Taxman v. Board of Education of the Township of Piscataway

91 F.3d 1547

• Court: Court of Appeals for the Third Circuit
• Decided: August 21, 1996
• Docket: Nos. 94-5090, 94-5112
• Status: Published

Opinions

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this Title VII matter, we must determine whether the Board of Education of the Township of Piscataway violated that statute when it made race a factor in selecting which of two equally qualified employees to lay off. Specifically, we must decide whether Title VII permits an employer with a racially bal-aneed work force to grant a non-remedial racial preference in order to promote “racial diversity”.

It is clear that the language of Title VII is violated when an employer makes an employment decision based upon an employee’s race. The Supreme Court determined in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), however, that Title VII’s prohibition against racial discrimination is not violated by affirmative action plans which first, “have purposes that mirror those of the statute” and second, do not “unnecessarily trammel the interests of the [non-minority] employees,” id. at 208, 99 S.Ct. at 2730.

We hold that Piseataway’s affirmative action policy is unlawful because it fails to satisfy either prong of Weber. Given the clear antidiscrimination mandate of Title VII, a non-remedial affirmative action plan, even one with a laudable purpose, cannot pass muster. We will affirm the district court’s grant of summary judgment to Sharon Taxman.

I.¹

In 1975, the Board of Education of. the Township of Piseataway, New Jersey, developed an affirmative action policy applicable to employment decisions. The Board’s Affirmative Action Program, a 52-page document, was originally adopted in response to a regulation promulgated by the New Jersey State Board of Education. That regulation directed local school boards to adopt “affirmative action programs,” N.J. Admin. Code Tit. 6 § 6:4 — 1.3(b), to address employment as well as school and classroom practices and to ensure equal opportunity to all persons regardless of race, color, creed, religion, sex or national origin. N.J. Admin. Code Tit. 6 §§ 6:4 — 1.5, 6:4r-1.6(a). In 1983 the Board also adopted a one page “Policy”, entitled “Affirmative Action — Employment Practices.” It is not clear from the record whether the “Policy” superseded or simply added to the “Program,” nor does it matter for purposes of this appeal.

The 1975 document states that the purpose of the Program is “to provide equal educational opportunity for students and equal employment opportunity for employees and prospective employees,” and “to make a concentrated effort to attract ... minority personnel for all positions so that their qualifications can be evaluated along with other candidates.” The 1983 document states that its purpose is to “ensure[] equal employment opportunity ... and prohibit[ ] discrimination in employment because of [, inter alia,] race....”

The operative language regarding the means by which affirmative-action goals are to be furthered is identical in the two documents. “In all cases, the most qualified candidate will be recommended for appointment. However, when candidates appear to be of equal qualification, candidates meeting the criteria of the affirmative action program will be recommended.” The phrase “candidates meeting the criteria of the affirmative action program” refers to members of racial, national origin or gender groups identified as minorities for statistical reporting purposes by the New Jersey State Department of Education, including Blacks. The 1983 document also clarifies that the affirmative action program applies to “every aspect of employment including ... layoffs_” ²

The Board’s affirmative action policy did not have “any remedial purpose”; it was not adopted “with the intention of remedying the results of any prior discrimination or identified underrepresentation of minorities within the Piseataway Public School System.” At all relevant times, Black teachers were neither “underrepresented” nor “underutilized” in the Piseataway School District work force.³ Indeed, statistics in 1976 and 1985 showed that the percentage of Black employees in the job category which included teachers exceeded the percentage of Blacks in the available work force.

A.

In May, 1989, the Board accepted a recommendation from the Superintendent of Schools to reduce the teaching staff in the Business Department at Piscataway High School by one. At that time, two of the teachers in the department were of equal seniority, both having begun their employment with the Board on the same day nine years earlier. One of those teáchers was intervenor plaintiff Sharon Taxman, who is White, and the other was Debra Williams, who is Black. Williams was the only minority teacher among the faculty of the Business Department.

Decisions regarding layoffs by New Jersey school boards are highly circumscribed by state law; nontenured faculty must be laid off first, and layoffs among tenured teachers in the affected subject area or grade level must proceed in reverse order of seniority. N.J. Stat. Ann. § 18A:28-9 et seq. Seniority for this purpose is calculated according to specific guidelines set by state law. N.J. Stat. Ann. § 18A:28-10; N.J. Admin. Code Tit. 6 § 6:3-5.1. Thus, local boards lack discretion to choose between employees for layoff, except in the rare instance of a tie in seniority between the two or more employees eligible to fill the last remaining position.

The Board determined that it was facing just such a rare circumstance in deciding between Taxman and Williams. In prior decisions involving the layoff of employees with equal seniority, the Board had broken the tie through “a random process which included drawing numbers out of a container, drawing lots or having a lottery.” ⁴ In none of those instances, however, had the employees involved been of different races.

In light of the unique posture of the layoff decision, Superintendent of Schools Burton Edelehick recommended to the Board that the affirmative action plan be invoked in order to determine which teacher to retain. Superintendent Edelehick made this recommendation “because he believed Ms. Williams and Ms. Taxman were tied in seniority, were equally qualified, and because Ms. Williams was the only Black teacher in the Business Education Department.”

While the Board recognized that it was not bound to apply the affirmative action policy, it made a discretionary decision to invoke the policy to break the tie between Williams and Taxman. As a result, the Board “voted to terminate the employment of Sharon Taxman, effective June 30,1988.... ”

At her deposition, Paula Van Riper, the Board’s Vice President at the time of the layoff, described the Board’s decision-making process. According to Van Riper, after the Board recognized that Taxman and Williams were of equal seniority, it assessed their classroom performance, evaluations, volunteerism and certifications and determined that they were “two teachers of equal ability” and “equal qualifications.”

At his deposition Theodore H. Kruse, the Board’s President, explained his vote to apply the affirmative action policy as follows:

A. Basically I think because I had been aware that the student body and the community which is our responsibility, the schools of the community, is really quite diverse and there — I have a general feeling during my tenure on the board that it was valuable for the students to see in the various employment roles a wide range of background, and that it was also valuable to the work force and in particular to the teaching staff that they have — they see that in each other.

Asked to articulate the “educational objective” served by retaining Williams rather than Taxman, Kruse stated:

A. In my own personal perspective I believe by retaining Mrs. Williams it was sending a very clear message that we feel that our staff should be culturally diverse, our student population is culturally diverse and there is a distinct advantage to students, to all students, to be made — come into contact with people of different cultures, different background, so that they are more aware, more tolerant, more accepting, more understanding of people of all background.

Q. What do you mean by the phrase you used, culturally diverse?

A. Someone other than — different than yourself. And we have, our student population and our community has people of all different background, ethnic background, religious background, cultural background, and it’s important that our school district encourage awareness and acceptance and tolerance and, therefore, I personally think it’s important that our staff reflect that too.

B.

Following the Board’s decision, Taxman filed a charge of employment discrimination with the Equal Employment Opportunity Commission. Attempts at conciliation were unsuccessful, and the United States filed suit under Title VII against the Board in the United States District Court for the District of New Jersey.⁵ Taxman intervened, asserting claims under both Title VII and the New Jersey Law Against Discrimination (NJLAD).

Following discovery, the Board moved for summary judgment and the United States and Taxman cross-moved for partial summary judgment only as to liability. The district court denied the Board’s motion and granted partial summary judgment to the United States and Taxman, holding the Board liable under both statutes for discrimination on the basis of race. United States v. Board of Educ. of Township of Piscataway, 832 F.Supp. 836, 851 (D.N.J.1993).

A trial proceeded on the issue of damages. By this time, Taxman had been rehired by the Board and thus her reinstatement was not an issue. The court awarded Taxman damages in the amount of $134,014.62 for backpay, fringe benefits and prejudgment interest under Title VII. A jury awarded an additional $10,000 for emotional suffering under the NJLAD. The district court denied the United States’ request for a broadly worded injunction against future discrimination, finding that there was no likelihood that the conduct at issue would recur, but it did order the Board to give Taxman full seniority reflecting continuous employment from 1980. Additionally, the court dismissed Taxman’s claim for punitive damages under the NJLAD.

The Board appealed, contending that the district court erred in granting Taxman summary judgment as to liability. The Board also contends, in the alternative, that the court erred in awarding Taxman 100% back-pay and in awarding prejudgment interest at the IRS rate rather than under 28 U.S.C. § 1961. Taxman cross-appealed, contending that the district court erred in dismissing her claim for punitive damages. Subsequently, the United States sought leave to file a brief as amicus curiae in support of reversal of the judgment, representing that it could no longer support the judgment of the district court. By order of November 17, 1995, we denied the United States’ request. We treated the position of the United States at the original argument before this court on January 24, 1995, as a motion to withdraw as a party, which we granted. Thus, the only parties before us on this appeal are the Board and Taxman.

This court has jurisdiction over the appeals under 28 U.S.C. § 1291. Our review of the district court’s decision on summary judgment is plenary. Waldron v. SL Industries, 56 F.3d 491, 496 (3d Cir.1995).

n.

In relevant part, Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” or “to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee” on the basis of “race, color, religion, sex, or national origin.” ⁶ 42 U.S.C. § 2000e-2(a). For a time, the Supreme Court construed this language as absolutely prohibiting discrimination in employment, neither requiring nor permitting any preference for any group. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 643, 107 S.Ct. 1442, 1457-58, 94 L.Ed.2d 615 (1987) (Stevens, J., concurring) (citing, inter alia, Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), and McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2579, 49 L.Ed.2d 493 (1976)).

In 1979, however, the Court interpreted the statute’s “antidiscriminatory strategy” in a “fundamentally different way”, id. at 644, 107 S.Ct. at 1458, holding in the seminal case of United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), that Title VU’s prohibition against racial discrimination does not condemn all voluntary race-conscious affirmative action plans. In Weber, the Court considered a plan implemented by Kaiser Aluminum & Chemical Corporation. Prior to 1974, Kaiser hired as craftworkers only those with prior craft experience. Id. at 198, 99 S.Ct. at 2724-25. Because they had long been excluded from craft unions, Blacks were unable to present the credentials required for craft positions. Id. Moreover, Kaiser’s hiring practices, although not admittedly discriminatory with regard to minorities, were questionable. Id. at 210, 99 S.Ct. at 2730. As a consequence, while the local labor force was about 39% Black, Kaiser’s labor force was less than 15% Black and its crafts-work force was less than 2% Black. Id. at 198, 99 S.Ct. at 2724-25. In 1974, Kaiser entered into a collective bargaining agreement which contained an affirmative action plan. The plan reserved 50% of the openings in an in-plant craft-training program for Black employees until the percentage of Black craft-workers in the plant reached a level commensurate with the percentage of Blacks in the local labor force. Id. at 198, 99 S.Ct. at 2724-25. During the first year of the plan’s operation, 13 craft-trainees were selected, seven of whom were Black and six of whom were White. Id. at 199, 99 S.Ct. at 2725.

Thereafter, Brian Weber, a White production worker, filed a class action suit, alleging that the plan unlawfully discriminated against White employees under Title VII. Relying upon a literal reading of subsections 703(a) and (d)⁷ of the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court’s decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. at 273, 96 S.Ct. at 2574, where the Court held that Title VII forbids discrimination against Whites as well as Blacks, the plaintiffs argued that it necessarily followed that the Kaiser plan, which resulted in junior Black employees receiving craft training in preference to senior White employees, violated Title VII. Id. at 199, 99 S.Ct. at 2725. The district court agreed and entered a judgment in favor of the plaintiffs; the Court of Appeals for the Fifth Circuit affirmed. Id. at 200, 99 S.Ct. at 2725-26.

The Supreme Court, however, reversed, noting initially that although the plaintiffs’ argument was not “without force”, it disregarded “the significance of the fact that the Kaiser-USWA plan was an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation.” Id. at 201, 99 S.Ct. at 2726. The Court then embarked upon an exhaustive review of Title VU’s legislative history and identified Congress’ concerns in enacting Title VU’s prohibition against discrimination— the deplorable status of Blacks in the nation’s economy, racial injustice, and the need to open employment opportunities for Blacks in traditionally closed occupations. Id. at 202-204, 99 S.Ct. at 2726-2728. Against this background, the Court concluded that Congress could not have intended to prohibit private employers from implementing programs directed toward the very goal of Title VII — the eradication of discrimination and its effects from the workplace:

It 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.

Id. at 204, 99 S.Ct. at 2728.

The Court found support for its conclusion in the language and legislative history of section 2000e-2(j) of Title VII which expressly provides that nothing in the Act requires employers to grant racial preferences.⁸ According to the Court, the opponents of Title VII had raised two arguments: the Act would be construed to impose obligations upon employers to integrate their work forces through preferential treatment of minorities, and even without being obligated to do so, employers with racially imbalanced work forces would grant racial preferences. Id. at 205, 99 S.Ct. at 2728. Since Congress addressed only the first objection and did not specifically prohibit affirmative action efforts in section 2000e-2(j), the Court inferred that Congress did not intend that Title VII forbid all voluntary race-conscious preferences. Id. at 205-06, 99 S.Ct. at 2728. The Court further reasoned that since Congress also intended in section 2000e-2(j) “to avoid undue federal regulation of private businesses,” a prohibition against all voluntary affirmative action would disserve this end by “augment[ing] the power of the Federal government and diminishpmg] traditional management prerogatives_” Id. at 206-07, 99 S.Ct. at 2729.

The Court then turned to the Kaiser plan in order to determine whether it fell on the “permissible” side of the “line of demarcation between permissible and impermissible affirmative action plans.” Id. at 208, 99 S.Ct. at 2729-30. The Court upheld the Kaiser plan because its purpose “mirror[ed] those of the statute” and it did not “unnecessarily trammel the interests of the [non-minority] employees”:

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.” 110 Cong. Ree. 6548 (1964) (remarks of Sen. Humphrey).

At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hires. Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.

Id. at 208, 99 S.Ct. at 2730 (citation and footnote omitted).

In 1987, the Supreme Court decided a second Title VII affirmative action case, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. at 616, 107 S.Ct. at 1442. There, the Santa Clara County Transit District Board of Supervisors implemented an affirmative action plan stating that ‘“mere prohibition of discriminatoiy practices [was] not enough to remedy the effects of past discriminatory practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.’ ” Id. at 620, 107 S.Ct. at 1446. The plan noted that women were represented in numbers far less than their proportion of the available work force in the Agency as a whole and in the skilled craft worker job category relevant to the case, and observed that a lack of motivation in women to seek training or employment where opportunities were limited partially explained the underrepresentation. Id. at 621, 107 S.Ct. at 1446. The plan authorized the Agency to consider as one factor the gender of a qualified candidate in making promotions to positions with a traditionally segregated job classification in which women were significantly underrepresented. Id. at 620-21, 107 S.Ct. at 1446. The plan did not set quotas, but had as its long-term goal the attainment of a work force whose composition reflected the proportion of women in the area labor force. Id. at 621-22, 107 S.Ct. at 1446. Acknowledging the practical difficulties in attaining the long-term goal, including the limited number of qualified women, the plan counseled that short range goals be established and annually adjusted to serve as realistic guides for actual employment decisions. Id. at 622, 107 S.Ct. at 1447.

On December 12, 1979, the Agency announced a vacancy for the promotional position of road dispatcher. At the time, none of the 238 positions in the applicable job category was occupied by a woman. Id. at 621, 107 S.Ct. at 1446. The Agency Director, authorized to choose any of seven applicants who had been deemed eligible, promoted Diane Joyce, a qualified woman, over Paul Johnson, a qualified man. Id. at 624 — 25, 107 S.Ct. at 1448. As the Agency Director testified: “ T tried to look at the whole picture, the combination of her qualifications and Mr. Johnson’s qualifications, their test scores, their expertise, their background, affirmative action matters, things like that ... I believe it was a combination of all those.’ ” Id. at 625, 107 S.Ct. at 1448.

Johnson sued, alleging that the Agency’s employment decision constituted unlawful sex discrimination under Title VII. Evaluating the plan against the criteria announced in Weber, the district court held that the plan did not satisfy Weber’s criterion that the plan be temporary. Id. at 625, 107 S.Ct. at 1448. The Court of Appeals for the Ninth Circuit reversed, holding that since the plan provided for the attainment, rather than the maintenance, of a balanced work force, the absence of an express termination date in the plan was not dispositive of its validity. Id. at 625-26, 107 S.Ct. at 1448-49. The court of appeals further held that the plan had been adopted “to address a conspicuous imbalance in the Agency’s work force, and neither unnecessarily trammeled the rights of other employees, nor created an absolute bar to their advancement.” Id. at 626, 107 S.Ct. at 1449.

The Supreme Court affirmed. Declaring its prior analysis in Weber controlling, the Court examined whether the employment decision at issue “was made pursuant to a plan prompted by concerns similar to those of the employer in Weber” and whether “the effect of the [p]lan on males and nonminorities [was] comparable to the effects of the plan in that case.” Id. at 631, 107 S.Ct. at 1451. The first issue the Court addressed, therefore, was whether “consideration of the sex of applicants for Skilled Craft jobs was justified by the existence of a ‘manifest imbalance’ that reflected underrepresentation of women in ‘traditionally segregated job categories.’” Id. at 631, 107 S.Ct. at 1451-52 (quoting Weber, 443 U.S. at 197, 99 S.Ct. at 2724). Although the Court did not set forth a quantitative measure for determining what degree of disproportionate representation in an employer’s work force would be sufficient to justify affirmative action, it made clear that the terms “manifest imbalance” and “traditionally segregated job category” were not tantamount to a prima facie case of discrimination against an employer since the constraints of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans are not identical. Johnson, 480 U.S. at 632, 107 S.Ct. at 1452. In this regard, the Court further reasoned that requiring an employer in a Title VII affirmative action case to show that it had discriminated in the past “would be inconsistent with Weber ’s focus on statistical imbalance, and could inappropriately create a significant disincentive for employers to adopt an affirmative action plan”. Id. at 633, 107 S.Ct. at 1453 (footnote omitted).

Reviewing Agency statistics which showed that women were concentrated in traditionally female jobs and represented a lower percentage in other jobs than would be expected if traditional segregation had not occurred, the Court concluded that the decision to promote Joyce was made pursuant to a plan designed to eliminate work force imbalances in traditionally segregated job categories and thus satisfied Weber’s first prong. Id. at 634, 107 S.Ct. at 1453. Moving to Weber’s second prong, whether the plan unnecessarily trammeled the rights of male employees, the Court concluded that the plan passed muster because it authorized merely that consideration be given to affirmative action concerns when evaluating applicants; gender was a “plus” factor, only one of several criteria that the Agency Director considered in making his decision; no legitimate, firmly rooted expectation on the part of Johnson was denied since the Agency Director could have promoted any of the seven candidates classified as eligible; even though Johnson was refused a promotion, he retained his employment; and the plan was intended to attain a balanced work force, not to maintain one. Id. at 638-40, 107 S.Ct. at 1455-56.

III.

We analyze Taxman’s claim of employment discrimination under the approach set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate nondiseriminatory reason for the decision; an affir mative action plan may be one such reason. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 615 (1987). When the employer satisfies this requirement, the bur den of production shifts back to the employee to show that the asserted nondiscriminatory reason is a pretext and that the affirmative-action plan is invalid. Id.

For summary judgment purposes, the parties do not dispute that Taxman has established a prima facie case or that the Board’s decision to terminate her was based on its affirmative action policy. The dispositive liability issue, therefore, is the validity of the Board’s policy under Title VII.

IV.

Having reviewed the analytical framework for assessing the validity of an affirmative action plan as established in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), and refined in Johnson, 480 U.S. at 616, 107 S.Ct. at 1442, we turn to the facts of this ease in order to determine whether the racial diversity purpose of the Board’s policy mirrors the purposes of the statute. We look for the purposes of Title VII in the plain meaning of the Act’s provisions and in its legislative history and historical context. See Edwards v. Aguillard, 482 U.S. 578, 594-95, 107 S.Ct. 2573, 2583, 96 L.Ed.2d 510 (1987) (in determining a statute’s purpose, courts look to the statute’s words, legislative history, historical context and the sequence of events leading to its passage).

Title VII was enacted to further two primary goals: to end discrimination on the basis of race, color, religion, sex or national origin, thereby guaranteeing equal opportunity in the workplace, and to remedy the segregation and underrepresentation of minorities that discrimination has caused in our Nation’s work force.

Title VII’s first purpose is set forth in section 2000e-2’s several prohibitions, which expressly denounce the discrimination which Congress sought to end. 42 U.S.C. § 2000e-2(a)-(d), (l); McDonnell Douglas, 411 U.S. at 800, 93 S.Ct. at 1823 (“The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.”). This antidiscri-minatory purpose is also reflected in the Act’s legislative history. In an interpretative memorandum entered into the Congressional Record, Senators Case and Clark, comanag-ers of the Senate bill, stated:

To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by section 704 are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title.

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... [Title VII] expressly protects the employer’s right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed the very purpose of Title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.

110 Cong. Rec. 7213, 7247 (1964), quoted in Price Waterhouse v. Hopkins, 490 U.S. 228, 243, 109 S.Ct. 1775, 1787, 104 L.Ed.2d 268 (1989).

Title VII’s second purpose, ending the seg-regative effects of discrimination, is revealed in the congressional debate surrounding the statute’s enactment. In Weber, the Court carefully catalogued the comments made by the proponents of Title VII which demonstrate the Act’s remedial concerns. Weber, 443 U.S. at 202-04, 99 S.Ct. at 2726-28. By way of illustration, we cite Senator Clark’s remarks to the Senate:

The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15 years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasons why the bill should pass.

Id. (quoting 110 Cong. Rec. at 7220) (statement of Sen. Clark). Likewise, Senator Humphrey spoke of the Nation’s need ‘“to open employment opportunities for Negroes which have been traditionally closed to them,’ ” and to assist those who have “ ‘been excluded from the American dream for so long[.]’” Id. (quoting 110 Cong. Rec. at 6548, 6552) (statements of Sen. Humphrey).

The significance of this second corrective purpose cannot be overstated. It is only because Title VII was written to eradicate not only discrimination per se but the consequences of prior discrimination as well, that racial preferences in the form of affirmative action can co-exist with the Act’s antidiscrim-ination mandate.

Thus, based on our analysis of Title VU’s two goals, we are convinced that unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of the statute, and, therefore, cannot satisfy the first prong of the Weber test.

We see this case as one involving straightforward statutory interpretation controlled by the text and legislative history of Title VII as interpreted in Weber and Johnson. The statute on its face provides that race cannot be a factor in employer decisions about hires, promotions, and layoffs, and the legislative history demonstrates that barring considerations of race from the workplace was Congress’ primary objective. If exceptions to this bar are to be made, they must be made on the basis of what Congress has said. The affirmative action plans at issue in Weber and Johnson were sustained only because the Supreme Court, examining those plans in light of congressional intent, found a secondary congressional objective in Title VII that had to be accommodated — i.e., the elimination of the effects of past discrimination in the workplace. Here, there is no congressional recognition of diversity as a Title VII objective requiring accommodation.⁹

Accordingly, it is beyond cavil that the Board, by invoking its affirmative action policy to lay off Sharon Taxman, violated the terms of Title VII. While the Court in Weber and Johnson permitted some deviation from the antidiscrimination mandate of the statute in order to erase the effects of past discrimination, these rulings do not open the door to additional non-remedial deviations. Here, as in Weber and Johnson, the Board must justify its deviation from the statutory mandate based on positive legislative history, not on its idea of what is appropriate.¹⁰

The Board recognizes that there is no positive legislative history supporting its goal of promoting racial diversity “for education’s sake”, and concedes that there is no caselaw approving such a purpose to support an affirmative action plan under Title VII. “[T]he Board would have [us] infer the propriety of this purpose from fragments of other authority.” Board of Educ. of Township of Piscataway, 832 F.Supp. at 845.

The Board first attempts to meet its obligations with respect to Title VII by arguing that Congress meant to cover the situation presented here “when it amended Title VII in 1972 to cover academic institutions public and private.” A review of a Senate Committee’s explanation for recommending the amendment, however, reveals that Congress neither addressed nor embraced the racial diversity purpose before us. Instead, Congress pursued, in Title VII’s 1972 amendment with regard to the nation’s schools, the same purposes it had pursued in 1964 when enacting the original statute with respect to other employers, namely, the elimination of discriminatory employment practices and the abolition of discrimination’s invidious effects:

The presence of discrimination in the Nation’s educational institutions is no secret. ... This discrimination, however, is not limited to the students alone. Discriminatory practices against faculty, staff, and other employees is also common.

As in other areas of employment, statistics for educational institutions indicate that minorities and women are precluded from the more prestigious and higher-paying positions, and are relegated to the more menial and lower-paying jobs. While in elementary and secondary school systems Negroes accounted for approximately 10% of the total number of positions in the higher-paying and more prestigious positions in institutions of higher learning, blacks constituted only 2.2% of all positions, most of these being found in all-black or predominantly black institutions. Women are similarly subject to discriminatory patterns. Not only are they generally under-represented in institutions of higher learning, but those few that do obtain positions are generally paid less and advanced more slowly than their male counterparts. Similarly, while women constitute 67% of elementary and secondary school teachers, out of 778,000 elementary and secondary school principals, 78% of elementary school principals are men and 94% of secondary school principals are men.

... There is nothing in the legislative background of Title VII, nor does any national policy suggest itself, to support the present exemption. In fact, the Committee believes that the existence of discrimination in educational institutions is particularly critical. 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 would, more than in any other area, tend to promote existing misconceptions and stereotypical categorizations which in turn would lead to future patterns of discrimination.

SRep. 415, 92nd Cong., 1st Sess. 12 (1971). See Johnson, 480 U.S. at 627-28 n. 6, 107 S.Ct. at 1449-50 n. 6 (‘While public employers were not added to the definition of ‘employer’ in Title VII until 1972, there is no evidence that this mere addition to the definitional section of the statute was intended to transform the substantive standard governing employer conduct.”).

We find the Board’s reliance on Fourteenth Amendment caselaw misplaced as well. We are acutely aware, as is the Board, that the federal courts have never decided a “pure” Title VII case where racial diversity for education’s sake was advanced as the sole justification for a race-based decision. The Board argues that in deciding just such a ease, we should look to the Supreme Court’s endorsement of diversity as a goal in the Equal Protection context. This argument, however, is based upon a faulty premise.

In relying on Equal Protection cases to support its diversity goal, we understand the Board to reason as follows: The Supreme Court observed in Johnson that “the statutory prohibition [in Title VII] with which an employer must contend 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. Accordingly, a purpose which survives constitutional strict scrutiny necessarily passes muster under Title VII’s permissible purpose test — since the Court has endorsed the concept of diversity in Equal Protection cases, it would approve the Board’s diversity purpose in this Title VII case, where the limitations on purpose are less stringent.

We are convinced, however, that Johnson’s footnote six, 480 U.S. at 627-28 n. 6, 107 S.Ct. at 1449-50 n. 6, in which the Court contrasted the reach of Title VII with that of the Constitution, does not speak to the purposes that may support affirmative action under the former but not the latter. We read the Court’s observation to relate, instead, to the factual predicate that employers must offer to prove the need for remedial efforts in Title VII as contrasted With Equal Protection affirmative action cases.

In Johnson, the Court held that the legality of the Santa Clara County Transportation Agency’s plan under Title VII must be guided by the Court’s determination in Weber that affirmative action is lawful if an employer can point to a “ ‘manifest imbalance ... in traditionally segregated job categories.’ ” 480 U.S. at 630-32, 107 S.Ct. at 1451-52 (quoting Weber, 443 U.S. at 197, 99 S.Ct. at 2724). In Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), by contrast, the Court determined that under the Constitution a public employer’s remedial affirmative action initiatives are valid only if crafted to remedy its own past or present discrimination; that is, societal discrimination is an insufficient basis for “imposing discretionary legal remedies against innocent people.” Id. at 274-76, 106 S.Ct. at 1847-48. In the plurality’s words, affirmative action must be supported by “a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.” Id. at 277, 106 S.Ct. at 1849.

When the Court in Johnson observed that Title VII’s statutory prohibition does not extend as far as the Constitution, it was addressing one of Justice Scalia’s arguments in dissent that since obligations under Title VII and the Constitution are identical, a public employer’s adoption of an affirmative action plan in a Title VII case should be governed by the prior discrimination standard set forth in Wygant. Johnson, 480 U.S. at 627-28 n. 6, 107 S.Ct. at 1449-50 n. 6.¹¹

While the Supreme Court may indeed at some future date hold that an affirmative action purpose that satisfies the Constitution must necessarily satisfy Title VII, it has yet to do so.

Were we to accept that equal protection standards may be imported into Title VII analysis, we are still unpersuaded that the Equal Protection caselaw validates the Board’s asserted goal of racial diversity. We cannot agree with the Board that the racial diversity purpose is supported by both the Supreme Court’s holding and the dissenting opinions in Wygant. The Court in Wygant, although divided, agreed that under the Equal Protection Clause, racial classifications in the context of affirmative action must be justified by a compelling state purpose and the means chosen to effectuate that purpose must be narrowly tailored; that societal discrimination alone will not justify a racial classification; that evidence of prior discrimination by an employer must be presented before remedial racial classifications can be employed; and that the “role model” theory proposed by the employer as a basis for race-conscious state action was unacceptable because it would have allowed discriminatory hiring and layoff well beyond the point necessary for any remedial purpose and did not bear any relationship to the harm caused by prior discrimination. Id. at 270-78, 106 S.Ct. at 1845-49 id. at 284-93, 106 S.Ct. at 1852-57 (O’Connor, J., concurring in part and concurring in the Court’s judgment); id. at 294-95, 106 S.Ct. at 1858 (White, J., concurring in the Court’s judgment). The dissenting Justices believed that the Constitution would allow a public employer to preserve the integration it had achieved through a legitimate affirmative action hiring plan by thereafter apportioning layoffs between minority and nonminority groups. Id. at 306, 106 S.Ct. at 1863-64 (Marshall, J., dissenting, joined by Brennan and Blackmun, JJ.); id. at 267-68, 106 S.Ct. at 1843-44 (Stevens, J., dissenting).

We are also unpersuaded by the Board’s contention that Equal Protection eases arising in an education context support upholding the Board’s purpose in a Title VII action. These Equal Protection cases, unlike the case at hand, involved corrective efforts to confront racial segregation or chronic minority underrepresentation in the schools. In this context, we are not at all surprised that the goal of diversity was raised. While we wholeheartedly endorse any statements in these cases extolling the educational value of exposing students to persons of diverse races and backgrounds, given the framework in which they were made, we cannot accept them as authority for the conclusion that the Board’s non-remedial racial diversity goal is a permissible basis for affirmative action under Title VII. See, e.g., Wygant, 476 U.S. at 267, 106 S.Ct. at 1842 (Marshall, J., dissenting) (noting that the racially-conscious layoff provision at issue was aimed at preserving the faculty integration achieved by the Jackson, Michigan Public Schools in the early 1970s through affirmative action; minority representation went from 3.9% in 1969 to 8.8% in 1971); Columbus Board of Education v. Penick, 443 U.S. 449, 467, 99 S.Ct. 2941, 2951-52, 61 L.Ed.2d 666 (1979) (condemning intentional segregation and the creation of racially-identifiable schools practiced by the Columbus, Ohio Board of Education); Regents of the University of California v. Bakke, 438 U.S. 265, 272, 98 S.Ct. 2733, 2738, 57 L.Ed.2d 750 (1978) (Powell, J., announcing the judgment of the Court) (observing that the 1968 class of the Medical School of the University of California at Davis contained three Asians, no Blacks, no Mexican-Americans and no American Indians); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (observing that 14,000 Black pupils in the Charlotte-Mecklenburg, North Carolina school system attended 21 schools that were at least 99% Black); Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 897 (3d Cir.1984) (recognizing that “[t]he Philadelphia School System has long suffered from de facto segregation by race of students and faculty”), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985).

More specifically, two Supreme Court cases upon which the Board relies, Bakke, 438 U.S. at 265, 98 S.Ct. at 2733, and Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), are inap-posite. Bakke involved a rejected White applicant’s challenge under the Constitution and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to a special admissions program instituted by the Medical School of the University of California at Davis which essentially set aside 16 places for minority candidates. Justice Powell, whose vote was necessary both to establish the validity of considering race in admission decisions and to invalidate the racial quota before the Court,¹² was of the opinion that the attainment of a “diverse student body” is a constitutionally permissible goal for an institution of higher education. Justice Powell pointed out that the academic freedom that has been viewed as a “special concern” of the First Amendment includes “the freedom of a university to make its own judgments as to the selection of its student body” and that “[t]he atmosphere of ‘speculation, experiment and creation’ — so essential to the quality of higher education — is widely believed to be promoted by a diverse student body.” Bakke, 438 U.S. at 312, 98 S.Ct. at 2760 (footnote omitted). He then agreed with Davis’ assertion that its interest in diversity implicated First Amendment concerns:

Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the “robust exchange of ideas,” [Davis] invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission.

Id. at 313, 98 S.Ct. at 2760.

Davis’ reservation of a specified number of seats in each class for individuals from preferred ethnic groups to further its diversity purpose, however, was unacceptable because, according to Justice Powell, it misconceived the nature of the state interest that would justify consideration of race or ethnic background:

It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Davis’ special admissions program, focused solely on ethnic diversify, would hinder rather than further attainment of genuine diversity.

Id. at 315, 98 S.Ct. at 2761 (footnote omitted).¹³

Bakke’s factual and legal setting, as well as the diversity that universities aspire to in their student bodies, are, in our view, so different from the facts, relevant law and the racial diversity purpose involved in this case that we find little in Bakke to guide us.

Likewise, statements regarding the value of programming diversity made by the Court in Metro Broadcasting when it upheld two minority preference policies adopted by the Federal Communications Commission, 497 U.S. at 547, 110 S.Ct. at 2997, have no application here.¹⁴ The diversity interest the Court found sufficient under the Constitution to support a racial classification had nothing whatsoever to do with the concerns that underlie Title VII. Citing Bakke, the Court concluded that “[j]ust as a ‘diverse student body contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which a race-conscious university admissions program may be predicated, the diversity of views and information on the airwaves serves important First Amendment values.” Id. at 568, 110 S.Ct. at 3010 (citation omitted).

Finally, we turn to the Board’s argument that the diversity goal underlying its application of the affirmative action policy was endorsed in Justice O’Connor’s concurring opinion in Wygant and in Justice Stevens’ concurring opinion in Johnson. We find that these statements are slender reeds indeed and any bearing that they may have in the situation presented here is minimal. While Justice O’Connor did refer favorably to Bakke and the notion of racial diversity in institutions of higher learning, Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (O’Connor, J., concurring), just one year later in Johnson, a Title VII ease, she rejected Justice Steven’s expansive view of the purposes that may 'underlie affirmative action, stating: “[C]ontrary to the intimations in JUSTICE STEVENS’ concurrence, this Court did not approve preferences for minorities ‘for any reason that might seem sensible from a business or social point of view.’ ” Johnson, 480 U.S. at 649, 107 S.Ct. at 1461 (O’Connor, J., concurring in the Court’s judgment). As for Justice Stevens’ concurrence in Johnson, while he clearly pondered the idea of “forward-looking” affirmative action where employers do not focus on ‘“purg[ing] their own past sins of discrimination’ ”, id. at 647, 107 S.Ct. at 1460 (Stevens, J., concurring), his comments are not controlling.

V.

Since we have not found anything in the Board’s arguments to convince us that this case requires examination beyond statutory interpretation, we return to the point at which we started: the language of Title VII itself and the two cases reviewing affirmative action plans in light of that statute. Our analysis of the statute and the caselaw convinces us that a non-remedial affirmative action plan cannot form the basis for deviating from the antidiscrimination mandate of Title VII.

The Board admits that it did not act to remedy the effects of past employment discrimination. The parties have stipulated that neither the Board’s adoption of its affirmative action policy nor its subsequent decision to apply it in choosing between Taxman and Williams was intended to remedy the results of any prior discrimination or identified un-derrepresentation of Blacks within the Pis-cataway School District’s teacher workforce as a whole. Nor does the Board contend that its action here was directed at remedying any dejure or defacto segregation. But see Piscataway Township Bd. of Educ. v. Burke, 158 N.J.Super. 436, 386 A.2d 439 (App.Div.), appeal dismissed, 79 N.J. 473, 401 A.2d 230 (1978). Even though the Board’s race-conscious action was taken to avoid what could have been an all-White faculty within the Business Department, the Board concedes that Blacks are not underrepresented in its teaching workforce as a whole or even in the Piscataway High School.

Rather, the Board’s sole purpose in applying its affirmative action policy in this case was to obtain an educational benefit which it believed would result from a racially diverse faculty. While the benefits flowing from diversity in the educational context are significant indeed, we are constrained to hold, as did the district court, that inasmuch as “the Board does not even attempt to show that its affirmative action plan was adopted to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities,” 832 F.Supp. at 845, the Board has failed to satisfy the first prong of the Weber test. United States v. Board of Educ. of Township of Piscataway, 832 F.Supp. 836, 848 (D.N.J.1993).

We turn next to the second prong of the Weber analysis. This second prong requires that we determine whether the Board’s policy “unnecessarily trammel[s] ... [nonminority] interests. ...” Weber, 443 U.S. at 208, 99 S.Ct. at 2730. Under this requirement, too, the Board’s policy is deficient.

We begin by noting the policy’s utter lack of definition and structure.¹⁵ While it is not for us to decide how much diversity in a high school facility is “enough,” the Board cannot abdicate its responsibility to define “racial diversity” and to determine what degree of racial diversity in the Piscataway School is sufficient.

The affirmative action plans that have met with the Supreme Court’s approval under Title VII had objectives, as well as benchmarks which served to evaluate progress, guide the employment decisions at issue and assure the grant of only those minority preferences necessary to further the plans’ purpose. Johnson, 480 U.S. at 621-22, 107 S.Ct. at 1446 (setting forth long-range and short-term objectives to achieve “‘a statistically measurable yearly improvement in hiring, training and promotion of minorities and women ... in all major job classifications where they are underrepresented’ ”); Weber, 443 U.S. at 193, 99 S.Ct. at 2721 (reserving for Black employees 50% of the openings in craft-training programs until the percentage of Black craftworkers reflected the percentage of Blacks in the available labor force). By contrast, the Board’s policy, devoid of goals and standards, is governed entirely by the Board’s whim, leaving the Board free, if it so chooses, to grant racial preferences that do not promote even the policy’s claimed purpose. Indeed, under the terms of this policy, the Board, in pursuit of a “racially diverse” work force, could use affirmative action to discriminate against those whom Title VII was enacted to protect. Such a policy unnecessarily trammels the interests of nonminority employees.

Moreover, both Weber and Johnson unequivocally provide that valid affirmative action plans are “temporary” measures that seek to “ ‘attain’ ”, not “maintain” a “permanent racial ... balance.” Johnson, 480 U.S. at 639-40, 107 S.Ct. at 1456. See Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30. The Board’s policy, adopted in 1975, is an established fixture of unlimited duration, to be resurrected from time to time whenever the Board believes that the ratio between Blacks and Whites in any Piscataway School is skewed. On this basis alone, the policy contravenes Weber’s teaching. See Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431, 440 (10th Cir.1990) (holding that the school district’s layoff decision aimed at ensuring the employment of the district’s only Black administrator was “outright racial balancing” in violation of Weber’s second prong).

Finally, we are convinced that the harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe that the Board’s goal of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion. This is especially true where, as here, the nonminority employee is tenured. In Weber and Johnson, when considering whether nonminorities were unduly encumbered by affirmative action, the Court found it significant that they retained their employment. Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30 (observing that the plan did not require the discharge of nonminority workers); Johnson, 480 U.S. at 638, 107 S.Ct. at 1455 (observing that the nonminority employee who was not promoted nonetheless kept his job). We, therefore, adopt the plurality’s pronouncement in Wygant that “[w]hile 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 serious disruption of their lives. That burden is too intrusive.” Wygant, 476 U.S. at 283, 106 S.Ct. at 1852 (footnote omitted).

Accordingly, we conclude that under the second prong of the Weber test, the Board’s affirmative action policy violates Title VII. In addition to containing an impermissible purpose, the policy “unnecessarily trammel[s] the interests of the [nonminority] employees.” Weber, 443 U.S. at 208, 99 S.Ct. at 2730.

VI.

The district court did not analyze Taxman’s claims based on the New Jersey Law Against Discrimination and we need not do so in detail here. The parties have agreed that the legal analysis required by the state statute is essentially the same as that undertaken in Title VII cases. While the New Jersey Supreme Court has yet to consider a voluntarily adopted affirmative action plan in light of the NJLAD, it is undisputed that the NJLAD has been interpreted to parallel Title VII. In Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 389 A.2d 465, 478 (1978), the Supreme Court of New Jersey wrote that “where [Title VII] standards are useful and fair, it is in the best interests of everyone concerned to have some uniformity in the law.”

Given that statement, we predict that the New Jersey Supreme Court would follow the analytical directive of Weber and Johnson. Analysis of this case under the NJLAD would, therefore, lead to the same result as that which we have reached under Title VII. Sharon Taxman is entitled to summary judgment on her claim made under the NJLAD.

VII.

Having found the Board liable under Title VII, we turn our attention to the issue of damages, addressing first the district court’s order that Taxman be awarded one hundred percent backpay for the entire period of her layoff. The Board argues that where a backpay award is appropriate, the court’s goal should be to restore “ ‘the conditions and relationships that would have been had there been no’ ” unlawful discrimination. Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct. 1843, 1873, 52 L.Ed.2d 396 (1977) (quoting Franks v. Bowman Transportation Co., 424 U.S. 747, 769, 96 S.Ct. 1251, 1266, 47 L.Ed.2d 444 (1976)). According to the Board, the district court’s award of one hundred percent backpay was plainly unfair. Had it not invoked the affirmative action plan, the Board would have followed its usual procedure, using a coin toss or other random process to break the seniority tie between Williams and Taxman. - Taxman, therefore, would have stood no more than a fifty percent chance of keeping her job had there been no unlawful discrimination.¹⁶

We disagree. In deciding backpay issues, a district court has wide latitude to “locate ‘a just result’” and to farther the “make whole remedy of Title VII in light of the circumstances of a particular case.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). While Taxman cannot be returned to the position that she held prior to her layoff—one of virtually precise equality with Williams in terms of the factors relevant to the decision—she can be returned to a position of financial equality with Williams through a one hundred percent backpay award. We are convinced that this award most closely approximates the conditions that would have prevailed in the absence of discrimination.

We find an additional basis for our holding in the analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In that ease, the Supreme Court held that where an employee proves that discrimination played a role in an employment decision, the employer will not be found “liable if it can prove that, even if it had not taken [race] into account it would have come to the same decision regarding a particular person.” Id. at 242, 109 S.Ct. at 1786. Here, Taxman has clearly established that the Board is liable and that she was not paid during the relevant period. Under the logic of Hopkins, the Board cannot avoid a one hundred percent backpay award unless it can establish, by a preponderance of the evidence, that Taxman would have received some lesser amount had the Board not taken race into account. This, of course, the Board cannot do.

Given the law and the circumstances presented in this case, we are convinced that the district court’s analysis with respect to back-pay reflects the sound exercise of judicial discretion and we will affirm the award.

The Board further contends that the district court erred in calculating prejudgment interest using the IRS adjusted prime rate. According to the Board, the district court should have applied the post-judgment rate set forth in 28 U.S.C. § 1961(a). This argument is meritless.

The matter of prejudgment interest is left to the discretion of the district court. Although a court “may” use the post-judgment standards of 28 U.S.C. § 1961(a), Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 68 (3d Cir.1986), it is not compelled to do so. E.E.O.C. v. Wooster Brush Co. Employees Relief Ass’n., 727 F.2d 566, 579 (1984). The adjusted prime rate, established periodically by the Secretary of the Treasury and codified in 26 U.S.C. § 6621, has been used regularly by district courts to calculate prejudgment interest. See, e.g., E.E.O.C. v. Erie County, 751 F.2d 79, 82 (1984) (trial court did not abuse its discretion in using adjusted prime rate to calculate the amount of prejudgment interest to be paid on backpay award under the Equal Pay Act).

We thus hold that the district court’s calculation of pre-judgment interest was consistent with the sound exercise of judicial discretion.

Finally, in her cross-appeal, Taxman asks that we find that the district court erred in dismissing her claim for punitive damages under the NJLAD.

At a January 5, 1994 proceeding devoted to the issue of damages, the district court reaffirmed a decision made at a pretrial conference to “strike the punitive damages claim” on the ground that “there is no evidence to support [it].”¹⁷ (App. at 209). The court made the following comment with respect to punitive damages:

I didn’t say I felt the board — I may have said that the board acted in good faith, but I think what I did say is that there’s no evidence that would support any claim for punitive damages. And I struck the punitive damages claim.

There’s absolutely no evidence that the board acted willfully, wantonly, outrageously or in any other way than trying its best to make the best of a very unhappy situation.

The New Jersey Supreme Court has established a high threshold requirement which must be met before an award of punitive damages can be sustained. Punitive damages are to be awarded only “ “when the wrongdoer’s conduct is especially egregious.’ ” Rendine v. Pantzer, 141 N.J. 292, 313, 661 A.2d 1202, 1215 (1995). “To warrant a punitive award, the defendant’s conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an ‘evilminded’ act accompanied by a wanton and willful disregard to the rights of another.... The key to the right to punitive damages is the wrongfulness of the intentional action.” Id. “[The New Jersey] case indicates that the requirement [of willfulness or wantonness] may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference or consequences.” Id. (citation omitted). “[The New Jersey courts have] stated that proof of actual malice [is] ‘a condition precedent to a punitive damages award.’ ” Id. (citation omitted).

Having examined the record evidence in this case against the background of the New Jersey punitive damages standard, we agree with the district court that the evidence would not support a finding that the Board acted willfully, wantonly or outrageously in dismissing Taxman. We conclude, therefore, that Taxman’s claim for punitive damages was properly dismissed.

VIII.

While we have rejected the argument that the Board’s non-remedial application of the affirmative action policy is consistent with the language and intent of Title VII, we do not reject in principle the diversity goal articulated by the Board. Indeed, we recognize that the differences among us underlie the richness and strength of our Nation. Our disposition of this matter, however, rests squarely on the foundation of Title VII. Although we applaud the goal of racial diversity, we cannot agree that Title VII permits an employer to advance that goal through non-remedial discriminatory measures.

Having found that the district court properly concluded that the affirmative action plan applied by the Board to lay off Taxman is invalid under Title VII, and that the district court did not err in calculating Taxman’s damages or in dismissing her claim for punitive damages, we will affirm the judgment of the district court.

1 . This matter is before us on the grant of summary judgment. See United States v. Board of Educ. of Township of Piscataway, 832 F.Supp. 836 (D.N.J.1993). Except where we have stated otherwise, the facts are taken directly from the stipulations submitted by the parties for purposes of summary judgment.

2 . We use the terms "policy” or "plan” hereafter to refer generally to the affirmative action program adopted by the Board in 1975 as modified, if at all, by the 1983 document.

3 . In the use of designations such as “Black”, "White”, and "Minority”, we adopt the terms used by both the district court and the parties in their stipulated facts.

4 . The dissent of Chief Judge Sloviter characterizes the use of a random process as "a solution that could be expected of the state’s gaming tables.” We take issue with this characterization, noting that those wiser than we have advised that “the lot puts an end to disputes and is decisive in a controversy between the mighty." Proverbs 18:18 (New American). Furthermore, the use of a random process is not something which the court has imposed upon the Board but is instead a mechanism adopted by the Board itself in reaching a decision in prior employment matters. Board of Education Brief at 3.

5 . The suit did not assert a Fourteenth Amendment Equal Protection claim. By the time suit was filed, the statute of limitations had run for claims based on 42 U.S.C. § 1983.

6 . Section 2000e-2(a) of Tide VII states:

§ 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or nationality; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

7 . For subsection 2000e-2(a) of Title VII, see n.5, supra. Subsection 2000e-2(d) of the Act provides:

(d) Training program

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

42 U.S.C. § 2000e-2(d).

8 . Section 2000e-2(j) states:

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, ■ employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by an employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section or other area.

42 U.S.C. § 2000e-2(j).

9 . Our dissenting colleagues would have us substitute our judgment for that expressed by Congress and extend the reach of Title VII to encompass “means of combatting the attitudes that can lead to future patterns of discrimination.” Such a dramatic rewriting of the goals underlying Title VII does not have support in the Title VII case-law.

10 . Although no other reported case has addressed the precise question before us, we believe that the decision reached by the Court of Appeals for the Tenth Circuit in Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431 (10th Cir.1990), merits mention. There the plaintiff, a White social worker who was laid off during a reduction in force, sued her employer, a Colorado school district, under Title VII and the Constitution for discriminating against her on the basis of race by retaining Wayne Hunter, a less senior Black social worker. The district asserted in its defense that even though there was no evidence of past discriminatory conduct on its part to justify remedial race-conscious affirmation action, its decision was lawful because it was made pursuant to an valid affirmative action plan and aimed at retaining the district’s only Black administrator. Id. at 436, 439. The affirmative action plan at issue had two long-range goals: “to achieve a diverse, multi-racial faculty and staff capable of providing excellence in the education of its students and for the welfare and enrichment of the community” and “to achieve equity for all individuals through equal employment opportunity policies and practices.” Id. at 437 n. 3.

Affirming the district court’s judgment in the plaintiff’s favor, the court of appeals stated that "[t]he purpose of race-conscious affirmative action must be to remedy the effects of past discrimination against a disadvantaged group that itself has been the victim of discrimination.” Id. at 437 (citing, inter alia, United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), and Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)) (footnote omitted). Because the record did not contain evidence of past or present discrimination against Blacks by the district or proof of a statistical imbalance in the district’s work force, the court held that the district’s decision to lay off the plaintiff violated the first prong of either a Title VII or Equal Protection analysis. Id. at 438-39 & n. 5. Unfortunately, the court did not set forth its reasons for concluding that affirmative action must be remedial to be lawful.

11 . In his dissent in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), Justice Scalia stated:

The most significant proposition of law established by today’s decision is that racial or sexual discrimination is permitted under Title VII when it is intended to overcome the effect, not of the employer's own discrimination, but of societal attitudes that have limited the entry of certain races, or of a particular sex, into certain jobs. Even if the societal attitudes in question consisted exclusively of conscious discrimination by other employers, this holding would contradict a decision of this Court rendered only last Term. Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), held that the objective of remedying societal discrimination cannot prevent remedial affirmative action from violating the Equal Protection Clause. While Mr. Johnson does not advance a constitutional claim here, it is most unlikely that Title VII was intended to place a lesser restraint on discrimination by public actors than is established by the Constitution.

Id. at 664, 107 S.Ct. at 1468-69 (Scalia, J., dissenting) (citations omitted).

Justice White also dissented on these grounds: My understanding of Weber was, and is, that the employer’s plan did not violate Title VII because it was designed to remedy the intentional and systematic exclusion of blacks by the employer and the unions from certain job categories. That is how I understood the phrase "traditionally segregated jobs” that we used in that case. The Court now interprets it to mean nothing more than a manifest imbalance between one identifiable group and another in an employer’s labor force. As so interpreted, that case, as well as today's decision, as JUSTICE SCALIA so well demonstrates, is a perversion of Title VIL I would overrule Weber and reverse the judgment below.

Id. at 657, 107 S.Ct. at 1465 (White, J., dissenting).

Justice O'Connor, however, believed the Wygant analysis to be "entirely consistent" with Weber. Id. at 650-51, 107 S.Ct. at 1461-62 (O’Connor, J., concurring in the Court’s judgment).

12 . Chief Justice Burger and Justices Stewart, Rehnquist and Stevens concluded that the Davis program violated Title VI and declined to address the constitutional question. Regents of the University of California v. Bakke, 438 U.S. 265, 408-21, 98 S.Ct. 2733, 2808-15, 57 L.Ed.2d 750 (Stevens, J., concurring in the Court's judgment in part and dissenting in part, joined by Burger, C.J., Stewart and Rehnquist, JJ.). Justice Powell addressed the constitutional issue and concluded that race may be taken into account in school admissions. Id. at 311-15, 98 S.Ct. at 2759-61 (Powell, J., announcing the judgment of the Court). In Justice Powell's view, however, Davis failed to show that its program was necessary to promote a constitutionally permissible purpose. Id. at 315-20, 98 S.Ct. at 2761-63. Accordingly, these Members of the Court formed a Majority of five, affirming the California Supreme Court’s order invalidating the Davis program and ordering the plaintiff’s medical school admission. Justices Brennan, White, Marshall and Black-mun concluded that the program, created for the purpose of remedying the effects of past societal discrimination, was constitutional. Id. at 324— 79, 98 S.Ct. at 2765-94 (Brennan, J., concurring in the Court's judgment in part and dissenting in part, joined by White, Marshall and Blackmun, JJ.). Thus, along with Justice Powell, they formed a majority of five, reversing the state court’s order prohibiting Davis from establishing race-conscious programs in the future.

13 . Although the issues resolved differ from those before us, we note the decision of the Court of Appeals for the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996). There the plaintiffs, non-minority applicants to the University of Texas law school, challenged racial preferences in admissions, alleging violations of the Fourteenth Amendment Equal Protection Clause, derivative statutory violations of 42 U.S.C. §§ 1981 and 1983 and of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Holding what the Supreme Court has never explicitly held that the need for student body diversity in higher education can never serve as a compelling justification for racial classifications, the court of appeals stated that racial classifications are justified only to remedy the effects of past discrimination and must be narrowly tailored to achieve that end. In reaching this conclusion, the court noted Justice Powell’s references to diversity in Bakke, writing:

Justice Powell’s view in Bakke is not controlling on [the diversity] issue. While he announced the judgment, no other Justice joined in that part of the opinion discussing the diversity rationale. In Bakke, the word "diversity” is mentioned no where except in Justice Powell's single-justice opinion. In fact, the four-justice opinion ... implicitedly rejected Powell’s position_ Thus, only one Justice concluded that race could be used solely for the reason of obtaining a heterogenous student body.

78 F.3d at 944.

14 . Metro Broadcasting was overruled in Adarand Constructors, Inc. v. Pena, - U.S. -, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).

15 . Despite the suggestion in the dissent of Chief Judge Sloviter to the contrary, we do not intend this statement to suggest that a policy, in order to pass muster, must set a “specific numerical goal.” The absence of goals, while it may not have been fatal alone, is a factor contributing to the overall vagueness of the plan.

16 . The Board finds support for its fifty percent backpay limit in Dougherty v. Barry, 869 F.2d 605 (D.C.Cir.1989). There eight white firefighters alleged that the District of Columbia Fire Department violated Title VII in promoting two black firefighters. The district court’s award of full backpay to each of the plaintiffs was reversed on appeal. On remand, the district court was instructed to award each plaintiff a fraction of the promotion’s value via a formula taking into account the percentage likelihood that he would actually have received one of the promotions. Id. at 614, 615. The court of appeals believed that "[d]ividing the value of the promotions ... more closely approximate^] the goal of 'recre-at[mg] the conditions and relationships that would have been had there been no’ unlawful discrimination,” since each plaintiff had less than a 100% chance of being promoted. Id. (quoting International Broth, of Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct. 1843, 1873, 52 L.Ed.2d 396 (1977)).

The district court rejected the Board's Dough-erty-type solution pointing out that, unlike Dougherty, this case involves only one discriminatory decision and one backpay award. The court concluded that it is appropriate for the Board, as wrongdoer, to bear the burden of having deprived Taxman of the opportunity to win the "coin toss” and retain her position.

17 . We agree with the district court’s determination that the NJLAD allows assessment of punitive damages against a public employer. In Abbamont v. Piscataway Township Board of Education, 138 N.J. 405, 650 A.2d 958 (1994), the Supreme Court of New Jersey held that punitive damages are available against a public employer under New Jersey’s Conscientious Employee Protection Act (CEPA). We are convinced that the Supreme Court of New Jersey would apply the logic of Abbamont to find that punitive damages are available under the NJLAD as well.