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Men in black are back

National | Affirmative action case atop '97-'98 high-court agenda

Issue: "Building a better boycott," Oct. 4, 1997

In the matter of dismantling affirmative action, Bill Clinton may be a conservative's most powerful ally. In an approach to public policy that characterized the earliest days of his presidency, Mr. Clinton has traveled the width and breadth of the affirmative action landscape. His most recent indecision, manifested in his flip-flopping in a case before the the U.S. Supreme Court, may be reason for cheers from the opponents of race-based favoritism.

"This case is interesting," says law professor Doug Kmiec, a former Reagan-era Department of Justice official, "because the United States has been on every side of it."

The complaint that kicked off Piscataway (N.J.) Township Board of Education v. Taxman was filed with the Equal Opportunity Employment Commission while George Bush was still president. That would explain some of the government's schizophrenic approach. But, as Mr. Kmiec notes, "We are talking about the same statute and the same Constitution."

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The specific principle at stake is whether a public decisionmaker-a school board, in this case-can use race in personnel decisions. The Supreme Court, which is set to open the '97-'98 term on its traditional first Monday in October starting date (Oct. 6), will hear the Piscataway case as its most significant affirmative action case this term.

Of the court's fall docket-which is only about half complete as of this week-Piscataway is the most important of all the cases that the justices have so far agreed to hear, says Mr. Kmiec, a Notre Dame professor who is spending this academic year at Pepperdine University School of Law, where Kenneth Starr will take up residence once his Whitewater work is done.

Other cases of interest, but of less import, to be heard this session include:

United States vs. Scheffer, in which the court will take up the question of the use of polygraph tests in criminal trials in the first contemporary high-court examination of the reliability of lie detectors.

A suit filed by presidential candidate Steve Forbes against the Arkansas Educational Television Commission, which excluded Mr. Forbes from a televised debate during last year's election. The suit seeks clarification on whether public television is properly considered a public forum for First Amendment purposes.

Baker vs. General Motors, which involves the issue of the Full Faith and Credit Clause. The case involves a former GM employee who won a settlement with the carmaker for wrongful discharge. The point in question is whether other states must honor the part of the settlement in which the employee agreed he would not testify against GM in future cases. The case is significant, Mr. Kmiec says, because it will have bearing on the questions of same-sex marriages. If Hawaii recognizes such marriages, the case could guide questions about whether other states must recognize the unions.

Oncale vs. Sundowner Offshore Services tackles the question of same-sex sexual harassment, although it falls, Mr. Kmiec says, in the category of boorish locker-room behavior involving unquestionably heterosexual men-a supervisor and one of his subordinates-rather than homosexual advances.

The Piscataway case dates back to May 1989, when the township board of education, looking for cuts to its budget, eliminated a teaching position in a high-school business department. Of the two teachers who might be released in the action, Sharon Taxman was white and Debra Williams was black. The teachers were similarly qualified and had equally high ratings. So the board decided to keep the black teacher in order to maintain some of its racial diversity.

Two weeks later, Ms. Taxman filed a complaint with the EEOC, and eight years later, she'll have her day in the Supreme Court. Like medical student Allan Bakke before her, Ms. Taxman has become a champion for opponents of affirmative action and its direct descendant, so-called reverse discrimination.

Mrs. Williams, her husband told The New York Times, has struggled with her own self-worth and is constantly trying to prove that her skills, not the color of her skin, qualified her for the job. In 1991, the Bush administration intervened on behalf of Ms. Taxman, contending in its suit that Ms. Taxman's dismissal was a violation of Title VII of the 1964 Civil Rights Act.

Initially, President Clinton sided with the board and sought to change the Department of Justice's position that the board had discriminated against Ms. Taxman. But more recently, in a brief filed in August, he declared the board had been wrong. At the same time, however, in its ongoing interest in "mending not ending" affirmative action, the White House asked for a limited ruling on the issue rather than a broad swipe that could be the end of affirmative action. Justice Sandra Day O'Connor is widely believed to be the pivotal judge on this decision, and a study of her votes on other cases doesn't give either side strong cause for optimism.

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