[Congressional Record Volume 140, Number 132 (Tuesday, September 20, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
SWITCHED LITIGATION POSITION OF THE CIVIL RIGHTS DIVISION IN THE TAXMAN 
                                  CASE

  Mr. GRASSLEY. Madam President, we are beginning to see a pattern in 
which the Justice Department changes its position on litigation to 
further the implementation of social engineering.
  The Justice Department has already switched sides in the Knox case. 
In that case the department, very much contrary to congressional 
intent, refused to uphold a child pornography conviction for possession 
of video tapes of scantily clad young girls. What is different about 
the Clinton Justice Department's handling of the case is that the prior 
administration, the Bush administration, had obtained a conviction 
against Knox. The Clinton Justice Department's position in that Knox 
child pornography case was rejected by the third circuit, but not 
before the Department of Justice suffered a great public embarrassment. 
Even the President distanced himself from the Department's views. This 
was after this body 100 to 0, said that the Justice Department was 
wrong.
  We have discussed the Knox case previously. I do not want to go into 
that. But I just use that as a point of departure because now the 
Clinton Justice Department is again refusing to take yes for an answer 
in an employment discrimination case. The Department now argues that 
employers may fire someone solely because of their race. They permit 
such race-based firings even when the employer has never discriminated, 
and even when the employer's work force continues to have, and 
contains, a high percentage of minorities and even a higher percentage 
of minorities than the general population.
  I fear that the Department's social engineering is contrary to title 
VII, and the cases interpreting title VII. And I think the Justice 
Department's position is going to exacerbate racial tensions for no 
good purpose.
  Originally, the Bush Justice Department brought the case that I am 
talking about under title VII of the Civil Rights Act of 1964 against a 
New Jersey school district. That district had decided to cut teaching 
positions in a business education department at the high school. State 
law required that the teachers with the least seniority be laid off. In 
this case the lowest seniority was shared by two teachers. One teacher 
was white and one teacher was African-American. Both teachers 
indisputably were equally qualified. The black teacher happened to be 
the only black business education teacher. Solely because of her race, 
and pursuant to an affirmative action policy, the board fired the white 
teacher, Sharon Taxman, and retained the African-American teacher, 
Debra Williams.
  The Justice Department initially argued that the layoff was an 
illegal minority preference, and it continued to do so long after 
President Clinton took office. In this case, the district's policy was 
not adopted to remedy the effects of past discrimination because the 
district had never discriminated, nor were African-Americans 
underrepresented in the district's work force. Minority groups made up 
a larger percentage of the district's teachers than their share of the 
general population. There is nothing wrong with that. Even if Taxman 
had been retained and Williams fired--in other words, if the white 
teacher had been retained and the black teacher fired--the school 
district still would not have had an underrepresentation of minority 
teachers.
  In short, the district sought to use racial preferences not to 
achieve a racial balance but instead to maintain one. No case has ever 
upheld the use of such racial preferences in these circumstances.
  There was a second reason the Justice Department originally 
maintained that the racial preference in this case was illegal. The 
district's affirmative action plan had no ending date, and it is very 
essential that such affirmative action plans be temporary. But this 
plan had existed since 1975 despite an absence of discrimination and 
despite the achievement of a racial balance.
  Under these circumstances, the Department argued that the district 
court violated the rights of nonminority employees. The Federal 
district judge agreed with the Justice Department. The Federal district 
judge, a woman, held that the school district's policy violated title 
VII and numerous Supreme Court decisions.
  When it came time for the appeal, however, the Justice Department--at 
the time of appeal this is a new Justice Department under President 
Clinton, and particularly Assistant Attorney General Deval Patrick--had 
a change of heart, despite passing over six earlier opportunities to 
repudiate its original view. The Department switched sides, and now 
seeks to argue that the affirmative action plan was lawful. It claims 
that the district court's adoption of its own earlier positions took 
too narrow a view of affirmative action.
  The Department's change, from my perspective, is a cause for concern, 
and is my reason for addressing my colleagues. If the law changes, new 
facts are discovered, or the Government has lost the case in a court 
below, then a change of position may well be warranted.
  For example, when the Clinton administration reversed the Bush 
administration's views on the constitutionality of a California State 
tax in a Supreme Court case last year based on a view of congressional 
intent that the Court accepted, then you can find no fault with that. 
There is a basis for doing that. But where the decision to switch runs 
contrary to congressional intent, contrary to case law, and if it seeks 
to overturn a case the Justice Department had won below, then I do not 
believe there is any justification whatsoever. And that is an entirely 
different matter.
  This country suffered, and continues to suffer, from longstanding 
policies that based decisions solely on the race of the person 
affected.
  (Mr. MATHEWS assumed the chair.)
  Mr. GRASSLEY. These policies were wrong, and they have caused 
tremendous harm and suffering and disunity within our society. In 1964, 
Congress demanded that employment decisions be based on the merits of 
the individual, not on the merits of a group which that individual 
might belong to.
  The school district in this case fired a white school teacher based 
solely on her race, even though it had never discriminated before and 
did not have a racial imbalance in its work force. In doing so, Mr. 
President, the school district violated the law. Now the Justice 
Department believes that diversity is the highest goal in employment, 
not fair, individualized treatment. The switch is unjustified and it is 
erroneous.
  Moreover, the Department and Mrs. Taxman's attorney had worked 
closely together in preparing their case before an assistant attorney 
general stepped in and changed the position of the Department. In those 
earlier steps, the Department and Mrs. Taxman's attorney shared 
confidential information. They reviewed each other's draft briefs. They 
coordinated litigation tactics, and they evaluated the school board's 
case.
  Now the Justice Department, armed with these client confidences and 
attorney work product, seeks to use that information to fight Mrs. 
Taxman. This, Mr. President, is of itself an outrageous development. 
When the Justice Department does not make its decision based on the 
law, then our whole legal process suffers and, of course, I think the 
Department of Justice suffers, and I only wish they would realize that.
  The Government, it seems to me, has a special duty to be objective in 
its court appearances. It is not merely another litigant. The Justice 
Department has the highest responsibility of anybody to follow the law. 
The law supports the Department's earlier position, not the changed 
position now of the Justice Department.
  Moreover, the Department should defend victims of discrimination, and 
the Department should not adopt policies in the name of diversity that 
will lead to anybody's victimization. It is most unfortunate that the 
Department has decided to advocate legal rules that would exacerbate 
the unfortunate realities of racial tension and polarization.
  I urge the Department to reconsider its actions in order to be fair 
to Mrs. Taxman and to all victims of racial discrimination, and so that 
the Department can maintain its credibility and, most importantly, its 
faithfulness to the laws of this Nation.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. PRYOR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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