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
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
''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
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
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