1998Beat Reporting

Settlement Ends High Court Case On Preferences

Tactical Retreat
By: 
Linda Greenhouse
November 22, 1997

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Affirmative Action Settlement: The Overview

WASHINGTON, Nov. 21 -- An affirmative action case that began at a suburban New Jersey high school and evolved into a major Supreme Court test of the role of race in the workplace ended abruptly today when the parties announced an unusual financial settlement.

As a result, the case will be dropped from the Court's calendar just weeks before the scheduled argument. The tactical retreat leaves the state of affirmative action law unsettled, but from the point of view of the civil rights organizations that spearheaded the settlement, at least it is no worse than it was before.

A coalition of leading civil rights groups, not directly involved in the case but increasingly concerned that a broadly worded Supreme Court decision could prove disastrous for affirmative action, agreed to provide the major share of a $433,500 settlement that the Piscataway Township Board of Education will pay to Sharon Taxman, a white teacher whom the school board dismissed to preserve a black teacher's job in a 1989 budget reduction.

Ms. Taxman will receive $186,000, representing the $144,000 she won in a successful lawsuit against the school board, plus interest, with her lawyers receiving the remaining $247,500. About 70 percent of the total package will be paid for by a civil rights coalition headed by the Black Leadership Forum. The forum is a working group of the leaders of a dozen major civil rights groups, including the Urban League and the NAACP Legal Defense and Educational Fund, whose general counsel, Elaine Jones, was instrumental in propelling the idea of a settlement.

Another affirmative action case, any of several now in the pipeline, is certain to reach the Court soon, and affirmative action supporters say they hope the next case will present the issue in a more sympathetic light than the stark trade-off of two jobs that this case entailed. Opponents of affirmative action, on the other hand, said they were confident of winning at the Court eventually.

Participants were reluctant today to describe the negotiations or the source of the money, but people in the civil rights movement said the Rev. Jesse Jackson played a leading role in raising the money and that a substantial share of the money came from corporate donors worried about the fate of affirmative action programs in the private sector. Many corporate executives have learned to live with affirmative action over the years, and even to welcome what they thought were clear rules that enabled them to increase diversity in their work forces without inviting lawsuits.

While most of the recent affirmative action cases to reach the Court have concerned the Constitution, which applies only to the Government and public institutions, the Piscataway case was based on the Civil Rights Act of 1964, the basic Federal law that bars discrimination in employment. That law applies to private as well as public employers, thus placing every affirmative action plan in the country theoretically at risk in the case.

In a statement this morning, David B. Rubin, the school board's lawyer, said that while the board had always believed that its effort to preserve diversity in the high school's business education department was justifiable and legally defensible, the board ''now believes that a negotiated settlement of this case would best serve the interests of the citizens of Piscataway Township.''

Mr. Rubin said the school board had never expected to become ''the lightning rod in a stormy national debate over affirmative action.''

Members of the school board discussed the settlement in an executive session Thursday night and took a public vote to ratify it shortly before midnight.

The settlement leaves on the books a sweeping 1996 opinion in Ms. Taxman's favor by the United States Court of Appeals for the Third Circuit, in Philadelphia. The appeals court said that the goal of achieving or maintaining diversity in the workplace was by itself never a justification for a race-based employment decision. Affirmative action could only be justified as a remedy for precisely identified past discrimination, the appeals court said.

The school board had justified its action solely on the ground of diversity. Ms. Taxman and the black teacher whose job was saved, Debra Williams, had equal seniority as the two most junior members of the business department, but Ms. Williams was the department's only black teacher out of 10.

Regardless of whether the Supreme Court would have adopted the appeals court's broad language, there was a consensus among people who had watched the case on its tortuous journey to the Court that the justices would agree that the dismissal of Ms. Taxman violated Title VII of the Civil Rights Act. By midsummer, shortly after the Court accepted the school board's appeal, the feeling was widespread in the civil rights community that there was little point in pressing on to a near-certain defeat, albeit of uncertain dimensions.

''A lot of people felt this was a lousy case to bring to the Supreme Court, and it made sense for the school board to get the hell out of it,'' William T. Coleman Jr., chairman of the board of the NAACP Legal Defense and Educational Fund, said in an interview today.

The school board, however, had rejected several settlement opportunities over the years. Having, in its view, carried the flag for affirmative action to the Supreme Court's door, the board was reluctant to pay a cash settlement without having its final day in court, its lawyer, Mr. Rubin, said today in an interview.

The lawyer, 44, a sole practitioner from Metuchen, N.J., said the board members saw the appeal as ''a chance to overturn a judgment they didn't agree with, to defend an action the President and the Attorney General had said was not only legal, but commendable.'' While Ms. Taxman's lawsuit had been supported by the Bush Administration, the Clinton Administration had placed the Government on the other side, by supporting the school board when the case was on appeal in the Third Circuit.

Late in the summer, however, the Administration changed the Government's position yet again, filing a brief urging the Justices to rule, on narrow grounds, that the school board had violated Ms. Taxman's rights. While affirmative action was justifiable under some circumstances, the Government's brief said, those circumstances were not present in Piscataway.

Walter Dellinger, who filed the Government's brief as Acting Solicitor General, said in an interview today that the settlement was a great relief. He said the Supreme Court's ''near-certain rejection of the school board's action might well have produced an opinion that swept away other, more defensible uses of affirmative action.''

Opponents of affirmative action expressed disappointment today that an anticipated victory had been thwarted. ''Defenders of preferences recognize that the end is drawing near, and this payoff was the price they had to pay to forestall the day of reckoning,'' said Clint Bolick, litigation director of the Institute for Justice, a public interest law firm that opposes affirmative action and that recently helped lead the opposition to Senate confirmation of Bill Lann Lee, President Clinton's nominee to head the Justice Department's Civil Rights Division.

Senator Orrin G. Hatch, the Utah Republican who heads the Judiciary Committee, where the Lee nomination foundered, said today that ''the extraordinary lengths to which liberal civil rights organizations have gone to prevent the Supreme Court from ruling on the Piscataway case plainly serves as an acknowledgment that racial preferences are presumptively unconstitutional under current case law.''

The prospect of finding money to pay the judgment to Ms. Taxman first came up in July, shortly after the Supreme Court had accepted the case, at a meeting of civil rights groups to discuss the strategy they should pursue in filing friend-of-the-court briefs.

The case, Piscataway v. Taxman, was more amenable to settlement than many other cases because it involved solely a money judgment, rather than any broader adjustment of rights or relationships. The school board had rehired Ms. Taxman within two years, so the only question was that of payment for her two years of back pay, lost pension contributions and seniority, as well as lawyers' fees. She had received $144,000 in a judgment in 1993, which was appealed by the school board.

Nonetheless, participants said, prospects that the board might approve a settlement looked dim. But talks continued. Mr. Rubin, the school board's lawyer, said that while he felt no pressure from his ostensible allies in the civil rights community, ''there is no question that they had a very firm point of view, and when these groups get mobilized, they can certainly be very persistent.'' Meanwhile, the Jan. 14 argument date was looming.

''As you get closer to the argument, you do tend to start dwelling on the case and counting justice by justice,'' Mr. Rubin said.

Having decided to recommend a settlement, Mr. Rubin approached his adversary, Stephen E. Klausner, Ms. Taxman's lawyer, last Friday, and discussions continued for much of the week. Given the intense national interest in the case and the number of people who knew that talks were under way, the participants' ability to keep the settlement process secret was remarkable.

''It was amazing,'' said Gwendolyn Gregory, deputy counsel of the National School Boards Association, a longtime ally of the Piscataway board in the case. ''It just shows how important it was. Everyone knew if word got out, the settlement would die.''

Ms. Gregory said she was disappointed that the case would not proceed. ''I think we did have a shot at making the case that picking on the basis of diversity makes more sense than flipping a coin,'' she said. For years, school boards around the country have been urging the Court to give them clear rules to live by so they can avoid lawsuits.

Mr. Klausner, Ms. Taxman's lawyer, said in an interview that he had given up any expectation of a settlement before hearing from Mr. Rubin a week ago. He said he had just ordered a $2,000 custom-made suit for his Supreme Court argument. ''I told my wife I wasn't going to go down there as a schlepper,'' he said from his office in Somerville, N.J.

The two lawyers will now file a joint motion with the Court asking for dismissal of the case. Dismissal is a certainty because, in the absence of a live controversy, the Court lacks jurisdiction under the terms of Article III of the Constitution.

The development leaves in place a patchwork of significant affirmative action rulings by Federal appeals courts around the country, all of them unreviewed by the Supreme Court.

Last year, in the Hopwood case, the Court declined to review a ruling that barred affirmative action in admissions at the University of Texas Law School. Two weeks ago, the Court refused to hear an appeal from a ruling that upheld California's Proposition 209, the voter initiative that bars affirmative action in state government programs there. But several lawyers pointed out today that given the ferment over the issue, other cases are bound to reach the Court soon.

Beat Reporting 1998