WASHINGTON, D.C.---Taking a page from their union brethren in the Democratic Party, civil rights leaders anted up with hush money last week to avoid a very public swan song for affirmative action as we know it.

The Piscataway case, as it is known, was to be the final straw in the breakdown of preference programs based on race and sex. But in a surprise move, the night before arguments were scheduled to begin before the U.S. Supreme Court, civil rights group donated more than $300,000 to settle the case with the high school teacher fired for the color of her skin.

First, a quick review of the Piscataway case's long and convoluted history, and the Clinton Administration's involvement in it. Piscataway, a township in New Jersey, made national headlines in 1989 when the local school board fired a teacher for being white, all in the name of diversity. New Jersey law requires that tenured teachers are laid off in reverse order of seniority, but two teachers, one black and one white, had been hired on the same day nine years earlier. The school board let the white teacher, Sharon Taxman, go, keeping the other teacher because she was the only minority in the high school's business department. When Taxman filed a lawsuit against the school board, the Bush administration filed in support of her case, agreeing that the school board's decision violated Taxman's constitutional rights.

In 1994 President Clinton's Department of Justice, led by the now departed Deval Patrick (whom Bill Lann Lee would have replaced), withdrew support of Taxman's case in order to reapply in support of the school board's diversity argument. As the case moved closer to the U.S. Supreme Court, the Administration seemed to get cold feet, and in June of this year, urged the Court not to hear the case at all, maintaining that the circumstances were too particular to make it a precedent-setting case. When the Supreme Court ignored their request, the Administration filed a brief in late summer which backpedaled from their initial support, arguing that perhaps the school board had made a bad decision but the Court should make allowances for employers to consider race under certain circumstances. This last brief was particularly notable for its effort to push the Court away from a "strict scrutiny" standard and move towards a more generous allowance, including the "diversity" justification.

And now the last minute coup and an enormous sigh of relief from the identity politics industry. If anyone had wondered whether preference program protectors were desperate, this latest move should put that question to rest. The attorney for the school board, David B. Rubin, admitted as much when he said, "Once the case was accepted by the [Supreme] Court, a number of civil rights organizations expressed . . . concern that an adverse ruling in this case could gut the infrastructure of affirmative action around the country." Apparently that infrastructure is worth more than a quarter million dollars.

This past weekend, defenders of preference programs took to the airwaves to defend the Piscataway settlement. "Peculiar circumstances," they cried, or "well, the school board made a mistake but it shouldn't serve as the precedent setter – most preference programs don't work like Piscataway." Oh really? Try explaining that to the immigrant parents of a qualified child denied admission to UC Berkeley under its old "diversity plan."

What terrified the preference defenders, including the Administration, about Piscataway was its indisputable truth that preferring one person for their race or sex means excluding someone for the same reason. They knew the Supreme Court would recognize that fact, too, as it had in Adarand v. Pena and in refusing to grant certiorari to the case against Proposition 209. Sharon Taxman was fired because she was white and the school decided they already had enough white teachers. With facts like that, can you blame the preference hawks for opening their checkbooks before the cat got out of the bag?

—Katherine Post

Director of the Center for Enterprise and Opportunity