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No. 96-679
In the
Supreme Court of the United States
October Term, 1996
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BOARD OF EDUCATION OF THE TOWNSHIP OF
PISCATAWAY,
Petitioner,
v.
SHARON TAXMAN,
Respondent.
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ON WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
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BRIEF AMICUS CURIAE OF
NATIONAL SCHOOL
BOARDS ASSOCIATION
IN SUPPORT OF PETITIONERS
Both parties have consented to the filing of this brief. Consents are on file with the Clerk.
INTEREST OF AMICUS
The National School Boards Association (NSBA) is a not-for-profit federation of this nation's 49 state school boards associations, the Hawaii State Board of Education, and the boards of education of the District of Columbia, the U.S. Virgin Islands, Guam and the Commonwealth of Puerto Rico. Founded in 1940, NSBA represents the nation's 95,000 school board members, who, in turn, govern 15,173 local school districts that serve more than 40 million public school students -- approximately 90 percent of all elementary and secondary students in the nation. NSBA has had a long interest in the effective development and implementation of local school board policies, including the advancement of diversity in school faculties. It has a strong interest in ensuring that school boards maintain autonomy to implement personnel policies and decisions that are effective and fair.
ISSUE PRESENTED FOR REVIEW
Whether title VII of the Civil Rights Act of 1964, 42 U.S.C. '' 2000e et seq., prohibits a school district from considering race as a "plus factor" in deciding which of two teachers to retain in a reduction-in-force, where their seniority is the same and their qualifications are comparable.
I. INTRODUCTION
This case is not about racial preferences or quotas. The school district in this case is not attempting to cure societal discrimination against blacks by discriminating against whites. This case is about an educational policy that recognizes the educational benefit afforded to all students, regardless of their race or ethnicity, of a racially diverse faculty in the schools they attend during their formative years. Although other employers may justify their policies on the basis that racial diversity in the workforce is good for business or that minorities are "owed" a place in the workforce because of society's prior treatment of them, this case is not about correcting the wrongs of the past.
This case concerns the future. It raises the question of whether the courts are going to allow our schools to teach tolerance by taking the opportunity, which in truth may not arise often, to retain diversity in their faculties when employees are comparably qualified. This case raises the all important question of whether a school district may take into account the race of an employee who is otherwise comparably qualified and tenured for the educational purpose of maintaining diversity.
II. SCHOOL DISTRICTS HAVE A COMPELLING EDUCATIONAL INTEREST IN MAINTAINING DIVERSITY IN THEIR FACULTIES AND SHOULD BE ALLOWED TO TAKE RACE INTO ACCOUNT AS A "PLUS FACTOR" IN DECIDING WHICH OF TWO COMPARABLY QUALIFIED TEACHERS TO RETAIN.
At the desk where I sit, I have learned one great truth. The answer for all our national problems -- the answer for all the problems of the world -- comes to a single word. That word is "education."
Address by Lyndon B. Johnson, Brown University 200th Anniversary Convocation and Symposium, Sept. 28, 1964, on file in Lyndon B. Johnson Library, Austin, Texas.
Racism is one of our overriding national problems. While legally imposed color blindness may seem to address this problem, it does little to cure the root causes of racism. Thus, achieving "color blindness" is an admirable goal, but it is just that, a goal.
[C]laims that law must be "color-blind" or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities.
Regents of University of California v. Bakke, 438 U.S. 265 (1978) (Brennan, J. concurring in the judgment in part and dissenting in part.)
Twenty years after Bakke, this country has yet to embrace "color blindness." Unfortunately, many in society continue to make invidious decisions based on inaccurate racial stereotypes. One way of moving toward the goal of "color blindness" is education, and one educational tool is maintaining a culturally diverse faculty. School districts should not be limited in the use of that tool for reasons propounded by the court below in this case.
A. Education is a unique governmental function warranting special considerations in the application of our nation’s laws.
Education has a unique standing in this society, and indeed in all societies, and traditionally has been treated differently than other governmental functions by this Court. Although diversity may or may not be a valid reason for using race as a factor in making employment decisions outside the field of education, the issue in the education context deserves more than the short shrift given it by the court below. The Third Circuit, although acknowledging the importance of diversity in the schools, established a per se rule that the only justification under title VII for using race as a factor in a layoff is to remedy past discrimination by the employer.
That per se rule ignores this Court's numerous statements regarding education as "perhaps the most important function of state or local governments." Brown v. Board of Education, 347 U.S. 483, 493 (1954).
[Education] is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.
Id.
This Court has also consistently acknowledged the importance of local control of education and the broad discretion of school boards. This Court has recognized that boards have the power to make race-based decisions, as a matter of educational policy rather than as part of a court-mandated desegregation plan.
School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion of the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1974).
Likewise, a majority of the justices of this Court in Bakke, 438 U.S. 265, expressed the view that colleges can consider the race of applicants for admission. Justice Powell's opinion cited Harvard University's affirmative action plan as a model and acknowledged that "attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education." Id. at 311.
In other constitutional contexts, this Court has deferred to school officials to make pedagogical decisions and decisions respecting the health and safety of the students under their care. See, e.g., Hazelwood School District v. Kuhlmeier, 484 U.S. 261 (1988) (student's free speech rights do not override the authority of school officials to make reasonable pedagogical decisions regarding the content of school newspapers); Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (student's right to free speech does not prevent school officials from punishing a student for sexual innuendo in a speech during a school assembly); New Jersey v. T.L.O., 469 U.S. 325 (1985) (student's right to be free from unreasonable searches must be viewed in the light of the school officials' responsibility for health and safety of students). In Vernonia School District No. 47J v. Acton, 115 S.Ct. 2386 (1995), this Court upheld a school district's drug testing program for student athletes. In Vernonia the Court pointed out that its decision was based in part on the special responsibilities of schools and would not necessarily be transferable to other governmental contexts.
We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. [Emphasis supplied.]
Id. at 2396.
Amicus, of course, does not contend that the authority of school officials is absolute. School searches must be reasonable in light of the circumstances. Control over student speech in school newspapers must be reasonably related to a pedagogical goal. And a school district may not layoff a teacher solely because of her race in favor of a lesser qualified person merely because the school wants role models of a particular race. Although a valid pedagogical purpose may not be served by selecting a black probationary teacher over a highly experienced white teacher, a compelling case can be made for selecting a black teacher over an comparably qualified white teacher in a situation where the teacher is the only black teacher in the department.
When boards of education make such decisions to promote the educational goal of racial diversity in faculties, courts should defer. Amicus submits that neither the Constitution nor title VII precludes school officials from using race as one factor in making layoff decisions to further that educational goal.
B. Diversity in school district faculties serves a compelling educational purpose of promoting tolerance.
This case is unlike recent constitutional cases before this Court involving employers using this country’s history of discrimination as justification for granting racial preferences, imposing racial quotas and ignoring seniority and other relevant qualifications of the job candidates. See, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). Although Amicus submits that a diverse faculty also serves the purpose of providing role models for students, this case is factually very different from Wygant where the school district had a goal of achieving the same racial balance in the faculty as in the student body.
Here, the school board sought to promote diversity in its faculty as an educational tool to encourage tolerance among all races and ethnicities and to broaden the cultural vistas of its students. Students learn as much from their experiences as they do from what they are told. It is one thing to tell a white student that people are equal regardless of race. It is far more powerful to expose the student to teachers of all races.
The Institute for Social Research at the University of Michigan analyzed data from the Monitoring the Future Project (1993), finding a close correlation between positive attitudes about members of other races and exposure to members of other races. High school students who had attended segregated elementary schools and those who attended desegregated elementary schools were both asked questions regarding their racial attitudes. Those from desegregated elementary schools were significantly more positive in their attitude regarding the desirability of having close personal friends of another race and job supervisors of a different race. On the other hand these respondents were significantly more negative in their attitude regarding the desirability of having children attend school with all children of the same race.
These results confirm what is a matter of common sense, that positive exposure to members of other races will lead to a more positive attitude toward those races. Substantial data support the proposition that both whites and blacks who are educated in a desegregated schools are more likely to live and work in desegregated environments as adults and to have social contacts with the other race. Dawkins, Marvin and Braddock, Jomills: 1994, "The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society," Journal of Negro Education, 63(3): 394-405.
Unfortunately, given the proven positive effects of racially integrated schools, it appears that for a variety of reasons, school districts across the country are becoming more segregated. Gary Orfield, Mark Bachmeier, David R. James and Tamela Eitle, Deepening Segregation in American Public Schools. (Harvard Project on School Desegregation, April 5, 1997). That does not bode well for the economic or cultural future of this country, particularly given the large influx of national origin minorities into this nation.
The school district in this case stands in the unique position of mitigating those negative consequences by striving to prevent future invidious discrimination through the education of its children and youth. As Justice Stevens pointed out in his dissent in Wygant:
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 process.
476 U.S. at 315.
Of course, this is but one small step in a long journey, given that this case involves only one teacher. But the principle involved is of immense importance. Are we to tell the schools of this country that the goal of cultural diversity is so inconsequential that it is preferable to flip a coin to decide who shall teach our children rather than to make a rational education-based decision to promote diversity as a means of teaching racial tolerance by retaining the only African-American teacher in the department?
C. Diversity is an essential element of a comprehensive education and broadens the vistas of all students.
Just as diversity is essential to the survival of species, so diversity is an essential element of education. Schools encourage diverse student bodies and faculties for broader reasons than promoting tolerance, reducing bigotry and overcoming the effects of past discrimination. Diversity in curriculum, extracurricular activities and faculty is essential to knowledge.
A child may have no bias against Serbs. She may never have heard of Serbia. What better way to gain knowledge of the culture of this lesser known European culture than for a child to have a Serbian teacher who can tell personal accounts of violence and war and bring to the child the problems in this far away land? Yet, under the ruling below a school district could be held to violate title VII if it were to select the Serb over an American citizen.
Even pre-school age children recognize differences in people based on characteristics like race, sex and age. In developing their self-concept, they typically first describe themselves in terms of these characteristics. Keller, A., Ford, L. M., and Meacham, J.A. 1978, Dimensions of Self-Concept in Preschool Children, Developmental Psychology 14:483-489. Thus, there is an important educational interest in hiring and retaining a diverse faculty so as to assist children in developing their concept of self.
The importance of experiencing diversity in those who educate us has been strongly acknowledged by Congress.
Man's struggle to be rational about himself, about his relationship to his own society and the other peoples and nations involves a constant search for understanding among all peoples and all cultures -- a search that can only be effective when learning is pursued on a worldwide basis.
Foreword from The Fulbright Program: A History.
The J. William Fulbright Educational Exchange Program, named after the Senator who was then Chairman of the Foreign Relations Committee, well understood the importance to this country of a populace which is educated in the ways of other cultures. That program, is designed to provide opportunities to Americans and faculty in colleges and universities to teach and learn in other countries. Since its creation in 1946, the Fulbright Program has expanded to operate programs in 143 countries with 49 Bilateral Fulbright Commissions established by governmental agreements. USIA World, Vol. 145, #1 (May 1995). Programs like Fulbright enrich both the faculty members chosen for such opportunities and the students in the countries in which they teach.
The purpose of [the Mutual Educational and Cultural Exchange Act of 1961] is to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations, and the contributions being made toward a peaceful and more fruitful life for people throughout the world, to promote international cooperation for educational and cultural advancement; and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.
22 U.S.C. ' 2451.
The essence of intercultural education is the acquisition of empathy, the ability to see the world as others see it, and to allow for the possibility that others may see something we have failed to see. He went on to say that, "the simple purpose of the exchange program is to erode the culturally rooted mistrust that sets our nations against one another." It is not a panacea, but an avenue of hope.
President William J. Clinton, quoting J. William Fulbright, on the occasion of the 50th Anniversary of the Fulbright Education Program, June 5, 1996.
Since the establishment of Fulbright, Congress has passed numerous other cultural exchange programs at both the secondary and post-secondary level, such as the International Visitors Program, the Samantha Smith Memorial Exchange Program, the exchange programs of the National Academy of Sciences, the Experiment in International Living, The American Field Service Committee and Youth for Understanding. 22 U.S.C. ' 5441.
As part of the Goals 2000: Educate America Act, Congress adopted a wide ranging International Education Program to provide for the study of international education programs and delivery systems and an international education exchange program for students at the secondary level. 20 U.S.C. ' 5951. The U.S. Information Agency (USIA) also sponsors a foreign exchange program for elementary and secondary students under which schools from the U.S. and other participating countries exchange students. 20 U.S.C. ' 5951.
D. Demographic variables make the ability of school boards to promote diversity for educational reasons even more compelling.
While this country’s effort to expand knowledge of the diverse cultures throughout the world has been long-standing, its efforts to expand knowledge of its own cultural and racial diversity have been less than remarkable.
Certainly, the passage and implementation of the Civil Rights Act of 1964, 42 U.S.C. '' 2000a to 2000h-6, has gone far in the elimination of discrimination against minorities in schools. But it is not enough. Many communities are racially isolated, thus, limiting the opportunity for students in those communities to interact with people of other races and ethnicities. Where schools are willing to take on the challenge of recruiting, hiring and retaining teachers of all races and ethnicities, their efforts should be applauded not punished. Recruiting and hiring minorities is certainly the best way to promote diversity. Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616 (1987). But that assumes there are jobs to fill.
School enrollments across the country are not static. While enrollment in school districts in the South and West is expanding, in many communities in the Northeast, enrollment is in decline. U.S. Department of Education, National Center for Educational Statistics, September, 1995. And, since there is a national shortage of minority teachers, for some communities, particularly in rural areas and small towns, with lesser pay scales than larger neighboring cities, it is particularly important to be able to retain minority teachers. Talent Scouts, Education Week, May 17, 1995.
School districts should be allowed to maintain the diversity in their faculties by taking account of race and ethnicity where qualifications are comparable. That does not mean that quotas should be imposed but where, such as here, no minority faculty are in place in the department, surely the law does not preclude a school district from making that choice.
CONCLUSION
Amicus respectfully urges this Court to reverse the ruling of the court of appeals.
Respectfully submitted,
Gwendolyn H. Gregory
Counsel of Record
Deputy General Counsel
National School Boards Association (NSBA)
1680 Duke Street
Alexandria, VA 22314
(703) 838-6712
August W. Steinhilber
NSBA General Counsel
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