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Deal Heads Off Affirmative Action Ruling Fearing Unfavorable High Court Action, Civil Rights Groups Aid In Settlement

A landmark affirmative action lawsuit was settled just weeks before it was to be argued before the U.S. Supreme Court because civil rights groups feared the court might use the case to outlaw the widespread use of voluntary racial preference plans that promote diversity.

The surprise settlement was further evidence, said lawyers and policy specialists, of a shifting political and legal consensus in America away from affirmative action and toward policies that are neutral in addressing race and gender.

Relying on a $308,500 contribution from a national coalition of civil rights groups, the Piscataway, N.J., school board agreed late Thursday night to pay $433,500 to Sharon Taxman, a white high school teacher laid off in 1989. Taxman’s lawsuit was due to be heard by the Supreme Court in January.

“A number of national civil rights organizations expressed to the board their genuine concern that an adverse ruling in this case could gut the infrastructure of affirmative action across the country,” said David Rubin, the attorney for the Piscataway school board.

Taxman had been dismissed, and an African American teacher of equal qualifications and seniority retained, solely because the school board wanted to promote diversity in the faculty of its business education department. The school had an ample number of black teachers at the school, but only one, Debra Williams, teaching business.

Williams had a master’s degree, but Taxman had more teaching experience. The school board had said “its commitment to affirmative action” had led to the firing of Taxman. Taxman claimed she was a victim of reverse discrimination and won a $186,000 judgment in the lower courts.

“There is an adage that lawyers have, that bad facts make bad law,” said Don Livingston, the former general counsel of the U.S. Equal Employment Opportunity Commission and a specialist in civil rights law. “The facts seem to be overwhelmingly in favor of Ms. Taxman. And so these facts ran the risk of slamming the door shut on affirmative action by showing how it can be misapplied in ways that generally don’t make sense to most people.”

The $308,500 donation to the Piscataway school board was made by the Black Leadership Forum, a Washington-based umbrella group for civil rights organizations, including the National Urban League and the NAACP Legal Defense Fund. The groups feared that the facts in the Piscataway debate were too weak to argue before a Supreme Court that has raised the constitutional standard for race- and gender-based preference in recent years.

After 30 years of using affirmative action plans to redress the harms caused by decades of discrimination against women and minorities, the American legal and political systems are now looking with increased favor on the principle of racial and gender neutrality.

The Supreme Court has restricted the use of racial preferences in a series of cases involving government contracting and political redistricting in recent years. In such cases, the court said, the use of race and gender in matters of public policy can be justified only where there is a specific pattern of discrimination.

The Supreme Court has not yet extended such restrictions to the hundreds of voluntary affirmative action plans adopted under Title VII of the 1964 Civil Rights Act by businesses, colleges, and other institutions that wanted diversity in their workforce or student bodies. In past rulings on Title VII - in 1979 and 1987 - the court said employers could at times discriminate against white people when adopting affirmative action plans that address “underrepresentation” of minorities.

Foes of affirmative action thought to use the Piscataway case to persuade the high court to overrule its past decisions on Title VII.

William “Chip” Mellor, president of the Washington-based Institute for Justice, a libertarian group, said, “I think the Supreme Court would have put the final nail in the coffin of race- and gender-based affirmative action.”

Some defenders of affirmative action, however, had hoped the Supreme Court’s previous Title VII decisions might lead the court to uphold the Piscataway school board’s actions, and they also left the battle with mixed feelings.

“The Piscataway school board made a thoughtful and courageous decision in 1989,” said Anne Bryant, executive director of the National School Boards Association. “Diversity in faculties serves a compelling educational purpose of promoting tolerance. It is one thing to tell a white student that people are equal regardless of race, but it is far more powerful to expose the student to teachers of all races.”