with whom Judge MeKEE joins, dissenting.
I join in Chief Judge Sloviter’s dissent, as well as those of each of my dissenting colleagues.
I would only add that we should be mindful of the effects the majority’s approach will impose upon legitimate, thoughtful efforts to redress the vestiges of our Nation’s history of discrimination in the workplace and in education; efforts which, in seeking to achieve pluralism and diversity, have helped define and enrich our offices and institutions, and which were intended to open, and keep open, the doors of opportunity to those who have “been excluded from the American dream for so long.” See 110 Cong. Rec. 6552 (1964) (excerpted from Sen. Humphrey’s remarks). This, after all, is what I had always thought Title VII was intended to accomplish. More importantly, as Chief Judge Slo-viter notes, these goals are plainly supported by the statute’s legislative history. Thus, while the majority holds that Title VII only allows race to be considered in remedying a history of intentional discrimination or a “manifest imbalance,” I believe this conclusion is fundamentally at odds with the overriding goals of the statute. And the real-life impact of the majority’s unprecedented construction of Title VII is readily apparent when one contemplates the myriad of difficult decisions that employers across the nation face everyday.
Somewhere out there in the real world, for example, there is a law firm with a racial make-up (a workforce) akin to Piseataway High School’s; a firm which lacks a history of intentional discrimination in hiring but, due to economic concerns, must decide between retaining one of two attorneys — the first and only black associate to work in its prestigious anti-trust department, or his equally qualified white counterpart. The firm’s management committee may decide that to lay-off the black associate would be an unwise and potentially damaging business decision because it would negate the large investment of time, effort and money spent trying to recruit and retain minority lawyers. In other words, the firm may believe that diversity would be good for business and good for itself, so, everything else being equal, it decides to lay-off the white associate.
In a situation such as this, the firm’s reliance upon race as one among many factors in making its decision is the type of management prerogative which is totally consistent with the goals and underlying purpose behind Title VII. See Weber, 443 U.S. at 206, 99 S.Ct. at 2728-29 (noting that Title VIPs legislative history demonstrates that the statute was not intended to place unnecessary limits upon “management prerogatives”). After it reads the majority’s decision, however, it seems clear that the firm will be forced to disregard its own better business judgment, forsake its recent recruiting successes among minorities and, I suppose, flip a coin on its own future as well as the young associates’, all in order to avoid the specter of Title VII liability and an enormous damage award.
At times, a private college, with a handful of Latinos on its faculty and with no history of intentional discrimination in hiring, is faced with the unenviable task of deciding which of two young associate professors with indistinguishable records to grant tenure in a particular department. The only difference between the two is that one is white and the other is Latino. After reviewing all of the other factors and finding them in equipoise, the tenure committee may decide to offer the position to the Latino associate professor because there has never been a tenured Latino professor in any department at the college, and because it believes his presence at the college will be a significant benefit to the entire student body. As with the law firm, this decision is entirely consistent with Title *1578VII because it is motivated by some of the same concerns that lead Congress to enact the statute. See Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30 (noting that the plan was valid under Title VII in part because the “purposes ... mirror those of the statute”).
But again, the majority’s rationale will thwart the college’s ability to rely upon its independent judgment in deciding what is in the best interests of the students whom it is charged with educating. Instead, according to the majority, that important judgment is better exercised (in this case may only be exercised) by resorting to a coin-flip.
One could cite countless other examples of the significant and ultimately counterproductive effects of the majority’s narrow construction of Title VII, but suffice it to say that in my view, Title VII was not enacted to prevent the thoughtful, deliberative processes employed by such a law firm or college. I believe that in this case the school board’s decision to consider race, among other factors, in an attempt to ensure a diverse faculty for its students was in furtherance of Title VII's goal of breaking-down “existing misconceptions and stereotypical categorizations which in turn lead to future patterns of discrimination.” See S.Rep. No. 415, 92nd Cong., 1st Sess. 12 (1971). Accordingly, its decision was as legal as it was laudable.
I believe the majority’s decision eviscerates the purpose and the goals of Title VII. I respectfully dissent.