Surprise. The Supreme Court will not hear Piscataway v. Taxman. The court will not review how the Piscataway, New Jersey, board of education achieved “diversity” in its high school — by retaining the only black teacher in the business department and laying off an equally qualified white teacher. Oral arguments had been scheduled for January. But third-party civil rights organizations, fearing the high court’s likely ruling against the school board, have agreed to finance a hefty settlement. Sharon Taxman, the fired teacher, will get $ 433,500. And she and Piscataway, which had resisted paying a much smaller judgment ordered by lower courts, will drop the case.
This development is without historical parallel. Where legal procedure is concerned, it is rather as if . . . no, it is exactly as if the Catholic church, expecting the bad result in 1972’s epochal abortion case, had bought off Jane Roe just before the Supreme Court took up her claim. Or as if, early in 1954, some band of segregationists had slipped a stack of cash to little Linda Brown’s mommy and daddy — so that Topeka, Kansas, and all the other whites-only school systems around the country wouldn’t get opened up by Brown v. Board. Piscataway’s denouement is so amazing, in fact, that its true meaning seems not yet to have dawned on anybody The meaning is this: The Supreme Court’s certiorari jurisdiction, its power to choose which conflicts of statutory and constitutional interpretation it will resolve, is now for sale on the open market.
What, after all, was to stop Sharon Taxman from opening a Wild West auction on Piscataway’s disposition? From the civil rights groups, she heard $ 433, 500. For a higher bid from opponents of race- and gender-conscious federal law, perhaps she could have been persuaded to reject a settlement and press her lawsuit. Perhaps the Clinton administration, which has warmly welcomed this litigation’s sudden disappearance, can pursue the innovation to even greater future advantage. If the president doesn’t like his favored side’s odds in any pending Supreme Court argument, then the solution is simple. The White House phones up Mochtar Riady, who makes the opposing litigant a gift of money too rich to refuse. Case closed.
This isn’t funny. The Piscataway settlement raises unimaginably horrible questions about the authority and independence of the American judiciary. The thing is a disgrace.
Now, then, what about affirmative action? Just as the civil rights community wished, Sharon Taxman’s golden parachute forestalls a comprehensively hostile Supreme Court precedent on the issue. Nevertheless, as an immediate practical matter, Piscataway leaves the legal and political defense of race and gender preferences in tatters.
Faced with budget cuts in 1989, the Piscataway school board pink-slipped Sharon Taxman, only because she is white, so it could hold on to Debra Williams, only because she is black. The Bush Justice Department sued Piscataway on Taxman’s behalf, alleging a violation under Title VII of the 1964 Civil Rights Act. The Clinton Justice Department won this case in 1993, but when Piscataway appealed the ruling, the Clinton administration changed its mind and decided that Title VII actually didn’t forbid what the school board had done. The appeals court rejected this new argument and held for Taxman.
Title VII explicitly makes the “discharge” of “any individual . . . because of such individual’s race, color, religion, sex, or national origin” plainly illegal, no ifs, ands, or buts. What’s more, in 1972, when Congress amended Title VII to extend its reach to public employers like Piscataway, it was acting to enforce the Constitution’s Fourteenth Amendment And a long line of Supreme Court decisions makes it unmistakably clear that the Fourteenth Amendment prohibits all non-remedial, government-administered race and gender preferences. Including those ostensibly designed to further “diversity,” Piscataway’s only excuse A law intended to support the Constitution cannot, of course, provide a license for action that violates the Constitution.
But Piscataway stubbornly appealed again, this time to the Supreme Court. And the Clinton administration and its pro-preference allies soon began to lose confidence in their position. They correctly perceived a very real risk that the high court would endorse the circuit court’s uncomplicated decision. They worried, too, that the Supreme Court might say out loud what seems logically inescapable: that the language of Title VII, if it bans non- remedial preferences by public officials in Piscataway, New Jersey, must likewise ban such practices in the private sector. Affirmative action’s legal jig would finally be up, in other words, in every American workplace; nearly all existing preferences are non-remedial.
So the president’s lawyers flip-flopped one more time and urged the high court not to accept the Piscataway case. You don’t need to, they said; the “atypical” Taxman layoff was a violation of Title VII, after all. The lower court ruling should remain undisturbed. And if the Supreme Court is nevertheless intent on a broader review of employment preferences, the government’s final “friend of the court” brief suggested, the justices should at least wait for a case whose facts are “more representative of the kind of actions taken by state and local governments and by private employers nationwide.”
The justices ignored this entreaty and put Piscataway on the docket. Had it stayed on the docket, Clinton solicitor general Seth Waxman would have stood before the Supreme Court in January to defend the following, incoherent proposition: Sharon Taxman was the victim of an illegal act, because the school board’s “simple desire to promote diversity for its own sake . . . is not a permissible basis for taking race into account.” At the same time, however, “a school district can have a compelling interest in obtaining the educational benefits of a racially diverse faculty,” in which case current law “erects no additional barrier” to race-conscious hiring and firing. Whatever that means. Because civil rights groups have come up with the boodle necessary to settle the Piscataway suit, the solicitor general will now be spared the embarrassment of contradicting himself this way.
Next time, though, he will have an even more difficult job. Because in the process of purchasing preferences a temporary reprieve, the friends of race- consciousness have done their treasured idea some serious damage. They have flatly and irreversibly repudiated what has been, for twenty years, their own favorite propaganda for affirmative action. Remember? It was always just a ” right-wing distortion” that race and gender preferences involved the selection or promotion of less qualified people. In the “real world,” allegedly, affirmative action was just an eensie-weensie “plus factor,” a nearly invisible “tiebreaker” to be used in employment or admissions decisions about individuals with otherwise identical qualifications. All things being equal, the minority candidate gets the nod. What could possibly be objectionable about that?
Well. All things were equal between Debra Williams and Sharon Taxman. And one of them got fired for her skin color. What’s objectionable about that, it turns out, is just about everything — from every moral, legal, and political perspective. And no one is any longer willing to defend it, this once-beloved eensie-weensie plus factor. What happened to Taxman, Kweisi Mfume of the NAACP now admits, “was wrong.” And in the future, he promises, the civil rights movement is “never going to stand beside something like that.”
No, from now on the pro-preference crowd will be forced instead to stand beside something even uglier and less legally tenable. When some poor slob is rejected at the college of his choice, because the admissions office preferred the pigment of another fellow with dramatically lower grades and test scores, they will stand beside the admissions office. This, in fact, is the much more common reality of affirmative action — a system in which preferences are not a mere “tiebreaker” but the entire ball of wax.
The losers in this grotesque game will continue to sue. There will be other Sharon Taxmans. And one of them will eventually, conclusively, succeed. Unless the gatekeepers of race- and gender-consciousness somehow manage to buy them all off.
David Tell, for the Editors
