Taxman v. Board of Education of the Township of Piscataway

SLOVITER, Chief Judge,

dissenting, with whom Judges LEWIS and MeKEE join.

In the law, as in other professions, it is often how the question is framed that determines the answer that is received. Although the divisive issue of affirmative action continues on this country’s political agenda, I do not see this appeal as raising a broad legal referendum on affirmative action policies. Indeed, it is questionable whether this case is about affirmative action at all, as that term has come to be generally understood — i.e. preference based on race or gender of one deemed “less qualified” over one deemed “more qualified.” Nor does this case even require us to examine the parameters of the affirmative action policy originally adopted in 1975 by the Board of Education of the Township of Piscataway (School Board or Board) in response to a state regulation requiring affirmative action programs or the Board’s concise 1983 one-page affirmative action policy.

Instead, the narrow question posed by this appeal can be restated as whether Title VII requires a New Jersey school or school board, which is faced with deciding which of two equally qualified teachers should be laid off, to make its decision through a coin toss or lottery, a solution that could be expected of the state’s gaming tables, or whether Title VII 'permits the school board to factor into the decision its bona fide belief, based on its experience with secondary schools, that students derive educational benefit by having a Black faculty member in an otherwise all-White department. Because I believe that the area of discretion left to employers in *1568educational institutions by Title VII encompasses the School Board’s action in this ease, I respectfully dissent.

The posture in which the legal issue in this case is presented is so stripped of extraneous factors that it could well serve as the question for a law school moot court. I emphasize at the outset issues that this ease does not present. We need not decide whether it is permissible for a school to lay off a more qualified employee in favor of a less qualified employee on the basis of race, because that did not happen here. Nor need we consider what requirements Title VII may impose on unwilling employers, or how much racial diversity in a high school faculty may be “enough.”

Significantly, although the School Board is a public employer, this case does not place before us for decision the limits on race-conscious action imposed on public entities by the Constitution because we are presented with no constitutional claim. Therefore, we must measure the Board’s actions under the restraints imposed by Title VII rather than the more demanding ones imposed on government action by the Equal Protection Clause. In this respect the case is similar to that presented in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), where the Supreme Court noted that even though the defendant was a public employer it would decide the case only under Title VII because no constitutional issue was raised or addressed below. See id. at 620 n. 2, 107 S.Ct. at 1446 n. 2. The Court also made clear that for purposes of Title VII, the same standard applies to public and private employers, stating that “[t]he fact that a public employer must also satisfy the Constitution does not negate the fact that the statutory prohibition with which that employer must contend was not intended to extend as far as that of the Constitution.” Id. at 628 n. 6, 107 S.Ct. at 1449-50 n. 6. This was an express rejection of Justice Scalia’s contention “that the obligations of a public employer under Title VII must be identical to its obligations under the Constitution.” Id. at 627 n. 6, 107 S.Ct. at 1449-50 n. 6; see also id. at 649, 107 S.Ct. at 1461 (O’Connor, J., concurring). Thus it is important to keep in mind that we must measure the Board’s action in this case against the same standard we would apply to a private school.

I.

When in May 1989 the School Board was faced with the disagreeable necessity of reducing by one the teaching staff in the Business Department of Piseataway High School, it recognized that reference to the applicable New Jersey law, which provides the roadmap in terms of seniority, would not suffice here because the two teachers had equal seniority. The Board, which has the responsibility of gauging the educational requirements of the students under its charge, would have to resort to its own experience as there were no other prescribed guidelines. It did not then turn to the affirmative action policy to make the decision based on race. There was no built-in quota, expressed or implied, for minority faculty, and Taxman does not so suggest. On the contrary, the Board next considered a variety of undoubtedly relevant factors, any one of which might have tipped the scales in favor of laying off one teacher or the other. Had Taxman been deemed a better teacher than Williams, that alone could have pointed the arrow in her direction. Or, had Williams participated in volunteer activity while Taxman spent her spare time in other activities, that alone could have accounted for Williams’ retention. The deposition testimony of several board members who participated in the decision indicates that before the affirmative action policy was considered, a number of other criteria were discussed to break the tie, including work performance, certifications, evaluations, teaching ability, and volunteerism. The two teachers with the least seniority, Taxman and Williams, were determined to be equal with respect to each of these other criteria.

The Board’s Vice President, Paula Van Riper, testified:

[T]he seniority and the person’s qualifications came into play first. If one was more senior than the other, it would have ended right there, if they were of like seniority. From that point it was based on *1569their work performance and their evaluations .... There was some consideration given ... to the various other activities that they did.... But certainly the weight would be given to their performance in the classroom. At that point we were told that these are two teachers of equal ability, equal qualifications, I should say. They ... both[ ] had good evaluations, they were good teachers, they were supportive of the school district, volunteered in various ways and they ... had similar certification or like certification and their seniority was the same so therefore they were equal.

Dal79-80.

The equal position of both teachers in light of all relevant criteria was also stressed by the Director of Personnel, Gordon Moore, who explained: “we ... concluded that work history or performance criteria [were] not going to be usable in breaking the tie, because there was no distinction that could be made.” Dal77.

In its opinion, the majority declares the School Board’s affirmative action policy unlawful. An examination of the so-called affirmative action policy reveals that it does nothing more than place before the School Board the need to consider minority personnel among other equally qualified candidates for employment decisions. Da5, 53. That this was a necessary reminder in 1975 when the policy was formed can hardly be gainsaid. I believe that it also was a useful reminder in 1989, when this School Board was faced with this decision, and perhaps even today.

A review of the record makes clear that the Board did not view itself as bound to select Williams for retention by the 1975 affirmative action policy, which speaks only of recommendations, but after discussion and consideration the Board made a discretionary decision to select Williams for retention to further the educational goal of a diverse faculty. Da72, 94.

The Board members described their purpose in using the goal of diversity underlying the previously adopted affirmative action policy as a factor in the layoff decision as reflecting the “general feeling ... that it was valuable for the students to see in the various employment roles a wide range of back-groundfs],” Da74, and “the desire to have a diverse teaching staff in the school district.” Dal75-76. It was also intended to send “a very clear message that we feel that our staff should be culturally diverse [for the benefit of the students]” and to “encourage awareness and acceptance and tolerance [of people of all backgrounds].” Da75. Thus, the Board took into consideration that if Williams were laid off, the Business Department faculty at the school would be all White. Da94, 110, 168,175-176.

II.

It was the Board’s decision to include the desire for a racially diverse faculty among the various factors entering into its discretionary decision that the majority of this court brands a Title VII violation as a matter of law. No Supreme Court case compels that anomalous result. Notwithstanding the majority’s literal construction of the language of Title VII, no Supreme Court case has ever interpreted the statute to preclude consideration of race or sex for the purpose of insuring diversity in the classroom as one of many factors in an employment decision, the situation presented here. Moreover, in the only two instances in which the Supreme Court examined under Title VII, without the added scrutiny imposed by the Equal Protection Clause, affirmative action plans voluntarily adopted by employers that gave preference to race or sex as a determinative factor, the Court upheld both plans.

In its 1979 decision in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Court held that an agreement between a private company and a union that sought to remedy the historical exclusion of Blacks from skilled craft unions by reserving half the openings in an in-house training program for Blacks did not violate Title VIL A scarce decade later, it reached a similar decision in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), where the plan that the Court upheld authorized consideration of the gender of a qualified applicant as one of various factors for *1570promoting employees into jobs in which women had been significantly underrepresented.

The majority presents Weber and Johnson as if their significance lies in the obstacle course they purportedly establish for any employer adopting an affirmative action program. But, as the Justices of the Supreme Court recognized, the significance of each of those cases is that the Supreme Court sustained the affirmative action plans presented, and in doing so deviated from the- literal interpretation of Title VII precluding use of race or gender in any employment action. As Justice Brennan explained in Weber, “It is a ‘familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.’ ” Weber, 443 U.S. at 201, 99 S.Ct. at 2726 (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). The Justices dissenting in those cases noted and vigorously objected to the departure. See, e.g., Weber, 443 U.S. at 222, 228, 99 S.Ct. at 2737, 2740 (Rehnquist, J., dissenting) (asserting that the majority “eludes the clear statutory language” and that Kaiser’s affirmative action plan is “flatly prohibited by the plain language of Title VII”); Johnson, 480 U.S. at 670, 107 S.Ct. at 1471 (Scalia, J., dissenting) (“It is well to keep in mind just how thoroughly Weber rewrote the statute it purported to construe ... Weber disregarded the text of the statute, invoking instead its ‘spirit’ ”).

While the majority in this case views the Supreme Court’s articulation of the factors that rationalized its upholding of the affirmative action plans in those cases as establishing boundaries, no language in either Weber or Johnson so states and, in fact, there is language to the contrary. The majority draws the line at the factors used in those cases. In both Weber and Johnson, the Court inquired whether consideration of race in the employment decision was justified by a permissible purpose, and then examined the effect on nonminorities to ascertain whether the action taken “unnecessarily trammelled] the interests of the white employees.” Weber, 443 U.S. at 208, 99 S.Ct. at 2730; Johnson, 480 U.S. at 630, 107 S.Ct. at 1451.

However, it does not follow as a matter of logic that because the two affirmative action plans in Weber and Johnson which sought to remedy imbalances caused by past discrimination withstood Title VII scrutiny, every affirmative action plan that pursues some purpose other than correcting a manifest imbalance or remedying past discrimination will run afoul of Title VII. Indeed, the Court in Weber explicitly cautioned that its holding in that ease should not be read to define the outer boundaries of the area of discretion left to employers by Title VII for the voluntary adoption of affirmative action measures. The Court stated:

We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to “open employment opportunities for Negroes in occupations which have been traditionally closed to them.”

Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30. See also id. at 215-16, 99 S.Ct. at 2733-34 (Blackmun, J., concurring)(noting that Kaiser plan “is a moderate one” and that “the Court’s opinion does not foreclose other forms of affirmative action”).

The majority opinion in Johnson made no attempt to draw the line that Weber left undefined. See Johnson, 480 U.S. at 642, 107 S.Ct. at 1457 (Stevens, J., concurring) (“I write ... to ... emphasize that the opinion does not establish the permissible outer limits of voluntary [affirmative action] programs”). Although Justice O’Connor’s concurring opinion argued that permissible purposes under Title VII were limited to those that served to remedy past discrimination, Johnson 480 U.S. at 649, 107 S.Ct. at 1461, her vote was the sixth in favor of the majority’s holding and therefore not crucial to the outcome of the case. It follows that her narrow reading should not be read as consti*1571tuting the view of the Court. See Marks v. United States, 480 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977).

The majority here has taken the language of Weber where the Court observed that the plan’s purposes “mirrored” those of the statute, and has elevated it to a litmus test under which an affirmative action plan can only pass muster under Title VII if particular language in the text or legislative history of the statute can be identified that matches the articulated purpose of the plan. Nothing in Weber suggests that the Court intended by its “mirroring” language to create such a rigid test.

In Weber, when the Court found that the purposes of the plan were consistent with those of Title VII, it did so by reference not only to the language of the legislative history, but to the historical context from which the Act arose as well. Id. at 201, 99 S.Ct. at 2726. In Johnson, the Court made no attempt at all to identify language in the legislative history paralleling the particular objectives of the plan it sustained. Thus, even in those cases the Court did not demonstrate the kind of close fit between the plan and the statutory history demanded of the Board in this case.

In Weber, the Court’s examination into the purposes of Title VTI led it to the conclusion that the Act was designed to promote “the integration of blacks into the mainstream of American society,” Weber, 443 U.S. at 202, 99 S.Ct. at 2727, and the breakdown of “old patterns of racial segregation and hierarchy,” id. at 208, 99 S.Ct. at 2730. The Kaiser affirmative action plan was consistent with these sweeping, broadly stated purposes and hence was sustained.

Of course, I do not disagree with the majority that “Title VII was written to eradicate not only discrimination per se but the consequences of prior discrimination,” but I do not believe that in doing so, Congress intended to limit the reach of Title VII to remedying past discrimination, thereby turning a blind eye toward those social forces that give rise to future discrimination. Title VII, which was a part of the Civil Rights Act of 1964, was fundamentally forward-looking legislation, and that purpose should not be ignored.

The effort to remedy the consequences of past discrimination (such as the “patterns of segregation and hierarchy” referred to in Weber, 443 U.S. at 208, 99 S.Ct. at 2730), cannot be isolated from the statute’s broader aim to eliminate those patterns that were potential causes of continuing or future discrimination. The causal relationship is illustrated by the industry at issue in Weber, where the Court noted that the ongoing imbalance in the hiring of craftworkers had its roots in a history of discrimination that had excluded Blacks from craft unions and thus prevented them from acquiring the necessary qualifications. Id. at 198, 99 S.Ct. at 2724. In describing the overarching goal toward which the Civil Rights Act was aimed, the House Report spoke of the need to “elimi-nat[e] all of the causes and consequences of racial and other types of discrimination against minorities.” H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, at 18 (1963), reprinted in 1964 U.S.C.C.A.N. 2391, 2393 (emphasis added).

Thus, using the approach taken in Weber and Johnson as a springboard, actions consistent with and in furtherance of the broad statutory goal of eliminating the causes of discrimination are not per se proscribed by Title VII. This generation of young people may not recall that in 1964 racial homogeneity in schools was viewed as among the most fundamental and pernicious aspects of the social pattern undergirding the system of discrimination that the Civil Rights Act sought to dismantle. In the years leading up to the Act’s passage, school integration was one of . the focal points of the civil rights movement. The Senate Report accompanying the 1972 amendments to Title VII, when it was expanded to cover state and local governments, noted the connection between racial homogeneity in schools and attitudes that lead to discrimination:

It is difficult to imagine a more sensitive area than educational institutions where the youth of the Nation are exposed to a multitude of ideas and impressions that will strongly influence their future development. To permit discrimination here [among faculty and staff] would, more than in any other area, tend to promote existing *1572misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination.

S.Rep. No. 415, 92nd Cong., 1st Sess. 12 (1971).

In other contexts, the Court has repeatedly recognized racial diversity in the classroom as an important means of combatting the attitudes that can lead to future patterns of discrimination. As Justice Stevens observed in Wygant:

In the context of public education, it is quite obvious that a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty. 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, 106 S.Ct. at 1868-69 (Stevens, J., dissenting). See also Johnson, 480 U.S. at 647, 107 S.Ct. at 1460 (Stevens, J., concurring) (noting educational benefit to be derived from racial diversity, “ ‘by dispelling for black and white students alike any idea that white supremacy governs our social institutions’” (quoting Sullivan, The Supreme Court — Comment, Sins of Discrimination: Last Term’s Affirmative Action Cases, 100 Harv.L.Rev. 78, 96 (1986))); Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 473, 102 S.Ct. 3187, 3196, 73 L.Ed.2d 896 (1982) (“Attending an ethnically diverse school may help ... prepar[e] minority children ‘for citizenship in our pluralistic society,’ while, we may hope, teaching members of the racial majority ‘to live in harmony and mutual respect’ with children of minority heritage.”(citations omitted)); Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 461, 467, 99 S.Ct. 2941, 2948, 2951, 61 L.Ed.2d 666 (1979) (disapproving policies that “deprive black students of opportunities for contact with and learning from white teachers, and ... deprive white students of similar opportunities to meet, know and learn from black teachers”); Kromnick v. School District of Philadelphia, 739 F.2d 894, 905 (3d Cir.1984)(“Sehools are great instruments in teaching social policy [from which students learn] from the images and experiences that surround them ... a spirit of tolerance and mutual benefit.”), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985).

It is “ironic indeed” that the promotion of racial diversity in the classroom, which has formed so central a role in this country’s struggle to eliminate the causes and consequences of racial discrimination, is today held to be at odds with the very Act that was triggered by our “Nation’s concern over centuries of racial injustice.” Weber, 443 U.S. at 204, 99 S.Ct. at 2728. Nor does it seem plausible that the drafters of Title VII intended it to be interpreted so as to require a local school district to resort to a lottery to determine which of two qualified teachers to retain, rather than employ the School Board’s own educational policy undertaken to insure students an opportunity to learn from a teacher who was a member of the very group whose treatment motivated Congress to enact Title VII in the first place. In my view, the Board’s purpose of obtaining the educational benefit to be derived from a racially diverse faculty is entirely consistent with the purposes animating Title VII and the Civil Rights Act of 1964.

The majority criticizes the Board’s use of caselaw construing the Equal Protection Clause in this Title VII case, notwithstanding the Supreme Court’s explicit statement in Johnson that Title VII’s constraint on affirmative action was “not intended to extend as far as that of the Constitution.” 480 U.S. at 628 n. 6, 107 S.Ct. at 1449-50 n. 6. Nothing in the Court’s language in the Johnson footnote suggests that we confine it to the particular factual context in which it was made, and the Court is certainly sufficiently articulate to limit its language when so inclined. Nor is the Johnson footnote the only place where the Court signified its understanding that *1573Title VII imposes fewer limitations on employers’ voluntary affirmative action than does the Constitution. In Weber, the Court spoke of the “narrowness of [its] inquiry” since the plan did not involve state action and hence did not present an alleged violation of the Equal Protection Clause, Weber, 443 U.S. at 200, 99 S.Ct. at 2726, and later stated that “Title VII ... was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments.” id. at 206 n. 6, 99 S.Ct. at 2729 n. 6 (quoted in Johnson, 480 U.S. at 627 n. 6, 107 S.Ct. at 1449-50 n. 6). The latter statement was not made in a discussion that had to do with the “factual predicate” for demonstrating the need for remedial affirmative action, as the majority would confine the similar language in Johnson.

In any event, ultimately it is the Supreme Court rather than this one that will decide whether Title VII allows an employer more discretion to implement race-conscious .employment policies than does the Constitution in the employer’s effort to promote the underlying goals of the Act. But, in the absence of any dispositive precedent, I believe it would be shortsighted for us to disregard the Supreme Court’s statements regarding the advantages of diversity in an educational context when examining the limited use to which diversity was used as a factor in the Board’s decision here. In Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), where the Court considered a University of California affirmative action program for student admissions, Justice Powell, who announced the judgment of the Court, recognized that a diverse student body leads to a “robust exchange of ideas,” id. at 312, 98 S.Ct. at 2760 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967)), and noted that the “essential” elements of academic freedom include the ability not only to select the student body but to determine “who may teach,” id. (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957)).

In Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), the Court held that preferential protection against layoffs afforded to minority teachers by the public school board’s affirmative action plan could not be sustained, because the school board’s proffered justification for the plan — that minority teachers were needed to provide role models for mi- • nority students — was not sufficiently compelling to withstand the strict scrutiny to which it was subject under the Fourteenth Amendment. Id. at 274-276, 106 S.Ct. at 1847-48 (Powell, J., joined by Burger, C.J., Rehnquist, J. and O’Connor, J.); id. at 288, 106 S.Ct. at 1854 (O’Connor, J., concurring); id. at 295, 106 S.Ct. at 1858 (White, J., concurring). However, Justice O’Connor, in her concurring opinion which was the decisive vote in the Court’s holding, specifically distinguished the goal of providing role models from “the very different goal of promoting racial diversity among the faculty,” explicitly leaving open the possibility that the latter goal might be sufficiently compelling to pass constitutional muster. Id. at 288 n. *, 106 S.Ct. at 1854 n. *. She also made a favorable reference to Justice Powell’s endorsement of diversity in the classroom in Bakke, stating, “although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently ‘compelling,’ at least in the context of higher education, to support the use of racial considerations iii furthering that interest.” Id. at 286, 106 S.Ct. at 1853. Her position, plus that of the four dissenting justices, (Marshall, J., dissenting, joined by Brennan & Black-mun, JJ.) (seeking “to achieve diversity and stability for the benefit of all students” through faculty integration is a constitutionally sufficient purpose); id. at 315, 106 S.Ct. at 1869 (Stevens, J., dissenting) (“‘recognition of the desirability of multi-ethnic representation on the teaching faculty1 ” is a “completely sound educational purpose” (citation omitted)), meant there were five justices in Wygant who approved in general terms the concept that the educational benefit derived from diversity in the classroom can constitute an acceptable justification for affirmative action. See also Britton v. South Bend Community School Corp., 819 F.2d 766, 773 n. 1 (7th Cir.) (en banc) (Flaum & Bauer, JJ., concurring) (“Remedying past discrimination is not necessarily the only government pin**1574pose sufficiently compelling to justify the remedial use of race. Providing faculty diversity may be a second.”), cert. denied, 484 U.S. 925, 108 S.Ct. 288, 98 L.Ed.2d 248 (1987); Zaslawsky v. Board of Education of Los Angeles, 610 F.2d 661, 664 (9th Cir.1979)(in equal protection context, purpose of “en-hanc[ing] the educational opportunities available to the students by achieving better racial balance in the teaching faculty ... has been well recognized and approved by the Supreme Court”).

I therefore respectfully disagree with the majority, both in its construction of Weber and Johnson as leaving no doors open for any action that takes race into consideration in an employment situation other than to remedy past discrimination and the consequential racial imbalance in the workforce, and in what appears to be its limited view of the purposes of Title VII. I would hold that a school board’s bona fide decision to obtain the educational benefit to be derived from a racially diverse faculty is a permissible basis for its voluntary affirmative action under Title VII scrutiny.

III.

It is undeniable that, in the abstract, a layoff imposes a far greater burden on the affected employee than a denial of promotion or even a failure to hire. In this case, however, it cannot be said with any certainty that Taxman would have avoided the layoff had the Board’s decision not been race-conscious. If a random selection had been made, Taxman would have had no more than a fifty-percent chance of not being laid off. Thus, this was not a situation where Taxman had a “legitimate and firmly rooted expectation” of no layoff. Johnson, 480 U.S. at 638, 107 S.Ct. at 1455; cf. Mackin v. City of Boston, 969 F.2d 1273, 1278 (1st Cir.1992) (where, even in absence of affirmative action scheme, White applicants “could not reasonably have felt assured that they would be appointed,” plan did not disturb any legitimate expectations), cert. denied, 506 U.S. 1078, 113 S.Ct. 1043, 122 L.Ed.2d 352 (1993).

This differs from the situation of an employee who is next in line for a promotion by the objective factor of seniority. Taxman’s qualifications were merely equal to those of her competitor for this purpose. In Johnson the Court held that because there were six other employees who also met the qualifications for the job, Johnson had no “entitlement” or “legitimate firmly rooted expectation” in the promotion, even though he had scored higher than the others on the qualifying test. Johnson, 480 U.S. at 638, 107 S.Ct. at 1455; see Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1408 (11th Cir.1991) (affirmative action plan valid under Title VII where it never requires hiring unqualified person over qualified person), cert. denied, 502 U.S. 1073, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992); cf. United States v. Paradise, 480 U.S. 149, 177-78, 107 S.Ct. 1053, 1070, 94 L.Ed.2d 203 (1987) (same under equal protection). Moreover, just as the plaintiff in Johnson remained eligible for promotion in the future, 480 U.S. at 638, 107 S.Ct. at 1455, Taxman retained recall rights after her layoff, and did in fact regain her job.

The majority relies in part on Wygant, where the Supreme Court found that the use of faculty layoffs to meet affirmative action goals in a publie school system imposed too heavy a burden on White employees. Wygant, 476 U.S. at 282-83, 106 S.Ct. at 1851. However, the Court’s holding that the Wy-gant plan was not “narrowly tailored” for purposes of an equal protection challenge is not dispositive of the present inquiry as to whether a plan “unnecessarily trammels” the rights of White employees for Title VII purposes. Not only was a different legal standard applicable but Wygant is also distinguishable because the Wygant plan caused nonminority teachers with more seniority to be laid off in order to retain minority teachers with less seniority. Wygant, 476 U.S. at 282, 106 S.Ct. at 1851. The Wygant plan actually caused teachers to be laid off who, in the absence of the plan, would have had no risk of layoff. That burden — increasing the chance of layoff from zero to one hundred percent — is significantly heavier than that imposed on Taxman, who would have had a substantial chance of being laid off even absent any consideration of diversity.

Only three members of the Court subscribed to language in the plurality opinion in Wygant suggesting that the use of layoffs to *1575accomplish affirmative action goals will never survive strict scrutiny. See 476 U.S. at 284, 106 S.Ct. at 1852. The two concurring justices did not go that far. See id. at 293, 106 S.Ct. at 1857 (O’Connor, J., concurring) (“[n]or is it necessary, in my view, to resolve the troubling question! ] whether any layoff provision could survive strict scrutiny”); id. at 295, 106 S.Ct. at 1858 (White, J., concurring) (confining his conclusion to the specifics of the layoff policy at issue). Therefore I do not read Wygant to hold that no race-conscious layoff decision will survive Title VII scrutiny.

The majority gives a similarly narrow reading to Weber and Johnson, construing these eases to impose a wooden, “unequivocal” requirement that all affirmative action plans must be explicitly temporary in order to be valid. Majority at 1564. In fact, the Johnson plan itself “contain[ed] no explicit end date,” Johnson, 480 U.S. at 639, 107 S.Ct. at 1456, and the Court indicated that only certain plans that are particularly burdensome on nonminorities in other respects need necessarily be expressly temporary. “Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers.” Id. at 639-40, 107 S.Ct. at 1456 (emphasis added). The Supreme Court’s references to the temporary duration of the plans at issue in Weber and Johnson are more accurately construed as an understandable effort to assure that race does not become a permanently embedded consideration in employment decisions. The significant consideration is whether there has been an effort “to minimize the effect of the program on other employees,” not whether the underlying policy is set to run a specified number of years. Id. at 640, 107 S.Ct. at 1456.

In the situation before us, I see ample basis from which to deduce an effort to minimize the effect of the Board’s affirmative action policy on non-minority employees. One such aspect is the discretionary nature of the policy. The Board is free not to apply the policy, even to break a tie. Also significant is the infrequency with which the Board has resorted to the policy. Although it may be of little comfort to Taxman, the fact that this is the first time in the twenty years since the policy was adopted that it has been applied to a layoff decision demonstrates the minimum impact on White teachers as a whole. And since, by its own terms, it only applies in the rare instances in which two candidates are of different races but equal qualifications and the department in question is not already diverse, it is likely that it will continue to be infrequently applied. See District Court’s Final Judgment and Contingent Order, entered February 15,1994 at 2 (denying request for broad injunction because “[tjhere is, in the court’s view, no likelihood that the conduct at issue in this case will recur”).

In this connection, I deem it further evidence of the Board’s interest in minimizing any adverse effect on non-minorities that it has not defined diversity by any specific numerical goal. Although the majority regards that as a major concern, I view the lack of any such figure as an indication that the Board’s plan does not impose a fixed quota with the rigidity attendant thereto.

It is not the province of this court to intrude into what is essentially an educational decision. Once we have determined that promoting faculty diversity for educational purposes can be a valid justification for an appropriately limited race-conscious action, it is not our role to second-guess the judgment of educators as to the level of diversity that produces the educational environment they deem appropriate. The Board’s action is an attempt to create an educational environment that will maximize the ability of students to address racial stereotypes and misconceptions born of lack of familiarity. I find it difficult to believe that an Act that was given birth by the tensions of the civil rights era precludes it from doing so under the facts before us here. Given the record before us, the consequence of the narrow reading that the majority gives Weber and Johnson is the very irony that the Supreme Court said would result from interpreting this civil rights statute in a manner divorced from its historic context. As the Court noted in Weber:

*1576[i]t would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long,” 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

Weber, 443 U.S. at 204, 99 S.Ct. at 2728.

I return to the question raised at the outset: whether Title VII requires that the Board toss a coin to make the layoff selection between equally situated employees. In his opinion for the majority in Weber, Justice Brennan noted the distinction made by Congress between requiring and permitting affirmative action by employers. See Weber, 443 U.S. at 205-06, 99 S.Ct. at 2728. He deemed it important that, while Congress explicitly provided that Title VII should not be interpreted to require any employer to grant preferential treatment to a group because of its race, Congress never stated that Title VII should not be interpreted to permit certain voluntary efforts.

In this case, the majority gives too little consideration to the tie-breaking method that its holding will impose on the Board. It points to no language in Title VII to suggest that a lottery is required as the solution to a layoff decision in preference to a reasoned decision by members of the School Board, some of whom are experienced educators, that the race of a faculty member has a relevant educational significance if the department would otherwise be all White. While it may seem fairer to some, I see nothing in Title VII that requires use of a lottery.

Because I cannot say that faculty diversity is not a permissible purpose to support the race-conscious decision made here and because the Board’s action was not overly intrusive on Taxman’s rights, I would reverse the grant of summary judgment for Taxman under Title VII and direct that summary judgment be granted to the School Board.1

. Because I think the school board is not liable I will not dwell on the issue of damages. I note simply that there is much logic to the Board’s argument that Taxman should be awarded fifty percent rather than one hundred percent of the backpay she would have received had she not been laid off. The record shows that, had the Board not based its decision on race, it would have chosen between Taxman and Williams by means of a coin toss or lottery. Since in such circumstances Taxman would have stood only a fifty-percent chance of retaining her job, a fifty-percent backpay award most accurately “ 'recreate[s] the conditions and relationships that would have been had there been no' " consideration of race. Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct. 1843, 1873, 52 L.Ed.2d 396 (1977) (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 769, 96 S.Ct. 1251, 1266, 47 L.Ed.2d 444 (1976)); see Dougherty v. Barry, 869 F.2d 605 (D.C.Cir.1989).