Civil Rights Leaders Pay to Settle Key Bias Case

WASHINGTON — Fearing that the Supreme Court would use a white New Jersey schoolteacher’s discrimination case to outlaw most affirmative action, a group of black civil rights leaders has agreed to pay her more than $308,000 to drop her lawsuit.

The highly unusual settlement, approved late Thursday night by the Piscataway, N.J., school board, should end the case, which was pending before the high court and had the potential for a landmark ruling restricting affirmative action.

Last year, a U.S. appeals court, siding with the white teacher, ruled broadly that employers may not favor a black worker over a white one, except to remedy past discrimination. Its decision upheld a judge’s award of $123,000 to the white teacher, Sharon Taxman.

She had filed a race-discrimination lawsuit after being laid off in 1989. At the time, school officials decided to retain an equally senior black teacher, Debra Williams, in the interest of “diversity.”

The case was to be argued before the high court on Jan. 14.

Had the justices agreed with the lower court, their decision could have made it illegal for nearly all employers, private as well as public, to consider race as a factor in hiring, promotions and layoffs.

The surprise settlement shows that key black leaders foresaw just such an outcome.

“Bad cases make bad law. And this is a situation where a bad case could have made dreadful law,” said Hugh Price, president of the Urban League, one of the groups that helped arrange the settlement.

The Rev. Joseph Lowery, former president of the Southern Christian Leadership Conference in Atlanta, said the $308,000 was raised over several months through individual contributions. “Some gave $1,000. Some gave $5,000,” he said, declining to name the donors.

In total, the settlement will pay Taxman and her lawyers $433,500, with the school board providing about 30%.

On Friday, lawyers for the school board and the teacher said they would inform the high court of the settlement and ask that the case be dismissed as moot.

Critics of race-based affirmative action said the big-money payoff shows desperation on the part of the old-line civil rights establishment. Conservative activist Clint Bolick saw the settlement as a sign of “panic” in the ranks.

“The defenders of race preferences are running for the hills,” he said. “By paying over $300,000 to a victim of reverse discrimination, the civil rights groups have temporarily delayed the inevitable.”

Bolick came to Washington in the 1980s as a junior attorney in the Reagan administration who advocated a “color-blind” approach to law.

After leaving government, he founded a small public-interest firm, the Institute for Justice, and has since become a thorn in the side of the Clinton administration by attacking its devotion to “race preferences.”

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In 1993, he triggered the downfall of President Clinton’s first choice for civil rights chief when he labeled professor C. Lani Guinier the “quota queen.” This year, he led the so-far-successful campaign to block Los Angeles lawyer Bill Lann Lee from attaining the same post.

Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) saw signs of vindication in Friday’s announcement. “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,” he said in a statement. “Now it is time for the [Clinton] administration to face up to what even its most liberal constituency has recognized.”

No such concessions were coming from the White House, however.

White House spokesman Mike McCurry said administration lawyers have long believed that “the facts in the Piscataway case were unique and they made that case an inappropriate vehicle for adjudicating larger constitutional issues.”

Besides highlighting the familiar split between the Republican-led Senate and the Democratic administration, the settlement offer exposed a deep divide between the older civil rights establishment and a new generation of conservative blacks.

The Black Leadership Forum, which arranged the settlement, includes the leaders of the NAACP Legal Defense Fund, the National Council of Negro Women, the Southern Christian Leadership Conference and the Rev. Jesse Jackson’s Operation PUSH.

Jackson praised the settlement Friday as “wise and good for the country.”

“Because of the unfortunate facts of this case, involving a teacher who lost her job, and the right wing’s attempt to use this case to distort the meaning and intent of affirmative action, a settlement is a victory for inclusion,” Jackson said.

By contrast, the Center for New Black Leadership, a young and conservative group, denounced the settlement as a “bribe” and a “new low for the ‘civil rights’ organizations.”

Gerald A. Reynolds, president of the group, said he wishes to see “racial preferences cast into the same trash heap as poll taxes” and regrets that money was used to kill the case.

“Imagine if, in 1954, wealthy white racists could have stopped the Supreme Court from hearing the Brown vs. Board of Education case by simply putting up a few hundred thousand dollars. This action by the Black Leadership Forum is just as pernicious,” Reynolds said.

The surprise end to the Piscataway case leaves the law on affirmative action in a muddle.

As originally enacted in 1964, the Civil Rights Act seemed to bar all race discrimination in the workplace. “It shall be unlawful for an employer to fail or refuse to hire or . . . otherwise discriminate against any individual . . . because of such individual’s race,” it said. Its chief sponsor, Minnesota Sen. Hubert H. Humphrey, said the law was not intended “to achieve a certain racial balance” in the workplace but rather to “say that race, religion and national origin are not be used as a basis for hiring and firing.”

But in a 1979 case involving Louisiana steelworkers, the high court interpreted the law as allowing employers to use “voluntary affirmative action” to “break down old patterns of racial segregation and hierarchy.”

However, the U.S. Court of Appeals in Philadelphia, in ruling last year in favor of the white New Jersey teacher, returned to the original nondiscrimination wording of the 1964 law.

In recent years, the Supreme Court has frowned on most affirmative action, and many experts predicted that the justices would essentially uphold the lower court ruling.

Apparently, key civil rights lawyers came to that conclusion last summer.

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“When we met in July to work on [friend-of-the court] briefs, Ted Shaw [of the NAACP Legal Defense Fund] and the other civil rights lawyers just wanted to talk about making the case go away,” said Gwendolyn Gregory, an attorney for the National School Boards Assn. “They thought they were going to lose, so they wanted to figure how it make it go away. And they didn’t want a lot of publicity about who would pay for it.”

Gregory said she was still surprised to get a call Thursday from the Piscataway school board attorney telling her of the deal. “It’s pretty unusual. I don’t recall any case where you have an outside group pay off the plaintiff,” she said.

Veteran Supreme Court attorney Alan Morrison of Public Citizen, a public interest group, said he was amazed and dismayed by the news. He had planned a practice session for the attorney defending the school board.

“This is a terrible show of weakness” on the part of the black leaders, Morrison said. “This is like putting your tail between your legs and running away before the fight. It is just admitting defeat.”

Times staff writer Edwin Chen contributed to this story.