If You Can’t Beat ’Em, Buy ’Em

The most anticipated Supreme Court case of the term came to an abrupt and unexpected end late last week when civil rights groups agreed to pay over $300,000 to settle the challenge of a white teacher fired because of her race, and thus prevent the Supreme Court from hearing the case. The settlement, over 70% of which came from groups not even party to the lawsuit, demonstrates the great lengths to which civil rights groups will go to maintain legally unjustifiable racial preferences.

Preference advocates railed against the case from the start. The Clinton Administration, which changed official positions no less than twice during the course of the litigation, asked the Supreme Court not to hear the case because the issue was too "narrow." Some claimed that the case did not reflect "real life," while Hugh Price of the National Urban league, in perhaps the most telling comment, called it "an awful case that would have made dreadful law."

What made the case sufficiently dreadful to prompt preference advocates to raise $300,000 to make sure that it did not see the inside of the Supreme Court chambers? The facts of the case and the evidence of discrimination, both of which are painfully clear.

In the course of downsizing, Piscataway High School needed to lay off either Sharon Taxman or Debra Williams. Both teachers were hired on the same day, taught in the same department, had similar credentials, and received equivalent performance reviews. The school opted to keep Ms. Williams and fire Ms. Taxman, claiming that Ms. Williams, a black teacher, would contribute to the "diversity" of the business department.

The school did not attempt to blame past racial discrimination (there wasn’t any), or racial imbalance in the workforce (there was not a significant difference in the school as a whole) for the decision to take race into account. This ultimately is where the pro-preference objection to the "dreadful" case lies: the school board told the truth. They did not try to obfuscate their actions, but said forthrightly that their reason for retaining one teacher over the other was skin color, plain and simple. Kweisi Mfume, President of the NAACP, said that the school board "really should have said that they did it [fired Ms. Taxman] based on educational achievement—or lack thereof." There’s just one problem with that explanation: it’s not true. Ms. Taxman and Ms. Williams were judged to be equal by the school board on all professional counts; race was the only difference, and in the firing decision it made all the difference.

Ms. Taxman’s case is devastating to proponents of preferences. After protesting for years that racial preferences are not about unqualified individuals being chosen over more qualified individuals but rather about preferences among similar candidates, civil right groups faced the very monster of which they spoke. The case demonstrated the injustice of picking one individual over another even when they are "identical." Preference proponents saw the writing on the wall: if the court and the country realized the injustice committed when the candidates are nearly identical, how would they tolerate the far too common and pernicious practice of granting preferences to significantly less qualified individuals over more qualified individuals, as is often the case in the educational context.

Foreseeing the real possibility of losing, and losing big in a case that could have covered most public and private employers across the country, preference proponents decided to pay Ms. Taxman for damages to make the case disappear. More than simply admitting that preferential policies are legally indefensible, the settlement paid by these groups is a tacit admission of a point too often clouded in the debate over preferences: there are real victims of preferential policies.

Sharon Taxman is not just the name at the top of court documents. She is a real teacher, who really lost her job for no other reason than her skin color. The money paid her by civil rights groups are for damages she incurred because of the very preferential policies they promote.

Ms. Taxman is not alone. Every time classifications are used to treat people differently on the basis of skin color, victims are created. Their names may be different—Brown, Hopwood, or Taxman—but the wrong committed against them in the loss of equal protection is the same. Perhaps the next time the subject of racial preferences arises, these civil right groups will remember the $300,000 they paid to make whole a victim of preferential policies, and will stop before they create still more victims.

Robert Alt is an Adjunct Fellow at the John M. Ashbrook Center for Public Affairs at Ashland University.