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Affirmative Action on Trial: Sex Discrimination in Johnson vs. Santa Clara

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"Melvin Urofsky has crafted not only a probing analysis of the law involving affirmative action, but he has also told a poignant story about the lives of ordinary people in the legal process. The result is a book that is an ideal primer on affirmative action, both as a contested political and legal issue and, as significantly, an emotional roller coaster for those caught up in it."—Kermit Hall, author of The Magic Mirror: Law in American History

"Teachers will welcome this book as an unparalleled blend of ...

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Overview

"Melvin Urofsky has crafted not only a probing analysis of the law involving affirmative action, but he has also told a poignant story about the lives of ordinary people in the legal process. The result is a book that is an ideal primer on affirmative action, both as a contested political and legal issue and, as significantly, an emotional roller coaster for those caught up in it."—Kermit Hall, author of The Magic Mirror: Law in American History

"Teachers will welcome this book as an unparalleled blend of exacting legal scholarship with engaging narrative history. Urofsky skillfully weaves dialogue, novelistic narrative, and extensive interview quotes with discerning policy and legal analysis. In the grand tradition of Anthony Lewis, he shows how great movements in law and society impact ordinary people, and how their universal striving for fair play and equal treatment moves legal discourse. Students and teachers alike will cherish this book."—William M. Wiecek, author of Liberty under Law: The Supreme Court in American Life

"Urofsky's volume is a boon to those attempting to understand the current debate about affirmative action. Taking one case as his text, he presents the arguments on both sides, explores the societal setting that produced the controversy, and explains both the legal decisions that have been an important element in the debate and the steps the case followed in its journey to the Supreme Court. He never forgets that the story he is telling involves real people, who spring to life in these pages and provide a human face to the debate and to the judicial process. He remembers that he is also writing for real people, and he does so beautifully. There could not be a better way of learning about the interaction between societal problems and the law in the United States."—Phillipa Strum, author of Louis Brandeis: Justice for the People

Author Biography: Melvin I. Urofsky is professor of constitutional history at Virginia Commonwealth University. Called by the Journal of American History "our most prolific constitutional historian," he is the author or editor of more than three dozen books, including Letting Go: Death, Dying, and the Law and Lethal Judgments:Assisted Suicide and American Law.

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Editorial Reviews

Donald W. Crowley
Melvin Urofsky has written an extremely interesting book in the tradition of Anthony Lewis' GIDEON'S TRUMPET. However, befitting the ambivalence with which most Americans view affirmative action, heroes here are much harder to discern. Urofsky’s book traces the stories of Diane Joyce and Paul Johnson, who fight out the dilemma’s of affirmative action through the judicial process. By weaving their personal stories together with the larger conflict over affirmative action Urofsky produces a highly readable case study that should be a very valuable supplementary work for undergraduate courses in judicial process or law and society. Urofsky’s book focuses on the events that culminated in the Supreme Court decision in JOHNSON v. SANTA CLARA COUNTY. This case is mentioned in many texts as a leading decision favoring affirmative action for women. The book begins with Paul Johnson and Diane Joyce seeking to a dispatcher’s job in the Santa Clara County highway department. The dispatcher’s job, along with the significant pay increase, was a goal that both of them had sought for quite a while. It is easy to be sympathetic to both of the principles in this dispute. When the road dispatcher’s job opened in 1979 Paul Johnson had worked for the highway department for twelve years and had 20 years of previous experience in the construction industry. Moreover, he had been performing the specific duties of a road dispatcher on an interim basis. He was apparently well liked, one of the boys, as Urofsky describes it. He certainly considered himself the most qualified person for the job. Diane Joyce’s case is no less compelling. A widow with four children she began working in the Santa Clara highway department as a senior account clerk in 1972. In 1974 she applied for a dispatcher’s job but was told that she needed road work experience. After taking evening courses on road maintenance she eventually obtained a job with the road maintenance crew. On the maintenance crew her job was tinged with incidents of gender discrimination, but she persevered and was respected enough to be elected as shop steward for the local chapter of the Service Employee’s International Union. Interestingly, her role with the union added another point of contention since Johnson was widely regarded as anti-union. When a dispatcher’s job opened again in 1979 both Johnson and Joyce applied. After interviews seven of the twelve applicants were deemed qualified. Johnson placed second and Joyce fourth separated by two points on the rating scale. (I’ve always wondered what happened to the person ranked first but unfortunately Urofsky’s account never says). According to the County’s hiring rules they could hire any of the seven people deemed qualified. Initially, Johnson was informed by supervisors that they had recommended him and the job would be his. They were wrong. After hearing rumors that Johnson was going to be hired, Diane Joyce called the county’s affirmative action officer. The affirmative action office suggested to the Director of the Transportation Agency that it would be desirable to hire a clearly qualified woman for a position that had never been held by a woman. Indeed of the 238 positions that the Agency classified as "skilled craft jobs" none were held by women. By deciding to hire Joyce because she was a woman the conditions for a "reverse discrimination" suit seemed to be set. To Paul Johnson the County had clearly violated the merit principle. He was convinced that he was the most qualified and would have gotten the job except that the Agency wanted to hire a woman. To Diane Joyce, this was hardly the way to look at the issue. She knew she was qualified and it was definitely past time for a woman to occupy one of these positions. Her joy at getting the job was soon tempered by the knowledge that Paul Johnson had filed suit under Title VII of the 1964 Civil Rights Act. This is the story Urofsky tells in the first chapter and it is certainly an important story. In the next two chapters Urofsky provides a brief but competent review of the arguments for and against affirmative action along with an overview of the judicial development of the law under Title VII. By the fourth chapter we are ready to return to Johnson’s case against the Santa Clara County. What is particularly interesting is that despite the unsettled nature of legal doctrine dealing with affirmative action in the eighties, both sides felt they had an easy case. Johnson’s lawyer thought that it was an "open-and-shut case of discrimination under Title VII" (p.54), while the County’s lawyers thought it was "such a stupid case" that it would never go to trial (p. 54). Again, both sides were wrong. Urofsky’s study help to illustrate the tension between plain meaning approaches and more purposive approaches to statutory interpretation. The case also provides an opportunity to ponder what kinds of background facts count as relevant in such a situation. To Johnson’s lawyer the only really relevant information was that Johnson ranked higher and the Transportation Agency acknowledged that the recommendations of the supervisors was overridden because the Agency felt the need to promote women. Thus Johnson was denied the job on the basis of gender which therefore violated Title VII. To Joyce and the County’s lawyers the most important facts were that Joyce was clearly qualified, the county’s hiring policy said they could hire any of the top seven, and that this was a great opportunity to address an obvious imbalance. The case also points to some of the anomalies of affirmative action. If the County had been found guilty of past discrimination then not only would such action clearly have been justified, it probably would have been Court ordered. However, the County had not been held to have engaged in past discrimination against women nor were they willing to admit to discrimination since this might lead to future suits. Still, women were clearly underrepresented in skill positions and voluntary action to ease this discrepancy seemed a desirable social goal. Central to this dispute is the extent to which the existence of a statistical disparity ought to count as evidence of discrimination. This issue remains as one of the great concerns of the affirmative action debate. In the rest of the book Urofsky skillfully guides us through the twists and turns of the judicial system. We learn that Johnson wins in the Federal District Court primarily because the District Court Judge, following a fairly narrow interpretation of UNITED STEEL WORKERS OF AMERICAN v. WEBER, believed that the County’s affirmative action plan was too open ended, since it didn’t have a clear termination date, and looked too much like a quota. Over two years later this decision was reversed by the Ninth Circuit, which argued that the District Court had read Title VII and WEBER too narrowly and that the County’s affirmative action plan was an acceptable means "to remedy longstanding imbalances in the work force." (p.87). By this point the case was no longer really about Paul Johnson and Diane Joyce. Indeed an increasingly bitter Paul Johnson retired after the Ninth Circuit’s decision. Urofsky describes how Johnson’s case is taken over by a conservative public interest group interested in "reverse discrimination" cases and the corresponding interest of civil rights groups in defending affirmative action. He also provides us with a nice insider’s view as the competing lawyers prepare their arguments for the Supreme Court. Throughout, Urofsky’s account is enhanced by extensive interviews with Johnson, Joyce, their lawyers and other participants. The insider story is also aided by the access the author was afforded to Justice Brennan’s office files which provides us with a good look at how the Supreme Court handled the case and crafted the majority opinion. In March of 1987, seven years after Diane Joyce first called the affirmative action office, she finally won in the Supreme Court. Justice Brennan wrote the majority opinion stating that the use of affirmative action plans to alleviate statistical imbalances did not violate Title VII. Arguably this victory marked the last major triumph for affirmative action in the Supreme Court. As Urofsky writes in the last chapter and in a postscript, the Court’s support for affirmative action clearly began to wane after the Johnson decision. In WARD’S COVE PACKING v. ANTONIO (1989) and in RICHMOND v. J.A. CROSON (1989) a new Court majority abandoned the view that statistical disparities by themselves constituted grounds to demonstrate past discrimination. Both decisions clearly indicated the Court’s growing skepticism towards the uses of affirmative action as a way to attack the continuing existence of inequality. Urofsky’s account of Johnson’s and Joyce’s battle for the job of dispatcher with the Santa Clara Transportation Agency is well worth reading. Admittedly, scholars knowledgeable about judicial policy making and the conflict over affirmative action are unlikely to discover new insights or analysis from this work. Nor does Urofsky spend much time on the intricacies of statutory or constitutional analysis. Still, this wasn’t Urofsky’s goal. As he states it, we can better understand such issues "if we can place it in a human context." (p. ix) this he clearly succeeds in doing. References Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Random House. Cases: JOHNSON V. TRANSPORTATION AGENCY, SANTA CLARA COUNTY 480 U.S. 616 (1987). RICHMOND v. J. A. CROSON, 488 U.S. 469 (1989). UNITED STEEL WORKERS OF AMERICA v. WEBER, 443 U.S. 977 (1979). WARDS COVE PACKING, v. ANTONIO, 490 U.S. 642, (1989).
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Product Details

Table of Contents


Editors' Preface

Preface

1. Diane Joyce Makes a Phone Call

2. The Debate over Affirmative Action

3. The Law and Affirmative Action

4. "A Simple Title VII Case"

5.The Road to the Marble Palace

6. The Changing Law of the Eighties

7. Preparing for Battle

8. Before the Bar

9. The Court Decides

Postscript

Bibliographical Essay

Chronology

Index

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