US v. Board of Educ. of Tp. of Piscataway

• Decision Date: 10 September 1993
• Docket Number: Civ. A. No. 92-340(MTB).
• Citation: 832 F. Supp. 836
• Parties: UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the TOWNSHIP OF PISCATAWAY, Defendant. Sharon TAXMAN, Plaintiff-Intervenor, v. BOARD OF EDUCATION OF the TOWNSHIP OF PISCATAWAY, Defendant.
• Court: U.S. District Court — District of New Jersey

832 F. Supp. 836

UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the TOWNSHIP OF PISCATAWAY, Defendant.

Sharon TAXMAN, Plaintiff-Intervenor, v. BOARD OF EDUCATION OF the TOWNSHIP OF PISCATAWAY, Defendant.

Civ. A. No. 92-340(MTB).

United States District Court, D. New Jersey.

September 10, 1993.

Michael Chertoff, U.S. Atty., D.N.J. by Susan Cassell, Newark, NJ and Steven H. Schlesinger, U.S. Dept. of Justice, Washington, DC, for plaintiff.

Rubin, Rubin, Malgran & Kuhn by David B. Rubin, Piscataway, NJ, for defendant.

Klausner, Hunter & Cige by Stephen E. Klausner, Somerville, NJ, for plaintiff-intervenor.

OPINION

BARRY, District Judge.

I. INTRODUCTION

This case involves a challenge by the United States, as plaintiff, and Sharon Taxman, as intervenor, to an affirmative action plan adopted by the Board of Education of Piscataway Township ("Board"). Plaintiff and Taxman claim that Taxman, a white female employed as a teacher by the Board in the Business Education Department of Piscataway High School, was laid off instead of Debra Williams, a black female employed as a teacher in the same department, solely on the basis of race. Both the plaintiff and Taxman have brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Taxman has brought an additional claim under the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq.¹ Discovery has closed and there are few factual disputes between the parties. The Board has moved for summary judgment and plaintiff and Taxman have cross-moved for partial summary judgment as to liability. Because there is no legal justification for the race-conscious affirmative action plan at issue in this case and because that plan unnecessarily trammels on the rights of nonminorities, the Board's motion for summary judgment will be denied and plaintiff and Taxman's cross-motion will be granted.

II. BACKGROUND

The relevant facts are almost entirely undisputed and, except where otherwise cited, have been stipulated by the parties.²

A. The Board's Affirmative Action Program and Policy

In May, 1975, the New Jersey State Board of Education adopted a regulation requiring each school district "to develop a policy of equal education opportunity" and adopt by board resolution two affirmative action plans, one pertaining to classroom practices and the other pertaining to employment practices. N.J.A.C. 6:4-1.3(a)-(b). Pursuant to this regulation, the Piscataway Township Board adopted a program called "Affirmative Action Program to Eliminate Discrimination on the Basis of Sex, Race, Religion or National Origin". The program contained the following "Statement of Purpose":

The Piscataway Township Board of Education believes that each student is entitled to equal educational opportunity and that all qualified persons are entitled to equal employment opportunities.

The affirmative action program is a set of specific procedures to which the Board of Education commits itself to apply every good faith effort. The objective of these procedures is to provide equal educational opportunity for students and equal employment opportunity for employees and prospective employees.

The basic purpose of the program is to make a concentrated effort to attract women candidates for administrative and supervisory positions and minority personnel for all positions so that their qualifications can be evaluated along with other candidates. 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. (emphasis added).

The phrase "candidates meeting the criteria of the affirmative action program" as used in the Statement of Purpose means all individuals identified as minorities for statistical purposes by the New Jersey Department of Education. The Board's purpose in adopting this language was to grant a preference in hiring to minority candidates, hence the directive that in cases in which two or more candidates are equally qualified, the minority candidate is to be selected.

There is no dispute that the Board did not adopt its 1975 Affirmative Action Program in order to remedy the results of prior discrimination or to rectify an identified under-representation of minorities within the Piscataway school system. No charges of race based discrimination had been filed with any state or federal agency against the Board or any of its employees prior to the adoption of the 1975 Affirmative Action Program. Indeed, there is not even a suggestion that the Board had ever intentionally discriminated against any employee or applicant for employment on the basis of race. Moreover, at the time the Affirmative Action Program was adopted, the statistical reports required by the New Jersey Department of Education showed no underrepresentation of black employees in the reporting categories required by the State.

In 1976, the Board adopted an addendum to the Affirmative Action Program. This document, entitled "Employment Practices Addendum", contained an analysis of minority and female employment across various job categories in Piscataway public schools. With respect to the job category of "professionals", which includes teachers, the statistics listed in the document indicate that while minorities comprised 7.4% of the statewide³ pool of persons with the requisite skills for professional positions, 10% of the Board's work force in this category were minorities. The document concludes that "the Piscataway School District is not under-utilizing Minorities in any job category when compared with EEOC Labor Force Area data".

In April, 1983, the Board adopted an affirmative action policy. The stated purpose of this policy, entitled "Affirmative Action — Employment Practices", was as follows:

This policy ensures equal employment opportunity for all persons and prohibits discrimination in employment because of sex, race, color, creed, religion, handicap, domicile, marital status, or national origin. 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. (emphasis added).

The parties agree that the phrase "candidates meeting the criteria of the affirmative action program" had the same meaning as it did in the 1975 Affirmative Action Program. As was the case in 1975, when the Board adopted this policy in 1983 it had no knowledge or evidence of any past or continuing discrimination against blacks with respect to the employment of teachers. Similarly, it had not conducted a new statistical analysis of its work force and had no information indicating any underutilization or underrepresentation of blacks in its teacher work force.

In January, 1985, the Board adopted a second addendum to its 1975 program. This addendum divided the Board's work force into ten job categories and broke down the number of employees in each category by race, national origin, and sex. It compared the percentage of available minorities in the Middlesex County labor market with the percentage of minorities employed by the Board in each job category. The comparison of the percentages for the job category of "Educational Professionals", 90% of which were teachers, revealed that while 5.8% of the available labor market in Middlesex County was black, 9.5% of the educational professionals employed by the Board were black. Moreover, the addendum's analysis of underutilization in each of the job categories by race, national origin, and sex indicated that because the percentage of black educational professionals employed by the Board exceeded the percentage of blacks in the Middlesex County labor market, there was no underutilization of blacks in the Board's teacher work force. Thus, the Board did not establish any goal with respect to hiring additional black teachers. The analysis contained in this second addendum was the last such analysis prior to the termination of Taxman in 1989.

B. The Decision to Terminate Taxman

Sharon Taxman, a white female, was hired by the Board as a business education teacher commencing September 1, 1980. Taxman had a bachelor's degree, three years prior teaching experience, and an instructional certificate from the New Jersey State Department of Education which authorized her to teach courses in the areas of secretarial studies, bookkeeping, accounting, typing, and general business. Debra Williams, a black female, was also hired by the Board commencing September 1, 1980. At the time she was hired, Williams had a bachelor's degree, one year prior teaching experience, and an instructional certificate authorizing her to teach courses in the areas of typing and secretarial studies. In 1985, Williams became certified to teach courses in business education. Both Taxman and Williams remained employed by the Board in the Business Education Department at Piscataway High School from the 1980-81 school year through the 1988-89 school year. As a result, the Board's calculation of seniority for Taxman and Williams indicated that each had nine years seniority in typewriting and secretarial studies, while in general business and bookkeeping and accounting Taxman had nine years seniority compared to Williams' four years and three months seniority. The bottom line is undisputed: Taxman and Williams were in a seniority tie.

In the Spring of 1989, Burton Edelchick, the Superintendent of Schools, recommended to the Board that it reduce the teaching staff in its Business Education Department. As Superintendent of Schools, Edelchick was in charge of the day-to-day activities of the Piscataway School District. His responsibilities included making recommendations to the Board concerning the hiring, reappointment, discharge, transfer, and assignment of...