia,] race. . . ."
         The operative language regarding the means by which
affirmative-action goals are to be furthered is identical in the
two documents. "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." The phrase
"candidates meeting the criteria of the affirmative action
program" refers to members of racial, national origin or gender
groups identified as minorities for statistical reporting
purposes by the New Jersey State Department of Education,
including Blacks. The 1983 document also clarifies that the
affirmative action program applies to "every aspect of employment
including . . . layoffs . . . ."
         The Board's affirmative action policy did not have "any
remedial purpose"; it was not adopted "with the intention of
remedying the results of any prior discrimination or identified
underrepresentation of minorities within the Piscataway Public
School System." At all relevant times, Black teachers were
neither "underrepresented" nor "underutilized" in the Piscataway
School District work force. Indeed, statistics in 1976 and 1985
showed that the percentage of Black employees in the job category
which included teachers exceeded the percentage of Blacks in the
available work force.

                                A.
         In May, 1989, the Board accepted a recommendation from
the Superintendent of Schools to reduce the teaching staff in the
Business Department at Piscataway High School by one. At that
time, two of the teachers in the department were of equal
seniority, both having begun their employment with the Board on
the same day nine years earlier. One of those teachers was
intervenor plaintiff Sharon Taxman, who is White, and the other
was Debra Williams, who is Black. Williams was the only minority
teacher among the faculty of the Business Department.
         Decisions regarding layoffs by New Jersey school boards
are highly circumscribed by state law; nontenured faculty must be
laid off first, and layoffs among tenured teachers in the
affected subject area or grade level must proceed in reverse
order of seniority. N.J. Stat. Ann. § 18A:28-9 et seq.
Seniority for this purpose is calculated according to specific
guidelines set by state law. N.J. Stat. Ann. § 18A:28-10; N.J.
Admin. Code Tit. 6 § 6:3-5.1. Thus, local boards lack discretion
to choose between employees for layoff, except in the rare
instance of a tie in seniority between the two or more employees
eligible to fill the last remaining position.
         The Board determined that it was facing just such a
rare circumstance in deciding between Taxman and Williams. In
prior decisions involving the layoff of employees with equal
seniority, the Board had broken the tie through "a random process
which included drawing numbers out of a container, drawing lots
or having a lottery." In none of those instances, however, had
the employees involved been of different races.
         In light of the unique posture of the layoff decision,
Superintendent of Schools Burton Edelchick recommended to the
Board that the affirmative action plan be invoked in order to
determine which teacher to retain. Superintendent Edelchick made
this recommendation "because he believed Ms. Williams and Ms.
Taxman were tied in seniority, were equally qualified, and
because Ms. Williams was the only Black teacher in the Business
Education Department."
         While the Board recognized that it was not bound to
apply the affirmative action policy, it made a discretionary
decision to invoke the policy to break the tie between Williams
and Taxman. As a result, the Board "voted to terminate the
employment of Sharon Taxman, effective June 30, 1988. . . ."
         At her deposition, Paula Van Riper, the Board's Vice
President at the time of the layoff, described the Board's
decision-making process. According to Van Riper, after the Board
recognized that Taxman and Williams were of equal seniority, it
assessed their classroom performance, evaluations, volunteerism
and certifications and determined that they were "two teachers of
equal ability" and "equal qualifications."
         At his deposition Theodore H. Kruse, the Board's
President, explained his vote to apply the affirmative action
policy as follows:
         A.   Basically I think because I had been
         aware that the student body and the community
         which is our responsibility, the schools of
         the community, is really quite diverse and
         there -- I have a general feeling during my
         tenure on the board that it was valuable for
         the students to see in the various employment
         roles a wide range of background, and that it
         was also valuable to the work force and in
         particular to the teaching staff that they
         have -- they see that in each other.
         Asked to articulate the "educational objective" served
by retaining Williams rather than Taxman, Kruse stated:
         A.   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.

         Q.   What do you mean by the phrase you used,
         culturally diverse?

         A.   Someone other than -- different than
         yourself. And we have, our student
         population and our community has people of
         all different background, ethnic background,
         religious background, cultural background,
         and it's important that our school district
         encourage awareness and acceptance and
         tolerance and, therefore, I personally think
         it's important that our staff reflect that
         too.

                                B.
         Following the Board's decision, Taxman filed a charge
of employment discrimination with the Equal Employment
Opportunity Commission. Attempts at conciliation were
unsuccessful, and the United States filed suit under Title VII
against the Board in the United States District Court for the
District of New Jersey. Taxman intervened, asserting claims
under both Title VII and the New Jersey Law Against
Discrimination (NJLAD).
         Following discovery, the Board moved for summary
judgment and the United States and Taxman cross-moved for partial
summary judgment only as to liability. The district court denied
the Board's motion and granted partial summary judgment to the
United States and Taxman, holding the Board liable under both
statutes for discrimination on the basis of race. United States
v. Board of Educ. of Township Piscataway, 

, 851
(D.N.J. 1993).
         A trial proceeded on the issue of damages. By this
time, Taxman had been rehired by the Board and thus her
reinstatement was not an issue. The court awarded Taxman damages
in the amount of $134,014.62 for backpay, fringe benefits and
prejudgment interest under Title VII. A jury awarded an
additional $10,000 for emotional suffering under the NJLAD. The
district court denied the United States' request for a broadly
worded injunction against future discrimination, finding that
there was no likelihood that the conduct at issue would recur,
but it did order the Board to give Taxman full seniority
reflecting continuous employment from 1980. Additionally, the
court dismissed Taxman's claim for punitive damages under the
NJLAD.
         The Board appealed, contending that the district court
erred in granting Taxman summary judgment as to liability. The
Board also contends, in the alternative, that the court erred in
awarding Taxman 100% backpay and in awarding prejudgment interest
at the IRS rate rather than under 28 U.S.C. § 1961. Taxman
cross-appealed, contending that the district court erred in
dismissing her claim for punitive damages. Subsequently, the
United States sought leave to file a brief as amicus curiae in
support of reversal of the judgment, representing that it could
no longer support the judgment of the district court. By order
of November 17, 1995, we denied the United States' request. We
treated the position of the United States at the original
argument before this court on January 24, 1995, as a motion to
withdraw as a party, which we granted. Thus, the only parties
before us on this appeal are the Board and Taxman.
         This court has jurisdiction over the appeals under 28
U.S.C. § 1291. Our review of the district court's decision on
summary judgment is plenary. Waldron v. SL Industries, 

, 496 (3d Cir. 1995).

                               II.
         In relevant part, Title VII makes it unlawful for an
employer "to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment"
or "to limit, segregate, or classify his employees . . . in any
way which would deprive or tend to deprive any individual of
employment opportunities or otherwise affect his status as an
employee" on the basis of "race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a). For a time, the
Supreme Court construed this language as absolutely prohibiting
discrimination in employment, neither requiring nor permitting
any preference for any group. Johnson v. Transportation Agency,
Santa Clara County, 

, 643 (1987) (Stevens, J.,
concurring) (citing, inter alia, Griggs v. Duke Power Co., 

, 431 (1971), and McDonald v. Santa Fe Trail Transp. Co.,

, 280 (1976)).
         In 1979, however, the Court interpreted the statute's
"antidiscriminatory strategy" in a "fundamentally different way",

holding in the seminal case of United Steelworkers v.
Weber, 

(1979), that Title VII's prohibition against
racial discrimination does not condemn all voluntary race-
conscious affirmative action plans. In Weber, the Court
considered a plan implemented by Kaiser Aluminum & Chemical
Corporation. Prior to 1974, Kaiser hired as craftworkers only
those with prior craft experience. 

Because they had
long been excluded from craft unions, Blacks were unable to
present the credentials required for craft positions. 

hiring practices, although not admittedly
discriminatory with regard to minorities, were questionable. Id.at 210.
As a consequence, while the local labor force was about
39% Black, Kaiser's labor force was less than 15% Black and its
crafts-work force was less than 2% Black. 

In 1974,
Kaiser entered into a collective bargaining agreement which
contained an affirmative action plan. The plan reserved 50% of
the openings in an in-plant craft-training program for Black
employees until the percentage of Black craft-workers in the
plant reached a level commensurate with the percentage of Blacks
in the local labor force. 

During the first year of
the plan's operation, 13 craft-trainees were selected, seven of
whom were Black and six of whom were White. 

         Thereafter, Brian Weber, a White production worker,
filed a class action suit, alleging that the plan unlawfully
discriminated against White employees under Title VII. Relying
upon a literal reading of subsections 2000-3(2)(a) and (d) of
the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court's
decision in McDonald v. Santa Fe Trail Transp. 

, where the Court held that Title VII forbids discrimination
against Whites as well as Blacks, the plaintiffs argued that it
necessarily followed that the Kaiser plan, which resulted in
junior Black employees receiving craft training in preference to
senior White employees, violated Title VII. 

The
district court agreed and entered a judgment in favor of the
plaintiffs; the Court of Appeals for the Fifth Circuit affirmed.

         The Supreme Court, however, reversed, noting initially
that although the plaintiffs' argument was not "without force",
it disregarded "the significance of the fact that the Kaiser-USWA
plan was an affirmative action plan voluntarily adopted by
private parties to eliminate traditional patterns of racial
segregation." 

The Court then embarked upon an
exhaustive review of Title VII's legislative history and
identified Congress' concerns in enacting Title VII's prohibition
against discrimination -- the deplorable status of Blacks in the
nation's economy, racial injustice, and the need to open
employment opportunities for Blacks in traditionally closed
occupations. 

Against this background, the Court
concluded that Congress could not have intended to prohibit
private employers from implementing programs directed toward the
very goal of Title VII -- the eradication of discrimination and
its effects from the workplace:
         It would be ironic indeed if a law triggered
         by a Nation's concern over centuries of
         racial injustice and intended to improve the
         lot of those who had "been excluded from the
         American dream for so long," 110 Cong. Rec.
         6552 (1964) (remarks of Sen. Humphrey),
         constituted the first legislative prohibition
         of all voluntary, private, race-conscious
         efforts to abolish traditional patterns of
         racial segregation and hierarchy.

         The Court found support for its conclusion in the
language and legislative history of section 2000e-2(j) of Title
VII which expressly provides that nothing in the Act requires
employers to grant racial preferences. According to the Court,
the opponents of Title VII had raised two arguments: the Act
would be construed to impose obligations upon employers to
integrate their work forces through preferential treatment of
minorities, and even without being obligated to do so, employers
with racially imbalanced work forces would grant racial
preferences. 

Since Congress addressed only the
first objection and did not specifically prohibit affirmative
action efforts in section 2000e-2(j), the Court inferred that
Congress did not intend that Title VII forbid all voluntary race-
conscious preferences. 

The Court further
reasoned that since Congress also intended in section 2000e-2(j)
"to avoid undue federal regulation of private businesses," a
prohibition against all voluntary affirmative action would
disserve this end by "augment[ing] the power of the Federal
government and diminish[ing] traditional management prerogatives.
. . ." 

         The Court then turned to the Kaiser plan in order to
determine whether it fell on the "permissible" side of the "line
of demarcation between permissible and impermissible affirmative
action plans." 

The Court upheld the Kaiser plan
because its purpose "mirror[ed] those of the statute" and it did
not "unnecessarily trammel the interests of the [non-minority]
employees":
         The purposes of the plan mirror those of the
         statute. Both were designed to break down
         old patterns of racial segregation and
         hierarchy. Both were structured to "open
         employment opportunities for Negroes in
         occupations which have been traditionally
         closed to them." 110 Cong. Rec. 6548 (1964)
         (remarks of Sen. Humphrey).

              At the same time, the plan does not
         unnecessarily trammel the interests of the
         white employees. The plan does not require
         the discharge of white workers and their
         replacement with new black hires. Nor does
         the plan create an absolute bar to the
         advancement of white employees; half of those
         trained in the program will be white.
         Moreover, the plan is a temporary measure; it
         is not intended to maintain racial balance,
         but simply to eliminate a manifest racial
         imbalance.

(citation and footnote omitted).
         In 1987, the Supreme Court decided a second Title VII
affirmative action case, Johnson v. Transportation Agency, Santa
Clara 

. There, the Santa Clara County
Transit District Board of Supervisors implemented an affirmative
action plan stating that "`mere prohibition of discriminatory
practices [was] not enough to remedy the effects of past
discriminatory practices and to permit attainment of an equitable
representation of minorities, women and handicapped persons.'"

The plan noted that women were represented in
numbers far less than their proportion of the available work
force in the Agency as a whole and in the skilled craft worker
job category relevant to the case, and observed that a lack of
motivation in women to seek training or employment where
opportunities were limited partially explained the
underrepresentation. 

The plan authorized the Agency
to consider as one factor the gender of a qualified candidate in
making promotions to positions with a traditionally segregated
job classification in which women were significantly
underrepresented. 

The plan did not set quotas,
but had as its long-term goal the attainment of a work force
whose composition reflected the proportion of women in the area
labor force. 

Acknowledging the practical
difficulties in attaining the long-term goal, including the
limited number of qualified women, the plan counseled that short-
range goals be established and annually adjusted to serve as
realistic guides for actual employment decisions. 

         On December 12, 1979, the Agency announced a vacancy
for the promotional position of road dispatcher. At the time,
none of the 238 positions in the applicable job category was
occupied by a woman. 

The Agency Director,
authorized to choose any of seven applicants who had been deemed
eligible, promoted Diane Joyce, a qualified woman, over Paul
Johnson, a qualified man. 

As the Agency Director
testified: "`I tried to look at the whole picture, the
combination of her qualifications and Mr. Johnson's
qualifications, their test scores, their expertise, their
background, affirmative action matters, things like that . . . I
believe it was a combination of all those.'" 

         Johnson sued, alleging that the Agency's employment
decision constituted unlawful sex discrimination under Title VII.
Evaluating the plan against the criteria announced in Weber, the
district court held that the plan did not satisfy Weber's
criterion that the plan be temporary. 

The Court of
Appeals for the Ninth Circuit reversed, holding that since the
plan provided for the attainment, rather than the maintenance, of
a balanced work force, the absence of an express termination date
in the plan was not dispositive of its validity. 

The court of appeals further held that the plan had been adopted
"to address a conspicuous imbalance in the Agency's work force,
and neither unnecessarily trammeled the rights of other
employees, nor created an absolute bar to their advancement."

         The Supreme Court affirmed. Declaring its prior
analysis in Weber controlling, the Court examined whether the
employment decision at issue "was made pursuant to a plan
prompted by concerns similar to those of the employer in Weber"
and whether "the effect of the [p]lan on males and nonminorities
[was] comparable to the effects of the plan in that case." Id.at 631.
The first issue the Court addressed, therefore, was
whether "consideration of the sex of applicants for Skilled Craft
jobs was justified by the existence of a `manifest imbalance'
that reflected underrepresentation of women in `traditionally
segregated job categories.'" 

(quoting 

). Although the Court did not set forth a quantitative
measure for determining what degree of disproportionate
representation in an employer's work force would be sufficient to
justify affirmative action, it made clear that the terms
"manifest imbalance" and "traditionally segregated job category"
were not tantamount to a prima facie case of discrimination
against an employer since the constraints of Title VII and the
Federal Constitution on voluntarily adopted affirmative action
plans are not identical. 

. In this
regard, the Court further reasoned that requiring an employer in
a Title VII affirmative action case to show that it had
discriminated in the past "would be inconsistent with Weber's
focus on statistical imbalance, and could inappropriately create
a significant discentive for employers to adopt an affirmative
action plan". 

(footnote omitted).
         Reviewing Agency statistics which showed that women
were concentrated in traditionally female jobs and represented a
lower percentage in other jobs than would be expected if
traditional segregation had not occurred, the Court concluded
that the decision to promote Joyce was made pursuant to a plan
designed to eliminate work force imbalances in traditionally
segregated job categories and thus satisfied Weber's first prong.

Moving to Weber's second prong, whether the plan
unnecessarily trammeled the rights of male employees, the Court
concluded that the plan passed muster because it authorized
merely that consideration be given to affirmative action concerns
when evaluating applicants; gender was a "plus" factor, only one
of several criteria that the Agency Director considered in making
his decision; no legitimate, firmly rooted expectation on the
part of Johnson was denied since the Agency Director could have
promoted any of the seven candidates classified as eligible; even
though Johnson was refused a promotion, he retained his
employment; and the plan was intended to attain a balanced work
force, not to maintain one. 

                               III.
         We analyze Taxman's claim of employment discrimination
under the approach set forth in McDonnell Douglas v. Green, 

(1978). Once a plaintiff establishes a prima faciecase, the
burden of production shifts to the employer to show a
legitimate nondiscriminatory reason for the decision; an
affirmative action plan may be one such reason. Johnson v.
Transportation Agency, Santa Clara County, 

, 626
(1987). When the employer satisfies this requirement, the burden
of production shifts back to the employee to show that the
asserted nondiscriminatory reason is a pretext and that the
affirmative action plan is invalid. 

judgment purposes, the parties do not
dispute that Taxman has established a prima facie case or that
the Board's decision to terminate her was based on its
affirmative action policy. The dispositive liability issue,
therefore, is the validity of the Board's policy under Title VII.

                               IV.
         Having reviewed the analytical framework for assessing
the validity of an affirmative action plan as established in
United Steelworkers v. Weber, 

(1979), and refined in

, we turn to the facts of this case in
order to determine whether the racial diversity purpose of the
Board's policy mirrors the purposes of the statute. We look for
the purposes of Title VII in the plain meaning of the Act's
provisions and in its legislative history and historical context.
See Edward v. Aguillard, 

, 594-95 (1987) (in
determining a statute's purpose, courts look to the statute's
words, legislative history, historical context and the sequence
of events leading to its passage).

                                A.
         Title VII was enacted to further two primary goals: to
end discrimination on the basis of race, color, religion, sex or
national origin, thereby guaranteeing equal opportunity in the
workplace, and to remedy the segregation and underrepresentation
of minorities that discrimination has caused in our Nation's work
force.
         Title VII's first purpose is set forth in section
2000e-2's several prohibitions, which expressly denounce the
discrimination which Congress sought to end. 42 U.S.C. § 2000e-
2(a)-(d),(l); McDonnell 

("The language
of Title VII makes plain the purpose of Congress to assure
equality of employment opportunities and to eliminate those
discriminatory practices and devices which have fostered racially
stratified job environments to the disadvantage of minority
citizens.").            This antidiscriminatory purpose is also reflected
in the Act's legislative history. In an interpretative
memorandum entered into the Congressional Record, Senators Case
and Clark, comanagers of the Senate bill, stated:
         To discriminate is to make a distinction, to
         make a difference in treatment or favor, and
         those distinctions or differences in
         treatment or favor which are prohibited by
         section 704 are those which are based on any
         five of the forbidden criteria: race, color,
         religion, sex, and national origin. Any
         other criterion or qualification for
         employment is not affected by this title.

                              * * *

         . . . [Title VII] expressly protects the
         employer's right to insist that any
         prospective applicant, Negro or white, must
         meet the applicable job qualifications.
         Indeed the very purpose of Title VII is to
         promote hiring on the basis of job
         qualifications, rather than on the basis of
         race or color.

110 Cong. Rec. 7213, 7247 (1964), quoted in Price Waterhouse v.
Hopkins, 

, 243 (1989).
         Title VII's second purpose, ending the segregative
effects of discrimination, is revealed in the congressional
debate surrounding the statute's enactment. In Weber, the Court
carefully catalogued the comments made by the proponents of Title
VII which demonstrate the Act's remedial concerns. 

. By way of illustration, we cite Senator Clark's
remarks to the Senate:
         The rate of Negro unemployment has gone up
         consistently as compared with white
         unemployment for the past 15 years. This is
         a social malaise and a social situation which
         we should not tolerate. That is one of the
         principal reasons why the bill should pass.

Cong. Rec. at 7220) (statement of Sen. Clark).
Likewise, Senator Humphrey spoke of the Nation's need "`to open
employment opportunities for Negroes which have been
traditionally closed to them,'" and to assist those who have
"`been excluded from the American dream for so long[.]'" Id.(quoting 110
Cong. Rec. at 6548, 6552) (statements of Sen.
Humphrey).
         The significance of this second corrective purpose
cannot be overstated. It is only because Title VII was written
to eradicate not only discrimination per se but the consequencesof prior
discrimination as well, that racial preferences in the
form of affirmative action can co-exist with the Act's
antidiscrimination mandate.
         Thus, based on our analysis of Title VII's two goals,
we are convinced that unless an affirmative action plan has a
remedial purpose, it cannot be said to mirror the purposes of the
statute, and, therefore, cannot satisfy the first prong of the
Weber test.
         We see this case as one involving straightforward
statutory interpretation controlled by the text and legislative
history of Title VII as interpreted in Weber and Johnson. The
statute on its face provides that race cannot be a factor in
employer decisions about hires, promotions, and layoffs, and the
legislative history demonstrates that barring considerations of
race from the workplace was Congress' primary objective. If
exceptions to this bar are to be made, they must be made on the
basis of what Congress has said. The affirmative action plans at
issue in Weber and Johnson were sustained only because the
Supreme Court, examining those plans in light of congressional
intent, found a secondary congressional objective in Title VII
that had to be accommodated -- i.e., the elimination of the
effects of past discrimination in the workplace. Here, there is
no congressional recognition of diversity as a Title VII
objective requiring accommodation.
         Accordingly, it is beyond cavil that the Board, by
invoking its affirmative action policy to lay off Sharon Taxman,
violated the terms of Title VII. While the Court in Weber and
Johnson permitted some deviation from the antidiscrimination
mandate of the statute in order to erase the effects of past
discrimination, these rulings do not open the door to additional
non-remedial deviations. Here, as in Weber and Johnson, the
Board must justify its deviation from the statutory mandate based
on positive legislative history, not on its idea of what is
appropriate.

                                B.
         The Board recognizes that there is no positive
legislative history supporting its goal of promoting racial
diversity "for education's sake", and concedes that there is no
caselaw approving such a purpose to support an affirmative action
plan under Title VII. "[T]he Board would have [us] infer the
propriety of this purpose from fragments of other authority."
Board of Educ. of Township of 

.
         The Board first attempts to meet its obligations with
respect to Title VII by arguing that Congress meant to cover the
situation presented here "when it amended Title VII in 1972 to
cover academic institutions public and private." A review of a
Senate Committee's explanation for recommending the amendment,
however, reveals that Congress neither addressed nor embraced the
racial diversity purpose before us. Instead, Congress pursued,
in Title VII's 1972 amendment with regard to the nation's
schools, the same purposes it had pursued in 1964 when enacting
the original statute with respect to other employers, namely, the
elimination of discriminatory employment practices and the
abolition of discrimination's invidious effects:
              The presence of discrimination in the
         Nation's educational institutions is no
         secret. . . . This discrimination, however,
         is not limited to the students alone.
         Discriminatory practices against faculty,
         staff, and other employees is also common.

              As in other areas of employment,
         statistics for educational institutions
         indicate that minorities and women are
         precluded from the more prestigious and
         higher-paying positions, and are relegated to
         the more menial and lower-paying jobs. While
         in elementary and secondary school systems
         Negroes accounted for approximately 10% of
         the total number of positions in the higher-
         paying and more prestigious positions in
         institutions of higher learning, blacks
         constituted only 2.2% of all positions, most
         of these being found in all-black or
         predominantly black institutions. Women are
         similarly subject to discriminatory patterns.
         Not only are they generally under-represented
         in institutions of higher learning, but those
         few that do obtain positions are generally
         paid less and advanced more slowly than their
         male counterparts. Similarly, while women
         constitute 67% of elementary and secondary
         school teachers, out of 778,000 elementary
         and secondary school principals, 78% of
         elementary school principals are men and 94%
         of secondary school principals are men.

              . . . There is nothing in the
         legislative background of Title VII, nor does
         any national policy suggest itself, to
         support the present exemption. In fact, the
         Committee believes that the existence of
         discrimination in educational institutions is
         particularly critical. 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 future development. To
         permit discrimination here would, more than
         in any other area, tend to promote existing
         misconceptions and stereotypical
         categorizations which in turn would lead to
         future patterns of discrimination.

S.Rep. 415, 92nd Cong., 1st Sess. 12 (1971). See 

n.6 ("While public employers were not added to the
definition of `employer' in Title VII until 1972, there is no
evidence that this mere addition to the definitional section of
the statute was intended to transform the substantive standard
governing employer conduct.").
         We find the Board's reliance on Fourteenth Amendment
caselaw misplaced as well. We are acutely aware, as is the
Board, that the federal courts have never decided a "pure" Title
VII case where racial diversity for education's sake was advanced
as the sole justification for a race-based decision. The Board
argues that in deciding just such a case, we should look to the
Supreme Court's endorsement of diversity as a goal in the Equal
Protection context. This argument, however, is based upon a
faulty premise.
         In relying on Equal Protection cases to support its
diversity goal, we understand the Board to reason as follows:
The Supreme Court observed in Johnson that "the statutory
prohibition [in Title VII] with which an employer must contend
was not intended to extend as far as that of the 

n.6. Accordingly, a purpose which survives
constitutional strict scrutiny necessarily passes muster under
Title VII's permissible purpose test -- since the Court has
endorsed the concept of diversity in Equal Protection cases, it
would approve the Board's diversity purpose in this Title VII
case, where the limitations on purpose are less stringent.
         We are convinced, however, that Johnson's footnote 

n.6, in which the Court contrasted the reach
of Title VII with that of the Constitution, does not speak to the
purposes that may support affirmative action under the former but
not the latter. We read the Court's observation to relate,
instead, to the factual predicate that employers must offer to
prove the need for remedial efforts in Title VII as contrasted
with Equal Protection affirmative action cases.
         In Johnson, the Court held that the legality of the
Santa Clara County Transportation Agency's plan under Title VII
must be guided by the Court's determination in Weber that
affirmative action is lawful if an employer can point to a
"`manifest imbalance . . . in traditionally segregated job

(quoting 

). In Wygant v. Jackson Board of Education, 

(1986), by contrast, the Court determined that under the
Constitution a public employer's remedial affirmative action
initiatives are valid only if crafted to remedy its own past or
present discrimination; that is, societal discrimination is an
insufficient basis for "imposing discretionary legal remedies
against innocent people." 

In the plurality's
words, affirmative action must be supported by "a factual
determination that the employer had a strong basis in evidence
for its conclusion that remedial action was necessary." 

         When the Court in Johnson observed that Title VII's
statutory prohibition does not extend as far as the Constitution,
it was addressing one of Justice Scalia's arguments in dissent
that since obligations under Title VII and the Constitution are
identical, a public employer's adoption of an affirmative action
plan in a Title VII case should be governed by the prior
discrimination standard set forth in Wygant. 

n.6.

         While 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.
         Were we to accept that equal protection standards may
be imported into Title VII analysis, we are still unpersuaded
that the Equal Protection caselaw validates the Board's asserted
goal of racial diversity. We cannot agree with the Board that
the racial diversity purpose is supported by both the Supreme
Court's holding and the dissenting opinions in Wygant. The Court
in Wygant, although divided, agreed that under the Equal
Protection Clause, racial classifications in the context of
affirmative action must be justified by a compelling state
purpose and the means chosen to effectuate that purpose must be
narrowly tailored; that societal discrimination alone will not
justify a racial classification; that evidence of prior
discrimination by an employer must be presented before remedial
racial classifications can be employed; and that the "role model"
theory proposed by the employer as a basis for race-conscious
state action was unacceptable because it would have allowed
discriminatory hiring and layoff well beyond the point necessary
for any remedial purpose and did not bear any relationship to the
harm caused by prior discrimination. 

93 (O'Connor, J., concurring in part and concurring in the
Court's judgment); 

(White, J., concurring in the
Court's judgment). The dissenting Justices believed that the
Constitution would allow a public employer to preserve the
integration it had achieved through a legitimate affirmative
action hiring plan by thereafter apportioning layoffs between
minority and nonminority groups. 

(Marshall, J.,
dissenting, joined by Brennan and Blackmun, JJ.); 

(Stevens, J., dissenting).
         We are also unpersuaded by the Board's contention that
Equal Protection cases arising in an education context support
upholding the Board's purpose in a Title VII action. These Equal
Protection cases, unlike the case at hand, involved corrective
efforts to confront racial segregation or chronic minority
underrepresentation in the schools. In this context, we are not
at all surprised that the goal of diversity was raised. While we
wholeheartedly endorse any statements in these cases extolling
the educational value of exposing students to persons of diverse
races and backgrounds, given the framework in which they were
made, we cannot accept them as authority for the conclusion that
the Board's non-remedial racial diversity goal is a permissible
basis for affirmative action under Title VII. See, e.g., 

(Marshall, J., dissenting) (noting that the
racially-conscious layoff provision at issue was aimed at
preserving the faculty integration achieved by the Jackson,
Michigan Public Schools in the early 1970s through affirmative
action; minority representation went from 3.9% in 1969 to 8.8% in
1971); Columbus Board of Education v. Penick, 

, 467
(1979) (condemning intentional segregation and the creation of
racially-identifiable schools practiced by the Columbus, Ohio
Board of Education); Regents of the University of California v.
Bakke, 

, 272 (1978) (Powell, J., announcing the
judgment of the Court) (observing that the 1968 class of the
Medical School of the University of California at Davis contained
three Asians, no Blacks, no Mexican-Americans and no American
Indians); Swann v. Charlotte-Mecklenburg Board of Education, 

(1971) (observing that 14,000 Black pupils in the
Charlotte-Mecklenburg, North Carolina school system attended 21
schools that were at least 99% Black); Kromnick v. School Dist.
of Philadelphia, 

, 897 (3d Cir. 1984) (recognizing
that "[t]he Philadelphia School System has long suffered from defacto
segregation by race of students and faculty"), cert.denied, 

(1985).
         More specifically, two Supreme Court cases upon which
the Board relies, 

, and Metro Broadcasting
Inc. v. FCC, 

(1990), are inapposite. Bakke involved
a rejected White applicant's challenge under the Constitution and
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to a
special admissions program instituted by the Medical School of
the University of California at Davis which essentially set aside
16 places for minority candidates. Justice Powell, whose vote
was necessary both to establish the validity of considering race
in admission decisions and to invalidate the racial quota before
the Court, was of the opinion that the attainment of a "diverse
student body" is a constitutionally permissible goal for an
institution of higher education. Justice Powell pointed out that
the academic freedom that has been viewed as a "special concern"
of the First Amendment includes "the freedom of a university to
make its own judgments as to the selection of its student body"
and that "[t]he atmosphere of `speculation, experiment and
creation' -- so essential to the quality of higher education --
is widely believed to be promoted by a diverse student body."

(footnote omitted). He then agreed with
Davis' assertion that its interest in diversity implicated First
Amendment concerns:
              Thus, in arguing that its universities
         must be accorded the right to select those
         students who will contribute the most to the
         "robust exchange of ideas," [Davis] invokes a
         countervailing constitutional interest, that
         of the First Amendment. In this light,
         petitioner must be viewed as seeking to
         achieve a goal that is of paramount
         importance in the fulfillment of its mission.

         Davis' reservation of a specified number of seats in
each class for individuals from preferred ethnic groups to
further its diversity purpose, however, was unacceptable because,
according to Justice Powell, it misconceived the nature of the
state interest that would justify consideration of race or ethnic
background:
         It is not an interest in simple ethnic
         diversity, in which a specified percentage of
         the student body is in effect guaranteed to
         be members of selected ethnic groups, with
         the remaining percentage an undifferentiated
         aggregation of students. The diversity that
         furthers a compelling state interest
         encompasses a far broader array of
         qualifications and characteristics of which
         racial or ethnic origin is but a single
         though important element. Davis' special
         admissions program, focused solely on ethnic
         diversity, would hinder rather than further
         attainment of genuine diversity.

(footnote omitted).
         Bakke's factual and legal setting, as well as the
diversity that universities aspire to in their student bodies,
are, in our view, so different from the facts, relevant law and
the racial diversity purpose involved in this case that we find
little in Bakke to guide us.
         Likewise, statements regarding the value of programming
diversity made by the Court in Metro Broadcasting when it upheld
two minority preference policies adopted by the Federal
Communications 

, have no application
here. The diversity interest the Court found sufficient under
the Constitution to support a racial classification had nothing
whatsoever to do with the concerns that underlie Title VII.
Citing Bakke, the Court concluded that "[j]ust as a `diverse
student body' contributing to a `robust exchange of ideas' is a
`constitutionally permissible goal' on which a race-conscious
university admissions program may be predicated, the diversity of
views and information on the airwaves serves important First
Amendment values." 

(citation omitted).
         Finally, we turn to the Board's argument that the
diversity goal underlying its application of the affirmative
action policy was endorsed in Justice O'Connor's concurring
opinion in Wygant and in Justice Stevens' concurring opinion in
Johnson. We find that these statements are slender reeds indeed
and any bearing that they may have in the situation presented
here is minimal. While Justice O'Connor did refer favorably to
Bakke and the notion of racial diversity in institutions of
higher learning, 

(O'Connor J.
concurring), just one year later in Johnson, a Title VII case,
she rejected Justice Steven's expansive view of the purposes that
may underlie affirmative action, stating: "[C]ontrary to the
intimations in JUSTICE STEVENS' concurrence, this Court did not
approve preferences for minorities `for any reason that might
seem sensible from a business or social point of view.'"

(O'Connor, J., concurring in the Court's
judgment). As for Justice Stevens' concurrence in Johnson, while
he clearly pondered the idea of "forward-looking" affirmative
action where employers do not focus on "`purg[ing] their own past
sins of discrimination'", 

(Stevens, J., concurring),
his comments are not controlling.

                                V.
         Since we have not found anything in the Board's
arguments to convince us that this case requires examination
beyond statutory interpretation, we return to the point at which
we started: the language of Title VII itself and the two cases
reviewing affirmative action plans in light of that statute. Our
analysis of the statute and the caselaw convinces us that a non-
remedial affirmative action plan cannot form the basis for
deviating from the antidiscrimination mandate of Title VII.
         The Board admits that it did not act to remedy the
effects of past employment discrimination. The parties have
stipulated that neither the Board's adoption of its affirmative
action policy nor its subsequent decision to apply it in choosing
between Taxman and Williams was intended to remedy the results of
any prior discrimination or identified underrepresentation of
Blacks within the Piscataway School District's teacher workforce
as a whole. Nor does the Board contend that its action here was
directed at remedying any de jure or de facto segregation. Butsee
Piscataway Township Bd. of Educ. v. Burke, 

(N.J.
Super. Ct. App. Div.), appeal dismissed, 

(N.J.
1978). Even though the Board's race-conscious action was taken
to avoid what could have been an all-White faculty within the
Business Department, the Board concedes that Blacks are not
underrepresented in its teaching workforce as a whole or even in
the Piscataway High School.
         Rather, the Board's sole purpose in applying its
affirmative action policy in this case was to obtain an
educational benefit which it believed would result from a
racially diverse faculty. While the benefits flowing from
diversity in the educational context are significant indeed, we
are constrained to hold, as did the district court, that inasmuch
as "the Board does not even attempt to show that its affirmative
action plan was adopted to remedy past discrimination or as the
result of a manifest imbalance in the employment of 

, the Board has failed to satisfy the first
prong of the Weber test. United States v. Board of Educ. of
Township of Piscataway, 

, 848 (D.N.J. 1993).
         We turn next to the second prong of the Weber analysis.
This second prong requires that we determine whether the Board's
policy "unnecessarily trammel[s] . . . [nonminority] interests.
. . ." 

. Under this requirement, too, the
Board's policy is deficient.
         We begin by noting the policy's utter lack of
definition and structure. While it is not for us to decide how
much diversity in a high school facility is "enough," the Board
cannot abdicate its responsibility to define "racial diversity"
and to determine what degree of racial diversity in the
Piscataway School is sufficient.
         The affirmative action plans that have met with the
Supreme Court's approval under Title VII had objectives, as well
as benchmarks which served to evaluate progress, guide the
employment decisions at issue and assure the grant of only those
minority preferences necessary to further the plans' purpose.

(setting forth long-range and short-
term objectives to achieve "`a statistically measurable yearly
improvement in hiring, training and promotion of minorities and
women . . . in all major job classifications where they are
underrepresented'"); 

(reserving for Black
employees 50% of the openings in craft-training programs until
the percentage of Black craftworkers reflected the percentage of
Blacks in the available labor force). By contrast, the Board's
policy, devoid of goals and standards, is governed entirely by
the Board's whim, leaving the Board free, if it so chooses, to
grant racial preferences that do not promote even the policy's
claimed purpose. Indeed, under the terms of this policy, the
Board, in pursuit of a "racially diverse" work force, could use
affirmative action to discriminate against those whom Title VII
was enacted to protect. Such a policy unnecessarily trammels the
interests of nonminority employees.
          Moreover, both Weber and Johnson unequivocally provide
that valid affirmative action plans are "temporary" measures that
seek to "'attain'", not "maintain" a "permanent racial . . .
balance." 

. See 

. The Board's policy, adopted in 1975, is an established
fixture of unlimited duration, to be resurrected from time to
time whenever the Board believes that the ratio between Blacks
and Whites in any Piscataway School is skewed. On this basis
alone, the policy contravenes Weber's teaching. See Cunico v.
Pueblo School Dist. No. 60, 

, 440 (10th Cir. 1990)
(holding that the school district's layoff decision aimed at
ensuring the employment of the district's only Black
administrator was "outright racial balancing" in violation of
Weber's second prong).
          Finally, we are 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 the Board's goal of
racial diversity, even if legitimate under Title VII, may not be
pursued in this particular fashion. This is especially true
where, as here, the nonminority employee is tenured. In Weberand Johnson,
when considering whether nonminorities were unduly
encumbered by affirmative action, the Court found it significant
that they retained their employment. 

(observing that the plan did not require the discharge of
nonminority workers); 

(observing that
the nonminority employee who was not promoted nonetheless kept
his job). We, therefore, adopt the plurality's pronouncement in
Wygant that "[w]hile hiring goals impose a diffuse burden, often
foreclosing only one of several opportunities, layoffs impose the
entire burden of achieving racial equality on particular
individuals, often resulting in serious disruption of their
lives. That burden is too intrusive." 

(footnote omitted).
         Accordingly, we conclude that under the second prong of
the Weber test, the Board's affirmative action policy violates
Title VII. In addition to containing an impermissible purpose,
the policy "unnecessarily trammel[s] the interests of the
[nonminority] employees." 

.

                               VI.
         The district court did not analyze Taxman's claims
based on the New Jersey Law Against Discrimination and we need
not do so in detail here. The parties have agreed that the legal
analysis required by the state statute is essentially the same as
that undertaken in Title VII cases. While the New Jersey Supreme
Court has yet to consider a voluntarily adopted affirmative
action plan in light of the NJLAD, it is undisputed that the
NJLAD has been interpreted to parallel Title VII. In Peper v.
Princeton Univ. Bd. of Trustees, 

, 478 (N.J. 1978),
the Supreme Court of New Jersey wrote that "where [Title VII]
standards are useful and fair, it is in the best interests of
everyone concerned to have some uniformity in the law."
         Given that statement, we predict that the New Jersey
Supreme Court would follow the analytical directive of Weber and
Johnson. Analysis of this case under the NJLAD would, therefore,
lead to the same result as that which we have reached under Title
VII. Sharon Taxman is entitled to summary judgment on her claim
made under the NJLAD.
                               VII.
         Having found the Board liable under Title VII, we turn
our attention to the issue of damages, addressing first the
district court's order that Taxman be awarded one hundred percent
backpay for the entire period of her layoff. The Board argues
that where a backpay award is appropriate, the court's goal
should be to restore "`the conditions and relationships that
would have been had there been no'" unlawful discrimination.
Teamsters v. United States, 

, 371 (1977) (quoting
Franks v. Bowman Transportation Co., 

, 769 (1976)).
According to the Board, the district court's award of one hundred
percent backpay was plainly unfair. Had it not invoked the
affirmative action plan, the Board would have followed its usual
procedure, using a coin toss or other random process to break the
seniority between Williams and Taxman. Taxman, therefore, would
have stood no more than a fifty percent chance of keeping her job
had there been no unlawful discrimination."
         We disagree. In deciding backpay issues, a district
court has wide latitude to "locate `a just result'" and to
further the "make whole remedy of Title VII in light of the
circumstances of a particular case." Albemarle Paper Co. v.
Moody, 

, 424-25 (1975). While Taxman cannot be
returned to the position that she held prior to her layoff -- one
of virtually precise equality with Williams in terms of the
factors relevant to the decision -- she can be returned to a
position of financial equality with Williams through a one
hundred percent backpay award. We are convinced that this award
most closely approximates the conditions that would have
prevailed in the absence of discrimination.
         We find an additional basis for our holding in the
analysis set forth in Price Waterhouse v. Hopkins, 

(1989). In that case, the Supreme Court held that where an
employee proves that discrimination played a role in an
employment decision, the employer will not be found "liable if it
can prove that, even if it had not taken [race] into account it
would have come to the same decision regarding a particular
person." 

Here, Taxman has clearly established that
the Board is liable and that she was not paid during the relevant
period. Under the logic of Hopkins, the Board cannot avoid a one
hundred percent backpay award unless it can establish, by a
preponderance of the evidence, that Taxman would have received
some lesser amount had the Board not taken race into account.
This, of course, the Board cannot do.
         Given the law and the circumstances presented in this
case, we are convinced that the district court's analysis with
respect to backpay reflects the sound exercise of judicial
discretion and we will affirm the award.
         The Board further contends that the district court
erred in calculating prejudgment interest using the IRS adjusted
prime rate. According to the Board, the district court should
have applied the post-judgment rate set forth in 28 U.S.C. §
1961(a). This argument is meritless.
         The matter of prejudgment interest is left to the
discretion of the district court. Although a court "may" use the
post-judgment standards of 28 U.S.C. § 1961(a), Sun Ship, Inc. v.
Matson Navigation Co., 

, 63 (3d Cir. 1986), it is not
compelled to do so. E.E.O.C. v. Wooster Brush Co. Employees
Relief Ass'n., 

, 579 (1984). The adjusted prime
rate, established periodically by the Secretary of the Treasury
and codified in 26 U.S.C. § 6621, has been used regularly by
district courts to calculate prejudgment interest. See, e.g.,
E.E.O.C. v. Erie County, 

, 82 (1984) (trial court did
not abuse its discretion in using adjusted prime rate to
calculate the amount of prejudgment interest to be paid on
backpay award under the Equal Pay Act).
         We thus hold that the district court's calculation of
pre-judgment interest was consistent with the sound exercise of
judicial discretion.
         Finally, in her cross-appeal, Taxman asks that we find
that the district court erred in dismissing her claim for
punitive damages under the NJLAD.
         At a January 5, 1994 proceeding devoted to the issue of
damages, the district court reaffirmed a decision made at a
pretrial conference to "strike the punitive damages claim" on the
ground that "there is no evidence to support [it]." (App. at
209). The court made the following comment with respect to
punitive damages:
         I didn't say I felt the board -- I may have
         said that the board acted in good faith, but
         I think what I did say is that there's no
         evidence that would support any claim for
         punitive damages. And I struck the punitive
         damages claim.

         There's absolutely no evidence that the board
         acted willfully, wantonly, outrageously or in
         any other way than trying its best to make
         the best of a very unhappy situation.

         The New Jersey Supreme Court has established a high
threshold requirement which must be met before an award of
punitive damages can be sustained. Punitive damages are to be
awarded only "`when the wrongdoer's conduct is especially
egregious.'" Rendine v. Pantzer, 

, 313, 

, 1215 (1995). "To warrant a punitive award, the defendant's
conduct must have been wantonly reckless or malicious. There
must be an intentional wrongdoing in the sense of an `evil-
minded' act accompanied by a wanton and willful disregard to the
rights of another. . . . The key to the right to punitive
damages is the wrongfulness of the intentional action." 

Jersey] case indicates that the requirement [of
willfulness or wantonness] may be satisfied a showing that there
has been a deliberate act or omission with knowledge of a high
degree of probability of harm and reckless indifference or
consequences.'" 

"[The New Jersey courts
have] stated that proof of actual malice [is] "`a condition
precedent to a punitive damages award.'" 

         Having examined the record evidence in this case
against the background of the New Jersey punitive damages
standard, we agree with the district court that the evidence
would not support a finding that the Board acted willfully,
wantonly or outrageously in dismissing Taxman. We conclude,
therefore, that Taxman's claim for punitive damages was properly
dismissed.

                              VIII.
         While we have rejected the argument that the Board's
non-remedial application of the affirmative action policy is
consistent with the language and intent of Title VII, we do not
reject in principle the diversity goal articulated by the Board.
Indeed, we recognize that the differences among us underlie the
richness and strength of our Nation. Our disposition of this
matter, however, rests squarely on the foundation of Title VII.
Although we applaud the goal of racial diversity, we cannot agree
that Title VII permits an employer to advance that goal through
non-remedial discriminatory measures.
         Having found that the district court properly concluded
that the affirmative action plan applied by the Board to lay off
Taxman is invalid under Title VII, and that the district court
did not err in calculating Taxman's damages or in dismissing her
claim for punitive damages, we will affirm the judgment of the
district court.

        TAXMAN v. BD. OF EDUC. OF THE TWP. OF PISCATAWAY,
Nos. 94-5090, 94-5112
STAPLETON, Circuit Judge, Concurring:

         I agree that the Board's non-remedial affirmative
action decision is unlawful because non-remedial affirmative
action employment decisions cannot pass muster under Title VII.
It is unnecessary, however, for the court to decide whether the
Board's actions unnecessarily trammel Taxman's interests.
Accordingly, I would express no opinion on that issue. I join
the remainder of the court's opinion.
United States of America, Sharon Taxman, Plaintiff-Intervenor
v. Bd. of Education of the Township of Piscataway,
Sharon Taxman, Appellant v. Bd. of Education of the Township of
Piscataway, Nos. 94-5090, 94-5112

SLOVITER, Chief Judge, dissenting, with whom Judges Lewis and
McKee join.
         In the law, as in other professions, it is often how
the question is framed that determines the answer that is
received. Although the divisive issue of affirmative action
continues on this country's political agenda, I do not see this
appeal as raising a broad legal referendum on affirmative action
policies. Indeed, it is questionable whether this case is about
affirmative action at all, as that term has come to be generally
understood -- i.e. preference based on race or gender of one
deemed "less qualified" over one deemed "more qualified." Nor
does this case even require us to examine the parameters of the
affirmative action policy originally adopted in 1975 by the Board
of Education of the Township of Piscataway (School Board or
Board) in response to a state regulation requiring affirmative
action programs or the Board's concise 1983 one-page Affirmative
Action policy.
         Instead, the narrow question posed by this appeal can
be restated as whether Title VII requires a New Jersey school or
school board, which is faced with deciding which of two equally
qualified teachers should be laid off, to make its decision
through a coin toss or lottery, a solution that could be expected
of the state's gaming tables, or whether Title VII permits the
school board to factor into the decision its bona fide belief,
based on its experience with secondary schools, that students
derive educational benefit by having a Black faculty member in an
otherwise all-White department. Because I believe that the area
of discretion left to employers in educational institutions by
Title VII encompasses the School Board's action in this case, I
respectfully dissent.
         The posture in which the legal issue in this case is
presented is so stripped of extraneous factors that it could well
serve as the question for a law school moot court. I emphasize
at the outset issues that this case does not present. We need
not decide whether it is permissible for a school to lay off a
more qualified employee in favor of a less qualified employee on
the basis of race, because that did not happen here. Nor need we
consider what requirements Title VII may impose on unwilling
employers, or how much racial diversity in a high school faculty
may be "enough."
         Significantly, although the School Board is a public
employer, this case does not place before us for decision the
limits on race-conscious action imposed on public entities by the
Constitution because we are presented with no constitutional
claim. Therefore, we must measure the Board's actions under the
restraints imposed by Title VII rather than the more demanding
ones imposed on government action by the Equal Protection Clause.
In this respect the case is similar to that presented in Johnson
v. Transportation Agency, Santa Clara County, 

(1987), where the Supreme Court noted that even though the
defendant was a public employer it would decide the case only
under Title VII because no constitutional issue was raised or
addressed below. See 

n.2. The Court also made clear
that for purposes of Title VII, the same standard applies to
public and private employers, stating that "[t]he fact that a
public employer must also satisfy the Constitution does not
negate the fact that the statutory prohibition with which that
employer must contend was not intended to extend as far as that
of the Constitution." 

n.6. This was an express
rejection of Justice Scalia's contention "that the obligations of
a public employer under Title VII must be identical to its
obligations under the Constitution." 

n. 6; see alsoid. at 649
(O'Connor, J., concurring). Thus it is important to
keep in mind that we must measure the Board's action in this case
against the same standard we would apply to a private school.

I.
         When in May 1989 the School Board was faced with the
disagreeable necessity of reducing by one the teaching staff in
the Business Department of Piscataway High School, it recognized
that reference to the applicable New Jersey law, which provides
the roadmap in terms of seniority, would not suffice here because
the two teachers had equal seniority. The Board, which has the
responsibility of gauging the educational requirements of the
students under its charge, would have to resort to its own
experience as there were no other prescribed guidelines. It did
not then turn to the affirmative action policy to make the
decision based on race. There was no built-in quota, expressed
or implied, for minority faculty, and Taxman does not so suggest.
On the contrary, the Board next considered a variety of
undoubtedly relevant factors, any one of which might have tipped
the scales in favor of laying off one teacher or the other. Had
Taxman been deemed a better teacher than Williams, that alone
could have pointed the arrow in her direction. Or, had Williams
participated in volunteer activity while Taxman spent her spare
time in other activities, that alone could have accounted for
Williams' retention. The deposition testimony of several board
members who participated in the decision indicates that before
the affirmative action policy was considered, a number of other
criteria were discussed to break the tie, including work
performance, certifications, evaluations, teaching ability, and
volunteerism. The two teachers with the least seniority, Taxman
and Williams, were determined to be equal with respect to each of
these other criteria.
         The Board's Vice President, Paula Van Riper, testified:
         [T]he seniority and the person's
         qualifications came into play first. If one
         was more senior than the other, it would have
         ended right there, if they were of like
         seniority. From that point it was based on
         their work performance and their evaluations
         . . . . There was some consideration given
         . . . to the various other activities that
         they did . . . . But certainly the weight
         would be given to their performance in the
         classroom. At that point we were told that
         these are two teachers of equal ability,
         equal qualifications, I should say. They
         . . . both[] had good evaluations, they were
         good teachers, they were supportive of the
         school district, volunteered in various ways
         and they . . . had similar certification or
         like certification and their seniority was
         the same so therefore they were equal.


Da179-80.
         The equal position of both teachers in light of all
relevant criteria was also stressed by the Director of Personnel,
Gordon Moore, who explained: "we . . . concluded that work
history or performance criteria [were] not going to be usable in
breaking the tie, because there was no distinction that could be
made." Da177.
         In its opinion, the majority declares the School
Board's affirmative action policy unlawful. An examination of
the so-called affirmative action policy reveals that it does
nothing more than place before the School Board the need to
consider minority personnel among other equally qualifiedcandidates for
employment decisions. Da5, 53. That this was a
necessary reminder in 1975 when the policy was formed can hardly
be gainsaid. I believe that it also was a useful reminder in
1989, when this School Board was faced with this decision, and
perhaps even today.
         A review of the record makes clear that the Board did
not view itself as bound to select Williams for retention by the
1975 affirmative action policy, which speaks only of
recommendations, but after discussion and consideration the Board
made a discretionary decision to select Williams for retention to
further the educational goal of a diverse faculty. Da72, 94.
         The Board members described their purpose in using the
goal of diversity underlying the previously adopted affirmative
action policy as a factor in the layoff decision as reflecting
the "general feeling . . . that it was valuable for the students
to see in the various employment roles a wide range of
background[s]," Da74, and "the desire to have a diverse teaching
staff in the school district." Da175-76. It was also intended
to send "a very clear message that we feel that our staff should
be culturally diverse [for the benefit of the students]" and to
"encourage awareness and acceptance and tolerance [of people of
all backgrounds]." Da75. Thus, the Board took into
consideration that if Williams were laid off, the Business
Department faculty at the school would be all White. Da94, 110,
168, 175-176.
                               II.
         It was the Board's decision to include the desire for a
racially diverse faculty among the various factors entering into
its discretionary decision that the majority of this court brands
a Title VII violation as a matter of law. No Supreme Court case
compels that anomalous result. Notwithstanding the majority's
literal construction of the language of Title VII, no Supreme
Court case has ever interpreted the statute to preclude
consideration of race or sex for the purpose of insuring
diversity in the classroom as one of many factors in an
employment decision, the situation presented here. Moreover, in
the only two instances in which the Supreme Court examined under
Title VII, without the added scrutiny imposed by the Equal
Protection Clause, affirmative action plans voluntarily adopted
by employers that gave preference to race or sex as a
determinative factor, the Court upheld both plans.
         In its 1979 decision in United Steelworkers v. Weber,

(1979), the Court held that an agreement between a
private company and a union that sought to remedy the historical
exclusion of Blacks from skilled craft unions by reserving half
the openings in an in-house training program for Blacks did not
violate Title VII. A scarce decade later, it reached a similar
decision in Johnson v. Transportation Agency, Santa Clara County,

(1987), where the plan that the Court upheld
authorized consideration of the gender of a qualified applicant
as one of various factors for promoting employees into jobs in
which women had been significantly underrepresented.
         The majority presents Weber and Johnson as if their
significance lies in the obstacle course they purportedly
establish for any employer adopting an affirmative action
program.   But, as the Justices of the Supreme Court recognized,
the significance of each of those cases is that the Supreme Court
sustained the affirmative action plans presented, and in doing so
deviated from the literal interpretation of Title VII precluding
use of race or gender in any employment action. As Justice
Brennan explained in Weber, "It is a 'familiar rule that a thing
may be within the letter of the statute and yet not within the
statute, because not within its spirit nor within the intention
of its makers.'" 

(quoting Holy Trinity
Church v. United States, 

, 459 (1892)). The Justices
dissenting in those cases noted and vigorously objected to the
departure. See, e.g., 

, 228 (Rehnquist,
J., dissenting) (asserting that the majority "eludes the clear
statutory language" and that Kaiser's affirmative action plan is
"flatly prohibited by the plain language of Title VII"); 

(Scalia, J., dissenting) ("It is well to keep in
mind just how thoroughly Weber rewrote the statute it purported
to construe . . . Weber disregarded the text of the statute,
invoking instead its 'spirit'").
         While the majority in this case views the Supreme
Court's articulation of the factors that rationalized its
upholding of the affirmative action plans in those cases as
establishing boundaries, no language in either Weber or Johnsonso states
and, in fact, there is language to the contrary. The
majority draws the line at the factors used in those cases. In
both Weber and Johnson, the Court inquired whether consideration
of race in the employment decision was justified by a permissible
purpose, and then examined the effect on nonminorities to
ascertain whether the action taken "unnecessarily trammel[ed] the
interests of the white employees." 

;

.
         However, it does not follow as a matter of logic that
because the two affirmative action plans in Weber and Johnsonwhich sought
to remedy imbalances caused by past discrimination
withstood Title VII scrutiny, every affirmative action plan that
pursues some purpose other than correcting a manifest imbalance
or remedying past discrimination will run afoul of Title VII.
Indeed, the Court in Weber explicitly cautioned that its holding
in that case should not be read to define the outer boundaries of
the area of discretion left to employers by Title VII for the
voluntary adoption of affirmative action measures. The Court
stated:
         We need not today define in detail the line
         of demarcation between permissible and
         impermissible affirmative action plans. It
         suffices to hold that the challenged Kaiser-
         USWA affirmative action plan falls on the
         permissible side of the line. The purposes
         of the plan mirror those of the statute.
         Both were designed to break down old patterns
         of racial segregation and hierarchy. Both
         were structured to "open employment
         opportunities for Negroes in occupations
         which have been traditionally closed to
         them."

. See also 

(Blackmun, J.,
concurring)(noting that Kaiser plan "is a moderate one" and that
"the Court's opinion does not foreclose other forms of
affirmative action").
         The majority opinion in Johnson made no attempt to draw
the line that Weber left undefined. See 

(Stevens, J., concurring) ("I write . . . to . . . emphasize that
the opinion does not establish the permissible outer limits of
voluntary [affirmative action] programs"). Although Justice
O'Connor's concurring opinion argued that permissible purposes
under Title VII were limited to those that served to remedy past
discrimination, 

, her vote was the sixth
in favor of the majority's holding and therefore not crucial to
the outcome of the case. It follows that her narrow reading
should not be read as constituting the view of the Court. SeeMarks v.
United States, 

, 193 (1977).

         The majority here has taken the language of Weber where
the Court observed that the plan's purposes "mirrored" those of
the statute, and has elevated it to a litmus test under which an
affirmative action plan can only pass muster under Title VII if
particular language in the text or legislative history of the
statute can be identified that matches the articulated purpose of
the plan. Nothing in Weber suggests that the Court intended by
its "mirroring" language to create such a rigid test.
         In Weber, when the Court found that the purposes of the
plan were consistent with those of Title VII, it did so by
reference not only to the language of the legislative history,
but to the historical context from which the Act arose as well.

In Johnson, the Court made no attempt at all to
identify language in the legislative history paralleling the
particular objectives of the plan it sustained. Thus, even in
those cases the Court did not demonstrate the kind of close fit
between the plan and the statutory history demanded of the Board
in this case.
         In Weber, the Court's examination into the purposes of
Title VII led it to the conclusion that the Act was designed to
promote "the integration of blacks into the mainstream of
American society," 

, and the breakdown of
"old patterns of racial segregation and hierarchy," 

The Kaiser affirmative action plan was consistent with these
sweeping, broadly stated purposes and hence was sustained.
         Of course, I do not disagree with the majority that
"Title VII was written to eradicate not only discrimination per
se but the consequences of prior discrimination," but I do not
believe that in doing so, Congress intended to limit the reach of
Title VII to remedying past discrimination, thereby turning a
blind eye toward those social forces that give rise to future
discrimination. Title VII, which was a part of the Civil Rights
Act of 1964, was fundamentally forward-looking legislation, and
that purpose should not be ignored.
         The effort to remedy the consequences of past
discrimination (such as the "patterns of segregation and
hierarchy" referred to in 

), cannot be
isolated from the statute's broader aim to eliminate those
patterns that were potential causes of continuing or future
discrimination. The causal relationship is illustrated by the
industry at issue in Weber, where the Court noted that the
ongoing imbalance in the hiring of craftworkers had its roots in
a history of discrimination that had excluded Blacks from craft
unions and thus prevented them from acquiring the necessary
qualifications. 

In describing the overarching goal
toward which the Civil Rights Act was aimed, the House Report
spoke of the need to "eliminat[e] all of the causes and
consequences of racial and other types of discrimination against
minorities." H.R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, at
18 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393 (emphasis
added).
         Thus, using the approach taken in Weber and Johnson as
a springboard, actions consistent with and in furtherance of the
broad statutory goal of eliminating the causes of discrimination
are not per se proscribed by Title VII. This generation of young
people may not recall that in 1964 racial homogeneity in schools
was viewed as among the most fundamental and pernicious aspects
of the social pattern undergirding the system of discrimination
that the Civil Rights Act sought to dismantle. In the years
leading up to the Act's passage, school integration was one of
the focal points of the civil rights movement. The Senate Report
accompanying the 1972 amendments to Title VII, when it was
expanded to cover state and local governments, noted the
connection between racial homogeneity in schools and attitudes
that lead to discrimination:
              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 future development. To
              permit discrimination here [among
              faculty and staff] would, more than in
              any other area, tend to promote existing
              misconceptions and stereotypical
              categorizations which in turn would lead
              to future patterns of discrimination.
S. Rep. No. 415, 92nd Cong., 1st Sess. 12 (1971)).
         In other contexts, the Court has repeatedly recognized
racial diversity in the classroom as an important means of
combatting the attitudes that can lead to future patterns of
discrimination. As Justice Stevens observed in Wygant:
         In the context of public education, it is
         quite obvious that a school board may
         reasonably conclude that an integrated
         faculty will be able to provide benefits to
         the student body that could not be provided
         by an all-white, or nearly all-white,
         faculty. For one of the most important
         lessons that the American public schools
         teach is 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. It
         is one thing for a white child to be taught
         by a white teacher that color, like beauty,
         is only "skin deep"; it is far more
         convincing to experience that truth on a day-
         to-day basis during the routine ongoing
         learning 

(Stevens, J., dissenting). See also 

(Stevens, J., concurring) (noting educational benefit
to be derived from racial diversity, "'by dispelling for black
and white students alike any idea that white supremacy governs
our social institutions'" (quoting Sullivan, The Supreme Court--
Comment, Sins of Discrimination: Last Term's Affirmative Action
Cases, 100 Harv.L.Rev. 78, 96 (1986))); Washington v. Seattle
School Dist. No. 1, 

, 473 (1982) ("Attending an
ethnically diverse school may help . . . prepar[e] minority
children 'for citizenship in our pluralistic society,' while, we
may hope, teaching members of the racial majority 'to live in
harmony and mutual respect' with children of minority
heritage."(citations omitted)); Columbus Bd. of Educ. v. Penick,

, 461, 467 (1979) (disapproving policies that
"deprive black students of opportunities for contact with and
learning from white teachers, and . . . deprive white students of
similar opportunities to meet, know and learn from black
teachers"); Kromnick v. School District of Philadelphia, 

, 905 (3d Cir. 1984)("Schools are great instruments in
teaching social policy [from which students learn] from the
images and experiences that surround them . . . a spirit of
tolerance and mutual benefit."), cert. denied, 

(1985).
         It is "ironic indeed" that the promotion of racial
diversity in the classroom, which has formed so central a role in
this country's struggle to eliminate the causes and consequences
of racial discrimination, is today held to be at odds with the
very Act that was triggered by our "Nation's concern over
centuries of racial injustice." 

. Nor
does it seem plausible that the drafters of Title VII intended it
to be interpreted so as to require a local school district to
resort to a lottery to determine which of two qualified teachers
to retain, rather than employ the School Board's own educational
policy undertaken to insure students an opportunity to learn from
a teacher who was a member of the very group whose treatment
motivated Congress to enact Title VII in the first place. In my
view, the Board's purpose of obtaining the educational benefit to
be derived from a racially diverse faculty is entirely consistent
with the purposes animating Title VII and the Civil Rights Act of
1964.
         The majority criticizes the Board's use of caselaw
construing the Equal Protection Clause in this Title VII case,
notwithstanding the Supreme Court's explicit statement in Johnsonthat
Title VII's constraint on affirmative action was "not
intended to extend as far as that of the 

n.6. Nothing in the Court's language in the Johnsonfootnote
suggests that we confine it to the particular factual
context in which it was made, and the Court is certainly
sufficiently articulate to limit its language when so inclined.
Nor is the Johnson footnote the only place where the Court
signified its understanding that Title VII imposes fewer
limitations on employers' voluntary affirmative action than does
the Constitution. In Weber, the Court spoke of the "narrowness
of [its] inquiry" since the plan did not involve state action and
hence did not present an alleged violation of the Equal
Protection Clause, 

, and later stated that
"Title VII . . . was not intended to incorporate and
particularize the commands of the Fifth and Fourteenth
Amendments." 

n.6 (quoted in 

n.6). The latter statement was not made in a discussion that had
to do with the "factual predicate" for demonstrating the need for
remedial affirmative action, as the majority would confine the
similar language in Johnson.
         In any event, ultimately it is the Supreme Court rather
than this one that will decide whether Title VII allows an
employer more discretion to implement race-conscious employment
policies than does the Constitution in the employer's effort to
promote the underlying goals of the Act. But, in the absence of
any dispositive precedent, I believe it would be shortsighted for
us to disregard the Supreme Court's statements regarding the
advantages of diversity in an educational context when examining
the limited use to which diversity was used as a factor in the
Board's decision here. In Regents of the University of
California v. Bakke, 

(1978), where the Court
considered a University of California affirmative action program
for student admissions, Justice Powell, who announced the
judgment of the Court, recognized that a diverse student body
leads to a "robust exchange of ideas," 

(quoting
Keyishian v. Board of Regents, 

, 603 (1967)), and
noted that the "essential" elements of academic freedom include
the ability not only to select the student body but to determine
"who may teach," 

v. New Hampshire, 

, 263 (1957)).
         In Wygant v. Jackson Board of Education, 

(1986), the Court held that preferential protection against
layoffs afforded to minority teachers by the public school
board's affirmative action plan could not be sustained, because
the school board's proffered justification for the plan -- that
minority teachers were needed to provide role models for minority
students -- was not sufficiently compelling to withstand the
strict scrutiny to which it was subject under the Fourteenth
Amendment. 

(Powell, J., joined by Burger, C.J.,
Rehnquist, J. and O'Connor, J.); 

(O'Connor, J.,
concurring); 

(White, J., concurring). However,
Justice O'Connor, in her concurring opinion which was the
decisive vote in the Court's holding, specifically distinguished
the goal of providing role models from "the very different goal
of promoting racial diversity among the faculty," explicitly
leaving open the possibility that the latter goal might be
sufficiently compelling to pass constitutional muster. 

n.*. She also made a favorable reference to Justice Powell's
endorsement of diversity in the classroom in Bakke, stating,
"although its precise contours are uncertain, a state interest in
the promotion of racial diversity has been found sufficiently
'compelling,' at least in the context of higher education, to
support the use of racial considerations in furthering that
interest." 

Her position, plus that of the four
dissenting justices, (Marshall, J., dissenting, joined by Brennan
& Blackmun, JJ.) (seeking "to achieve diversity and stability for
the benefit of all students" through faculty integration is a
constitutionally sufficient purpose); 

(Stevens, J.,
dissenting) ("'recognition of the desirability of multi-ethnic
representation on the teaching faculty'" is a "completely sound
educational purpose" (citation omitted)), meant there were five
justices in Wygant who approved in general terms the concept that
the educational benefit derived from diversity in the classroom
can constitute an acceptable justification for affirmative
action. See also Britton v. South Bend Community School Corp.,

, 773 n.1 (7th Cir.) (en banc) (Flaum & Bauer, JJ.,
concurring) ("Remedying past discrimination is not necessarily
the only government purpose sufficiently compelling to justify
the remedial use of race. Providing faculty diversity may be a
second."), cert. denied, 

(1987); Zaslawsky v. Board
of Education of Los Angeles, 

, 664 (9th Cir. 1979)(in
equal protection context, purpose of "enhanc[ing] the educational
opportunities available to the students by achieving better
racial balance in the teaching faculty . . . has been well
recognized and approved by the Supreme Court").
         I therefore respectfully disagree with the majority,
both in its construction of Weber and Johnson as leaving no doors
open for any action that takes race into consideration in an
employment situation other than to remedy past discrimination and
the consequential racial imbalance in the workforce, and in what
appears to be its limited view of the purposes of Title VII. I
would hold that a school board's bona fide 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.
                               III.
         It is undeniable that, in the abstract, a layoff
imposes a far greater burden on the affected employee than a
denial of promotion or even a failure to hire. In this case,
however, it cannot be said with any certainty that Taxman would
have avoided the layoff had the Board's decision not been race-
conscious. If a random selection had been made, Taxman would
have had no more than a fifty-percent chance of not being laid
off. Thus, this was not a situation where Taxman had a
"legitimate and firmly rooted expectation" of no layoff.

; cf. Mackin v. City of Boston, 

, 1278 (1st Cir. 1992) (where, even in absence of affirmative
action scheme, White applicants "could not reasonably have felt
assured that they would be appointed," plan did not disturb any
legitimate expectations), cert. denied, 

(1993).
         This differs from the situation of an employee who is
next in line for a promotion by the objective factor of
seniority. Taxman's qualifications were merely equal to those of
her competitor for this purpose. In Johnson the Court held that
because there were six other employees who also met the
qualifications for the job, Johnson had no "entitlement" or
"legitimate firmly rooted expectation" in the promotion, even
though he had scored higher than the others on the qualifying
test. See Peightal v. Metropolitan Dade County, 

,
1408 (11th Cir. 1991) (affirmative action plan valid under Title
VII where it never requires hiring unqualified person over
qualified person), cert. denied, 

(1992); cf. United
States v. Paradise, 

, 177-78 (same under equal
protection). Moreover, just as the plaintiff in Johnson remained
eligible for promotion in the 

, Taxman
retained recall rights after her layoff, and did in fact regain
her job.
         The majority relies in part on Wygant, where the
Supreme Court found that the use of faculty layoffs to meet
affirmative action goals in a public school system imposed too
heavy a burden on White employees. 

.
However, the Court's holding that the Wygant plan was not
"narrowly tailored" for purposes of an equal protection challenge
is not dispositive of the present inquiry as to whether a plan
"unnecessarily trammels" the rights of White employees for Title
VII purposes. Not only was a different legal standard applicable
but Wygant is also distinguishable because the Wygant plan caused
nonminority teachers with more seniority to be laid off in order
to retain minority teachers with less seniority. 

. The Wygant plan actually caused teachers to be laid
off who, in the absence of the plan, would have had no risk of
layoff. That burden -- increasing the chance of layoff from zero
to one hundred percent -- is significantly heavier than that
imposed on Taxman, who would have had a substantial chance of
being laid off even absent any consideration of diversity.
         Only three members of the Court subscribed to language
in the plurality opinion in Wygant suggesting that the use of
layoffs to accomplish affirmative action goals will never survive
strict scrutiny. 

. The two concurring
justices did not go that far. See 

(O'Connor, J.,
concurring) ("[n]or is it necessary, in my view, to resolve the
troubling question[] whether any layoff provision could survive
strict scrutiny"); 

(White, J., concurring) (confining
his conclusion to the specifics of the layoff policy at issue).
Therefore I do not read Wygant to hold that no race-conscious
layoff decision will survive Title VII scrutiny.
         The majority gives a similarly narrow reading to Weberand
Johnson, construing these cases to impose a wooden,
"unequivocal" requirement that all affirmative action plans must
be explicitly temporary in order to be valid. Majority
Typescript at 40. In fact, the Johnson plan itself "contain[ed]
no explicit end date," 

, and the Court
indicated that only certain plans that are particularly
burdensome on nonminorities in other respects need necessarily be
expressly temporary. "Express assurance that a program is only
temporary may be necessary if the program actually sets aside
positions according to specific numbers." 

(emphasis added). The Supreme Court's references to the
temporary duration of the plans at issue in Weber and Johnson are
more accurately construed as an understandable effort to assure
that race does not become a permanently embedded consideration in
employment decisions. The significant consideration is whether
there has been an effort "to minimize the effect of the program
on other employees," not whether the underlying policy is set to
run a specified number of years. 

.
          In the situation before us, I see ample basis from
which to deduce an effort to minimize the effect of the Board's
affirmative action policy on non-minority employees. One such
aspect is the discretionary nature of the policy. The Board is
free not to apply the policy, even to break a tie. Also
significant is the infrequency with which the Board has resorted
to the policy. Although it may be of little comfort to Taxman,
the fact that this is the first time in the twenty years since
the policy was adopted that it has been applied to a layoff
decision demonstrates the minimum impact on White teachers as a
whole. And since, by its own terms, it only applies in the rare
instances in which two candidates are of different races but
equal qualifications and the department in question is not
already diverse, it is likely that it will continue to be
infrequently applied. See District Court's Final Judgment and
Contingent Order, entered February 15, 1994 at 2 (denying request
for broad injunction because "[t]here is, in the court's view, no
likelihood that the conduct at issue in this case will recur").
         In this connection, I deem it further evidence of the
Board's interest in minimizing any adverse effect on non-
minorities that it has not defined diversity by any specific
numerical goal. Although the majority regards that as a major
concern, I view the lack of any such figure as an indication that
the Board's plan does not impose a fixed quota with the rigidity
attendant thereto.
         It is not the province of this court to intrude into
what is essentially an educational decision. Once we have
determined that promoting faculty diversity for educational
purposes can be a valid justification for an appropriately
limited race-conscious action, it is not our role to second-guess
the judgment of educators as to the level of diversity that
produces the educational environment they deem appropriate.
The Board's action is an attempt to create an educational
environment that will maximize the ability of students to address
racial stereotypes and misconceptions born of lack of
familiarity. I find it difficult to believe that an Act that was
given birth by the tensions of the civil rights era precludes it
from doing so under the facts before us here. Given the record
before us, the consequence of the narrow reading that the
majority gives Weber and Johnson is the very irony that the
Supreme Court said would result from interpreting this civil
rights statute in a manner divorced from its historic context.
As the Court noted in Weber:
         [i]t would be ironic indeed if a law triggered by a
         Nation's concern over centuries of racial injustice and
         intended to improve the lot of those who had "been
         excluded from the American dream for so long," 110
         Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey),
         constituted the first legislative prohibition of all
         voluntary, private, race-conscious efforts to abolish
         traditional patterns of racial segregation and
         hierarchy.

.
         I return to the question raised at the outset: whether
Title VII requires that the Board toss a coin to make the layoff
selection between equally situated employees. In his opinion for
the majority in Weber, Justice Brennan noted the distinction made
by Congress between requiring and permitting affirmative action
by employers. See 

. He deemed it
important that, while Congress explicitly provided that Title VII
should not be interpreted to require any employer to grant
preferential treatment to a group because of its race, Congress
never stated that Title VII should not be interpreted to permitcertain
voluntary efforts.
         In this case, the majority gives too little
consideration to the tie-breaking method that its holding will
impose on the Board. It points to no language in Title VII to
suggest that a lottery is required as the solution to a layoff
decision in preference to a reasoned decision by members of the
School Board, some of whom are experienced educators, that race
of a faculty member has a relevant educational significance if
the department would otherwise be all White. While it may seem
fairer to some, I see nothing in Title VII that requires use of a
lottery.
         Because I cannot say that faculty diversity is not a
permissible purpose to support the race conscious decision made
here and because the Board's action was not overly intrusive on
Taxman's rights, I would reverse the grant of summary judgment
for Taxman under Title VII and direct that summary judgment be
granted to the School Board.
Taxman v. Bd. of Educ. of the Twp. of Piscataway, 94-5090/5112


SCIRICA, Circuit Judge, dissenting, with whom Chief Judge
Sloviter joins.
         While I find much with which I agree in the majority's
opinion, I am constrained to express my disagreement because I
believe education presents unique concerns.
         In University of California Regents v. Bakke, 

(1978), Justice Powell recognized that "the 'nation's future
depends upon leaders trained through wide exposure' to the ideas
and mores of students as diverse as this Nation of many peoples."

(citation omitted). As he noted, in the university:
"[A] great deal of learning occurs . . . through interactions
among students of both sexes, of different races, religions, and
backgrounds . . . ." 

n.48 (citation omitted).
Eighteen years later, the wisdom of this statement resonates as
strongly as ever. When added to a university's high academic
standards, this exposure constitutes a formidable educational
experience.
         In this case, the Piscataway Board of Education
concluded that a diverse faculty also serves a compelling
educational purpose; namely, it benefits students in the business
department by exposing them to teachers with varied backgrounds.
The Board implemented a program that, in limited circumstances,
allows consideration of race as a factor in school employment
decisions. The Board did not countenance the layoff of a more-
qualified teacher in the place of a less-qualified one. It did
not prefer teachers junior in seniority to those with more
experience. Rather it concluded that when teachers are equal in
ability and in all other respects--and only then--diversity of
the faculty is a relevant consideration.
         I do not believe Title VII prevents a school district,
in the exercise of its professional judgment, from preferring one
equally qualified teacher over another for a valid educational
purpose.
         Accordingly, I respectfully dissent.


United States v. Bd. of Educ. of the Twp. of Piscataway
Sharon Taxman v. Bd. of Educ. of the Twp. of Piscataway
Nos. 94-5090 and 94-5112


LEWIS, Circuit Judge, with whom Judge McKee joins, dissenting.
         I join in Chief Judge Sloviter's dissent, as well as
those of each of my dissenting colleagues.
         I would only add that we should be mindful of the
effects the majority's approach will impose upon legitimate,
thoughtful efforts to redress the vestiges of our Nation's
history of discrimination in the workplace and in education;
efforts which, in seeking to achieve pluralism and diversity,
have helped define and enrich our offices and institutions, and
which were intended to open, and keep open, the doors of
opportunity to those who have "been excluded from the American
dream for so long." See 110 Cong. Rec. 6552 (1964) (excerpted
from Sen. Humphrey's remarks). This, after all, is what I had
always thought Title VII was intended to accomplish. More
importantly, as Chief Judge Sloviter notes, these goals are
plainly supported by the statute's legislative history. Thus,
while the majority holds that Title VII only allows race to be
considered in remedying a history of intentional discrimination
or a "manifest imbalance," I believe this conclusion is
fundamentally at odds with the overriding goals of the statute.
And the real-life impact of the majority's unprecedented
construction of Title VII is readily apparent when one
contemplates the myriad of difficult decisions that employers
across the nation face everyday.
         Somewhere out there in the real world, for example,
there is a law firm with a racial make-up (a workforce) akin to
Piscataway High School's; a firm which lacks a history of
intentional discrimination in hiring but, due to economic
concerns, must decide between retaining one of two attorneys --
the first and only black associate to work in its prestigious
anti-trust department, or his equally qualified white
counterpart. The firm's management committee may decide that to
lay-off the black associate would be an unwise and potentially
damaging business decision because it would negate the large
investment of time, effort and money spent trying to recruit and
retain minority lawyers. In other words, the firm may believe
that diversity would be good for business and good for itself,
so, everything else being equal, it decides to lay-off the white
associate.
         In a situation such as this, the firm's reliance upon
race as one among many factors in making its decision is the type
of management prerogative which is totally consistent with the
goals and underlying purpose behind Title VII. See 

(noting that Title VII's legislative history
demonstrates that the statute was not intended to place
unnecessary limits upon "management prerogatives"). After it
reads the majority's decision, however, it seems clear that the
firm will be forced to disregard its own better business
judgment, forsake its recent recruiting successes among
minorities and, I suppose, flip a coin on its own future as well
as the young associates', all in order to avoid the specter of
Title VII liability and an enormous damage award.
         At times, a private college, with a handful of
minorities on its faculty and with no history of intentional
discrimination in hiring, is faced with the unenviable task of
deciding which of two young associate professors with
indistinguishable records to grant tenure in a particular
department. The only difference between the two is that one is
white and the other is Latino. After reviewing all of the other
factors and finding them in equipoise, the tenure committee may
decide to offer the position to the Latino associate professor
because there has never been a tenured Latino professor in any
department at the college, and because it believes his presence
at the college will be a significant benefit to the entire
student body. As with the law firm, this decision is entirely
consistent with Title VII because it is motivated by some of the
same concerns that lead Congress to enact the statute. See

(noting that the plan was valid under
Title VII in part because the "purposes . . . mirror those of the
statute").
         But again, the majority's rationale will thwart the
college's ability to rely upon its independent judgment in
deciding what is in the best interests of the students whom it is
charged with educating. Instead, according to the majority, that
important judgment is better exercised (in this case may only be
exercised) by resorting to a coin-flip.
         One could cite countless other examples of the
significant and ultimately counterproductive effects of the
majority's narrow construction of Title VII, but suffice it to
say that in my view, Title VII was not enacted to prevent the
thoughtful, deliberative processes employed by such a law firm or
college. I believe that in this case the school board'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 categorizations which in turn lead to future
patterns of discrimination." See S. Rep. No. 415, 92nd Cong.,
1st Sess. 12 (1971). Accordingly, its decision was as legal as
it was laudable.
         I believe the majority's decision eviscerates the
purpose and the goals of Title VII. I respectfully
dissent.Taxman v. Board of Education of the Twp. of Piscataway
Nos. 94-5090 & 94-5112

McKEE, Circuit Judge, dissenting, with whom SLOVITER, Chief Judgeand
LEWIS, Circuit Judge join.
         I join each the opinions of my dissenting colleagues,
but write only to elaborate upon what I consider to be important
considerations in our analysis. "The prohibition against racial
discrimination in §§ 703(a) and (d) of Title VII must [ ] be read
against the background of the legislative history of Title VII
and the historical context from which the Act arose." United
Steelworkers v. Weber, 

, 201 (1979).
         We have now come full circle. A law enacted by Congress
in 1964 to move this country closer to an integrated society and
away from the legacy of "separate but equal" is being interpreted
as outlawing this Board of Education's good faith effort to teach
students the value of diversity. The selection of Ms. Williams
meant that the business department would retain the only Black
teacher tenured in that department in anyone's memory. Board
President Theodore H. Kruse testified that it was his "general
feeling . . . that it was valuable for the students to see in the
various employment roles a wide range of background[s]" and that
diversity "was also valuable to the work force and in particular
to the teaching staff." Da74. Kruse further explained that "by
retaining Mrs. Williams it was sending a very clear message that
we feel that our student population is culturally diverse and
there is a distinct advantage to students . . . to be made . . .
more aware, more tolerant, more accepting, more understanding of
people of all background[s]." Da75. I can not believe that
Title VII was intended to strike down such an action.
         As Chief Judge Sloviter points out, the majority's
ruling is based upon an interpretation of United Steelworkers v.
Weber, 

(1979), and Johnson v. Transportation Agency,

(1987) that conflicts with the language used in
those cases. See Typescript at 10-11 (Sloviter, C.J.,
dissenting). The majority's conclusion that affirmative action
plans not limited to attempts to remedy past discrimination run
afoul of Title VII simply ignores the legislative history that
Weber and Johnson require us to consider.
                    Given the interpretation of [Title VII] the
                    Court adopted in Weber, I see no reason why
                    the employer has any duty, prior to granting
                    a preference to a qualified minority
                    employee, to determine whether his past
                    conduct might constitute an arguable
                    violation of Title VII. Indeed, in some
                    instances the employer might find it more
                    helpful to focus on the future. Instead of
                    retroactively scrutinizing his own or
                    society's possible exclusions of minorities
                    in the past to determine the outer limits of
                    a valid affirmative-action program -- or
                    indeed, any particular affirmative-action
                    decision -- in many cases the employer will
                    find it more appropriate to consider other
                    legitimate reasons to give preferences to
                    members of under-represented groups.
                    Statutes enacted for the benefit of minority
                    groups should not block these forward-looking
                    

(Stevens, J., concurring). This is
particularly true in the field of education where young people
are developing opinions and beliefs that will determine their
attitudes as citizens, and this country's future. Under such
circumstances, the School Board considered Ms. Williams' race as
a factor that was weighed in the balance with all other factors
in making a very difficult choice between two equally fine
teachers.
         Similar consideration of an employee's sex has been
upheld in Johnson. There, the Court stated:
                    We therefore hold that the Agency
                    appropriately took into account as one factor
                    the sex of [the employee] in determining that
                    she should be promoted to the road dispatcher
                    position. The decision to do so was made
                    pursuant to an affirmative action plan that
                    represents a moderate, flexible, case-by-case
                    approach to effecting a gradual improvement
                    in the representation of minorities and women
                    in the Agency's work force. Such a plan is
                    fully consistent with Title VII, for it
                    embodies the contribution that voluntary
                    employer action can make in eliminating the
                    vestiges of discrimination in the 

.   Thus, I disagree with the majority's
conclusion that "there is no congressional recognition of
diversity as a Title VII objective requiring accommodation."
Maj. Op. at 24.
         To be sure, I can understand the majority's concern
over allowing race to be a factor in any decision. History
loudly proclaims the evil that can spring from such practices,
and it is sometimes all too easy to simply ignore that evil when
the practice appears to be driven by a benign purpose. However,
I do not believe that what the Board of Education was attempting
to do here, nor the individualized manner in which it was
attempting to do it, runs afoul of a Congressional enactment
cloaked in the legislative history recounted herein, and in the
opinions of my colleagues.
         Not that long ago the President's Commission on Civil
Disorders (the "Kerner Commission") warned that "[o]ur nation is
moving toward two societies, one black, one white -- separate and
unequal." Report of The National Advisory Commission on Civil Disorders,
at
1 (March 1, 1968). Some may view the Board's efforts here as yet
another push in that direction. Indeed, if we were writing upon a
clean slate that would no doubt be true. But of course, we do
not do that. The shadows and images that moved Congress to enact
Title VII in 1964 are already etched into our slate, and they
define the reality that should guide our analysis. The Board has
responded to those shadows with an action that is a narrow,
individualized and reasoned attempt to foster respect for
diversity. Because that is consistent with the purposes of Title
VII, I respectfully dissent.