WASHINGTON (Nov. 25)
Jewish legal activists are welcoming a New Jersey school board’s decision to settle a major affirmative action case out of court.
Last week, just as the U.S. Supreme Court was preparing to hear the case, Piscataway Board of Education vs. Taxman, the school board agreed to pay $433,500 to Sharon Taxman, a white teacher whom the board had laid off in 1989 while retaining a black teacher with equal qualifications.
The school board said it made its decision under its affirmative action policy.
Fearing that the high court’s ruling could have proved disastrous for affirmative action, a coalition of civil rights groups not directly involved in the case agreed to pay about 70 percent of the settlement.
Although the Jewish community has long been divided over the issue of racial- and gender-based preferences, most legal activists agreed that the Piscataway case was not the appropriate vehicle for a potential landmark ruling by the high court.
“It’s clear that the old adage that bad cases make for bad law applies in this instance,” said Rabbi David Saperstein, director of the Reform movement’s Religious Action Center here and an expert on church-state law.
“This particular case” he added, “clouds the moral argumentation for affirmative action and therefore ill serves the cause of civil rights and civil justice.”
In negotiating a settlement, the civil rights coalition, led by the Black Leadership Forum, opted against having their day in a court that has shown increasing hostility toward affirmative action policies.
“The civil rights groups are quite correct, they would have lost this case in the Supreme Court. So, from their point of view, it was wise to withdraw it,” said Marc Stern, co-director of the legal department of the American Jewish Congress.
AJCongress had filed a friend-of-the-court brief supporting the fired teacher but urging the court not to issue a sweeping ruling in the case.
The Anti-Defamation League, which traditionally has supported diversity but opposes affirmative action as discriminatory, called the settlement “sensible.”
“It is a victory both for Sharon Taxman and for all Americans who oppose race- based decision making in employment,” said Abraham Foxman, national director of ADL, which also filed a friend-of-the-court brief supporting Taxman.
“Our society cannot further the cause of equal treatment by preferring one race over another.”
At issue in this case was the question of whether racial consideration could be used to exclude an individual or if such choices could only be made to remedy the effect of past discrimination. In prior cases, the Supreme Court has held that affirmative action programs used to remedy past discrimination are constitutional.
Although it remains uncertain whether the court will take another affirmative action case during its current term, Stern said, “It’s inevitable that the court will come back to this issue.”