After mentioning that Deval had breathed some life into the moribund civil rights division, the editorial states:
But in a… deeply disturbing line of cases, Patrick has aligned the Administration with his former colleagues in the world of minority pressure groups, the champions of set-asides, quotas, and other forms of preference for women, the disabled, and racial and ethnic groups, be they actual victims of discrimination or not.
The cases cited in this piece include one where Deval supported using the courts to force the state of Missouri, as part of a desegregation plan, to pump more funds into the Kansas City school system until such time as minority students attained achievement levels on par with the rest of the nation. While on the surface this may seem benign, the editors took issue in that Deval’s argument:
an unprecedented standard in such cases that would supplant Brown v. Boards mandate of equal educational opportunity with an unwarranted, perhaps impossible to achieve diktat of equal educational outcomes. Patrick and the minority plaintiffs in the case are pressing for the change despite the fact that more than $1.3 billion in court-ordered spending over 10 years has produced only modest gains in integration and essentially no change in minority students test scores.
The implication of this position for Massachusetts today, especially not so long after the Brockton school-funding case was shot down by the SJC, is that Deval’s apparent solution for improving school and student performance is to simply throw more money at districts which have failed or faltered, rather than analyzing district policies and initiatives to see if they are actually working.
On the second case in the article, the editors wrote:
Patricks civil rights division defended a federal law requiring the government to award at least 5 percent of its contracts to small businesses owned by socially and economically disadvantaged individuals. And working in concert with the Department of Housing and Urban Development, Patricks agency has attempted to muzzle citizens in Berkeley, Calif., Palatine, Ill., and other communities nationwide who are upset over HUDs attempts to force their neighborhoods to accept halfway homes for drug addicts and shelters for the homeless.
Again, another case of “the road to hell is paved with good intentions.” The issue echos in this state. Worcester, among other communities, has been grapling with the issue of halfway houses and shelters setting up in residential areas for some time. Despite the need for such programs, many individuals seeking out their help are people recently released from psychiatric hospitals and prisons, some of whom are registered sex offenders and drug addicts. The programs they enter are often unable or unwilling to implement measures to ensure that the neighboring public remains safe.
The final case discussed is by far the most controversial: Taxman v. Piscataway. Indeed, this court case is the most widely-cited example of Deval’s legal divergence from the mainstream.
Taxman involved how…
Patrick reversed the federal governments stance in a New Jersey case and defended a school boards decision to retain a black business teacher and lay off an equally qualified, equally senior white teacher exclusively on the basis of the white teachers race (had both teachers been of the same color, a coin flip would have decided the matter). Patrick contends the boards decision was a reasonable exercise in affirmative action, even though the board has never discriminated against minority teachers and maintains an integrated staff.
Taxman got plenty of ink beyond the pages of “The New Democrat”. The October 17, 1994 pages of the center-left “The New Republic” went further than the DLC in its critique of Deval’s logic in this case, in an article entitled “How the law is unraveling: Is affirmative action doomed?”. (no link available- obtained from database)
On September 7 Deval Patrick, the assistant attorney general for civil rights, filed a brief in a New Jersey case arguing that it is legal to fire a white teacher over a black teacher purely because of her race.
[F]iring someone on account of race crosses a crucial line, for it imposes all the burdens of racial preferences on a single white victim. By challenging this distinction, which is widely accepted by liberals and conservatives, Deval Patrick has committed the Clinton administration to a vision of racial preference that fulfills the most extravagant fantasies of a conservative attack ad. (“You lost that job because you were white….”) Rather than honestly confronting the costs of affirmative action, Patrick has blithely endorsed the most extreme form of racialism. And principled liberals in the administration are concerned. Assistant Attorney General Walter Dellinger, for example, argued strenuously against Patrick’s position.
The most disappointing aspect of Patrick’s brief is the coyness with which it calls into question the basic principles of the Supreme Court’s affirmative action doctrine. Patrick’s first innovation is his argument that “faculty diversity” is a sufficiently compelling interest to justify firing people on the basis of race. In a letter to the editors of TNR, Patrick argues that “many Supreme Court justices” have described faculty diversity as a “laudable” goal. (See Correspondence, page 6.) He neglects to mention, however, that no Supreme Court majority has ever endorsed this view.
Patrick is also less than frank when he claims that “nothing in the controlling case law” clashes with his position. In fact, Justice Lewis Powell’s plurality opinion in the 1986 Wygant case explicitly rejected the argument that white teachers could be fired over black teachers “to provide role models for minority children.” Carried to its logical conclusion, Powell said, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education. More pointedly still, Powell objected that the role model theory allows the board to use racial preferences “long past the point required by any legitimate remedial purpose.”
Patrick dismisses Justice Powell’s concerns. Citing the dissenting opinion in Wygant by John Paul Stevens, he argues that there are a number of reasons why schools that have never discriminated in the past might seek racially diverse faculties. “It is one thing for a white child to be taught by a white teacher that color, like beauty, is only ‘skin-deep,'” wrote Stevens. “It is far more convincing to experience that truth on a day-today basis.” The argument may be intelligible for social studies teachers; but Stevens never suggested that students would benefit from being exposed to racial diversity in typing and accounting classes.
In any event, the “faculty diversity” argument is a red herring, since Justice Powell said explicitly that it is not compelling enough to justify firing people on the basis of race. Patrick argues that the Piscataway school board did not “unnecessarily trammel” Taxman’s rights. But in fact, the board violated Taxman’s right to have the same chance of keeping her job as anyone with equal seniority. The coincidence that Taxman and Williams were hired on the same day doesn’t change the constitutional principle: in a random, colorblind system, each would have had a 50 percent chance of keeping her job. “We’re not taking a position on whether this is constitutional,” Patrick told me on the telephone; but his brief takes a very strong position. It explicitly rejects Justice Powell’s central insight in Wygant: “While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in s
erious disruption of their lives. That burden is too intrusive.”
That’s some pretty damning stuff, and only a small part of well-written article which criticizes every aspect of Deval’s handling of the Taxman case. It offers some legal insight into how radical Deval Patrick may really be.
However, voters are largely unaware of what Deval Patrick really stands for because the press has not done its job in fully investigating the public and corporate life of this candidate. The only Boston journalist to touch this subject is Jon Keller, who did so in a May issue of Boston Magazine and cited the TNR article in his own. Perhaps Keller’s piece came out too early and in a publication which lacks the readership and distribution of the Globe or Herald. His article had some interesting quotes as well:
Race, [Patrick] argued, played no greater weight in the boards decision than any other qualification, a claim directly undercut by the schools personnel director, who wrote to the white teacher to assure her that her job performance wasnt a factor.
Amid mounting national controversy, a coalition of black civil rights activists, including the Reverend Jesse Jackson, raised $433,500 to settle with the plaintiff, reportedly out of fear of setting a legal precedent that could undermine race-based affirmative action programs. The Clinton administration reacted to the uproar and a rising chorus of political and judicial protest by publicly promoting the notion of affirmative action based on economic status, not race. But Patrick says he has no second thoughts about his handling of the matter: We did the best we could. [The case] was right on the law, hard on the politics. I sided with the board, it wasnt about black and white. There wasnt any precedent entitling her to a coin toss. (emphasis added)
Of course, by “her”, Deval meant Taxman. He wanted to fight this case all the way to the Supreme Court, but his peers in the civil rights community were afraid the court would shoot down the entire concept of affirmative action in the process. Too radical even for Jesse Jackson?! Meanwhile, Clinton changed his tune from race to class.
One paragraph from “The New Democrat” encapsulated the sentiment of many observers to the Taxman debacle:
Patricks course is both morally indefensible and politically dangerous… Morally, it is the equivalent of burning down the village in order to save it. He would combat discrimination in the past by practicing
discrimination in the present, contributing to and
perpetuating the cycle of racial resentment.
There’s no doubt that Deval’s personal story is inspiring and that he overcame personal adversity to attain personal success. However, it is important that voters are able to square his campaign positions with his public and corporate records. It is also important that a potential Democratic nominee be able to stand in the face of relentless GOP attacks. It’s a sure bet that the Healey campaign has been sitting on a lot of this information for some time, as have right-wing blogs and publications, waiting for the right moment. But where has the press been, to ask the tough questions? To start, what do “justice” and “fairness” mean to Deval Patrick?