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The Supreme Court agreed to hear the case of a New Jersey school teacher who was laid off for reasons of "diversity." Phil Ponce and guests discuss the court's decision.

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PHIL PONCE: In 1980, the Piscataway, New Jersey School Board hired two business teachers--one black and one white. Deborah Williams had taught for less than one year but soon earned her Master's Degree. Sharon Taxman had taught for three years but never earned her Master's. In 1989, the Piscataway school board decided to eliminate one of its business teaching positions since Williams and Taxman were hired on the same day and considered equally qualified. The board made its decision based on the need for diversity among business teachers. The black teacher, Ms. Williams, was kept on. The white teacher, Ms. Taxman, was laid off. Taxman filed a complaint with the Equal Employment Opportunity Commission. She was re-hired in 1992, but has continued to seek back pay. The Supreme Court agreed to hear the case and scheduled arguments for January. We get more on the ramifications from today's surprise settlement from Clint Bolick, president of the Institute for Justice, and Hugh Price, president of the National Urban League, which belongs to the umbrella group that's helping to pay today's settlement. Gentlemen, welcome both.

Mr. Price, why does your group want this case settled?

HUGH PRICE, National Urban League: (New York) The concern was that the case was not the strongest hand that could be brought in order to preserve and defend affirmative action. In a situation like this where there's basically a contest between two individuals and this one position, and the determination is based essentially on race. That is a very tough case to bring. And if this issue is to be joined by the Supreme Court, it should be based on the strongest possible case for affirmative action. And this was not it.

PHIL PONCE: Mr. Price, what might have been the worst case scenario had this case gone to the Supreme Court and had they issued a decision?

HUGH PRICE: The worst case scenario was that they used a finding against this case as a basis for making a larger determination about the future of affirmative action in situations that weren't similar to this very unique and unfortunate case. And that was the concern that there might be a broader ruling emanating from this case. And if the court is to consider the larger issue, there should be the strongest possible case before them.

PHIL PONCE: Clint Bolick, are you persuaded by that?

CLINT BOLICK, Institute for Justice: Well, I admire Hugh Price for his honesty and his candor in saying they knew they had a loser in the Supreme Court. Where Hugh and I think would differ is that I think Hugh's going to need an awful lot of cash because there are a lot of other cases, and the Supreme Court has made clear repeatedly over the last decade that racial classifications are inherently suspect and will be upheld only under the rarest of circumstances, so I don't think there is a strong case worth the regime of racial preferences that we have today.

PHIL PONCE: Mr. Price, based on your reading of where the Supreme Court is heading, was it fairly clear to you and other members of your group that this was really not a propitious case.

HUGH PRICE: Yes, that is a sense from talking with the civil rights bar that a narrow situation like this involving one slot in a layoff situation was not in a layoff situation was not the right kind of case in order to test such a large principle and that there are situations that are vastly stronger where there are large pools of very qualified applicants, many opportunities, and many slots available, and race, as in the Baake case, which is now the law of the land, can be among the factors used by those who are making the decisions. And we still think that there is a compelling state interest and justification for allowing ethnicity to be used under those circumstances, and that is the kind of case that we would like to bring before the court because that is the current law of the land.

PHIL PONCE: Mr. Bolick, earlier today your group issued a press release saying that this reflected "panic among proponents of affirmative action."

CLINT BOLICK: this is unprecedented. I can never remember a party trying to get a case to the Supreme Court, which was the school board in this case, and then having outside groups so worried that they were going to lose this case, that they would ante up in this case $433,500 to basically buy off the plaintiff in this case to avoid a case. I think that this--this indicates a well placed panic among the establishment of civil rights groups because they know the writing is very clear on the wall. The American people and the Supreme Court have really had enough of racial classifications.

PHIL PONCE: State of panic, Mr. Price?

HUGH PRICE: No, it's not a state of panic or concern about an individual case and a desire to put this strongest case forward. I'd also add that the so-called outside groups did not raise all of the funds that this settlement did, indeed, finalize on these--the school board, itself, I believe is involved as well. So, I mean, there is always the issue of what is the best case to bring forward, and I'm sure Mr. Bolick would not want to bring a case that in his judgment was not strong on his side, and that is the position here.

PHIL PONCE: It is fairly unusual, is it not, that an outside group would raise this much money? Did that take a lot of soul searching as far as that kind of participation?

HUGH PRICE: I don't think it took a great deal of soul searching at all. We have a vast interest in this body of the law and in preserving affirmative action, in preserving inclusion of the circumstances that the court will support, and we wanted to present that kind of circumstance that the court feels that it must rule, and that was not the case in this instance.

PHIL PONCE: Mr. Bolick, is your group and others who oppose affirmative action disappointed that this has happened?

CLINT BOLICK: Well, we would have loved to have seen the court take this case to one--

HUGH PRICE: I'm sure you would.

CLINT BOLICK: In fact, we'll see if we can outdo you here. Really, the--even though the court repeatedly rules that racial preferences are unconstitutional, they're not disappearing. There really right now is a program of massive resistance. In California, where the state has outlawed racial preferences, Jesse Jackson has just come back from there after urging California state officials to defy the law. I think we're seeing a replay of what happened in the 1950's, and so I think where you had a civil rights ruling, Brown Vs. Board of Education, and the public officials simply refused to implement it. So that's why I'd really like to see the court once again say, listen, non-discrimination is the law of the land, and we want to see public officials and force that with all deliberate speed.

HUGH PRICE: The current law of the land under rulings of the Supreme Court is that race can be among the considerations used in the allocation of opportunity under the right circumstances. That is the ruling in Baake which the Supreme Court has not overruled. They don't believe it will overrule, and we want to be sure that there's the right kind of case before them in order to preserve that precedent. That is the law of the land. Proposition 209 is the law in California, but it's not the law of the land.

PHIL PONCE: Mr. Price, how do you respond to Mr. Bolick's assertion that the tide is basically against you?

HUGH PRICE: Well, there are trends which are worrisome. I think there's also a need to examine some of the tools in affirmative action, and some of these cases like the Piscataway case are very tough cases where there is one slot and two people. I do think that the facts in other situations and higher education are very different where you have large pools of qualified applicants, of all complexions, and where institutions want to be inclusive. You know, we have headed into a world where the population of this country is going to be one half minority, one half Caucasian, and we've got to manage opportunities in our society so that everyone is included, and we can't leave inclusion to chance. And that is what the battle over affirmative action is all about. Are we as a society as we head into this new world going to remain committed to including everyone, or are we going to allow inclusion to chance and revert to the days when I applied to college, for example, when there are only a thimbleful of minorities on campus. I don't think that is a sustainable way for this society to operate.

CLINT BOLICK: Well, civil rights groups, many of them are fighting the battles of the 1960's and the 1990's. The fact is that problems are different today. Racism remains a problem, but when you see minorities disappearing from the University of California, the reason is not because California is trying to keep minorities under the school. It is because of the appalling state of education in our K through 12 system. I applaud Hugh Price's group, which almost alone among the established civil rights groups is focusing on issues like that. But what I'd like to see is an opportunity where the civil rights groups say listen, we are going to give a break to these racial classifications, and we're going to focus on people based on their disadvantage. When that happens, we're going to be able to rebuild the civil rights consensus in this country but not until then.

HUGH PRICE: We agree completely that the quality of K-12 education has to improve and that all young people who are going to take advantage of opportunities have to be clearly qualified. My concern that Clint Bolick is fighting for the discretion that existed in the 1950's, which is to say that if it turns out that there are no minorities on this campus or in this work force, that's okay as well. And we submit that that's not okay as we head toward the future, and we've got to manage opportunities so that those who are qualified of all complexions and backgrounds are in the pool and have a chance to participate. That is what this basic battle is about. Are we going to leave it to chance, or are we going to bend every effort to be inclusive among those who are qualified?

CLINT BOLICK: Now, in 1997, Hugh, a qualified minority is going to make it and are going to make it into the universities are going to make it on the job front. The anti-discrimination laws exist for those instances where discrimination occurs, but what this regime of racial preferences has done is to make us think that we are solving the underlying educational and economic problems when, in fact, they are actually growing worse, and I hope that what's happening in California is a wake-up call, so that we can get out of the racial classification business, and into the business improving the quality and the skills of people who have been left behind in our society white or black.

PHIL PONCE: Mr. Price, if the Supreme Court is so included to limit affirmative action, is it just a matter of time perhaps? Are there other cases in the pipeline which will raise similar issues?

HUGH PRICE: They may, but they may be cases that bring the larger issues more clearly to the court and present the strongest case possible, and that was a concern about this case. We don't know which way the Supreme Court is inclined? It has ruled in a limited number of circumstances, but the Baake case, which allows race to be among the factors, remains the law of the land. And we believe that there's a very powerful reason for that to continue under the right set of circumstances.

PHIL PONCE: Mr. Bolick, are you aware of any cases that might be--

CLINT BOLICK: Yes, there are many other cases in the pipeline. The University of was, the University of Michigan both have admissions preferences that are under attack. Ironically, the Supreme Court's decision and the Adarand decision in 1995, which struck down federal set-aside programs, is still in litigation. The Clinton administration, which continues to marginalize itself on these issues and stake out a very hard left position on racial preference issues, is continuing to litigate that case two years later. That one is working its way back up to the United States Supreme Court as well. The Supreme Court is going to have many opportunities. There are no good cases from Hugh Price's perspective, quite frankly, because they all involve discrimination by government.

PHIL PONCE: Mr. Price.

HUGH PRICE: Jim, when I applied to college in 1959 and went off to school, there were only a handful of minorities on that campus, even though there were many, many, many times that many amply qualified. It was the case because the institutions weren't deeply committed to being inclusive. So you can still end up with lots of qualified, fully qualified minorities in the pool not chosen if we're not conscious in our efforts to be inclusive and be back where we were in the 1940' and 50's, but in a world that is moving toward the 21st century that will be increasingly diverse, that is what this fundamental debate is about, and that is what this fundamental debate is about. And that is why the mechanisms of affirmative action properly managed in the right circumstances are critically important to maintain.

PHIL PONCE: Mr. Price and Mr. Bolick, thank you both for being here.

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