Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, October 23, 1994 TAG: 9411160019
SECTION: HORIZON PAGE: D1 EDITION: METRO
SOURCE: GAYLE POLLARD TERRY LOS ANGELES TIMES
DATELINE: WASHINGTON LENGTH: Long
In an even more formal reversal of the racial policies advocated by the Reagan and Bush administrations, the Clinton Justice Department is arguing in favor of an appeal in a New Jersey affirmative action case supporting the right of a school district to retain a black teacher while firing an equally qualified white with identical seniority. The Bush administration supported the white teacher, and won the case in the lower courts. The Clinton Justice Department switched sides, and will argue on behalf of the local School Board, which had a voluntary affirmative action plan and chose to consider race when downsizing.
Clinton's tough point man on civil rights is Deval L. Patrick, now ensconced in the spacious office that once belonged to J. Edgar Hoover. Racial discrimination is not theoretical to Patrick, 38, who grew up in a poor, black neighborhood on Chicago's South Side. Scholarships allowed him to prep at Milton Academy, and complete undergraduate and law studies at Harvard University.
Patrick wasn't Clinton's first choice for the job of assistant attorney general for civil rights, which leads the federal fight against discrimination in housing, schools, lending, jobs and at the voting booth. That honor went to C. Lani Guinier, a law professor whose nomination was torpedoed by conservative challenges to her writings. After that political debacle and a long delay, Patrick got the nod for the important sub-Cabinet post, one of six Justice Department divisions, which employs 500 lawyers and staff, has an annual budget of $55 million and argues roughly 300 court cases annually. Patrick, who plans to use his job as a bully pulpit, lives with his wife, Diane, a labor and employment attorney, and their two daughters in Washington.
Q: What's at stake in the redistricting cases in Georgia, Texas, North Carolina and Louisiana?
A: The two most important things to remember and appreciate about those cases are: One, the notion that these districts are bizarre shapes makes no sense when you take a look at congressional districts across the country and realize that there is no such thing as a regular or normal shape. The other is the misnomer that these are districts where voters are segregated by race, when, in fact, they are the most integrated congressional districts in the country and are responsible for the most integrated Congress in history.
What's at stake is the ability of voters in places where the politics are already racially polarized to be able to participate meaningfully in the process and elect candidates of their choice - which is a right under the Voting Rights Act. If that concept is limited by a decision of the Supreme Court in the upcoming cases that does not take account of those real circumstances and those real challenges and the history of the jurisdictions where these districts have been used, then we will have lost a lot of ground.
Q: Why isn't this gerrymandering?
A: The way you ask the question indicates the common view that gerrymandering is bad. Gerrymandering is traditional. Gerrymandering is done for a whole variety of reasons - some of which the court has said are explicitly appropriate. First of all, district lines have to be drawn for congressional races. The Constitution and federal law requires congressional districts for congressional races. And, the district lines are often drawn to protect incumbents or because of geography, because the river goes in a certain way, or because the neighborhoods are different communities of interest, and a whole variety of factors. Race, by the way, is also a traditional consideration. ... It has not always been used in ways that benefited or respected the strength of the minority vote.
Q: Why are these cases so important 30 years after the Voting Rights Act passed? Why is progress taking so long?
A: Progress is significant in many of these places. The districts themselves represent a kind of progress. The districts are not appropriate everywhere, and it's not about whether minority voters can only be adequately represented by minority office holders. I don't accept that, and I don't think experience bears that out every place. The point to remember is that these districts are being litigated in places where the politics is already racially polarized, and where, in the absence of these districts, it would be impossible for the minority voter to have his or her interests represented adequately in the seat of power. That is the kind of situation the Voting Rights Act speaks to.
Q: Explain the Piscataway case.
A: It's a case where the school district had to make a judgment about whom to let go in a situation where declining school enrollments required that they let one teacher go. The first thing they did was consider seniority and they looked to the most junior members of the business faculty and concluded there were two of absolutely equal seniority, with the least seniority. They started on the same day.
Then they considered their performance for the years they had worked there, and they concluded that, based on their performance evaluations, they were absolutely equal in competence in the classroom. Then they considered their qualifications. They looked at the training and so forth, and they concluded that they were absolutely equal in terms of their basic qualifications for the job. ... Then the School Board decided, if you look at it from the point of view of two people who were totally equal, we can do one of two things: We can flip a coin, or we can consider, using our affirmative action plan, whether or how the decision will affect the diversity of the faculty. They expressed their interest in diversity by retaining the one minority teacher that they had ever had on that faculty. Fortunately, the white teacher was rehired the next year.
The significance of the case is two-fold. First, there is nothing in any case that holds that what Piscataway did violated federal statutes. I take a great deal of pause from the notion that the previous administration would attack the Piscataway School Board for something that was not, in fact, a violation of law.
Second, this was a voluntary plan that the local school district used to express its own interest in what was important. To the extent that can be done within the law, and considering the fact that many, many private employers have plans as restrained as this one, it is an important case for us to adjust our position.
Q: Is it fair for the white teacher to lose her job? Would it be fairer to flip a coin?
A: No. First of all, I don't think this is about what you or I or someone outside the Piscataway School District thinks is right. It's about whether Piscataway is entitled, under the law, to express its interest in what is important.
The second thing is Piscataway was faced with a very, very difficult decision, a decision very unlike most decisions that employers have to make. Most of the time, in reality, employers are able to make distinctions between people on the things that matter. But yes, I think that it is appropriate for Piscataway to think about giving some rationale to its decision and to prefer that over a flip of the coin.
Gayle Pollard Terry is an editorial writer for the Los Angeles Times, based in Washington.
by CNB